Price v. Public Service Co. of Colorado, Civ.A. 92-K-2285.

• Citation: 1 F.Supp.2d 1216
• Decision Date: 03 April 1998
• Docket Number: No. Civ.A. 92-K-2285.,Civ.A. 92-K-2285.
• Parties: Roberta PRICE, Plaintiff, v. PUBLIC SERVICE COMPANY OF COLORADO, Defendant.
• Court: U.S. District Court — District of Colorado

Page 1216

1 F.Supp.2d 1216

Roberta PRICE, Plaintiff, v. PUBLIC SERVICE COMPANY OF COLORADO, Defendant.

No. Civ.A. 92-K-2285.

United States District Court, D. Colorado.

April 3, 1998.

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Daniel F. Lynch, Denver, CO, for plaintiff.

Glenn H. Schlabs, Sherman & Howard, Colorado Springs, CO, for defendant.

MEMORANDUM OPINION AND ORDER

KANE, Senior District Judge.

I. INTRODUCTION

This matter is before me on Defendant Public Service Company of Colorado's (PSC's) Motion for Partial Summary Judgment filed October 10, 1997, pursuant to Fed. R.Civ.P. 56. Plaintiff Roberta Price asserts claims for sexual harassment, age discrimination, retaliation, and wrongful termination. At issue are: (1) Price's claim of sexual harassment pursuant to 42 U.S.C. § 2000e, et seq.; and (2) Price's pendent claim that promissory estoppel under Colorado common law precluded her termination. The motion is granted in part and denied in part.

II. PROCEDURAL BACKGROUND

Price filed this action against PSC on November 6, 1992, in Colorado state court for sex discrimination, sexual harassment, retaliation, and age discrimination under Title VII of the 1964 Civil Rights Act, as amended, 42 U.S.C. § 2000e, et seq., as well as for state common law breach of contract and promissory estoppel. The action was removed to this court based on federal question jurisdiction, 28 U.S.C. § 1331, with state law claims being subject to supplemental jurisdiction under 28 U.S.C. § 1367. The case was initially assigned to Judge Daniel B. Sparr.

On April 26, 1994, Judge Sparr granted PSC's motion for summary judgment on all of Price's claims except for the Title VII claim for sexual harassment based upon a continuing course of conduct while she was employed at PSC. On December 20, 1994, Judge Sparr recused himself and the case was reassigned to Chief Judge Richard P. Matsch, who granted Price's request for a de novo review of Judge Sparr's ruling on PSC's motion for summary judgment. Upon this review, Chief Judge Matsch found no just reason for delay and on August 1, 1995, directed that, pursuant to Fed.R.Civ.P. 54(b), judgment would enter on all claims, with the exception of the sexual harassment claim.

Price appealed the grant of summary judgment on her wrongful discharge claims based on age discrimination and retaliation and sought leave to pursue her state law claim of promissory estoppel. She failed to appeal the dismissal of her claims for sex discrimination and breach of contract. On June 19, 1996, the Tenth Circuit Court of Appeals reversed summary judgment on Price's age discrimination and retaliation claims and remanded the issue of the promissory estoppel claim to this court with instructions to exercise its discretion as to whether Price should be allowed to amend her complaint on this claim.

On October 11, 1996, Chief Judge Matsch ordered Price to file an amended complaint incorporating her additional allegations supporting the promissory estoppel claim. On October 22, 1996, Price filed an Amended Complaint which consisted of a single claim of promissory estoppel with the intention that it be added to or incorporated into the original complaint. Pursuant to Fed.R.Civ.P. 12(b)(6), PSC filed a motion to dismiss Price's promissory estoppel claim for failure to state a claim. On December 20, 1996, the case was reassigned to me.

On February 12, 1997, PSC filed additional authority to support its motion to dismiss, attaching the decision of the Colorado Court of Appeals in Soderlun v. Public Service Company of Colorado, 944 P.2d 616 (Colo. App.1997). On March 6, 1997, I issued a Memorandum Opinion and Order on Motion to Dismiss Amended Complaint, denying PSC's motion to dismiss. In denying the motion, I addressed the Soderlun case and stated, "the lesson in Soderlun is that each statement on which a plaintiff relies must be examined to determined whether it satisfies the requisite specificity to enable the court to understand the obligation assumed and enforce the promise according to its terms." Accordingly I concluded that a determination of whether any statement made to Price was a statement upon which she could have actionably relied must await development of the factual record. Price subsequently filed an Amended Complaint of April 16, 1997. The parties completed discovery on September 29, 1997. PSC filed the subject motion on October 10, 1997. Price responded on November 3, 1997. PSC has not submitted a reply.

