HomeMy WebLinkAbout2018CV3204 - Lori Frank V. City Of Fort Collins, Terence F. Jones And Jerome Schiager - 079 - Defendant City Of Fort Collins' Motion For Summary JudgmentIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:18-cv-03204-RBJ-NRN
LORI FRANK,
Plaintiff,
v.
CITY OF FORT COLLINS, a municipality; and
JEROME SCHIAGER, former Deputy Chief of Police, in his individual capacity,
Defendants.
______________________________________________________________________________
DEFENDANT CITY OF FORT COLLINS’ MOTION FOR SUMMARY JUDGMENT
______________________________________________________________________________
Defendant City of Fort Collins, by and through its attorneys Cathy Havener Greer, and
Kathryn A. Starnella, of Wells, Anderson & Race, LLC and Jenny Lopez Filkins, Senior Assistant
Attorney, City of Fort Collins, respectfully submits the following Fed. R. Civ. P. 56 Motion for
Summary Judgment.
INTRODUCTION
This case concerns the accuracy and integrity of crime data. Data that is inaccurate and
incorrect is worthless. Without data accuracy and integrity, the public loses confidence and trust
in its police department. The police department loses its ability to fight crime and get ahead of
crime trends. Public trust in the accuracy of government data is central to a democratic and
civilized society. Through coaching and constructive criticism, the City of Fort Collins sought to
ameliorate the chronic problems with Crime Analyst Lori Frank’s data analysis. Instead of heeding
Case 1:18-cv-03204-RBJ-NRN Document 79 Filed 01/30/20 USDC Colorado Page 1 of 20
2
that guidance, Ms. Frank rejected all constructive criticism about her performance and brought
suit.
Instead, Ms. Frank attributes the constructive criticism to gender discrimination and
retaliation. See Complaint, Doc. # 2, at ¶¶ 70-74, 235, 242-43. She theorizes that a culture of
gender discrimination and pay inequity pervades the City’s Police Services. Id. at ¶¶ 1, 5, 17, 18,
180. The evidence, however, does not support her theories and speculations.
These claims have not been dismissed and remain against the City: (Claims 1 and 2) gender
discrimination in violation of Title VII and the Colorado Anti-Discrimination Act (CADA);
(Claims 3 and 4) retaliation in violation of Title VII and CADA; and (Claim 7) violation of the
Equal Pay Act. See Complaint, Doc. # 2 at 30-33, 35; Order on Motion to Dismiss, Doc. # 40.
Summary judgment in the City’s favor is warranted because the evidence fails to support
Ms. Frank’s claims and no reasonable juror could find in Ms. Frank’s favor.
MOVANT’S STATEMENT OF UNDISPUTED MATERIAL FACTS
Ms. Frank’s Job Performance
1. Fort Collins Police Services (FCPS) relies on Ms. Frank to generate accurate data
and to provide data analysis regarding trends and forecasts. See Ex. A, Crime Analyst Job
Description, FORT COLLINS 000276-277.
2. FCPS uses the data to inform the public, its officers, and City management about
crime trends and FCPS’s crime-fighting efficacy and to plan and to allocate resources. See, e.g.,
Ex. B, G. Yeager Depo. at 100:4-11, 101:20-24, 107:8-19, 108:18-109:8, 112:13-14; Ex. C, T.
Jones Depo. at 92:23-93:5.
Case 1:18-cv-03204-RBJ-NRN Document 79 Filed 01/30/20 USDC Colorado Page 2 of 20
3
3. Ms. Frank does not check her work product to ensure accuracy. See Ex. B, G.
Yeager Depo. at 37:13-24; Ex. D, J. Schiager Depo. at 94:5-11, 96:2-97:14; Ex. E, L. Frank
Depo. at 203:12-204:4, 205:6-16, 205:21-25,
4. Ms. Frank’s errors have repeatedly caused FCPS to misinform the public and City
management and policy makers about crime and statistics. See id.; Ex. F, Schiager-Frank Memo
(dated Nov. 16, 2016), FORT COLLINS-JONES 000251-254.
5. Issues with Ms. Frank’s work product have been documented by supervisors both
male and female since at least 2011. See Ex. G, 2011 Review, FORT COLLINS-JONES
000202-210 (by C. Christensen); Ex. H, 2012 Review, FORT COLLINS-JONES 000124-129
(by C. Christensen); Ex. I, 2013 Review, FORT COLLINS-JONES 000949-959 (by J.
