Free Order on Motion for Partial Summary Judgment - 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. 03­ 2311 N­ LINDA M . PIERCY, Plaintiff, v. TERRY M AKETA, as Sheriff of El Paso County Sheriff' Office; s EL PASO COUNTY SHERIFF' OFFICE; and S THE BOARD OF COUNTY COM M ISSIONERS OF THE COUNTY OF EL PASO, Defendants. . ______________________________________________________________________________ ORDER AND MEMORANDUM OF DECIS ION ______________________________________________________________________________ This is a Title VII discrimination and retaliation case. Plaintiff Linda M . Piercy alleges that Defendants Terry M aketa, El Paso County Sheriff' Office (" s EPSO" and The Board of ), County Commissioners (" Defendants" violated Title VII by (1) discriminating against her ), because of her gender, and (2) terminating her in retaliation for protected opposition to Title VII discrimination. This matter is before the court on (1) " Defendants'M otion to Dismiss or, in the alternative, For Summary Judgment,"filed August 13, 2004, (2) " Plaintiff' M otion for Partial s Summary Judgment"filed August 13, 2004, (3) " Plaintiff' M otion For Leave to File s Supplemental Response to Defendants'M otion to Dismiss or, in the alternative, For Summary -1-

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Judgment,"filed February 16, 2005, and (4) " Plaintiff' M otion to Reopen Discovery for a s Limited Purpose,"filed February 22, 2005. Jurisdiction is based on 28 U.S.C. § 1331 (2004). FACTS 1. Factual Background Plaintiff, a female, worked at EPSO as a security technician from June 1996 through M arch 17, 1997. (Br. in Supp. of M ot. for Summ. J., Statement of Undisputed Facts ¶ 1 [filed Aug. 13, 2004] [hereinafter " Defs.'Br." admitted at Pl.' Resp. to Defs.'M ot. for Summ. J., ]; s Resp. to Statement of Undisputed Facts ¶ 1 [filed Sept. 23, 2004] [hereinafter " s Resp." Pl.' ].) Plaintiff entered the EPSO Law Enforcement Training Academy on M arch 17, 1997 and became a deputy sheriff III in July 1997. (Id., Statement of Undisputed Facts ¶ 2; admitted at Pl.' Resp., s Resp. to Statement of Undisputed Facts ¶ 2.) EPSO employed Plaintiff as a deputy sheriff from July 1997 through February 19, 2003 when it terminated her employment. (Id., Statement of Undisputed Facts ¶ 3; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 3.) s EPSO terminated Plaintiff after it conducted an internal affairs (" ) investigation. (Id., IA" Statement of Undisputed Facts ¶ 4; admitted in relevant part at Pl.' Resp., Resp. to Statement s of Undisputed Facts ¶ 4.) During her employment with EPSO, Plaintiff worked as a deputy sheriff in the detentions bureau at the Criminal Justice Center (" CJC" (Id., Statement of Undisputed Facts ¶ ). 5; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 5.) Plaintiff started as s

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deputy sheriff III and advanced to deputy sheriff I by the time of her termination. (Id., Statement of Undisputed Facts ¶ 6; admitted at Pl.' Resp., Resp. to Statement of Undisputed s Facts ¶ 6.) CJC is not a maximum security facility. (Id., Statement of Undisputed Facts ¶ 8; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 8.) It houses male and female s inmates and contains separate male and female wards. (Id.) Plaintiff worked as a deputy sheriff in the section of CJC denominated Alpha 3. (Br. in Supp. of Pl.' M ot. for Partial Summ. J., s Statement of Undisputed M aterial Facts ¶ 1 [filed Aug. 13, 2004] [hereinafter " s Br." Pl.' ]; admitted at Defs.'Resp. to Pl.' M ot. for Partial Summ. J., Resp. to Statement of Undisputed s M aterial Facts ¶ 1 [filed Sept. 23, 2004] [hereinafter " Defs.'Resp." Inmates have direct ].) access to the guards in Alpha 3 because the inmates are housed in an open area akin to a dormitory with cells along the walls. (Defs.'Br., Statement of Undisputed Facts ¶ 8; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 8; Pl.' Br., Statement of Undisputed s s M aterial Facts ¶ 3; admitted at Defs.'Resp., Resp. to Statement of Undisputed M aterial Facts ¶ 3.) The deputies'desks are located in the open cell area. (Id.) a. Deputy Sheriff' Duties in Alpha 3 s

A detentions deputy sheriff at CJC is responsible for care, custody, and control of inmates and staff. (Defs.'Br., Statement of Undisputed Facts ¶ 9; admitted at Pl.' Resp., Resp. s to Statement of Undisputed Facts ¶ 9.) Specifically, the deputy sheriff must perform the duties necessary to ensure the safety and welfare of inmates and staff, resolve and control inmate crises

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through prevention and intervention, provide guidance and direction for questions regarding acceptable inmate behavior, and maintain security and control of the inmates by constant supervision. (Id.) Plaintiff alleges it was difficult to work in Alpha 3 because of the population, mix of prisoners, and noise. (Pl.' Br., Statement of Undisputed M aterial Facts ¶ 4; denied at s Defs.'Resp., Resp. to Statement of Undisputed M aterial Facts ¶ 4.) In support, Plaintiff cites the testimony of one other female deputy, M olly Grenier, who said in her subjective belief that it was hard to work in the women' ward. (Id., Ex. 2 at 29, 70 [Dep. of M olly Grenier].) s Defendants allege that other female deputies did not have this sentiment and the difficulty level was relative depending on numerous factors. (Defs.'Resp., Resp. to Statement of Undisputed M aterial Facts ¶ 4; Ex. A­ at 8 [Dep. of Jeanette Whitney]; Ex. A­ at 16 [Dep. of Teri 2 3 Goodall]; Ex. A­ at 44­ [Dep. of Paula Presley].) Defendants'policy is that female deputy 5 45 sheriffs may work in Alpha 3 alone, while male deputy sheriffs may only work in Alpha 3 if accompanied by another deputy sheriff. (Pl.' Br., Statement of Undisputed M aterial Facts ¶ 5; s admitted at Defs.'Resp., Resp. to Statement of Undisputed M aterial Facts ¶ 5.) Plaintiff alleges, without citation to the record, that female deputy sheriffs were repeatedly assigned to work in Alpha 3 alone and males were rarely assigned to assist in Alpha 3. (Id., Statement of Undisputed M aterial Facts ¶¶ 6­ Additionally, without citation to the record, Plaintiff alleges that females 7.) were restricted in the shift-bidding process. (Id.) Defendants allege that female deputies were not always assigned to work the female wards alone. (Defs.'Resp., Resp. to Statement of

