United States District Court, D. Colorado
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
ORDER
SCOTT
T. VARHOLAK MAGISTRATE JUDGE
This
matter came before the Court for trial on May 6-9, 2019. The
parties have consented to proceed before this Court for all
proceedings, including the entry of final judgment, pursuant
to 28 U.S.C. § 636(c) and D.C.COLO.LCivR 72.2. [##15,
16] At the conclusion of the trial, the Court took the matter
under advisement. Having fully reviewed the evidence
presented, applicable law and arguments of counsel, the Court
now enters its Findings of Fact, Conclusions of Law and
Order.
I.
PROCEDURAL BACKGROUND
Plaintiff
initiated the instant action on October 4, 2017. [#1]
Plaintiff's Amended Complaint asserts four causes of
action related to Plaintiff's employment and ultimate
termination from Defendant Unleaded Software, Inc.
(“Unleaded”). [#30] Claims One and Three allege
discrimination by Unleaded on the basis of sex and pregnancy,
in violation of Title VII (Claim One) and Colorado Revised
Statute § 24-34-402 (Claim Three). [Id. at 8-9,
10-11] Claim Two alleges retaliation by Unleaded in violation
of Title VII. [Id. at 9-10] Claim Four alleges
aiding and abetting discrimination by Defendant Nancy Clark,
in violation of Colorado Revised Statute §
24-34-402.[1] [Id. at 11-12] Plaintiff's
Amended Complaint seeks back and front pay, lost employment
benefits, compensatory and punitive damages, attorneys'
fees and costs, and pre-judgment and post-judgment interest,
among other relief. [Id. at 12-13]
On
April 4, 2019, the parties filed a Stipulation to Withdraw
Jury Demand and Try Matter to Court. [#46] A bench trial
commenced on May 6, 2019, and concluded on May 9. [##54,
56-57, 59] At the conclusion of trial, the Court took the
matter under advisement. [#59]
II.
FINDINGS OF FACT
Unleaded
is a website design company created by Jarod Clark in the
mid-1990s. By 2010, Unleaded had approximately thirty
employees. At all times relevant to the lawsuit, three
individuals held an ownership interest in Unleaded-Jarod
Clark, who held the largest interest; Nancy Clark, who is
Jarod's mother[2]; and Andrew Klein.
On
August 4, 2010, Unleaded hired Plaintiff to work as a project
manager and agreed to pay her a $40, 000 salary. Plaintiff
has an Associate's Degree from Platt College. As a
condition of her employment, Plaintiff signed a non-compete
agreement that limited her ability to solicit Unleaded
customers for a period of eighteen months following her
termination. [Ex. 11]
Plaintiff
was initially very successful at Unleaded. After a few
months, she received a $10, 000 raise. She was then promoted
to Project Manager Director, and her base salary was raised
to $57, 000 per year. She also began receiving commissions.
By 2014, as a result of her base salary and commissions, her
annual gross income from Unleaded was approximately $107,
000. By all accounts, from the time she was hired through
July 2014, Plaintiff was a valued Unleaded employee. Both
Jarod and Nancy praised Plaintiff's work.
At the
end of 2013, rather than requesting a raise, Plaintiff asked
to change her work schedule. Specifically, she asked to work
a four-day, ten-hour per day, workweek. She would not work on
Wednesdays, though she indicated that she would be available
on that day. Nancy agreed to the change.[3]
Despite
the change in schedule, Plaintiff was still putting in long
hours and felt stressed and overwhelmed. As a result, at some
point between late May and early July 2014, Plaintiff
approached Unleaded's ownership about working part-time.
She met with Nancy who was open to the idea and asked
Plaintiff to put together a proposal.
On July
21, 2014, Nancy sent Plaintiff an email with an attached
proposal for the part-time position. [Ex. M] This began a
series of emails between Plaintiff and Nancy concerning the
details for the part-time position.[4] [Exs. N-S] Among the issues
discussed were the compensation structure, the number of
hours worked, and whether Plaintiff would retain the title of
Project Manager Director or simply become a project manager.
Plaintiff also wanted Unleaded to transition the job of
assigning tasks and projects to somebody else. [Ex. S at
Bates U.S. 1439-40] Plaintiff proposed her own version of the
part-time job description on July 28, 2014. [Id. at
1439-40, 1261-70] In an August 11, 2014 email, Plaintiff
stated that she was hoping to have the part-time position
finalized by the end of the week, so that she could begin at
the start of the next pay period. [Id. at Bates U.S.
