United States District Court, D. Colorado
OPINION AND ORDER
RAYMOND P. MOORE United States District Judge.
February 11, 2015, plaintiff Laura Hopper
(“plaintiff”) filed an Amended Complaint against
defendant Re/Max Properties, Inc. (“defendant”),
alleging claims of gender discrimination and retaliation in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. (“Title
VII”). (ECF No. 19).
before the Court is defendant's motion for summary
judgment (“the motion for summary judgment”) (ECF
No. 79) and statement of undisputed material facts (ECF No.
79-1). Plaintiff has filed a response in opposition to the
motion for summary judgment (ECF No. 86), a response in
opposition to defendant's statement of undisputed
material facts (ECF No. 86-1), and, inter alia,
affidavits from herself (ECF No. 86-2) and Theodore Bachara
(“Bachara”) (ECF No. 86-5). Defendant filed a
reply (ECF No. 93) and a reply statement of undisputed
material facts (“the RSUMF”) (ECF No. 93-1).
Defendant has also filed a motion to strike the two
affidavits mentioned above (“the motion to
strike”) (ECF No. 94), to which plaintiff has responded
(ECF No. 97) and defendant has filed a reply (ECF No. 98).
Motion to Strike
turning to the motion for summary judgment, the Court will
first address defendant's argument that the affidavits of
plaintiff (“plaintiff's affidavit”) and
Theodore Bachara (“Bachara's affidavit”)
should be stricken in part. The Court will address each
argument in turn.
first, argues that paragraphs 6 and 7 of plaintiff's
affidavit should be stricken because they contain hearsay.
(ECF No. 94 at 3.) The Court disagrees. Although, the
paragraphs certainly contain statements from individuals
other than plaintiff, in response to the motion to strike,
plaintiff asserts that those statements are only being
offered for the fact that they were made. (See ECF
No. 97 at 2-3.) The Court takes plaintiff at her word, and
will consider those statements, where relevant, only for the
fact that they were made.
argues that paragraphs 10 and 11 of plaintiff's affidavit
should be stricken because they contain either conclusory
statements or make conclusions of law. (ECF No. 94 at 3.) The
Court agrees with defendant except in one limited situation.
In paragraph 10, plaintiff asserts that “[w]omen were
under video surveillance when they entered and left the
building.” (ECF No. 86-2 at ¶ 10.) To the extent
this statement is meant to suggest that women, and
only women, were under video surveillance, there is
simply no evidence to support the same. Based upon the
Court's review of the parties' factual offerings,
when viewed in plaintiff's favor, it appears that video
surveillance did occur, but any such surveillance was of all
individuals entering and leaving the building, rather than
just women. Thus, the Court will strike any mention of women
being under surveillance, but will still accept the
proposition that individuals were under video surveillance
when they entered and left the building.
also asserts in paragraph 10 that she was “aware”
that a male employee came into work in violation of a dress
code. (Id.) Although the word “aware” is
vague, the Court will accept the proposition that plaintiff
personally saw this alleged event, and thus, will not strike
that statement. As for defendant's other arguments with
respect to these paragraphs, the Court agrees that the
remainder of paragraphs 10 and 11 are replete with conclusory
statements or legal conclusions that are based upon
plaintiff's speculative belief rather than her own
personal knowledge. Therefore, the remainder of those
paragraphs will not be considered.
next argues that paragraph 12 contains statements that are
contrary to her deposition testimony, and thus, should be
considered as attempting to create a “sham” issue
of fact. (ECF No. 94 at 4-6.) Specifically, defendant objects
to plaintiff's statement that she believed various events
occurred because of her gender, when, at her deposition, she
testified that she did not know why those events occurred.