Szakmeister); Ex. J, 2014 Review, FORT COLLINS-JONES 000211-218 (by C.
Christensen); Ex. K, Q3 2019 Review (by K. Volesky), FORT COLLINS 006171-6181 at
6176-6177.
Re: Ms. Frank’s Pay in Relation to Her Male Co-Worker, Erik Martin
6. Ms. Frank’s Crime Analyst job and Mr. Martin’s Financial Analyst II job are
dissimilar. See Exs. A & L, Crime Analyst Job Description, FORT COLLINS 000276-277,
and Financial Analyst II Job Description, FORT COLLINS-JONES 000096-98.
7. Ms. Frank’s duties include: research and analysis of information on crime-related
topics; determine criminal activity patterns and crime trends; extract and analyze data to assist with
department budgeting; analyze and interpret information and prepare conclusions and forecasts.
See Ex. A, Crime Analyst Job Description, FORT COLLINS 000276-277.
Case 1:18-cv-03204-RBJ-NRN Document 79 Filed 01/30/20 USDC Colorado Page 3 of 20
4
8. Mr. Martin’s duties include: prepare financial budget for agency versus actual
variance analysis and narrative assessment reports; lead budget development and forecast
projections with management team in coordination with Finance service area personnel; analyze
and interpret and communicate complex data using standard accounting and finance concept
knowledge; train staff on budgeting and financial systems; serve as primary department contact
for auditors. See Ex. L, Financial Analyst II Job Description, FORT COLLINS-JONES
000096-98.
9. As FCPS’s Financial Analyst, Mr. Martin is responsible for a budget of
approximately $40,000,000. See Ex. M, General Fund Expense Detail, from 2019-2020
Adopted Biennial Budget at 493, available at:
https://www.fcgov.com/citymanager/files/201920-biennial-budget.pdf?1551998128 (last
accessed on Jan. 28, 2020).
10. Mr. Martin’s job includes supervisory responsibilities; Ms. Frank’s does not. See
Exs. A & L, Crime Analyst Job Description, FORT COLLINS 000276-277, and Financial
Analyst II Job Description, FORT COLLINS-JONES 000096-98.
11. Mr. Martin’s job requires a Bachelor’s degree in Accounting, Finance, or Business;
Ms. Frank’s job does not. See id.
12. Mr. Martin’s position is exempt under the Fair Labor Standards Act; Ms. Frank’s
position is non-exempt. See Exs. A & L, Crime Analyst Job Description, FORT COLLINS
000276-277, and Financial Analyst II Job Description, FORT COLLINS-JONES 000096-98.
Case 1:18-cv-03204-RBJ-NRN Document 79 Filed 01/30/20 USDC Colorado Page 4 of 20
5
13. In March 2018, Ms. Frank earned an annual salary of $70,992.14, while the
Financial Analyst II position earned $72,493.13. See Ex. N, JA Master Mapping File (dated
3/11/18), FORT COLLINS 004673 (modified).
Placement on Performance Improvement Plan (PIP)
14. Soon after Jerry Schiager became Ms. Frank’s supervisor in November 2015, he
memorialized his performance goals and expectations of her and presented those expectations to
her in a meeting with then-Chief John Hutto in January 2016. Ex. O, Schiager-Frank Memo re:
Goals and Expectations for 2016, FORT COLLINS-JONES 000255; Ex. D, J. Schiager Depo.
72:13-18.
15. Mr. Schiager placed Ms. Frank on a PIP in November 2016 after he observed her
work product for several months and received feedback from others. See Ex. D, J. Schiager Depo.
118:19-21; Ex. P, Q1 2016 Review (by J. Schiager), FORT COLLINS-JONES 000131-134;
Ex. Q, Q2 2016 Review (by J. Schiager), FORT COLLINS-JONES 000173-175 at 173; Ex.
R, Q4 2016 Review (by J. Schiager), FORT COLLINS-JONES 000135-137; Ex. S,
Performance Improvement Plan (dated Nov. 16, 2016), FORT COLLINS-JONES 000249-
250.
16. Mr. Schiager placed Ms. Frank on a PIP after he had several discussions with Ms.
Frank about the importance of data accuracy. See Ex. D, J. Schiager Depo. at 77:13-25.
17. Before he placed Ms. Frank on a PIP, Mr. Schiager consulted with the City’s human
resources department and then-Chief of Police John Hutto. See Ex. D, J. Schiager Depo. at
117:14-118:21, 120:12-15.
