Green v. Potter

Filing 178

ORDER. For the reasons stated, I DENY the Motion for Summary Judgment, previously filed by Defendant on November 12, 2012 [Doc # 90 ], as renewed based on Defendant's request in open court on August 24, 2017. [Doc # 175 ] by Judge Lewis T. Babcock on 09/13/2017. (angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No. 10-cv-02201-LTB-KMT
MARVIN GREEN,
Plaintiff,
v.
MEGAN J. BRENNAN, Postmaster General, United States Postal Service,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before me on the Motion for Summary Judgment previously
filed by Defendant on November 12, 2012. [Doc #90] As discussed below, I have
renewed this motion based on Defendant’s request in open court on August 24,
2017. [Doc #175] Oral arguments would not materially assist me in my
determination. After consideration of the parties’ briefs and attachments, and in
light of the Tenth Circuit and Supreme Court decisions in this cases, I DENY the
motion for the reasons stated.
I. BACKGROUND
Plaintiff, Marvin Green, filed this lawsuit against his former employer, the
Postmaster General, United States Postal Service (the “Postal Service”) in 2010. In
his Amended Complaint Plaintiff brought five claims for retaliation pursuant to
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. [Doc #20] On
October 28, 2011, I dismissed three of those claims, pursuant to Fed. R. Civ. P.

12(b)(6), based on Plaintiff’s failure to exhausted his administrative remedies. [Doc
#26] The dismissal of those three claims has been affirmed on appeal. Green v.

Donahoe, 760 F.3d 1135, 1141 (10th Cir. 2014).
The two remaining claims of retaliation were based on the Postal Service’s
acts of: 1) placing Plaintiff on emergency off-duty status, and 2) constructive
discharge via forced retirement. On February 4, 2013, I granted the Postal
Service’s Motion for Summary Judgment and dismissed Plaintiff’s two remaining
claims. [Doc #90] I ruled that Plaintiff’s claim based on his emergency placement
into off-duty status must be dismissed because he could not make out a prima facie
case of retaliation in that he could not show that a reasonable employee would have
found the act to be materially adverse. I likewise dismissed Plaintiff’s retaliation
claim based on constructive discharge on the basis that this claim was untimely,
and thus not administratively exhausted, because Plaintiff did not contact the
Equal Employment Opportunity (the “EEO”) office at the Postal Service within 45
days of the matter alleged to be discriminatory.
On appeal of my summary judgment ruling on the emergency placement
claim, the Tenth Circuit reversed. See Green v. Donahoe, supra, 760 F.3d at 1146.
The Court ruled that Plaintiff presented evidence sufficient to establish the second
element of his prima facie case that the act of placing him on emergency placement
was materially adverse. Id. On appeal of my summary judgment ruling on the
constructive discharge claim, the United States Supreme Court reversed the entry
of summary judgment in favor of the Postal Service for Plaintiff’s failure to exhaust
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his administrative remedies. Green v. Brennan, ___ U.S. ___, 136 S. Ct. 1769, 195
L. Ed. 2d 44 (2016). The Supreme Court ruled that the 45-day clock during which a
plaintiff must contact the EEO office for a constructive discharge claim begins
running only after the employee resigns. Accordingly, the Court remanded the
matter to the Tenth Circuit to determine that date. Id. 136 S. Ct. at 1782 (“[h]aving
concluded that the limitations period for [Plaintiff’s] constructive-discharge claim
runs from the date he gave notice of his resignation, we leave it to the Tenth Circuit
to determine when this in fact occurred”).
On remand from Supreme Court, the Tenth Circuit subsequently determined
that Plaintiff did not resign until February 9, 2010, when he submitted his
retirement paperwork to the Postal Service (as opposed to December 16, 2009, when
he signed the agreement). Green v. Brennan, 669 F. App’x 951 (10th Cir. 2016)
(unpublished). Because it is undisputed that Plaintiff contacted the EEO office at
the Postal Service within 45 days of that date, the parties agree that Plaintiff’s
retaliation claim based on constructive discharge was timely filed, and he did not
fail to exhaust his administrative remedies on this claim.
Therefore, following the appellate process, Plaintiff now has two retaliation
claims at issue based on the Postal Service actions of: 1) placing him on emergency
off-duty status; and 2) forcing him into retirement resulting in constructive
discharge. At a Status/Scheduling Conference on August 24, 2017, the Postal
Services made an oral motion requesting that I review its previously-filed Motion

