Salemi v. Colo. Pub. Employees' Ret. Ass'n

• Decision Date: 31 March 2016
• Docket Number: Civil Action No. 13-cv-2826-WYD-CBS
• Citation: 176 F.Supp.3d 1132
• Parties: Elham Salemi, Plaintiff, v. Colorado Public Employees' Retirement Association; Tim Moore, in his official and individual capacities; Angela Setter, in her official and individual capacities, Defendants.
• Court: U.S. District Court — District of Colorado

176 F.Supp.3d 1132

Elham Salemi, Plaintiff,

v.Colorado Public Employees' Retirement Association; Tim Moore, in his official and individual capacities; Angela Setter, in her official and individual capacities, Defendants.

Civil Action No. 13-cv-2826-WYD-CBS

United States District Court, D. Colorado.

Signed March 31, 2016

Darold W. Killmer, Amy B. Kapoor, Danielle C. Jefferis, Mari Anne Newman, Killmer, Lane & Newman, LLP, Denver, CO, for Plaintiff.

Meghan W. Martinez, Ann Christoff Purvis, Martinez Law Group, P.C., Denver, CO, for Defendants.

ORDER

Wiley Y. Daniel, Senior United States District Judge

I.INTRODUCTION AND BACKGROUND

THIS MATTER is before the Court on Defendants' Motion for Summary Judgment(ECF No. 56), filed on June 10, 2015.The matter is fully briefed.

Plaintiff was an employee of DefendantColorado Public Employees' Retirement Association(“PERA”) from May of 2004, beginning as an intern, through May 10, 2012, when her employment was terminated.At all times relevant to Plaintiff's Complaint, DefendantsTim Moore(“Moore”) and Angela Setter(“Setter”) were employed by PERA.Moore was the Director of the Alternative Investments Department, and Setter was the Director of Human Resources.

Plaintiff alleges that during her eight-year employment with PERA, Defendants discriminated against her on the basis of her gender, her race, and her national origin.Plaintiff is Persian-American woman who was born in Iran.She claims that because of this unequal treatment, she was denied timely promotions, retaliated against for complaining about unequal treatment, and denied equal pay and work opportunities that were offered to her white male co-workers.She claims that following her FMLA leave and the filing of a charge with the Equal Employment Opportunity Commission(“EEOC”), she was abruptly fired.Plaintiff asserts seven causes of action against Defendants: 1) discrimination and failure to promote under Title VII of the Civil Rights Act; 2) retaliation under Title VII; 3) race and national origin discrimination under 42 U.S.C. § 1981; 4) retaliation under § 1981; 5) retaliation under the First Amendment; 6) retaliation under the Family Medical Leave Act(“FMLA”); and 7) wage discrimination under the Equal Pay Act.Plaintiff seeks declaratory and injunctive relief, economic damages, non-economic damages, punitive damages, interest, attorney's fees and costs.Defendants argue that all of Plaintiff's claims fail as a matter of law, and that they are entitled to summary judgment on all claims.

II.STANDARD OF REVIEW

Pursuant to rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where ‘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.‘Fed. R. Civ. P. 56(c);seeAnderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986);Equal Employment Opportunity Comm. v. Horizon/CMS Healthcare Corp. , 220 F.3d 1184, 1190(10th Cir.2000).

Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”Fed. R. Civ. P. 56(c).A material fact is one that might affect the outcome of the dispute under the applicable law.Ulissey v. Shvartsman,61 F.3d 805, 808(10th Cir.1995).I must construe all inferences in favor of the party against whom the motion under consideration is made.Pirkheim v. First Unum Life Ins. Co.,229 F.3d 1008, 1010(10th Cir.2000).All doubts must be resolved in favor of the existence of triable issues of fact.Boren v. Southwestern Bell Tel. Co. , 933 F.2d 891, 892(10th Cir.1991).

III.DISCUSSION

The following facts are undisputed.Plaintiff, an at-will employee, began working for PERA's Alternative Investments (“AI”) department as an intern on May 17, 2004.She was promoted to Portfolio Associate within the AI department on September 1, 2004.Moore became the AI Director in February of 2007, at which time he became Plaintiff's supervisor.Plaintiff was promoted to the position of Analyst within the AI department on June 2, 2008.Plaintiff alleges that this promotion was over a year late, and should have been awarded sooner.Plaintiff was being paid an annual salary within the 2007 range.Since she should have been paid within the 2008 range, her salary was later adjusted and she was paid the difference retroactively.

