Ellis v. Salt Lake City Corporation et al

Filing 118

MEMORANDUM DECISION granting 98 Motion to Amend/Correct - Reconsider Order 87 . Motion to Reconsider is GRANTED. The court REINSTATES Plaintiff's Fourth Cause of Action as it relates to her May 2016 demotion. Signed by Judge Jill N. Parrish on 8/10/21. (alf)

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FILED
2021 AUG 10 AM 10:54
CLERK
U.S. DISTRICT COURT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MARTHA ELLIS,

ORDER GRANTING PLAINTIFF’S
MOTION TO RECONSIDER

Plaintiff,
v.
SALT LAKE CITY CORP., BRIAN DALE,
KARL LIEB, and ROBERT McMICKEN,

Case No. 2:17-cv-00245-JNP
District Judge Jill N. Parrish

Defendants.

INTRODUCTION
Before the court is a Motion to Reconsider Order (ECF No. 98) filed by Plaintiff Martha
Ellis (“Ellis”). Ellis moves the court to amend the portion of its prior Order (ECF No. 87) that
dismissed her Equal Protection claim, brought under 42 U.S.C. § 1983 (her Fourth Cause of
Action), insofar as it was premised on her 2016 demotion from Battalion Chief to Captain. She
urges the court to reinstate the claim. For the reasons set forth herein, the court GRANTS Ellis’s
Motion.
BACKGROUND AND PROCEDURAL HISTORY 1
I.

Ellis’s Exemplary Career
Ellis resides in Salt Lake County, Utah. She had an exemplary career as a firefighter. She

was employed by the Salt Lake City Fire Department (“SLCFD” or “Fire Department”) for twenty-

1

The court recited these facts in its prior order. See ECF No. 87 at 2–10.

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two years until Defendant Salt Lake City Corp. (“the City”) terminated her employment on or
about March 17, 2017. Ellis served as a Battalion Chief for seven years, from May 7, 2009 to May
2016. As Battalion Chief, Ellis held the position of Fire Marshall from May 7, 2009 through
October 17, 2014. She then held the position of Division Chief of Logistics and Emergency
Manager and Fire Intelligence Liaison Officer from October 2014 to May 2016. Ellis was the first
and only woman to attain the rank of chief officer with the SLCFD. She was also the most
decorated female in the Fire Department, receiving a Golden Spanner Award in 1996, a Chief’s
Certificate of Merit in 2005 and the Chief’s Recognition Medal in 2011. Ellis holds a Master’s
Degree from the Naval Postgraduate School and earned a fellowship to Harvard University’s
Senior Executives in State and Local Government Program.
II.

Initial Failure to Promote and Report of Discrimination 2
In 2009, when Ellis was ranked Battalion Chief and held the position of Fire Marshal, Ellis

applied for a Deputy Chief position, which was just one rank above Battalion Chief. Fire Chief
Kurt Cook (“Cook” or “Chief Cook”) passed her over for the promotion. Instead Defendants Karl
Lieb (“Lieb”) and Brian Dale (“Dale”), fellow SLCFD Battalion Chiefs and both men, were
promoted. Ellis complained to Chief Cook because she felt they were less qualified than she. Chief
Cook responded that he planned to elevate her position, the Fire Marshal position, to an executive
position if he could find funding for a third Deputy Chief position. He then appointed Ellis to the
Executive Team. However, when Ellis applied for the third Deputy Chief position in 2012, she

2

These allegations are outside the four-year statute of limitations applied to § 1983 actions in the
state of Utah, but are included for context. See Sheets v. Salt Lake Cty., 45 F.3d 1383, 1387 (10th
Cir. 1995) (“[A] four-year statute of limitations under Utah Code Ann. § 78–12–25(3) governs
§ 1983 actions.”); see also Houck v. City of Prairie Vill., Kan., 166 F.3d 1221 (10th Cir. 1998).
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was not promoted. Instead, Cook promoted Dan Walker, a less-qualified male co-worker, over
Ellis. Ellis complained to Chief Cook, who later admitted that he had decided to promote Walker
over Ellis before the candidate interviews had been conducted. Ellis reported the discrimination
to Melissa Green (“Green”), the City’s Equal Employment Opportunity Program Manager in April
2012. The Deputy Chief position was then terminated and replaced with an equivalent position
titled the Assistant Chief of Operations. The City chose Battalion Chief McCarty (“McCarty”)
over Ellis to fill the position. McCarty was sworn in on January 10, 2014.
III.

