Kenfield v. Colorado Department of Public Health & Environment
OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO MODIFY JUDGMENT AND DENYING PLAINTIFF'S MOTION TO MODIFY JUDGMENT: The Defendant's Motion to Modify 122 is GRANTED, and the JUDGMENT is DEEMED AMENDED as of this date to include an award of costs to the Defendant pursuant to Fed.R.Civ.P. 54(d)(1). Ms. Kenfield's Motion to Modify 123 the Judgment is DENIED. by Judge Marcia S. Krieger on 8/20/12.(msksec, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 09-cv-01390-MSK-BNB
COLORADO DEPARTMENT OF PUBLIC HEALTH & ENVIRONMENT,
OPINION AND ORDER GRANTING DEFENDANT’S MOTION
TO MODIFY JUDGMENT AND DENYING PLAINTIFF’S
MOTION TO MODIFY JUDGMENT
THIS MATTER comes before the Court pursuant to the Defendant’s Motion to Modify
(# 122) the Court’s September 6, 2011 Opinion (# 120) granting summary judgment to the
Defendant, Ms. Kenfield’s response (# 124), and the Defendant’s reply (# 125); and Ms.
Kenfield’s Motion to Modify (# 123) the Court’s Opinion, the Defendant’s response (# 126), and
Ms. Kenfield’s reply (# 129).
The Court will not recite the facts in extensive detail, instead referring the reader to the
September 6, 2011 Opinion. In summary, the Court granted summary judgment to the
Defendant on Ms. Kenfield’s claims that she was given adverse performance evaluations and
denied promotions by her supervisor, Ms. Bruce (who is black) as a result of discrimination
based on Ms. Kenfield’s race (white), and that she had job duties taken away from her as
retaliation for having filed complaints of discrimination.
Both parties have now moved for reconsideration or alteration of the Court’s Opinion and
A. Defendant’s motion
The Defendant’s motion (# 122) is straightforward: the Defendant contends that the
Judgment (# 121) entered by the Clerk of the Court requires revision insofar as it failed to award
costs pursuant to Fed. R. Civ. P. 54(d)(1). The motion is well taken. Fed. R. Civ. P. 54(d)(1)
provides that costs are to be awarded as a matter of course “unless a federal statute, these rules,
or a court order provides otherwise.”
Ms. Kenfield makes a perfunctory argument that 42 U.S.C. § 2000e-5 has some bearing
on the issue of costs, but does not identify any particular provision of that lengthy statute
standing for that proposition. The Court finds nothing in the cited statute that addresses the
propriety vel non of awarding costs against an employee. Ms. Kenfield also argues that the
Court “has some discretion concerning the award of costs and may deny or limit costs under
equitable principles or other legal principles,” but she neither cites to authority supporting this
proposition nor goes on to address how such authority applies here. The remainder of her
motion is essentially a recapitulation of the major themes of her allegations: that she is a good
employee done wrong by the Defendant. The Court finds no merit in the contentions that Ms.
Kenfield’s largely conclusory arguments that costs should not be awarded against her.
Accordingly, the Court grants the Defendant’s motion and deems the Judgement amended to
include an award of costs pursuant to Rule 54(d)(1).
B. Ms. Kenfield’s motion
Ms. Kenfield’s motion (# 123) is more elaborate. She contends that the Court’s Opinion
suffers from several broad categories of error: (i) the Court failed to consider certain facts that
demonstrate a pattern of discriminatory conduct; (ii) the Court “has viewed the facts in
isolation”; (iii) the Court did not take the facts in the light most favorable to Ms. Kenfield; (iv)
the Court erroneously made credibility findings (which, Ms. Kenfield later argues, also “invaded
the province of the jury”); and (v) the Court failed to consider a “mixed motive” analysis.
The Court treats Ms. Kenfield’s motion as seeking reconsideration. Because Ms.
Kenfield’s motion was filed within 28 days of the entry of judgment and alleges that the Court
misapprehended the applicable statute and factual record, it falls under Fed. R. Civ. P. 59(e).
Commonwealth Property Advocates, LLC v. Mortgage Electronic Registration Systems, Inc., 680
F.3d 1194, 1200 (10th Cir. 2011). Such a motion is an appropriate means to “correct manifest
errors of law” Jennings v. Rivers, 394 F.3d 850, 854-55 (10th Cir. 2005). This is appropriate
where the Court “has misapprehended the facts, a party’s position, or the controlling law,” but it
is not a mechanism “to revisit issues already addressed.” Servants of the Paraclete v. Does, 204
F.3d1005, 1012 (10th Cir. 2000). With this standard in mind, the Court turns to each of Ms.