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Undisputed M aterial Facts ¶ 6; Ex. A­ [Aff. of Commander Paula Presley].) Defendants 1 contend that females were permitted to bid on shifts on the same bases as their male counterparts and the positions were determined based on seniority. (Defs.'Resp., Ex. A­ at 18­ [Dep. of 7 19 Jim Grayson].) Without record support, Plaintiff alleges that male deputies were not permitted to pat down female prisoners, conduct checks in the female ward, enter an inmate cell in the female ward, or be left alone in the female ward without a female deputy present. (Pl.' Br., Statement s of M aterial Facts ¶ 8.) Defendants, on the other hand, contend that male deputies could conduct cell checks, enter an inmate cell, or be left alone in the female ward without a female deputy present. (Defs.'Resp., Resp. to Statement of Undisputed M aterial Facts ¶ 8; Ex. A­ ¶ 11 [Aff. 1 of Commander Paula Presley].) Defendants state that EPSO' written policy provides for sames sex pat searches, however, in practice males would occasionally pat down a female inmate if a female deputy was not immediately available or in exigent circumstances. (Defs.'Resp., Ex. 1 to Ex. A­ [Policy and Procedure M anual].) Both male and female deputies have been the subject 8 of prisoner complaints. (Pl.' Br., Statement of Undisputed M aterial Facts ¶ 11; admitted at s Defs.'Resp., Resp. to Statement of Undisputed M aterial Facts ¶ 11; Defs.'Resp., Ex. A­ at 4 48­ [Dep. of M atthew Kortrey].) Female prisoners have never accused Plaintiff of 49 improprieties. (Pl.' Br., Statement of Undisputed M aterial Facts ¶ 12; admitted at Defs.'Resp., s Resp. to Statement of Undisputed M aterial Facts ¶ 12.)

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b.

Metro Job Opening

On August 27, 2002, EPSO issued a memo indicating that M etro Floor Security Positions were available, but " only requests from male deputies will be accepted." (Id., Statement of Undisputed M aterial Facts ¶ 13; admitted at Defs.'Resp., Resp. to Statement of M aterial Facts ¶ 13.) M etro is a detention facility run by EPSO in Colorado Springs. (Defs.'Br., Statement of Undisputed Facts ¶ 7; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 7.) s M etro is a maximum security facility which houses only male inmates. (Id.) Plaintiff alleges that the decision not to allow female deputies to bid for the position at M etro affected the shiftbidding process for female deputies. (Pl.' Br., Statement of Undisputed M aterial Facts ¶ 14.) s Defendants contend that this process could not have affected Plaintiff' shift-bidding process s because M etro deputies bid shifts separate from deputies at CJC. (Defs.'Resp., Resp. to Statement of Undisputed M aterial Facts ¶ 14. Further, at CJC, Plaintiff only bid for shifts against other female deputies. (Id.) c. Events Leading to Plaintiff' Discharge s

During the time Defendant employed Plaintiff, she generally had positive performance reviews intermixed with some negative performance issues. (Defs.'Br., Statement of Undisputed Facts ¶ 11; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 11.) In 2000, s Plaintiff received a letter of counseling for impartial attitude. (Id., Statement of Undisputed Facts ¶ 12; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 12.) Despite this s

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letter of counseling, Plaintiff' overall performance evaluation always reflected " s meets job requirements." (Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 12; Defs.'Br., Ex. A­ s 7 [Plaintiff' Performance Evaluations].) Defendants argue that between 2000 and 2002, Plaintiff s received fifteen negative Computerized Annual Performance Evaluation1 (" CAPE" entries. ) (Defs.'Br., Ex. A­ [CAPE entries].) However, review of these entries reflects that only four of 9 them have dates and those dates all appear in 2002. In August 2002, Plaintiff was on modified light duty in civilian clothes because of a previously sustained injury. (Id., Statement of Undisputed Facts ¶ 14; admitted at Pl.' Resp., s Resp. to Statement of Undisputed Facts ¶ 14.) Plaintiff' immediate supervisor at this time was s Sergeant M atthew Kortrey. (Id., Statement of Undisputed Facts ¶ 13; admitted at Pl.' Resp., s Resp. to Statement of Undisputed Facts ¶ 13.) Plaintiff began modified duty on August 1, 2002 and was scheduled to return to full duty August 10, 2002. (Id., Statement of Undisputed Facts ¶ 15; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 15.) During Plaintiff' s s time on modified duty, she had her tongue pierced with two silver balls attached by a rod. (Id., Statement of Undisputed Facts ¶ 16; admitted at Pl.' Resp., Resp. to Statement of Undisputed s Facts ¶ 16.) Commander Paula Presley, Plaintiff' lieutenant, noticed Plaintiff wearing the s tongue stud and a sleeveless shirt, both in violation of policy, and reported this to Sergeant Kortrey. (Id., Statement of Undisputed Facts ¶¶ 17­ 20.) Plaintiff claims that Commander

This is an employee evaluation system that EPSO implemented in 1998. (Defs.'Br., Ex. A­ [Dep. of Ken M oore].) 10
1

