Murray v. Holyoke School District RE-1J et al

Filing 59

ORDER granting Defendants' 38 Motion for Summary Judgment. This case is dismissed with prejudice. The final trial preparation conference, currently scheduled for 06/20/2014, and the five-day jury trial, set to begin on 07/07/2014, are VACATED. By Judge Christine M. Arguello on 06/09/2014. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 12-cv-01989-CMA-KLM
SHARON MURRAY,
Plaintiff,
v.
HOLYOKE SCHOOL DISTRICT RE-1J,
HOLYOKE SCHOOL BOARD, and
HOLYOKE HIGH SCHOOL,
Defendants.

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

This matter comes before the Court on Defendants’ Motion for Summary
Judgment. (Doc. # 38.) For the following reasons, the Court grants the motion.
I. BACKGROUND
The following facts are undisputed. Plaintiff Sharon Murray worked for many
years for the Holyoke School District in various positions. (Doc. # 43, ¶ 2.) She was
born in 1959, and during the timeframe relevant to her cause of action, was between 50
and 52 years old. (Doc. ## 38, ¶ 1; 43, ¶ 1.) Plaintiff was the school district’s Athletic
Director for the 2008-2009 and 2009-2010 school years. (Doc. ## 38, ¶ 4; 43, ¶ 2.)
In 2009, Brent Miles became superintendent for the school district. (Doc. ## 38, ¶ 6;
43, ¶ 3.) In 2010, Superintendent Miles replaced Plaintiff with Ms. Bennett, who was

“slightly younger” than her, as Athletic Director. (Doc. ## 38, ¶ 9; 43, ¶ 4.) From 2010 1
into 2011, Plaintiff complained to school officials, including Junior/Senior High School
Principal Ortner and school board members, about her removal from the Athletic
Director position. (Doc. # 43, ¶ 5.) On or about August 20, 2010 2, Principal Ortner gave
Plaintiff a written reprimand for deleting athletic files, taking leave for the entire month of
July 2010, refusing to deal with athletic paperwork, money, or questions, and failing to
attend staff meetings or clock in and out of her computer. (Doc. ## 38, ¶ 15; 43, ¶ 21.)
During the 2010-2011 school year, Plaintiff was a secretary in the junior/senior
high school building. (Doc. # 38, ¶ 10.) Ms. Tammie Timm, 38 years old for all times
relevant to this case, was also a secretary in the same building, a position she had held
since 2006. (Doc. ## 38, ¶ 12; 43, ¶ 8.) From November 2008, through the end of the
2010-2011 school year, Ms. Brenda Krueger and her sister, Tammy Kroeger, were
secretaries in the elementary school building. (Doc. # 38, ¶¶ 13, 14.) The school
district decided to reduce the number of school secretaries from two to one in each
building for the 2011-2012 school year. (Id., ¶ 16.) Superintendent Miles, on advice
from Principal Ortner, decided to retain Ms. Timm as secretary in the junior/senior high
school building, thereby displacing Plaintiff from her position. (Doc. ## 38, ¶ 14; 43,
1

In their reply, Defendants admit paragraph 5 of Plaintiff’s statement of undisputed facts, which
says that she complained about the termination of her position in 2010 (Doc. # 49 at 1), but
later, Defendants dispute that Plaintiff made such complaints in 2010 (Id. at 4). Although
Plaintiff’s deposition testimony is somewhat ambiguous, for purposes of this Order, the Court
accepts as true Plaintiff’s allegation that she complained of age discrimination in 2010.

2

Plaintiff’s statement of undisputed facts and response to Defendants’ motion mistakenly states
that the written reprimand was given in August of 2011, rather than 2010. However, the letter is
dated August 20, 2010. (Doc. # 38-13 at 1.) And record evidence confirms that date. See
(Doc. ## 43-4 at 2 (Ortner’s deposition); 39-19 (Plaintiff’s charge of discrimination)).
2

¶ 11.) Ms. Krueger, 43 years old for all times relevant, agreed to let her sister,
Ms. Kroeger, remain as secretary in the elementary school. (Doc. # 38, ¶ 2, 18.)
As a result, neither Ms. Krueger nor Plaintiff had employment positions with
the District for the upcoming school year. However, Superintendent Miles opened
a position of administrative assistant to the Superintendent and Board of Education and
considered the two displaced secretaries for the position. (Doc. # 38, ¶ 19.) Plaintiff
applied and interviewed for the position, but was not selected. Instead, the school
district offered the position to Ms. Krueger. (Doc. ## 38, ¶ 20; 43, ¶ 14.) In making his
recommendation, Superintendent Miles considered his interviews with each candidate
and their references, which were relayed from other district employees on a document
that he created specifically for this selection process. Both candidates selected district
employees to serve as references. However, for reasons not clear to this Court,
apparently Ms. Krueger had several days to get references, whereas Plaintiff had only
a few hours. In addition, Superintendent Miles obtained references for each candidate
from other employees. (Doc. # 43, ¶ 16.) Superintendent Miles explained that he
recommended the district hire Ms. Krueger because she answered interview questions
better than Plaintiff, had better references, and because of her helpfulness and humor.
(Doc. ## 43, ¶ 18; 49 at 3.) On May 27, 2011, Plaintiff’s employment was terminated.
(Doc. # 43, ¶ 21.)
On May 5, 2011, Plaintiff filed a formal complaint of discrimination with the
district. On May 10th and 25th of 2011, Plaintiff’s attorney also sent two complaints of

