Free Memorandum & Opinion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Edward W. Nottingham Civil Action No. 04-cv-00683-EWN-M JW

BEVERLY COLEM AN, Plaintiff, v. AM ERICAN FURNITURE WAREHOUSE CO., a Colorado corporation registered to do business in the State of Colorado; and JACOB JABS, Defendants. ______________________________________________________________________________ ORDER AND MEMORANDUM OF DECIS ION ______________________________________________________________________________ This is an employment discrimination, hostile work environment, and retaliation case. Plaintiff Beverly Coleman alleges that her employer, Defendant American Furniture Warehouse Co. (" Defendant AFW" violated Title VII and the Age Discrimination in Employment Act ) (" ADEA" by discriminating against her based upon age and gender, creating a hostile work ) environment, and retaliating against her for engaging in protected opposition. Plaintiff also asserts multiple state law causes of action against Defendant AFW and Defendant Jacob Jabs (" Defendant Jabs" This matter is before the court on (1) " ). Defendant American Furniture Warehouse Co.' M otion for Summary Judgment,"filed December 22, 2004, and (2) " s Defendant Jabs'M otion for Summary Judgment,"filed December 22, 2004. Jurisdiction is premised upon subject-matter jurisdiction, 28 U.S.C. § 1332 (2004), and supplemental jurisdiction, 28 U.S.C. § -1-

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1367 (2004). FACTS 1. Factual Background For the reasons set forth in the analysis section of this Order and M emorandum of Decision, I need only address the facts that relate to Plaintiff' federal law claims. Plaintiff s worked as a sales consultant for Defendant AFW from M arch 2002 to December 2003. (Def. American Furniture Warehouse' Br. in Supp. of Its M ot. for Summ. J., Statement of s Undisputed Facts ¶¶ 1, 170 [filed Dec. 22, 2004] [hereinafter " Def.' Br." admitted at Pl.' Br. s ]; s in Resp. to Def. American Furniture Warehouse' M ot. for Summ. J., Resp. to Statement of s Undisputed Facts ¶¶ 1, 170 [filed Feb. 22, 2005] [hereinafter " s Resp." Plaintiff, a female, Pl.' ].) was in her fifties during the pertinent time frame. (Compl. and Jury Demand ¶ 5 [filed Apr. 6, 2004] [hereinafter " Compl." Plaintiff spent most of her time working out of Defendant ].) AFW' store in Thornton. (Def.' Br., Statement of Undisputed Facts ¶ 2; admitted at Pl.' s s s Resp., Resp. to Statement of Undisputed Facts ¶ 2.) Defendant Jabs is Defendant AFW' CEO, and was in his seventies during the pertinent s time frame. (Id., Statement of Undisputed Facts ¶¶ 23­ admitted at Pl.' Resp., Resp. to 24; s Statement of Undisputed Facts ¶¶ 23­ 24.) One of Defendant Jabs'functions as CEO was to conduct weekly and monthly manager meetings and some weekly sales meetings. (Id., Statement of Undisputed Facts ¶ 26; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ s 26.) Plaintiff had only seen Defendant Jabs five or six times prior to September 2003. (Id., Statement of Undisputed Facts ¶ 38; admitted at Pl.' Resp., Resp. to Statement of Undisputed s Facts ¶ 38.) Plaintiff had never had any problems with Defendant Jabs, and he had never said -2-

