Harris v. VA Eastern Colorado Healthcare System et al

Filing 98

ORDER: 1. The VA's Motion to Dismiss Claim Three of the Third Amended Complaint 74 is DENIED AS MOOT; 2. The VA's Motion for Summary Judgment 86 is DENIED; and 3. This case REMAINS SET for a Final Trial Preparation Conference on March 6, 2020, at 2:00 PM, and a five-day bench trial beginning on March 23, 2020, at 8:30 AM, both in Courtroom A801. SO ORDERED by Judge William J. Martinez on 01/03/2020. Text Only Entry (wjmlc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 18-cv-0071-WJM-STV
PATRICIA HARRIS,
Plaintiff,
v.
HON. ROBERT WILKIE of DOD, SECRETARY DEPARTMENT OF VETERANS
AFFAIRS, in his Official Capacity,
Defendant.

ORDER DENYING DEFENDANT’S MOTION TO DISMISS AND
MOTION FOR SUMMARY JUDGMENT

Plaintiff Patricia Harris (“Harris”) sues the Honorable Robert Wilkie, Secretary of
the Department of Veterans Affairs, in his official capacity (“the VA”), alleging age
discrimination in violation of the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. §§ 621 et seq., and retaliation for exercising her rights under that statute.
(ECF No. 69.)
Currently before the Court is the VA’s Motion to Dismiss Claim Three of the Third
Amended Complaint (“Motion to Dismiss”) (ECF No. 74) and the VA’s Motion for
Summary Judgment (ECF No. 86). The issues raised in the Motion to Dismiss are also
addressed, with citations to evidence, in the Motion for Summary Judgment. In this
light, it would be the height of formalism to address whether Harris has properly pleaded
a claim. Accordingly, the Motion to Dismiss is denied as moot. And, for the reasons
explained below the Motion for Summary Judgment is denied, this case remains set for

trial, and that trial will be to the Court, not a jury.
I. LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the
movant shows that 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); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A fact is “material” if, under the
relevant substantive law, it is essential to proper disposition of the claim. Wright v.
Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). An issue is “genuine” if
the evidence is such that it might lead a reasonable trier of fact to return a verdict for the
nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
In analyzing a motion for summary judgment, a court must view the evidence and
all reasonable inferences therefrom in the light most favorable to the nonmoving party.
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the
Court must resolve factual ambiguities against the moving party, thus favoring the right
to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987). 1
1

When trial will be to the Court, some circuits allow their district courts to resolve
disputed factual questions at the summary judgment phase if the court can confidently say that
presentation of live evidence would make no difference. See, e.g., Int’l Bancorp, LLC v. Societe
des Bains de Mer et du Cercle des Estrangers a Monaco, 329 F.3d 359, 362 (4th Cir. 2003);
Matter of Placid Oil Co., 932 F.2d 394, 397 (5th Cir. 1991); Posadas de Puerto Rico, Inc. v.
Radin, 856 F.2d 399, 400–01 (1st Cir. 1988). Other circuits hold that the summary judgment
standard remains the same regardless. See, e.g., Med. Inst. of Minn. v. Nat’l Ass’n of Trade &
Technical Sch., 817 F.2d 1310, 1315 (8th Cir. 1987); Am. Mfrs. Mut. Ins. Co. v. Am. Broad.Paramount Theatres, Inc., 388 F.2d 272, 279 (2d Cir. 1967). As far as this Court could locate,
the Tenth Circuit has never addressed this question directly, but it appears to lean in favor of the
latter view. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 949 (10th Cir. 2002) (“Although a
district court can make factual findings related to laches after a bench trial, the court should not
make factual findings when addressing a summary judgment motion based on laches . . . .”
(citation omitted)). This Court will therefore apply the same summary judgment standard it
would apply if the case were set for a jury trial.

2

II. FACTS
The following factual assertions are undisputed for summary judgment purposes,
unless attributed to a party or otherwise noted.
A.

Harris’s Employment at the Denver CLC
Harris is a registered nurse and held various jobs in the nursing administration

field from October 2006 to September 2015, when she was hired as “Nurse Manager” at
the VA’s Denver Community Living Center (“CLC”). (ECF No. 88 at 15–17, ¶¶ 1–9.) 2 A
CLC “is the VA’s equivalent of a skilled and long-term care nursing facility.” (ECF
No. 86 at 1, ¶ 2.)
Harris was 67 years old when she began working as Nurse Manager at the
Denver CLC. (Id. at 2, ¶ 5.) At that time, her most recent experience providing direct
nursing care to patients had been in 2007. (Id. ¶ 7.) Harris’s job responsibilities
included “managing the day-to-day operations of the Denver CLC, and managing the
unit’s financial, human, material, and informational resources.” (Id. ¶ 8.) She was also
responsible for “performance improvements and documentation audits.” (Id. at 3, ¶ 11.)
B.

