Equal Employment Opportunity Commission v. Columbine Management Services, Inc. et al.

Filing 88

OPINION AND ORDER granting in part and denying in part 64 Motion for Partial Summary Judgment, and denying 63 Motion for Summary Judgment on the Only Claim Involving Marlene Hoem, by Chief Judge Marcia S. Krieger on 9/19/17. The three Motions to Restrict ( 71 , 81 , and 86 ) are granted in part and denied in part. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 15-cv-01597-MSK-CBS
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
COLUMBINE HEALTH SYSTEMS, INC.; and
THE WORTHINGTON, INC., d/b/a New Mercer Commons Assisted Living Facility,
Defendants.

OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND
MOTIONS TO RESTRICT

THIS MATTER comes before the Court on cross Motions for Summary Judgment:
Defendants Columbine Health Systems (“Columbine”) and The Worthington, Inc. d/b/a New
Mercer Commons Assisted Living Facility’s (“New Mercer,” and collectively with Columbine,
“Defendants”) Motion for Summary Judgment on the Only Claim Involving Marlene Hoem
(#63); and Plaintiff Equal Employment Opportunity Commission’s (“EEOC”) Motion for Partial
Summary Judgment (#64). Responses (##76, 77) and Replies (##82, 83) were filed to both
motions. Also before the Court are three unopposed Motions to Restrict (##71, 81, 86), which
were filed by Defendants.
I.

Jurisdictional Statement
The EEOC asserts claims under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §

2000e et seq.). Federal question jurisdiction exists pursuant to 28 U.S.C. § 1331.

1

II.

Factual Summary
The following is a summary of the relevant facts viewed most favorably to the non-

movants. More detail will be provided as needed in the Court’s analysis.
Columbine manages several senior citizen facilities, including New Mercer, an assisted
living facility in Fort Collins, Colorado. The parties dispute whether Columbine and New
Mercer are part of a single integrated enterprise, which – for the reasons explained below – is not
an issue that is necessary to resolve in conjunction with this motion. However, in construing the
facts most favorably to the non-movant, the Court will refer to Columbine and New Mercer
collectively.
Prior to 2008, the Defendants employed four Black as Personal Care Providers (“PCPs”)
(the claimants) at New Mercer. All came from Africa. Kiros Aregahgn is from Ethiopia, and
Mohamed Osman Mahgoub, Sawson Ibrahim, and Hanaa Gual are from Sudan. Marlene Hoem,
a Caucasian, was their supervisor.
In mid-2008, the Defendants hired Paula Lewis to oversee New Mercer. Shortly after
Ms. Lewis was hired, she had a conversation with Ms. Hoem about the claimants. According to
Ms. Hoem, Ms. Lewis told her that New Mercer “had to get rid of ‘these people,’ because they
just can’t speak English.” Ms. Hoem believed these comments were discriminatory and
expressed her disagreement with them to Ms. Lewis. In September 2008, Ms. Lewis suggested
that Ms. Hoem demote one of the African employees, but Ms. Hoem refused to do so.
Defendants terminated Ms. Hoem’s employment a week later, citing her failure to comply with
this directive as one – although not the only – reason for terminating her employment.
In early 2009, Defendants imposed a new requirement that PCPs complete a training
course and pass a written examination (the “PCP Exam”). The training course and examination

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were conducted in English. The four African claimants completed the course, but each received
a score below 75 percent on the examination. As a result in May 2009, the Defendants
terminated their employment.
The claimants timely filed EEOC complaints, the EEOC conducted an investigation and
brought this lawsuit. Its Amended Complaint (#18) asserts three claims: (1) unlawful
discrimination by disparate treatment based on race and/or national origin; (2) unlawful
discrimination by disparate impact based on race and/or national origin; and (3) unlawful
retaliation in termination of Ms. Hoem’ s employment. Both parties filed motions for partial
summary judgment.
III.

Standard of Review
Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if

no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995). A trial
is required if there are material factual disputes to resolve, thus entry of summary judgment is
authorized only “when there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Savant Homes, Inc. v. Collins,
809 F.3d 1133, 1137 (10th Cir. 2016).
A fact is material if, under the substantive law, it is an essential element of the claim. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the
conflicting evidence would enable a rational trier of fact to resolve the dispute for either party.
Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013).
Substantive law governs which facts are material and what issues must be determined. It
also specifies the elements that must be proved for a given claim or defense, sets the standard of
proof, and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477

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U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v. Producer’s Gas Co., 870 F.2d 563, 565 (10th
Cir. 1989). A factual dispute is “genuine” if the evidence presented in support of and in
opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for
either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a
court views all evidence in the light most favorable to the non-moving party, thereby favoring
the right to a trial. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013); Garrett v.
Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
If the movant has the burden of proof on a claim or defense, the movant must establish
every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P.
56(c). Once the moving party has met its burden to establish a genuine dispute, the responding
party must present competent and contradictory evidence as to a material fact. See Celotex Corp.
v. Catrett, 477 U.S. 317, 322–23 (1986); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir.
1999); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991).
When the moving party does not have the burden of proof on the pertinent issue, it may
point to an absence of sufficient evidence to establish a claim or defense that the non-movant is
obligated to prove. Once the movant has done so, the respondent must come forward with
sufficient competent evidence to establish a prima facie claim or defense to justify a trial. If the
respondent fails to produce sufficient competent evidence to establish its claim or defense, the
claim or defense will be dismissed as a matter of law. See Celotex, 477 U.S. at 322–23.
This case involves motions for summary judgment filed by both sides. Because the
determination of whether there is a genuine dispute as to a material factual issue turns upon
which party has the burden of proof and whether adequate evidence has been submitted to
support a prima facie case or establish a genuine dispute as to material fact, each motion is

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evaluated independently. Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138,
1148 (10th Cir. 2000); Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979); In re
Ribozyme Pharms., Inc., Sec. Litig., 209 F. Supp. 2d 1106, 1112 (D. Colo. 2002).
IV.

