Petition for Writ of Certiorari — Brawner-Ahlstrom v. Husson

AY Supreme Court, U. U.S

4 FILED

No. 98-_9 g§ 1 6 46 APR 1 21999

Supreme Court of the United States

October Term, 1998

%

VICKY BRAWNER-AHLSTROM,

Petitioner,

Vv.

ROBERT J. HUSSON, GARY PON,

and JAMES WALL,

Respondents.

e

On Petition For A Writ Of Certiorari

To The Colorado Court Of Appeals

+

PETITION FOR A WRIT OF CERTIORARI

*

*RALPH OGDEN

Witcox & Ocpen, P.C.

1750 Gilpin Street

Denver, Colorado 80218

303-399-5005

STEVEN U. MULLENS

STevEN U. MUuLLeENs, P.C.

P.O. Box 2940

Colorado Springs, Colorado 80901

719-632-5001

*Counsel of Record

April 12, 1999

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

anee

QUESTIONS PRESENTED FOR REVIEW

1. Whether under St. Mary’s Honor Center v. Hicks,

509 U.S. 502 (1993), an inference of unlawful gender

discrimination arises once the claimant shows that the

employer’s allegedly non-discriminatory reason for dis-

charge was pretextual and that similarly situated males

were treated more favorably, or whether, as the Colorado

Court of Appeals held below, the claimant must also

produce either direct evidence of intentional discrimina-

tion or direct evidence that the employer’s proffered

reason was pretextual and that discrimination was the

underlying purpose disguised by the pretext.

2. Whether the opinion of the Colorado Court of

Appeals is in conflict with this Court’s opinion in St.

Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), because

the iower court held that when an employer comes for-

ward with a non-discriminatory explanation for dis-

charge, the claimant must offer additional evidence to

demonstrate pretext and discriminatory intent and can-

not demonstrate both discriminatory intent and pretext

with the same evidence she produced to demonstrate a

prima facie case of discrimination.

3. Whether the petitioner’s evidence that she was

well-qualified for her job and had received exemplary

performance ratings two months before discharge, com-

bined with the fact that male workers involved in the

same event were treated less harshly, is sufficient evi-

dence of pretext to defeat summary judgment.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

PETITION FOR A WRIT OF CERTIORARI ......... 1

OPINEONG BELOW... «occ brads uvecoctis ses teauwsn ene 1

JURISDICTION OF THE SUPREME COURT........ 1

STATUTORY AND CONSTITUTIONAL PROVI-

SIONS INVOLVED IN THIS CASE... 20.00.03 s es 2

STATEMENT OF TIE CASE 0.5 o:0s0.55'¢ smu vena neiaeins 2

REASONS FOR ISSUING THE WRIT............... 9

CONCTAISION iiivis ccdan 5055 0s teehee eee eee 12

APPENDICES

Appendix A

Opinion of the Colorado Court of Appeals, 969

P24 736 (Colo. App. 19G8) oo iis cece aceres App. 1

Appendix B

Order Granting Summary Judgment, Entered by

the District Court for the City and County of

Denver; Case No. SSO VZ290 i isens phe sanesees App. 10

Appendix C

Order of the Colorado Court of Appeals Deny-

ing the Petition for Rehearing ............... App. 12

Appendix D

Mandate of the Colorado Court of Appeals ..App. 13

Appendix E

Order of the Colorado Supreme Court Denying

the Petition for Certlorari....56.. cc kiccreesvas App. 14

iil

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Baxter Healthcare Corporation, 13 F.3d

eS MB spb a cis ond hein Biwi uKv nei 11

Bodenheimer v. PPG Industries, Inc., 5 F.3d 955 (5th

ele MP coat Stes said op Ck OM oly oon 0 aN pk bd aoe 11

Boyd v. Harding Academy of Memphis, Inc., 88 F.3d

er: NR ee ee fh a ids ch wink Ebc se cce veces ba. 11

Combs v. Plantation Patterns, 106 F.3d 1519 (11th

SORE Cae ea aw uy socks Sows sa Dhue bh Webs eens 12

Conner v. Schnuck Markets, Inc., 121 F.3d 1390 (10th

Ree aa UE ary h aia ok oA bias oes ce daniets craece 11

Davis v. Passman, 442 U.S. 228 (1979)................. 3

Evans v. Technologies Applications & Service Com-

pany, 80 F.3d 954 (4th Cir. 1996).................. 11

Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994)......... 11

Holt v. KMI-Continental, Inc., 95 F.3d 123 (2d Cir.

eS INE Si Las ie boc ood a w<e e's 11

McDonnell Douglas Corporation v. Green, 411 U.S.

el, Fy ia bs WA av eee b bea eo bee 9, 10, 12

Pontarelli v. Stone, 930 F.2d 104 (1st Cir. 1991)........ 3

Randall v. City of Aurora, 69 F.3d 441 (10th Cir.

ee ee ates yas wk dk awe nephew be o's 11

St. Mary’s Honor Center v. Hicks, 509 U.S. 502

Ne ai ee gy ee Sek Ai ae eb gah a ei 10, 11, 12

Simon v. State Compensation Insurance Authority,

946 P.2d 1298 (Colo. 1997), cert. denied (1998)....... 3

iv

TABLE OF AUTHORITIES - Continued

Page

Smith v. Stratus Computer, Inc., 40 F.3d 11 (1st Cir.

