English v. Colorado Dept. of Corrections

• Decision Date: 26 April 2001
• Docket Number: PLAINTIFF-APPELLANT,No. 99-1452,DEFENDANTS-APPELLEES,99-1452
• Citation: 248 F.3d 1002
• Parties: (10th Cir. 2001) LEE C. ENGLISH,, v. COLORADO DEPARTMENT OF CORRECTIONS AND ARISTEDES ZAVARAS, IN HIS OFFICIAL CAPACITY,
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1002

248 F.3d 1002 (10th Cir. 2001)

LEE C. ENGLISH, PLAINTIFF-APPELLANT, v. COLORADO DEPARTMENT OF CORRECTIONS AND ARISTEDES ZAVARAS, IN HIS OFFICIAL CAPACITY, DEFENDANTS-APPELLEES.

No. 99-1452

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

April 26, 2001

Appeal from the United States District Court for the District of Colorado (D.C. No. 97-B-429) [Copyrighted Material Omitted] William S. Finger, Frank & Finger, Evergreen, Colorado, for the Plaintiff-Appellant.

Stacy L. Worthington, Assistant Attorney General (Ken Salazar, Attorney General and A.A. Lee Hegner, Special Counsel, on the brief), Denver, Colorado, for Defendants-Appellees.

Before Ebel, Mckay and Lucero, Circuit Judges.

Ebel, Circuit Judge

Plaintiff-Appellant Lee C. English ("English") asks the court to reverse the district court's grant of summary judgment in favor of the Colorado Department of Corrections and Aristedes Zavaras (collectively "the DOC") with respect to his workplace discrimination claims under 42 U.S.C. §§ 1981, 1983, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a), and 2000e-3(a). The district court dismissed English's claims based on its finding that he failed to proffer direct evidence of discrimination and that he failed to allege evidence supporting a prima facie case of discrimination under the burden-shifting approach first articulated in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-804 (1973). Although we now hold that English has succeeded in presenting evidence sufficient to make out a prima facie case of discrimination, we hold that he failed to put forth sufficient evidence to show that the DOC's proffered legitimate nondiscriminatory reason for his termination was pretextual, and we therefore AFFIRM the district court's entry of summary judgment on his workplace discrimination claims. However, we REVERSE the district court's order of costs in favor of the DOC under 28 U.S.C. § 1920.

I. BACKGROUND

English was employed for approximately fourteen years as a guard within the DOC, rising to the rank of Correctional Supervisor at the DOC's Denver Reception and Diagnostic Center ("DRDC") prior to the events giving rise to this case. Several months prior to his termination, English participated in a federal lawsuit alleging systemic racial discrimination by the DOC. The lawsuit resulted in a settlement requiring the DOC to compensate the plaintiffs and to engage in certain institutional reforms.

English was fired by the DOC in September 1995. Prior to the DOC's action, an inmate at the DRDC named Jacqueline Bowen ("Bowen") alleged that English had twice had sexual relations with her in April 1995, once in an office within the DRDC and a second time in the DRDC's law library. On June 23, 1995, the Chief Investigator of the Department of Corrections assigned Ronny Smith ("Smith") and Annette Fucles ("Fucles") of the DOC's Criminal Investigation Division ("CID") to investigate the allegations. English has presented evidence that this investigative assignment represented a departure from traditional DOC procedures, and that ordinarily Leonard Foster, an African-American assigned as an investigator to the DRDC, would have handled the case.

Smith and Fucles interviewed Bowen and collected samples of the law library carpet which, based on Bowen's interview, they believed might contain semen or other bodily fluids. The investigators also spoke with several female inmates at the DRDC. One inmate said she saw English at the law library at approximately 1 p.m. on one of the dates in question, that he told her he was waiting for Bowen, and that she frequently saw English and Bowen together for about a two-week period. Two other inmates said that English had made sexually suggestive statements to them in the past. In addition, Bowen's cell mate at the DRDC said Bowen told her in April 1995 that she had sex with English, but that she herself had no first-hand knowledge of their interaction.

