Cohen v. Public Service Company of Colorado d/b/a Xcel Energy

Filing 149

ORDER granting in part and denying in part 97 Defendants Motion for Partial Summary Judgment, by Judge Wiley Y. Daniel on 7/18/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00578-WYD-BNB
STACY COHEN,
Plaintiff,
v.
PUBLIC SERVICE COMPANY OF COLORADO, d/b/a Xcel Energy,
Defendant.

ORDER

I.

INTRODUCTION AND FACTUAL BACKGROUND
THIS MATTER is before the Court on Defendant’s Motion for Partial Summary

Judgment (ECF No. 97) filed January 17, 2014. Specifically, Defendant Public Service
Company of Colorado (“PSCO”) filed its motion for partial summary judgment on the
following grounds: (1) discrete acts of alleged sex or age discrimination claims that
occurred before December 1, 2006 are time-barred; (2) acts alleged as part of Plaintiff’s
sex/age hostile work environment claims that are claimed to have occurred prior to the
time she entered the apprenticeship program are time-barred; (3) PSCO’s removal of
Plaintiff from the meterman apprenticeship program in 2008 did not violate Title VII or
the ADEA; and (4) Plaintiff cannot establish any violation of the ADEA as a matter of
law.1 Based on my review of the pleadings and relevant record, the motion for partial
summary judgment is granted in part and denied in part.
1

Thus, PSCO’s motion for partial summary judgment does not impact Plaintiff’s hostile
work environment, disparate treatment, or retaliation claims under Title VII.

This case arises out of Plaintiff Stacy Cohen’s (“Cohen”) employment with PSCO
as a Utility Worker and an apprentice in PSCO’s Electrical Meter apprenticeship
program. Cohen’s Second Amended Complaint alleges that she filed seven charges of
employment discrimination and retaliation with the Equal Employment Opportunity
Commission (“EEOC”).
By way of background, in or around 1988, Cohen was hired by PSCO and
worked at its Cherokee Power Plant until 1997 when she became a Utility Worker C at
the Arvada Service Center. Cohen was later promoted to a Utility Worker B in the Utility
Services Department.
Electric Meterman Apprenticeship
In April 2004, Cohen became an electric meterman apprentice in PSCO’s Electric
Meter Department.2 The apprenticeship program is a four-year program broken down
into 8 six-month periods, with the apprentice receiving monthly evaluations in six
categories for his or her performance during each month by the meterman who worked
with the apprentice that month.3 The Amended Apprenticeship Contract provides that
“[t]he first time [an apprentice] fail[s] to meet the basic requirements of the
apprenticeship, [he or she] will be issued the first strike ... for three months. The second
time [the apprentice] fail[s] to meet the basic requirements of the apprenticeship it will

2

Electric metermen install, connect, inspect, and maintain electric meters at
PSCO’s customers’ property.
3