EEOC’s Motion for Partial Summary Judgment
The EEOC seeks summary judgment on 1) its claim for unlawful discrimination based on

disparate impact; 2) on a discrete issue – whether Columbine and New Mercer are part of an
“integrated enterprise” with over 500 employees; and 3) on four of Defendants’ affirmative
defenses. The Court addresses each in turn.
A. Disparate Impact Claim
Title VII forbids not only intentional racial discrimination but also “practices that are fair
in form, but discriminatory in operation,” which is often described as “disparate impact”
discrimination. Hilti, Inc., 703 F.3d at 1220 (citing Lewis v. City of Chicago, 560 U.S. 205, 211
(2010)); see 42 U.S.C. § 2000e-2(k). The disparate impact theory seeks to remove employment
obstacles which create “built-in headwinds and freeze out protected groups from job
opportunities and advancement,” unless those obstacles are required by business necessity. Hilti,
703 F.3d at 1220 (citing EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 123, 1274 (11th Cir. 2000)).
To establish a prima facie claim for disparate impact, a plaintiff must come forward with
evidence that shows that (i) an employer’s employment practice (ii) disparately impacted a
protected group of employees. Hilti, 703 F.3d at 1220. If the plaintiff makes this prima facie
showing, the burden shifts to the defendant to demonstrate that the challenged practice is “job
related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e2(k)(1)(A)(i); Hilti, 703 F.3d at 1220. If such showing is made, the burden returns to the
plaintiff to demonstrate that an available alternative employment practice would serve the

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employer’s legitimate business needs and cause a less severe disparate impact. Ricci v.
DeStefano, 557 U.S. 557, 578 (2009); see 42 U.S.C. § 2000e-2(k)(1)(A)(ii).
As to the first element, there is no dispute that Columbine and/or New Mercer first
required passage of the PCP examination as a condition of employment. This undoubtedly
qualifies as an employment practice. The question becomes whether there is evidence that it had
a disparate impact on a protected group.
A prima facie showing of disparate impact is “essentially a threshold showing of a
significant statistical disparity… and nothing more.” Ricci, 557 U.S. at 587; Carpenter v. Boeing
Co., 456 F.3d 1183, 1196 (10th Cir. 2006). Although no specific mathematical formulation is
required, statistical disparities between non-protected and protected groups must be substantial to
raise an inference of causation. Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994-95
(1988). To determine whether the Plaintiffs’ statistical evidence is sufficient, the Court
considers three factors: (1) the size of the disparity between the pass/fail rates of different groups
of test takers; (2) the statistical significance of the disparity; and (3) whether the statistical
evidence isolates the challenged employment practice as the cause. Hilti, 703 F.3d at 1222.
The size of the disparity between (a) the employees of the protected group enjoying a job
or job benefit; and (b) the total composition of the employees enjoying that job or benefit must
be significant. Carpenter, 456 F.3d at 1193, 1202. The EEOC guidelines suggest that a
disparity of 20 percent or more in selection rate will be considered evidence of adverse impact in
a disparate impact claim. 29 C.F.R. § 1607.4(D). Although not controlling, this guideline often
acts as a general rule of thumb. See Hilti, 703 F.3d at 1223; see also Watson, 487 U.S. at 995.
The second factor, statistical significance, measures the likelihood that the disparity
between the groups is random. Hilti, 703 F.3d at 1223. Statistical significance is expressed in

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terms of standard deviations. The Supreme Court has recognized that a disparity of more than
two or three standard deviations makes it unlikely that the disparity occurred randomly. Id.
(quoting Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 n.14 (1977))
The third factor is whether the statistical evidence isolates the specific employment
practice as the cause of the disparity. Watson, 487 U.S. at 994. A plaintiff must show that the
challenged practice results in the disparate impact by eliminating factors other than the
challenged practice that might contribute to the disparity. See Wards Cove Packing Co. v.
Atonio, 490 U.S. 642, 657 (1989). This becomes necessary when the employer uses the
challenged practice along with subjective criteria to make the employment decision. Hilti, 703
F.3d at 1224.
The Defendants contend that the EEOC has not come forward with sufficient statistical
evidence to show that the PCP Exam had a disparate impact on employees of a protected race
(Black/African-American) or of a protected national origin (African).1 Under the circumstances
of this case, it is not necessary to distinguish between race and national origin because all four
claimants are both Black and of African descent. The EEOC’s statistical evidence includes test
results for the four claimants and six other individuals identified as African and/or Black by Dr.
Thomas Haladyna in his report. A spreadsheet shows the PCP Exam results for all African
exam-takers. Four out of seven exam-takers of African origin, and four out of nine exam-takers
who are Black, failed the PCP Exam. In comparison, only one of 138 exam-takers who were
White, Hispanic, or belonged to other races failed the PCP Exam.

1

The Court previously rejected Defendants’ argument that “African” cannot be considered
a protected national origin for the reasons found in the Magistrate Judge’s Recommendation
(#54) on Defendants’ Motion to Dismiss (#20).
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Dr. Haladyna initially opined that the selection rate for African exam-takers (which he
referred to as the “boundary rule”) was less than four-fifths (or eighty percent) of the rate for all
exam-takers. In a supplemental report he specified a pass rate of 42.8 percent for African examtakers, 55.6 percent for Black exam-takers, 99.3 percent for White exam-takers, and 100 percent
for Hispanic exam-takers. Dr. Haladyna found the disparity in results of 6.78 standard
deviations between the groups to be significantly significant.
Taken as true, this evidence is sufficient to establish a prima facie disparity in test results
for the protected groups. The Defendants contend, however, that Dr. Haladyna’s conclusions
are unreliable because that the statistical sample used was too small. For this proposition, they
rely on the opinion of Dr. Harpe.
Dr. Harpe does not contradict Dr. Haladyna’s mathematical findings. She does not
contest that, in terms of the size of the disparity, the statistical data fails the four-fifths guideline
nor that Dr. Haladyna’s miscalculated the standard deviation. Instead, Dr. Harpe criticizes the
small sample size for Black or African PCPs, as well as Dr. Haladyna’s decision to include or
exclude various test-takers from the analysis. For example, Dr. Harpe notes that 39 test-takers
were excluded from analysis because not enough was known about their race or ethnicity; she
asserts that given the small sample size of the “African” subgroup, if any of those excluded
individuals did fall within that category, they could significantly affect the analysis.
Most prominently, Dr. Harpe invokes the so-called “flip-flop” rule, which is federal
regulatory guidance promulgated (in part) by the EEOC that purportedly holds that in situations
involving extremely small sample sizes, if a single hypothetical individual is subtracted from the
group with the higher selection rate and added to the group with the lower rate, and the
hypothetical recalculated standard deviation results in the reversal of an adverse impact

