Chung v. El Paso School District #11

Filing 107

ORDER by Magistrate Judge Kristen L. Mix on 7/21/15. Corrected Motion for Summary Judgment # 79 is GRANTED. Judgment shall enter in favor of Defendant on all claims in this matter. IT IS FURTHER ORDERED that the Final Pretrial Conference and Trial Preparation Conference set for July 23, 2015 at 9:30 a.m. are VACATED. IT IS FURTHER ORDERED that the Jury Trial set for August 10-14, 2015 is VACATED. (lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01520-KLM
JULIA CHUNG,
Plaintiff,
v.
EL PASO COUNTY / COLORADO SPRINGS SCHOOL DISTRICT #11,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Corrected Motion for Summary
Judgment [#79]1 (the “Motion”).2 Plaintiff, who proceeds in this matter as a pro se litigant,3
filed a Response [#82] in opposition to the Motion,4 and Defendant filed Reply [#88]. The
1

“[#79]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
2

The case has been referred to the undersigned for all purposes [#12] pursuant to the
Court’s Pilot Program and 28 U.S.C. § 636(c), on consent of the parties [#11].
3

The Court must construe the filings of a pro se litigant liberally. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the
Court should not be the pro se litigant’s advocate, nor should the Court “supply additional factual
allegations to round out [the pro se litigant’s] complaint or construct a legal theory on [her] behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110).
In addition, pro se litigants must follow the same procedural rules that govern other litigants.
Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
4

Plaintiff attaches approximately 650 pages of exhibits to her Response. She asserts that
these exhibits support her version of the case. However, she only occasionally cites to a specific
exhibit, and rarely to a specific page number within an exhibit, when discussing the evidence which
allegedly supports her opposition to the Motion. “[O]n a motion for summary judgment, it is the
responding party’s burden to ensure that the factual dispute is portrayed with particularity, without

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Court has reviewed the Motion, Response, Reply, the entire case file, and the applicable
law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion
[#79] is GRANTED.
I. Summary of the Case5
Based on the following events, Plaintiff asserts claims of employment discrimination
and retaliation due to her race (Asian) and national origin (Chinese).

Compl. [#1];

Response [#82] ¶ 52; Reply [#88] ¶ 52. Defendant District 11 (“Defendant,” “District 11,”
or the “District”) is a public school district in Colorado. Decl. of Karey Urbanski [#79-13] ¶
3. Sabin Middle School (“Sabin”) is located in Colorado Springs, Colorado, and is a District
11 school for grades six through eight. Id.; Depo. of Pl. [#79-2] at 16. Plaintiff has been
employed by Defendant as a teacher since 1992, and since school year (“SY”) 1993-94,
she has taught only at Sabin. [#79-2] at 16. Sherry Kalbach (“Kalbach”) has been the
principal at Sabin since approximately SY 2006-07. Id. at 23-24; Depo. Ex. 4 [#79-16].
Berry Swenson (“Swenson”) was the principal at Sabin before Principal Kalbach. Id.

depending on the trial court to conduct its own search of the record.” Cross v. The Home Depot,
390 F.3d 1283, 1290 (10th Cir. 2004) (internal quotation and citation omitted). The Court is “not
obligated to comb the record in order to make [Plaintiff’s] arguments for [her].” See Mitchell v. City
of Moore, Okla., 218 F.3d 1190, 1199 (10th Cir. 2000). Further, Local Rule 7.1(e) provides that
“[e]very citation in a motion, response or reply shall include the specific page or statutory subsection
to which reference is made.” D.C.COLO.LCiv R. 7.1(e). The Court is not required to sort through
the unorganized documents submitted by Plaintiff. See Fed. R. Civ. P. 56(c)(3) (stating that the
Court “need consider only the cited materials”). The Court may, and has, considered other materials
in the record. See id. However, the Court may not and has not done Plaintiff’s job for her by
organizing her submissions and researching every submitted document to find support for the
statements made in her briefing.
5

The following summary construes the evidence in the light most favorable to Plaintiff, as
the nonmovant. Ellis v. J.R.’s Country Stores, Inc., __ F.3d __, __, 2015 WL 1004715 (10th Cir.
Mar. 9, 2015) (“We . . . recit[e] all summary-judgment evidence in the light most favorable to . . . the
nonmovant.”).

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District 11’s school year runs from the second week of August to the end of May.
[#79-2] at 16-17. Around April of each year, Principal Kalbach assigns each teacher to his
or her subject for the upcoming school year. Decl. of Sherry Kalbach [#79-12] ¶ 3. In more
recent years, Principal Kalbach has invited teachers to tell her their preferences for
teaching assignments, although she is not bound by those preferences. Id.; Depo. Ex. 7
[#79-17]. From SY 1993-94 through SY 1998-99, Plaintiff taught various sixth grade
subjects. From SY 2001-02 through SY 2003-04, Plaintiff taught 8th Grade Language Arts.
From SY 2004-05 through SY 2009-10, she taught Drama. From SY 2010-11 through SY
2012-13, she taught 6th Grade Reading. From SY 2013-14 through SY 2014-15, she again
taught Drama. [#79-2] at 19-21; [#79-12] ¶¶ 5, 21; [#79-16].
As a teacher at Sabin, Plaintiff is represented by a labor union, the Colorado Springs
Education Association, and is employed pursuant to a collective bargaining agreement
called the Master Agreement. [#79-2] at 135. Former Principal Swenson first assigned
Plaintiff to teach Drama for SY 2004-05. [#79-2] at 135. In response, Plaintiff filed a
grievance under the Master Agreement, but ultimately her assignment to Drama was not
changed. Id. at 22, 57. Plaintiff taught Drama for six years, from SY 2004-05 through SY
2009-10. [#79-2] at 19-20; [#79-16]. In each of those years, Defendant paid the conference
fee and mileage for Plaintiff to attend a theater conference. [#79-2] at 31-32; [#79-13] ¶ 4.
Principal Kalbach changed Plaintiff’s assignment to 6th Grade Reading for SY 201011, without Plaintiff having first requested the assignment. [#79-2] at 22-23; [#79-16].
Plaintiff taught 6th Grade Reading for three years, from SY 2010-11 through SY 2012-13.
[#79-2] at 19-20; [#79-16]. Plaintiff received Exemplary evaluations as a 6th Grade Reading

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teacher.6 Response [#82] ¶ 51; Reply [#88] ¶ 51. During the three years that Plaintiff
taught 6th Grade Reading, she also sponsored the Drama Club. [#79-2] at 24. She agreed
to do so because of the students’ enthusiasm and the opportunity it gave her to bond with
the students. Id. at 25. Defendant provided Plaintiff with a stipend of approximately $500
per year for sponsoring the Drama Club. Id. at 28.
Beginning in SY 2010-11, Susan Strong (“Strong”) was employed at Sabin as the
SAIL (i.e., gifted and talented) Language Arts teacher. [#79-12] ¶ 12. Her status that first
year was “Intent Not to Renew” (“INR”), which meant that her contract would automatically
expire at the end of that school year.7 Id. Regardless, Ms. Strong was retained by
Principal Kalbach with the same teaching assignment for SY 2011-12.8 Id. In May 2012,
Principal Kalbach announced the teaching assignments for SY 2012-13, including Ms.
Strong’s assignment.9 Id. ¶ 16. Principal Kalbach states that she had reviewed Ms.