T9SG),. COPE. GOV CI a5 ob hoki s waa be a eee 11

Texas Department of Community Affairs v. Burdine,

450 AS, De CR inks ki occu hversavcrecesssans 10, 12

Thomas v. Runyon, 108 F.3d 957 (8th Cir. 1997) ...... 11

Wallis v. J.R. Simplot Company, 26 F.3d 885 (9th Cir.

FOG) «5 65s 0c Shs os ta es ee ee 11

CONSTITUTIONAL STATUTES, PROVISIONS, AND RULES OF COURT

Fourteenth Amendment to the United States Con-

ESRI cn os pg Kat S es KOEN ERGO ek heel es 2

oO ELBA. Be Bar vba veka s ha ha aw cece ks 1

Ae TSE Barns Sanches deri eae poeta cia ee yee

Rule 13.1, United States Supreme court .............. 2

eee

ft

hi

i

PETITION FOR A WRIT OF CERTIORARI

Vicky Brawner-Ahlstrom respectfully petitions the

Court to issue a writ of certi#rari to review the judgment

and opinion of the Colorado Court of Appeals issued on

April 30, 1998.

OPINIONS BELOW

The opinion of the Colorado Court of Appeals is

reported at 969 P.2d 738 (Colo.App. 1998) and is set out in

Appendix A. A timely petition for rehearing was denied

on June 25, 1998 (Appendix C), and on January 11, 1999,

the Colorado Supreme Court, Martinez, J., dissenting,

denied a petition for discretionary review. Its order deny-

ing review is set out in Appendix E. The judgment of the

District Court for the City and County of Denver, upon

which the appeal to the Colorado Court of Appeals was

based, is set out in Appendix B.

JURISDICTION OF THE SUPREME COURT

The judgment and opinion of the Colorado Court of

Appeals were issued on April 30, 1998, and on January

11, 1999, the Colorado Supreme Court denied a petition

for discretionary review. Jurisdiction of this Court is

invoked pursuant to 28 U.S.C. § 1257. This petition is

timely filed on Monday, April 12, 1999, which is the 90th

day after the Colorado Supreme Court entered its order

denying review. Rule 13.1 of the United States Supreme

Court.

STATUTORY AND CONSTITUTIONAL PROVISIONS

INVOLVED IN THIS CASE

42 U.S.C. § 1983 states,

Every person who, under color of any stat-

ute, ordinance, regulation, custom, or usage of

any State or Territory, subjects, or caused to be

subjected, any citizen of the United States or

other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress.

Section 1 of the Fourteenth Amendment to the United

States Constitution states, in relevant part,

... [N]Jo state shall make or enforce any law

which shall abridge th privileges or immunities

of citizens of the United States; nor shall any

state deprive any person of life, liberty or prop-

erty without due process of law, nor deny any

person within its jurisdiction the equal protec-

tion of the laws.

STATEMENT OF THE CASE

After being fired from her job as mail room super-

visor at the Colorado Compensation Insurance Authority

(the “CCIA”),! petitioner brought suit under 42 U.S.C.

§ 1983 against three male supervisors? for intentional

gender discrimination. She alleged that she had been

singled out for disparate treatment because she was

female, and hence, denied equal protection of the law.

See, e.g., Davis v. Passman, 442 U.S. 228 (1979) (“The equal

protection component of the Due Process Clause [of the

Fifth Amendment] thus confers on petitioner a federal

constitutional right to be free from gender discrimina-

co: Ure eematee ©

The District Court for the City and County of Denver

granted respondents’ motion for summary judgment and

held that petitioner had not established a prima facie case

of gender discrimination. The Colorado Court of Appeals

affirmed on a different ground. It specifically rejected the

district court’s reasoning and found that petitioner had in

fact established a prima facie case of intentional discrimi-

nation. Appendix A, pages 6-7; 969 P.2d at 742.

Although the court acknowledged that petitioner

received exemplary performance ratings throughout the

four years immediately preceding her discharge, and that

! The Colorado Compensation Insurance Authority is a

“person” liable for damages under 42 U.S.C . § 1983. Simon v.

State Compensation Insurance Authority, 946 P.2d 1298 (Colo.

1997), cert. denied (1998). So, too, are its employees. Pontarelli v.

Stone, 930 F.2d 104, 113 note 17 (1st Cir. 1991).

2 Petitioner’s direct supervisor was defendant James Wall,

the CCIA’s vice president of administration. Mr. Wall’s

supervisor was defendant Gary Pon, the CCIA’s president-

general manager. Defendant Robert Husson is the CCIA’s vice-

president for benefits and claims administration. These three

men comprise the CCIA’s management or executive committee.

there was a genuine issue of material fact about whether

she was “qualified for her position when she was termi-

nated and whether any adverse employment decisions

were made despite such qualifications,” Appendix A,

page 6; 969 P.2d at 742, it refused to consider these facts

as evidence of pretext or to allow an inference of discrim-

inatory animus to arise from this pretext. Instead, it held

that in order for petitioner to survive respondents’

motion for summary judgment, she was required to pro-

vide either direct evidence of intentional discrimination

or direct evidence of discriminatory intent in addition to

making a prima facie case and showing pretext.

