Davidson-Seidel v. Denver Athletic Club, The

Filing 30

ORDER denying 9 Motion for Partial Summary Judgment; granting 17 Motion for Leave to Permit Further Discovery Pursuant to Fed.R.Civ.P. 56(d) by Judge Raymond P. Moore on 03/16/2016.(cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore

Case No. 15-cv-01336-RM-KMT
JUDIE DAVIDSON-SEIDEL,
Plaintiff,
v.
THE DENVER ATHLETIC CLUB,
Defendant.
______________________________________________________________________________
OPINION AND ORDER
______________________________________________________________________________
On June 23, 2015, plaintiff Judie Davidson-Seidel (“plaintiff”) filed a Complaint against The
Denver Athletic Club (“defendant”) (ECF No. 1), raising the following claims: (1) age
discrimination in violation of the Age Discrimination in Employment Act; (2) sex discrimination
under Title VII of the Civil Rights Act of 1964 (“Title VII”); (3) associational discrimination in
violation of the Americans with Disabilities Act (“the ADA”); (4) retaliation in violation of the
ADA; and (5) discrimination under the Colorado Anti-Discrimination Act. (ECF No. 1 at ¶¶ 32-77.)
Plaintiff’s claims are essentially premised upon defendant’s termination of her employment. (See
id. at ¶¶ 7-31.)
Pending before the Court are two separate, but related motions. First, two months after the
filing of the Complaint, defendant filed a motion for partial summary judgment as to plaintiff’s
claims under the ADA and Title VII (Claims 2-4) (“the motion for summary judgment”) (ECF No. 9)
and statement of undisputed material facts (ECF No. 9-1). Plaintiff filed a response to the motion

for summary judgment (ECF No. 16), and a response and additional facts to defendant’s statement
of undisputed material facts (ECF No. 16-1). Defendant then filed a reply (ECF No. 23) and a reply
statement of undisputed material facts (ECF No. 23-1).
Second, on the same day as filing her response to the motion for summary judgment, plaintiff
also filed a motion to defer ruling on the motion for summary judgment pursuant to
Fed.R.Civ.P. 56(d) (“the Rule 56(d) motion”) (ECF No. 17) and an affidavit in support of the
Rule 56(d) motion (“the affidavit”) (ECF No. 17-1). Defendant filed a response to the Rule 56(d)
motion (ECF No. 21), and plaintiff then filed a reply (ECF No. 26).
Because the Rule 56(d) motion requests that the Court defer ruling, or alternatively deny
without prejudice, the motion for summary judgment, the Court will address that motion first.
I.

Legal Standard for a Motion under Fed.R.Civ.P. 56(d)
Federal Rule of Civil Procedure 56(d) (“Rule 56(d)”), formerly Fed.R.Civ.P. 56(f)

(“Rule 56(f)”), provides as follows.
If a nonmovant shows by affidavit or declaration that, for specified reasons,
it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
“The crux of Rule 56(f) is that ‘summary judgment should be refused where the nonmoving
party has not had the opportunity to discover information that is essential to his opposition.’”
Hackworth v. Progressive Cas. Ins. Co., 468 F.3d 722, 732 (10th Cir. 2006) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 n.5, 106 S.Ct. 2505 (1986)) (alteration omitted). Further, the
Tenth Circuit has interpreted Rule 56(f) to require the summary-judgment nonmovant to “submit an
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affidavit identifying the probable facts not available and what steps have been taken to obtain these
facts and must explain how additional time will enable him to rebut movant’s allegations of no
genuine issue of fact.” Id. (quotation omitted).
II.

Discussion
Here, plaintiff has met her burden of identifying the probable facts not available, the steps

she has taken to obtain those facts, and how additional time may allow her to rebut defendant’s
submitted evidence. As an initial matter, plaintiff asserts that her need for additional discovery time
pertains to defendant’s summary judgment argument that it is a bona fide private membership club
under Title VII and the ADA. (ECF No. 17-1 at ¶ 4.)1 Plaintiff then identifies facts that are
unavailable; specifically, the following alleged facts: (1) defendant’s common practice of allowing
members to purchase guest passes, spa treatments, and dining services as gifts for guests, who then
use the same without being accompanied by a member; (2) local hotel managers purchasing
memberships for the sole purpose of obtaining guest passes to distribute to guests of their respective
hotels; and (3) defendant allowing outside, non-member organizations to use its facilities. (Id. at
¶¶ 8-10.)
Next, plaintiff asserts that her counsel has conducted an “independent investigation” and
obtained “some information that is relevant as to whether [defendant] qualifies for bona fide private
club status.” (Id. at ¶ 6.) Plaintiff asserts that this information is contained in her response to the
motion for summary judgment. (Id.) Perusing the response reveals the following about plaintiff’s
independent investigation. Plaintiff alleges that: defendant does not “significantly prescreen[ ]”

1

The sole basis for defendant’s motion for summary judgment is the allegation that it is a bona fide
private membership club, and thus, it is not an “employer” for purposes of Title VII and the ADA. (See
ECF No. 9 at 3-9.)