Written Warning in February 2014
On or about November 21, 2013, Chief Cook assigned Dale as Ellis’s supervisor. The

following month Dale held an “expectations meeting” with Ellis. He gave no indication that her
job performance was in question, but suggested that she had been too aggressive in an email to the
Department Head of Engineering and that she should not communicate to Chief Cook directly, but
needed to communicate through him or Lieb. No other Battalion Chiefs, all men, were subject to
the same policy. Also during that meeting, Dale made several derogatory comments. Dale
suggested that Ellis “throw tampons” at her employees if they got “whiney”; Dale referred to other
women in the Fire Department as “bitches” and called them “bitchy.”
On January 10, 2014, Dale and Ellis had another meeting where they discussed Ellis’s work
and Dale’s expectations. Dale gave no indication that Ellis’s job performance was in question.
However, during the meeting Dale made several additional comments that were derogatory, calling
women “bitches” or “bitchy.” He told Ellis that other female employees were on his “radar” and
instructed Ellis to discipline a female subordinate more harshly than a male subordinate.
Shortly thereafter, Ellis left for the Naval Postgraduate School. On February 6, 2014
(within a week of Ellis’s return), Dale issued Ellis a written warning. Dale claimed that during the
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past three weeks (including the two weeks while Ellis was away at the Naval Postgraduate School),
issues had been brought to his attention indicating that Ellis had violated department policies
several months prior. Ellis did not receive any notice that her behavior was in question prior to her
written warning. Her male colleagues often received prior warning. This was the first time that
Ellis had ever been disciplined or written up in her entire tenure with the SLCFD. Dale made
additional sexist remarks towards Ellis. Ellis rebuked Dale and complained to SLCFD Human
Resources (“HR”) representative Sykes. Sykes did not follow up with Dale.
Ellis was denied a meeting with Dale, Cook, Green, Sykes, and other HR representatives
before her February 18, 2014 response to the written notice was due. In that response, Ellis noted
that the written warning she received failed to comply with Salt Lake City disciplinary policies
because she had not received prior notice of the conduct. She also discussed Dale’s inappropriate
comments and suggested that the warning was an effort by Dale and Lieb to continue to deny her
promotions. She also noted that Sykes had been fully informed of Dale’s comments but had failed
to take action.
On February 25, 2014, Dale told Ellis that he would not rescind the warning. On or about
March 5, 2014, Ellis met with Sykes to discuss Dale’s behavior. Sykes did not take action or report
Dale to the City. However, in a March 12, 2014 training meeting, Sykes emphasized the
importance of documenting, counseling, and giving verbal warnings prior to written warnings.
Sykes represented that only criminal conduct would warrant a written warning without a prior
verbal warning.
IV.

Third Failure to Promote
In September 2014, Ellis applied for a position as the Assistant Chief of Administration.

Again, SLCFD passed over Ellis at the recommendation of Dale and Lieb. That position instead
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went to a less experienced and less educated male co-worker, Rusty McMicken (“McMicken”).
Ellis met with Cook, Dale, and Lieb to discuss their choice. They informed her that they did not
hire her because she had not demonstrated sufficient humility during her interview and because
she lacked experience. Ellis told Cook she believed that they were treating her unfairly because of
her gender. Cook said that was “bullshit” and that she should stop trying to play the victim.
Immediately following McMicken’s promotion, Ellis was removed from her position as
the Fire Marshal and reassigned as Division Chief over Logistics. Practically speaking, the
reassignment was a demotion. Additionally, rather than reporting to Dale, Ellis was now required
to report to Assistant Chief McMicken who himself reported to Dale.
V.

Charge of Discrimination and Subsequent Treatment
On November 25, 2014, Ellis filed a charge of gender discrimination and retaliation with

the Equal Employment Opportunity Commission (“EEOC”). Ellis identified the above-mentioned
instances of discrimination including: (1) Dale’s sexist comments to Ellis and other women in the
Fire Department; (2) Dale’s written warning; and (3) Ellis’s failure to receive promotions in 2012
and 2014. Ellis also reported that the Department had retaliated against her because she reported
the gender discrimination to the City. The City became aware of the charge no later than January
26, 2015.
Ellis alleges that after filing her charge, she was denied professional growth and
networking opportunities, her performance was unduly scrutinized, she was subjected to harsher
discipline than her male counterparts, and her reputation suffered. In January, February, and March
of 2015, McMicken, Lieb, and Dale excluded her from meetings, conferences, and other training
programs that her peers attended. They also accused her of failing to complete tasks that she had