6

The performance review forms used at Sabin in SY 2011-12 required reviewers to rate
teachers on eighteen criteria and provide an overall rating by totaling the eighteen scores. [#79-12]
¶ 14. The possible ratings and point score for each criterion were: Exemplary (3 points), Effective
(2 points), Emerging (1 point), and Unsatisfactory (0 points). Id. Thus, the possible overall ratings
were: Exemplary (43-57 points), Effective (28-42 points), Emerging (15-28 points), and
Unsatisfactory (0-14 points). Id.
7

The process for retaining an INR teacher varies from year to year depending on a variety
of factors. [#79-13] ¶ 11. In some years, Defendant has required principals to post the job vacancy
created when an INR contract expires and to interview candidates who apply for the vacancy, which
may include the incumbent INR teacher. Id. In other years, Defendant has allowed principals to
retain INR teachers for another year without posting the vacancy or interviewing candidates. Id.
In 2011, Defendant allowed principals to retain INR teachers for SY 2011-12 without posting or
interviewing. Id.
8

There were no INR teachers at Sabin in SY 2010-11 who Principal Kalbach believed to
be Asian or Chinese and who were not retained for SY 2011-12. [#79-12] ¶ 12.
9

There were no teachers at Sabin whom Principal Kalbach believed to be Asian or Chinese
and who had SY 2011-12 performance scores equal to or better than Ms. Strong’s but who were
not retained for SY 2012-13. [#79-12] ¶ 16.

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Strong’s contract and assigned her to teach 6th Grade Reading because her performance
review was strong.10 Id. ¶ 13. At the time, Plaintiff had more experience as a 6th Grade
Reading teacher and had better performance reviews than Ms. Strong, who later became
the co-chair for the Reading Department for SY 2014-15. Response [#82] ¶¶ 52, 54; Reply
[#88] ¶¶ 52, 54.
In June 2012, Plaintiff sent Principal Kalbach an email in which she requested a
letter of reference in connection with Plaintiff’s application for the position of TCT
Coordinator. [#79-4] at 133-34; [#79-7] at 68-69; Depo. Ex. K [#79-23]. Principal Kalbach
asserts that she did not provide the letter to Plaintiff because the deadline for submission
of the application materials had passed by the time she saw the email, but that she instead
invited Plaintiff to identify Principal Kalbach as a reference and ask people to call her for
a reference.11 [#79-2] at 127; [#79-7] at 68-69; Depo. Ex. K [#79-23]. Plaintiff did not do
so. Id. At some point after this email thread occurred, Principal Kalbach was asked to sit
on the interview panel for the TCT Coordinator position, and after that point, Principal
Kalbach states that she would not have provided a letter of reference for any candidate
because of the conflict of interest. [#79-7] at 69-71, 77.
In July 2012, Principal Kalbach served on the interview panel when Plaintiff

10

Ms. Strong’s performance review for SY 2011-12 rated her as “Effective” overall with a
total score of 40. [#79-12] ¶ 15. She was rated “Exemplary” on four and “Effective” on fourteen of
the eighteen criteria measured. Id.
11

Principals are not required to provide a letter of reference to a teacher who requests one.
[#79-13] ¶ 12. Many teachers have been hired into other positions within District 11 without having
letters of reference from their principals. Id. Principal Kalbach has failed to provide letters of
reference to other teachers, including teachers whom she did not believe were Chinese or Asian.
[#79-12] ¶ 17.

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interviewed for the TCT Coordinator position.12 [#79-2] at 133-34; Depo. of Sherry Kalbach
[#79-7] at 68-70, 77-78; [#79-23]. Principal Kalbach said nothing negative about Plaintiff
when Plaintiff was interviewed for the position or in the discussions among the interviewers
thereafter. [#79-7] at 77-78. Rather, she stayed silent until the other interviewers had
stated their impressions of Plaintiff and then only said, “I agree.” Id. Ultimately, another
candidate was hired for the position, but according to Karey Urbanski, District 11's HR
Director for Secondary Education who served on the panel that interviewed Plaintiff and
other candidates for the TCT Coordinator position and selected the candidate for the
position, Plaintiff was not denied the position because of anything Principal Kalbach said
or did. [#79-13] ¶¶ 2, 14.
In 2012 or 2013, Plaintiff applied to be a Disciplinary Coach. [#79-3] at 131.
Principal Kalbach asserts that she had no involvement in that application or selection
process and that she did not provide a negative reference or make any negative comments
about Plaintiff. [#79-12] ¶ 20.
In April 2013, Principal Kalbach decided to add Drama to the schedule for SY 201314. Id. at 38-39. She assigned Plaintiff to teach Drama and informed Plaintiff of this
decision in a meeting on April 5, 2013. Id. at 41; Depo. Ex. 8 [#79-18]. Principal Kalbach
asserts that she assigned Plaintiff to teach Drama because she wanted someone with
experience teaching Drama, because Plaintiff had previously taught Drama for six years

12

Principal Kalbach has served on interview panels involving other teachers at Sabin who
were applying for other positions, including teachers whom Principal Kalbach did not believe to be
Asian or Chinese. [#79-7] at 76-77; [#79-13] ¶ 18. There is no policy or rule in District 11 that
prohibits a principal from serving on an interview panel involving a teacher at her school, and this
most commonly happens for district-level or central-office positions like the TCT Coordinator
position. [#79-7] at 95-96; [#79-13] ¶ 13.

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at Sabin, because, as far as Principal Kalbach was aware, Plaintiff was the only teacher
at Sabin who had previously taught Drama at any school, and because Defendant had
previously provided money for Plaintiff to attend theater conferences and to sponsor
Sabin’s Drama Club.13 Depo. of Sherry Kalbach [#79-7] at 95-96; [#79-12] ¶ 5.
In addition, Principal Kalbach believed that Plaintiff was “highly qualified” to teach
Drama because Plaintiff had taught Drama at Sabin for six years after passage of the No
Child Left Behind Act.14 [#79-7] at 103-05, 177-78; [#79-13] ¶¶ 6-7, 9. Principal Kalbach
believed that CDE and the District’s Human Resources Department (“HR”) would not have
allowed Plaintiff to teach Drama for six years if she was not “highly qualified” to do so.15

13

Plaintiff asserts that another teacher named Sarah Ortiz (“Ortiz”) had expressed interest
in teaching Drama and should have been assigned to teach Drama instead of Plaintiff. Ms. Ortiz
was a Special Education teacher at Sabin who began teaching Drama at another school in SY
2014-15. [#79-7] at 110; Depo. of Sarah Ortiz [#79-8] at 8-9. Before that year, she had never taught
Drama in a school. [#79-8] at 9. Ms. Ortiz once commented to Principal Kalbach that she might be
interested in teaching Drama at some time in the future. [#79-7] at 110-11. Principal Kalbach
asserts that, had she known or remembered in April 2013 that Ms. Ortiz wanted to teach Drama for
SY 2013-14, she still would have assigned Plaintiff to teach Drama because she wanted an
experienced Drama teacher, because Plaintiff had taught Drama for six years at Sabin, and
because Ms. Ortiz had never taught Drama in a school before. [#79-12] ¶ 8.
14

“Highly qualified” is a term of art meaning that a teacher has the necessary subject matter
competency to teach a particular subject. [#79-13] ¶ 5. The term comes from the No Child Left
Behind Act of 2001. Id. The Colorado Department of Education (“CDE”) establishes criteria to
guide Colorado public school districts in determining whether a teacher is “highly qualified” in a
particular subject. Id.; [#79-3] at 103-04. CDE has determined that a teacher is “highly qualified”
to teach Drama to K-12 students if she is “highly qualified” to teach Secondary English Language
Arts. Decl. of Jennifer Phillips Simons [#79-28]. Plaintiff is “highly qualified” to teach Secondary
English Language Arts. [#79-3] at 75; [#79-13] ¶ 6. Plaintiff disputes this by providing evidence that
the No Child Left Behind Act requires teachers to have twenty-four college credit hours with drama
content in order to be highly qualified to teach Drama, Decl. of Tim Cross [#82-1] ¶ 10, which
Plaintiff apparently does not have. However, this dispute is immaterial for resolving the present
Motion. The Court also notes that in January 2014, Plaintiff represented to the National Education
Association that she was “highly qualified to teach math, science, social studies, language arts and
Drama.” [#79-3] at 104-08; Depo. Ex. 23 [#79-21] at 4.
15

