Rivera v. City and County of Denver, No. 03-1059.

• Decision Date: 27 April 2004
• Docket Number: No. 03-1059.
• Citation: 365 F.3d 912
• Parties: Edward L. RIVERA, Plaintiff-Appellant, v. The CITY AND COUNTY OF DENVER, a municipal corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 912

365 F.3d 912

Edward L. RIVERA, Plaintiff-Appellant, v. The CITY AND COUNTY OF DENVER, a municipal corporation, Defendant-Appellee.

No. 03-1059.

United States Court of Appeals, Tenth Circuit.

April 27, 2004.

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Barry D. Roseman of Roseman & Kazmierski, LLC, Denver, CO, for Plaintiff-Appellant.

Richard A. Stubbs, Assistant City Attorney (J. Wallace Wortham, Jr., City Attorney, and Robert D. Nespor, Assistant City Attorney, with him on the brief), Denver, CO, for Defendant-Appellee.

Before KELLY and HARTZ, Circuit Judges, and CASSELL, District Judge^*.

HARTZ, Circuit Judge.

After Plaintiff Edward L. Rivera was terminated from his employment with the City and County of Denver (the City), he brought this action against the City under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e-1 to 2000e-17, and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34, alleging that he was discharged based on his national origin and age. The City responded that he was discharged because he falsely reported doing work and then induced another employee to lie in his behalf. The district court determined that Plaintiff's evidence failed to create a genuine issue that the City's proffered reason was pretextual, and granted summary judgment for the City. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

Plaintiff is an Hispanic male, born on July 15, 1953. While employed by the Wastewater Management Division (the Division) of the City's Department of Public Works, his job was to clean catch basins, which are openings in gutters where water drains from the streets into the sewer system. Cleaning catch basins involves flushing them with water pumped at high pressure through a hose attached to a truck called a "power flusher." The crew performs the following steps: (1) parking the power-flusher truck in front of the catch basin; (2) placing orange safety cones around the work area; (3) using a shovel to remove debris from the metal grate and the surrounding area; (4) washing the metal grate and surrounding area with high-pressure water from the power flusher; (5) raising the metal grate; (6) washing dirt from the concrete frame in which the metal grate sits; (7) using the hose to remove any debris from inside the catch basin; (8) flushing the sewer line that connects the catch basin to the sewer system; (9) replacing the metal grate; and (10) placing the hose and safety cones back on the truck. Depending on the condition of the catch basin and the area surrounding it, some of these steps can be omitted.

Plaintiff's alleged misconduct began on January 31, 2000. On that morning Plaintiff and another Division employee, Nick Martinez, Jr., were unable to clean catch basins because the pump of their power-flusher truck was frozen. After discovering the problem, they went back to Division headquarters and left with a different power-flusher truck at 10:00 a.m. According to Plaintiff, he and Martinez loaded the replacement truck with water (necessary to clean catch basins) before beginning their lunch break at 11:08 a.m. The Division records indicate that they arrived at their assigned route after lunch at 12:10 p.m., although Plaintiff contends that they actually arrived at 12:05 p.m. At approximately 12:30 p.m. Plaintiff radioed the Division headquarters to report that he was having trouble with the brakes on the power-flusher truck. Plaintiff and Martinez therefore did not clean any catch basins after 12:30. Plaintiff's work ticket states that he cleaned 27 catch basins that day.

Plaintiff's immediate supervisor, Geraldine Montoya, swore in an affidavit that (1) she drove Plaintiff's route twice during the time he claims to have cleaned the catch basins; (2) she did not see him cleaning any catch basins; (3) she inspected one of the catch basins he was assigned to clean and found it covered with debris; (4) she drove by the other catch basins he was to clean, and saw none of the water marks she would have expected; and (5) when she finally saw Plaintiff and Martinez, she did not see them clean the two or three catch basins in her field of vision.

On February 15 or 16, Montoya saw Plaintiff's work ticket reporting that he had cleaned 27 catch basins on January 31. She suspected that he had not actually cleaned them, based on her January 31 observations and her belief that crews normally clean only about six or seven catch basins per hour. On February 16 Montoya informed her immediate supervisor, Jeff Snyder, of her suspicions. On that same day or the day after, Snyder and Montoya asked Plaintiff whether he had cleaned 27 catch basins on January 31. According to Snyder, Plaintiff replied that he had.

