Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01325-WYD-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1325-WYD-MJW BARBARA SMITH, Plaintiff, v. AVAYA INC., a Delaware Corporation Defendant. ______________________________________________________________________________ DEFENDANT'S REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________

COMES NOW Defendant Avaya Inc. ("Defendant" or "Avaya"), by and through its attorneys and pursuant to FED. R. CIV. P. 56 and D.C.COLO.LCivR 56.1, and respectfully submits the following Reply Brief in Support of Motion for Summary Judgment ("Reply"). REPLY CONCERNING UNDISPUTED FACTS 2. Plaintiff's statement that "it is submitted that Plaintiff's participation and input

was limited, at best, and she was not given full ability to respond [to] allegations and misinformation provided to Human Resources" is not supported by record citation and should be disregarded. The record is clear that Plaintiff participated in the investigation. (See Def.'s Br. In Support of Mot. For Summ. Jmt., filed April 25, 2005, Ex. A-1 [hereafter "Pl.'s Dep."] at 156 13-16).

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14 and 15.

Plaintiff states that Defendant's Undisputed Facts in these paragraphs "do

not constitute anything material and make no sense when read with other facts produced by Plaintiff." Yet she does not cite to which "facts" she refers nor does she dispute the accuracy of Defendant's facts as stated in these paragraphs. 18. Plaintiff provides no record citation for her purported denial of this allegation.

Her deposition testimony is clear that she did not object to the alleged directive of Ms. Mitchell or discuss any perceived disability of Kiesel-Ryan. (Pl. Dep. 101:4-14, 127: 5-21). 19. Again, Plaintiff provides no record support for this denial. It is undisputed that

Plaintiff's only objection to the alleged instruction to lower Kiesel-Ryan's score was that she believed this employee was too new in her position. (Pl. Dep. 98:4-12, 102:9-24). RESPONSE CONCERNING DISPUTED FACTS 1. 2. 3. 4. Admit. Upon information and belief, admit. Upon information and belief, admit. Denied. Regardless of whether Plaintiff thought that the conversation was

personal in nature, and regardless of whether such conversations were "common," the fact remains that Plaintiff discussed age-related matters with an individual under consideration for a position with Avaya. (Pl. Dep. 80:24-81:18, 84:16-85:20). 5. Denied. Plaintiff's statement is unsupported by record citation. Regardless,

Defendant has produced testimony that an investigation concluded that Smith's conduct violated Avaya's Equal Employment Opportunity policies. (Affidavit of Stacey Piña, Ex. 3 of Def.'s Br. in Supp. Of Mot. For Summ. Jmt., at ¶ 3).

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6.

Denied. Defendant's Position Statement to the EEOC clearly states that Plaintiff

was terminated, in part,"for asking applicants inappropriate questions during an interview." (Pl.'s Resp. filed June 27, 2005, Ex. 2 at "EEOC 110"). 7. Defendant admits that Plaintiff "was responsible for providing evaluations to

employees under her supervision." However, Defendant denies that she "did so regularly and consistently." (Piña Affidavit at ¶ 4). 8. 9. Admit. While Defendant admits that this is generally the process for evaluating

employees, in this case an investigation revealed that Plaintiff misrepresented her performance to her supervisor and to Human Resources. She affirmed in her statements during the investigation that she completed all evaluations of her subordinates in a timely manner. The investigation showed that she completed a subordinate's evaluation three months after claiming to have completed all required evaluations. (Piña Affidavit at ¶ 4.) 10. 11. Admit. Regardless of whether or not Plaintiff produced a "draft" evaluation, it is

undisputed that at the time Ms. Kiesel-Ryan was terminated, she had not received a written evaluation. (Pl. Dep. 139:3-6). 12. Again, with respect to the written evaluation, it is undisputed that it was not

provided prior to Ms. Kiesel-Ryan's separation. (Pl. Dep. 139:3-6). 13. While this fact may be true, it does not counter the undisputed fact that Ms.

Kiesel-Ryan did not receive her written evaluation prior to her separation. (Pl. Dep. 139:3-6). 3

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14.

While this fact may be true, it does not counter the undisputed fact that Ms.

Kiesel-Ryan did not receive her written evaluation prior to her separation. (Pl. Dep. 139:3-6). 15. Ms. Piña's investigation concluded that Smith had misrepresented her

performance regarding the evaluation. (Piña Affidavit at ¶ 4). Plaintiff's statement of undisputed facts does nothing to challenge Piña's good faith belief that this was the case. 16. While this fact may be true, it does nothing to challenge Piña's good faith belief

that Smith acted inappropriately. (Piña Affidavit at ¶ 4). 17. For purposes if this Motion, Defendant will assume the truth of this statement.

However, as will be shown below, this fact is immaterial. 18. Denied. This allegation is based only upon hearsay statements of others (Pl. Dep.