The December 2015 LTCI Audit
The Denver CLC was subject to both state and federal regulation by a number of

oversight bodies and was also governed by rules and policies promulgated by the VA
itself. (Id. at 2, ¶ 4.) In December 2015, a “consulting agency” known as the Long Term
Care Institute (“LTCI”) conducted an unannounced audit of the Denver CLC and
identified four deficiencies that needed correction: (1) failure to carry out certain
activities necessary to maintain good grooming; (2) failure to ensure that residents
2

All ECF page citations are to the page number in the CM/ECF header, which does not
always match the document’s internal pagination, particularly in exhibits.

3

received necessary treatment and services to treat pressure ulcers; (3) failure to ensure
that that the resident environment was free from hazards (such as fall hazards); and
(4) failure to ensure that employees adequately implemented the infection prevention
and control program. (Id. at 4–5, ¶¶ 27–29.) The LTCI’s deficiency findings triggered a
requirement that the Denver CLC address those deficiencies through “action plans” that
outlined the remedial steps the facility would take. (Id. at 5, ¶ 30.) The CLC was also
required to demonstrate progress toward correcting the deficiencies through regular,
thoroughly documented, internal audits. (Id. ¶ 31.)
C.

Piper Knight
In May 2016, the VA hired Piper Knight, also a registered nurse, to be the Chief

Nurse of Geriatrics and Extended Care for several facilities in the VA’s Eastern
Colorado Healthcare System, including the Denver CLC. (Id. at 3–4, ¶¶ 18–19, 22.) In
this role, Knight became Harris’s direct supervisor. (Id. at 3, ¶ 18.) Knight’s duties
included ensuring that each of the programs she oversaw was in regulatory compliance
and prepared for unannounced site visits by oversight bodies. (Id. at 4, ¶ 23.)
From the outset, Knight treated Harris very poorly, including by frequently
criticizing her (at times in front of other staff members), frequently speaking in a rude
and demeaning way to her, and speaking over her while she (Harris) was attempting to
speak to her staff. (ECF No. 88 at 26, ¶¶ 45, 47.) Harris says that Knight would provide
Harris with instructions but later deny having given such instructions, and sometimes,
later still, criticize Harris for failing to follow those previously-disavowed instructions.
(ECF No. 86 at 31, ¶ 261; ECF No. 88 at 20, 22, 25, ¶¶ 21, 31, 41, 43.) Harris further
asserts that, by contrast, Knight treated Harris’s subordinates mostly respectfully. (ECF
No. 86-2 at 187–90.) Harris’s staff was mostly under age 40, although “[m]aybe a third”
4

were in their 40s and one or two were in their 50s. (Id. at 191.)
In September 2016, Harris complained about Knight to Keith Harmon, whose title
is “Nurse Executive,” and Harris believes she accused Knight of nonspecific
“discrimination.” (ECF No. 86 at 30, 33, ¶¶ 256, 276–78.) Harris says that on this
occasion, or perhaps on a second occasion, Harris’s assistant manager accompanied
Harris to express similar concerns, but Harmon seemed not to care. (See ECF No. 88
at 10.)
Knight soon told Harris that she knew about the meeting with Harmon, but she
herself did not care. (ECF No. 86 at 33, ¶ 280.) Knight continued to criticize and
demean Harris. (Id. ¶ 279.)
Around this same time, Knight made several statements to Harris about the
Denver CLC and her intentions for it, including:
•

she (Knight) had been hired “to fix the CLC” which was “falling apart”;

•

the Denver CLC looked good according to some metrics but “she could
dig and find issues”;

•

she would “continue to micro manage until the culture of the CLC
changed”;

•

“no one [at] the CLC respects her [Knight’s] authority”;

•

she planned to “build her own team, this would take about a year, but it
will happen”; and

•

“if the CLC closed, the staff would have jobs in the hospital, and [Knight]
would have a job because she managed 3 other departments, but [Harris]
would be out of a job.”