Case 1:18-cv-03204-RBJ-NRN Document 79 Filed 01/30/20 USDC Colorado Page 5 of 20
6
18. Mr. Schiager placed Ms. Frank on a PIP because he sought to address the accuracy
and integrity of her work product that he observed during the first through third quarters of 2016.
See id.; Ex. F, Schiager-Frank Memo (dated Nov. 16, 2016), FORT COLLINS-JONES
000251-000254.
19. Examples of Ms. Frank’s inaccuracies and/or lack of analysis during 2016 include:
(1) during the first quarter of 2016, she provided the American Civil Liberties Union with data that
contained inaccuracies and duplicate entries; (2) in August 2016, she produced an erroneous report
showing a significant increase in daytime disturbance calls in the downtown area from 14 in 2013
to 111 in 2014; (3) in September 2016, she sent the Coloradoan an erroneous report that showed
140 bicycle tickets were issued in 2015 but only 10 were issued to-date in 2016; and (4) in October
2016, she issued a quarterly “Part 1 crime statistics” for 2014-2015, but the data was off by a factor
of more than two. Ex. F, Schiager-Frank Memo (dated Nov. 16, 2016), FORT COLLINS-
JONES 000251-254.
Failure to Receive a Raise
20. Ms. Frank did not receive a raise while she was on a PIP. See Ex. B, G. Yeager
Depo. at 35:17-22; Ex. E, L. Frank Depo. at 255:16-21, 294:15-20.
21. Per City of Fort Collins compensation policy, employees are not eligible for raises
while on a PIP. Ex. V, City Policy, FORT COLLINS 005812-5819 at 5817; See Ex. U, City of
Fort Collins 2017 Compensation Discussion, FORT COLLINS 005820-5835 at 5832; Ex. B,
G. Yeager Depo. at 35:17-22.
Case 1:18-cv-03204-RBJ-NRN Document 79 Filed 01/30/20 USDC Colorado Page 6 of 20
7
22. At the beginning of 2017, City employees received a raise based on performance
and internal equity. See Ex. U, City of Fort Collins 2017 Compensation Discussion, FORT
COLLINS 005820-5835 at 5831.
23. Ms. Frank was one of four employees who did not receive that pay raise at the
beginning of the year because they were on PIPs. See Ex. V, “Staff No Salary Increase List,”
FORT COLLINS-JONES 000559-REV.
24. After Ms. Frank was removed from the PIP, she received the raise, retroactive to
July 31, 2017. See Ex. W, Personnel Action Form (effective date of 7/31/17), FORT
COLLINS-JONES 000223; Ex. X, J. Heckman-L. Williams, et al. email chain (dated 9/1/17),
FORT COLLINS-JONES 000224-225; Ex. Y, J. Miller-J. Kinsman email (dated 1/26/18),
FORT COLLINS 005810-5811.
Re: Categorization of Job as “Administrative”
25. Ms. Frank’s job was categorized as administrative following a City-wide effort
Human Resources undertook with an outside consultant to review and compare job descriptions
and standardize job categorizations across the City. See Ex. Z, T. Roche Depo. 59:12-22, 69:3-
11, 77:2-78:8; Ex. B, G. Yeager Depo. at 31:11-20.
26. Prior to the City-wide effort to standardize job categorizations, Ms. Frank’s crime
analyst position was categorized as non-exempt.
27. The City used data from the retained outside consultant on pay levels in the public
sector from several peer cities. See Ex. Z, T. Roche Depo. at 43:7-13, 66:20-24, 67:9-68:23,
99:6-24.
Case 1:18-cv-03204-RBJ-NRN Document 79 Filed 01/30/20 USDC Colorado Page 7 of 20
8
28. With the retained outside consultant’s input, the City determined that FCPS’s
Crime Analyst and investigative aide positions should be categorized as administrative. See Ex.
Z, T. Roche Depo. at 70:11-73:7, 92:19-94:4; Ex. B, G. Yeager Depo. at 82:3-6.
29. The administrative categorization for the Crime Analyst position comports with
how other non-City of Fort Collins agencies categorize the position. See Ex. Z, T. Roche Depo.
at 99:6-24.
Re: Denial of Ms. Frank’s Job Reclassification Request
30. Ms. Frank sought to have her job reclassified as exempt and retitled as a “senior
management analyst,” with no supervisory responsibilities. Ex. E, L. Frank Depo. at 42:16-25,
105:4-17, 193:14-18, 194:1-7.