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determination (i.e., it is less than two or three standard deviation), there is a relatively high
likelihood that the difference in selection rates is a random one. See: Howe v. City of Akron, 789
F. Supp. 2d 786, 801 (N.D. Ohio 2010); see also Bazile v. City of Houston, 858 F. Supp. 2d 718,
739-40 (S.D. Tex. 2012). Her analysis under this principle essentially consists of two parts.
First, Dr. Harpe opines that the scores of two of the African exam-takers, Mr. Mahgoub
and Ms. Ibrahim, should be excluded. She relies on a memo drafted by Penny Rubala,
Defendants’ Director of Clinical Education, in which Ms. Rubala recorded that “during all three
days of PCP class [including the quiz] Mohamed [Mahgoub] and Sawsan [Ibrahim] were
cheating. This was demonstrated by [Ibrahim] holding her hand up by her face and then looking
at her husband[’]s quiz as he was completing answers and further by [Mr. Mahgoub] whispering
under his breath in his native language to [Ms. Ibrahim].” Therefore, Dr. Harpe removes their
scores from the data and makes calculations as to the size of the disparity and the statistical
significance based on these removals from the populations in question (i.e., two failures out of
five African, and seven Black, PCPs). Those calculations show standard deviations between two
and three for both groups – in other words, right on the borderline of statistical significance.
Then, Dr. Harpe invokes the flip-flop rule to show that if one removes a single failure
and adds a single hypothetical individual to the passing category, and recalculates the standard
deviations, those standard deviations drop below two for both the African and Black categories.
As such, according to her opinion, the sample size is too small for Dr. Haladyna’s statistical
results to be statistically significant (or at least statistically useful). The EEOC does not address
the flip-flop rule specifically but instead broadly contends that Dr. Haladyna’s methodology is
perfectly appropriate, and that courts commonly accept similarly small population sizes when
undertaking the disparate impact analysis. The EEOC cites a number of cases in which a similar

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statistical analysis apparently was used on a similarly small group, though it does not address the
flip-flop rule or indicate whether that rule was applied in any of those cited cases.
In the absence of any specific, evidentiary objection to Dr. Harpe’s methodology or
results, the Court is left with conflicting expert opinions. Neither party has requested a Rule 702
determination, therefore at this juncture the Court treats the opinions as simply being in conflict.
Because the conflict goes to a material factual issue, it must to be resolved by a jury. Because a
trial will be required, it is not necessary to consider whether the PCP Exam is job-related, or
whether a reasonable alternative existed. Summary judgment on this claim is denied.
B. Integrated Enterprise
The EEOC also seeks a summary determination that Columbine was the sole owner and
operator of New Mercer and other facilities, and that as a result, the two entities are part of a
single integrated enterprise employing over 500 employees. This determination is relevant to
the amount of punitive damages that might be imposed. See 42 U.S.C. § 1981a(b)(3); see also,
e.g., E.E.O.C. v. Everdry Mktg. & Mgmt., Inc., 556 F. Supp. 2d 213, 218 (W.D.N.Y. 2008). The
EEOC proffers evidence of common control and ownership, common management, centralized
control of labor relations, and interrelated operations involving Defendants and various affiliated
entities. Defendants do not contest the EEOC’s factual assertions, but argues that those facts are
insufficient to satisfy the integrated enterprise analysis.
There is no need to determine this issue at this time. Rule 56(a) provides: “A party may
move for summary judgment, identifying each claim or defense – or the part of each claim or
defense – on which summary judgment is sought.” The Court has consistently held as have
many other courts that a request for an award of punitive damages is not properly resolved on a

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motion for summary judgment unless liability on a claim or defense is uncontroverted. 2 This is
because a request for punitive damages standing alone is neither a claim nor a defense. It is,
instead, a remedy which only arises once liability is determined. The Court is disinclined to
provide advisory rulings as to remedies that might be available to a prevailing plaintiff, when a
trial will be required to determine liability in the first place. Laratta v. Foster, No. 12-cv-02079MSK-KMT, 2015 WL 1433109, at *5 (D. Colo. Mar. 25, 2015); Sterling Constr. Mgmt., LLC v.
Steadfast Ins. Co., No. 09-cv-0224-MSK-MJW, 2011 WL 3903074, at *12 (D. Colo. Sept. 6,
2011); Medcorp, Inc. v. Pinpoint Techs., Inc., No. 08-cv-00867-MSK-KLM, 2009 WL 3158130,
at *5 (D. Colo. Sep. 24, 2009); In re Methyl Tertiary Butyl Ether (“MTBE”) Prod. Liability
Litig., 517 F. Supp. 2d 662, 666 (S.D.N.Y. 2007); Felix v. CSAA Gen. Ins. Co., Case No. 2:15cv-02498-APG-NJK, 2017 WL 1296183, at *2 n.20 (D. Nev. Mar. 31, 2017). Accordingly, the
EEOC’s request for Summary Judgment on this issue is denied.
C. Affirmative Defenses
The EEOC also seeks summary judgment on four affirmative defenses: (1)
waiver/estoppel; (2) bona fide occupational qualification; (3) after-acquired evidence; and (4)
failure of conditions precedent. The EEOC contends that, as a matter of law, these affirmative
defenses are baseless.3 Because the Defendants ultimately bear the burden to prove these
affirmative defenses at trial, they must come forward with a prima facie showing for each, failing
2

If a jury determines liability and awards punitive damages, the parties may then address
whether such damages should be capped in post-judgment proceedings. If the underlying facts
with regard to the integrated enterprise question are uncontested , they can be stipulated to in the
Final Pretrial Order.
3

Because Defendants’ Answer (#26) does not specify to which claims its affirmative
defenses apply, the EEOC assumes that the Defendants assert all four affirmative defenses as to
all claims. The Defendants have made no attempt to clarify which affirmative defenses apply to
which claims.