Eventually, Smith and Fucles advised the Denver Police Department ("DPD") of their findings, prompting it to initiate a criminal investigation into Bowen's allegations. The DPD conducted serology tests on the carpet swatches and confirmed the presence of semen on one of them. The DPD investigator in charge of the investigation then obtained a court order to draw blood from English for comparison with DNA isolated from the carpet. The DPD found that fluids taken from the carpet were consistent with English and with Bowen, and that the combination of genetic markers identified had an approximate distribution of 1 in 500,000 Caucasians and 1 in 2,000 African- Americans.

In addition, Bowen submitted to two polygraph examinations. The first, which was conducted by the Colorado Bureau of Investigation, suggested that Bowen withheld information when answering two questions about whether her accusations against English were truthful. English alleges that this information was never disclosed to DRDC Superintendent Mark McGoff ("McGoff"), who made the final decision to terminate English, and we assume the truth of his allegation for the purposes of summary judgment. The second polygraph examination was conducted by the DPD, and the examiner concluded that Bowen had been truthful in answering his questions.

On the basis of the evidence set forth above, the Denver District Attorney's office filed criminal sexual assault charges against English in August 1995.¹

DRDC Superintendent McGoff responded to the allegations first by putting English on administrative suspension pending completion of the CID and DPD investigations. A short time thereafter, McGoff notified English that he had scheduled a disciplinary meeting to review evidence of English's misconduct and to determine whether sanctions were appropriate. English attended two such meetings with his attorney. At the first, McGoff asked English if he could present any information rebutting or mitigating the evidence generated by the investigation. English, through his attorney, declined to make any statements explaining his position because of the pending criminal charges, and instead requested additional information about the evidence against him. At the second, McGoff provided the requested information and the parties debated its relevance and reliability. At that time, English offered to accept an unpaid leave of absence while he attempted to disprove the charges against him. This offer was refused.

English argues that the conduct of the investigation and a climate of racial intolerance which prevailed at the DRDC demonstrate that his termination was caused by racial discrimination. He notes that other African Americans at the DRDC received racial insults from co-workers and perceived an insensitivity to racial issues on the part of DRDC managers, including McGoff. At least one other participant in the prior discrimination lawsuit alleged that he was "blackballed and denied promotion" after it settled. Moreover, English points to numerous alleged inconsistencies and holes in the investigation against him. For example, English alleges that: (1) the investigators never spoke with him personally to get his version of events; (2) there are no records of him ever being alone with Bowen; (3) the investigators did not attempt to discover the identity of one potential witness; (4) had investigators checked, they would have learned that Bowen's description of his genitalia was inaccurate; (5) no attempt was made to determine whether English had access to a key to the law library; and (6) investigators did not inform McGoff that the first polygraph examination indicated Bowen was not being truthful.²

In addition, English points to circumstantial evidence that the investigation itself was conducted in a racially biased manner. To begin with, English infers that Foster, the African-American investigator based at the DRDC, was prevented from investigating this case so that other, biased investigators controlled by the DOC's central office could be assigned in his stead. Foster stated in his affidavit that he would have been assigned to the case in the routine course of events, but that his supervisor refused to do so because of the potential for conflicts of interest, despite the fact that he and English had only a "distant and neutral" relationship.³ Further, he asserts that the investigation was unusual because the DOC routinely drops investigations after an inmate fails a polygraph examination. Foster also states that the investigators' failure to get English's version of events was highly unusual, and that the DOC trained him to view obvious lapses in investigatory procedure as evidence of possible bias. Moreover, Foster alleges the DOC had targeted black employees with false complaints of misconduct in the past.

Finally, Foster says he knows of at least one instance in which a white female employee who was charged with having an inappropriate relationship with an inmate was not terminated or severely disciplined. McGoff, in his affidavit, responds by noting that he is aware of three white female employees of the DRDC who were accused of having a sexual relationship with a prisoner during his tenure, and that one was terminated and one resigned before disciplinary proceedings commenced against her. The third - a woman alleged to have kissed an inmate, to have sent money to an inmate, and to have met an inmate in a park - was investigated for approximately a year, but McGoff says he ultimately decided there was insufficient evidence to warrant disciplinary action.

English filed suit against the DOC alleging that it had retaliated against him for engaging in protected opposition to racial discrimination in violation of 42 U.S.C. § 2000e-3(a), and that it had intentionally discriminated against him on the basis of race in violation of 42 U.S.C. §§ 1981, 1983, and 2000e-2(a). The district court granted the DOC's motion for summary judgment on December 17, 1998,...