Krzycki v. HealthONE of Denver, Inc. et al

Filing 41

ORDER. Defendants' 26 Motion for Summary Judgment is granted in part. It is granted with respect to plaintiff's first claim for relief. Plaintiff's second claim for relief is dismissed without prejudice. This case is dismissed. By Judge Philip A. Brimmer on 7/25/13.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-00026-PAB-BNB
LESLIE KRZYCKI,
Plaintiff,
v.
HEALTHONE OF DENVER, INC.,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the motion for summary judgment [Docket No.
26] filed by defendant HealthONE of Denver, Inc. (“HealthONE”)1 on October 12, 2012.
The Court’s jurisdiction is based on 28 U.S.C. § 1331.
I. BACKGROUND
The following facts are undisputed unless otherwise indicated. HealthONE
employed plaintiff Leslie Krzycki as a surgical technician at the Denver Mid-Town
Surgery Center, Ltd. facility (“Mid-Town”) from May 2000 through July 30, 2010. Docket
No. 26 at 2, 4; Docket No. 27 at 1. Sometime in or around 2005, defendant promoted
plaintiff to the position of Lead Surgical Technician. Docket No. 26 at 2-3; Docket No.
26-1 at 7-8 (Krzycki dep., at 32, l.17 to 33, l.5). Plaintiff received positive performance
evaluations during her employment, scoring between 17 and 21 points–out of a

1

The motion was jointly filed with Denver Mid-Town Surgery Center, Ltd., a
defendant who was dismissed from the case on November 13, 2012. See Docket Nos.
29, 30.

