Ruprecht v. Level 3 Commc'n, Inc., Civil Action No. 10-cv-01330-MSK-CBS

CECILIA RUPRECHT, Plaintiff,

v.LEVEL 3 COMMUNICATIONS, INC., Defendant.

Civil Action No. 10-cv-01330-MSK-CBS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Dated: February 29, 2012

Honorable Marcia S. Krieger

OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

THIS MATTER comes before the Court pursuant to the Defendant's Motion for Summary Judgment (# 32), the Plaintiff's response (# 38), and the Defendant's reply (# 49); and the Plaintiff's Motion to Supplement (# 48) her summary judgment response and the Defendant's response to that motion to supplement (# 50).

FACTS

The Court briefly summarizes the facts here, and elaborates as necessary in its analysis. Ms. Ruprecht began her employment at Level 3 Communications ("Level 3") in 1999. Over the years, she was promoted several times, eventually rising to the position of Senior Manager of Billing Operations in November 2007. In April 2009, David Parrack was appointed Senior Director of Billing Operations, becoming Ms. Ruprecht's supervisor.

The parties disagree sharply as to how subsequent events should be characterized, but it is sufficient to observed that in mid-2009, Mr. Parrack reconfigured certain job duties and titlesin the Billing Operations department. Specifically, Mr. Parrack modified the tasks to be performed by the Senior Manager, Billing Operations and gave it a new job title, Senior Manager, Usage Billing. On or about June 28, 2009, Mr. Parrack met with Ms. Ruprecht to explain the changes in her responsibilities increased ti cover technical support and customer service. Mr. Parrack also explained to Ms. Ruprecht that she would have to reapply for the new Senior Manager job.

Ms. Ruprecht did apply for the job, but so did Satish Thomas, a man who had previously been employed by Level 3. On August 10, 2009, Mr. Parrack selected Mr. Thomas for the position, purportedly because Mr. Thomas' qualifications were superior to those of Ms. Ruprecht. Ms. Ruprecht was reassigned into the position of Project Manager on a Data Usage team, a "non-management, independent contractor" position. Level 3 contends that this was transfer was "more of form than of substance," insofar as she continued to perform essentially the same tasks and at the same salary. Ms. Ruprecht characterizes the transfer as a significant demotion.

Ms. Ruprecht brings this action alleging two claims (# 1): (i) a claim asserting both discrimination (which the Court understands to be sex discrimination) and retaliation in violation of Title VII, 42 U.S.C. § 2000e et seq.; and (ii) a claim asserting both discrimination and retaliation in violation of C.R.S. § 24-34-401 et seq. The parties' briefing indicates that, with regard to the discrimination claim(s), the parties understand Ms. Ruprecht to allege two distinct claims of sex discrimination, one based on failure to promote into the new Senior Manager position, and one based on her "demotion" to Project Manager.

Level 3 moves (# 32) for summary judgment, arguing: (i) with regard to the failure topromote claim, she cannot show a prima facie case insofar as she cannot show that she was qualified for the new position, circumstances giving rise to an inference of discrimination or that Level 3's proffered reason for selecting Mr. Thomas over her is pretextual; (ii) with regard to the demotion claim, she cannot show that she suffered an adverse action, that such action occurred in circumstances giving rise to an inference of discrimination, or that Level 3's proffered reasons for the action are pretextual; and (iii) with regard to the retaliation claim, she cannot show that her reassignment to Project Manager constituted an adverse action, cannot show a causal connection between her complaints and that action, and cannot show that Level 3's proffered reasons for the action are pretextual.

After Ms. Ruprecht filed her response to the motion, she filed a motion to supplement (#48) the response to tender an affidavit from a witness she had previously been unable to locate. Level 3 opposes the request to supplement, but also offers arguments as to why the tendered declaration is irrelevant.¹

ANALYSIS

A. Standard of review

Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements thatmust be proved for a given claim or defense, sets the standard of proof and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is "genuine" and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).

If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.

If the moving party does not have the burden of proof at trial, it must point to an absence of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, a trial is required. If the respondent fails to produce sufficient competentevidence to establish its claim or defense, the claim or defense must be dismissed as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

B. Discrimination claims

Ms. Ruprecht asserts discrimination claims arising under both Title VII and Colorado's Civil Rights Act. Claims under Colorado law are generally assessed according to the same analysis used in Title VII cases. Perez v. United Air Lines, Inc., 362 F.Supp.2d 1230, 1247 (D. Colo. 2005). Absent some argument by the parties that Colorado law differs in some material way - and no such argument is made - the Court will analyze Ms. Ruprecht's claims solely under Title VII standards.

To establish a claim for sex discrimination under Title VII, Ms. Ruprecht must first establish a prima facie case by demonstrating: (i) that she is a member of a protected class; (ii) that she held the minimum objective qualifications for the position she sought or held; (iii) that she suffered an adverse employment action; and (iv) that adverse action occurred in circumstances giving rise to an inference of discrimination. See e.g. EEOC v. PVNF, LLC., 487 F.3d 790, 800 (10th Cir.2007); Cortez v. Wal-Mart Stores, Inc., 460 F.3d 1268, 1273-74 (10th Cir. 2006). If Ms. Ruprecht makes that showing and Level 3 articulates a legitimate, non- discriminatory justification for the adverse action, Ms. Ruprecht bears the ultimate burden of showing that Level 3's proffered explanation is a pretext for discrimination. Id.

1. Failure to promote claim

The Court turns first to Ms. Ruprecht's claim that Level 3's failure to award her the modified Senior Manager position was the result of sex discrimination. Level 3 does not dispute that Ms. Ruprecht is a member of a protected class or that the denial of the Senior Managerposition constituted an adverse action, and thus, the Court turns to the remaining two elements of the prima facie case: Ms. Ruprecht's objective qualifications and the existence of circumstances giving rise to an inference of discrimination.

Turning first to qualifications, at the prima facie case stage, an employee is merely required to demonstrate that she possessed the minimum, objectively-ascertainable qualifications for a position. EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1193-94 (10th Cir. 2000). The analysis at this stage is not whether Ms. Ruprecht was a better or worse candidate for the Senior Manager position than Mr. Thomas, but merely an inquiry into whether she possessed the basic qualifications to perform that job. Id. Although Level 3 now argues that Ms. Ruprecht lacked even the basic qualifications for the job, this argument is inconsistent with Level 3's own acknowledgment that applications for the Senior Manager position were sent to Human Resources for "initial review" and that two applications - Ms. Ruprecht's and Mr. Thomas'- "passed initial review" and were forwarded to Mr. Parrack for consideration. Indeed, Mr. Parrack interviewed Ms. Ruprecht for the position.² These facts are sufficient to demonstrate that Level 3 did not consider Ms. Ruprecht to lack the fundamental qualifications for the position. Accordingly, the Court finds that, taking the evidence in the light most favorable to Ms. Ruprecht, she can show this element of her prima facie case.

The final element of the prima facie case requires a showing that the adverse action - the selection of Mr. Thomas over Ms. Ruprecht - occurred in "circumstances...