31. Deputy Chief Yeager communicated with current and former members of FCPS’s
executive staff about Ms. Frank’s reclassification request and it was determined that FCPS does
not have a business need for the reclassification. See Ex. B, G. Yeager Depo. at 89:23-91:19.
STANDARD OF REVIEW
Summary judgment shall be granted if “the pleadings, the discovery and disclosure of
materials on file, and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). A fact is
“material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the
evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict
for either party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The mere
existence of a scintilla of evidence” in support of the nonmoving party’s position is insufficient to
Case 1:18-cv-03204-RBJ-NRN Document 79 Filed 01/30/20 USDC Colorado Page 8 of 20
9
overcome a summary judgment motion; “there must be evidence on which the jury could
reasonably find for the [nonmoving party].” Id. at 252.
ARGUMENT
I. No evidence demonstrates that the City discriminated against Ms. Frank
because of her gender in violation of the Title VII and CADA (Claims 1 and
2).
To prevail on her gender discrimination claims under Title VII and CADA, Ms. Frank must
first establish a prima facie case of gender discrimination, by a preponderance of evidence that:
(1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) her
performance was satisfactory; and (4) she was treated less favorably than her male counterparts.
Cole v. Ruidoso Mun. Schools, 43 F.3d 1373, 1379 (10th Cir. 1994); see also McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973); Colo. Civil Rights Comm’n v. Big O Tires, 940 P.2d
397, 399-400 (Colo. 1997) (applying McDonnell Douglas framework to CADA claim).
If Ms. Frank establishes a prima facie case, then the City must articulate a legitimate,
nondiscriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802.
Once the City articulates a legitimate, nondiscriminatory reason for its actions, then Ms.
Frank must show that the City’s explanation is pretextual, i.e., so weak, implausible, inconsistent,
incoherent, or contradictory. McDonnell Douglas, 411 U.S. at 804-05; Jones v. Okla. City Pub.
Sch., 617 F.3d 1273, 1280 (10th Cir. 2010).
Ms. Frank cannot establish a prima facie case for at least three reasons: (1) her job
performance on accuracy and analysis was not satisfactory; (2) the City had legitimate, non-
pretextual reasons for its actions; and (3) she was not treated less favorably than a male counterpart.
Case 1:18-cv-03204-RBJ-NRN Document 79 Filed 01/30/20 USDC Colorado Page 9 of 20
10
Ms. Frank complains that the City engaged in the following “adverse actions” because of
her gender: (1) paid her less than her male co-worker who allegedly performed substantially similar
work; (2) disciplined her by imposing a performance improvement plan; (3) denied her a raise; (4)
categorized her job as “administrative” rather than “professional,” a higher pay category; and (5)
denied her job reclassification request.1
See Complaint, Doc. #2, at ¶¶ 227-235. The City did no
such thing.
First, no reasonable juror could find that Ms. Frank was paid less than a male co-worker
who performed substantially similar work. Ms. Frank identifies Erik Martin as the male co-worker
who performed substantially similar work. See Complaint, Doc. # 2, at ¶ 90. Mr. Martin’s duties
as a Financial Analyst II, however, are substantially dissimilar from Ms. Frank’s duties as a Crime
Analyst. See Facts at ¶ 6. Ms. Frank’s job entails the research and analysis of information on
crime-related topics and identification of criminal activity patterns and crime trends. See Facts at
¶ 7. Her job does not include supervisory responsibilities and is non-exempt under the Fair Labor
Standards Act. See Facts at ¶¶ 10, 12.
In contrast, Mr. Martin’s job entails the preparation of a financial budget, analysis of actual
budget variances, forecast future budget needs with management, analysis and interpretation and
communication of complex data using standard accounting and finance concept knowledge,
training FCPS staff on budgeting and financial systems, and serving as a primary department
contact for auditors. See Facts at ¶ 8. His job includes supervisory responsibilities; requires a
1 For purposes of this motion only, the City assumes arguendo that these complained-of actions
qualify as adverse actions.
Case 1:18-cv-03204-RBJ-NRN Document 79 Filed 01/30/20 USDC Colorado Page 10 of 20
11
Bachelor’s degree in Accounting, Finance, or Business; and is exempt under the Fair Labor
Standards Act. See Facts at ¶¶ 10-12.
