United States District Court, D. Colorado
KELSEY OLDERSHAW, BAMBI AUGUSTIN, DENISE LANDIN, ELINA NAVARRO, and JANE STANT, Plaintiffs,
DAVITA HEALTHCARE PARTNERS, INC., and TOTAL RENAL CARE, INC., Defendants.
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART MOTIONS FOR SUMMARY JUDGMENT
S. Krieger Chief United States District Judge
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).
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.
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
Summary Judgment Motions
Standard of review
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).
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.
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).
General legal standards
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
(10th Cir. 2012) (ADEA); Fassbender v. Correct
Care Solutions, LLC, 890 F.3d 875, 884 (10th
Cir. 2018) (Title VII); Kilcrease v. Domenico
Transportation Co., 828 F.3d 1214, 1220 (10th
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. Id.
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 (10th 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
(10th 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.
these standards in mind, the Court turns to each
Plaintiff's individual claims.
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
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
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.” 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.
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.
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.
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.
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).
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. 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
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.” 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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,
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
Sex discrimination claims
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
Age discrimination claims
adverse employment action
leaves her claims for age discrimination. As to those claims,
the Court first considers Ms. Landin's contentions that
she was constructively discharged to establish the existence
of an adverse employment action. A constructive discharge
occurs where, because of an employer's discriminatory
conduct, “the working conditions become so intolerable
that a reasonable person in the employee's position would
have felt compelled to resign.” Green v.
Brennan, 136 S.Ct. 1769, 1776-77 (2016). The Court's
evaluation of a constructive discharge claim
“disregard[s] both the employee's subjective view
of the workplace environment and the employer's
subjective intentions regarding the employee.”
Sotunde v. Safeway, Inc., 716 Fed.Appx. 758, 768
(10th Cir. 2017). It is ...