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Robinson v. Regional Transportation District

United States District Court, D. Colorado

June 13, 2018

LENWOOD ROBINSON, individually, Plaintiff,
REGIONAL TRANSPORTATION DISTRICT, a political subdivision of the State of Colorado, Defendant.


          William J. Martínez United States District Judge

         Plaintiff Lenwood Robinson (“Robinson”) brings this action against his former employer Defendant Regional Transportation District (“RTD”) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), the Colorado AntiDiscrimination Act, Colo. Rev. Stat. §§ 24-34-401 et seq. (“CADA”), and 42 U.S.C. § 1981.[1] (ECF No. 5.) Robinson alleges that RTD discriminated against him on the basis of race and retaliated against him for engaging in protected activities.

         Currently pending before the Court is RTD's Motion for Summary Judgment (the “Motion”) on Robinson's claims. (ECF No. 78.) For the reasons set forth below, the Motion is granted in part and denied in part. Moving forward, Robinson will have a sole claim for under Title VII and CADA for retaliatory termination.

         I. BACKGROUND

         A. Robinson's Employment at RTD [2]

         Robinson, an African-American male, started as a Service Desk Analyst in the RTD Information Technology Division on September 12, 2013. Robinson had previously worked for RTD as a bus operator. During the relevant time period, there were three Service Desk Analysts, Robinson, Moumita Das, and Asaundra Rhymer. (ECF No. 78-3 at 8, 12.) The Service Desk Analyst position required providing support to end-users for PC hardware, operating systems, software applications, and communication devices.

         1. Conflict with Ms. Das and Initial Discipline

         Robinson had disagreements with Das. Robinson testified that Das felt the need to regularly monitor and change his work, even though he was familiar with RTD systems and hired before Das. (ECF No. 78-1 at 14-15.) He also testified that Das introduced errors to his work and, in turn, created additional work for the service desk team. (Id. at 18-19.)

         On September 5, 2014, Robinson informed the IT Service Delivery Manager Todd Peterson[3] about his issues with Ms. Das. (ECF No. 115-2 at 2; ECF No. 78-3 at 13.) In an e-mail, Robinson explained a particular issue and noted his ongoing concerns about Das's interference with his work. (ECF No. 115-2 at 2.) Robinson also talked to Peterson about Das's apparent interference and auditing. (ECF No. 78-1 at 14-15.) Peterson and Robinson apparently met to discuss the issues, but there is no documentation to suggest that Peterson took any action on Robinson's complaint or that Das was disciplined at that time. (ECF No. 115-1 at 2, ¶¶ 12-13; ECF No. 115-2; ECF No. 78-1 at 100.) Robinson did not raise the issue with anyone in the human resources department. (ECF No. 78-1 at 15.) RTD acknowledges that Robinson raised his concerns about Das to management in September 2014. (ECF No. 124 at 4, ¶ 27.)

         Neither party affirmatively cites any other record or allegation of any Robinson's complaint to a manager or supervisor about Das between September 2014 and June 2015. However, from the documents submitted in support or opposition to this Motion, it is clear that Peterson was aware of an ongoing conflict between Robinson and Das. Specifically, Robinson testified that on May 8, 2015, there had been a “loud discussion” and “a blowup” at the service desk after Das had “audited my work once again.” (ECF No. 78-1 at 15.) In response, Peterson proposed meeting to discuss. (Id.; ECF No. 78-6.) Robinson stated that he would raise the issue with a senior manager and, according to Robinson, Peterson discouraged him from doing so. (ECF No. 78-1 at 15.) Robinson accuses Peterson of favoring Das because of their friendship. (Id.) It is unclear from the record how or whether this conflict stemming from the May 8 incident was resolved.

         On June 5, 2015, Robinson e-mailed Aprajit Desai-another RTD employee and Das's spouse-about Das's interference with Robinson's work. In the e-mail, Robinson explained that an “ongoing conflict on the Service Desk” between Das and Robinson was “adversely affecting our professional relationships with each other and our co-workers.” (ECF No. 78-5 at 2.) He explained that he did not want to involve senior managers “in such a trivial matter but I need to be able to do my job without her interfering.” (Id.) Robinson also added “[a]s her husband I am asking you to please ask her to stop with the auditing and correcting of my work.” (Id.) Robinson also called Desai and left a voicemail.