As noted, CDE had repeatedly told Defendant that a teacher is “highly qualified” to teach
Drama if she is “highly qualified” to teach Secondary English Language Arts. [#79-13] ¶ 6. In

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When Plaintiff later spoke with Principal Kalbach’s supervisor Jason Ter Horst (“Ter Horst”),
Defendant’s K-12 Executive Director, about her assignment to Drama in 2013, he asked
HR to confirm whether Plaintiff was “highly qualified” to teach Drama. [#79-13] ¶ 9; Depo.
of Jason Ter Horst [#79-9] at 19-22. HR reviewed Plaintiff’s records and determined that
she was “highly qualified” to teach Secondary English Language Arts and therefore she
was “highly qualified” to teach Drama. [#79-13] ¶ 9.
Plaintiff opposed the Drama assignment and unsuccessfully attempted to persuade
Principal Kalbach to change her mind. [#79-2] at 43, 45. Principal Kalbach instead offered
to buy new Drama supplies and materials, as well as to consider Plaintiff first if a Reading
teaching assignment became available over the summer of 2013. Id. at 47; [#79-18]; [#8230].

On April 25, 2013, approximately two weeks after being informed of her new

assignment, Plaintiff met with Alvin Brown (“Brown”), Defendant’s Equal Opportunity
Programs Director. [#79-2] at 50; Depo. of Alvin Brown [#79-6] at 8. At that meeting,
Plaintiff complained of her Drama assignment and stated that she felt she was being
discriminated against. [#79-6] at 14-15. She told Mr. Brown that she would prefer either
teaching English or receiving a promotion to an administrative position, and she authorized
Mr. Brown to attempt to resolve the issue. Id. at 17-18. Mr. Brown thereafter spoke
multiple times with Principal Kalbach and Mr. Ter Horst. Id. at 18, 24; [#79-2] at 52-53;
[#79-3] at 71; [#79-9] at 9-10. After these meetings, Mr. Brown told Plaintiff that Mr. Ter

addition to this, each school in District 11 reports all of its licensed employees’ teaching
assignments to HR annually, HR reviews each teacher’s record and assignment to confirm that the
teacher is “highly qualified” for that subject, and HR reports that information to CDE. Id. ¶ 7. “If
CDE concludes that a teacher is not ‘highly qualified’ for his/her assignment, [CDE] notifies the
school district.” Id. CDE has never notified the District or Sabin that Plaintiff was not “highly
qualified” to teach Drama. Id.

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Horst and Principal Kalbach had conveyed to him a nondiscriminatory reason for Plaintiff’s
assignment to Drama, and that this reason seemed truthful to him. [#79-6] at 25-26. On
April 26, 2013, the day after Plaintiff first met with Mr. Brown, she filed a charge of
discrimination with the Equal Employment Opportunity Commission (“EEOC”). [#79-4] at
163; Depo. Ex. 33 [#79-22]; see also [#82-27].
Plaintiff had not complained to Defendant about alleged harassment by Principal
Kalbach before speaking to Mr. Brown on April 25, 2013. [#79-4] at 155. The evidence
demonstrates that Principal Kalbach has treated employees other than Plaintiff, including
those not believed to be Asian or Chinese, in ways that include: being reserved in a way
that could be viewed as “silent treatment;” giving them disapproving looks and interrupting
them in meetings; criticizing their statements or ideas in a way that could be construed as
a “put down;” and speaking in a curt tone that could be viewed as “hostile” or
“condescending.”16 [#79-12] ¶ 10; Decl. of Marsha West [#79-14] ¶¶ 4-7; Decl. of Carolyn
Hunt [#79-27] ¶¶ 4-6. Principal Kalbach admits to having acted in the same manner with
Plaintiff when she felt that Plaintiff was being disruptive or going off on tangents. [#79-12]
¶ 10; [#79-27] ¶ 7. Principal Kalbach’s opinion of Plaintiff is that she can be needlessly
confrontational and argumentative, that she does not listen, and that she disrupts meetings

16

Plaintiff admits that Principal Kalbach also harassed and bullied employees Linda Bowen,
Bobbe Jackson, and Lorna Stievater (“Stievater”). [#79-4] at 145-47; Pl.’s Responses to Def.’s
Interrogatories #1-20 [#79-26] at 3-4. Ms. Ortiz states that Principal Kalbach appeared to her to
dislike Jeannie Meridith, Ms. Stievater, Jim Scanlan, and Jodie Garten based on Principal Kalbach’s
eyes and body stance, short and clipped speech patterns, and interrupting and talking over them.
[#79-5] at 21-27. Another employee, Barbara Terrell-Jackson, states that Principal Kalbach was
rude to her, interrupted her on many occasions, and has yelled at her while red in the face. Depo.
of Barbara Terrell-Jackson [#79-10] at 46. Marsha West states that Principal Kalbach interrupted
and criticized Caucasian teachers such as Brenda Aker and Susan Forget. [#79-14] ¶¶ 5-7.
Principal Kalbach does not believe that any of those persons are Asian or Chinese. [#79-12] ¶ 11.

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with irrelevant issues. [#79-12] ¶ 9.
Sometime between April and June 2013, the SAIL Reading/Language Arts teaching
position at Sabin became available. [#79-12] ¶ 6. Plaintiff spoke with Mr. Ter Horst about
the position but ultimately she did not teach the subject. [#79-3] at 71; Depo. Ex. 33 [#7919]. A 7th Grade Reading teacher at Sabin was assigned to the position instead. [#79-12]
¶ 6. Although Plaintiff, Principal Kalbach, and Mr. Ter Horst discussed Plaintiff taking the
now-open 7th Grade Reading assignment, she ultimately did not teach this subject either.
[#79-3] at 82-83; Depo. Ex. 19 [#79-20]. As originally assigned, Plaintiff taught Drama in
SY 2013-14. [#79-16].

Plaintiff lost no pay or benefits as a result of her teaching

assignment to Drama instead of 6th Grade Reading. [#79-4] at 236-37; [#79-13] ¶ 10.
In mid-2013, Plaintiff applied for a position as District 11's Multi-Lingual Facilitator
(“MLF”).17 [#79-4] at 165, 167. Defendant conducted three rounds of interviews for the MLF
position. Depo. of Holly Brilliant [#79-5] at 13. Plaintiff interviewed during the first round
in early or mid-August 2013. Id. at 14; [#79-4] at 171. After the first round, the job was
reposted with a note that “Previous applicants do not need to reapply.” [#79-5] at 24; [#7911] ¶ 4, Ex.1. The final selection was made in November 2013. [#79-5] at 33; Depo. Ex.
YYY [#79-25]. In filing the position, Defendant sought a person who had recent experience
as an ELL teacher and successful leadership of an ELL program at a district level. [#79-5]
at 27; [#79-11] ¶ 5. Defendant asserts that it hired Talonna Hybki (“Hybki”) because it felt

17

The function of the MLF is to coordinate the administration of Defendant’s various
programs and responsibilities regarding students for whom English is not the first language. [#79-4]
at 165-67; Decl. of Holly Brilliant [#79-11] ¶ 3 & Ex. 1; Depo. Ex. MM [#79-24]. These students are
commonly referred to as “English Language Learners” (“ELL”). Id. The programs for ELL students
are typically referred to as English Language Acquisition, English Acquisition, or English as a
Second Language. Id.

