United States District Court, D. Colorado
JOSEPH D. DURAN, JR., Plaintiff,
v.
CITY AND COUNTY OF DENVER, by and through its BOARD OF WATER COMMISSIONERS, Defendant.
ORDER
Scott
T. Varholak United States Magistrate Judge.
This
matter comes before the Court on Plaintiff's Motion for
Partial Summary Judgment [#30] and Defendant's Motion for
Summary Judgment [#31] (collectively, the
“Motions”). The Motions are before the Court on
the parties' consent to have a United States magistrate
judge conduct all proceedings in this action and to order the
entry of a final judgment. [##18, 20] This Court has
carefully considered the Motions and related briefing, the
entire case file, and the applicable case law, and has
determined that oral argument would not materially assist in
the disposition of the Motions. For the following reasons,
Plaintiff's Motion for Partial Summary Judgment [#30] is
DENIED, and Defendant's Motion for
Summary Judgment [#31] is GRANTED in part
and DENIED in part.
I.
BACKGROUND
This
case arises out of the decision of the City and County of
Denver, acting by and through its Board of Water
Commissioners (“Denver Water”), not to promote
Plaintiff Joseph Duran to the Customer Relations Manager
position. [See generally #1] The undisputed facts
are as follows.[1]
Plaintiff,
who is Mexican-American, has worked for Denver Water since
1985. [#38-1, WSOF2-3; see also #39-1, DSOF17-18] In
June 2014, Denver Water posted a job opening for the Sales
Administration Supervisor position in the Customer Relations
section of Denver Water. [#38-1, WSOF7] Denver Water
employee Vince Gaiter, who is African American, was selected
for the Sales Administration Supervisor position.
[Id. at WSOF8-9] After Mr. Gaiter was selected for
the position, Denver rebid the position, and Plaintiff
applied. [Id. at WSOF10-11] Plaintiff later realized
that Mr. Gaiter had been selected for the position before it
was posted for the second time. [Id. at WSOF13]
Plaintiff emailed Alice Montez, a human resources specialist,
and Lyndsay Schulz, the hiring manager for the position,
among others, complaining that the hiring process was unfair,
did not present an equal opportunity, and that Mr. Gaiter had
been preselected. [Id. at WSOF15-19]
In the
summer of 2016, Denver Water posted a vacancy announcement
for the position of Customer Relations Manager. [Id.
at WSOF22; #39-1, DSOF1, 25] The minimum qualifications for
the position were listed as follows: a bachelor's degree
from an accredited college or university in business or
public administration, or a related field; minimum seven
years of related work experience, including three years in a
supervisory role; and “[a]ny equivalent combination of
training, education, and experience that provides the
required skills, knowledge and abilities.” [#39-1,
DSOF2; #32-2 at 3] The job posting indicated that the
Customer Relations Manager would “plan, direct,
strategize and coordinate the operations of the Customer
Service Field section at Denver Water, ” including
taking on responsibility for improving performance,
productivity, and efficiency “to ease the process of
doing business with Denver Water.” [#32-2 at 1] The job
description listed several “Essential Duties and
Responsibilities, ” including, by way of example:
“formal supervisory responsibilities over the employees
with[in] the areas of the Customer Service Field section[, ]
i.e. Meter Shop, Meter Reading, Meter Inspection, Field
Service and Central Dispatch, ” plan meter reading
projects, build relationships with partners to build a better
reputation in the water industry, manage section budget, and
actively manage activities of supervisors and
staff.[2] [Id. at 1-3; #39-1, DSOF3-7]
Denver
Water received over 80 applications in response to the
Customer Relations Manager posting. [#38-1, WSOF31] Plaintiff
applied in the fall of 2016. [#39-1, DSOF16] Michael Aragon,
who had previously held the position[3] and who identifies as
Hispanic, was the hiring manager for the Customer Relations
Manager position. [Id. at DSOF8; #38-1, WSOF22-23,
25] The individual selected as the new Customer Relations
Manager would report directly to Mr. Aragon. [#38-1, WSOF26]
Mr. Aragon worked with Alice Montez in Human Resources, who
is Mexican-American and also identifies as Hispanic, on the
recruitment and selection process for the position.