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not been assigned. On March 16, 2015, Ellis amended her EEOC charge to include this subsequent
treatment.
After her amendment, Ellis alleges that McMicken, Dale, and the Fire Department
continued to discriminate and retaliate. They excluded her from conversations regarding areas
within her purview, including the wildlands preparation project for wildfire season. McMicken
prohibited Ellis from communicating with senior staff members but did not place similar
restrictions on male Battalion Chiefs. Ellis was also prohibited from bringing support staff to
meetings while other administrators, who were all men, were not.
On April 7, 2015, Cook announced his retirement effective April 30, 2015. On April 27,
2015, McMicken hand delivered to Ellis a Pre-Determination Hearing Notice informing her the
department was considering disciplinary action (“April 27 Notice”). The notice was not preceded
by any complaints of Ellis’s performance. Ellis believed that the disciplinary action was fabricated
to interfere with her possible promotion. On April 28, 2015, Ellis applied for the Chief position by
submitting her application to Mayor Becker and his chief of staff, David Everett, and requesting a
meeting. Everett responded that a new Fire Chief had already been selected and that “given [her]
pending EEO claims . . . meeting with the Mayor directly is not advisable.”
On May 4, 2015, Mayor Becker appointed Deputy Chief Dale as the new Fire Chief. Ellis
alleges she was not considered because of her pending EEOC complaint. Although Dale’s position
as Deputy Chief was left open, Dale and Lieb chose to leave it vacant.
On May 5, 2015, Ellis had her predetermination hearing. McMicken was chosen to evaluate
Ellis’s response to the April 27 Notice even though he had been the one who charged her with
misconduct. That same day, Ellis amended her EEOC complaint for a second time, including the
April 27 Notice and describing the worsening treatment at work.
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On June 4, 2015, Dale upheld the April 27 Notice and Ellis was suspended for two days
without pay. Ellis timely appealed her suspension. It was considered and upheld by Lieb, one of
the individuals cited in Ellis’s internal complaint and in her EEOC charge.
VI.

The City’s Response
The City’s counsel participated in the May 5, 2015 predetermination hearing. Although

Ellis reported discrimination and harassment during that hearing, the City took no action in
response. On March 17, 2015, Green responded to Ellis’s February 2014 response to her written
warning and informed Ellis that her allegations did not constitute violations of the City Harassment
Prevention Policy. Ellis provided Green with additional information on May 22, 2015. On June 2,
2015, the Mayor issued a statement in an article on Ellis’s case describing her claims as unfounded.
In July 2015, Ellis provided additional information to Green.
Other individuals filed complaints on Ellis’s behalf. On August 3, 2015, Union President
Steve Hoffman filed a complaint with the City because he had heard Dale say multiple times in
public forums that he did not like Ellis, that he thought she was a “bitch,” and that he was going
to hold her accountable. On August 31, 2015, Brittany Blair also reported to Green that Dale had
called Ellis a bitch in a meeting. On September 1, 2015, Ellis participated in a seven-hour interview
with Green. On October 20, 2015, Sarah Bohe, Ellis’s office facilitator reported to Green that Dale
had called Ellis a “fucking bitch.” In November 2015, Green completed her investigation and
found that Ellis’s reports of gender discrimination and retaliation were unsubstantiated.
VII.

Ellis’s Demotion
Following the conclusion of the investigation, Dale, Lieb, and McMicken continued to

