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Hopper v. Re/Max Properties, Inc.

United States District Court, D. Colorado

February 28, 2017

LAURA HOPPER, Plaintiff,


          RAYMOND P. MOORE United States District Judge.

         On 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).[1]

         Pending 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).

         I. Motion to Strike

         Before 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.

         Defendant, 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.

         Defendant 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.

         Plaintiff 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.

         Defendant 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 5.)

         This 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.[2] 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.

         Defendant 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.

         This 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.

         Accordingly, the Court GRANTS in part and DENIES in part defendant's motion to strike.

         II. Legal Standard for Summary Judgment

         Summary 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).

         In 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.

         III. Discussion[3]

         A. “Employer” Status

         The 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.)

         1. Pertinent Law

         Despite 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.

         “Under 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.

         With 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.

         The 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.

         2. Relevant Facts Here

         Defendant 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).)[4] Plaintiff, though, did not meet with a broker manager before being hired. (Id.)

         When 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.)[5] 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).)[6] Assistants had to comply with defendant's rules. (ECF No. 79-2 at 8:18-21.)

         The day 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.)[7] 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.)[8] 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 29:4-14.)

         Hopper 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).)

         From 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 ΒΆΒΆ 15-16.) Ryder agreed to provide plaintiff ...

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