Price v. Public Service Co. of Colorado, Civ. A. No. 92-S-2285.

• Decision Date: 26 April 1994
• Docket Number: Civ. A. No. 92-S-2285.
• Citation: 850 F. Supp. 934
• Parties: Roberta PRICE, Plaintiff, v. PUBLIC SERVICE COMPANY OF COLORADO, Defendant.
• Court: U.S. District Court — District of Colorado

850 F. Supp. 934

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

Civ. A. No. 92-S-2285.

United States District Court, D. Colorado.

April 26, 1994.

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Daniel Lynch, Denver, CO, for plaintiff.

David Kerber, William Sasz, Kerber & Sasz, Denver, CO, for defendant.

MEMORANDUM OPINION AND ORDER

SPARR, District Judge.

THIS MATTER came before the court for hearing on March 1, 1994 on the Defendant's Motion for Summary Judgment, filed December 15, 1993. The court has reviewed the motion, the Plaintiff's brief in opposition, the Defendant's reply brief, the Plaintiff's Argument filed March 1, 1993, the exhibits, the affidavits, the deposition testimony, the arguments presented by counsel in open court, the entire case file, and the applicable law and is fully advised in the premises.

Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, "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); Thrasher v. B & B Chemical Company, Inc., 2 F.3d 995, 996 (10th Cir.1993) (citations omitted). 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, 2552-53, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). If the moving party meets this burden, the non-moving party then has the burden to come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the non-moving party's case. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). To sustain this burden, the non-moving party cannot rest on the mere allegations in the pleadings. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Applied Genetics Int'l. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). If the nonmoving party fails to make the required showing with respect to any element essential to its case and on which it bears the burden of proof at trial, then the moving party is entitled to summary judgment "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. 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 v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). 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." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2512.

A. Plaintiff's First Claim for Relief for Violation of Title VII Based on Sex Harassment, Sex Discrimination, Retaliation, Failure to Promote, and Equal Pay

1. Sex Harassment

Courts have recognized two distinct categories of sexual harassment claims under Title VII: (1) quid pro quo sexual harassment, and (2) hostile work environment sexual harassment. Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir.1987). Price alleges sexual harassment in the form of a hostile work environment.

A plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment. Sauers v. Salt Lake County, 1 F.3d 1122, 1126 (10th Cir.1993), quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986). Hostile work environment harassment occurs where sexual conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment. Sauers, 1 F.3d at 1126, quoting Hirschfeld v. New Mexico Corrections Department, 916 F.2d 572, 575 (10th Cir.1990). Whether the conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. Sauers, 1 F.3d at 1126, quoting Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir.1987). These circumstances may include the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., ___ U.S. ___, ___, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993). The effect on the employee's psychological well-being is relevant to determining whether the plaintiff actually found the environment abusive. Harris, ___ U.S. at ___, 114 S.Ct. at 371.

Price alleges that Public Service discriminated against her by "knowingly allowing sexual harassment and a hostile work environment to exist without taking corrective action." (Complaint, paragraph 22.b.). Price testified at her deposition about harassment in the form of crude language, suggestive behavior, "sexist remarks," "filthy jokes," inappropriate touching, nude pictures, and sexual pranks that occurred from the late 1970's to the date of her termination on November 7, 1991. (Deposition testimony of Roberta Price, February 18, 1993 pp. 124-50 and February 25, 1993 pp. 164-91, 233-40). Price's January 23, 1994 affidavit reiterates her deposition testimony, with some significant variations.

a. First, Public Service asks the court to strike portions of Price's January 23, 1994 affidavit pursuant to Franks v. Nimmo, 796 F.2d 1230, 1236-37 (10th Cir.1986), as constituting an attempt to create a sham fact issue regarding her sexual harassment claim. Similar to the situation in Franks, 796 F.2d at 1236-37, Price testified under oath in her deposition on two different occasions that she could not specifically remember any dirty jokes or offensive language used in her presence by fellow employees. (Deposition testimony of Roberta Price, February 18, 1993, pp. 148-50; February 25, 1993, pp. 172-73). On January 23, 1994, in response to the Defendant's motion for summary judgment, Price filed her affidavit specifying seventeen (17) offensive words and phrases used in her presence. (Affidavit of Roberta Price, Exhibit A to Plaintiff's Brief in Opposition to Motion for Summary Judgment p. 2).

In assessing a conflict between an affidavit and an affiant's prior sworn statements, courts will disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham issue of fact. Franks, 796 F.2d at 1237 (citations omitted). "Factors relevant to the existence of a sham fact issue include whether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain." Franks, 796 F.2d at 1237 (citations omitted).

Careful consideration of the relevant factors convinces the court that Price's January 23, 1994 affidavit is an attempt to create a sham fact issue as to the offensive jokes and language. Price was carefully cross-examined on two separate days when she gave her deposition testimony. As a person who was present at the time of the alleged offensive dialogue, she clearly had access to the relevant information at the time of her deposition. Her deposition testimony was unequivocal that she could not remember any specific words. She makes no explanation in her affidavit as to why she was able to remember seventeen (17) specific words after Public Service filed its motion for summary judgment. Under these circumstances, the court concludes that the conflict between Price's deposition testimony and her affidavit raises only a sham issue as to the offensive jokes or language used in her presence by fellow employees. Accordingly, as to the offensive jokes or language used in her presence by fellow employees, the court will disregard Price's affidavit for the purposes of this motion.

b. Next, Public Service argues that Price's sexual harassment claim is time-barred because the alleged incidents occurred outside the limitations period established by 42 U.S.C. § 2000e-5(e). A plaintiff must timely file a charge of discrimination with the E.E.O.C. before initiating a Title VII action in federal court. 42 U.S.C. § 2000e et seq.; Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir. 1993) (citation omitted). A charge must be filed with the E.E.O.C. no later than 300 days after the alleged act of discrimination. 42 U.S.C. § 2000e-5(e).

Price filed one discrimination charge with the E.E.O.C. on February 10, 1992, wherein she specifically alleged: (1) discrimination based on her sex and her age; and (2) discrimination in retaliation for complaining "to the Vice President of Electric Engineering and Planning concerning the promotion of a non-degreed male to a position over me." (Exhibit C to Defendant's Motion for Summary Judgment). Price made no mention of sexual harassment in her February 10, 1992 charge. On August 6, 1992, Price filed a second discrimination charge with the E.E.O.C., reiterating the allegations from her February 10, 1992 charge and additionally alleging that she was being paid less than males for doing the same or similar work and that "women in general, and myself in particular were subjected to...