United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' Motion for
Summary Judgment [Docket No. 38]. The Court has jurisdiction
pursuant to 28 U.S.C. § 1331.
Zach Duran is a Mexican citizen and permanent resident of the
United States. Docket No. 47 at 11, ¶ 36. Plaintiff is of
Native American descent. Id. at 1, ¶ 1.
Defendants Metro Treatment of Colorado, L.P.
(“Metro”) and Colonial Management Group, L.P.
(“Colonial”) own and operate a drug treatment
center in Mesa County, Colorado known as the Grand Junction
Treatment Center (“GJTC”). Docket No. 19 at 2,
¶¶ 10-15. On September 1, 2014, defendants hired
plaintiff Zach Duran as the Program Director at GJTC. Docket
No. 38 at 2, ¶ 1. At the time he was hired, plaintiff
met all the advertised qualifications for the Program
Director position. Docket No. 47 at 11, ¶ 38. Beginning
in approximately September 2015, plaintiff's direct
supervisor was Jessica Ellis (“Ellis”). Docket
No. 38 at 3, ¶ 2.
September 19, 2016, Ellis called GJTC in an attempt to speak
with plaintiff. Id., ¶ 3. GJTC staff informed
Ellis that plaintiff was not at work. Id. Plaintiff
had told staff the previous week that he would be going out
of town and would not be at work on the 19th. Id.,
¶ 4. Plaintiff did not tell Ellis before his
absence that he would miss work on the 19th and did not
arrange coverage for the clinic with Ellis in his absence.
Id., ¶ 5. Plaintiff missed work on both the 19th
and 20th and returned to work on the 21st. Id.,
¶ 8. In his role as Program Director, plaintiff was
expected to notify Ellis that he was going to be absent and
coordinate with her to cover the clinic. Id. at 4,
¶ 9. At the time, defendants had an “Attendance
and Tardiness” policy, which stated that
“[e]mployees absent for any reason must notify their
supervisor” and that “[a]bsence without
notification . . . may result in disciplinary action,
including dismissal.” Id., ¶
Ellis planned to issue plaintiff a written warning for
absence without prior notification or authorization.
Id. at 5, ¶ 16. However, Frances Bolden,
defendants' Regional Vice President for the Alabama and
Western Region, and Debbie Porte, defendants' Senior HR
Manager, determined that termination of plaintiff's
employment was the appropriate sanction. Id., ¶
Defendants terminated plaintiff on September 27, 2016. Docket
No. 19 at 5, ¶ 45. After plaintiff's discharge,
defendants hired a white male as GJTC's program director.
Docket No. 47 at 12, ¶ 42.
January 13, 2017, plaintiff filed a charge against defendants
with the Equal Employment Opportunity Commission
(“EEOC”). Docket No. 19 at 2, ¶ 20. On
December 7, 2017, plainitff received a Notice of Right to Sue
from the EEOC. Id., ¶ 21. On March 7, 2018,
plaintiff filed this lawsuit. Docket No. 1. In the operative
complaint, plaintiff asserts two claims under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
et seq., alleging that plaintiff was unlawfully
terminated on the basis of his (1) race and (2) national
origin. Docket No. 19. On January 14, 2019, defendants moved
for summary judgment on both claims. Docket No. 38.
STANDARD OF REVIEW
judgment is warranted under Federal Rule of Civil Procedure
56 when 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);
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-50 (1986). A disputed fact is “material” if
under the relevant substantive law it is essential to proper
disposition of the claim. Wright v. Abbott Labs.,
Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only
disputes over material facts can create a genuine issue for
trial and preclude summary judgment. Faustin v. City
& Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir.
2005). An issue is “genuine” if the evidence is
such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d
837, 839 (10th Cir. 1997).
“the moving party does not bear the ultimate burden of
persuasion at trial, it may satisfy its burden at the summary
judgment stage by identifying a lack of evidence for the
nonmovant on an essential element of the nonmovant's
claim.” Bausman v. Interstate Brands Corp.,
252 F.3d 1111, 1115 (10th Cir. 2001) (internal quotation
marks omitted) (quoting Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 671 (10th Cir. 1998)). “Once
the moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works of Colo., Inc. v.
