Martinez et al v. Denver, City and County of et al

Filing 136

ORDER granting 107 Defendant's Motion for Summary Judgment as to Mr. Abeyta; granting 108 Defendant's Motion for Summary Judgment as to Mr. Martinez; granting 109 Defendant's Motion for Summary Judgment as to Mr. Mares; granti ng 110 Defendant's Motion for Summary Judgment as to Mr. Trujillo; granting in part and denying in part 111 Defendant's Motion for Summary Judgment as to Plaintiffs Dean Gonzales, Kimberly Lavato, and Yolanda Goad-Cunningham. The Court grants defendant's motion as to claims two, three, and four with respect to Mr. Rojas but denies the motion as to claim one. Mr. Rojas' claim for Title VII discrimination may proceed. by Judge R. Brooke Jackson on 09/05/12.(alvsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable R. Brooke Jackson
Civil Action No. 08-cv-01503-RBJ-MJW
JIMMY MARTINEZ, et, al,
Plaintiffs,
v.
THE CITY AND COUNTY OF DENVER,
Defendant.

ORDER

This case was originally filed by sixteen plaintiffs and styled as a class action lawsuit
against the City and County of Denver, as well as the Denver Police Department (“DPD”).
Plaintiffs are all current or former DPD officers and allege systematic racial and gender
employment discrimination by the DPD. Judge Brimmer denied the motion for class
certification [see docket # 75] and also partially granted a prior motion to dismiss, which
dismissed several plaintiffs and Defendant DPD [see #68]. The case was reassigned to this Court
on September 26, 2011. Defendant City and County of Denver (“Defendant”) has filed five
motions for summary judgment seeking to dismiss all claims against the remaining eight
plaintiffs. The Court addresses all pending summary judgment motions.
Facts
Plaintiffs filed suit on July 16, 2008, alleging four claims for relief: (1) discrimination in
violation of Title VII; (2) retaliation; (3) violation of 42 U.S.C. § 1981; and (4) violation of 42
U.S.C. § 1983. Although these four claims are the only ones specifically enumerated in the

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complaint, defendant also seeks summary judgment as to a hostile work environment claim
against some plaintiffs because they seemingly intended to make the claim based upon the facts
alleged. At the trial preparation conference, the parties agreed that the hostile work environment
claim is part of the case. As a result, the Court considers a hostile work environment as a fifth
claim for relief as to certain plaintiffs.
Standard
The Court may grant summary judgment if “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
moving party has the burden to show that there is an absence of evidence to support the
nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving
party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324. A
fact is material “if under the substantive law it is essential to the proper disposition of the claim.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A material fact is genuine if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
The Court will examine the factual record and make reasonable inferences therefrom in the light
most favorable to the party opposing summary judgment. Concrete Works of Colorado, Inc. v.
City and County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994).
Conclusions
I.

Defendant’s Motion for Summary Judgment against Plaintiff Dean Abeyta [#107]
Defendant seeks summary judgment against Plaintiff Dean Abeyta on all claims, which

arise out of his termination from DPD on July 24, 2007 and a corresponding charge he filed with
the Equal Employment Opportunity Commission (“EEOC”) on April 3, 2007.

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a. Facts
In the early morning hours of June 4, 2006, Officer Abeyta was working as an off-duty
police officer for a private business. Abeyta Depo. [#107-3] at 10:1-18. Officer Abeyta finished
work around 3 AM and accompanied two women to a nearby park. Id. at 10:22-11:25. He had
tequila in his car that night and shared it with the women, one of whom was not yet 21. Id. at
12. He knew these women worked at a “gentleman’s club” and also admitted to having sexual
relations with one of the women in his truck. Id. at 11-12. Although Officer Abeyta maintains
the interaction was consensual, he was accused of sexual assault and arrested that same day. Id.
at 13.
Officer Abeyta says he was questioned by Commander Lamb, the head of internal affairs,
and he was placed on investigatory leave. Id. at 14. Although Officer Abeyta admits in his
deposition that investigatory leave means he was still being paid, his briefing and his complaint
claim that he was suspended without pay. Id. at 14:16-25; Abeyta Resp. [#117] at 3; Compl.
[#1] ¶ 140. During the questioning, Officer Abeyta confirmed that one of the women left her
underwear in his truck. Abeyta Depo [#107-3] at 18:6-13. At 6 PM that evening, Officer Abeyta
signed a consent form permitting his vehicle to be searched. Id. at 19; [#107-5]. The consent
recited Officer Abeyta’s understanding of his constitutional right to refuse the search, and
Officer Abeyta admits to understanding the form. [#107-3] at 19-20. Although the consent form
assents to a search of his Dodge Durango without any listed limitations, Officer Abeyta
maintains that the search was “supposed to be getting only the underwear,” and that someone
else wrote in the description of the truck on the consent form. Id.; [#107-5].
Police removed more than just the underwear from Officer Abeyta’s vehicle, including a
black bag with his personal items, which included a tape recorder. [#107-5]; [#107-3] at 25:23-

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26:7. On June 30, 2006, Lieutenant Joseph Montoya executed an affidavit for a search warrant
to listen to any recordings recovered, reasoning that they may contain additional evidence
regarding that night. [#107-6]. Although these recordings did not contain anything related to the
June 4 incident, the recordings revealed Officer Abeyta having sexual relations with other
women, and noise from a police radio was also evident in the background. [#107-3] at 39-40.
As a result of these events, Deputy Chief Michael Battista recommended Officer Abeyta
be terminated after a pre-disciplinary meeting. [#107-3] at 49. Officer Abeyta admits that it was
only a recommendation and that the Manager of Safety, Alvin LaCabe, would make the final
determination. Id. at 49:11-16. Although Officer Abeyta had never met Manager LaCabe at this
point, he did not “necessarily presume that was going to make a difference.” Id. at 49.
Before Manager LaCabe made any determination, Officer Abeyta filed a charge with the
EEOC on April 3, 2007, alleging national origin discrimination. [#117-5]. In the charge, Officer
Abeyta says that he was subjected to different terms and conditions of employment compared to
non-Hispanic employees, and that the disciplinary review board recommended termination,
which he expected to be upheld by other management officials. Id. He claims that there are
“several similarly situated non-Hispanic individuals who have committed more egregious
offenses such as felonies, yet they were not terminated or disciplined as harshly.” Id. Officer
Abeyta also says that his investigative process was more aggressive as compared to nonHispanic individuals, and that the investigators pursued other evidence unrelated to the original
allegations “in order to add charges to terminate my employment.” Id.
Approximately three weeks after Officer Abeyta filed this charge, Officer LaCabe
disapproved the recommendation to terminate Officer Abeyta, and he returned the case for
further investigation. [#107-9](issued on April 24, 2007). After an additional three months of

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investigation, Manager LaCabe issued a departmental order of discipline terminating Officer
Abeyta’s employment for violations of departmental rules including “immoral conduct,” “offduty in a uniform,” “departing from the truth” and “conduct prejudicial.” [#107-1]. Manager
LaCabe explained the termination: “It was a sexual case…There was a finding of him giving
alcohol to a minor. There was a finding as to him not being completely truthful in the course of
the investigation a number of times. There was at least an admission by him, without any great
detail, of having sexual relations while he was technically in some way on the clock. There was
a tape found in which he recorded sexual encounters with other women, and it appeared that he
was doing this while he was on duty. Adding those things together, I terminated him.” [#10710] at 94. Manager LaCabe also noted that the recommendation for termination was consistent
at every level of review, including the discipline review board. Id.
Officer Abeyta did not appeal this determination to the Civil Service Commission.
[#107-3] at 58. In his deposition, Officer Abeyta says that the Police Protective Association
refused to represent him to appeal his termination, and that an attorney would cost $40,000. Id.
at 58-59. Officer Abeyta also claims there were other officers caught having sex while on duty,
and nothing ever happened to them. Id. at 61:19-21; 65:23-66:3.
Officer Abeyta began working for DPD in 2001 after working for Fort Lupton’s police
department for eight years. [#117-1] at 15. Officer Abeyta says that he had outstanding reviews
during this time, and other than the event in question, defendant has not offered any
contradictory evidence to suggest that Officer Abeyta had any unsatisfactory reviews or any
discipline history.
b. Conclusions
i. Claim One: Discrimination in Violation of Title VII

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Because Officer Abeyta has not provided any direct evidence of discrimination, his Title
VII claim is analyzed under the McDonnell Douglas burden-shifting framework. See generally
Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). In the context of employment
discrimination, a plaintiff must first establish a prima facie case of discrimination. Id. Once he
does so, the employer must proffer a “legitimate, non-discriminatory reason for the adverse
employment action.” Id. “At the summary judgment stage, it then becomes the plaintiff’s
burden to show that there is a genuine dispute of material fact as to whether the employer’s
proffered reason for the challenged action is pretextual – i.e. unworthy of believe.” Sandoval v.
City of Boulder, Colo., 388 F.3d 1312 (10th Cir. 2004) (quoting Kendrick v. Penske Transp.
Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000)).
In Officer Abeyta’s case, his claim for discrimination is wrongful discharge. “To
establish a prima facie case of discriminatory discharge based on national origin, the plaintiff must
show that (1) he belongs to a protected class; (2) he was qualified for his job; (3) despite his
qualifications, he was discharged; and (4) the job was not eliminated after such discharge.” Sulich v.