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anything to her that was sexual in nature. (Id., Statement of Undisputed Facts ¶¶ 39, 91; admitted in pertinent part at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶¶ 39, 91.) s Until September 27, 2003, Plaintiff had no complaints regarding the way Defendant Jabs or Defendant AFW treated her. (Id., Statement of Undisputed Facts ¶¶ 40­ admitted at Pl.' 41; s Resp., Resp. to Statement of Undisputed Facts ¶¶ 40­ 41.) Despite the foregoing, Plaintiff felt that Defendant Jabs was a " Hitler-like character,"and a " despicable tyrant"like " Saddam Hussein." (Id., Statement of Undisputed Facts ¶ 45; admitted at Pl.' Resp., Resp. to Statement s of Undisputed Facts ¶ 45.) The parties set forth four incidents prior to September 27, 2003, of which Plaintiff was aware, where Defendant Jabs either hit employees or threatened to hit employees. During a staff meeting, in front of Plaintiff, Defendant Jabs threatened to hit a female employee, Beverley Stewart, saying " [h]ow would you like to be hit up the side of the head? Have you ever been hit up the side of your head?" (Pl.' Resp., Statement of Additional Facts ¶¶ 1, 4­ denied at Def. s 5; American Furniture Warehouse' Reply Br. in Supp. of Its M ot. for Summ. J., Resp. to s Statement of Additional Facts ¶¶ 1, 4­ [filed Apr. 15, 2005] [hereinafter " 5 Def.' Reply" s ].) Defendant Jabs hit another female employee, Deby O' Dougherty. (Id., Statement of Additional Facts ¶ 6; denied at Def.' Reply, Resp. to Statement of Additional Facts ¶ 6.)1 Defendant Jabs s also regularly smacked a male assistant sales manager, Ben M aez, on the shoulder and back. (Id.,

Although Plaintiff refers to this woman as Debi O' Daugherty, based upon her affidavit I assume her name is actually Deby O' Dougherty. (Pl.' Resp., Ex. 3 [Aff. of O' s Dougherty].) M ore importantly, Plaintiff asserts that O' Dougherty is an older woman, but neither of Plaintiff' citations address O' s Dougherty' age. Indeed, one citation is to page twenty-one of s Plaintiff' exhibit eight / deposition exhibit forty-five. Plaintiff, however, did not include this s page in her exhibit.
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Statement of Additional Facts ¶ 12; denied at Def.' Reply, Resp. to Statement of Additional s Facts ¶ 12.) Plaintiff, furthermore, heard that Defendant Jabs " slapped around"Dale Pepper, a male store manager, with a leather blanket. (Def.' Br., Statement of Undisputed Facts ¶ 49; s admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 49.) During her deposition, s Plaintiff testified that Defendant Jabs was " equal opportunity batterer,"because he hit both an men and women. (Id.; Def.' Br., Ex. A­ at 229 [Dep. of Pl.].) s 2 The key incident in this case occurred during a sales meeting on September 27, 2003. Defendant AFW' Thornton store, where Plaintiff worked, had weekly sales meetings that s Defendant Jabs would occasionally attend. (Id., Statement of Undisputed Facts ¶¶ 54­ 55; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶¶ 54­ s 55.) At these meetings, most of the employees would sit around a large conference table. (Id., Statement of Undisputed Facts ¶¶ 59, 65, 74; admitted in pertinent part at Pl.' Resp., Resp. to Statement of Undisputed s Facts ¶¶ 59, 65, 74.) When Plaintiff saw Defendant Jabs walk into the room at the start of the September 27, 2003 meeting, she was " terrified"because of the incident with Beverley Stewart, discussed above. (Id., Statement of Undisputed Facts ¶ 60; admitted in pertinent part at Pl.' s Resp., Resp. to Statement of Undisputed Facts ¶ 60.) Plaintiff did not express this concern to anyone else. (Id., Statement of Undisputed Facts ¶ 61; admitted in pertinent part at Pl.' Resp., s Resp. to Statement of Undisputed Facts ¶ 61.) While trying to get the sales force " revved up,"during the meeting, Defendant Jabs walked around the conference table. (Id., Statement of Undisputed Facts ¶ 74; admitted at Pl.' s Resp., Resp. to Statement of Undisputed Facts ¶ 74.) During the meeting, Defendant Jabs discussed new product and sales memoranda, possible duties on Chinese bedroom sets, and a -4-