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she had the best skills and knowledge base and leadership style for the position. [#79-5]
at 36-37. Ms. Hybki had served from 2001 to 2006 as program manager of the Denver
Public Schools’ Department of English Language Acquisition, a position very similar to
Defendant’s MLF position. [#79-11] ¶ 6. She also had a master’s degree in teaching
English as a Second Language and had taught English Language Acquisition from 1999
to 2001. Id.; see also Recommendation for Employment [#82-25] at 3 (discussing Talonna
Hybki). In contrast, Plaintiff has never administered an ELL program at a district level, has
no master’s degree in English Language Acquisition, and had not taught English as a
Second Language since the early 1980s. [#79-4] at 177-79; Depo. Ex. 1 [#79-15].
In April 2014, Principal Kalbach decided to assign Plaintiff to teach Drama again for
SY 2014-15. [#79-12] ¶ 21. Principal Kalbach asserts that she made the assignment
because she still wanted to offer a Drama class, she still wanted an experienced Drama
teacher, Plaintiff now had seven years’ experience teaching Drama at Sabin, and Plaintiff
was still the only teacher at Sabin who had taught Drama before. Id. Plaintiff ultimately
again taught Drama at Sabin in SY 2014-15. [#79-2] at 181-82. Plaintiff filed a second
charge with the EEOC on June 20, 2014.
In the present lawsuit, Plaintiff asserts Title VII claims of discrimination and
retaliation. See generally Compl. [#1]. Defendant responds with the Motion at issue [#79],
in which it maintains that it is entitled to summary judgment on all of Plaintiff’s claims.
II. Standard of Review
The purpose of a motion for summary judgment pursuant to Fed. R. Civ. P. 56 is to
assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
An issue is genuine if the evidence is such that a reasonable jury could resolve the issue
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in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A fact is material if it might affect the outcome of the case under the governing substantive
law. Id.
The burden is on the movant to show the absence of a genuine issue of material
fact. Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex,
477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at
trial, the “movant may make its prima facie demonstration [of the absence of a genuine
issue of material fact] simply by pointing out to the [C]ourt a lack of evidence for the
nonmovant on an essential element of the nonmovant’s claim.” Id. at 671. If the movant
carries the initial burden of making a prima facie showing of a lack of evidence, the burden
shifts to the nonmovant to put forth sufficient evidence for each essential element of his
claim such that a reasonable jury could find in his favor. See Anderson, 477 U.S. at 248;
Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321,
1326 (10th Cir. 1999), abrogation recognized by Eisenhour v. Weber Cnty., 744 F.3d 1220,
1227 (10th Cir. 2014). Conclusory statements based merely on conjecture, speculation,
or subjective belief are not competent summary judgment evidence. Bones v. Honeywell
Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party’s evidence must be
more than “mere reargument of [his] case or a denial of an opponent's allegation” or it will
be disregarded. See 10B Charles Alan Wright, et al., Federal Practice and Procedure §
2738 at 356 (3d ed. 1998).
Only documents that adhere to the evidentiary requirements of Fed. R. Civ. P. 56
may be considered for purposes of summary judgment. Rule 56(c) provides that:
(1) A party asserting that a fact cannot be or is genuinely disputed must
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support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials[.]
...
(3) Materials Not Cited. The court need consider only the cited materials, but
it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.
Fed. R. Civ. P. 56(c)(1)-(4).
III. Analysis
Title VII prohibits an employer from engaging in certain behavior, including
discriminating against any individual “because of such individual’s race, color, religion, sex,
or national origin . . . .” 42 U.S.C. § 2000(e)-2(a). Title VII also forbids an employer from
retaliating against an individual because the individual “has opposed any practice made an
unlawful employment practice” by Title VII, 42 U.S.C. § 2000(e)-3(a) (retaliation). A plaintiff
may prove discrimination and retaliation by either direct or circumstantial evidence. See
Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008);
Anderson v. Acad. Sch. Dist. 20, 122 F. App’x 912, 916 (10th Cir. 2004). Direct evidence
demonstrates on its face that employment termination was either discriminatory or
retaliatory. Adamson, 514 F.3d at 1145. In contrast, circumstantial evidence permits the
fact finder to draw a reasonable inference from facts indirectly related to discrimination or
retaliation that discrimination or retaliation has, in fact, occurred. Anderson, 122 F. App’x
at 916.
Because Plaintiff does not provide direct evidence of discrimination or retaliation,
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and because the Court’s review of the record reveals none, Plaintiff’s Title VII claims are
subject to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-04 (1973).

Under this framework, the plaintiff bears the initial burden of

establishing a prima facie case of discrimination or retaliation. Id. If the plaintiff meets this
initial burden, the defendant must then offer a legitimate, non-discriminatory reason for its
employment action. Id. If the defendant offers a legitimate, non-discriminatory reason for
its employment action, the plaintiff then bears the ultimate burden of demonstrating that the
defendant’s proffered reason is pretextual. Id.
A.

Title VII Discrimination
Based on the following, the Court finds that Plaintiff has failed to establish a prima

facie case of discrimination under Title VII. To make a prima facie case of discrimination
under Title VII, a plaintiff must establish “that (1) she belongs to some protected class, (2)
she was qualified for the position or benefit at issue, (3) she suffered an adverse
employment action, and (4) she was treated less favorably than others . . . .” Argo v. Blue
Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1201 (10th Cir. 2006) (quoting Exum v.
U.S. Olympic Comm., 389 F.3d 1130, 1134 (10th Cir. 2004)). Defendant does not dispute
that Plaintiff belongs to a protected class.
Plaintiff’s discrimination claims are based on several incidents which the Court
separately addresses: (1) Plaintiff’s assignment to teach Drama for SY 2012-13, (2)
harassment by Principal Kalbach, (3) preferential treatment of Ms. Strong, and (4) Principal
Kalbach’s involvement in Plaintiff’s applications for other positions within District 11.18

18

Plaintiff complains of a wide array of alleged assorted misconduct by her employer. She
also provides a wide-ranging array of evidence (as well as unsupported allegations) regarding these

-1414

1.

Assignment to Teach Drama in SY 2012-13

Defendant argues that Plaintiff has failed to demonstrate that she suffered an
adverse employment action. “An adverse employment action includes acts that constitute
a significant change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a significant
change in benefits.” Bejar v. McDonald, 601 F. App’x 628, 631 (10th Cir. 2015) (quoting
Dick v. Phone Directories Co., 397 F.3d 1256, 1268 (10th Cir. 2005) (internal quotation
marks omitted)). Although “an adverse employment action is not limited to such acts . . .
we will not consider a mere inconvenience or an alteration of job responsibilities to be an
adverse employment action.” Bejar, 601 F. App’x at 631-32 (quoting Dick, 397 F.3d at
1268). “. . . [A] plaintiff must [always] show that the alleged adverse action caused more
than de minimis harm to or a de minimis impact upon an employee’s job opportunities or
status.” EEOC v. C.R. England, Inc., 644 F.3d 1028, 1040 (10th Cir. 2011). “Acts that
carry a significant risk of humiliation, damage to reputation, and a concomitant harm to
future employment prospects may be considered adverse actions . . . .” Annett v. Univ. of
Kan., 371 F.3d 1233, 1239 (10th Cir. 2004).
Regarding Plaintiff’s assignment to teach Drama, there is no indication that Plaintiff’s
reassignment created more than a de minimis impact on Plaintiff’s employment. For
example, in Duvall v. Putnam City Sch. Dist., Ind. Sch. Dist. No. 1 of Okla. Cnty., 530 F.

complaints. However, she has done little to put this evidence into a legal framework that describes
the basis for her theories of discrimination and retaliation. As noted above, while the Court must
construe the filings of a pro se litigant liberally, see Haines, 404 U.S. at 520-21, the Court should
not “construct a legal theory on [her] behalf.” Whitney, 113 F.3d at 1173-74. In her Response,
Plaintiff did not contest Defendant’s organization of the various aspects of her claims, and the Court
therefore adopts this legal framework for addressing Plaintiff’s discrimination and retaliation claims.