Sysco Intermountain Food Serv., Inc., 242 Fed. Appx. 532, 534 (10th 2007)(quoting Rivera v.
City and County of Denver, 365 F.3d 912, 920 (10th Cir. 2004)). The Court finds that Officer
Abeyta has satisfied this initial burden. As a Hispanic, he is a member of a protected class.
Officer Abeyta had no negative work history prior to this incident, and there is no dispute that he
was qualified for his job.
Because defendant has offered a legitimate, non-discriminatory reason for firing Officer
Abeyta, it is Officer Abeyta’s burden to establish that defendant’s proffered reason is pretext for
racial or national origin discrimination. Khalik, 671 F.3d at 1192 (“[T]he burden shifts back to
the plaintiff to show that the plaintiff’s protected status was a determinative factor in the
employment decision or that the employer’s explanation is pretext.”); See also Munoz v. St.
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Mary-Corwin Hosp., 221 F.3d 1160, 1167 (10th Cir. 2000). Officer Abeyta can show pretext by
establishing “either that a discriminatory reason more likely motivated the employer or…that the
employer’s proffered explanation is unworthy of credence.” Munoz, 221 F.3d at 1167.
Officer Abeyta relies upon his past positive employee performance reviews to argue that
he was not terminated for “poor performance” and that the decision was pretextual. He also
argues that the factual findings leading to his termination were incorrect. The Court has already
considered Officer Abeyta’s prior work performance in finding he has established a prima facie
case. His positive work reviews in the past do not render defendant’s proffered explanation as
unworthy of credence.
Officer Abeyta also disputes the finding that he was engaging in sexual relations while he
was working, explaining that these incidents happened after he left work. See [# 117-3] at
39:18-25, 40-41:1-19. However, a court’s role is not to “act as a ‘super personnel department’
that second guesses employers’ business judgments.” Simms v. Okla. Ex rel. Dep’t of Mental
Health & Substance Abuse Servs., 165 F.3d 1321, 1330 (10th Cir. 1999)(citations omitted). The
“pertinent question” is whether the employer’s belief was genuine or pretextual, not whether the
employer was correct in thinking the employee engaged in misconduct. Hardy v. S.F.
Phosphates Ltd., 185 F.3d 1076, 1080 (10th Cir. 1999)(citing Giannopoulos v. Brach & Brock
Confections, Inc. 109 F.3d 406, 411 (7th Cir. 1997)). The factual record before DPD included
tapes of Officer Abeyta having sex with a police radio audible in the background. This evidence
alone suggests that DPD’s proffered reason for his termination was genuine.
Finally, Officer Abeyta suggests that his termination was pretextual because DPD has a
“history of non-Hispanic officers having inappropriate sexual relations while on duty and they
were not terminated.” [#117] at 5. Although he claims the department has a “history,” Officer

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Abeyta only cites to one deposition, that of co-plaintiff Detective Rojas, to support his argument
of pretext. Officer Abeyta provides two pages of deposition testimony alleging that another
white detective was suspended but not terminated after having an “inappropriate interaction with
a female prostitute.” [#117-4] at 32:1. This, by itself, fails to establish pretext. Although
Officer Abeyta’s argues that the white detective was on duty at the time, he does not cite to any
supporting evidence. There is also no indication whether this white detective faced criminal
charges, whether any physical evidence against him existed, or whether this was a one-time
occurrence. Ultimately, the Court lacks evidence to conclude that this white detective and
Officer Abeyta were similarly situated. The unsubstantiated allegation from another plaintiff’s
deposition testimony is insufficient to establish that a “discriminatory reason more likely
motivated the employer” when the employer had a very clear legitimate and non-discriminatory
reason for Officer Abeyta’s termination.
Consequently, the Court finds Officer Abeyta has failed to establish a genuine dispute of
material fact concerning pretext. Accordingly, the Court grants defendant’s motion as to claim
one for discrimination under Title VII.
ii. Claim two: Retaliation
Officer Abeyta argues that DPD retaliated against him for filing his EEOC charge,
because he was only terminated after filing this EEOC charge. “Title VII makes it unlawful to
retaliate against an employee because she has ‘opposed’ any practice made unlawful by Title
VII, or because she has ‘participated … in an investigation, proceeding or hearing under this
subchapter.’” Annett v. University of Kansas, 371 F.3d 1233, 1237 (10th Cir. 2004). Title VII
retaliation claims apply the same burden-shifting framework as discrimination claims. Id. As a
result, Officer Abeyta must first establish a prima facie case of retaliation, which requires that:

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(1) plaintiff engage in a protected opposition to discrimination; (2) plaintiff suffer an adverse
employment action; and (3) a causal connection exists between the protected activity and the
adverse employment action. Id; O’Neal v. Ferguson Const. Co., 237 F.3d 1248, 1252 (10th Cir.
2001). However, courts lack jurisdiction to consider Title VII claims that are not part of a
timely-filed EEOC charge. Annett, 371 F.3d at 1238.
Although Officer Abeyta argues that DPD retaliated against him for filing his EEOC
charge, he never filed any subsequent EEOC charge alleging retaliation. “[E]ach discrete
retaliatory action constitutes its own unlawful employment practice for which administrative
remedies must be exhausted.” Annett, 371 F.3d at 1238 (internal quotations omitted). As a
result, because Officer Abeyta never filed an EEOC charge alleging retaliation, he has failed to
exhaust his administrative remedies regarding this claim. The Court also notes that Officer
Abeyta would have a difficult time asserting this claim on the merits. In his April 3 EEOC
charge, Officer Abeyta writes that the disciplinary review board had already recommended
termination as of February 28, 2007, and he acknowledges that the recommendation “will be
more than likely upheld by other management officials.” [#107-2]. Officer Abeyta clearly
anticipated his termination at the time that he filed his EEOC charge, undermining his ability to
establish any causal connection between his termination and the filing of the very EEOC charge
in which he admits that he expected to be fired.
The Court grants defendant’s motion for summary judgment as to retaliation.
iii. Claims three and four: Sections 1981 and 1983
Defendant also seeks to dismiss Officer Abeyta’s claims under 42 U.S.C. § 1983, arguing
that he cannot legally sustain any claim against a municipality. Although defendant makes no
mention of § 1981, the Court presumes that defendant (and plaintiff) addressed these claims

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together, because both § 1981 and § 1983 require a plaintiff to “demonstrate that the City’s
officials acted pursuant to a ‘custom or policy’ or ‘discriminatory employment practices’” in
order to establish municipal liability. Carney v. City and County of Denver, 534 F.3d 1269, 1273
(10th Cir. 2008)(quoting Randle v. City of Aurora, 69 F.3d 441, 446 (10th Cir. 1995)).
However, in Officer Abeyta’s case, the Court does not reach this question. “In racial
discrimination suits, the elements of a plaintiff’s case are the same whether that case is brought
under §§ 1981 or 1983 or Title VII.” Carney, 534 F.3d at 1273 (10th Cir. 2008)(quoting Baca v.
Sklar, 398 F.3d 1210, 1218 n. 3 (10th Cir. 2005)); See also Fulcher v. City of Wichita, 387 Fed.
Appx. 861, 864 (10th Cir. 2010)(noting that “the elements of a discrimination lawsuit are the
same whether it is brought under §§ 1981 or 1983 or Title VII). As a result, Officer Abeyta’s
claims fail for the same reasons they fail under the Title VII analysis. See Baca, 398 F.3d at
1218 n. 3(concluding that a plaintiff’s racial discrimination claims fail under §§1981 and 1983
for the same reasons that they failed under Title VII because “[a] plaintiff who alleges
discriminatory discharge on [these bases]…would have to establish the same elements in order to
make out a prima facie case under the McDonnell Douglas burden-shifting analysis”). As a
result, the Court grants defendant’s motion for summary judgment as to both his § 1981 and §
1983 claims.
iv. Order
The Court grants defendants’ motion for summary judgment [#107] in its entirety. All of
Officer’s Abeyta’s claims are dismissed with prejudice.
II.

Defendant’s Motion for Summary Judgment against Plaintiff Jimmy Martinez [#108]

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Defendant seeks summary judgment as to all claims filed by Plaintiff Jimmy Martinez,
which arise out DPD’s failure to promote him to captain on two occasions. He subsequently
filed EEOC charges, alleging discrimination, retaliation, and a hostile work environment.
a. Facts
Plaintiff Jimmy Martinez is a lieutenant with DPD. In 2003, Lieutenant Martinez took
the captain’s examination and placed seventh on the list for promotion to captain. Martinez
Depo. [#108-2] at 40. However, DPD only promoted the top six performers, and according to
Lieutenant Martinez’s response brief, none of these individuals was Hispanic. Id.; [#118] at 3.
Lieutenant Martinez took the test again in late 2004 or early 2005 and was first on the promotion
list when it was released in March, 2005. [#118-2]. Despite being listed first, Lieutenant
Martinez learned that he would not be promoted after meeting with the Manager of Safety, Alvin
LaCabe. Plaintiff’s brief claims that eight others were promoted despite having a lower ranking.
Lieutenant Martinez says that no reason was given at the time for failing to promote him. 2006
EEOC Charge. [#108-1].
Defendant paints a different picture. Lieutenant Martinez had a pending disciplinary
action against him stemming from a November, 2003 incident in which Lieutenant Martinez was
working off duty at a bar and hit a patron twice in the head with a baton-like weapon. [#108-2]
at 47-50. In August, 2004, Captain Edward Lujan recommended a fifteen day suspension after
determining that Lieutenant Martinez’s use of force was improper. Id. at 53. However, the chief
of police recommended a ten day suspension in February, 2005, which was finalized when
Manager LaCabe affirmed the ten day suspension on April 13, 2005. [#108-7]; [#108-2] at 6667. Lieutenant Martinez appealed, and the penalty was reduced to a five day suspension on
August 26, 2005. [#108-8]; [#108-2] at 67-68.

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On December 20, 2005, Manager LaCabe received a letter listing, in rank order, those
eligible for promotion to captain. [#108-9]. The letter listed Lieutenant Martinez first and said
that all eight listed candidates passed a disciplinary history assessment at the time they took the
promotion exam. However, the letter warned that the discipline history had not been updated
since that time and recommended a current review to ensure all candidates still meet the
standards for promotion. After reviewing Lieutenant Martinez’s disciplinary history and the
applicable rules, Manager LaCabe felt Lieutenant Martinez could not be promoted. LaCabe
Depo. [#108-11] at 88:1-14. Former Chief of Police Gerald Whitman was present when
Manager LaCabe informed Lieutenant Martinez he would not receive the promotion. Whitman
Depo. [#108-12] at 77-78. Chief Whitman recommended that Lieutenant Martinez receive the
promotion, because there was no precedent for not promoting the highest ranking person on the
list. Id. However, Chief Whitman also “understood the decision.” Id. at 77:15-78:1.
Largely because of this incident, Lieutenant Martinez filed an EEOC charge on March
13, 2006, claiming national origin discrimination and retaliation. [#108-1]. Plaintiff alleged that
he had been “subjected to adverse terms and conditions, job assignment, and promotion and
ongoing harassment that has created a hostile work environment.” Id. He claimed that he was
denied a promotion from lieutenant to captain and did not receive any explanation as to why. Id.
Lieutenant Martinez also said he had complained about the hostile work environment and
racially derogatory comments, and no action was taken to resolve his complaints. Id. After
complaining, he says he was removed to the graveyard shift, that his work is highly scrutinized,
and that he is held to a higher standard than his fellow non-Hispanic officers. Id.
Lieutenant Martinez’s reference to the graveyard shift stems from his transfer from the
Gang Bureau to District 4 in 2005 as a result of a conflict with his then-supervisor, Captain

