Kerner v. City and County of Denver

Filing 40

ORDER denying 28 Motion Under Fed.R.Evid. 702; granting 29 Motion for Summary Judgment, by Chief Judge Marcia S. Krieger on 9/30/15.(pglov)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 13-cv-02535-MSK-KMT
MARIAN G. KERNER,
Plaintiff,
v.
CITY AND COUNTY OF DENVER,
Defendant.
OPINION AND ORDER GRANTING
MOTION FOR SUMMARY JUDGMENT
THIS MATTER comes before the Court on the Defendant City and County of Denver’s
Motion for Summary Judgment (#29), the Plaintiff Marian G. Kerner’s Response (#33), and the
Defendant’s Reply (#38).1
I. Background
Having reviewed the record and submissions of the parties, the Court finds the following
material facts to be undisputed and, where disputed, views them in the light most favorable to the
Plaintiff, Ms. Kerner.

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Also pending before the Court is a motion titled Defendant’s Motion Under Fed. R. Evid. 702
(#28). Although titled as a Rule 702 motion, the motion in substance does not present expert
opinions that are testable under Rule 702. Rather, it seeks a determination that Ms. Kerner’s use
of an expert report on damages, prepared by a witness in a separate case (Kerner et al. v. City
and County of Denver, Case. No. 11-cv-00256-MSK-KMT), would be a violation of
Fed.R.Civ.P. 26(a)(2). Having reviewed the challenged material, the Court finds that it has no
bearing on its resolution of the City’s Motion for Summary Judgment. In light of the outcome of
the City’s Motion for Summary Judgment (discussed below), the Rule 702 motion (#28) is
denied, with leave to refile as a proper Rule 702 motion should the City deem it necessary.
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Ms. Kerner, a black female in her sixties, is a former employee of the Defendant City and
County of Denver. From 1997 to 2001, she was employed by the City in a clerical position. In
March 2007, she applied for re-employment with the City,2 but was disqualified from
consideration after she failed a writing test that was used in the hiring process at the time. After
she was disqualified, Ms. Kerner filed a charge of discrimination with the Equal Employment
Opportunity Commission (EEOC), generally alleging that the City had a discriminated against
her because of her race and age and that the test was discriminatory.3
In July 2007, approximately one month after she filed her charge with the EEOC, Ms.
Kerner applied for another position with the City, this time as an On-Call LIEAP4 Agent. Again,
she was required to take the employment test. This time she passed and was hired. She was 65
years old at the time. The interview panel that hired Ms. Kerner included Enrique Hernandez and
Dang Nguyen, both of whom knew that Ms. Kerner was over the age of 40.
The position of LIEAP Agent was a temporary seasonal position that required Ms. Kerner
to review applications for LIEAP assistance, determine eligibility, request additional
information, and process applications. Because the job was seasonal, it did not come with any
benefits, such as sick or vacation leave or retirement benefits. Ms. Kerner worked a full season
from October 2007 to March 2008. Mr. Hernandez was her supervisor and Ms. Nguyen gave out
work assignments and other duties. On March 21, 2008, Ms. Kerner received formal notification

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The job she applied for was a clerical position classified as Administrative Support Assistant
(ASA) IV.
3

That charge is the subject of a separate lawsuit, Kerner et al. v. City and County of Denver,
Case. No. 11-cv-00256-MSK-KMT.

4

LIEAP stands for Low Income Energy Assistant Project, which is a program to assist lower
income individuals pay their utility bills during the winter season.
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of the end of her seasonal employment. According to the City, the demand for LIEAP services
declines in the spring thus requiring seasonal lay-offs.
In July 2008, Ms. Kerner reapplied and was hired for the same on-call seasonal position
as a LIEAP Agent. Mr. Hernandez was on the panel that decided to rehire her. Ms. Kerner
began working in September 2008. On about January 9, 2009, however, Ms. Kerner told Mr.
Hernandez that she would be leaving town on January 15, 2009, for about seven days. At that
point, Mr. Hernandez decided that Ms. Kerner’s seasonal employment would end effective
January 14, 2009. When Ms. Kerner asked for an explanation, Mr. Hernandez told her that he
had to let her go because she was “too intellectual.” Ms. Nguyen concurred in Mr. Hernandez’s
decision. Ms. Kerner did not receive any formal notice from the City acknowledging the end of
her employment. Ms. Kerner applied for a third season as a LIEAP Agent in July 2009, but she
was not rehired. Mr. Hernandez was on the panel who decided not to rehire her.
Meanwhile, the EEOC made a determination on Ms. Kerner’s previously filed charge of
discrimination. In July 2008, the EEOC found that there was reason to believe that
discrimination had occurred, and it attempted to facilitate conciliation between Ms. Kerner and
other plaintiffs and the City. A meeting between the parties was requested by the City in
September 2008. Conciliation was ultimately unsuccessful and, in May 2009, the EEOC issued
a Notice of Conciliation Failure.
After exhausting her administrative remedies, Ms. Kerner filed suit against the City. Ms.
Kerner alleges that she was prematurely terminated from her seasonal employment and not rehired for the 2009-2010 season because of her age and in retaliation for filing a previous charge
of discrimination with the EEOC. She asserts the following claims: (1) age discrimination in
violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.; (2) retaliation