-1515

App’x 804, 811 (10th Cir. 2013), the plaintiff was a teacher who was reassigned by the
principal between school years to teach first grade instead of special education. The Tenth
Circuit agreed with the trial court that this constituted an adverse action, but only because
teaching first grade was a lower-paid position. In other words, the action was only adverse
because it resulted in a monetary loss, which in this case was a five-percent decrease in
the teacher’s salary.
Here, Plaintiff has directed the Court’s attention to no evidence creating a genuine
issue of material fact that Plaintiff’s reassignment to teach Drama resulted in monetary loss;
that the reassignment created a significant risk of humiliation, damage to reputation, or a
concomitant harm to future employment prospects; or that it entailed significantly different
responsibilities, or a significant change in benefits. Plaintiff’s statement that “[a]ssigning
Plaintiff to teach Drama is willfully obstructive to Plaintiff’s career goals and future
promotions” is conclusory, she does not recite any supporting evidence, and the Court may
not infer the negative impact on her future which Plaintiff asserts. Response [#82] at 17.
To the extent Plaintiff was not hired for the positions of TCT Coordinator, Disciplinary
Coach, or MLF, the Court notes that she has presented no argument or evidence that these
events were directly or indirectly caused by her position as a Drama teacher. Rather, this
appears to be a straight-forward case of alteration of job responsibilities that has caused
no more than de minimis harm to or de minimis impact on Plaintiff’s job opportunities or
status despite Plaintiff’s belief to the contrary. To the extent that Plaintiff simply disliked her
assignment to teach Drama, this is not grounds for finding that an adverse employment
action has occurred. See, e.g., Lombardo v. Potter, 368 F. Supp. 2d 1178, 1195 (D. Kan.
2005) (“Plaintiff’s dislike for the choices defendant and its various supervisors made over
-1616

the course of his career do not amount to adverse employment actions.”); Dunlap v. Kan.,
Dep’t of Health & Env’t, 211 F. Supp. 2d 1334, 1343 (D. Kan. 2002) (“A supervisor’s
decision is not adverse employment action just because the employee dislikes or disagrees
with it.”); Flores v. J.C. Penney Co., Inc., 189 F. Supp. 2d 1241 n.5 (2002) (“An adverse
employment action does not include a mere inconvenience or an alteration of job
responsibilities, nor is an action adverse simply because an employee dislikes or disagrees
with it.” (quoting Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532 (10th Cir. 1998)
(internal quotation marks omitted)). The Court therefore finds that Plaintiff’s reassignment
to teach Drama in SY 2012-13 does not constitute an adverse employment action.
Accordingly, because Plaintiff has failed to establish a prima facie case of discrimination
to establish summary judgment in favor of Defendant is appropriate on this claim.
2.

Harassment by Principal Kalbach

The Court next turns to the asserted harassment of Plaintiff by Principal Kalbach.
Under Title VII an employer may not discriminate against an employee by allowing “a
hostile work environment based on race or national origin discrimination.” Al-Kazaz v.
Unitherm Food Sys., Inc., 594 F. App’x 460, 462 (10th Cir. 2014) (citing Hernandez v.
Valley View Hosp. Ass’n, 684 F.3d 950, 957 (10th Cir. 2012)).
To survive summary judgment on a claim alleging a racially hostile work
environment, the plaintiff must show that a rational jury could find that the
workplace is permeated with discriminatory intimidation, ridicule, and insult,
that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment, and that the victim
was targeted for harassment because of . . . race or national origin.
Al-Kazaz, 594 F. App’x at 462 (quoting Hernandez, 684 F.3d at 957). Thus, in short, a
plaintiff alleging hostile work environment must show that the discrimination was pervasive
-1717

or severe enough to alter the terms, conditions, or privileges of employment. Coleman v.
Gen. Motors, 599 F. App’x 341, 342 (10th Cir. 2015) (citing Morris v. City of Colo. Springs,
666 F.3d 654, 660 (10th Cir. 2012)).
“[W]hether a hostile environment claim is actionable depends not only on the number
of incidents, but also on the severity of the incidents.” Al-Kazaz, 594 F. App’x at 462
(quoting Tademy v. Union Pac. Corp., 614 F.3d 1132, 1143 (10th Cir. 2008)). “[W]e
consider the work atmosphere both objectively and subjectively, looking at all the
circumstances from the perspective of a reasonable person in the plaintiff’s position.” AlKazaz, 594 F. App’x at 462 (quoting Tademy, 614 F.3d at 1144). “[T]o determine whether
an environment is sufficiently hostile or abusive” to a reasonable person, we consider all
circumstances, “including the frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Al-Kazaz, 594 F. App’x
at 462 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)). Offhand
comments and non-serious isolated incidents are insufficient, since Title VII is not a
“general civility code.” Al-Kazaz, 594 F. App’x at 462 (quoting Faragher, 524 U.S. 775 at
788). Also, “mere utterance of an . . . epithet which engenders offensive feelings in a[n]
employee does not sufficiently affect the conditions of employment to implicate Title VII.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citation and internal quotation marks
omitted). But “[w]hen the workplace is permeated with discriminatory intimidation, ridicule,
and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment, Title VII is violated.” Al-Kazaz,
594 F. App’x at 462 (quoting Harris, 510 U.S. at 21).
-1818

Even to the extent that Principal Kalbach’s words and actions could possibly be
construed as being offensive and derogatory, her conduct cannot objectively be construed
as being so severe or pervasive as to create an abusive working environment.19 First,
Plaintiff has directed the Court’s attention to no evidence that Principal Kalbach made any
racist comments. See Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir. 2005) (noting
that a violation of Title VII requires a “steady barrage of opprobrious racial comments”).
Second, as Defendants note, silent treatment, disapproving or condescending looks, and
other forms of passive action do not, as a matter of law, constitute materially adverse
actions. Motion [#79] at 20 (citing Johnson v. Weld Cnty., No. 06-cv-02362-JLK, 2008 WL
4402247, at *8 (D. Colo. Sept. 24, 2008) (citing Mackenzie v. City & Cnty. of Denver, 414
F.3d 1266, 1279 (10th Cir. 2005); Steele v. Kroenke Sports Enters., L .L.C., 264 F. App’x
735, 746 (10th Cir. 2008))); Somoza v. Univ. of Denver, 513 F.3d 1206, 1219 (10th Cir.
2008). Third, the United States Supreme Court has stated that “discourtesy or rudeness
should not be confused with racial harassment.” Faragher, 524 U.S. at 787. Non-racial
statements consisting of reprimands, belittling or demeaning tones, negative comments,
and even verbal insults are not actionable under Title VII. Somoza, 513 F.3d at 1219;
White v. Home Depot U.S.A., Inc., No. 05-cv-00683, 2006 WL 2226198, at *6 (D. Colo.
Aug. 3, 2006).
In short, a mere contentious relationship between an employee and her supervisor
does not rise to the level of an abusive and hostile work environment, because “federal law

19

The Court notes that the letter provided by Plaintiff and written by fellow teacher Barbara
Terrell-Jackson on September 17, 2014, is not competent summary judgment evidence because
it is unsworn. Hayes v. Mariott, 70 F.3d 1144, 1148 (10th Cir. 1995) (stating that unsworn
statements do not create sufficient grounds to oppose summary judgment).