5

(Id. at 29–30, ¶¶ 248–51, 254.) Harris and Knight also had a conversation in “the fall of
2016” in which Knight told Harris “that she would not be able to operate in the
environment [Knight] was going to create.” (Id. at 32, ¶ 269.) Knight used the term
“fast-paced” or “dynamic” to describe that environment, although Harris cannot
remember precisely which of those terms Knight used. (Id.)
D.

Harris’s Potential Violation of Hiring Rules
In early October 2016, Knight observed one of Harris’s immediate subordinates

giving a tour of the Denver CLC to an unknown individual. (Id. at 8, ¶ 60.) Knight asked
Harris who this person was, and Harris responded that she was the daughter of one of
the nurses in Harris’s unit, and someone whom she was interested in hiring (“the
Candidate”). (Id. ¶ 61.) Harris said she had already contacted the relevant nurse’s
union to see if the Candidate could be hired. (Id. ¶ 62.)
Knight then investigated further by accessing a computer program known as
“Selection Manager” that the VA uses for tracking hiring decisions. (Id. at 9, ¶¶ 63–64.)
Knight discovered that Harris had already designated the Candidate as “selected” in
Selection Manager, but there was no information or documentation supporting this
choice. (Id. ¶¶ 65–66.) Moreover, for Harris to have hired someone on her own would
have contravened numerous VA procedures that required each employment candidate
to be scored according to a “grid” of relevant factors and then interviewed and further
scored by a panel of staff members. (Id. at 8, ¶¶ 54–59.)
Knight asked Harris to turn over Harris’s copies of the resumes, references,
interview notes, and hiring grids for all candidates currently being considered. (Id. at 9,
¶ 67.) Only the Candidate’s hiring grid had been filled out. (Id. ¶¶ 68–69.) Although
other candidates had been interviewed, only the Candidate had been given an interview
6

score. (Id. ¶ 70.) Moreover, Harris had written “selected” in the “Notes” field for the
Candidate’s hiring grid. (Id. ¶ 71.) Knight also discovered that at least one other
candidate was a veteran, and another was a current VA employee, thus requiring the
VA to consider special rules about preference for veterans and current employees. (Id.
at 10, ¶¶ 76-77.)3
Knight asked Harris to explain how she had selected the Candidate without
scoring the other candidates or completing the hiring grids. (Id. ¶ 72.) Harris
responded that she was “not done” with the hiring process and that she had not formally
selected the Candidate. (Id. ¶ 73.) Knight found this explanation non-credible. (Id.
at 10, ¶ 74.)
The record does not reveal what happened to the Candidate or any of her
competitors, but the parties agree that “no other information [beyond marking the
Candidate as ‘selected’] was filled in in order to complete the selection process” and
Knight took over the hiring process after discovering Harris’s actions. (ECF No. 88
at 21, ¶ 27.)
On November 1, 2016, a “fact finding” took place to inquire into the incident with
the Candidate and “several other areas of [Harris’s] job performance.” (ECF No. 86
at 10, ¶ 78.) A fact finding is a relatively formal interview of an employee against whom
the VA is considering discipline. (Id. ¶¶ 79–80.) At the conclusion of the interview, a
document is prepared that reflects the questions asked and the answers given. (Id. at
11, ¶ 82.)
3

Harris purports to deny these assertions, but really only objects that they are irrelevant
because Harris had not actually finished the hiring process. (See ECF No. 88 at 6.)
Accordingly, Knight’s knowledge of these candidates and the special rules pertaining to them is
deemed undisputed.

7

Human Resources Specialist Eric Winters assisted in drafting questions for this
fact finding. (Id. ¶ 85.) It is not clear whom he was assisting, but Knight was not
involved in the process. (Id. ¶ 84.) 4
Faye Salas, Chief Nurse of Ambulatory Care, conducted the fact finding
interview. (Id. ¶ 86.) Salas asked about the hiring process as it related to the
Candidate, and “about other instances of potential misconduct, such as failure to follow
certain supervisory directives.” (Id. ¶¶ 87–88.) Salas then drafted the written report of
questions and answers and provided it to Winters. (Id. ¶ 89.)
Winters investigated further about Harris’s purported violation of VA hiring
practices. (Id. ¶ 90.)
E.

