Apodaca v. Colorado Nonprofit Development Center

Filing 95

ORDER and Order on Motion for Summary Judgment. The Court grants the motion in part. The Clerk shall restrict access to ## 79-8, 79-10, # 84-3 at Level 1. Within three days of this order, CNDC is ORDERED to file a copy of its Exhibits H and J (# 79- 8, 79-10) redacting the social security number and Ms. Apodaca is ORDERED to file a copy of her Exhibit 2 (# 84-3) redacting the same social security number within three days of this order. The motion is denied in all other respects, but CNDC is free to renew the motion with more specific information about each exhibit it seeks to restrict. Motion for Summary Judgment (# 79 ) is GRANTED as to the Plaintiff's claim under the EPA. This claim is DISMISSED WITH PREJUDICE.4 The Plaintiff's state-law claims are DISMISSED WITHOUT PREJUDICE for lack of jurisdiction under 28 U.S.C. § 1367. By Chief Judge Marcia S. Krieger on 10/6/2017. (agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 16-CV-0383-MSK-STV
JERILYN E. APODACA,
Plaintiff,
v.
COLORADO NONPROFIT DEVELOPMENT CENTER, a Colorado non-profit
corporation in good standing doing business as Families Forward Resource Center,
Defendant.

OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT

THIS MATTER comes before the Court on the Defendant’s Motion for Summary
Judgment (# 79), the Plaintiff’s Response (# 84), and the Defendant’s Reply (# 92); the Plaintiff’s
Motion to File Brief Out of Time (# 84), and the Defendant’s Motion to Restrict Access (# 90, 91).
In this action, Ms. Apodaca brings the following claims: (1) a violation of the Equal Pay
Act (EPA), (2) retaliation for reporting child neglect under Colorado law, (3) wrongful termination
in violation of public policy under Colorado law; and (4) intentional infliction of emotional
distress. (# 56) She also requests an award of exemplary damages. The second claim for
retaliation was dismissed upon the Magistrate Judge’s recommendation. CNDC now moves for
summary judgment on the remaining claims.

1

I.

JURISDICTION

The Court exercises jurisdiction under 28 U.S.C. § 1331.
II.

BACKGROUND 1

In 2005, Plaintiff Jerilyn Apodaca began working as an intern for defendant Colorado
Nonprofit Development Center, which had done business as the Lowry Family Center and the
Families Forward Resource Center. 2 She was hired in 2007 and became Director of Programs in
early 2012 without a raise but with an increase in responsibilities. As Director of Programs, Ms.
Apodaca managed four CNDC programs: Family Development, Parent Education, Youth
Development, and Community Health. At some point, her compensation was increased to
$35,000 annually. In March 2014, she received a cost-of-living increase to $35,700 annually, but
in 2013 was denied a merit-based raise due to work performance.
Nonparty comparator Ron Allen began working for CNDC as a Fatherhood Coordinator in
October 2012 at a salary of $32,000 annually. He reported to Ms. Apodaca. In April 2013, Ms.
Apodaca and Mr. Allen asked Dave Bechhoefer, executive director of CNDC, for an increase to
Mr. Allen’s salary based on extra duties that required extra time expenditure. Mr. Allen was
given a 20% increase to $38,400, which corresponded to the increase in the number of hours he
worked. He still reported to Ms. Apodaca. Ms. Apodaca concedes that the Fatherhood
Coordinator position did not require the same level of skills duties supervision, effort, and
responsibilities as her positions.
By 2014, Ms. Apodaca was overwhelmed by her responsibilities. As a consequence, Mr.
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The Court recounts the facts in the light most favorable to Ms. Apodaca, the nonmoving party.
See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002). In large part, the
parties do not dispute the material facts.
2
For convenient reading, the Court refers to the Defendant, in its capacity as the Lowry Family
Center or the Families Forward Resource Center, as CNDC.
2

Bechhoefer reassigned the supervision of the Parent Education and Youth Development programs
from Ms. Apodaca to Mr. Allen, and promoted him to be Director of Programs. In conjunction
with his promotion and increased responsibilities, Mr. Allen’s compensation was increased to
$40,000 annually.
Ms. Apodaca continued as the Director of Programs, but oversaw only the Family
Development and Community Health programs. She received a merit-based raise at her
performance review in early 2015 with delayed implementation until she returned from medical
leave. While she was on medical leave, however, Ms. Apodaca was terminated for causes not
relevant to her claims. Her raise was made retroactive to the beginning of 2015, resulting in a
final annual salary of $37,485.
III.