-1919

does not guarantee a utopian workplace, or even a pleasant one. . . . [P]ersonality conflicts
between employees are not the business of the federal courts.” White, 2006 WL 2226198,
at *6 (quoting Trujillo v. Univ. of Colo. Health Science Ctr., 157 F.3d 1211, 1214 (10th Cir.
1998)). Plaintiff has not directed the Court’s attention to any evidence creating a genuine
issue of material fact that she was subjected to an abusive and hostile work environment
due to harassment by Principal Kalbach.20 Accordingly, summary judgment in favor of
Defendant is appropriate on this claim.
3.

Preferential Treatment of Ms. Strong

Plaintiff asserts that Principal Kalbach gave preferential treatment to Ms. Strong, a
white teacher. Defendant argues that this aspect of Plaintiff’s discrimination claim is timebarred.
“A charge [filed] under [Title VII] shall be filed within one hundred and eighty days
after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e–5(e)(1). A
claim not filed within these statutory limits is time-barred. Daniels v. United Parcel Serv.,
Inc., 701 F.3d 620, 628 (10th Cir. 2012) (citing Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 109 (2002)); see also Daniels, 701 F.3d at 631 (stating that Ledbetter v.
Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), did not overturn the general applicability
of Morgan). “Each discrete discriminatory act starts a new clock for filing charges alleging

20

Plaintiff provides evidence that she was put on administrative leave by Principal Kalbach
in early 2011 due to alleged inappropriate physical contact with a student, that Principal Kalbach
required Plaintiff “to do extra hall duty during all passing periods between classes during the school
year of 2012-2013,” and that Principal Kalbach required Plaintiff “to do extra lunch duty to supervise
the PBIS program during her 30-minute uninterrupted lunch.” Decl. of Tim Cross [#82-1] ¶¶ 5-7;
[#82-1] at 3-4. However, little detail is provided regarding any of these alleged actions, and
certainly insufficient detail is provided to demonstrate harassment by Principal Kalbach that rises
to the level of a hostile work environment under the appropriate legal standard.

-2020

that act.” Daniels, 701 F.3d at 628 (quoting Morgan, 536 U.S. at 113). The limitations
period begins on “the date the employee is notified of an adverse employment decision by
the employer.” Daniels, 701 F.3d at 628 (quoting Davidson v. Am. Online, Inc., 337 F.3d
1179, 1187 (10th Cir. 2003)). “An employee need not have notice of discriminatory
motivation for the limitations period to begin, merely notice of the adverse decision.”
Daniels, 701 F.3d at 628 (citing Davidson, 337 F.3d at 1187). “When a complaint alleges
multiple discrete acts, the limitations period runs separately for each act.” Daniels, 701
F.3d at 628 (citing Davidson, 337 F.3d at 1185).
Plaintiff filed her First Charge on April 26, 2013. [#79-22]. To the extent that she
complains that Ms. Strong should not have been retained for SY 2011-12 without the
District first posting the position and interviewing applicants, this event and Plaintiff’s
subsequent knowledge of it occurred more than 300 days before the filing of her First
Charge, i.e., in April or May of 2011. [#79-12] ¶¶ 3, 12. Accordingly, any Title VII claim
based on this act is time-barred.
Similarly, to the extent that Plaintiff complains that Ms. Strong’s contract to teach
was renewed in 2012 for SY 2012-13, the renewal announcement was made to staff by late
May 2012. Decl. of Kalbach [#79-12] ¶ 6. Plaintiff did not file her First Charge until more
than 300 days later in April 2013, see [#79-12], and thus any Title VII claim based on this
act is also time-barred.
To the extent that Plaintiff argues that Ms. Strong should not have been retained as
a 6th Grade Reading teacher in SY 2013-14, while Plaintiff was assigned to continue
teaching Drama as she did in SY 2012-13, Plaintiff has failed to demonstrate that she
suffered an adverse employment action as a result of these circumstances. As noted
-2121

above in Section III.A.1., “a plaintiff must [always] show that the alleged adverse action
caused more than de minimis harm to or a de minimis impact upon an employee’s job
opportunities or status.” C.R. England, Inc., 644 F.3d at 1040. Regarding Plaintiff’s
retention to teach Drama for another year, there is no indication that it created more than
a de minimis impact on Plaintiff’s employment. Plaintiff has directed the Court's attention
to no evidence creating a genuine issue of material fact that her retention to teach Drama
resulted in monetary loss, created a significant risk of humiliation, damage to reputation,
or a concomitant harm to future employment prospects, entailed significantly different
responsibilities, or a significant change in benefits when compared with the 6th Grade
Reading teaching assignment. As noted above in Section III.A.1., Plaintiff’s conclusory
statement that “[a]ssigning Plaintiff to teach Drama is willfully obstructive to Plaintiff’s career
goals and future promotions” is not supported by evidence in the record. Response [#82]
at 17.
The Court’s role is “not to act as a super personnel department that second guesses
employers’ business judgments.” Conroy v. Vilsack, 707 F.3d 1163, 1177 (10th Cir. 2013)
(citation omitted). “Indeed, some subjectivity is to be expected in every hiring decision.”
Id. “Title VII does not do away with traditional management rights. An employer has
discretion to choose among equally qualified candidates, provided that the decision is not
based upon unlawful criteria.” Id. at 1177-78 (citation omitted). Here, in the context of
yearly teaching assignments, it is similarly not the Court’s role to second guess Defendant’s
business judgment, so long as the teaching assignments were not based on unlawful
criteria. Plaintiff directs the Court’s attention to no evidence creating a genuine issue of
material fact that the SY 2013-14 assignments were based on unlawful criteria. See
-2222

Daniels, 701 F.3d at 625 (noting that to present a prima facie case of discrimination,
plaintiff must prove adverse employment action occurred “under circumstances giving rise
to an inference of discrimination”). Accordingly, the Court therefore finds that there is no
genuine issue of material fact regarding whether Plaintiff's retention to teach Drama in SY
2013-14, while Ms. Strong was retained to teach 6th Grade Reading, constitutes unlawful
discrimination.
4.

Principal Kalbach’s Involvement in Plaintiff’s Hiring Interviews

Plaintiff claims that Principal Kalbach discriminated against her in connection with
her application for two positions with Defendant, i.e., TCT Coordinator and Disciplinary
Coach. She asserts that Principal Kalbach’s undisputed failure to provide her a letter of
reference with respect to the TCT Coordinator position and a disputed negative reference
with respect to the Disciplinary Coach position constitute discrimination.
A negative reference may be considered an adverse employment action because
it may harm future employment prospects and carry a significant risk of humiliation or
damage to one’s reputation. Annett, 371 F.3d at 1239. However, Plaintiff has directed the
Court’s attention to no case, and the Court has found none, where failure to provide a letter
of reference, whether positive or negative, has been construed as an adverse employment
action. Further, the evidence here is uncontroverted that Principal Kalbach did not provide
a letter of reference because the submission deadline had passed by the time she became
aware of Plaintiff’s request for one.21 Depo. of Kalbach [#79-7] at 68-69; Depo. Ex. K [#79-

21

It is unclear precisely when this happened, but it appears to have been near the time
when Plaintiff requested the letter of reference and no later than June 25, 2012. See Depo. of
Kalbach [#79-7] at 68-69; June 25, 2012 E-mail from Ronda J. Schimpf to Principal Kalbach [#8251] at 1.