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membership applications; in the past ten years fewer than five applicants have been rejected; new
members rarely know their sponsoring member; and defendant’s director of membership finds
current members to act as a sponsor if a new member does not know a current member. (ECF No. 16
at 11.) Thus, it appears that plaintiff has not only taken steps to obtain facts, her counsel has actually
obtained at least a modicum of information related to her alleged facts.
Finally, plaintiff asserts that additional discovery is required in order for her to depose
defendant’s leadership about its membership practices and the use of its facilities, as well as
deposing other employees and securing documents from defendant. (ECF No. 17-1 at ¶¶ 5, 11.) In
the Rule 56(d) motion, plaintiff asserts that this additional discovery will allow her the opportunity
to obtain evidence that defendant’s stated membership rules are a “sham” and that defendant opens
up its facilities to public use. (ECF No. 17 at 2-3.) Plaintiff contends that this is “crucial” for
purposes of determining whether defendant is a bona fide private membership club. (Id. at 3.) To
assess whether this is the case, it is necessary to look at the underlying test for establishing an
entity’s bona fides.
Defendant asserts, and plaintiff does not dispute, that a non-employer for purposes of Title
VII and the ADA is an entity that is both tax exempt and a bona fide private membership club. (See
ECF No. 9 at 3; see generally ECF No. 16.) Plaintiff does not contest that defendant is a tax exempt
organization. (See generally ECF No. 16.) As discussed supra, the issue of whether defendant is
a bona fide private membership club is disputed, but the parties agree that the Court should apply
a three-part test set forth in the Equal Employment Opportunity Commission’s (“the EEOC”)
Compliance Manual (“the Manual”) in determining whether defendant is such a club. (See ECF No.
9 at 4; ECF No. 16 at 3-4.)

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The three-part test is as follows: (1) whether the entity is a club in the “ordinary sense of the
word”; (2) whether the entity is private; and (3) whether there are meaningful conditions of limited
membership. EEOC Compliance Manual, § 2-III.B.4.a.ii. The parties further agree that the EEOC’s
Manual provides further standards or definitions for assessing whether an entity is a club, whether
it is private, and whether it imposes meaningful conditions of membership. (See ECF No. 9 at 4-6;
ECF No. 16 at 5-6, 9.) Specifically, the EEOC Manual defines “club” as follows: “an association
of persons for social and recreational purposes or for the promotion of some common object …
usually jointly supported and meeting periodically, membership in social clubs usually being
conferred by ballot and carrying the privilege of use of club property.” EEOC Compliance Manual,
§ 2-III.B.4.a.ii.(a).
In determining whether an entity is private, the EEOC instructs to consider: (1) the extent to
which the entity’s facilities and services are limited to club members and their guests; (2) the extent
to which and manner that the entity is controlled or owned by membership; and (3) whether, and to
what extent and manner, the entity publicly advertizes to solicit members or to promote the use of
its facilities or services to the general public. Id. § 2-III.B.4.a.ii.(b). The presence or absence of any
one of these factors is not determinative. Id. In determining whether meaningful conditions of
limited membership are imposed, the EEOC instructs to consider the size of the membership,
including the existence of any size limitations, and membership eligibility requirements. Id.
§ 2-III.B.4.a.ii.(c).
Although the Court makes no finding as to whether the alleged facts that plaintiff believes
that she will uncover during discovery, even if all true, will rebut the motion for summary judgment,
arguably the alleged facts throw aspects of the EEOC’s three-part test into controversy. For

