Espinoza v. Department of Corrections

Filing 43

ORDER granting 32 Motion for Summary Judgment. Accordingly, this case is DISMISSED WITH PREJUDICE. It is FURTHER ORDERED that the Final Trial Preparation Conference, scheduled for November 14, 2011, and the five-day jury trial, scheduled for November 28, 2011, are VACATED. by Judge Christine M. Arguello on 10/21/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 10-cv-00548-CMA-KLM
BOBBY ESPINOZA,
Plaintiff,
v.
DEPARTMENT OF CORRECTIONS,
Defendant.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on the Motion for Summary Judgment (Doc.
# 32), filed by Defendant Department of Corrections (“DOC”). Plaintiff Bobby Espinoza
alleges that DOC retaliated against him in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e-3, for asserting that he had been discriminated against
because of his race and national origin. Jurisdiction is proper under 28 U.S.C. § 1331.
For the reasons discussed below, Defendant’s motion is granted.
I. BACKGROUND
The following facts are undisputed unless otherwise noted.
Plaintiff is Hispanic and has worked for the DOC since 2004. In a 2005
performance review, Plaintiff’s then-supervisor, Shawna Troxel, who is Caucasian, rated
him as “Needs Improvement” in the area of “Accountability/Organizational
Commitment,” explaining that Plaintiff had taken several sick days in conjunction with
his days off. (Doc. # 32, Ex. A-2.)

In 2007, Warden James Abbott, who is African-American, promoted Plaintiff to
a Correctional Officer II (“CO II”) position at Colorado Territorial Correctional Facility
(“CTCF”). Plaintiff was required to fulfill a six-month trial period, beginning April 1, 2007,
before being certified as a CO II. (Doc. # 32, Ex. A-3.)
On June 22, 2007, Plaintiff called in sick in conjunction with his day off. His
new supervisor, Captain Gary Moroney, who is Caucasian, drafted a Performance
Documentation Form (the “Performance Documentation”) that stated, in pertinent part:
By calling off from your last scheduled 3rd Shift of Friday, 06-22-07, you
effectively moved into your new Swing Shift days off, and had two days off
instead of one. As a Correctional Officer II, you should be setting positive
accountability/organizational commitment examples. Instead, your call
off reflected a very bad example and sends a very negative message to
supervisors and subordinates alike about your leadership skills.
(Doc. # 32, Ex. A-5.) On June 27, 2007, Moroney met with Plaintiff about his use of sick
leave. The parties dispute the tenor of the meeting, but Plaintiff agrees that at some
point he “expressed his belief that the [Performance Documentation] write-up
was chicken shit.” (Doc. # 33, at 5, ¶ 9.) Plaintiff did not sign the Performance
Documentation. (Doc. # 32, Ex. A-5.) Based on his interaction with Plaintiff, Moroney
filled out an Incident Report Form, which related Plaintiff’s “chicken shit” comment and
noted that he had refused to sign the Performance Documentation. (Doc. # 32,
Ex. A-7.)
On July 2, 2007, Plaintiff met with Moroney, Major Linda Maifeld, who is also
Caucasian, and Associate Warden Michael Arellano, who is Hispanic. (Doc. # 32,
Ex. A-9.) The parties dispute the tenor of this meeting, also. However, Plaintiff’s notes