While there is a dispute as to whether the document proffered by PSCO is the
Apprenticeship Contract, Cohen admits that she signed an Apprenticeship Contract and
that the amended contract, amended in 2005, governed Cohen’s apprenticeship from
2005 forward.
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result in a second strike ... for six months. ... The third time [the apprentice] fail[s] to
meet the basic requirements of the apprenticeship, it will indicate to the FJAC that [the
apprentice] should not be allowed to continue in the program.” (ECF No. 97-4).
During the apprenticeship, the apprentice is required to complete numerous
learning guides. Each learning guide contains multiple steps and covers a specific skill
the apprentice must master to work as a meterman. The Amended Apprenticeship
Contract provides that an apprentice must achieve a “[m]inimum of 100% proficiency on
all learning Guide/OJT Tests” and a “[m]inimum of 80% proficiency on all portions of
related and formal written tests.” (ECF No. 97-4). During the relevant time period,
Chuck DeCino was the meterman who conducted all of Cohen’s practical field tests.
Mike Cordova and Leroy Ramos also assisted with Cohen’s breakout tests. Mike King
also tested Cohen in the field while Tim Losier tested Cohen in the shop.
Positive Performance During Apprenticeship
Between July 2004 and December 2006, Cohen received a below-step rating in
one category of one of her Monthly Apprentice Reviews and received 191 at-step or
above-step ratings. On April 11, 2006, with the written support from several PSCO
metermen who were involved in her training and testing, Cohen requested that she be
advanced from the 5th to the 6th stage in the eight-step, four-year apprenticeship.
(ECF No. 112-21). For example, Jay Smith, a supervisor in Field Metering, stated that
“[Cohen] has shown a willingness to learn and the ability to quickly and accurately
complete all tasks to which she has been assigned. Her concern for safety is first and
foremost, which is further demonstrated in her exemplary safety record.” (ECF NO.
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112-21). Electric Meterman Rodolfo Trujillo stated that “[Cohen] will become a very
good meterman and is a highly qualified candidate for advancement.” (ECF No. 11221). Meterman Chuck Decino stated that Cohen “has completed all the related training
books and tests early with consistent high scores, she has done consistently well in
formal training and testing, and demonstrates the understanding and application of
theory well, out in the field.” (ECF No. 112-21). On May 31, 2006, PSCO granted
Cohen’s request for special advancement.
Cohen received passing scores on each practical test that she took prior to her
first breakout test. Cohen received a score of 99.3% on the written portion of her first
breakout test.
Complaints by Cohen
On or about January 12, 2007, Cohen left a voicemail for PSCO President
Patricia Vincent and reported an incident where Charles Izzo yelled at her about how
she placed a ladder and that he claimed Cohen called him a liar. Cohen further
reported that Izzo threatened to give her low apprentice marks and Electrical Functional
Joint Apprenticeship Committee (“EFJAC”) problems for refuting Izzo’s claim that she
called him a liar. Cohen also reported Izzo’s conduct to Dave Lampson, an acting
foreman at the Arvada Service Center; Mary Mapes, a PSCO Senior Workforce
Relations Consultant; Jay Smith, a PSCO management employee; and Mr. Estrada, a
chief foreman.
On January 14, 2007, Cohen disagreed with her Monthly Apprentice
Performance Review for December 2006, in part, because Izzo had accused her of
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calling him a liar and, in part, because he accused her of arguing and threatened to
mark her down to “0” or “1” on her evaluation and make her go in front of the EFJAC.
(ECF No. 112-23).
Between August 2007 and February 2009, while she was a part of the
apprenticeship program, Cohen submitted 10 internal and external complaints and
charges of employment discrimination and retaliation.
Negative Performance During Apprenticeship
The EFJAC issued Cohen strikes for receiving below-step marks in three or more
months in several categories of her Monthly Apprentice Reviews. Specifically, (1) on
June 21, 2007, the EFJAC issued Cohen a strike for three below-step marks in
“Teamwork”; (2) on August 23, 2007, the EFJAC issued Cohen a second strike for three
below-step marks in “Performance Method”; (3) on October 18, 2007, the EFJAC issued
Cohen a third strike for three below-step marks in “Quality of Work”; (4) on January 31,
2008, the EFJAC issued Cohen a second strike – since two earlier strikes had been
overturned on appeal – for six below-step marks in “Team Work”; (5) on January 31,
2008, the EFJAC issued Cohen a strike for five below-step marks in “Performance”; and
(6) on February 25, 2008, the EFJAC issued Cohen a fourth strike for four below-step
marks in “Quality of Work.” Cohen appealed all of her strikes to the EFJAC, and the
EFJAC denied each of those appeals. While the parties disagree as to the facts
regarding the appeals, it is clear that on five separate occasions, the Systems
Supervisory Joint Apprenticeship Committee (“SSJAC”) granted Cohen’s appeals from
the EFJAC’s decisions to uphold the strikes.
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Eventually, Cohen was removed from the apprenticeship program. On or about
February 2009, in accordance with the union contract, Cohen was returned to a Utility
Worker C position. One year later, Cohen was returned to a Utility Worker B position
and is currently employed in this position.
Discipline and Corrective Actions
On July 10, 2008, Cohen was issued an Oral Reminder after an investigation by
PSCO and the Union’s Human Rights Committee determined that Cohen intentionally
gave false information to a fellow employee about comments purportedly made by
another employee. On October 22, 2010, Cohen was issued a non-disciplinary
Coaching & Counseling for violation of PSCO’s Code of Conduct and its Discrimination,
Harassment and Other Unacceptable Behaviors policy for making disparaging
comments to a co-worker about his weight. In November 2010, PSCO issued Cohen
another non-disciplinary Coaching & Counseling for unauthorized use of company
resources and distribution of flyers about gender bias.
In February 2011, PSCO issued Cohen a Decision Making Leave for
insubordination and for a separate violation of the Code of Conduct and Harassment,
Discrimination and Other unacceptable Behaviors policy. While the parties dispute the
facts surrounding this incident, it is clear that Cohen would not attend an investigatory
meeting with PSCO management about a complaint lodged against her without a
specific union steward present. Also in February 2011, Cohen’s co-worker, John Bruno,
alleged that Cohen subjected him to sexual harassment. Plaintiff grieved the Decision
Making Leave, and the Union brought the matter to arbitration. An arbitrator later ruled
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that PSCO’s “insistence that Cohen attend the January 18, 2011, investigatory interview
absent her chosen ... steward Verwys, despite his availability to promptly respond to the
meeting and represent Cohen, violated Cohen’s fundamental due process rights
inherent in the proper cause provision of the parties’ Agreement.” (ECF No. 97-24).
Thus, the arbitrator ruled that the Decision Making Leave be expunged from Cohen’s
records and replaced with a Written Reminder dated February 18, 2011, based solely
on the sustained charge of Cohen’s inappropriate touching of Bruno. (ECF No. 97-24).
In April 2011, Cohen was issued a non-disciplinary Coaching & Counseling for
making a comment about how another meterman “hates jews.” (ECF No. 97 at 21).
Charges of Discrimination
Between September 27, 2007 and December 5, 2012, Cohen filed seven
Charges of Discrimination with the Equal Employment Opportunity Commission
(“EEOC”). For each separate charge, Cohen checked the boxes for “age”, “retaliation”,
and “sex” as the causes of the discrimination. (ECF No. 97-31). A PSCO employee,
Mr. Trujillo, testified that PSCO’s investigations into Cohen’s complaints were common
knowledge to the other employees in the Electrical Meter Department. Trujillo also
testified that he personally felt he was walking on eggshells around Cohen.
II.

