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DATE FILED: June 25, 2018 9:28 AM

LARIMER COUNTY DISTRICT COURT, STATE OF CASE NUMBER: 2017CV30516


COLORADO

201 LaPorte Ave.


Fort Collins, CO 80521
CHRISTINA BOUCHER,

Plaintiff,

v.

BOARD OF GOVERNORS OF THE COLORADO


STATE UNIVERSITY SYSTEM dba COLORADO
STATE UNIVERSITY,

Defendant.
COURT USE ONLY
Case No. 2017 CV 30516

Div. 3C

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS MATTER comes before the Court upon the Defendants’ motion for summary
judgment. The Court has carefully reviewed the motion, Plaintiff’s response and Defendant’s
reply as well as reviewing the voluminous exhibits accompanying the parties’ pleadings. After
careful consideration, the Court finds and orders as follows:

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff commenced the present action asserting claims against Board of Governors of
the Colorado State University System dba Colorado State University (“CSU”) for retaliation in
violation of Title VII, 42 U.S.C.§2000e which provides, in pertinent part, that it is unlawful “for
an employer to discriminate against any of his employees ... because he [or she] has opposed
any practice made an unlawful employment practice by [Title VII].”

In the present case, Plaintiff Ms. Boucher alleges that she engaged in certain activity
protected by Title VII and that thereafter she was retaliated against, in various ways, based upon
her report of sexual harassment by Dr. Ben-Hur in the computer science department at Colorado
State University. Defendant CSU asserts that summary judgment is appropriate in this matter
insofar as the undisputed facts fail to support a prima facie case of retaliation under the burden
shifting analysis of McDonnel Douglas Corp. v. Green, 411 U.S. 792 (1973), and that that there
are legitimate non-discriminatory and non-retaliatory reasons for any alleged adverse
employment actions that might have been taken with regard to Plaintiff’s employment.

In contrast, Plaintiff argues that there are disputed issues of material fact which both
support her prima facie claim of retaliation and that Defendant’s proffered explanations are a
pretext, precluding summary judgment.

STANDARD OF REVIEW

Summary judgment is a drastic remedy, to be granted only when there is a clear showing
that the controlling standards have been met. HealthONE, v. Rodriguez ex rel Rodriguez, 50 P.3d
879 (Colo. 2002); Casebolt v. Cowan, 829 P.2d 352, 363 (Colo.1992) (emphasizing that
summary judgment “is appropriate only in the clearest of cases”). Even where it is “extremely
doubtful” that a genuine issue of material fact exists, summary judgment is inappropriate.
Westin Operator, LLC v. Groh, 347 P.3d 606 (Colo. 2015); Mancuso v. United Bank of Pueblo,
818 P.2d 732 (Colo. 1991)(quoting Abrahamsen v. Mountain States Tel. & Tel. Co., 177 Colo.
422, 494 P.2d 1287, 1290 (1972)).

The moving party bears the initial burden of showing no genuine issue of material fact
exists; the burden then shifts to the nonmoving party to establish a triable issue of fact.
Mancuso, 818 P.2d at 736. Moreover, all doubts must be resolved against the moving party; at
the same time, the nonmoving party “must receive the benefit of all favorable inferences that
may be reasonably drawn from the undisputed facts.” Tapley v. Golden Big O Tires, 676 P.2d
676, 678 (Colo.1983). However, “the nonmoving party may not rest on its mere allegations or
denials of the opposing party's pleadings but must provide specific facts demonstrating a genuine
issue for trial.” City of Longmont v. Colo. Oil & Gas Ass'n, 369 P.3d 573, 578 (2016)(citing
C.R.C.P. 56(e)).

PLAINTIFF’S CLAIM UNDER TITLE VII

A. Plaintiff’s Prima Facie Case of Title VII Retaliation.

For purposes of the Defendant’s motion for summary judgment the parties apparently
agree that there is no direct evidence of retaliation and therefore Plaintiff’s claim for Title VII
retaliation is subject to the burden-shifting requirements of McDonnel Douglas Corp. v. Green,
supra. In order to establish a prima facie case of retaliation, Plaintiff must present evidence that
that (1) she engaged in protected activity; (2) she suffered an adverse action that a reasonable
employee would have found material; and (3) that there is a causal nexus between her activity
and the adverse action. If Plaintiff does so, the burden shifts to Defendant to show a legitimate
non-discriminatory or non-retaliatory reason for any alleged adverse employment action. Id. If

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the defendant meets this burden, the burden shifts back to plaintiff to show that defendant’s
proffered reason is pretextual. Id.

