Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1122-LTB-MJW DEBORA K. RUDD, Plaintiff, v. BURLINGTON COAT FACTORY WAREHOUSE OF COLORADO, INC. A Colorado corporation, and MICHAEL NEUMAN, individually and in his capacity as supervisor, Defendants.

PLAINTIFF'S RESPON SE TO DEFEN D AN TS' MOTION FOR SU MM ARY JU D GMEN T

Plaintiff, Debora K. Rudd responds to Defendants' motion for summary judgment as follows: INTRODUCTION On June 27, 2003, Plaintiff, Debora K. Rudd ("Debi Rudd"), was terminated from her employment with Defendant Burlington Coat Factory of Colorado, Inc., ("BCFW") after 13 years with the company. She was terminated for having gone out to her car, with a supervisor's permission, to retrieve paperwork regarding the sexual harassment of her minor daughter, Jesica Rudd, who also worked for BCFW. Ms. Rudd has brought this case against BCFW on the grounds that her termination violated Title VII of the Civil Rights Act of 1964. She also maintains that Michael Neuman ("Neuman") intentionally interfered with her contract with BCFW. Finally, Plaintiff brought a claim against the defendants for intentional interference with a

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prospective business relation. For the reasons set forth below, Plaintiff hereby voluntarily dismisses that claim.

I. STATEMENT OF THE CASE Debi Rudd began her employment with BCFW on June 23, 1990.1 Over the years, Ms.

Rudd worked in various positions for the company including sales associate, computer room operator, customer service manager, receiving manager, payroll clerk, district secretary, and, finally, receiving associate.2 During her tenure with BCFW, Ms. Rudd performed well and was a valuable employee.3 Until shortly before her termination, she had only one minor disciplinary action against her in 1991 or 1992 when, as customer service manager, she was given a 60-day probationary warning to bring the cashiers and staff up to date, which she did.4 When Ms. Rudd began working in the receiving department, the store manager was Tammy Skurnik (then known as Ireland). Ms. Skurnik left the employ of BCFW in April, 20035 and Defendant Neuman, the district manager, became involved more closely in the management

1

Exhibit 1, Deposition of Plaintiff Debi Rudd, (hereafter Rudd Dep.) p.15:21-23. Exhibit 1, Rudd Dep., p.16:15-p.20:9; p. 73:10-12.

2

Exhibit 2, Deposition of Michael Neuman (hereafter Neuman Dep.) p.17:12-15; p.43:522; p.46:2-12; p.47:9-16; p.58:14-16; Exhibit 3. Deposition of Tammy Skurnik (hereafter Skurnik Dep.) p.16:10-12; p.20:9-15.
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3

Exhibit 1, Rudd Dep., p.42:17-p.43:9. Exhibit 3, Skurnik Dep., p.9:25-p.10:6. 2

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of the store. 6 Shortly before she left, Ms. Skurnik transferred Jesica Rudd, the plaintiff's minor daughter, into the receiving department at the request of the plaintiff.7 Jesica Rudd had worked for BCFW off and on since she was a young child (10 years old).8 Ms. Rudd was concerned that her daughter was being subjected to sexually harassing comments by certain male employees--in particular, Chris Limppo, the loss prevention manager, and KC Iglehart who worked on the floor.9 Debi and Jesica Rudd felt that the transfer of Jesica into the receiving department by Ms. Skurnik was an effective, informal resolution of the problem.10

TITLE VII CLAIM On June 10, 2003, Neuman called Jesica Rudd into the office to advise her that she was being transferred out of the receiving department and into the linens department. Because Jesica was a minor (she was 17 at the time), Plaintiff also attended this meeting.11 Debi Rudd objected to her daughter's transfer out of the receiving department and gave several reasons why the transfer should not happen. When Neuman insisted on the transfer, Plaintiff reluctantly reported to Neuman the sexual harassment problems that Jesica had recently

6

Exhibit 4, Deposition of Raquel Romero (hereafter Romero Dep.) p.11:15-p.12:19. Exhibit 3, Skurnik Dep., p.55.16-20. Exhibit 1, Rudd Dep., p.58:16-18; Exhibit 5, Affidavit of Jesica Rudd. Exhibit 2, Neuman Dep., p.85:12-21; p.93:22-p.94:7. Exhibit 5, Affidavit of Jesica Rudd; Exhibit 1, Rudd Dep. p.88:19 - p.89:3. Exhibit 1, Rudd Dep., p.58:25-p.59:3; p.60:4-17; Exhibit 2, Neuman Dep., p.67:8-12. 3

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had with the two BCFW employees, Chris Limppo and KC Iglehart.12 Debi Rudd was concerned that the sexual harassment would commence again once Jesica was put back out on the floor.13 She was particularly concerned regarding the plan to transfer Jesica into the linens department because she was aware that Mr. Limppo was to become the new manager of the linens department.14 Ms. Rudd was reluctant to report the harassment of her daughter for several reasons: Assistant store manager Raquel Romero was present and Ms. Rudd was concerned that confidentiality would not be maintained since Ms. Romero and Mr. Limppo were close personal friends outside of work.15 She was also concerned that Neuman would not conduct a fair investigation into the sexual harassment allegations,16 particularly since one of the harassers, Chris Limppo, had previously received special treatment from Neuman after threatening to sue him for comments he had made about Mr. Limppo's weight.17 (Although Neuman denied giving Mr.

12

Exhibit 2, Neuman Dep., p.74:4-p.76:8. Exhibit 2, Neuman Dep., p.75:24-p.76:8. Exhibit 1, Rudd Dep., p.91:1-14. Exhibit 1, Rudd Dep., p.94:9-17. Exhibit 1, Rudd Dep., p.110:10-13.

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16

Plaintiff's email to Human Resources and others at BCFW dated 6/29/03 attached hereto as Exhibit 6. 4

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Limppo special treatment18 and denied that Neuman had threatened to sue him19, Mr. Limppo confirmed the threat and his belief that he had gotten the job of manager of loss prevention because of the threatened lawsuit.)20 Finally, because of problems that had previously arisen between Ms. Rudd and Neuman (see below), she was concerned about retaliation for bringing the harassment issues to his attention. 21 Nevertheless, when Neuman and Colleen Brady of the human resources department insisted that the plaintiff and her daughter cooperate in an investigation, threatening that failure to cooperate could lead to termination,22 Ms. Rudd and her daughter agreed that Jesica would give a verbal statement and also submit a written statement describing the harassment.23 Neuman was instructed by Ms. Brady on June 10th to conduct an investigation into the harassment allegations brought up by Jesica Rudd.24 He had to conduct the investigation himself

18

Exhibit 2, Neuman Dep., p.196:24-p.197:2. Exhibit 2, Neuman Dep., p.196:1-4. Exhibit 7, Deposition of Chris Limppo (hereafter Limppo Dep.) p. 12:13-19; p.98:12 -

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20

p.99:20. Page 2 of Plaintiff's email to Human Resources and others at BCFW dated 6/27/03, attached hereto as Exhibit 8.
22 21

Exhibit 8; Exhibit 5, Affidavit of Jesica Rudd. Exhibit 2, Neuman Dep., p.79:22-80:19; Exhibit 1, Rudd dep., p.100:21-24. Exhibit 2, Neuman Dep., p.88:14-25. 5

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since Mr. Limppo was one of the named harassers.25 Before he started the investigation, Neuman told Mr. Limppo that there was an allegation that he (Mr. Limppo) had made an inappropriate advance to Jesica Rudd. Neuman stated that he did not believe the allegation to be truthful, but that he had to investigate all the same.26 Neuman performed a cursory investigation in which he randomly selected approximately one or two female employees from each department.27 (At the time, BCFW had 52 employees of which at least 34 were female).28 He did not specifically ask about problems with Mr. Limppo or Mr. Iglehart or even state that the investigation concerned sexual harassment. He just asked if the employee felt uncomfortable around any other associates and if they felt comfortable going to managers with issues.29 Neuman actually completed the interview process before he received the details regarding Jesica Rudd's allegations.30 Nevertheless, Neuman's investigation ultimately revealed that four other young women had experienced sexually harassing conduct, similar to that complained of by Jesica Rudd, on the part

25

Exhibit 2, Neuman Dep., p.96:22-p.97:4; Exhibit 7, Limppo Dep., p.68:22-24. Exhibit 7, Limppo Dep., p.57:7-20.

