Smith v. Board of Governors of the Colorado State University System

Filing 51

ORDER granting 36 Motion for Summary Judgment. By Judge Robert E. Blackburn on 3/9/17. (kfinn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 15-cv-00770-REB-KMT
RODNEY SMITH,
Plaintiff,
v.
BOARD OF GOVERNORS OF THE COLORADO STATE UNIVERSITY SYSTEM,
Defendant.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Blackburn, J.
This matter is before me on Defendant’s Motion for Summary Judgment
[#36]1 filed April 4, 2016. The plaintiff filed a response [#39], and the defendant filed a
reply [#40]. I grant the motion.
I. JURISDICTION
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question) &
§ 1367 (supplemental jurisdiction).
II. STANDARD OF REVIEW
The purpose of a summary judgment motion is to assess whether trial is
necessary. White v. York Int’l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary
judgment is proper when there is no genuine dispute as to any material fact and the

1

“[#36]” 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.

movant is entitled to judgment as a matter of law.2 FED. R. CIV. P. 56(a); Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (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 (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 (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 issue of fact. 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. Concrete Works, 36 F.3d at 1518. All 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) (abrogated on other grounds, Martinez v.
Potter, 347 F.3d 1208, 1210 - 1211 (10th Cir. 2003); Eisenhour v. Weber Cnty., 744
F.3d 1220, 1227 (10th Cir. 2014)). 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

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The issues raised by and inherent to the motions for summary judgment are fully briefed,
obviating the necessity for evidentiary hearing or oral argument. Thus, the motions stand submitted on the
papers. Cf. FED. R. CIV. P. 56(a). Geear v. Boulder Cmty. Hosp., 844 F.2d 764, 766 (10th Cir.1988)
(holding that any hearing requirement for summary judgment motions is satisfied by court's review of
documents submitted by parties).