-2323

23] at 1; Depo. of Pl. [#79-3] at 127, 133-34. The evidence is also uncontroverted that
Principal Kalbach believed it would be a conflict of interest to provide a letter of reference
for any candidate for the TCT Coordinator position once she learned that she would be
serving on the interview panel. Depo. of Kalbach [#79-7] at 69-71, 76-77. In addition,
Plaintiff has not directed the Court’s attention to any evidence of disparate treatment, i.e.,
that Principal Kalbach provided letters of reference for others in connection with this
position, but not Plaintiff. Finally, there also is no causation evidence, i.e., no evidence that
Plaintiff was not selected for the TCT Coordinator because, in whole or in part, Plaintiff did
not submit a letter of reference from Principal Kalbach.
Similarly, Plaintiff fails to direct the Court’s attention to evidence that Principal
Kalbach gave a negative reference with respect to the Disciplinary Coach position. In her
deposition, Plaintiff stated that she “believe[d]” that Principal Kalbach gave her a negative
reference but provides no support for this allegation other than that she subjectively felt that
she did well in the interview and that she produced a very good writing sample for the hiring
committee’s review. [#79-3] at 131.22 Plaintiff testified that neither Dr. Swift, who was on
the hiring committee, nor anyone else told her that Principal Kalbach gave her a negative
reference. Id. at 132-33. In short, Plaintiff merely believes that Principal Kalbach gave a
negative reference for the Disciplinary Coach position, but her unsubstantiated belief is
insufficient to withstand summary judgment without providing information as to the source
of Plaintiff’s alleged personal knowledge supporting the assertion. See Bones, 366 F.3d

22

This is like arguing that someone must have told partygoers not to eat the cookies I
baked because no one ate them, even though I used all the best ingredients and thought they
turned out well.

-2424

at 875. Thus, Plaintiff has failed to provide evidence creating a genuine issue of material
fact regarding an adverse employment action in connection with Principal Kalbach’s
references for Plaintiff.
Finally, the Court addresses Principal Kalbach’s position as part of the hiring
committee for the TCT Coordinator position. The parties have presented no legal support,
and the Court has found none, that the mere fact that Principal Kalbach sat on the interview
panel was an adverse employment action. See Motion [#79] at 25; Response [#82] at 28;
see also Decl. of Urbanski [#79-13] ¶ 13 (“There is no policy or rule in the District
prohibiting a principal from serving on an interview team for a teacher at her school. This
most commonly happens for district-level or central-office positions like the TCT
Coordinator position.”). However, Plaintiff’s argument that she was not hired/promoted due
to the involvement of Principal Kalbach is a different matter. See Response [#82] at 28.
Failure to hire and failure to promote are adverse employment actions. See Barone v.
United Airlines, Inc., 355 F. App’x 169, 172 (10th Cir. 2009). Thus, the Court finds that
Plaintiff has provided sufficient evidence regarding this element of her prima facie case.
Defendant also argues that Plaintiff has failed to provide evidence that she was
treated less favorably than others. Motion [#79] at 25; see Argo, 452 F.3d at 1201. The
evidence is undisputed that Principal Kalbach served on interview panels involving other
teachers at Sabin, including when interviewing teachers who were believed to be nonAsian/non-Chinese. Depo. of Kalbach [#79-7] at 76-77; Decl. of Kalbach [#79-12] ¶ 18.
There is no evidence of any rule or policy that prohibited or discouraged Principal Kalbach
from serving on such interview panels. See Decl. of Urbanski [#79-13] ¶ 13. Plaintiff
provides no evidence that Principal Kalbach made any negative comments about Plaintiff
-2525

to the other members of the interview committee or in any way treated Plaintiff differently
from other candidates. To the contrary, Defendant directs the Court’s attention to evidence
that Principal Kalbach did not provide a negative reference or make negative comments
about Plaintiff. Decl. of Kalbach [#79-12] ¶ 19 (“During and [Plaintiff’s] interview for the
TCT Coordinator position, I said nothing negative about her. I stayed silent while the other
interviewers reached their consensus that she was not the best candidate and then said
that I agreed.”); see also Decl. of Urbanski [#79-13] ¶ 14 (“I served on the panel that
interviewed [Plaintiff] and other candidates for the position of TCT Coordinator and
ultimately selected a candidate for that position. My opinion was that Ms. Chung did not
demonstrate the knowledge, skills and abilities required for the position. Ms. Chung was
not denied that position because of anything Sherry Kalbach said or did.”). Plaintiff fails to
direct the Court’s attention to any evidence that she was treated less favorably than others
interviewing for the position. The Court is fully cognizant of Plaintiff’s conclusory allegation
that she was treated unfavorably; but “the applicable standard is one of relative—and not
absolute—disfavor.” Toure v. United Nat. Foods, No. 12-cv-02790-RM-KLM, 2014 WL
2442962, at *9 (D. Colo. May 30, 2014) (internal quotation marks omitted). Accordingly,
absent evidence that she was treated unfavorably compared to similarly-situated
employees, the Court cannot find that Plaintiff has created a genuine issue of material fact
regarding whether she was treated less favorably.
Based on the foregoing, the Court finds that Plaintiff has failed to identify evidence
creating a genuine issue of material fact regarding her prima facie case of Title VII
discrimination. Accordingly, judgment shall enter on this claim in favor of Defendant.

-2626

B.

Title VII Retaliation
Plaintiff appears to argue that Defendant retaliated against her for filing her First

Charge with the EEOC in April 2013 by (1) failing to return her to the 6th Grade Reading
assignment she last held in SY 2012-13, and (2) failing to hire her as the MLF. The Court
addresses each in turn.
To establish a prima facie case of retaliation pursuant to Title VII, a plaintiff must
show that “(1) she engaged in protected opposition to discrimination; (2) she suffered an
adverse action that a reasonable employee would have found material; and (3) a causal
nexus exists between her opposition and the employer’s adverse action.” Durant v.
MillerCoors, LLC, 415 F. App’x 927, 932 (10th Cir. 2011) (quoting Montes v. Vail Clinic,
Inc., 497 F.3d 1160, 1176 (10th Cir. 2007)). Defendant’s argument here focuses solely on
the third element. Motion [#79] at 26-28; Reply [#88] at 25.
Defendant disputes that Plaintiff has provided evidence of a causal connection
between her protected act and the asserted retaliatory acts. Id. The Tenth Circuit Court
of Appeals has unequivocally stated that “the standard of causation for a Title VII retaliation
claim is ‘but for’ causation.”23 Doe v. Bd. of Cnty. Comm’rs of Payne Cnty., Okla., __ F.
App’x __, __, No. 14-6187, 2015 WL 3500019, at *3 (10th Cir. June 4, 2015) (citing Ward
v. Jewell, 772 F.3d 1199, 1203 (10th Cir. 2014)). Accordingly, Plaintiff must show that
there are factual disputes relating to whether, but for the filing of her First Charge, she
would have been returned to the 6th Grade Reading assignment and she would have been

23

The Tenth Circuit noted, without deciding, that the ruling of the United States Supreme
Court in University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013),
“suggests that a mixed-motive standard does not apply to any claims other than Title VII
discrimination claims.” Doe, 2015 WL 3500019, at *3 & *3 n.3.