26

A total of approximately twelve employees according to Neuman. (Exhibit 2, Neuman Dep., p.101:21-102:19; p.110:12-111:2.) However Defendants insist that they cannot locate the notes that Neuman took of the investigation and Neuman cannot specifically recall whom all he questioned. (Exhibit 2, Neuman Dep., p.108:7-109:6.) Defendants' Responses to Plaintiff's second set of discovery, Q. 25., attached hereto as Exhibit 9.
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27

Exhibit 2, Neuman Dep., p.114:2-p.116:2. Exhibit 2, Neuman Dep., p.96:10-21; p.106:23-p.107:1. 6

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of Mr. Iglehart.31 There were allegedly no complaints made by those questioned about Mr. Limppo.32 Neuman confirmed that, at least with respect to Mr. Iglehart, Debi and Jesica Rudd's complaints of sexual harassment were well founded,33 and that Debi Rudd had reason to be concerned about the possible sexual harassment of her young daughter.34 On Friday, June 13, 2003, three days after reporting the sexual harassment, Debi Rudd asked permission from the merchandising manager, Raquel Romero (the ranking management person at the store at that time),35 to go to her car and retrieve Jesica's statement regarding her allegations of sexual harassment. Neuman was present in the office when Ms. Rudd made her request.36 Since Mr. Neuman was leaving for vacation the next day, and BCFW had been pressuring Jesica Rudd for the statement, the plaintiff thought it important to provide the statement that day.37 Ms. Romero gave the plaintiff permission and Ms. Rudd left the building to

See Exhibit 10, statements by Chris Martin, Patricia Guak, Jessica Garner, and K.C. Iglehart; and Exhibit 5, pp. 4-6, statement of Jesica Rudd, attached to her Affidavit; Exhibit 2, Neuman Dep. p. 107:5-9; p. 122:1-8.
32

31

Exhibit 2, Neuman Dep. p. 159:8-15. Exhibit 2, Neuman Dep., p.126:20-24; p.136:18-p.137:1. Exhibit 2, Neuman Dep., p.153:14-17. Exhibit 2, Neuman Dep., p.72:20 - p.73:1. Exhibit 11, Affidavit of Angel Garcia; Exhibit 1, Rudd Dep. p. 55:14-15. Exhibit 1, Rudd Dep. p.54:25-p.55:15. 7

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go to her car.38 As was the practice at BCFW, she did not punch out.39 While she was gone, she also called a lawfirm for advice regarding BCFW's ability to question her daughter regarding the sexual harassment allegations outside of her presence.40 In addition, when she realized that the statement she had in her car was incomplete, she called her daughter who was still at home.41 Ms. Rudd left the incomplete statement by Jesica in her car but returned to the store with a love note that one of the harassers, Mr. Iglehart, had given her daughter. She handed the note to Ms. Romero who made a photocopy of it.42 Mr. Iglehart was disciplined for harassment that day.43 Chris Limppo, the loss prevention manager, had previously been assigned by Neuman to scrutinize the conduct of the plaintiff.44 Neuman did not remove Mr. Limppo from this assignment even after the plaintiff and her daughter accused him of sexually harassing Jesica and, in fact, informed him of their accusation. 45 While reviewing videotapes of the plaintiff's actions, Mr. Limppo observed that Ms. Rudd had left the building on June 13, 2003 and confirmed that

38

Exhibit 1, Rudd dep. p. 56:15 - 23. Exhibit 1, Rudd Dep. p. 114:19 - p. 115:2; p.131:20-24. Exhibit 1, Rudd Dep., P.56:20-P.58:13; p.62:22-p.63:3. Exhibit 1, Rudd Dep., p.65:16-20.

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40

41

Exhibit 1, Rudd Dep. p.66:11-1. Raquel Romero agrees that Ms. Rudd brought her the note but says she did not copy it but rather faxed it. Exhibit 4, Romero Dep. p. 160:19-24.
43

42

Exhibit 12, Final warning given to K.C. Inglehart dated June 13, 2003. Exhibit 7, Limppo Dep., p.24:20-p.25:13.

44

Exhibit 2, Neuman Dep., p. 170:20-22; Exhibit 7, Limppo Dep., p.56:5-10, p. 57:7-20; p.70:25-p.71:4. 8

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she had not punched out.46 On or about June 16, 2003, he called Neuman on his vacation in Texas to inform him that they had caught Ms. Rudd in an infraction that would justify her termination.47 (On June 5, 2003, Neuman had Ms. Rudd and several of her coworkers placed on a final written warning for failing to punch out for a pot luck lunch held in the receiving department).48 Neuman had instructed Mr. Limppo to contact him immediately regarding anything involving Debbie Rudd because he wanted to be involved firsthand.49 Neuman returned from vacation on or about June 23, 2003. He reviewed the tape that showed Ms. Rudd leaving the store on June 13, 2003,50 and the timecard showing that she did not punch out.51 He also questioned Ms. Romero, Ms. Bochy, and Mr. Limppo regarding whether any of them had given Ms. Rudd permission to leave the store at that time. They denied that Ms. Rudd had permission.52 (However, as set forth below, a few days later Ms. Romero informed Mr. Neuman that she remembered she had given Ms. Rudd permission.) During this time, Neuman

46

Exhibit 7, Limppo Dep., p.78:13-22; statement of Mr. Limppo, Defendants' Exhibit D. Exhibit 7, Limppo Dep. p. 82:5-15. Defendants' Exhibit B; Exhibit 2, Neuman Dep., p.204:9-21. Exhibit 7, Limppo Dep., p.82:16-22.

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49

Defendants also maintain that they are unable to locate the videotape of June 13 2003, which would have shown the plaintiff and any other employees who left the store that day.
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50

Exhibit 2, Neuman Dep., p.171:17-25.

