Jordan v. Dillon Companies, Inc.

Filing 49

ORDER granting 29 Defendant's Motion for Summary Judgment. Plaintiff's claims in this lawsuit are DISMISSED WITH PREJUDICE. Defendant is AWARDED its costs, to be taxed by the clerk of the court in the time and manner specified by Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1. By Judge Robert E. Blackburn on 11/20/2014.(alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn

Civil Action No. 13-cv-02757-REB-MJW
TIMOTHY C. JORDAN,
Plaintiff,
v.
DILLON COMPANIES, d/b/a KING SOOPERS, INC.,
Defendant.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Blackburn, J.
The matter before me is Defendant’s Motion for Summary Judgment [#29],1
filed September 19, 2014. I grant the motion and dismiss plaintiff’s claims for
discrimination and retaliation under Title VII.2
I. JURISDICTION
I have jurisdiction over this matter under 28 U.S.C. § 1331 (federal question).
II. STANDARD OF REVIEW
Summary judgment is proper when there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a);

1

“[#29]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
2

The issues raised by and inherent to the motion for summary judgment are fully briefed,
obviating the necessity for evidentiary hearing or oral argument. Thus, the motion stands submitted on the
briefs. Cf. Geear v. Boulder Community Hospital, 844 F.2d 764, 766 (10th Cir.) (holding that hearing
requirement for summary judgment motions is satisfied by court's review of documents submitted by
parties), cert. denied, 109 S.Ct. 312 (1988).

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265
(1986). A dispute is “genuine” if the issue could be resolved in favor of either party.
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586,
106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d
1131, 1135 (10th Cir. 1994). A fact is “material” if it might reasonably affect the outcome
of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.
A party who does not have the burden of proof at trial must show the absence of
a genuine fact issue. Concrete Works, Inc. v. City & County of Denver, 36 F.3d
1513, 1517 (10th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). Once the motion has
been properly supported, the burden shifts to the nonmovant to show, by tendering
depositions, affidavits, and other competent evidence, that summary judgment is not
proper. Id. at 1518. All the evidence must be viewed in the light most favorable to the
party opposing the motion. Simms v. Oklahoma ex rel. Department of Mental Health
and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120
S.Ct. 53 (1999). However, conclusory statements and testimony based merely on
conjecture or subjective belief are not competent summary judgment evidence. Rice v.
United States, 166 F.3d 1088, 1092 (10th Cir.), cert. denied, 120 S.Ct. 334 (1999).
However, conclusory statements and testimony based merely on conjecture or
subjective belief are not competent summary judgment evidence. Id.

2

III. ANALYSIS
Plaintiff’s claims for sex discrimination and retaliation under Title VII arise from
the termination of his employment in March 2012. At the time of his termination, plaintiff
was employed as a Butcher Block clerk at King Soopers Store #63 in Centennial,
Colorado. His immediate supervisor in that position was the head of the meat
department, Molly Gannon. Debbie Villareal managed the seafood department.3 Scott
Brinson was the store manager of Store #63.4
Plaintiff ties his claim of sex discrimination to Ms. Gannon. He claims Ms.
Gannon stated that she did not like working with men and would flex her muscles in a
way which plaintiff took to mean that she did not need men to help her. (Plf. Resp.
App., Exh. 2 at 301-302, 316-317.) As evidence of her alleged bias, plaintiff claims that,
despite his seniority, Ms. Gannon gave preferential treating in the scheduling of hours
and duties to a less senior female co-worker, Dana Rock. For example, plaintiff notes
that Ms. Gannon denied plaintiff’s request for a Saturday off because she already had
approved Ms. Rock’s request to be off that same day. (Def. Motion App., Exh. A at 110
& 200; Exh. C at 47-48; Exh. D at 95-97.) Plaintiff also points to an incident in which Ms.
Gannon asked him to clean the seafood case when he arrived for work on a Thursday
morning, even though that job was regularly scheduled for Wednesday night, when Ms.
Rock worked. (See Plf. Resp. App., Exh. 2 at 242-243; Def. Motion App., Exh. A at

3

The meat and seafood departments at Store #63 physically abut one another and share
employees.
4

Although Ms. Gannon and Ms. Villareal had authority to discipline employees short of
termination (with input from an assistant store manager), only a store manager or assistant store manager
could fire an employee.