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for Summary Judgment in order to rule on its unaddressed arguments. Because I
initially granted summary judgment in favor of the Postal Service, and dismissed
all of Plaintiff’s claims, I did not reach the other grounds raised by the Postal
Service for granting summary judgment in its favor. I granted the Postal Services
request and, as such, I now reach those unaddressed arguments in this order.
II. UNDERLYING FACTS
The underlying facts of this case, stated in the light most favorable to
Plaintiff, are as follows. Plaintiff is an African-American man who began working
for the Postal Service in 1973. In 2002, Plaintiff was promoted to an EAS-22 level
Postmaster at the Englewood, Colorado post office, which was in the Colorado/
Wyoming district. At the time of the pertinent events, Plaintiff had no disciplinary
reports in his permanent file.
In early 2008, Plaintiff applied for an EAS-24 Postmaster position in Boulder,
Colorado. He was not hired. Shortly thereafter, on August 14, 2008, Plaintiff filed
a formal complaint with the Postal Service’s EEO office alleging that Gregory
Christ – who was Plaintiff’s immediate supervisor from 2008 through July 2009 and
who was responsible for selecting the Boulder Postmaster – had not hired Plaintiff
because of his race. This complaint was ultimately resolved through a settlement.
Following this activity, Plaintiff’s relationship with his supervisors
deteriorated and tensions between them were high. On May 14, 2009, Plaintiff
filed an informal EEO complaint alleging that Mr. Christ had again discriminated
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against him because of his race, and had retaliated against him because of his prior
EEO activity, by threatening, demeaning and harassing him. Plaintiff filed a
similar informal EEO complaint on July 17, 2009. In it he alleged that Mr. Christ
and Jarmin Smith, who replaced Mr. Christ as Plaintiff’s immediate supervisor in
July 2009, had also retaliated against him because of his EEO activity related to
the Boulder Postmaster position. The Postal Service’s EEO office completed its
investigation and informed Plaintiff that he could file a formal charge, but he did
not do so.
Then, in late November of 2009, Plaintiff received a certified letter from
Charmaine Ehrenshaft who was the Postal Service’s Manager of Labor Relations for
the Colorado/Wyoming district. The letter instructed Plaintiff to appear for an
investigative interview regarding allegations of non-compliance with the Postal
Service’s employee grievance procedures.
On December 11, 2009, Ms. Ehrenshaft and David Knight, her supervisor
and the Manager of Human Resources for the Postal Service’s Colorado/Wyoming
district, conducted the investigative interview. Mr. Knight asked Plaintiff about
the grievance issues and about whether he intentionally delaying signing return
receipts for grievances. In addition, he also asked Plaintiff about certain allegations
that another Postal Service employee had levied against him. As the investigation
with Mr. Knight and Ms. Ehrenshaft concluded, two agents from the Postal
Service’s Office of Inspector General (the “OIG”) entered the room. The OIG, an

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independent branch of the Postal Service, had initiated its own investigation into
whether Plaintiff had intentionally delayed the mail – a criminal offense – based on
a congressional inquiry related to complaints by the National Letter Carrier’s
Union. Mr. Knight had previously told an OIG agent that he would be interviewing
Plaintiff at that time, and indicated that the agent could interview Plaintiff
afterwards.
After the OIG interview, Mr. Knight and Ms. Ehrenshaft gave Plaintiff an
emergency placement letter for his signature. Plaintiff signed the letter thereby
putting him on emergency placement, effective immediately, until the matter was
resolved. The letter stated that Plaintiff was being placed in “off-duty status
immediately” for the disruption of day-to-day postal operations and “the employee is
returned to duty status when the cause for nonpay status ceases.” Mr. Knight
ordered Plaintiff to surrender his Postal Service identification and cell phone, and
told him to not to return to the Englewood post office.
The OIG agents had concluded, at the end of the interview, that Plaintiff had
not intentionally delayed the mail. Even though the OIG agents reported to
Plaintiff’s supervisors that no further investigation was warranted, they
subsequently represented to Plaintiff that “the OIG is all over this” and that the
criminal charge “could be a life changer.”
Following the investigative interview and emergency placement, Plaintiff and
the Postal Service signed an agreement on December 16, 2009, whose meaning

