Salazar v. City of Commerce City
| Decision Date | 01 May 2012 |
| Docket Number | Civil Action No. 10-cv-01328-LTB-MJW |
| Parties | STEPHANIE SALAZAR, Plaintiff, v. CITY OF COMMERCE CITY; GERALD M. FLANNERY, in his individual capacity; PAUL NATALE, in his individual capacity; HEATHER OLSON, in her individual capacity; and TOM ACRE, in his individual capacity, Defendants. |
| Court | U.S. District Court — District of Colorado |
ORDER
This matter is before me on Defendants' Motion & Brief in Support of Summary Judgment [Doc #46] filed by Defendant City of Commerce City (the "City"), and Defendants Gerald M. Flannery, Paul Natale, Heather Olson, and Tom Acre, in their individual capacities. Defendants seek dismissal of the claims filed against them by Plaintiff, Stephanie Salazar. Oral arguments will not materially aid in the resolution of this motion. After consideration of the parties' briefs, and for the reasons stated below, I GRANT IN PART AND DENY IN PART the motion as follows.
In August of 2005, Plaintiff was hired by the City to be its Economic Development Director. In November of 2006, Plaintiff was provided a performance review in the form of amemorandum by her supervisor, the Acting Assistant City Manger, Roger Tinklenberg. [Doc # 45, Ex. H] At that time she was taken off probationary status and given a salary increase.
Thereafter, on November 20, 2006, Plaintiff sent a "strictly confidential" document to Defendant Paul Natale - who was then a Council Member and later elected Mayor of Commerce City - in which she discussed the "internal barriers to economic development initiatives for the city," and complained about several current and former City employees. [Doc # 45, Ex. J, Doc. # 58 Ex. N] While this document contains allegations of general workplace "harassment" of the Economic Development staff, it does not make specific allegations of gender or national origin discrimination.
Following her annual performance evaluation in the Fall of 2007, Plaintiff wrote a lengthy response to Defendant Gerald Flannery, the City Manager, dated December 21, 2007, indicating that she did not agree with the evaluation results. [Doc # 45, Ex. P, Doc # 57, Ex. W] Plaintiff concedes that this response was not a "formal complaint of discrimination" under the policies of the City, but asserts that it complained of "gender bias" by alleging unequal treatment between female and male managers at the City. [Doc # 57, Ex. W, pp. 27-31] In addition, she contends that she specifically opposed the treatment of a Hispanic employee (Building Official Leonard Lucero) by the City after he complained of discrimination [Doc #57, Ex. W, pp. 13, 28, 34, 42], and notes a local media attack with "racial sentiment" on a development of a Spanish market in the City, and repeated use of her own Spanish surname therein. [Doc #57, Ex. W, pg. 45] Defendants maintain that this document did not make a specific allegation that Plaintiff herself had been the subject of gender or national origin discrimination or retaliation by the City, but because it referenced the City's discrimination policies Defendant Heather Olson (nowknown as Heather Spenser), the Human Resources Director for Commerce City, conducted an investigation. [Doc # 45, Ex. U, V &Y] On March 6, 2008, Defendant Olson concluded that there had been no policy violations. [Doc # 57, Ex. CC]
During this time, Plaintiff submitted a report to the City Council and Defendant Mayor Natale entitled "Report to Council on the Status of the Department of Economic Development" on January 7, 2008. [Doc # 45, Ex. Z, Doc # 57, Ex. AA] This report - which again related to the disfavored treatment of Plaintiff and the Economic Development Department - alleged that on November 9, 2007, Defendant Flannery made derogatory comments about Navajo people in general and about Lisa Wayne, a Navajo women who had been hired by Plaintiff. [Doc # 57, Ex. AA, pp. 4-5] Plaintiff also alleged that Mr. Tinklenberg and Gregg Clements - when acting as City Managers - had discriminated against minority employees; specifically, she alleged that they attempted to terminate Leonard Lucero "a Spanish surnamed employee of over 22 years with the City." [Doc # 57, Ex. AA, pg. 6] She again noted that she had been disparaged based on her own Spanish surname in media reports related to development of a Spanish market. [Doc # 57, Ex. AA, pg. 6] In response, the City hired Bob Bowman, a human resources consultant, to investigate the alleged comments made by Defendant Flannery about Navajo people related to Ms. Wayne. [Doc # 45, Ex. A-3, Doc # 58, Ex. EE] In April 2008, Mr. Bowman concluded that Defendant Flannery "may have made reference to Ms. Wayne's cultural heritage, but the there was no discrimination or harassment involved." [Doc # 45, Ex. A-3, pg.2]