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which they will be dismissed. See, e.g., Fairfield Dev., Inc. v. J.D.I. Contractor & Supply, Inc.,
703 F. Supp. 2d 1211, 1214-16 (D.Colo.,2010)
1. Waiver/Estoppel
Defendants appear to abandon any affirmative defense of waiver; therefore, summary
judgment is warranted on that defense.
The affirmative defense of estoppel is governed by Colorado law. See Squires ex rel.
Squires v. Goodwin, 829 F. Supp. 2d 1062, 1067 (D. Colo. 2011); Nicholls v. Zurich Am. Ins.
Group, 244 F.Supp.2d 1144, 1157 (D. Colo. 2003). To prove estoppel, Defendants must show
that: (i) the EEOC and/or claimants knew certain facts; (ii) Defendants were ignorant of the
facts; (iii) the EEOC and/or claimants’ conduct was contrary to such facts and that the EEOC
and/or claimants intended that Defendants to rely upon their conduct and (iv) Defendants relied
upon the EEOC and/or claimants conduct to their detriment. See Sellers v. Allstate Ins. Co., 82
F.3d 350, 352 (10th Cir. 1996) (citing Dep’t of Health v. Donahue, 690 P.2d 243, 247 (Colo.
1984)).
Defendants argue that Ms. Aregaghn and Mr. Mahgoub led Defendants to believe they
were fluent in English when they were hired, and had the Defendants known that they were not
fluent in English, they would not have been hired. As a consequence, the Defendants contend
that the EEOC is now estopped from claiming that these employees were discriminated against
on the basis of their limited English skills. Defendants’ proffer is based on a statement in the job
applications of Ms. Aregaghn and Mr. Mahgoub that they were fluent in English, which the
Defendants contend was false. Defendants contend that both Ms. Aregaghn and Mr. Mahgoub
intended that New Mercer rely on the false representation as to their language skills in hiring
them.

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The Defendants have failed to make a prima facie showing for this affirmative defense.
First, they offer only argument but no evidence to support their contentions. Second, even if
proven, estoppel is not an affirmative defense to a disparate impact claim. The disparate impact
claim turns on the effect of the PCP Exam on groups of individuals, not particular claimants.
Even if the affirmative defense was applied to the disparate impact claim, there is no factual
showing Ms. Aregaghn and Mr. Mahgoub were aware that a PCP examination would be given
years hence when they filled out their employment applications. See, e.g., U.S. for Use &
Benefit of Trans-Colo. Concrete, Inc. v. Midwest Constr. Co., 653 F. Supp. 903, 906-07 (D.
Colo. 1987); Indian Territory Op. Co. v. Bridger Petroleum Corp., 500 F. Supp. 449, 451 (D.
Okla. 1980) (citing Chisolm v. House, 183 F.2d 698 (10th Cir. 1980)). Estoppel also is
inapplicable to the disparate treatment claim.4 Title VII creates a statutory right to be free of
unlawful employment discrimination, including disparate treatment, which an individual’s
indirect conduct does not extinguish. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 54
(1974).
Accordingly, dismissal of the estoppel affirmative defense is appropriate.
2. Bona Fide Occupational Qualification
Under § 703(e)(1) of Title VII, an employer may discriminate on the basis of “religion,
sex, or national origin in those certain instances where religion, sex, or national origin is a bona
fide occupational qualification [BFOQ] reasonably necessary to the normal operation of that
particular business or enterprise.” 42 U.S.C. § 2000e-2(e)(1); Int’l Union, United Auto.,
Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 200
4

To prove disparate treatment, a plaintiff must show (i) an employee belongs to a
protected class; (ii) the employee suffered an adverse action; and (iii) similarly situated nonminority employees were treated differently. E.E.O.C. v. Flasher Co., Inc., 986 F.2d 1312, 1316
(10th Cir. 1992). Discriminatory motive is critical. Watson, 487 U.S. at 1002.
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(1991). Defendants concede that a BFOQ defense is not applicable in this matter. Accordingly,
dismissal is appropriate.
3. After-Acquired Evidence
After-acquired evidence allows an employer, in some instances, to limit the remedies
available to an unlawfully discharged employee if, through discovery, the employer learned that
the employee had committed wrongdoing during his or her employment. Foreman v. W.
Freightways, LLC, 958 F. Supp. 2d 1270, 1283 (D. Colo. 2013); see also McKennon v. Nashville
Banner Pub. Co., 513 U.S. 352, 352-53 (1995) (holding same in the Age Discrimination in
Employment Act (“ADEA”) context). To obtain relief, an employer must demonstrate that: (i) it
was unaware, prior to discharging the employee, that the employee committed misconduct; (ii)
such misconduct was sufficiently severe to justify termination; and (iii) the employer would have
terminated its employee had it known of the misconduct. Ricky v. Mapco, Inc., 50 F.3d 874, 876
(10th Cir.1995). That is, the employer must establish that the wrongdoing was of such severity
that the employee in fact would have been terminated on those grounds alone had the employer
known of it at the time of the discharge.
The Defendants also base this affirmative defense on alleged statements on the job
applications of Ms. Aregaghn and Mr. Mahgoub that they were fluent in English. Defendants
argue that had they known that this was a misrepresentation, they would have terminated those
claimants’ employment. Defendants are not entirely clear on whether the termination would
have been based on the claimants’ lack of English proficiency or the mere fact that they
(purportedly) misrepresented their English fluency on their job applications.
Conceptually, the difference in theory matters because it governs what facts are material
to the defense. If lack of English proficiency would have been the ground for firing, such