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S.Ct. 334 (1999); Nutting v. RAM Southwest, Inc., 106 F.Supp.2d 1121, 1123 (D.
Colo. 2000).
III. BACKGROUND
The plaintiff, Rodney Smith, an African American male, began his employment
with the Colorado State University Police Department (CSU PD) in January 1991. In
2002, Mr. Smith received a promotion to Police Officer II (Corporal). Mr. Smith alleges
he began to suffer from a hostile work environment beginning in 2003. He alleges the
harassment was motivated by his race and culminated in an effort to have him
terminated from his employment.
In 2003, CSU PD hired Dexter Yarbrough, an African American male, to serve as
its Chief of Police. Throughout his tenure, Chief Yarbough was overheard using a
handful of different racial slurs. In the mid-2000s, at a meeting not attended by Mr.
Smith, Chief Yarbough referred to plaintiff as “the ‘N’ word.” Response [#39], Exhibit 1
[#39-1], CM/ECF p 48. In 2006, during an hiring interview for Sergeant Jon Falbo, a
non-African American applicant, Chief Yarbough once again used the “N-word.”
Response [#39], Exhibit 2 [#39-2], CM/ECF pp 1–3. Finally, Chief Yarbough often
referred to Fort Collins as “vanilla valley,” due to its lack of racial minorities. Response
[#39], Exhibit 4 [#39-4], CM/ECF p 1.
Mr. Smith believes he became a target of Chief Yarbough, beginning in 2008,
because information Mr. Smith provided to his supervisor was used to initiate an internal
investigation into three CSU PD officers. Response [#39], Exhibit 1 [#39-1], CM/ECF pp
42–44. At the end of the investigation, Chief Yarbrough promoted all three officers
involved despite evidence one had done something improper and that officer asked the
other two officers to lie for him. Response [#39], Exhibit 5 [#39-5], CM/ECF pp 2–5.
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One of the three officers, Sergeant Aaron Turner, who held the rank of officer at the
time, refused to lie for the other officer. Id.
In relation to the internal investigation, Chief Yarbrough wrote a memo to the
CSU interim president complaining that the human resources investigator contracted to
review the internal CSU PD investigation discriminated against Chief Yarbrough and
Captain Frank Johnson based on their African American race. Response [#39], Exhibit
3 [#39-3], CM/ECF pp 9–11. In 2009, Chief Yarbrough was investigated for incidents of
misconduct unrelated to the previous internal investigation or racial discrimination.
Response [#39], Exhibit 6 [#39-6], CM/ECF pp 11–12. In March 2010, Chief Yarbrough
was terminated by CSU for misconduct.
Mr. Smith describes other instances where he believes his race may have played
a contributing factor. After being promoted in 2002, Mr. Smith claims he was frequently
passed over for promotion or eliminated early on in the promotion process. Response
[#39], Exhibit 1 [#39-1], CM/ECF pp 42–44. Sometime in either 2011 or 2012, Mr.
Smith received a negative performance report which was left visible for other officers to
read while Mr. Smith was on vacation. Id. p 52. Additionally, Mr. Smith felt harassed
when he received a disciplinary warning, referred to as a write-up, for not responding to
assist on an arson and failing to save his investigative reports after making corrections.
Id. pp 46–47, 52. Moreover, during a training event sometime between 2010 and 2013
Mr. Smith was called a “monkey” by a fellow officer. Id. p 35. Finally, in 2013, Captain
Johnson, the only other African American officer at CSU PD, warned Mr. Smith not to
“get pushed out” of CSU PD and to leave on his own terms. Id. p 45.
Matters came to a head in June 2013, when Mr. Smith attempted to qualify on his
duty weapon. As a police officer, Mr. Smith was required to qualify with his duty weapon
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on an annual basis as part of his job duties. To qualify, all CSU PD officers had to pass
the Peace Officer Standards and Training (POST) Certification course. The POST
handgun qualification course consisted of nine different timed phases. The shooter was
required to hit the target from various designated distances and perform specific
movements while firing. All twenty-five rounds had to hit the silhouette of the target.
The number of qualification attempts was at the discretion of the CSU PD. Response
[#39], Exhibit 6 [#39-6], CM/ECF p 6.
In May and June 2013, Mr. Smith attempted to meet the requirements of the
POST course on four different days, completing a total of twelve attempts. On May 7,
2013, Mr. Smith was afforded three attempts and failed to meet the requirements. On
June 11, 2013, Mr. Smith was provided remedial training and an additional four
attempts. Notwithstanding, he failed to qualify. During his second qualification attempt
on June 11, 2013, Mr. Smith’s firearm suffered a malfunction as a result of the ammo
possibly being loaded in the magazine backwards. Response [#39], Exhibit 8 [#39-8],
CM/ECF p 3. On June 14, 2013, Mr. Smith was once again provided remedial training
and an additional four attempts to qualify. On June 17, 2014, Mr. Smith was provided
remedial training and one final opportunity to qualify on his firearm. Again, he failed to
qualify.
During this time period the CSU PD firearm instructors were Officer Clint
Schnorr, Sergeant Falbo, and Sergeant Turner (the instructors). Sergeant Turner was
involved in the internal investigation in 2008. Response [#39], Exhibit 5 [#39-5],
CM/ECF pp 2–3. Additionally, Sergeant Falbo, Response [#39], Exhibit 2 [#39-2],
CM/ECF p 1, and the Chief of CSU PD, Lowell Harris, were hired by former Chief
Yarbrough, Response [#39] ¶ 34.
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Mr. Smith does not claim the instructors discriminated against him on May 7,
June 11, 2013, or June 17, 2014. He does assert that on the third day, June 14, 2013,
the instructors intentionally discriminated against him and were responsible for his
failures to qualify. On June 14, 2013, Mr. Smith attended remedial training with Officer
Michelle Igne, a non-African American female. During the remedial training and
subsequent qualification attempts, Mr. Smith and Officer Igne both encountered
malfunctions with their firearms. On the first qualification attempt, Mr. Smith was unable
to fire all the required rounds because he loaded the wrong caliber of ammunition into
his weapon. Mr. Smith loaded a .40 caliber round into his 9mm magazine. Response
[#39], Exhibit 8 [#39-8], CM/ECF p 4. On the second attempt Mr. Smith once again
failed to fire all the required rounds because he loaded an empty magazine into his
firearm and once again loaded a .40 caliber round into his 9mm magazine. Id. During
the third attempt, Officer Igne suffered a malfunction with her firearm that required the
instructors to clear the firing line. Id. at 5. The malfunction was a result of Officer Inge
loading a 9mm round into her .40 caliber magazine. Id. Up until the time the firing line
had to be cleared on the third attempt, Mr. Smith had successfully fired all his rounds
into the silhouette. Id. Mr. Smith alleges the instructors intentionally gave him a mix of
9mm and .40 caliber ammo. Complaint [#1] ¶ 20. Moreover, Mr. Smith asserts he was
treated differently from Officer Igne for the same mistake of loading the wrong
ammunition. Response [#39] p 16.
Prior to his fourth attempt on June 14, the instructors provided Mr. Smith with a
new box of 9mm ammunition, time to calm down, and an opportunity to practice.
Response [#39], Exhibit 8 [#39-8], CM/ECF p 5. On the fourth attempt at the course of
fire, Mr. Smith placed all twenty-five shots within the silhouette; however, the instructors
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determined he failed to take the required three steps backward during the final phrase.
Mr. Smith contends he did take the required steps back. Mr. Smith claims after the
course of fire none of the instructors said anything until Sergeant Falbo walked behind
Mr. Smith, made a gesture to the other instructions, and then told plaintiff he did not
take the required three steps. Response [#39], Exhibit 1 [#39-1], CM/ECF pp 29–30.
Officer Schnoor counted the hits on the target. Id. at 49–50. Sergeant Turner
contacted Chief Harris, who was a Lieutenant at the time, via phone. Response [#39],
Exhibit 9 [#39-9], CM/ECF pp 1. The instructors then conversed with each other.
Response [#39], Exhibit 2 [#39-2], CM/ECF p 11. Mr. Smith believes the instructors
conspired to deny him POST certification to have him terminated because of his race.
Response [#39] p 17. Moreover, Mr. Smith asserts he was treated differently from
other non-African American officers he previously witnessed qualify who did not take the
required three steps. Response [#39], Exhibit 1 [#39-1], CM/ECF pp 10–12, 22.
At some unknown point during his remedial firearms training, Mr. Smith was
placed on administrative leave. Response [#39], Exhibit 6 [#39-6], CM/ECF p 6. His
weapon was confiscated by CSU PD. Response [#39], Exhibit 2 [#39-2], CM/ECF p 8.
Therefore, for an unknown period of time Mr. Smith did not have control of his firearm.
Response [#39] ¶ 26. Prior to the final qualification attempt on June 17, 2015, Sergeant
Falbo told Mr. Smith he had disassembled Mr. Smith’s weapon in order to clean it.
Response [#39], Exhibit 1 [#39-1], CM/ECF p 6. After the failure to qualify on June 17,
2013, Chief Harris referred plaintiff to the CSU Human Resources department for
retention consideration. Response [#39], Exhibit 6 [#39-6], CM/ECF p 9.
On June 21, 2013, CSU PD asked Fort Collins Police to conduct a basic firearms
skills assessment of Mr. Smith. Response [#39], Exhibit 8 [#39-8], CM/ECF p 8. CSU7