Exhibit 13, handwritten statement of Angela Bochy dated 6/27/03; Exhibit 14, handwritten statement of Chris Limppo dated 6/27/03; Exhibit 4, Romero deposition p.147:14 p.148:3. 9

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had Mr. Limppo, Ms. Bochy, and Ms. Romero sit in the office for most of a day preparing statements regarding various issues that might come up about the Plaintiff's termination. Neuman would give them a shell to work with and often told them what to say. Although written at the same time, the statements were dated later to correspond to the topic.53 There was a lot of focus by Neuman as to whether Ms. Rudd had gotten permission prior to going to her car on the 13th.54 Neuman had told Limppo that he was sure that if BCFW made a mistake regarding Ms. Rudd that it would end up getting taken to court.55 During this time, Neuman did not advise Ms. Rudd that he was investigating her conduct from the 13th.56 On Friday, June 27, 2003, Neuman called the plaintiff into the office and terminated her for violating the time card policy while on a final written warning.57 It is undisputed that Ms. Rudd's work was satisfactory and there was no other reason for the termination.58 Ms. Rudd protested that since she had been placed on the final warning, she had always been sure to get permission from a manager every time she had left the store. (At that time, Ms. Rudd did not specifically remember what she had been doing two weeks earlier). Neuman then asked her immediate supervisor, Chris Moore whether Ms. Rudd had received permission to go outside to

53

Exhibit 7, Limppo dep. p. 87:7-p.88:3; p.102:6-23; p.104:3-19. Exhibit 7, Limppo Dep. p.88:4-7. Exhibit 7, Limppo Dep. p. 64:3-6. Exhibit 2, Neuman Dep., p. 230:9-19. Defendants' Exhibit E; Exhibit 2, Neuman Dep., p. 58:22-25. Exhibit 2, Neuman Dep., p.58:14-21. 10

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her car on June 13, 2003. Mr. Moore responded that he could not have because he had been off on the 13th.59 Neuman never asked Ms. Rudd what she was doing out at her vehicle.60 When Ms. Rudd returned home after her termination, she remembered that the 13th was the day that she had gone to her car, with permission from a manager, to retrieve her daughter's statement regarding the sexual harassment allegations. She immediately wrote to corporate and to several others at BCFW to inform them of the reason she had left the store, of the fact that she had permission, and that she felt that her termination was in retaliation for having assisted her daughter in reporting the sexual harassment. She asked that Raquel Romero be questioned and that the tape of the 13th be reviewed since it would show that she had a piece of paper in her hand when she reentered the store.61 Neuman agrees that the videotape shows Ms. Rudd bringing in the note that had been written to her daughter by Mr. Iglehart.62 The following Monday, June 30, 2003, Ms. Romero wrote a statement at the request of Neuman to address Ms. Rudd's assertion to corporate that she had left the store on the 13th with Ms. Romero's permission. In her statement, Ms. Romero admitted that she had, in fact, given Ms. Rudd permission one day to go to her car to retrieve a statement having to do with the sexual harassment allegations of Jesica Rudd, although she could not remember the precise day. Ms.

59

Exhibit 1, Rudd Dep. p.53:6-p.54:16. Exhibit 1, Rudd Dep. p. 162:9-12. Exhibit 1, Rudd Dep., p.68:2-2; p.122:8-13, Exhibit 8. Exhibit 2, Neuman Dep., p.172:16 - p.173:11. 11

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Romero provided the statement to Neuman. 63 (BCFW did not provide this statement, or the statement by Mr. Limppo that it was a common practice for employees to go to their cars with permission from a supervisor, to the EEOC.)64 At the time of the plaintiff's termination, it was common practice for an employee to leave the building without punching out if given permission by a supervisor.65 The employee handbook states that employees are required to punch out for rest breaks, meal periods, and departure from work for personal reasons.66 Meal breaks are unpaid, but breaks are paid. The purpose of having employees punch out for breaks is so that the employee's activity can be monitored. Punching out would therefore not be necessary if the employee has permission from a supervisor who is then aware of the employee's activity.67 At any rate, in this case, Ms. Rudd was neither on a rest break nor on a personal errand when she left, with permission, to go to her car. She went to her car for a work-related reason to retrieve paperwork related to the sexual harassment investigation. Previous store manager, Tammy Skurnik, testified that employees did not have to punch out for any reason related to

Exhibit 4, Romero Dep. p.146:19 - p.148:13; handwritten statement of Raquel Romero dated 6/30/03, Defendants' Exhibit G.
64

63

See last paragraph of p. 3 of Defendants' Response to the EEOC, attached as Exhibit 15.

Exhibit 7, Limppo Dep., p.54:25-p.55:7; memo written by Mr. Limppo dated 6/27/03, attached as Exhibit 14; Exhibit 3, Skurnik Dep., p.63:11-25.
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65

See Defendants' Exhibit A, p.24 under "Time-Keeping." Exhibit 3, Skurnik Dep., p.64:12-25; p.68:8-p.69:20. 12

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work, such as retrieving a name tag from the car.68 According to Ms. Skurnik, the Plaintiff would not have been required to punch out under these circumstances and she was surprised to learn that she had been fired for going out to her car.69 (Assistant store manager, Raquel Romero, testified that she did not know one way or the other whether Ms. Rudd's action that day was or was not personal.70 Mr. Neuman testified that if Jesica Rudd had left to retrieve the statement, it would have been work-related.71) In the days following her termination, Ms. Rudd brought several issues to the attention of BCFW regarding the disparate treatment she had received by being terminated under these circumstances. An investigation into Ms. Rudd's allegations continued for weeks after the termination.72 Other employees, who in fact were in violation of BCFW's time-keeping policy were not disciplined. For example, Mr. Limppo, who had previously been warned by Ms. Skurnik about not punching out for lunch, but rather editing his time card after the fact 73(a practice that does result in an overpayment to the employee if the edit does not actually reflect the time taken for lunch) was not disciplined for this even though he continued the practice after being warned. This infraction was specifically brought to the attention of BCFW and Neuman by Ms. Rudd after

68

Exhibit 3, Skurnick Dep. p.93:10 - p.94:3. Exhibit 3, Skurnik Dep., p. 73:24 - p.74:23. Exhibit 4, Romero Dep. p.150:3-10. Exhibit 2, Neuman Dep., p.238:11-19. Exhibit 2, Neuman Dep., p.61:7-17; p.63:7-12. Exhibit 3, Skurnik Dep., p.69:21-p.70:23. 13

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her termination.74 Moreover, Mr. Limppo's time cards for the months preceding Ms. Rudd's termination reveal that he frequently did not punch out for lunches at all--another violation of policy that costs the company money.75 On June 16, 2003, Neuman received an e-mail from Ms. Rudd notifying him of several employees that appeared to be taking a break on the clock.76 These employees included Lovell Gerdine who was also on a final written warning for the receiving pot luck incident. A review of Mr. Gerdine's timecard shows that he was not punched out for the break.77 Mr. Gerdine was not disciplined for this second timecard infraction. Jesica Rudd quit her employment a few weeks after her mother's termination because she felt that she had been treated in a hostile fashion ever since she reported the harassment. She was given inconsistent and confusing instructions about job duties and who her supervisor was. She was not allowed to work additional hours as had been typical for her in the past during summer vacation. The new store manager, Candy Ochoa, was so hostile to her that Jesica was left in tears. 78

Exhibit 2, Neuman Dep., p.174:7-13; email from Neuman to himself dated July 4, 2003, attached hereto as Exhibit 16.
75

74

Exhibit 2, Neuman Dep., p.181:13-23; p.185:14-20. Exhibit 2, Neuman Dep. p. 260:7-24. Exhibit 7, Limppo Dep. p.85:8 - p.86:15. Exhibit 5, affidavit of Jesica Rudd. 14

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On June 13, 2003, when Ms. Rudd went to her car to retrieve the paperwork relevant to the investigation of her daughter's sexual harassment claim, BCFW, through its managerial employee, Raquel Romero, (and indeed through Neuman himself who was present at the time) had notice that Ms. Rudd was engaged in a protected activity. The manner in which she engaged in the activity did not, in fact, violate the employer's rules or procedures since she had permission to leave. Within hours of the termination, Mr. Neuman and BCFW were provided with specific information regarding what the plaintiff was doing that day. By the following business day, Defendants also had information from Raquel Romero that confirmed Ms. Rudd's statement of having permission. Neuman reviewed the videotape of the 13th as requested by the plaintiff and it confirmed that she was indeed carrying in a piece of paper. Neuman ignored this and other information confirming what Ms. Rudd said.79 In fact, he told one employee, Amanda Kilgore, to keep out of the investigation. 80 Furthermore, Ms. Rudd's termination on June 27, 2003, was not truly final at that time since, as Neuman testified, it could have been reversed by BCFW.81 In fact, as mentioned above, Neuman and BCFW continued to investigate allegations raised by Ms. Rudd regarding her termination well into July 2003.

