Bradley v. Denver Health and Hosp. Auth.

• Decision Date: 24 August 2010
• Docket Number: Civil Action No. 08-cv-02587-PAB-KMT
• Citation: 734 F.Supp.2d 1186
• Parties: Peter BRADLEY, Plaintiff, v. DENVER HEALTH AND HOSPITAL AUTHORITY, d/b/a Denver Health Medical Center, Defendant.
• Court: U.S. District Court — District of Colorado

734 F.Supp.2d 1186

Peter BRADLEY, Plaintiff,

v.DENVER HEALTH AND HOSPITAL AUTHORITY, d/b/a Denver Health Medical Center, Defendant.

Civil Action No. 08-cv-02587-PAB-KMT.

United States District Court,

D. Colorado.

Aug. 24, 2010.

Nora Virginia Kelly, Nora V. Kelly, PC, Denver, CO, for Plaintiff.

Brent T. Johnson, Fairfield & Woods, P.C., Denver, CO, for Defendant.

ORDER

PHILIP A. BRIMMER, District Judge.

This matter comes before the Court on defendant Denver Health and Hospital Authority's ("Denver Health") motion for summary judgment [Docket No. 39] and plaintiff Peter Bradley's motion to strike evidence [Docket No. 47].

I. JURISDICTION

Plaintiff asserts claims under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA), both federal laws. Therefore, the Court has federal-question jurisdiction pursuant to 28 U.S.C. § 1331 over plaintiff's claims. However, the Tenth Circuit has suggested that, because issues of Eleventh Amendment immunity implicate the Court's subject-matter jurisdiction, any such issues deserve threshold treatment. Martin v. Kansas, 190 F.3d 1120, 1126 (10th Cir.1999), overruled on other grounds, Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) ("Because the State's assertion of Eleventh Amendment immunity challenges the subject matter jurisdiction of the district court, the issue must be resolved before a court may address the merits....").

There is some disagreement in this District regarding whether Denver Health, an entity which is affiliated with the State of Colorado, is entitled to raise Eleventh Amendment immunity. Compare Darris v. Pugliese, No. 08-cv-02624-PAB-KMT, 2009 WL 3162630 (D.Colo. Sept. 30, 2009) (Denver Health is not entitled to immunity under the Eleventh Amendment), with Langmade v. Denver Police Dep't, No. 07-cv-02287-BNB, 2007 WL 4178475, at *1 (D.Colo. Nov. 26, 2007) (Denver Health is entitled to immunity under the Eleventh Amendment). While the opinions cited here have come to preliminary conclusions, no court has evaluated the status of Denver Health under the analysis detailed in cases such as Steadfast Insurance Co. v. Agricultural Insurance Co., 507 F.3d 1250, 1253 (10th Cir.2007). The present recordcontains insufficient evidence on which to make such a determination.

The Court does not believe that the unsettled matter of Denver Health's entity status prevents the adjudication of the present motions. For one thing, Denver Health has not formally raised the defense. The final pretrial order does contain the somewhat vague statement that "[s]ince Denver Health is a governmental entity, liquidated damages may not be awarded against it." Final Pretrial Order [Docket No. 59] at 3. However, Denver Health has not raised the immunity issue in the context of the present motion. Because Eleventh Amendment immunity may be waived in certain circumstances, see, e.g., Steadfast Ins. Co., 507 F.3d at 1252-53, the Court will not consider the applicability of the defense sua sponte. Cf. Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, 389, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998) ("Unless the State raises the matter [of Eleventh Amendment immunity], a court can ignore it."). Secondly, although the Eleventh Amendment generally precludes ADEA claims against the state, see Kimel v. Florida Bd. of Regents, 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), it does not similarly prevent Title VII claims, see Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). As a result, even if it were determined that Denver Health is entitled to immunity under the Eleventh Amendment, such a defense would not dispose of the entire case. Furthermore, because plaintiff's ADEA claim fails on its merits, the Court sees no reason why it should await the possible invocation of an Eleventh Amendment defense to resolve the matter. Consequently, the Court will proceed to the merits of the present motion without resolving the uncertainty surrounding questions of Denver Health's potential Eleventh Amendment immunity.

II. BACKGROUND

A. Factual Background

Plaintiff Peter Bradley, a licensed Clinical Social Worker, began working at Denver Health in 1994, when Denver Health was part of the City and County of Denver. In 1997, Denver Health separated from the City and County of Denver and became a political subdivision of the State of Colorado. See Colo.Rev.Stat. § 25-29-103(1) (2010). Linda Lenander is the Director of Denver Health's Clinical Social Work Department. At the beginning of 2007, three Clinical Social Work Supervisors reported directly to Ms. Lenander. Two of those supervisors-Teri Classick and Jennifer Hannon-supervised Clinical Social Workers at Denver Health's main hospital and neighborhood clinics. A third supervisor, Abigail Mann, supervised Clinical Social Workers that operated out of clinics in the Denver public school system. Clinical Social Work Supervisors at Denver Health are expected to work closely with Ms. Lenander, supervise and evaluate Clinical Social Workers, communicate and carry out Denver Health policies, and take a proactive role in the administrative functioning of the Clinical Social Work Department.

