Chacon v. State Board for Community College and Occupational Education

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-03110-PAB-TPO
LORI CHACON,
Plaintiff,
v.
STATE BOARD FOR COMMUNITY COLLEGE AND
OCCUPATIONAL EDUCATION,
Defendant.
RECOMMENDATION
Timothy P. O’Hara, United States Magistrate Judge.
Before this Court is Defendant’s Motion for Summary Judgment. ECF 57. Chief U.S.
District Judge Philip A. Brimmer referred the Motion to this Court. ECF 58. The Motion is fully
briefed for review.1 Oral argument would not materially assist in the Motion’s adjudication. For
the reasons stated herein, the Court recommends that the Motion [ECF 57] be granted in part and
denied in part.
PLAINTIFF’S CLAIMS
In her Complaint [ECF 1], Plaintiff alleged three forms of discrimination by her employer
1 	The briefing of this Motion consists of the Motion [ECF 57], Plaintiff’s Response [ECF
64 & 65]; Defendant’s Reply [ECF 66]; Plaintiff’s Motion for Leave to File Sur-Reply and Sur-
Reply [ECF 67 & 70], Defendant’s Sur-Response [ECF 71], and Plaintiff’s Sur-Sur-Reply [ECF
72]. In addition, this Court considered the clearer, legible copies of certain documents from ECF
65-1 that Plaintiff submitted upon this Court’s request. ECF 79.
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based on: medical disability (in violation of the Americans with Disabilities Act, 42 U.S.C. §
12101, et seq.), age (in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621,
et seq.), and national origin (in violation of Title VII, 42 U.S.C. §§ 2000e, et seq.). Chief Judge
Brimmer already dismissed Plaintiff’s ADA and ADEA claims. ECF 33. What remains is her Title
VII claims.
This Court relies on Plaintiff’s Complaint [ECF 1] and Charge of Discrimination [ECF 67-
13] to determine the contours of Plaintiff’s Title VII claims. The Charge of Discrimination contains
those claims that she exhausted and, therefore, those claims that are actionable in this lawsuit.
Specifically, in her Charge of Discrimination Plaintiff raised the following:
(1) 	Failure to Promote on August 12, 2021.
(2) 	“[O]ngoing discrimination,” which led to Plaintiff’s resignation on August 16, 2021
(General Discrimination and Constructive Discharge);
(3) 	Retaliation for complaining about her supervisor since 2014;
(4) 	The failure to announce open positions and/or hiring of less qualified white
applicants (Terms and Conditions).
ECF 67-13 at 9-10.2 This is consistent with the claims raised by Plaintiff in her Complaint. ECF 1
at 3. These also are the claims addressed by Defendant in its Motion for Summary Judgment. See
generally ECF 57.
Not only must an employee administratively exhaust a Title VII claim before filing suit,
but the employee must act timely. An employee has 300 days after suffering a discrete act of
2 	In her Response, Plaintiff mentions a claim of Hostile Work Environment. ECF 64 at 8-9.
No such claim had been raised previously, and Plaintiff failed to exhaust administrative remedies
as to such a claim. The Court considers many of the facts alleged from that portion of Plaintiff’s
Response as part of Plaintiff’s Disparate Treatment/Terms and Conditions Claim.
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discrimination to file a charge with the appropriate agency. Porter v. Regents of the Univ. of Colo.,
No. 22-cv-00335-MDB, 2023 WL 2664207, at *5-6 (D. Colo. Mar. 28, 2023). Plaintiff filed her
Charge of Discrimination on June 6, 2022. ECF 67-13 at 11. Therefore, Plaintiff may not assert a
Title VII claim for any discrete act of discrimination that occurred before August 10, 2021. A court
still may consider matters outside the permitted Title VII claims or that predate the Charge of
Discrimination by more than 300 days to the extent they provide relevant background information
to the claims that are properly before the court, Porter, 2023 WL 2664207, at *6 n.6 (citing
Morgan, 536 U.S. at 113), or, in some cases, are part of a continuing violation, id. at 5.3
FACTUAL RECORD
I. 	Statement of Undisputed Material Facts
Noting that Plaintiff did not specifically admit or deny Defendant’s Undisputed Statement
of Facts, with limited exception, this Court generally adopts the Statement of Undisputed Material
Facts (SUMF) that Defendant prepared pursuant to Section II(F)(3)(b) of Chief Judge Brimmer’s
Practice Standards (Civil Cases). See ECF 57 at 2-6. This Court has independently verified each
Undisputed Fact against the submitted evidentiary record and includes a citation from the record
where each fact may be found.
Plaintiff’s First Eight Years of Employment at CCD
1. 	Plaintiff was employed at the Community College of Denver (CCD) from March
2010 to August 31, 2021. Plaintiff worked in CCD’s Human Resources Department. ECF 38 at 9.
2. 	CCD is a college and institution of higher education within the Colorado
3 	This exception, not raised by the Plaintiff here, does not apply to discrete acts that fall
outside the 300-day window. See Porter, 2023 WL 2664207 at *6 (citing Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 110-15 (2002)).
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Community College System (CCCS). It is governed by Defendant. ECF 32 at 1 n.1; ECF 38 at 9.
3. 	Plaintiff identifies her race as white and her ethnicity as Hispanic (Mexican
American). ECF 57-2 at 50:18-20.
4. 	Plaintiff’s employment at CCD began in 2010 as an hourly employee in the HR
Department. ECF 57-2 at 11:8-13.
5. 	Plaintiff was promoted to the permanent position of Administrative Assistant III in
2011. ECF 57-2 at 11:11-17, 13:10-13, 24:2-10; ECF 57-3 at 2.
6. 	Plaintiff was promoted to the position of HR Specialist in 2014 without having to
apply for it. ECF 57-2 at 15-16; ECF 57-3 at 2.
7. 	Plaintiff was promoted to the position of HR Generalist4 in 2019 without having to
apply for the position. ECF 57-2 at 15: 5-14; 16:3-20; ECF 57-3 at 2.
8. 	For about one to two years when Plaintiff held the HR Specialist position, her
supervisor was Jennifer Matthews. At that time Ms. Matthews was the Assistant Director of HR.
ECF 57-2 at 17:6-15, 21:5-11.
9. 	Ms. Matthews describes herself as a Hispanic woman. ECF 57-4 ¶ 2.5
10. 	After Ms. Matthews resigned, Plaintiff’s supervisor was Patty Davies who by that
time had become the Executive Director of the HR Department, and Ms. Davies remained
4 	Plaintiff describes her most recent job title as Senior HR Generalist. ECF 64 at 3; ECF
67-13 at 9.
5 	At her deposition, Plaintiff refers to Ms. Matthews as white, ECF 57-2 at 92, and she
premises her arguments on that basis, as well. However, Plaintiff does not go so far as to contest
that Ms. Matthews is Hispanic. Therefore, it is deemed undisputed for purposes of the present
motion. See Fed. R. Civ. P. 56(e)(2).
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Plaintiff’s supervisor thereafter. ECF 1 at 3; ECF 57-2 at 21:5-17.
The Assistant Director Position in 2018
11. 	Ms. Matthews resigned her employment in 2018. Her title when she resigned was
Assistant Director. ECF 57-2 at 84:20-85:6.
12. 	Bryan Wattenburger was an HR Recruiter before he was hired as the Assistant
Director. ECF 57-5 ¶ 12.
13. 	Ms. Davies changed the focus of the Assistant Director’s responsibilities from
payroll, new hires, and employee relations (which were the work areas that both Ms. Matthews
and Plaintiff had done) to recruiting, benefits, and civil rights. Although she initially wanted the
Assistant Director position, Plaintiff did not actually apply for it because the changed work areas
discouraged her. Plaintiff was not interested in those subjects. ECF 57-2 at 86:1-89:15.
14. 	Ms. Davies hired Mr. Wattenburger for the Assistant Director position. ECF 57-5
¶ 12.
15. 	Mr. Wattenburger is white. ECF 57-2 at 92:6-7; ECF 57-6 at 2.
Assistant Director Position in 2020
16. 	Mr. Wattenburger, the new Assistant Director, resigned in 2020. ECF 57-2 at
34:25-35:6, 110:8-15.
