Katz v. City of Aurora

Decision Date18 February 2000
Docket NumberNo. CIV.A. 99-S-1047.,CIV.A. 99-S-1047.
Citation85 F.Supp.2d 1012
PartiesMichael KATZ, Plaintiff, v. CITY OF AURORA and Verne R. Saint Vincent, Defendants.
CourtU.S. District Court — District of Colorado

Richard Stephen Shaffer, Law Office of Richard S. Shaffer, PC, Aurora, CO, for plaintiff.

Peter Ruben Morales, Charles H. Richardson, Office of the Aurora City Attorney, Aurora, CO, Timothy P. Schimberg, Fowler, Schimberg & Flanagan, PC, Denver, CO, for defendants.


SPARR, District Judge.

THIS MATTER comes before the court on the Recommendation of United States Magistrate Judge Coan that Defendants' Motion to Dismiss (filed August 31, 1999) be granted and that all of Plaintiff's claims be dismissed. The Recommendation was filed on January 20, 2000 and served on the parties by mail on January 20, 2000. On January 31, 2000, Plaintiff filed his "Objection to Magistrate Judge's Recommendation Regarding Motion to Dismiss." Defendants have not filed any objections to the Recommendation. The court must make a de novo determination of those portions of the proposed findings or recommendations to which specific objection is made. 28 U.S.C. § 636(b)(1); Fed. R.Civ.P. 72(b). The court has reviewed de novo the Complaint (filed June 4, 1999), Defendants' Motion, Plaintiff's Response (filed September 23, 1999), Defendants' Reply (filed October 22, 1999), the Recommendation, Plaintiff's Objections, the entire case file, the exhibits and affidavits, and the applicable law and is sufficiently advised in the premises.

I. Standard of Review

If, on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56...." Fed.R.Civ.P. 12(b); see also Wheeler v. Hurdman, 825 F.2d 257, 260 (10th Cir.), cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 501 (1987) (citing Nichols v. United States, 796 F.2d 361, 364 (10th Cir.1986)). Because both parties submitted and she considered materials outside the pleadings, Magistrate Judge Coan treated and this court will treat Defendants' motion as one for summary judgment under Fed.R.Civ.P. 56.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991). The moving party bears the initial burden of showing that there is an absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, Okl., 942 F.2d 737, 743 (10th Cir.1991). A "material" fact is one that might affect the outcome of the suit under the governing law. An issue of material fact is genuine if a reasonable jury could return a verdict for the nonmovant. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The movant need not negate the nonmovant's claim, but need only point to an absence of evidence to support the nonmovant's claim. Celotex, 477 U.S. at 325, 106 S.Ct. 2548; John Hancock Mut. Life Ins. Co. v. Weisman, 27 F.3d 500, 503 (10th Cir.1994); Universal Money Centers, Inc. v. American Tel. & Tel. Co., 22 F.3d 1527, 1529 (10th Cir.), cert. denied, 513 U.S. 1052, 115 S.Ct. 655, 130 L.Ed.2d 558 (1994). If the moving party meets this burden, the non-moving party may not rest upon its pleadings, but must come forward with specific facts showing that there is a genuine issue for trial as to the elements essential to the non-moving party's case. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

In applying the summary judgment standard, the court construes the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Blue Circle Cement, Inc. v. Board of County Com'rs. of County of Rogers, 27 F.3d 1499, 1503 (10th Cir.1994); Deepwater Investments, Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). However, the mere existence of some alleged factual dispute will not defeat an otherwise properly supported motion for summary judgment. FDIC v. Hulsey, 22 F.3d 1472, 1481 (10th Cir.1994) (emphasis in original). "[T]he relevant inquiry is `whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Bingaman v. Kansas City Power & Light Co., 1 F.3d 976, 980 (10th Cir.1993) (quoting Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505).

II. Analysis

Plaintiff asserts three claims for relief in his Complaint: (1) disparate treatment on the basis of age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("the ADEA"); (2) violation of 42 U.S.C. § 1983 for maintaining a sexual harassment policy that unconstitutionally denied Plaintiff due process and equal protection; and (3) a state law tort claim for intentional infliction of emotional distress. Magistrate Judge Coan recommends dismissal of all three of Plaintiff's claims.

