Washington v. Metropolitan State University of Denver

Filing 44

ORDER denying 27 Defendant's Motion for Summary Judgment, by Judge Lewis T. Babcock on 4/14/2015. (ebuch)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Lewis T. Babcock, Judge
Civil Action No. 13-cv-01632-LTB-NYW
JEFFREY WASHINGTON,
Plaintiff,
v.
BOARD OF TRUSTEES OF METROPOLITAN STATE UNIVERSITY OF DENVER,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This case is before me on Defendant’s Motion for Summary Judgment [Doc # 27]. After
consideration of the motion, all related pleadings, and the case file, I deny Defendant’s motion.
I. Facts
The following facts are undisputed for purposes of Defendant’s motion unless otherwise
noted.
Plaintiff Jeffrey Washington (“Washington”), an African American, was a student at
Metropolitan State University of Denver (“Metro State”) from 2008 through the filing of
Defendant’s Motion. Motion, pp. 1-2; Response, p. 2. Metro State is one of the constituent
institutions of the Auraria Higher Education Center (“AHEC”) in Denver.
Washington first held office with Metro State’s Student Government Assembly (“SGA”)
beginning in September of 2010 when the then- SGA president appointed him to a vacant student
senate seat. Motion, p. 2; Response, p. 2. Washington then ran in and won a special election in
January of 2011 and served in the student senate until January of 2012. Id.

In January of 2012, Washington decided to run for SGA president and chose S.H., a
Caucasian, as his running mate. Id. At that time, A.M., another student at Metro State, was the
Chairperson of the Election Commission. Id. Three other Metro State students also served on
the Election Commission, and Jake Kasper, who worked in Metro State’s administration, served
as an advisor to the Election Commission. Id. There were no African American members of the
Election Commission at the time of the 2012 election. Response, p. 9; Reply, p. 7.
In January and February of 2012, Washington and S.H. met with A.M. and the Election
Commission. Motion, pp. 2-3; Response, pp. 2-3. During Washington’s meeting with A.M.,
they discussed the Elections Code which would govern the SGA elections. Motion, p. 3;
Response, p. 2. Washington was involved in the writing and approval of the Code while serving
in the student senate and understood that he would be disqualified if he was found to have
committed three minor violations. Id. S.H. was likewise involved in the approval of the
Elections Code. Id. During one of these meetings in early 2012, Washington and S.H. were
given ACEH’s policies and requirements for campaign posters, and they prepared posters in
accordance with them around this same time. Response, p. 9; Reply, p. 7.
The Elections Code provided that
The Commission shall disqualify a campaigner from further participation in
campaigning or in the election itself only upon a finding that the campaigner has
committed three separate minor violations, a repetition of two identical minor
violations, or one major violation.
Ex. 3 to Motion, § 6.04.02. The Elections Code defined a “minor violation” as
... one that may impact fair election procedures. Minor violations may not cause
harm to the election process and may include remediable actions. Minor
violations do not require proven harm, but only evidence in opposition to this
Code as written. Failure to be aware of applicable rules and codes shall not be
considered a defense to an alleged violation.
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Id. at § 1.01.25(b).
On March 28, 2012, A.M. issued Washington and S.H. a written violation for using SGA
resources for the purpose of campaigning. Ex. 4 to Motion. On April 4, 2012, the Election
Commission found that “it was more likely than not that [Washington] was utilizing the
resources of the SGA offices for the purposes of campaigning in violation of § 5.03.4 of the
Elections Code” and thereby committed a first minor violation. Id. Washington did not contest
the Election Commission’s findings and pled guilty to the violation. Motion, pp. 4-5, Response,
p. 4.
On March 29, 2012, A.M. sent an email advising SGA candidates that all
communications with AHEC should be funneled through her and sent via the Commission. Ex.
5 to Motion. A.M. further advised that 5 days - April 9, 10, 13, 16, and 20, 2012 - had been set
aside for candidate tabling on a first come, first serve basis. Id. Washington asserts that he and
S.H. were previously told that they could set up a table and campaign any day during election
week. Ex. 1 to Response, p. 80.
The Policies and Procedures for ACEH’s Campus Events Services provide that tables
reserved to promote or disseminate information about student clubs or campus departments“must
have a sign attached ... (in clear view, not smaller than 8 ½” x 11”), identifying the student
organization or campus department and a contact phone number” and that “student
organizations/campus departments may not “front” for other organizations in any manner.” Ex 7
to Motion, ¶¶ 3 & 4.
S.H. reserved a table directly from AHEC for April 17, 2012. Motion, p. 5, Response, p.
4. The reservation references the Metro State Latter-Day Saints Student Association after S.H.’s