1. Did Plaintiff Engage in Protected Activity

Defendant admits that Plaintiff Boucher engaged in certain protected activity which
included (1) complaining in October 2014 to Dr. Whitley, the chair of the Computer Science
Department at CSU and to Dean Nerger, the Dean of the College of Natural Resources, of
alleged sexual harassment by Dr. Ben-Hur, (2) alleging retaliation as a result of her complaints in
a meeting in March 2015 with Dean Nerger, (3) Plaintiff’s May 6, 2015 meeting with the Office
of Employment Opportunity, (4) Plaintiff’s May 12, 2015 grievance which included allegations
of discrimination and retaliation, and, finally, (5) Plaintiff’s September 3, 2015 charge filed with
the Equal Employment Opportunity Commission (“EEOC”).

Accordingly, based upon the evidence presented, Plaintiff has satisfied the first
requirement of a prima facie case to demonstrate that she engaged in activity protected by Title
VII.

2. Did Plaintiff Suffer an Adverse Action that a Reasonable Employee Would Have
Found Material

a. Did Plaintiff Fail to Exhaust Administrative Remedies with regard to


alleged adverse actions

Initially, Defendant CSU argues that Plaintiff has failed to properly exhaust her
administrative remedies with regard to certain adverse actions she alleges were taken by
Defendant CSU as a result of her protected activity. Under Title VII, exhaustion of
administrative remedies is a prerequisite to suit. Apsley v. Boeing Co., 691 F.3d 1184, 1210
(10th Cir. 2012). As argued by Defendant CSU, administrative remedies generally must be
exhausted as to each discrete instance of discrimination or retaliation. Id. To the extent that
Plaintiff failed to exhaust administrative remedies with regard to alleged adverse actions,
Defendant argues that this court lacks jurisdiction to review Title VII claims that are not part of
Ms. Boucher’s EEOC charge. Annett v. Univ. of Kansas, 371 F.3d 1233, 1238 (10th Cir. 2004).
Defendant CSU relies on the holding in Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003) in
support of its position.

In particular, Defendant argues that Plaintiff has failed to exhaust her administrative
remedies with regard to the following allegations: (1) alleged ‘slander’ from Fall 2014 to present;
(2) Dr. Whitley’s April 2015 Pre-Tenure (midpoint) evaluation; (3) April 2015 Letter from Dr.

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Nerger to the P&T Committee; (4) Plaintiff’s alleged forced resignation; and (5) Plaintiff’s
2015/2016 raise.

In response, Plaintiff argues that the exhaustion requirement does not apply to events that
are so closely tied to events in a charge that the charge should have prompted an EEOC
investigation of the events. Under this theory, Plaintiff disputes that she failed to exercise her
administrative remedies with regard to Dr. Whitley’s midpoint evaluation of Plaintiff Boucher,
Dr. Nerger’s alleged interference with Promotion and Tenure Committee during the spring of
2015, and finally, Plaintiff Boucher’s below average raise for 2015/2016. The Court agrees with
Plaintiff that these actions are reasonably intertwined with the allegations of the EEOC charge
and the evaluation of Plaintiff’s employment and are not separate and discrete acts requiring an
independent charge. Moreover, Plaintiff argues that even if a retaliatory act is barred under this
rule, a plaintiff may still use evidence of the barred act to prove her case provided at least one
retaliatory act is preserved through the administrative process. National Railroad Passenger
Corporation v. Morgan, 536 US 101, 109 (2002).1

b. Did Plaintiff suffer an Adverse Action

Defendant CSU argues that Plaintiff Boucher did not suffer an adverse action that a
reasonable employee would have found material and therefore cannot establish the second prong
of a prima facie case. Title VII’s anti-retaliation provision “protects an individual not from all
retaliation, but from retaliation that produces an injury or harm,” or actions that “a reasonable
employee would have found ... materially adverse.” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006). A materially adverse action is one that “might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Id. at 68 (internal quotation
marks and citations omitted). The materiality requirement “separate[s] significant from trivial
harms.” Id. (Quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998).)