[Id. at WSOF27-28] Mr. Aragon, Ms. Montez, and Mary
Faulkner, Director of Human Resources - Talent, reviewed the
applications and determined that 12 candidates met the
minimum requirements for the position. [Id. at
WSOF32-33] Of those 12 applicants, six were internal
applicants and included Plaintiff and John Plonsky, another
Denver Water employee. [Id. at WSOF33]
At the
time of his application, Plaintiff had more than 31 years of
work experience with Denver Water, including ten years as a
Water Distribution Manager. [#39-1, DSOF18-19] Plaintiff has
been promoted five times since 1985 in the Water Distribution
Administration, a section of Denver Water's Operations
& Maintenance Division. [#38-1, WSOF4] As a Water
Distribution Manager, Plaintiff directly supervises six
individuals, who in turn collectively supervise a total of 28
employees. [Id. at DSOF149] Employees in the Water
Distribution Administration perform various functions related
to the operation and maintenance of the water distribution
system, including responding to customer inquiries, leak
investigations, valve operations, water quality complaints,
and main breaks. [Id. at WSOF6] Plaintiff previously
worked as an Emergency Services Supervisor and a System
Quality Supervisor before he became a Water Distribution
Manager. [Id. at DSOF132] At the time he applied for the
Customer Relations Manager job, Plaintiff had taken dozens of
safety courses on plumbing, electricity, safety, and related
issues. [Id. at DSOF147]
Mr.
Plonsky is Caucasian. [Id. at WSOF35] The parties
dispute the extent of Mr. Plonsky's work experience, but
both cite to Mr. Plonsky's resume. [Id. at
WSOF34, 90; #39-1, DSOF22; see also #32-9] According to Mr.
Plonsky's resume, he had nearly seven years of experience
at Denver Water as a Finance Supervisor/Manager at the time
he applied for the Customer Relations Manager position.
[#38-1, WSOF34; #39-1, DSOF22] As a Finance
Supervisor/Manager, he supervised a total of four employees,
none of whom was a supervisor. [#38-1, DSOF150] Mr. Plonsky
had additional supervisory experience as an Accounting
Supervisor for the Douglas County Government between January
2005 and September 2009, supervising an accounts payable
team. [Id. at WSOF91] Mr. Plonsky also worked for Denver
Water as an Accountant II between October 2002 and January
2005, supervising three technicians. [Id. at WSOF92; #32-9]
The parties apparently disagree as to Mr. Plonsky's total
years of supervisory experience because they dispute the
extent of his supervisory responsibilities as an Accountant
II, but nevertheless it appears undisputed that Mr. Plonsky
had at least 11.5 years of supervisory experience, from his
time as a Finance Supervisor/Manager with Denver Water and as
an Accounting Supervisor for the Douglas County Government.
[See Id. at WSOF90] Prior to applying for the
Customer Relations Manager position, the majority of Mr.
Plonsky's training at Denver Water had been in finance
and general management courses, with one training class on
“Elect. Safety Gen[eral] Awareness.” [Id. at
DSOF148; see also #36-9 at 4-5]
Ms.
Montez and Mr. Aragon reviewed answers to written questions
submitted by the qualified candidates to determine which
candidates to interview. [#38-1, WSOF36] Plaintiff and Mr.
Plonsky were both selected for interviews. [Id. at
WSOF37] Ms. Montez and seven other Denver Water employees
conducted the first round of interviews on October 31, 2016.
[Id. at WSOF38, 41] The interviewers were provided
with a form to rate candidates in eight categories, including
knowledge and technical skills, education and training, work
experience, communication and interpersonal skills, and
leadership. [Id. at WSOF41-43] All of the
interviewers recommended that Plaintiff and Mr. Plonsky
advance to the final interview. [Id. at WSOF44] No.
other candidates advanced to the second round of interviews.
[Id. at WSOF48]
The
second interview was conducted on November 18, 2016 by Mr.