PD did not provide the Fort Collins Police any background on the firearm history of the
Mr. Smith. Id. During the assessment, the slide of Mr. Smith’s firearm did not lock to
the rear as expected during a combat reload. Id. at 9. It is unknown if this was as a
result of the actions of the Mr. Smith or an equipment failure. Id. Although the
assessment was not a qualification attempt, Mr. Smith did shoot the POST Certification
course of fire. Response [#39], Exhibit 6 [#39-6], CM/ECF pp 8–9. Mr. Smith was
unable obtain a passing score during the POST course of fire for two reasons.
Response [#39], Exhibit 8 [#39-8], CM/ECF p 9. First, he was not able to fire one of the
required rounds because the firearm slide did not lock to the rear, which resulted in a
delay of the combat reload. Id. Second, one of the fired rounds missed the silhouette.
Id. After the firearms skills assessment, CSU Human Resources requested that the
Larimer County Sheriff’s Office examine Mr. Smith’s weapon to ensure it was in good
working order. Response [#39], Exhibit 10 [#39-10], CM/ECF p 3. The weapon was
determined to be fully functional. Id.
Mr. Smith was terminated from his employment on August 28, 2013. Id. at 1.
Defendant says it terminated Mr. Smith because he failed to meet the annual
requirement for POST Certification after bring allowed numerous attempts. Id. POST
Certification was a requirement for the position of officer with CSU PD because of the
need for officers to be able to respond to stressful situations and use their firearm if
necessary. Id. In response to Mr. Smith’s allegations that he was intentionally provided
a mix of caliber ammunition, defendant provided the POST Certification manual which
states, “Ammunition management is the shooter’s responsibility.” Id. at 3. Additionally,
the CSU Human Resources Associate Director noted someone unfamiliar with