79

Exhibit 2,Neuman Dep. p.237:11-p.238:9.

Exhibit 2, Neuman Dep. p. 234:9 - p.236:1; statement of Amanda Kilgore dated July 7, 2003, attached as Exhibit 17.
81

80

Exhibit 2, Neuman Dep. p.62:4-8. 15

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No other employee of BCFW has ever been disciplined for not punching out when leaving the building with the permission of a supervisor.82 BCFW's termination of Ms. Rudd within two and a half weeks of her assisting her minor daughter in reporting sexual harassment at BCFW violates Title VII.

INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONSHIP Defendant Neuman began working for BCFW in November, 2001 as district manager.83 When Neuman began his employment, Plaintiff worked directly for him as the district secretary.84 A few months after Neuman began working for BCFW, he conducted the yearly performance evaluations of the employees directly supervised by him, including Plaintiff.85 For the first time since she started with the company, Ms. Rudd was not given a performance-based raise.86 Initially, Ms. Rudd was informed by Neuman that the failure to receive a raise was in error. Although she repeatedly requested to see the evaluation, it was never shown to her. Finally, after repeated fruitless requests to Neuman for follow-up on the raise and after learning that other district secretaries had received raises, Ms. Rudd decided to transfer to a different

82

Exhibit 2, Neuman Dep., p.259:21-p.260:1; Exhibit 3, Skurnik Dep. p. 74:24-p.75:4. Exhibit 2, Neuman Dep., p.9:17-21. Exhibit 2, Neuman Dep., p.15:24-p.16:6. Exhibit 2, Neuman Dep., p.20:18-21. Exhibit 1, Rudd Dep., p.75:1-7. 16

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position where she would not have to work directly for Neuman.87 In approximately mid-March, 2002, Ms. Rudd informed Neuman that she was immediately transferring to the receiving department to work under the supervision of store supervisor Tammy Skurnik. Neuman asked Ms. Rudd to stay on for two weeks in order to train a replacement. Ms. Rudd replied that if she was not worthy of a raise, then she also was not good enough to train someone else. Neuman was upset at Ms. Rudd leaving on such short notice. He told her that she was "twisting the knife in his back." Neuman then called Ms. Skurnik and asked her to convince Ms. Rudd to continue working as district secretary for at least two weeks before transferring. Ms. Rudd finally agreed to do so,88 but Neuman felt that Ms. Rudd did not really give her full effort during this period and he was left to do much of the work himself. 89 Moreover, after Ms. Rudd transferred into the receiving department, she filed a complaint with BCFW in which she complained about a manger, Portia Toples, and about Mr. Neuman. This complaint prompted an investigation by BCFW into managerial conduct. Tammy Skurnik testified that she was sure that Neuman was upset by this.90 When Ms. Rudd transferred into the receiving department, on or about April 1, 2002, Ms. Skurnik had authority over her.91 Since he was the district manager, Neuman would no longer

87

Exhibit 1, Rudd Dep., p.77:2-14. Exhibit 1, Rudd Dep., p.78:8-p.80:17; Exhibit 3, Skurnik Dep., p.23:16-28:2. Exhibit 2, Neuman Dep., p. 42:4-11. Exhibit 3, Skurnik Dep., p.61:22-p.62:22; p.81:10-p.82:19. Exhibit 3, Skurnik Dep., p.28:14-20. 17

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have directly supervised Ms. Rudd.92 Ms. Skurnik thought that Ms. Rudd was a very knowledgeable and valuable employee.93 However, in April, 2003, Ms. Skurnik left BCFW and Neuman became more involved in the day to day operations of the store.94 Chris Limppo, the loss prevention manager, observed that Neuman was scrutinizing the Plaintiff's conduct more than that of other employees at the store.95 He could tell that there was definitely animosity between Neuman and Ms. Rudd.96 On May 8, 2003, a local radio station brought in a lunch for the employees of BCFW from 11:00 am to 1:00 pm as part of a prize won by Ranee Grayson, a BCFW employee. Certain employees, including Ranee Grayson, did not punch out for the lunch. 97 However, the evidence shows that at that time, only Debi Rudd's timecard was scrutinized.98 (Ranee Grayson was eventually disciplined for not punching out for the lunch, but not until after the plaintiff brought the issue to the attention of the human resources department on June 27, 2003, the day of

92

Exhibit 3, Skurnik Dep., p.18:16-p.19:2. Exhibit 3, Skurnik Dep., p.29:17-20; p.32:11-16. Exhibit 4, Romero Dep., p.11:15-p.12:19; Exhibit 7, Limppo Dep., p.46:12-15. Exhibit 7, Limppo Dep. p.65, 20-23. Exhibit 7, Limppo Dep. p. 66:7-13. Exhibit 18, Affidavit of June Dominguez; Exhibit 19, employee warning of Ranee

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96

97

Grayson. E-mail from Chris Limppo to Mike Neuman dated May 21, 2003 attached as Exhibit 20; Exhibit 7, Limppo Dep. p.35:15 - p.36:12. 18
98

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Plaintiff's termination.99 This in spite of the fact that another employee, June Dominguez, had brought this infraction to the attention of Mr. Neuman on or about June 5, 2003.100) Mr. Limppo was actually called at home on the night of May 8, 2003, and asked to report to work by Angie Bochy, the manager on duty, to review store tapes because Ms. Bochy stated she believed that Debi Rudd had not correctly punched out for a break that day.101 The review was focused specifically on Ms. Rudd.102 Although Ms. Rudd's timecard reflected that she was actually punched out from 9:37 a.m. until 2:10 p.m. and paid for only 4.45 hours that day,103 an investigation was started on Debi Rudd104 and Mr. Limppo began to keep a daily log on her.105 As part of his investigation of the plaintiff, Mr. Limppo informed Neuman that on May 16, 2003, Ms. Rudd had failed to punch out for lunch from 12:40 p.m. to 13:40 p.m.106 Neuman

See page 2 of Exhibit 21, email to Human Resources and others at BCFW by Plaintiff dated 6/27/03; Exhibit 22, email from Neuman to himself dated 7/3/03. Exhibit 18, Affidavit of June Dominguez. It should also be noted that BCFW misrepresented to the EEOC that Ms. Grayson had been disciplined in a more contemporaneous fashion. See second paragraph, p.6, of Defendants' Response to the EEOC, attached as Exhibit 15.
101 100

99

Exhibit 7, Limppo Dep. p. 33:18-p.34:21. Exhibit 7, Limppo Dep. p.42 16-25. Exhibit 7, Limppo Dep. p. 36:18 - 37:18; p. 39:24 - p.40:18. Exhibit 7, Limppo Dep. p. 29:23 - p. 30:3; Exhibit 20.

