Duran v. City and County of Denver

          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 ...