City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994). The nonmoving party may not rest solely on the
allegations in the pleadings, but instead must designate
“specific facts showing that there is a genuine issue
for trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986) (internal quotation marks omitted). “To
avoid summary judgment, the nonmovant must establish, at a
minimum, an inference of the presence of each element
essential to the case.” Bausman, 252 F.3d at
1115. When reviewing a motion for summary judgment, a court
must view the evidence in the light most favorable to the
non-moving party. Id.
Objections to Discovery Orders
has filed an Objection to Magistrate's Orders on
Discovery [Docket No. 51], objecting to two discovery orders
entered by Magistrate Judge Gordon P. Gallagher. Following
the close of discovery, plaintiff alleged that defendants
committed two discovery violations during Ellis's
deposition. First, plaintiff argued that “[d]efense
counsel improperly directed [E]llis not to answer four
questions on the grounds of relevance.” Docket No. 40-1
at 2. The questions related to whether any GJTC patients had
died from a methadone overdose after plaintiff's
termination and whether any lawsuits alleging medical
negligence had been filed against defendants after
plaintiff's termination. Id. Second, plaintiff
argued that defense counsel engaged in abusive conduct by
making numerous interruptions and objections and that
defendants' corporate representative engaged in abusive
conduct during Ellis's deposition by “sp[eaking]
sarcastically to the [p]laintiff in mocking Spanish and
[laughing] derisively in his face.” Id. at 4.
As a remedy for both alleged discovery violations, plaintiff
requested that the Court order Ellis to sit for a second
deposition and order defendants to pay fees and costs of both
depositions. Id. at 3-4. Magistrate Judge Gallagher
held hearings on the two disputes on January 28, 2019 and
February 1, 2019. Docket Nos. 40, 49. Magistrate Judge
Gallagher denied plaintiff's request, holding that (1)
discovery on the topic of medical negligence was not relevant
pursuant to Fed.R.Civ.P. 26, and (2) defendants'
deposition conduct did not violate a statute or court rule.
reviewing magistrate judge orders on non-dispositive matters,
“[t]he district judge in the case must consider timely
objections and modify or set aside any part of the order that
is clearly erroneous or is contrary to law.” Fed R.
Civ. P. 72(a). On review of the record, the Court finds no
clear error in Magistrate Judge Gallagher's rulings. As
to the first ruling, “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense.” Fed.R.Civ.P. 26(b)(1).
Magistrate Judge Gallagher ruled that plaintiff's
questions, which aimed to discover possible medical
negligence by defendants, were not relevant to
plaintiff's claims, which allege that he was illegally
terminated on the basis of his race or national origin.
Contrary to plaintiff's objection, which cites a
since-amended version of Fed.R.Civ.P. 26, Magistrate Judge
Gallagher applied the correct legal standard in reaching this
conclusion. See Docket No. 51 at 2; see
also Fed. R. Civ. P. 26 advisory committee's note to
the 2015 amendments (noting that the phrase “reasonably
calculated to lead to the discovery of admissible
evidence” has been deleted because it “has been
used by some, incorrectly, to define the scope of
the second ruling, plaintiff argues that the magistrate judge
failed to “account for or apply” Fed.R.Civ.P.
30(d)(2) and D.C.COLO.LCivR 30.3. However, the magistrate
judge's order states that “the Court is [n]ot
ordering/allowing a new deposition of [Ellis] as [p]laintiff
urges is due him because of an alleged violation of statute
or court rule.” Docket No. 49 at 1. Thus, the record
reflects that the magistrate judge took into consideration
Fed.R.Civ.P. 30(d)(2) and D.C.COLO.LCivR 30.3 in reaching his
ruling. The remainder of plaintiff's objection is
essentially an argument that the magistrate judge came to the
wrong conclusion. See Docket No. 51 at 4, ¶ 15
(arguing that a statement made by the magistrate judge was
“contrary to the evidence before it”). The record
reflects that the magistrate judge reviewed the deposition
transcript, accepted two exhibits offered by plaintiff, and
heard argument from both parties in a hearing that lasted
nearly an hour. Docket No. 49. Upon review of the record, the
Court sees no reason to disturb the magistrate judge's
conclusion. See Fish v. Kobach, 267 F.Supp.3d 1297,
1301 (D. Kan. 2017) (“The clearly erroneous standard
[for reviewing a decision of a magistrate judge] requires
that the reviewing court affirm unless it on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.”). The Court thus concludes
that neither order was “clearly erroneous or contrary
to law” and overrules plaintiff's Objection to
Magistrate's Orders on Discovery [Docket No. 51].
Title VII ...