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Smith v. Board of Governors of Colorado State University System

United States District Court, D. Colorado

March 9, 2017

RODNEY SMITH, Plaintiff,


          Robert E. Blackburn United States District Judge

         This matter is before me on Defendant's Motion for Summary Judgment [#36][1] filed April 4, 2016. The plaintiff filed a response [#39], and the defendant filed a reply [#40]. I grant the motion.


         I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question) & § 1367 (supplemental jurisdiction).


         The purpose of a summary judgment motion is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary judgment is proper when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.[2] Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is “genuine” if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is “material” if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Farthing, 39 F.3d at 1134.

         A party who does not have the burden of proof at trial must show the absence of a genuine issue of fact. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). Once the motion has been properly supported, the burden shifts to the nonmovant to show by tendering depositions, affidavits, and other competent evidence that summary judgment is not proper. Concrete Works, 36 F.3d at 1518. All evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120 S.Ct. 53 (1999) (abrogated on other grounds, Martinez v. Potter, 347 F.3d 1208, 1210 - 1211 (10th Cir. 2003); Eisenhour v. Weber Cnty., 744 F.3d 1220, 1227 (10th Cir. 2014)). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Rice v. United States, 166 F.3d 1088, 1092 (10th Cir.), cert. denied, 120 S.Ct. 334 (1999); Nutting v. RAM Southwest, Inc., 106 F.Supp.2d 1121, 1123 (D. Colo. 2000).


         The plaintiff, Rodney Smith, an African American male, began his employment with the Colorado State University Police Department (CSU PD) in January 1991. In 2002, Mr. Smith received a promotion to Police Officer II (Corporal). Mr. Smith alleges he began to suffer from a hostile work environment beginning in 2003. He alleges the harassment was motivated by his race and culminated in an effort to have him terminated from his employment.

         In 2003, CSU PD hired Dexter Yarbrough, an African American male, to serve as its Chief of Police. Throughout his tenure, Chief Yarbough was overheard using a handful of different racial slurs. In the mid-2000s, at a meeting not attended by Mr. Smith, Chief Yarbough referred to plaintiff as “the ‘N' word.” Response [#39], Exhibit 1 [#39-1], CM/ECF p 48. In 2006, during an hiring interview for Sergeant Jon Falbo, a non-African American applicant, Chief Yarbough once again used the “N-word.” Response [#39], Exhibit 2 [#39-2], CM/ECF pp 1-3. Finally, Chief Yarbough often referred to Fort Collins as “vanilla valley, ” due to its lack of racial minorities. Response [#39], Exhibit 4 [#39-4], CM/ECF p 1.

         Mr. Smith believes he became a target of Chief Yarbough, beginning in 2008, because information Mr. Smith provided to his supervisor was used to initiate an internal investigation into three CSU PD officers. Response [#39], Exhibit 1 [#39-1], CM/ECF pp 42-44. At the end of the investigation, Chief Yarbrough promoted all three officers involved despite evidence one had done something improper and that officer asked the other two officers to lie for him. Response [#39], Exhibit 5 [#39-5], CM/ECF pp 2-5. One of the three officers, Sergeant Aaron Turner, who held the rank of officer at the time, refused to lie for the other officer. Id.

         In relation to the internal investigation, Chief Yarbrough wrote a memo to the CSU interim president complaining that the human resources investigator contracted to review the internal CSU PD investigation discriminated against Chief Yarbrough and Captain Frank Johnson based on their African American race. Response [#39], Exhibit 3 [#39-3], CM/ECF pp 9-11. In 2009, Chief Yarbrough was investigated for incidents of misconduct unrelated to the previous internal investigation or racial discrimination. Response [#39], Exhibit 6 [#39-6], CM/ECF pp 11-12. In March 2010, Chief Yarbrough was terminated by CSU for misconduct.

         Mr. Smith describes other instances where he believes his race may have played a contributing factor. After being promoted in 2002, Mr. Smith claims he was frequently passed over for promotion or eliminated early on in the promotion process. Response [#39], Exhibit 1 [#39-1], CM/ECF pp 42-44. Sometime in either 2011 or 2012, Mr. Smith received a negative performance report which was left visible for other officers to read while Mr. Smith was on vacation. Id. p 52. Additionally, Mr. Smith felt harassed when he received a disciplinary warning, referred to as a write-up, for not responding to assist on an arson and failing to save his investigative reports after making corrections. Id. pp 46-47, 52. Moreover, during a training event sometime between 2010 and 2013 Mr. Smith was called a “monkey” by a fellow officer. Id. p 35. Finally, in 2013, Captain Johnson, the only other African American officer at CSU PD, warned Mr. Smith not to “get pushed out” of CSU PD and to leave on his own terms. Id. p 45.

         Matters came to a head in June 2013, when Mr. Smith attempted to qualify on his duty weapon. As a police officer, Mr. Smith was required to qualify with his duty weapon on an annual basis as part of his job duties. To qualify, all CSU PD officers had to pass the Peace Officer Standards and Training (POST) Certification course. The POST handgun qualification course consisted of nine different timed phases. The shooter was required to hit the target from various designated distances and perform specific movements while firing. All twenty-five rounds had to hit ...

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