Simply put, Ms. Frank and Mr. Martin do not perform substantially similar work and their
jobs are categorically different. Their official job descriptions demonstrate material differences in
their duties and responsibilities. Those differences further demonstrate that Mr. Martin is an
inappropriate comparator and the evidence about his Financial Analyst II position is not relevant
to Ms. Frank’s job classification or pay. Ms. Frank’s failure to identify a male counterpart who
was treated more favorably is fatal to her Title VII and CADA gender discrimination claims.
Second, no reasonable juror could conclude that FCPS placed Ms. Frank on a PIP because
of her gender. Ms. Frank’s data retrieval and analysis were unsatisfactory. Facts, at ¶¶ 3-5, 15-
16, 18-19. FCPS relies on Ms. Frank, as a Crime Analyst, to generate accurate data and to provide
data analysis regarding crime trends and forecasts. Facts, at ¶ 1. FCPS highly values data
accuracy because it uses that data to inform the public, its officers, and City management about
crime trends and FCPS’s crime-fighting efficacy and to allocate financial and personnel resources.
Facts, at ¶ 2. Nevertheless, Ms. Frank refuses to ensure the accuracy of her work product and she
has furnished error-laden reports that were released to the public and City management with
misleading information about crime and statistics. Facts, at ¶¶ 4-5.
Action was taken in 2016 to address Ms. Frank’s work product. Mr. Schiager became Ms.
Frank’s supervisor in November 2015. Facts, at ¶ 14. Two months later, in January 2016, he set
goals and expectations for Ms. Frank, memorialized those expectations in a memo, and presented
those expectations to Ms. Frank during a meeting with then-Chief John Hutto. Facts, at ¶ 14. The
Case 1:18-cv-03204-RBJ-NRN Document 79 Filed 01/30/20 USDC Colorado Page 11 of 20
12
first two goals Mr. Schiager set for Ms. Frank concerned accuracy and analysis. Ex. O, Schiager-
Frank Memo re: Goals and Expectations for 2016, FORT COLLINS-JONES 000255.
In Ms. Frank’s Q1 2016 performance evaluation, Mr. Schiager identified various examples
of Ms. Frank’s questionable and inaccurate work product, including dissemination of incorrect
data to the American Civil Liberties Union and poor analysis of the reason for a decrease in Citizen
Survey results. See Facts, at ¶ 15; Ex. P, FORT COLLINS-JONES 000131-134 at 132.
Though he rated Ms. Frank “On Track” under the “Results” category, he informed her of his
expectation that her accuracy and analysis improve throughout 2016. See Ex. P, FORT
COLLINS-JONES 000131-134 at 132.
Ms. Frank’s accuracy and analysis did not improve; rather, it declined during the third and
fourth quarter of 2016. Examples of Ms. Frank’s inaccurate work product and lack of analysis
include: (1) in August 2016, she produced an erroneous report showing a significant increase in
daytime disturbance calls in the downtown area from 14 in 2013 to 111 in 2014; and (2) in
September 2016, she sent the Coloradoan an erroneous report that showed 140 bicycle tickets
were issued in 2015 but only 10 were issued to-date in 2016; and (3) in October 2016, she issued
a quarterly “Part 1 crime statistics” for 2014-2015, but the data was off by a factor of more than
two. Facts, at ¶ 19; Ex. F, Schiager-Frank Memo (dated Nov. 16, 2016), FRANK 0323-0326.
These errors undermined FCPS’s confidence in the reliability and accuracy of Ms. Frank’s
work. Accordingly, on November 16, 2016, Mr. Schiager, placed her on a performance
improvement plan, after consultation with the City’s human resources department. Facts, ¶¶ 15-
17. At that point, Mr. Schiager had supervised Ms. Frank for about nine months and had become
familiar with her work product. Mr. Schiager sought to address the accuracy and integrity of Ms.
Case 1:18-cv-03204-RBJ-NRN Document 79 Filed 01/30/20 USDC Colorado Page 12 of 20
13
Frank’s work product after he gave Ms. Frank a “Needs Improvement” rating under the “Results”
category in her Q4 2016 evaluation. Facts, at ¶ 15; Q4 2016 Review (by J. Schiager), FORT
COLLINS-JONES 000135-000137; Ex. S, Performance Improvement Plan (dated Nov. 16,
2016), FORT COLLINS-JONES 000249-250.
No evidence supports Ms. Frank’s claim that FCPS placed her on a PIP because of her
gender; rather, the evidence demonstrates that Ms. Frank was placed on a PIP to address the quality
of her work product. Therefore, no reasonable juror could find in Ms. Frank’s favor on her Title
VII and CADA gender discrimination claims based on the PIP.