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of the meeting confirm Defendant’s assertion that: when Moroney was explaining his
previous interaction with Plaintiff, Plaintiff interrupted him; Maifeld asked Plaintiff not to
interrupt Moroney, but Plainitff again interrupted him; and Plaintiff “pointed [his] finger at
Moroney and told him he was lying through his teeth.” (Doc. # 32, Ex. A-11, at 5, ¶ 1.)
The next day, July 3, 2007, Arellano met with Plaintiff and his union
representative, Vincent Shaw, to discuss what had occurred during the June 27, 2007,
and July 2, 2007, meetings. The parties again dispute what then transpired. In an
affidavit, Plaintiff claimed he told Arellano that Moroney was discriminating against him
because of his race. (Doc. # 33, Ex. 2, ¶ 19.) Shaw likewise asserted in an affidavit
that Plaintiff raised the issue of racial discrimination at the meeting. (Doc. # 33, Ex. 8,
¶ 6.)1 Defendant claims that Plaintiff did not assert racial discrimination (Doc. # 42, at 4,
¶ 19) and observes that neither Plaintiff’s contemporaneous notes of the meeting (Doc.
# 32, Ex. A-11, at 6, ¶ 2), nor a letter Shaw wrote summarizing the meeting (Doc. # 32,
Ex. A-14), mentioned Plaintiff having done so. Arellano, in a later interview, denied that
Plaintiff had alleged discrimination at the July 3, 2007, meeting. (Doc. # 32, Ex. A-10.)
The parties also dispute Arellano’s reaction to what Plaintiff told him. Plaintiff asserts
that Arellano “acknowledged that cultural differences existed at CTCF.” (Doc. # 33,
at 11, ¶ 6.) Defendant contends that Arellano did not mention any such differences but,
rather, “used the term ‘Correctional Cultures’ to describe how different facilities conduct
business differently.” (Doc. # 42, at 6, ¶ 6.) The parties agree that Arellano told Plaintiff

1

These are the allegations of discrimination that Plaintiff claims he was retaliated
against for having raised.

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the Performance Documentation would not be put in his file (Doc. # 33, at 8, ¶ 20), but
Plaintiff further asserts, and Defendant denies, that Arellano assured him “nothing would
come of the prior interactions” involving Plaintiff at the June 27, 2007, and July 2, 2007,
meetings (id.).
On July 10, 2007, Arellano sent a memo to Abbott, updating him on Plaintiff’s
actions. (Doc. # 32, Ex. A-13.)
On July 16, 2007, Abbott issued Plaintiff a Corrective Action. (Doc. # 32,
Ex. A-15.) The Corrective Action did not address the issue of Plaintiff having called in
sick on June 22, 2007, but instead focused on the June 27, 2007, and July 2, 2007,
meetings. (Id.) The Corrective Action cited Plaintiff’s “chicken shit” comment to
Moroney and stated that Plaintiff’s actions during the July 2, 2007, meeting were “very
unprofessional” and “extremely insubordinate.” (Id.) The Corrective Action stated that
Plaintiff was required to:
•

read and write a report on the meaning and importance of the DOC Staff
Code of Conduct;

•

attend a professionalism and unlawful discrimination/sexual harassment
class;

•

watch, and report on, a program covering self discipline and emotional
control; and

•

submit a written apology to Moroney.

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(Id.) It noted that “[i]f this type of behavior happens again, there will be a Corrective
or Disciplinary Action.”2 (Id.)
On July 23, 2007, Plaintiff filed a grievance (“Step 1 Grievance”) (Doc. # 32,
Ex. A-16), alleging racial discrimination in the events leading up to, and including,
Abbott issuing him the Corrective Action.3
Abbott reviewed the Step I Grievance. (Doc. # 32, Ex. A-20.) After meeting with
Plaintiff and his representative, attorney Bill Finger, Abbott granted Plaintiff the following
relief:
•

removal of the Performance Documentation;

•

modification of the Corrective Action to delete the requirement of reading
and writing a report on the Staff Code of Conduct; and

•

approval of Plaintiff’s request to be transferred to another facility, pending
completion of his trial period at CTCF and certification as a sergeant.

(Id.) Abbott also agreed to “[a]n end to the abusive, retaliatory and hostile work
environment if it occurred.” (Id.) He left in place the Corrective Action, with the
exception of the modification noted above, and denied Plaintiff’s request for: payment of

2

Because the Corrective Action warns of a future Corrective Action for unmodified
behavior, it is difficult precisely to discern its function. However, as discussed below, because
it was eventually removed from Plaintiff’s file, without him having to fulfill its terms, the Court will
characterize the Corrective Action as a “write-up.”
3

Plaintiff also submitted an investigation request to the DOC’s Office of the Inspector
General (“OIG”), alleging discrimination and retaliation. (Doc. # 32, Ex. A-17.) The OIG’s final
report is included in the record. (Doc. # 32, Ex. A-19.) Plaintiff does not dispute Defendant’s
assertion that the report failed to substantiate Plaintiff’s allegations.