direct critical and demeaning comments toward Ellis. Dale continued to refer to Ellis as a “fucking
bitch.” Dale and Lieb excluded Ellis from participating in an all-girls fire camp for the Girl Scouts
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of Utah, even though Ellis sat on the board of the Girls Scouts of Utah. In November 2015, Dale’s
assistant accused Ellis of creating a hostile work environment. Also in November, Dale, Lieb, and
McMicken tried to reassign one of Ellis’s subordinates to a different Battalion Chief, instructing
her not to inform Ellis of the change.
In January 2016, Ellis applied for a position as Operations Assistant Chief. McMicken,
Lieb, and McCarty conducted the interviews. They passed over Ellis for promotion. That position
instead went to a less-qualified male applicant who had completed no higher education.
On March 16, 2016, McMicken issued Ellis another Pre-Determination Hearing Notice
(“March 16 Notice”), informing her that she was being placed on paid administrative leave while
the City considered disciplinary action against her based on an alleged lack of engagement, lack
of ownership of responsibility, inability to follow instructions, and lack of respect for the chain of
command. Upon receipt of the notice, Ellis was escorted from the building in front of her
coworkers and instructed not to speak with anyone about the disciplinary proceedings. False
rumors started in the office that Ellis had been suspended due to substance abuse in her office.
Ellis requested a meeting with Mayor Biskupski on or about March 30, 2016. Ellis provided
the mayor with details of the conduct by the Fire Department and by Green. Mayor Biskupski said
she would have Julio Garcia, her director of Human Resources, investigate. Ellis gave Garcia audio
recordings of Dale calling female employees “bitches” and “bitchy.” On April 19, 2016, Garcia
responded to Ellis and informed her via email that although the recordings included a tone and
language that was inappropriate, there was no evidence that the action taken against her was
retaliatory or based on her membership in a protected class.
On April 11, 2016, the City held Ellis’s predetermination hearing regarding the March 16
Notice. McMicken and Lieb were present and acted as the deciding officials for the SLCFD. On
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May 3, 2016, Lieb and McMicken upheld the March 16 Notice and demoted Ellis from Battalion
Chief to Captain.
On or about May 27, 2016, Chief Dale announced his retirement effective October 1, 2016.
On or about July 8, 2016, Ellis amended her EEOC Charge again. She reported that the City had
passed her over for the January promotion, that Dale, Lieb, and McMicken continued to make
disparaging comments and that the Department had discriminated against her by demoting her.
Following Ellis’s demotion, the Fire Department offered Ellis two options: continue to
work for McMicken or go back to Operations as a station captain at Fire Station 12. Ellis chose
Operations even though Ellis had not served in Operations for over 13 years and thus had not
received any training regarding fire ground tactics or using first responder equipment. Because of
a hand injury, Ellis went on FMLA leave starting May 13, 2016. During her leave, Ellis fell into a
clinical depression and entered into unpaid medical leave. During her leave, the City gave the Fire
Station 12 position to another person. On January 11, 2017, Ellis filed her amended complaint in
state court, initiating this proceeding.
VIII. Termination
Ellis appealed her demotion to the Salt Lake City Civil Service Commission (“CSC”). The
CSC held a two-day evidentiary hearing on February 1–2, 2017 and took the matter under
advisement. During that period, Ellis requested additional unpaid leave. Instead the Fire
Department ended Ellis’s leave and told her to return to work on March 1, 2017, or face
termination. Ellis asked the City to consider her mental and physical health. The Fire Department
refused to grant her a further extension, requiring her to return to work immediately. The
Department’s refusal was contrary to how Cook and Dale had been treated during similar periods.

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In light of the City’s refusal to extend Ellis’s unpaid leave, and its insistence that she return
as a “swing” Captain, necessitating physical fitness, Ellis requested that she be placed in training
and work part time. The City denied her request. She was given until March 8, 2017 to accept or
decline. Ellis communicated with Lieb and the City regarding her requests for accommodation. On
March 17, 2017, the City terminated her employment.
IX.

Civil Service Commission Hearings
On May 18, 2017, the CSC overturned Ellis’s May 2016 demotion. The CSC found that

the allegations used to justify the demotion were not sustained by the record and that they appeared
to be an attempt to manufacture misconduct and to justify disciplinary action when there were no
performance issues. Although the CSC overturned her demotion, the City refused to reinstate Ellis
to her position.
X.

Procedural History
Ellis filed her initial complaint in state court on October 27, 2016. She amended her

complaint in the same court on January 11, 2017. The City removed the case to this court on March
30, 2017. On April 21, 2017, Defendants filed a motion to dismiss Ellis’s Title VII claims against
the Fire Department and several individual defendants and to dismiss Ellis’s Utah Protection of
Public Employees Act claim. The court granted that motion on December 20, 2017. On January
22, 2018, Ellis filed a Second Amended Complaint. On February 5, 2018, Defendant Salt Lake
City filed a motion to dismiss Plaintiff’s first and second cause of action, which asserted violations
of Title VII, and her sixth cause of action, which asserted violations of the Utah Open and Public
Meetings Act. On August 14, 2018, the court granted in part and denied in part the motion to
dismiss.