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for filing a charge with the EECO in violation of Title VII of the Civil Rights Act, 42 U.S.C. §
2000e-2(a); and (3) employment discrimination in violation of the Colorado Anti-Discrimination
Act (CADA), Colo. Rev. Stat. §§ 24-34-401 to -406.
The City moves for summary judgment in its favor on Ms. Kerner’s claims of age
discrimination under the ADEA and retaliation under Title VII.5
II. Standard of Review
Although Rule 56 of the Federal Rules of Civil Procedure was recently restyled, its
purpose remains the same — to provide for a summary determination when no trial is necessary.
See White v. York Int’l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Accordingly, Rule 56(a)
directs entry of a judgment on a claim or defense, or part thereof, when there is no genuine
dispute as to any material fact and a party is entitled to judgment as a matter of law.
Substantive law governs which facts are material and what issues must be determined. It
also specifies the elements that must be proved for a given claim or defense, sets the standard of
proof, and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v. Producer’s Gas Co., 870 F.2d 563, 565 (10th
Cir. 1989). A factual dispute is “genuine” if the evidence presented in support of and in
opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for
either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a

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The Court notes that the City has not moved for judgment on the CADA claim, and has referred
to it only tangentially in its reply brief. It appears to the Court that the reasoning stated herein
would seem to apply with equal force to the CADA claim. To the extent Ms. Kerner believes,
consistent with her obligations under Fed. R. Civ. P. 11(b), that the CADA claim can
nevertheless be maintained despite the analysis set forth herein, the parties shall begin
preparation of a proposed final pretrial order in anticipation of trial on the CADA claim.
Otherwise, Ms. Kerner is free to dismiss that CADA claim under terms and conditions agreeable
to the parties.
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court views all evidence in the light most favorable to the non-moving party, thereby favoring
the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
If the movant has the burden of proof on a claim or defense, the movant must establish
every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P.
56(c). Once the moving party has met its burden, to establish a genuine dispute that requires a
trial, the responding party must present competent and contradictory evidence as to a material
fact. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v.
Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999).
When the moving party does not have the burden of proof on the pertinent issue, it may
point to an absence of sufficient evidence to establish a claim or defense that the non-movant is
obligated to prove. Once the movant has done so, the respondent must come forward with
sufficient competent evidence to establish a prima facie claim or defense to justify a trial. If the
respondent fails to produce sufficient competent evidence to establish its claim or defense, the
claim or defense must be dismissed as a matter of law. See Celotex Corp. v. Catrett, 477 U.S.
317, 322–23 (1986).
III. Analysis
1. Age Discrimination
The ADEA prohibits employers from intentionally discriminating against any individual
with respect to his or her compensation, terms, conditions, or privileges of employment because
of such individual’s age. 29 U.S.C. § 623(a)(1). To succeed on a claim of age discrimination, a
plaintiff must prove by a preponderance of the evidence that her employer would not have taken
the challenged action but for the plaintiff’s age. See Jones v. Okla. City Pub. Sch., 617 F.3d
1273, 1277 (10th Cir. 2010). Under the ADEA, a plaintiff bears the ultimate burden of proving