3

age discrimination to school officials. (Doc. # 43, ¶ 25.) On or about October 4, 2011,
Plaintiff filed a charge of discrimination with the EEOC. (Doc. # 43, ¶ 22.)
In November of 2011, Ms. Timm resigned from her position as secretary for the
junior/senior high school. Plaintiff applied for the position. Ms. Ortner corresponded
with Plaintiff via email to set up an interview, but Plaintiff was out of town during that
time. Ms. Ortner informed Plaintiff she had a deadline to complete the interview
process. Plaintiff did not respond. (Doc. # 43, ¶ 19, 20; 49 at 3.) Ms. Thompson,
who is younger than Plaintiff, was hired for the position. (Doc. # 43, ¶ 19.)
II. STANDARD OF REVIEW
A.

SUMMARY JUDGMENT STANDARD
The purpose of a summary judgment motion is to assess whether trial is

necessary. See Celotex Corp. v. Catrett, 477 U.S 317, 323 (1986). Federal Rule
of Civil Procedure 56(c) provides that summary judgment shall be granted if Athe
pleadings, the discovery and disclosure of materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is entitled
to judgment as a matter of law.@
A fact is Amaterial@ if it pertains to an element of a claim or defense; a factual
dispute is Agenuine@ if the evidence is so contradictory that if the matter went to trial, a
reasonable jury could return a verdict for either party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). However, the nonmoving party Amust do more than
simply show that there is some metaphysical doubt as to the material facts.@ Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). AThe mere
4

existence of a scintilla of evidence in support of the [non-moving party=s] position will
be insufficient; there must be evidence on which the jury could reasonably find for the
[nonmoving party].@ Anderson, 477 U.S. at 252.
AThe movant bears the initial burden of making a prima facie 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) (citing
Celotex, 477 U.S. at 323). After the movant has met its initial burden, the burden shifts
to the nonmovant to put forth sufficient evidence for each essential element of the claim
such that a reasonable jury could find in its favor. See Anderson, 477 U.S. at 248.
The nonmovant must go beyond the allegations and denials of her pleadings and
provide admissible evidence, which the Court views in the light most favorable to the
nonmovant. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Although
the nonmoving party need not present evidence Ain a form that would be admissible
at trial,@ Celotex, 477 U.S. at 324, Athe content or substance of the evidence must be
admissible.@ Thomas v. Int=l Bus. Machs., 48 F.3d 478, 485 (10th Cir. 1995). However,
conclusory statements based merely on conjecture, speculation, or subjective belief
are not competent summary judgment evidence. Bones v. Honeywell Int=l, Inc., 366
F .3d 869, 875 (10th Cir. 2004). Furthermore, A[h]earsay testimony that would be
inadmissible at trial cannot be used to defeat a motion for summary judgment because
>a third party=s description of a witness= supposed testimony is not suitable grist for the
summary judgment mill.=@ Adams v. Am. Guarantee and Liab. Ins. Co., 233 F.3d 1242,

5

1246 (10th Cir. 2000) (quoting Wright-Simmons v. City of Oklahoma City, 155 F.3d
1264, 1268 (10th Cir. 1998)).
B.

MCDONNELL DOUGLAS BURDEN-SHIFTING FRAMEWORK
Plaintiff brings her claims pursuant to the Age Discrimination in Employment Act

(“ADEA”). The ADEA was passed “to promote employment of older persons based on
their ability rather than age” and “to prohibit arbitrary age discrimination in employment.”
29 U.S.C. § 621(b). The ADEA, in part, prohibits an employer from “fail[ing] or refus[ing]
to hire or to discharge any individual or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1).
Where, as here, an employee’s age discrimination claim relies exclusively on
circumstantial, rather than direct, evidence, the Court applies the burden-shifting
scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). See
Garrison v. Gambro, Inc., 428 F.3d 933, 936–37 (10th Cir. 2005) (invoking the
McDonnell Douglas scheme where the plaintiff asserted an ADEA age discrimination
claim). That framework first allocates the burden of production to the employee to
establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802.
If the employee is successful in doing so, the burden of production shifts to the
employer to articulate a legitimate, nondiscriminatory reason for the adverse
employment action. Id. The employer’s articulation of a legitimate, nondiscriminatory
reason for the adverse employment action causes the presumption of discrimination
attendant to the prima facie showing of discrimination “to simply drop[ ] out of the
6

picture.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). The employee then
has the full burden to show that the employer discriminated on the basis of sex or age.
Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1125 (10th Cir. 2005). “The [employee]
may do so by . . . showing that the proffered reason is a pretext for illegal discrimination
. . . .” Ingels v. Thiokol Corp., 42 F.3d 616, 621 (10th Cir. 1994), abrogated on other
grounds by Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003).
III. DISCUSSION
A.