(Id. at 4.) In response, plaintiff argues that her
affidavit does not contradict her deposition testimony
because the questions posed during the deposition asked her
to speculate as to the motivation of certain individuals,
rather than state her own view of the facts. (ECF No. 97 at
dispute involves construction of certain questions asked to
plaintiff during her deposition, and, in so constructing
those questions, the Court agrees with plaintiff in large
part. The pertinent deposition testimony (attached to the
motion to strike) shows that plaintiff was asked a series of
questions, which were preceded by lengthy statements from
opposing counsel. At the end of those statements, plaintiff
was asked questions such as the following: “Why do you
think Amy Lassen did all of those things to
you?” (See ECF No. 94-2 at 192:14-15)
(emphasis added). Other than the name of the individual, the
questions are almost identical. (See id. at 192:4-6,
20:21, 193:7-8.) These questions are asking plaintiff why she
thought other people acted the way they did. As
such, the Court agrees with plaintiff that any answer from
her would have required her to speculate as to the
individuals' reasons for acting, assuming that those
people did not actually tell her why they acted. The answer,
“I don't know, ” is thus perfectly reasonable
given the specific question asked. (See id. at
192:7, 16, 22, 193:9.) As such, the assertions in
plaintiff's affidavit, about her belief as to
whether certain statements were gender related, are not
contrary to her deposition testimony. To the extent that
defendant believes that plaintiff is now claiming that other
people were motivated by her gender (see ECF No. 98
at 3), that is simply not how the Court has construed
plaintiff's affidavit. Plaintiff's affidavit simply
states that she believes certain statements were
made due to her gender. Whether or not there are any facts to
support such a belief, or to show the potential motivation of
the speaker, are entirely different issues.
next argues that paragraph 14 contains speculative
conclusions. (ECF No. 94 at 4.) The Court agrees. Paragraph
14 essentially states that another person “could not
have had a good faith belief” about something that
person was told. (See ECF No. 86-2 at ¶ 14.) In
her response, plaintiff makes no attempt to explain how she
could have personal knowledge about the good faith beliefs of
another person. (See ECF No. 97 at 6.) Even if the
Court accepted as true that plaintiff talked with that person
about the process for filing a workers' compensation
claim, that does not support any statement concerning the
person's good faith beliefs. However, to the extent
plaintiff's assertion, that she discussed the process for
filing a workers' compensation claim, is meant to be
standalone, the Court will consider it as such, given that it
appears to be made on personal knowledge.
leaves defendant's objection to Bachara's affidavit.
Defendant argues that paragraph 15 of that affidavit should
not be considered because it contains uncorroborated
conclusions of fact. (ECF No. 94 at 5.) In response,
plaintiff asserts that paragraph 15 only concerns
Bachara's personal knowledge of a purported
“three-strike rule that gave Re/Max the right to fire
assistants.” (ECF No. 97 at 6.) Based upon
plaintiff's response, it appears that plaintiff wishes to
use paragraph 15 for the proposition that defendant had a
right to fire assistants due to a “three-strike
rule.” To the extent that this proposition is based
upon Bachara's “personal knowledge of the
three-strike rule” (id.), it is really
Bachara's interpretation of the three-strike
rule, especially given that plaintiff concedes that
Bachara's interpretation is not based upon any real-world
firings of assistants (see id.). In other words,
Bachara believes that the three-strike rule allows defendant
to fire assistants. In that light, Bachara's
interpretation is unnecessary, given that a jury can
interpret the three-strike just as easily as Bachara appears
to have done. Therefore, the Court will not consider
paragraph 15 of Bachara's affidavit.
the Court GRANTS in part and DENIES in part defendant's
motion to strike.
Legal Standard for Summary Judgment
judgment is appropriate “when 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(a).
Initially, the movant bears the “responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323, 106 S.Ct. 2548 (1986). If this burden is met, then the
non-moving party must set forth specific facts showing that
there is a genuine dispute for trial. Id. at 324. A
fact is material if it has the potential to affect the
outcome of a dispute under applicable law. Ulissey v.
Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995). An issue
is genuine if a rational trier of fact could find for the
non-moving party. Adams v. Am. Guarantee & Liab. Ins.