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her employer intentionally discriminated against her. See Rise v. QEP Energy, 776 F.3d 1191,
1199 (10th Cir. 2015).
A plaintiff can prove intentional discrimination through either direct evidence or
circumstantial evidence that creates an inference of intentional discrimination. Id. Where, as
here, a plaintiff seeks to use circumstantial evidence to show her employer’s discriminatory
intent, the burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-05 (1972), applies. See Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1278 (10th
Cir. 2010). Under this framework, a plaintiff must first establish a prima facie case of
discrimination. A prima facie case generally requires a plaintiff to prove that (1) she is a
member of a protected class, (2) she suffered an adverse employment action, and (3) the
challenged action took place under circumstances giving rise to an inference of discrimination.
EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007). While the elements of a prima facie
case “are neither rigid nor mechanistic,” their purpose is to establish an initial inference of
unlawful discrimination warranting a presumption of liability in the plaintiff’s favor. Adamson
v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1146 (10th Cir. 2008).
Once a plaintiff has established a prima facie case, the burden of production shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for its actions. Id. at 1145. If it
does so, the burden of production shifts back to the plaintiff to introduce evidence that the stated
nondiscriminatory reason is merely a pretext for discriminatory intent. Simmons v. Skykes
Enters., 647 F.3d 943, 947 (10th Cir. 2011). A plaintiff’s prima facie case, combined with
sufficient evidence to find that the employer’s asserted justifications are false may permit the
trier of fact to conclude that the employer unlawfully discriminated. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).

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The City argues that it is entitled to summary judgment because Ms. Kerner cannot
establish a prima facie claim. Specifically, it contends that she cannot prove that her termination
and the decision not to rehire her occurred under circumstances giving rise to an inference of
discrimination.6 Alternatively, the Defendant contends that Ms. Kerner cannot prove that the
proffered reasons for its actions are unworthy of belief and are merely pretext for discrimination.
Ms. Kerner does not dispute that Mr. Hernandez and Ms. Nguyen never made any
comments about her age or otherwise demonstrated any express discriminatory animus on the
basis of age. She also does not dispute that when she was hired, Mr. Hernandez and Ms. Nguyen
both knew she was over the age of 40. Instead, to establish her prima facie case, Ms. Kerner
relies solely on the fact that she was 67 years old when she was terminated and not rehired and
that she was qualified for her position.
Assuming that the circumstance of her age is sufficient to make out a prima facie case,
however, the City has proffered nondiscriminatory reasons for its decisions to terminate her and
not to rehire her. The City asserts that Ms. Kerner was one of the least productive employees
during her two seasons of employment as a LIEAP Agent, and because Ms. Kerner was a
seasonal employee, she could be laid off at any time. The City also contends that it is entitled to
the “same actor” inference. In cases where the employee was hired and fired by the same person

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The Court notes that the City relies on a slightly different four-element recitation of a prima
facie claim of age discrimination which requires a plaintiff to prove that (1) she is a member of
the protected class; (2) she suffered an adverse employment action; (3) she was doing
satisfactory work; and (4) she was treated less favorably than others not in the protected class.
The City contends that Ms. Kerner cannot prove elements two and three. Although the Tenth
Circuit has used the four-element formulation in certain contexts, it has stated a preference for
the more concise three-element formulation stated by the Court above. See Bennet v.
Windstream Communications, Inc., 792 F.3d 1261, 1266 n.1 (10th Cir. 2015). Under the threeelement formulation, the City can be understood as challenging that Ms. Kerner’s ability to prove
that the circumstances under which she was terminated and not rehired could give rise to an
inference of discrimination.
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within a relatively short time span, there is a strong inference that the employer’s stated reason
for acting against the employee is not pretextual. Antonio v. Sygma Network, Inc., 458 F.3d
1177, 1183 (10th Cir. 2006) (10 months). Ms. Kerner does not dispute that Mr. Hernandez
terminated her and that he was on the panel that hired her twice and then decided not to rehire
her in 2009. She also does not dispute that Mr. Hernandez knew that she was over the age of 40.
In these circumstances, the Court agrees that it is somewhat illogical that Mr. Hernandez would
have terminated her within months of having hired her for the second time if age were a factor.
The Court notes, however, that the “same actor” evidence gives rise to an inference, rather than a
presumption, that no discriminatory animus motivated the City’s actions. Ms. Kerner still has
the opportunity to present countervailing evidence of pretext.
It is Ms. Kerner’s burden to prove that the reasons for her termination offered by the City
are merely pretext for discrimination. A plaintiff may establish pretext by showing “such
weaknesses, implausibilities, inconsistencies, incoherencies, 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 nondiscriminatory reasons.” Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1280 (10th Cir. 2010).
When evaluating the sufficiency of this evidence, the Court looks to several factors, including
the strength of the plaintiff’s prima facie case, the probative value of the proof that the
employer’s explanation is false, and any other evidence that supports the employer’s case that
properly may be considered on a motion for summary judgment. See Jones, 617 F.3d at 1280
(citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148-49 (2000)).
As evidence of pretext, Ms. Kerner relies on the fact that the City stated in a March 2010
position letter written by counsel that the reason she was terminated was because her position