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Lujan. [#108-2] at 21. Lieutenant Martinez worked in District 4 for approximately three years
and reported to Commander Rudy Sandoval, who is also Hispanic. [#108-4] While in District 4,
Lieutenant Martinez worked on “detail one,” which is the night shift, or graveyard shift, and he
worked the hours between 8:30 PM and 6:30 AM. Sandoval Aff. [#108-4].
Commander Sandoval says he already had three outstanding lieutenants working for him,
and that he told Lieutenant Martinez that he would be assigned to detail one until another
lieutenant transferred. Sandoval Aff. [#108-4]. ¶ 11. According to Commander Sandoval,
Lieutenant Martinez felt that as senior lieutenant, he should be allowed to work the shift he
wants. Id. ¶ 12. According to Division Chief Mary Beth Klee, lieutenant work shifts and job
assignments are determined by factors other than seniority. Klee Aff. [#108-5] ¶ 5.
On June 19, 2006, one of Commander Sandoval’s lieutenants transferred to an
assignment outside of the district, and Commander Sandoval offered Lieutenant Martinez this
shift from 1:30 PM to 11:30 PM. Sandoval Aff. [#108-4] ¶ 13. Lieutenant Martinez declined,
because he only wanted detail two, which is a 5:30 AM to 3:30 PM shift. Id. Commander
Sandoval also says Lieutenant Martinez never requested overtime, and the only special work
assignment Lieutenant Martinez had ever requested, the 2007 Cinco de Mayo celebration, was
granted based upon his seniority over the detail three lieutenant. Id. ¶ 16. Lieutenant Martinez
ultimately returned to the Gang Bureau in 2007 when he learned of an opening on the day shift
and requested the transfer. [#108-2] at 22.
Lieutenant Martinez filed a second EEOC charge on February 5, 2007, again alleging
national origin discrimination and retaliation, as well as a hostile work environment. [#108-3].
In his narrative, Lieutenant Martinez says that after he filed a charge of discrimination in March,
2006, he was forced to work a shift no other lieutenant with his tenure was required to work. Id.

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He claims that he was not allowed to work overtime grant functions or special assignments, like
the Columbus Day Parade. Id.
Finally, Lieutenant Martinez cites some specific instances of what he believes was
retaliation for his first EEOC filing. He references a November 1, 2006 incident in which there
was an official announcement for the captain’s examination posted on his office door instead of
in his inbox. [#108-3]. He felt the intent was to publicly belittle him for his first EEOC
allegation that he had been passed over for promotion to the rank of captain. Id. He says he
reported this incident to his supervisor, but no action was taken. He also says that at the end of
that month, on November 30, 2006 Chief Whitman ordered Lieutenant Joseph Montoya of the
Internal Affairs Bureau to clarify a few points from his initial complaint regarding a racially
derogatory picture posted near his office. Id. He says the Lieutenant wanted to know why he
was offended and if it mattered who posted it. Id. Lieutenant Martinez says he felt intimidated
by these questions, that he had never asked such questions in response to a discrimination
complaint, and that he didn’t understand why Chief Whitman would be making this inquiry. He
interpreted this behavior as a message that DPD does not want these types of incidents to be
investigated or exposed. Lieutenant Martinez felt treated unfairly when he was asked to explain
why he was offended. Lieutenant Martinez now works at the airport. [#108-2] at 22.
b. Conclusions
i. Claim one: Title VII discrimination
Defendant first argues that some of plaintiff’s claims arising out of his first EEOC charge
are time-barred. The Court agrees. Title VII requires that a party file a charge of discrimination
within 300 days after the alleged unlawful employment practice occurred. See generally Trujillo
v. Huerfano County Bd. Of County Com’rs, 349 F. App’x 355, 362 n.4 (10th Cir. 2009)(citing

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Haynes v. Level 3 Communications, LLC, 456 F.3d 1215, 1222 (10th Cir. 2006)); See also
Annett, 371 F.3d at 1238 (courts lack jurisdiction to consider Title VII claims that are not part of
a timely-filed EEOC charge). Lieutenant Martinez’s first EEOC charge was filed on March 13,
2006. As a result, any alleged adverse employment actions occurring before May, 2005 cannot
be considered, which includes his 2003 claim for failure to promote.
While Officer Abeyta’s claims stemmed from one specific incident triggering an alleged
wrongful termination claim, Lieutenant Martinez’s discrimination claims arise from more
extensive facts. As a result, the Court utilizes a slightly different prima facie test while still
applying the same McDonnell-Douglas burden shifting framework. See E.E.O.C v. PVNF,
L.L.C., 487 F.3d 790, 800 (10th Cir. 2007)(quoting Plotke v. White, 405 F.3d 1093, 1099 (10th
Cir. 2005))(“The articulation of a plaintiff’s prima facie case may well vary, depending on the
context of the claim and the nature of the adverse employment action.”). 1
“To make out a prima facie case of discrimination, [the plaintiff] must demonstrate (1)
membership in a protected class, (2) adverse employment action, and (3) disparate treatment
among similarly situated employees.” Carney, 534 F.3d at 1273 (10th Cir. 2008). The last
element may be satisfied by showing that the employer treated similarly situated employees
more favorably. Luster v. Vilsack, 667 F.3d 1089, 1095 (10th Cir. 2011). If a plaintiff can

1

The Tenth Circuit has noted “tension in our case law regarding what a plaintiff must establish as part of his or her
prima facie case of discrimination.” PVNF, 487 F.3d at 800, n. 5. Some prima facie tests require circumstances
suggestive of discrimination, while other tests examine the discrimination component when considering whether the
employer’s stated reason was pretextual. Id. at 800. “The essential purpose served by the prima facie case,
however, remains the same and serves an important function in the litigation: it eliminates the most common
nondiscriminatory reasons for the plaintiff’s adverse employment action.” Plotke, 405 F.3d at 1099(citations
omitted). In other words, “it was never intended to be rigid, mechanized or ritualistic.” Id. Regardless of whether a
court analyzes the plaintiff’s discrimination evidence as part of a prima facie case or within a pretext inquiry, “if the
court correctly concludes that the evidence of discrimination/pretext fails as a matter of law, summary judgment for
the defendant is the proper result.” PVNF, 487 F.3d at 800 (quoting Sorbo v. United Parcel Service, 432 F.3d 1169,
1173 & n. 5 (10th Cir. 2005)).
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satisfy his burden to establish a prima facie case, then the burden shifts to the defendant to
articulate a legitimate, non-discriminatory reason for its decisions. Id. at 1091.
It is undisputed that Lieutenant Martinez is a member of a protected class. However,
defendant argues that only Lieutenant Martinez’s failure to promote claim constitutes an
“adverse employment action” within the meaning of Title VII. Lieutenant Martinez does not
seem to dispute this. As a result, the Court only considers Lieutenant Martinez’s 2005 failure to
promote claim. Because there is also no dispute that candidates who are ranked first for
promotion are generally promoted, the Court finds Lieutenant Martinez has established his prima
facie case. However, defendant has provided a legitimate, non-discriminatory reason based upon
his disciplinary history. As a result, it is Lieutenant Martinez’s burden to establish pretext.
Lieutenant Martinez claims that defendant’s proffered reason for not promoting him is
pretextual and untrue, because the manager of safety is not required to review any disciplinary
history once he receives the promotion list. Strangely, plaintiff argues that Manager LaCabe’s
decision to review the candidates’ disciplinary status is evidence of pretext, because nothing
required him to do so. In support, Lieutenant Martinez cites to the Civil Service Commission
Rule 7, arguing that the rules only require individuals to be stricken from the list under certain
conditions, and that these conditions do not apply to him. [#118-3]. Because the rules did not
require his name to be stricken, he argues that Manager LaCabe’s decision was pretextual.
Rule 7(B) provides that a candidate’s name shall be stricken from an eligible register for
promotion if “[i]nformation becomes available of such a nature that it had been known prior to
placing the name of the applicant or candidate on an eligible register, it would have resulted in
the exclusion/disqualification of the individual from further participation in the hiring or
promotion process.” Lieutenant Martinez argues that because his disciplinary incident was

16

already pending and therefore known in 2004, and because he was still permitted to sit for the
exam, it is not appropriate to now exclude him from the promotion process. The Court does not
know if Manager LaCabe relied upon this rule or upon Rule 7(A)(3), which would also permit
him to strike an applicant’s name if there have been “[a]ny false, incomplete, misleading or
misrepresentative statement or any omissions of fact relevant to a determination of
qualifications….” [#118-3] 7(A)(3).
Either way, the Court is not persuaded. The issue is not whether it was known that
Lieutenant Martinez was being investigated for a disciplinary incident but rather, whether or not
Lieutenant Martinez had any “disciplinary history.” The parties seem to agree that the discipline
was not finalized when Lieutenant Martinez sat for the exam. In fact, Lieutenant Martinez
admits as much: “I believe that would have kept me from taking the exam….” [#108-2] at
64:22-24. Additionally, the letter Manager LaCabe received listing eligible individuals
specifically recommended “that a current review of their disciplinary history be undertaken to
ensure that they still meet the Disciplinary History standards for promotion to the rank of
Captain.” [#108-9]. Although it is difficult for the Court to discern whether the rules actually
prohibited Lieutenant Martinez from the promotion, there is no reason to doubt that Manager
LaCabe genuinely reached this conclusion after reviewing the disciplinary history. [#108-10];
[#108-11]; see Hardy, 185 F.3d at 1080 (noting the “pertinent question” is whether the
employer’s belief was genuine or pretextual)(citations omitted). Chief Whitman also seemed to
understand Manager LaCabe’s reasoning, even though he recommended the promotion.
The Court concludes that Lieutenant Martinez has not established that there is a genuine
issue of material fact as to whether Manager LaCabe’s reason for not promoting him was

17

pretextual and discriminatory. Accordingly, the Court grants defendant’s motion for summary
judgment as to the Title VII claim.
ii. Claims three and four: § 1981 and § 1983
For the same reasons the Court grants summary judgment as to plaintiff’s claim under
Title VII, the Court also grants summary judgment as to his claims under §§ 1981 and 1983.
iii. Claim two: retaliation
“To establish a prima facie case of retaliation, [a plaintiff] must establish that: (1) he
engaged in protected opposition to discrimination; (2) he suffered an adverse employment action;
and (3) there is a causal connection between the protected activity and the adverse employment
action.” O’Neal, 237 F.3d at 1252. Lieutenant Martinez’s claim for retaliation arises out of his
2006 EEOC complaint, claiming that after he filed this complaint, he was forced to work shifts
that no other lieutenants with his tenure were required to work and that he was not permitted
special assignments and certain overtime shifts. However, Lieutenant Martinez was transferred
from the Gang Bureau to District 4 in 2005, which is before his first EEOC charge was filed in
March, 2006. As a result, there is no causal connection between working the graveyard shift and
Lieutenant Martinez’s EEOC complaint.
Lieutenant Martinez also fails to cite to dates or specifics as to when he believes he was
denied overtime shifts and special assignments. Although he generally references “the
Columbus Day Parade, etc.” [#108-3], there is no indication as to when this occurred or who
denied him that special assignment. As a result, it is unknown to this Court whether these
alleged denials also occurred before Lieutenant Martinez filed his March, 2006 EEOC charge. If
they occurred before he filed his first EEOC charge, then again, there can be no causal
connection for retaliation.

