Jackson v. City and County of Denver

Decision Date26 August 2008
Docket NumberCivil Action No. 06-cv-01430-WDM-CBS.
Citation628 F.Supp.2d 1275
PartiesDebra R. JACKSON, Plaintiff, v. CITY AND COUNTY OF DENVER, a body politic and corporate of the State of Colorado, acting by and through its agency Denver Department of Human Services, Donna Hamburg, in her official capacity, and Deidre Grayson, in her official capacity, Defendants.
CourtU.S. District Court — District of Colorado

Debra R. Jackson, Amarillo, TX, pro se.

Niels Loechell, Denver City Attorney's Office-Human Services, Denver, CO, for Defendants.


MILLER, District Judge.

This case is before me on the recommendation of Magistrate Judge Craig B. Shaffer (Docket No. 70) that Defendants' Motion for Summary Judgment (Docket No. 58) be granted. Plaintiff did not file an objection to the recommendation and, therefore, is not entitled to de novo review. 28 U.S.C. § 636(b); Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1462 (10th Cir.1988). I have reviewed the pertinent portions of the record, including the motion, the response, the reply, and the recommendation of Magistrate Judge Shaffer. For the reasons that follow, the recommendation shall be accepted.


Plaintiff is an African American female and was born on January 3, 1952. She began her employment with Defendant Department of Human Services ("DDHS" or "Defendant"1) beginning in April 2002 when she accepted a promotion from her position in another department. Jackson's position at DDHS was that of Administrative Support Assistant ("ASA") IV in the Family and Children's Services Department. During Plaintiff's employment in that position, she alleges that in December 2002 she filed an intake application with the Equal Employment Opportunity Commission ("EEOC") relating to hostile work environment and disability discrimination. She did not, however, file a formal charge. Additionally, Plaintiff filed two internal grievances with DDHS in February 2003 regarding a written reprimand she received on January 24, 2003. Then, in November 2003, Plaintiff filed another internal grievance regarding disciplinary action.

In July 2004, due to an 8.2 million reduction in funding from the state of Colorado and the restructuring of services due to the implementation of a new human services database, Defendant was forced to lay off some of its employees. To identify which positions would be eliminated, Defendant used the following criteria: (1) preserve customer service by eliminating non-case carrying positions rather than case carrying positions which directly served clients; (2) maintain a consistent supervisor to supervisee ratio; (3) maintain program functions mandated by law; and (4) determine whether a non-mandated program was losing money. The analysis was done based on the position title rather than on the employee name. Once the positions to be eliminated were identified, seniority determined the specific employees in that position who would be laid off.

Plaintiff's position, the only ASA IV in her department, was one of the positions eliminated. However, based on Defendant's lay off procedures, Plaintiff was given the option of accepting a demotion to ASA III in lieu of lay off. Plaintiff accepted this option on July 16, 2004, thereby "bumping" into the lay off category the person with the least seniority who previously occupied the ASA III position. The person "bumped" was Angela Johnson, a Caucasian employee. Plaintiff appealed her demotion in July 2004 but the demotion in lieu of lay off was upheld. Plaintiff alleges that although she was demoted, she continued to do the same work as she had done before, but with less compensation. Ultimately, sixty-six employees were affected by the lay offs, either by being laid off, being demoted in lieu of lay off, or retiring in lieu of lay off. Of the sixty-six employees affected, thirty-one were Caucasian, twenty-two were Hispanic, twelve were African American, and one was Asian.

Plaintiff continued in her ASA III position with Defendant until October 24, 2006 when she resigned. She subsequently filed a charge of discrimination with the Colorado Civil Rights Division on December 16, 2004 alleging discrimination based on "race/color (African American) and/or age, 52 (d.o.b. 1/3/52)" and including claims of disparate treatment and hostile work environment. (See Pl.'s Ex. 2 (Docket No 63-2).) The Colorado Civil Rights Division determined that there was not sufficient evidence to support Plaintiff's charge of discrimination and the EEOC mailed a notice of right to sue to Plaintiff on April 19, 2006. Plaintiff picked up this notice from her mailbox on April 24, 2006 although she admits that it may have arrived on April 22, 2006. Plaintiff filed this lawsuit on July 24, 2006.

Standard of Review

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56. A factual issue is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "When applying this standard, [the court] view[s] the evidence and draws reasonable inferences therefrom in the light most favorable to the nonmoving party." Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999) (citing Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir.1998)).

Where "the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by 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)). Then, "[t]o avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case." Id. (citing Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir.1994)). "[T]he nonmovant is given `wide berth to prove a factual controversy exists.'" MacKenzie v. Denver, 414 F.3d 1266, 1273 (10th Cir.2005) (quoting Jeffries v. Kan. Dep't of Soc. & Rehab. Servs., 147 F.3d 1220, 1228 (10th Cir.1998)). A mere scintilla of evidence, however, is not sufficient to create a genuine issue of material fact and survive summary judgment. Simms, 165 F.3d at 1326 (quoting Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir.1997)). "Unsupported conclusory allegations ... [also] do not create an issue of fact." MacKenzie, 414 F.3d at 1273 (citing Salehpoor v. Shahinpoor, 358 F.3d 782, 789 (10th Cir.2004)).

A plaintiff alleging employment discrimination may prove intentional discrimination directly or indirectly. As is typical, this case is brought under the indirect analysis set forth in McDonnell Douglas Corp. v. Green, which provides a burden-shifting framework for assessing indirect, or circumstantial, evidence. 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see generally St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-08, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir.2000).

Under the McDonnell Douglas framework, the plaintiff bears the initial burden of presenting a prima facie case of discrimination. Kendrick, 220 F.3d at 1226. The essential purpose of the prima facie test is to eliminate "the most common nondiscriminatory reasons for" the employment action. See id. at 1227 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)); see also St. Mary's Honor Ctr., 509 U.S. at 506, 113 S.Ct. 2742 (prima facie case "in effect creates a presumption that the employer unlawfully discriminated against the employee") (quoting Burdine, 450 U.S. at 254, 101 S.Ct. 1089) (alteration in quoted material). If the plaintiff establishes a prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason" for its action. Kendrick, 220 F.3d at 1226 (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). If the defendant presents such a reason, the plaintiff bears the "ultimate burden" of showing that these proffered reasons are a pretext for unlawful discrimination. Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1167 (10th Cir.2000).

To show pretext, a plaintiff must demonstrate that the defendant was more likely motivated by a discriminatory reason or that its proffered reason "is unworthy of credence." Id. (quotation omitted). Three typical methods of showing pretext are: (1) evidence that the defendant's stated reason for the adverse action was false; (2) evidence that the defendant acted contrary to a written company policy prescribing the action to be taken under the circumstances; or (3) evidence that defendant acted contrary to an unwritten policy or practice when making the adverse decision. Kendrick, 220 F.3d at 1230. Pretext may be shown "`by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.'" Rivera v. City & County of Denver, 365 F.3d 912, 925 (10th Cir.2004).


In this case, Plaintiff brings six claims: (1) discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq.; (2) retaliation in violation of Title VII; (3) discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq.; (4) discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq.; (5) violation of...

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