In response, Plaintiff Boucher argues that she suffered a number of adverse employment
actions which were material. Relying on Rodriguez-Vives v. Puerto Rico Firefighters Corps, 743
F. 3d 278, 285-86 (1st Cir. 2014), Plaintiff notes that actions that individually may not be
materially adverse actions can become material cumulatively. Plaintiff has presented evidence in
opposition to the motion that Plaintiff was excluded from research meetings soon after
complaining of Dr. Ben-Hur’s allegedly inappropriate behavior, that when she continued to
complain of retaliation she received poor performance evaluations and a below average raise, as

1 In Martinez v. Potter, supra. the Court noted that while it determined that a Plaintiff must
exhaust administrative remedies as to discrete acts of discrimination, the holding “does not negate
the relevance of allegedly retaliatory incidents as to which administrative remedies have not been
exhausted, when these incidents occurred after the filing of the judicial complaint. As the Court in
Morgan explicitly noted “[n]or does the statute bar an employee from using prior acts as background
evidence in support of a timely claim.” citing Morgan, 536 U.S. at 113, See also, Wedow v. City of
Kansas City, MO 442 F.3d 661 (8th Cir. 2006).
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well as alleged interference by Dr. Ben-Hur, Dr. Whitley, and Dr. Nerger with the P&T
committee.

While the Court does not determine that each “adverse action” alleged by Plaintiff
Boucher was “materially adverse” there are disputed issues of material fact with regard to
whether or not Plaintiff suffered an adverse employment action such that summary judgment is
not appropriate with regard to the second prong of Plaintiff’s prima facie case.

3. Has Plaintiff demonstrated a causal nexus between her activity and the adverse
action.

To satisfy the third prong of a prima facie case Plaintiff must prove a causal connection
exists between the protected activity and the materially adverse action. Somoza v. Univ. of
Denver, 513 F.3d 1206, 1212 (10th Cir. 2008). A causal connection may be shown by evidence
of circumstances that justify an inference of retaliatory motive, such as protected conduct closely
followed by adverse action. Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th
Cir.1982). In absence of a very close temporal proximity between the protected activity and the
retaliatory conduct, the plaintiff must offer additional evidence to establish causation. Conner v.
Schnuck Mkts., Inc., 121 F.3d 1390 (10th Cir.1997). In the Tenth Circuit, courts have held that a
one and one-half month period between protected activity and adverse action may in and of itself
establish causation while a three-month period, standing alone, may be insufficient to establish
causation. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.1999).

Defendant CSU argues that Plaintiff first made her allegations about Dr. Ben-Hur to Dr.
Whitley in October 2014. [Ex. D, p. 2, EEOC Charge]. CSU asserts that Plaintiff’s annual
employment evaluation was conducted approximately five months later. Accordingly, CSU
argues that there is no temporal proximity between the protected activity and the retaliatory
conduct, such that the Plaintiff must offer additional evidence to establish causation. O'Neal v.
Ferguson Const. Co., 237 F.3d 1248, 1253 (10th Cir. 2001).

Plaintiff argues that the evidence is sufficient to support a finding of a causal nexus
between her protected activity and adverse action taken against her. Plaintiff argues that the
evidence accompanying Plaintiff’s response to the motion establishes that Plaintiff Boucher
complained about sexual harassment to Dr. Whitley on October 21, 2014; that Plaintiff reported
it to Dean Nerger shortly after that, and within a few days of Boucher’s report to Nerger, Whitley
told Ben-Hur of the accusation. According to deposition testimony cited by Plaintiff, less than a
month later, on November 21, 2014, Boucher told Nerger that things had gotten worse after Ben-
Hur was told of the accusation. On December 10, 2014, Boucher told Nerger that “after
[Whitley] talked to [Ben-Hur] things got way worse” and that Ben-Hur was excluding her from
lab events. Plaintiff argues that the evidence supports a finding that within six weeks of

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Boucher’s initial allegations of sexual harassment, she had been excluded from lab events and
was reporting to Dean Nerger that she was being retaliated against by Dr. Ben-Hur.2

Plaintiff further argues that Whitley’s 2014 performance evaluation and the below
average raise extended as a result of the evaluation closely followed her continuing complaints of
retaliation which were communicated to Dean Nerger and that alleged interference with the
Promotions and Tenure Committee closely followed protected activity by Plaintiff Boucher.
Because there are disputed issues of material fact that would support Plaintiff’s claim of a causal
connection between protected activity and adverse employment actions, summary judgment is
inappropriate on this basis. Stated in the alternative, there is sufficient, although disputed,
evidence of a causal connection between Plaintiff’s protected activity and adverse employment
action to support the third prong of a prima facie case.