17. 	Plaintiff told Ms. Davies that if the work areas of the Assistant Director position
continued to be recruiting, benefits, and civil rights, then she was uninterested in the position
(because she was uninterested in those work areas). ECF 57-2 at 110:22-113:4.
18. 	Upon Mr. Wattenburger’s resignation, Ms. Davies appointed Camille Mulholland,
an HR Specialist, to serve as the Assistant Director on an interim basis pending the search for a
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permanent replacement. ECF 57-5 ¶ 13.
19. 	Ms. Mulholland is white. ECF 57-6 at 2.
20. 	Ms. Mulholland applied for the permanent Assistant Director position in 2021 but
was not selected. ECF 57-5 ¶ 14.
21. 	Plaintiff did not apply for the permanent Assistant Director position. ECF 57-2 at
112:21-113:4.
22. 	Ms. Davies hired Shana Stovall as the permanent Assistant Director in April 2021.
ECF 57-5 ¶ 14.
23. 	Ms. Stovall is an African-American woman. ECF 57-2 at 135:3-10; ECF 57-5 ¶ 15.
The Newly Created “HR Technical Manager” Position
24. 	CCD gave Plaintiff an interim pay raise in May 2021 while she was an HR
Generalist because she had taken on additional work duties. Plaintiff was informed that both the
increased pay and the additional duties were temporary and would end on September 30, 2021. It
was anticipated that the newly created Technical Manager position would take over the additional
duties. ECF 57-7; ECF 57-5 ¶ 18.
25. 	The additional duties that Plaintiff assumed were some—but not all—of the duties
that the Technical Manager would perform. ECF 57-5 ¶ 19.
26. 	CCD posted the HR Technical Manager position in July 2021. Applicants were
limited to current CCCS employees. ECF 57-8 (“This advertisement is open to current employees
of the Colorado Community College System only.”).
27. 	The applicant pool for the HR Technical Manager position was never limited to
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only employees of CCD, the particular college where Plaintiff worked.6 ECF 57-5 at ¶¶ 23-24.
28. 	Ms. Davies encouraged Plaintiff to apply for the HR Technical Manager position.
ECF 57-2 at 148:10-15; ECF 38 at 10, ¶ 6. Both Ms. Davies and Ms. Stovall gave Plaintiff feedback
on her application. ECF 57-2 at 150:6-18. Ms. Davies had drafted the position’s qualifications with
Plaintiff’s experience in mind so that Plaintiff would be well-qualified for it. Id. at 160:9-17.
29. 	Plaintiff applied for the HR Technical Manager position. ECF 57-2 at 149:18-24.
30. 	When Plaintiff applied for the position, she knew that the position holder would
report to Ms. Davies as the HR Department’s Executive Director. ECF 57-2 at 146:7-19; ECF 57-
8 at 1.
31. 	Plaintiff participated in two interviews for the position. ECF 57-2 at 150:19-23.
32. 	Both Ms. Davies and Ms. Stovall interviewed Plaintiff. ECF 57-2 at 150:25-151:1.
33. 	Plaintiff learned on August 12, 2021, that she was not selected for the HR Technical
Manager position. ECF 57-2 at 196:20-25.
34. 	It was Mr. Robert Miller who was selected for the position. Mr. Miller is a white
male who was employed at another community college in Colorado. ECF 57-2 at 197:20-198:8;
ECF 57-5 ¶ 27.
35. 	In her Declaration, Ms. Davies states the reasons why she believes that Mr. Miller
was the better applicant. He excelled at the second interview which consisted of making a
presentation. He showed initiative in how he gathered and analyzed data, and the analysis that he
6 	Although Plaintiff alleges in her Complaint that Ms. Davies told her that the applicant
pool for the HR Technical Manager position would be made up exclusively from other
employees at the Community College of Denver, ECF 1 at 4, Plaintiff did not contest that fact as
part of the summary judgment briefing. Therefore, it is deemed undisputed for purposes of the
present motion. See Fed. R. Civ. P. 56(e)(2).
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presented was more comprehensive. Ms. Davies also consulted with the other search committee
member, Ms. Stovall. ECF 57-5 ¶¶ 30-35. Ms. Stovall likewise regarded Mr. Miller to be the better
candidate for the position. In her Declaration, Ms. Stovall noted Mr. Miller’s “data analysis skills,
presentation skills, and his management experience.” ECF 57-9 ¶ 10. Mr. Miller had done
additional research, and “he was able to convey a story with that data.” Id. ¶ 11. Ms. Stovall also
regarded Mr. Miller as better prepared for the job’s management responsibilities. Id. ¶ 12.
Plaintiff’s Resignation
36. 	Plaintiff decided to resign from CCD as soon as she learned she was not chosen for
the position. ECF 57-2 at 235:21-236:7.
37. 	When Plaintiff decided to resign, she did not know who had been chosen. ECF 57-
2 at 236:3-7.
38. 	Plaintiff submitted her resignation letter on August 16, 2021. ECF 57-1.
39. 	In her resignation letter, Plaintiff gave two weeks’ notice, stating that her last day
of employment with CCD would be August 31, 2021. Starting August 25, 2021, she would take
annual leave. ECF 57-1.
40. 	Plaintiff intended to work from the date she gave notice of her resignation until
August 25, 2021, when she would take annual leave. ECF 57-2 at 238:8-19.
41. 	Plaintiff continued to work after she had decided to resign on August 12, 2021, and
she worked on the day when she submitted her resignation letter. ECF 57-2 at 196:20-25, 235:21-
236:7, 250:4-251:9.7
7 	Plaintiff did not actually work after she submitted her resignation despite the original
intent to do so. She alleges that she was unable to work because she no longer had computer
access. ECF 57-2 at 238:11-239:22.
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II. 	Plaintiff’s “Additional Genuine Disputed Material Facts”8
In her Response, Plaintiff lists some factual statements and references some exhibits in the
section marked “Additional Genuine Disputed Material Facts – Disputed Facts and Plaintiff’s
Evidence.” ECF 64 at 6. To the limited extent that Defendant admits these facts, ECF 66 at 2-3,
they will be considered undisputed. Otherwise, they will be considered as part of the body of
evidence for the Court’s consideration. Plaintiff also includes a “Statement of Facts” that is
unnumbered and lacks any citations to record evidence. ECF 64 at 3. Finally, Plaintiff includes a
section titled “Genuine Disputes of Material Fact Exist Regarding Discrimination” which the
Court takes to be a section of mixed fact and argument. Id. at 4-6. This Court also considers
Plaintiff’s exhibit submissions despite any procedural or formatting flaws with them, including
those that the Court received separately that were previously not legible. See ECF 79.
Ultimately it remains Plaintiff’s burden to show genuine disputes of material fact that
preclude the entry of summary judgment based on evidence that could be admissible at trial. This
Court will not “take on the responsibility of serving as [her] attorney in constructing arguments
and searching the record.” Foti v. Bernalillo Cnty., No. CIV 14-0667 JB/SMV, 2015 WL 1640445,
at *1 (D.N.M. Mar. 30, 2015) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
8 	Although Plaintiff did not strictly comply with Chief Judge Brimmer’s Practice Standards
relating to Summary Judgment Motions, see Section II(F)(3), this Court observes that she made
an effort to do so and based on the information provided, the Court is able determine the factual
record here. Although Plaintiff’s pro se status does not excuse her from complying with the
Local Rules and Chief Judge Brimmer’s Practice Standards, “in light of her pro se status, the
Court reviews [her] filings liberally.” McCollum v. United States, No. 12-cv-01175-PAB-MJW,
2014 WL 788062, at *1 (D. Colo. Feb. 26, 2014) (citing Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Hall, 935 F.2d at 1110).
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III. 	Additional Factual Record
This Court held a Status Conference on April 8, 2025, at which time the Court discussed
“the status of discovery and currently pending deadlines.” ECF 48. At that time, Plaintiff advised
the Court “that she has not and does not intend to serve any written discovery requests upon
Defendant, nor does she intend to conduct any depositions in this case.” Id.