Ms. Brawner-Ahlstrom’s performance was annually

evaluated in a number of different performance catego-

ries in which she was given a numerical rating and

placed in one of five different levels: (1) Does Not Meet

Expectations, (2) Partially Meets Expectations, (3) Meets

Expectations, (4) Exceeds Expectations, and (5) Distin-

guished.

In 1988, she was rated as exceeding expectations; in

1989, as distinguished; in 1990, as distinguished; in 1991,

as distinguished; and in an evaluation by Mr. Wall dated

November 30, 1992, and signed by Gary Pon the next day,

she was rated as being in the mid-range for “exceeding

expectations” with a rating of 310 in a rating range of

275-349. Over 350 was considered distinguished. None of

her annual evaluations contained any negative com-

ments.

In the November 30, 1992, evaluation, Mr. Wall noted

that, “Vicky’s management style is ideally suited for the

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TT cacaicaanta, sented ct ORI IES

records and mail departments. She is able to deal effec-

tively with a very high turnover and an exceptionally

young, untrained work force.” He also noted that she

“communicates effectively, timely compliance with all

reporting requirements, monitoring and controlling staff

performance, maintaining staff morale, accessible to

StASE cca. *

Her performance in the Supervision category was

given an excellent rating of 350. Her “Planning, Organiz-

ing and Coordinating” performance was rated as excel-

lent with a score of 400, and had the accompanying

comment that “Over 97 percent of all inbound mail is

filed and routed within 24 hours. She has accomplished

this in a new facility and while taking over inbound mail

from Central Services. One hundred percent of outbound

mail received by her staff is processed in 24 hours, and

this is a remarkable improvement...” She also received

a score of 400 for “Management,” which placed her at the

“Distinguished” level for that category.

In June of 1992, one of Ms. Brawner-Ahlstrom’s

employees opened a letter addressed to Robert Husson

and attempted to determine which file it should go in.

When the employee realized that it was a personal letter

to Mr. Husson, she took it to her supervisor, who in turn

gave it to Ms. Brawner-Ahlstrom. The letter was from

Amy LeVelle, a nurse who had been employed by the

CCIA until about February of 1992. It was apparent from

the letter that Ms. LeVelle had been involved in a long

term affair with Mr. Husson, which was prohibited by

Fn nen eT ee

CCIA policy.* At the time Ms. LeVelle was romantically |

involved with Mr. Husson, Mr. Husson was married to, i

and living with, someone else. |

Ms. Brawner-Ahlstrom immediately took the letter to

Mr. Wall, who said that if she liked working at the CCIA,

she would keep quiet about it. Mr. Wall gave the letter to

his friend Mr. Husson, and Mr. Husson told Mr. Pon.

In early 1993, just two months after giving Ms.

Brawner-Ahlstrom an exemplary annual evaluation, Mr.

Wall again threatened her and initiated an “investigation”

into her performance. The investigator concluded that

she had been derelict in her job performance, and she was

removed from her job in the mail room shortly thereafter.

In her response to summary judgment, Ms. Brawner-

Ahlstrom provided evidence that the investigation was

biased and improperly handled and served only to justify

a decision to fire her which had been made before it

began.

Although Mr. Pon was aware of Ms. Brawner-

Ahlstrom’s outstanding performance ratings from just a

few months earlier, he approved without comment the

disciplinary actions taken against her in the spring of

1993, as did Mr. Husson when the three of them dis-

cussed the matter at an executive meeting. Mr. Pon has

never investigated the behavior of either Mr. Wall or Mr.

Husson. Nor has he ever taken any disciplinary actions

against either of them, even though he had reason to

believe that Mr. Husson might have been involved in an

3 This letter is under seal pursuant to orders of all three

lower courts.

affair with a CCIA employee and that Mr. Husson and

Mr. Wall were punishing Ms. Brawner-Ahlstrom by forc-

ing her out of the company because she knew of the

affair.

Mr. Pon, Mr. Husson, and Mr. Wall are all white

males who knew about Mr. Husson’s affair with a CCIA

employee and either tried to cover it up, took no action to

discipline Mr. Husson, who brought his love life into the

firm, and then punished or approved the punishment of a

female who knew about the affair. Ms. Brawner-Ahlstrom

was thus punished because of her involvement in a situa-

tion while three white males, who were involved in that

situation at least as much as she was, and in Mr. Husson’s

case, far more, were not punished.

The trial court granted respondents’ motion for sum-

mary judgment and held that:

The elements of a prima facie case of sex

discrimination are that the plaintiff is within the

protected group, that the plaintiff was doing

satisfactory work, that the plaintiff was dis-

charged, and that the plaintiff’s position was

filled by a person not in the protected class.

