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Salemi v. Colorado Public Employees' Retirement Association

United States District Court, D. Colorado

March 31, 2016

ELHAM SALEMI, Plaintiff,
COLORADO PUBLIC EMPLOYEES’ REITRIEMENT ASSOCIATION; TIM MOORE, in his official and individual capacities; ANGELA SETTER, in her official and individual capacities, Defendants.


Wiley Y. Daniel Senior United States District Judge


THIS MATTER is before the Court on Defendants’ Motion for Summary Judgment (ECF No. 56), filed on June 10, 2015. The matter is fully briefed.

Plaintiff was an employee of Defendant Colorado Public Employees’ Retirement Association (“PERA”) from May of 2004, beginning as an intern, through May 10, 2012, when her employment was terminated. At all times relevant to Plaintiff’s Complaint, Defendants Tim Moore (“Moore”) and Angela Setter (“Setter”) were employed by PERA. Moore was the Director of the Alternative Investments Department, and Setter was the Director of Human Resources.

Plaintiff alleges that during her eight-year employment with PERA, Defendants discriminated against her on the basis of her gender, her race, and her national origin. Plaintiff is Persian-American woman who was born in Iran. She claims that because of this unequal treatment, she was denied timely promotions, retaliated against for complaining about unequal treatment, and denied equal pay and work opportunities that were offered to her white male co-workers. She claims that following her FMLA leave and the filing of a charge with the Equal Employment Opportunity Commission (“EEOC”), she was abruptly fired. Plaintiff asserts seven causes of action against Defendants: 1) discrimination and failure to promote under Title VII of the Civil Rights Act; 2) retaliation under Title VII; 3) race and national origin discrimination under 42 U.S.C. § 1983; 4) retaliation under § 1983; 5) retaliation under the First Amendment; 6) retaliation under the Family Medical Leave Act (“FMLA”); and 7) wage discrimination under the Equal Pay Act. Plaintiff seeks declaratory and injunctive relief, economic damages, non-economic damages, punitive damages, interest, attorney’s fees and costs. Defendants argue that all of Plaintiff’s claims fail as a matter of law, and that they are entitled to summary judgment on all claims.


Pursuant to rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the . . . moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Equal Employment Opportunity Comm. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A material fact is one that might affect the outcome of the dispute under the applicable law. Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995). I must construe all inferences in favor of the party against whom the motion under consideration is made. Pirkheim v. First Unum Life Ins. Co., 229 F.3d 1008, 1010 (10th Cir. 2000). All doubts must be resolved in favor of the existence of triable issues of fact. Boren v. Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir. 1991).


The following facts are undisputed. Plaintiff, an at-will employee, began working for PERA’s Alternative Investments (“AI”) department as an intern on May 17, 2004. She was promoted to Portfolio Associate within the AI department on September 1, 2004. Moore became the AI Director in February of 2007, at which time he became Plaintiff’s supervisor. Plaintiff was promoted to the position of Analyst within the AI department on June 2, 2008. Plaintiff alleges that this promotion was over a year late, and should have been awarded sooner. Plaintiff was being paid an annual salary within the 2007 range. Since she should have been paid within the 2008 range, her salary was later adjusted and she was paid the difference retroactively.

Plaintiff’s colleagues within the AI department were Aaron Norton (“Norton”), Dan Chilton (“Chilton”), John Kasic (“Kasic”), and Dave Saunders (“Saunders”), all males. The only individual on the team who held the same job title as Plaintiff during her employment with PERA was Saunders, who was hired as an Analyst on January 1, 2010. The other individuals (Norton, Chilton, and Kasic) worked as Portfolio Managers during Plaintiff’s employment with PERA. All four of Plaintiff’s colleagues were qualified for the jobs they held at PERA.

During Plaintiff’s eight year employment with PERA, she received annual performance evaluations. Although Plaintiff consistently received overall positive reviews for her work, she also received consistent feedback suggesting that she improve her assertiveness skills, take more initiative in meetings, and be more vocal and confident in her role within the department.