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Ellis filed her Third Amended Complaint on October 31, 2018, asserting nine federal
claims against the City, Dale, Lieb, and McMicken. Counts 1–3 assert violations of Title VII
against the City and Counts 7–9 assert violations of the ADA. Counts 4–6 assert claims against
the City for its alleged violations of the Equal Protection Clause under 42 U.S.C. § 1983: Count 4:
Gender Discrimination in Violation of the Equal Protection Clause of the Fourteenth Amendment;
Count 5: Retaliation in Violation of the Equal Protection Clause of the Fourteenth Amendment;
and Count 6: Hostile Work Environment Harassment in Violation of the Equal Protection Clause
of the Fourteenth Amendment. 3
On January 4, 2019, the City moved to dismiss Counts 4–6 of Ellis’s Third Amended
Complaint. See ECF No. 61. As a result, the court dismissed Ellis’s Fifth Cause of Action but
declined to dismiss her Sixth Cause of Action. And while it did not dismiss her entire Fourth Cause
of Action, the court dismissed it insofar as it was premised on her May 2016 demotion. The court
allowed Ellis’s Fourth Cause of Action to proceed only insofar as it was based on three alleged
instances in which she was denied promotion. See ECF No. 87 at 18–19. In the motion now before
the court, Ellis requests that the court reinstate her Section 1983 claim for gender discrimination
(Fourth Cause of Action) based on her 2016 demotion.

3

These claims are identical to the claims brought by Ellis under Title VII. But Ellis can bring both
claims, so long as she states a claim under § 1983. “If a plaintiff can show a constitutional violation
by someone acting under color of state law, then the plaintiff has a cause of action under Section
1983, regardless of Title VII’s concurrent application.” Starrett v. Wadley, 876 F.2d 808, 814 (10th
Cir. 1989).
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LEGAL STANDARD
I.

Rule 12(b)(6) Standard
Dismissal of a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure is

appropriate when a plaintiff fails to state a claim upon which relief can be granted. When
considering a motion to dismiss for failure to state a claim, a court “accept[s] as true all wellpleaded factual allegations in the complaint and view[s] them in the light most favorable to the
plaintiff.” Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). The complaint must allege more than
labels or legal conclusions and its factual allegations “must be enough to raise a right to relief
above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007).
II.

Standard for Reconsidering Prior Order
While a motion for reconsideration is not “specifically provided for” in the Federal Rules

of Civil Procedure, see Lacefield v. Big Planet, No. 2:06-CV-844 DB, 2008 WL 2661127, at *1
(D. Utah July 3, 2008), it is within this court’s “discretion to revise [its] interlocutory orders prior
to entry of final judgment.” Anderson v. Deere & Co., 852 F.2d 1244, 1246 (10th Cir. 1988); see
also FED R. CIV. P. 54(b) (explaining that any non-final order “may be revised at any time before
the entry of a judgment.”). The court’s previous Order dismissing Ellis’s Section 1983 demotion
claim was not a final judgment. Rather, it was an interlocutory order. Thus, the court construes
Ellis’s motion to reconsider as “an interlocutory motion invoking [this court’s] general

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discretionary authority to review and revise interlocutory rulings prior to the entry of final
judgment.” Wagoner v. Wagoner, 938 F.2d 1120, 1122 n.1 (10th Cir. 1991).
DISCUSSION
Ellis argues that the court erred in dismissing her Section 1983 claim for violation of the
Equal Protection Clause (her Fourth Cause of Action) that was premised on her May 2016
demotion. Specifically, she argues that the court required her to plead the elements of a prima facie
case in her Complaint and that this was in error. She further argues that even if it were necessary
to allege a prima facie case in the complaint, she did so, and that the court misapplied the standard
for a prima facie case of discriminatory demotion by requiring her to allege that she was replaced
by a less qualified male colleague. The City responds that to prevail on an Equal Protection claim
for discriminatory demotion, Ellis must show that she was treated differently from similarly
situated employees. The City argues that she failed to do so because she failed to demonstrate how
her demotion was related to her gender. The City further argues that the court was correct when it
previously concluded that her demotions were “more appropriately characterized as Title VII
claims for retaliation” than as Section 1983 employment discrimination claims.
The parties had not previously briefed the specific issue of Ellis’s demotion and its viability
as a Section 1983 claim. Having now been fully briefed on the issue, the court agrees with Ellis
that it should amend its prior order and reinstate her Section 1983 claim insofar as it is premised
on her demotion. As an initial matter, Ellis argues that she is not required to plead all the elements
of a prima facie case of discriminatory demotion in order to survive a motion to dismiss. While
this is true, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510–11 (2002), the court disagrees
with Ellis’s characterization of its prior order. The court did not require Ellis to plead with
specificity every element of a prima facie case. Rather, as explained in the prior order, when faced
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with a motion to dismiss, courts are to “examine the first step of the McDonnell Douglas
framework: the elements [Ellis] would need to establish to prove a prima-facie case of gender
discrimination.” Morman v. Campbell Cty. Mem’l. Hosp., 632 F. App’x. 927, 933 (10th Cir. 2015)
(citation omitted). “That is the only way to assess if her claim is, in fact, plausible.” Id. Thus, the
court will look to the first step of the McDonnell Douglas framework in determining whether Ellis
has stated a plausible claim for relief.
I.