3

110-111; Exh. D at 102.) Plaintiff complained to Mr. Brinson that Ms. Gannon was
demonstrating “blatant favoritism” in reassigning this duty. (Def. Motion App., Exh. A at
110-111.) In both these instances, Mr. Brinson addressed plaintiff’s complaints, giving
him the days off he requested and absolving him of responsibility for cleaning the
seafood case. (See Def. Motion App., Exh. A at 244; Exh. C at 75, 109.)
In January 2012, Ms. Gannon and Ms. Villareal complained to Mr. Brinson about
plaintiff’s workplace behavior, stating that plaintiff talked down to them, failed to follow
their directions, and told Ms. Gannon that she did not know what she was doing.5 (Def.
Motion App., Exh. C at 66-67, 82-83; Exh. E at 3-4.) In addition, Ms. Gannon submitted
written statements claiming that plaintiff used vulgar language and made inappropriate
sexual comments to her and others in the department. (Def. Motion App., Exh. E at 34.) Plaintiff was counseled as a result of that complaint:
Today we had a discussion with Tim Jordan concerning
recent and old allegations that have been made in regards to
Tim arguing and making inappropriate comments to fellow
employees as well as department management. We
covered Tim's entire employee file and stressed that these
issues have been ongoing since he started his employment
with King Soopers. Tim was put on notice today that any
further issues with harassment may result in immediate
termination. Tim was given the harassment policy and Tim
did read the policy and sign off on it in my presence. Tim did
admit that he had anger issues and Tony Daymil did offer our
employee assistance program. Tim denied [sic] even taking
the phone number.
(Def. Motion App., Exh. E at 2.) However, he received no formal discipline.
In the context of that same meeting, plaintiff reported to Mr. Brinson that he had
5

Plaintiff suggests that Ms. Gannon complained to Mr. Brinson about him “numerous times.” The
evidence to which he points, however, involves this single complaint, encompassing a number of different
past incidents. (See Def. Motion App., Exh. E at 2-4.)

4

issues with Ms. Rock because he refused to date her.6 Subsequently, Ms. Rock
submitted a written complaint to Mr. Brinson, stating that plaintiff was verbally and
mentally abusive, that he spoke to her in a “snide and condescending” way, and that he
created “chaos and stress” in the department. (Def. Motion App., Exh. C at 69-70; Exh.
F at 14-15.)7 In response, Mr. Brinson reviewed defendant’s harassment policy with
both plaintiff and Ms. Rock, but took no disciplinary action against either of them.
The incident that gave rise to plaintiff’s termination occurred on March 16, 2012.
Ms. Rock arrived for her shift that morning and began setting up the seafood case.
Approximately two hours later, as she was finishing, Ms. Rock went to throw some items
in the trash can behind the seafood counter and noticed a knife sticking point up in the
can. The knife was wrapped in butcher paper with the tip exposed. Ms. Rock
immediately alerted Ms. Gannon, who in turn informed Mr. Brinson.
Mr. Brinson was responsible for investigating the incident.8 Although he received
a statement from Ms. Gannon suggesting that the knife “looked like it was placed there
intentionally” (Def. Motion App., Exh. E at 12), neither Ms. Gannon nor Ms. Rock
suggested that it was plaintiff who had placed the knife in the trash can, intentionally or
otherwise (Def. Motion App., Exh. C at 150). Working backward from the point at which

6

Ms. Rock countered that plaintiff had started this rumor after she threatened to report him for
sexual harassment. (See Def. Motion App., Exh. E at 5.)
7