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ammunition would be able to distinguish the difference between .40 caliber and 9mm
ammunition. Id.
The defendant notes that Mr. Smith, during his deposition testimony, provided a
different reason, aside from race, as to why the instructors denied him POST
Certification on June 14, 2016. Motion [#36], Exhibit A [#36-1], CM/ECF pp 46–51. In
his deposition, Mr. Smith testified he believed the instructors received a directive from
Chief Harris to not qualify plaintiff because Chief Harris wanted plaintiff terminated. Id.
Mr. Smith alleges Chief Harris wanted plaintiff terminated because other officers in the
CSU PD had complained about plaintiff having a higher salary than higher ranking
officers due to his time in service. Id. However, the other officers also complained
about another similarly situated non-African American officer in the CSU PD. Id.
Chief Harris, Sergeant Falbo, and Officer Schnorr all testified that Mr. Smith was
not proficient as an officer. Response [#39], ¶ 35. Sergeant Falbo concluded that Mr.
Smith should have been terminated before August 2013. Id. Chief Harris felt Mr. Smith
was a liability to the university. Response [#39], Exhibit 6 [#39-6], CM/ECF p 8.
In his complaint, Mr. Smith asserts a claim of hostile work environment based on
race under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e and the Civil
Rights Act of 1866, 42 U.S.C. § 1981.3 He alleges the instructors sought to oust him
from the CSU PD because of his race. Complaint [#1], ¶ 21.
IV. ANALYSIS
A claim for hostile work environment requires proof sufficient for a “rational jury
[to] find that the workplace [was] permeated with discriminatory intimidation, ridicule,

3

A separate claim for infliction of emotional distress was dismissed by stipulation. Order
Dismissing Claim [#35] filed February 16, 2016.