possible total of 21–in assessments of her interactions with patients and colleagues.
Docket No. 27-8 at 5, 13, 21, 29, 37, 45, 53, 61, 69. Plaintiff did not receive written
disciplinary or corrective action at any time. Docket No. 26 at 3.
On October 13, 2009, plaintiff witnessed a non-employee anesthesiologist at the
Mid-Town facility sexually harassing plaintiff’s boyfriend and co-worker, Robert “David”
Record, against his will. Docket No. 26 at 3, 6; Docket No. 27 at 3. That morning,
plaintiff accompanied Mr. Record in reporting the incident to Lisa Foster, the Mid-Town
Administrator. Docket No. 26 at 3; Docket No. 27 at 3. Plaintiff states that she also
reported the incident to Sofia DeAngelis, the Clinical Operations Director and plaintiff’s
direct supervisor. Docket No. 26 at 3; Docket No. 26-1 at 29-30 (Krzycki dep., at 95,
l.20 and 98, l.1).
On October 28, 2009, plaintiff prepared a declaration on behalf of Mr. Record
regarding the incident that she mailed to Mr. Record’s attorney. Docket No. 26-1 at 2021 (Krzycki dep., at 61, l.4 to 62, l.17). Plaintiff did not tell anyone else at work about
the declaration, apart from Mr. Record. Docket No. 26-1 at 22 (Krzycki dep., at 64, ll.15).
In November 2009, Ms. Foster and Nicole Bauer, defendant’s human resources
manager, met with plaintiff to discuss plaintiff’s practice of telling inappropriate jokes at
work about the October 2009 incident, as well as her practice of making inappropriate
statements in the operating room. Docket No. 26 at 4; Docket No. 26-1 at 34-35
(Krzycki dep., at 115, l.7 to 116, l.14); Docket No. 27 at 13. Plaintiff acknowledged that
she engaged in “dirty talk” in the operating room, explaining that it was in keeping with
“the culture” and that “you don’t want to be seen as the standout, or the one who
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doesn’t want to have fun.” Docket No. 26-1 at 35 (Krzycki dep., at 116, ll.4-14). Ms.
Foster and Ms. Bauer also informed plaintiff that some staff members found her to be
intimidating at times. Docket No. 26 at 4; Docket No. 26-1 at 36 (Krzycki dep., at 126,
ll.12-17). Plaintiff stated that, after the November 2009 meeting, she was aware of the
need to alter her behavior, noting: “was there still some joking? Yes, because I didn’t
want to be the outsider. Was there joking like there was before? No.” Docket No. 26-1
at 38-39 (Krzycki dep., at 133, l.21 to 134, l.3).
In November 2009, Ms. Foster asked plaintiff for additional information regarding
the October 2009 incident. Docket No. 26-4 at 13 (Foster dep., at 33, ll.7-15). Plaintiff
declined to answer on the ground that Mr. Record’s attorney had advised her not to.
Id.; Docket No. 27 at 4. At the time, Ms. Foster did not know of Mr. Record’s lawsuit,
although she was aware of the potential for litigation. Docket No. 26-4 at 12 (Foster
dep., at 32, ll.20-22). Ms. Foster responded by stating that plaintiff had “chosen sides.”
Docket No. 26-4 at 13 (Foster dep., at 33, ll.2-5) (“We had a conversation and her
response caused me to say she had chosen sides.”). Ms. Foster then encouraged
plaintiff to consider the needs of her children in making any decisions related to the
incident. Docket No. 27-4 at 9 (Foster dep., at 37, ll.17-25); Docket No. 27 at 7-8.
On February 15, 2010, Mr. Record filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) against HealthONE based upon the
October 13, 2009 incident. Docket No. 27-9 at 2. Mr. Record stated that plaintiff
witnessed the incident in question. Docket No. 27-9 at 3. Defendant was informed of
the charge on March 3, 2010 and responded on April 30, 2010. Docket No. 27-10 at 2;
Docket No. 27-11 at 2. Ms. Bauer was involved in responding to the charge of
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discrimination on behalf of defendant. Docket No. 27-2 at 5 (Bauer dep., at 109, ll.1619).
In late spring 2010, plaintiff became aware that she had been scheduled for
fewer “floating” shifts than she had been previously, which left her less time to complete
certain administrative tasks. Docket No. 26-1 at 41 (Krzycki dep., at 136, ll.1-6).
From the end of June 2010 through late July 2010, Ms. Bauer received eight
verbal complaints regarding plaintiff’s behavior from other individuals who worked at
Mid-Town. Docket No. 26-9. Ms. Bauer typed summaries of these complaints, seven
of which are signed by the employees who made them. Id. Ms. Bauer subsequently
discussed the complaints with Ms. Foster; David Patrick Roy, the Vice President of
operations for the surgery center division; and Rebecca Adix, a member of a
consultative team that collaborated with human resources to review terminations.
Docket No. 26-5 at 34 (Bauer dep., at 189, ll.12-16); Docket No. 26-11 at 3-4 (Adix
dep., at 13, l.8 to 14, l.6). Mr. Roy made the decision to terminate plaintiff’s
employment. Docket No. 26-5 at 34 (Bauer dep., at 189, ll.23-25); Docket No. 26-10 at
4-5 (Roy dep., at 32, l.13 to 33, l.8); see also Docket No. 27 at 16.
On July 30, 2010, defendant terminated plaintiff’s employment. Docket No. 26 at
4; Docket No. 27 at 9. Defendant informed plaintiff that her termination was based on a
finding that she “bullies, intimidates and harasses staff members,” which “creat[ed] a
disruptive work environment.” Docket No. 26-6. On December 10, 2010, Mr. Record
served his initial disclosures in his EEOC matter, including a copy of plaintiff’s
declaration, on defendant. Docket No. 26-8 at 2, ¶¶ 4-5.
On January 4, 2012, plaintiff brought this case alleging that defendant terminated
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her for engaging in protected opposition to sexual harassment in violation of Title VII of
the Civil Rights Act of 1964 (“Title VII”), see 42 U.S.C. 2000e-3, and the Colorado AntiDiscrimination Act (“CADA”), see Colo. Rev. Stat. § 24-34-402(1)(e)(IV). Docket No. 1
at 4-6, ¶¶ 25-35. Plaintiff seeks back-pay, back benefits, front-pay, emotional distress
damages, punitive damages, interest, attorney’s fees, costs, and a declaration that
defendant violated Title VII and CADA. Docket No. 1 at 6, ¶¶ A-H. Defendant moves
for summary judgment on both of plaintiff’s claims. Docket No. 26.
II. STANDARD OF REVIEW
According to Federal Rule of Civil Procedure 56, a court “shall grant summary
judgment if the movant shows that 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); see
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). In pursuing summary
judgment, the moving party generally bears the initial burden of showing the absence of
a genuine dispute concerning a material fact in the case. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). However, “[w]hen, as in this case, the moving party does not
bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary
judgment stage by identifying a lack of evidence for the nonmovant on an essential
element of the nonmovant's claim.” Bausman v. Interstate Brands Corp., 252 F.3d
1111, 1115 (10th Cir. 2001).
“Once the moving party meets this burden, the burden shifts to the nonmoving
party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of
Colorado, Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing

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Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations
in the pleadings, but instead must designate “specific facts showing that there is a
genuine issue for trial.” Celotex, 477 U.S. at 324; see FED . R. CIV. P. 56(e). “To avoid
summary judgment, the nonmovant must establish, at a minimum, an inference of the
presence of each element essential to the case.” Bausman, 252 F.3d at 1115.
However, to be clear, “it is not the party opposing summary judgment that has the
burden of justifying its claim; the movant must establish the lack of merit.” Alpine Bank
v. Hubbell, 555 F.3d 1097, 1110 (10th Cir. 2009).
Only disputes over material facts can create a genuine issue for trial and
preclude summary judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198
(10th Cir. 2005). A fact is “material” if, under the relevant substantive law, it is essential
to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32
(10th Cir. 2001). An issue is “genuine” if the evidence is such that it might lead a
reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119
F.3d 837, 839 (10th Cir. 1997) (citing Anderson, 477 U.S. at 248). “A mere scintilla of
evidence will not suffice to allow a nonmoving party to survive summary judgment.”
Smith v. Rail Link, Inc., 697 F.3d 1304, 1309 n.2 (10th Cir. 2012).
III. DISCUSSION
A. Title VII
Title VII bars discrimination on the basis that an employee has “opposed any
practice made an unlawful employment practice” by Title VII or “made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or

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hearing” under Title VII. 42 U.S.C. § 2000e-3(a); see also Colo. Rev. Stat. § 24-34402(1)(e)(IV) (declaring it unlawful to “discriminate against any person because such
person has opposed any practice made a discriminatory or an unfair employment
practice by this part 4, . . . or because [she] has testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing conducted pursuant to parts 3 and
4”).
To succeed on a claim for retaliatory termination, a plaintiff must prove that “her
protected activity was a but-for cause of the alleged adverse action by the employer.”
University of Texas Southwestern Med. Ctr. v. Nassar, --- U.S. ----, 133 S. Ct. 2517,
2534 (2013). A plaintiff may rely on the McDonnell Douglas framework to prove
retaliation indirectly, in which case a plaintiff must first show that (1) she engaged in
protected opposition to discrimination; (2) she suffered an employment action that a
reasonable employee would find materially adverse; and (3) there was a causal
connection between the protected activity and the adverse action. Khalik v. United Air
Lines, 671 F.3d 1188, 1193 (10th Cir. 2012). After plaintiff has made this showing, the
defendant must come forward with a legitimate, non-discriminatory or non-retaliatory
reason for the adverse employment action. Somoza v. Univ. of Denver, 513 F.3d 1206,
1212 (10th Cir. 2008). If the defendant has satisfied this burden of production, plaintiff
must show that defendant’s proffered rationale is pretextual. Id.; see Bishop v. Ohio
Dep’t of Rehabilitation & Corr., 2013 WL 3388481, at *9 (6th Cir. July 9, 2013)
(discussing the but-for causation standard announced in Nasser, 133 S. Ct. at 2534, in
its analysis of pretext).