The Court begins with Ms. Kenfield’s argument that the Court “failed to consider facts in
evidence demonstrating a pattern of discriminatory conduct.” This argument is somewhat
difficult to parse. Ms. Kenfield does not identify particular facts that she contends the Court
failed to consider, along with the appropriate cite in the record. Instead, her presentation is
disorganized, and rarely cites the Court to any specific fact found in the record. Her argument
consists of more than 4½ pages of text, but contains only three citations to specific exhibits – the
deposition transcripts of Ms. Przekwas, Ms. Charteris, and Ms. Wolff – without providing
specific page numbers to the relevant portion of those depositions; two specific page citations to
the deposition transcript of Mr. Laura (which is not otherwise identified by exhibit number);
vague and generalized statements that certain facts can be found in the depositions of Ms.
Osborne-Wells and Mr. Bongiovanni but again, without any specific citations to the relevant
portions of their testimony (much less with a citation to the appropriate exhibit number), and
references to certain paragraphs of Ms. Kenfield’s own affidavit. Ms. Kenfield bears the burden
of pointing the Court to the specific evidence she believes was overlooked or misunderstood.
Although Ms. Kenfield identifies depositions or affidavits, she does so wholesale, without
identifying a pertinent fact or specific citation. See Docket # 120 at 23, citing Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 671-72 (10th Cir. 1998) (“the requirement that the [movant]
specifically reference facts in its motion materials and the record is of special importance in an
employment discrimination case . . . [w]here the burden to present such specific facts by
reference to exhibits and the existing record was not adequately met below, we will not reverse a
district court for failing to uncover them itself”).
The failure to identify where in the record
particular facts are located impedes reconsideration.
Second, Ms. Kenfield intersperses her recitation of factual contentions that the Court
previously considered and discussed in its opinion with facts that she contends the Court
overlooked. For example, Ms. Kenfield discusses the downgrading of her performance
evaluation and the observations of Ms. Ray, both of which the Court discussed in its Opinion in
extensive detail. Docket # 120 at 5-7 (performance evaluation), 13-14 (Ms. Ray’s testimony).
The inclusion of facts that the Court did consider, coupled with the lack of particularity and
citation in Ms. Kenfield’s arguments concerning facts the Court did not consider makes it
extremely difficult to effectively ascertain and evaluate Ms. Kenfield’s argument.
Nevertheless, the Court has reviewed the various deposition transcripts referenced by Ms.
Kenfield in her motion, and finds nothing therein that warrants reconsideration of the Court’s
decision. The deposition of Ms. Przekwas is illustrative in this respect. Ms. Kenfield contends
that Ms. Przekwas was one of the white employees “target[ted] and run[ ] out” by Ms. Bruce
(which Ms. Kenfield contends is demonstrative of a “pattern of discriminatory conduct” by Ms.
Bruce). This argument suffers from the same defect that the Court discussed extensively in its
opinion: Ms. Przekwas’ deposition does suggest she found Ms. Bruce difficult to deal with,
“demeaning,” and that eventually, Ms. Przekwas decided she would rather look for another job
that to stay and be “[un]comfortable” working for Ms. Bruce. But at no time in the supplied
deposition does Ms. Przekwas opine, even remotely, that Ms. Bruce’s treatment of her was
This highlights the central flaw in Ms. Kenfield’s theory of the case – the mere fact that
Ms. Bruce was demeaning, unpleasant, or even downright hostile to some employees is not
necessarily indicia of racial discrimination, even though Ms. Bruce is black and the offended
employees are white. As the Court’s prior Opinion explains in some detail, Title VII requires
more than just a contention that one’s supervisor of a different race was rude, unfriendly, or
Indeed, it would appear that Ms. Przekwas would refute Ms. Kenfield’s contention that
Ms. Bruce engaged in systematic discrimination against white subordinates. Ms. Kenfield
suggests that both Ms. Przekwas and Ms. Charter were both white victims of Ms. Bruce’s
hostility, but Mr. Przekwas believes that Ms. Bruce treated Ms. Charter more favorably.