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remains disputed. The Postal Service promised not to pursue criminal charges in
exchange for Plaintiff’s agreement to leave his post in Englewood. The agreement
gave Plaintiff the choice to either retire from the Postal Service, effective March 31,
2010, or report for duty in Wamsutter, Wyoming, at a considerably lower salary.
Plaintiff submitted his retirement papers on February 9, 2010, in which his
retirement would be effective March 31, 2010.
On January 7, 2010, Green met with an EEO counselor and filed an informal
charge alleging that he had been retaliated against on December 11, the day of the
investigative interview, when he was removed from his postmaster position and
was issued the emergency-placement letter. On February 17, 2010, Plaintiff filed a
formal EEO complaint alleging that by putting him on emergency placement on
December 11, 2009, Mr. Knight, Ms. Ehrenshaft, and a Mr. Smith had retaliated
against him for his prior EEO activity.
On March 22, 2010, Plaintiff filed an informal EEO complaint in which he
alleged that he had been constructively discharged by being forced to retire in
retaliation for prior EEO activity. Plaintiff followed up this informal complaint
with a formal complaint on April 26, 2010. Plaintiff then filed this lawsuit on
September 8, 2010.
III. APPLICABLE LAW
Title VII proscribes retaliating against an employee because he or she
“opposed” any practice made unlawful by Title VII, or because he or she
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“participated . . . in an investigation, proceeding, or hearing under this subchapter.”

See 42 U.S.C. § 2000e-3(a); see also Stover v. Martinez, 382 F.3d 1064, 1070 (10th
Cir. 2004).

Where there is no direct evidence of retaliation, as here, we analyze a

retaliation claim under the burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Under this burden-shifting analysis the plaintiff has the initial burden of
establishing a prima facie case of retaliation. Stover v. Martinez, supra, 382 F.3d at
1070. To establish a prima facie claim of retaliation, a plaintiff must show that: (1)
he or she engaged in protected activity; (2) the defendant took an adverse
employment action against him or her; and (3) there exists a causal connection
between the protected activity and the adverse action. Annett v. Univ. of Kansas,
371 F.3d 1233, 1237 (10th Cir. 2004).
The burden then shift to the defendant to produce a legitimate, nondiscriminatory justification for taking the disputed employment action. Stover v.

Martinez, supra, 382 F.3d at 1071. If the defendant so provides the burden shifts
back to the plaintiff to show that the proffered reason is a pretext for unlawful
discrimination. Id. (citing Jones v. Barnhart, 349 F.3d 1260, 1266 (10th Cir. 2003)).
Pretext can be inferred from evidence revealing “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions” in the employer’s explanation.

Lounds v. Lincare, Inc., 812 F.3d 1208, 1234 (10th Cir. 2015)(quoting Morgan v.
Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). It may also be alleged “by

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providing direct evidence discrediting the proffered rationale, or by showing that
the plaintiff was treated differently from others similarly situated.” Jaramillo v.

Adams Cty. Sch. Dist. 14, 680 F.3d 1267, 1269 (10th Cir. 2012).
IV. STANDARD OF REVIEW
The moving party, in this case the Postal Service, bears the initial burden of
making demonstration of the absence of a genuine issue of material fact and
entitlement to judgment as a matter of law. Adler v. Wal-Mart Stores, Inc., 144 F.3d
664, 670-71 (10th Cir. 1998). To meet this burden, the Postal Service need not
disprove Plaintiff’s claims; rather, it must “simply point[] out to the court a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.” Id.
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986)). If it meets this initial burden, the burden shifts to the nonmoving party,
here Plaintiff, to “set forth specific facts showing that there is an genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 91 L. Ed.
2d 202 (1986). Plaintiff may not rest upon his pleadings to do so; instead, he must
instead “set forth specific facts that would be admissible in evidence in the event of
trial from which a rational trier of fact could find for the nonmovant.” Adler v.