14

deficiency likely would have been observed in interactions with the claimants over their lengthy
tenure at New Mercer, not suddenly during the course of discovery. Indeed, according to the
undisputed facts, one of the claimants worked at New Mercer for nine years, and the other
worked there for eighteen months. The gravamen of comments made by Ms. Lewis in 2008 was
that the claimants could not speak English, but given the duration of their employment at the
facility, Defendants cannot seriously contend that the discovery of any lack of fluency was only
made during the course of this case.
If the grounds for firing would have been the making of a false statement in the job
application process, the concept of “job application fraud” or “resume fraud” is invoked. Some
courts express concern that an employer facing a wrongful discharge claim might “comb[] a
discharged employee’s record for evidence of any and all misrepresentations, no matter how
minor or trivial, in an effort to avoid legal responsibility for an otherwise impermissible
discharge”; these courts generally require that the omission or misrepresentation in the resume or
job application be material and directly related to evaluating the candidate for employment.
Johnson v. Honeywell Info. Sys., Inc., 955 F.2d 409, 414 (6th Cir. 1992). Other courts recognize
that an employer legitimately may have a “zero tolerance” policy concerning employees who lie
on their job applications, but in those cases, the courts generally require the employer to show
that it actually does have such a policy and that it actually enforces it in practice. See Sheehan v.
Donlen Corp., 173 F.3d 1039, 1047-48 (7th 1999). “[T]he inquiry focuses on the employer’s
actual employment practices, not just the standards established in its employee manuals, and
reflects a recognition that employers often say they will discharge employees for certain
misconduct while in practice they do not.” O’Day v. McDonnell Douglas Helicopter Corp., 79
F.3d 756, 759 (9th Cir. 1996). It does not appear that the Tenth Circuit has spoken on this

15

specific issue, at least in the Title VII context. But see Duart v. FMC Wyo. Corp., 72 F.3d 117,
119 (10th Cir.1995) (suggesting that a materiality standard would be appropriate in the ADEA
context).
Under either standard, an affirmative defense based on a “lie” on the application is not
cognizable in this case. First, Defendants have come forward with no evidence to support that
the claimants intentionally misrepresented a fact.
Second, Defendants have presented no evidence that the ability to speak fluent English
was material to the performance of the PCP job at the time the claimants were hired nor that
Defendants had standards that advised employees that they would be discharged for false
statements made in employment applications. Indeed, the fact that some of the claimants worked
at New Mercer for years without being terminated strongly suggests that fluency is not as
material or important as Defendants now claim. Furthermore, Defendants quote from language
in the job application itself which advises that any false information, misrepresentations or
omissions “may result in the rejection of the application” – i.e., that any adverse action is
discretionary, not mandatory. On its face this shows that the claimants could have been
terminated or not hired based on misrepresentations on their application, but not that they would
have been. That is not enough to support an after-acquired evidence affirmative defense.
Sheehan, 173 F.3d at 1048; Price Waterhouse v. Hopkins, 490 U.S. 228, 252 (1989). Moreover,
even if this ambiguous language was sufficient, there is no showing by the Defendants that it has
ever been enforced.
Because Defendants have not put forward sufficient evidence to establish a prima facie
showing for this affirmative defense, it is dismissed.

16

.
4. Conditions Precedent to Suit: Conciliation
Title VII requires the EEOC to engage in a multi-step procedure prior to filing suit
against an employer. See 42 U.S.C. § 2000e-5(b). Upon receipt of a charge of discrimination,
the EEOC undertakes an investigation and if, as here, it finds probable cause, it must “endeavor
to eliminate the alleged unlawful employment practice by informal means,” including, as
relevant here, conciliation. Mach Mining, LLC v. EEOC., 135 S. Ct. 1645, 1649 (2015). Only if
the EEOC cannot secure an acceptable conciliation agreement can it bring a lawsuit.
Mach Mining instructs that judicial review of the EEOC’s conciliation efforts is limited,
as Title VII affords the EEOC discretion regarding how to conduct conciliation efforts and when
to end them. The Court therefore reviews conciliation only to determine: (i) whether the EEOC
informed the employer about the specific allegation and its determination of “reasonable cause”;
and (ii) whether the EEOC attempted to engage the employer in some form of discussion (be that
written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory
practice prior to litigation. Judicial review of those requirements (and nothing else) ensures that
the Commission complies with the statute. Id. at 1656.
Here, the Defendants do not challenge whether the EEOC provided them with adequate
notice of the charge, nor do they dispute that the EEOC made some conciliation efforts. Rather,
Defendants appear to argue that, during the conciliation process, the Defendants “made monetary
offers for the individual claimants to settle those claims,” but the EEOC failed to disclose those
offers to the claimants. Defendants offer no legal authority for the proposition that, during
conciliation efforts, the EEOC is required to convey settlement offers to the aggrieved

17

employees. Instead, it is clear in Mach Mining that the Supreme Court is unwilling to impose any
particular requirements on the EEOC as to how they choose to go about the conciliation process.
Without any evidence that the EEOC failed to meet either of the two conciliation
requirements outlined in Mach Mining, the Court finds that summary judgment on this defense in
favor of the EEOC is proper.
V.