102

103

104

Exhibit 7, Limppo Dep. p. 50:10-13. Defendants have denied that they can locate the log that Mr. Limppo kept on the plaintiff or his notes regarding Ms. Rudd or other employees, if any, he may have been investigating at the time.
106

105

Exhibit 20. 19

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called Mr. Limppo and asked him to review surveillance footage of a potluck lunch that had been going on in receiving at that time on May 16th to look for any individuals that might be on the clock. Neuman then gave Mr. Limppo a list of employees' punches to compare. This specific type of request by Neuman was out of the ordinary.107 On June 5, 2003, Ms. Rudd and her co-employees June Dominguez, Angel Garcia, Lovell Gerdine, Nate Coulson, and Jesica Rudd, were all placed on a final written warning for failing to punch out for a meal break.108 ( The pertinent portion of the company handbook states that employees must punch out for lunches and breaks and for departure from work for personal reasons.)109 Although the discipline seemed unduly harsh, Ms. Rudd acknowledged that she had violated company policy albeit unintentionally.110 According to information provided to Neuman by Mr. Limppo, Ms. Rudd also did not punch out for breaks on May 12, 13, 14 and 19, 2003. Neuman decided not to discipline Ms. Rudd for these instances because he "wanted to have one that there could have been no doubt about."111 Furthermore, Neuman insisted that Limppo follow-up on everybody so it would not look like the investigation was geared just to Debi Rudd, but rather to the event itself (i.e. the receiving pot luck).112

107

Exhibit 7, Limppo Dep., p. 25:21 - p.26:14. Exhibit 2, Neuman Dep. p.204:6-18. See Defendants' Exhibit A, p. 24 under "Time-Keeping." Exhibit 1, Rudd Dep. p. 49:5-12. Exhibit 2, Neuman Dep. p.166:11-22. Exhibit 7, Limppo Dep. p.75:22 - p.76:12. 20

108

109

110

111

112

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Although Neuman maintained a cordial demeanor in the presence of Ms. Rudd, his actions, and his communications with Mr. Limppo, are evidence of his intent to retaliate against her -- an employee who he admitted was an asset to the company. Mr. Limppo testified that there was no question in his mind, based on Neuman's persistent focus on investigations concerning Debi Rudd and based on the sheer quantity of these investigations, that Neuman's goal was the termination of Ms. Rudd.113

INTENTIONAL INTERFERENCE WITH A PROSPECTIVE BUSINESS RELATION Following her termination, Plaintiff made several unsuccessful attempts to locate other employment. Finally, she was offered a position at Ross Department Store pending a check of her references. Subsequently, Ms. Rudd was informed by a manager at Ross that the offer was being retracted based on his conversation with an individual at BCFW. Plaintiff has attempted to locate the individual to whom she spoke at Ross, but has had no success. (Even though she hired a private investigator to do a skip-trace.) Plaintiff therefore voluntarily dismisses her claim for intentional interference with a business relation. If the Court is inclined to grant Defendants' request for attorney fees and costs on this claim, the Plaintiff requests a hearing.

II. STANDARD OF REVIEW To defeat a motion for summary judgment, a plaintiff must simply "raise a genuine issue

113

Exhibit 7, Limppo Dep. p. 88:P16 - p.89:1. 21

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of material fact on each element of the prima facie case." Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). "[A]ll inferences arising from the record ... must be drawn and indulged in favor of the party opposing summary judgment." McCowan v. All Star Maintenance, Inc., 273 F.3d 917, 921 (10th Cir.2001). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge" in ruling on a motion for summary judgment. Foster v. Allied Signal, Inc., 293 F.3d 1187, 1195 (10th Cir.2002)(quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The role of the court at the summary judgment stage is "simply to determine whether the evidence proffered by plaintiff would be sufficient, if believed by the ultimate factfinder, to sustain her claim." Id.

III. ELEMENTS OF THE CLAIMS AND BURDENS OF PROOF A. Title VII Claim Ms. Rudd has brought her claim of unlawful discrimination against Defendant BCFW under §704(a) of Title VII, 42 U.S.C. §2000-(3)(a). At trial, she can prove her case either through direct evidence or pursuant to the McDonnell Douglas paradigm. See, Shorter v. IGC Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir.1999). I. The elements of Plaintiff's Title VII claim using direct evidence are: 1. §2000e-3(a). Ms. Rudd engaged in an activity protected under §704(a) of Title VII, 42 U.S.C.

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2.

Defendant BCFW subjected Ms. Rudd to an adverse employment action for

engaging in the protected activity. Shorter v. IGC Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir.1999); Stone v. City of Indianapolis Public Utilities Division, 281 F.3d 640, 642 (7th Cir.2002). Plaintiff's burden is by a preponderence of the evidence. If the Defendant would then prove by a preponderance of the evidence that it would have taken the same action regardless of the illegal reason, then plaintiff would still be entitled to recover pursuant to §706(g)(2)(B) of Title VII, under the mixed-motive analysis. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). II. The elements of Plaintiff's Title VII claim under the McDonnell Douglas analysis: Under Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th Cir.2000), cited by Defendants, to state a prima facie case under the burden shifting analysis of McDonnell Douglas, the plaintiff must show: 1. 2. activity; and 3. action. (Element number 2 was stated somewhat differently in Love v. Re/Max of America, Inc., 738 F.2d 383, 385 (10th Cir.1984) citing Burrus v. United Telephone Co., 683 F.2d 339, 343 23 A causal connection exists between the protected activity and the employment She engaged in protected opposition to discrimination; BCFW subjected her to an adverse employment action subsequent to the protected

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(10th Cir.1982), cert.denied, 459 U.S. 1071, 103 S.Ct.491, 74 L.Ed.2d 633 (1982), to wit: "adverse action by the employer subsequent to or contemporaneous with such employee activity." (Emphasis added)) As discussed infra, Plaintiff can establish a factual issue regarding these 3 elements. This is however unnecessary. The 7th Circuit has recently reconsidered the appropriate elements of a prima facie case for retaliation under McDonnell Douglas and has determined that the third element, that the plaintiff be required to state facts supporting a causal connection between the protected activity and the adverse employment action, overstates the plaintiff's burden. Requiring the Plaintiff to prove a causal connection would be more consistent with the "direct evidence" method of proof. McKay v. Town & Cntry Cadillac, Inc., 991 F.Supp. 966 (ND Ill.2002); Stone v. City of Indianapolis Public Utilities Division, 281 F.3d 640, 643-44 (7th Cir.2002). Plaintiff therefore asserts that her prima facie case consists of her proving, by a preponderance of the evidence that 1. 2. She engaged in protected opposition to discrimination; and BCFW subjected her to an adverse employment action subsequent to or

contemporaneous with the protected activity. Once BCFW articulates a legitimate, nondiscriminatory reason for the adverse action, then the burden shifts back to Ms. Rudd to show that "there is a genuine issue of material fact as to whether the employer's proffered reason for the challenged action is pretextual, i.e., unworthy of belief." Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir.1999) citing Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323 (10th Cir. 1997). 24

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Although Plaintiff does have the ultimate burden of proving by a preponderance of the evidence that either "but for" the protected activity the adverse employment action would not have happened, or , at least that the protected activity was "a motivating factor,", Desert Palace, Inc.v.Costa,, 539 U.S. 90 (2003), "[t]he factfinder's disbelieve of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination..." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749, 2751-2752 (1993). B. Intentional Interference Claim The elements of Plaintiff's claim against Defendant Neuman for intentional interference with contractual relations are as follows: 1. 2. 3. 4. Ms. Rudd had a valid contract for employment with BCFW; Defendant Neuman knew about the contract; Defendant Neuman intentionally and improperly induced the termination; and This resulted in damages to Ms. Rudd.