Cone v. Longmont United Hospital Association, 14

F.3d 526, 529, 529 (10th Cir. 1994).

The plaintiff established issues of fact as to

the first three elements of the prima facie case.

Plaintiff failed to establish the final element of

the prima facie case.

The final element has been leniently

applied. Jones v. Western Geophysical Company of

America, 669 F.2d 280 (5th Cir. 1982), Howard v.

Roadway Express, Inc., 726 F.2d 1529 (11th Cir.

1984). In the present action, however, plaintiff’s

failure as to the final element emphasizes the

shortcomings of her entire action. Plaintiff has

failed to produce a scintilla of evidence that her

sex played a role in her dismissal.

Plaintiff’s only allegation bearing upon her

sex relates to a disparate treatment claim. The

crux of her argument hinges upon a characteriz-

ation of defendant Wall as a similarly situated

employee. Mr. Wall, however, was the plaintiff’s

supervisor.

(Appendix B, pages 10-11)

The court thus held that while there were genuine

issues of material fact on three of what the trial judge felt

were the four factual elements of a gender discrimination

claim, no reasonable inference could be drawn from the

depositions and affidavits that her mistreatment was gen-

der-based. He did not address the pretext issue.

Although the Colorado Court of Appeals “dis-

agree[d] with the trial court that plaintiff failed to

establish all elements of a prima facie case of sex discrimi-

nation,” Appendix A, pages 6-7; 969 P.2d at 742, it

affirmed the grant of summary judgment on a different

ground, i.e., because it felt Ms. Brawner-Ahlstrom failed

to rebut respondents’ evidence of a legitimate, non-dis-

criminatory motive for discharge. It held that, “Defen-

dants are entitled to summary judgment unless plaintiff

produces either direct evidence of discrimination or evi-

dence that defendants’ proffered reason for the action

was pretextual, with discrimination being the underlying

purpose.” Id.

| )

The Court reached this conclusion even though it

acknowledged that because of her excellent performance

ratings shortly before discharge, the question of whether

“plaintiff was qualified for her position when she was

terminated and whether any adverse employment deci-

sions were made despite such qualifications are disputed

issues of fact.” Id.

This holding means that in the lower court's view, evi-

dence of pretext coupled with evidence of disparate treat-

ment does not raise an inference of discriminatory animus

sufficient to rebut the employer’s alleged legitimate, non-

discriminatory reason for discharge. It also means that dis-

crimination claimants must produce evidence in addition to

what they have offered to establish a prima facie case to create

a factual issue about their pretext claim.

+

REASONS FOR ISSUING THE WRIT

The Colorado Court of Appeals held that evidence of

pretext does not create an inference of discrimination and

that pretext alone is insufficient to defeat summary judg-

ment where the employer has offered a facially legiti-

mate, non-discriminatory explanation for discharge. The

court thus required gender discrimination plaintiffs to

show either intentional discrimination or direct evidence

of discriminatory intent in addition to making a prima

facie case and showing pretext.

This additional requirement stands in sharp conflict

with the less burdensome requirements established by

this Court for defeating an employer’s motion for sum-

mary judgment. See, e.g., McDonnell Douglas Corporation v.

10

Green, 411 U.S. 792 (1973), Texas Department of Community

Affairs v. Burdine, 450 U.S. 248 (1981), and St. Mary’s

Honor Center v. Hicks, 509 U.S. 502 (1993). |

In McDonnell Douglas, the Court held that the com-

plainant has the initial burden of establishing a prima facie

case of discrimination, and that this burden may be satis-

fied if he shows “(i) that he belongs to a racial minority;

(ii) that he applied and was qualified for a job for which

the employer was seeking applicants; (iii) that, despite

his qualifications, he was rejected; and (iv) that, after his

rejection, the position remained open and the employer

continued to seek applicants from persons of complain-

ant’s qualifications.” Id. at 802.

If the complainant satisfies his burden of establishing

a prima facie case, the burden shifts to the employer to

“articulate some legitimate, nondiscriminatory reason for

the [complainant’s] rejection.” Id. Once the employer

articulates such a reason, the complainant must then “be

given a full and fair opportunity to demonstrate by com-

petent evidence that the presumptively valid reasons for

his rejection were in fact a coverup for a racially discrimi-

natory decision.” Id. at 805; Burdine, at 252-253. In show-

ing pretext, it is especially relevant for the complainant to

produce evidence that Caucasian persons committed acts

which were similar to those of the complainant and were

nevertheless rehired. McDonnell Douglas at 804. Further-

more, a complainant may show pretext either by

“directly” proving “that a discriminatory reason more

likely motivated the employer or indirectly by showing

that the employer’s proffered explanation is unworthy of

credence.” Burdine, at 256.

-

;

f

; :

ee ne |

11

This latter holding was reiterated in St. Mary’s Honor

Center: “[T)he factfinder’s disbelief of the reasons put

forward by the defendant (particularly if disbelief is

accompanied by a suspicion of mendacity) may, together

with the elements of the prima facie case, suffice to show

intentional discrimination. Thus, rejection of the defen-

dant’s proffered reasons will permit the trier of fact to

infer the ultimate fact of intentional discrimination,

and ... ‘[n]o additional proof of discrimination is

required.’ ” Id. at 511.

