Andree v. Hoy

• Decision Date: 30 November 2012
• Docket Number: Civil Action No. 11-cv-02020-CMA-KMT
• Parties: KIMBERLY L. ANDREE, Plaintiff, v. JOSEPH HOY, Individually and in his official capacity as Sheriff of Eagle County, Defendant.
• Court: U.S. District Court — District of Colorado

KIMBERLY L. ANDREE, Plaintiff,

v.JOSEPH HOY, Individually and in his official capacity as Sheriff of Eagle County, Defendant.

Civil Action No. 11-cv-02020-CMA-KMT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Date: November 30, 2012

Judge Christine M. Arguello

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

In this employment discrimination case, Plaintiff Kimberly L. Andree brings claims for (1) retaliation under Title VII; (2) procedural due process under 42 U.S.C. § 1983; and (3) breach of contract under state law. Jurisdiction is proper over Plaintiff's federal civil rights claims pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), and over Plaintiff's state law claims pursuant to 28 U.S.C. § 1367(a) (supplemental jurisdiction). Currently before the Court is the Motion for Summary Judgment filed by Defendant, Sheriff Joseph Hoy. (Doc. # 42.) For the reasons discussed below, the Court grants the motion.

I. BACKGROUND

The Eagle County ("the County") Sheriff's Department hired Plaintiff in 1983. (Doc. # 42, ¶ 1.) In recent years, she served as Defendant's administrative lieutenant. (Id., ¶¶ 4-5; Doc. # 1, ¶ 5.) As an administrative lieutenant, Plaintiff was in charge ofDefendant's office operations. (Doc. # 1, ¶ 5.) In 2010, the County was facing significant revenue reductions, and the Board of County Commissioners told Defendant that he would need to cut his Department's budget by $2 million. (Doc. # 42, ¶ 6.) During this same time period, the County offered early retirement packages to its employees. (Id., at ¶ 9.)

On February 16, 2010, County attorney Bryan Treu asked Plaintiff and other employees to gather information for an investigation pertaining to a charge of gender discrimination filed by another employee of the Sheriff's Department, Sharon McCole-Pons. (Doc. # 41, ¶ 22; Doc. # 41-18.)

At the end of June, 2010, Plaintiff met with Defendant and told him that she was considering retiring, but that she wanted a severance package, including two years of salary, eighteen months of insurance benefits, and other benefits, including assistance in maintaining her Peace Officer Standards and Training ("POST") certification and concealed weapons permit. (Doc. ## 41, ¶ 13; 42, ¶¶ 10-11.) Defendant asked Plaintiff to continue working until after his upcoming election (in November 2010) but "reportedly" agreed to the severance package, saying, "I like it. Let's do it."¹ (Doc. # 42, ¶ 11.) Additionally, Plaintiff agreed to continue working until the election. (Id.) In anticipation of her pending retirement, Plaintiff began training her replacement, JesseMosher, who was already employed by the Department, on some of her job duties. (Id., ¶ 13.)

On August 17, 2010, Plaintiff sent Defendant an email, with an attached list of items to include in her severance package, so that the Department's Human Resources Director, Lisa Ponder, could "get the papers prepared." (Doc. # 36-9; Doc. # 42, ¶ 15.) In her email, Plaintiff noted, "If there is somthing [sic] missing or somthing [sic] that you dont [sic] want on there we can change it and then send it to Lisa." (Id.) Defendant then forwarded Plaintiff's email, with her list of severance package items, to Ponder. (Id.) In September 2010, Defendant met with Plaintiff and told her that the County would not agree to give her the proposed severance package. (Doc. # 42, ¶ 16.) In response, on September 13, 2010, Plaintiff sent an email with a proposal for another package. (Doc. # 36-10.) On September 17, 2010, Ponder emailed Defendant and Plaintiff, stating that the County had "no wiggle room" regarding the amount Plaintiff could receive for her severance. (Doc. # 36-11.) Meanwhile, sometime in September, before an Equal Employment Opportunity Commission ("EEOC") mediation for McCole-Pons, Plaintiff met with Treu and told him the County should treat McCole-Pons well because Plaintiff could understand the point McCole-Pons was making in her charge. (Doc. # 41, ¶ 25.)