Ms. Rock further informed Mr. Brinson that she had filed an earlier complaint alleging that
plaintiff made sexually inappropriate comments to her and threatened to “take her down.” (See Def.
Motion App., Exh. E at 5-6.)
8

Plaintiff attempts to suggest pretext in the fact that defendant’s loss prevention unit, which
maintained the surveillance video Mr. Brinson reviewed, did not conduct the investigation. However, there
is no evidence to contradict Mr. Brinson’s testimony that loss prevention was responsible only for pulling
the video, not for investigating incidents of this nature. (See Plf. Resp. App., Exh. 3 at 16-17; Def.
Motion App., Exh. C at 120-121.)

5

Ms. Rock found the knife, Mr. Brinson reviewed surveillance video of the seafood
counter. He determined that the video showed that plaintiff, while cleaning the prep sink
the previous evening, had scooped up a handful of butcher paper containing the knife
and tossed it in the trash. (Def. Motion App., Exh. C at 125.) Mr. Brinson asked for a
second opinion from loss prevention department, which confirmed this interpretation of
the video. Mr. Brinson then informed labor relations and his own superior of his findings,
both of whom confirmed that the safety violation was severe and warranted termination.
(Def. Motion App., Exh. C at 128-129.)
Finally, Mr. Brinson spoke with plaintiff. Plaintiff denied putting the knife in the
trash can, but also stated that he did recall picking up a knife, as well as more than one
layer of butcher paper, while cleaning the prep sink and throwing the paper in the trash.
He stated that if he was responsible for the knife being in the trash, he did not put it
there intentionally. (Def. Motion App., Exh. E at 13.) Mr. Brinson found plaintiff’s
explanation suspicious, noting that it was plaintiff who initially asked if the knife had
been wrapped in butcher paper, a detail Mr. Brinson had not divulged to him at that time.
Mr. Brinson further noted plaintiff’s failure to acknowledge his role in the incident or fully
accept responsibility, which he found “consistent with other discipline issues Tim has
had at several stores. Tim never is in the wrong and blames his co-workers.” (Id, Exh.
E at 7.) Mr. Brinson terminated plaintiff’s employment on March 23, 2012. This lawsuit
ensued, alleging claims for sex discrimination and retaliation under Title VII. I consider
these claims seriatim.
Under the familiar burden-shifting analysis of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), plaintiff first must

6

establish a prima facie case of discrimination.9 The prima facie case requires plaintiff to
prove that (1) he was a member of a protected class; (2) he was qualified and
satisfactorily performing his job; and (3) 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). In a reverse discrimination case such as this one, however, where “the
presumptions in Title VII analysis that are valid when a plaintiff belongs to a disfavored
group are not necessarily justified,” the plaintiff “must, in lieu of showing that he belongs
to a protected group, establish background circumstances that support an inference that
the defendant is one of those unusual employers who discriminates against the
majority.” Notari v. Denver Water Department, 971 F.2d 585, 589 (10th Cir. 1992).10
Alternatively, a plaintiff may establish his prima facie case by “present[ing] direct
evidence of discrimination, or indirect evidence sufficient to support a reasonable
probability, that but for the plaintiff's status the challenged employment decision would
have favored the plaintiff.” Id. at 590.

9

Plaintiff suggests that this case should be analyzed as a “mixed motive” case. See Fye v.
Oklahoma Corporate Commission, 516 F.3d 1217, 1224-25 (10th Cir. 2008). This rubric, however, is
more properly characterized as an affirmative defense raised by the employer when the evidence supports
an inference that an impermissible motive played a role in the employment decision. See Price
Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S.Ct. 1775, 1788, 104 L.Ed.2d 268 (1989), modified by
statute as recognized in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84
(2003); Alwine v. Buzas, 89 Fed. Appx. 196, 210 (10th Cir. Feb. 27, 2004). Defendant denies that it
considered plaintiff’s gender, even in part, in making its decision. The case therefore is properly analyzed
under the McDonnell Douglas framework.
10