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The Tenth Circuit has recognized the overlap between a court’s assessment of a
plaintiff’s prima facie case and its assessment of a plaintiff’s showing of pretext: “[s]ome
cases treat circumstances suggestive of discrimination as an element of a prima facie
case; other cases treat the surrounding circumstances as part of the analytically
subsequent inquiry into the employer’s stated reason for the challenged action and the
plaintiff’s opposing demonstration of pretext.” E.E.O.C. v. PVNF, LLC, 487 F.3d 790,
800 n. 5 (10th Cir. 2007) (internal citations and quotations omitted). Regardless of how
a court characterizes its inquiry, if it “correctly concludes that the evidence of
discrimination/pretext fails as a matter of law, summary judgment for the defendant is
the proper result.” Id.
Plaintiff relies on indirect, rather than direct, evidence in support of her claims.2
Docket No. 27 at 3, ¶ A.1. However, even assuming plaintiff can establish a prima facie
case, she has not produced sufficient evidence to raise a genuine dispute as to whether
defendant’s stated reason for her termination was pretextual.3 The Court will begin by

2

Plaintiff does not argue that Ms. Foster’s statement in November 2009
constitutes direct evidence of retaliation. See generally Docket No. 27. The Court
notes that this argument would be unavailing in any event, as the length of time
between this statement and plaintiff’s termination (eight months) precludes an inference
that the two events were related. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 (10th
Cir. 2013) (“discriminatory statements do not qualify as direct evidence if the context or
timing of the statements is not closely linked to the adverse decision”).
3