Although Ms. Charter complained to Ms. Przekwas of feeling demeaned, Ms. Przekwas states
that “her experiences seemed different than mine with [Ms. Bruce] one-on-one. And I don’t
know what to attribute that to, whether she was truly treated differently or took it differently, I
don’t know.” When asked whether Ms. Bruce treated Ms. Charter worse or better, Ms. Przekwas
stated “Maybe better [than me].”
abrasive. Docket# 120 at 12. Sustaining Ms. Kenfield’s claims on the record herein would
amount to turning Title VII into a “general civility code” for the workplace, offering relief
anytime one’s supervisor of a different race was rude or dismissive. See Gunnell v. Utah Valley
State College, 152 F.3d 1253, 1265 (10th Cir. 1998). Without some meaningful evidence
suggesting that Ms. Bruce harbored race-based hostility against whites, Ms. Kenfield has
articulated nothing more than the ordinary disappointments and indignities that result from
communication difficulties or personality conflicts with a new supervisor. Accordingly, the
Court rejects Ms. Kenfield’s contention that reconsideration of the Court’s Opinion is warranted
by facts overlooked by the Court.
Next, Ms. Kenfield argues – in two sentences without citation to authority or example –
that the Court “views some of the facts in an isolated fashion, rather than reviewing and
analyzing the facts in an ongoing pattern of discrimination.” Ms. Kenfield states that “the
factual predicate of this argument is set forth above [with regard to the prior argument],” and
thus, this Court rejects it for the same reasons discussed above.
Ms. Kenfield’s third argument is that the Court failed to properly construe the facts in the
light most favorable to her as the non-movant. She gives a single example: “the Court’s
conclusion that the negative job actions were not taken within time proximity for an inference
[when, t]o the contrary, the evidence . . . shows that negative job actions occurred immediately
after filing a grievance. . . .” Putting aside the apparent inapplicability of Ms. Kenfield’s
example to the argument the Court understands her to be making,2 the Court notes that Ms.
Ms. Kenfield appears to be suggesting that there is a factual dispute over the date that a
particular job action occurred, but she does not specify the specific job action at issue nor the
factual dispute over the date on which it occurred. At best the Court can determine from reading
Kenfield’s complaint is misplaced and that the Court resolved all actual factual disputes in Ms.
Kenfield’s favor. For the most part, the only major factual dispute in this case concerned the
manner in which Ms. Bruce may have treated Ms. Kenfield and others.2 Ms. Kenfield testified
that Ms. Bruce was demeaning, hostile, and insulting, while Ms. Bruce presumably3 testifying
that she treated Ms. Kenfield calmly and respectfully. True to the summary judgment standard,
the Court adopted Ms. Kenfield’s version of events, and analyzed the claims based upon the
assumption that, as Ms. Kenfield described, Ms. Bruce was demeaning and hostile to her.
Accordingly, the Court finds no merit in Ms. Kenfield’s contention that the Court failed to
resolve factual disputes in her favor.
Perhaps a better articulation of Ms. Kenfield’s argument is to say that she contends that
the Court did not draw inferences from the facts in her favor. The summary judgement standard
does require the Court to draw all “reasonable inferences [from the facts] in the light most
Ms. Kenfield’s papers as a whole, she is actually complaining not of a dispute of fact over when
a certain event occurred, but instead is complaining that the Court did not consider certain other
events occurring earlier to be “negative job actions.” Whether or not a particular event is a “job
action” or not is a question of law, not fact, and thus, is not subject to the principle that the Court
takes the facts in the light most favorable to the non-movant on summary judgment.
There were a handful of genuine factual disputes on relatively minor points, which the
Court expressly acknowledged resolving in Ms. Kenfield’s favor. For example, there was an
apparent dispute between the parties of whether particular tasks performed by Ms. Kenfield were
classified as “lead worker” tasks (Ms. Kenfield’s position) or “HP III” tasks (the Defendant’s
position). The Court resolved that dispute in Ms. Kenfield’s favor, assuming the tasks to be
“lead worker” tasks. See Docket # 120 at 7.
The Court uses the word “presumably” here because, to its recollection, the Defendant
did not attempt to dispute Ms. Kenfield’s characterization of Ms. Bruce’s manner. Indeed, there
would be no point in doing so, as even if the Defendant argued that Ms. Bruce was eternally
patient and polite to Ms. Kenfield, the summary judgment standard would require the Court to
resolve the factual dispute – in what manner did Ms. Bruce treat Ms. Kenfield – by adopting Ms.