PARTIES’ BRIEFING
In its Motion for Summary Judgment, Defendant challenges all four of Plaintiff’s claims
of discrimination. See generally ECF 57. Each argument will be addressed below. In her Response,
Plaintiff points to certain facts about her employment situation in support each of her claims. See
generally ECF 64. Plaintiff provides very little by way of legal argument to support her claims. In
its Reply, Defendant denies multiple factual assertions made by Plaintiff and points to a lack of
factual evidence in the record to support her largely conclusory statements. See generally ECF 66.
Defendant also notes that Plaintiff’s allegations of discrimination are limited by the 300-day
window from the filing of her Charge of Discrimination, id. at 3, and that Plaintiff fails to
demonstrate that her allegations of workplace abuse were discriminatory in nature, id. at 4-5.
While the Court considered Plaintiff’s Motion for Leave to File Sur-Reply [67], Sur-Reply
[ECF 70], and Sur-Sur-Reply [ECF 72], these filings add little to the discussion and primarily
retread ground covered in the other pleadings. Plaintiff provides no case citations as part of these
filings. And although Plaintiff does not submit her own affidavit as part of the briefing on
Defendant’s Motion, the record does contain Plaintiff’s deposition. Because Plaintiff was sworn
to tell the truth prior to her deposition, ECF 57-2 at 5, this Court considers the relevant portions of
it, as highlighted by the Parties, in its analysis.
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STANDARD OF REVIEW
I. 	Fed. R. Civ. P. 56(c) – Motion for Summary Judgment
Fed. R. Civ. P. 56(a) allows for a party to move for summary judgment prior to trial. In
doing so, the moving party must identify “each claim and defense-or the part of each claim or
defense-on which summary judgment is sought.” A court shall grant summary judgment if the
pleadings, depositions, answers to interrogatories, admissions, or affidavits show “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). A fact is material if it “might affect the outcome of the suit under the
governing substantive law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citing 10A
C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2725, pp. 93-95 (1983)).
A motion for summary judgment serves the purpose of testing whether a trial is required.
See Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). “Summary judgment
procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral
part of the Federal Rules as a whole, which are designed to ‘secure the just, speedy and inexpensive
determination of every action.’” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (citing Fed.
R. Civ. P. 1; Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues
of Material Fact, 99 F.R.D. 465, 467 (1984)).
The moving party bears the initial responsibility of providing the factual basis for its
motion. Celotex, 477 U.S. at 323. “The moving party may carry its initial burden either by
producing affirmative evidence negating an essential element of the nonmoving party’s claim, or
by showing that the nonmoving party does not have enough evidence to carry its burden of
persuasion at trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002)
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(citation omitted).
If the movant properly supports a motion for summary judgment, the non-moving party
may not simply “rest on allegations contained in the Complaint” to meet that burden. BBG Holding
Corp. v. K Capital, LLC, No. 20-cv-03268-MEH, 2021 WL 6118681, *2 (D. Colo. Oct. 28, 2021).
Instead, the opposing party must respond with specific facts showing a genuine factual issue for
trial. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 247–48 (“[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact.”) (emphasis
in original). These specific facts may be shown “by any of the kinds of evidentiary materials listed
in Rule 56(c), except the mere pleadings themselves.” Pietrowski v. Town of Dibble, 134 F.3d
1006, 1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at 324). In other words, the opposing party
must do more than make a conclusory denial of an asserted material fact. A conclusory or self-
serving affidavit without corroborating evidence does not suffice. Argo v. Blue Cross Blue Shield
of Kansas, Inc., 452 F.3d 1193, 1200 (10th Cir. 2006). Instead, the opposing party must provide
an explanation for the denial with an accompanying specific reference to the evidentiary record.
See, e.g., American Auto. Ins. Co. v. Marlow, 666 F. Supp. 2d 1209, 1212-13 (D. Colo. 2009)
(deeming defendants’ failure to admit or deny facts as admitted).
“In considering the evidence in the record, the Court cannot and does not weigh the
evidence or determine the credibility of witnesses.” McAlister v. LGI Homes Corporate, LLC, No.
23-cv03088-NYW-TPO, 2025 WL 843749, at *2 (D. Colo. Mar. 18, 2025) (citing Fogarty v.
Gallegos, 523 F.3d 1147, 1165 (10th Cir. 2008)). If there is a genuine dispute as to the material
facts, “[those] facts must be viewed in the light most favorable to the nonmoving party.” Scott v.
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Harris, 550 U.S. 372, 380 (2007) (citing Fed. R. Civ. P. 56(c)). If the parties “tell two different
stories, one of which is blatantly contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version.” Pierson v. Bassett, 534 F. App’x 768, 771 (10th
Cir. 2013) (unpublished) (quoting Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir.
2009)).
While this Court construes a pro se litigant’s filings liberally, the litigant “still must follow
the established procedures governing Rule 56(f) motions.” Abdulhaseeb v. Calbone, 600 F.3d
1301, 1310 (10th Cir. 2010) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972); DiCesare v.
Stuart, 12 F.3d 973, 979 (10th Cir. 1993)). This Court has no obligation to scour the record “to
find evidence supporting [a] litigant’s summary judgment interests.” Hampton v. Barclays Bank
Delaware, 478 F. Supp. 3d 1113, 1121 (D. Kan. Aug. 13, 2020) (citing Cross v. The Home Depot,
390 F.3d 1283, 1290 (10th Cir. 2004)).
DISCUSSION
I. 	Introduction - Title VII—Unlawful Employment Discrimination
Pursuant to Title VII of the Civil Rights Act of 1964, a covered employer may not “fail or
refuse to hire . . . or otherwise . . . discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s race .
. . or national origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff can prove intentional discrimination
either through direct evidence (oral or written statements by the defendant which reveals the
discriminatory motive) or indirect (i.e., circumstantial) evidence. Kendrick v. Penske Transp.
Servs., Inc., 220 F.3d 1220, 1226 (10th Cir. 2000) (citations omitted). If a plaintiff seeks to prove
discrimination with indirect or circumstantial evidence, then the plaintiff must satisfy the
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requirements set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973). See Iweha v. Kansas,
121 F.4th 1208, 1225 (10th Cir. 2024).
II. 	Disparate Treatment/Terms and Conditions Claim
The Court interprets Plaintiff’s first claim to be one of Disparate Treatment based on
unequal terms and conditions. Plaintiff raises this claim in her Complaint [ECF 1 at 3] as well as
in her Charge of Discrimination [ECF 67-13 at 9-10]. Defendant addresses this claim first in its
Motion for Summary Judgment as a claim of general discrimination, focusing on Plaintiff’s
argument that having to participate in an interview for the Technical Director position constituted
discrimination. ECF 57 at 6-10. In Plaintiff’s Response, she addresses the argument as part of the
section entitled “Genuine Disputes of Material Fact Exist Regarding Discrimination.” See ECF 64
at 4.
To prove a claim of disparate treatment as it relates to a term or condition of employment,
the plaintiff first must make a prime facie showing of discrimination. To do so, a plaintiff must
demonstrate not only membership in a protected class,9 but also:
(1) 	she suffered an adverse employment action
(2) 	that took place under circumstances that give rise to an inference of
discrimination.10
Ibrahim v. Alliance for Sustainable Energy, LLC, 994 F.3d 1193, 1196 (10th Cir. 2021) (citing
9 	Defendant does not dispute that Plaintiff is a member of a protected class as Hispanic
whether in terms of race and/or national origin.
10 	Defendant does not request, and this Court does not require, that Plaintiff prove that she
was “satisfactorily performing her job duties.” Recent Tenth Circuit caselaw suggests that no
such evidence is necessary to demonstrate a prima facie case of discrimination. See Troyer, 2024
WL 3415110 at *7 (collecting cases).
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E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007)). “[Plaintiff] must show some harm
respecting an identifiable term or condition of employment.” Muldrow v. City of St. Louis, Mo.,
601 U.S. 346, 354-55 (2024). Plaintiff’s burden at this stage is “not onerous.” Troyer v. Marathon
Petroleum Co., LP, No. 22-cv-02449-PAB-STV, 2024 WL 3415110, at *7 (D. Colo. July 15, 2024)
(citing Bennett v. Windstream Commc’ns, Inc., 792 F.3d 1261, 1267 (10th Cir. 2015)).