174:11-175:16) and, therefore, is inappropriate for consideration on a Motion for Summary Judgment. ARGUMENT I. Plaintiff has failed to meet her burden of establishing a genuine issue of material fact with respect to the issue of pretext as to her claims of age and sex discrimination. Under the well-known McDonnell Douglas burden-shifting analysis, it is the Plaintiff who bears the burden of proving, by a preponderance of the evidence, "that the reasons offered by the defendant [for the employment decision] were not its true reasons, but were a pretext for discrimination." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); see also Rivera v. City and County of Denver, 365 F.3d 912, 920 (10th Cir. 2004) (quoting Burdine). Of course, "[t]he relevant inquiry is not whether [the employer's] proffered reasons were wise, fair

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or correct, but whether [it] honestly believed those reasons and acted in good faith upon those beliefs." Rivera, 365 F.3d at 924-25 (citations and quotations omitted). A. Plaintiff Has Failed to Offer Any Proof that Piña's Investigation Did Not Result in a Good Faith Belief of Misconduct.

In her Response, Plaintiff does nothing to show that Piña's investigation, or the actions taken in reliance thereon, were not based upon Piña's good-faith belief that Plaintiff had engaged in misconduct. The Tenth Circuit has stated that: In determining whether the proffered reason for a decision was pretextual, we examine the facts as they appear to the person making the decision . . . . An articulated motivating reason is not converted into pretext merely because, with the benefit of hindsight, it turned out to be poor judgment . . . . Rivera, 365 F.3d at 925 (citations and quotations omitted); see also Kendrick v. Penske Transp. Services, Inc., 220 F.3d 1220, 1231 (10th Cir. 2000) ("[A] challenge of pretext requires us to look at the facts as they appear to the person making the decision to terminate plaintiff."). In this case, Plaintiff attempts to cast doubt on the reasons given for her termination by maintaining that she did not make inappropriate comments during an interview and that she did not fail to complete a written evaluation in a timely manner. However, whether or not Plaintiff disagrees with these conclusions, she has done nothing to show that Piña's investigation into her conduct did not result in a good faith belief on the part of Defendant that she did, in fact, make such comments and misrepresentations. In other words, Smith's "mere conjecture that [Defendant's] explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment." Branson v. Price River Coal, Co., 853 F.2d 768, 772 (10th Cir. 1988). Therefore,

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Defendant is entitled to judgment as a matter of law. See Cordova v. West, 925 F.Supp. 704, 708 (D. Colo. 1996) (Daniel, J.) ("[F]ailure by the plaintiff to come forward with evidence of pretext will entitle the defendant to summary judgment."). B. Plaintiff Has Adduced No Admissible Evidence of Disparate Treatment.

Nor has Plaintiff presented admissible evidence that she was treated less favorably than other similarly-situated employees, an argument upon which she relies heavily in her Response. She contends only that one other employee, John Eberhardt ("Eberhardt"), failed to provide his subordinates with written evaluations. (Resp. at 5, ¶ 18, 9). However, the only record support for this allegation are Plaintiff's affidavit testimony that Eberhardt "failed to provide a large number of his supervisees with written evaluations" (Resp. Ex. 3, ¶ 20), and the following deposition testimony: Q (by Mr. Miller): The last paragraph of Deposition Exhibit 10, you say that you believe John Eberhardt would frequently fail to do evaluations on time, but was never disciplined. A (by Plaintiff): Correct. Q: What's your basis for saying that? A: Because I was one of Chandra [Nelson]'s managers that always came through and got her appraisals done in an expeditious manner. John's engineers, a lot of them who used to work for me used to complain because they wouldn't get their reviews at all. Q: Did you ever complain to Ms. Nelson about that? A: Me personally? Q: Yeah. A: No. I never felt it was my place. I told the guys that they needed to go to Chandra and let her know, that John was their reporting ­ their coach, not me 6

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anymore. And that my group, after I left, when they were reporting to Kevin Shiller, he never gave reviews either. Q: And you say it's your understanding that while you were under investigation, John had still not completed some of his employees' evaluations? A: Yes. Q: Whose hadn't been completed? A: Dick Matovick was one. Q: And how do you know that? A: Because Dick talked to me. I think Neil Ferry was, excuse me, another one . . . (Pl. Dep. at 174:11-175:16). In other words, Plaintiff's only evidence of disparate treatment is her own belief that Eberhardt failed to perform evaluations, a belief that is support only by the hearsay statements of others. In Salguero v. City of Clovis, 366 F.3d 1168, 1177 n.4 (10th Cir. 2004), the Tenth Circuit noted that evidence of a failure to discipline other employees cannot be based upon affidavit testimony not supported by personal knowledge. In this case, Plaintiff's affidavit does not even attempt to demonstrate that she has personal knowledge of Eberhardt's purported failure to provide evaluations. Therefore, her affidavit testimony regarding Eberhardt must be disregarded. Similarly, Plaintiff's deposition testimony, upon which she relies in an attempt to establish disparate treatment, does not create a genuine issue of material fact as to pretext. Plaintiff's only evidence that Eberhardt did not complete evaluations of his subordinates is the hearsay testimony of others. (Pl. Dep. at 175:14 ["Because Dick talked to me."]). However, it is well-established that "Rule 56 precludes the use of inadmissible hearsay testimony in depositions submitted in support of, or in opposition to, summary judgment." Starr v. Pearle Vision, Inc., 54 7