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and insult, that [was] sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment.” MacKenzie v. City
and County of Denver, 414 F.3d 1266, 1280 (10th Cir. 2005) (quoting Penry v.
Federal Home Loan of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998), cert. denied,.
119 S.Ct. 1334 (1999)) (internal quotation marks omitted; alterations in original). This
standard is designed to “filter out complaints attacking the ordinary tribulations of the
workplace, such as the sporadic use of [racial] jokes, and occasional teasing,” and,
thus, to prevent Title VII from becoming “trivialized as a civility code.” Id. Whether this
standard is met requires consideration of the totality of the circumstances, including: “(1)
the frequency of the discriminatory conduct; (2) the severity of the conduct; (3) whether
the conduct is physically threatening or humiliating, or a mere offensive utterance; and
(4) whether the conduct unreasonably interferes with the employee's work
performance.” Id. In addition, the environment must be both objectively and
subjectively hostile or abusive. Id.
Mr. Smith contends former CSU PD Chief Yarbrough’s use of racial epithets from
2003–2010 reflects a hostile work environment. Further, Mr. Smith claims the hostility
and criticism he received from his fellow officers from 2010–2013 reflects a hostile work
environment. Finally, Mr. Smith asserts that in 2013, he suffered a singular and severe
act of discrimination sufficient to establish a hostile work environment when he was
denied POST certification and, ultimately, his employment was terminated.
Even if I consider all comments allegedly attributable to former Chief Yarbrough,
those comments are insufficient as a matter of law to create a genuine issue of material
fact as to the pervasiveness of the harassment in the work environment. The evidence
provided fails to meet the standard of showing “more than a ‘few isolated incidents of
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racial enmity’” that is required to make an actionable hostile work environment claim.
Paris v. Southwestern Bell Telephone Co., 94 F. App’x 810, 814 (10th Cir. 2004),
cert. denied, 125 S.Ct. 619 (2005) (quoting Trujillo v. Univ. of Colo. Health Science
Center, 157 F.3d 1211, 1214 (10th Cir. 1998). Instead, Mr. Smith relates a handful of
racially insensitive comments he never heard himself over a period of more than seven
years. Such sporadic comments, while not laudable, will not support a claim for hostile
work environment. Id. Moreover, Mr. Smith fails to demonstrate a persuasive nexus
between the handful of comments made by former Chief Yarbrough and the instructors
who denied Mr. Smith POST certification three years after the termination of Chief
Yarbrough.
Mr. Smith has failed to present any evidence that the hostility and criticism he
received from his fellow officers between the years of 2010 and 2013 were motivated by
racial animosity, as opposed to mere personal animosity. Personal animosity not
motivated by unlawful discrimination is not actionable. See Bolden v. PRC Inc., 43
F.3d 545, 551 (10th Cir. 1994), cert. denied, 116 S.Ct. 92 (1995); Klen v. Colorado
State Board of Agriculture, 2007 WL 2022061 at *19 (D. Colo. July 9, 2007). None of
the hostility and criticism described by Mr. Smith included any overt racial comments.
At best, Mr. Smith’s evidence shows nothing more than “the run-of-the-mill . . . annoying
behavior that is not uncommon in American workplaces,” but which “is not the stuff of a
Title VII hostile work environment claim.” Morris v. City of Colorado Springs, 666
F.3d 654, 664 (10th Cir. 2012). Even if these actions included a latent racial motivation,
the evidence in the record does not show that these actions unreasonably interfered
with Mr. Smith’s work.

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Finally, Mr. Smith claims he was denied POST certification due to the racial
animosity of the instructors and Chief Harris. Mr. Smith claims the denial of POST
certification because he failed to take three steps backward on the final phase was a
singular and severe act of discrimination sufficient to establish a hostile work
environment. However, the only evidence provided of discriminatory racial animosity is
plaintiff’s own conclusory statements that he was treated less favorably at the firing
range than other non-African American officers similarity situated. Other than his
conclusory statements, Mr. Smith has not presented evidence that the instructors or
Chief Harris conspired against him because he was African American. Mr. Smith
asserts that the instructors may have tampered with his firearm or intentionally provided
him with the wrong ammunition. He claims these actions led to the malfunctions that
prevented him from qualifying. However, Mr. Smith fails to present any direct evidence
that the instructors were involved in such conduct. Mr. Smith’s uncircumstantiated
suspicions do not constitute evidence sufficient to show the existence of a genuine
issue of material fact for trial.
V. CONCLUSION & ORDERS
The evidence, viewed in the light most favorable to Mr. Smith, does not support a
conclusion that a reasonable fact finder could view these events, singly or in
combination, as sufficiently severe or pervasive to create a hostile working environment.
Further, Mr. Smith has presented no credible evidence that the relevant decision
makers acted with an improper racial motive. Thus, the defendant is entitled to
summary judgment.

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THEREFORE, IT IS ORDERED as follows:
1. That the Defendant’s Motion for Summary Judgment [#36] filed April 4,
2016, is granted;
2. That the claim of the plaintiff in his complaint [#1] is dismissed with prejudice;
3. That judgment shall enter in favor of the defendant, Board of Governors of the
Colorado State University System, and against the plaintiff, Rodney Smith;
4. That the combined Final Pretrial Conference and Trial Preparation
Conference set March 22, 2017, and the jury trial set to begin April 10, 2017, are
vacated;
5. That the 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;
and
6. That this case is closed.
Dated March 9, 2017, at Denver, Colorado.
BY THE COURT:

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