Co., 233 F.3d 1242, 1246 (10th Cir. 2000).
performing this analysis, the factual record and any
reasonable inferences therefrom are construed in the light
most favorable to the non-moving party. Id. However,
a mere “scintilla of evidence” is insufficient to
avoid summary judgment. Turner v. Public Service Co. of
Colorado, 563 F.3d 1136, 1142 (10th Cir. 2009). Instead,
a non-movant “must proffer facts such that a reasonable
jury could find in her favor.” Id.
initial dispute between the parties is whether a cause of
action under Title VII can be brought by plaintiff against
defendant under the circumstances of this case. More
specifically, the parties dispute whether defendant is an
“employer” for purposes of Title VII. (ECF No. 79
at 3-7; ECF No. 86 at 3-7.)
their dispute, the parties agree that the law pertinent to
this inquiry can be derived from the Tenth Circuit Court of
Appeals' decision in Knitter v. Corvias Military
Living, LLC, 758 F.3d 1214 (10th Cir. 2014).
(See ECF No. 86 at 3; ECF No. 93 at 2.) In
Knitter, the Tenth Circuit was faced with whether a
company (Picerne Military Housing, LLC
(“Picerne”)) was the employer of the plaintiff
Lisa Knitter (“Knitter”) when Knitter worked for
Lewis General Contracting, Inc. (“LGC”).
Id. at 1217-18. The Tenth Circuit began its analysis
by explaining the relevant test when an employee of one
entity seeks to hold another entity liable as an employer.
That test is known as the “joint employer test.”
Id. at 1226.
the joint employer test, two entities are considered joint
employers if they share or co-determine those matters
governing the essential terms and conditions of
employment.” Id. (quotation omitted).
“Most important to control over the terms and
conditions of an employment relationship is the right to
terminate it under certain circumstances.” Id.
(quotation and ellipsis omitted). Additional factors
considered include: the ability to promulgate work rules; set
conditions of employment such as compensation, benefits, and
hours; day-to-day supervision of employees, including
employee discipline; and control of employee records, such as
payroll and taxes. Id. In applying this test to the
facts of the case, the Tenth Circuit concluded that no
reasonable jury could find that Knitter was an employee of
Picerne because the facts showed that Picerne did not have
authority to terminate Knitter's employment, did not pay
Knitter directly, and did not have authority to supervise and
discipline Knitter “beyond the confines of a
vendor-client relationship.” Id. at 1228.
respect to payment, the Tenth Circuit explained that,
although Picerne paid LGC a fee for Knitter's work, and
LGC then paid a percentage of that fee to Knitter, Picerne
had no control over how much of the fee was paid directly to
Knitter. Id. at 1220, 1229. In addition,
Knitter's paychecks came from LGC, and LGC maintained
Knitter's personnel records including her W-2 forms.
Id. at 1229. With respect to supervision, the Tenth
Circuit explained that, although “[s]ome degree of
supervision and even discipline is to be expected when a
vendor's employee comes on another business's work
site, ” the limited supervision and discipline of
Knitter weighed against finding Picerne as her joint
employer. Id. at 1230. The Tenth Circuit noted that
Picerne's supervision was “largely focused”
upon workplace safety, including a dress code and safety
harness requirements, which the Circuit explained were
“natural” given that Knitter worked on
Picerne's premises. The Tenth Circuit further explained
that, although Picerne provided instruction on how to perform
certain tasks and notified Knitter if her work did not meet
its standards, this did not extend to matters such as
training or formal performance evaluations. Id. In
addition, the Tenth Circuit explained that, although Picerne
may have threatened to discipline Knitter and may have
collected a fee for not wearing a safety harness, this did
not mean that Picerne had the actual authority to do
discipline Knitter or that it disciplined her as to other
matters. Id. at 1231.
Tenth Circuit then concluded that, taking all of the factors
together, the most important-authority to terminate-weighed
heavily against Knitter, as did Picerne not paying her.
Id. Moreover, even if Picerne had the authority to
supervise elements of Knitter's work and enforce safety
rules, this “limited control” was insufficient
for a reasonable jury to find that Picerne was Knitter's
joint employer. Id.