Graziani v. Epic Data Corp., 305 F. Supp. 2d 1192, 1196 (D.Colo.2004); Trimble v. City and County of Denver, 697 P.2d 716, 726 (Colo.1985).. Plaintiff's burden is by a preponderance of the evidence.

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IV. MATERIAL FACTS IN DISPUTE Plaintiff disagrees with the following "undisputed facts" listed by Defendants: 10. Ms. Rudd's relationship with Neuman did change after she told him that she would no

longer work for him as district secretary. Although the plaintiff was not aware of it at the time, Neuman was scrutinizing the Plaintiff's conduct more than other employees at the store and, according to the loss prevention manager, was intent on finding a reason to terminate the Plaintiff. See Section I., Statement of the Case, pp. 18 to 21. 13. and 14. Plaintiff disagrees with these statements in that the date is wrong. The actual date of the receiving department potluck lunch was May 16, 2003. 15. 16. Plaintiff disagrees with this statement for the same reason she disagreed with statement 10. BCFW, through its store manager, Tammy Skurnik, was informed in 2002 that Lovell

Gerdine had made inappropriate sexual comments to Jesica Rudd.114 The plaintiff and her daughter also told Ms. Skurnik in or around the beginning of 2003 about the inappropriate sexual comments that were being made to Jesica Rudd by Chris Limppo and K.C. Iglehart. (Exhibit 5, Affidavit of Jesica Rudd.) 17. Neuman investigated and reported only the allegations against Mr. Limppo and Mr.

Iglehart that were reported to him by the plaintiff and her daughter on June 10, 2003. 19. The plaintiff disagrees that she committed a "second offense" of BCFW's timekeeping

policy since she had a supervisor's permission to go to her car. See Section I., Statement of the

114

Exhibit 5, Affidavit of Jesica Rudd; Exhibit 1, Rudd Dep. p. 93:10-14. 26

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Case, pp. 7-8 and 12-13. 20. Again, Plaintiff disputes that she committed a "second timekeeping violation."

V. ARGUMENT 1. PLAINTIFF CAN PRESENT FACTS SUFFICIENT TO SUPPORT HER CLAIM UNDER TITLE VII THROUGH DIRECT EVIDENCE

Ms. Rudd has brought a claim against BCFW under §704 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-3, which makes it an unlawful employment practice for an employer to discriminate against an employee for opposing a practice made unlawful under Title VII ("the Act") or participating in a proceeding thereunder. She can prevail on this claim under one of two methods: either by presenting direct evidence of discrimination or by utilizing the burden-shifting method developed pursuant to McDonnell Douglas Corp.v.Green, 411 U.S. 792 (1973). Stone v. City of Indianapolis Public Utilities Division, 281 F.3d 640, 644 (7th Cir.2002). Direct evidence is "[e]vidence, which if believed, proves [the] existence of [a] fact in issue without inference or presumption." Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir.1999), citing to Black's Law Dictionary 460 (6th ed. 1990). When an employee presents direct evidence of discrimination, an illegal motive is proved and no further evidence of intent to discriminate is required. Lee v. Russell County Brd. of Edu., 684 F.2d 769, 774 (11th Circ.1982).

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As stated above in Section III., in order to survive summary judgment on this claim, Ms. Rudd must establish a factual issue on each of the following elements: (1) she was engaged in an activity protected under §704 of the Act and (2) as a result, she was subjected to an adverse employment action. Stone, Id at 642. Ms. Rudd has met this burden. It is undisputed that the sole reason that Ms. Rudd was terminated was because she went to her car on June 13, 2003 without punching out. (Exhibit 2, Neuman Dep. p. 58:14-21.) As the evidence shows, the reason Ms. Rudd left was to retrieve paperwork in support of Jesica Rudd's claim of sexual harassment by two BCFW employees. (Exhibit 1, Rudd Dep. p. 54:2556:23.) (In fact, Defendant Neuman "stipulated" in his deposition that Ms. Rudd came back from her car at the date and time in question bringing with her the love note from K.C. Iglehart. Exhibit 2, Neuman Dep.p. 172:24 - p. 173:11). The testimony of supervisor Raquel Romero (Exhibit 4, Romero Dep. p. 146:19 - p. 148:13), along with the written statement Ms. Romero provided to BCFW on June 30, 2003, (Defendants' Exhibit G) and the affidavit of Angel Garcia (Exhibit 11) support Ms. Rudd's testimony that she went to her car after she had been granted permission from Ms. Romero to go to her car for this purpose. The evidence also supports that Mr. Neuman was present in the room when Ms. Rudd was granted permission to leave (Exhibit 1, Rudd Dep. p. 55:14-15; Exhibit 11, affidavit of Angel Garcia). BCFW therefore had knowledge, through managerial employees, including Defendant Neuman, the employee who terminated her, that Ms. Rudd was involved in protected activity when she left the building on June 13, 2003. Knowledge on the part of a defendant prior to the alleged retaliation can be inferred from

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surrounding circumstances. McKenzie v. Atlantic Richfield Co., 906 F.Supp. 572, 577 (D.Colo.1995). As set forth in more detail in Section I., Ms. Rudd was actively involved in assisting her minor daughter in reporting sexual harassment. Defendant Neuman testified that "[a]ll of the issues [brought to Mr. Neuman's attention on June 10, 2003, including the sexual harassment issue] were raised by Debi [Rudd]..." Debi Rudd named Chris Limppo, K.C. Iglehart, and Lovell Gerdine as the harassers. (Exhibit 2, Neuman Dep.p.74:13-p.75:18). Mr. Neuman asked if "they" [meaning plaintiff and her daughter] could provide details of the harassment and asked for verbal and written statements (Exhibit 2, Neuman Dep.p.79:18-25). On June 13, 2003, Jesica Rudd did not go in to work. Because BCFW was pressuring Jesica Rudd for a statement regarding the allegations of harassment, even threatening to fire her if she did not promptly comply, and because Mr. Neuman was leaving for vacation the next day, Debi Rudd thought it important that she try to provide Jesica's statement to BCFW. (Exhibit 1, Rudd Dep. p.54:25 - p.55:15; Exhibit 5, Affidavit of Jesica Rudd). She therefore sought, and received, permission from her supervisor to go to her car. The activity protected by §704(a) of the Act is broad and includes even informal complaints to superiors. "Title VII extends protection to `those ...who informally voice complaints to their superiors or who use their employers' internal grievance procedures.'" Robbins v. Jefferson Cty. School Dist.R-1, 186 F.3d 1253, 1258, citing Rollins v. State of Florida Dep't of Law Enforcement, 868 F.2d 397, 400 (11th Cir.1989). See also, O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1258 (10th Cir.2001); and Pastran v. K-Mart Corp., 210 29