5

attorney fees and costs in connection with the Corrective Action; payment of related
medical expenses; and return of associated leave time Plaintiff had taken. (Id.)
On August 14, 2007, Plaintiff filed a Step II Grievance with the Deputy Director
of Prisons, Lou Archuleta. (Doc. # 32, Ex. A-21.) While the Step II Grievance was
pending, Abbott certified plaintiff as a CO II (Doc. # 32, Ex. A-22), and Plaintiff was
transferred to another facility (Doc. # 32, Ex. A-23).
On October 28, 2007, Plaintiff met with Archuleta, who granted him additional
relief including, as pertinent here: removing the Corrective Action; acknowledging that
Plaintiff’s reassignment would be permanent; apologizing that the issue “rose to this
level”; and reinstating 184 hours of Plaintiff’s leave time. (Id.) However, Archuleta
declined to: pay for any of Plaintiff’s attorney fees or costs; reimburse Plaintiff for any
medical expenses; or reinstate the rest of the leave time Plaintiff had taken during the
grievance process. (Id.)
Plaintiff filed a petition for a hearing with the Colorado State Personnel Board,
seeking the relief Archuleta had not granted him. (Doc. # 33, Ex. 12.) The petition
was denied. (Doc. # 32, Ex. A-25, part 2, at 34.)
Plaintiff requested a right to sue letter, which he received on December 9, 2009.
(Doc. # 1, at 2, ¶ 4.) He filed his Complaint with this Court on March 9, 2010. (Doc.
# 1.) Defendant filed its Answer on May 21, 2010 (Doc. # 8), and its Motion for
Summary Judgment on March 31, 2011 (Doc. # 32). Plaintiff filed his Response to the
summary judgment motion on April 20, 2011 (Doc. # 33), and Defendant filed its Reply
on May 4, 2011 (Doc. # 42).
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II. STANDARD OF REVIEW
Under Fed. R. Civ. P. 56, summary judgment is appropriate when “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” See, e.g., Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.
1991). In applying this standard, the Court views the record, and draws all reasonable
inferences therefrom, “in the light most favorable to the party opposing summary
judgment.” Lewis v. Circuit City Stores, Inc., 500 F.3d 1140, 1146 (10th Cir. 2007).
The movant bears the initial burden of showing an absence of any issues of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant need not
negate the non-movant’s claim but, rather, merely point to an absence of evidence
supporting it. Id. at 325. If the movant meets its burden, the non-movant may not rest
on its pleadings; instead, it must come forward with specific facts showing a genuine
issue for trial as to each of its claims. Id. at 325-26.
III. ANALYSIS
Defendant asserts, Plaintiff does not dispute, and the Court agrees that because
Plaintiff has no direct evidence of having been retaliated against, his claim is subject to
the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See, e.g., Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1181 (10th Cir. 2006).
A.

BURDEN SHIFTING UNDER MCDONNELL DOUGLAS
Under the McDonnell Douglas framework, Plaintiff must first establish a prima

facie case of retaliation by Defendant. See id. If he does so, the burden shifts to
Defendant to show “a legitimate non-discriminatory or non-retaliatory reason for the
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adverse employment action.” See id. And if Defendant meets this burden, the burden
shifts back to Plaintiff to show that Defendant’s “proffered reason is pretext.” See id.
1.

Prima Facie Case of Retaliation

To meet its initial burden of establishing a prima facie case of retaliation, Plaintiff
must show that: (1) he “engaged in protected opposition to discrimination”; (2) he
“suffered an adverse action that a reasonable employee would have found material”;
and (3) “there is a causal nexus” between his opposition and Defendant’s adverse
action. See id.4
a)

Protected opposition to discrimination

To show that he engaged in protected opposition to discrimination, Plaintiff must
be able to demonstrate that he had a good-faith belief that the opposed behavior was
discriminatory. See, e.g., Love v. RE/MAX of America, Inc., 738 F.2d 383, 385 (10th
Cir. 1984). Although this belief need not ultimately be correct, see id. (“opposition
activity is protected when it is based on a mistaken good faith belief that Title VII has
been violated”), it does have to be reasonable, Hertz v. Luzenac America, Inc., 370 F.3d
1014, 1016 (10th Cir. 2004). Thus, Plaintiff must do more than merely “conclusorily
incant” an allegation of discrimination. Maxey v. Restaurant Concepts II, LLC, 654 F.
Supp. 2d 1284, 1296 (D. Colo. 2009).