Harris’s Extra Responsibilities
While Winters was investigating, in December 2016, Harris’s assistant manager

(her immediate subordinate) left her employment at the VA. (ECF No. 88 at 7.) “Knight
expected the bulk of [the assistant manager’s] duties to be performed by Harris in
addition to the other duties and responsibilities Harris had,” including audit compliance
and action plan supervision and reporting. (Id. at 21–22 ¶¶ 28, 31.) Harris explained to
Knight that she was overwhelmed by all of the additional responsibility and “had neither
the time nor resources to perform her own managerial responsibilities.” (Id. ¶ 31.)
Knight provided no assistance except for bringing in an additional nurse for one day.
(Id. at 22–23, ¶¶ 31–32.)

4

Harris nominally denies this, but then explains that Knight’s “false accusations” (about
the Candidate hiring process, apparently) were meant to provoke the fact finding. Whether
Knight intended to provoke disciplinary proceedings is separate from whether she participated in
formulating questions for the fact finding. Her non-participation in that task is therefore deemed
undisputed.

8

F.

Potential Discipline Considered
Meanwhile, Winters had concluded that “the agency would likely propose

disciplinary charges against [Harris] for engaging in a Prohibited Personnel Practice,
lack of candor, failing to follow supervisory instructions, and careless performance of
duties.” (ECF No. 86 at 12, ¶ 91.) He told Harris as much in early January 2017 and
advised her that such charges “could potentially lead to a proposed removal.” (Id. ¶ 92.)
He proposed that Harris “could consider entering into an Alternative Dispute Agreement
with the agency in lieu of any specific discipline,” which “would require [Harris] to accept
responsibility for her mistakes and to step down from her position as Nurse Manager.”
(Id. ¶ 93.) Harris declined, and so Winters proceeded with developing the proposed
disciplinary charges. (Id. ¶¶ 94–99.)
“Around this same time,” Harris told Winters that she was unhappy with being
Nurse Manager and wanted help to find another position within the VA. (Id. ¶ 95.)
Winters suggested that Harris could move to a floor nurse position. (Id. ¶ 96.) Harris
rejected this possibility (id. ¶ 97), deeming it to be a demotion, and to be a product of
“continuing humiliation and embarrassment” prompted by Knight (ECF No. 88 at 7).
Harris also considered herself unqualified because she “didn’t have bedside experience
for years.” (ECF No. 89 at 4, ¶ 97.)
It took some time for Winters to develop formal disciplinary charges against
Harris due to the press of business and information from Knight that Harris “had
ongoing performance issues.” (ECF No. 86 at 13, ¶ 100.) “When an employee may
face multiple disciplinary charges, the VA’s Human Resources department generally
seeks to bring the potential disciplinary charges together at once, rather than issuing

9

separate charges in piecemeal fashion.” (Id. ¶ 101.) 5
G.

Job Performance Deficiencies
Harris underwent another fact finding on March 17, 2017. (Id. ¶ 102.) Knight

herself conducted this interview, which focused on Harris’s handling of audits and action
plans, including the LTCI audit and a separate audit performed by the VA’s Office of
Inspector General. (Id. ¶¶ 102–03.) Harris had submitted audit action plans late in
December 2016, January 2017, and March 2017. (Id. at 14, ¶ 113.) Furthermore, her
action plans revealed that she and her staff were not performing certain audits, such as
to ensure that bedridden patients were being turned and repositioned to avoid pressure
ulcers. (Id. ¶¶ 114–17.) Harris’s explanation for failure to perform these audits was
“lack of time.” (Id. ¶ 118.) As for audits Harris did perform, they contained errors such
as “document[ing] that 7 veterans had prevelon boots in place (to prevent pressure
ulcers) when only 4 veterans in the unit had prevelon boots,” and “document[ing] more
veterans with assistive eating devices then were actually present in the unit.” (Id.
¶¶ 123–25.) Moreover, the LTCI had returned in December 2016 and “again found, just
as it had found the year before, that the Denver CLC did not maintain adequate
infection prevention and control programs.” (Id. ¶ 122.) All of these issues and more
were the justification (in Harris’s view, the pretextual justification) for Knight’s March
2017 fact finding. (See id. at 13, ¶¶ 102–03; ECF No. 88 at 1–3, 32, 35.)
H.

Formal Discipline
1.

Original Recommendation (Winters)

The written report of the March 2017 fact finding went to Winters, which he
5

Harris alleges that the delay—whatever its cause—“violate[d] the VA’s Progressive
Disciplinary Policy.” (ECF No. 88 at 7.) But Harris does not explain the violation.