It has been echoed by all eleven federal circuit courts

of appeal. See, e.g., Randall v. City of Aurora, 69 F.3d 441,

451 (10th Cir. 1995) (“A showing of pretext is evidence

which allows a jury to infer discriminatory intent.”); Con-

ner v. Schnuck Markets, Inc., 121 F.3d 1390, 1397, note 6

(10th Cir. 1997) (“A plaintiff must produce either direct

evidence of discrimination or evidence that the defen-

dant’s proffered reason was pretextual in addition to

establishing a prima facie case in order to survive sum-

mary judgment.”) (emphasis added); Smith v. Stratus

Computer, Inc., 40 F.3d 11, 16 (1st Cir. 1994), cert. denied,

514 U.S. 1108 (1995); Holt v. KMI-Continental, Inc., 95 F.3d

123, 129 (2d Cir. 1996), cert. denied, 117 S.Ct. 1819 (1997);

Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994); Evans v.

Technologies Applications & Service Company, 80 F.3d 954,

960 (4th Cir. 1996); Bodenheimer v. PPG Industries, Inc., 5

F.3d 955, 958 (5th Cir. 1993); Boyd v. Harding Academy of

Memphis, Inc., 88 F.3d 410, 414-15 (6th Cir. 1996); Anderson

v. Baxter Healthcare Corporation, 13 F.3d 1120, 1124-26 (7th

Cir. 1994); Thomas v. Runyon, 108 F.3d 957, 960-61 (8th Cir.

1997); Wallis v. J.R. Simplot Company, 26 F.3d 885, 890-91

12

(9th Cir. 1994); Combs v. Plantation Patterns, 106 F.3d 1519,

1543 (11th Cir. 1997).

The opinion of the Colorado Court of Appeals is thus

in stark conflict with the opinions of this Court in McDon-

nell Douglas, Burdine, and St. Mary’s Honor Center and

with the opinions of all eleven federal circuits.

«

CONCLUSION

The Colorado Court of Appeals has imposed a new

and substantial burden on discrimination claimants faced

with an employer’s motion for summary judgment based

upon a facially legitimate, non-discriminatory reason for

the employment action. Certiorari should be granted

because that burden has not been imposed, and indeed,

has been specifically rejected, by this Court and by all

eleven federal circuits. Certiorari and reversal will insure

that state courts in Colorado will apply federal anti-

discrimination law in a manner consistent with the opin-

ions of the courts of the United States.

Respectfully submitted,

*RALPH OGDEN

Witcox & Ocpen, P.C.

1750 Gilpin Street

Denver, Colorado 80218

303-399-5005

STEVEN U. MULLENS

StevEN U. Mut tens, P.C.

P.O. Box 2940

Colorado Springs, Colorado 80901

719-632-5001

Attorneys for the Petitioner

“Counsel of Record

APPENDIX A

Opinion of the Colorado Court of Appeals,

969 P.2d 738 (Colo.App. 1998)

App. 1

COLORADO COURT OF APPEALS April 30, 1998

No. 96CA1733

Vicky Brawner-Ahlstrom,

Plaintiff-Appellant,

v.

Robert J. Husson, Gary Pon, and James Wall,

Defendants-Appellees.

Appeal from the District Court of the

City and County of Denver

Honorable John W. Coughlin, Judge

No. 95CV2250

Division III JUDGMENT AFFIRMED

Opinion by JUDGE PLANK

Casebolt and Pierce’, JJ., concur

Steven U. Mullens, P.C., Steven U. Mullens, Colorado

Springs, Colorado; James A. Carleo, Pueblo, Colorado;

Wilcox & Ogden, P.C., Ralph Ogden, Denver, Colorado

Springs, Colorado, for Plaintiff-Appellant

Overton & Feeley, P.C., Thomas J. Overton, Jane G.

Ebisch, Denver, Colorado; Gale A. Norton, Attorney Gen-

eral, Martha Phillips Allbright, Chief Deputy Attorney

General, Richard A. Westfall, Solicitor General, Thomas

* Sitting by assignment of the Chief Justice under

provisions of the Colo. Const. art. VI, Sec. 5(3), and §24-51-1105,

C.R.S. 1997,

App. 2

C. Sullivan, Assistant Attorney General, Denver, Colo-

rado, for Defendants-Appellees

In this sex discrimination case, plaintiff, Vicky

Brawner-Ahlstrom, appeals the summary judgment

entered by the trial court in favor of defendants, Robert J.

Husson, Gary Pon, and James Wall. We affirm.

Plaintiff was employed by the Colorado Compensa-

tion Insurance Authority (CCIA), where she supervised

employees in the mail and records department. In June

1992, plaintiff informed her supervisor, defendant Wall,

that a mailroom employee had opened by mistake a per-

sonal and confidential letter addressed to defendant Hus-

son, vice president of CCIA’s benefits and claims

administration. Wall told Husson, who then told defen-

dant Pon, Wall’s supervisor and CCIA’s president-general

manager, about the incident.