Aragon, his manager and Chief Public Affairs Officer Sally
Covington, Michelle Garfield, and Lyndsay Schulz.
[Id. at WSOF46, 49] Each of the four interviewers
rated Mr. Plonsky higher than Plaintiff in most categories,
using the same rating form as in the first round of
interviews. [Id. at WSOF49-50] In his comments
regarding Plaintiff, Mr. Aragon wrote, “Didn't
answer all the questions. Canned responses[-]made sure to use
certain phrases, but they didn't always fit. Went into
left field on some Qs.” [Id. at WSOF55] With
respect to Mr. Plonsky, Mr. Aragon wrote, “Good
interview & responses, ” and noted that Mr. Plonsky
was “[g]enuine, ” “[t]houghtful, ”
and “prepared.” [Id. at WSOF54]
Mr.
Aragon testified that it was difficult to choose between
Plaintiff and Mr. Plonsky. [Id. at WSOF65] In his
testimony, Mr. Aragon indicated that he did not know whether
Mr. Plonsky had ever touched any of the tools or equipment
used in “the installation, maintenance, testing,
reading, and repair of water meters, ” whether Mr.
Plonsky had ever seen a water meter, or whether Mr. Plonsky
had any field work, metering, meter-reading system
technology, plumbing, basic backflow, or hydraulics
experience. [Id. at DSOF131] Mr. Aragon testified
that Mr. Plonsky had knowledge of standard practices used in
meter reading, but was not familiar with those practices for
installation, maintenance, testing, or repair of water
meters. [#31-6 at 69:17-70:14] In contrast, Mr. Aragon noted
that Plaintiff's extensive field work experience exceeded
that of Mr. Plonsky, but explained that not all this
experience was directly transferable to the customer service
realm, and both candidates would need to learn the customer
service component of the position. [#38-1 at WSOF66-67, 71]
While
Plaintiff had more of a technical background, and was closer
to learning the customer service field side of the Customer
Relations Manager position, Mr. Aragon believed that Mr.
Plonsky was “much closer” to a stronger
“leadership and communication style.”
[Id. at WSOF77] Because Mr. Aragon felt that Mr.
Plonsky's “leadership and communication skills were
far superior to Plaintiff's, ” Mr. Aragon believed
that Mr. Plonsky could learn the technical aspects of the job
and would be successful in the role. [Id. at WSOF81]
Mr. Aragon determined that it would be easier for him to
teach the technical skills to Mr. Plonsky, whereas it would
be more difficult for Mr. Aragon to teach, and for Plaintiff
to gain, communication and other soft skills. [Id.
at WSOF82, 84] Mr. Plonsky was ultimately selected for the
Customer Relations Manager position. [#39-1, DSOF21]
Plaintiff
initiated this action in December 2017 asserting four claims
for relief: national origin discrimination, in violation of
Title VII and the Fourteenth Amendment Equal Protection
Clause, and retaliation for opposing a violation of Title
VII, in violation of Title VII and the Fourteenth Amendment
Due Process Clause. [#1 at 5-8] The parties filed cross
motions for summary judgment on November 13, 2018. [##30, 31]
Plaintiff's Motion for Partial Summary Judgment seeks
summary judgment on the issue of liability on Plaintiff's
national origin discrimination claims. [##30, 32] Plaintiff
contends that Defendant cannot articulate a legitimate
non-discriminatory reason for its decision not to promote
Plaintiff, because Mr. Plonsky was demonstrably unqualified.
[See generally id.] In Defendant's Motion for
Summary Judgment, Defendant argues that it is entitled to
summary judgment on all of Plaintiff's claims. [#31]
According to Defendant, it had legitimate, non-discriminatory
reasons for not promoting Plaintiff, Plaintiff has failed to
establish that Defendant's reasons for not promoting him
were pretextual, and Plaintiff cannot demonstrate municipal
liability. [Id. at 7-16] Defendant further argues
that Plaintiff cannot prevail on his retaliation claims
because he did not engage in protected activity, and
regardless, there was no causal connection between the
alleged protected activity and the decision to not promote
Plaintiff. [Id. at 16-18]
II.
