HomeMy WebLinkAbout2018CV3204 - LORI FRANK V. CITY OF FORT COLLINS, TERENCE F. JONES AND JEROME SCHIAGER - 076 - DEFENDANT CITY OF FORT COLLINS' NOTICE OF INTENT TO FILE A SUMMARY JUDGMENT MOTIONIN 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’ NOTICE OF INTENT TO FILE A
SUMMARY JUDGMENT MOTION
______________________________________________________________________________
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 Notice of Intent to File a
Summary Judgment Motion, pursuant to Hon. R. Brooke Jackson’s Practice Standards.
These claims 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. The City intends to file a
summary judgment motion on all these claims. An analysis of the basis for the City’s intended
summary judgment motion is set forth in the attached Table.
Case 1:18-cv-03204-RBJ-NRN Document 76 Filed 01/10/20 USDC Colorado Page 1 of 3
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Dated this 10th day of January 2020.
Respectfully submitted,
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 76 Filed 01/10/20 USDC Colorado Page 2 of 3
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on January 10, 2020, a true and correct copy of the above and
foregoing DEFENDANT CITY OF FORT COLLINS’ NOTICE OF INTENT TO FILE A
SUMMARY JUDGMENT MOTION 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/ Kathleen Porter
Kathleen Porter
Email:kporter@warllc.com
Case 1:18-cv-03204-RBJ-NRN Document 76 Filed 01/10/20 USDC Colorado Page 3 of 3
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Table A: Analysis of Defendants' Intent to File a Summary Judgment Motion
Claim Elements Plaintiff’s Allegations The Evidence
Title VII and CADA Gender
Discrimination (Claims 1 and
2)
Three-step burden-shifting
framework. 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)
Step 1: Ms. Frank must
establish 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).
Step 2: The City must
articulate a legitimate,
nondiscriminatory reason for
its actions. McDonnell
Douglas, 411 U.S. at 802.
• She competently
performed her crime
analyst job and was
qualified.
• Fort Collins Police services
engaged in the following
conduct because of her
gender: (1) paid her less
than her male co-worker
who 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) it
denied her job
reclassification request.
See Complaint, Doc. # 2, at ¶¶
227-235.
Fort Collins Police Services’
(FCPS’s) legitimate,
nondiscriminatory reasons for
2
Claim Elements Plaintiff’s Allegations The Evidence
Step 3: Ms. Frank must show
that the City’s explanation is
pretextual, i.e., so weak,
implausible, inconsistent,
incoherent, or contradictory.
Id. at 411 U.S. at 804-05;
Jones v. Okla. City Pub. Sch.,
617 F.3d 1273, 1280 (10th Cir.
2010).
• Issues with Ms. Frank’s
work product have been
documented by male and
female supervisors since at
least 2011. See L. Frank
Depo.; L. Frank Depo
Exs. 16-18, 22; K.
Volesky Affidavit.
Re Ms. Frank’s pay in relation
to her male co-worker, Erik
Martin:
• Ms. Frank’s Crime Analyst
job and Mr. Martin’s
Financial Analyst II job are
dissimilar. See Crime
Analyst Job Description
and Financial Analyst II
Job Description.
• Ms. Frank’s duties include:
research and analyze
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 Crime Analyst Job
Description.
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Claim Elements Plaintiff’s Allegations The Evidence
• Mr. Martin’s duties
include: prepare financial
budget for agency vs.
actual variance analysis
and narrative assessment
reports; lead budget
development and forecast
projections with
management team in
coordination with Finance
service area personnel;
analyze/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 Financial
Analyst II Job
Description.
• Mr. Martin’s job includes
supervisory
responsibilities; Ms.
Frank’s do not. See Crime
Analyst Job Description
and Financial Analyst II
Job Description.
• Mr. Martin’s job requires a
Bachelor’s degree in
Accounting, Finance or
Case 1:18-cv-03204-RBJ-NRN Document 76-1 Filed 01/10/20 USDC Colorado Page 3 of 9
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Claim Elements Plaintiff’s Allegations The Evidence
Business; Ms. Frank’s does
not. See id.
• Mr. Martin’s position is
exempt under the Fair
Labor Standards Act; Ms.
Frank’s is non-exempt.
See Crime Analyst Job
Description and Financial
Analyst II Job
Description.
Placement on Performance
Improvement Plan (PIP)
• Jerry Schiager placed Ms.
Frank on a PIP during Q3
of 2016 after he observed
her work product for
several months and
received feedback from
others. See J. Schiager
Depo.
• Mr. Schiager consulted
with the City’s human
resources department and
then-Chief of Police John
Hutto. See J. Schiager
Depo.
• Mr. Schiager sought to
address the accuracy and
integrity of Ms. Frank’s
work product between Q1-
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Claim Elements Plaintiff’s Allegations The Evidence
Q3 of 2016. See J.
Schiager Depo. Ex. 88.
• Examples of Ms. Frank’s
inaccuracies: (1) Q1 2016,
she provided data to the
ACLU, which contained
duplicate entries and
incorrect data; (2) October
2016, she issued quarterly
“Part 1 crime statistics” for
the last two years with data
that was off by a factor of
more than two. Id.
Failure to receive a raise
• Ms. Frank did not receive a
raise while she was on a
PIP. See G. Yeager Depo.
• Per FCPS policy,
employees are not eligible
for raises while on a PIP.
Id.