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Additionally, Commander Sandoval’s affidavit says that Lieutenant Martinez never asked
him for overtime, and he states that he allowed Lieutenant Martinez to work the only special
assignment he ever requested, a Cinco de Mayo Celebration shift which he was given because of
his seniority over another lieutenant. [#108-4]. Although competing testimony between
Lieutenant Martinez and Commander Sandoval would create an issue of fact, because Lieutenant
Martinez fails to provide any specific instance to support his retaliation claim, the Court finds
that Mr. Martinez has failed to satisfy his burden to establish a prima facie case that DPD
retaliated against him by denying him overtime or special event shifts.
c. Hostile Work Environment
“To survive summary judgment on a claim alleging a racially hostile work environment,
the plaintiff must show that a rational jury could find that the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working environment, and that
the victim was targeted for harassment because of her race or national origin.” Hernandez v.
Valley View Hosp. Ass’n, 684 F.3d 950, 957 (10th Cir. 2012). The applicable test uses a dual
standard, asking both “whether the plaintiff was offended by the work environment and whether
a reasonable person would likewise be offended.” Id.
Although plaintiff’s brief was non-responsive to this argument, the Court considers the
following facts to be relevant in considering Lieutenant Martinez’s claim for a hostile work
environment:
His transfer and assignment to district 4, which required him to work the graveyard shift
when he says that no other lieutenant of his seniority worked such a shift.
The failure to promote Lieutenant Martinez when he was ranked first on the promotion list.

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The November, 2006 posting of the upcoming captain’s exam on Lieutenant Martinez’s door
instead of placing it in his inbox. [#108-2] at 105-06; See EEOC Charge [#108-3].
The photograph placed near his office, which Lieutenant Martinez perceived as racially
derogatory, and Chief Whitman’s corresponding request to clarify why the picture offended
him and if it even mattered who posted it. [#108-13].
“In the typical case, the question is whether the quantity, frequency, and severity of the
racial, ethnic, or sexist slurs create a work environment so hostile as to discriminate against the
minority employee.” Trujillo, 157 F.3d at 1214 (quoting Vore v. Indiana Bell Tel. Co., 32 F.33d
1161, 1164 (7th Cir. 1994). Lieutenant Martinez cannot meet his burden to establish a
pervasively hostile work environment “by demonstrating a few isolated incidents of racial
enmity or sporadic racial slurs.” Herrera v. Lufkin Indust., Inc., 474 F.3d 675, (10th Cir.
2007)(quoting Chavez v. New Mexico, 397 F.3d 826, 832)(10th Cir. 2005)). Although a few
isolated incidents of sporadic racial slurs or racial enmity is not sufficient to constitute such a
showing, “the severity and pervasiveness evaluation is particularly unsuited for summary
judgment because it is quintessentially a question of fact.” Id. (quoting McCowan v. All Star
Maintenance, Inc., 273 F.3d 917, 923 (10th Cir. 2001).
However, the present case does not even consist of racial enmity or sporadic slurs. The
only evidence of any racial enmity is the photograph posted near Detective Rodriguez’s cubicle.
Although Lieutenant Martinez says it was offensive, the content of the photograph appears to
have been intended as a pro-immigration statement. [#108-13]. Detective Rodriguez placed the
picture there himself, and Lieutenant Martinez never spoke with Detective Rodriguez about the
picture. [#108-2] at 116. Lieutenant Martinez largely could not remember the photograph when
asked, describing it as “some sort of hat or something, and it had to do with reference to

20

Mexican-Americans, and it was placed at his cubicle with a note of some sort. But I don’t
remember exactly what it was.” [#108-2] at 115:1-5.
None of the other alleged contributors to the hostile work environment shows any racial
enmity. There is no evidence to suggest that the posting of the captain’s exam on Lieutenant
Martinez’s office door was done so out of racial animus. Lieutenant Martinez even admits that
“it could have been somebody who didn’t like [him], for whatever reason.” [#108-2] at 108.
Finally, Lieutenant Martinez was assigned to the graveyard shift by Commander
Sandoval, who is Hispanic, and there has been no evidence to suggest he received this shift
because of his race or national origin. The Court has also already concluded that Lieutenant
Martinez has failed to establish any pretext or racial animus regarding the failure to promote. As
a result, even though claims for hostile work environment are typically unsuited for summary
judgment, the Court finds there is no evidence that Lieutenant Martinez was “targeted for
harassment because of [his] race or national origin.” Accordingly, the Court grants defendant’s
motion.
d. Order
The Court grants defendant’s motion for summary judgment as to Lieutenant Martinez.
His claims are dismissed with prejudice.
III.

Defendant’s Motion for Summary Judgment against Plaintiff Leonard Mares [#109]
Defendant seeks summary judgment against Leonard Mares. Plaintiff gives the Court

little support for Mr. Mares’ opposition to the motion. Plaintiff Mares’ response brief contains
only four lines of additional “facts” without any citation. [#119] at 3. The brief is then an exact
replica of Jimmy Martinez’s response brief. Defendant points out this error in its seven-page

21

reply brief. Unfortunately, plaintiff’s counsel appears to be unaware of this error, as there has
been no attempt to supplement the briefing or make any corrections.
The Court has nonetheless reviewed what little evidence has been presented. Plaintiff has
filed five exhibits, three of which are Sergeant Mares’ own EEOC complaints, one of which is an
excerpt of his deposition testimony, and the last of which is an excerpt of deposition testimony
said to support the section 1981 and 1983 claims against the City and County of Denver. As a
result, the only evidence supplied in Sergeant Mares’ favor consists of his own deposition
testimony and his own complaints to the EEOC. The quality of the copy of the deposition
testimony filed on Mr. Mares’ behalf is so poor that it was difficult for the Court to read.
Plaintiff has been a police sergeant since 1998. Sergeant Mares has filed four EEOC
charges: one on July 11, 2006 alleging sex and national origin discrimination, as well as
retaliation [#119-1]; a second on October 16, 2006, alleging retaliation [#119-2]; a third on
September 1, 2009, alleging national origin discrimination and retaliation, with a reference to
hostile work environment; [#119-3]; and a fourth charge filed on July 26, 2011, alleging
discrimination because of race, national origin, and retaliation. Id. at 2.
Sergeant Mares’ first EEOC charge contains only general allegations of harassment by
non-Hispanic employees and refers to past filings of complaints. [#119-1]. There are no specific
allegations of harassment or discrimination, and there is no allegation of an adverse employment
action. Sergeant Mares’ second EEOC charge, filed in October, 2006 states that in July, 2006 he
was forced to share a vehicle with another officer while other non-Hispanic officers were not
made to share a car. [#119-2]. He also references a non-Hispanic female who has harassed him
over the years and a friend who says this same female “should have been harder” on him. He
finally alleges that “Respondent” attempted to infiltrate the board of directors of the National

22

Latino Police Officers Association (“NLPOA”). None of these claims states an adverse
employment action, and there is no specificity that would enable the Court to evaluate any of the
harassment claims. Additionally, it appears from Sergeant Mares’ deposition testimony that he
never was actually required to share a vehicle with another sergeant. [#109-6] at 286. Defendant
argues that because the sergeants worked different days, they did not use the vehicle at the same
time, although Sergeant Mares says that was “never explained to me.” Id. at 286:24-25.
Sergeant Mares’ third EEOC charge was filed on September 1, 2009, alleging national
origin discrimination and retaliation. [#119-3]. His first allegations involve the treatment of two
other Hispanic members of DPD, saying they were unfairly reprimanded for not attending a
grand opening of the Purina Plant. There is no indication that this reprimand was racially
motivated. Sergeant Mares also raises a time-barred 2006 incident in which he felt unfairly
reprimanded and then contrasts his experience with a 2009 Denver Post article as evidence of
other detectives who were not disciplined for supposedly the same acts. The Court has
insufficient evidence to find any adverse employment action arising out of this EEOC charge.
To the extent any harassment was alleged, there is no indication that such actions were racially
motivated.
Finally, Sergeant Mares filed a July, 2011 EEOC charge saying he was humiliated as the
result of a news article accusing him of destroying evidence, which he says he did “as a matter of
housekeeping.” [#119-3] at 2. This claim also has no indication of racial motivation or even that
defendant had any role in aiding the media’s access to Sergeant Mares’ deposition testimony,
which appears to be the article’s source. [#109-7]. The Court sees no cognizable claim arising
out of this charge.

23

The Court finds that Sergeant Mares has failed to provide evidence of any adverse
employment actions. Additionally, the Court has no evidence suggesting discrimination or
retaliation. The only events potentially supporting a hostile work environment claim are
Lieutenant Sich’s “militant Latino organization” comment made to co-plaintiff Reyes Trujillo,
for which Sergeant Mares was not present and which allegedly occurred in 2004, and a racist
Columbus Day poster, which was posted at police headquarters and then removed. Mares Depo
[#109-2] at 22, 74. The Court finds these events, at best, constitute a “few isolated incidents of
racial enmity” and falls short of demonstrating that “the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive….”
Herrera, 474 F.3d at 680. Any other allegations claiming a “hostile work environment” lack
evidence suggesting any motivation by race.
Accordingly, the motion for summary judgment is granted as to all claims.
IV.