STANDARD OF REVIEW
Summary
judgment is appropriate only if “the movant shows that
there is no genuine dispute as to any material fact and the
movant 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); Henderson v. Inter-Chem Coal
Co., 41 F.3d 567, 569 (10th Cir. 1994). Where, as here,
the Court is presented with cross-motions for summary
judgment, the Court “must view each motion separately,
in the light most favorable to the non-moving party, and draw
all reasonable inferences in that party's favor.”
United States v. Supreme Court of New Mexico, 839
F.3d 888, 907 (10th Cir. 2016) (internal quotations omitted).
When
the moving party bears the burden of persuasion at trial,
“the moving party must establish, as a matter of law,
all essential elements of the [claim on which summary
judgment is sought] before the nonmoving party can be
obligated to bring forward any specific facts alleged to
rebut the movant's case.” Pelt v. Utah,
539 F.3d 1271, 1280 (10th Cir. 2008). In other words, the
moving party “must support its motion with credible
evidence showing that, if uncontroverted, the moving party
would be entitled to a directed verdict.” Rodell v.
Objective Interface Sys., Inc., No. 14-CV-01667-MSK-MJW,
2015 WL 5728770, at *3 (D. Colo. Sept. 30, 2015) (citing
Celotex Corp., 477 U.S. at 331). “The burden
then shifts to the non-moving party to produce evidence
demonstrating the existence of a genuine factual issue for
trial.” Id.
When
the moving party does not bear the burden of persuasion at
trial, the movant may satisfy its initial burden of making a
prima facie demonstration of the absence of a genuine issue
of material fact “simply by pointing out to the court a
lack of evidence . . . on an essential element of the
nonmovant's claim.” Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670-71 (10th Cir.1998). If the
movant carries this initial burden, the burden then shifts to
the nonmovant “to go beyond the pleadings and set forth
specific facts that would be admissible in evidence in the
event of trial.” Id. at 671 (quotation
omitted).
“[A]
‘judge's function' at summary judgment is not
‘to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.'” Tolan v. Cotton, 134 S.Ct. 1861,
1866 (2014) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986)). 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. See Anderson, 477 U.S. at
248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132,
1136 (10th Cir. 2000); Carey v. U.S. Postal Serv.,
812 F.2d 621, 623 (10th Cir. 1987). A fact is
“material” if it pertains to an element of a
claim or defense; a factual dispute is “genuine”
if the evidence is so contradictory that if the matter went
to trial, a reasonable party could return a verdict for
either party. Anderson, 477 U.S. at 248.
“Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,
there is no ‘genuine issue for trial.'”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (citing First Nat'l. Bank of
Ariz. v. Cities Serv. Co., 391 U.S. 253, 289
(1968)).
III.
Analysis
Plaintiff
asserts four claims for relief: national origin
discrimination, in violation of Title VII and the Fourteenth
Amendment Equal Protection Clause, and retaliation for
opposing a violation of Title VII, in violation of Title VII
and the Fourteenth Amendment Due Process Clause. [#1 at 5-8]
The Court first addresses the instant Motions as they pertain
to the national origin discrimination claims (Claims One and
Three) and then addresses Defendant's Motion for Summary
Judgment on Plaintiff's retaliation claims (Claims Two
and Four).
A.
National Original Discrimination (Claims One and
Three)
Plaintiff
can prove a failure-to-promote claim based on his national
origin “either (1) by direct evidence that a workplace
policy, practice, or decision relies expressly on a protected
characteristic, or (2) by using the burden-shifting framework
set forth in [McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973)].” Young v. United Parcel Serv.,
Inc., 135 S.Ct. 1338, 1345 (2015). Here, in the absence
of an explicit decision that Defendant refused to promote
Plaintiff because of his national origin, Plaintiff must rely
upon the McDonnell Douglas test. Under that
framework, the burden begins with Plaintiff to show that he:
(1) is a member of a protected class; (2) applied for and was
...