Kenfield’s version of events.
favorable to” the non-movant. Oldenkamp v. United American Ins. Co., 619 F.3d 1243, 1246
(10th Cir. 2010). The key word here is “reasonable.” Ms. Kenfield believes that evidence that a
black supervisor was demeaning and hostile to some white employees but not to non-white
employees reasonably permits an inference that the supervisor was acting out of racial hostility.;
This Court disagrees, finding that inference to be unreasonable in the absence of more
compelling evidence if discrimination. Thus, Ms. Kenfield’s argument that the Court misapplied
the summary judgment standard is nothing more than an argument that the Court erred in failing
to adopt her view as to the strength of her evidence. Having reviewed the evidence originally
presented, the Court reaches the same conclusion.
Ms. Kenfield next argues that the Court erred by making “credibility findings.” By way
of example, she points out that the Court concluded “that a personal dislike of Ms. Kenfield
could explain Ms. Bruce’s actions,” and that “this is a credibility finding which is not based on
This is not a “credibility” finding. What Ms. Kenfield describes is another way of
looking at the issue discussed above – whether a reasonable inference of racial discrimination
can be drawn from the evidence presented by Ms. Kenfield. The Court concluded that Ms.
Kenfield’s evidence, taken in its totality, did not give rise to a reasonable inference that Ms.
Bruce’s conduct toward her was more likely than not to have resulted from racial animus. As the
party with the burden of proof, Ms. Kenfield is obligated to come forward with evidence that Ms.
Bruce’s actions “give rise to an inference of discrimination.” EEOC v. PVNF, LLC, 487 F.3d
790, 800 (10th Cir. 2007). As the Court explained, Ms. Kenfield’s evidence did not go far
enough to exclude common, non-racial explanations for Ms. Bruce’s treatment – such as
personal dislike or a clash of communication styles or expectations. Thus, she failed to carry her
burden of proof. Such an analysis is entirely unrelated to questions of credibility.
Finally, Ms. Kenfield argues that the Court erred in failing to apply a “mixed motive”
analysis. The Court begins by observing that such an argument is improper. Ms. Kenfield had
the opportunity to argue for the application of a particular analytical framework in her summary
judgment response, but made no mention of the “mixed motive” framework nor its application to
this case. Because a motion for reconsideration is not a proper vehicle to present arguments that
could have been raised in prior briefing, Ms. Kenfield’s has no right to consideration of a
“mixed motive” argument now.
Having considered the argument on its merits, however, the Court finds it unpersuasive.
The mixed motive analysis applies “where both legitimate and illegitimate reasons motivated the
decision.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 93 (2003). It is codified at 42 U.S.C. §
2000e-2(m), which requires the employee to prove “that race, color, religion, sex, or national
origin was a motivating factor for any employment practice, even though other factors also
motivated the practice,” and then allows the employer the opportunity to avoid certain items of
damages by showing “that [it] would have taken the same action in the absence of the
impermissible motivating factor.”4
The mixed motive analysis is irrelevant here, as Ms. Kenfield failed to establish a prima
facie case of discrimination, and thus, failed to demonstrate that her race “was a motivating
Conceptually, the mixed motive analysis arises after the “pretext” stage of the traditional
McDonnell-Douglas analysis. Once the employee has proven that the employer’s tendered
reason for the employment action is untrue and that discriminatory animus partially motivated
the decision, the employer has the opportunity to prove that it would have taken the same action
even if it had not harbored that animus.
factor” in the actions taken against her. Ms. Kenfield mistakenly believes that, at worst, she
demonstrated that Ms. Bruce has both legal and illegal reasons for her actions. In fact, the
Court’s Opinion explains that Ms. Kenfield failed to come forward with sufficient evidence to
permit the fact finder to conclude that anything other than legal reasons for the actions were at
work. Accordingly, Ms. Kenfield’s argument that the Court erred in not considering the mixed
motive analysis is without merit.
Accordingly, the Defendant’s Motion to Modify (# 122) is GRANTED, and the
JUDGMENT is DEEMED AMENDED as of this date to include an award of costs to the
Defendant pursuant to Fed. R. Civ. P. 54(d)(1). Ms. Kenfield’s Motion to Modify (# 123) the
Judgment is DENIED.
Dated this 20th day of August, 2012
BY THE COURT:
Marcia S. Krieger
United States District Judge
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