LEGAL STANDARD

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 Int’l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary
adjudication is authorized when there is no genuine dispute as to any material fact and a party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Substantive law governs what
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 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”
and summary judgment is precluded if the evidence presented in support of and 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.
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See 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)(1)(A). Once the moving party has met its burden, to avoid summary judgment the
responding party must present sufficient, competent, contradictory evidence to establish a genuine
factual dispute. See Bacchus Indus. Inc. v. Arvin Indus. Inc., 939 F.2d 887, 891 (10th Cir. 1991);
Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a
material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is
required. The court then applies the law to the undisputed facts and enters judgment.
If the moving party does not have the burden of proof at trial, it must point to an absence of
sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. If
the respondent comes forward with sufficient competent evidence to establish a prima facie claim
or defense, a trial is required. If the respondent fails to produce sufficient competent evidence to
establish its claim or defense, then the movant is entitled to judgment as a matter of law. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
IV.
A.

DISCUSSION

Motion to File out of Time
Ms. Apodaca asks the Court for leave to file an untimely response to the Motion for

Summary Judgment (# 84). Finding no prejudice to CNDC, the Court grants her request.
B. Claim that CNDC Violated the Equal Pay Act
The Equal Pay Act (EPA) proscribes wage discrimination between employees on the basis
of sex. To establish a prima facie claim under the EPA, a plaintiff must show (1) she was
performing work substantially equal to her male comparators in light of the skills, duties,
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supervision, effort, and responsibilities of the positions; (2) the work was performed under
basically the same conditions; and (3) the male comparators were paid more under these
circumstances. Riser v. QEP Energy, 776 F.3d 1191, 1196 (10th Cir. 2015). If the plaintiff
establishes a prima facie claim, the burden then shifts to the employer to show that the pay
differential is justified by a valid reason contained in a statutory list: (1) a seniority system; (2) a
merit system; (3) a system where earnings are measured by quantity or quality of production; or (4)
a factor other than sex. 29 U.S.C. § 206(d)(1). Unlike Title VII, where the plaintiff has the
ultimate burden to prove discriminatory intent, with regard to clams under the EPA, the employer
has the ultimate burden to prove that the difference in pay was based on a factor other than sex.
Sprague v. Thorn Ams. Inc., 129 F.3d 1355, 1364 (10th Cir. 1997).
CNDC makes two arguments. The first is that Ms. Apodaca cannot establish a prima
facie case because her position was not substantially equal to Mr. Allen’s position.
Whether work is substantially equal depends upon whether the skills, effort, and
responsibility required is substantially the same. 29 U.S.C. § 206(d)(1). Job descriptions and
titles are not determinative; rather, it is the actual nature of the job that determines substantial
equality. Riser, 776 F.3d at 1196. Although there is no precise measure used to determine equal
skill, equal effort, and equal responsibility, courts are generally remain cognizant of the “broad
remedial purpose of the law.” 29 C.F.R. § 1620.14. Thus EPA disregards minor differences in
skill, effort, or responsibility, however it does not equate jobs that appear to be alike or
comparable. See 29 C.F.R. § 1620.14; Sprague, 129 F.3d at 1364.
Ms. Apodaca puts forth a number of arguments in her response: (1) Mr. Allen’s
educational background is different from hers; (2) Mr. Allen’s extra duties are a pretext for paying
him more, as they were both salaried employees exempt from overtime requirements; (3) Mr.
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Allen delegated his extra duties to another employee and did not actually perform them; and (4)
Mr. Allen was given a raise proportionate to his increased workload upon promotion and Ms.
Apodaca was not. Even if true, none of these arguments address the nature of the skills, effort, or
responsibilities required by the two positions.
Turning to the record, Ms. Apodaca concedes that Mr. Allen’s initial Fatherhood
Coordinator position was not substantially equal to her position as Director of Programs. Thus
the comparison of import is between the Director of Programs positions that each held. Putting
aside the identical title and assuming that the type of supervision was similar as to the programs
under the purview of each, it is clear and undisputed that Mr. Allen had more work and
responsibility than did Ms. Apodaca. Before his promotion to Director of Programs, Mr. Allen
sought and was assigned extra duties, and received additional compensation at Ms. Apodaca’s
request. When he was promoted to Director of Programs, he retained these duties and assumed
Ms. Apodaca’s responsibilities to supervise Parent Education and Youth Development programs.
Viewed facially, it appears that Mr. Allen’s responsibilities exceed those of Ms. Apodaca. Ms.
Apodaca has put forth no evidence that her responsibilities equaled or exceeded those of Mr.
Allen. See Riser, 776 F.3d at 1196. The Court therefore finds that Ms. Apodaca has failed to
establish a prima facie claim under the EPA.
It may be that Ms. Apodaca is seeking relief from sex discrimination rather than pay
discrimination. For example, she notes that her education is different from Mr. Allen’s, 3 that Mr.
Allen received a raise when he was promoted to Director but that she did not, that Mr. Allen was
3

