Oldershaw v. Davita Healthcare Partners, Inc.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

          MARCIA S. KRIEGER CHIEF UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court pursuant to the Defendants' (collectively, “DaVita”) Motions for Summary Judgment against each Plaintiff (# 57, 58, 59, 60, 61), the Plaintiffs' respective responses (# 68, 67, 70, 66, 69), and DaVita's respective replies (# 76, 74, 77, 75, 73). Also pending are two motions (# 38, 50) by DaVita to amend its Answer, the Plaintiffs' responses (# 44, 54), and DaVita's replies (# 45, 55).

         FACTS

         The Court briefly summarizes the pertinent facts here and elaborates as necessary in its analysis. The Plaintiffs are five female former employees of DaVita. Although the Plaintiffs have joined their claims in this action, there is relatively little factual overlap in their allegations, as each Plaintiff had a different job title, different supervisor, was subject to different allegedly discriminatory acts, and suffered different injuries. The different Plaintiffs assert varying claims of age discrimination, sex discrimination, disability discrimination, and/or prohibited retaliation, arising under both Colorado and federal law.

         DaVita has moved for summary judgment on all claims by each Plaintiff. Separately, DaVita has moved to amend its Answer to add After-Acquired Evidence as an affirmative defense to bar to recovery by Ms. Oldershaw (# 38) and Ms. Landin (# 50). This defense is based on DaVita's discovery that both women had secretly recorded workplace conversations, allegedly in violation of DaVita policies.

         ANALYSIS

         A. Summary Judgment Motions

         1. Standard of review

         Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law determines which facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is "genuine" and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).

         If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.

         If the moving party does not have the burden of proof at trial, it must point to an absence of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, a trial is required. If the respondent fails to produce sufficient competent evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

         2. General legal standards

         The Plaintiffs' disparate treatment claims arise under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Colorado Anti-Discrimination Act (“CADA”), C.R.S. § 24-34-401 et seq. Claims under all of these statutes are analyzed similarly, applying the familiar McDonnell-Douglas burden-shifting framework (albeit with slight variations as noted herein). See Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 636 (10^th Cir. 2012) (ADEA); Fassbender v. Correct Care Solutions, LLC, 890 F.3d 875, 884 (10^th Cir. 2018) (Title VII); Kilcrease v. Domenico Transportation Co., 828 F.3d 1214, 1220 (10^th Cir. 2016) (ADA); Williams v. Department of Public Safety, 369 P.3d 760, 771 (Colo.App. 2015) (CADA). Under this paradigm, each Plaintiff bears the initial burden of establishing a prima facie case by showing: (i) that she belongs to the requisite protected class; (ii) that she had the minimum objective qualifications required for the job she held (or the employment benefit she sought); (iii) that she suffered an adverse employment action; and (iv) that the adverse action occurred in circumstances giving rise to an inference of discrimination. If the Plaintiff meets that initial burden, DaVita then bears the burden of articulating a legitimate, non-discriminatory reason for the adverse action, and the Plaintiff bears the ultimate burden of demonstrating that DaVita's proffered reason is a pretext for prohibited discrimination.^[1] Id.

         Certain Plaintiffs also assert that they subjected to impermissible retaliation for having invoked rights under the ADEA, ADA, Title VII, or CADA. Like disparate treatment claims, retaliation claims under each of these statutes are analyzed according to the same standards. Hiatt v. Colorado Seminary, 858 F.3d 1307, 1315-16 (10^th Cir. 2017) (Title VII); Nealey v. Water District No. 1, 324 Fed.Appx. 744, 748 (ADA and ADEA); Agassounon v. Jeppesen Sanderson, Inc., 688 Fed.Appx. 507, 509 (10^th Cir. 2017) (CADA). The Plaintiffs must first establish a prima facie case by showing that: (i) they engaged in an activity protected by the relevant statute; (ii) they suffered an adverse employment action; and (iii) there is a causal connection between the adverse action and the protected conduct. If they carry that burden, DaVita must articulate a legitimate, non-retaliatory reason for the adverse action, and the Plaintiffs must ultimately show that the proffered reason is a pretext for retaliation. Id.