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was seasonal. Ms. Kerner claims that the City’s new reason of low productivity must be pretext
because her productivity was never raised with her or given as a reason for her termination until
this lawsuit. The mere fact that an employer has proffered multiple reasons for taking an adverse
action is not, of itself, a basis to find pretext; the employee is still obligated to show that the
employer’s proffered reasons for the adverse action are pretextual. Jaramillo v. Colo. Judicial
Dep’t, 427 F.3d 1303, 1311 (10th Cir. 2005). In some circumstances, an employer offering
multiple, seemingly-independent justifications for an adverse action can assist an employee in
demonstrating that the entirety of the employer’s asserted reasons are pretextual: (i) where the
multiple reasons are so intertwined that showing one to be pretextual suffices to call the other
reasons into question; (ii) where one reason is “so fishy and suspicious” that the factfinder could
conclude that the employer “lacks all credibility”; (iii) where the employer offers a “plethora of
reasons” and the employee rebuts a substantial number of them; (iv) where the plaintiff rebuts all
objective explanations that have been proffered, leaving only subjective ones; and (v) where the
employer’s change in explanations occurs in circumstances that “suggest dishonesty or bad
faith.” Id. However, none of those circumstances are present here. It is undisputed that Ms.
Kerner’s position was indeed a seasonal one, making her susceptible to termination at any time.
The City also presents the affidavits of both Mr. Hernandez and Ms. Nguyen who state that Ms.
Kerner was one of the least productive employees during both of the seasons she worked as a
LIEAP Agent. Each of these explanations could independently justify Ms. Kerner’s termination,
and it is certainly possible that both explanations can simultaneously be true.
The fact that productivity was not brought up directly with Ms. Kerner does not suffice to
carry Ms. Kerner’s burden to show that the City’s performance-based explanation for her
termination is false. It may be bad personnel management for an employer to terminate an

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employee for performance-based deficiencies without giving that employee notice and an
opportunity to improve, but anti-discrimination laws are not designed to act as “super-personnel
departments,” operating to second-guess employers’ business judgment. Kendrick v. Penske
Transp. Servs. Inc, 220 F.3d 1220, 1233 (10th Cir. 2000). Ms. Kerner also presents the affidavits
of former co-workers who state that Ms. Kerner was hard-working, efficient, and productive.
But it is the manager’s subjective perception of the employee’s performance that is relevant. See
Furr v. Seagate Tech. Inc., 82 F.3d 980, 988 (10th Cir. 1996). Thus, Ms. Kerner’s co-workers’
statements about her productivity do not suffice to establish that Mr. Hernandez subjectively
believed that Ms. Kerner was performing adequately, such that his proffered reason for
terminating her could be said to be false.
Finally, Ms. Kerner asserts that Mr. Hernandez’s statement that she was “too
intellectual” could be interpreted as a reference to her age, but she admits that she does not know
exactly what he meant by that and she offers no explanation or reason as to why or how one
could reach such a conclusion. The Court agrees that the statement is far too oblique to permit a
conclusion that it was a reference to Ms. Kerner’s age.
At most, Ms. Kerner’s evidence creates only a weak issue of fact as to pretext. This
conclusion is compounded by her weak prima facie case and the same actor inference enjoyed by
the City. The Court finds that based on the evidence presented, Ms. Kerner has not presented
sufficient competent evidence that would allow a reasonable jury to conclude that the City’s
proffered reasons for its actions were pretext. Accordingly, the Court finds that the City is
entitled to judgment in its favor on Ms.Kerner’s claim of age discrimination under the ADEA.