Elements of a Prima Facia Case of Discriminatory Demotion under Section 1983
“The prima facie case is a flexible standard that may be modified to relate to different

factual situations.” Randle v. City of Aurora, 69 F.3d 441, 451 n.13 (10th Cir. 1995) (citation
omitted). Upon examination of the cases cited by the parties, some tension exists as to the
appropriate elements of a prima facie case of discriminatory demotion asserted under Section
1983. Ellis cites Jones v. Denver Post Corp., 203 F.3d 748, 753 (10th Cir. 2000) (citations omitted),
abrogated on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002),
in which the Tenth Circuit declared that “[t]o establish a prima facie case of discriminatory
demotion, [a] plaintiff must show (1) that he was within a protected group, (2) adversely affected
by defendant's employment decision, (3) qualified for the position at issue, and (4) that the job
from which he was demoted was not eliminated.” While the suit in Jones was brought under Title
VII, as this court noted in its prior order, the standard for liability for employment discrimination
is the same under Title VII and Section 1983. See Drake v. City of Fort Collins, 927 F.2d 1156,
1162 (10th Cir. 1991); see also Randle v. City of Aurora, 69 F.3d 441, 450 (10th Cir. 1995) (“[T]he
City can be held liable for any impermissible employment decisions under §§ 1981 and 1983

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pursuant to the McDonnell Douglas framework originally developed to determine the existence of
intentional discrimination in violation of Title VII.” (citations omitted)). 4
The City, on the other hand, cites the Tenth Circuit’s decision in Morman for the proposition
that to successfully allege a prima facie case of discriminatory demotion under Section 1983, Ellis
is required to allege that she was treated differently from similarly situated employees. In Morman,
the plaintiff was an orthopedic surgeon who brought a Section 1983 Equal Protection claim against
her employer, a public hospital. 632 F. App’x. at 928. She alleged that it “discriminated against her
based on her gender by providing better facilities, compensation, assistance, equipment, and
advertising to its three male orthopedic surgeons.” Id. In considering her employer’s motion to
dismiss, the Tenth Circuit stated:
[W]e need not decide the specific elements [the plaintiff] would
need to prove to succeed at trial. Under any standard, to prevail on
an equal-protection claim, she would need to show that she was
treated differently than similarly situated employees . . . . Thus, to
survive the motion to dismiss, Dr. Morman needed to plead a
plausible claim that she was similarly situated to the male orthopedic
surgeons. That she has failed to do.”
Id. at 934–35.
These cases create some doubt as to whether a plaintiff asserting employment
discrimination under Section 1983 must allege that she was treated differently from similarly
situated employees. In other words, the issue presented here is whether courts evaluating Section
1983 employment discrimination cases may simply borrow the Title VII prima facie standard, or