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Regarding the “causal nexus” component of the prima facie framework, Defendant
states that “Plaintiff potentially meets the temporal proximity requirement to establish causation
if he is able to prove the first two elements of a prima facie case of retaliation.” (Doc. # 32, at
14.) But based on the Court’s analysis, below, of the first two components, it is unnecessary
to address Defendant’s candid admission or to analyze the “causal nexus” component.

8

Here, according to Plaintiff, the protected opposition occurred during his July 2,
2007, meeting with Arellano and was in response to discrimination he had allegedly
suffered, particularly during his June 27, 2007, interaction with Moroney, which had led
to Moroney drafting the Performance Documentation. Plaintiff asserts he had a goodfaith belief that he was being discriminated against because: “he knew of other nonHispanic employees that had called in to cancel their shift and not received a
performance documentation”; he had “heard rumors about Hispanic employees being
segregated into one cell house from non-Hispanic employees”; and he had “observed
Mr. Moroney treating a non-Caucasian employee poorly, and this employee expressed
his belief that the treatment was because of his race . . . .” (Doc. # 33, at 15.)
Initially, the Court addresses Defendant’s assertion that Plaintiff did not raise the
issue of discrimination during the July 2, 2007, meeting. Although Plaintiff’s notes of the
meeting conflict with his later affidavit, he did not compose the notes while under oath
nor swear to their accuracy; accordingly, the affidavit is not necessarily “self-serving,” as
Defendant argues. See Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986)
(discussing “sham fact issue[s]” created by a party submitting an affidavit that conflicts
with prior sworn testimony). Moreover, the Court is convinced that Shaw’s affidavit
significantly decreases the likelihood that Plaintiff’s affidavit is only self-serving, because
it corroborates Plaintiff’s version of what occurred. Thus, viewing the record in the light
most favorable to Plaintiff, whether he raised the issue of discrimination at the July 2,
2007 meeting requires a credibility determination that cannot be made on summary
judgment. See, e.g., Seamons v. Snow, 206 F.3d 1021, 1026 (10th Cir. 2000) (“It is
9

axiomatic that a judge may not evaluate the credibility of witnesses in deciding a motion
for summary judgment.”).
However, even assuming that Plaintiff raised the issue of discrimination at the
meeting, the Court is convinced that he lacked a sufficiently reasonable good-faith belief
that he had been discriminated against, as evidenced by his own deposition testimony.
Regarding his assertion that non-Hispanic employees were allowed to cancel their shifts
without receiving a performance documentation, Plaintiff averred that he was unsure of
the race and national origin of such employees, although they “appeared to be white”
from what he could recall, and said that he had no knowledge of their use of sick leave.
(Doc. # 42, Ex. A-26.) Additionally, the rumors Plaintiff had heard about employees
being segregated by cell house were contrary to his own experience, which he said
included being assigned to a cell house with both Hispanic and non-Hispanic
employees. (Id.)
The only potentially meritorious argument Plaintiff raises is that he allegedly
had witnessed Moroney racially discriminate against a non-Caucasian employee.
Defendant asserts that the Court should disregard this argument because Plaintiff
“admits that the employee denied such treatment ever occurred.” (Doc. # 42, at 7.) But
Plaintiff averred that the employee had denied the abusive treatment when questioned
by the OIG. (Doc. # 42, Ex. A-26.) Although not entirely clear, this statement makes it
appear that the employee’s denial occurred after the events giving rise to Plaintiff’s
allegations of discrimination. Thus, the discriminatory treatment Plaintiff allegedly
observed could have helped him to form a good-faith belief that he, too, had suffered
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discrimination. However, even if it occurred, this one isolated instance, in and of itself,
is insufficient to establish that Plaintiff’s belief was also reasonable. See, e.g., Seybert
v. Int’l Grp., Inc., No. 07-3333, 2009 WL 722291, at *21 (E.D. Pa. Mar. 17, 2009)
(finding that “a reasonable person would not believe that . . . one instance” of allegedly
discriminatory conduct would be sufficient for a Title VII retaliation claim) (unpublished).
Nor does Plaintiff’s assertion–that Arellano “acknowledged . . . cultural
differences existed at CTCF” (Doc. # 33, at 11, ¶ 6)–require a contrary conclusion.
Such commentary, even if it was made, is too speculative to support specific allegations
of discrimination especially where, as here, those allegations are unsubstantiated and,
in fact, in tension with Plaintiff’s own deposition testimony. See, e.g., Coleman v. Exxon
Chemical Corp., 162 F. Supp. 2d 593, 623 (S.D. Tex. 2001) (where record disproved
allegations of discrimination, court found that a “supervisor’s philosophical
generalizations about race relations [are] too speculative to serve as probative evidence
of discrimination against a particular employee”).
Rather, the reasons Plaintiff articulates for his belief that he had been
discriminated against are more accurately reflected in his deposition testimony where, in
response to a question about why he felt discrimination was the cause of the discipline
he received, he answered, “I don’t know. I just felt that it was.” (Doc. # 42, Ex. A-26.)
Therefore, the Court finds that Plaintiff’s allegations are too speculative to survive
summary judgment. See, e.g., 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.”).
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Accordingly, Plaintiff has failed to do more than “conclusorily incant” an allegation of
discrimination, and thus has not established the first component of the prima facie test.5
b)