B. Legitimate Non-Discriminatory or Non-Retaliatory Reasons for Adverse


Actions

Based upon the evidence submitted by Defendant CSU, there is certainly evidence in the
record to support a conclusion that CSU had legitimate non-discriminatory and non-retaliatory
reasons which motivated the actions that were taken with regard to Plaintiff’s employment. The
evidence proffered by CSU would establish legitimate non-discriminatory reasons which
motivated the actions taken by Ben-Hur, Plaintiff’s 2014 annual evaluation, the statements
provided by Dr. Whitley to the P&T Committee, Dr. Ben-Hur’s statements at the April 3, 2015 P
& T Committee, Dr. Whitley’s midpoint review letter, and Dean Nerger’s April 2015
communication to the P &T Committee. The evidence presented by CSU suggests that the
motivations for many of these actions were the result of incidents that pre-dated any complaint
made by Plaintiff with regard to Dr. Ben-Hur. Accordingly, there is evidence from which a jury
could determine that CSU had legitimate non-discriminatory reasons for the alleged adverse
actions taken with regard to Plaintiff’s employment. The burden, therefore shifts to Plaintiff to
produce evidence of pretext to avoid summary judgment.

C. Evidence of Pretext

Plaintiff argues that she may show pretext by demonstrating weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in CSU’s proffered legitimate reasons for the
actions taken such that a reasonable factfinder could rationally find them unworthy of credence
and infer that the employer did not act for the asserted non-discriminatory reasons. Anderson v.
Coors Brewing Co., 181 F. 3d 1171, 1180 (10th Cir. 1999). Procedural irregularities, including

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CSU argues that retaliatory acts, if any, undertaken by Dr. Ben-Hur do not constitute “adverse employment action”
for purposes of a retaliation claim in absence of a finding that CSU orchestrated the conduct or knew about the
harassment and acquiesced in it in such a manner as to condone the conduct. Gunnell v. Utah Valley State Coll., 152
F.3d 1253, 1264 (10th Cir. 1998). Based upon the evidence before the court there are disputed issues of material fact
from which a jury could conclude that CSU may have condoned this conduct.
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deviations from normal company procedure, may provide support for a plaintiff's assertion of
pretext. Garrett v. Hewlett Packard Co., 305 F. 3d 1210, 1220 (10th Cir, 2002). A plaintiff may
also show pretext with evidence that she was treated differently from other similarly-situated
employees who violated work rules of comparable seriousness. Kendrick v. Penske Transp.
Services, Inc., 220 F. 3d 1220, 1232 (10th Cir. 2000). Further, Plaintiff argues that testimony of
other employees that shows a defendant’s pattern of discriminatory or retaliatory behavior or that
helps discredit the employer's assertion of legitimate motives is relevant in a Title VII case if it
can be logically and reasonably linked to the plaintiff’s case. Coletti v. Cudd Pressure Control,
165 F. 3d 767, 776-777 (10th Cir. 1999).

Plaintiff argues that the evidence submitted by Plaintiff establishes (1) inconsistencies in
CSU’s explanations of its behavior, (2) direct evidence of animas by CSU regarding Boucher’s
protected activity, (3) deviations from normal CSU procedure related to her complaints, (4)
differential treatment of Ben-Hur, and (5) similar experiences of other CSU employees.3
Accordingly, she argues that she has met her burden of showing pretext.

From the Court’s perspective, as with the Plaintiff’s prima facie case, there are disputed
issues of material fact from which a jury could conclude that the proffered explanations provided
by CSU were pretextual. Under the circumstances, summary judgment is not appropriate.

ORDER

Based upon the foregoing, the Court determines that there are disputed issues of material
fact with regard to whether Plaintiff has established a prima facie case, whether there are
legitimate non-discriminatory reasons which motivated CSU’s behavior, and whether or not
there is evidence of pretext. Based upon this finding, Defendant’s motion for summary judgment
is hereby denied.

DATED this 25th day of June 2018.

BY THE COURT:

__________________________________________
District Court Judge

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The Court is not necessarily persuaded that evidence of other alleged “similar” experiences” by other CSU
employees were actually “similar.”
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