Ms. Apodaca argues that an employee’s level of education may be used to determine whether
equal work is being performed, citing to Glunt v. GES Exposition Services Inc., 123 F. Supp. 2d
847, 860 (D. Md. 2000). Glunt stands for the proposition that education level is pertinent to an
EPA claim only when it is relevant and necessary to the job in question, which Ms. Apodaca does
not allege.
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paid significantly more than she was even though he was her subordinate, and that Mr. Allen
delegated his extra duties instead of performing them. As noted above, these facts are not
relevant to the equal-pay analysis. This is because the Equal Pay Act is concerned with the very
limited question of whether two people are being compensated differently even though they are
performing the same work. Questions about disparate education levels, disparate raises, disparate
pay relative different positions in the organizational hierarchy, and disparate completion of duties
might fall within the scope of disparate treatment based on sex discrimination which violates Title
VII, but Ms. Apodaca has not brought such a claim. Given that Ms. Apodaca is represented by
counsel, the Court cannot infer one.
For the foregoing reasons, Ms. Apodaca’s claim must be dismissed.
C.

Remaining State-Law Claims
Wrongful termination in violation of public policy and intentional infliction of emotional

distress are state-law causes of action. Having dismissed the federal claim over which it has
original jurisdiction, the Court declines to exercise supplemental jurisdiction over this claim
pursuant to 28 U.S.C. § 1367(c)(3).
D.

Motions to Restrict Access
CNDC seeks to restrict access to exhibits accompanying its Motion for Summary

Judgment. CNDC asserts that a number of exhibits contain confidential employment information
such as salary information, social security numbers, and performance issues of Ms. Apodaca and
other CNDC employees. CNDC did not seek provisional restriction of the exhibits, so they have
been publicly available for months.
The Supreme Court acknowledged a common law right of access to judicial records in
Nixon v. Warner Commc’ns Inc., 435 U.S. 589, 597 (1978). This right is premised upon the
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recognition that public monitoring of the courts fosters important values such as respect for the
legal system. See In re Providence Journal Co., 293 F.3d 1, 9 (1st Cir. 2002). Judges have a
responsibility to avoid secrecy in court proceedings because “secret court proceedings are
anathema to a free society.” M.M. v. Zavaras, 939 F. Supp. 799, 801 (D. Colo. 1996). There is a
presumption that documents essential to the judicial process are to be available to the public, but
they may be sealed when the public’s right of access is outweighed by interests which favor
nondisclosure. See United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997).
Local Rule 7.2(b) requires a party seeking restricted access to demonstrate, among other
things, “the [private] interest to be protected” by the restriction and “a clearly defined and serious
injury that would result if access is not restricted.” Furthermore, that rule provides that
“stipulations between the parties or stipulated protective orders with regard to discovery” are, of
themselves, insufficient to warrant restricted access.
CNDC makes only blanket assertions about the many exhibits it seeks to restrict. It says
that the potential injury is the dissemination of “confidential information,” but it does not
designate what information is confidential and why. Many of the exhibits are Ms. Apodaca’s and
Mr. Allen’s personnel files containing salary information. Other exhibits are emails from
municipal agencies, some of which are copied or sent to Ms. Apodaca. Some exhibits contain
Ms. Apodaca’s performance reviews and others describe her work performance. One exhibit is a
written warning to a CNDC employee who is not a party to this action.
In addition, CNDC has made much of this information public, by not requesting restriction
before this point in time and by including information in its briefs. Finally, CNDC offers no
reason why restriction is necessary — put another way, why redaction would not accomplish the
purposes it expresses.
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Nevertheless, the Court notes that there are two exhibits where Mr. Allen’s social security
number is available and where it correlates to his name. Redaction of those two exhibits to delete
Mr. Allen’s social security number is appropriate.
Accordingly, the Court grants the motion in part. The Clerk shall restrict access to ## 79-8,
79-10, # 84-3 at Level 1. Within three days of this order, CNDC is ORDERED to file a copy of
its Exhibits H and J (# 79-8, 79-10) redacting the social security number and Ms. Apodaca is
ORDERED to file a copy of her Exhibit 2 (# 84-3) redacting the same social security number
within three days of this order. The motion is denied in all other respects, but CNDC is free to
renew the motion with more specific information about each exhibit it seeks to restrict.
V.

CONCLUSION

For the foregoing reasons, the Defendant’s Motion for Summary Judgment (# 79) is
GRANTED as to the Plaintiff’s claim under the EPA. This claim is DISMISSED WITH
PREJUDICE. 4 The Plaintiff’s state-law claims are DISMISSED WITHOUT PREJUDICE
for lack of jurisdiction under 28 U.S.C. § 1367.
Dated this 6th day of October, 2017.
BY THE COURT:

Marcia S. Krieger
United States District Court

4

Because the claim cannot be pursued as a matter of law and there has been no proffer of
allegations that can address the deficiencies in the showing, the Court is disinclined to allow
further amendment of the Complaint.
9