Wal-Mart, supra, 144 F.3d at 671.
V. EMERGENCY PLACEMENT CLAIM
As to Plaintiff’s claim that his off-duty emergency placement was retaliatory,
I address the Postal Service’s arguments set forth in its Motion for Summary
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Judgment which I did not reach in my previous order. The Postal Service contends
that Plaintiff cannot establish a prima facie case of retaliation because he cannot
show causation between his protected EEO activity and the emergency placement
(third element).
To establish a causal connection, a plaintiff must present evidence of
circumstances that justify an inference of retaliatory motive. Ward v. Jewell, 772
F.3d 1199, 1203 (10th Cir. 2014)(quoting Williams v. W.D. Sports, N.M., Inc., 497
F.3d 1079, 1091 (10th Cir. 2007)). A causal connection may be established by
proffering evidence of protected conduct closely followed in time by adverse action.

Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1320 (10th Cir. 1999); see also
Ward v. Jewell, supra, 772 F.3d at 1203 (noting that if the protected conduct is
closely followed by the adverse action, courts have often inferred a causal
connection). When the temporal proximity is too long for a fact-finder to infer
causation, a plaintiff may use additional evidence to establish causation. Id. (citing

Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999)). The
Supreme Court has likened this burden to a showing of “but-for causation.” Foster

v. Mountain Coal Co., LLC, 830 F.3d 1178, 1191 (10th Cir. 2016)(citing Univ. of
Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503
(2013)).
Plaintiff argues that his last protected activity was on July 17, 2009 – when
he contacted the EEO at the Postal Service to file an informal complaint – and it is

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undisputed that he was placed on emergency off-duty status by the Postal Service
almost five months later, on December 11, 2009. I note that to the extent Plaintiff
asserts that he engaged in a protected activity on August 12, 2009, Plaintiff
concedes that the action on that date was actually a letter from the EEO office
informing him of his right to file a formal complaint. [Doc #106 pp. 23-24] As such,
the date of his last protected activity was actually July 17, 2009. See Clark Cty.

Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 149 L.Ed. 2d 509 (2001)
(referring to the suggestion that issuance of a right-to-sue letter – an action in
which the employee takes no part – as is a protected activity of the employee as an
“utterly implausible” contention).
The Postal Service contends that this four-to-five month delay is too long for
a fact finder to infer a close temporal proximity of the protected act to the adverse
action. See Proctor v. United Parcel Serv., 502 F.3d 1200, 1208 (10th Cir. 2007)
(“[f]our months is too large a time gap to establish a causal connection”); Anderson

v. Coors, supra, 181 F.3d at 1179 (stating that a three-month period, standing
alone, was too long for a fact-finder to infer causation); Conner v. Schnuck Markets,

Inc., 121 F.3d 1390, 1395 (10th Cir. 1997)(ruling that a lapse of four months from
protected conduct to adverse action insufficient, without other evidence, to give rise
to inference of causation for a FLSA retaliation claim).
Plaintiff argues, in response, that the passage of time does not bar a
retaliation claim when additional evidence reinforces the inference of a retaliatory

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motive. He asserts that in this case there is evidence of a pattern of adverse
personnel actions that demonstrate the Postal Service’s retaliatory animus in that
his facts, as alleged, “show a pattern of harassment.” [Doc #106 pg. 39] In support
of this argument, Plaintiff cites Wells v. Colorado Department of Transportation,
325 F.3d 1205 (10th Cir. 2003), in which the Tenth Circuit found that although “[a]
five-month gap between a protected activity and an adverse action would ordinarily
be too great a time lapse to support an inference of causation based on timing
alone,” the “unique circumstances . . . of the case warranted a divergence from the
general rule of close temporal proximity.” Id. at 1217 (concluding that where the
plaintiff: (1) filed a charge; (2) went on leave; (3) returned five months later; and (4)
was promptly transferred to a demeaning job – a jury could reasonably draw an
inference of retaliatory intent).
When the facts are viewed in the light most favorable to Plaintiff, I agree
that there are unique circumstances in this case that reveal an inference of
retaliatory animus despite the four to five month delay between Plaintiff’s protected
activity and placing him on emergency leave. First, as noted by Plaintiff, it is
undisputed that he worked for the Postal Service for thirty-six years and during
that time he “had never been disciplined or had any work related problems.” It was
only after he began complaining of discrimination, after he was not hired for the
Boulder Postmaster position, that he began to be subjected to various increasingly
adverse personnel actions. Most notably, Plaintiff was informed that he was under

