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Roach v. Gen3 Co, LLC

United States District Court, D. Colorado

September 27, 2019

TAMMY ROACH, Plaintiff,
GEN 3 CO, LLC, Defendant.



         This matter is before the Court on Defendant Gen 3 Co., LLC's Motion for Summary Judgment, in which Defendant argues that it is entitled to judgment as a matter of law on both of Plaintiff Tammy Roach's Title VII employment discrimination claims. (Doc. # 32.) For the reasons discussed below, the Court grants Defendant's Motion for Summary Judgment.

         I. BACKGROUND

         Defendant is a construction company based in Denver, Colorado. (Doc. # 1 at 2.) It employed Plaintiff as an administrative assistant from May 18, 2017, to October 6, 2017. (Doc. # 1 at 3, 7.)


         Plaintiff alleges that her coworker, Jonathan Butler, regularly made inappropriate comments towards her (Doc. # 32-1 at 17) and sexually harassed her four specific times (Doc. # 32 at 2).[1] Defendant does not dispute that these four incidents occurred. (Doc. # 32 at 3-8.)

         Plaintiff reports that Butler would say or do things, nearly on a daily basis, that made her uncomfortable. (Doc. # 34 at 1.) For example, Butler regularly winked at Plaintiff and blew her kisses. (Doc. # 1 at 3.) Butler also frequently told Plaintiff that she was beautiful and complimented her eyes. (Id.) Plaintiff ignored Butler. (Id.)

         The first specific incident of alleged sexual harassment occurred in mid-June 2017, when Butler entered Plaintiff's office and offered to rub Plaintiff's “hard-working hands.” (Doc. # 1 at 4.) When Plaintiff's supervisor, James Palmer, overheard this, Palmer told Butler, “Dude, get back to work.” (Id.) Palmer immediately talked with Butler further and told him that his comments were not appropriate for the workplace. (Doc. # 32-1 at 42.) Palmer told Butler not to talk to Plaintiff anymore. (Id.)

         The second incident happened approximately one or two weeks later, in late June 2017. (Doc. # 32-1 at 6-8.) As Plaintiff and other employees were returning from a break, Butler, who is African-American, invited Plaintiff to be with him as a “black man, ” and said that he could make her happy. (Id. at 10.) Butler stated that he wanted Plaintiff to give him an opportunity to “love and treat [her] right.” (Id. at 6.) Plaintiff interpreted these comments as an invitation for Plaintiff to have sex with Butler. (Doc. # 1 at 3.) Plaintiff later told Palmer about Butler's comments. (Doc. # 32-1 at 10-11.)

         The third incident occurred in early August 2017, when Butler followed Plaintiff into the inventory supply room. (Id. at 11.) Plaintiff was opening boxes, and Butler said to her, “Here, sweetie, here, I have a box cutter. . . . I'll help you open those boxes.” (Id. at 12.) As he handed Plaintiff a box cutter, Butler touched Plaintiff's hand and rubbed her arm. (Id.) Plaintiff told Butler that he was not supposed to be in the inventory supply room. (Id.) Plaintiff alleges that Butler's conduct made her very uncomfortable. (Doc. # 1 at 4.) When Plaintiff walked by Butler and left the room, Butler did not touch or impede Plaintiff. (Doc. # 32-1 at 15.) When Plaintiff told Palmer about the incident, Palmer believed the touching to be accidental. (Id. at 44-45.) Still, Palmer directed Mike Davis, the leadman, to watch Butler and intervene if he saw Butler talking to Plaintiff. (Id. at 45.)

         The fourth incident happened the morning of August 29, 2017, when Plaintiff was alone in the office. (Doc. # 1 at 5.) Butler entered the room and was “hyper.” (Doc. # 32-1 at 20.) He said to Plaintiff, “Oh my God, Tammy . . . I have all these bedbugs in my place. It's a new place, and I got bedbugs in my bed, and you won't believe these f**king things, they've eaten me up. They've . . . eaten at my f**king dick.” (Id.) Butler then pulled up his shirt to show Plaintiff the bedbug bites on his torso. (Id.) He also pulled down the waistband of his pants, exposing his boxer shorts and some of his pubic hair. (Id.) Butler did not expose his genitals to Plaintiff. (Id.) Plaintiff said, “Whoa, whoa, we need to talk to [Palmer] about this, ” and left the office to look for Palmer. (Id. at 20-21.) When Plaintiff was deposed, she stated that she did not interpret Butler's behavior on this occasion to be sexual. (Id. at 30.)

         Meanwhile, Butler left the office and encountered Davis, the leadman. (Id. at 57.) Butler lifted his shirt and pulled down his pants to show Davis the bedbug bites on his torso and legs. (Id.) Davis told Butler that he was behaving inappropriately. (Id.) Butler pulled up his pants and went back to work, but Davis continued to watch him. (Id. at 58; 60.) Butler was acting strangely and became irate when he realized Davis was watching him. (Id. at 60-61.) Davis and another employee sent Butler home for the day, but they asked Butler to come back the next day. (Id. at 61.)

         Later that day, Plaintiff told both Davis and Palmer about her encounter with Butler. (Id. at 47, 62.) Davis testified that he and Plaintiff agreed that Butler “did the same thing” to both of them. (Id. at 62.) Palmer called Butler and asked him to come back to work after taking a drug test. (Doc. # 34-1 at 13.) Butler declined and told Palmer that he was quitting the job immediately because he had found another job in sanitation. (Id. at 13.) Butler never returned to Defendant's workplace, and Plaintiff never saw Butler again. (Doc. # 32-1 at 31-32.)

         Palmer never documented any of Plaintiff's complaints about Butler or reported her concerns to upper management. (Doc. # 34-1 at 17.) Aside from a very brief conversation with Shaun Hartley, Field Superintendent, at a personal function (Id. at 3), Plaintiff did not raise her concerns about Butler's conduct to anyone in upper management either because she was told to follow her “chain of command” (Doc. # 32-1 at 33). Plaintiff admits that Palmer was never hostile to or displeased with her for expressing her concerns about Butler. (Id. at 34.) Palmer states in an affidavit that he did not have “any animosity, displeasure, or ill feelings” for Plaintiff because of her allegations. (Id. at 73.)


         On October 5, 2017, approximately five weeks later, Defendant's owner, Tyler Elward, entered the shop office when Palmer was not there. (Doc. # 1 at 7.) Plaintiff initiated a conversation with Elward, telling him that work was slow in the shop and that employees were upset because they did not have enough to do. (Id.) Soon thereafter, the Defendant's President, Jeff Austad, entered the shop to ask Palmer why the employees were not busy. (Doc. # 32-1 at 52-53.) Austad and other upper management members were upset because at the time, the shop actually had a heavy ...

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