DISCRIMINATION CLAIMS
Plaintiff brings claims under the ADEA for the following conduct: (1) Defendants’

decision to retain Ms. Timm as secretary for the junior/senior high school building,
thereby, eliminating Plaintiff’s position; and (2) Defendants’ decision to hire Ms. Krueger
rather than Plaintiff for the administrative assistant position. 3
In McDonnell Douglas, the Supreme Court enumerated the elements required in
order for a plaintiff to establish a prima facie case in the failure to retain and failure to
hire contexts. These are: (1) plaintiff belongs to a protected class; (2) plaintiff “applied
and was qualified for a job for which the employer was seeking applicants”; (3) despite

3

Because Plaintiff has clarified that she is not bringing separate claims of discrimination for her
removal as Athletic Director or the 2010 reprimand (Doc. ## 43 at 11 n. 3; 50 at 2), the Court
need not address Defendants’ arguments that those claims are untimely. Similarly, Plaintiff
clarified that she “is not basing her discrimination charge” on Defendants’ alleged failure to
consider her for the opening created by Ms. Timm’s resignation. Moreover, Plaintiff failed
to include an allegation of retaliation on this basis in the Final Pretrial Order. See (Doc. # 55
at 3-4); Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002) (claims not included in final
pretrial order are waived). Therefore, these claims are waived and the Court need not
determine whether she failed to exhaust administrative remedies related to these allegations.
Rather, the Court considers these facts only to the extent that they provide background
information relevant to Plaintiff’s claims of discrimination.
7

being qualified, the plaintiff was rejected; and (4) after plaintiff’s rejection, “the position
remained open and the employer continued to seek applicants from persons of
[plaintiff’s] qualifications.” McDonnell Douglas, 411 U.S. at 802. 4 The fourth prong only
requires that the plaintiff show that his or her job was not eliminated after the discharge.
Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1227 (10th Cir. 2000).
However, where a plaintiff is laid off and cannot prove the position remained open,
courts have modified the fourth element by requiring plaintiff to produce direct or
circumstantial evidence from which a fact finder might reasonably find an intent to
discriminate. Branson v. Price River Coal Co., 853 F.2d 768, 771 (10th Cir.
1988) (citation omitted).
Defendants concede that Plaintiff has alleged sufficient facts to establish a prima
facie case of discrimination related to their failure to retain her as a junior/high school
building secretary and to hire her as an administrative assistant. 5 See id. (“Evidence
4

Similarly, to establish a prima facie case that her termination was discriminatory a plaintiff
must demonstrate: “(1) [s]he was a member of a protected class; (2) [s]he was qualified and
satisfactorily performing [her] job; and (3) [s]he was terminated under circumstances giving rise
to an inference of discrimination.” Barlow v. C.R. England, Inc., 703 F.3d 497, 505 (10th Cir.
2012) (quoting Salguero v. City of Clovis, 366 F.3d 1168, 1175 (10th Cir.2004)). The Court
notes, however, that neither party articulates the appropriate standard under which to review
Plaintiff’s claims for discrimination. Defendants cite the three-prong inquiry that is applied to
retaliation or disparate impact claims. Yet, it does not appear that Plaintiff brings a disparate
impact claim and her retaliation claim warrants a separate inquiry. Plaintiff fails to cite any case
law regarding the appropriate inquiry, providing only a smattering of facts and cases from which
the Court must infer the application to each prong. Plaintiff’s failure to establish a prima facie
case of discrimination would be sufficient to grant summary judgment. See id. However,
because Defendants appear to concede that Plaintiff articulates a prima facie case on her
claims that Defendants discriminatorily retained Ms. Timm and hired Ms. Krueger, the Court will
address the other steps of the McDonnell Douglas framework out of an abundance of caution.
5