1439]
On
August 18, 2014, Nancy sent Plaintiff an email setting forth
a revised proposal for the part-time position. [Ex. X at
Bates U.S. 1421] In it, Nancy proposed a $35 per hour base
salary, limited to 24 hours per week. [Id.] Travel
to Rite Aid's corporate headquarters, located in
Pennsylvania, however, would not be included as part of that
hourly compensation. [Id.] Rite Aid was one
Unleaded's largest clients. Plaintiff responded later
that day that she “w[ould] need to be compensated for
all hours worked.” [Id. at Bates U.S. 1420]
Nancy
responded a few hours later. In an email to Plaintiff, she
stated that what Plaintiff “brought up with all hours
being compensated is essentially the issue [Nancy]
feared-[Plaintiff] taking a managerial role and overlying it
with the ‘Taco Bell' hourly filter.”
[Id.] Nancy further indicated that while Unleaded
was willing to accommodate Plaintiff's request for health
insurance and vacation, she did not “see that
[Unleaded] can fill a managerial position on a part time
compensation package” and that this problem
“[wa]s a problem [she] c[ouldn't] overcome.”
[Id.] As a result, she indicated that she was
“back to either or in that it's either a [project
manager] role part-time or a [Project Manager Director] role
full-time.” [Id.] Plaintiff and Nancy
exchanged two more emails later that day, both indicating
that there had been a “disconnect” between them
in their previous discussions about the part-time position.
[Id. at Bates U.S. 1419]
On
August 25, 2014, Plaintiff sent an email to Nancy, Jarod, and
Mr. Klein, advising them for the first time that she was
pregnant and expecting in April 2015. [Ex. A-21] She stated
that Unleaded's handbook did not have details on
maternity leave, and she inquired how leave would work.
[Id.] In response, all three Unleaded owners sent
congratulatory emails. [Exs. A-22-A-24]
The
next day, Nancy sent Plaintiff an email explaining that she
had spent the last week meeting with Jarod and different
division managers about the part-time position. [Ex. Y at
Bates U.S. 1413] The email then detailed a revised proposal.
[Id.] As part of the proposal, Plaintiff would
continue to oversee project managers, but she would no longer
assign projects for the overall group. [Id.] She
would continue to manage the projects for the key clients
that Plaintiff had previously requested. [Id.] She
would work 24 hours per week. [Id. at Bates U.S.
1414] Her base salary would be “$3360/month (this is
$35/hour, 24 hours a week).”[5] [Id.] Plaintiff
would also receive commissions for her project manager work,
upsells, and sales to new customers. [Id.] She would
also have health insurance and six national holidays.
[Id.]
Plaintiff
responded to Nancy and Jarod Clark with an email stating that
they “seem[ed] [to be] aligning on the role but they
[we]re still not aligning on the compensation.” [Ex Z]
Nancy responded with an email asking Plaintiff to explain
what was not aligned. [Ex A-1] A series of email exchanges
ensued. [Exs. A-2-A-11] Plaintiff questioned whether she
would receive vacation pay, paid personal leave, and paid
holidays. [Ex. A-4] Plaintiff also explained that she thought
the salary calculation was incorrect. [Id.]
Plaintiff explained that “$35 x 24 hours = $840 x 52
weeks =$43680 / 12 months = $3640.” [Id.]
Plaintiff and Nancy apparently ultimately agreed on the leave
policy for the new position, but did not further discuss the
base salary calculations. [Exs. A-5-A-12]
On
September 4, 2014, Plaintiff sent an email to Nancy and Jarod
stating that she believed the move to part-time employment as
discussed between the parties “would be a good
transition.” [Ex. A-12] She further indicated that she
would like to start on September 15, the beginning of the
next pay period. [Id.] She then asked Nancy to send
the paperwork so that she could “look it over for a
final signature.” [Id.]
Nancy
responded with an email stating that she would be sending the
paperwork over that morning. [Ex. A-13] She further indicated
that they had started the part-time position two days
earlier, because a start date at the beginning of the month
eliminates confusion.[6] [Id.] When Plaintiff responded
stating that she did not want the part-time position to start
until September 15, Nancy replied that Plaintiff was
“not in charge of th[e] time decision.” [Ex.
A-14]
A
series of terse emails ensued. [Exs. A-15-A-17] Plaintiff
said that she was “not sure why every step of this
[negotiation process] [wa]s turning into a battle.”
