United States District Court, D. Colorado
Michael E. Hegarty, United States Magistrate Judge.
University of Colorado Hospital Authority
(“UCHA”) seeks summary judgment on all of
Plaintiff Irene Apo-Owusu's claims which arise out of
allegedly discriminatory treatment of Ms. Apo-Owusu while she
was employed as a Certified Nurse Aide (“CNA”) at
UCHA. The Court grants UCHA summary judgment on Ms.
Apo-Owusu's third claim for retaliatory discharge, as
well as her claim based on the February 2016 suspension,
because those claims were not administratively exhausted. The
Court also grants summary judgment on Ms. Apo-Owusu's
supervisor hostile workplace claim. The Court denies summary
judgment on Ms. Apo-Owusu's racial and ethnic
discriminatory termination claim and coworker hostile
Apo-Owusu filed the operative Amended Complaint on September
2, 2016. Am. Compl., ECF No. 8. Ms. Apo-Owusu brings three
claims for relief: (1) racial discrimination in violation of
Title VII of the Civil Rights Act of 1964 (“Title
VII”), (2) ethnic discrimination in violation of Title
VII, and (3) retaliation for making discrimination complaints
in violation of Title VII. Id. ¶¶ 57-71.
On October 14, 2016, UCHA filed an Answer to the Amended
Complaint. Answer, ECF No. 14.
the parties completed discovery, UCHA filed this motion
seeking summary judgment on all claims. Def.'s Mot. for
Summ. J., ECF No. 29. UCHA argues summary judgment is
warranted on Ms. Apo-Owusu's retaliation claim, any claim
based on the February 2016 suspension, and incidents of
harassment which occurred before October 15, 2015, because
she failed to exhaust her administrative remedies for those
claims. Id. at 11-12. UCHA then asserts that summary
judgment is proper on Ms. Apo-Owusu's Title VII
discrimination claim, because she cannot make a prima facie
case of discrimination and because she cannot offer evidence
that UCHA's proffered nondiscriminatory reasons for her
termination were pretext. Id. at 12-13. Finally,
UCHA argues summary judgment is warranted on Ms.
Apo-Owusu's coworker and supervisor hostile workplace
claims. Id. at 17-20. Ms. Apo-Owusu responded to
UCHA's motion on July 27, 2017. Pl.'s Resp. to
Def.'s Mot. for Summ. J., ECF No. 32. UCHA replied on
August 10, 2017. Def.'s Reply, ECF No. 33.
Findings of Fact
Court notes the following undisputed material facts, viewed
in the light most favorable to Ms. Apo-Owusu, who is the
non-moving party in this matter.
Apo-Owusu was born in Ghana and immigrated to the United
States in 2000. Pl.'s Resp. 9; Def.'s Reply 3.
Apo-Owusu began working for UCHA in 2008. From February 8,
2009, until her termination, Ms. Apo-Owusu was a CNA in the
Anschutz Outpatient Pavilion. Pl.'s Resp.
Def.'s Reply 3.
Under UCHA's written policy prohibiting discrimination on
the basis of, inter alia, race or national origin, if an
employee witnesses or is subjected to prohibited
discrimination, the employee must report that discrimination
to a supervisor, Human Resources, or a discrimination
compliance hotline. Def.'s Mot. ¶ 6; Pl.'s Resp.
2; ECF No. 29-12 at 1.
4. If a
supervisor receives a report of prohibited discrimination,
the UCHA policy requires the supervisor to report that
conduct to Human Resources. ECF No. 29-12 at 1.
Apo-Owusu's direct supervisor was Nurse Manager Christine
Woodman. Def.'s Mot. ¶ 8; Pl.'s Resp. 10;
Def.'s Reply 3.
Woodman had the authority to recommend terminating an
employee, but that decision had to be approved by UCHA Chief
Human Resources Officer Dallis Howard-Crow. D e f . ' s
Mot. ¶ 9; Decl. of Dallis Howard-Crow
(“Howard-Crow decl.”) ¶ 3, ECF No. 29-6.
Matthew Cangeleri was a Charge Nurse at UCHA in March 2015.
Def.'s Mot. ¶ 23; Pl.'s Resp. 4. Cathee Eriza
and Anne Kilgore were Registered Nurses at UCHA.
Occasionally, Ms. Eriza would perform the duties of a Charge
Nurse. Def.'s Mot. ¶ 12.