4

The Randle court applied a standard nearly identical to the one employed by the Court in Jones
in a failure-to-promote case brought under Section 1983. See Randle, 69 F.3d at 451 n.13.
Importantly, it did not require the plaintiff to show that she was treated differently from similarly
situated employees.
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whether they impose an additional requirement of disparate treatment. On the one hand, the Randle
court did not impose this additional requirement; it simply borrowed the Title VII standard. 69
F.3d at 451 n.13. On the other hand, the Morman court did require an allegation of disparate
treatment. 632 F. App’x. at 934–35.
For the following reasons, the court concludes that an allegation of disparate treatment is
not required for a plaintiff to state a plausible claim for discriminatory demotion under Section
1983. While such a requirement has some intuitive appeal—a violation of the “Equal Protection”
clause implies some unequal or differential treatment—the Tenth Circuit, as explained above, has
long applied the McDonnell Douglas standard, borrowed from the Title VII context, to
employment discrimination cases asserted under Section 1983. See, e.g. Drake, 927 F.2d at 1162;
Randle, 69 F.3d at 451 n.13. This standard, as enumerated in Jones, does not require a specific
showing, or in this case, allegation, that the plaintiff was treated differently from similarly situated
employees. 203 F.3d at 753. Morman did not purport to overrule or alter this Tenth Circuit
precedent. Furthermore, as an unpublished decision, Morman is nonbinding on this court; the
decisions in Randle, Drake, and Jones are published and do bind the court. Thus, the court will
look to the first step of the prima facie discriminatory demotion framework articulated in Jones to
determine whether Ellis has stated a plausible claim for relief.

5

5

Ellis also argues that this court erred when it previously observed that Ellis’s demotion is more
properly characterized as a Title VII retaliation claim than as a Section 1983 discrimination claim.
While the court did not explicitly dismiss Ellis’s Section 1983 claim for discriminatory demotion
on the grounds that it could only be asserted under Title VII, it includes this footnote to clarify this
aspect of its prior order. The court made this observation—that her demotion supported a
retaliation rather than discrimination claim—based on the close temporal proximity between
Ellis’s report of discrimination to Mayor Biskupski, on March 30, 2016, and then to the City’s
H.R. director, Julio Garcia, on April 8, 2016, and her demotion, which occurred on May 3, 2016.
While it is true that Ellis may ultimately recover under a Title VII retaliation theory rather than
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II.

Ellis’s Allegations
Here, Ellis has included sufficient factual allegations in her Complaint to state a plausible

prima facie case of discriminatory demotion. First, she is a woman and is therefore within a
protected group. Second, she alleges that she was adversely affected by the demotion because she
lost rank and her pay was reduced. See ECF No. 54 at ¶131. Third, she alleges that she was
qualified for the position from which she was demoted because she had held the position for seven
years, had obtained postgraduate education, and had an exemplary employment record, including
having won various awards. See id. at ¶¶ 20–26. Finally, it can be reasonably inferred from the
Complaint that the City did not eliminate the position after Ellis was demoted from it. This is
because Ellis alleges that the city improperly failed to reinstate her to her former position even
after the Civil Service Commission overturned her demotion. See id. at ¶¶ 176–178. Accordingly,
the court reinstates Ellis’s Section 1983 claim for discriminatory demotion.
III.

Ellis’s Motion for Partial Summary Judgment
At the same time she filed the present motion to reconsider, Ellis also filed a Motion for

Partial Summary Judgment, moving for summary judgment only as to her Section 1983

under a Section 1983 discrimination theory, at this stage, the same factual allegations may give
rise to claims under both Section 1983 and Title VII. See Notari v. Denver Water Dept., 971 F.2d
585, 587 (10th Cir. 1992) (“[T]he basis for a § 1983 claim is ‘independent’ from Title VII when it
rests on substantive rights provisions outside Title VII—that is, when it rests on a constitutional
right or a federal statutory right other than those created by Title VII. We emphasize that the basis
of a § 1983 claim may be independent of Title VII even if the claims arise from the same factual
allegations and even if the conduct alleged in the § 1983 claim also violates Title VII.” (citation
omitted)); Arnett v. Davis Cty. Sch. Dist., 1993 WL 434053, at *2–4 (D. Utah April 5, 1993)
(allowing Title VII retaliation claim and Section 1983 discrimination claim to proceed based on
same factual allegations). Thus, the court clarifies that even if the demotion ultimately turns out to
support a Title VII retaliation claim, that fact would not warrant dismissal of Ellis’s Section 1983
claim for discriminatory demotion at this stage.
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discriminatory demotion claim. Because the claim had been dismissed and not yet reinstated, the
court struck the Motion as having been prematurely filed. See ECF No. 116. Because the court has
reinstated Ellis’s claim, Ellis may now re-file her Motion for Partial Summary Judgment.
CONCLUSION AND ORDER
For the foregoing reasons, Ellis’s Motion to Reconsider is GRANTED. The court
REINSTATES her Fourth Cause of Action as it relates to her May 2016 demotion.

DATED August 10, 2021.
BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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