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Presley never spoke to her directly regarding the tongue stud. (Pl.' Resp., Resp. to Statement of s Undisputed Facts ¶¶ 18­ 19.) Sergeant Kortrey addressed the tongue stud issue with Plaintiff. (Id., Statement of Undisputed Facts ¶ 21; admitted in relevant part at Pl.' Resp., Resp. to s Statement of Undisputed Facts ¶ 21.) He did not address the sleeveless shirt issue because Plaintiff was still on modified duty and was scheduled to return to full duty the following day and once Plaintiff returned to full duty the shirt issue would be moot. (Id.) Plaintiff returned to full duty in uniform on or about August 12, 2002. (Id., Statement of Undisputed Facts ¶ 22; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 22.) Upon her return, s Sergeant Kortrey asked Plaintiff if she was still wearing her tongue stud. (Id.) She was. (Id.) Following this discussion, Sergeant Kortrey wrote a memorandum for Plaintiff' record, wherein s he noted that " [w]hile policy does not mention ` tongue studs'directly, I determined that it met the standard of a visible body piercing that is not allowed by policy. Lieutenant Presley concurred and I directed [Plaintiff] accordingly that a ` tongue stud'could not be worn while on duty." (Id., Statement of Undisputed Facts ¶ 23; Ex. A­ [M emo. for Record Re: Personal 13 Appearance].) Plaintiff contends she never received a copy of this memorandum. (Pl.' Resp., s Resp. to Statement of Undisputed Facts ¶ 23.) Plaintiff purchased a clear tongue ring and proceeded to wear that to work following her conversation with Sergeant Kortrey. (Defs.'Br., Statement of Undisputed Facts ¶ 24; admitted at Pl.' Resp., Resp. to Statement of Undisputed s Facts ¶ 24.) Sergeant Kortrey never mentioned the tongue stud issue again to Plaintiff. (Id.,

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Statement of Undisputed Facts ¶ 25; admitted in relevant part at Pl.' Resp., Resp. to Statement s of Undisputed Facts ¶ 25.) Plaintiff submitted a memorandum dated September 1, 2002, to Bureau Chief T.L. Johnson via chain of command regarding " Employee Grievance." (Id., Statement of Undisputed Facts ¶ 26; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 26.) The s memorandum addressed Plaintiff' concerns regarding disparities in promotion opportunities s between males and females. (Id., Ex. A­ [M em. Re: Employee Grievance].) 14 Sergeant Caron Allen became Plaintiff' supervisor in October 2002. (Id., Statement of s Undisputed Facts ¶ 27; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 27.) s On or about November 14, 2002, Sergeant Allen noticed Plaintiff wearing a tongue stud. (Id., Statement of Undisputed Facts ¶ 28; admitted at Pl.' Resp., Resp. to Statement of Undisputed s Facts ¶ 28.) Sergeant Allen asked Plaintiff if she was previously ordered by Sergeant Kortrey not to wear the tongue stud. (Id., Statement of Undisputed Facts ¶ 29; admitted at Pl.' Resp., s Resp. to Statement of Undisputed Facts ¶ 29.) In response to this question, Plaintiff said " no." (Id.) Plaintiff denied that Sergeant Kortrey ever told her she could not wear a tongue stud. (Pl.' s Resp., Resp. to Statement of Undisputed Facts ¶ 29.) Sergeant Allen asked Plaintiff to remove the tongue stud at that time and Plaintiff indicated she would. (Defs.'Br., Statement of Undisputed Facts ¶ 30; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 30.) s On November 20, 2002, Sergeant Allen wrote a memorandum to Lieutenant Dale Goodell

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regarding Plaintiff' tongue stud. (Id., Ex. A­ [11/20/02 M em. Re: Deputy Piercy].) In the s 15 memorandum, Sergeant Allen said that she instructed Plaintiff not to wear the tongue stud when on duty and in uniform. (Id.) Sergeant Allen noted that " [Plaintiff] stated that Sergeant Kortrey had told her that as long as it was small, clear and not visible, it would be okay. I told her it was visible, that I could see it and I reiterated my order to not wear it on duty or in uniform." (Id.) Sergeant Allen discussed the tongue stud matter with her immediate supervisor, Lieutenant Goodell. (Id., Statement of Undisputed Facts ¶ 32; Ex. A­ at 7 [Dep. of Dale Goodell].) 17 Commander Presley informed Lieutenant Goodell that Sergeant Kortrey previously ordered Plaintiff to remove the tongue stud. (Id.; Ex. A­ at 7­ [Dep. of Dale Goodell].) 17 8 On November 20, 2002, Lieutenant Goodell and Sergeant Allen met with Plaintiff to discuss the tongue stud violation and asked Plaintiff whether Sergeant Kortrey previously ordered her not to wear the tongue stud. (Id., Statement of Undisputed Facts ¶ 33; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 33.) Plaintiff responded that Sergeant s Kortrey did not previously order her to remove the tongue stud. (Id.) Lieutenant Goodell drafted an " interview statement"memorializing the events of this last meeting with Plaintiff regarding the tongue stud and Plaintiff' denial of Sergeant Kortrey' previous admonition s s regarding the tongue stud. (Id., Ex. A­ [Interview Statement Re: Linda Piercy].) Lieutenant 18 Goodell then requested a memorandum from Sergeant Kortrey describing the events regarding the tongue stud, which Sergeant Kortrey wrote and dated November 25, 2002. (Id., Ex. A­ 19