Plaintiff also asserts that defendant took adverse action against her by
assigning her to fewer “float” shifts, beginning in November 2009. Docket No. 27 at 5-6.
Plaintiff argues that this action was adverse because floating shifts provided her time in
which to complete additional responsibilities related to being a lead technician, such as
making telephone calls and coordinating with vendors. Docket No. 27-5 at 19-20
(Krzycki dep., at 144, ll.12-22). “An adverse employment action includes acts that
constitute a significant change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing
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analyzing plaintiff’s claims under the rubric of pretext, instead of determining whether
she has established a prima facie case. See Sorbo v. United Parcel Serv., 432 F.3d
1169, 1173 n. 5 (10th Cir. 2005).
A plaintiff may show pretext by demonstrating that there are “weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions” in an employer’s
stated reasons such that “a reasonable factfinder could rationally find them unworthy of
credence and hence infer that the employer did not act for the asserted nondiscriminatory reasons.” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)
(quoting Olson v. Gen. Elec. Astrospace, 101 F.3d 947, 951-52 (3d Cir. 1996) (internal
quotation marks omitted). The Court’s role is to prevent and redress employment
discrimination, and not to act as a “‘super personnel department,’ second guessing
employers’ honestly held (even if erroneous) business judgments.” Young v. Dillon
Cos., Inc., 468 F.3d 1243, 1250 (10th Cir. 2006) (quoting Jones v. Barnhart, 349 F.3d
1260, 1267 (10th Cir. 2004)); see also Riggs v. AirTran Airways, Inc., 497 F.3d 1108,
1119 (10th Cir. 2007) (“Thus, we consider the facts as they appeared to the person
making the decision, and we do not second-guess the employer’s decision even if it
seems in hindsight that the action taken constituted poor business judgment.”).
a significant change in benefits.” Dick v. Phone Directories Co., Inc., 397 F.3d 1256,
1268 (10th Cir. 2005) (quotation marks, alteration, and citations omitted). On the other
hand, “a mere inconvenience or an alteration of job responsibilities” is not an adverse
employment action. Sanchez v. Denver Public. Schs., 164 F.3d 527, 532 (10th Cir.
1998) (internal citations omitted) (lateral transfer to different school with longer
commute was not materially adverse action taken against teacher). Plaintiff has not
produced any evidence that the alleged alteration in her schedule was more than “an
inconvenience” or “alteration” in her responsibilities. See id. Accordingly, the Court will
not consider this action in ruling on defendant’s motion for summary judgment.
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Defendant states that plaintiff was terminated for “her actions and behaviors,”
which included “bullying, intimidating, [and] causing an uncomfortable work environment
for folks that worked with her.” Docket No. 26-5 at 2-3 (Bauer dep., at 8, ll.21-22 and 9,
ll.2-6). Plaintiff does not dispute that, “[t]o the extent such allegations would constitute
violations of HealthONE’s policies, they constitute legitimate reasons” for termination of
plaintiff. Docket No. 27 at 10. However, plaintiff argues that defendant’s stated reason
is pretextual because she did not receive any written discipline prior to her termination;
defendant did not comply with its personnel policy by reviewing the employees’
complaints thoroughly before terminating her; defendant has exaggerated the
seriousness of the employees’ complaints about her behavior; and plaintiff received
positive evaluations, including high marks on interpersonal interaction, through March
2010. Docket No. 27 at 10-14.
First, the absence of previous written feedback does not give rise to an inference
of pretext, see Brown v. ScriptPro, LLC, 700 F.3d 1222, 1228-29 (10th Cir. 2012), as
there is no requirement that employees receive a certain volume of written feedback.
Id. Moreover, plaintiff does not dispute that she was verbally warned in November 2009
about making inappropriate jokes and taking other actions to intimidate staff and that
she attempted to improve her behavior. See Docket No. 26-1 at 34 (Krzycki dep., at
115, ll.1-20). There is no indication that defendant’s policy required further
documentation. See Docket No. 26-12.
Second, defendant’s Discipline, Counseling and Corrective Action policy
provides that an employee may be terminated when she “commits a serious offence
and [her] employment is not in the best interest of the organization, regardless of
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previous disciplinary problems or actions.” Docket No. 26-12 at 1. It further provides
that “[pr]ior to any termination, the Director of Human Resources or designee must be
consulted and the circumstances thoroughly reviewed.” Id. Plaintiff argues that
defendant did not comply with this policy because it did not attempt to determine the
veracity of the complaints against her. Docket No. 27 at 13. This assertion is
unsupported by the record. Ms. Bauer interviewed each employee who came forward
with a complaint, compiled the notes of the interview, obtained the employee’s
signature attesting to the accuracy of the document in all cases but one, and brought
these complaints to Ms. Foster, Mr. Roy, and Ms. Adix, who deliberated before Mr. Roy
made a final determination. Docket No. 26-9; Docket No. 26-5 at 34 (Bauer dep., at
189, ll.12-16); see also Docket No. 27 at 16 (recognizing the high “degree of
consultation among administrators about Plaintiff’s termination”). The fact that the
decision makers did not specifically solicit a response or explanation from plaintiff does
not demonstrate a failure to comply with defendant’s internal policy, which permits
termination upon commission of a “serious offense” when continued employment would
run against the interests of the organization. Docket No. 26-12 at 1. Plaintiff does not
argue that the complaints were untrue, that the eight employees who came forward had
any reason to lodge false complaints about her conduct, or that they were motivated by
impermissible bias. See generally Docket No. 27. In light of the volume and
consistency of the signed complaints received by defendant, plaintiff has not shown that
defendant’s actions violated company policy.
Third, plaintiff asserts that “a closer examination of these complaints
demonstrates that any issues with Ms. Krzycki’s behavior have been strongly
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exaggerated.” Docket No. 27 at 12. In support of this assertion, plaintiff relies in part
on excerpts of deposition testimony from one of the employees who complained during
the summer of 2010. See id. (citing Docket No. 27-6 at 3-4 (Lavoie dep., at 45, 48)).
The employee in question testified that, at the time plaintiff allegedly made a nasty
comment to him, he did not believe it was worth going to plaintiff’s direct supervisor,
although he did subsequently go to human resources to report the incident. Docket No.
27-6 at 3 (Lavoie Dep., at 45, ll.12-21). This testimony does not have any relevance to
the other seven complaints, nor does it bear on “the facts as they appeared to the
person making the decision” to terminate plaintiff and thus does not tend to show that
defendant’s stated reason is implausible or incoherent. See Riggs, 497 F.3d at 1119;
see also Anderson v. AMC Cancer Research Ctr., No. 06-cv-1999-JLK, 2009 WL
2219263, at *7 (D. Colo. July 24, 2009) (“In addition, more fundamentally, the question
is not whether AMC’s asserted reliance on the complaints was ‘wise, fair, or correct; the
relevant inquiry is whether [AMC] honestly believed its reasons and acted in good faith
upon them.’”) (internal citations omitted).
Rather, reading the employee complaints themselves is sufficient to demonstrate
that defendant has not exaggerated the nature of the problems reported. For example,
the complaints state that plaintiff and Mr. Record were “bullying everyone and they
[were] all fed up with it;” Docket No. 26-9 at 3; that at least one employee felt that
plaintiff and Mr. Record considered her a “target” whom they were watching and would
attempt to get fired if she took action they perceived as negative, id. at 5; that plaintiff
and Mr. Record whispered in the operating room and made people feel uncomfortable,