Notari has been criticized by other federal courts, and Chief Judge Krieger of this district also
has questioned its on-going vitality. See Elson v. Colorado Mental Health Institute at Pueblo, 2011 WL
1103169 at *5 n.6 (D. Colo. March 24, 2011); Kenfield v. Colorado Department of Public Health &
Environment, 837 F.Supp.2d 1232, 1236 n.2 (D. Colo. 2011), as amended, 2012 WL 3590758 (D. Colo.
Aug. 20, 2012), aff’d, 557 Fed. Appx. 728 (10th Cir. Feb. 14, 2014). However, the Tenth Circuit continues
to cite Notari. See Kenfield, 557 Fed. Appx. at 731. Nevertheless, and regardless whether Notari is in
fact moribund in light of subsequent Supreme Court decisions or otherwise, because I find that plaintiff
cannot sustain his ultimate burden of proof even assuming that the elements of the prima facie case are
established, I do not address this issue further.

7

Assuming the plaintiff has met his burden of establishing the elements of a prima
facie case, the burden then shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its employment decision. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094-95, 67
L.Ed.2d 207 (1981); EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1191
(10th Cir. 2000). Once the employer articulates such a facially nondiscriminatory or
nonretaliatory reason, the presumption of discrimination raised by the prima facie case
falls away, and the ultimate question becomes whether the plaintiff has met his burden
to prove that the employer discriminated against him based on his sex. St. Mary’s
Honor Center v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407
(1993).
The plaintiff may meet this burden by showing that the employer’s articulated
reasons were merely a pretext for discrimination. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000). See
also Morgan v. Hilti, Inc., 108 F.3d 1319, 1321 (10th Cir. 1997). “The factfinder's
disbelief of the reasons put forward by the defendant (particularly if disbelief is
accompanied by a suspicion of mendacity) may, together with the elements of the prima
facie case, suffice to show intentional discrimination.” St. Mary’s Honor Center, 113
S.Ct. at 2749. In addition, “[p]retext can be shown by 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
non-discriminatory reasons.” Morgan, 108 F.3d at 1323. On the other hand, “[m]ere

8

conjecture that the employer's explanation is a pretext for intentional discrimination is an
insufficient basis for denial of summary judgment.” Id.
In this case, even assuming arguendo that plaintiff can satisfy the elements of a
prima facie case of reverse sex discrimination, defendant has articulated a legitimate,
nondiscriminatory reason for his termination – his violation of company safety standards.
In considering the issue whether the employer’s facially neutral reason is pretextual,
“[t]he relevant inquiry is not whether [the employer's] proffered reasons were wise, fair or
correct, but whether [it] honestly believed those reasons and acted in good faith upon
those beliefs.” Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1318 (10th Cir.
1999) (alterations in original). The court’s proper role in analyzing the employer’s
decision is not to act as a “super personnel department.” See Turner v. Public Service
Co. of Colorado, 563 F.3d 1136, 1144 (10th Cir. 2009). An employer’s business
judgments, viewed in hindsight, may be hasty, unwise, unfair, or mistaken, but they are
not subject to second-guessing by a court so long as they are made honestly and in
good faith. See Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1118 -19 (10th Cir.
2007). Because plaintiff has failed to demonstrate any genuine dispute of material fact
as to whether defendant’s stated reason for his termination were pretextual under these
standards, summary judgment is appropriate as to this claim.
The issue of pretext in this case is complicated by the fact that plaintiff does not
contend that Mr. Brinson, who made the ultimate employment decision, himself
harbored discriminatory bias against plaintiff because of his sex. Instead, plaintiff posits
that Ms. Gannon’s alleged gender bias can be imputed to Mr. Brinson under the socalled “cat’s paw” doctrine. See E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los

