Rodriguez v. Brown

JEANETTE RODRIGUEZ, Plaintiff, v. ARAPAHOE COUNTY SHERIFF TYLER S. BROWN, in his official capacity, Defendant.

Civil Action No. 18-cv-02919-KLM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

March 8, 2021

ORDER ON SUMMARY JUDGMENT

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on Defendant's Motion for Summary Judgment [#41]¹ (the "Motion"), which seeks judgment as a matter of law on Plaintiff's employment claims. Plaintiff asserts discrimination and harassment on the basis of sex, race, and national origin in violation of Title VII and the Colorado Anti-Discrimination Act ("CADA"), Colo. Rev. Stat. § 24-34-401 et seq. (Counts I and III), and retaliation in violation of Title VII and CADA (Counts II and IV). See Second Am. Compl. [#37] ("Complaint"). The Court has reviewed the Motion [#41] and Exhibits [#41, #43, #44,#45, #47, #49, #52], the Response [#48], the Reply [#50], the case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#41] is GRANTED as to all claims.

I. Material Facts

Unless otherwise noted, the facts set forth below are deemed to be undisputed. The Court has generally cited to the evidence in support of a fact only when the fact is disputed. Facts not specifically disputed are deemed to be admitted, and the Court has not considered Plaintiff's arguments or unsupported facts in her Response to Defendant's Statement of Material Facts or her Statement of Additional Disputed Facts. See, e.g., Response [#49], Plaintiff's Statement of Additional Disputed Facts ¶ 27 - "Plaintiff worked in an environment saturated with unlawful discriminatory animus . . . . Plaintiff has experienced a textbook case of discrimination. . . .") Finally, while the Court has considered all of the well-pled facts, it has not discussed every fact, and some of the disputed material facts are discussed in connection with the analysis in Section III.

Turning to the facts, Plaintiff has been employed by the Arapahoe County Sheriff's Office ("ACSO") as a non-certified deputy since 2008.

On February 10, 2015, a heated argument occurred between Plaintiff and Instructor Quinn Cunningham ("Cunningham") during an in-service firearms training regarding her performance in a scenario where she shot at a particular target. Plaintiff was removed from the range by instructor Deputy Chuck Johnston. This occurred after Plaintiff attempted to holster while lying prone, and thereby pointed the muzzle of her weapon in the direction of one or more persons at the range. Pl.'s Dep. [#41-1] at 115:14-116:6, 133:4-138:10; Cunningham Decl. [#41-2] ¶ 5(a)-(b); Cunningham Mem. [#41-3] at 2; Johnston Decl. [#41-6] ¶¶ 4-8. Plaintiff was removed from the range. Plaintiff denies Defendant's assertion that she instigated the disagreement, instead asserting that it was the other way around. Pl.'s Dep. [#41-1] at 135:3 (testifying that Cunningham "started yelling and screaming"); see also101:12-102:4 (testifying that Cunningham stated, "You're a fucking liar. You're fucking kidding me. You aren't even there. You're not a good shot.")

As a result of the in-service training, it is undisputed that Plaintiff was restricted from carrying a firearm and ordered to attend remedial firearms training. She attended this training on February 13, 2015 with instruction from Investigator Stevie True ("True") and Deputy Joe Van Hook ("Van Hook"), who were both lead firearms instructors for the Arapahoe County Sheriff's Office ("ACSO"). Plaintiff does not dispute this but asserts that the very fact she was ordered to attend remedial training was a discriminatory act and comprised an adverse act not experienced by similarly situated individuals. Response [#49] at 2-3. This is, however, improper argument.

Although Plaintiff did not repeat the holstering violation during remediation, Deputies True and Van Hook noted additional concerns at the training on February 13, 2015, in particular, questionable decision-making during scenario-based simulator training. Plaintiff admits this, but argues that the deputies' credibility is suspect because she passed the remedial firearms training. See True Mem. [#49-5] at 2; Chase Dep. [#49-4] at122:25-123:10 ("Deputy Rodriguez passed the POST certified hand gun qualification").

Also in support of Plaintiff's assertion that she passed the training on February 13, 2015, Plaintiff relies on a TrakStar entry [#49-3] authored by Plaintiff's supervisor. That entry states "[Plaintiff] was prohibited from any other participation that day, restricted from carrying her firearm in her official capacity as a Deputy Sheriff until further notice, and scheduled for remedial training on 02-13-15, which she successfully completed.") (emphasis added). Id. Defendant points out, however, that the person who wrote the entry stated in unrebutted testimony that when she wrote the document, she intended toconvey only that Plaintiff had successfully qualified, not that she had successfully remediated all of the issues that resulted in the training. Wickstrom Decl. [#45-2] ¶¶ 5-6. Additionally, Defendant states that passing a qualification test is not the same as demonstrating the ability to safely handle a handgun during remediation. Dickson Dep. [#49-11] at 43:17-45:5. The TrakStar entry is discussed in more detail in Section III, infra.