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recent complaint from a customer. (Id., Statement of Undisputed Facts ¶¶ 66­ admitted at 68; Pl.' Resp., Resp. to Statement of Undisputed Facts ¶¶ 66­ s 68.) While discussing the complaint from the customer, who had threatened suit, Defendant Jabs mentioned that he had been falsely accused of sexual harassment in a past incident. (Id., Statement of Undisputed Facts ¶¶ 68­ 71; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶¶ 68­ s 71.) Towards the end of the meeting, when Defendant Jabs was walking around the conference table, Plaintiff stopped making eye contact with Defendant Jabs and looked down at her papers. (Id., Statement of Undisputed Facts ¶¶ 78­ admitted in pertinent part at Pl.' Resp., Resp. to 83; s Statement of Undisputed Facts ¶¶ 78­ 83.) Defendant Jabs testified that he noticed that Plaintiff was not looking at him or paying attention. (Id., Statement of Undisputed Facts ¶ 85; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 85.) As Defendant Jabs walked by s Plaintiff, he slammed her shoulder with an open hand, throwing her back in her chair. (Id., Statement of Undisputed Facts ¶¶ 88­ admitted in pertinent part at Pl.' Resp., Resp. to 90; s Statement of Undisputed Facts ¶¶ 88­ 90.) Plaintiff testified that there was nothing sexual in nature about this contact, and she was not physically injured by the incident. (Id., Statement of Undisputed Facts ¶¶ 91, 109; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts s ¶¶ 91, 109.) After hitting Plaintiff' shoulder, Defendant Jabs said to Plaintiff, " thought you s I were nodding off." (Id., Statement of Undisputed Facts ¶ 93; admitted at Pl.' Resp., Resp. to s Statement of Undisputed Facts ¶ 93.) Several hours after the meeting ended, Plaintiff went to the police to request that they file criminal charges against Defendant Jabs for hitting her. (Id., Statement of Undisputed Facts ¶¶ 111, 115, 118, 120­ admitted in pertinent part at Pl.' Resp., Resp. to Statement of 21; s -5-

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Undisputed Facts ¶¶ 111, 115, 118, 120­ 21.) The District Attorney never prosecuted Defendant Jabs. (Id., Statement of Undisputed Facts ¶¶ 135­ admitted at Pl.' Resp., Resp. 36; s to Statement of Undisputed Facts ¶¶ 135­ 36.) Defendant AFW terminated Plaintiff' employment on December 4, 2003, for allegedly s violating Defendant AFW' policy of accepting temporary checks from customers. (Id., s Statement of Undisputed Facts ¶¶ 167, 170; admitted in pertinent part at Pl.' Resp., Resp. to s Statement of Undisputed Facts ¶¶ 167, 170.) For the purposes of this Order and M emorandum of Decision, I will assume that the facts taken in a light most favorable to Plaintiff show that Defendant Jabs participated in the decision to terminate Plaintiff, and this decision to terminate Plaintiff was a result of Plaintiff' complaint to the police and internal complaints that Defendant s Jabs hit her. (See Pl.' Resp. at 2­ Resp. to Statement of Undisputed Facts ¶¶ 128­ s 4, 130, 138­ 165­ 182.) 39, 71, 2. Procedural History On April 6, 2004, Plaintiff filed a complaint in this court alleging twelve claims for relief. (Compl.) First, Plaintiff alleges that Defendant AFW violated Title VII by discriminating against her based upon her gender. (Id. ¶¶ 51­ 56.) Second, Plaintiff alleges that Defendant AFW subjected her to a hostile work environment based upon her gender in violation of Title VII. (Id. ¶¶ 57­ 60.) Third, Plaintiff contends that Defendant AFW violated the ADEA by discriminating against her based upon her age. (Id. ¶¶ 61­ 65.) Fourth, Plaintiff asserts a claim against Defendant AFW for creating a hostile work environment due to her age in violation of the ADEA. (Id. ¶¶ 66­ 71.) Fifth, Plaintiff alleges that Defendant AFW retaliated against her for engaging in protected activity in violation of Title VII. (Id. ¶¶ 72­ 75.) Sixth, Plaintiff contends that -6-