         That same day, Desai informed the human resources department about Robinson's e-mail and phone call. Peterson summoned Robinson to his office and tried to discuss the email. Robinson got upset during the meeting and left Peterson's office.

         On June 10, 2015, Peterson prepared and sent a memorandum (the “June 10 Memo”) to Robinson, Robinson's personnel file, and human resources department detailing Peterson's concerns with Robinson's performance. (ECF No. 78-6 at 2.) The June 10 Memo identified two primary issues with Robinson's performance: (1) “lack of respect and professionalism given to team members, ” and (2) “lack of respect and professionalism given to management team.” (Id.) Under the first issue, Peterson further identified two sub-issues: “voicing concerns in a tone and at a level that can be easily overheard by others, ” and “voicing concerns to the wrong people, including outside our team.” Peterson cited as an example Robinson's e-mail and phone contact with Desai. The second issue concerned Robinson “walking out in the middle of conversations and meetings with Management.” Robinson apparently had, on two occasions, refused to discuss personnel issues with Peterson. The first time was after the May 8 “blowup;” the second after Robinson was summoned to Peterson's office on June 5 to discuss the e-mail and call to Desai. The June 10 Memo also explained that failure to correct performance issues could result in further disciplinary action including termination of employment. (Id. at 3.)

         Also on June 10, 2018, RTD issued Das a “counseling memo” for auditing and correcting the work of a coworker. (ECF No. 78-2 at 10.) Robinson was not informed because of the confidential nature of employee discipline. (Id. at 10-11.)

         2. Job Application

         On June 8, 2015-around the time that Robinson e-mailed Desai and Peterson issued the June 10 Memo-Robinson submitted an internal job application for a Computer Support Analyst (“CSA”) position. The CSA position involved planning, installing, configuring, and programming proprietary micro-processing work stations and coordinating installation, maintenance, and repair of workstation hardware. (ECF No. 78-8 at 2-3.) The job required a bachelor's degree in computer science, mathematics, management information systems, or similar field; one year of experience in installation and use of computers and/or office automation systems and kiosk-based computer systems; two years of experience with data communications, micro-computer functions/characteristics, and hardware/software architecture; two years experience with testing procedures and safe practices; and proficiency in software packages, operating systems, and data processing documentation techniques. It also required the ability “to communicate effectively, orally and in writing . . . [and] use sound judgment.” (Id. at 3.) Alternatively, an applicant could have “an equivalent combination of education, experience, knowledge, skills, and abilities.”

         RTD received Robinson's application on June 9. Bill Baker was the supervisor for the CSA position and the person responsible for hiring. Roger Vesley, a human resources analyst, was involved in reviewing applications and the interview process. On June 30, 2015, Robinson's application was terminated because, according to RTD, he was not qualified based on his prior experience. (ECF No. 78-13 at 2.) Robinson contends that he was indeed qualified for the position. (ECF No. 115 at 9, ¶ 66; ECF No. 78-7 at 15-16.)

         Two candidates were selected for the CSA position: Brian Cook, a white male with many years of relevant experience in desktop support, and Yolanda Bell, a mixed-race (Asian and Caucasian) female who had previously interned for Baker. (ECF No. 78-2 at 36, 38; ECF No. 79-1 (resume of Brian Cook); ECF No. 79-2 (resume of Yolanda Bell)).

         The parties disagree about Robinson's qualifications, Bell's qualifications, and the relative qualifications of the two. (Compare ECF No. 78 at 7, ¶¶ 29-31 with ECF No. 115 at 9, ¶ 67.)[4] Complicating this dispute is RTD's lack of response to Robinson's “statement of additional material facts that are not in dispute” that Robinson did, and Bell did not, have the education or experience required for the position. (ECF No. 115 at 9, ¶¶ 66-67.) The Court is thus left to parse through the disagreement on relative qualifications.

         The following facts are a summary of Bell's qualifications. Bell did not have a degree in one of the required fields, but was expected to earn a bachelor of science degree in Information Technology from Colorado Technical University in August 2015, around the time that the CSA position would begin. (ECF No. 79-2 at 2.) Bell's resume states that she completed certificate courses in “Networking Technology/Cisco Networking” and “Computer Information Technology” at Fayetteville Technical Community College. (Id.) She was not an RTD employee at the time of her application, but had previously interned for RTD. (Id.) Between 2005 and 2012, Bell served as a psychological operations specialist for the U.S. Army, and later as an instructor in the U.S. Army Reserve at Fort Bragg, NC. (Id.) As a psychological operations specialist, Bell had “collaborated in the development and implementation of initial networking equipment and infrastructure.” (Id.; ECF No. 78-2 at 37.) At the Rule 30(b)(6) deposition, Heather McKillop[5] testified on behalf of RTD that Baker told McKillop that Bell's work in the Army involved in setting up networking equipment. (Id.)