10

considered alongside the November 2016 report; e-mails he had obtained from Knight
showing exchanges between Knight, Harris, and others; documents he had obtained
himself when investigating the potential hiring of the Candidate; and “various other
documents relating to [Harris’s] conduct and job performance.” (ECF No. 86 at 17,
¶ 150.) Winters concluded “that the evidence supported four charges: a Prohibited
Personnel Practice, Failure to Follow Supervisory Instructions, Careless Performance of
Job Duties, and Lack of Candor.” (Id. ¶ 151.) Winters then consulted a VA document
called “the Table of Penalties” to see what level of discipline would be appropriate. (Id.
¶ 153.) The Table of Penalties says that “removal [i.e., firing] can be an appropriate
penalty for committing a ‘Prohibited Personnel Practice,’ even for a first offense.” (Id.
¶ 154.) 6 Winters also considered mitigating factors such as length of service and lack of
previous discipline. (Id. ¶ 155.) Winters determined that removal was a justifiable
penalty, if that is what the responsible decisionmaker, known as the “Proposing Official,”
chose to pursue. (Id. ¶ 156.)
Winters says that his determination was based entirely on his professional
judgment and objective assessment of Harris’s conduct, and that he was not motivated
in any manner by Harris’s age. (Id. ¶¶ 157–58.) Harris disputes this (ECF No. 88 at 9–
10), but that dispute is presently immaterial for reasons explained below.
2.

Formal Proposal to Terminate Harris’s Employment (Harmon)

The Proposing Official under the circumstances was Keith Harmon—the person

6

Harris purports to deny this, but instead of explaining and supporting the denial, she
asserts again that “the Progressive Discipline Policy . . . plainly was violated by the VA for
incidents of alleged misconduct which occurred in September 2016,” apparently referring
(erroneously) the October 2016 incident regarding the Candidate. (ECF No. 88 at 9.) Again,
Harris does not explain how the Progressive Discipline Policy was violated. (See n.5, above.)

11

to whom Harris had complained in September 2016. (ECF No. 86 at 18, ¶¶ 159–60.)
Harris claims that Harmon should not have been the decisionmaker given his previous
involvement, but she does not deny that Harmon was considered the “Proposing
Official,” administratively speaking. (ECF No. 88 at 10.)
Winters gave Harmon a draft of the proposed charges and the full evidence file.
(ECF No. 86 at 18, ¶ 161.) Harmon was persuaded that Harris “had preselected a
candidate for an open nursing position who was the daughter of a nurse in her unit, and
that she had chosen this candidate over other qualified veterans and a current VA
employee.” (Id. at 19, ¶ 163.) Harmon “did not find [Harris’s] explanation that she was
not finished with the selection to be credible.” (Id. ¶ 164.) After “consider[ing] all of the
evidence before him, including [Harris’s] explanation for her conduct . . . and the Table
of Penalties,” Harmon decided that removal was the appropriate penalty. (Id. ¶¶ 165,
167.) Harmon says that age had no role in his decisionmaking process. (Id. ¶ 166.) As
with Winters, Harris disputes this (ECF No. 88 at 10), but that dispute is also presently
immaterial for reasons explained below.
3.

Final Action to Terminate Harris’s Employment (Hanfelder)

Harmon issued a memorandum on July 12, 2017, proposing to remove Harris.
(ECF No. 86 at 19, ¶ 167.) That memorandum went to Sallie Hanfelder, Executive
Director of the VA Eastern Colorado Healthcare System. (Id. at 19–20, ¶¶ 167–68,
170.) Hanfelder “was the deciding official whenever a manager proposed to remove
any non-probationary employee from federal service.” (Id. at 20, ¶ 169.) As Harmon
had received from Winters the proposed charges and the evidence file, so Hanfelder
received the same from Harmon, as well as written responses from Harris to Harmon’s
July 12, 2017 memorandum. (Id. ¶¶ 171–73.) At some time in July 2017, Hanfelder
12

also met with Harris personally to discuss the charges and Harris’s defense. (Id. ¶ 174.)
The parties dispute whether Hanfelder properly weighed the evidence available to her.
(Compare id. at 21–25 with ECF No. 88 at 11–12.) Again, for reasons explained below,
this dispute is presently immaterial.
Hanfelder decided to sustain all four of the charges drafted by Winters, and
further decided to terminate Harris, which she announced through a memorandum
dated August 2, 2017. (ECF No. 86 at 25, ¶ 212.) Her decision was not based on
Harris’s age. (Id. ¶ 214.) 7
III. ANALYSIS
Harris asserts three theories of relief: age discrimination (termination due to age),
age discrimination (hostile work environment), and retaliation for complaining about age
discrimination. (ECF No. 69 at 12–14.) The VA moves for summary judgment on all of
these claims. The Court will discuss them in turn.
A.