STANDARD OF REVIEW
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may

grant summary judgment where "the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and the . . . moving party is entitled to judgment as a matter
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of law." Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Equal Employment Opportunity Comm’n. v.
Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). “When applying
this standard, the court must view the evidence and draw all reasonable inferences
therefrom in the light most favorable to the party opposing summary judgment.” Atlantic
Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000)
(internal quotation marks omitted). All doubts must be resolved in favor of the existence
of triable issues of fact. Boren v. Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th
Cir. 1991). A “genuine” factual dispute is one “on which the jury could reasonably find
for the plaintiff,” and requires more than a mere scintilla of evidence. Liberty Lobby, 477
U.S. at 252, 106 S.Ct. 2505. A factual dispute is “material” only if it “might affect the
outcome of the suit under the governing law.” Id. at 248, 106 S.Ct. 2505.
The moving party bears the initial burden of showing that there are no genuine
issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986); Justice v. Crown Cork & Seal Co., 527 F.3d 1080, 1085 (10th
Cir. 2008). Once the moving party meets its burden, the burden shifts to the nonmoving
party to show that a genuine issue remains for trial with respect to the dispositive
matters for which he or she carries the burden of proof. Nat'l Am. Ins. Co. v. Am.
Re–Ins. Co., 358 F.3d 736, 739 (10th Cir. 2004); see Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). As
to these matters, the nonmoving party may not rest on his or her pleadings but must set
forth specific facts. Fed. R. Civ. P. 56(e)(2); Matsushita, 475 U.S. at 586–87, 106 S.Ct.
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1348; Justice, 527 F.3d at 1085.
III.

DISCUSSION
A.