A. First, Magistrate Judge Coan recommended that summary judgment be granted on Plaintiff's First Claim for Relief under the ADEA because Plaintiff's EEOC charge of discrimination was untimely.

A plaintiff must exhaust certain administrative remedies in order to file an ADEA claim in federal court. 29 U.S.C. § 626(d). As a prerequisite to commencing this civil action for age discrimination, Plaintiff was required to file his ADEA claim with the Equal Employment Opportunity Commission or the Colorado Civil Rights Division within 300 days after the alleged unlawful practice occurred. 29 U.S.C. § 626(d)(2).

A cause of action accrues under the ADEA "on the date the employee is notified of an adverse employment decision." Gray v. Phillips Petroleum Co., 858 F.2d 610, 613 (10th Cir.1988) (citation omitted). "Generally, an employee is notified of an adverse employment decision when a particular event or decision is announced by the employer." Gray, 858 F.2d at 614. Magistrate Judge Coan found that, for purposes of filing a timely EEOC charge, Plaintiff knew of the challenged adverse employment decision (his demotion) no later than June 4, 1996. In order for Plaintiff's EEOC charge to have been timely, it must have been filed no later than March 31, 1997. Plaintiff filed his EEOC charge on April 1, 1997.

Plaintiff objects to the Magistrate Judge's reliance on a letter written by Plaintiff as evidence of the date Plaintiff knew of the demotion. (Exhibit 1 to Plaintiff's Objection p. 1). Plaintiff asserts that other more reliable evidence in the record demonstrates that Plaintiff did not know of his demotion until June 6, 1996. (Exhibit 2 to Plaintiff's Objection pp. 33-34). Plaintiff also asserts that he "erred" in Exhibit 1 "as to the date he learned the final decision." (Plaintiff's Objection p. 2).

The court may properly disregard paragraph 1 of Plaintiff's September 22, 1999 affidavit because it is so plainly inconsistent with Plaintiff's own prior statements. To allow Plaintiff "to preclude summary judgment simply by contradicting his own prior statements would seriously impair the utility of Federal Rule of Civil Procedure 56." Sinskey v. Pharmacia Ophthalmics, Inc., 982 F.2d 494, 498 (Fed.Cir. 1992), cert. denied, 508 U.S. 912, 113 S.Ct. 2346, 124 L.Ed.2d 256 (1993). Parties to a motion for summary judgment cannot create sham issues of fact in an effort to defeat summary judgment. See Fast v. Southern Union Co., Inc., 149 F.3d 885, 892 n. 7 (8th Cir.1998) ("only in circumstances ... where the conflicts between the deposition and affidavit raise ... sham issues should summary judgment be granted"); Sinskey, 982 F.2d at 498 ("party cannot create an issue of fact by supplying an affidavit contradicting his prior deposition testimony, without explaining the contradiction or attempting to resolve the disparity"). But see Leslie v. Grupo ICA, 198 F.3d 1152, 1999 WL 1093118 (9th Cir.1999) ("a sworn affidavit is not a `sham' merely because it contradicts unsworn letters").

Plaintiff's affidavit and later contention that he "erred" in his letter (Exhibit 1 to Plaintiff's Objection) do not explain or clarify his prior inconsistent statement. Rather, Plaintiff's affidavit flatly contradicts his earlier statement in an attempt to create an issue of fact and avoid summary judgment.

Plaintiff's statement in paragraph 1 of his affidavit is internally inconsistent as well, inasmuch as he states that he wrote his letter of resignation on June 6, 1996, but he was not provided the final decision regarding his demotion until "June 6, 1996, or June 7, 1996." (Katz Affidavit, Exhibit 4 to Plaintiff's Response to Defendant's Motion to Dismiss ¶ 1) (emphasis added). Plaintiff could not have written his June 6, 1996 letter if he did not know of the final decision until June 7, 1996.

The court finds that the evidence supports Magistrate Judge Coan's finding that Plaintiff knew of his demotion no later than June 4, 1996. See Exhibit 1 to Plaintiff's Objection p. 1; Exhibit 2 to Plaintiff's Objection pp. 32-33; Complaint ¶ 24. Because the evidence supports the finding that Plaintiff knew of his demotion no later than June 4, 1996, Plaintiff's EEOC charge filed April 1, 1997 was untimely. Therefore, Defendants are entitled to summary judgment on Plaintiff's First Claim for Relief.

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