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name and also references “Elections.” Ex. 6 to Motion. On April 17, 2012, some of S.H.’s
children were observed standing behind a table on the AHEC campus. Motion, p. 6; Response,
p. 4. The table contained campaign materials and a sign prominently endorsing Washington and
S.H.’s campaign. Id. There was no sign at the table identifying the Metro State Latter-Day
Saints Student Association. Id.
On April 18, 2012, following a hearing, the Election Commission found that Washington
and S.H. utilized an unauthorized table on the Auraria campus grounds for campaign purposes in
violation of § 5.05.1 of the Elections Code which states:
All parties to an election shall be responsible for full compliance with this Code,
all college and campus policies relevant to election proceedings and all state and
federal laws applicable to conduct within such proceedings. However, violation
shall only be determined by the Commission upon a finding of clear intent and/or
failure to be aware of applicable rules.
Ex. 8 to Motion. This was Washington and S.H.’s second minor violation. Id.
By email dated March 6, 2012, A.M. provided SGA candidates with a sample border and
advised them to “use the border if you are going to make a poster.” Ex. 9 to Motion. A.M. sent
at least two other emails dated March 27, 2012, and April 10, 2012 referencing the border
requirement. Ex. 10 & 11 to Motion. A.M.’s April 10, 2012 email further advised that failure to
abide by the border requirement “will be treated as a violation from this point forth.” Ex. 11 to
Motion. The ACEH policies and requirements for campaign posters that A.M. gave Washington
and S.H. in February of 2012 did not reference a border requirement. Response, p. 9; Reply, p.
7.
On April 18, 2012, campaign posters belonging to Washington and S.H. that lacked the
required border were found in the physical education building. Motion, p. 8, Response, p. 5.

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The posters had been prepared prior to A.M.’s emails addressing the border requirement.
Reponse, p. 9; Reply, p.7. Washington asserts that another student, J.A., also printed and posted
campaign posters without the required border. Ex. 1 to Response, p. 42. Washington further
asserts that he provided A.M. with a photo of J.A.’s poster but that, to his knowledge, she did
nothing in response. Id.
On or about April 22, 2012, the election results were tabulated and Washington and S.H.
won the majority of votes with 582. Id. The runners-up were L.N. and A.S. with 446 votes. Id.
On April 23, 2012, the Election Commission held a hearing and found that Washington and S.H.
had violated the Commission’s requirements for campaign posters. Ex. 12 to Motion. On April
25, 2012, the Election Commission unanimously voted to disqualify Washington and S.H.
because they committed three minor violations. Ex. 14 to Motion. The Commission’s
administration advisors abstained from voting on the disqualification. Id.
On April 26, 2012, Washington and S.H. filed an appeal of the Election Commission’s
disqualification decision with the Student Court. Ex. 15 to Motion. Per the SGA’s Constitution,
“[a]ll rulings by the Student Court are final and binding on the SGA and shall be duly enforced
by the President and adhered to by the Senate and all other governmental entities.” Ex. 4 to
Response, SGA Constitution, Article VIII, § 3(3). Washington asserts that in his experience
serving on the SGA, Metro State’s administration honored the decisions of the Student Court.
Ex 1 to Response, 168:6-13.
On May 8, 2015, the Student Court released its opinion finding, among other things, that
it was not proven that Washington and S.H. had three separate violations as opposed to one and a
half each; that there was “a lack of a preponderance of the evidence” that Washington and S.H.