Defendants’ Motion for Summary Judgment on the Claim Involving Ms. Hoem
Defendants move for summary judgment on the EEOC’s third claim – retaliation against

Ms. Hoem. Because the EEOC bears the burden of proof on this claim at trial, the EEOC must
come forward with sufficient evidence to state a prima facie claim.
A. Legal Standards
Title VII prohibits an employer from retaliating against an employee because she
opposed a practice made unlawful by Title VII. Stover v. Martinez, 382 F.3d 1064, 1070 (10th
Cir. 2004). In the Tenth Circuit, an employee may establish Title VII retaliation in one of two
ways. Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011). Under the direct
evidence/mixed-motives approach, an employee may directly show that retaliatory animus
played a motivating part in the employment decision. Alternatively, if the employee cannot
directly show that a retaliatory animus played a part in the employment decision, she may rely on
the three-part McDonnell Douglas burden-shifting framework. Fye v. Okla. Corp Comm’n, 516
F.3d 1217, 1225, 1227 (10th Cir. 2008).
Under the McDonnell Douglas framework, an employee bears the initial burden to
establish a prima facie case for retaliation. Somoza v. Univ. of Denver, 513 F.3d 1206, 1211-12
(10th Cir. 2008). To do so, an employee must offer evidence that: (1) she engaged in protected
conduct; (2) she suffered a materially adverse action; and (3) there is a causal connection
between the protected conduct and the adverse action. Id. at 1212. If an employee meets that
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requirement, the burden shifts to the employer to offer a legitimate, non-retaliatory reason for its
action. Once the employer has offered a facially neutral reason, the burden returns to the
employee to show that the reason is merely a pretext for retaliation. Id. at 1211.
Here, the EEOC does not argue that it can point to any direct evidence of a retaliatory
motive; thus, the McDonnell Douglas burden-shifting analysis is implicated. Defendants only
challenge the first McDonnell Douglas factor – i.e., whether Hoem engaged in protected
conduct.
B. Discussion
The EEOC offers the following evidence, which the Court views in the light most
favorable to that entity. Ms. Hoem worked at New Mercer from 1994 until she was terminated
in September of 2008. Though Ms. Hoem started as a PCP, she was almost immediately
promoted to a staffing position, where she was responsible for interviewing, hiring, scheduling,
training, supervising, and reviewing PCPs. In this role, Ms. Hoem found African PCPs to be
“wonderful with residents,” because “their upbringing in their countries taught them kindness,
taught them to take care of the elderly.”
On September 22, 2008, the newly-hired director at New Mercer, Pamela Lewis directed
Ms. Hoem to ask one of the African PCPs, Ms. Ibrahim, if she would like to transfer to
housekeeping. The apparent basis for this request was a desire to move Ms. Ibrahim to a
position is which she would not have much (or even any) resident contact. When Ms. Hoem
complied with Ms. Lewis’s instruction, Ms. Ibrahim was adamant in her wish to remain a PCP.
Ms. Hoem relayed this information to Ms. Lewis, and then Ms. Hoem heard nothing further
about it until the following week.

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On September 30, 2008, Ms. Lewis called Ms. Hoem into her office for a meeting with
an HR representative, Joyce Shorthill. Ms. Hoem was terminated at that meeting. The EEOC
submitted a copy of Ms. Hoem’s notes from that meeting. Ms. Hoem’s notes indicate that one of
the reasons she was told she was being terminated was that she refused to fire Ibrahim. Her
notes reflect that when Ms. Hoem learned this, she asked at the meeting, “On what grounds
[would she fire Ms. Ibrahim]?” Ms. Lewis responded that “no one could understand [Ms.
Ibrahim] and [Ms. Hoem] should have read between the lines.”
Ms. Lewis prepared a memo, dated September 29, 2008, outlining her reasons for
terminating Ms. Hoem. It reads that Ms. Lewis “spoke with [Ms. Hoem] about an occurrence
involving a resident who exhibited aggression.” Ms. Lewis directed Ms. Hoem to assign a PCP
to exclusively cover the resident, but despite Ms. Lewis’s direction, Ms. Hoem never made an
assignment. The memo explains that Ms. Hoem “lacks insight into the importance of resident
care and how employees can impact the quality of care… [f]or example, [Ms. Hoem]
consistently assigns limited English speaking staff members to residents who have severe
dementia,” which “impacts the psychological status of cognitively impaired residents.” Ms.
Lewis wrote that she often fielded complaints from supervisors who are frustrated about the lack
of discipline and poor care for residents exhibited by PCPs. Ms. Lewis attributed these problems
to Ms. Hoem’s “lack of leadership” and “inability to hold her employees accountable.” Ms.
Hoem did not see until this memo until discovery in this case, and she disputes its accuracy.
The dispositive question before the Court is whether the actions by Ms. Hoem constitute
protected conduct. Protected conduct is any opposition by an employee to an employer’s
unlawful practices or actions. Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d 1126,
1132 (10th Cir. 2010). Title VII protects only discrimination-related opposition; thus, opposition

20

to merely “distasteful” employer practices does not suffice. Petersen v. Utah Dep’t of Corr., 301
F.3d 1182, 1188 (10th Cir. 2002). Protected conduct must be such that a reasonable employer
would know that the employee is opposing illegal discrimination (here, discrimination based on
race or national origin). Zokari v. Gates, 561 F.3d 1076, 1082 (10th Cir. 2009); Petersen, 301
F.3d at 1188-89.
Protected conduct is broadly interpreted. See Crawford v. Metro. Gov’t of Nashville &
Davidson Cnty., Tenn., 555 U.S. 271, 277 (2009). It need not be formal; for example, an
employee’s informal, internal complaints to supervisors about a discriminatory practice may
suffice. Fye, 516 F.3d at 1228; see also Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th
Cir. 2000). Moreover, there is no requirement that the opposition specifically mention unlawful
discrimination – “[m]agic words are not required, but protected opposition must at least alert an
employer to the employee’s reasonable belief that unlawful discrimination is at issue.” See, e.g.,
Brown v. United Parcel Serv., Inc., 406 Fed. App’x 837, 840 (5th Cir.2010); Broderick v.
Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006). That is, “[a] complaint about an employment
practice constitutes protected opposition… if the individual explicitly or implicitly communicates
a belief that the practice constitutes unlawful employment discrimination.” Murphy v. City of
Aventura, 383 Fed. App’x 915, 918 (11th Cir. 2010) (internal quotes omitted) (emphasis added);
accord Payne v. WS Services, LLC, 216 F. Supp. 3d 1304, 1315-16 (W.D. Okla. 2016); Hinds v.
Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008)).
Courts typically hold that a wide variety of actions constitute protected conduct.5 In this
case, Defendants contend that Ms. Hoem’s conduct in (i) responding to allegedly discriminatory

