Bragg v. Office Of The Dist. Attorney

• Decision Date: 16 July 2009
• Docket Number: Civil Action No. 07-cv-00324-CMA-MJW.
• Citation: 704 F.Supp.2d 1032
• Parties: Paula D. BRAGG, an Individual, Plaintiff,v.OFFICE OF THE DISTRICT ATTORNEY, THIRTEENTH JUDICIAL DISTRICT, Defendant.
• Court: U.S. District Court — District of Colorado

704 F.Supp.2d 1032

Paula D. BRAGG, an Individual, Plaintiff,v.OFFICE OF THE DISTRICT ATTORNEY, THIRTEENTH JUDICIAL DISTRICT, Defendant.

Civil Action No. 07-cv-00324-CMA-MJW.

United States District Court,

D. Colorado.

July 16, 2009.

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Steven L. Murray, Steven L. Murray, Attorney at Law, Denver, CO, for Plaintiff.

Josh Adam Marks, Kathleen Teresa Alt, Berg Hill Greenleaf & Ruscitti, LLP, Boulder, CO, for Defendant.

ORDER ON MOTION FOR SUMMARY JUDGMENT

CHRISTINE M. ARGUELLO, District Judge.

This matter is before the Court on Defendant's Motion for Summary Judgment. (Doc. # 55.) For the following reasons, the Motion is GRANTED IN PART AND DENIED IN PART.

INTRODUCTION

This is an employment discrimination and retaliation lawsuit. Plaintiff worked for Defendant from January 1, 1987, through April 7, 2006. When she resigned in 2006, she worked as Defendant's Director of Victim Services. Plaintiff alleges that Defendant, and more specifically, certain of Defendant's employees, including Stephen Jones, Robert Watson, and Linda Holloway, retaliated against her for protected activities, made her working conditions so hostile that she felt compelled to resign, discriminated against her on the basis of her gender, and breached an employment contract created by Defendant's policy manual. Defendant moves for summary judgment on each of Plaintiff's claims on various grounds including: Eleventh Amendment immunity, failure to exhaust administrative remedies, untimeliness, failure to allege a sufficiently hostile work environment, and failure to allege an adverse employment action.

FACTUAL BACKGROUND

The Court derives the following facts from the record, including allegations admitted in the pleadings, the parties' summary judgment briefing, and the summary judgment exhibits.¹ The facts are undisputed unless otherwise noted.

I. THE PARTIES

Defendant is the District Attorney's Office for the 13th Judicial District, which comprises seven Colorado counties.² Plaintiff began working for Defendant on January 1, 1987. She started as administrator for the victim compensation and Victim's Assistance and Law Enforcement Programs. Sometime between 1993 and 1995 she became the Director of Victim Services. As Director she again administered the victim compensation and Victim's Assistance and Law Enforcement Programs, and also ensured compliance with victims' rights legislation, wrote grant proposals, counseled victims of criminal acts, advocated for crime victims in court, and supervised victim rights staff. During her tenure with Defendant, Plaintiff worked at two separate office locations in Ft. Morgan, Colorado-prior to 2005, she worked at an office on Railroad Avenue, after 2005 she worked at 220 Prospect in a building that Defendant leased from SHARE, a non-profit group. By the time she left Defendant in 2006, Plaintiff was the highest-ranking, non-attorney, female employee in Defendant's organization.

II. PLAINTIFF'S RELATIONSHIP WITH STEVE JONES

Much of Plaintiff's allegations concern Mr. Jones, an attorney employed by Defendant. Mr. Jones began working for Defendant as a deputy district attorney in June 2002. When Mr. Watson was elected District Attorney in January 2005, he promoted Mr. Jones to Assistant District Attorney, the second-highest ranking attorney in Defendant's organization.³ Although Mr. Watson directly supervised Plaintiff, Mr. Jones also had some degree of supervisory authority over Plaintiff, but the parties dispute the exact amount of authority. Neither Mr. Jones nor Mr. Watson worked in the same physical location as Plaintiff; Mr. Watson worked in Sterling, Colorado, and Mr. Jones worked in a different office in Ft. Morgan. However, Plaintiff often met with attorneys, including Mr. Jones, and other employees of Defendant at their offices or at her own office.

A December 2003 and January 2004 Events

Mr. Jones' relationship with Plaintiff proved interesting (and controversial) from the start. Sometime after Mr. Jones began working for Defendant in 2002, he and Plaintiff began to discuss Mr. Jones' personal life, especially the details of his wife's illness and his family life. The two had at least one lengthy meeting of around an hour, but also talked on other occasions in his or another office by the Ft. Morgan courtrooms, and in phone conversations that lasted between thirty and sixty minutes. Plaintiff alleges that the conversations made her uncomfortable, but that she did not initially mention her discomfort to Mr. Jones. She did, however, attempt to terminate the discussions by telling Mr. Jones that she had “a meeting,” or “work to do.” In December 2003, the tenor of the conversations changed and Mr. Jones began to express a personal or sexual interest in Plaintiff. Plaintiff contends that did she not return Mr. Jones' amorous interest, but Mr. Jones contends that it was actually Plaintiff who pursued an intimate relationship.