Whether Acts of Discrimination or Retaliation Occurring Before December
1, 2006 are Time-Barred

Under Title VII and the ADEA, claimants are required to file a charge of
discrimination with the EEOC within 300 days of the alleged unlawful employment
practice. Annett v. Univ. of Kansas, 371 F.3d 1233, 1238 (10th Cir. 2004). Here,
Cohen’s first charge of discrimination was filed on September 27, 2007. Thus, PSCO
requests that I grant summary judgment on all claims of discrimination or retaliation that
occurred before December 1, 2006. In her response, Cohen concedes this fact stating
that she “will not be seeking damages for any discrete acts of discrimination or
retaliation that occurred prior to December 1, 2006. Thus, I grant summary judgment in
favor of PSCO as to any of Cohen’s claims of discrimination or retaliation that occurred
before December 1, 2006.4
B.

Whether Pre-Apprenticeship Acts Alleged as Part of Cohen’s Hostile Work
Environment Claim are Time-Barred

Cohen also brings a claim for hostile work environment. Given that any plaintiff
alleging employment discrimination under Title VII must file administrative charges
within the proscribed time period of the date of the alleged discriminatory act, PSCO
moves the Court to grant summary judgment an all acts Cohen alleged as part of her

4

This ruling does not, however, preclude Cohen from potentially using evidence of
events that occurred prior to December 1, 2006 as background evidence for her timely
discrimination and retaliation claims. Failing to exhaust administrative remedies does not “bar
an employee from using the prior acts as background evidence in support of a timely claim.”
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).

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hostile work environment claim that occurred prior to Cohen entering the meterman
apprenticeship program on April 19, 2004. Cohen filed her first Charge of
Discrimination on or about September 28, 2007, more than three years after she
entered the apprenticeship program. Recognizing binding authority, in her response to
the pending motion for partial summary judgment, Cohen concedes that she “will not
seek to recover damages for any events that this Court determines not to be part of the
same hostile work environment that [Cohen] experienced during and after the time that
she was in [PSCO’s] Electrical Meter apprenticeship program.” (ECF No. 112 at 44-45).
As noted above, while Title VII does not bar a plaintiff from using prior acts as
background evidence in support of a timely claim, the Supreme Court reasoned that “[a]
hostile work environment claim is composed of a series of separate acts that collectively
constitute one unlawful employment practice.” Id. at 117. Thus, acts from outside the
limitations period can contribute to the hostile work environment and be considered
when determining liability. Id. I find that there is a difference between actionable events
and admissible evidence. A time-barred discrete act is not actionable and cannot be a
basis for liability, but it can be considered as evidence. Thus, I grant summary
judgment in favor of PSCO to the extent that Cohen is prohibited from seeking damages
for events that are not part of the same hostile work environment that Cohen
experienced during her apprenticeship. However, because there are genuine issues of
fact, resolution of the particular acts that Cohen may appropriately raise at trial as
evidence of her hostile work environment claim is inappropriate at this stage of the
litigation, but may be raised at trial.
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C.

Whether Summary Judgment is Proper on Cohen’s Claims of
Discrimination and Retaliation in Connection with her Removal from the
Apprenticeship Program