Plaintiff devotes a section of her response to outlining disputes of fact regarding whether
Defendants treated her differently in the terms of conditions of employment. As written, it is
8

that an employer fired qualified older employees but retained younger ones in similar
positions is sufficient to create a rebuttable presumption of discriminatory intent and to
require the employer to articulate reasons for its decision.”) At this stage, Defendants
are required to articulate a legitimate, nondiscriminatory reason for their employment
actions. Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002).
Defendants assert they had legitimate business reasons for eliminating Plaintiff’s
position as a junior/high school building secretary, including a budgetary shortfall for the
2011-2012 school year and the need to prioritize budget cuts that did not impact the
classroom. Although Plaintiff does not dispute that there were budgetary concerns, she
asserts that the elimination of positions was “simply a ruse to eliminate [Plaintiff’s]
position.” (Doc. # 43 at 13.) Specifically, Plaintiff states that “at the same time that
Miles was eliminating secretarial positions, he was increasing positions within his office
and giving out two sets of bonuses [to all school employees].” (Id. at 13 n. 4.)
However, Plaintiff herself told Superintendent Miles that there was not enough work
in the junior/high school building for two secretaries. See (Doc. # 49-3 at 2).
Superintendent Miles explained that the changes in his office staff were needed due
to the heavy workload of the superintendent’s office. See (Doc. # 43-1 at 16-17).
Plaintiff’s assertion that Defendants should have nonetheless retained her in the

unclear whether Plaintiff believes this is a standalone claim. Typically, facts showing a plaintiff
is treated less favorably than others not in the protected class is one element of a prima facie
case, see Jones v. Okla. City Sch. Bd., 617 F.3d 1273, 1279 (10th Cir. 2010), or used to
establish pretext, see Kendrick, 220 F.3d at 1227. Plaintiff provides no case law to explain
how these allegations fit overall into her claims. Because Defendants have conceded that
Plaintiff established a prima facie case, the Court will generally address these claims as they
relate to Plaintiff’s burden to demonstrate pretext under the McDonnell Douglas framework.
9

remaining junior/high school building is insufficient to create a genuine issue of fact
regarding this legitimate, nondiscriminatory explanation. See Branson, 853 F.2d at 772.
Moreover, Defendants assert additional legitimate, nondiscriminatory reasons for
their employment decisions. Defendants indicate that they selected Ms. Timm over
Plaintiff because of Principal Ortner’s recommendation, in which she observed that
Ms. Timm performed the job of secretary better than Plaintiff. With respect to the
decision to hire Ms. Krueger, Defendants assert that they did not hire Plaintiff because
she did not interview as well as Ms. Krueger, nor did she have references comparable
to those received by Ms. Krueger. Although Plaintiff makes various arguments, they all
relate to whether Defendants’ submitted reasons are merely pretext. Accordingly, the
Court finds that Defendants have offered legitimate, nondiscriminatory reasons for their
employment actions.
This shifts the burden back to Plaintiff to proffer evidence demonstrating that her
employer’s reason is pretextual. MacKenzie v. City & Cnty. of Denver, 414 F.3d 1266,
1278 (10th Cir. 2005). If a plaintiff “presents evidence that the defendant’s proffered
reason for the employment decision was pretextual—i.e. unworthy of belief, the plaintiff
can withstand a summary judgment motion and is entitled to go to trial.” Randle v. City
of Aurora, 69 F.3d 441, 451 (10th Cir.1995); see also Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 148 (2000) (“a prima facie case and sufficient evidence to
reject the employer’s explanation may permit a finding of liability” under the ADEA).
Significantly, “[t]he evidence which [a plaintiff] can present in an attempt to establish
that [a defendant’s] stated reasons are pretextual may take a variety of forms. . . .
10

[A plaintiff] may not be forced to pursue any particular means of demonstrating that
[a defendant’s] stated reasons are pretextual.” Patterson v. McLean Credit Union, 491
U.S. 164, 187-88 (1989). A showing of pretext may be based on “weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
claimed legitimate, non-discriminatory reason such that a rational trier of fact could find
the reason unworthy of belief.” Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1143
(10th Cir. 2009) (quoting Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1113 (10th Cir.
2007)). 6 As the Tenth Circuit observed in Kendrick:
A plaintiff typically makes a showing of pretext in one of three ways:
(1) with evidence that the defendant’s stated reason for the adverse
employment action was false; (2) with evidence that the defendant acted
6

Plaintiff begins her response by stating, “Every secretary hired by Superintendent Miles and
his principals has been under the age of 45,” then she lists five women hired and their ages.
(Doc. # 43 at 11.) “It is uniformly recognized that statistical data showing an employer’s pattern
of conduct toward a protected class can create an inference that an employer discriminated
against individual members of the class.” Fallis v. Kerr–McGee Corp., 944 F.2d 743, 746
(10th Cir. 1991). However, “[s]tatistics taken in isolation are generally not probative of . . .
discrimination,” Jones v. Unisys Corp., 54 F.3d 624, 632 (10th Cir. 1995), and statistical
evidence on its own “will rarely suffice” to show pretext, Ortiz v. Norton, 254 F.3d 889, 897 (10th
Cir. 2001). “At the very least, in order to create an inference of pretext, a plaintiff’s statistical
evidence must focus on eliminating nondiscriminatory explanations for the disparate treatment
by showing disparate treatment between comparable individuals.” Timmerman, 483 F.3d at
1114-15 (emphasis in original). It is unclear whether Plaintiff is bringing a disparate impact
claim. In the body of her response, Plaintiff argues only that two of the five women—Ms. Timm
and Ms. Krueger—are comparable. While Defendants concede that Ms. Timm is comparable,
the Court disagrees that Ms. Krueger is, given her location in the elementary school. Aramburu
v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997) (“Similarly situated employees are those
who deal with the same supervisor and are subject to the same standards governing
performance evaluation and discipline.”). Nonetheless, and as discussed in more detail infra,
the undisputed facts do not establish that Ms. Timm or Ms. Krueger engaged in similar conduct
to Plaintiff. See MacKenzie, 414 F.3d at 1277 (“Individuals are considered “similarly-situated”
when they (1) have dealt with the same supervisor; (2) were subjected to the same work
standards; and (3) had engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the employer’s treatment of them for it.”)
(citations omitted).
11