Relevant Facts Here
is a real estate brokerage company. (ECF No. 93-1 at ¶
1.) Jeff Ryder (“Ryder”) is an independent
contractor affiliated with defendant as the Jeff Ryder Team.
(Id. at ¶ 2.) In November 2011, Ryder
interviewed plaintiff at a Whole Foods grocery store in
response to a Craigslist ad he placed seeking an assistant.
(Id. at ¶ 4.) None of defendant's employees
were present at Ryder's interview of plaintiff, and she
did not interview with anyone from defendant. (Id.
at ¶ 5.) Ryder hired plaintiff at the conclusion of the
interview. (Id. at ¶ 6.) Defendant's policy
stated that all unlicensed assistants would meet with a
broker manager before hiring. (Id. at ¶
1(AF).) Plaintiff, though, did not meet with a
broker manager before being hired. (Id.)
assistants “check in” defendant reviews its rules
of conduct with them. (Id. at ¶ 2(AF).)
“Checking in” means, when an assistant is hired,
meeting with a broker manager, and then an office
administrator. (ECF No. 86-7 at 22:16-21.) The purpose of
the check in process was to review defendant's rules of
conduct for assistants. (Id. at 23:9-11, 24:16-24.)
Plaintiff was presented with a code of conduct in July or
August 2012. (ECF No. 86-6 at 12:8-13:18.) Ryder told
plaintiff that she did not need to sign a code of conduct or
dress code issued in 2012. (Id. at ¶¶ 29,
31.) After checking in, an assistant is added to the company
roster, and the company provides them with an email account
and a key to the building, which allows for after-hours
entry. (ECF No. 93-1 at ¶ 3(AF).) Assistants had to
comply with defendant's rules. (ECF No. 79-2 at 8:18-21.)
after the interview, Ryder's assistant provided plaintiff
with training. (Id. at ¶ 7.) Plaintiff was
trained on some of defendant's systems. (Id. at
¶ 5(AF).) Plaintiff had to know how to operate
defendant's management system, and she had to turn in
files and commission checks to defendant.
(Id.) Defendant provided plaintiff an office,
but she could not recall who determined where she worked.
(ECF No. 86-6 at 78:15-16, 83:4-5.) Defendant provided office
supplies for use in a common area. (ECF No. 93-1 at ¶
13(AF).) Plaintiff's business card identified the names
of defendant and the Jeff Ryder Team. (ECF No. 86-11 at
managed a team of four to five individuals. (ECF No. 86-6 at
53:20-22.) Plaintiff's job duties included coordinating
with buyers and sellers, scheduling with lenders, scheduling
inspections, managing contracts for buying and selling, doing
marketing for the Jeff Ryder Team, buying supplies, answering
telephones, meeting with clients of the Jeff Ryder Team,
making sure that the filing system was complete, submitting
commission checks to defendant, making sure contracts were
complete at closing, posting ads for properties, and making
sure that deadlines were met. (ECF No. 93-1 at ¶ 9.) All
of the above work tasks were done solely for the Jeff Ryder
Team, and were assigned by members of the Jeff Ryder Team.
(ECF No. 86-6 at 70:21-23, 78:17-20.) Plaintiff could not
recall if she reported work that she did to Tony Clement,
defendant's broker manager. (Id. at 74:19-21;
ECF No. 93-1 at ¶ 12.) Defendant kept a file on
plaintiff. (Id. at ¶ 14(AF).)
November 2011 through September 2013, plaintiff did not
directly negotiate her salary with defendant, and Ryder's
company-Ryder Realty Peak Home Solutions, Inc.-was the only
company that provided plaintiff a paycheck and W-2 Form in
connection with her work for the Jeff Ryder Team.
(Id. at ¶¶ 13, 15-16.) Defendant did not
provide plaintiff with a paycheck or a W-2 Form.
(Id. at ¶¶ 15-16.) Ryder agreed to provide