Luna v. City and County of Denver, Civ. A. No. 87-B-1380.

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtGeoffrey S. Wasson, Asst. City Atty., Denver, Colo., for defendants
Citation718 F. Supp. 854
Decision Date01 September 1989
Docket NumberCiv. A. No. 87-B-1380.
PartiesRolando R. LUNA, Plaintiff, v. CITY AND COUNTY OF DENVER, Department of Public Works, Stapleton International Airport, Jack W. Brennan, in his official capacity; Robert Storck, in his official capacity as Chief Construction Engineer, Stapleton International Airport; William E. Smith, in his official capacity as the Assistant Director of Aviation (Engineering), Stapleton International Airport; and Herb Abshire, in his official capacity as the Director, Career Service Authority, City and County of Denver, Defendants.

718 F. Supp. 854

Rolando R. LUNA, Plaintiff,
v.
CITY AND COUNTY OF DENVER, Department of Public Works, Stapleton International Airport, Jack W. Brennan, in his official capacity; Robert Storck, in his official capacity as Chief Construction Engineer, Stapleton International Airport; William E. Smith, in his official capacity as the Assistant Director of Aviation (Engineering), Stapleton International Airport; and Herb Abshire, in his official capacity as the Director, Career Service Authority, City and County of Denver, Defendants.

Civ. A. No. 87-B-1380.

United States District Court, D. Colorado.

September 1, 1989.


718 F. Supp. 855
COPYRIGHT MATERIAL OMITTED
718 F. Supp. 856
George C. Aucoin, Richard Hipp, Hackethal, McNeill and Aucoin, Lakewood, Colo., for plaintiff

Geoffrey S. Wasson, Asst. City Atty., Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

This matter is before the Court on defendants' motion for Partial Summary Judgment and Partial Judgment on the Pleadings pursuant to Fed.R.Civ.P. 56 and 12(c) respectively. Plaintiff Rolando R. Luna (Luna) alleges in his complaint that defendants discriminated against him based upon his national origin, Asian-American Filipino, when defendants failed to promote him and promoted instead an anglo. Defendants contend that summary judgment should be granted in their favor on Luna's claims under 42 U.S.C. § 1981 because those claims are barred by the Supreme Court's recent decision in Patterson v. McLean Credit Union, ___ U.S. ___, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). Defendants also argue that Luna's § 1981 claims should be dismissed because he has failed to plead a § 1981 case under another recent Supreme Court decision, Jett v. Dallas Independent School District, ___ U.S. ___, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989), or, alternatively, summary judgment should enter under the rule of that case. Oral argument will not materially assist in ruling on these motions. I deny defendants' Fed.R.Civ.P. 56(c) motion for the reasons stated in Part I, deny their Fed.R.Civ.P. 12(c) motion for the reasons stated in Part II, but grant their motion for summary judgment for the reasons stated in Part III.

Under Fed.R.Civ.P. 56(c), summary judgment is proper "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 the moving party is entitled to judgment as a matter of law." Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate when the Court can conclude that no reasonable juror could find for the non-moving party on the basis of the evidence presented in the motion and response. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party must present sufficient evidence so that a reasonable juror could rule in the non-moving party's favor. Id. Further, the non-moving party has the burden of showing that there are issues of material fact to be determined. Celotex, supra.

I.

In Patterson v. McLean Credit Union, supra, the Supreme Court considered the question whether a promotion claim, such as the one here, is actionable under § 1981. The Court stated that whether such a claim is actionable "depends upon whether the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer." Id. 109 S.Ct. at 2377. The Court then held that "only where the promotion rises to the level of an opportunity for a new and distinct relation between the employee and the employer is such a claim actionable under § 1981," such as the refusal of a law firm to accept an associate into partnership. Id. at 2377.

Defendants argue that the promotion at issue here did not present Luna with the opportunity to enter into a new and distinct relationship with defendant The City and County of Denver (the City). In support of their position, defendants submit the affidavit of Ms. Maxine Kurtz, a senior personnel specialist and attorney employed by the Denver Career Service Authority. In her affidavit, Ms. Kurtz presents numerous examples of how Luna's employment contract upon promotion would be a continuation of his present contract with the City.