Thereafter, rumors about the letter began to circulate

within the CCIA. Plaintiff stated that defendants Wall

and Husson began to treat her differently than they had

in the past. In February 1993, Wall asked plaintiff if she

had made a copy of the letter to Husson. From that

inquiry, she inferred that she was considered to be

responsible for the rumors.

In response to an unrelated complaint from a subor-

dinate, an investigation concerning plaintiff was con-

ducted, after which plaintiff was found to be derelict in

her duties. She was relieved of her supervisory duties,

placed on probation, and given ninety days in which to

relocate to another position within the CCIA.

Thereafter, claiming emotional distress, plaintiff did

not report for work. She filed a workers’ compensation

App. 3

claim which is not at issue in this appeal. Plaintiff was

terminated in May 1993 for job abandonment.

In May 1995, plaintiff filed a complaint, pursuant to

42 U.S.C. §1983 (1994), in which she claimed that defen-

dants, in their individual capacities and acting under

color of state law, had violated her right to equal protec-

tion by discriminating against her on the basis of her

gender.

Plaintiff alleged that defendants had assumed that

she started rumors about the letter because she is a

woman. Plaintiff claimed that defendants embarked upon

a campaign to drive her from the workplace because of

what she knew about the letter, that defendants arbi-

trarily terminated her employment for that reason, that

neither Husson nor Wall was punished by Pon for their

involvement in the situation, and that defendants’ con-

duct constituted gender-based disparate treatment and

discrimination which was constitutionally prohibited.

Finding that plaintiff had failed to establish all ele-

ments of a prima facie case of sex discrimination, the trial

court granted defendants’ motion for summary judgment.

This appeal followed.

I.

Plaintiff contends that the trial court erred in grant-

ing summary judgment. We disagree.

A. Summary Judgment

Summary judgment is a drastic remedy that is war-

ranted only on a clear showing that there is no genuine

App. 4

issue as to any material fact and that the moving party is

entitled to judgment as a matter of law. C.R.C.P. 56;

Greenberg v. Perkins, 845 P.2d 530 (Colo. 1993).

The party moving for summary judgment bears the

burden of establishing the lack of a triable factual issue,

and if there are any doubts as to the existence of such an

issue, they must be resolved against that party. Greenberg

v. Perkins, supra.

The party opposing summary judgment is entitled to

the benefit of all favorable inferences that may be drawn

from the facts contained in the record. Churchey v. Adolph

Coors Co., 759 P.2d 1336 (Colo. 1988).

Appellate review of a judgment granting a motion for

summary judgment is de novo. Aspen Wilderness Workshop,

Inc. v. Colorado Water Conservation Board, 901 P.2d 1251

(Colo. 1995).

B. Prima Facie Case

The federal statute at issue, 42 U.S.C. §1983, creates a

private right of action for damages and injunctive relief

against state actors who deprive a person of rights, privi-

leges, or immunities secured by the Constitution and

laws. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d

492 (1961), overruled in part on other grounds, Monell v.

New York City Department of Social Services, 436 U.S. 658,

98 S.Ct. 2018, 65 L.Ed.2d 611 (1978).

As a general rule, to state a claim of discrimination

under §1983 in the context of employment, a plaintiff

must show: (1) that plaintiff is a member of a protected

class; (2) that plaintiff was qualified for the position at

i ance

App. 5

issue; (3) that defendants made an adverse employment

decision despite the plaintiff’s qualifications; and (4) that

the position in question was ultimately filled by a person

not a member of the protected class. See St. Mary’s Honor

Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed. 2d

407 (1993). See also McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (outlining

elements of prima facie test under Title VII of the Civil

Rights Act of 1964); Southard v. Texas Board of Criminal

Justice, 114 F.3d 539 (Sth Cir. 1997) (applying the same

prima facie test to discrimination claims under Title VII

and §1983).

However, the burden of proving a prima facie case is

not an onerous one. A plaintiff must show by a prepon-

derance of the evidence that the adverse action was taken

by an employer under circumstances which give rise to

an inference of unlawful discrimination. Proof that a dis-

charged employee was replaced by a person not a mem-

ber of the same protected class is not the only way to

create such an inference. See Texas Department of Commu-

nity Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67

L.Ed.2d 207 (1981).

Thus, the concept of a prima facie case is a flexible

standard that may be modified to relate to different fac-

tual situations. Mohammed v. Callaway, 698 F.2d 395 (10th

Cir. 1983). For example, in the context of an age discrimi-

nation claim, replacement by a person outside the pro-

tected class is no longer deemed to be a proper element of

the prima facie case. See O'Connor v. Consolidated Coin

Caterers Corp., 517 U.S. 308, 116 S.Ct. 1307, 134 L.Ed.2d

433 (1996).

App. 6

Here, the record indicates that plaintiff is a member

of a gender-based protected class who was discharged

from a position for which she was once qualified. It is

undisputed that plaintiff received positive annual job

performance evaluations from 1988 to 1992, that her per-

formance was rated as either distinguished or exceeding

expectations, and that both Wall and Pon wrote positive

comments about her job performance.