In March and April of 2008, Plaintiff allegedly withheld business information about the City from Defendant Flannery, who was at that point her supervisor. As a result, she received a written reprimand from him on April 4, 2008. [Doc # 45, Ex. A-9, Doc # 57, Ex. FF] Also at thattime Defendant Tom Acre, the Deputy City Manager, became her supervisor. [Doc # 58, Ex. D, pg. 153] Plaintiff responded to the reprimand by submitting a "Grievance Against Flannery and Acre" to the Human Resources Department, dated April 18, 2008, in which she complained that the reprimand was unwarranted and retaliatory. [Doc # 45, Ex. A-13, Doc # 57, Ex. MM]
The City investigated Plaintiff's Grievance by hiring an employment attorney, Marilee Langhoff. In her report dated June 22, 2008, Ms. Langhoff addressed the Grievance by grouping Plaintiff's alleged complaints into: 1) violations of the City's Employment and Performance Evaluation Guidelines related to "Problem Solving;" 2) violations of the City Handbook prohibitions against "Discrimination & Harassment" and "Work Place Violence;" and 3) actions contrary to the job description of the Director of Economic Development. [Doc # 45, Ex. A-16, Doc # 57, Ex. QQ] After finding no violations, the report concluded that "[i]n sum, despite her extensive litany, I do not find that Ms. Salazar's Grievance has merit or is worthy of any additional response or examination either internally or externally" and "[f]or various reasons, it is my opinion that at this juncture Ms. Salazar's behavior has become a serious disruption in the workplace . . .". [Doc # 57, Ex. QQ, pg. 7]
Plaintiff was subsequently notified that she would be terminated from her employment in a letter from her supervisor, Defendant Acre, dated July 2, 2008. [Doc # 45, Ex. A-20] The letter of termination indicated that "[a]lthough no reason must be given for the City's decision" based on her at-will status, it noted her unprofessional behavior in the past months, her continued "inability to work as part of the City team," her "inability to communicate effectively with [her] department," and Defendant Acre's concern about her judgment as evidenced by her keeping information confidential from the City Manager. The letter also relied upon her "extraordinarilylengthy, confrontational responses to comments made regarding her performance," which alleged serious wrongdoings, but she then "refused to participate in the investigation." The letter concluded that "I do not believe your work style, behavior and recent actions fit the needs of the City and your recent conduct has been quite problematic." [Doc # 45, Ex. A-20]
Plaintiff subsequently filed this lawsuit in which she asserts claims for Discrimination and Retaliation against the City in violation of Title VII, 42 U.S.C. § 2000e, et seq. (First Claim for Relief), as well as claims for Discrimination and Retaliation against all Defendants in violation of 42 U.S.C. §1981 (Second Claim for Relief). She also brings claims against all Defendants pursuant to 42 U.S.C. § 1983 for Violation of her 14th Amendment Right to Equal Protection Based upon Gender (Third Claim for Relief), and Abridgement of her First Amendment Right to Freedom of Speech and Association (Fourth Claim for Relief). [Doc # 18]
The purpose of a summary judgment motion under Fed. R. Civ. P. 56 is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Fed. R. Civ. P. 56(c) provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The non-moving party has the burden of showing that there are issues of material fact to be determined. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
If a reasonable juror could not return a verdict for the non-moving party, summary judgment is proper and there is no need for a trial. Celotex Corp. v. Catrett, supra, 477 U.S. at 323. The operative inquiry is whether, based on all documents submitted, reasonable jurors couldfind by a preponderance of the evidence that the plaintiff is entitled to a verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, summary judgment should not enter if, viewing the evidence in a light most favorable to the plaintiff and drawing all reasonable inferences in that party's favor, a reasonable jury could return a verdict for the plaintiff. Id. at 252; Mares v. ConAgra Poultry Co., 971 F.2d 492, 494 (10th Cir. 1992).
The City argues that Plaintiff's Title VII claims against it should be dismissed. It first asserts that even if she can meet her burden to prove a prima facie case of gender discrimination, the City can proffer several nondiscriminatory reasons for her termination (as the challenged employment action), and there is no disputed issue of material fact supporting Plaintiff's burden to prove that the proffered reasons were merely pretextual. The City also argues that Plaintiff cannot make out a prima...
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