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[11/25/02 M em. Re: Sworn Personnel Dress Code].) Lieutenant Goodell advised his commander, James Grayson, about his November 20, 2002 interview with Plaintiff. (Id., Statement of Undisputed Facts ¶ 38; Ex. A­ [11/20/02 22 Email from Dale Goodell to James Grayson].) Lieutenant Goodell advised Grayson to send a complaint to IA regarding the violation. (Id.) Lieutenant Goodell submitted a complaint to IA on November 26, 2002, alleging that Plaintiff (1) failed to follow orders when she was asked by Sergeant Kortrey to remove her tongue ring; (2) " departed form the truth when asked . . . if she had ever been ordered by a supervisor not to wear a tongue ring on duty;"and (3) was not dressed in accordance with policy when Sergeant Allen observed her wearing a tongue ring. (Id., Statement of Undisputed Facts ¶ 39; Ex. A­ [11/26/02 Complaint].) 23 Following this complaint by Lieutenant Goodell, the IA undertook and investigation into Plaintiff' misconduct. (Id., Statement of Undisputed Facts ¶ 40; Ex. A­ [Internal Affairs s 23 Investigation Report].) During the investigation IA sergeant, Jeanette Whitney, took testimony from Plaintiff, Sergeant Kortrey, and Lieutenant Goodell. (Id., Statement of Undisputed Facts ¶ 40; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 40.) During the s investigation everyone in Plaintiff' chain of command sustained the allegations of Plaintiff s departing from the truth, disobeying orders, and violating EPSO' uniform rules. (Id., Statement s of Undisputed Facts ¶ 42; Ex. A­ [Disposition of Allegations Form].) Everyone in Plaintiff' 25 s chain of command recommended termination with the exception of Grayson. (Id., Ex. A­ 25.)

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On February 11, 2003, Undersheriff Teri Goodall sent Plaintiff a letter advising her that the IA investigation was complete and Undersheriff Goodall ordered Plaintiff' employment terminated. s (Id., Ex. A­ [2/11/03 Letter Re: Notification of Finding].) On February 19, 2003, Plaintiff 26 received formal notification of her termination as deputy sheriff (Id., Ex. A­ [2/19/03 Letter Re: 2 Notification of Appeal Findings].) Plaintiff filed a complaint of discrimination based on sex against Defendants with the Colorado Civil Rights Division (" CCRD" and the Equal Employment Opportunity Commission ) (" EEOC" on November 18, 2002. (Id., Statement of Undisputed Facts ¶ 37; admitted at Pl.' ) s Resp., Resp. to Statement of Undisputed Facts ¶ 37.) Plaintiff initially filled out the charge on November 7, 2002, but did not sign it until November 18, 2002. (Id., Statement of Undisputed Facts ¶ 37; Ex. A­ at 61 [Dep. of Plaintiff].) The EEOC sent the " 1 Notice of Charge of Discrimination"to Defendants on December 2, 2002. (Id., Statement of Undisputed Facts ¶ 37; Ex. A­ [Notice of Charge of Discrimination].) On or about M arch 12, 2003, Plaintiff amended 21 her Charge of Discrimination with the EEOC to include retaliation. (Id., Ex. A­ [Charge of 29 Discrimination].) Notice of the amended EEOC charge was sent to Defendants on July 31, 2003. (Id., Ex. A­ [Notice of Charge of Discrimination].) 30 2. Procedural History As stated above, in November 2002, Plaintiff filed a charge of discrimination with the EEOC asserting discrimination based on gender. (Compl. with Jury Demand ¶ 3 [filed November

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19, 2003] [hereinafter " Compl." On M arch 12, 2003, Plaintiff amended her charge to include ].) allegations of retaliation. (Id.) The EEOC issued Plaintiff a notice of a right to sue on August 22, 2003, and October 1, 2003, respectively. (Id. ¶ 4.) Plaintiff filed a complaint in this court on November 19, 2003, asserting that Defendants (1) discriminated against her on the basis of her sex, and (2) retaliated against her for filing an EEOC complaint. (Compl. ¶¶ 23­ 28.) On December 19, 2003, Defendants answered the complaint. (Defs.'Answer [filed Dec. 19, 2003].) On M ay 24, 2004, Defendants filed an amended answer to Plaintiff' initial s complaint. (Defs.'Amend. Answer [filed M ay 24, 2004].) On August 13, 2004, Defendants filed a motion to dismiss, or in the alternative, for summary judgment. (Defs.'Br.) Defendants argue that Plaintiff cannot establish a claim for gender discrimination because she did not suffer any adverse employment action. (Defs.'Br. at 50.) Further, Defendants argues that summary judgment is appropriate on Plaintiff' retaliation claim because there is no causal connection s between Plaintiff' protected activity and her subsequent termination. (Id. at 11­ s 22.) Similarly, on August 13, 2004, Plaintiff filed a motion for partial summary judgment. (Pl.' Br.) Plaintiff argues that summary judgment is appropriate on her gender discrimination s claim because Defendants cannot show a bona fide occupational qualification that is reasonably necessary to the normal operation of its business. (Id. at 10­ 17.) On February 16, 2005, Plaintiff filed a motion for leave to file a supplemental response to Defendants'motion. (M ot. for Leave to File Supp. Resp. to Defs.'M ot. to Dismiss or, in the

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alternative, for Summ. J. [filed Feb. 16, 2005] [hereinafter " ot. for Leave" Additionally, on M ].) February 22, 2005, Plaintiff filed a motion to reopen discovery for a limited purpose. (M ot. to Reopen Disc. for a Limited Purpose [filed Feb. 22, 2005].) On M arch 8, 2005, Defendants filed a combined response to these two motions. (Combined Resp. to Pl.' M ot. For Leave to File s Supp. Resp. and to Pl.' M ot. to Reopen Disc. for a Limited Purpose [filed M ar. 8, 2005] s [hereinafter " Defs.'Resp. to M ot. for Leave" ].) ANALYS IS 1. Standard of Review Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant 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) (2003); 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

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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, l, 1241 [10th Cir. 1990]). 2. Gender Discrimination Plaintiff asserts that Defendants discriminated against her on the basis of her gender in violation of Title VII. (Compl. ¶ 24.)2 Plaintiff' claim is evaluated under the three step burdens shifting framework set forth in McDonnell Douglas and its progeny. Sanchez v. Denver Pub. Sch., 164 F.3d 527, 531 (10th Cir. 1998). Plaintiff must first establish a prima facie case of prohibited employment action. McCowan v. All Star Maint., Inc., 273 F.3d 917, 922 (10th Cir. 2001). If Plaintiff establishes a prima facie case, the burden shifts to Defendants to state a

