Masterpiece Cakeshop Incorporated et al v. Elenis et al

Filing 1

COMPLAINT against Anthony Aragon, Cynthia H. Coffman, Aubrey Elenis, Aubrey (I) Elenis, Miguel Rene Elias, Carol Fabrizio, Charles Garcia, John Hickenlooper, Rita Lewis, Jessica Pocock (Filing fee $ 400,Receipt Number 1082-6247415)Attorney James A. Campbell added to party Masterpiece Cakeshop Incorporated(pty:pla), Attorney James A. Campbell added to party Jack Phillips(pty:pla), filed by Jack Phillips, Masterpiece Cakeshop Incorporated. (Attachments: #1 Exhibit A to Complaint, #2 Summons of Anthony Aragon, #3 Summons of Aubrey Elenis, #4 Summons of Miguel Rene Elias, #5 Summons of Carol Fabrizio, #6 Summons of Charles Garcia, #7 Summons of Rita Lewis, #8 Summons of Jessica Pocock, #9 Summons of Cynthia Coffman, #10 Summons of John Hickenlooper, #11 Civil Cover Sheet)(Campbell, James)

EXHIBIT A

COLORADO
Department of
Regulatory Agencies
Colorado Civil Rights Division

1560 Broadway Street, Suite 825
Denver, CO 80202

Charge No. CP2018011310

Autumn Scardina
7779 Everett Way
Arvada, CO 80095

Complainant

Masterpiece Cakeshop Incorporated
3355 S. Wadsworth Blvd
Lakewood, CO 80227

Respondent

DETERMINATION
Under the authority vested in me by C.R.S. 24-34-306 (2), I conclude from our
investigation that there is sufficient evidence to support the Complainant's claim of
discrimination. As such, a Probable Cause determination is hereby issued.
The Respondent is a place of public accommodation within the meaning of C.R.S. 2434-601 (1 ), as re-enacted, and the timeliness and all other jurisdictional requirements
pursuant to Title 24, Article 34, Parts 3 and 6 have been met.
The Complainant alleges that on or about June 26, 2017, she was denied full and
equal enjoyment of a place of public accommodation based on her sex (female)
and/or transgender status (gender identify).
The Respondent denies the allegation of discrimination and contends that it will not
design custom cakes that express ideas or celebrate events at odds with its owner and
staff's religious beliefs.
The legal framework under which civil rights matters are examined is as follows: The
Charging Party bears the burden of proving that discrimination has occurred. Each
key or essential element ("prima facie") of the particular claim must be proven,
through a majority ("preponderance") of the evidence. If the Charging Party meets
this initial burden of proof, then the Respondent has the burden of explaining, with

1560 Broadway Street, Suite 825, Denver, CO 80202
www .colorado.gov I pacific/ dora/civil-rights

P 303.894.2997 F 303.894.7830

sufficient clarity, a non-discriminatory justification for the action taken. This is in
response to the specifically alleged action named in the charge. In addition, the
Respondent has the burden to produce documents and other information requested by
the administrative agency during the civil rights investigation. If the Respondent
offers a non-discriminatory reason, then the burden once again shifts back to the
Charging Party to prove that this proffered legitimate reason is merely a pretext for
discrimination. At this stage, the Charging Party must prove, again through sufficient
evidence, that the true and primary motive for the Respondent's actions is unlawful
discrimination.
"Unlawful discrimination" means treatment that is primarily based on the Charging
Party's asserted protected group or status. The Respondent's stated reasons for its
actions are presumed to be true, unless and until the Charging Party, again through a
preponderance of the evidence in the record, adequately shows that the
Respondent's reason is pretext (i.e., is not to be believed), and that the Charging
Party's protected status was the main reason for the adverse action taken. The
Charging Party does not need to submit additional evidence, in response to the
Respondent's position, but the available evidence must be legally sufficient so that a
reasonable person would find that the Respondent intended to discriminate against
the Charging Party because of his/her protected civil rights status. See Colorado Civil
Rights Commission v. Big O Tires, Inc. , 940 P.2d 397 (Colo. 1997); Ahmad Bodaghi and
State Board of Personnel , State of Colorado v. Department of Natural Resources, 995
P.2d 288 (Colo. 2000).
The Respondent is a bakery that provides cakes and baked goods to the public, and
operates within the state of Colorado.
On or about June 26, 2017, the Complainant contacted the Respondent to order a
cake and spoke with Debi Phillips ("D. Phillips") (female), Co-Owner.
The
Complainant contends that she requested a custom birthday cake.
D. Phillips
acknowledges that the Complainant called and requested a custom cake, but asserts
that based on their conversation, it was not clear that she was requesting a birthday
cake. D. Phillips states that she solicited details about the Complainant's wishes for
the cake, including the date it was needed, the size, and desired flavors. The
Complainant responded that she would need the cake by July 6, 2017, needed it to
serve 6-8 people, and wanted the cake to have a blue exterior and a pink interior.
The Complainant asserts that she "explained that the design was a reflection of the
fact that [she] transitioned from male-to-female and that [she] had come out as
transgender on [her] birthday." D. Phillips states that after the Complainant
informed her that the cake was "to celebrate a sex-change from male to female," she
instructed the Complainant that the Respondent would not make the requested cake.
At this point, the phone call ended.