Regardless of who was pursuing whom, Plaintiff and Mr. Jones continued to engage in conversations (face-to-face and telephone) after business hours in December 2003 and January 2004. Mr. Jones mostly discussed himself and his personal life, including his wife's death, and his kids. Plaintiff did not talk much during the conversations, but she tried to help Mr. Jones through his family issues with advice based on her own experience with a sick husband. At some point, she mentioned to him that the conversations made her uncomfortable, although when she first mentioned this fact to Mr. Jones, Mr. Adams, or other co-workers is unclear.⁴

Plaintiff contends that she “would ask him to stop” and “was feeling uncomfortable with the discussion,” but Mr. Jones would not “take no for an answer.” A pivotal event in relationship came after the office Christmas party in December 2003. Plaintiff and Mr. Jones went to a bar because Plaintiff wanted to discuss Mr. Jones' interactions with her. She also wanted to discuss rumors she had heard floating around the office to the effect that Mr. Jones had been talking about a romantic relationship between Plaintiff and himself. According to Plaintiff, she and Mr. Jones did nothing but discuss the propriety of their relationship at the bar, and she continued to reject his romantic advances. Conversely, Mr. Jones later told employees of a more physical encounter that evening.

In any event, Mr. Jones' romantic pursuit continued, despite Plaintiff's January 2004 request that he stop flirting with her and making sexual comments about her. For example, in January 2004, Mr. Jones called Plaintiff and then mysteriously appeared at the shopping center where Plaintiff was grocery shopping. When Plaintiff asked Mr. Jones how he knew what she was doing and where she was, Mr. Jones responded, “I know a lot of things.” Also in January 2004, Mr. Jones asked Plaintiff to accompany him on a personal trip to visit Mr. Jones' relatives. Plaintiff demurred and Mr. Jones stated that he would pay Plaintiff to accompany him.

B Mid-2004 and 2005 Events

Although the parties dispute the reasons,⁵ both sides agree that after January 2004, conversation between Mr. Jones and Plaintiff decreased. Matters between them seemed to improve; however, any improvement was short-lived. At some point in late 2004 or early 2005, Mr. Jones bragged to another lawyer, Patrick Costigan, that he had sex with Plaintiff sometime in 2003, and that the pair had gotten physically intimate after the 2003 Christmas party in a vehicle provided to Plaintiff by Defendant. Mr. Jones then retracted his statements regarding a sexual relationship with Plaintiff, but the details of that evening remain unsettled.⁶

The problems with their personal relationship strained working relations between Mr. Jones and Plaintiff, as well. Plaintiff alleges that subsequent to January 2004, Mr. Jones quit working with Plaintiff and her department in the same positive manner that he had previously employed. Beginning in 2005, Plaintiff contends that Mr. Jones stopped communicating with her department. She states that “He mainly just didn't want to work with advocates. He thought they were a nuisance in his way.” In contrast, Mr. Jones had been “fairly cooperative” with victim advocates prior to the spoiled relationship between Mr. Jones and Plaintiff. Mr. Jones' uncooperative attitude towards the victim advocates spread to other employees in the office. For example, at an early 2005 training seminar Plaintiff put on for Defendant's staff, Plaintiff noticed an “obvious” difference in treatment by the attorneys which she attributed to Mr. Jones' influence because he was sitting in the front row of the seminar.

A dispute over one case in April 2005, exemplified the problems between Plaintiff and Mr. Jones, and led to a particularly heated conversation between them. The pair had a disagreement about how to handle a situation involving a domestic violence victim who was threatening to file a complaint against Defendant. Plaintiff contends that Mr. Jones, the supervising attorney on the case, was not returning the victim's phone calls, so Plaintiff stepped in to answer some of the victim's questions. After discussing the case with the victim,⁷ Plaintiff told the victim to call Mr. Jones. Shortly thereafter, Mr. Jones received a voicemail message from the victim that raised his ire. He angrily called Plaintiff and told her that she was wrong in talking with the victim and she had been “disloyal” and “devious” in speaking to the victim about case strategy. Mr. Jones then said that he did not want Plaintiff working on any of his cases. Plaintiff attributed Mr. Jones' response to the situation to her purported rejection of his physical advances in the previous year.

She complained to Mr. Watson about the situation and the three attempted to work through the issue. Plaintiff told Mr....