         Robinson had the following qualifications. Robinson earned two bachelors of science degrees from Metropolitan State College, one in Aviation Management/Information Systems in 1993 and the other in Network Security/Web Development in 2004. (ECF No. 78-7 at 16.) Robinson also had several certifications in information technology, including a Windows 7 Desktop Support Technician certificate from New Horizons Learning Centers (2011), a certificate in Information Technology Infrastructure Library (“ITIL”) (2014), and a certificate of “A” from CompTIA (2015). (Id.) At the time of his CSA application, Robinson had worked as a Service Desk Analyst for two years providing support to RTD employees. (Id. at 14.)

         After RTD notified Robinson that his application had been terminated, Robinson met with McKillop in July 2015. At that meeting, Robinson raised his concern about not being selected for the CSA position, which would have been a promotion from his current position. (ECF Nos. 78-13 at 2; ECF No. 115 at 23.) On July 20, 2015, McKillop sent Robinson a memorandum stating that she had looked into whether Robinson was not promoted based on “a recent incident that had occurred” (presumably, the events leading up to and including the June 10 Memo). McKillop explained that Robinson was not selected because of his lack of relevant or recent experience in desktop support. Specifically, McKillop stated that Robinson's last desktop support experience was in 2003; Robinson's desktop support experience from 2003 was not relevant to current issues because of the pace of change in the industry; Robinson's experience as a Service Desk Analyst was not relevant desktop support because it was not “hands on” experience; and numerous other applicants had more current or relevant experience providing desktop support. (ECF No. 78-13 at 2.) Robinson disagrees with the veracity of McKillop's statements because his certifications were from the last four years. (ECF No. 115 at 5, ¶ 35.) McKillop added that the “incident” (presumably, the events leading up to and including the June 10 Memo) had been handled discreetly and that she had “no reason to believe that Mr. Baker, the hiring manager, was aware of the incident.” (ECF No. 78-13 at 2.)

         3. Performance Review, Performance Improvement Plan, and Termination

         Robinson thereafter continued to work as a Service Desk Analyst on the IT service desk. In September 2015, the IT Division was reorganized and Baker became Robinson's supervisor.

         Also in September 2015, RTD gave Robinson his annual performance review, with Peterson providing the majority of the feedback. Robinson received an overall rating of 2.9 out of 5. He received his lowest proficiency ratings (“2-Needs Improvement” out of a possible 5 points) in analysis and communication. For analysis, Peterson suggested that Robinson need to improve his resolution of tickets and troubleshooting. (ECF No. 78-14 at 2.) For communication, Robinson's proficiency rating was partially based on his call and e-mail to Das's spouse, though Peterson noted that he had observed “significant improvement in this area, particularly with respect to [Robinson's] interaction with his peers.” (Id. at 3.) Other than those areas, Robinson earned a “3-Achieved Goal” or “4-Exceeds Expectations” in each area of evaluation. (Id. at 3-6.) Robinson characterized the performance review as “very unfair and vindictive.” (Id. at 2.)

         On January 28, 2016, Baker and Brett Feddersen (Manager of Shared Technical Services) gave Robinson a Performance Improvement Plan (“PIP”) which raised “serious areas of concern, gaps in [Robinson's] work performance.” (ECF No. 78-15 at 2.) The purpose of the PIP was to inform Robinson of performance issues and give him the opportunity to “demonstrate improvement and commitment.” (Id.) Robinson contests the veracity of the PIP, but acknowledges that he received it on January 28. (ECF No. 115 at 5, ¶¶ 37-38.)

         The PIP identified two areas in which Robinson had failed to meet expectations: professional conduct and technical skills. (ECF No. 78-15 at 4.) The PIP identified four instances of “unprofessional behavior, ” three of which occurred in November 2015 and arose out of difficulty resolving an issue with an RTD director's e-mail and one of which stemmed from Robinson missing a meeting in January 2016. (Id. at 5.) On the technical side, the PIP explained issues with Robinson's performance and cited examples of each issue:

• Failure to contact technicians on cellular phone (rather than desk phone) regarding a high priority issue;
• Failure to include information in service desk tickets, such as computer name, troubleshooting steps attempted, or elevation to another support group;
• Failure to correctly diagnose priority level of issue;
• Lack of troubleshooting on particular issues, including failure to follow documented procedures regarding network printers before escalating issues and alerting an evening caller that the Service Desk would be available the next day; and
• Failing to respond to a critical incident within thirty minutes while on call.