Adverse employment action

Title VII protects an employee from retaliation that produces an injury or harm.
Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). To show
injury or harm, Plaintiff must demonstrate that “a reasonable employee would have
found the challenged action materially adverse.” Id. The adverse action must “amount
to a significant change in employment status, such as firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.” Meiners v. University of Kansas, 359 F.3d 1222, 1230
(10th Cir. 2004) (internal quotation marks and citations omitted).
Here, Plaintiff alleges that the Corrective Action Abbott issued him was an
adverse employment action and that it caused him to: fear that he would lose his job;
pay the fees and costs of an attorney; incur medical expenses; and use several days
of leave time. The Court finds that these occurrences do not rise to the level of an
adverse employment action under Title VII.
To begin with, the Corrective Action was removed from Plaintiff’s file at Step II
of the grievance process. Thus, it could not have adversely effected Plaintiff’s

5

Although the Court need not continue its analysis, see, e.g., Fernand v. Ampco
System Parking, No. 07-cv-01296, 2009 WL 903466, at *4 (D. Colo. April 1, 2009) (unpublished)
(not addressing first two steps of the prima facie framework because plaintiff could not establish
step three’s causal nexus), out of an abundance of caution it will address the second
component–adverse employment action–as a retaliation case can be dismissed for failure to
satisfy any of the three components.

12

employment with DOC from that point forward, nor did it hinder his advancement until
that point, as evidenced by his certification to CO II and transfer to a new facility while
the grievance process was pending. See Wheeler v. BNSF Ry. Co., 418 Fed. Appx.
738, 748-49 (10th Cir. 2011) (unpublished) (noting that actions remedied by employer
could not be considered adverse employment actions); Deflon v. Danka Corp. Inc.,
1 Fed. Appx. 807, 819 (10th Cir. 2001) (unpublished) (same); Green v. Clovis
Mun.Schs., No. 99-2115, 2000 WL 177414, at *2 (10th Cir. Feb. 16, 2000)
(unpublished) (same).
Further, the Court is persuaded neither by Plaintiff’s argument that “an unrealized
threat of termination” constitutes an adverse employment action nor by his attempt to
portray what happened to him as such a threat. First, Plaintiff’s reliance on Jeffries v.
State of Kansas, 147 F.3d 1220 (10th Cir. 1998), is unavailing. The Jeffries court
specifically determined “not [to] decide whether threats can constitute ‘adverse
employment action’ in and of themselves . . . .” 147 F.3d at 1232. In addition, to the
extent Jeffries has been cited for the proposition that an adverse employment action
need not be material under Title VII, it is in conflict with the plain language of Burlington
Northern, 548 U.S. at 68, as well as “more contemporary Tenth Circuit caselaw that . . .
suggests a materiality requirement is part of the definition of an adverse employment
action.” Mirzai v. State of New Mexico General Servs. Dept., 506 F. Supp. 2d 767, 784
(D.N.M. 2007) (collecting Tenth Circuit cases). Additionally, Plaintiff’s citation to Dick
v. Phone Directories Co., Inc., 397 F.3d 1256, 1270 (10th Cir. 2005), for the proposition
that a “write-up . . . constitutes an adverse employment action” is also inapposite
13