Plaintiff contends that " genuine issues of material fact exist on whether the reasons given by [Defendants] for terminating M r. Rivera' employment are pretextual." (Pl.' Resp. at 7.) s s This court is not aware of a Plaintiff by the name of M r. Rivera. To the extent that Plaintiff' s submissions apply to more than one Plaintiff, I note that this order pertains only to the Plaintiff named in the caption-- Linda M . Piercy.
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legitimate, nondiscriminatory reason for the adverse employment action. Wells v. Colo. Dep' of t Transp., 325 F.3d 1205, 1212 (10th Cir. 2003). If Defendants establish a legitimate nondiscriminatory reason, then the burden shifts to Plaintiff to show that Defendants'proffered reason is pretextual. (Id.) In order to prove a prima facie case of gender discrimination, Plaintiff must show: (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) she was qualified for the position at issue; and (4) she was treated less favorably than others not in the protected class. Sanchez, 164 F.3d at 531. I need only address the second element-- adverse employment action.3 Plaintiff bases her gender discrimination claim on four of Defendants'policies: (1) prohibiting male deputies from performing duties in the female prison ward while requiring female deputies to perform additional duties; (2) shift assignment; (3) prohibiting female deputies from working at M etro; and (4) requiring women deputies to pat down both male and female prisoners while prohibiting male deputies from patting down female prisoners. (Pl.' Br. at 1.) s Plaintiff asserts that these policies resulted in Plaintiff suffering two adverse employment actions: (1) Plaintiff' not receiving the shifts, assignments, and days off she desired and (2) s

At the outset, I note that Plaintiff does not specifically addresses the prima facie case for gender discrimination. Without explanation, Plaintiff mentions that she satisfied her burden to establish a prima facie case. (Pl.' Resp. at 21.) I find it peculiar that Plaintiff is moving for s partial summary judgment on her gender discrimination claim, yet fails to cite the elements of a prima facie case of discrimination in any of her submissions to this court.
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Plaintiff' inability to transfer to M etro. (Reply in Supp. of Pl.' M ot. for Partial Summ. J. at s s 14­15 [filed Oct. 8, 2004] [hereinafter " s Reply" Pl.' Resp. at 18, 21.) Plaintiff does not Pl.' ]; s allege that she was terminated because of her gender, therefore, she does not allege termination as an adverse employment action for purposes of the gender discrimination claim. (Pl.' Br. at 1, s 17; Compl. ¶¶ 23­ 25.) An adverse employment action occurs when there is " a significant change in employment ` status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.' Annett v. Univ. of " Kansas, 371 F.3d 1233,1237 (10th Cir. 2004) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 [1998]). M oreover, " acts that carry ` significant risk of humiliation, damage to a reputation, and a concomitant harm to future employment prospects' constitute adverse " employment actions. Id. at 1239 (quoting Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 [10th Cir. 1996]). Since Title VII is a remedial statute, courts should " employ[] a liberal definition of adverse employment action and [apply] a case-by-case approach." Abuan v. Level 3 Communications, Inc., 353 F.3d 1158, 1174 (10th Cir. 2003). Adverse employment action does not encompass every action taken by a plaintiff' employer that may affect the plaintiff' future s s employment opportunities. Hillig v. Rumsfeld, 381 F.3d 1028, 1033 (10th Cir. 2004). " [T]he challenged action must rise above ` mere inconvenience or an alteration of job responsibilities.' a " Abuan, 353 F.3d at 1174 n.5 (quoting Sanchez, 164 F.3d at 532). The employer' actions must s

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be materially adverse to the employee' job status. Hillig, 381 F.3d at 1033. s First, Plaintiff asserts that she was unable to obtain the shifts, breaks, and assignments she desired because of Defendants'policies. (Pl.' Resp. at 21.) Specifically, Plaintiff claims s that " female deputies with high seniority are precluded from bidding for preferred shifts..." (Pl.' Br. at 12.) Shift bidding at CJC is based on seniority. (Defs.'Resp. at 18; Pl.' Reply at s s 15.) Additionally, because of the need for females at certain posts and males at certain posts, female deputies bid against other female deputies, just as male deputies bid against other male deputies. (Defs.'Resp. at 19; Ex. A­ ¶ 10 [Aff. of Commander Paula Presley].) Under this 1 seniority system, both male and female deputies were often deprived of the shifts they desired. (Id.) Plaintiff' inability to receive her desired shift one-hundred percent of the time cannot be s considered an adverse employment action. At most, Plaintiff' allegations regarding shifts bidding, breaks, and days off are merely an inconvenience. See, e.g., Kennedy v. General Motors Corp., 226 F. Supp. 2d 1257, 1269 (D. Kan. 2002) (denial of preferred vacation time and bereavement time does not qualify as an adverse employment action); Sims v. Boeing Co., 215 F.3d 1337, 2000 WL 633228 at * 1 (10th Cir. 2000) (table) (transfer to a less desirable shift was not an adverse employment action). These allegations did not seriously alter the conditions of Plaintiff' employment. s Further, Plaintiff does not cite to a single instance in which she was actually denied her desired shift, break, or day off. Instead, she makes bald and conclusory assertions, without any