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F.3d 1548, 1555 (10th Cir. 1995). See also Dick v. Phone Directories Co., Inc. 397 F.3d 1256, 1266 n.5 (10th Cir. 2005) (citing Starr and holding that district court properly excluded hearsay statements at summary judgment stage). Here, there is no other "evidence" of any other similarly-situated Avaya employee not being disciplined for failing to provide evaluations. Therefore, there is no genuine issue of material fact as to whether Defendant's reasons for terminating Plaintiff were pretextual and Avaya is entitled to judgment as a matter of law. It must also be noted that although Plaintiff discusses Eberhardt's purported failure to provide evaluations in connection with both her age and sex discrimination claims, she does not even allege that Eberhardt ever made inappropriate age-related comments to another employee. Therefore, he cannot be considered "similarly-situated." II. Defendant is entitled to summary judgment on Plaintiff's claims of ADA retaliation. Summary judgment is warranted on Plaintiff's ADA claim unless there is a genuine issue of material fact with regard to an element of her prima facie case. Thus, there must be a genuine issue of material fact with regard to one of the following elements: (1) that she engaged in an activity protected by the statute; (2) that she was subjected to [an] adverse employment action subsequent to or contemporaneous with the protected activity; (3) that there was a causal connection between the protected activity and the adverse action. Selenke v. Medical Imaging of Colorado, 248 F.3d 1249, 1264 (10th Cir. 2001) (quotation and citation omitted). If Plaintiff establishes her prima facie case, "the burden shifts to the employer to articulate a nondiscriminatory reason for the adverse employment action." Id. If Defendant satisfies this burden, Plaintiff must prove that Defendant's articulated reasons for the adverse action are pretextual, i.e. unworthy of belief. Id. (quotation and citation omitted). 8

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The facts that are supported by the record and alleged in Plaintiff's Response do not create a genuine issue of material fact regarding Plaintiff's failure to engage in an activity protected by the ADA or the existence or a causal connection between any activity protected by the ADA and the adverse action. The ADA prohibits retaliation in opposition to protected activity, explaining that "[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter." 42 U.S.C. §12203(a). Thus, to preclude summary judgment on her claim for retaliation under the ADA, Plaintiff must establish a genuine issue of material fact concerning a protected activity based upon admissible evidence. There can be no dispute that Plaintiff's alleged conduct did not constitute a protected activity. Plaintiff states that the evidence shows "that the employee [Kiesel-Ryan] was disabled." However, another employee's status as disabled or non-disabled does not establish that Plaintiff engaged in any type of protected activity. Plaintiff goes on to maintain "that the company wanted to get rid of the employee." Again, an unsubstantiated allegation concerning the company's intent, even if accepted as true, does not establish that Plaintiff engaged in any type of activity. With respect to Plaintiff's allegation that "the disabling conditions were mentioned at the evaluation meeting," even accepting this allegation as true, Plaintiff still has not identified any action that she took vis-à-vis this purported conversation. Indeed, it is undisputed that the only reason for Plaintiff's alleged support of Kiesel-Ryan was Plaintiff's belief that she was "too new to rate." (Pl. Dep. 98: 4-12, 102:9-24.) This has nothing to do with any policy implicated by the ADA. Objecting to the application of corporate policies concerning employee evaluations

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does not constitute a protected activity. In short, Plaintiff has failed to identify a protected activity in support of her claim. Concerning what appears to be Plaintiff's argument relating to the causation element, Plaintiff appears to suggest that the investigation into her misconduct that occurred soon after the Company terminated the allegedly disabled employee supports an inference of causation. However, the other employee's termination does not constitute protected activity. Temporal proximately between an allegedly adverse employment action and an unrelated activity does not give rise to an inference of causation. III. Conclusion. For the foregoing reasons, as well as those stated in Defendant's Brief in Support of its Motion to Dismiss, Defendant requests that the Court grant its Motion for Summary Judgment, dismiss this case with prejudice, award it its reasonable fees and costs, and award any other appropriate relief. Respectfully submitted this 22nd day of July, 2005.

/s Patrick J. Miller Patrick J. Miller Jennifer A. Seidman SHERMAN & HOWARD L.L.C. D.C. Box 12 633 Seventeenth Street, Suite 3000 Denver, CO 80202 Tel (303) 297-2900, Fax (303) 298-0940 Attorneys for Defendant Avaya Inc.

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on July 22, 2005, I electronically filed the foregoing DEFENDANT'S REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail address: [email protected] George C. Price, Esq. 900 Logan Street Denver, CO 80203

/s Cheryl D. Witt

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