Charge Nurses have some supervisory capacity over other
employees but lack authority to hire, fire, discipline, or
promote. Def.'s Mot. ¶ 11; Pl.'s Resp. 10;
Def.'s Reply 3.
2013, Ms. Apo-Owusu heard Ms. Eriza ask, “Where is our
slave?” Def.'s Mot. ¶ 22; Pl.'s Resp. 4.
March 2015, Ms. Apo-Owusu was emptying linens when she heard
Mr. Cangeleri say, “Where is that nigger at?”
Def.'s Mot. ¶ 23; Pl.'s Resp. 4.
Apo-Owusu asked Mr. Cangeleri if he was speaking to her. In
response, Mr. Cangeleri gave Ms. Apo-Owusu a dirty stare and
walked away. Pl.'s Resp. 10; Def.'s Reply 3.
Shortly thereafter, Ms. Apo-Owusu heard Ms. Eriza ask,
“Where is the nigger at?” Ms. Apo-Owusu
confronted Ms. Eriza about her use of the word, and Ms. Eriza
did not use the word again. Def.'s Mot. ¶ 24;
Pl.'s Resp. 4.
Sometime before October 2015, Ms. Apo-Owusu heard Ms. Kilgore
ask, “Where is our slave?” Def.'s Mot. ¶
29; Pl.'s Resp. 5.
October 2015, Ms. Apo-Owusu heard Mr. Cangeleri say,
“Where is that slave? I cannot wait to get rid of
her.” Def.'s Mot. ¶ 30; Pl.'s Resp. 4.
addition to the instances discussed above, Ms. Apo-Owusu
heard Mr. Cangeleri use the word “nigger” at
least two times in 2015 and eight times in 2016. Def.'s
Mot. ¶¶ 25-26; Pl.'s Resp. 4-5.
Apo-Owusu claims she reported these racial slurs to Ms.
Woodman. Pl.'s Resp. 10; Dep. of Irene Apo-Owusu, Apr.
5-6, 2017 (“Apo-Owusu dep.”), 139:11-40:22,
254:3-58:13, ECF No. 29-1.
UCHA disputes that Ms. Apo-Owusu reported these comments to
Ms. Woodman. Ms. Woodman states Ms. Apo-Owusu only complained
“that she believed her coworkers were talking about her
behind her back.” Def.'s Mot. ¶ 27; Decl. of
Christine Woodman (“Woodman decl.”) ¶ 10,
ECF No. 29-5 (“Ms. Apo-Owusu complained several times
that she believed her coworkers were talking about her behind
her back. She never complained that her coworkers made racist
comments about her or any other employee or that she was
treated differently because of her race or national
Regardless of the nature of the reports Ms. Apo-Owusu made to
Ms. Woodman, the parties agree Ms. Woodman did not report any
use of racial slurs to her superiors. Dep. of Michael
Kalisher (“Kalisher dep.”), May 23, 2017,
37:7-:17, ECF No. 32-3.
January 14, 2016, Ms. Woodman placed Ms. Apo-Owusu on a
Performance Improvement Plan (“PIP”). Ms. Woodman
designed the PIP to address specific areas of Ms.
Apo-Owusu's employment in which Ms. Woodman wanted her to
improve. Def.'s Mot. ¶¶ 40-41; Pl.'s Resp.
January 31, 2016, Ms. Apo-Owusu's CNA license
lapsed. The next day, Ms. Woodman suspended Ms.
Apo-Owusu without pay until she had a valid license.
Def's Mot. ¶¶ 45-46; Pl.'s Resp. 7.
Apo-Owusu appealed the suspension, and UCHA denied the appeal
on March 18, 2016. Def.'s Mot. ¶ 53; Pl.'s Resp.
8; ECF No. 29-13 at 37.
During the week of March 21, 2016, UCHA found Ms.
Apo-Owusu's performance had improved sufficiently to
remove her from the PIP. However, UCHA reinstituted the PIP
later that same week after her performance subsequently
deteriorated. Def's Mot. ¶¶ 57-58; Pl.'s
Resp. 8; ECF No. 29-13 at 23.
April 1, 2016, Ms. Woodman recommended UCHA terminate Ms.
Apo-Owusu's employment. Def.'s Mot. ¶ 62;
Pl.'s Resp. 8.
April 8, 2016, Mr. Howard-Crow reviewed and approved Ms.
Woodman's recommendation. Def.'s Mot. ¶ 63;
Pl.'s Resp. 9.
UCHA terminated Ms. Apo-Owusu's employment on April 14,
2016. Def.'s ...