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investigation, via a letter sent to his home informing him of the interview. That
interview was expanded – without Plaintiff’s knowledge – to include another matter
and the OIG criminal investigation. Then, despite being told that OIG criminal
investigation would not be pursued, Mr. Knight and Ms. Ehrenshaft placed Plaintiff
on emergency off-duty status. The letter indicating this emergency placement
indicated Plaintiff would not be paid. The evidence, when viewed in Plaintiff’s
favor, is that his relationship with his supervisors crumbled following his initial
complaints of race discrimination and, thereafter, he was subjected to adverse
disciplinary employments actions. Plaintiff was given the inaccurate impression
that the OIG investigation was still pending and that a criminal charge “could be a
life changer.” Ultimately, he was given the choice to move to a lesser-post in
Wyoming, or retire from the Postal Service, for the Postal Service to agree that no
charges would be pursued against him.
I agree with Plaintiff that the circumstances of this case – which involved a
long-term employee that for many years had never been disciplined and then, after
he complained of race discrimination in a hiring decision, his relationships with his
superiors deteriorated and he was subjected to several adverse employment acts
culminating a threat of criminal charges and a decision to take a lesser position or
retire – constitutes a pattern of harassment sufficient to demonstrate but-for
causation when the actions complained-of occurred within the four-to-five months
following his last protected activity. See generally Foster v. Mountain Coal, supra,

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830 F.3d at FN 7 (noting that in the Tenth Circuit, “a retaliation plaintiff must
show evidence of but-for causation at the prima facie stage . . . where substantial
time has elapsed between the plaintiff’s protected activity and the resultant adverse
employment action”)(emphasis added); Ward v. Jewell, supra, 772 F.3d at 1203
(noting that a plaintiff may use additional evidence to establish causation when
temporal proximity, standing alone, is not enough). Therefore, I conclude that
Plaintiff has provided evidence, when viewed in his favor, sufficient to infer
causation in order to make out the third element of his prima facie case for
retaliation.
VI. CONSTRUCTIVE DISCHARGE CLAIM
As to Plaintiff’s claim that the Postal Service forced him to retire, resulting
in constructive discharge in retaliation for his EEO filings, I address the Postal
Service’s arguments set forth in its Motion for Summary Judgment which I did not
reach in my previous order. It again argues that Plaintiff cannot establish a prima

facie case of retaliation. The Postal Service first argues that there was no adverse
employment action (second element) because Plaintiff was not constructively
discharged, in that the undisputed facts show that Plaintiff’s retirement was not
objectively involuntary. Additionally, it again asserts that Plaintiff cannot show
causation (third element) as there is insufficient evidence of temporal proximity,
and no circumstantial evidence demonstrating that the decision-makers in the
retaliatory conduct took such action because of his protected activity.

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“Constructive discharge occurs when an employer unlawfully creates working
conditions so intolerable that a reasonable person in the employee’s position would
feel forced to resign.” Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121,
1133 (10th Cir. 2013). When the employee resigns in the face of such
circumstances, Title VII treats that resignation as tantamount to an actual
discharge. Green v. Brennan, supra, 136 S. Ct. at 1777 (citing Pennsylvania State

Police v. Suders, 542 U.S. 129, 148, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004)). A
claim of constructive discharge therefore has two basic elements: 1) a plaintiff must
prove first that he was discriminated against by his employer to the point where a
reasonable person in his position would have felt compelled to resign; and 2) a
plaintiff must also show that he actually resigned. Green v. Brennan, supra, 136
S.Ct. at 1777 (citing Penn. State Police v. Suders, supra, 542 U.S. at 148)(indicating
that “[a] constructive discharge involves both an employee’s decision to leave and
precipitating conduct”).
In this case, Plaintiff has provided sufficient evidence that a reasonable
person in his position would have felt compelled to resign in order show an adverse
employment action as the second element of his prima facie case for retaliation.
The facts, when viewed in his favor, are that following his complaint of racial
discrimination in failing to hire him for the Boulder postmaster position, tensions
increased and his relationship with his supervisors degenerated to the point that he
was investigated and interviewed for various allegations of misconduct, including a