This Court understands Plaintiff’s first claim to allege that she was discriminated against
by having to apply for the position of HR Technical Manager rather than receiving the promotion
without an application process. ECF 1 at 4; ECF 57-11 at 1. In her Charge of Discrimination,
Plaintiff describes that her supervisor, Ms. Davies, allegedly followed a different practice in the
past by not announcing a job opening and simply selecting a white applicant to fill the position.
ECF 57-11 at 1. The Court focuses on that allegation and also considers Plaintiff’s allegations of
general discrimination in the workplace that may relate to this claim.
A. 	Adverse Employment Action
Plaintiff must demonstrate as part of her prima facie case of discrimination that she
suffered an adverse event. To do so, Plaintiff must show that she suffered “some harm” or “some
injury” in respect to an identifiable term or condition of employment because of her employer’s
action. Scheer v. Sisters of Charity of Leavenworth Health Sys., Inc., 144 F.4th 1212, 1214 (10th
Cir. 2025) and Christians in the Workplace Networking Grp. v. Nat’l Tech. & Eng’g Sols. of
Sandia, LLC, No. 24-2072, 2025 WL 2114295, at *7 (10th Cir. July 29, 2025) (both citing
Muldrow, 601 U.S. at 346).
Here, Plaintiff vaguely alleges that it was an adverse employment action to even have to
interview for the HR Technical Manager Position. ECF 57-11 at 1. This Court disagrees and finds
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that the requirement to interview under the circumstances was not an adverse employment action.
While Plaintiff cites no legal support for her position, Defendant identifies a case, Hishon
v. King & Spalding, 467 U.S. 69 (1984), which sheds some light. In Hishon, the Supreme Court
determined that when certain promises of consideration for advancement are made by the employer
as part of the employment contract, then the failure of the employer to even consider the employee
for advancement can constitute an adverse employment action. 467 U.S. at 74-76. The opportunity
for advancement must form “an aspect of the relationship between the employer and the
employees.” Id. at 75-76 (quoting Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404
U.S. 157, 178 (1971)). The Supreme Court found that denial of access to partnership at the
defendant law firm to constitute an adverse event for Title VII purposes based on the plaintiff’s
allegation that partnership was a benefit of the employment relationship. Id. at 76.
This case is clearly different than Hishon. Plaintiff supplies no evidence that promotion to
HR Technical Manager was part of her initial agreement to work for Defendant. In fact, the
position did not even exist at the time Plaintiff was hired. Furthermore, even considering the
evidence that Plaintiff submits as part of her Second Sur-Reply, ECF 70-2,11 that Ms. Davies may
have discussed promoting Plaintiff to “operations manager” with Plaintiff and others, it was a
different position than HR Technical Manager. And shortly after that discussion occurred, Ms.
Davies informed Plaintiff that the promotion would have to be available to “everybody.” ECF 57-
2 at 43:6-7.
11 	Defendant says this message was not disclosed in discovery, ECF 71 at 2, however the
substance of the message, that Ms. Davies offered Plaintiff a promotion, was discussed during
Plaintiff’s Deposition. See ECF 57-2 at 40:9-42:16.
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This case is much more similar to Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1117
(7th Cir. 2001), where the promotion in question was “purely discretionary” and not part of the
employer’s “customary practice.” As a result, the interview requirement did not impact a term or
condition of Plaintiff’s employment, and, therefore, it did not constitute an adverse action. Id.
Furthermore, Plaintiff’s argument that Defendant’s past employment practice supports her
theory of disparate treatment is not convincing, even when viewing the facts in a light most
favorable to her. Plaintiff asserts that “other HR recruiters were promoted to HR Assistant Director
roles without announcement or allowing qualified Hispanic employees, including Plaintiff, to
apply.”12 See e.g., ECF 64 at 4. But even considering this information, much of the undisputed
evidence demonstrates that interviews were in fact conducted by Defendant prior to determining
promotions. SUMF No. 12 (referencing one interview process), ECF 64 at 5 (referencing two
separate positions with interview processes). While there is some evidence that certain promotions
were decided without an interview process, SUMF No. 18, Plaintiff benefitted from this practice
in the past. SUMF Nos. 6-7 (demonstrating two promotions Plaintiff received without any
interview process).
As it relates to all of Plaintiff’s other allegations under this claim, including her allegation
of disparate work assignments and prior hiring procedures, there are multiple issues with this
12 	It is unclear whether the Court can even consider Defendant’s prior conduct as it relates
to other employees. The answer is likely no based on Plaintiff’s inability to connect the alleged
prior discriminatory behavior by Defendant to her particular situation, either by factual similarity
or by timing. See Bandi v. Colvin, 618 F. App’x 426, 435 (10th Cir. 2015) (unpublished) (citing
Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 856 (10th Cir. 2000) (“To be relevant, evidence
regarding other employees’ discrimination claims must be reasonably tied to the plaintiff’s
claim. The evidence must involve the same type of discrimination during the same time period
under similar circumstances.”).
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evidence. First, Plaintiff merely makes allegations and provides no evidence in support.13 Also,
few, if any, of these general allegations were included in the Charge of Discrimination. ECF 57-
11. And even considering the allegations to be true, none constitute an adverse employment action
as demonstrated by the case law. See Muldrow, 601 U.S. at 359 (plaintiff needs to show some
injury respecting her employment terms and conditions) (emphasis added). As this Court received
this matter in a referral role, and noting the lower burden expressed in Muldrow, this Court
nonetheless proceeds to the next step in the analysis.
B. 	Inference of Discrimination
Even if it were determined that Plaintiff has demonstrated she suffered an adverse action,
Plaintiff fails to demonstrate that the adverse action occurred under circumstances that give rise to
an inference of discrimination. There are different “pathways” through which “a plaintiff may
attempt to raise an inference of discrimination.” Walkingstick Dixon v. Oklahoma, 125 F.4th 1321,
1335 (10th Cir. 2025). A plaintiff can establish this prong through “actions or remarks made by
decisionmakers” or “upon the time or sequence of events leading to [the adverse action].” Barlow
v. C.R. England, Inc., 703 F.3d 497, 505 (10th Cir. 2012); Plotke v. White, 405 F.3d 1092, 1101
(10th Cir. 2005). Or it may be inferred if the employer showed favoritism toward an employee
who is not part of the protected class. Ibrahim, 994 F.3d at 1196. A plaintiff’s burden at this stage
is “relatively light,” and it has been described as “de minimis.” Ruprecht v. Level 3 Commc’ns,
Inc., No. 10-cv-01330-MSK-CBS, 2012 WL 652755, at *3 (D. Colo. Feb. 29, 2012) (citing Plotke,
405 F.3d at 1101).
13 	Plaintiff fails to attribute a specific date to many of her allegations which prevents the
Court from determining that the conduct even occurred within the relevant time period.
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However, for disparate treatment to imply discrimination, a plaintiff must show that others
who are similarly situated to her, particularly those who do not share her national origin, were
treated more favorably. “Similarly situated” employees are those who “share a supervisor or
decision-maker, must follow the same standards, and engage in comparable conduct” with the
plaintiff. Ibrahim, 994 F.3d at 1196. As argued effectively by Defendant, Plaintiff fails to provide
any examples of white employees that were similarly situated to her who benefited more than she
did.14 ECF 57 at 9. Plaintiff’s references to prior hiring decisions relating to other Hispanic
employees fail to support her claim.15 These limited, anecdotal examples from the distant past
have minimal, if any, relevance and fail to create an inference of discrimination. See Bandi, 618
F. App’x at 435. In fact, the undisputed evidence supports that Plaintiff, herself, was the repeated
beneficiary of Defendant’s positive treatment and hiring practices. SUMF Nos. 6, 7, 24 (references
to promotions received by Plaintiff without having to interview). Plaintiff’s own evidence supports
that she was protected by Ms. Davies, rather than discriminated against by her. See ECF 67-10 at
2-4 (employee Bryan Wattenburger describing the favoritism shown to Plaintiff by Ms. Davies).