because the court in that case held that the plaintiff’s “single write-up [was] not an
adverse employment action.” (Emphasis added.)
In any event, Plaintiff fails to indicate how, other than by stating his subjective
belief that he was in danger of losing his job, the Corrective Action was “an unrealized
threat of termination.” The Court is not persuaded by Plaintiff’s citation to Roberts
v. Roadway Express, Inc., 149 F.3d 1098, 1104 (10th Cir. 1998), in which the court
discerned an adverse employment action where “the record indicate[d] that the more
warnings [the] employee received, the more likely he or she was to be terminated for
a further infraction.”6 In the instant case, Plaintiff received just one write-up, the
Corrective Action. The Court has reviewed the document, and it contains no threat
of termination but rather, as previously mentioned, warns only of the potential for
“a Corrective or Disciplinary Action” if Plaintiff were not to modify his behavior.
Finally, Plaintiff fails to cite authority, nor is the Court aware of any, supporting
his position that he suffered an adverse employment action by having to hire an
attorney, pay for medical expenses, and use leave time during the grievance process.
To the contrary, these eventualities do not “amount to a significant change in [Plaintiff’s]
employment status.” See Meiners, 359 F.3d at 1230; Karamanos v. Baker, No. 884241, 1989 WL 88346, at *2 (9th Cir. July 28, 1989) (unpublished) (having failed to
establish that proposed letter of termination was adverse employment action, plaintiff
“cannot point to the adverse consequence of having to hire an attorney to establish
6

Roberts, 149 F.3d at 1104, is further distinguishable because the plaintiff there
received “twenty warning letters, two suspensions, and one termination,” all within two years
of his discrimination complaint.

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adverse employment action”); Candelaria v. Potter, 132 Fed. Appx. 225, 226 (10th Cir.
2005) (unpublished) (medical reaction caused by employer reprimand was not adverse
employment action); Ferencich v. Merritt, 79 Fed. Appx. 408, 413 (10th Cir. 2003)
(unpublished) (use of some leave time was not adverse employment action).
Accordingly, even if Plaintiff could establish that he engaged in protected
opposition to discrimination, he cannot establish that he suffered an adverse
employment action. Thus, viewing the record in the light most favorable to Plaintiff,
the Court finds that he is unable to meet his initial burden under McDonnell Douglas
of establishing a prima facie case of retaliation.7
IV. CONCLUSION
Based on the foregoing, the Court ORDERS that Defendant’s Motion for
Summary Judgment (Doc. # 32) is GRANTED. Accordingly, this case is DISMISSED
WITH PREJUDICE. It is
FURTHER ORDERED that the Final Trial Preparation Conference, scheduled for
November 14, 2011, and the five-day jury trial, scheduled for November 28, 2011, are
VACATED. It is

7

Therefore, the Court need not address the remaining steps of the McDonnell Douglas
analysis. See, e.g., Hinds v. Spring/United Mgmt. Co., 523 F.3d 1187, 1201-02 (10th Cir. 2008)
(“[O]ur analysis begins and ends at the first McDonnell Douglas step because [plaintiff] fails
to establish a prima facie case of retaliation.”). However, the Court would be prepared to
determine in the alternative that Defendant had a legitimate non-discriminatory and nonpretextual reason for the Corrective Action based on Plaintiff’s behavior, including most
specifically making the “chicken shit” comment and pointing his finger at Moroney while telling
him he was “lying through his teeth.” See, e.g., Simms v. Oklahoma ex rel. Dept. of Mental
Health and Substance Abuse Servs., 165 F.3d 1321, 1330 (10th Cir. 1999) (noting that federal
courts do not sit as “super personnel department[s]” to “second guess[] employers’ business
judgments” (internal quotation marks and citations omitted)).

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FURTHER ORDERED that Defendant shall have its costs by the filing of a Bill
of Costs with the Clerk of the Court within ten days of the entry of judgment. However,
each party shall bear its own attorney fees.
DATED: October

21 , 2011
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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