Age Discrimination: Termination Due to Age
It is undisputed that Hanfelder made the decision to terminate Harris, and

Hanfelder did not have Harris’s age in mind when she made that decision. Moreover,
Harris makes no argument that Hanfelder recognized Knight’s alleged age bias. Harris
thus relies on the “cat’s-paw” theory of discrimination, “meaning that [she seeks] to hold
[the VA] liable for the animus of a supervisor [i.e., Knight] who was not charged with
making the ultimate employment decision.” Staub v. Proctor Hosp., 562 U.S. 411, 415
(2011). More specifically, she argues that Knight was motivated by age bias to drive

7

Harris nominally denies this but offers no evidence or argument that Hanfelder made
her decision with Harris’s age in mind. (ECF No. 88 at 12.) Hanfelder’s lack of age bias is
therefore deemed undisputed.

13

Harris out of the Denver CLC by ensuring that Harris would perform poorly enough to
justify her termination. (See ECF No. 88 at 3 & n.2, 31, 35.)8 More succinctly, Harris
says that Knight “set [her] up in order to get rid of her.” (Id. at 24.)
“[T]o survive summary judgment when asserting [this] cat’s-paw theory of
liability,” Harris must “show that there is a genuine issue of material fact that (1) [Knight]
took action motivated by discriminatory animus; (2) [Knight] intended the action to cause
an adverse employment action, and (3) [Knight’s] actions proximately caused the
intended adverse employment action.” Singh v. Cordle, 936 F.3d 1022, 1038 (10th Cir.
2019). The Court will discuss each element in turn.
1.

Discriminatory Animus

The undisputed facts, and the adequately supported disputed facts seen in the
light most favorable to Harris, are enough for a factfinder to conclude that Knight held
some sort of animus against Harris. (See Parts II.C & E, above.) But does Harris have
evidence that Knight’s animus arose from Harris’s age? The Court finds that at least
the following accusations, if credibly supported at trial, would be enough for a
circumstantial inference of age bias.
First, Knight told Harris that Harris “would not be able to operate in the
environment [Knight] was going to create.” (ECF No. 86 at 32, ¶ 269.) Knight used the
term “fast-paced” or “dynamic” to describe that environment. (Id.)
Second, Knight treated the younger staff respectfully. (See ECF No. 86-2 at
187–90.)

8

Despite her attempts to accuse Winters and Harmon of age bias, Harris focuses her
cat’s-paw arguments exclusively on Knight. (See id.) Accordingly, for present purposes, the
Court can disregard Harris’s claims that Winters and Harmon were also age-biased.

14

Third, Harris was in her late 60s at the time and was near or at the top of the age
spectrum among Denver CLC employees. (Id. at 191.) Indeed, she was at least twenty
years older than most other Denver CLC employees. (Id.)
The Court does not mean to say that these three accusations are the only
accusations Harris might be able to prove to support her claim that Knight was agebiased, nor that the forthcoming trial will be limited to determining whether these
accusations are true. The Court holds only that there is at least one avenue for Harris
to prove Knight’s alleged age bias, and so summary judgment is not appropriate on this
element of Harris’s claim.
2.

Intent to Cause an Adverse Employment Action

The next question is whether Harris has evidence from which a reasonable
factfinder could conclude that Knight intended to cause an adverse employment action.
In this regard, Harris pursues two theories: (1) the charges related to the Candidate
(i.e., the “Prohibited Personnel Practice” and lack of candor) arose from “Knight’s false
accusations and claims,” which Knight intended to be “used to structure the [November
2016] Fact Finding [and] ultimately be utilized to remove Harris” (ECF No. 88 at 6); and
(2) Knight intentionally harassed and overloaded Harris so that she would perform
poorly in her job duties, thus creating a record that would justify termination (id. at 22–
24).
The Prohibited Personnel Practice charge raises interesting questions. Knight
did not “set [Harris] up” (see id. at 24) to designate the Candidate as “selected” (in two
different places) before a selection had actually been made, nor to fail to fill out the
appropriate forms for all candidates, nor to disregard veterans’ and current-employee
preferences. (See Part II.D, above.) Harris did these things herself. She now says she
15