Cohen claims that PSCO subjected her to sex and age discrimination, and
retaliation by removing her from the meterman apprenticeship program.
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating
against employees and applicants for employment on the basis of race, color, religion,
sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). "The ADEA states that it is unlawful
for an employer ‘to fail or refuse 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 . . . .’” Stone v. Autoliv
ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000) (quoting 29 U.S.C. § 623(a)(1)). To
state a valid claim under Title VII or the ADEA, a plaintiff must prove by a
preponderance of the evidence that the employer engaged in intentional discrimination.
See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). A plaintiff alleging
discrimination on the basis of sex or age may prove intentional discrimination through
either direct evidence of discrimination (e.g. oral or written statements on the part of a
defendant showing a discriminatory motivation) or indirect (i.e. circumstantial) evidence
of discrimination. See Daniels v. United Parcel Service, Inc., 701 F.3d 620, 627 (10th
Cir. 2012). When a plaintiff does not have direct evidence of discrimination, a plaintiff
may rely on indirect evidence by invoking the analysis first articulated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Id.
In McDonnell Douglas, the Supreme Court "established an allocation of the
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burden of production and an order for the presentation of proof in Title VII
discriminatory-treatment cases." Hicks, 509 U.S. at 504. When the McDonnell Douglas
analysis is utilized, the burden of production shifts from plaintiff to defendant and back
to plaintiff. McDonnell Douglas, 411 U.S. at 802. If a plaintiff establishes a prima facie
case, then the burden of production shifts to the defendant to present evidence that it
had a legitimate nondiscriminatory reason for its action. Id. at 802-03. If the defendant
meets its burden of production, the plaintiff must then demonstrate that the defendant's
proffered explanation is pretextual. Id. at 804. Evidence of pretext, plus the
establishment of a prima facie case, is sufficient to avoid summary judgment, and
plaintiff is not required to present direct evidence of an illegal discriminatory motive.
Reynolds v. School Dist. No. 1, 69 F.3d 1523 (10th Cir. 1995).
Here, for purposes of the motion for partial summary judgment, PSCO assumes
that Cohen can establish a prima facie case of discrimination and retaliation under Title
VII and the ADEA with regard to her removal from the apprenticeship program. (ECF
No. 97 at 27). Thus, I turn the second step of the McDonnell Douglas analysis. The
burden now shifts to PSCO to articulate a legitimate, nondiscriminatory reason for its
decision to remove Cohen from the apprenticeship program. See McDonnell Douglas,
411 U.S. at 802. Here, PSCO contends that based on performance problems, Cohen
had three strikes issued against her. Therefore, under the Amended Apprenticeship
Contract, Cohen was removed from the program. I find that this is a nondiscriminatory
reason, therefore, the burden shifts to Cohen to show that the proffered reason is
merely a pretext for discrimination. Id.
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Generally, a plaintiff shows pretext in one of three ways: (1) with evidence that
the defendant's stated reasons for the adverse employment action were false; (2) with
evidence that the defendant acted 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. Plotke v. White,
405 F.3d 1092, 1102-03 (10th Cir. 2005) (internal citations omitted). A plaintiff's
evidence can also allow for an inference that the “‘employer's proffered
non-discriminatory reasons [were] either a post hoc fabrication or otherwise did not
actually motivate the employment action (that is, the proffered reason is a pretext).’” Id.
(quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)). Evidence of pretext may
also include the use, by the employer, of subjective criteria in its employment decision.
Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1217-18 (10th Cir. 2002) (internal
citations omitted).
PSCO maintains that Cohen was removed from the apprenticeship program
based on poor performance. However, Cohen received strong performance ratings
prior to January 2007 when she began making complaints about acts of discrimination
and retaliation against her. After January 2007, Cohen’s ratings in her Monthly
Apprentice Reviews sharply decreased. For example, Cohen received one below-step
mark prior to making any complaints and 23 below-step marks after she began making
complaints of discriminatory and retaliatory conduct. Additionally, the SSJAC granted
Cohen’s appeals from five of the pre-breakout test strikes. There is also evidence that
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PSCO did not follow the SSJAC’s recommendation that Cohen be assigned on a
rotational basis to the Southwest and Southeast Service Centers and that Cohen be
assigned to work with Mr. Urban as her trainer for the remainder of her apprenticeship
training. Instead, Cohen was assigned to other locations and worked with other
trainers. Following her reassignment to other locations and other trainers, Cohen’s
Monthly Apprentice Reviews declined. Moreover, there is evidence that after Cohen
complained about discrimination, several PSCO employees did not want to work with
Cohen or viewed her in a negative light. Viewing this evidence in a light most favorable
to Cohen, I find that PSCO’s proffered non-discriminatory reasons are pretextual due to
weaknesses, inconsistencies, and contradictions. Accordingly, Cohen’s discrimination
and retaliation claims survive summary judgment.
D.

Cohen’s ADEA Claims
1.

