United States District Court, D. Colorado
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT
Marcia S. Krieger, Chief United States District Judge
THIS MATTER comes before the Court on the Defendants City and County of Denver School District No. 1, Clifford Paine, and Michael Eaton’s Motion for Summary Judgment (#75), the Plaintiff Stanley Crew’s Response (#86) and Supplemental Response (#101), and the Defendants’ Reply (#104).
I. Material Facts
Having reviewed the record and submissions of the parties, the Court finds the following facts to be undisputed, or where there is a dispute, the facts are viewed in the light most favorable to the non-movant, Mr. Crews.
Mr. Crews, a black man in his fifties, worked for the City and County of Denver School District No. 1 (Denver Public Schools, or the District) as an armed patrol officer in the Department of Safety and Security. Mr. Crews was employed by the District from May 1995 until he was terminated in February 2012. While Mr. Crews was employed, he was supervised by various Sergeants, who were in turn supervised by a Commander or Lieutenant, who was supervised by the Chief of the Department. During the time period pertinent here, Mr. Crews worked the graveyard shift, generally alongside two other officers: John Linger, who is white, and Lawrence McFadden, who is black.
Mr. Crews’ employment history with the District is somewhat mixed. Although he received performance evaluations ranging from “effective” to “superior” between 2005 and 2010 (the record does not disclose earlier reviews), he also accumulated numerous disciplinary notices and warnings – as many as 12 during the period from 1998 to 2008, several of which involved Mr. Crews’ failure to submit timely reports.
B. Mr. Crews’ difficulties with Sgt. Paine
At the end of 2009, Clifford Paine was promoted to Sergeant and became Mr. Crews’ direct supervisor. The record reflects that, to some extent, Sgt. Paine was more demanding and less tolerant than Mr. Crews’ previous supervisors had been. Mr. Crews alleges that Sgt. Paine subjected him to increased scrutiny, different departmental policies and work rules, and false allegations of misconduct. For example, Mr. Crews states that, upon arriving at work, Mr.
Crews would “meet me at the door looking at his watch then proceed to follow me around criticizing what I was doing.” Sgt. Paine accused Mr. Crews of an incident of spitting on a police car, although Mr. Crews denies having done so. Sgt. Paine required Mr. Crews to produce a doctor’s note the day following a medical absence, when “the standard and protocol had always been” that employees could take up to 5 days to produce a note. Sgt. Paine would often schedule Mr. Crews as the only officer on the graveyard shift when “department policy” required two and he would not follow the custom of Sergeants filling in for patrol officers who were on vacation or sick leave. With regard to these events, Mr. Crews does not expressly indicate whether Sgt. Paine directed these actions solely at him, or whether Sgt. Paine subjected other officers (particularly Mr. Linger) to the same treatment, although Sgt. Paine’s own deposition testimony indicates that he specifically identified Mr. Crews and Mr. McFadden, the two black employees on the graveyard shift, as ones that were the most resistant to change.
One of Sgt. Paine’s pet peeves involved incident reports filed by officers. After each occasion in which an officer is called out to respond to an incident or alarm, the officer is required to complete a report. The officer in charge on the call typically completes the “primary report, ” and other officers assisting on the call complete “supplemental reports.” As of at least 2008, District policy required that officers complete and submit their reports by the end of their shift on the day of the event. An exception existed that allowed officers to file reports until the day after they were otherwise due, if: (i) the report was not considered “essential” or “sensitive, ” (ii) completing the report on time would require the officer to incur overtime, and (iii) the officer informed his supervisor of the situation beforehand. This policy was reaffirmed by the District in March 2009, through what is referred to as a “Commander’s Directive.” There is some ambiguity in the record as to whether supplemental reports are governed by this same policy: the policy language itself does not differentiate between primary and supplemental reports, but Mr. Crews states in his affidavit that, as a matter of general practice in the District, supplemental reports could be turned in on the day following the incident.