9

Angeles, 450 F.3d 476, 484 (10th Cir. 2006) (explaining that “cat’s paw” “refers 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.”), cert. dismissed, 127 S.Ct. 1931 (2007).11 To prevail under this
theory, plaintiff must establish both that Ms. Gannon harbored gender-based bias
against men and that her bias can be imputed to Mr. Brinson.12 Id.
To impute a subordinate’s bias to the decisionmaker under the cat’s paw theory,
“plaintiff must establish more than mere ‘influence’ or ‘input’ in the decisionmaking
process. Rather, the issue is whether the biased subordinate's discriminatory reports,
recommendation, or other actions caused the adverse employment action.” Id. at 487.
Thus,
an employer can avoid liability by conducting an independent
investigation of the allegations against an employee. In that
event, the employer has taken care not to rely exclusively on
the say-so of the biased subordinate, and the causal link is
defeated.
Id. at 488. See also Lobato v. New Mexico Environment Department, 733 F.3d
1283, 1294 (10th Cir. 2013) (“[A] ‘necessary’ element to a subordinate bias claim is the
decisionmaker's uncritical ‘reli[ance]’ on facts provided by a biased supervisor. If there
is no such reliance – that is to say, if the employer independently verifies the facts and

11

“The ‘cat's paw’ doctrine derives its name from a fable, made famous by La Fontaine, in which
a monkey convinces an unwitting cat to pull chestnuts from a hot fire. As the cat scoops the chestnuts
from the fire one by one, burning his paw in the process, the monkey eagerly gobbles them up, leaving
none left for the cat. Today the term ‘cat's-paw’ refers to one used by another to accomplish his
purposes.” BCI Coca-Cola Bottling Co., 450 F.3d at 484 (internal citations and quotation marks omitted).
12
For purposes of resolving this motion only, I assume arguendo that the evidence is sufficient to
demonstrate that Ms. Gannon harbored discriminatory, sex-based animus against men.

10

does not rely on the biased source – then there is no subordinate bias liability.”) (citing
Staub v. Proctor Hospital, – U.S. – , 131 S.Ct. 1186, 1193, 179 L.Ed.2d 144 (2011))
(alternations in original).
Such is the case here. Mr. Brinson conducted an independent investigation into
the knife incident prior to terminating plaintiff’s employment. There is no evidence from
which a reasonable jury could conclude that Ms. Gannon had any input into or influence
over that decision. She never recommended that plaintiff be fired, nor even implied that
plaintiff was responsible for placing the knife in the trash.13 Cf. BCI Coca-Cola Bottling
Co., 450 F.3d at 485. Nor could a reasonable jury conclude that Ms. Gannon’s January
2012 complaint about plaintiff’s workplace behavior played a determinative role in Mr.
Brinson’s decision. While it is true that Mr. Brinson found plaintiff’s failure to take
responsibility for the knife incident consistent with this response to past disciplinary
issues (see Def. Motion App., Exh. E at 7), which ostensibly included Ms. Gannon’s
complaint, plaintiff’s personnel record contained a number of such instances going back
to 2003 and involving different managers and coworkers at other King Soopers stores at
which plaintiff had worked (see Plf. Resp. App., Exh. 1 at 133-136; Def. Motion App.,
Exh. E). As Ms. Gannon’s complaint was but the latest in this not insubstantial
disciplinary history14 – one that did not even result in formal discipline – at best, it might
be thought to have “influenced” the decision in some incremental way. See BCI

13

Ms. Gannon did provide a statement in connection with discovering the knife, stating that it
appeared to have been placed in the trash “intentionally.” (Def. Motion App., Exh. E at 12.) Nevertheless,
Mr. Brinson dismissed this statement as “conjecture.” (Id., Exh. C at 150.).
14

Moreover, there is nothing in the record to indicate that Mr. Brinson was aware of Ms. Gannon’s
allegedly sexist remarks or bias against men, such as might have made him suspicious of her motives in
filing a complaint. (See Plf. Resp. App., Exh. 2 at 302-303.)

