United States District Court, D. Colorado
OPINION AND ORDER GRANTING MOTION FOR SUMMARY
S. KRIEGER, SENIOR UNITED STATES DISTRICT JUDGE
MATTER comes before the Court pursuant to Mr.
Mohn's pro se Motion for Summary Judgment (#
51), and the Defendant's
(“Progressive”) response (# 55);
and Progressive's Motion for Summary Judgment (#
58), Mr. Mohn's response (#
60), and Progressive's reply (#
63). Also pending are a motion by Mr. Mohn to
restrict access (# 52) to certain documents
that were filed as exhibits within his summary judgment
motion, Mr. Mohn's motion seeking reassignment of the
Magistrate Judge in this case (# 56), and
Mr. Mohn's motion seeking a hearing on his outstanding
motions (# 57).
Court summarizes the pertinent facts here and elaborates as
necessary in its analysis.
October 2016, Progressive hired Mr. Mohn as a Customer
Service Representative. As part of Progressive's
training, newly-hired employees are assigned to a program
called the “Academy.” Mr. Mohn understood that
the Academy training program was not of any set duration, but
rather, trainees graduated from the program once their
training supervisor concluded that they had adequately met
certain performance goals. Mr. Mohn contends that his
performance at the Academy warranted his graduation earlier
than Progressive approved. He also contends that female
trainees in his Academy class were approved for graduation
before he was and that they received higher pay than he did.
Thus, he contends that Progressive discriminated against him
on the basis of his sex with regard to the Academy program.
graduating from the Academy program, Mr. Mohn began working
for Progressive in its Colorado Springs, Colorado office. In
June 2017, Mr. Mohn inquired about applying for other open
positions at Progressive. One of his managers, Charlie
Baughman, advised Mr. Mohn that, as a general rule,
Progressive required Customer Service Representatives to have
completed a full year in that position before they would be
permitted to apply for other openings. But Mr. Baughman also
told Mr. Mohn that he would consider waiving that requirement
if a candidate had particular experience that uniquely
qualified him or her for an open position. It is not entirely
clear from the record, but it appears that Mr. Mohn applied
for a Senior Copywriter position with Progressive in July
2017, but was not selected for that position. Mr. Mohn also
requested Mr. Baughman permit him to apply for an open IT
Service Desk position, but Mr. Baughman
refused. Mr. Mohn contends that rejection of his
application for the copywriter position and refusal to
endorse an application for the IT Service Desk position are
additional instances of discrimination against him because of
28, 2017, Mr. Mohn sent an e-mail to Progressive's Human
Resources department, complaining that his coach and manager
at the Academy “purposely [held] an employee like me
back . . . with the intent of destroying my livelihood during
the Academy . . . because of my learning pace being too fast
and my overqualifications and overeducation for such a
role.” Mr. Mohn also stated that “I now expect to
be put on a faster pace of promotions than others” or
be “place[d] in a fitting position as soon as possible
. . . rather than allowing the situation to escalate.”
Mr. Mohn warned that if he was terminated or “forc[ed]
into constructive discharge, ” it would “result
in immediate legal actions and would include me using my
publishing capability to publicly reveal [Progressive's]
violations of [its] core values as well as civil rights or
labor law violations.”
August 5, 2017, Mr. Mohn allegedly kicked open an office
door. Progressive placed Mr. Mohn on a paid leave of absence
pending investigation into the incident. On or about August
16, 2017, Progressive terminated Mr. Mohn for violating
various provisions of Progressive's Code of Conduct,
primarily relating to his kicking open the door. Mr. Mohn
contends that his termination constituted another instance of
discrimination against him based on his sex.
parties appear to agree that Mr. Mohn to assert a single
claim of discrimination on the basis of sex in violation of
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e
et seq. arising from these events. Both Mr. Mohn and
Progressive have moved (# 51, 58) for
summary judgment in their favor on that claim.
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 governs what 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).
case involves cross-motions for summary judgment. Because the
determination of whether there is a genuine dispute as to a
material factual issue turns upon who has the burden of
proof, the standard of proof and whether adequate evidence
has been submitted to support a prima facie case or
to establish a genuine dispute as to material fact, these
motions must be evaluated independently. See: Atlantic
Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d
1138, 1148 (10th Cir. 2000); Buell Cabinet Co. v.
Sudduth, 608 F.2d 431, 433 (10th Cir. 1979)
("Cross-motions for summary judgment are to be treated
separately; the denial of one does not require the grant of
another."); In re Ribozyme Pharmaceuticals, Inc.,
Securities Litig., 209 F.Supp.2d 1106, 1112 (D. Colo.
Because the Court ultimately finds that a ruling on
Progressive's motion disposes of this case, the Court
considers that motion first.
establish a claim of sex discrimination under Title VII, Mr.
Mohn bears the initial burden of establishing a prima
facie case of discrimination by showing: (i) that he is
a member of a protected class (that is, he is a
male); (ii) that he had the minimum
qualifications for the position he held and/or sought; (iii)
that he suffered an adverse action; and (iv) that the adverse
action occurred in circumstances giving rise to an inference
of discrimination. See generally St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 506 (1993); see also
EEOC v. PVNF, LLC, 487 F.3d 790, 800 (10th
Cir. 2007). If Mr. Mohn carries that burden, Progressive has
the burden to articulate a legitimate, non-discriminatory
reason for the adverse action, and Mr. Mohn bears the
ultimate burden of coming forward with evidence that could
establish that Progressive's tendered reason is a pretext
for sex discrimination. Id.
reading of Mr. Mohn's pleadings suggest that he alleges
that he suffered three different adverse actions as a result
of his sex: (i) his graduation from the Academy was delayed;
(ii) he was not hired for one or more of the open positions
he applied for (or that he was prohibited from applying for
certain open positions by Mr. Baughman); and (iii) that he
was terminated. The Court will analyze each claim separately.
Graduation from the Academy
Mohn contends that, because he was an “early top
performer, ” he should have graduated from the Academy
earlier than he did. He also alleges that female trainees in
his Academy class graduated more quickly than he did and that
the female trainees were paid more than he was. The Court
will assume, without necessarily finding, that each of these
allegations identifies an adverse action sufficient to
satisfy the third element of Mr. Mohn's prima
facie case. However, Mr. Mohn has ...