did them out of “enthusiasm for [the Candidate]” (ECF No. 88 at 21), but the fact
remains that she did them, and she does not allege that this “enthusiasm” is somehow
attributable to Knight’s actions. Thus, Harris’s claim must be that she would not have
been disciplined for the Prohibited Personnel Practice but for Knight investigating further
and ensuring (in some unspecified way) that a fact finding would take place.
For now, the Court need not resolve whether Knight’s reaction to the Prohibited
Personnel Practice is enough to show her intent to cause Harris’s termination. Harris’s
termination ultimately resulted from a number of charges, some unrelated to the
Prohibited Personnel Practice. Among those charges was careless performance of job
duties. Much of the record for that arose from Knight’s own March 2017 fact finding
which focused largely on Harris’s inadequate audits. Assuming the evidence as
presented at trial is credible, a reasonable factfinder could conclude that the results of
the March 2017 fact finding flowed from Knight’s intentional overloading of Harris, such
that Harris was bound to perform poorly. This is particularly true considering that Harris
had no disciplinary history at the VA for her first approximately ten years of employment
there (see ECF No. 86-10 ¶ 53), and then, over the course of about a year working with
Knight, she developed a disciplinary history that supervisory officials above Knight
deemed severe enough to warrant considering immediate termination.
Thus, Harris has enough evidence to merit a trial on whether Knight intended to
set Harris up for termination.
3.

Proximate Cause

“If a final decisionmaker”—here, Hanfelder—“fires an employee based on
uncritical reliance on facts provided by a biased subordinate, the subordinate’s bias is
the proximate cause of the employment action.” Singh, 936 F.3d at 1038 (internal
16

quotation marks omitted). An employer can “break [that] causal chain” if “another
person or committee higher up in the decision-making process . . . independently
investigate[s] the grounds for dismissal.” Id. (internal quotation marks omitted).
But simply conducting an independent investigation does not
automatically immunize an employer from liability under the
cat’s-paw theory. A subordinate supervisor’s biased input
may still be a proximate cause of the adverse action if the
independent investigation takes it into account without
determining that the adverse action was, apart from the
supervisor’s recommendation, entirely justified.
Id. at 1039 (internal quotation marks omitted; emphasis in original).
Interestingly, although Hanfelder has every motivation to say so if it is true, she
never says that she would have terminated Harris for the Prohibited Personnel Practice
alone (which arguably has no connection to Knight’s treatment of Harris). She instead
says that her decision to terminate Harris was based on the “totality of the evidence
presented to me.” (ECF No. 86-10 ¶ 59.) That evidence necessarily included the
evidence generated directly by Knight through the March 2017 fact finding, and
generated indirectly by Knight through Harris’s failings allegedly attributable to Knight’s
actions that allegedly set Harris up to fail. (See ECF No. 86 at 13–23, ¶¶ 102–03, 150,
152, 172, 187–95.)
Accordingly, the VA has failed to make a record “that the adverse action was,
apart from the supervisor’s recommendation, entirely justified,” Singh, 936 F.3d at 1039
(internal quotation marks omitted), much less that a reasonable factfinder could only
conclude as much. The VA is not entitled to summary judgment on Harris’s terminationdue-to-age cause of action.
B.

Age Discrimination: Hostile Work Environment
Harris may prove that she was subject to a hostile work environment on account
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of her age by proving: (1) she is 40 or older; (2) she was subject to unwelcome
harassment; (3) the harassment was based on age; and (4) the harassment altered a
term, condition, or privilege of her employment and created an abusive working
environment. Dick v. Phone Directories Co., 397 F.3d 1256, 1263 (10th Cir. 2005).
Harris treats this cause of action in a somewhat confusing manner because, although
the VA does not challenge the fourth element for purposes of summary judgment, she
alleges that the element is satisfied because her “discharge is an adverse employment
action.” (ECF No. 88 at 35.) In other words, as argued in summary judgment briefing, it
is not clear what difference Harris sees between her hostile environment claim and her
termination-due-to-age claim.
In any event, the VA argues that Harris cannot persuade a reasonable factfinder
that she was subject to severe or pervasive harassment, or that any such harassment
was due to her age. (ECF No. 86 at 36–38.) For the reasons already explained in the
termination-due-to-age context, however, the Court finds that Harris has evidence from
which a factfinder could conclude that Knight hoped to make Harris’s life awful at the
Denver CLC, which is consistent with an intent to drive her out; and there is evidence
that Knight did so because she believed Harris was too old to perform her job. This
evidence is largely the same evidence that would come in to support the terminationdue-to-age claim, which is going forward in any event. Accordingly, the Court finds it
imprudent at this stage to determine whether the evidence could also support a hostile
work environment claim. This can be much more cleanly addressed through preliminary
and final proposed findings of fact and conclusions of law, see WJM Revised Practice
Standards IV.B.7 & V.J, and/or oral argument at trial, in preparation for which the parties