5

For example, an employee who responds to her employer’s questions in a way that alerts
the employer to the existence of sexual harassment will be sufficient. See Crawford, 555 U.S. at
277-78. Similarly, an employee who expressed to his supervisor that the supervisor’s comments
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remarks by Ms. Lewis during casual conversations; or (ii) refusing to transfer or terminating Ms.
Ibrahim was not protected conduct because it was not motivated by illegal discrimination.
In this regard, the Defendants assert that the EEOC has not come forward with evidence
that during Ms. Hoem’s conversations with Ms. Lewis she expressed a concern about unlawful
discrimination. the EEOC offers Ms. Hoem’s deposition testimony, in which she testified that
she specifically voiced opposition to what she viewed as national origin-based discrimination.
For example, when Ms. Lewis commented on the language skills of the African PCPs and stated
that New Mercer needed to “get rid of these people because they just can’t speak English,” Ms.
Hoem opposed that view: she told Ms. Lewis that the African PCPs were “good employees, they
were dependable, reliable, respectful to their coworkers and supervisors, [and] kind to the
residents.” During another conversation in which Ms. Lewis expressed concerns about some of
the African PCPs, Ms. Hoem told her, “you don’t know our employees yet,” and encouraged Ms.
Lewis to meet with them.
Viewed in the light most favorable to the EEOC, Ms. Hoem’s verbalized disagreement
with what could be interpreted as discrimination based on national origin – and especially her
vocal objection to Ms. Lewis’s criticisms of “these people” – is sufficient for a prima facie
showing. Absent evidence to the contrary, a reasonable jury could find that in challenging Ms.
Lewis’s perceptions of the African PCPs, Ms. Hoem was identifying what she perceived to be
unlawful discrimination. Finding a triable issue of fact, the Defendants’ Motion for Summary
Judgment must be denied.

were racist also was held to be engaging in protected conduct. Andrews v. Fantasy House, Inc.,
782 F. Supp. 2d 753, 758-59 (D. Minn. 2011). Opposing a refusal to hire, a termination, or a
demotion of a fellow employee because of a belief that it was motivated by discrimination would
also suffice. See, e.g., EEOC v. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998); Payne, 216 F.
Supp. 3d at 1316 (challenging a refusal to hire someone with a disability is protected conduct).
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For purposes of trial efficiency, the Court also briefly addresses whether Ms. Hoem’s
purported ‘refusal to fire’ Ms. Ibrahim constitutes protected conduct. Refusal to fire an
employee because of a reasonable belief that the firing was motivated by discrimination on the
basis of race and national origin is protected conduct. According to deposition testimony of Ms.
Hoem, she refused to fire Ms. Ibrahim based on her belief that to do so was unlawful
discrimination, and the Defendants have not identified any reason to conclude that this belief was
unreasonable.6
Accordingly, the Court also finds there the EEOC has produced sufficient evidence to
make a prima facie showing that Ms. Hoem engaged in protected conduct by refusing to order an
employee’s discrimination-based transfer or demotion.
Defendants’ Motion for Partial Summary Judgment (#63) is therefore DENIED.
VI.

Motions to Restrict
Defendants’ three Unopposed Motions to Restrict (##71, 81, 86) remain.
There is a well-established common-law right of access to judicial records. See Nixon v.

Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). This right is premised upon the idea that the
public must retain the ability to evaluate a court’s decision-making and ensure that it is
promoting justice by acting as a neutral arbitrator. See United States v. McVeigh, 119 F.3d 806,

6

The parties argue at length over whether Ms. Lewis expressly told Ms. Hoem to terminate
or demote Ms. Ibrahim and/or the other employees of African origin, or whether she merely told
Ms. Hoem to transfer her to a new position. This entire issue is a red herring. Whether Ms.
Lewis specifically said “you must demote or terminate these employees because they are
African” is irrelevant. What is relevant is whether Ms. Hoem reasonably believed that some sort
of potential adverse employment action – it does not matter whether that was a transfer or a
termination – was based on discrimination against a group’s race or national origin, and whether
she voiced opposition to it. As noted above, Ms. Hoem’s notes and deposition testimony is
sufficient evidentiary support to make a prima facie showing for both of those protected conduct
elements.
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812-14 (10th Cir. 1997). A party seeking restriction must show that the public’s right of access
is outweighed by private interests favoring non-disclosure. Id. at 811.
Motions to restrict are governed by D.C.ColoLCivR 7.2. This local rule requires a
moving party to: (1) identify the document for which restriction is sought; (2) explain the interest
to be protected and why such interest outweighs the presumption of public access; (3) identify a
clearly defined and serious injury that would result if access is not restricted; and (4) explain why
no alternative to restriction will suffice. See D.C.Colo.LCivR 7.2. In sum, the movant must
articulate a real and substantial interest that justifies depriving the public of access to documents
that informed the court’s decision-making process. See Helm v. Kansas, 656 F.3d 1277, 1292-93
(10th Cir. 2011). The fact that the parties agree to restriction or that there is a Stipulated
Protective Order in place does not dictate the Court’s decision or change its analysis, as the right
of access belongs to the public, which is not a party to the parties’ agreement or protective order.
See D.C.Colo.LCivR 7.2(c)(2).
A. First Motion to Restrict (#76).
Docket # 76 seeks Level 1 restriction for a number of exhibits to the EEOC’s partial
motion for summary judgment, namely Exhibits 23 through 25 (##64-22, 64-23, and 64-24), and
Exhibit 28 (## 64-27, 65).
The Court will address Exhibit 28 first. It consists of a balance sheet for Columbine.
Without more, Defendants maintain that this sheet is “confidential financial information,”
disclosure of which could harm its business. Defendants also include a conclusory statement that
“there is no practicable alternative to restriction.” Defendants do not, with any specificity,
explain the interest to be protected that outweighs the presumption of public access nor do they