Sgt. Paine and Mr. Crews had particular friction regarding reports. Mr. Crews states that Sgt. Paine “would find issues or demand corrections to reports that had been done [in] the standard practice” that had prevailed previously. This does not seem to be a practice that was unique to Mr. Crews, as Mr. Linger testified that getting a report returned to him for corrections was “very not unusual, that happens all the time.” (Mr. Crews complains that, frequently, Sgt. Paine would “not state what needed to be corrected, ” and asserts that Mr. McFadden complained of the same problems.) Mr. Crews also experienced certain difficulties with having Sgt. Paine acknowledge his reports. He contends that Sgt. Paine “would hold my reports that had been timely submitted in a folder for approval, ” wait until after the reports were due, and then “send me e-mails that my reports were late.” He also alleges that “many of the reports I turned in were deleted” by unknown persons or circumstances. (Sgt. Paine’s affidavit notes that Mr. Linger has also complained that reports he had completed and turned in were reported as missing.) At some point in time, Sgt. Paine directed that Mr. Crews respond to e-mails with “read receipts” verifying that he had seen them. Sgt. Paine asserts that he “required other officers, including Caucasian officers, to respond to e-mails with read receipts.” On May 19, 2011, Sgt. Paine issued a disciplinary Letter of Warning to Mr. Crews. That letter referenced an incident on May 10, 2011, in which Sgt. Paine had returned a report to Mr.
Crews for corrections. The letter recited that on May 12, 2011, the report had not been returned and Sgt. Paine directed Mr. Crews via e-mail that the report be completed by May 16, 2011, the date that Mr. Crews returned to duty from a leave. On May 18, 2011, Sgt. Paine still had not received the report, and thus issued the Letter of Warning to Mr. Crews for violation of “Policy 2.40, ” a rule that requires employees to “read and understand Departmental Regulations, Standard Operating Procedures, electronic information, [and] training bulletins.” Mr. Crews contends that this discipline was unfounded, as he had “timely electronically submitted the corrected report to Paine in his reports approval folder as he requested.” Mr. Crews points to several instances in which other officers (including himself) were notified by another Sergeant, Lisa Wehrli, of reports that they were responsible for that were “missing” and were instructed to complete the reports promptly. Mr. Crews notes that none of the other individuals notified by Sgt. Wehrli were disciplined for the missing reports. (The District suggests, albeit without supporting evidence, that these employees were not disciplined because they promptly complied with Sgt. Wehrli’s instructions, unlike Mr. Crews’ failure to promptly respond to Sgt. Paine’s.)
Prompted by the May 2011 Letter of Warning, Mr. Crews contacted an attorney and on May 26, 2011, the attorney wrote to the District presenting Mr. Crews’ position with regard to the Letter of Warning. Mr. Crews’ attorney’s letter insisted that “Mr. Crews seems to be singled out and treated differently than all other security personnel.” Although the letter did not expressly posit that this was due to Mr. Crews’ race or age, it did allege that the conduct “appear to constitute a pattern of harassment and discrimination against Mr. Crews.” In the meantime, on May 23, 2011, Sgt. Paine placed Mr. Crews on a “Plan for Improvement” (“PFI”) that required him to send a daily e-mail to Sgt. Paine and Sgt. Wehrli to confirm that he was reading and responding to his e-mails. On occasions in May and June 2011, Sgt. Paine reprimanded Mr. Crews for failing to comply with the PFI.
At or about this time, Mr. Crews complained about Sgt. Paine’s conduct to Commander Robert Swain. Mr. Crews told Commander Swain that he thought Sgt. Paine was trying to create a paper trail to support his termination. Commander Swain notified Sgt. Paine of Mr. Crews’ complaints, but he did not otherwise investigate. On June 16, 2011, Mr. Crews contacted Human Resources and indicated that he wanted to file a grievance. He later met with a representative from Human Resources to discuss his concerns. The District’s outside counsel began investigating Mr. Crews’ complaints.
On June 28, 2011, Sgt. Paine prepared a “Supervisor Insight” report, recommending that Mr. Crews be terminated for failing to provide a doctor’s release for time off. The report indicated that Mr. Crews had demonstrated a pattern of non-compliance with policies and noted 20 incidents that occurred over an 11-month period. However, Sgt. Paine never presented the report to Commander Swain for further action because the District’s counsel had begun investigating the allegations in Mr. Crews’ attorney’s letter and instructed Sgt. Paine to refrain from taking further action until that investigation was completed. According to Sgt. Paine, he honored counsel’s instructions and continued “business as usual.” In June 2011, Michael Eaton replaced Chief Ed Ray as the Department Chief. Chief Eaton and Mr. Crews met in July 2011. Mr. Crews complained that in the past, black patrol officers had been harassed and weren’t notified when field training positions opened up. Eaton explained that he did not have any knowledge of what had happened in the past, but from this point forward harassment would not be tolerated.
C. Mr. Crews’ termination
At approximately 1:00 AM on January 24, 2012, Mr. Crews was dispatched as the to respond to a burglary in progress at Wyman Elementary School. Another officer, Alix Two-Elk, was also dispatched. At the time, Officer Two-Elk had been a patrol officer with the District for approximately three months. It appears that the dispatcher determines which officer will be primarily responsible for the matter, and the dispatcher identified Mr. Crews as the primary officer.