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F.3d 1201, 1205 (10th Cir.2000). Even visiting an attorney has been held to be a protected activity under the Act. Owens v. Rush, 24 FEP 1543, 1554 (D.Kan. 1979). Although in this case, Defendant Neuman admitted that the Rudds' complaint of sexual harassment was valid, at least with respect to Mr. Iglehart, (Exhibit 2, Neuman Dep.p.126:20-24; p.136:18-p.137:1), to be protected under Title VII, a plaintiff does not have to prove the validity of the complaint. Even opposition activity that is based on a mistaken good faith belief that Title VII has been violated is protected. Robbins, supra at 1258, citing Love v. Re/Max of America, Inc., 738 F.2d 383, 385 (10th Cir.1984). Reporting violations of the Act that involve another employee is also protected activity under Title VII. See, e.g. Petersen v. Utah Department of Corrections, 301 F.3d 1182 (10th Cir.2002) (plaintiff claimed retaliation for opposing discriminatory treatment of Native American co-employees). Plaintiff therefore meets the first element of her claim. Termination, by its very nature, is an adverse action. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir.1997); Roberts v. Roadway Express, Inc., 149 F.3d 1098 (10th Cir.1998). Because Ms. Rudd was terminated as a result of engaging in a protected activity, she also meets the second element of this claim. Defendants maintain that, even if Ms. Rudd had permission from a supervisor to leave the building, she was still in violation of company policy because she admittedly did not punch out before she left. As set forth in detail in her Statement of the Case, section I., the evidence indicates that employees were not required to punch out before leaving the building if the employee had the permission of a supervisor to leave. Numerous witnesses confirm this. Even 30

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the employee handbook only requires the employee to punch out if leaving for "personal reasons," (Defendants Exhibit A, p.24) which this was not. Although conduct which would normally be protected under Title VII might lose its protection if it is "so disruptive or inappropriate as to fall outside the statute's protection", Rollins v. State of Fla. Dept. of Law Enforcement. 868 F.2d 397, 400 (11th Cir.1989) (internal cite omitted), or if the employee violates legitimate rules and orders of his employer, Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1312 (6th Cir.1989), the converse is also true and in the absence of such inappropriate conduct, the activity is protected. Defendants have "failed to show an absence of disputed factual issues concerning why Plaintiff was discharged...[T]he motivation for terminating Plaintiff is a `hotly contested issue of material fact.'" Langley v. Adams County, Colorado, 987 F.2d 1473, 1479 (10th Cir.1993). Ms. Rudd has established factual issues sufficient to survive summary judgment on this claim and it remains for the jury to decide whether she can prove, by direct evidence, that BCFW terminated her in violation of Title VII.

2. PLAINTIFF CAN MEET HER INITIAL BURDEN TO ESTABLISH A PRIMA FACIE TITLE VII CASE UNDER MCDONNELL DOUGLAS As an alternative to proving her Title VII claim by direct evidence, Ms. Rudd may also avail herself of the burden shifting indirect method of proof established in McDonnell Douglas Corp. v. Green, supra. Under this framework, Plaintiff initially must only show that (1) she engaged in protected opposition to discrimination; and (2) BCFW subjected her to an adverse

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employment action subsequent to or contemporaneous with the protected activity. McKay v. Town and Country Cadillac, Inc., 991 F.Supp.at 970, Stone v. City of Indianapolis Public Utilities Division, 281 F.3d at 643-44. (See discussion in section III. above). Defendant admits that Ms. Rudd suffered an adverse employment action in that she was terminated (Defendants' Brief p.9). With respect to the remaining element, Plaintiff has presented sufficient evidence to show that prior to her termination, she was engaged in activity protected under Title VII. (See discussion in part 1 of this section.[V]) If this court decides not to follow the rationale of the Seventh Circuit articulated in Stone (supra), then Plaintiff also must present evidence in support of a third element: that a causal connection exists between the protected activity and the employment action. Pastran v. K-Mart Corp. 210 F.3d at 1205. A causal connection may be shown by "evidence of circumstances that justify an inference of retaliatory motive..." O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir.2001) citing Burrus v. United Tel. Co. Of Kan., Inc., 683 F.2d 339, 343 (10th Cir.1982). Numerous Tenth Circuit decisions support the proposition that close temporal proximity between the protected conduct and the adverse action is sufficient evidence of causality to establish a prima facie case. See, e.g. O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir.2001); Pastran v. K-Mart Corp. 210 F.3d at 1205; Kelly v. Goodyear, 220 F.3d 1174, 1179 (10th Cir.2000); Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1321 (10th Cir.1999); Anderson v. Coors Brewing Co., 181 f.3d 1171, 1179 (10th Cir.1999); Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir.1996); Ramirez v. Oklahoma Dept. of 32

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Mental Health, 41 F.3d 584, 596 (10th Cir.1991); Love v. Re/Max of America, Inc., 738 F.2d 383, 386 (10th Cir.1984); Burrus (supra at 343). In Ramirez, supra, the court held that a one and one-half month period between the protected activity and the adverse action may, by itself, establish causation. Ramirez 41 F.3d at 596. Here, Ms. Rudd was terminated 17 days after she and her daughter reported sexual harassment at the store. Defendants' reliance on Kelley is misplaced. In Kelley, supra, the Tenth Circuit citing Marx, 76 F.3d at 329, said that "[n]ormally, a close temporal proximity between the protected conduct and the adverse employment action may justify an inference of retaliatory motive." Kelley, 220 F.3d at 1179. However, the court declined to apply this general principal in failureto-hire cases which almost always inherently involve close temporal proximity between the application or interview and the decision not to hire. Aside from this close temporal proximity, Ms. Rudd has additional evidence supporting the causal connection between the harassment charge and her termination. As set forth above in the Statement of the Case, Section I, p. 5-7, Mr. Neuman performed a cursory investigation into Jesica Rudd's charges of harassment. He claimed that no corroborating evidence was unearthed against Mr. Limppo, but Defendants have failed to produce the notes Neuman admits he took of the interviews or summaries of his notes he testified he transmitted to the BCFW human resources department. (Exhibit 2, Neuman Dep. p. 102:6-19, p. 109:8 - p. 110:6.) Moreover, Neuman even told Mr. Limppo that he did not believe the allegations made by Plaintiff and her daughter were truthful, but he had to investigate all the same. (Exhibit 7, Limppo Dep.p.57:7-20) This 33

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cursory investigation is in stark contrast to the enhanced scrutiny placed on Ms. Rudd, which can be evidence of retaliatory motive. As noted above, p. 9-10, Neuman required his staff to write statements concerning Debi Rudd. In Sheridan v. E.I. Du Port de Nemours & Co., 100 F.3d 1061, 1074 (3d Cir.1996), the Third Circuit commented that the creation of a "paper record" to justify planned disciplinary actions are common to schemes to retaliate. See also, Mead v. U.S. Fidelity & Guar. Co., 442 F.Supp. 114 (D.Minn.1977). On June 11, 2003, the day after Debi Rudd and her daughter notified Neuman of the sexual harassment, merchandising manager Raquel Romero wrote a memo stating that the accusations Debi Rudd had recently made against other employees was making the workplace very hostile. (Exhibit 23.) Ms. Romero had been present on June 10th when the Plaintiff and her daughter reported the harassment. (Exhibit 2, Neuman Dep. p. 72:18-21.) Ms. Romero and Mr. Limppo were close personal friends. (Exhibit 7, Limppo Dep. p. 123:15 - p. 124:24.) (Their personal friendship was denied by Ms. Romero. Exhibit 4, Romero Dep. p. 124:11-25.) It should also be mentioned that during this time, Mr. Limppo and manager Angela Bochy were having a sexual relationship (Exhibit 7, Limppo Dep. p. 111:1 - p.112:5). Following the report of sexual harassment to Neuman on June 10, 2003, Jesica Rudd began to experience a hostile attitude against her by the managers at BCFW. (See Section I, Statement of the Case, p. 14 and affidavit of Jesica Rudd, attached as Exhibit 5.) As a result, Jesica Rudd quit her job with BCFW on July 11, 2003.