         With these standards in mind, the Court turns to each Plaintiff's individual claims.^[2]

         3. Ms. Augustin

         Ms. Augustin was hired by DaVita as a Recruitment Manager in 2012, when she was approximately 56 years old. Beginning in 2015, Amy Denvir, Ms. Augustin's supervisor, began criticizing Ms. Augustin's performance, commenting that Ms. Augustin was not a “driver” and was not sufficiently “aggressive.”^[3]

         In late 2015, Ms. Denvir proposed elimination of Ms. Augustin's position and creation of another position titled “Senior Manager.” In discussions about the Senior Manager position, Ms. Augustin concluded that the position was effectively identical to the job she was already performing, an issue that she raised with Ms. Denvir. Ms. Denvir insisted that the tasks to be performed in the Senior Manager position differed from those performed by Ms. Augustin. In particular, the Senior Manager would be conducting phone recruiting. Ms. Denvir observed that other duties that Ms. Augustin was performing as Recruitment Manager, such as marketing, advertising, budgeting, and planning, would not be accounted for in the Senior Manager position, and that she would likely to continue performing those functions. Ms. Denvir suggested that Ms. Augustin write up a proposal for a position that encompassed these tasks and that Ms. Denvir would present it for consideration to her supervisors.

         A few days later, a formal job description for the Senior Manager position was posted. Ms. Augustin thought that “it was basically my current job description. . . . [I]t had been reworded slightly, but it was basically what I was doing, and there was no mention of phone work anywhere in the job description.” Ms. Augustin e-mailed Ms. Denvir about the job description, observing that “it looks like everything I discussed is going to be the responsibility of this new position.” Ms. Denvir responded that “All of the aspects that you're doing are in the job descriptions, that's part of the whole department so [ ] it's in the job description as either doing or insuring it gets done. Does that help?” Ms. Augustin considered applying for the Senior Manager position, but felt that Ms. Denvir had lied about her intentions for the position and that “tempered [Ms. Augustin's] interest in the position.” Ms. Augustin also had a discussion with Colleen Herbranson, her former supervisor, and expressed concerns that Ms. Denvir “did not want me in the [Senior Manager] position.” Ms. Augustin testified that Ms. Herbranson “basically agreed with me.”^[4] Thus, Ms. Augustin chose not to apply for the Senior Manager position. Instead, she continued working on a proposal for another position containing the tasks she wanted to perform, and eventually presented it to Ms. Denvir.

         Ms. Denvir ultimately selected Alyssa Roth, who was under the age of 40 and less-qualified than was Ms. Augustin for the Senior Manager position. Ms. Augustin presented her proposal for another position to Ms. Denvir, and Ms. Denvir presented the proposal to her supervisor, but the supervisor vetoed the request to create another new position. Ms. Augustin was laid off in May 2016.

         Based on these facts, Ms. Augustin asserts two claims: (i) age discrimination, in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and (ii) age discrimination in violation of the Colorado Anti-Discrimination Act (“CADA”), C.R.S. § 24-34-401 et seq.

         DaVita's summary judgment motion challenges Ms. Augustin's ability to establish the fourth element of the prima facie case - circumstances giving rise to an inference of discrimination - and contends that Ms. Augustin cannot show that DaVita's reason for not hiring her as Senior Manager - that she did not apply for the position - is pretextual.

         The Court quickly dispenses with the prima facie case: Ms. Augustin is protected by both the ADEA and CADA, insofar as she is over 40 years old. There is no dispute that she was qualified for her position as Recruitment Manager, or that she had the objective qualifications for the Senior Manager position. And there is no doubt that her termination (be it described as a layoff or replacement or otherwise) constitutes an adverse employment action. Finally, Ms. Augustin has shown that her termination occurred in circumstances giving rise to an inference of age discrimination, insofar as her ostensible replacement, Ms. Roth, was substantially younger than she was. O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313 (1996).

         DaVita has proffered a non-discriminatory explanation for why Ms. Augustin was not selected for the Senior Manager position - that she did not apply for it.^[5] The Court finds that Ms. Augustin has not come forward with evidence to suggest that this explanation is a pretext for age discrimination. Indeed, DaVita's explanation is indisputably true: Ms. Augustin admits that she did not apply for the Senior Manager position.

         Ms. Augustin seeks to evade the significance of her decision not to formally pursue the Senior Manager position by arguing that “Ms. Denvir went out of her way to ensure that Ms. Augustin would not apply, ” seemingly suggesting that it would have been futile for her to do so. She lists five facts that she contends support that conclusion. First, she notes that Ms. Denvir made comments about wanting someone “aggressive” for the position. Ms. Augustin's own testimony was that she understood this comment to reflect that Ms. Denvir wanted someone “more assertive with the staff, ” and Ms. Augustin stated that such a comment “didn't concern her.”^[6] Second, Ms. Augustin argues that Ms. Denvir lied about the Senior Manager's job responsibilities in her first meeting with Ms. Augustin. Although it appears that Ms. Denvir's initial description of the Senior Manager job as being more focused on phone recruiting turned out to be an incorrect statement of the job's actual duties, Ms. Augustin offers only her own hypothesis that Ms. Denvir misstated the job's responsibilities intentionally and purposefully, as compared to there being a simple miscommunication or misunderstanding on one or both women's parts. Even assuming that Ms. Denvir initially misrepresented the Senior Manager job, it is clear that Ms. Augustin was later able to review the formal job description and confirm with Ms. Denvir that the formal job description more or less encompassed all of her current duties as Recruitment Manager. Thus, Ms. Augustin was fully aware of what the Senior Manager position entailed when she chose not to apply for it. To the extent that Ms. Augustin decided not to apply for the job because she no longer trusted Ms. Denvir, that too appears to have been a choice made by Ms. Augustin, not a decision forced upon her because of her age.

