United States District Court, D. Colorado
ORDER ADOPTING FEBRUARY 24, 2017 RECOMMENDATION
OF MAGISTRATE JUDGE GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
William J. Martínez, United States District Judge
matter is before the Court on the February 24, 2017
Recommendation of United States Magistrate Judge Kristen L.
Mix (“Recommendation, ” ECF No. 121) that
Defendants' Motion for Summary Judgment (the
“Motion, ” ECF No. 73) be granted. The
Recommendation is incorporated herein by reference.
See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P.
72(b). Plaintiff filed an objection to the Recommendation.
(“Objection, ” ECF No. 124.) For the reasons set
forth below, Plaintiff's Objection is overruled, the
Magistrate Judge's Recommendation is adopted,
Defendants' Motion is granted, and judgment is entered in
favor of Defendants on all claims in this matter.
STANDARD OF REVIEW
magistrate judge issues a recommendation on a dispositive
matter, Federal Rule of Civil Procedure 72(b)(3) requires
that the district judge “determine de novo any
part of the magistrate judge's [recommendation] that has
been properly objected to.” An objection to a
recommendation is properly made if it is both timely and
specific. United States v. One Parcel of Real Property
Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th
Cir. 1996). An objection is sufficiently specific if it
“enables the district judge to focus attention on those
issues-factual and legal-that are at the heart of the
parties' dispute.” Id. In conducting its
review, “[t]he district court judge may accept, reject,
or modify the recommendation; receive further evidence; or
return the matter to the magistrate judge with
instructions.” Id. Here, Plaintiff filed a
timely objection to Judge Mix's Recommendation.
Therefore, this Court reviews the issues before it de
Judgment is appropriate only if there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Adamson v. Multi
Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145
(10th Cir. 2008). Whether there is a genuine dispute as to a
material fact depends upon whether the evidence presents a
sufficient disagreement to require submission to a jury or,
conversely, is so one-sided that one party must prevail as a
matter of law. Anderson v. Liberty Lobby, 477 U.S.
242, 248-49 (1986); Stone v. Autoliv ASP, Inc., 210
F.3d 1132, 1136 (10th Cir. 2000).
motion for summary judgment, the moving party bears the
burden of demonstrating that no genuine issue of material
fact exists. Adamson, 514 F.3d at 1145. Where the
moving party does not bear the ultimate burden of persuasion
at trial, it may satisfy this burden by demonstrating a lack
of evidence for an essential element of the nonmovant's
claim. Id. In contrast, a movant who bears the
burden at trial must submit evidence to establish the
essential elements of its claim or affirmative defense.
In re Ribozyme Pharms., Inc. Sec. Litig., 209
F.Supp.2d 1106, 1111 (D. Colo. 2002). In deciding whether the
moving party has carried its burden, the Court does not weigh
the evidence, and instead views it, and draws all reasonable
inferences from it, in the light most favorable to the
nonmoving party. Adamson, 514 F.3d at 1145.
Unsupported conclusory allegations, however, are not
sufficient to create a genuine dispute of material fact on
summary judgment. See Mackenzie v. City & Cnty. of
Denver, 414 F.3d 1266, 1273 (10th Cir. 2005). When a
moving party has carried its burden under Rule 56(c), more
than “some metaphysical doubt” as to the material
facts must be demonstrated by the nonmovant to survive
summary judgment. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986).
in considering Judge Mix's Recommendation, the Court is
mindful of Plaintiff's pro se status, and
accordingly reads his pleadings and filings liberally.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Trackwell v. United States Gov't, 472 F.3d 1242,
1243 (10th Cir. 2007). The Court, however, cannot act as
advocate for Plaintiff, who must still comply with the
fundamental requirements of the Federal Rules of Civil
Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991); see also Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1188 (10th Cir. 2003).
parties object to the recitation of facts set forth by Judge
Mix in the February 24, 2017 Recommendation. (ECF No. 121.)
Accordingly, the Court adopts and incorporates Section I of
the Recommendation as if set forth herein. Briefly, Plaintiff
began working for Defendant Sprint in June 2008 as a
technical support call center representative “whose job
duties included troubleshooting Sprint cellular devices and
cellular networks.” (ECF No. 56 ¶ 12.) In this
position, Plaintiff was required to comply with Defendant
Sprint's “Accountability - Take Ownership
Policy” which makes it a “critical offense,
” i.e., one that could lead to disciplinary
action or termination, to fail to “call a customer back
upon agreement during [a representative's] scheduled work
time or to reassign the callback if outside of [the
representative's] scheduled work time.” (ECF No.
Lindsey Mason became Plaintiff's supervisor in March
2013. (ECF No. 73-19 ¶ 1.) Supervisors issue corrective
action notices (“CANs”) to call center
representatives who violate the “Accountability - Take
Ownership Policy.” (ECF No. 73-2.) On June 5, 2013,
Plaintiff received a CAN from Mason because he forgot to
return a call to a customer. (ECF No. 56 ¶ 26.) On June
18, 2013, Plaintiff filed an internal complaint against Mason
alleging discrimination and harassment, and a few days later
he filed a Charge with the EEOC. (ECF Nos. 73-2, 17-2.)
Defendant Sprint investigated the internal complaint and
found no evidence of discrimination or harassment. (ECF No.
9, 2013, Mason recommended that Plaintiff's employment be
terminated based on Plaintiff's “continued
disregard for Sprint policy in regards to call
ownership” and callback procedure. (ECF No. 73-17.)
Plaintiff was informed of his termination on July 15, 2013.
(ECF Nos. 73-2, 73-3.) Based on this course of events,
Plaintiff filed the instant action asserting the following
claims: employment discrimination and retaliation based on
race, breach of contract against Sprint, and tortious
interference with contractual relations against Mason.
(“Amended Complaint, ” ECF No. 56.)
Mix recommended that Defendants Motion be granted “and
that judgment enter in favor of Defendants on all claims in
this matter.” (ECF No. 121 at 22.) Judge Mix made
several findings to reach that recommendation.
Judge Mix found that Plaintiff “failed to establish a
prima facie case of discrimination, ” noting that
Plaintiff “failed to identify evidence demonstrating a
genuine issue of material fact regarding an inference of
discrimination[.]” (Id. at 8, 15.) As to
Plaintiff's claim for retaliation, Judge Mix found that
he “failed to identify evidence demonstrating that