contrary to a written company policy prescribing the action to be taken
by the defendant under the circumstances; or (3) with evidence that the
defendant acted contrary to an unwritten policy or contrary to company
practice when making the adverse employment decision affecting the
plaintiff. A plaintiff who wishes to show that the company acted contrary
to an unwritten policy or to company practice often does so by providing
evidence that he was treated differently from other similarly-situated
employees who violated work rules of comparable seriousness.
220 F.3d at 1230.
1.

Elimination of Secretary of Junior/High School Building Position

It is unclear whether Plaintiff brings a separate claim for the elimination of her
position. Nevertheless, Plaintiff has failed to present evidence that the decision to
eliminate one of the secretarial positions was motivated by age discrimination. She
does not specifically deny that the district faced budgetary constraints. Moreover, it is
undisputed that the district eliminated a position in both the junior/high school and
elementary school buildings. “The ADEA does not require employers to accord
members of the protected class preferential treatment, but only that they treat age
neutrally.” Branson, 853 F.2d at 772 (citation omitted). Because she has not
demonstrated that Defendants’ nondiscriminatory reason was merely pretext, this
claim fails.
2.

Failure to Retain Plaintiff as Secretary of Junior/High School Building

Regarding Defendants’ failure to retain her as the remaining secretary in the
Junior/High School Building, Plaintiff argues that “there are substantial factual disputes
as to whether: (i) Ortner’s written reprimand was warranted, or just another instance of
discrimination; and (ii) whether [Plaintiff] had any performance problems.” (Doc. # 43
12

at 14.) Plaintiff also argues that she was treated differently from Ms. Timm, who,
Plaintiff claims, was given various liberties not afforded to her. These allegations fit into
the categories of false justification and treating similarly situated employees differently.
See Kendrick, 220 F.3d at 1230.
First, Plaintiff alleges that some of the bases in the written reprimand were not
warranted because the circumstances were out of her control. However, a challenge of
pretext requires this Court to look at the facts as they appear to the person making the
decision to reprimand Plaintiff. See id. at 1231 (citing Shorter v. ICG Holdings, 188 F.3d
1204, 1209 (10th Cir. 1999) (the manager’s perception of the employee’s performance,
not the employee’s subjective evaluation of her performance, is relevant in determining
pretext); McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1129 (10th Cir. 1998)
(plaintiff failed to establish pretext where the defendant discharged plaintiff after
conducting an investigation into a subordinate employee’s allegations of sexual
misconduct on the part of the plaintiff and believed the allegations to be true, even
though plaintiff presented evidence to the district court that the allegations may have
been false); E.E.O.C. v. Flasher Co., Inc., 986 F.2d 1312, 1322 n. 12 (10th Cir. 1992)
(“[A] mistaken belief can be a legitimate reason for an employment decision and is not
necessarily pretextual.”)). “A company must be allowed to exercise its judgment in
determining how severely it will discipline an employee for different types of conduct.”
Id. The Court’s “role is to prevent unlawful hiring practices, not to act as a super
personnel department that second guesses employers’ business judgments.” Simms v.
Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321,
13

1330 (10th Cir. 1999) (quotations and citation omitted). Thus, whether Plaintiff had an
explanation for the actions for which she was reprimanded, including her subjective
belief that the circumstances were out of her control, 7 is not sufficient to create a
genuine dispute of material fact. See Lobato v. New Mexico Envtl. Dept., 733 F.3d
1283, 1292 (10th Cir. 2013) (no material fact as to pretext where employee fails to
demonstrate employer’s accusations of dishonesty were false and instead offers
excuses for his behavior).
Moreover, Principal Ortner was entitled to consider other’s complaints regarding
Plaintiff’s behavior in determining whether a reprimand was warranted. See id. at 1293
(even assuming a dispute regarding whether plaintiff was rude, he failed to show pretext
because employer believed other employee’s accounts of their interactions with
plaintiff). Principal Ortner reprimanded Plaintiff because she refused to deal with
athletic paperwork, money, or questions, and instead, sent students and parents to
another building rather than assist them. Principal Ortner instructed that she “expect[s]
our office to be service-minded and willing to go above and beyond to help people.”
Plaintiff responds that Ms. Timm was paid additional compensation to deal with athletic
paperwork and that Plaintiff was reprimanded for not doing Ms. Timm’s job. However,
Plaintiff’s subjective belief that she acted appropriately is not enough to create a
genuine issue of material fact. See id.
7