In the spring of 2007, Ms. Mann announced her resignation from the school-based Supervisor position, and Denver Health initiated the process of finding her replacement. Under the standard procedure, job openings are posted on Denver Health's website and both employees and the public may apply. Denver Health generally seeks to hire or promote the best candidates for open positions, regardless of whether they are existing employees or external candidates. Seniority at Denver Health and sheer number of years of experience are not significant factors in hiring or promotion.

The duties of a Clinical Social Work Supervisor differ substantially from those of a Clinical Social Worker. Therefore, the fact that a Clinical Social Worker performs well in that non-supervisory role does not necessarily mean that he or she would be a good selection for a Clinical Social Work Supervisor position.

In the spring of 2007, Mr. Bradley and several other individuals applied for the position being vacated by Ms. Mann. A panel composed of Ms. Lenander, Ms. Classick, Ms. Hannon, and Ms. Mann interviewed each of the applicants in May of that year. The panel asked all of the applicants the same interview questions, and afterwards the panel members discussed the applicants' strengths and weaknesses. While she took into consideration the opinions expressed by the other interviewers, Ms. Lenander had final decision-making authority.

All four interviewers agreed that Sara Schwab, a Denver Health Clinical Social Worker, was the best candidate for the school-based supervisor job. Ms. Classick and Ms. Lenander did not believe Mr. Bradley was qualified for the job, and Ms. Mann did not think him to be even a close competitor. As a result, Ms. Schwab received the promotion over Mr. Bradley. Mr. Bradley's complaint does not challenge the decision to promote Ms. Schwab instead of Mr. Bradley.

In the fall of 2007, all three supervisor positions became open as a result of the resignations of Ms. Classick, Ms. Hannon, and Ms. Schwab. Mr. Bradley applied for all three positions. Mr. Bradley and most of the other applicants were each interviewed by a panel composed of Ms. Lenander, Ms. Hannon, and Ms. Schwab. The panel asked each of these candidates the same interview questions. At the end of the process, Ms. Lenander selected Kaelynn Eaton and Amanda Loehr, both licensed Clinical Social Workers at Denver Health, to fill the hospital-based supervisor positions. All four interviewers agreed with the decision.

Ms. Lenander claims that Mr. Bradley was not selected because he was not suited for a supervisor position, was not the best candidate, and provided less appealing interview answers. Ms. Lenander claims that Ms. Eaton and Ms. Loehr were the best qualified candidates for the hospital-based supervisor positions because of their involvement in the department, their experience, their enthusiasm, and their interview answers.

Ms. Lenander decided to hire Jennifer Koch to fill the school-based supervisor position being vacated by Ms. Schwab. Because Ms. Koch applied after Ms. Hannon and Ms. Schwab had left Denver Health, they did not interview Ms. Koch. Instead, Ms. Lenander conducted the interview joined by Ms. Eaton and Ms. Loehr, who had not yet officially taken their newly-assigned supervisor positions. Although Ms. Eaton and Ms. Loehr did not interview other candidates and, therefore, had no point of reference, they both expressed the opinion that Ms. Koch appeared to be an excellent candidate for the school-based supervisor position. Ms. Lenander claims that Ms. Koch's experience, enthusiasm, and performance in the interview made her a better candidate for the school-based supervisor position than Mr. Bradley.

In the fall of 2007, Ms. Lenander was fifty-seven years old, Mr. Bradley was fifty-three years old, Ms. Eaton was thirty-two years old, Ms. Loehr was thirty-two years old, and Ms. Koch was thirty-six years old. Mr. Bradley claims that the decisions to hire or promote Ms. Eaton, Ms. Loehr, and Ms. Koch were motivated by discrimination against Mr. Bradley based on his gender and/or age. However, Mr. Bradley admits that, other than thehiring practices, he has not witnessed overt signs of discrimination against men or older individuals. Denver Health claims that none of the decision-makers knew the ages of the candidates and, in any event, neither gender nor age was a factor in filling the supervisor openings. In fact, Denver Health claims to have made promotion decisions that belie Mr. Bradley's accusations, including the promotion to supervisor of: Randall Yarbrough, a fifty-three-year-old male, in 2001; Carol Lewis, a fifty-three-year-old woman in 1998; and Teri Classick, a fifty-five-year-old woman,...