The record also contains evidence that plaintiff was

not the only female employee aware of the letter to Hus-

son, that the investigation into plaintiff's performance

began as a result of a complaint by a female employee

under her supervision, that the investigation revealed

various instances of mismanagement, and that plaintiff

was found to be derelict in her duties for reasons unre-

lated to the disclosure of the personal letter to Husson.

Thus, whether plaintiff was qualified for her position

when she was terminated and whether any adverse

employment decisions were made despite such qualifica-

tions are disputed issues of fact.

Although the record contains undisputed evidence

that plaintiff was replaced with a member of the same

protected class, it has been held that such replacement

could itself be “a pretextual device specifically designed

to disguise an action of discrimination.” Howard v. Road-

way Express, Inc., 726 F.2d 1529, 1532 (5th Cir. 1984). Thus,

under the rule of Roadway Express, with which we agree, a

prima facie case can be established notwithstanding

replacement by a member of the same protected class.

Here, we disagree with the trial court that plaintiff

failed to establish all elements of a prima facie case of sex

a ——— =

App. 7

discrimination. However, because we may affirm a trial

court’s correct result, even if it employed incorrect rea-

soning, see Biel v. Alcott, 876 P.2d 60 (Colo. App. 1993), it

is appropriate for us to continue with the burden shifting

analysis. See Cone v. Longmont United Hospital Ass'n, 14

F.3d 526 (10th Cir. 1994).

C. Burden of Proof

The burden of proof is placed upon a plaintiff to

establish a prima facie case of discrimination. If the plain-

tiff establishes such a case, a presumption then arises that

the employer unlawfully discriminated against the plain-

tiff. This presumption places upon defendants the burden

of producing an explanation to rebut the prima facie case,

i.e., the burden of producing evidence that the adverse

employment actions were taken for a legitimate, non-

discriminatory reason. St. Mary’s Honor Center v. Hicks,

supra.

If defendants’ reasons suffice to rebut the presump-

tion of discrimination created by plaintiff’s prima facie

case, plaintiff must then show that defendants’ reasons

are a pretext for discrimination. In a summary judgment

setting, the plaintiff must raise a genuine factual question

as to whether defendants’ reasons are pretextual. Drake v.

City of Fort Collins, 927 F.2d 1156 (10th Cir. 1991).

In such case, the presumption previously raised by a

plaintiff’s proof of a prima facie case is rebutted and drops

from the case. St. Mary’s Honor Center v. Hicks, supra.

Thus, the existence of a prima facie case does not neces-

sarily preclude judgment as a matter of law against the

plaintiff. See Ingels v. Thiokol Corp., 42 F.3d 616 (10th Cir.

App. 8

1994). Even if plaintiff established a prima facie case,

defendants are entitled to summary judgment unless

plaintiff produces either direct evidence of discrimination

or evidence that defendants’ proffered reason for the

action was pretextual, with discrimination being the

underlying purpose. See Conner v. Schnuck Markets, Inc.,

121 F.3d 1390 (10th Cir. 1997).

In the summary judgment context, plaintiff must pre-

sent evidence sufficient for a factfinder reasonably to

conclude that the decision to terminate her employment

was driven by a discriminatory animus. A district court’s

grant of summary judgment to an employer will be

upheld if the record is devoid of adequate direct or

circumstantial evidence of the employer’s discriminatory

intent. See Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670 (1st

Cir. 1996).

Here, with their motion for summary judgment,

defendants attached affidavits and exhibits which

included a summary of the investigation into plaintiff’s

job performance, a letter to plaintiff requesting that she

return to work, and a CCIA human resources document

indicating that plaintiff was terminated for job abandon-

ment. None of these documents indicates that plaintiff’s

demotion and termination were related to the disclosure

of Husson’s personal letter, nor do they in any way relate

to her gender. The reasons articulated by defendants to

explain plaintiff's employment termination are specific,

reasonable, and sufficient to rebut the presumption of

discrimination created by a prima facie case.

In response to the motion for summary judgment,

plaintiff submitted her affidavit. She reiterated the facts

App. 9

and allegations in her complaint, including her 1988-1992

job performance evaluations. However, she failed to pro-

duce evidence raising a genuine factual question as to

whether the articulated reasons for her termination were

pretextual and whether the true reasons were discrimina-

tory. We agree with that part of the trial court’s order

which found that plaintiff “failed to produce a scintilla of

evidence that her sex played a role in her dismissal.”

Absent such evidence, plaintiff failed to meet her burden

of proof.

Thus, notwithstanding the existence of a prima facie

case of sex discrimination, we conclude that plaintiff

failed to show that defendants’ stated nondiscriminatory

reasons for her termination were a pretext. Based on the

foregoing conclusion, we find it unnecessary to address

the other arguments raised by the parties as to this issue.

We also find that plaintiff’s appeal is not frivolous.

Thus, defendants’ request for costs and attorney fees is

denied. See Wood Bros. Homes, Inc. v. Howard, 862 P.2d 925

(Colo. 1993).

The judgment is affirmed.

JUDGE CASEBOLT and JUDGE PIERCE concur.