Third, no reasonable juror could find that FCPS denied Ms. Frank a pay raise because of
her gender. At the beginning of 2017, City employees received a raise based on performance and
internal equity. Facts, at ¶ 22. Ms. Frank was one of four employees who did not receive that
pay raise at the beginning of the year. Facts, at ¶ 23. Ms. Frank did not receive a pay raise at that
time because she was on a PIP, and City policy does not permit employees on PIPs to receive a
raise. Facts, at ¶¶ 21-23. Once the PIP was lifted, Ms. Frank received that pay raise. Facts, at
¶ 24.
Fourth, no reasonable juror could find that FCPS used Ms. Frank’s gender to categorize
the Crime Analyst position as “administrative” instead of “professional,” a higher paying category.
The categorization of the crime analyst job was part of Human Resources’ City-wide effort—with
a retained outside consultant—to review and compare job descriptions and standardize job
categorizations across the City. Facts, at ¶ 25. Simply put, the decision about how to categorize
the crime analyst position was not viewed in isolation or based on the individual incumbents in the
position. Facts, at ¶ 29. To make its categorization decisions, the City relied on data from the
Case 1:18-cv-03204-RBJ-NRN Document 79 Filed 01/30/20 USDC Colorado Page 13 of 20
14
outside consultant. Facts, at ¶ 28. The City also relied on consultant-provided data on pay levels
in the public sector from several peer cities. Facts, at ¶ 27. Ultimately, the City placed the Crime
Analyst and related investigative aide positions under the administrative category. Facts, at ¶ 28.
Other non-City of Fort Collins agencies categorize the Crime Analyst position in a similar way.
Facts, at ¶ 29.
Finally, no reasonable juror could find that FCPS denied Ms. Frank’s job reclassification
request because of her gender. Ms. Frank sought to have her job reclassified as exempt and retitled
as a “senior management analyst,” with no supervisory responsibilities. Facts, at ¶ 30. Deputy
Chief Yeager communicated with current and former members of FCPS’s executive staff and it
was determined that FCPS does not have a business need for the reclassification. Facts, at ¶ 31.
In sum, the evidence demonstrates that (1) Ms. Frank’s job performance on accuracy and
analysis was not satisfactory; (2) the City had legitimate, non-pretextual reasons for its actions;
and (3) Ms. Frank was not treated less favorably than a male counterpart. Because no reasonable
juror could find that FCPS discriminated against Ms. Frank because of her gender, summary
judgment in the City’s favor on Ms. Frank’s Title VII and CADA gender discrimination claims
(Claims 1 and 2) is warranted.
II. No evidence demonstrates that the City retaliated against Ms. Frank in
violation of the Title VII and CADA (Claims 3 and 4).
To establish a prima facie case of retaliation claim under Title VII and CADA, Ms. Frank
must prove that: (1) she engaged in protected opposition to discrimination; (2) she suffered an
adverse employment action; and (3) a causal connection exists between her protected activity and
the adverse action. Hennagir v. Utah Dep’t of Corr., 587 F.3d 1255, 1265 (10th Cir. 2009); see
also Johnson v. Weld County, 594 F.3d 1202, 1219 n.11 (10th Cir. 2010) (noting the same legal
Case 1:18-cv-03204-RBJ-NRN Document 79 Filed 01/30/20 USDC Colorado Page 14 of 20
15
standards apply to CADA and Title VII retaliation claims). Ms. Frank must “show that a
reasonable employee would have found the challenged [employer] action materially adverse,” i.e.,
that the action “might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (internal
quotations and citation omitted); Lincoln v. Maketa, 880 F.3d 533, 540 (10th Cir. 2018).
If Ms. Frank establishes a prima facie case, the City bears the burden of “coming forth with
a legitimate, nondiscriminatory reason for adverse action.” Hennagir, 587 F.3d at 1265. The
burden then shifts back to Ms. Frank to show that the City’s reasons are “pretext for the real,
discriminatory reason for the adverse action.” Id.