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will (presumably) have considered thoroughly how Harris’s hostile work environment
claim differs, practically speaking, from her discriminatory discharge claim.
For these reasons, the Court denies summary judgment to the VA on Harris’s
hostile environment claim.
C.

Retaliation for Complaining About Age Discrimination
The ADEA prohibits not only age discrimination, but discrimination on account of

“oppos[ing]” age discrimination. 29 U.S.C. § 623(d). The latter gives rise to a
“retaliation” claim. A prima facie case of retaliation requires the plaintiff to show that:
(1) the plaintiff engaged in protected opposition to discrimination; (2) the plaintiff then
suffered an adverse employment action; (3) a reasonable employee would have
considered the challenged employment action materially adverse; and (4) a causal
connection existed between the protected opposition and the materially adverse action.
Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1202 (10th Cir. 2008). The VA
argues that Harris cannot prove a retaliation claim because, assuming she complained
about “discrimination” (see Part II.C, above), she believes she was treated just as poorly
after those complaints as she was before. (ECF No. 86 at 38–39.)
Harris has had trouble in this lawsuit articulating a coherent retaliation claim.
(See ECF No. 68 at 9–10 (“the Court does not understand what Harris is attempting to
allege [through her retaliation claim],” given language in a previous complaint that “age”
was the “motivating factor to retaliate against her,” thus making the retaliation claim look
indistinguishable from a direct discrimination claim).) However, similar to the Court’s
treatment of the hostile environment claim, the Court finds it imprudent to decide at this
juncture whether Harris can prove a retaliation claim. The evidence to support such a
claim largely overlaps with the evidence she will use to support her other claims.
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For these reasons, the Court denies summary judgment to the VA on Harris’s
retaliation claim.
IV. FORM OF TRIAL
In the Final Pretrial Order, Harris asserts, without explanation, that “[t]rial in this
Case will be to a Jury.” (ECF No. 96 at 29.) The VA counters that “[a]ny trial on
[Harris’s] ADEA claims would be to the Court,” whereas Harris’s “single Rehabilitation
Act claim may be triable to a jury.” (Id.) When the Court set a trial date, it stated that
“[w]hether the trial will be to a jury or the Court will be determined by a subsequent
Order of the Court.” (ECF No. 97.)
Harris no longer has a Rehabilitation Act claim. She abandoned that claim when
she filed her Third Amended Complaint. (Compare ECF No. 28 with ECF No. 69.) She
acknowledges as much in the Final Pretrial Order, where she describes claims arising
only under the ADEA. (See ECF No. 96 at 8–10.)
The Seventh Amendment jury trial right does not override the federal
government’s sovereign immunity, and Congress, in waiving sovereign immunity to
ADEA suits, “did not intend to confer a right to trial by jury on ADEA plaintiffs proceeding
against the Federal Government.” Lehman v. Nakshian, 453 U.S. 156, 165 (1981).
Accordingly, trial will be to the Court.
Finally, the Court strongly encourages the parties to consider private mediation
or to jointly request a settlement conference before the Magistrate Judge in an effort to
resolve this matter without the need for a trial to the Court.
V. CONCLUSION
For the reasons explained above, the Court ORDERS as follows:

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1.

the VA’s Motion to Dismiss Claim Three of the Third Amended Complaint (ECF
No. 74) is DENIED AS MOOT;

2.

the VA’s Motion for Summary Judgment (ECF No. 86) is DENIED; and

3.

This case REMAINS SET for a Final Trial Preparation Conference on March 6,
2020, at 2:00 PM, and a five-day bench trial beginning on March 23, 2020, at
8:30 AM, both in Courtroom A801.
Dated this 3rd day of January, 2020.
BY THE COURT:

______________________
William J. Martínez
United States District Judge

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