On October 8, 2010, Plaintiff sent Ponder an email, asking: "Could you send me the information on how to file an EEOC Complaint?" (Doc. # 36-15.) Plaintiff e-mailed Ponder again on October 13, 2010, stating: "[j]ust a phone number would be fine."(Doc. # 36-16.) On October 20, 2010, Plaintiff sent an email to both Ponder and Defendant, stating, "I am filing a complaint with the EEOC and it will be completed by Friday October 22, 2010." (Doc. # 36-18.)

Defendant was re-elected as Sheriff on November 9, 2010. (Doc. # 42, ¶ 31.) On November 15, 2010, he notified Plaintiff that he was eliminating her position for budgetary reasons. (Id., ¶ 33.) Plaintiff's job duties were redistributed to other employees including, primarily, Mosher. (Id., ¶ 34.)

On November 16, 2010, Plaintiff completed an EEOC intake questionnaire form and sent it to the EEOC. (Id., ¶ 35.) On November 27, 2010, Plaintiff filed a Charge of Discrimination with the EEOC, alleging sex discrimination. (Id., ¶ 36.)

II. STANDARD OF REVIEW

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine dispute as to any material fact" and that it is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In applying this standard, the Court views the evidence and draws all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 272, 248 (1986)). A dispute of fact is "genuine" if "there is sufficient evidence on eachside so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).

The moving party bears the initial burden of demonstrating an absence of a genuine dispute of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant who does not bear the ultimate burden of persuasion at trial need not disprove the other party's claim; rather, the movant simply needs to point to a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

Once the movant has met this initial burden, the burden shifts to the nonmoving party "to set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Id. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein. Id.

III. ANALYSIS

A. TITLE VII RETALIATION CLAIM

Title VII's anti-retaliation provision prohibits an employer from discriminating against an employee because she has "opposed any practice made an unlawfulemployment practice by this subchapter" (the so-called "opposition clause"), or because she "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter" (the "participation clause"). 42 U.S.C. § 2000e-3; Crawford v. Metro. Gov't of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 274 (2009) (noting that the two clauses of the anti-retaliation provision are known as the "participation clause" and the "opposition clause.") A plaintiff can prove retaliatory treatment by direct or circumstantial evidence. See Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). When, as here, a plaintiff relies largely on circumstantial evidence, the Supreme Court has directed courts to apply a three-step, burden shifting analysis under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to determine whether summary judgment is appropriate. See Bragg v. Office of the Dist. Atty., Thirteenth Judicial Dist., 704 F. Supp. 2d 1032, 1049-50 (D. Colo. 2009).

Under McDonnell Douglas, the plaintiff has the initial burden to present a prima facie case of retaliation. See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir. 2000). If the plaintiff can make out a prima facie case, the burden shifts to the employer to show a legitimate non-discriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 806; Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 529 (10th Cir. 1994). If the employer can offer such a reason, the case should be dismissed on summary judgment, unless the plaintiff can show that the proffered reasonwas merely a pretext for retaliation. Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002).

1. Prima Facie Case of Retaliation

To state a prima facie case for retaliation, a plaintiff must show that: (1) she engaged in protected opposition or participation; (2) she was subjected to an adverse employment action;² and (3) a causal connection exists between the protected activity and the adverse action. Kendrick, 220 F.3d at 1234; see also Vaughn v. Epworth Villa, 537 F.3d 1147, 1150 (10th Cir. 2008).

On the facts presented in the instant case, the Court determines that Plaintiff engaged in protected activity. Plaintiff's initial email to Ponder - asking, "Could you send me the information on how to file an EEOC Complaint?" (Doc. # 36-15) - was inadequate as a basis for protected activity, insofar as the email did not convey to Ponder why Plaintiff was asking for the information. See Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008) ("Although no magic words are required, to qualify as protected opposition the employee must convey to...