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citation to the record, that she was precluded from the shift she wanted because she was female. (Pl.' Resp. at 21; Pl.' Reply at 15.) Conclusory allegations, without more, are not enough to s s prevail on summary judgment. See Salguero v. City of Clovis, 366 F.3d 1168, 1178 (10th Cir. 2004). Commander Presley, on the other hand, testified that Plaintiff likely received her preferred days off and shifts because Plaintiff was third or fourth in the line of seniority among all female deputies at CJC. (Defs.'Reply at 38; Defs.'Br., Ex. A­ ¶ 10 [Aff. of Commander 1 Paula Presley].) Plaintiff' subjective unhappiness cannot form the basis of an adverse s employment action. Next, Plaintiff asserts that she was denied the opportunity to apply for a position at M etro and such denial was an adverse employment action. (Pl.' Reply at 16­ Pl.' Br., s 17; s Statement of Undisputed Facts ¶ 14.) Plaintiff ties this argument into her argument regarding shift-bidding. Specifically, Plaintiff contends that " decision not to allow females [sic] the deputies to work in M etro precluded female deputies from bidding for the shift and time off their seniority would normally allow." (Pl.' Br. at 5.) Defendants assert, and Plaintiff does not s dispute, that M etro deputies bid shifts separate and apart from deputies at CJC. (Defs.'Resp., Resp. to Statement of Undisputed Facts ¶ 14; Ex. A­ ¶ 10 [Aff. of Commander Paula Presley].) 1 Accordingly, Plaintiff' inability to work at M etro cannot be considered a shift-bidding issue, and s instead is either a request to transfer or a request for a promotion. A transfer to M etro would be a lateral move, not a promotion. (Defs.'Br. at 50; Defs.'

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Reply at 38; Defs.'Reply, Ex. A­ ¶ 10 [Aff. of Commander Paula Presley]; Ex. A­ ¶ 6 50 49 [Aff. of Undersheriff Teri Goodall].) The pay, benefits, and other compensation are the same for deputies whether they are assigned to M etro or CJC. (Id.) A denial of an application for a lateral position is not an adverse employment action under Title VII. Sanchez, 164 F.3d at 532 (failure of employer to place employee in lateral position she desired was not an adverse employment action). " a transfer is truly lateral and involves no significant changes in an If employee' conditions of employment, the fact that the employee views the transfer either s positively or negatively does not render the denial or receipt of the transfer adverse employment action." Id. at 532 n. 5 (citing Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1449­ [11th 50 Cir. 1998].) Accordingly, Defendants failure to allow Plaintiff to bid for a position at M etro is not an adverse employment activity. Plaintiff was interested in transferring away from CJC because in her subjective opinion the working conditions there were not favorable. (Pl.' Br. at 5, s Statement of Undisputed M aterial Facts ¶¶ 1­ Even assuming for the purposes of this motion 7.) for summary judgment that the working conditions at M etro are more favorable than CJC, this is merely an inconvenience to Plaintiff. As stated above, the challenged action must rise above a mere inconvenience. Abuan, 353 F.3d at 1174 n.5 Plaintiff cannot demonstrate that she suffered an adverse employment action in either the shift-bidding process or by Defendants'refusal to allow her to apply for a position at M etro. Accordingly, Plaintiff' cannot show a prima facie case of discrimination on the basis of gender s

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and Defendants are entitled to summary judgment on this claim.4 3. Retaliation Plaintiff' second claim for relief alleges that Defendants retaliated against her for s participating in protected opposition to Title VII discrimination. (Compl. ¶¶ 26­ 28.) Plaintiff' s claim is evaluated under the McDonnell Douglas framework as described above. Plaintiff must first establish a prima facie case. To establish a prima facie case of retaliation, Plaintiff must prove (1) that she participated in protected opposition to Title VII discrimination or in a Title VII proceeding; (2) adverse employment action by the employer subsequent to or contemporaneous with such employee activity; and (3) causal connection between such activity and the employer' adverse action. s Berry v. Stevinson Chevrolet, 74 F.3d 980, 985 (10th Cir. 1996). The parties agree that Plaintiff engaged in protected activity and that she was terminated. (Defs.'Br. at 11; Pl.' Resp. at 8.) s Plaintiff contends that " adverse employment action complained of in this case is her the termination." (Pl.' Resp. at 8.) Accordingly, I will only discuss element three -- causal s

Again, Plaintiff' motion for partial summary judgment and response to Defendants' s motion for summary judgment fails to adequately address the relevant legal issue. Plaintiff' s entire brief focuses on whether Defendants have properly asserted a bona fide occupational qualification (" BFOQ" (Pl.' Br. at 10­ ). s 17.) Title VII permits discrimination if the disparate treatment is based on a BFOQ. 42 U.S.C. § 2000e-2(e). A BFOQ is a defense to discrimination. Accordingly, it follows, that Plaintiff must first establish discrimination under Title VII before considering the merits of Defendants'defense. It is not necessary for this court to address Defendants'alleged BFOQ because, as stated above, Plaintiff cannot establish a prima facie case of discrimination.
4

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connection. Plaintiff contends that Defendants terminated her in retaliation for (1) her complaints in September 2002 regarding her intention to file a charge of discrimination, (2) a memorandum dated September 1, 20025 she wrote complaining of gender discrimination, (3) her charge of discrimination filed with the CCRD and EEOC on November 18, 2002, and (4) her complaints in December alleging retaliation for the September complaints. (Pl.' Resp. at 9­ s 11.) Plaintiff specifically asserts that the adverse action she suffered as a result of the protected activity described above was her termination on February 19, 2003. (Pl.' Resp. at 8.) In fact, Plaintiff s specifically dismisses that any other action taken against her, including the IA investigation constituted adverse employment. (Id.) Therefore, for purposes of this Order and M emorandum of Decision, I will analyze whether there is a causal connection between the protected activity described above and Plaintiff' termination in February 2003. s

a.