11

Coca-Cola Bottling Co., 450 F.3d at 487. Such proof, however, is insufficient to create
a genuine dispute as to whether Mr. Brinson uncritically relied on Ms. Gannon’s
complaint in the manner contemplated by and necessary to invoke the cat’s paw
doctrine. See Lobato, 733 F.3d at 1294.
Nor is the evidence sufficient to create a genuine dispute as to whether Mr.
Brinson’s investigation was adequate or otherwise suspect. Mr. Brinson reviewed the
surveillance video that showed the area of the prep sink and trash can during the
relevant time periods.15 In the absence of any suggestion that the video affirmatively
exonerates plaintiff, plaintiff’s own interpretation of the events depicted therein is
irrelevant.16 For even if a third party, viewing the video now, might conclude that Mr.
Brinson ultimately was mistaken as to what the video showed, that fact alone is not
sufficient to create a genuine dispute as to whether Mr. Brinson exercised honest
business judgment in concluding that plaintiff was the person responsible, intentionally

15

Although it is true that Mr. Brinson only viewed footage from one of three surveillance cameras
in the area of the seafood department, there is no evidence controverting his testimony that neither of the
other two cameras showed a vantage point of the prep sink or trash can, and thus were unhelpful. (Def.
Motion App., Exh. C at 126-128.)
16

Plaintiff suggests that Ms. Gannon and Ms. Rock were near the trash can “numerous” times
prior to the discovery of the knife, and that Ms. Rock can be seen “lingering” over the can. Plaintiff fails to
tie these allegations to any particular time signature in the video, however, and just as “[j]udges are not
like pigs, hunting for truffles buried in briefs,” Gross v. Burggraf Construction Co., 53 F.3d 1531, 1546
(10th Cir. 1995) (citation and internal quotation marks omitted), neither are they required to scour hours (in
this case, some 13+ hours worth) of video footage in search of evidence supporting a party’s arguments.
Nevertheless, having reviewed the video myself, I find nothing therein that substantiates these
allegations. By this court’s own count, Ms. Gannon is seen on the video briefly just twice (at
approximately 7:27 and 7:28 a.m.) prior to the time Ms. Rock called her over after discovering the knife,
but not in proximity to the trash can on either occasion. Although Ms. Rock does pass by the trash can
several times in the more than two hours between her arrival at work just after 8:00 a.m., and her
discovery of the knife at approximately 10:13 a.m., there is no instance that reasonably could be
characterized as showing her “lingering” near or over the trash can.

12

or not, for putting the knife in the trash.17 See Riggs, 497 F.3d at1118 -19; Bullington,
186 F.3d at 1318.18 Accordingly, defendant is entitled to summary judgment on this
claim.
Plaintiff also has alleged a claim of retaliation under Title VII. To establish a
prima facie case of retaliation, plaintiff must prove (1) that he engaged in protected
opposition to discrimination; (2) that a reasonable employee would have found the
employer's alleged retaliatory action to be materially adverse, meaning that the
employer's action might dissuade a reasonable worker from making or supporting a
charge of discrimination; and (3) that a causal connection exists between the protected
activity and the materially adverse action. E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 803
(10th Cir. 2007). Although the employee’s opposition need not specifically invoke Title
VII or any particular form of words to constitute protected opposition, it “must convey to
the employer . . . concern that the employer has engaged in a practice made unlawful by
[Title VII].” Hinds v. Sprint/United Management Co., 523 F.3d 1187, 1203 (10th Cir.
2008). This implicit but common-sense requirement simply recognizes that “an

17

Even construed in the light most favorable to plaintiff, the video can be described, at best, as
ambiguous. It shows plaintiff cleaning the seafood case, counter, and prep sink area around 9:00 p.m. on
March 15, 2012. There is a black-handled knife sitting on the cutting board of the prep sink behind the
counter. At approximately 9:11 p.m., plaintiff is seen scooping up the knife and a wad of butcher paper
underneath it. After briefly washing down a cutting board, plaintiff throws the paper away in the trash can.
Although he does appear to remove the knife before doing so, it is not at all clear that this black-handled
knife was the knife that was found in the trash the following morning, as in his written statement, plaintiff
recalled removing a white knife from the cutting board, as well as several layers of paper. Moreover,
plaintiff could not affirmatively state that there had not been a knife in the paper he threw away. (Def.
Motion App., Exh. F at 16.)
18