24

identify a clearly defined and serious injury that would result if access is not restricted.
Accordingly, Defendants fail to meet the requirements of D.C.ColoLCivR 7.2.
Exhibits 23 through 25 contain Management Agreements between Columbine and New
Mercer. Defendants state only that the agreements contain “confidential, proprietary information
regarding the economic relationship between the Defendants.” Again, Defendants fail to explain
the serious harm that could bestow them in the event of disclosure, nor why such harm
outweighs the public interest. As such, Defendants also fail to meet the requirements of
D.C.ColoLCivR 7.2 with respect to their request to restrict Exhibits 23 through 25 as well.
However, in resolving the motions for summary judgment, neither the question of the
interrelatedness of the Defendants’ businesses, nor the merits of the EEOC’s integrated
enterprise analysis, played any role in the Court’s determination of those motions. Therefore, the
public interest in those documents is minimal. The Court will grant Level 1 restriction for
Exhibits 23 through 25 and Exhibit 28. The Court advises that if these documents are introduced
and sought to be used at trial, they will lose their restricted status.
The First Motion to Restrict is GRANTED. Exhibits 23 through 25 (##64-22, 64-23, 6424, 64-27 and 65) and Exhibit 8 (##64-27, 65) shall remain under Level 1 restriction.
B. Second Motion to Restrict (#81).
Docket No. 81 seeks Level 1 restriction for Exhibits 4 and 21 (#77-4, filed at #78; #7721, filed at #78-1) to the EEOC’s Response to Defendants’ Motion for Summary Judgment.
Exhibit 4 is a two-page chart that lists the names and races of New Mercer’s PCPs. With
no detail, Defendants contend that this information is confidential because it includes “portions
of personnel records” of employees, and there is no practicable alternative. Defendants again do
not meet their burden to demonstrate that an interest in confidentiality that usurps the right of the

25

public, have not identified any harm that would result from disclosure, and have not explained
why no alternative to restriction exists (for example, redacting the non-claimant employees’
names and listing only their races). Because this information is relevant to disputes in this case,
Defendants have not overcome the presumption of public access. However, the Court does not
believe that the names of the non-claimant employees need be disclosed. Accordingly, the Court
directs the EEOC to file a new version of Exhibit 4 (#78) that redacts the non-claimant
employees’ names. The EEOC shall have fourteen days to file a redacted version; if it does not
do so within that time period, an unredacted version will be made public.
Exhibit 21 (#78-1) is Performance Improvement Plan (PIP) for a non-claimant employee.
For the same reasons as those outlined above, Defendants fail to overcome the presumption of
public access. This document contains information relevant to the parties’ disputes. However,
the particular employee’s name is not material. Accordingly, the EEOC shall file a redacted
version of this document that removes the non-claimant employees’ names.
Defendants’ Second Motion to Restrict (#81) is therefore DENIED in PART and
GRANTED in PART. The EEOC shall re-file these exhibits without restriction and according
to the Court’s redaction instructions. Those redacted exhibits should be filed within fourteen
days. If Defendants do not file the redacted versions of the exhibits within that time period,
unredacted versions of the exhibits will be made public.
C. Third Motion to Restrict (#86)
Defendants’ Third Motion to Restrict seeks Level 1 restriction for Exhibits 44 (#83-8,
filed at #84) and 45 (#83-9, filed at #84-1) to the EEOC’s Reply in support of its Partial Motion
for Summary Judgment.

26

Exhibits 44 and 45 are settlement offers Defendants made to two named employees, Ms.
Ibrahim and Ms. Aregahgn. Defendants offer no reasons for restriction other than a cursory
statement that this information “should remain private,” and thus, they have not met their burden
under D.C.Colo.LCivR 7.2. Furthermore, the Court examined these documents to determine
whether the EEOC met its burden to attempt conciliation as required prior to initiating litigation.
As such, they are relevant to the Court’s disposition of Defendants’ conciliation affirmative
defense and have at least some public importance.
Defendants’ Motion to Restrict (#86) is therefore DENIED.
VII.

Conclusion

The EEOC’s Motion for Partial Summary Judgment (#64) is GRANTED in PART and
DENIED in PART. The Motion is denied insofar as it requests summary judgment on the
EEOC’s first claim for relief, disparate impact and a finding that the Defendants are part of an
integrated enterprise. The Motion is granted insofar as Defendants’ affirmative defenses of
waiver/estoppel, bona fide occupational qualification, after-acquired evidence, and conditions
precedent to suit are DISMISSED.
Defendants’ Motion for Summary Judgment on the Only Claim Involving Marlene Hoem
(#63) is DENIED.
In the interest of clarity, the matters to be tried are:


The EEOC’s claim for disparate treatment discrimination pursuant to 42 U.S.C. §
2000e-2(a) (First Claim for Relief);



The EEOC’s claim for disparate impact discrimination pursuant to 42 U.S.C. §
2000e-2(a) (Second Claim for Relief);

27



The EEOC’s claim for retaliation (against Ms. Hoem) pursuant to 42 U.S.C. §
2000e-3 (Third Claim for Relief); and



If liability is determined and if punitive damages are awarded, then whether the
Defendants are an integrated enterprise.



All affirmative defenses that have been pled but not dismissed.

The three Motions to Restrict (##71, 81 and 86) are GRANTED, in part, and DENIED,
in part. Docket ##64-22, 64-23, 64-24, 64-27 and 65 shall remain under Level 1 restriction. The
EEOC shall file redacted versions of Docket ##78, 78-1 under no restriction within fourteen
days of the date of this order; and the Clerk shall lift the restriction on Docket ##84, 84-1 which
shall be made public in unredacted form.
Within fourteen days of this Order the parties shall 1) file a Joint Motion for a Rule
702 determination, failing which all Rule 702 objections shall be deemed waived; and 2)
shall jointly contact chambers at [phone] to set this matter for a final pretrial
conference.
Dated this 19th day of September, 2017.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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