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Defendant AFW retaliated against her for engaging in protected activity in violation of ADEA. (Id. ¶¶ 76­ 79.) Seventh, Plaintiff alleges that Defendant AFW wrongly discharged her in violation of public policy. (Id. ¶¶ 80­ 81.) Eighth, Plaintiff asserts that Defendant AFW breached its implied contract with Plaintiff. (Id. ¶¶ 82­ 87.) Ninth, Plaintiff contends that Defendant AFW breached its express covenant of good faith and fair dealing. (Id. ¶¶ 88­ 90.) Tenth, Plaintiff asserts a claim of battery against Defendant Jabs. (Id. ¶¶ 91­ 95.) Eleventh, Plaintiff asserts a claim of assault against Defendant Jabs. (Id. ¶¶ 96­ 100.) Twelfth, Plaintiff sets forth a claim of intentional infliction of emotional distress against Defendant Jabs. (Id. ¶¶ 101­ 06.) On December 22, 2004, Defendant AFW filed its motion for summary judgment on all nine claims for relief Plaintiff asserted against it and filed an accompanying sixty-three page brief. (Def. American Furniture Warehouse Co.' M ot. for Summ. J. [filed Dec. 22, 2004]; Def.' Br.) s s On the same day, Defendant Jabs filed a motion for summary judgment on all three claims Plaintiff asserted against him and filed a brief in support of the motion. (Def. Jabs'M ot. for Summ. J. [filed Dec. 22, 2004]; Def. Jabs'Br. in Supp. of His M ot. for Summ. J. [filed Dec. 22, 2004].) Plaintiff filed her responses to both motions on February 22, 2005, and conceded her (1) breach of implied contract claim against Defendant AFW, (2) breach of the express covenant of good faith and fair dealing against Defendant AFW, and (3) intentional infliction of emotional distress claim against Defendant Jabs. (Pl.' Resp.; Pl.' Br. in Resp. to Def. Jabs'M ot. for s s Summ. J. [filed Feb. 22, 2005].) In Plaintiff' response brief to Defendant AFW' motion, she s s presented a total of three pages of analysis, consisting of two and one half pages of analysis on -7-

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her wrongful discharge in violation of public policy claim and one half of one page of analysis on all six of her federal claims. (Pl.' Resp. at 26­ 2 Defendants filed their replies on April 15, s 28.) 2005. (Def.' Reply; Def. Jabs'Reply Br. in Supp. of His M ot. for Summ. J. [filed Apr. 15, s 2005].) After I set a hearing on this matter, Defendant AFW and Defendant Jabs each filed a motion to dismiss for lack of subject matter jurisdiction. (Def. American Furniture Warehouse Co.' M ot. to Dismiss for Lack of Subject M atter Jurisdiction [filed M ay 16, 2005]; Def. Jabs' s M ot. to Dismiss for Lack of Subject M atter Jurisdiction [filed M ay 16, 2005].) Both of these motions simply referred back to Defendants'previous summary judgment briefs, reiterating their contention that Plaintiff failed to allege some of her claims in her EEOC complaint. (See, e.g., Def.' Br. at 41­ 49.) s 42, ANALYS IS 1. Standard of Review Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant

Plaintiff' response brief is both execrable and often unintentionally humorous. For s example, on the third page of Plaintiff' response brief (Plaintiff' counsel does not bother to s s number the pages) Plaintiff' counsel writes: " s Later that afternoon, having not been contacted by anyone from human resources, decided [sic] to report Jabs'actions to the police. Coleman left work and went the the [sic] Thornton Police Department." Two sentences later, Plaintiff' s counsel writes " believe that these other employees were fired, in part, to keep up the cover for I firing M s. Coleman. I believe this because I know from personal experience that M s. Coleman was fired for reporting Jake Jabs to the police, not for taking the temporary check." (Pl.' Resp. s at 3.) Plaintiff' response contains several blanks where Plaintiff' counsel clearly intended to s s insert facts, (Pl.' Resp. at 2­ and Plaintiff' counsel provides several other gems, such as s 3), s " [s]ince Colorado historically consults with the Illinois constitution and common law, it is reasonable to expect that the Colorado Supreme Court would"follow Illinois law. (Id. at 21.)
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summary judgment where " pleadings, depositions, answers to interrogatories, and admissions the on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the . . . moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c) (2004); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party' case. Celotex s Corp. v. Catrett, 477 U.S. 317, 325 (1986). " Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works, Inc., 36 F.3d at 1518 (citing Celotex Corp., 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate " specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324; see Fed. R. Civ. P. 56(e). " Only disputes over facts that might affect the outcome of ` the suit under governing law will preclude the entry of summary judgment.' Sanchez v. Denver " Pub. Schs., 164 F.3d 527, 531 (10th Cir. 1998) (quoting Anderson, 477 U.S. at 248). The court may consider only admissible evidence when ruling on a summary judgment motion. See World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985). The factual record must be viewed in the light most favorable to the nonmoving party. Concrete Works, Inc., 36 F.3d at 1518 (citing Applied Genetics Int' Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 l, [10th Cir. 1990]). 2. Plaintiff' Federal Claims s a. Waiver and Abandonment of the Federal Claims

In Plaintiff' twenty-nine page response to Defendant AFW' motion for summary s s

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judgment, Plaintiff sets forth only three paragraphs of analysis regarding her six federal law claims. (Pl.' Resp. at 28.)3 Defendant AFW contends that this constitutes a waiver and s abandonment of her federal law claims. (Def.' Reply at 5­ I agree. s 8.) " litigant who fails to press a point by supporting it with pertinent authority, or by [A] showing why it is sound despite a lack of supporting authority or in the face of contrary authority, forfeits the point." Tran v. Trs. of State Colls. in Colorado, 355 F.3d 1263, 1266 (10th Cir. 2004) (quoting Phillips v. Calhoun, 956 F.2d 949, 953­ [10th Cir. 1992]). In Adler 54 v. Wal-Mart Stores, Inc., the Tenth Circuit affirmed the district court' decision to grant s summary judgment to the defendant employer, deeming the plaintiff' response " s inadequate," where the plaintiff submitted three and one-half pages of argument in response to a summary

Plaintiff' proffered analysis regarding all of her federal claim states, in toto: s The Hicks case addressed three legal issues relevant to this case: (1) not overtly sexual acts can constitute " sex"or gender discrimination under Title VII; (2) incidents of sexual harassment that are directed at employees other than the plaintiff can be used as evidence of hostile work environment sexual harassment; and (3) incidents of racial harassment which alone are insufficient to establish a racial harassment claim, may be combined with incidents of sexual harassment to prove a pervasive pattern of discriminatory harassment in violation of Title VII. Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (Tenth [sic] Cir. 1987). Jabs horses around with women and men. Even if it could be established that he hit old and young, Hicks would not preclude a disparate treatment discrimination claim that he targeted older women. Coleman only says that Jabs is an equal opportunity batterer with respect to men and women. This does not preclude her argument that he targets older women. (Pl.' Resp. at 28.) s
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judgment motion that only made seven references to attached materials. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671­ (10th Cir. 1998). Here, Plaintiff' three paragraph response 72 s with regards to its federal law claims, with nary a citation to the record, is wholly inadequate and cannot defeat Defendant AFW' motion for summary judgment. Accordingly, I find that s Plaintiff has waived and abandoned her federal law claims, and thus Defendant AFW is entitled to summary judgment on Plaintiff' federal claims. s b. The Merits of Plaintiff' Federal Claims s