In March of 2011, Plaintiff expressed interest in the Portfolio Manager track. Moore expressed concern that she had not demonstrated the required qualities of a Portfolio Manager. In May of 2011, Setter suggested that Plaintiff take communications classes to improve some of her skills.

After feeling that her concerns had not been properly addressed and that she was being treated differently than the white men in her department, Plaintiff submitted a written complaint to Setter on June 28, 2011. Plaintiff expressed frustration with the fact that she had been labeled as a quiet person and that this was preventing her from moving forward in her career with PERA. PERA conducted an internal investigation in response to Plaintiff’s complaint. Eight individuals were interviewed and all of them confirmed Plaintiff’s quiet nature and reluctance to speak up at meetings. PERA’s conclusion of the investigation was that Plaintiff’s claims of being treated differently were not substantiated. Plaintiff received notice of the investigation’s findings in a letter dated September 1, 2011.

Prior to the conclusion of the investigation, Plaintiff left work to begin FMLA leave on July 18, 2011. She remained on leave for five months, first on FMLA leave, then on short term disability leave. During her leave, she filed a Charge of Discrimination with the EEOC on September 29, 2011, alleging discriminatory treatment. She returned to work on December 19, 2011.

During her leave, Plaintiff looked for a new job. Within a few weeks of her return to PERA, Plaintiff began working for Metro State University as a teacher; however, she also continued working for PERA. Moore and Plaintiff met several times after her return regarding the nature of the tasks she was asked to complete, her performance of those tasks, and the quality of her work. On May 9, 2012, Moore recommended that Plaintiff’s employment be terminated based on poor job performance. Plaintiff was terminated on May 10, 2012.

A. Title VII Claims - Against Defendant PERA

1. Administrative Remedies

As a preliminary matter, Defendants argue that some of Plaintiff’s Title VII claims are outside the Court’s jurisdiction because she failed to exhaust administrative remedies on those claims. Plaintiff filed one EEOC charge on September 29, 2011. Defendant argues that Plaintiff’s claims under Title VII are limited to acts that occurred during the 300 days leading up to the EEOC charge - December 3, 2010 through September 29, 2011 - and that her Title VII claims, either before or after this time frame, were not administratively exhausted. Plaintiff does not dispute that she filed only one charge on September 29, 2011. However, Plaintiff argues that the Court already ruled in her favor on this issue when it denied Defendants’ motion to dismiss on September 30, 2014.

The issue of subject matter jurisdiction can be challenged at any time in the proceedings. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998) (“The requirement that [subject matter] jurisdiction be established as a threshold matter springs from the nature and limits of the judicial power of the United States and is inflexible and without exception.”); see also Franklin Sav. Corp. v. United States, 180 F.3d 1124 (10th Cir. 1999); Huffman v. Saul Holdings Ltd., 194 F.3d 1072, 1076-77 (10th Cir. 1999) (“A defect in subject matter jurisdiction can never be waived and may be raised at any time.”). This Court’s previous Order denying Defendants’ motion to dismiss did not rule on the issue of jurisdiction, but instead only found that Plaintiff had stated a claim that was plausible on its face. Therefore, the issue of jurisdiction over Plaintiff’s claims remains an issue for the Court to decide.

Federal courts lack jurisdiction over Title VII claims that were not previously covered in a claim presented to the EEOC. Eisenhour v. Weber Cnty., 744 F.3d 1220, 1226 (10th Cir. 2014). A plaintiff is barred from suing on incidents that occurred more than 300 days prior to a filed EEOC charge. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (“Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the . . . 300- day time period after the discrete discriminatory act occurred.”). Further, discrete acts such as termination, wage violations, failure to promote, or discrimination are “easy to identify” and each act constitutes a separate actionable practice. Nat’l R.R., 536 U.S. at 114. Therefore, acts that occur more than 300 days before or at any time after the filing of an EEOC charge are not actionable under the previously filed charge, and a new charge must be filed within 300 days after the new discrete act.