-2727

hired as the MLF. Plaintiff is unable to meet this standard.
The circumstances addressed by the Tenth Circuit Court of Appeals in Ward v.
Jewell, 772 F.3d at 1199, are substantially similar to the facts presented here. The Ward
court first addressed the contours of the “but for” causation standard. 772 F.3d at 1203.
To establish a causal connection, Mr. Ward must present “evidence of
circumstances that justify an inference of retaliatory motive. If the protected
conduct is closely followed by the adverse action, courts have often inferred
a causal connection. Because Mr. Ward’s participation in the EEOC
proceedings took place years earlier, Mr. Ward must use “additional evidence
. . . to establish causation.” See Anderson v. Coors Brewing Co., 181 F.3d
1171, 1179 (10th Cir. 1999) (stating that a three-month period between the
protected conduct and the adverse action was too long for a fact-finder to
infer causation). To survive summary judgment, Mr. Ward had to present
“additional evidence” tying the adverse employment actions to Mr. Ward’s
participation in the EEOC proceedings. The Supreme Court has likened this
burden to a showing of “but-for causation.” The evidence of but-for causation
must be based on more than mere speculation, conjecture, or surmise.
Id. (most internal quotation marks and citations omitted). Here, Plaintiff’s First Charge was
filed in April 2013. [#1] at 8. The asserted retaliatory act of failing to return her to a 6th
Grade Reading assignment occurred in April 2014, approximately twelve months after the
filing of her First Charge. Decl. of Kalbach [#79-12] ¶ 21. Taking the evidence in a light
most favorable to Plaintiff as the non-movant, the asserted retaliatory act of failing to hire
her as the MLF occurred in August 2013, approximately four months after the filing of her
First Charge. Depo. of Brilliant [#79-5] at 4. Because the Tenth Circuit has held that a
three-month period between the protected conduct and the adverse action is too long for
a fact-finder to infer causation, see Anderson, 181 F.3d at 1179, Plaintiff must present
additional evidence tying the asserted adverse employment actions to the filing of her First
Charge in order to survive summary judgment. See Ward, 772 F.3d at 1203; see also
Meiners v. Univ. of Kan., 359 F.3d 1222, 1231 (10th Cir. 2004) (stating that a period of two-2828

to-three months between protected conduct and adverse employment action was not
sufficient alone to establish causation in Title VII failure-to-hire case); Richmond v. ONEOK,
Inc., 120 F.3d 205, 209 (10th Cir. 1997) (stating that a three-month period, standing alone,
is insufficient to establish causation).
Regarding the school district’s failure to hire her as the MLF, Plaintiff fails to direct
the Court’s attention to evidence in the record demonstrating that Mr. Swift, who she says
made the hiring decision, or anyone who interviewed her, was aware that Plaintiff filed the
First Charge. As the Tenth Circuit has stated, “[t]o establish a causal connection, [P]laintiff
must show that the individual[s] who took adverse action against [her knew] of [Plaintiff’s]
protected activity.” Ostler v. Anderson, 200 F. App’x 750, 752 (10th Cir. 2006). This
absence of evidence is fatal to her claim.
Regarding the failure to return her to a 6th Grade Reading assignment, Plaintiff had
been assigned to teach Drama for SY 2013-14, and Principal Kalbach’s decision to keep
her in that assignment for SY 2014-15 maintained the status quo. Ms. Strong retained her
position as a 6th Grade Reading teacher both before and after the First Charge was filed.
Decl. of Kalbach [#79-12] ¶ 13 (“I renewed Susan Strong’s contract for the 2012-2013
School Year and assigned her to teach 6th Grade Reading. I did so because Susan had
performed well in the 2011-2012 School Year, as reflected in her performance review.”);
id. ¶ 16 (discussing assignments in SY 2013-14); Depo. of Pl. [#79-4] at 181-82 (stating
that Ms. Strong taught 6th Grade Reading for SY 2014-15).
First, Plaintiff directs the Court’s attention to no evidence in the record that she was
slated to return to the 6th Grade Reading position before she filed the First Charge and that
this expectation or promise did not come to fruition after the filing of that Charge. See
-2929

Morgan v. Hilti, 108 F.3d 1319, 1324 10th Cir. 1997 (holding that there was no retaliation
when the employer issued poor attendance warnings both before and after the filing of the
plaintiff’s charge of discrimination); Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272
(10th Cir. 2001) (holding that the employer’s transfer of the plaintiff one month after it
learned of the plaintiff’s suit was insufficient evidence to demonstrate causation because
the employer presented evidence that it was contemplating the plaintiff’s transfer before it
learned of the suit, and stating that “[e]mployers need not suspend previously planned
transfers upon discovering that a Title VII suit has been filed, and their proceeding along
lines previously contemplated . . . is no evidence whatever of causality”).
Second, Plaintiff presents no evidence of causation—i.e., that the filing of her First
Charge in April 2013 affected Principal Kalbach’s decision a year later to retain Plaintiff to
teach Drama in SY 2014-15. Plaintiff had taught Drama the previous school year, and
giving her the 6th Grade Reading assignment that she preferred would have displaced
another teacher. In other words, “[a] reasonable fact-finder could not infer retaliation from
the decision to keep another employee in [her] job rather than replace [her] with someone”
else, i.e., Plaintiff, even if the position had been previously held by Plaintiff. See Ward, 772
F.3d at 1204 (holding that the plaintiff failed to demonstrate causation in a situation where
he argued that his employer should have demoted or fired the other employee and should
have given the plaintiff his previous supervisory responsibilities).24

24

Plaintiff attempts to direct the Court’s attention to an otherwise-unidentified exhibit titled
“Similarly Situated Assignment [R]equests Chung-Strong” in support of her argument that she was
better qualified than Ms. Strong for the 6th Grade Reading assignment and thus that Defendant
retaliated against her by failing to displace Ms. Strong so Plaintiff could have that assignment
instead. Response [#82] at 33. The Court has been unable to find a document with this title among
the more than 650 pages of unorganized exhibits submitted by Plaintiff in support of her Response.

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In short, because Defendant Kalbach’s decision to retain Plaintiff as a Drama
teacher for SY 2014-15 occurred a year after Plaintiff submitted the charge, causation may
not be inferred based on the timing of the decision, and Plaintiff has presented no other
evidence demonstrating the requisite “but-for” causation. See Ward, 772 F.3d at 1203.
“The evidence of but-for causation must be based on more than mere speculation,
conjecture, or surmise.” Id.
Thus, the Court finds that Plaintiff has failed to establish a prima facie case of
retaliation based either on Defendant’s failure to return her to the 6th Grade Reading
assignment or on Defendant’s failure to hire her as the MLF. Accordingly, Plaintiff has
failed to demonstrate that there is a genuine issue of material fact regarding the causation
element of her retaliation claim. Accordingly, judgment shall enter in favor of Defendant
on this claim.
IV. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that the Motion [#79] is GRANTED. Judgment shall enter

To the extent Plaintiff may be referring to the documents at Docket No. 82-33, these do not support
her argument. To the extent Plaintiff may be referring to the documents at Docket Nos. 82-61 and
82-65, these do not refer to SY 2014-15. To the extent Plaintiff may be referring to the documents
at Docket Nos. 82-59 and 82-60, these appropriately refer to SY 2014-15, but they only reference
Plaintiff’s self-reported qualifications and preferences, as well as those of another teacher named
Laura Deck (“Deck”). Ms. Strong is not mentioned in the documents at Docket Nos. 82-59 and 8260. To the extent Plaintiff may be referring to some other document not herein mentioned by the
Court, the Court reminds Plaintiff that it is her responsibility to direct the Court’s attention to
evidence in support of her case. See Fed. R. Civ. P. 56(c); Nielson, 17 F.3d at 1277 (stating that
pro se litigants must follow the same procedural rules that govern other litigants). Finally, the Court
notes that to the extent Plaintiff may be also be arguing that she should have been assigned to
teach reading instead of Ms. Deck, a SY 2013-14 7th Grade Reading teacher who was assigned
to teach 6th Grade Reading for SY 2014-15, Plaintiff has equally failed to present any evidence that
the submission of her First Charge to the EEOC a year prior had any impact on this decision.

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in favor of Defendant on all claims in this matter.
IT IS FURTHER ORDERED that the Final Pretrial Conference and Trial Preparation
Conference set for July 23, 2015 at 9:30 a.m. are VACATED.
IT IS FURTHER ORDERED that the Jury Trial set for August 10-14, 2015 is
VACATED.

Dated: July 21, 2015

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