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Shortly thereafter, the Complainant called the Respondent again and spoke with Lisa
Eldfrick ("Eldfrick") (female), Service Representative. The Complainant states that
she told the person who answered, Eldfrick, that she had just called and was
disconnected. She asserts that she told Eldfrick that she "was calling to order a
birthday cake and that [she] wanted it to be blue on the outside and pink on the
inside because [her] birthday was the same day as the day [she] came out as
transgender."
Eldfrick asserts that she informed the Complainant that the
Respondent would not fulfill this request.
The evidence indicates that the
Complainant questioned the Respondent's policies and that Eldfrick ended the phone
call without responding to the Complainant's inquiries.
Jack Phillips (male), Owner, who admittedly makes all final business decisions for the
Respondent, affirms this position, contending that the Respondent will not create
custom cakes that address the topic of sex-changes or gender transitions. He
contends that he will not support a message that "promote[s] the idea that a person's
sex is anything other than an immutable God-given biological reality."
The Respondent asserts that it declines to make more than two to five custom cakes
per week, due to time constraints. The Respondent also states that it refuses to
make custom cakes for other expressions that it deems to be objectionable.
Denial of Full and Equal Enjoyment of a Place of Public Accommodation/Sex/
Transgender Status:
To prevail on a claim of discriminatory denial of full and equal enjoyment of goods,
services, benefits or privileges of a place of public accommodation, the evidence
must show that: (1) the Charging Party is a member of a protected class; (2) the
Charging Party sought goods or services from the Respondent; (3) the Charging Party
was otherwise a qualified recipient of the services of the Respondent; 4) the
Respondent denied the Charging Party the full and equal enjoyment of its services;
and 5) the circumstances give rise to an inference of unlawful discrimination based
on a protected class.
The Complainant is a member of protected classed based on her sex (female) and
transgender status (gender identity). On or about June 26, 2017, the Complainant
sought goods and service from the Respondent by requesting a custom cake. The
Complainant was a qualified recipient of the services by the Respondent. An
employee of the Respondent initially indicated that she was willing to assist the
Complainant with this request, however, when the Complainant requested a blue
exterior and a pink interior, explaining that the design reflected the Complainant's
gender transition from male to female, the Respondent refused to provide the
requested service to the Complainant.
The Respondent asserts that it will not
provide the service of creating cakes that "promote the idea that a person's sex is
anything other than an immutable God-given biological reality." The evidence thus
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demonstrates that the refusal to provide service to the Complainant was based on the
Complainant's transgender status. A claim of discriminatory denial of full and equal
enjoyment of a place of public accommodation has been established. As asserted by
the Supreme Court, "It is unexceptional that Colorado law can protect gay persons,
just as it can protect other classes of individuals, in acquiring whatever products and
services they choose on the same terms and conditions are offered to other members
of the public." Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S.
_ (2018).
Based on the evidence contained above, I determine that the Respondents have
violated C.R.S. 24-34-602, as re-enacted, in respect to the Complainant's claim that
the Respondents denied her equal enjoyment of a place of public accommodation.
In accordance with C.R.S. 24-34-306(2)(b)(II), as re-enacted, the Parties hereby are
ordered by the Director to proceed to attempt amicable resolution of these charges
by compulsory mediation. The Parties will be contacted by the agency to schedule
this process.
On Behalf of the Colorado Civil Rights Division

Date

4

Certificate of Mailing
This is to certify that on July 2, 2018 a true and exact copy of the Closing Action of the
above-referenced charge was deposited in the U.S. mail, postage prepaid, addressed to the
parties and or representatives listed below:

CCRD Case number CP2018011310

Autumn Scardina
7779 Everett Way
Arvada, CO 80005

Todd Scardina, Esq.
Scardina Law
1245 E. Colfax Ave., Suite 302
Denver, CO 80218

Masterpiece Cakeshop, Incorporated
3355 S. Wadsworth Blvd. H-117
Lakewood, CO 80227

Jacob Warner, Esq.
Alliance for Defending Freedom
15100 N. 90th Street
Scottsdale, AZ 85260

Jon Wilso .
Color
Department of Regulatory Agencies
Col rado Civil Rights Division
1560 Broadway, Suite 825
Denver, CO 80202