Plaintiff cites Goodwin v. General Motors, 275 F.3d 1005 (10th Cir. 2002) for the proposition that her claims of incidents that occurred more than 300 days prior to her EEOC charge are not time barred because evidence of discrimination outside the 300 day period is still admissible and probative of whether her compensation or job status was affected by discriminatory actions. See Pl.’s Response, ECF No. 69, p. 50. Prior to the Supreme Court’s decision in National Railroad, Plaintiff’s theory was embraced by many jurisdictions. However, National Railroad limited the applicability of the continuing violations theory and held that Title VII “precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period.” Nat’l R.R., 536 U.S. at 105. Additionally, “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id. at 113. Thus, Plaintiff’s Title VII claims regarding incidents that occurred prior to December 3, 2010 will not be considered here.

Regarding Plaintiff’s claims after the filing of the EEOC charge, the Tenth Circuit held that “each act of retaliation must be separately exhausted, even when acts that post-date the EEOC complaint reasonably relate to others presented to the EEOC.” Eisenhour, 744 F.3d at 1227, citing Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003). Therefore, “federal courts lack jurisdiction over incidents occurring after the filing of an EEOC claim unless the plaintiff files a new EEOC claim or otherwise amends her original EEOC claim to add the new incidents.” Id. Plaintiff argues that her claims based on incidents after the filing of the EEOC charge are viable because the EEOC and PERA were both on notice of a pattern of discriminatory or retaliatory conduct when she filed her charge in September of 2011. See Pl.’s Response, ECF No. 69, p. 52-53. Plaintiff offers no case law in support of her argument, but instead asks the Court to “extend, modify, or reverse the law” as determined by the Tenth Circuit in Martinez, or “to establish new law applicable to these circumstances.” Id. at 53, n.7. The Court declines to do so, and finds that because Plaintiff did not file any other EEOC charge, nor did she amend the first EEOC charge to include new incidents, the Court lacks jurisdiction on all of her Title VII claims involving incidents that occurred after September 29, 2011, the date her EEOC charge was filed.

2. Failure to Promote

Plaintiff alleges two separate Title VII claims for failure to promote. First, she claims that her promotion in June of 2008 from Portfolio Associate to Analyst was delayed by over a year. Second, she claims that PERA refused to promote her to Portfolio Manager after she requested to be put on track for that promotion in March of 2011. As noted above, for Plaintiff’s Title VII claims, the Court only has jurisdiction over incidents that allegedly occurred between December 3, 2010 and September 29, 2011. Accordingly, only her second claim of failure to promote will be considered here.

For a Title VII failure to promote claim, Plaintiff must establish that 1) she was a member of a protected class; 2) she applied for and was qualified for the position; 3) despite being qualified she was rejected; and 4) after she was rejected, the position was filled. Jones v. Barnhart, 349 F.3d 1260, 1266 (10th Cir. 2003), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). If Plaintiff can establish a prima facie case, the burden shifts to Defendants to articulate a legitimate, nondiscriminatory reason for its employment action. Jones, 349 F.3d at 1266; see also Garrett v. Hewlett- Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002).

Plaintiff alleges that in March of 2011, she asked Moore about her future with PERA and the possibility of being considered for a promotion to Portfolio Manager. Am. Compl., ¶ 34; Def.’s Motion for Sum. Jud., p. 18, ¶ 56. At that time, Moore stated that “this did not seem to be her forte” because she had not demonstrated the required qualities of a Portfolio Manager. Def.’s Motion for Sum. Jud., p. 18, ¶ 56. Defendants argue that the Portfolio Manager position “required assertiveness, ability to ask difficult questions, and ability to negotiate and recommend investment activity, ” and that Plaintiff “failed to exhibit those qualities.” Def.’s Motion for Sum. Jud., ECF No. 56, p. 36. Defendant notes that Plaintiff acknowledged in her December 2010 and January 2012 performance reviews that “I still need to acquire more knowledge in order to convey my thoughts and ideas effectively in meetings.” Id.