Defendant’s Motion for Summary Judgment against Plaintiff Reyes Trujillo [#110]
a. Facts
Mr. Trujillo has been employed by DPD for sixteen years and has been a community

resource officer for ten years. Trujillo Depo. [#110-1] at 5-6. As a community resource officer,
he is the liaison between the community and police department. Id. at 6:9-14. He says he has
generally been assigned to detail 2 for the past eight years, meaning that he works from 8 AM
until 6 PM four days a week. Id. at 6-7.
Mr. Trujillo has filed three charges with the EEOC, the first of which is dated April 21,
2006. In that charge, Mr. Trujillo alleges national origin discrimination, saying he has been
denied a promotion and subjected to a hostile work environment. [#120-1]. He also alleges that
“[a]lthough the command staff is aware of the National Origin comments and jokes and gestures

24

in the work environment, no action has ever been taken to stop the discriminatory comments
from permeating the work environment.” Id. In 2004, he says that a non-Hispanic female
captain made a derogatory statement regarding the Latino Police Organization in front of other
officers. Id. After reporting the comment to the commander, he says the captain tried to
intimidate him by glaring at him, staring him down, and refusing to speak to him. Id. at 2. He
says that this captain treats other Hispanic officers similarly and would allow non-Hispanic
officers to make national origin comments. Id. He believes that DPD lacks policies for reporting
discrimination complaints, and that Hispanic police officers fail to pursue complaints because of
fear of retribution. Finally, he alleges that in September, 2005, he was passed over for promotion
to detective and did not receive an interview even though he was more qualified than his partner,
who is not Hispanic and who was offered the position even though he never applied. Id. at 2.
He also alleges that subsequently, two other non-Hispanic employees were promoted.
Mr. Trujillo filed a second EEOC charge on February 25, 2008 alleging national origin
discrimination, retaliation, and age discrimination. [#120-2]. He says he was denied a
promotion to intelligence detective in August, 2007, and that he was also denied a promotion to
sergeant in late September, 2007. Id. He says that the individuals who received the promotions
were younger and not Hispanic. He also says that the employee who received the intelligence
detective promotion did not have a “title 3 requirement,” which was a reason he was given for
not being considered for the position. Id.
Commander Tony Lopez was the lieutenant in charge of the intelligence division in 2007,
and his duties included hiring detectives. Lopez Aff. [#110-5] ¶¶ 2-3. Commander Lopez
reviewed applications for two detective positions during 2007 and 2008, and Mr. Trujillo was an
applicant. Id. ¶ 4. Commander Lopez explains that he selected Dennis Sanchez, a Hispanic, and

25

Michael Takamoto, an Asian, for those positions. Id. Mr. Sanchez had twenty years of
experience and had been a gang bureau detective for several years, and Mr. Takamoto was
previously a detective in the financial crimes unit and had extensive experience as a former
financial investigator for a major bank. Id. Ultimately, Commander Lopez said he considered
these individuals to be more qualified than Mr. Trujillo. Id. ¶ 5.
Mr. Trujillo also failed to pass the written examination for sergeant the first two times he
applied for it. [#110-1] at 51-52. The test is multiple choice and scored by a computer. Id. at 52.
In 2007 and 2009, Mr. Trujillo scored high enough on the written examination to be assessed.
Id. at 55-56. Mr. Trujillo participated in three sets of oral examinations by assessors who were
not from DPD and had different national origins. Id. Applicants were also assigned numbers so
as to not reveal their identities. Id. Mr. Trujillo placed 66 out of 72 applicants who completed
the assessments in 2007, and he finished 61 out of 73 in 2009. Id. at 59, 67.
Mr. Trujillo filed his third EEOC charge on September 2, 2009, again alleging retaliation,
as well as age and national origin discrimination. [#110-4]. He cites to incidents on May 14 and
May 19, 2009. He says he was first orally reprimanded and then received a written reprimand
for missing a grand opening. Mr. Trujillo alleges that other employees have missed meetings or
were outside of the district without permission and were not disciplined. Id. These employees
included a white, non-Hispanic female police technician, a black male police sergeant, and an
Hispanic male detective. Id. Finally, he says the commander under whom he works creates a
hostile work environment against himself and those who pursue EEOC discrimination
complaints and federal discrimination lawsuits against the department. Id.

26

Lieutenant Sylvia Sich allegedly made the statement that a fellow officer “hides behind a
militant Latino organization.” [#110-1] at 22:9-10. Lieutenant Sich never supervised Mr.
Trujillo. Id. at 8.
b. Conclusions
i. Claim one: Title VII discrimination
Mr. Trujillo’s discrimination claims arise out of three failures to promote, one in 2005
and two in 2007. Regarding his 2005 failure to promote, Mr. Trujillo has alleged that he was a
qualified applicant who did not even receive an interview, while his non-Hispanic partner was
offered the position when he had not even applied for it. [#120-1]. He also says that two nonHispanic employees were promoted after this event. Id. Mr. Trujillo admits that he does not
know who else may have been interviewed for these positions. [#110-1] at 33:14-16.
It would have aided the Court’s analysis if either party had provided more evidence in
support of its position. However, it is Mr. Trujillo’s burden to establish his prima facie case. In
examining whether similarly situated employees were treated differently, a “court should also
compare the relevant employment circumstances, such as work history and company policies,
applicable to the plaintiff and the intended comparable employees.” Domai v. Discover
Financials Serv., Inc., 244 F. App’x. 169, 172 (10th Cir. 2007)(quoting Aramburu v. Boeing Co.,
112 F.3d 1398, 1404 (10th Cir. 1997)). Mr. Trujillo has not provided any evidence to allow this
Court to compare the relevant employment circumstances other than the respective races or
national origins of the persons who allegedly received the position. This is insufficient to
establish a prima facie case. Even if this Court were willing to presume that the decision to
promote a white person over a Hispanic alone could satisfy the prima facie test, Mr. Trujillo has
not offered any evidence to suggest that DPD’s proffered reason that the individuals selected

27

were more qualified is pretextual. As a result, the Court grants summary judgment against Mr.
Trujillo regarding the failure to promote in 2005.
Regarding the 2007 failure to promote to intelligence detective, Commander Tony Lopez
has explained that he considered other individuals to be more qualified, and he ultimately
promoted an Asian and Hispanic to that position. As a result, Mr. Trujillo has failed to show
disparate treatment when another Hispanic individual was selected for that 2007 promotion. In
his February, 2008 EEOC charge, Mr. Trujillo also says he was denied a promotion to sergeant
in September, 2007. However, Mr. Trujillo placed 66 out of 72 applicants in his assessment for
sergeant. Mr. Trujillo has not provided any evidence to suggest the reason for not receiving the
promotion was pretextual when he scored so low on the assessment.
As a result, the Court grants summary judgment against Mr. Trujillo arising out of his
claim for failure to promote to detective in 2007.
ii. Claim two: Retaliation
Although Mr. Trujillo alleged retaliation in his EEOC charges, the nature of his
retaliation claim is not clear to this Court. Presumably, Mr. Trujillo argues he did not receive
subsequent promotions based on his prior EEOC filings. Defendant argues that there is no
evidence of any causal connection between the protected conduct and adverse employment
actions. The Court agrees.
Mr. Trujillo has not offered any evidence to link the EEOC filings and failures to
promote. Rather, he argues that after the complaints were filed, “Plaintiff was constantly
harassed and was still passed over on promotions and was forced to file a third complaint with
the EEOC.” [#120] at 7. However:
“Unless an adverse action is very closely connected in time to the protected activity, a
plaintiff must rely on additional evidence beyond mere temporal proximity to establish
28

causation. A six-week period between protected activity and adverse action may be
sufficient, standing alone, to show causation, but a three-month period, standing alone, is
insufficient.”
MacKenzie v. City and County of Denver, 414 F.3d 1266, 1279-80 (10th Cir. 2005). Mr.
Trujillo’s EEOC complaints were filed in April, 2006, February, 2008, and September, 2009.
The failure to promote in 2007 was at least several months after the April, 2006 filing and is
consequently insufficient to establish a causal connection absent other evidence. Although Mr.
Trujillo sought a promotion again in 2009, he never filed an EEOC charge arising out of this
failure to promote, nor has he argued this in his briefing. Consequently, the Court does not
consider the 2009 failure to promote to be part of his case.
iii. Claims three and four: §§1981 and 1983
For the same reasons the Court granted summary judgment against Mr. Trujillo for his
Title VII claims, the Court grants summary judgment under sections 1981 and 1983.
iv. Hostile Work Environment
Mr. Trujillo’s response brief fails to advance any argument to support his hostile work
environment claim. As a result, the Court once again is placed in the position of sifting through
plaintiff’s evidence for him to determine whether his claim might survive summary judgment.
The facts which appear to support a hostile work environment include: Lieutenant Sich’s
comment that a fellow officer “hides behind a militant Latino organization” in 2004; general
allegations, without any dates or specifics, that Lieutenant Sich would admonish other Hispanic
officers; May, 2009 allegations that Mr. Trujillo was orally reprimanded for missing a “grand
opening,” and that he received a corresponding negative comment in his Supervisor Situation
Report (SSR) book; and allegations that other police employees missed meetings without any
discipline or were outside of the district without permission and were not disciplined. These

29

individuals who were not disciplined, according to Mr. Trujillo’s September 2009 EEOC charge,
were a white female, a black male, and an Hispanic male.
The Court has difficulty construing these events as constituting a “racially hostile work
environment” that is “permeated with discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive….” Hernandez, 684 F.3d at 957. The only incidents supporting
Mr. Trujillo’s claim is Lieutenant Sich’s alleged comment from 2004. However, Mr. Trujillo did
not file his first EEOC complaint until 2006. As previously discussed, a plaintiff must file an
EEOC charge within 300 days of the alleged discriminatory event.
The Court understands that “a hostile work environment claim is composed of a series of
separate acts that collectively constitute one ‘unlawful employment practice.’” Tademy v. Union
Pacific Corp., 614 F.3d 1132, 1138 (10th Cir. 2008)(quoting Nat’l Railroad Passenger Corp. v.
Morgan, 536 U.S. 101, 117 (2002)). “They occur over a series of days or perhaps years and, in
direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” Id.
Ultimately, a court may consider the entire scope of a hostile work environment claim as long as
an act contributing to the hostile environment occurs within the statutory time period. Tademy,
614 F.3d at 1139 (interpreting Morgan, 536 U.S. at 105).
However, Lieutenant Sich’s comment is the only specific discriminatory allegation, and
this Court is unable to link it to anything that happened within the 300 day filing period. The
claim that Mr. Trujillo was unfairly reprimanded for missing an event when other employees of
varying races were not reprimanded for allegedly similar behavior simply does not even allege
the kind of racial enmity or pervasive hostility required to sustain the claim. Accordingly, the
Court grants summary judgment as to this claim and consequently to all claims alleged by Mr.
Trujillo.