• After Ms. Frank was
removed from the PIP, she
retroactively received the
raise. See Personnel
Action Form 7/31/17 (Eff.
Date); J. Heckman-L.
Williams, et al. email
chain (dated 9/1/17); J.
Miller-J. Kinsman email
Case 1:18-cv-03204-RBJ-NRN Document 76-1 Filed 01/10/20 USDC Colorado Page 5 of 9
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Claim Elements Plaintiff’s Allegations The Evidence
(dated 1/26/18); 8/18/17
Memo re PIP’s ending.
Re categorization of job as
“administrative”
• 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 T. Roche Depo.;
G. Yeager Depo.
• The City used data from
the consultant on pay
levels in the public sector
from 12 peer cities. See T.
Roche Depo.
• With the outside
consultant’s input, the City
determined that FCPS’s
Crime Analyst and
investigative aide positions
should be categorized as
administrative. See G.
Yeager Depo.
• The administrative
categorization comports
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Claim Elements Plaintiff’s Allegations The Evidence
with how other non-City of
Fort Collins agencies
categorize the position. See
T. Roche Depo.
Re denial of Ms. Frank’s job
reclassification request:
• Deputy Chief Yeager met
with FCPS’s executive
staff during the last three
administrations; executive
staff determine the agency
does not have a business
need for the
reclassification. See G.
Yeager Depo.
Title VII and CADA
Retaliation (Claims 3 and 4)
(1) Ms. Frank 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 standards apply to CADA
• Alleged protected activity:
(a) complained to Chief
Hutto about Mr. Schiager’s
cool and distant attitude
towards her; (b) met with
Human Resources to
request job reclassification;
(c) complained about Mr.
Schiager’s decision to
place her on a PIP and his
“Needs Improvement”
rating of her work; (d)
complained of being
excluded from a January
26, 2017, staff meeting Mr.
Schiager held with his
Assuming arguendo that the
listed actions are adverse
employment actions, there is
no evidence that FCPS took
these actions because Ms.
Frank engaged in protected
activity.
FCPS acted for legitimate non-
retaliatory and non-
discriminatory reasons:
8
Claim Elements Plaintiff’s Allegations The Evidence
and Title VII retaliation
claims).
direct reports; (e)
complained about
Financial Analyst Erik
Martin’s assignment as
head of a workload and
staffing analysis; (f) filed a
charge with the CCRD and
EEOC on December 13,
2017; and (g) amended her
statement of
discrimination. See
Complaint, Doc. # 2 at ¶¶
75-76, 83, 84, 87, 110, 123,
133, 148, 161, 182, 225,
242.
• Alleged adverse actions:
(a) negative performance
evaluations; (b) placement
on a PIP; (c) administrative
classification of her job;
(d) denial of a raise while
she was on a PIP. See id. at
¶ 243.
• Mr. Schiager imposed the
PIP because Ms. Frank’s
performance continued to
decline.
• The City relied on
consultant-gathered data to
classify Plaintiff’s job as
administrative and the
classification matches peer
institutions; and
• City policy does not permit
employees on PIPs to
receive raises, but Ms.
Frank received a
retroactive raise post-PIP.
See cited evidence for Title
VII and CADA gender
discrimination claims
(Claims 1 and 2).
Equal Pay Act, 29 U.S.C. §
206(d)(1) (Claim 7)
(1) Ms. Frank was performing
work that was substantially
equal to that of the male
employees considering the
skills, duties, supervision,
efforts and responsibilities of
the job; (2) the conditions
where the work was performed
were basically the same; and
• Erik Martin and Ms. Frank
were equals on the
organizational chart.
9
Claim Elements Plaintiff’s Allegations The Evidence
(3) the male employee was
paid more under such
circumstances. Sprague v.
Thorm AmErikas, Inc., 129
F.3d 1355, 1364 (10th Cir.
1997).
• Mr. Martin is paid more
than Ms. Frank. Id. at ¶¶
94, 95.
responsibilities, while
Plaintiff Frank’s does not.
• The Financial Analyst II
position requires specific
education and experience.
See cited evidence for Title
VII and CADA gender
discrimination claims
(Claims 1 and 2).
Case 1:18-cv-03204-RBJ-NRN Document 76-1 Filed 01/10/20 USDC Colorado Page 9 of 9
Complaint, Doc. # 2 at ¶
90.
• Mr. Martin and Ms. Frank
performed substantially the
same type of analytical
work. Id. at ¶ 91.
• Mr. Martin’s Financial
Analyst II and Ms. Frank’s
Crime Analyst positions
are substantially unequal.
They have vastly different
responsibilities and Mr.
Martin’s position includes
supervisory
Case 1:18-cv-03204-RBJ-NRN Document 76-1 Filed 01/10/20 USDC Colorado Page 8 of 9
• Ms. Frank received
negative evaluations
because of her poor
performance.
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actions:
Re Ms. Frank’s job
performance:
• FCPS relies on Ms. Frank
to generate accurate data
and to provide data
analysis regarding trends
and forecasts. See Crime
Analyst Job Description.
FCPS uses the data to
inform the public, its
officers, and City
management about crime
trends and FCPS’s crime-
fighting efficacy and to
allocate resources.
• Ms. Frank refuses to check
her work product to ensure
accuracy. See G. Yeager
Depo; L. Frank Depo.
• Ms. Frank’s errors have
repeatedly caused FCPS to
misinform the public and
City management about
crime and statistics. See
id.; Frank Depo. Ex. 37.
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