Plaintiff asserts that Moore told her that rather than promoting her to Portfolio Manager, “he would create a new title called ‘System something.’” Am. Compl., ¶ 34. Although she offers no supporting evidence, Plaintiff claims that the new position would be a “dramatic demotion” for her. Id. Plaintiff claims that Moore’s comments about Portfolio Manager not being her forte were “based, in part, on Mr. Moore’s stereotypes of Ms. Salemi’s gender, race, national origin, and culture.” Id. at ¶ 35. Plaintiff claims that her quiet nature and closed body language was a sign of respect and could be attributed in part to her Iranian culture. See Pl.’s Response, ECF No. 69, Ex. 1, p. 31:9-19. Plaintiff claims that in response to her request to be promoted, she instead was met with assignments of “miniscule administrative duties” which “adversely affected her ability to perform her Analyst duties.” Id. at ¶¶ 36, 41.

Plaintiff cannot satisfy the elements for a Title VII failure to promote claim. Although she is a member of a protected class (based on gender and on race), she cannot demonstrate that she was qualified for the position that she expressed interest in having, nor can she demonstrate that the position was filled after she was rejected. Saunders was promoted from Analyst to Portfolio Manager in January of 2012; however, even if Plaintiff could demonstrate that the promotion of Saunders met the final element of a failure to promote claim, his promotion occurred more than three months after the filing of her EEOC charge. Her failure to promote claim would not have even been ripe until January of 2012 when Saunders allegedly filled the position that Plaintiff had expressed interest in pursuing. Accordingly, Defendants are entitled to summary judgment on Plaintiff’s Title VII failure to promote claim.

3. Discrimination

For Plaintiff’s Title VII discrimination claim, Plaintiff must demonstrate that 1) she was a member of a protected class; 2) she suffered an adverse employment action; and 3) the action arose in circumstances giving rise to an inference of discrimination. EEOC v. PVNF, LLC, 487 F.3d 790, 800 (10th Cir. 2007). Once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. Mickelson v. New York Life Ins. Co., 460 F.3d 1304, 1311 (10th Cir. 2006). If the employer does so, the burden shifts back to the plaintiff to show that there is a genuine issue of material fact as to whether the employer's proffered reasons are pretextual. Id.

The Tenth Circuit liberally defines the phrase “adverse employment action.” See Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532 (10th Cir. 1998); Gunnell v. Utah Valley State College, 152 F.3d 1253, 1264 (10th Cir. 1998); Jeffries v. Kansas, 147 F.3d 1220, 1232 (10th Cir.1998). Courts take “a case-by-case approach, ” examining the unique factors relevant to the situation at hand. Jeffries, 147 F.3d at 1232. However, an adverse employment action does not include “a mere inconvenience or an alteration of job responsibilities.” Sanchez, 164 F.3d at 532, citing Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) (conduct is an adverse employment action if it “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”).

Plaintiff’s only alleged conduct that could rise to the level of an adverse employment action within the applicable 300 day time period is that of a failure to promote her to the position of Portfolio Manager. Otherwise, during that 300 day period, Plaintiff does not allege “a significant change in employment status” that would support a Title VII discrimination claim.

Plaintiff alleges that comments about her quiet nature were made with discriminatory intent because of her gender and her race. Def.’s Motion for Sum. Jud., ECF No. 56, Ex.3, 31:9-19. Plaintiff also states that in June of 2011, when Plaintiff filed her written complaint with Setter, Setter asked Plaintiff “what women in Ms. Salemi’s position do in Iran.” Am. Compl., ¶¶ 45-46.

The Tenth Circuit has held that “[u]nsubstantiated oral reprimands and unnecessary derogatory comments . . . are not included within the definition of adverse action absent evidence that they had some impact on the employee’s employment status.” Sanchez, 164 F.3d at 533 (finding that isolated comments about the plaintiff’s age did not rise to the level of a materially adverse employment action). Further, Plaintiff stated during depositions that being quiet in nature was not specific to either gender or race. See Def.’s Motion for Sum. Jud., ECF No. 56, Ex.3, 75:3-25, 76:1-9. Plaintiff has not demonstrated that she suffered any adverse employment action ...

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