[Ex. A-15] Nancy responded by agreeing that the “battle
part [was] nonsense” and accused Plaintiff of
“attempting to manage the business in a manner that
[wa]s outside of [her] purview.” [Ex. A-16] Plaintiff
replied that Nancy had been showing “very obvious
hostility” since July when the part-time negotiation
process began. [Ex. A-17 at Bates U.S. 1332]
Plaintiff
reviewed the proposed terms for the part-time position, which
included the September 2 start date, and continued to reflect
a base salary of $3, 360 per month. [See Id. at
Bates U.S. 1331] Plaintiff emailed Nancy, stating that she
could not “sign the[] documents, ” because the
salary was wrong and the parties could not agree on the start
date. [Id.]
A few
hours later, Plaintiff met with Nancy's daughter, Shaun
Clark, on September 4, 2014. Shaun is a lawyer by training,
though she was not licensed during the events in question.
Nonetheless, she would perform some in-house lawyering
services for Unleaded. During the meeting, Plaintiff
explained that the proposed compensation was improperly
calculated and that she could not start the new position on a
day that had already passed. As a result, she declined the
part-time position.
A few
hours after that meeting, Shaun sent Plaintiff an email
stating that she was “glad [the parties] got everything
worked out” during the meeting. [Ex. A-18 at Bates U.S.
0433] In that email, Shaun informed Plaintiff of three
changes that would be made to the full-time Project Manager
Director position, which Plaintiff would be retaining.
[Id.] First, Plaintiff would no longer be in charge
of reviewing Active Collab, a project management software.
[Id.] Second, Plaintiff would no longer need to
manage project assignments. [Id.] Plaintiff
testified that these first two changes were changes that she
desired.
Finally,
Shaun's email stated that Plaintiff's flex schedule
would be eliminated and she would be required to work five
days a week, for eight hours per day. [Id.] Nancy,
Jarod, and Shaun all credibly testified that the proposed
elimination of the flex schedule was the result of
productivity problems Unleaded experienced when Plaintiff was
out of the office, and the Court concludes that productivity
was the reason for the proposed change in schedule. Plaintiff
was unhappy with this final proposed change.
In
response, Plaintiff sent Shaun an email that same day,
stating that she had been on the flex schedule for over a
year and had not had any reason to believe it was not
working. [Id. at Bates U.S. 0434] She further stated
that she could “only assume this [schedule change]
[wa]s because of the negotiation to the part time position
[and] because [she was] pregnant.” [Id.] She
said she felt that she was “being discriminated against
ever since [she] told management [she] was pregnant.”
[Id.] She indicated that she had told Shaun during
the meeting that she felt the “work environment [wa]s
hostile” and that she was “being treated
differently.” [Id.] She concluded by stating
that Unleaded could not fire or reassign her because she was
pregnant, and that she hoped Unleaded would rectify the
situation before she had to file a complaint. [Id.]
Shaun
forwarded Plaintiff's email to Nancy and Jarod, with a
statement that she would “deal with this.”
[Id.] Nancy responded in an email telling Shaun
Clark to “[b]eware of the conversation vs. email,
” and stating that “[e]mail is all that matters
in a lawsuit, as you know memory of conversations holds no
value.” [Ex. 28 at Bates U.S. 0174]
On
September 5, 2014, Shaun responded to Plaintiff's email
accusing Unleaded of discrimination. [Ex. A-19 at Bates U.S.
0198] She explained that Unleaded was not attempting to fire
or reassign Plaintiff, and that Unleaded was “very
happy to have [Plaintiff] at the full-time position.”
[Id.] She further explained that Unleaded was
“truly impressed with the quality of work that
[Plaintiff] ha[d] put in over the years.”
[Id.] Finally, she informed Plaintiff that the
changes to the position were not designed to discriminate
against Plaintiff, but were the result of a “need to
constantly improve [Unleaded's] process.”
[Id.]
Plaintiff
responded by thanking Shaun for the “kind words,
” saying that they “help[ed] considering all the
negativity and hostility [Plaintiff had] been shown over the
past several weeks.” [Id. at Bates U.S. 0197]
Plaintiff further agreed with the first two changes to her
position-transitioning responsibility for project management
assignments and Active Collab review to other
employees-stating that they were items that she “too
ha[d] been saying for quite some time should change.”
[Id.] Nonetheless, she continued to ...