12

id. at 4; that plaintiff was a “troublemaker,” see id.; that employees had “to walk on
eggshells” and were “afraid” of plaintiff and Mr. Record, see id., id. at 12; that plaintiff
and Mr. Record were making the work environment “horrible,” id. at 5; that plaintiff tried
to convince an employee that she was a “target” and was being watched because she
had filed a complaint regarding Mr. Record’s behavior, id.; that plaintiff and Mr. Record
were “just nasty about everything,” id.; that morale was “very bad,” id. at 6, 10; that
plaintiff and Mr. Record made “everyone feel stupid like they don’t know what they are
doing, . . . [said] whatever they want, . . . [were] belittling and [were] calling the surgical
[technicians] ‘amateur,’” id. at 10; and that an employee did not “like dealing with
[plaintiff] because she [was] always so condescending,” id. at 11. At least one
employee cried while relaying her complaint to Ms. Bauer. See id. at 8; see also
Docket No. 26-5 at 37-38 (Bauer dep., at 198, l.19 to 199, l.23). As these examples
illustrate, there is no basis on the face of the documented complaints for inferring they
were a mere smokescreen for an impermissible motivation.
Finally, plaintiff’s most recent performance evaluation was issued on April 1,
2010 and concerned her performance during calendar year 2009. Docket No. 27-8 at
66. Plaintiff notes that she received a score of 19 out of 21 for her ability to “interact[]
with patients, fellow employees, physicians, and other customers in a manner that
encourages quality patient care, harmonious working relationships, positive customer
relations, and which enhances the image and reputation of the facility,” Docket No. 27-8
at 69, and argues that this positive evaluation demonstrates that defendant’s reason
was pretexutal. However, the complaints that defendant received during the summer of

13

2010 indicated that plaintiff’s behavior had worsened or intensified over the past several
months, prompting action on the part of colleagues who had declined to become
involved before. See Docket No. 26-9 at 3, 4, 7, 8, 12 (“Tony walked in and said,
‘Nicole, I’m too old for this and I’ve now been sucked in because we can’t take it
anymore.’”). Defendant’s positive evaluation of plaintiff’s 2009 job performance does
not tend to show that defendant’s decision to terminate plaintiff was based on anything
other than the complaints received from plaintiff’s colleagues during the summer of
2010, especially since those complaints highlighted a recent escalation in problematic
conduct. See Anderson, 2009 WL 2219263, at *7 n.6 (“That [plaintiff] had previously
received positive performance evaluations also has limited probative value on the
question of pretext in light of the documented co-worker and client complaints made
about [plaintiff] after these evaluations.”).
As plaintiff “has not presented any evidence” that defendant “did not honestly
believe the complaints [it] received or failed to act in good faith on them,” she has not
raised a genuine dispute of material fact as to whether the stated reason for her
termination is pretextual. See id., at *7.
B. The Colorado Anti-Discrimination Act
Having determined that defendant is entitled to summary judgment on plaintiff’s
federal claim, the Court declines to exercise supplemental jurisdiction over her state law
claim. See 28 U.S.C. § 1367(c)(3); Brooks v. Gaenzle, 614 F.3d 1213, 1229 (10th Cir.
2010) (“pendent jurisdiction over state claims is exercised on a discretionary basis and
. . . if federal claims are dismissed before trial, leaving only issues of state law, the

14

federal court should decline the exercise of jurisdiction by dismissing the case without
prejudice.”) (internal citations and alterations omitted).
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendants’ Motion for Summary Judgment [Docket No. 26] is
GRANTED in part. It is granted with respect to plaintiff’s first claim for relief. Plaintiff’s
second claim for relief is dismissed without prejudice. It is further
ORDERED that this case is DISMISSED.

DATED July 25, 2013.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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