Plaintiff alleges that Principal Ortner recognized that Plaintiff’s failure to record her time
was because the school’s computer person had not installed the necessary software on her
computer. (Doc. # 43 at 9, 15.) However, Principal Ortner acknowledged as much in the
reprimand itself. (Doc. # 38-13 at 2.) Therefore, this does not create a disputed fact that
calls into question the legitimacy of the reprimand.
14

The Court will not second guess Principal Ortner’s decision not to engage in less
formal or progressive discipline prior to the written reprimand. Timmerman, 483 F.3d at
1121 (“the fact that [Plaintiff] only received a written warning is of no relevance”).
Plaintiff has made no showing that the school or district had a progressive discipline
policy. Lobato, 733 F.3d at 1289 (“For this argument to proceed, [plaintiff] must show,
first, that [defendant] had such a policy, and second, that [defendant] did not follow that
policy . . . .”). Furthermore, Plaintiff mistakenly asserts that “Ortner could not provide
any explanation whatsoever for her failure to address purported performance problems
for over a year.” (Doc. # 43 at 16.) This allegation presents two problems. First,
Plaintiff fails to point the Court to specific portions of the record that supports this
allegation. Second, Plaintiff’s belief that Principal Ortner waited for a year to issue the
reprimand appears to be based on the mistaken belief that it was written in August of
2011, rather than 2010. As discussed supra, the letter was written and given to Plaintiff
in August of 2010. Accordingly, this purported issue of temporal proximity is erroneous.
Next, Plaintiff alleges that Ms. Timm engaged in similar behavior without
receiving a reprimand. 8 “A plaintiff may also show pretext on a theory of disparate
treatment by providing evidence that she was treated differently from other similarlysituated, nonprotected employees who violated work rules of comparable seriousness.”
8

Plaintiff has offered her own contemporaneous notes as evidence of Ms. Timm’s behavior,
which Defendants object to as inadmissible hearsay. Although the Court agrees that these
notes would not be admissible at trial, see Adams, 233 F.3d at 1246, at this stage, the Court
looks to whether Athe content or substance of the evidence [is] admissible.@ Thomas, 48 F.3d
at 485. The Court assumes Plaintiff would testify as to her observations and at this juncture,
she merely uses her notes as an indication of that testimony. However, even considering
the substance of those notes, it is not sufficient to overcome summary judgment.
15

Kendrick, 220 F.3d at 1232. Defendant concedes that Ms. Timm was similarly situated
to Plaintiff. However, Plaintiff has not established that Ms. Timm violated work rules of
comparable seriousness. Plaintiff has offered evidence, by way of her own
observations, that Ms. Timm was allowed to work part-time during the summer, not
attend work meetings, come in late, leave early, and take lunch at her leisure or not at
all. Yet, Plaintiff has failed to demonstrate that Ms. Timm deleted files from a company
computer, refused to be “service-minded” and helpful, or requested and took a month
off of work without fair notice, all of which formed the basis of Plaintiff’s reprimand.
Because Plaintiff’s actions constituted violations of greater severity, her allegations that
Ms. Timm also violated work policies are insufficient to preclude summary judgment.
See Kendrick, 220 F.3d at 1233 (the fact that other employees may have engaged in
some similar, but not all actions does not establish pretext).
Plaintiff claims that she was “far and away the most qualified candidate” for the
position ultimately given to Ms. Timm. 9 (Doc. # 43 at 13-14.) However, Plaintiff’s
subjective assessment of her own qualifications is insufficient to support a finding
of pretext. See Branson, 853 F.2d at 772. Courts are not free to second-guess an
employer’s business judgment. Id. And, “[i]t is the perception of the decision maker
which is relevant, not Plaintiff’s perception of herself.” Id.
Last, the Court will briefly address Plaintiff’s contentions that Principal Ortner
disciplined Plaintiff and gave her a poor performance review at the behest of

9

Plaintiff makes a similar allegation regarding Ms. Krueger, which the Court also rejects.
16

Superintendent Miles. 10 To substantiate this theory, Plaintiff claims that Superintendent
Miles previously considered replacing Principal Ortner, that Ortner consulted Miles prior
to giving Plaintiff her written remand, and that Miles had the power to retain or dismiss
Ortner. (Doc. # 43 at 16.) “To avoid summary judgment, a party must produce specific
facts showing that there remains a genuine issue for trial and evidence significantly
probative as to any material fact claimed to be disputed.” Branson, 853 F.2d at 771-72
(citations and internal brackets and quotation marks omitted, emphasis in original).
Thus, Plaintiff’s “mere conjecture” that Principal Ortner acted as a conduit for
Superintendent Miles’s bias is an insufficient basis for denial of summary judgment.
See id. This is particularly so when Plaintiff has failed to dispute her more egregious
allegations of misconduct, including that she deleted school files.
3.