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V.

Defendant’s Motion for Summary Judgment against Plaintiffs Dean Gonzales, Daniel
Rojas, Kimberly Lovato, and Yolanda Goad-Cunningham [#111]

Defendant seeks summary judgment as to all claims asserted by plaintiffs Dean Gonzales,
Daniel Rojas, Kimberly Lovato, and Yolanda Goad-Cunningham. Although four separate
response and reply briefs were filed with respect to each individual plaintiff, defendant argues
that none of the four plaintiffs has any evidence supporting their allegations that race or gender
motivated their perceived harassment or discrimination. The Court considers each plaintiff
below.
a. Dean Gonzales
Plaintiff Dean Gonzales’ claims arise out of DPD’s failure to re-hire him after he says he
was forced to resign in May, 2003 when DPD denied his request for leave due to stress. At that
time, Officer Gonzales says he was receiving death threats from the family of a suspect who died
during an altercation with him, although the suspect died of a cocaine overdose. In December,
2003, Officer Gonzales applied for reinstatement. He says he was denied at that time and reapplied in February, 2005. Although he received conditional employment, his re-employment
request was eventually denied. Officer Gonzales says this request was delayed for over a year
without resolution, and that the Civil Service Commission had an incorrect picture of his internal
affairs files because at least two evaluations reflecting near-perfect scores from a supervisory
officer were missing.
On June 6, 2006, Officer Gonzales filed a charge of discrimination with the EEOC
alleging national origin discrimination. [#121-2]. In the charge, Officer Gonzales says he was
denied reinstatement to his position as a police officer in December, 2005, that he was an
exemplary police officer, that he resigned for personal reasons in May, 2003, that he never

31

received an explanation regarding his internal affair files or an explanation as to how his work
history was poor, that he was only given five minutes to address the Civil Service Commission
when non-Hispanics have not been limited on their time, and that other non-Hispanic employees
have resigned and later been reinstated without these obstacles. Id.
Officer Gonzales admits he does not have a claim for retaliation, nor does he appear to
have alleged a hostile work environment claim. As a result, the Court only considers his Title
VII claim for discrimination and the corresponding claims under sections 1981 and 1983.
i. Claim one: Title VII discrimination
Officer Gonzales admits that any Title VII claims he may have had out of his
constructive termination claim are time-barred, but he maintains that the refusal to rehire him in
2005 is actionable. The Court also notes that he resigned “for personal reasons and to explore
other career opportunities” in 2003 [#121-2], and as a result, the Court does not believe he stated
a claim for constructive termination in his EEOC complaint. However, regarding the refusal to
rehire, Officer Gonzales argues that his employment background in his internal affairs file was
inaccurate, that he had an outstanding performance record, and that the complaints in his file
should not have been given undue emphasis, because he worked in one of the toughest
neighborhoods in the city where complaints are the highest. Ultimately, he argues that the denial
to reinstate him was unreasonable.
Even assuming that Officer Gonzales can establish a prima facie case for discrimination
in the failure to rehire, defendant has provided a legitimate, non-discriminatory reason for the
decision – Officer Gonzales’ internal affairs records contained numerous excessive force
complaints. Defendant has submitted evidence that Officer Gonzales was involved in 72 use of
force incidents during his time at DPD, accounting for 19% of the 368 use of force incidents

32

when compared with other officers in his academy class. [#111-5]. Officer Gonzales does not
appear to dispute the accuracy of these records. As a result, Officer Gonzales must present
evidence that this proffered reason is pretextual. He has failed to do so.
His argument for pretext is unclear, but it appears to be that the Civil Service
Commission got it wrong. He says he was not given enough time to present his case, and that
relevant evidence from his file was missing. He also claims, without any evidence, that others
similarly situated were reinstated or provided with more time. However, Mr. Gonzales needs to
provide more than his argument or belief that the defendant’s stated reasons were pretextual in
order to avoid summary judgment. See Bones v. Honeywell Intern., Inc., 366 F.3d 869, 875
(10th Cir. 2004)(“To defeat a motion for summary judgment, evidence, including testimony,
must be based on more than mere speculation, conjecture, or surmise.”). To demonstrate pretext,
a plaintiff must provide evidence of “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that
a reasonable fact finder could rationally find them unworthy of credence and hence infer that the
employer did not act for the asserted non-discriminatory reasons.” Jaramillo v. Colorado
Judicial Dept., 427 F.3d 1303, 1308 (10th Cir. 2005)(quoting Morgan v. Hilti, Inc., 108 F.3d
1319, 1323 (10th Cir. 1997)). Mr. Gonzales has not provided any such evidence. Additionally, a
court may not “act as a ‘super personnel department’ that second guesses employers’ business
judgments.” Simms, 165 F.3d at 1330. This is essentially what Mr. Gonzales asks this Court to
do. As a result, the Court grants summary judgment as to this claim.
ii. Claims three and four: §§ 1981 and 1983
The Court grants summary judgment against Officer Gonzales’ §§ 1981 and 1983 claims
for the same reasons it grants summary judgment against his Title VII claims.

33

b. Daniel Rojas
Plaintiff Daniel Rojas has been employed by DPD since 1983 and was promoted to
detective in 1998. [#1] ¶ 133. Detective Rojas’ claims arise out of an internal affairs
investigation, which Detective Rojas believes was conducted outside of normal operating
procedure and was discriminatory because he says similarly charged white officers are not forced
to endure such investigations. Id. ¶ 135. Detective Rojas alleges that during the investigation
and after it ended, he was given a punitive work assignment. He says it affected the quality and
type of work he did and was denied overtime and other financial incentives he could have
received with his prior assignment. Detective Rojas claims this assignment continued four
months after all significant charges had been dismissed.
On May 10, 2006, Detective Rojas filed a charge with the EEOC alleging national origin
discrimination [#121-2], and he also filed a complaint with the Office for Civil Rights on July 3,
2006 [#122-1]. He says he self-reported to his supervisors and admitted that he met with
informants without first informing a supervisor and without a witnessing officer. [#122-1].
Detective Rojas believes Division Chief David Fisher’s decision to keep the investigation within
his control was motivated by racial bias instead of Chief Fisher’s purported reason to investigate
a pattern of misconduct. [#122-1] at 2.
In his EEOC charge, Detective Rojas says that the investigation originally concluded in
October, 2004 with a recommended three day suspension, but that Chief Fisher would not agree
to it and ensured the investigation continued. [#122-3]. Detective Rojas says that in November,
2005, the manager of safety exonerated him on the “departing from truth” charge but
recommended disciplinary action for two procedural violations. Id. at 2. Detective Rojas agreed
to a 20 day suspension and not to appeal. Id. He says that normally after an investigation, an

34

employee is allowed off of desk duty, but that he remained on desk duty until April, 2006, four
months after the end of the investigation. Even though he was exonerated of the departing from
truth charge, Detective Rojas noticed the charge still listed as “sustained” in the computer in
January, 2006. Id. Detective Rojas says that he requested an investigation but was told it was a
“simple mistake.” Id. He says he turned to the NLPOA, which called the local papers. A few
weeks later he says he was offered a detective position in district 3.
Defendant argues this Court should not consider Detective Rojas’ narrative attached to
his filing with the civil rights office [#122-1] because it is not a sworn statement and contains
inadmissible hearsay. The Court has already reviewed considerable hearsay evidence in the
course of this Order, and the Court gives no weight to hearsay that would be inadmissible at trial.
Much of Detective Rojas’ narrative in his civil rights office complaint overlaps with the content
of his EEOC charge, which will be the Court’s primary focus. In this narrative, Detective Rojas
discusses the alleged results of Lieutenant Kroncke’s investigation pursuant to Chief Fisher’s
directive, arguing that Lieutenant Kroncke found nothing to support any pattern of misconduct.
[#122-1]. However, the Court does not have Lieutenant Kroncke’s report and therefore has no
knowledge regarding its contents. Although Detective Rojas lists other non-Latino officers
whom he believes were disciplined less harshly, the Court again has no other evidence
explaining the circumstances regarding the disciplinary actions taken and thus has no ability to
determine if these individuals’ circumstances are comparable to Detective Rojas.
i. Title VII
Defendant first seeks summary judgment because Detective Rojas did not file his EEOC
charge until May, 2006 when the decision to place him on desk duty and conduct an
investigation occurred in 2004. However, Manager LaCabe’s final decision resulting in the

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twenty day suspension occurred in November, 2005, which is within the relevant time period.
Detective Rojas also says he remained on desk duty after the final disciplinary decision. The
Court finds these actions and surrounding circumstances are appropriate for consideration.
In order to sustain his discrimination claim, Detective Rojas must cite to an adverse
employment action. Detective Rojas seems to argue that every perceived negative action
constituted an adverse employment action, including the Chief Fisher’s final report, Deputy
Chief Battista’s recommendation of a 30 day suspension, Detective Rojas’ suspension without
pay in November 2005, his reinstatement to desk duty, and the computer report that incorrectly
reflected a sustained charge of departing from truth. Title VII discrimination cases have
generally defined an adverse employment action as including a “significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.” Piercy v.
Maketa, 480 F.3d 1192, 1203 (10th Cir. 2007)(quoting Hillig v. Rumsfeld, 381 F.3d 1028, 103233 (10th Cir. 2004)). While adverse employment actions are not limited to these acts, a “plaintiff
must show that the alleged adverse action caused more than ‘de minimis harm’ to or a ‘de
minimis impact’ upon an employee’s job opportunities or status. E.E.O.C. v. C.R. England, Inc.,
644 F.3d 1028, (10th Cir. 2011); See also Piercy, 480 F.3d at 1203 (“[A] mere inconvenience or
an alteration of job responsibilities” is not an adverse employment action.). Although an
“adverse” employment action in the retaliation context is evaluated by a more lenient standard,
“the substantive discrimination provisions of Title VII are limited to adverse actions that affect
employment or alter conditions of the workplace.” Id. at 1203 n. 12 (internal quotations
omitted).