Complaints and Memorandum in September 2002

First, Plaintiff asserts that there is a causal connection between the complaints she made in September 2002 and her memorandum dated September 1, 2002 complaining of gender

Plaintiff incorrectly refers to this memorandum as dated November 2002. (Pl.' Resp. at s 9.) For support, Plaintiff cites to Defendants'statement of undisputed number twenty-six and exhibit A­ (Id.) In fact, the grievance Plaintiff cites is dated September 1, 2002. (Defs.'Br., 14. Statement of Undisputed Facts ¶ 26; admitted at Pl.' Resp., Resp. to Statement of Undisputed s Facts ¶ 26.) For purposes of this analysis, I will assume Plaintiff is speaking of the grievance filed September 1, 2002.
5

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discrimination, and her termination in February 2003. (Pl.' Resp. at 8­ Plaintiff asserts that s 9.) informal complaints to supervisors constitute protected activity and such activity closely followed by adverse action is enough to show a causal connection. (Pl.' Resp. at 8, 10.) While s Plaintiff is correct that informal complaints to supervisors can constitute protected activity, O' Neal v. Ferguson Const. Co., 237 F.3d 1248, 1255 (10th Cir. 2001), the protected conduct must closely follow the adverse activity. Id. at 1253. Unless there is a very close temporal proximity between the protected activity and the retaliatory conduct, the plaintiff must offer additional evidence to establish causation. Id. Plaintiff' only evidence of causation regarding the s September 2002 incidents is that they both were followed by Plaintiff' termination in February s 2003. (Pl.' Resp. at 9.) Plaintiff contends that this justifies an inference of retaliatory motive. s (Id. at 10.) Plaintiff' termination came five months after Plaintiff' September 2002 complaint s s and memorandum alleging gender discrimination. (Id. at 9­ 10.) The lag between the protected activity and termination is not close enough to establish causation. Hysten v. Burlington N. and Santa Fe Ry. Co., 296 F.3d 1177, 1183 (10th Cir. 2002) (three month lag between the protected activity and termination is not close enough to establish causation); Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (" three month"lag between protected activity and termination was not close enough to establish causation). Since Plaintiff had not introduced additional evidence of causation, Plaintiff cannot establish a causal connection between her complaints in September 2002 and her termination in February 2003.

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b.

Charge of Discrimination Filed November 18, 2002

Plaintiff alleges that she was also terminated in retaliation for filing a charge of discrimination with the CCRD and EEOC on November 18, 2002. (Pl.' Resp. at 8.) At the s outset, I note once again, that Plaintiff specifically claims that the causal connection exists between the filing of the EEOC complaint and her termination. Plaintiff specifically argues that " [w]hile the timing of the IA investigation and plaintiff' notification of her intention to file s charges . . . of discrimination are suspicious, the adverse employment action complained of in this case is her termination." (Pl.' Resp. at 8.) Therefore, I will not consider whether there is a s causal connection between Plaintiff' EEOC complaint and the IA investigation. s Plaintiff filed her CCRD and EEOC complaints on November 18, 2002. (Defs.'Br., Ex. A­ [EEOC Complaint].) Plaintiff alleges that prior to filing her complaint, she notified 20 Sergeants Kortrey, Allen, and Anderson of her intentions to file such a complaint. (Defs.'Br., Ex. A­ at 274­ [Dep. of Pl.].) At that time only Sergeant Allen was in Plaintiff' chain of 1 75 s command. (Id.) Defendants allege that they did not receive notice of the EEOC complaint until it was formally sent to them on December 2, 2002, one week after the IA investigation began. (Defs.'Br. at 13; Ex. A­ at 277­ [Dep. of Pl.].) 1 78 Plaintiff alleges that there is a close temporal proximity between the filing of her EEOC complaint and her termination on February 19, 2003. As stated above, a causal connection may be shown by " evidence of circumstances that justify an inference of retaliatory motive, such as

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protected conduct closely followed by adverse action." Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir. 1982). First, Plaintiff contends that the mere fact of filing an EEOC complaint is enough to establish the causal connection. (Pl.' Resp. at 9.) The EEOC s complaint alone does not establish a prima facie case of retaliation. See Payne v. Heckler, 604 F. Supp. 334, 341 (E.D. P.a. 1985) (" mere act of filing administrative complaints does not the establish a prima facie case of retaliation); cf. Meredith v. Beech Aircraft Corp., 18 F.3d 890, 897 (10th Cir. 1994) (plaintiff failed to show a prima facie case of retaliation because the mere act of filing a lawsuit is insufficient to show a causal connection.) Second, viewing the facts in a light most favorable to the Plaintiff, Defendants had knowledge of the EEOC complaint more than three months before Plaintiff' termination. The s lag between the protected activity and termination is not close enough to establish causation. Hysten, 296 F.3d at 1183 (three month lag between the protected activity and termination is not close enough to establish causation); Richmond, 120 F.3d at 209 (" three month"lag between protected activity and termination was not close enough to establish causation). Further, at the time of Plaintiff' termination, Plaintiff was under a formal investigation s regarding allegations of misconduct. (Defs.'Br., Ex. A­ [Formal Complaint to IA], Ex. A­ 22 26 [Internal Affairs Investigation].) The IA investigation commenced in November 2002. (Id.) Additionally, prior to the formal IA investigation, Plaintiff was reprimanded numerous times for various alleged infractions. (Defs.'Br., Statement of Undisputed Facts ¶ 12; admitted at Pl.' s

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Resp., Resp. to Statement of Undisputed Facts ¶ 12.) In August 2000, Plaintiff received a letter of counseling for impartial attitude. (Id.) In 2002, Plaintiff received at least four negative CAPE entries. (Defs.'Br., Ex. A­ [CAPE entries].) In August 2002, Sergeant Kortrey reprimanded 9 Plaintiff for wearing a tongue stud. (Id., Statement of Undisputed Facts ¶ 21; admitted in relevant part at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 21.) On November 14, s 2002, Sergeant Allen reprimanded Plaintiff for wearing a tongue stud. (Id., Statement of Undisputed Facts ¶ 27; admitted at Pl.' Resp., Resp. to Statement of Undisputed Facts ¶ 27.) s Thus, Defendants'investigation into Plaintiff' alleged misconduct commenced long before s Plaintiff' EEOC complaint and subsequent termination. Accordingly, Plaintiff has not shown s causal connection between Plaintiff' EEOC complaint and her subsequent termination in s February 2003. c. Complaints in December 2002