Officer Two-Elk arrived first on the scene, followed by Mr. Crews several minutes later. Mr. Crews and Officer Two-Elk entered the building to assess the damage, which included a broken window. Officer Two-Elk contacted the dispatcher and informed him of the damage. Officer Two-Elk was told that the District’s point of contact person and glass repair person would not arrive until the morning. Officer Two-Elk stayed on the scene to monitor the broken window and protect the premises. Mr. Crews notified dispatch that he would be handling patrol. Mr. Crews left the scene around 2:45 AM to respond to another call.
Because Mr. Crews had to leave the Wyman scene, Officer Two-Elk and Mr. Crews agreed that Officer Two-Elk would write the primary incident report. Officer Two-Elk initially submitted his report as a “supplemental” report because that was the only report type he could access in the system due to being designated as the back-up officer, not the primary officer, by the dispatcher. Officer Two-Elk’s report was submitted at 5:27 AM. Mr. Crews did not submit his report during his shift on January 24th, nor did he contact a supervisor to obtain permission to withhold filing his report until the next shift.
After the Wyman incident, Sgt. Paine and Sgt. Wherli met with Mr. Crews and asked him why he failed to timely file his report. Mr. Crews explained that he was unable to access the reporting system to complete the supplemental report. After receiving additional instruction from Sgt. Wherli, Mr. Crews was able to complete his report. Later, Sgt. Paine changed the officers’ designations in the reporting system to reflect that Officer Two-Elk was the primary officer and Mr. Crews was the back-up officer so that each officer could file the proper report. Sgt. Paine instructed Officer Two-Elk to “copy and paste” his original supplemental report onto the primary report. Sgt. Paine was concerned, however, because officers had been directed to contact a supervisor if they were having problems accessing the system, which Mr. Crews did not do.
On January 25, 2012, Sgt. Paine completed another Supervisor Insight report in which he recommended that Mr. Crews be terminated. In the report, Sgt. Paine accused Mr. Crews of several policy violations. First, he asserted that Mr. Crews violated Policy 2.11, which requires that in the event several officers respond to a scene, the senior officer shall assume command and direction of personnel until a higher-ranking officer arrives or until the officer is relieved of duty. Sgt. Paine determined that Mr. Crews was the senior officer during the Wyman incident and that he left the scene without being properly relieved of his duties.
Second, Sgt. Paine also concluded that Mr. Crews violated Policy 2.56, which requires officers to submit necessary reports by the end of their shift except with supervisor approval. Sgt. Paine determined that Mr. Crews failed to timely submit his supplemental report and failed to obtain supervisor approval to hold the report. Sgt. Paine acknowledged Mr. Crews’ explanation that he could not submit the report because he could not connect to the network, but found the explanation to be incredible because the system records indicated that Mr. Crews had indeed logged on to the network when he started his shift on the evening of January 24th. Sgt. Paine concluded that even if he credited Mr. Crews’ explanation, Mr. Crews nevertheless failed to contact the on-call supervisor for assistance with the network or for approval to hold his report until a later time.
Third, Sgt. Paine concluded that Mr. Crews failed to comply with a Department directive that required the primary officer to notify a supervisor when serious incidents, like burglaries, occur. Mr. Crews asserts that, as a matter of practice (if not necessarily one of policy), dispatchers were responsible for contacting the District’s supervisor in such situations. Mr. Crews also points to Sgt. Paine’s own deposition testimony that dispatchers “should probably call the on-call supervisor to notify them we have an incident in progress.” (Sgt. Paine later testified that the primary officer “should call the on-call [supervisor], the officer responding to the scene when they get there to give us updates.”)
Sgt. Paine’s report was submitted to Commander Swain and then to Chief Eaton. A few days later, Mr. Crews met with Chief Eaton, Commander Swain, Sgt. Wherli, and a representative from Human Resources. Chief Eaton told Mr. Crews that he did not fit his vision of the department moving forward and offered him retirement paperwork. Mr. Crews was 54 years old at the time. Chief Eaton told him that if he chose not to retire, he would be terminated. Mr. Crews refused to retire. Chief Eaton then issued him a termination letter, noting that Mr. Crews had violated Department Policies 2.11 and 2.56 and failed to follow supervisor directives during and after the Wyman incident. Chief Eaton also noted several examples from Mr. Crews’ disciplinary history, which showed a pattern of ...