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The close temporal proximity between Ms. Rudd's participation in the protected activity and her termination, the negative attitude by Neuman concerning the allegations made by Debi and Jesica Rudd against Mr. Limppo, the negative response by Raquel Romero to Ms. Rudd's complaints, the hostile treatment of Jesica Rudd after the June 10, 2003 report of harassment, along with the other evidence discussed below concerning pretext all support the inference that Ms. Rudd was terminated because she assisted her daughter in reporting sexual harassment.

3. THE EVIDENCE SUPPORTS THAT BCFW'S PROFFERED REASON FOR TERMINATING THE PLAINTIFF IS PRETEXTUAL BCFW maintains that the reason it terminated Ms. Rudd was not because she was engaged in protected activity, but because she violated company policy by leaving the store either without permission from a manager, or, if she did have permission, because she failed to punch out on her timecard before leaving. These reasons are untrue and simply a pretext for the real reason--that she was terminated for engaging in protected conduct. As stated above in Section III, under the McDonnell Douglas burden-shifting paradigm, once the defendant articulates a legitimate nondiscriminatory reason for the adverse action, the burden shifts back to the plaintiff to show that there is a genuine issued of material fact as to whether the defendant's proffered reason is pretextual. "A plaintiff demonstrates pretext by showing `either that a discriminatory reason more likely motivated the employer or ... that the employer's proffered explanation is unworthy of credence.' Marx v. Schnuck Markets, Inc., 76 F.3d 324, 327-328 (10th Cir.1996) cert.denied, 518 U.S. 1019, 116 S.Ct. 2552, 135 L.Ed.2d

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1071 (1996), citing Rea v. Martin Marietta Corp., 29 F.3d 1450, 1455 (10th Cir.1994)(emphasis supplied)(quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). Pretext can be shown by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its actions that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted nondiscriminatory reasons. Morgan v. Hilti, Inc, 108 F.3d 1319, 1323 (10th Cir.1997)(internal quotation marks and citations omitted). Here, BCFW first denies that Ms. Rudd was given permission by a supervisor to go to her car and get her daughter's statement. (Defendants' Brief pp.11 and 12. See also, last paragraph of p.3 of BCRW's response to the EEOC, attached as Exhibit 15). However, the evidence clearly supports that Ms. Rudd had the permission of the manager, Raquel Romero. Ms. Romero testified that when Neuman returned from vacation, he asked her whether she recalled giving Debi Rudd permission to go out to her car to get the statement of Jesica having to do with the sexual harassment. Ms. Romero told him that she had given permission, but did not remember what day it was. Neuman's response was "[j]ust if [she] could remember." On June 30, 2003, the Monday following Plaintiff's termination, Ms. Romero provided Neuman with a written statement. (Exhibit 4, Romero Dep., p.146:19 - p.148:16; Defendants' Exhibit G,

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statement of Ms. Romero dated June 30, 2003).115 Although Ms. Romero did not remember the exact date that she gave the plaintiff permission, the statement, which BCFW did not provide to the EEOC, specifically references that Ms. Rudd asked to go to her car "to get a document regarding the sexual harrasment (sic)." Ms. Romero testified that she also recalled that Ms. Rudd had to get the document in that day (Exhibit 4, Romero Dep.p.155:15-17) and that Ms. Rudd brought her in the note K.C. Iglehart had given to Jesica Rudd. (Exhibit 4, Romero Dep.p.160:19-22). (In their brief (P.12), Defendants misquote Ms. Romero as having recalled granting the permission on June 26 instead of June 13. The citations given do not support this assertion and, in fact, Defendants are confusing a statement by another manager, Angela Bochy. (See statement of Angela Bochy dated June 27, 2003, attached as Exhibit 24). Furthermore, as Neuman "stipulated", the videotape of June 13th shows that Ms. Rudd returned to the store carrying a piece of paper. (Exhibit 2, Neuman Dep. p. 172.24 - p.173:11). Defendants next take the position, that even if Ms. Rudd had permission to go to her car, she was still in violation of company policy because she did not punch out prior to leaving. Here again, the evidence strongly supports the plaintiff. As set out in detail in Section I., it was simply not a requirement that an employee punch out if given permission by a supervisor to leave the store. An employer's deviation from its normal policies or procedures can be evidence of

Ms. Romero's testimony contradicts the written statement somewhat in that, in her written statement, she said she originally told Neuman she had not given permission but recalled later, after Ms. Rudd's termination, that she had given Ms. Rudd permission. In light of Mr. Limppo's testimony, that the written statements were structured by Neuman, the accuracy of the written statement is suspect. 37

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discrimination. McCain v. Norfolk Police Dept., 877 F.Supp. 277 (E.D.Va.1995). Moreover, no other employee of BCFW has ever been disciplined for not punching out when leaving the building with the permission of a supervisor. Evidence which indicates that an employee at the Plaintiff's level has never been disciplined for like conduct supports an inference of pretext. McKenzie v. Atlantic Richfield Co., 906 F.Supp. 572, 577 (D.Colo.1995). McAlistr v. United Airlines, Inc., 851 F.2d 1249, 1260 (10th Cir.1988). And, in fact, even employees who were in violation of the timekeeping policy during this same period, such as Mr. Limppo, Ms. Grayson (until Plaintiff complained), and Mr. Gerdine, were not disciplined. It seems clear that this alternative argument by BCFW was arrived at after it became evident that Ms. Rudd did, in fact, have permission to go to her car that day. In his deposition, Neuman tried to downplay the importance of Ms. Rudd's having been granted permission. He stated that it was "not especially" important whether or not Angie Bochy (one of the supervisors) had given the plaintiff authorization. He explained his asking about authorization as being prompted by issues raised by the plaintiff. However, Neuman admits that Ms. Rudd did not even learn that she was being investigated regarding her conduct on June 13th until she was terminated on June 27th. (Exhibit 2, Neuman Dep.p.228:11-p.231:20). Ms. Bochy's statement regarding authorization (attached as Exhibit 13) is dated the 27th and refers to her conversation with Neuman on June 15th. Candie Ochoa, the new store manager, also wrote a statement dated the 27th which states that Neuman asked about authorization on the 23rd. (Defendants' Exhibit F, p.2).

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The importance placed by Neuman on whether or not Ms. Rudd had gotten permission to go to her car that day was also confirmed by Mr. Limppo. (Exhibit 7, Limppo Dep.p.88:4-7). Mr. Limppo, Ms. Bochy, Ms. Romero, Mr. Moore, and Ms. Ochoa were all asked to write statements on the topic. (Exhibits 14, 13, Defendants' Exhibit G, p. 2 of Defendants' Exhibit F). Ms. Kilgore was asked to stay out of it. (Exhibit 17). As noted above, there is only a 17-day period between the time that Ms. Rudd and her daughter reported the sexual harassment to Neuman and the plaintiff's termination. Close temporal proximity between the employee's complaint and the adverse employment action can also be evidence of pretext. Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th Cir.2000). Close temporal proximity plus evidence that statements were prepared by the employer in anticipation of litigation (as was done here, see p. 9-10 of Section I, Statement of the Case) have been found to be evidence of pretext. McKenzie, supra. Plaintiff has raised genuine issues of material fact as to whether Defendant's proferred reason for her termination is pretextual. Defendant's motion for summary judgment on Plaintiff's Title VII claim should be denied. As stated by the Court in McKenzie, supra at 576, "the question of retaliation is particularly inappropriate for summary judgment disposition, since the primary issue is one of intent and motive." (cite omitted.)

4. THE EVIDENCE SUPPORTS THAT THE PLAINTIFF'S PROTECTED ACTIVITY WAS AT LEAST "A MOTIVATING FACTOR" IN HER TERMINATI