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The Court finds that Detective Rojas has sufficiently established two adverse
employment actions: (1) the final decision by Manager LaCabe in November, 2005, resulting in
a 50 day suspension with 30 days held in abeyance [#111-10] at 50:22-25; and (2) Detective
Rojas’ assignment to desk duty until April, 2006. Defendant argues that because Detective Rojas
was placed on desk duty prior to the 300 day filing period, he cannot sustain this action.
However, the Court finds that because Detective Rojas remained on desk duty when it seems he
should have been relieved, the action of keeping him on desk duty constitutes its own adverse
employment action falling within the 300 day filing period. Additionally, because Detective
Rojas was “not allowed to do any police work” while on desk duty, the Court finds a desk duty
assignment constitutes an adverse employment action.
The other actions alleged do not constitute adverse employment actions within the
meaning of Title VII discrimination claims. The other reports prior to recommending suspension
prior to Manager LaCabe’s final decision were not final and had no effect on Detective Rojas.
Similarly, the incorrectly “sustained” departing from truth charge is not an adverse employment
action, because Detective Rojas found the alleged error before incurring any harm.
Regarding Detective Rojas’ suspension, Detective Rojas admits that he violated the rules
for which he was suspended. [#111-10] at 51. Additionally, Detective Rojas does not believe
Manager LaCabe discriminated against him when he issued this decision. Id. at 49:18-23. As a
result, there is a legitimate, non-discriminatory reason for Detective Rojas’ suspension, and
Detective Rojas admits the ultimate decision was not pretextual.
Regarding Detective Rojas’ additional time on desk duty, defendant claims that he
remained under further investigation to determine whether his misconduct would result in
demotion. See Rojas Depo [#111-10] at 61 (explaining that he later learned through Chief

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Whitman that there was a “secret investigation”). Detective Rojas says he only learned why he
was still on desk duty in March when he was called into Chief Whitman’s office. Id. at 64:1118. Detective Rojas says he was “under the restrictions long after I completed my suspension
time and my investigation was over.” Id. Although Chief Whitman did not ultimately demote
him, Detective Rojas believes Chief Whitman discriminated against him by taking Chief Fisher
at face value and accepting all of Chief Fisher’s other recommendations. Id. at 69:18-25.
Detective Rojas also believes the incorrectly “sustained departing from the truth charge” is
suggestive of pretext. Id. at 71.
The Court finds that Detective Rojas has established his prima facie case for
discrimination. He is a member of a protected class, he suffered an adverse employment action,
and he was treated differently than others after the completion of a disciplinary action when he
was not relieved from desk duty. Defendant has proffered a legitimate, non-discriminatory
reason, which is that Detective Rojas was still under investigation as to whether or not he would
be demoted. However, Detective Rojas has testified that it was a “secret investigation,” and that
he did not even know why he was still on desk duty when he met with Chief Whitman in March,
over three months after his suspension. It is difficult to understand why, if Detective Rojas was
still under investigation, he was unaware of it. It is also unclear why this recommendation and
decision were not part of the original disciplinary recommendation given to Manager LaCabe
and why it took an additional four months before Detective Rojas was allowed to return to police
work. Although not an adverse employment action on its own, the “sustained” departing from
truth charge in the computer system in January is also cause for suspicion given the surrounding
context. Finally, after Detective Rojas turned to NLPOA, which called the local paper, Detective
Rojas says he was offered a detective position in district 3.

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The Court finds these circumstances constitute evidence of “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy
of credence and hence infer that the employer did not act for the asserted non-discriminatory
reasons.” Jaramillo, 427 F.3d at 1308. As a result, Detective Rojas has demonstrated sufficient
evidence of pretext, and the Court denies summary judgment as to this claim.
ii.

Claim two: Retaliation

Detective Rojas has not clearly alleged a claim for retaliation. [#1] ¶¶ 133-138.
Additionally, Detective Rojas never filed an EEOC charge alleging retaliation, and all events at
issue occurred before he filed his only EEOC charge alleging discrimination. Accordingly, the
Court grants summary judgment as to any pending claim for retaliation.
iii. Sections 1981 and 1983
Defendant seeks summary judgment arguing that Detective Rojas cannot sustain a claim
against the City and County of Denver under section 1983, because he has not provided evidence
sufficient to establish municipality liability. A municipality can be found liable under sections
1981 and 1983 only where the municipality itself causes the violation. See Collins v. City of
Harker Heights, Tex., 503 U.S. 115, 123 (1992). “It cannot be held liable for the acts of its
employees on a theory of respondeat superior.” Brammer-Hoelter v. Twin Peaks Charter
Academy, 602 F.3d 1175, 1188 (10th Cir. 2010). As a result, the City and County of Denver
cannot be made vicariously liable for acts of individuals. Rather a plaintiff must establish (1) a
municipal policy or custom, and (2) a direct causal link between the policy or custom and the
alleged injury. Carney, 534 F.3d at 1274. In order to establish a custom, the actions of the

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municipal employees must be “continuing, persistent and widespread.” Id. (quoting Gates v.
Unified Sch. Dist. No. 449, 996 F.2d 1035, 1041 (10th Cir. 1993)).
The only evidence that Detective Rojas has only provided in support of municipality
liability is the deposition testimony of Captain Sich, in which she discusses her perceived gender
discrimination while working at DPD. [#121-5]. In the deposition testimony provided, Captain
Sich does not discuss any kind of racial animus. As a result, her testimony is inapplicable to
Detective Rojas. Even if Captain Sich’s testimony were applicable, deposition testimony from a
fellow officer’s experience of perceived discrimination is insufficient to establish any kind of
municipal policy or custom on behalf of the City and County of Denver. See Brammer-Hoelter,
602 F.3d at 1188 (“Municipal liability under § 1983 attaches where – and only where – a
deliberate choice to follow a course of action is made from among various alternatives by the
official or officials responsible for establishing final policy with respect to the subject matter in
question.”). As a result, the Court grants summary judgment in defendant’s favor for these
claims.
iv. Conclusion
The Court grants defendant’s motion as to claims two, three, and four for retaliation,
section 1981, and section 1983 respectively. The Court denies summary judgment as to
Detective Rojas’ discrimination claim under Title VII regarding his desk duty assignment.
c. Kimberly Lovato
Plaintiff Kimberly Lovato started working for DPD in October, 1998 and was disciplined
in September, 2005 for allegations she says were made by her ex-husband, who was also
employed by DPD. Her claims arise out of treatment by her commanding officer, relegation to a

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desk assignment, alleged denial of promotion requests because of her desk assignment, and other
harassing behavior. [#1] ¶¶ 96-101.
i. Facts
On June 15, 2006, Officer Lovato filed a charge with the EEOC alleging sex and national
origin discrimination. [#123-1]. She says that she has been employed with DPD since 1998 and
never had performance related issues until the new commander came to district 2. In September,
2005, she says she was wrongfully disciplined after her husband, who is also a police officer,
made a false allegation that she had forged documents. Id. She says DPD tried to charge her
with a criminal act, but the district attorney’s office declined. However, she says her nonHispanic commander reassigned her to desk duty, which is viewed as punishment, and that she
was denied a promotion to sergeant because her commander rejected her request to be returned
to her position.
She also says she was a witness to an excessive force complaint against an officer and
submitted a report to her commander explaining that she did not observe any excessive force.
Approximately two months later, she says she was notified that disciplinary action had been
taken against her for falsifying her report. A 50-day suspension without pay was recommended.
Although other officers also submitted reports saying that there was no excessive force, they
were not accused of falsification. On March 8, 2006, Officer Lovato says that she learned her
commander recommended that she be demoted. On March 28, 2006, Officer Lovato says she
filed a harassment and hostile work environment complaint with the chief of police and did not
received any response and was unaware of any corrective action. She believes these actions
were due to gender and national origin. In her complaint, Officer Lovato indicates she was

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referred to as a “know-it-all-little-bitch” on one occasion and ordered to clean the kitchen by
Lieutenant Sich on another occasion. [#1] ¶ 101.
ii. Claim one: Discrimination in Violation of Title VII
As discussed with respect to Detective Rojas, an adverse employment action for Title VII
discrimination must be “materially adverse” to an employee’s job status, such as termination,
demotion, failing to promote, or an unwelcome reassignment with significantly different duties.
See Piercy, 480 F.3d at 1203. The Court finds that three of Officer Lovato’s allegations could
constitute an adverse employment action for Title VII: (1) her two day suspension for violations
of DPD rules and regulations for having a police sergeant notarize a personal document for her
[#111-11] at 7-8; (2) the relegation to desk duty; and (3) denial of promotions. It is unclear
whether Officer Lovato believes the accusation that she falsified the excessive force report
constitutes an adverse employment action, but based upon the information before the Court, the
Court believes it does not.
It is debatable whether two days of “suspended time” constitute an adverse employment
action within the meaning of a Title VII discrimination claim. However, because Manager
LaCabe imposed the discipline, and because Officer Lovato admits that she did not believe
Manager LaCabe was discriminating against her, [#111-11] at 20:3-17, the Court finds that
defendant has proffered a legitimate, non-discriminatory reason for its action and that Officer
Lovato admits the reason proffered was not pretext for discrimination.
Regarding Officer Lovato’s placement on desk duty, Officer Lovato was being
investigated for forgery by Colorado Bureau of Investigation (“CBI”) as a result of her exhusband’s allegation. [#111-11] at 10:11-12. Officer Lovato was placed on desk duty at that
time and acknowledges that it is standard operating procedure for officers under investigation to

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be assigned to desk duty. Id. at 20-21. However, Officer Lovato maintains that she was on this
restrictive duty until March, 2006 and was unable to work secondary shifts or receive
promotions. Commander Jones’ affidavit indicates that CBI did not exonerate Ms. Lovato, and
that she still “harbored serious doubts about Lovato’s honesty and integrity. Because of these
doubts, I believed that Lovato’s effectiveness as an officer on the street had been severely
compromised.” [#111-13] ¶ 10. Although Officer Lovato argues that defendant failed to proffer
a legitimate, non-discriminatory reason for its action, Commander Jones’ affidavit constitutes
such a reason. Officer Lovato’s only argument for pretext is that Commander Jones forced her
to remain on desk duty after Chief Whitman ordered that she return to full duty in March, 2006.
[#111-11]. In support, Officer Lovato provides a letter she sent to Chief Whitman, but there is
no indication regarding Chief Whitman’s response. [#123-3]. Officer Lovato says she remained
on desk duty until she transferred out in July, 2006.
Officer Lovato has failed to provide any evidence to suggest that Commander Jones’
actions were motivated by race or gender. Rather, Officer Lovato asserts her own belief: “It was
a known fact, common knowledge, that Rhonda Jones and one other of her lieutenant had issues
with female officers.” [#111-11] at 32:3-5. “To defeat a motion for summary judgment,
evidence, including testimony, must be based on more than mere speculation, conjecture, or
surmise.” Bones, 366 F.3d at 875. Officer Lovato has not supplied any evidence beyond
speculation or conjecture.
Although the Court determined that Detective Rojas established sufficient “weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions” to suggest that his desk duty
assignment may have been pretextual, Officer Lovato’s circumstances are not analogous.
Detective Rojas had already been disciplined, did not know why he remained on desk duty, and