         Third, Ms. Augustin argues that Ms. Denvir “refus[ed]to follow up with Ms. Augustin's questions” and “encourag[ed] Ms. Augustin to waste her time on an identical position proposal.” Once again, this seems to overstate the record. The only apparent instance of Ms. Augustin posing questions to Ms. Denvir about the position was the e-mail exchange between the women following the posting of the official Senior Manager job description. Ms. Augustin argues that Ms. Denvir's response to the e-mail was somehow “ambiguous, ” but the Court sees no ambiguity in Ms. Denvir confirming that “all the aspects of what you're doing” as Recruitment Manger “are in the job” of Senior Manager. As to Ms. Denvir encouraging Ms. Augustin to “waste her time” on a proposal for a separate position consisting of the tasks she wanted to perform, the Court is perplexed. By the time she submitted the proposal, Ms. Augustin had seen the Senior Manager job description, concluded that it encompassed all of her current duties, and had Ms. Denvir's confirmation of that suspicion. One can only assume, then, that Ms. Augustin nevertheless believed that the job she was proposing - presumably for herself to fill - was something different from the Senior Manager job. The Court cannot say that Ms. Denvir allowing Ms. Augustin to propose a different position for herself was somehow evidence of age discrimination by Ms. Denvir. Finally, Ms. Augustin takes issue with Ms. Denvir “making no meaningful effort to help her find a new job at DaVita and hiring a younger, unqualified employee into the role of Senior Manager.” But these events occurred after Ms. Augustin chose not to apply for the Senior Manager job, and thus can hardly be evidence of Ms. Denvir somehow discouraging Ms. Augustin from applying.

         The Court therefore finds that Ms. Augustin has failed to come forward with evidence that would demonstrate that DaVita's reason for not hiring her as Senior Manager - that she failed to apply for the position - is somehow false and a pretext for age discrimination. Ms. Augustin also makes an abbreviated argument that DaVita should have inferred her interest in the position, given that she was already performing the position's duties. It was clear that Ms. Augustin was aware of the Senior Manager opening and her ability to apply for it, and it was also clear that Ms. Augustin chose to forego such an application, apparently in furtherance of her hopes that DaVita would instead create the new position she was proposing. In such circumstances, she cannot show that DaVita's refusal to consider her for a Senior Manager position she chose not to apply for was a pretext for age discrimination.

         Accordingly, DaVita is entitled to summary judgment on Ms. Augustin's claims. Because Ms. Augustin's claims are factually distinct from those of the remaining Plaintiffs, the Court sees no just reason for delaying the entry of judgment in DaVita's favor on her claims pursuant to Fed.R.Civ.P. 54(b), and such judgment shall therefore issue contemporaneously with this Order.

         4. Ms. Landin

         Ms. Landin was hired by DaVita as an Executive Assistant in 2014, when she was approximately 49 years old. Her immediate supervisor was Marty McGuirk. Mr. McGuirk reported to Dan Viaches, and Mr. Viaches had ultimate supervisory responsibility for the entire team of Executive Assistants.

         Ms. Landin candidly acknowledges that “issues” arose among the Executive Assistants in late 2015. Those issues primarily involved Catherine Lischer and Leah Schust, two fellow Assistants that Ms. Landin characterizes as less experienced (and whom Ms. Landin initially trained). Ms. Landin states that Ms. Lischer and Ms. Schust would “overwhelm[ ] her with questions concerning Mr. McGuirk's schedule, ” even though the information they were seeking was available electronically. Ms. Landin brought these concerns to Mr. McGuirk, who was supportive of her and encouraged her to continue doing what she was doing. Ms. Lischer and Ms. Schust, however, complained about Ms. Landin directly to Mr. Viaches, who “blamed the Executive Assistants not getting along on Ms. Landin.” This led to a difference of opinion between Mr. McGuirk and Mr. Viaches about the quality of Ms. Landin's work and whether she deserved a pay raise. Because Mr. Viaches had final authority on such questions, Ms. Landin was not considered for a raise at that time.