And at least one of the times Defendant hired someone without an interview, Plaintiff had
expressed a lack of interest in the position. SUMF Nos. 13, 20.
14 	Plaintiff also fails to identify any other Hispanic employees who suffered similar
discrimination. While the Declaration of Delma Valdez, a Hispanic woman, described that she
“has experienced Discrimination from Patty Davies on multiple occasions,” Plaintiff provides no
specific details of the discrimination she experienced.
15 	For example, Plaintiff identifies Mr. Erik Diaz, a man of Mexican national origin who
identifies as Hispanic, who applied for a position in a different department within CCD. When
only Mr. Diaz applied, Ms. Davies allegedly reopened the vacancy to increase the applicant pool
for a position in a different department within CCD. ECF 64 at 5; see also ECF 67-11 at 2
(Affidavit of Delma Valdez). Plaintiff also references the “discrimination grievance” filed by
Ms. Peggy Mondragon in 2014. ECF 64 at 10.
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Plaintiff relies upon a conclusory statement, not evidence, in support of an inference of
discrimination, that: “other white HR recruiters were promoted to HR Assistant Director roles
without announcement or allowing Hispanic employees, including Plaintiff, to apply.” ECF 64 at
4. “Vague, conclusory statements do not suffice to create a genuine issue of material fact.” Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 675 (10th Cir. 1998). Plaintiff fails to provide support for
that claim. And Defendant presents actual evidence that Defendant, in fact, promoted Plaintiff
multiple times and promoted a Hispanic employee “to the Assistant Director role under similar
circumstances.” ECF 66 at 4 (citations omitted).
Because this Court determines that Plaintiff has not demonstrated an adverse event or an
inference of discrimination as it relates to this claim, this Court finds that she fails to state a prima
facie case on her terms and conditions claim. As a result, the Court need not proceed to the next
steps of the McDonnell Douglas test to analyze Defendant’s legitimate, non-discriminatory reason
for requiring her to participate in an interview nor whether she has demonstrated a pretext.
III. 	Failure to Promote
Plaintiff alleges that Defendant’s failure to promote her was in violation of Title VII. ECF
1 at 3; ECF 57-11 at 2. Plaintiff makes no allegation of discrimination using direct evidence. As a
result, to state a prima facie case for failure to promote under Title VII using indirect evidence,
plaintiff must demonstrate: “(1) she belongs to a protected class; (2) she applied for an available
position for which she was qualified; [and] (3) she ‘was rejected under circumstances which give
rise to an inference of unlawful discrimination.’” Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 (10th
Cir. 2013) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Defendant
does not dispute that Plaintiff is a member of a protected class, that she applied for an available
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position for which she was qualified, and that she was, in fact, not promoted, thus qualifying as an
adverse employment action. See generally ECF 57 at 10-13. Instead, Defendant disputes that
Plaintiff has demonstrated that the failure to promote was under circumstances giving rise to an
inference of discrimination. ECF 57 at 11.
This Court finds that Plaintiff has demonstrated a prima facie case that the denial of her
promotion 	occurred 	“under 	circumstances 	which 	give 	rise 	to 	an 	inference 	of 	unlawful
discrimination.” Although the evidence is underwhelming, when viewed as a whole, and in a light
most favorable to Plaintiff, she has met her burden. See Ruprecht, 2012 WL 652755 at *3 (citing
Plotke, 405 F.3d at 1101) (A plaintiff’s burden at this stage is “relatively light,” and it has been
described as “de minimis.”).
A. 	The Workplace Generally
Plaintiff’s general complaints about discrimination in the workplace do not carry
significant weight. To start, while Plaintiff identifies no direct evidence of discrimination as it
relates to the failure to promote her to the position of HR Technical Manager, she does identify
one stray comment made by Ms. Davies about her race being helpful for HR demographic
purposes, a fact which was confirmed by Ms. Valdez. ECF 57-2 at 59:6-16; ECF 67-11 ¶ 8.
Plaintiff labels it a “joke” and places this comment not in the context of her hiring for the HR
Technical Manager position in 2023, but in a different context in 2018 or 2019. ECF 57-2 at
139:25-142:10. Regarding the demographics goal of each department, Ms. Davies allegedly told
her that it is “a good thing [that] you look white but you’re not . . . you’re Hispanic.” Id. To the
extent this comment could be construed as derogatory, “isolated, [or] ambiguous comments” do
not support a finding of discrimination. Mauldin v. Driscoll, 136 F.4th 984, 997 (10th Cir. 2025)
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(citing Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir. 1994)).
Even Plaintiff’s indirect evidence is not strong. The Parties also discuss another employee,
Mr. Bryan Wattenburger, who worked as Assistant Director and resigned in 2020, one year before
Plaintiff’s interview for the HR Technical Manager position in 2021. SUMF No. 16. While Mr.
Wattenburger made an internal complaint about Ms. Davies, ECF 57-2 at 85, his complaints did
not focus on discrimination. ECF 67-10 at 5. The focus of his complaint was on a work
environment that he regarded as very difficult (toxic and hostile) because of Ms. Davies’
management style. In his letter submitted by Plaintiff, the only mention of Plaintiff was when he
mentioned that he felt Ms. Davies was protecting Plaintiff, not discriminating against her. Id. at 2-
4.
Plaintiff also alleges discriminatory animus in how Ms. Davies assigned work. ECF 64 at
4. Plaintiff argues that Ms. Davies assigned her extra work assignments. and assigned her work
outside of regular business hours or during leave. Id. However, for both of these allegations,
Plaintiff does not sufficiently explain how discriminatory animus can be inferred. Plaintiff does
not link these allegations that other similarly situated Hispanic co-workers received such
assignments16 or that similarly situated white co-workers did not receive equivalent treatment.
Plaintiff also fails to connect the timing of these very general complaints.
The principal relevant fact relating to Plaintiff’s failure to promote claim about extra work
assignments is that Ms. Davies assigned her a significant assignment shortly before her second
16 	While Plaintiff initially alleged that Ms. Valdez was offered more work, Plaintiff
admitted during her deposition that Ms. Valdez ultimately refused to take on the extra work and
that Plaintiff was the only one who received the extra work. See ECF 57-2 at 61-62: 3-25, 1-6.
There is no evidence in the record that Ms. Valdez received an adverse consequence for failing
to accept additional work.
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interview. ECF 64 at 8. This fact is discussed below.
B. 	Circumstances Surrounding the Denial of the Promotion
Plaintiff describes other general circumstances leading up to the interview that could give
rise to an inference of unlawful discrimination. Most importantly, it appeared that she was being
groomed for the position. She worked in the office where the position was opening for more than
13 years prior to the job posting. SUMF No. 1. Although starting as an administrative assistant,
she was promoted on at least two occasions. SUMF Nos. 5, 6. And while she was working as an
HR Generalist, just months before the job posting, CCD increased her duties and pay. SUMF No.
24. Some of her new duties were those that would ultimately be taken over by the newly created
Technical Manager position. SUMF No. 24. The position’s duties were drafted in a way to assist
Plaintiff. SUMF No. 28. Plaintiff’s supervisor discussed promoting her to “operations manager,”
a title similar to HR Technical Manager. ECF 67 at 2; see also ECF 70-2. Plaintiff was encouraged
to apply for the promotion, and Ms. Davies even provided feedback to Plaintiff about her
application materials. Id. Then, shortly before the second interview, Ms. Davies presented Plaintiff
with a “large, time-consuming project.” ECF 64 at 8.
Even with Plaintiff’s positive work history and the efforts made by Ms. Davies to assist
Plaintiff in the application process, she still did not receive the promotion. These circumstances,
nearly all of which are undisputed, when viewed in a light most favorable to Plaintiff, support an
inference of discrimination.
Therefore, considering that Plaintiff’s burden at this stage is “relatively light,” this Court
finds that she makes a prima facie showing of discrimination.