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had violated posting policies for campaign posters or campaigned in the SGA office; and that the
Election Commission had failed to remain impartial “due to incorrect voting procedures.” Id. In
response to the Student Court’s opinion, the Election Commission issued a decision stating that
the Student Court may not make findings of fact regarding elections violations; did not have
supremacy over decisions regarding elections; did not have jurisdiction to override elections
codes; and that the disqualification of Washington and S.H. from the 2012 election would stand.
Ex. 19 to Motion.
On May 11, 2012, A.M. advised candidates via email that the election had not been
certified and that the “[a]dministration has chosen to look into some matters pertaining to the
election.” Ex. 16 to Motion. On May 18, 2012, the Chief Justice of the Student Court issued a
“temporary order” to the Election Commission ordering them to certify the election results. Ex.
17 to Motion. The Chief Justice issued a second “temporary order” to the same general effect on
May 25, 2012. Ex. 18 to Motion.
On May 30, 2012, then-SGA President, J.A. released a “Notice of Executive Decision”
indicating that he would not enforce the Student Court decision due to its “unconstitutional
nature.” Ex. 20 to Motion. The Election Commission subsequently certified L.N. and A.S. as
the winners of the 2012 Spring Elections for SGA president and vice president. Ex. 21 to
Motion.
Washington filed a discrimination complaint with the Metro State’s Office of Equal
Opportunity (“EO Office”) asserting
Because of the history of African American [sic] being disqualified from student
government after they have been elected student body president[,] I think it is
reasonable to ask that an investigation be launched to find out if whether [sic]
[Washington] is being harassed because of his race and the position he was
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elected to hold as student body president of Metro State, which no other African
American has been able to serve as for a full term.
Ex. 22 to Motion. Washington identified Amelia Paul and Jake Kasper as the parties who
engaged in discrimination but does not know if these individuals did anything to affect the
decision of the Election Commission. Id.; Motion, p. 10, Response, p. 8. Percy Morehouse,
Executive Director of the EO Office determined that Washington had not provided any
corroborating evidence to substantiate his discrimination claim against Paul and Kasper and
dismissed the claim. Ex. 23 to Motion.
On June 1, 2012, Vicki Golich, the Provost and Vice President for Academic & Student
Affair, sent a letter to SGA members stating:
The College is aware of the escalating dispute regarding the outcome of the SGA
elections held last month in relation to the offices of President and Vice President.
While the College encourages the incoming leadership of the SGA to resolve this
dispute in an appropriate and amicable fashion, until such time as the College is
notified of an otherwise reasonable resolution, it will proceed according to
longstanding precedent. In the past, student life staff have accepted the
certification of the election commission as to the duly elected officers of the SGA
and has conveyed that information to the College for various purposes including
the processing of employment paperwork and payment of salary stipends. The
College will proceed accordingly as it has now been advised of the Commission’s
certification.
Ex. 24 to Motion. Washington and S.H. requested a meeting with Golich but she declined
stating that “what was stated in my letter of June 1 to the [SGA] stands.” Ex. 25 to Motion.
Washington, S.H., and M.F. attended the Board of Trustees meeting on June 7, 2012 and
asked for the Board’s assistance in resolving the election dispute. Motion, p. 12; Response, p. 8.
The Board declined to take any action. Id. Washington then requested a meeting with Metro
State President, Stephen Jordan. Id. A meeting between Washington, Jordan, Golich,

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Morehouse, and SGA representatives took place on June 27, 2012, but no further action was
taken. Id.
The SGA president position pays a stipend of approximately $1,200 per month or a total
of approximately $15,600 for fifteen months. Id. Two African American students previously
served as SGA president but were removed from office prior to completion of their terms of
office for violations of the student code of conduct. Response, p. 10; Reply, p. 10.
II. Standard of Review
The purpose of a summary judgment motion under Rule 56 is to assess whether trial is
necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Rule 56 provides that
summary judgment shall be granted if the pleadings, depositions, answers to interrogatories,
admissions, or affidavits show that there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The non-moving party
has the burden of showing that there are issues of material fact to be determined. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986).
A party seeking summary judgment bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, interrogatories, and admissions on file together with affidavits, if any, which it
believes demonstrate the absence of genuine issues for trial. Celotex, 477 U.S. at 323; Mares v.
ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir. 1992). Once a properly supported
summary judgment motion is made, the opposing party may not rest on the allegations contained
in his complaint, but must respond with specific facts showing the existence of a genuine factual