III. FACTUAL BACKGROUND

Price was employed by PSC from August 1977 until she was laid off on November 7, 1991. (Am.Compl. Apr. 16, 1997, ¶¶ 1, 15.) Eighteen other employees were laid off by PSC on the same day, (Def.'s Br.Supp.Mot. Part.Summ.J., Ex. C at 210.) Before her employment at PSC, Price was offered a position with IBM in Boulder. (Pl.'s Resp. Mot.Part.Summ.J. Ex. 2 at 421-22.) Price's father, a former vice president of PSC, arranged an interview for her with PSC. (Id. at 421.) During the course of the interview, Price was informed that although the salary would be lower than that in the IBM offer, PSC did not lay off workers. (Id. at 431.) Meaning then, a tradeoff of greater job security for a lower wage was allegedly offered by PSC.

Price also claims a general corporate policy at PSC eschewed layoffs. The historical culture of PSC is reflected in its practice of seeking rate increases from the Public Utilities Commission in times of budget shortfalls rather than looking to cut costs. (Id. at 444.) At her initial interview, Price was told there had never been layoffs at PSC. (Id. at 431.) This policy manifested itself in statements of supervisors and fellow employees referring to certain employees who continued to draw a paycheck, but no longer pulled their weight, as "retired in place." (Id. at 471-74.)

Price asserts, during the course of her fourteen year tenure at PSC, she repeatedly complained to supervisors of sexual harassment, discrimination, and inequities in pay and promotion. (Pl.'s Resp. Mot.Part.Summ.J. at 10.) She maintains PSC, in response to these complaints, repeatedly guaranteed her secure employment until retirement as well as a comfortable retirement package if she would acquiesce and abandon her complaints. (Id., Ex. 2 at 479-80.)

Price chiefly relies on the alleged promissory statements of Clark Stephens, Gary Peterson, Pat McCarter, Alan Albrant, Bruce Farrington, Ken Fuller, Bill Martin and Phil Criste, each of which I discuss below.

IV. APPLICABLE STANDARD FOR SUMMARY JUDGMENT

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 summary judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). One of the principal purposes of summary judgment is to dispose of factually unsupported claims, and Rule 56(c) should be interpreted in a way that allows it to accomplish this purpose. Id. at 323-24. There are no genuine issues for trial if the record, taken as a whole, would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The moving party bears the initial burden of showing the absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325. If the moving party meets this burden, the burden shifts to the nonmoving party. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The court should view the record in the light most favorable to the nonmoving party, but the nonmoving party "may not rest on the mere allegations or denials of his pleadings." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmoving party must provide specific facts showing a genuine issue of material fact as to the essential elements of his case in order to survive the motion. Matsushita, 475 U.S. at 586-87; Bacchus, 939 F.2d at 891. The nonmoving party's identification of facts "must be based upon personal knowledge and set forth facts that would be admissible into evidence; conclusory and self-serving affidavits are not sufficient." Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir.1991).

At the summary judgment stage, the court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The court must determine "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." Id. at 251-52.

V. MERITS

A. Sexual Harassment Claim

With respect to this claim it is clear that no material facts are at issue. As such, summary judgment is proper.

To bring a claim in federal court, and thereby receive relief of any kind, including injunctive relief authorized for violation of Title VII, a plaintiff is subject to the requirement of standing. U.S. Const. art. 3, § 2, cl. 1; Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "A plaintiff has standing when (1) she has suffered an injury in fact, (2) there is a causal connection between the injury and the conduct complained of, and (3) it is likely that the injury will be redressed by a favorable decision." United States v. Colorado Supreme Court, 87 F.3d 1161, 1164 (10th Cir.1996).

"In order to satisfy the redressability requirement ... a plaintiff must show...