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C. 	Defendant’s Legitimate Reason for Not Hiring Plaintiff for the HR Technical
Manager Position
Defendant explains the decision to hire the white male candidate over Plaintiff as follows:
“after two rounds of interviews, Ms. Davies and Ms. Stovall each believed that Mr. Miller was the
superior candidate based upon his relevant experience and skills.” ECF 57 at 12 (citations omitted);
see also ECFs 57-5 and 57-9. They both relied heavily on the difference in the candidates’
performance during the interviews. Id. According to Ms. Davies, Mr. Miller demonstrated
initiative and skillful data analysis. ECF 57-5 at 5. Ms. Stovall concurred that his data analysis and
presentation skills were superior to Plaintiff’s. ECF 57-9 at 2. Additionally, Ms. Davies and Ms.
Stovall both regarded Mr. Miller as having “superior supervisory experience.” SUMF No. 35. A
superior interview performance can be a legitimate reason to hire that person. Mauldin, 136 F.4th
at 996. This Court finds that Defendant has stated a legitimate, non-discriminatory reason why
Plaintiff was not promoted.
D. 	Plaintiff Does Not Rebut Defendant’s Explanation as Pretext
Plaintiff argues that the real reason why Mr. Miller was hired was because he is white and
she is Hispanic. However, even viewing the evidence in a light most favorable to her, Plaintiff fails
to show any “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in
Defendant’s decision-making process that would call its stated reason into doubt. Swackhammer
v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir. 2007).
Plaintiff generally contends that she was more qualified because she had been working in
the position prior to the interview. ECF 70 at 2. It is undisputed, however, that Plaintiff only took
on some of the duties of the HR Technical Manager prior to the interview. SUMF No. 25.
To show pretext on the basis of a qualifications comparison, Plaintiff must show that her
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qualifications were “overwhelming[ly] superior” to Mr. Miller’s. Ruprecht, 2012 WL 652755 at
*4 (citing Johnson v. Weld Cnty., 594 F.3d 1202, 1211 (10th Cir. 2010)); see also, Mauldin, 136
F.4th at 997 (citing Jaramillo, 427 F.3d at 1309). Stated differently, the burden on Plaintiff to show
pretext on the basis of a qualifications comparison is “formidable.” Ruprecht, 2012 WL 652755 at
*4. Plaintiff does not meet that burden here.
Plaintiff implicitly concedes that her performance during the second interview was worse
than Mr. Miller’s by her complaint about receiving a large project assignment which hindered her
ability to properly prepare for the second interview. ECF 64 at 8. Plaintiff alleges that the
assignment was unnecessary, but she does not contend that the assignment was outside the scope
of her expanded job duties (for which she received a pay supplement). See SUMF No. 24. Plaintiff
also explicitly concedes that Ms. Davies gave her substantive help in preparing for the interview,
including by providing feedback on her application materials and even changing the job title to
accommodate her skill set. SUMF No. 28.
Plaintiff may believe that she still was the better candidate. However, Plaintiff fails to
provide any real evidence, other than conclusory statements, that she was, in fact, the demonstrably
better candidate. Defendant was free to choose Mr. Miller for any legitimate reason, even if those
legitimate reasons did not yield the optimal decision. “[E]mployment decisions that are unwise,
unfair in some non-discriminatory way, or simply incorrect” do not violate Title VII. Ruprecht,
2012 WL 652755 at *4 (citing Johnson, 594 F.3d at 1211); see also Iweha, 21 F.4th at 1231.
Whether another manager would have hired Plaintiff over Mr. Miller is irrelevant so long as
Defendant genuinely perceived him to be the better candidate. Here the Court has not one, but two
individuals who were part of the hiring process and who believe Mr. Miller was the better
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candidate.
In summary, Plaintiff does not show how Defendant’s reason is “so incoherent, weak,
inconsistent, or contradictory that a rational factfinder could [find it] unworthy of belief.” Bekkem
v. Wilkie, 915 F.3d 1258, 1267 (10th Cir. 2019). Plaintiff therefore fails to show Defendant’s
legitimate, non-discriminatory reason to be pretext. It follows then that Plaintiff does not meet her
burden to show why summary judgment should not be granted in Defendant’s favor on her failure
to promote claim.
IV. 	Retaliation
Plaintiff next alleges that Ms. Davies declined to hire her for the HR Technical Manager
position out of retaliation for her prior complaints relating to discrimination in the workplace. See
ECF 1 at 3; ECF 57-11 at 1.
A. 	Unlawful Employment Retaliation—General Rule
A plaintiff may prove retaliation either through direct evidence or circumstantial evidence
through the McDonnell Douglas burden-shifting framework. Hinds v. Sprint/United Mgmt. Co.,
523 F.3d 1187, 1201 (10th Cir. 2008).
Like with the claims addressed above, the first step of the McDonnell Douglas framework
requires Plaintiff to make a prima facie case of retaliation. To do so, Plaintiff must establish:
(1) 	she engaged in protected opposition to discrimination,
(2) 	the employer took an action against her which a reasonable employee would regard
as materially adverse, and
(3) 	a causal connection between the protected activity and the materially adverse
action.
Hinds, 523 F.3d at 1202 (citing Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007)).
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Should a plaintiff make the prima facie showing, then the burden shifts to the employer to provide
a legitimate explanation for the adverse action, following which the plaintiff carries the burden of
challenging that explanation as pretext. Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1267-
68 (10th Cir. 2004). Here, Plaintiff makes a prima facie showing of retaliation.
B. 	Plaintiff’s Retaliation Allegations
Plaintiff alleges that Ms. Davies retaliated against her for her complaints against Ms.
Davies herself. Plaintiff alleges a long history of accusing Ms. Davies of discriminatory
employment practices17 which she mostly expressed to Ms. Davies directly but also to others to a
limited extent. See e.g., ECF 57-2 (discussing a complaint Plaintiff made to the president of the
university). Plaintiff’s email sent on July 12, 2021, one month prior to the interview for the HR
Technical Manager position, is one primary example of a complaint by Plaintiff to Ms. Davies.
ECF 79-3 at 1. At the end of a message about a pay disparity between Plaintiff and another
employee, Plaintiff states: “I feel I have been treated unfairly whether it be due to my health issues,
race or some other issue that is differently not warranted.” Id.
17 	For example, Plaintiff participated in a grievance procedure related to Ms. Mondragon’s
complaint against Ms. Davies. ECF 64 at 10. Plaintiff complained to Ms. Davies directly about
her conduct during the interview process involving Mr. Diaz. ECF 64 at 5. At her deposition
Plaintiff made many references to Ms. Davies’ actions with respect to Ms. Mulholland and her
complaints about it. ECF 57-2. There is also some information in the record to suggest that
Plaintiff also threatened to report Ms. Davies for her decision to issue Plaintiff a verbal warning
for the error of another employee. ECF 57-2 at 219-20. Due to their age, this Court does not find
any of these alleged complaint actions to provide an independent basis for a retaliation claim.
However, prior acts may be considered as relevant background information in support of a
timely claim of discrimination. Porter, 2023 WL 2664207, at *6 n.6 (citing Morgan, 536 U.S. at
113).
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C. 	Plaintiff Makes a Prima Facie Case of Retaliation
1. 	Protected Opposition to Discrimination
Plaintiff may not base a retaliation claim on the complaints that she made after she already
decided to voluntarily quit her employment because only adverse employment actions taken after
the protected communications are relevant to the claim. Sarkar, 2009 WL 2762731 at *10.
Consequently, the communications that Plaintiff made with leadership as of August 13, 2021, and
later18 do not support her claim because she already decided to resign on August 12, 2021. SUMF
Nos. 33, 36, 41.
To qualify as protected opposition, the employee must communicate an unlawful
employment practice, and it must be sufficiently specific. Hinds, 523 F.3d at 1203 (explaining that
“to qualify as protected opposition the employee must convey to the employer his or her concern
that the employer has engaged in a practice made unlawful.”); see also Anderson v. Academy Sch.