Ms. Frank claims that she engaged in the following forms of protected activity: (1) she
complained to Chief Hutto about Mr. Schiager’s cool and distant attitude towards her; (2) she met
with Human Resources to request job reclassification; (3) she complained about Mr. Schiager’s
decision to place her on a PIP and his “Needs Improvement” rating of her work; (4) she complained
of being excluded from a January 26, 2017, staff meeting Mr. Schiager held with his direct reports;
(5) she complained about Financial Analyst Erik Martin’s assignment as head of a workload and
staffing analysis; (6) she filed a charge with the Colorado Civil Rights Division and the Equal
Employment Opportunity Commission; and (7) she amended her statement of discrimination. See
Complaint, Doc. # 2, at ¶¶ 75-76, 83, 84, 87, 110, 123, 133, 148, 161, 182, 225, 242.
The City disputes that the administrative categorization of Ms. Frank’s job and the denial
of her job reclassification request constitute adverse employment actions.2
Negative material
2 Again, the alleged adverse actions are: (1) placement on a performance improvement plan; (2)
denial of a raise while on a PIP; (3) “administrative” categorization of the Crime Analyst job;
and (4) denial of her job reclassification request. See Complaint, Doc. # 2, at ¶¶ 227-235.
Case 1:18-cv-03204-RBJ-NRN Document 79 Filed 01/30/20 USDC Colorado Page 15 of 20
16
changes or alterations to one’s job or work environment typically constitute adverse actions. See
Burlington, 548 U.S. at 70-71 (affirming jury’s finding that job reassignment to less desirable
position and 37-day suspension without pay were materially adverse actions). FCPS’s denial of
her job reclassification request did not change or alter her job or work environment; rather, Ms.
Frank’s job remained the same.
Assuming arguendo that the City, through FCPS, subjected Ms. Frank to adverse
employment actions by placing Ms. Frank on a PIP and denying her a raise while on the PIP, there
is no evidence that the City took these actions because Ms. Frank engaged in protected activity.
As discussed above in Section I, FCPS acted for legitimate, non-retaliatory and non-discriminatory
reasons. In her Q4 2016 evaluation, Ms. Frank received a negative performance rating in the area
of “results” because of her poor analysis and accuracy. Facts, at ¶ 15; Q4 2016 Review (by J.
Schiager), FORT COLLINS-JONES 000135-000137; Ex. S, Performance Improvement Plan
(dated Nov. 16, 2016), FORT COLLINS-JONES 000249-250. She was placed on a PIP in
November 2016 because her then-supervisor noticed that her analysis and accuracy continued to
decline despite repeat counseling and coaching. Facts, at ¶¶ 15-16. She did not receive a raise at
the beginning of 2017 because, per City policy, she was ineligible to receive a raise while on a
PIP. Facts, at ¶¶ 20-22. Three other employees also did not receive raises because they were on
a PIP, too. Facts, at ¶ 23. Once the PIP was lifted, however, Ms. Frank received the raise
retroactive to July 31, 2017. Facts, at ¶ 24. The City categorized Ms. Frank’s Crime Analyst job
as “administrative,” in consultation with a retained outside consultant, in a City-wide project to
standardize job categorizations across the City. Facts, at ¶ 25. Finally, Ms. Frank’s job
Case 1:18-cv-03204-RBJ-NRN Document 79 Filed 01/30/20 USDC Colorado Page 16 of 20
17
reclassification request was denied because of a lack of a business need for the change. Facts, at
¶ 31.
For these reasons, no reasonable juror could find a causal connection between Ms. Frank’s
supposed protected activity and any alleged adverse employment action. Accordingly, summary
judgment in the City’s favor on Ms. Frank’s Title VII and CADA retaliation claims (Claims 3 and
4) is warranted.
III. No evidence demonstrates that the City violated the Equal Pay Act, 29 U.S.C.
§ 206(d)(1) (Claim 7).
To prevail on her Equal Pay Act claim, Ms. Frank must prove that: (1) she was performing
work that was substantially equal to that of her male counterpart considering the skills, duties,
supervision, efforts, and responsibilities of the job; (2) the conditions where the work was
performed were basically the same; and (3) the male counterpart was paid more under such
circumstances. Sprague v. Thorm AmErikas, Inc., 129 F.3d 1355, 1364 (10th Cir. 2997).
Ms. Frank claims that she and Erik Martin were equals on FCPS’s organizational chart,
they performed substantially the same type of analytical work, and Mr. Martin is paid more than
Ms. Frank. Complaint, Doc. # 2, at ¶¶ 90, 91, 94, 95.
Based on the evidence, no reasonable juror could find in Ms. Frank’s favor, however. Ms.