(Id. at 7-9.)

         In addition to identifying problem areas, the PIP set forth next steps and warned Robinson that failure to correct performance issues could result in additional disciplinary action, including termination. (Id. at 9.) The PIP required that Robinson develop an action plan to address “critical areas” and schedule a meeting with Baker by February 19, 2016 to review the proposed action plan (also, confusingly, called a Performance Improvement Plan). The final action plan was due by February 26, 2016. In addition, Robinson was to schedule regular meetings with Baker to provide updates on his “progress toward resolving the identified performance issues.” The PIP also required Robinson to attend a “Know Thyself” course from February 25-26, 2016, and instructed Robinson to register for the course “as soon as possible.” Finally, the PIP placed Robinson on two days of paid administrative leave to reflect on the contents of the PIP and how Robinson would approach the assignments therein. Robinson refused to sign the PIP.

         After receiving the PIP, Robinson was out of the office for two days on paid administrative leave and took several additional days of personal time.

         Robinson prepared two written responses to the PIP. On February 5, 2016, Robinson sent his initial response to David Genova, attaching commentary on each area of concern raised in the PIP. (ECF No. 78-16 at 12.) Robinson asked Genova to read the attachments and determine whether they comported with RTD procedure. (Id.) Baker advised Robinson to revise his initial responses and, on February 15, 2016, Robinson sent his PIP response to Baker and Feddersen, again addressing each area of concern raised in the PIP and how Robinson proposed handling similar situations in the future. (Id. at 2-11; ECF No. 78-1 at 29.) These responses differed from those sent to Genova.

         On February 22, 2016, Robinson attempted to register for the Know Thyself course for the following week. (ECF No. 78-18.) It was already full and Robinson was unable to register for the February 25-26 session of the course. (ECF No. 78-1 at 32.)

         On February 23, 2016, Baker issued Robinson a written warning. (ECF No. 78-17.) In that warning, Baker explained that Robinson had failed to meet the first two deadlines in the PIP, thereby undermining Baker's trust in Robinson. (Id. at 2.) Baker also expressed his view that Robinson did not understand the purpose or intent of the PIP, and that Robinson lacked commitment to improving his actions and behavior. (Id.) Baker included additional concerns about Robinson's behavior. (Id. at 3.) Baker set forth seven expectations for Robinson in bullet points that included scheduling a meeting to review a proposed plan for improvement by February 26, enrolling in the first available Know Thyself course by February 29, removing “Bus Driver” from Robinson's e-mail signature, not wearing a bus driver uniform on Fridays, and fully complying with the PIP. (Id. at 2-3.) In closing, Baker advised Robinson that he would take additional disciplinary action if Robinson failed to adhere to the expectations. (Id. at 3-4.)

         Robinson registered for the Know Thyself course on March 1, 2016, and forwarded the notice to Baker that same day. (ECF No. 78-19.) It is unclear from the record whether Robinson complied with the other expectations set forth by Baker in the written warning.

         Two additional work incidents occurred at the end of February. On February 24, 2016, Robinson and another employee had a “confrontation.” (ECF No. 78-20 at 2.) RTD states that Robinson failed to immediately enter a service ticket and yelled at his co-worker. (ECF No. 78 at 12, ¶ 49; ECF No. 78-20 at 2.) Robinson claims that he immediately entered the service ticket and testified at his deposition that his co-worker yelled at him. (ECF No. 115 at 6, ¶ 49; ECF No. 78-1 at 35.) On February 26, Robinson remotely accessed a computer different than the one he was supposed to be working on. (ECF No. 78 at 12, ¶ 49; ECF No. 78-20 at 2-3; ECF No. 78-1 at 36.) When asked about this by Baker and another supervisor, Robinson stated that he did not do any work on the computer. (ECF No. 78-1 at 37.)

         On March 1, 2016, Baker recommended that RTD terminate Robinson's employment. (ECF No. 78-20.) Baker cited the two additional incidents at the end of February as evidence that Robinson's professional conduct continued to ...

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