Dist. 20, 122 F. App’x 912, 916 (10th Cir. 2004) (explaining that “a vague reference to
discrimination and harassment without any indication that this misconduct was motivated by race
(or another category protected by Title VII) does not constitute protected activity and will not
support a retaliation claim.”). For purposes of the present Motion, Defendants do not contest that
18 	On August 17, 2021, Plaintiff emailed Christine Cecil to request a meeting “to discuss
several issues . . . regarding my supervisor Patty Davies.” ECF 67-8. On August 25, 2021
Plaintiff emailed Dr. DeSanctis to discuss issues about Ms. Davies which had prompted her to
resign. ECF 67-9. On September 29, 2021, Plaintiff wrote a detailed letter to Dr. DeSanctis to
complain about a hostile work environment and discrimination. ECF 67-6. The earliest such
communication that she mentions is a text that she alleges she had sent to CFO Kathy Kaoudis
on August 13, 2021. ECF 64 at 11. Her resignation letter, itself, [ECF 57-1] makes no express
mention of an unlawful employment practice. The remaining communications that she mentions
begin on August 17, 2021, ECF 64 at 6, and thus after her resignation letter.
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at least one of Plaintiff’s complaints was sufficient to demonstrate that Plaintiff engaged in
protected opposition to discrimination. ECF 57 at 15.19 Defendants also do not contest that not
being selected for HR Technical Manager position constituted an adverse action. Id.
As a result, for Plaintiff to plead a prima facie case for retaliation, she must show a causal
connection between her alleged protected opposition and the adverse action. Hinds, 523 F.3d at
1202-04. Defendant argues there is no such causal connection. ECF 57 at 15.
2. 	Causal Relationship
To show a causal relationship, Plaintiff must have engaged in protected activity relatively
close in time to the HR Technical Manager hiring decision. A gap in time of three months or longer
can diminish an inference of causation. Hinds, 523 F.3d at 1204; Porter, 2023 WL 2664207 at 12-
13; Sarkar, 2009 WL 2762731 at n.4. Plaintiff’s alleged participation in Ms. Mondragon’s
grievance in 2014 and her statements to Ms. Davies about Mr. Diaz in 2019 or 2020 were well
before the relevant time period. She also alleges that she complained about racial discrimination
to Ms. Davies regarding the hiring of Mr. Wattenburger, but that was likely prior to 2020. See ECF
57-2 at 62:7-11; SUMF Nos. 11-16 (Mr. Wattenburger resigned in 2020). As a result, these
allegations provide only minimal support to her retaliation claim. Porter, 2023 WL 2664207, at
*6 n.6 (citing Morgan, 536 U.S. at 113).
However, Plaintiff’s July 12, 2021, email, found in the record at ECF 65-1 at 18 (and more
legibly at ECF 79-3), is an example of protected opposition just one month before Defendant’s
decision to deny her a promotion. See Aman v. Dillon Cos., Inc., 645 F. App’x 719, 727 (10th Cir.
19 	Defendant references Plaintiff’s complaints relating to Mr. Diaz’s hiring in 2019 or 2020
instead. ECF 57 at 15.
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2016) (citing Trujillo v. PacifiCorp, 524 F.3d 1149, 1157 n.5 (10th Cir. 2008) (“We have held that
temporal proximity of approximately one month can be sufficient to establish causation.”). This
Court finds that this complaint goes beyond a general statement that references workplace
displeasure or discrimination generally. See Hinds, 523 F.3d at 1203 (noting that there are no
“magic words” and that “general complaints about company management” are not sufficient).
As a result, due to the timing and the surrounding circumstances discussed above, and
viewing the facts in a light most favorable to Plaintiff, the Court finds a sufficient basis by which
a jury could find this letter to constitute protected activity and a causal connection between it and
not being chosen for the H.R. Technical Manager position.
D. 	Legitimate Reason for the Adverse Employment Action
As this Court addresses above, Defendant contends that Plaintiff lost the promotion to Mr.
Miller because, following the interviews, Ms. Davies and Ms. Stovall regarded her to be the
inferior applicant based on legitimate criteria.
E. 	Pretext
This Court repeats that Plaintiff does not really challenge Defendant’s stated reason for her
failure to be promoted, i.e., that Mr. Miller performed better than she did during the interviews.
Plaintiff’s only challenge on this front is a general one: “Failure to promote Plaintiff to the HR
Technical Manager position, despite her long history of exceptional service, performance of the
job duties on an interim basis, and clear qualifications surpassing the selected candidate.”20 ECF
64 at 4. No evidence is provided by Plaintiff in support, including evidence to show a substantial
20 	Plaintiff also generally states that Mr. Miller was a “white candidate with less
experience.” ECF 64 at 4.
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disparity in qualifications between her and Mr. Miller.
However, relevant to her retaliation claim, Plaintiff points to an interaction she had with
Ms. Davies that this Court considers to be significant. Plaintiff alleges that, following the decision
to select Mr. Miller for the HR Technical Director position, she joined a Zoom call with Ms. Stovall
and Ms. Davies. ECF 57-2 at 212:25-216:14. The purpose of this call was for Ms. Stovall and Ms.
Davies to inform Plaintiff that she did not receive the promotion. Id. During this conversation,
Plaintiff was told that “she did a great job” during the interview. Id. at 213:3-8. After the Zoom
call ended, Ms. Davies called Plaintiff back on the phone, ostensibly without Ms. Stovall on the
line. At that time, Plaintiff asked Ms. Davies: “How did this happen? You know, you said that was
my job.” Id. In response, Ms. Davies told Plaintiff that “[Y]ou can’t threaten people and – and
expect something good.” ECF 57-2 at 215:15-22; see also ECF 64. 21 Ms. Davies denies that she
made such a statement. ECF 57-5 ¶ 37.
Although it is a close call, this Court does not find the alleged statement to be sufficiently
explicit to constitute direct evidence of retaliation. “Direct evidence” is evidence that on its face
demonstrates discriminatory reasons for the employment decision and proves discrimination
without the need for inference or presumption. Fassbender v. Correct Care Sols., LLC, 890 F.3d
875, 883 (10th Cir. 2018). Some inference still is needed to construe the alleged statement to be
about protected activity in the Title VII retaliation context.
However, viewing this evidence of Plaintiff’s interaction with Ms. Davies in a light most
favorable to Plaintiff, it is strong indirect/circumstantial evidence demonstrating pretext. Consider
21 	Plaintiff phrases the statement differently in her Response, but Ms. Davies’ alleged intent
is clearly the same. See ECF 64 at 7.
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the following series of facts from the record, most of which are undisputed:
1) 	Plaintiff had been an employee of Defendant for more than 13 years (SUMF No. 1);
2) 	Plaintiff received multiple promotions, several without even having to interview,
demonstrating value within Defendant’s company (SUMF Nos. 5-7, 24);
3) 	Ms. Davies told co-workers that she was planning on promoting Plaintiff to “operations
manager,” a different but similar role to the HR Technical Director (ECF 70-2);22
4) 	Plaintiff took on responsibilities consistent with the HR Technical Director before the
position was even posted (SUMF No. 24);
5) 	Plaintiff was encouraged to apply for the position of HR Technical Director (SUMF
No. 28);
6) 	Ms. Davies assisted Plaintiff with her application materials “and even drafted the
position’s qualifications such that Plaintiff would be well-qualified (SUMF No. 28);
7) 	Plaintiff voiced numerous complaints in the past about Ms. Davies, 23 including
complaints about her discriminating against Hispanic employees,
8) 	On July 21, 2021, Plaintiff sent an email to Ms. Davies complaining that she has
been “treated unfairly” and specifically referenced her “health issues, race or
some other issue that is differently not warranted.” (ECF 65-1 at 18);
9) 	Approximately one month later, Plaintiff interviewed for the position along with only
one other candidate (SUMF No. 33);
10) Plaintiff did not receive the promotion (SUMF No. 33);
11) Following the interview, Ms. Stovall and Ms. Davies call Plaintiff to inform her that
she did not receive the promotion, telling her “she did a great job” during the interview
(ECF 57-2 at 213:3-8); and
12) After the call ended, Ms. Davies immediately called Plaintiff back on the phone, and
when Plaintiff asked Ms. Davies about what happened and how she thought she was
22 	Ms. Davies denies that she told Plaintiff that she would be selected for the HR Technical
Manager position. ECF 57-5 ¶ 22.