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example, plaintiff alleges that it is common practice for guests to use defendant’s facilities without
being accompanied by a member, that defendant allows outside non-members to use its facilities for
events, and that hotel managers purchase memberships in order to give guest passes to hotel guests.
If true, arguably, this may cast doubt on defendant’s assertion that it is a private club in that
defendant contends that it limits its facilities to members and invited guests, and said guests may
only use the facilities in the presence of a member. Plaintiff also alleges that, based on counsel’s
“independent investigation,” defendant’s new members rarely know their sponsoring member
personally. Again, arguably, this may cast doubt on defendant’s assertion that it imposes meaningful
conditions on membership, especially given that defendant relies on its bylaws for establishing its
meaningful conditions and plaintiff alleges that those bylaws are not observed in practice. (See ECF
No. 6-7; ECF No. 17-1 at ¶ 7.)
The Court observes that the alleged instances of, inter alia, outside non-member events and
guests using facilities without member accompaniment may prove to be isolated incidents, and thus,
less probative of defendant’s status as a private club, see E.E.O.C. v. Chicago Club, 86 F.3d 1423,
1436 (7th Cir. 1996), but, at this juncture, it is very hard to tell whether that is the case. Defendant
asserts in its response to the Rule 56(d) motion that plaintiff relies on isolated instances, and such
reliance cannot defeat its motion for summary judgment. (ECF No. 21 at 3-4.) Defendant misses
the point though. At present, without any discovery, plaintiff’s allegations appear to be isolated
instances of alleged deviations from defendant’s stated practices. That does not mean that, after
discovery, these isolated instances, to the extent they are actually isolated, will not be viewed as the
general practice.

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Defendant further argues in its response that plaintiff’s assertions are merely speculation
amounting to a “fishing expedition.” (ECF No. 21 at 3.) The Court disagrees. Plaintiff has
identified specific facts that she hopes to uncover in discovery. Thus, additional discovery would
hardly amount to a fishing expedition in its usual sense. See, e.g., Cuomo v. Clearing House Ass’n,
L.L.C., 557 U.S. 519, 531, 129 S.Ct. 2710 (2009) (“Judges are trusted to prevent ‘fishing
expeditions’ or an undirected rummaging through bank books and records for evidence of some
unknown wrongdoing.”); Miranda v. Integrity Solution Servs., Inc., 2014 WL 519239, at *1 (D.
Colo. Feb. 10, 2014) (explaining that “discovery cannot serve as a fishing expedition through which
plaintiff searches for evidence to support facts he has not yet pleaded.”) (quotation omitted). Here,
plaintiff’s request for discovery is not “undirected,” rather, based on the affidavit, it is directed at
defendant’s alleged practices which may indicate that it is not a private membership club.
Defendant also quibbles with plaintiff’s declaration that evidence related to the public’s
access to defendant’s facilities is “crucial” as to whether defendant is a private club. (See ECF No.
21 at 4-5.) Defendant argues that such evidence cannot be crucial because the EEOC has stated that
the presence or absence of any one of the three factors involved in whether a club is private is not
determinative. (Id. at 4.) Defendant’s summary of the EEOC guideline is accurate, but whether or
not the alleged evidence is crucial, in the sense that said evidence alone will decide whether
defendant is a private club,2 ignores the wider issue that the evidence could certainly play a part in
determining whether defendant is such. In other words, at the very least, the alleged facts in the
affidavit may bring into dispute the second and third factors in determining whether defendant is a
private entity, which would be more than the absence of any one factor.

2

Which it would not.

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The Court also notes that the motion for summary judgment was filed two months after this
case first began. The only Tenth Circuit case that the Court has found with a similarly short gap, and
actually a shorter gap, is Libertarian Party of New Mexico v. Herrera, 506 F.3d 1303, 1307 (10th
Cir. 2007). In that case, the defendant moved for summary judgment five weeks after the complaint
was filed. Id. The Tenth Circuit concluded that the district court did not abuse its discretion in
denying the plaintiff’s motion under Rule 56(f) because the accompanying affidavit did not identify
any specific facts that the plaintiff sought to uncover or how those facts would rebut the motion for
summary judgment. Id. at 1309 (stating that the affidavit merely recited the legal standard and the
need for general evidence). Here, plaintiff’s affidavit does far more than that. As discussed supra,
the affidavit sets forth specific facts for which discovery is needed. Although the affidavit does not
expressly discuss how those facts would rebut the motion for summary judgment, the affidavit does
state that the facts are relevant to defendant’s private club status and refers to plaintiff’s response to
the motion for summary judgment where plaintiff attempts to rebut the same. Ultimately, under the
circumstances here, where the EEOC states that inquiries into an entity’s private status should be
done on a case-by-case basis, see EEOC Compliance Manual, § 2-III.B.4.a.ii.(b), which necessarily
will involve conducting a fact-specific analysis, the motion for summary judgment was filed
prematurely when it was filed before discovery had begun.
As a result, the motion for summary judgment is DENIED WITHOUT PREJUDICE as
premature, and the Rule 56(d) motion is GRANTED.
III.

Conclusion
For the reasons set forth herein, the Court:

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(1)

DENIES WITHOUT PREJUDICE defendant’s motion for summary judgment (ECF
No. 9); and

(2)

GRANTS plaintiff’s Rule 56(d) motion (ECF No. 17).

The deadlines in the Scheduling Order (ECF No. 15) remain in full force and effect.
SO ORDERED.
DATED this 16th day of March, 2016.

BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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