Plaintiff's colleagues within the AI department were Aaron Norton(“Norton”), Dan Chilton(“Chilton”), John Kasic(“Kasic”), and Dave Saunders(“Saunders”), all males.The only individual on the team who held the same job title as Plaintiff during her employment with PERA was Saunders, who was hired as an Analyst on January 1, 2010.The other individuals (Norton, Chilton, and Kasic) worked as Portfolio Managers during Plaintiff's employment with PERA.All four of Plaintiff's colleagues were qualified for the jobs they held at PERA.

During Plaintiff's eight year employment with PERA, she received annual performance evaluations.Although Plaintiff consistently received overall positive reviews for her work, she also received consistent feedback suggesting that she improve her assertiveness skills, take more initiative in meetings, and be more vocal and confident in her role within the department.

In March of 2011, Plaintiff expressed interest in the Portfolio Manager track.Moore expressed concern that she had not demonstrated the required qualities of a Portfolio Manager.In May of 2011, Setter suggested that Plaintiff take communications classes to improve some of her skills.

After feeling that her concerns had not been properly addressed and that she was being treated differently than the white men in her department, Plaintiff submitted a written complaint to Setter on June 28, 2011.Plaintiff expressed frustration with the fact that she had been labeled as a quiet person and that this was preventing her from moving forward in her career with PERA.PERA conducted an internal investigation in response to Plaintiff's complaint.Eight individuals were interviewed and all of them confirmed Plaintiff's quiet nature and reluctance to speak up at meetings.PERA's conclusion of the investigation was that Plaintiff's claims of being treated differently were not substantiated.Plaintiff received notice of the investigation's findings in a letter dated September 1, 2011.

Prior to the conclusion of the investigation, Plaintiff left work to begin FMLA leave on July 18, 2011.She remained on leave for five months, first on FMLA leave, then on short term disability leave.During her leave, she filed a Charge of Discrimination with the EEOC on September 29, 2011, alleging discriminatory treatment.She returned to work on December 19, 2011.

During her leave, Plaintiff looked for a new job.Within a few weeks of her return to PERA, Plaintiff began working for Metro State University as a teacher; however, she also continued working for PERA.Moore and Plaintiff met several times after her return regarding the nature of the tasks she was asked to complete, her performance of those tasks, and the quality of her work.On May 9, 2012, Moore recommended that Plaintiff's employment be terminated based on poor job performance.Plaintiff was terminated on May 10, 2012.

A.Title VII Claims—Against Defendant PERA

1.Administrative Remedies

As a preliminary matter, Defendants argue that some of Plaintiff's Title VII claims are outside the Court's jurisdiction because she failed to exhaust administrative remedies on those claims.Plaintiff filed one EEOC charge on September 29, 2011.Defendant argues that Plaintiff's claims under Title VII are limited to acts that occurred during the 300 days leading up to the EEOC charge—December 3, 2010 through September 29, 2011—and that her Title VII claims, either before or after this time frame, were not administratively exhausted.Plaintiff does not dispute that she filed only one charge on September 29, 2011.However, Plaintiff argues that the Court already ruled in her favor on this issue when it denied Defendants' motion to dismiss on September 30, 2014.

The issue of subject matter jurisdiction can be challenged at any time in the proceedings.SeeSteel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94–95, 118 S.Ct. 1003, 140 L.Ed.2d 210(1998)(“The requirement that [subject matter] jurisdiction be established as a threshold matter springs from the nature and limits of the judicial power of the United States and is inflexible and without exception.”);see alsoFranklin Sav. Corp. v. United States,180 F.3d 1124(10th Cir.1999);Huffman v. Saul Holdings Ltd. , 194 F.3d 1072, 1076–77(10th Cir.1999)(“A defect in subject matter jurisdiction can never be waived and may be raised at any time.”).This Court's previous Order denying Defendants' motion to dismiss did not rule on the issue of jurisdiction, but instead only found that Plaintiff had stated a claim that was plausible on its face.Therefore, the issue of jurisdiction over Plaintiff's claims remains an issue for the Court to decide.

Federal courts lack jurisdiction over Title VII claims that were not previously covered in a claim presented to the EEOC.Eisenhour v. Weber Cnty. , 744 F.3d 1220, 1226(10th Cir.2014).A plaintiff is barred from suing on incidents that occurred more than 300 days prior to a filed EEOC charge.SeeNat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106(2002)(“Each discrete discriminatory act starts a new clock for filing charges alleging that act.The charge, therefore, must be filed within the...300–day time period after the discrete discriminatory act occurred.”).Further, discrete acts such as termination, wage violations,...