23 	Plaintiff claims she complained about Ms. Davies at least 3-5 times, mostly “towards the
end” of her employment with Defendant. ECF 57-2 at 216:7-24.
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going to receive the promotion, Ms. Davies responded: “You can’t threaten people and
– expect something good.” (Id. at 215:15-22).
Assuming the above facts to be true and Ms. Davies’ statements to be admissible evidence
at trial,24 and considering the evidence in a light most favorable to Plaintiff, this Court reasonably
can infer a retaliatory motive by Defendant. See Proctor v. United Parcel Service, 502 F.3d 1200,
1210-11 (10th Cir. 2007) (citing Wells v. Colo. Dep’t of Transp., 325 F.3d 1205,1218 (10th Cir.
2003) (relevant inquiry in retaliation claim is whether plaintiff can show defendant’s “motive for
taking adverse action was its desire to retaliate for the protected activity.”)). This collective
evidence, when taken in context, demonstrates a serious weakness in Defendant’s proffered,
legitimate reason for denying Plaintiff the promotion. And at this stage Plaintiff “need not
affirmatively demonstrate that retaliatory reasons motivated the employer.” Walkingstick Dixon,
125 F.4th at 1340 (citing Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1120 (10th Cir.
2001)). 	Plaintiff 	need 	only 	produce 	evidence 	of 	“such 	weaknesses, 	implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for
its action that a reasonable factfinder could rationally find them unworthy of credence.” Id.
(quoting Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1228 (2008)).
F. 	Summary
This does not mean that Plaintiff necessarily will prevail on this claim at trial. Ms. Stovall
agreed with Ms. Davies that Mr. Miller was the better applicant, ECF 57-9 ¶ 6, and Ms. Stovall
did not perceive retaliation, ECF 57-2 at 218. However, for present purposes, this Court finds that
24 	Defendant does not argue that the alleged statements Ms. Davies made against Plaintiff
are inadmissible hearsay.
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Plaintiff has demonstrated a sufficient factual basis under the McDonnell Douglas framework by
which a jury could find that retaliation was the reason why she was not promoted to the HR
Technical Manager position. This Court therefore recommends that summary judgment be denied
as it relates to Plaintiff’s retaliation claim.
V. 	Constructive Discharge
Plaintiff’s final argument is that she was constructively discharged from her employment
with CCD. As soon as she learned on August 12, 2021, that Ms. Davies did not choose her for the
HR Technical Manager position, Plaintiff decided to resign. ECF 57-2 at 235. Her resignation
letter, dated four days later, gave two weeks’ notice. SUMF Nos. 36-41.
A. 	Constructive Discharge—Governing Standard
The focus of a constructive discharge claim is not whether the employee generally
encountered adverse employment conditions. Rather, the claim is available if the adverse
employment conditions are of an “intolerable” degree, such that a reasonable employee would see
no other choice but to quit. Tran, 355 F.3d at 1270-71. It is an objective test that does not turn on
the employee’s subjective views of the situation. Id. Plaintiff’s burden on this claim is
“substantial.” PVNF, 487 F.3d at 805. The employer’s conduct must amount to something more
than “actionable harassment.” Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 961 (10th
Cir. 2021). Moreover, the employer’s “illegal discriminatory acts” must be what made the working
conditions intolerable. PVNF, 487 F.3d at 805.
B. 	No Evidence by which a Jury Could Find Constructive Discharge
It cannot be reasonably inferred from the evidence and argument submitted by Plaintiff
that she faced a dilemma between intolerably adverse work conditions or quitting. Most
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importantly, Plaintiff made the decision to quit immediately upon learning that she was not
selected for the HR Technical Manager position. She made that decision before she even knew
who had been hired. SUMF No. 37. In other words, the undisputed evidence supports that Plaintiff
decided to quit because she did not receive the promotion, not because of any discriminatory
behavior by Defendant. The situation here is analogous to PVNF in which the plaintiff decided to
quit before knowing how the new pay plan would impact her salary. 487 F.3d at 806. “Even some
evidence of discriminatory animus in the workplace will not necessarily establish a constructive
discharge claim.” Fischer v. Forestwood Co., Inc., 525 F.3d 972, 981 (10th Cir. 2008) (citing
Penn. State Police v. Suders, 542 U.S. 129, 147 (2004)). Plaintiff cites no legal authority that the
mere loss of a promotion, even under circumstances suggesting retaliation, creates an intolerable
work environment.
Also weighing against Plaintiff’s claim of constructive discharge is that she ended her
employment on her own terms. She gave two weeks’ notice, and indicated that she intended to
continue working (although she later was frustrated by the loss of either full or partial computer
access.)25 “Giving several weeks’ notice of the date on which one will be compelled to resign is
unprecedented, in this court’s experience, for a successful constructive discharge claim.” Johnson
v. Spirit Aerosystems, Inc., No. 20-CV-00138-GKF-CDL, 2022 WL 1174120, at *7 (N.D. Okla.
Mar. 24, 2022) (quoting Azu v. Sam’s Club, Inc., No. 18-CV-01956-RBJ, 2019 WL 5577948, at
25 	Plaintiff’s allegation suggests that she had no computer access at all, although the
message that she submits into the record at ECF 65-1 at 24, 39 (and which Defendant submits at
ECF 57-13) suggests that access could have been restored to allow her to continue to work as she
originally had planned. Plaintiff complains that the loss of computer access deprived her access
to certain files relevant to this lawsuit, but she leaves unexplained whether she could have
requested access restoration to perform work-related tasks.
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*10 (D. Colo. Oct. 29, 2019)).
On this record, Plaintiff does not create an inference that her voluntary resignation could
be considered a constructive discharge. This Court therefore recommends that summary judgment
be granted in Defendant’s favor on her constructive discharge claim.
CONCLUSION
Defendant’s Motion for Summary Judgment tests whether Plaintiff has sufficient evidence
to allow a jury to find in her favor on her employment discrimination claims. As it relates to her
disparate treatment and failure to hire claims, Plaintiff relies heavily on her own subjective belief
that her supervisor acted with discriminatory animus against her, even though much of the
undisputed evidence supports an environment where Plaintiff was provided assistance to succeed
rather than discriminated against. On those claims, Plaintiff does not provide sufficient evidence
that would corroborate the allegations such that a genuine issue of material fact exists. Similarly,
Plaintiff’s constructive discharge claim lacks evidentiary support and Plaintiff fails to create a
genuine dispute as to a material fact as well.
This Court finds that Plaintiff’s retaliation claim is different. It passes the McDonnell
Douglas test, first because Plaintiff makes a prima facie case and then because of genuine issues
as to material facts over whether Defendant’s non-discriminatory explanation is merely a pretext.
As a result, this Court recommends that Plaintiff’s retaliation claim survive summary judgment.
For the above reasons, the Court respectfully recommends26 that Defendant’s Motion for
26 	The Parties have fourteen days from the date of this Recommendation to file with the
Clerk of Court written objections to findings of fact, legal conclusions, or recommendations that
this Court proposes here. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla (In re
Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district
court on notice of the basis for the objection will not preserve the objection for de novo review.
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Summary Judgment [ECF 57] be granted in part and denied in part.
DATED at Denver, Colorado, this 23rd day of February, 2026.
BY THE COURT:
Timothy P. O’Hara
United States Magistrate Judge
“[A] party's objections to the magistrate judge's report and recommendation must be both timely
and specific to preserve an issue for de novo review by the district court or for appellate review.”
United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make
timely objections may bar de novo review by the district judge of the magistrate judge's proposed
findings of fact, legal conclusions, and recommendations and will result in a waiver of the right
to appeal from a judgment of the district court based on the proposed findings of fact, legal
conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573,
579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's
recommendation de novo despite lack of an objection does not preclude application of “firm
waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904
(10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate
judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352
(10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling
by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir.
2005) (holding that firm waiver rule does not apply when the interests of justice require review).
Finally, all Parties must consult and comply with the District Judge's practice standards for any
specific requirements concerning the filing and briefing of objections.
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