         In March 2016, DaVita's legal team contacted Ms. Landin about allegations that another employee had made in a separate wage and hour lawsuit against DaVita. Ms. Landin told the legal team that she believed that the employee had a legitimate claim. Ms. Landin contends that, thereafter, Mr. Viaches “became more aggressive towards her and his criticisms of her ramped up.” (Notably, however, in her deposition, Ms. Landin acknowledged that she had no personal knowledge as to whether Mr. Viaches even knew about her phone call with DaVita's legal team.) Ms. Landin's summary judgment response gives a single example, referring to an instance in which Mr. Viaches sent her an e-mail directing her to work with Ms. Lischer to reschedule a meeting when Ms. Landin had already done so.^[7]

         At the time of her performance review in March 2016, Ms. Landin complained to Mr. McGuirk that “I felt that Dan Viaches was treating me unfairly and I didn't understand why.” (Ms. Landin's brief characterizes this statement as Ms. Landin telling Mr. McGuirk that “she believed she was being discriminated against by Mr. Viaches, ” but Ms. Landin's deposition testimony on the subject is limited to her expressing her confusion as to why Mr. Viaches would ask her to train the other Assistants, and then, “all of a sudden, I‘m the bad person and was being blamed for everything his [Assistants] weren't doing correctly.”) When Ms. Landin received her performance review, she was told that Mr. Viaches was not approving her for a raise, even though he had approved raises for the other Assistants. Ms. Landin states that Mr. McGuirk told her that Mr. Viaches was withholding any raise for her until the “issues” with the other Assistants were resolved. Shortly thereafter, Ms. Landin was given a document that showed the salaries being paid to each of the Executive Assistants. She learned that she was being paid less than Ms. Lischer and Ms. Schust, among others, despite having more experience than they did.

         In June 2016, Ms. Landin had a phone conversation with Mr. Viaches about her performance. At the conclusion of that call, Ms. Landin told Mr. Viaches that she believed that he was discriminating against her because of her age and sex. Mr. Viaches responded that “that's bull. That's not true, ” and the conversation ended. Ms. Landin also reported her belief that Mr. Viaches was discriminating against her to DaVita's “People Services” (apparently, its Human Resources department). Although Ms. Landin's brief states that she “did not know that her [complaint] had been investigated at all, ” she testified that she had a telephone conversation with a representative from People Services.

         On July 18, 2016, Ms. Landin tendered her resignation to DaVita. In her brief, she states that this was “because of Mr. Viaches' favoritism of his younger Executive Assistants, his constant criticisms of her, and his hostility after she spoke with DaVita's counsel” about the co-worker's claims. In her deposition, she acknowledged that she was not being threatened with termination and had not received any “corrective actions, ” but that she felt she had to leave “due to the hostile work environment that [Mr. Viaches] was creating for me.” Based on these facts, Ms. Landin asserts seven claims: (i) age discrimination in violation of the ADEA; (ii) age discrimination in violation of CADA; (iii) sex discrimination in violation of Title VII of the Civil Rights Act; (iv) sex discrimination in violation of CADA; (v) retaliation for engaging in protected activity, in violation of the ADEA; (vi) retaliation for engaging in protected activity, in violation of CADA; and (vii) retaliation for engaging in protected activity in violation of Title VII.

         DaVita seeks summary judgment on all of Ms. Landin's claims. As to her claims of age and sex discrimination, DaVita primarily argues that Ms. Landin cannot show that she suffered an adverse employment action; in response, Ms. Landin contends that her resignation was a constructive discharge, and that she was subjected to counseling and criticism for her job performance, and was given a performance review that was “negatively influenced by Mr. Viaches' feedback” and denied a raise therefor. She also contends that she was paid less than younger workers, demonstrating discrimination on the basis of her age, ^[8] and DaVita responds that she lacks evidence to show that she was paid less than younger Executive Assistants. As to her retaliation claims, DaVita argues that Ms. Landin cannot show that she suffered any adverse employment action and cannot show that any such actions were causally connected to her protected conduct.

         a. Sex discrimination claims

         The Court begins by summarily granting summary judgment to DaVita on Ms. Landin's sex discrimination claims. Even assuming that any or all of Ms. Landin's claimed adverse actions suffice for a prima facie case, Ms. Landin has not come forward with any evidence that suggests that any of the conduct directed against her was because of her sex. All of the Executive Assistants she alleges were treated more favorably than she was are female, and she has not identified any allegedly sex-based comments made by Mr. Viaches towards her or anyone else. The only evidence Ms. Landin can proffer on the issue of sex discrimination is that she is female and Mr. Viaches, the alleged decisionmaker, is male. This is insufficient to establish a prima facie case of sex discrimination.^[9]

         b. Age discrimination claims

         (i) adverse ...