Failure to Hire Plaintiff as Administrative Assistant to the Superintendent

Plaintiff also claims that there are disputed material facts that show Defendants’
claimed reasons for hiring Ms. Krueger as administrative assistant were pretextual.
Plaintiff takes issue with Superintendent Miles’s use of references when selecting
a candidate for this position. She alleges that she was given only a few hours to obtain
references, whereas Ms. Krueger was given several days, and that Superintendent
Miles requested references of the candidates of his choosing. (Doc. # 43 at 17.)
10

This theory appears to be the inverse of what courts refer to as subordinate bias liability or
rubber stamp or cat’s paw theory, which “refer[] to a situation in which a biased subordinate,
who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate
scheme to trigger a discriminatory employment action.” E.E.O.C. v. BCI Coca-Cola Bottling
Co. of Los Angeles, 450 F.3d 476, 484 (10th Cir. 2006)
17

An objective look at the references demonstrates that the references were not
comparable. All five of Ms. Krueger’s references gave her an overall rating of
“above average” and stated they would hire her “without reservation.” (Doc. # 39-2.)
Conversely, all five of Plaintiff’s references, including those from persons she selected,
gave her an overall rating of “average” and stated they would not hire her, or would
hire her “with reservation.” (Doc. # 39-3.) Again, the Court will not “act as a super
personnel department that second guesses employers’ business judgments.” Simms,
165 F.3d at 1330; see also Lobato, 733 F.3d at 1293 (where plaintiff provides no goodfaith reason to reject them, employer may rely on employee’s complaints). Indeed,
“[u]nless the disparity in employees’ qualifications are obvious, we judges should be
reluctant to substitute our views for those of the individuals charged with the evaluation
duty by virtue of their own years of experience and expertise in the field in question.”
Mackenzie, 414 F.3d at 1278 (10th Cir. 2005) (citation and internal quotation marks
omitted). Plaintiff’s speculation that her lack of time resulted in negative references
is insufficient to establish pretext.
Curiously, Plaintiff contends, “The most damming aspect of the reference check
documents was that they were sent out after a decision as to who would be the
administrative assistant was already made.” (Doc. # 43 at 17.) As evidence, Plaintiff
points to a statement by one of Mr. Krueger’s references that she is “very sad to see
[Ms. Krueger] go, she has been a joy to work with.” (Doc. # 39-2.) Plaintiff’s allegation
that this evidences that the references were a post-hoc justification for the employment
decision will not suffice. More likely, the reference’s statement referred to Mr. Krueger’s
18

departure from the elementary school so that her sister could remain as secretary.
Plaintiff further supports this supposed scheme by stating, “Krueger . . . testified that
people were congratulating her even before references were requested.” (Doc. # 43
at 17.) The deposition testimony to which Plaintiff cites not only does not support this
interpretation, but more importantly, it demonstrates that, in an effort to avoid the
granting of summary judgment, Plaintiff has intentionally distorted the evidence.
That testimony is as follows:
Counsel:

Do you remember saying [during the interview] that
you had gotten great compliments from staff since the
announcement?

Krueger:

Yes.

Counsel:

And what was the announcement?

Krueger:

That -- just my working with the staff; that I was leaving
the elementary; and I got emails from numerous staff, you
know, saying how we worked together and that they loved
working with me and best of luck and going to miss me and
that type of emails from staff.

(Doc. # 47-1 at 5-6.) Accordingly, Plaintiff has not demonstrated that a disputed issue
of material fact exists.
Plaintiff argues that Defendants’ explanation that Ms. Krueger answered
questions better than Plaintiff improperly relies on subjective standards, which
demonstrates pretext. In the context of a Title VII claim, the Tenth Circuit has observed:
[T]he use of subjective factors supports an inference of pretext when an
employer justifies rejection of a minority candidate on the basis of such
factors even though the minority is objectively better qualified than the
non-minority chosen. The use of such subjective criteria as “dedication”
and “enthusiasm” also may offer a convenient pretext for giving force
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and effect to racial prejudice, and can create a strong inference of
discrimination if there is a showing of significant disparity in the
representation of a particular group.
Mohammed v. Callaway, 698 F.2d 395, 401 (10th Cir. 1983) (internal citations and
quotation marks omitted). However, Plaintiff’s perception that she was more qualified
than Ms. Krueger does not create a material factual dispute. Green v. JP Morgan
Chase Bank Nat. Ass’n, 501 F. App’x 727, 733 (10th Cir. 2012). In Green, the Tenth
Circuit distinguished Mohammed, upon which Plaintiff relies. The court explained:
The relative parity between the candidates distinguishes this case from
Mohammed . . . . In Mohammed, an unqualified candidate was hired over
a qualified minority candidate. But where neither candidate is clearly
better qualified, it is within the employer’s discretion to choose among
them so long as the decision is not based on unlawful criteria.
Green, 501 F. App’x at 733 (internal citations and quotation marks omitted); see also
Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1309 (10th Cir. 2005) (no showing
of pretext where plaintiff conceded that employer could have a good-faith belief that
successful candidate was at least as well qualified as plaintiff). While Plaintiff argues
that she was more qualified because she had many more years of experience as a
secretary, this does not take into account other attributes that make one candidate
more qualified than another. Moreover, despite Ms. Krueger having only three years of
experience at the time she was hired, Plaintiff makes no showing that Ms. Krueger was
not qualified. Accordingly, this case is distinguishable from Mohammed, and Plaintiff
has not demonstrated that Defendants’ legitimate, nondiscriminatory reasons for hiring
Ms. Krueger are pretext.