Frank’s Crime Analyst job and Mr. Martin’s Financial Analyst II job are dissimilar. Facts, at ¶
6. Ms. Frank’s duties entail the retrieval and analysis of crime data, identification of criminal
activity patterns and trends, and drawing conclusions from and making forecasts on criminal
trends. Facts, at ¶ 7. Her job does not include supervisory responsibilities. Facts, at ¶ 10. In
contrast, Mr. Martin’s duties require knowledge of standard accounting and finance concepts and
entail financial budget preparation, analysis of budget variances, budget development and creation
Case 1:18-cv-03204-RBJ-NRN Document 79 Filed 01/30/20 USDC Colorado Page 17 of 20
18
of financial projections with the management team and Finance service area personnel, staff
training on budget and financial systems, and response to inquiries from financial auditors. Facts,
at ¶ 8. His job includes supervisory responsibilities and requires a Bachelor’s degree in
Accounting, Finance, or Business. Facts, at ¶¶ 10, 11. Ms. Frank’s job does not require an
accounting or finance degree. Facts, at ¶ 11. Additionally, Mr. Martin’s job is exempt under the
Fair Labor Standards Act; Ms. Frank’s position is non-exempt. Facts, at ¶ 12.
For these reasons, summary judgment in the City’s favor on Ms. Frank’s Equal Pay Act
claim (Claim 7) is warranted.
CONCLUSION
Summary judgment in the City of Fort Collins’ favor is warranted. The City must be able
to ensure the accuracy and integrity of the data it generates and reports to the public. No reasonable
juror could find in Plaintiff Lori Frank’s favor on her claims against the City. The City has
legitimate, non-discriminatory and non-retaliatory reasons for its actions, namely: (a) providing
Ms. Frank negative ratings and constructive criticism on her accuracy and analysis; (b) placing her
on a performance improvement plan when her performance further declined; (c) denying her a pay
raise while she was on the performance improvement plan; (d) categorizing her job as
“administrative,” rather than “professional”; and (e) denying her job reclassification requests.
Additionally, no evidence exists that the City has treated her less favorably than a male counterpart
and paid her less than a male who performed substantially equal work.
Dated this 30th day of January, 2020.
Respectfully submitted,
Case 1:18-cv-03204-RBJ-NRN Document 79 Filed 01/30/20 USDC Colorado Page 18 of 20
19
S/Kathryn A. Starnella
Cathy Havener Greer
Kathryn A. Starnella
Wells, Anderson & Race, LLC
1700 Broadway, Suite 1020
Denver, CO 80290
Telephone: (303) 830-1212
Email: cgreer@warllc.com; kstarnella@warllc.com
Attorneys for Defendants City of Fort Collins
S/ Jenny Lopez Filkins
Jenny Lopez Filkins
Senior Assistant City Attorney
City of Fort Collins
300 LaPorte Avenue
Fort Collins, CO 80521
Telephone: (970) 221-6520
Email: jlopezfilkins@fcgov.com
Attorney for Defendant City of Fort Collins
Case 1:18-cv-03204-RBJ-NRN Document 79 Filed 01/30/20 USDC Colorado Page 19 of 20
20
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on January 30, 2020, a true and correct copy of the above and
foregoing DEFENDANT CITY OF FORT COLLINS’ MOTION FOR SUMMARY
JUDGMENT was electronically filed with the Clerk of Court using the CM/ECF system, which
will send notification of such filing to the following email addresses:
Jennifer Robinson, Esq.
Robinson & Associates Law Offices, LLC
7900 E. Union Avenue, Suite 1100
Denver, CO 80237
Email: jrobinson@raemployment.com
Attorneys for Plaintiff
Robert M. Liechty, Esq.
Robert M. Liechty PC
1800 Gaylord St
Denver, CO 80206
Email: rliechty@crossliechty.com
Attorney for Plaintiff
David R. DeMuro, Esq.
Vaughan & DeMuro
720 South Colorado Boulevard
Penthouse, North Tower
Denver, CO 80246
Email: ddemuro@vaughandemuro.com
Attorneys for Defendant Schiager
Sara L. Cook, Esq.
Vaughan & DeMuro
111 South Tejon, Suite 545
Colorado Springs, CO 80903
T: 719-578-5500
Email: scook@vaughandemuro.com
Attorneys for Defendant Schiager
S/ Carolyn Boulette
Email: cboulette@warllc.com
Case 1:18-cv-03204-RBJ-NRN Document 79 Filed 01/30/20 USDC Colorado Page 20 of 20