In the alternative, I briefly address the merits of the arguments I would assume Plaintiff would make based upon her proffered facts. Based upon Plaintiff' recitation of facts, s apparently, Plaintiff would argue that (1) Defendant Jabs'actions in hitting her during the staff meeting was disparate treatment discrimination in violation of Title VII and the ADEA, (2) Defendant AFW and Defendant Jabs retaliated against her in violation of Title VII and the ADEA for filing the police complaint, and (3) Defendant Jabs'actions of threatening Stewart, and hitting her, O' Dougherty, M aez, and Pepper, constituted a hostile work environment based upon Plaintiff' age and gender. (Pl.' Resp.) I briefly address each argument in turn. s s " Title VII is not ` general civility code for the American workplace.' Rather, the critical a issue in determining whether harassment is because of sex is whether members of one sex are subjected to a disadvantage to which the other sex is not." Dick v. Phone Directories Co., Inc., 397 F.3d 1256, 1263 (10th Cir. 2005) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 [1998]) (citation omitted). Here, Plaintiff has set forth no evidence that demonstrates that Defendant Jabs hit her because she is a woman. Indeed, as Plaintiff herself testified, Defendant Jabs appeared to be " equal opportunity batterer." (Def.' Br., Statement an s -11-

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of Undisputed Facts ¶ 49; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 49; s Def.' Br., Ex. A­ at 229 [Dep. of Pl.].) The parties have set forth four incidents other than the s 2 incident at the September 27, 2003 meeting where Defendant Jabs either hit or threatened to hit employees. (Id., Statement of Undisputed Facts ¶ 49; admitted at Pl.' Resp., Resp. to s Statement of Undisputed Facts ¶ 49; Pl.' Resp., Statement of Additional Facts ¶¶ 1, 4­ 12; s 6, denied at Def.' Reply, Resp. to Statement of Additional Facts ¶¶ 1, 4­ 12.) Two of these s 6, four incidents were directed at men. (Def.' Br., Statement of Undisputed Facts ¶ 49; admitted at s Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 49; Pl.' Resp., Statement of Additional s s Facts ¶ 12; denied at Def.' Reply, Resp. to Statement of Additional Facts ¶ 12.) Thus, there is s no evidence that Defendant Jabs singled out women for this inappropriate treatment. Plaintiff, moreover, has provided no evidence of the ages of these four individuals. Thus, there is no evidence that Defendant Jabs'actions were based upon age. In light of the foregoing, these incidents indicate the propriety of Plaintiff' own observation that Defendant Jabs was " equal s an opportunity batterer." Indeed, in the absence of any meaningful argument or analysis by Plaintiff, the only possible argument I can surmise that Plaintiff could pursue regarding evidence of unlawful discrimination is the fact that at the September 27, 2003 meeting Defendant Jabs discussed a previous sexual harassment suit against him. (Def.' Br., Statement of Undisputed Facts ¶¶ s 68­ admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶¶ 68­ 71; s 71.) However, the connection between this statement and Defendant Jabs'action in hitting Plaintiff is far too tenuous to permit any inference of disparate treatment discrimination. Based on the foregoing, Plaintiff cannot show that Defendant Jabs hit her due to her gender or age. Thus, Plaintiff' s -12-

