Dalton v. Millice Enters., LLLP
| Decision Date | 12 March 2015 |
| Docket Number | Civil Action No. 13-cv-02596-PAB-BNB |
| Parties | KEITH DALTON, Plaintiff, v. MILLICE ENTERPRISES, LLLP and CHERRY CREEK CLUB, LLC, d/b/a Cherry Creek Athletic Club, Defendants. |
| Court | U.S. District Court — District of Colorado |
ORDER
This matter is before the Court on defendants' Motion for Summary Judgment [Docket No. 28]. Plaintiff asserts four claims for relief: race discrimination under both federal and Colorado law, retaliation, and wrongful termination. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
Plaintiff was born on November 26, 1962. Docket No. 35 at 1, ¶ 1. In February 2007, Plaintiff began working for defendant Cherry Creek Athletic Club ("CCAC") as a personal trainer. Docket No. 28 at 2, ¶ 1. In June 2008, plaintiff moved to a position as a sales associate. Id. ¶ 2. Between June 2008 and December 2010, plaintiff was never made aware of any complaints about his performance. Docket No. 35 at 1-2, ¶ 4.
In September 2010, plaintiff began working under a new supervisor, Jennifer Keuber. Docket No. 28 at 2, ¶ 3. According to plaintiff's affidavit, Ms. Keuber oftenmade derogatory comments about older employees and members and encouraged sales associates to focus on signing up younger members. Docket No. 35 at 4, ¶ 6(f). Ms. Keuber frequently commented that plaintiff was a "good 'ol boy," and at one point threatened to force plaintiff to take an Aqua Aerobics class. Id. ¶ 6(e).
On November 12, 2010, Ms. Keuber claimed she received a telephone call from a prospective CCAC member who claimed that, during a phone conversation with plaintiff, plaintiff abruptly hung up the phone after the prospective member said that he was not interested in joining the club. Docket No. 28 at 2-3, ¶ 4. In late November, 2010, Ms. Keuber claims that plaintiff, while working with a couple on a prospective membership, left the couple to discuss the membership on their own and told them to "come and get [him] when you're ready." Id. at 3, ¶ 5. On December 4, 2010, a CCAC member named Elizabeth Metz complained of an interaction that plaintiff had with her husband. Id. ¶ 6; see also Docket No. 28-2 at 1. Ms. Metz described plaintiff as "discourteous." Id. Regarding this incident, plaintiff claims that he was enforcing CCAC's written guest pass policy, and that Ms. Metz's husband had been attempting to use an invalid guest pass to gain free entry into CCAC. Docket No. 35 at 9-10, ¶ 7(c). On December 7, 2010, plaintiff received a written warning (the "December 7 warning") for unprofessional conduct with members, citing the three above-described incidents. See Docket No. 28-1 at 1; Docket No. 35 at 9.
On June 29, 2011, prospective member Anne Bachmann wrote to CCAC's general manager about a "negative encounter" with plaintiff. Docket No. 28-4 at 1. Ms. Bachmann, a former member, complained that when she and her partner inquired about re-joining CCAC, plaintiff "shoved" a price card "under [their] noses," did notprovide a tour or other information, and was "condescending" when she inquired about the age limit for student rates. Id. Regarding this incident, plaintiff's affidavit states that Ms. Bachmann and her partner were angry that plaintiff refused to bend CCAC rules and policy and attempted in various ways to obtain discounts to which they were not entitled, which included requesting a discount for married couples even though the couple could not prove they were married, asking for student pricing even though Ms. Bachmann was older than 24, the maximum allowable age for that discount, and asking for a senior discount although Ms. Bachmann was younger than the required age. Docket No. 35 at 11, ¶ 8(a). On July 4, 2011, defendants claim that a recently-divorced former member complained that plaintiff was rude to her when she attempted to set up her own individual membership. Docket No. 28 at 4, ¶ 11. According to defendants, plaintiff informed the former member that she should have adjusted her membership before her divorce. Id. Plaintiff admits that the interaction took place and claims that the customer was upset because he did not have the authority to waive CCAC's initiation fee. Docket No. 35 at 12, ¶ 8(b). On July 11, 2011, according to defendants, another member contacted CCAC's general manager to complain that plaintiff had made promises that were never delivered, and asked to cancel his membership. Docket No. 28 at 5, ¶ 12. On June 30, 2011, another sales associate, Ms. May, informed CCAC management in a resignation letter that "a write up given to [plaintiff] was false." Docket No. 35-13 at 1. According to plaintiff, CCAC never investigated the false writeup.
CCAC terminated plaintiff on July 13, 2011. Docket No. 28 at 5, ¶ 13. Plaintiff received a termination notice that listed the June 29, July 4, and July 11 incidents, aswell as the three incidents referred to in the December 7 warning, as grounds for his termination. See Docket No. 28-6. Although Ms. Keuber informed sales associates that the decision to terminate plaintiff was made by general manager Dennis Bachman, Mr. Bachman wrote to Ms. Keuber that he was "very surprised" to hear this. Plaintiff states that the decision to terminate plaintiff was Ms. Keuber's alone. See Docket No. 35-3.
Plaintiff brings claims for violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., the Colorado Anti-Discrimination Act, Colo. Rev. Stat. ¶ 24-34-401 et seq., retaliation, and wrongful termination.
Summary judgment is warranted under Fed. R. Civ. P. 56 when the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is "material" if, under the relevant substantive law, it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
However, "[w]hen, as in this case, the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stageby identifying a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998)) (internal quotation marks omitted). "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The nonmoving party may not rest solely on the allegations in the pleadings, but instead must designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324; see Fed. R. Civ. P. 56(e). "To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case." Bausman, 252 F.3d at 1115 (citing Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994)). "In applying this standard, we view all facts and any reasonable inferences that might be drawn from them in the light most favorable to the nonmoving party." Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994).
The ADEA prohibits employers from discriminating against any "individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). It protects employees who are fortyyears of age or older. Id. at 631(a). The ADEA requires "but-for" causation, meaning that a plaintiff claiming age discrimination must establish by a preponderance of the evidence that, but for his age, his employer would not have taken the adverse action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009). However, "Gross does not disturb longstanding Tenth Circuit precedent by placing a heightened evidentiary requirement on ADEA plaintiffs to prove that age was the sole cause of the adverse employment action." Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1278 (10th Cir. 2010). A plaintiff may prove discrimination indirectly, using the McDonnell Douglas three-part burden-shifting framework. Hysten v. Burlington N. & Santa Fe Ry. Co, 296 F.3d 1177, 1180 (10th Cir. 2002); see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Jones, 617 F.3d at 1278 (). As plaintiff does not offer direct evidence of discrimination, the Court will apply the McDonnell Douglas framework to his claims.1
At step one of the McDonnell Douglas inquiry, a plaintiff must establish a prima facie case by showing that "(1) he is within the protected age group; (2) he was doing satisfactory work; (3) he was discharged; and (4) his position was filled by a younger person." Rivera v. City & Cnty. of Denver, 365 F.3d 912, 920 (10th Cir. 2004) (citing McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998)). If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the defendantemployer to show that it had a legitimate, nondiscriminatory reason for its adverse employment action. Sandoval v. City of Boulder, Colo., 388 F.3d 1312, 1321 (10th Cir. 2004). If the defendant puts forward a legitimate reason, the Court must grant the defendant summary judgment,...
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