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later learned of a pending “secret” investigation about whether or not to demote him. His
extensive investigation for a “pattern of misconduct” was also initiated by the same supervisor
who sought his demotion and who kept him on desk duty. The charge for which he had been
exonerated also remained in his record. These facts created an issue of material fact as to
whether or not his desk assignment was pretextual. In contrast, Officer Lovato’s desk duty arises
out of her supervisor’s mistrust when CBI did not exonerate her for the underlying charges.
Additionally, the charges and investigation were initiated by Officer Lovato’s ex-husband, not
the supervisor who also placed her on desk duty. Without additional evidence, Officer Lovato
has failed to establish pretext.
Finally, Officer Lovato has not made any case for the failure to promote. She became a
sergeant in February, 2007, and she acknowledges that she applied for a promotion in 2006 and
was promoted in a timely fashion. [#111-11] at 34:6-9. Although her June, 2006 EEOC
complaint says she was denied for the position of sergeant because of her commander, her
response brief barely addresses the claim with no citation to the record and with a general
statement that she “was repeatedly denied promotion requests because of her current desk
assignment.” [#123] at 5. Without further argument and evidence, the Court relies upon Officer
Lovato’s own deposition testimony. Accordingly, the Court finds there is no such claim for
failure to promote.
As a result, the Court grants summary judgment as to this claim.
iii. Retaliation
Officer Lovato did not allege any facts supporting a claim for retaliation in her complaint,
nor did she file an EEOC charge alleging retaliation, either through the attached narrative or by
checking the retaliation box. As a result, the Court grants summary judgment as to this claim.

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iv. 1981/1983
For the same reasons Officer Lovato’s claim fails under Title VII, they fail under sections
1981 and 1983. Although Officer Lovato attached Captain Sich’s deposition testimony to
support her claim against the City and County of Denver, this Court has already noted that the
deposition testimony of another employee’s perceived discrimination is insufficient to establish
municipal liability. As a result, even if Officer Lovato could sustain her Title VII claim, her §§
1981 and 1983 claims fail.
v. Hostile work environment
To survive summary judgment on a claim alleging racially hostile work environment,
Officer Lovato must show that she “was targeted for harassment because of her race or national
origin.” Hernandez, 684 F.3d at 957.; See also Morris v. City of Colorado Springs, 666 F.3d
654, 663 (10th Cir. 2012)(a plaintiff must “show (1) that she was discriminated against because
of her sex; and (2) that the discrimination was sufficiently severe or pervasive such that it altered
the terms of conditions of her employment and created an abusive working environment.”).
Although Officer Lovato’s response brief fails to address this claim, the Court finds that the
events supporting Officer Lovato’s hostile work environment claim include: her initial desk duty
assignment, which was rescinded in March, 2006 by Chief Whitman; her continued desk duty
after March, 2006 until she was transferred out in July or August, 2006; the allegation that she
falsified her excessive force testimony when other officers were not similarly accused; her belief
that she received this treatment as a woman: “It was a known fact, common knowledge, that
Rhonda Jones and one other of her lieutenant had issues with female officers.” [#111-11] at
32:3-5; the order to clean the kitchen; the reference to her as a “know-it-all-little-bitch.”

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The only race or gender based allegations fall outside of the 300 day filing time frame.
The “know-it-all-little-bitch” comment was made in 1999, approximately 6-7 years before she
filed her EEOC charge. [#111-11] at 52. The kitchen cleaning incident occurred in June, 2004.
Id. at 53:24-54:1. Officer Lovato filed her EEOC charge in 2006. Although this Court has noted
that because a hostile work environment claim is composed of a series of separate acts and that
the Court may consider events outside of the 300 day filing requirement, the Court must also find
the acts outside of that time frame sufficiently relate to acts alleged within the applicable time
frame. See Tademy, 614 F.3d at 1139. The Court finds this one comment made by a sergeant in
1999 and one incident in which a female supervisor required Officer Lovato to clean the kitchen
are not sufficiently related to any allegations within the 300 day filing requirement.
Additionally, these incidents do not establish the pervasiveness required to sustain a hostile work
environment claim.
Officer Lovato has also failed to provide this Court with any evidence surrounding her
claim that she was wrongly accused of falsifying her excessive force testimony when other
officers were not similarly accused. Beyond this plain statement, the Court has no knowledge as
to the specifics of what Officer Lovato says occurred, who else provided similar reports, how
they were treated, or even how the alleged disciplinary action that Commander Jones initiated
against Officer Lovato was ultimately resolved. Without more information or evidence, the
Court cannot sustain a harassment claim on this allegation. Additionally, beyond Officer
Lovato’s assertion that Commander Jones dislikes Hispanic women, there is no reason to believe
Commander Jones’ behavior stemmed from racial or gender animus.

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Ultimately, Officer Lovato has failed to demonstrate that the workplace was permeated
with discriminatory intimidation, ridicule, and insult. See Hernandez, 684 F.3d at 957. As a
result, the Court grants summary judgment as to this claim.
vi. Conclusions
The Court grants summary judgment against Officer Lovato as to all claims.
d. Yolanda Goad-Cunningham
i. Facts
Plaintiff Yolanda Goad-Cunningham alleges that she has been systematically harassed
because of her race by her supervisor Sergeant Sullivan. Her complaint cites two events, one in
2004 and the other in 2005, in which she believes Sergeant Sullivan treated her unfairly. [#1] ¶¶
78-79. She alleges that Sergeant Sullivan refused to approve an overtime request for her when
the Sergeant approved an identical request for a white officer. She also accuses Sergeant
Sullivan of deliberately failing to relay her notification that she would be late for work, and she
was verbally reprimanded by a different sergeant for failing to call her supervisor. Ms. GoadCunningham filed a formal complaint with DPD on April 20, 2005 regarding her perceptions of
Sergeant Sullivan’s behavior, but she did not file a formal EEOC charge until October 18, 2007.
As a result, defendant contends that any claim by Ms. Goad-Cunningham is time-barred. Ms.
Goad-Cunningham’s response appears to argue that her claims are not time-barred because they
arise out of a “pattern of practice.”
ii. Title VII discrimination, retaliation, and hostile work environment
First, the Court finds that Ms. Goad-Cunningham has not alleged any adverse
employment action, nor does the complaint contain any allegations to support retaliation.
Although her deposition testimony refers to being “forced to retire” in 2007, the Court has no

47

evidence regarding the circumstances of her retirement, nor are there any allegations in the
complaint to suggest constructive termination or forced retirement.
Defendant argues that Ms. Goad-Cunningham cannot sustain any claims because the acts
pled in the complaint are well beyond the 300 day requirement under Title VII. To the extent
Ms. Goad-Cunningham has alleged any retaliation claim, the Court agrees. With respect to her
hostile work environment claim, this Court has already acknowledged that it may consider the
entire scope of a hostile work environment claim as long as an act contributing to the hostile
environment occurs within the statutory time period. Tademy, 614 F.3d at 1139 (interpreting
Morgan, 536 U.S. at 105). Ms. Goad-Cunningham filed an extensive EEOC charge, alleging
events dating back to 1995. [#124-1]. The Court has reviewed Ms. Goad-Cunningham’s EEOC
charge with respect to events alleged within the 300 days before her EEOC filing.
The only allegation that remotely relates to the 2004 and 2005 events alleged is Ms.
Goad-Cunningham’s statement from January, 2007, in which she says her past complaint against
Sergeant Sullivan was sustained but does not elaborate as to what this means. She also says that
an injured co-worker received an assignment she wanted that would have allowed her to be away
from Sergeant Sullivan, whom she accused of harassing her previously.
To determine whether acts alleged within the applicable time frame are sufficiently
related to acts beyond the time frame, courts should look at “the type of these acts, the frequency
of the acts, and the perpetrator of the acts.” Tademy, 614 F.3d 1132. There is no allegation of
other acts committed by Sergeant Sullivan in 2007. Additionally, there is no evidence to suggest
that the perceived harassment was due to race or sex. Even Ms. Goad-Cunningham admits as
much: “He…never blatantly said anything about my race. But his constant and blatant and

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continuous aggression and demeaning activity toward me, for no other apparent reason, led me to
believe in my heart that that is the reason for his continuous behavior.” [#111-8] at 12.
To survive summary judgment, Ms. Goad-Cunningham must show she was “targeted for
harassment because of her race or national origin.” Hernandez, 684 F.3d at 957. In addition to
finding that Ms. Goad-Cunningham’s claims are time-barred, she has also failed to allege or
sustain facts supporting her contention that she was targeted for harassment because of her
national origin. Accordingly, the Court grants summary judgment in defendant’s favor as to Ms.
Goad-Cunningham’s hostile work environment claim.
iii. Custom/practice re:1983 and 1981
For the same reasons explained above, the Court grants summary judgment as to Ms.
Goad-Cunningham’s sections 1981 and 1983 claims. As repeatedly noted with her co-plaintiffs,
Ms. Goad-Cunningham also cannot sustain a custom or policy of a municipality through the
deposition testimony of a fellow employee who also felt the effects of discrimination. As a
result, the Court grants summary judgment as to claims brought pursuant to sections 1981 and
1983.
Order
1. Defendant’s motion for summary judgment as to Mr. Abeyta [#107] is GRANTED, and
his claims are dismissed with prejudice.
2. Defendant’s motion for summary judgment as to Mr. Martinez [#108] is GRANTED, and
his claims are dismissed with prejudice.
3. Defendant’s motion for summary judgment as to Mr. Mares [#109] is GRANTED, and
his claims are dismissed with prejudice.

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4. Defendant’s motion for summary judgment as to Mr. Trujillo [#110] is GRANTED, and
his claims are dismissed with prejudice.
5. Defendant’s motion for summary judgment as to [#111] is GRANTED IN PART and
DENIED IN PART. The Court grants defendant’s motions in their entirety as to
plaintiffs Dean Gonzales, Kimberly Lovato, and Yolanda Goad-Cunningham. The Court
grants in part and denies in part defendant’s motion regarding Mr. Rojas. The Court
grants defendant’s motion as to claims two, three, and four with respect to Mr. Rojas but
denies the motion as to claim one. Mr. Rojas’ claim for Title VII discrimination may
proceed.
DATED this 5th day of September, 2012.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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