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B.

RETALIATION
Plaintiff alleges that she was retaliated against following her complaints of age

discrimination when Defendants failed to retain her for the secretary position. In order
to establish a prima facie case of retaliation, an employee must show that: “(1) she
engaged in protected activity, (2) she suffered an adverse employment action, and
(3) there was a causal connection between the protected activity and the adverse
action.” Duncan v. Mgr., Dep’t of Safety, 397 F.3d 1300, 1314 (10th Cir. 2005). Similar
to a discrimination claim, once the employee establishes a prima facie case of
retaliation, the burden of production shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the adverse employment action. O’Neal v. Ferguson
Constr. Co., 237 F.3d 1248, 1252 (10th Cir. 2001). If such a reason is successfully
articulated, the employee must then demonstrate that the employer’s proffered reason
for the adverse action is pretextual. Id.
Plaintiff alleges that she “was told she did not get the open jobs on May 24, 2011,
and was terminated on May 27, less than a month after filing the formal complaint of
discrimination (May 5, 2011). . . .” 11 (Doc. # 43 at 19.) Even assuming Plaintiff has
established causation due to the close temporal proximity between her complaint and
the failure to retain her, Plaintiff has not demonstrated pretext. See Metzler v. Fed.
11

Plaintiff also alleges, “A further act of retaliation occurred in December . . . 2011[, when she]
applied for [the position Ms. Timm vacated.” (Doc. # 43 at 19.) However, in submissions to
this Court, she clarified that this is background information rather than a standalone claim.
Moreover, she failed to include this as a separate claim in the Final Pretrial Order. Wilson, 303
F.3d at 1215 (“claims, issues, defenses, or theories of damages not included in the pretrial order
are waived even if they appeared in the complaint”).
21

Home Loan Bank of Topeka, 464 F.3d 1164, 1172 (10th Cir. 2006); Annett v. Univ. of
Kan., 371 F.3d 1233, 1241 (10th Cir. 2004). To demonstrate pretext, Plaintiff must
“present evidence of temporal proximity plus circumstantial evidence of retaliatory
motive.” Metzler, 464 F.3d at 1172 (emphasis in original). Plaintiff points to a bulletin
that she alleges shows that her “termination was discussed in the same [school] board
meeting as a discussion about the second letter from [Plaintiff’s] attorney about
discrimination.” (Doc. # 34 at 10.) However, those items appear under the section
entitled “Administrative Issues/FYI” and Plaintiff points this Court to no evidence
demonstrating that these issues were, in fact, discussed at the board meeting, as
she alleges. See Bones v. Honeywell Int=l, Inc., 366 F .3d 869, 875 (10th Cir. 2004)
(conclusory statements based merely on conjecture, speculation, or subjective belief
are not competent summary judgment evidence). Without more, the Court is asked to
rely exclusively on the temporal proximity of Plaintiff’s complaints, which it cannot do.
See Metzler, 464 F.3d at 1172. Moreover, having already determined that Plaintiff
failed to establish that Defendants’ nondiscriminatory reasons for hiring Ms. Timm
were merely a pretext, the Court also finds that Plaintiff has not established pretext
with regard to her retaliation claim.
IV. CONCLUSION
For the foregoing reasons, it is ORDERED that Defendants’ Motion for Summary
Judgment (Doc. # 38) is GRANTED. Accordingly, this case is DISMISSED WITH
PREJUDICE, and the Clerk of the Court shall enter judgment in favor of Defendants

22

and against Plaintiff. Pursuant to D.C.Colo.LCivR 54.1, Defendants may thereafter
have their costs by filing a bill of costs within 14 days of the date of that order. It is
FURTHER ORDERED that the final trial preparation conference, currently
scheduled for June 20, 2014, and the five-day jury trial, set to begin on July 7, 2014,
are VACATED.
DATED: June

09

, 2014
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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