Plaintiff also suggests that Ms. Villareal was never disciplined for leaving knives in soapy water
in the prep sink, which also constituted a violation of company safety standards. Plaintiff’s complaints
about these incidents, however, were made directly to Ms. Gannon, and there is no evidence contradicting
Mr. Brinson’s testimony that he was never made aware of such complaints. (See Def. Motion App., Exh.
C at 62-63.)

13

employer cannot engage in unlawful retaliation if it does not know that the employee has
opposed or is opposing a violation of Title VII.” Petersen v. Utah Department of
Corrections, 301 F.3d 1182, 1188 (10th Cir. 2002). See also Galdieri-Ambrosini v.
National Realty & Development Corp., 136 F.3d 276, 292 (2nd Cir. 1998) (“[I]mplicit in
the requirement that the employer have been aware of the protected activity is the
requirement that it understood, or could reasonably have understood, that the plaintiff's
opposition was directed at conduct prohibited by Title VII.”). More specifically,
generalized complaints of “favoritism” or unspecified “discriminatory” treatment which
are not linked in some appreciable way to the employee’s gender are insufficient to put
the employer on notice that the employee is engaging in protected opposition to
invidious discrimination. See Robben v. Runyon, 2000 WL 123421 at *4 (10th Cir. Feb.
1, 2000). See also Martin v. Budget Rent–A–Car Systems Inc., 432 Fed. Appx. 407,
412 (5th Cir. July 14, 2011); Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th
Cir. 2006); Barber v. CSX Distribution Services, 68 F.3d 694, 702 (3rd Cir. 1995); Lee
v. Potter, 2008 WL 4449568 at *8 (N.D. Cal. Oct. 1, 2008), aff’d, 358 Fed. Appx. 966
(9th Cir. Dec. 16, 2009), cert. denied, 130 S.Ct. 3398 (2010).
So it is here. Plaintiff here complained to Mr. Brinson that Ms. Gannon had
demonstrated “favoritism” toward Ms. Rock in foisting responsibility for cleaning the
seafood case onto plaintiff and had trampled his seniority rights by denying plaintiff’s
request to take time off when Ms. Rock had previously requested those same days off.19
(See Plf. Resp. App., Exh. 2 at 242-243; Def. Motion App., Exh. C at 45-49.) Plaintiff

19

It also must be remembered that in both these instances, plaintiff’s complaints were resolved in

his favor.

14

also told Mr. Brinson (in response to the allegations made by Ms. Gannon in January
2012) that he was being unfairly “singled out” for complaint when others in the
department engaged in similar behavior. (See Def. Motion App., Exh. C at 50-51.)
There is no reasonable manner in which plaintiff’s complaints could be construed as
complaining of sex-based discrimination. He therefore cannot satisfy his burden to
establish a prima facie case of retaliation, and summary judgment is appropriate as to
this claim as well.
IV. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That Defendant’s Motion for Summary Judgment [#29], filed September
19, 2014, is GRANTED;
2. That plaintiff’s claims in this lawsuit are DISMISSED WITH PREJUDICE;
3. That the trial set to commence on December 15, 2014, is VACATED;
4. That judgment with prejudice SHALL ENTER on behalf of defendant, Dillon
Companies dba King Soopers, Inc., against plaintiff, Timothy C. Jordan, on all claims for
relief and causes of action asserted in this action; and
5. That defendant is AWARDED its costs, to be taxed by the clerk of the court in
the time and manner specified by Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated November 20, 2014, at Denver, Colorado.
BY THE COURT:

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