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2. Retaliation under Title VII
Like a claim for age discrimination, Title VII retaliation claims are analyzed pursuant to
the burden-shifting framework outlined in McDonnell Douglas. See Jeffries v. State of Kansas,
147 F.3d 1220, 1231 (10th Cir. 1998). The employee bears the initial burden to present a prima
facie case. To establish a prima facie case, an employee must demonstrate that (1) she engaged
in conduct protected by Title VII; (2) she suffered an adverse employment action; and (3) there is
some causal connection between that protected conduct and the adverse action. Somoza v. Univ.
of Denver, 513 F.3d 120, 1211-12 (10th Cir. 2008). If the employee succeeds in making this
prima facie case, the burden shifts to the employer to articulate a legitimate, nonretaliatory
reason for the adverse action. Stover v. Martinex, 382 F.3d 1064, 1070-71 (10th Cir. 2004).
Assuming the employer does so, the employee must establish by a preponderance of the
evidence that the proffered reason is untrue and a pretext. Jaramillo v. Colo. Judicial Dep’t, 427
F.3d 1303, 1307 (10th Cir. 2005). A plaintiff may establish a causal connection by proffering
“evidence of circumstances that justify an inference of retaliatory motive, such as protected
conduct closely followed by adverse action.” Proctor v. United Parcel Service, 502 F.3d 1200,
1208 (10th Cir. 2007).
The City contends that it is entitled to summary judgment because Ms. Kerner cannot
establish a causal connection between her filing of a charge of discrimination with the EEOC and
her subsequent termination and the decision not to rehire her.
It is undisputed that Ms. Kerner filed her charge of discrimination with the EEOC in June
2007, she was terminated in January 2009 (a year and a half after she filed her charge), and she
was not rehired in July 2009 (over two years after she filed her charge). Despite this lack of
temporal proximity between the protected activity and the adverse actions, Ms. Kerner contends

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that the timing of the conciliation efforts by the EEOC and her termination give rise to an
inference of retaliation. She suggests that because conciliation was “on-going” during her
second season as a LIEAP Agent, her termination in January 2009 was “clearly temporal with
her EEOC Charge that was pending.” She alleges that “the City was obviously not happy” with
the proposed conciliation agreement requiring the City to pay damages upward of $157,000.
But, for this evidence to be probative of causation, Ms. Kerner must establish that the individuals
who took the adverse actions against her, i.e. Mr. Hernandez, actually knew of the EEOC charge
and the conciliation efforts when he took those actions. See Webb v. Level 3 Communications,
LLC, 167 Fed.Appx. 725, 735 (10th Cir. 2006) (“we still require a plaintiff to show that the
individual who took the adverse action against plaintiff also knew of the employee's protected
activity”).
The record shows that the conciliation was taking place with the City’s legal department,
of which Mr. Hernandez is not a part. Ms. Kerner states that she discussed her EEOC charge
with co-workers during a pot-luck luncheon at which Mr. Hernandez and Ms. Nguyen might
have been present, but she admits that she is not actually sure if either of them were there, and if
they were, whether they overheard her conversation. Her co-workers state that it was “common
knowledge” that Ms. Kerner had filed an EEOC complaint, but none of them have personal
knowledge that Mr. Hernandez was privy to this “common knowledge.” Thus, Ms. Kerner relies
on an assumption that Mr. Hernandez knew of the EEOC charge and conciliation efforts.
Further, the City submits the declarations of Mr. Hernandez and Ms. Nguyen who both state that
they had no knowledge of Ms. Kerner’s EEOC charge of discrimination. Ms. Kerner submits no
other evidence that could give rise to an inference that she was terminated and not rehired in
retaliation for her filing an EEOC charge and participating in conciliation efforts. Based on the

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evidence presented, the Court finds that a reasonable jury could not find that Ms. Kerner was
terminated and not rehired in retaliation for her filing an EEOC charge and participating in
conciliation efforts.
Additionally, the City has proffered nonretaliatory reasons for its actions, namely that
Ms. Kerner was not productive and that her seasonal employment was ending. Ms. Kerner relies
on the same evidence of pretext that she relied on for her age claim. As discussed above,
however, the Court finds that the evidence presented is insufficient to create a genuine dispute of
fact that such reasons were pretextual. Accordingly, the Court finds that the City is entitled to
summary judgment in its favor on Ms. Kerner’s retaliation claim.
IV. Conclusion
For the forgoing reasons, the Defendant’s Motion for Summary Judgment (#29) is
GRANTED. The Clerk is directed to enter judgment in favor of the Defendant on the Plaintiff’s
claims under the ADEA and Title VII.

The Defendant’s Motion Under Fed. R. Evid. 702 (#28)

is DENIED.
The only claim remaining in this case is a claim under the Colorado Anti-Discrimination
Act (CADA). The parties are directed to begin preparation of a Proposed Final Pretrial Order
and shall jointly contact chambers within 14 days of the date of this order for the purpose of
scheduling a final pretrial conference.
Dated this 30th day of September, 2015.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge
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