United States District Court, D. Colorado
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
E. Blackburn United States District Judge
matter is before me on Defendant's Motion for Summary
Judgment [#36] filed April 4, 2016. The plaintiff filed a
response [#39], and the defendant filed a reply [#40]. I
grant the motion.
jurisdiction over this case under 28 U.S.C. § 1331
(federal question) & § 1367 (supplemental
STANDARD OF REVIEW
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
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.
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).
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.
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.
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
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.
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.
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 ...