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claims of discrimination under Title VII and the ADEA cannot survive summary judgment. Plaintiff' retaliation claims fail for a similar reason. Apparently, these claims are based s upon Plaintiff' complaint to the police, as well as possible internal complaints, that Defendant s Jabs hit her. Plaintiff has set forth no evidence that these complaints apprized Defendants that she was complaining about an action that may have violated federal discrimination law. One of the elements of a retaliation claim is that a Plaintiff must engage in protected opposition to the alleged unlawful discrimination. Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1263 (10th Cir. 1998). In this protected opposition, " absence of a reference to unlawful the discrimination [will] preclude[] [a] retaliation claim." Petersen v. Utah Dep' of Corrections, 301 t F.3d 1182, 1188 (10th Cir. 2002). In other words, the complaint made by a plaintiff must apprize the employer that the complaint was related to alleged unlawful discrimination. See id. at 1188­ Galdieri-Ambrosini v. Nat' Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998); 89; l Maynard v. City of San Jose, 37 F.3d 1396, 1405 (9th Cir. 1994). Here, if Defendant AFW retaliated against Plaintiff, it was because she went to the police because Defendant Jabs hit her. The fact that Defendant Jabs hit Plaintiff was unrelated to her gender and age, as discussed above. Plaintiff has produced no evidence that any of her complaints were based upon any age or gender related discrimination. Nor has Plaintiff produced any evidence that Defendant AFW was apprized that her complaints were based upon such prohibited conduct. Therefore, these complaints do not constitute protected opposition. While Title VII and the ADEA protect a person who reports unlawful discrimination from retaliation, Title VII and the ADEA do not protect a person from retaliation who complains of actions unrelated to alleged violations of federal employment discrimination law. Accordingly, Plaintiff -13-

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cannot prevail on her retaliation claims. Finally, Plaintiff' hostile work environment claims fail. In order to sustain hostile work s environment claims, Plaintiff must show that the work environment is hostile due to her gender or age. See, e.g., Adler, 144 F.3d at 672; McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1129 (10th Cir. 1998). Here, as discussed above, Defendant Jabs hit and threatened to hit both men and women. (Def.' Br., Statement of Undisputed Facts ¶ 49; admitted at Pl.' Resp., Resp. s s to Statement of Undisputed Facts ¶ 49; Pl.' Resp., Statement of Additional Facts ¶¶ 1, 4­ 12; s 6, denied at Def.' Reply, Resp. to Statement of Additional Facts ¶¶ 1, 4­ 12.) M oreover, s 6, Plaintiff has set forth no evidence that there was a causal connection between such alleged battering and age. Accordingly, Plaintiff has not shown that the work environment was hostile to due to gender or age. For the reasons set forth above, assuming Plaintiff has not waived and abandoned her federal claims, these claims could not survive summary judgment. 3. Plaintiff' State Law Claims s Plaintiff sets forth one remaining state law claim against Defendant American Furniture Warehouse, and two remaining state law claims against Defendant Jabs. This court has jurisdiction over Plaintiff' federal law claims under 28 U.S.C. § 1331, federal question s jurisdiction. The only basis for this court' jurisdiction over Plaintiff' state law claims is s s supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a). Since Plaintiff' federal law claims have been dismissed, and these claims provided the s sole basis for this court' original jurisdiction, I decline to exercise supplemental jurisdiction over s Plaintiff' state law claims and dismiss them without prejudice to refiling in state court. 28 s U.S.C. § 1367(c)(3) (" [t]he district courts may decline to exercise supplemental jurisdiction over -14-

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a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction" United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (" the federal ); if claims are dismissed before trial . . . the state claims should be dismissed as well" ). 4. Conclusions Based on the foregoing it is therefore ORDERED as follows: 1. Defendant American Furniture Warehouse' motion for summary judgment (# 36) is s GRANTED as to all of Plaintiff' federal law claims, and DENIED as moot as to all of Plaintiff' s s state law claims. 2. All other motions are DENIED as moot. 3. Plaintiff' federal law claims are DISM ISSED with prejudice. s 4. Plaintiff' state law claims are DISM ISSED without prejudice to refiling in state court. s 5. The clerk shall forthwith enter final judgment in favor of Defendants and against Plaintiff, dismissing Plaintiff' federal law claims with prejudice, and dismissing Plaintiff' state s s law claims without prejudice. Defendants may recover their costs by filing a bill of costs within eleven days of today' date. s Dated this 25 day of M ay, 2005.

BY THE COURT:

s/ Edward W. Nottingham EDWARD W. NOTTINGHAM United States District Judge

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