On March 19, 2015, Plaintiff learned that she would be scheduled to attend more remedial training to address her decision-making skills in situations involving firearms use, which she attended on May 7-8, 2015.

On June 12, 2015, Captain Jared Rowlison initiated an Internal Affairs ("IA") complaint about whether Plaintiff's inability to remediate the safety and decision-making concerns with her firearm use amounted to a policy violation requiring disciplinary action.

Per ACSO Policy ADM 306, Plaintiff was interviewed on June 17, 2015 by Deputy Inspector (Sgt.) Shane Walker and, at the end of the investigation, was permitted to review the file before meeting in a face-to-face review with Lieutenant Adam Burson ("Burson") to provide any additional information. After their meeting, Burson recommended that Plaintiff be removed as a deputy for inability to "perform the duties of the Deputy position," a decision concurred with by Bureau Chief Vincent Line.

On August 19, 2015, Plaintiff met with HR Manager Jon Takayama to discuss her options for continuing as an ACSO employee in a non-commissioned position, at which time she was notified of her right to appeal the IA recommendation.

On August 26, 2015, Plaintiff appealed the IA recommendation and met with Sheriff Walcher on September 1, 2015. At that meeting, Plaintiff accused Cunningham and True of discriminating against her because she is Hispanic and female. Sheriff Walcher referredthe matter to IA Inspector Travis Stewart ("Stewart"), who interviewed Plaintiff on September 3, 2015. According to Defendant, Plaintiff stated she believed Cunningham and True discriminated against her because she is Hispanic, but that neither Cunningham nor True ever made negative comments about her race. Plaintiff admits this, but refers to various complaints that she made that Cunningham and True discriminated against her. See Pl.'s Dep. [#49-1] at 291:5-7, 294:16-18.

Stewart subsequently closed the investigation without finding any policy violations or sufficient evidence to support the allegations, and referred the matter back to Sheriff Walcher. Sheriff Walcher informed Plaintiff on October 8, 2015 that he would decline to terminate her as a deputy provided that she attend additional remedial training to address her documented firearms, safety, and decision-making deficiencies.

On November 19, 2015, Plaintiff was placed on a 90-day work plan (PIP) for additional remedial training including: (a) firearms training on Nov. 24, 2015 with True and Van Hook; (b) officer safety on Dec. 16, 2015; (c) defensive tactics on Dec. 22, 2015; and (d) attendance at the Mindset Bootcamp by the Westminster Police Department on January 27-28, 2016. Plaintiff attended all of the scheduled training.

Plaintiff asserts that she was placed on the PIP plan despite being "cleared" by the IA investigation, but does not cite any evidence in support of that assertion. Defendant disputes this, pointing to evidence that Plaintiff was not "cleared." See IA Manual ADM 306 [#43-2] (showing no classification for "cleared"); IA Investigation Mem. [#43-5] at 8-9 ("Deputy Rodriguez has significant issues with her performance. . . .[I]t is obvious that she cannot perform the duties of the Deputy position."). Further, Defendant asserts that the reason for sending Plaintiff for additional training was clearly explained by the IA findingsand by Sheriff Walcher. IA Investigation Mem. [#43-5] at 8-9; Walcher Decl. [#44-4] ¶ 21.

At the end of the PIP, on March 3, 2016, Plaintiff was notified she had not performed satisfactorily during the training, was recommended for removal from her deputy position, and advised to assess for transfer to a non-deputy position. Plaintiff was also placed on paid administrative leave. Plaintiff again appealed this decision to Sheriff Walcher on March 10, 2016, and at a meeting on March 21, 2016, repeated her allegations of discrimination concerning True.

On June 13, 2016, Sheriff Walcher again declined to discharge Plaintiff but required her to complete a 40-hour firearms course at the Academy. Plaintiff attended the 2016 Academy firearms training in five 8-hour sessions between August 1 and October 13, 2016. All of these sessions were run by True and Van Hook, who handled general group instruction but left one-on-one instruction to six to seven other instructors.

Plaintiff filed an EEOC charge on January 3, 2017, which was officially communicated to the Sheriff's Office on January 5, 2017.

On January 4, 2017, Plaintiff met with Chief Line and Lieutenant J.D. Knight, and was informed for the third time that...