Whether Cohen Properly Exhausted Her ADEA Claims

PSCO next asserts that Cohen did not properly exhaust her ADEA claims with
the EEOC. Both Title VII and the ADEA require a plaintiff to exhaust his or her
administrative remedies by filing a charge of discrimination with the EEOC before filing
suit in federal court. See Shikles v. Sprint/United Management Co., 426 F.3d 1304,
1317 (10th Cir. 2005); 42 U.S.C. § 2000e5. The Tenth Circuit has held that exhaustion
of administrative remedies is a jurisdictional prerequisite to suit under Title VII and the
ADEA. Id.
PSCO contends that although Cohen began every one of her Charges of
Discrimination with a specific statement that PSCO “continues to engage in a patten
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and practice of discrimination against female employees, and against older female
employees in particular, with respect to hiring, pay, promotions, job assignments,
training, discipline, demotions, terminations/constructive discharge, sexual
harassment/hostile treatment, and other less favorable terms and conditions of
employment,” Cohen failed to assert specific facts to support the charge of age
discrimination. (ECF No. 97 at 29) (emphasis in original). I disagree. The Tenth Circuit
has instructed that “in an effort to effectuate the ADEA’s stated purpose of prohibiting
arbitrary age discrimination in employment, ... we liberally construe charges of age
discrimination filed with the EEOC.” Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1195
(10th Cir. 2004). Here, while Cohen did not specifically use the language “age
discrimination” in every EEOC charge, she checked the boxes, “Sex,” “Retaliation,” and
“Age” as the basis of PSCO’s discrimination against her. Cohen also used the heading
“Sex/Age Discrimination” in each of her EEOC charges. Furthermore, each charge
alleged that PSCO discriminated against “older female employees in particular, with
respect to hiring, pay, promotions, job assignments, training, discipline, demotions,
terminations/constructive discharges, sexual harassment/hostile treatment, and other
less favorable terms and conditions of employment.” (ECF No. 97-31). Given Tenth
Circuit law directing the liberal construction of Cohen’s EEOC charges, I find that Cohen
properly exhausted her ADEA claims such that PSCO was put on notice regarding the
nature of her age discrimination charges.
2.

Whether Summary Judgment is Proper on Cohen’s ADEA Claims

A claim of age discrimination or retaliation under the ADEA can be proven by
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either direct or circumstantial evidence. Id. “‘A plaintiff proves discrimination through
direct evidence by establishing proof of an existing policy which itself constitutes
discrimination.'" Id. (quoting Ingels v. Thiokol Corp., 42 F.3d 616, 620 (10th Cir. 1994)).
"In all other cases, the plaintiff seeks to prove discrimination through circumstantial
evidence." Howard v. Garage Door Corp. Inc., No. 02-3163, 2005 WL 481564 at *2
(10th Cir. 2005) (citing Danville v. Regional Lab. Corp., 292 F.3d 1246, 1249 (10th Cir.
2002)).
“Such a claim can survive summary judgment only where the plaintiff has
presented sufficient evidence to show there is a genuine issue of material fact
pertaining to whether the plaintiff's age actually motivated the allegedly discriminatory
conduct." Id. (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141
(2000)). “In determining whether the circumstantial evidence presented by the plaintiff
in a given case is sufficient to establish a genuine issue of material fact, the Supreme
Court has directed the application of the burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.ED.2d
668 (1973).” Id.
Here, since Cohen offered circumstantial evidence of age discrimination, I again
follow the McDonnell Douglas burden-shifting framework. Id. I find that Cohen
proffered evidence that she was treated differently in connection with overtime pay and
the disciplinary or corrective actions that she received along with being subjected to
age-based comments. I also find that PSCO articulated legitimate, nondiscriminatory
reasons for its actions. However, consistent with my findings earlier in this Order,
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considering the totalilty of the evidence in the light most favorable to Cohen, I find that
there are genuine issues of fact as to whether PSCO’s actions were pretext for age
discrimination or retaliation.
IV.

CONCLUSION
Based upon the foregoing, it is
ORDERED that Defendant’s Motion for Partial Summary Judgment (ECF No. 97)

is GRANTED IN PART AND DENIED IN PART. The motion is granted to the extent
that summary judgment is entered in favor of PSCO as to any of Cohen’s claims of
discrimination or retaliation that occurred before December 1, 2006 as set forth in this
Order. Additionally, summary judgment is entered in favor of PSCO to the extent that
Cohen is prohibited from seeking damages for events that are not part of the same
hostile work environment that Cohen experienced during her apprenticeship as set forth
in this Order. The motion is denied in all other respects.
Dated: July 18, 2014
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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