Plaintiff alleges that there is a causal connection between her complaints in December 2002, (Defs.'Br., Ex. A­ [12/11/02 M emorandum Re: Plaintiff]), and her termination. (Pl.' 33 s Resp. at 10.) Specifically, Plaintiff complained to Sergeant Allen on December 11, 2002, regarding perceived retaliation. (Id.) Plaintiff told Sergeant Allen that " felt she was being she retaliated against because she filed a grievance on September 1, 2002." (Id.) Additionally, Plaintiff requested a reassignment on December 13, 2002 because she " issues with Sergeant had Allen." (Id., Ex. A­ [12/13/02 M em. Re: Temporary Reassignment].) Plaintiff asserts that 34

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there is a causal connection between both of these incidents and Plaintiff' termination. s As described above, at the time of Plaintiff' December 11, 2002, complaint to Sergeant s Allen and Plaintiff' December 13, 2002, request for temporary reassignment, Defendants were s already well into the IA investigation regarding Plaintiff' misconduct. (Defs.'Br., Statement of s Undisputed Facts ¶ 38; Ex. A­ [Complaint to Internal Affairs ].) Additionally, Plaintiff was 23 apprized of the IA investigation when she complained to Sergeant Allen on December 11, 2002. (Defs.'Br., Ex. A­ [12/11/02 M em. Re: Plaintiff], Ex. A­ [12/13/02 M em. Re: Temporary 33 34 Reassignment].) Thus, Plaintiff cannot establish a causal connection between her complaint on December 11, 2002 and her termination. Further, Plaintiff' request for reassignment on December 13, 2002 was directed to s Lieutenant King. (Defs.'Br., Ex. A­ [12/13/02 M em. Re: Temporary Reassignment].) 34 Lieutenant King was not in Plaintiff' chain of command and did not have any role in the IA s investigation or Plaintiff' termination. (Id., Ex. A­ [Internal Affairs Investigation].) Plaintiff s 32 has not produced any evidence, much less made any allegations, that any person in Plaintiff' s chain of command or any person involved in the IA investigation knew of Plaintiff' request for s temporary reassignment. See Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993) (" Plaintiff must show that the individual who took adverse action against [her] knew of the employee' s protected activity." Thus, there is no connection between Plaintiff' intervening complaint to ). s Lieutenant King and her termination. Furthermore, it appears that there is no temporal

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proximity between the December complaints and the February termination. For the reasons set forth above, Plaintiff cannot demonstrate a prima facie case of retaliation because she has established a causal connection between any of the alleged protected activity and her termination. Accordingly, Plaintiff cannot survive summary judgment on her retaliation claim.6 4. Conclusion Based on the foregoing it is therefore ORDERED as follows: 1. Plaintiff' M otion for Partial Summary Judgment (# 52) is DENIED. s 2. Defendants'M otion to Dismiss or, in the alternative, for Summary Judgment (# 53) is GRANTED.

In Plaintiff' motion for leave to file a supplemental response to Defendants'motion for s summary judgment, Plaintiff argues that a settlement agreement, which is currently being negotiated in Plaintiff' separate workers'compensation case with the County of El Paso, is s further evidence of retaliation by the Defendants in the instant case. (M ot. for Leave. at 1.) The settlement agreement, as of the date Plaintiff filed her motion, requires that " [P]laintiff never seek or accept direct employment or consulting or contracting employment with respondent El Paso County or any affiliates." (Id.) Plaintiff contends that this creates an inference of retaliation. First, the settlement agreement is in a separate and distinct cause of action is not relevant to the instant case. Second, even assuming relevance, the County voluntarily withdrew this particular provision from the settlement agreement. (Defs.'Resp. to M ot. for Leave at 3.) Thus, the provision is not an issue any longer in the workers'compensation case. (Defs.'Resp. to M ot. for Leave at 3.) Third, even assuming that the settlement agreement was at issue, it does not create any inference of retaliation. The settlement agreement came into existence three years after the alleged adverse activity. Therefore, it is not plausible that the settlement agreement creates an inference of retaliation because the settlement came after Plaintiff' termination. s
6

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3. Plaintiff' M otion for Leave to File Supplemental Response to Defendants'M otion s to Dismiss, or in the alternative, for Summary Judgment (# 73) is DENIED as moot. 4. Plaintiff' M otion to Re-Open Discovery for a Limited Purpose Only (# 74) is s DENIED as moot. 5. The clerk shall forthwith enter judgment in favor of Defendants and against Plaintiff, dismissing all claims with prejudice. Defendants may have its costs by filing a bill of costs within eleven days of the date of this order. Dated this 17 day of M arch, 2005. BY THE COURT:

s/ EDWARD W. NOTTINGHAM United States District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03­ 2311 (CBS) N­

CERTIFICATE OF S ERVICE I hereby certify that a copy of the Final Judgment signed by Judge Edward W. Nottingham on M arch 17, 2005 was served on M arch 18 , 2005 by hand-delivery, where a " D.C."box number or asterisk (*) is indicated after the recipient' name, by electronic mail to the s electronic mail address specified where a double asterisk (**) is indicated after the recipient' s name, or otherwise by depositing it in the United States mail, postage prepaid, addressed to the recipient:

M agistrate Judge Craig B. Shaffer*

Stefan Kazmierski, Esq.** Roseman & Kazmierski, L.L.C. 1120 Lincoln Street, Suite 1607 Denver, CO 80203-3154 via electronic mail to: [email protected] Attorney for Plaintiff

Jay A. Lauer, Esq. Shad L. Brown, Esq. Office of the El Paso County Attorney 27 E. Vermijo Avenue Colorado Springs, CO 80903 Attorneys for Defendants

Gordon L. Vaughan, Esq. Jessica Kyle M uzzio, Esq. Vaughan & DeM uro 111 South Tejon, Suite 410 Colorado Springs, CO 80903 Attorneys for Defendants

GREGORY C. LANGHAM , CLERK

By s/ Deputy Clerk or Secretary