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previously unknown charge of criminal conduct. Then, following the interview,
Plaintiff was placed on emergency off-duty status, via a formal letter indication he
would not be paid, effective immediately. Plaintiff was required to surrender his
Postal Service identification and cell phone, and told to not to return to the
Englewood post office.
The Postal Service argues that settlement negotiations were initiated by
Plaintiff, via his representative, and there is “no evidence that Mr. Knight or Ms.
Ehrenshaft proposed or demanded that Plaintiff retire or even enter into a
settlement agreement at all.” [Doc #29 pg. 29] Plaintiff argues that he was not
negotiating his retirement, but rather that the negotiations were intended for him
to remain receiving pay and cease the pursuit of criminal charges. And, as alleged
by Plaintiff, Mr. Knight and Ms. Ehrenshaft misrepresented that the OIG was
continuing to pursue such charges. Finally, Plaintiff was given either the option to
retire or take a much less desirable job for less salary. Under these circumstances,
I disagree with the Postal Service’s assertion that it is undisputed that Plaintiff’s
choice to retire was objectively voluntary, and that thus it is undisputed that he
was not constructively discharged. Plaintiff has met his burden of providing
sufficient evidence to demonstrate that a reasonable person in his position would
have felt compelled to resign, resulting in an adverse employment action, as the
second element of a prima facie case of retaliation.
To the extent that the Postal Service asserts that Plaintiff has failed to set

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forth evidence sufficient to infer causation in order to make out the third element of
his prima facie case for retaliation based being forced to retire/constructive
discharge, I disagree. For the same reasons stated above related to his claim based
on the emergency placement, I conclude that he has set forth sufficient evidence to
support the inference that the decision to force his retirement approximately five
months after his last protected activity was causally related.
VII. BUSINESS REASONS/PRETEXT
Finally, because I have concluded that Plaintiff is able to make out his prima

facie case of retaliation for both claims, I briefly address the Postal Service’s
argument that it had legitimate non-discriminatory business reasons for placing
Plaintiff on emergency leave and for seeking his retirement.
Assuming, arguendo, that the Postal Service can articulate legitimate
reasons for its actions in placing Plaintiff on emergency leave and seeking or forcing
his retirement, Plaintiff has provided evidence to show that the proffered reason is
a pretext for unlawful discrimination. Specifically, after this motion was briefed, I
ruled that Ms. Ehrenshaft’s actions in destroying relevant disciplinary files of other
Postal Service employees warranted a sanction that such spoilation constituted
evidence of pretext. As a result, I ruled that the jury will be instructed that Ms.
Ehrenshaft’s acts in destructing the records is evidence of pretext of unlawful
discrimination, and that “[t]he Court will likewise consider that conduct evidence of
pretext when considering Defendant’s pending motion for summary judgment.” [Doc

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#128] The critical question regarding pretext “is whether a reasonable factfinder
could rationally find the employer’s rationale unworthy of credence and hence infer
that the employer did not act for the asserted non-retaliatory reasons.” Lounds v.

Lincare, supra, 812 F.3d at 1234 (quoting Swackhammer v. Sprint/United Mgmt.
Co., 493 F.3d 1160, 1167 (10th Cir. 2007)). Where a plaintiff has presented specific
facts to show that there is a genuine issue of whether the proffered reasons are
pretextual, summary judgment is improper. Starks v. Coors Brewing Co., 954 F.
Supp. 1463, 1469 (D. Colo. 1997).
Therefore, even if the Postal Service can met its burden to produce
legitimate, nondiscriminatory justification for its actions against Plaintiff, the
actions of Ms. Ehrenshaft in destroying the relevant personal files after the
commencement of this litigation is sufficient, as a matter of law based on my
sanctions ruling, for Plaintiff to show pretext in order to rebut the Postal Service’s
proffered legitimate reasons. See generally Kendrick v. Penske Transp. Servs., Inc.,
220 F.3d 1220, 1230 (10th Cir. 2000)(ruling that a plaintiff may show that the
employer’s stated reason is pretextual “by providing evidence that he was treated
differently from other similarly-situated employees who violated work rules of
comparable seriousness”); McKenzie v. Atl. Richfield Co., 906 F. Supp. 572 (D. Colo.
1995)(noting that evidence that other workers at employee’s level had never been
disciplined for like conduct satisfied requirement that employee offer evidence of
pretext).

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ACCORDINGLY, for the reasons stated, I DENY the Motion for Summary
Judgment, previously filed by Defendant on November 12, 2012 [Doc #90], as
renewed based on Defendant’s request in open court on August 24, 2017. [Doc #175]

Dated: September

13 , 2017 in Denver, Colorado.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK

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