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Hay v. Family Tree, Inc.

United States District Court, D. Colorado

May 16, 2019

BETSY A. HAY, Plaintiff,
FAMILY TREE, INC., Defendant.



         The matter is before the Court on Defendant Family Tree, Inc.'s Motion for Summary Judgment, in which Defendant requests that the Court enter summary judgment in its favor on Plaintiff Betsy A. Hay's sole remaining claim against it. (Doc. # 113.) For the reasons described below, the Court denies in part and grants in part Defendant's Motion for Summary Judgment.

         I. BACKGROUND

         United States Magistrate Judge Kristen L. Mix provided a thorough recitation of the factual and procedural background of this matter in her Recommendation on Defendant's Second Motion to Dismiss (Doc. # 59), which this Court in turn affirmed and adopted on March 20, 2018 (Doc. # 60). The Recommendation is incorporated herein by reference, and the facts will be repeated only to the extent necessary to address Defendant's Motion for Summary Judgment.

         Plaintiff has a Masters degree and a doctorate in social work and has worked in the field for more than twenty years. (Doc. # 13 at 3.) Defendant is a private, non-profit organization “providing multiple issue family assistance.” (Id. at 2.)

         Defendant employed Plaintiff from November 12, 2007, through November 14, 2014. (Doc. # 75 at 1.) Plaintiff was 61 years old at the time Defendant hired her and 68 years old when it laid her off. (Id.) During her seven years with Defendant, Plaintiff worked as a case manager in the Arapahoe County Kinship Family Stability Program. (Id.) In June 2014, Plaintiff was informed that Arapahoe County's contract with Defendant would expire in August 2014 and that the Arapahoe County Kinship Family Stability Program would thus end. (Doc. # 13 at 3.) Defendant laid Plaintiff off from permanent employment on August 30, 2014. (Id.)

         For two and half months after Plaintiff was laid off, Defendant employed Plaintiff on a temporary basis. (Id. at 4.) During her temporary employment, Plaintiff worked on Defendant's Supportive Services for Veterans' Families Program (“SSVF”) and on the Adams County Kinship TANF Stable Families Program. (Id.) On November 11, 2014, Plaintiff submitted a letter of resignation to Defendant. (Doc. # 113 at 11; Doc. # 125 at 7.) The following day, she accepted an offer of employment from another entity, non-party Maple Star Colorado, with a start date of November 19, 2014. (Id.)

         Plaintiff asserts that “in the last six months of her employment” with Defendant and subsequent to her separation from Defendant, she “sought transfers and applied for replacement jobs at [Defendants.]” (Doc. # 13 at 3.) Specifically, she alleges that she applied for but was not offered the following four jobs with Defendant (id. at 5-11):

         i. SSVF Program case manager position:

         Defendant began advertising for a case manager position in its SSVF Program on September 3, 2014. (Doc. # 113 at 4.) While Plaintiff was doing work on the SSVF Program as a temporary employee in September 2014, she “requested a transfer to the SSVF” Program case manager position. (Doc. # 13 at 5.) Plaintiff contends that on or about September 22, 2014, she submitted an application for the position. (Id. at 6.) She asserts that on October 31, 2014, Defendant informed her that it had hired someone else for the SSVF Program case manager position and that her temporary, part-time position with the program would end. (Id.) Plaintiff alleges that Defendant hired a “much younger” woman. (Id.)

         ii. SafeCare home visitor positions:

         Defendant began advertising for three SafeCare[1] home visitor positions on August 22, 2013. (Doc. # 113 at 6.) Plaintiff applied for the positions by email on August 27, 2013. (Id. at 7.) Three supervisors for Defendant interviewed Plaintiff for the position on September 11, 2014. (Id.) Two of those supervisors conducted a second-round interview with Plaintiff on September 17, 2014. (Id. at 8.) Plaintiff contends that “[a]ll three SafeCare [home visitor] positions were given to younger and less qualified applicants than [her].” (Doc. # 13 at 8.)

         iii. CFRT Program case manager position: Plaintiff contends that, after her application for the SafeCare home visitor positions was rejected, a supervisor for Defendant told her that “a case manager position with the [Community Family Resource Team (“CFRT”)] program . . . was coming up, ” that Plaintiff would be “a good fit in that job, ” that Plaintiff had “already interviewed” for the CFRT position, and that she (the supervisor) “would let [Plaintiff] know when it came open.” (Id.) Plaintiff asserts that she was never told that the CFRT position was posted for applications and that she “was not able to officially submit an application” for it. (Id. at 9.) According to Plaintiff, the “CFRT position was given to . . . a younger, less experienced employee who did not have to apply for the position.” (Id.)

         iv. Douglas County Kinship Program case manager position:

         Defendant internally posted a position for a case manager for the Douglas County Kinship Program on February 3, 2015, and externally posted it on February 5, 2015. (Doc. # 113 at 11.) It is undisputed that Defendant offered the position to non-party Michelle Johnson on February 6, 2015. (Doc. # 113 at 12; Doc. # 13 at 11.) Plaintiff applied via email for the position on February 8, 2015. (Id.); see also (Doc. # 125 at 59.) Plaintiff contends that Ms. Johnson was “younger and less qualified” than her and that Ms. Johnson “was preselected and did not have to apply for the job.” (Doc. # 13 at 11.)

         Plaintiff brought suit against Defendant on December 12, 2016 (Doc. # 1), asserting three causes of action: (1) “disparate treatment discrimination and hostile work environment based on age, ” in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623; (2) breach of contract or, alternatively, breach of implied contract; and (3) promissory estoppel (Doc. # 13 at 13-19). Plaintiff's second and third claims were dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) on March 20, 2018. (Doc. ## 59-60.) Plaintiff's sole remaining claim is that Defendant violated the ADEA because its “intentional discrimination by non-selection [for open positions] was motivated by age discrimination.” (Doc. # 13 at 13-14.)

         Defendant moved for summary judgment on November 20, 2018. (Doc. # 113.) It asserts that with respect to each of the four positions Plaintiff allegedly applied for and was rejected from, Plaintiff cannot prove a prima facie case of age discrimination. (Id. at 2.) Plaintiff argues otherwise in her Response, filed on ...

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