On February 17 Snyder and Operations Supervisor Don DeFiore called Martinez. Both testified that Martinez told them that he and Plaintiff had not cleaned any catch basins on January 31. In addition, DeFiore testified that Martinez reported that he and Plaintiff had filled the truck's water tank after lunch (which would have given them even less time to clean catch basins).

On February 22 the Division served Plaintiff with a notice that it was considering disciplining him for falsely reporting that he had cleaned 27 catch basins on January 31. A pre-disciplinary meeting was held on March 3. At the meeting Plaintiff stated that he had mistakenly reported that he had cleaned 27 catch basins, when he had in fact cleaned only 17. He specified which catch basins he had cleaned. Although he admitted that he had informed Snyder and Montoya that he had cleaned all the catch basins he had reported cleaning, he explained that he had thought at that time that he had reported cleaning only 17. Plaintiff also said that he and Martinez had filled the water tank before taking their lunch break. Plaintiff offered to demonstrate that he could clean 17 catch basins in 20 or 25 minutes. According to the transcript of the meeting, when Plaintiff was asked how he could have cleaned 17 catch basins in less than half an hour when the quota for an eight-hour day is 40, Plaintiff replied, "We really fooled you." Aplt.App. at 72. Plaintiff, however, asserts in an affidavit submitted in opposition to the City's motion for summary judgment that he did not make the statement, but said something like, "Do you think we're trying to fool you?" Id. at 299. In addition to his own testimony, Plaintiff presented a written statement by Martinez asserting that they had cleaned 17 catch basins on January 31, and a written statement by another employee, Christopher Gallegos, declaring that he saw Plaintiff's crew doing routine maintenance on catch basins in the assigned area on that day and saw water marks around the catch basins, indicating that they had been cleaned.

On March 16 the Division issued Plaintiff a second notice that it was considering disciplinary action against him. In addition to the charge of falsely reporting that he had cleaned 27 catch basins on January 31, the notice included a charge of inducing other employees to provide false or misleading statements in his behalf. A second pre-disciplinary meeting was held on March 23. At that meeting Plaintiff insisted that he had 20 or 25 minutes in which to clean basins. Once again, he stated that he had mistakenly reported cleaning 27, rather than 17, catch basins and he offered to prove that he could clean 17 catch basins in 20 or 25 minutes. He also mentioned that he had once cleaned 80 catch basins in a single day and had cleaned 58 in one day fairly recently. In addition, he explained that cleaning 17 catch basins in 20 or 25 minutes was not inconsistent with the number of catch basins he normally cleaned during a day (which he claimed was usually between 35 and 70), because the amount of time necessary to clean a certain number of catch basins depended on how many catch basins were in one area, and how close together they were.

Plaintiff presented at the meeting another statement by Martinez, in which Martinez claimed that his memory of the work he and Plaintiff had done on January 31 had been refreshed when he talked to Plaintiff. Addressing Martinez's changed story, Plaintiff suggested that Martinez may have acted out of spite when he initially reported that the two had not done any work on January 31, because Plaintiff had refused to provide a urine sample for Martinez's January 31 drug test. Plaintiff also provided written statements by two other employees, Steve Montes and Isaac Correa, which said that it was possible to clean 17 catch basins in 20 to 25 minutes. On the other hand, the City presented at the meeting a second statement by Gallegos, in which he stated that he had merely assumed that Plaintiff and Martinez were cleaning catch basins when he saw them in their assigned area on January 31. (Also, at his deposition in this case, Gallegos testified that the only water marks he saw were at one intersection.)

On March 24 the Division conducted a test to determine how quickly a work crew could clean the 17 catch basins Plaintiff claims to have cleaned. Beginning with a full tank of water, two selected employees cleaned the 17 catch basins in 24 minutes. In an affidavit Snyder states that when he observed the test he noticed that before the cleaning several of the catch basins contained as much as two-and-a-half inches of debris, indicating that they had not been cleaned on January 31. Furthermore, Snyder testified that the crew broke numerous traffic laws and that he had not seen anyone clean catch basins that quickly before. Similarly, Montoya (who also observed the test) testified in her deposition that Montes (one of the men who conducted the test) "was practically running as soon as he stepped off the truck," and that "[h]e was sweating very heavily, and he was very winded." Aplt.App. at 178.

According to the affidavit of Reza Kazemian, the supervisor who...