In response, Luna presents the official job descriptions and qualifications for appointment for the position of Project Inspector I, Luna's present job, and Engineer III, the position to which he was seeking promotion. These exhibits reflect substantial differences between the two positions

718 F. Supp. 857
in supervisory responsibility, duties performed, and required qualifications

Luna also presents evidence to refute some of the information contained is Ms. Kurtz's affidavit. Specifically, Luna provides the Court with a memorandum from the City to Luna which demonstrates another difference between the two positions: Luna is presently required to use the time clock and is entitled to overtime pay as opposed to the position of Engineer III which is exempt from these requirements.

Accordingly, I conclude that Luna has met his burden as the non-movant under the provisions of Fed.R.Civ.P. 56(c). Based upon the evidence presented, a reasonable juror could find that the change in position from Project Inspector I to Engineer III would provide Luna with the opportunity to enter into a new and distinct contractual relationship with the City. Hence, Luna's claim that defendants discriminated against him because of his national origin when they failed to promote him to the position of Engineer III and hired instead an anglo, is actionable under §...

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25 practice notes
  • Gilmore v. LOCAL 295, No. 91 Civ. 1860 (GLG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 6, 1992
    ...responsibility and employer evaluation of employee create inference of new contractual relationship); Luna v. City and County of Denver, 718 F.Supp. 854, 856 (D.Colo.1989) (substantial differences in supervisory responsibility, duties performed and required qualification made denial of prom......
  • Brereton v. Communications Satellite Corp., Civ. A. No. 86-3082 (CRR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 17, 1990
    ...Hosps., 728 F.Supp. 1321, 1324-26 (E.D. Mich.1990); Byrd v. Pyle, 728 F.Supp. 1, 2-3 (D.D.C.1989); Luna v. City and County of Denver, 718 F.Supp. 854, 856-57 It is precisely because this issue requires such careful, fact-specific analysis and because the record does not contain sufficient i......
  • Castle v. Central Benefits Mut. Ins. Co., No. C2-87-0030.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • November 21, 1990
    ...to provide the Court with any corroborating evidence to substantiate this vital element. See, e.g., Luna v. City and County of Denver, 718 F.Supp. 854 (D.Colo.1989), where the plaintiff provided the district court with a memorandum from the City of Denver to himself which showed that a prom......
  • Adames v. Mitsubishi Bank, Ltd., No. CV-88-0721.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 11, 1990
    ...or title is accompanied by other significant changes, the Patterson test is generally met. Thus, in Luna v. City and County of Denver, 718 F.Supp. 854, 856-57 (D.Colo. 1989), the court found the existence of a "new and distinct relationship" where the promotion from project inspector to eng......
  • Request a trial to view additional results
25 cases
  • Gilmore v. LOCAL 295, No. 91 Civ. 1860 (GLG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 6, 1992
    ...responsibility and employer evaluation of employee create inference of new contractual relationship); Luna v. City and County of Denver, 718 F.Supp. 854, 856 (D.Colo.1989) (substantial differences in supervisory responsibility, duties performed and required qualification made denial of prom......
  • Brereton v. Communications Satellite Corp., Civ. A. No. 86-3082 (CRR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 17, 1990
    ...Hosps., 728 F.Supp. 1321, 1324-26 (E.D. Mich.1990); Byrd v. Pyle, 728 F.Supp. 1, 2-3 (D.D.C.1989); Luna v. City and County of Denver, 718 F.Supp. 854, 856-57 It is precisely because this issue requires such careful, fact-specific analysis and because the record does not contain sufficient i......
  • Castle v. Central Benefits Mut. Ins. Co., No. C2-87-0030.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • November 21, 1990
    ...to provide the Court with any corroborating evidence to substantiate this vital element. See, e.g., Luna v. City and County of Denver, 718 F.Supp. 854 (D.Colo.1989), where the plaintiff provided the district court with a memorandum from the City of Denver to himself which showed that a prom......
  • Adames v. Mitsubishi Bank, Ltd., No. CV-88-0721.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 11, 1990
    ...or title is accompanied by other significant changes, the Patterson test is generally met. Thus, in Luna v. City and County of Denver, 718 F.Supp. 854, 856-57 (D.Colo. 1989), the court found the existence of a "new and distinct relationship" where the promotion from project inspector to eng......
  • Request a trial to view additional results

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