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issue to be tried. Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980); Fed. R. Civ. P.
56(e).
If a reasonable juror could not return a verdict for the non-moving party, summary
judgment is proper and there is no need for a trial. Celotex, 477 U.S. at 323. The operative
inquiry is whether, based on all documents submitted, reasonable jurors could find by a
preponderance of the evidence that the plaintiff is entitled to a verdict. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986). However, summary judgment should not enter if,
viewing the evidence in a light most favorable to the nonmoving party and drawing all
reasonable inferences in that party's favor, a reasonable jury could return a verdict for that party.
Anderson, 477 U.S. at 252; Mares, 0971 F.2d at 494.
III. Analysis
Title VII discrimination claims predicated on indirect or circumstantial evidence are
evaluated under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1225 (10th Cir.
2000). Under this framework, the plaintiff carries the initial burden of establishing a prima facie
case of racial discrimination. Id. (citing McDonnell Douglas, 411 U.S. at 802). Once the
plaintiff has established a prima facie case, the burden shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for its actions. Id. (citing McDonnell Douglas, 411 U.S. at
804). If the defendant makes this showing, the burden shifts back to the plaintiff to show that the
defendant’s proffered reasons is pretextual. Id.
To meet the initial burden of making out a prima facie case of discrimination under Title
VII, a plaintiff must show (1) membership in a protected class; (2) an adverse employment

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action; and (3) disparate treatment among similarly situated employees. Orr v. City of
Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005). A Title VII’s burden in articulating a prima
facie case is “not onerous” but “slight.” Id. (citations omitted). In the summary judgment
context, a Title VII plaintiff must, at a minimum, demonstrate that there is a genuine issue of
material fact as to their prima facie claim of discrimination. Id.
Defendant argues that Washington cannot demonstrate the third element of his prima
facie case, i.e., disparate treatment among similarly situated employees. To satisfy this element,
Washington need only show that at least one other similarly situated employee was treated more
favorably. Id. at 1153. This Washington has done through his allegations that another candidate
in the SGA 2012 elections also printed and posted campaign posters that did not meet the border
requirement and that no actions were taken against him. Had Washington not been issued a
minor violation for non-complying campaign posters, he would not have had the three minor
violations that resulted in his disqualification. Under these circumstances, Washington has at
least raised a genuine issue of material fact as to whether other similarly situated employees
were treated more favorably. In reaching this conclusion, I do not rely on evidence that the only
other African American students elected to SGA President were removed from office since there
is no evidence that any non-African American students elected to this position were permitted to
remain in office despite the same or similar allegations against them.
Defendant also argues that Washington cannot meet his burden of showing that its
proffered reason for disqualifying him from the 2012 SGA elections, i.e., that he and S.H.
committed three minor campaign violations and Metro State’s administration chose not to
intervene, is pretextual. I disagree.

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“Pretext can be shown by such weaknesses, implausibilities, inconsistencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them unworthy of credence and hence infer that the employer did
not act for the asserted non-discriminatory reason.” Trujillo v. PacifiCorp, 524 F.3d 1149, 1158
(10th Cir. 2008) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). “Pretext
can be shown in a variety of ways, including but not limited to differential treatment of similarly
situated employees and procedural irregularities.” Id. The same evidence used to establish the
plaintiff’s prima facie case may be used to establish pretext. Id. at 1155. Again, in the summary
judgment context, a Title VII plaintiff need only demonstrate a genuine dispute of material as to
whether the proffered reasons are unworthy of belief. Id. at 1158 (citing Morgan, supra).
Washington’s experience with how Metro State’s administration previously treated
decisions of the Student Court is evidence of procedural irregularities in connection with his
disqualification from the 2012 SGA elections. Washington’s allegations that another candidate
in the SGA 2012 elections was not issued a minor violation for printing and posting campaign
posters that did not meet the border requirement is further evidence to support a finding of
pretext. Washington has therefore raised a genuine issue of material fact as to whether Metro
State’s proffered reasons for disqualifying him from the 2012 SGA elections are pretextual. In
reaching this conclusion, I again do not rely on evidence that the only other African American
students elected to SGA President were removed from office since there is no evidence to
establish a nexus between such removal and Plaintiff’s disqualification. See Heno v.
Strpint/United Management, Inc., 308 F.3d 847, 856 (10th Cir. 2000) (prior incidences of

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alleged discrimination are only admissible if they can be tied to the adverse actions at issue
through involvement by the same decision makers and temporal proximity).
IV. Conclusion
For the reasons set forth above, IT IS HEREBY ORDERED that Defendant’s Motion for
Summary Judgment [Doc # 27] is DENIED.

Dated: April

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, 2015 in Denver, Colorado.

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

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