APPENDIX B

Order Granting Summary Judgment, Entered by

the District Court for the City and

County of Denver, Case No. 95CV2250

App. 10

DISTRICT COURT, CITY AND COUNTY OF DENVER,

STATE OF COLORADO

Case No. 95 CV 2250 Courtroom 3

ORDER

VICKY BRAWNER-AHLSTROM,,

Plaintiff,

v.

ROBERT J. HUSSON, GARY PON, JAMES WALL, and

ALEXIS RISK MANAGEMENT COMPANY,

Defendants.

THIS MATTER comes before the court on defen-

dants’, Husson, Pon, and Wall, motion for summary judg-

ment.

C.R.C.P. 56 permits the entry of summary judgment

where no genuine issue of material fact is necessary to

the determination.

The elements of a prima facie case of sex discrimina-

tion are that the plaintiff is within the protected group,

that the plaintiff was doing satisfactory work, that the

plaintiff was discharged, and that the plaintiff’s position

was filled by a person not in the protected class. Cone v.

Longmount United Hospital Association, 14 F.3d 516, 529

(10th Cir. 1994).

App. 11

The plaintiff established issues of fact as to the first

three elements of the prima facie case. Plaintiff failed to

establish the final element of the prima facie case.

The final element has been leniently applied. Jones v.

Western Geophysical Company of America, 669 F.2d 280 (5th

Cir. 1982), Howard v. Roadway Exp., Inc., 726 F.2d 1529

(11th Cir. 1984). In the present action, however, plaintiff’s

failure as to the final element emphasizes the shortcom-

ings of her entire action. Plaintiff has failed to produce a

scintilla of evidence that her sex played a role in her

dismissal.

Plaintiff’s only allegation bearing upon her sex

relates to a disparate treatment claim. The crux of her

argument hinges upon a characterization of defendant

Wall as a similarly situated employee. Mr. Wall, however,

was the plaintiff’s supervisor.

The motion for summary judgment is GRANTED.

DATED this 28 day of Aug., 1996.

BY THE COURT:

/s/ J. W. Coughlin

John W. Coughlin

District Court Judge

cc: All Counsel

APPENDIX C

Order of the Colorado Court of Appeals

Denying the Petition for Rehearing

App. 12

THE COURT OF APPEALS OF THE

STATE OF COLORADO

Case Number 96CA1733

ORDER

VICKY BRAWNER-AHLSTROM V ROBERT J. HUSSON

ET AL

Upon consideration of the Petition for Rehearing filed by

the Plaintiff-Appellant herein, the Petition is hereby

DENIED. It is ordered that issuance of the Mandate is

stayed to and including July 27, 1998 provided that if a

Petition for Writ of Certiorari is timely filed with the

Supreme Court of the State of Colorado, the stay shall

remain in effect until disposition of the cause by the

Supreme Court.

BY THE COURT:

Plank, J.

Casebolt, |.

Pierce, J.

DATED: June 25, 1998

APPENDIX D

Mandate of the Colorado Court of Appeals

App. 13

Appeal from the District Court of the City and County of

Denver, State of Colorado, to the Colorado Court of

Appeals. Opinion issued & judgment entered April 30,

1998, before Plank, Casebolt and Pierce, JJ.

COURT OF APPEALS, STATE OF COLORADO

2 East Fourteenth Avenue, Suite 300

Denver, Colorado 80203

(303) 837-3785

MANDATE

Court of Appeals No. 96CA1733

Trial Court No. 95CV2250

VICKY BRAWNER-AHLSTROM V ROBERT J. HUSSON,

ET AL

This cause came to be heard on the record on appeal from

the District Court of the City and County of Denver, State

of Colorado, and was argued by counsel. On consider-

ation thereof, it is ordered that the Judgment of said

Court is AFFIRMED.

DATE: January 28, 1999

(SEAL) PATRICK STANFORD,

Clerk of the Court

By: /s/ Cathleen Abeyta

Deputy Court Clerk

COURT OF APPEALS, STATE OF COLORADO

Certified to be a full, true and correct copy

Date: January 28, 1999

Clerk of Court of Appeals

By: Cathleen Abeyta

Deputy Clerk

APPENDIX E

Order of the Colorado Supreme Court

Denying the Petition for Certiorari

App. 14

SUPREME COURT, STATE OF COLORADO

CASE NO. 98SC405

CERTIORARI TO THE COLORADO COURT OF

APPEALS, 96CA1733

DISTRICT COURT, CITY & COUNTY OF DENVER,

95CV2250

ORDER OF COURT

VICKY BRAWNER-AHLSTROM,

Petitioner,

v.

ROBERT J. HUSSON, GARY PON, and JAMES WALL,

Respondents.

Upon consideration of the Petition for Writ of Cer-

tiorari to the Colorado Court of Appeals, and after review

of the record, briefs, and the judgment of said Court of

Appeals,

IT IS THIS DAY ORDERED that the Petition for Writ

of Certiorari shall be, and the same hereby is, DENIED.

BY THE COURT, EN BANC, JANUARY 11, 1999.

JUSTICE MARTINEZ would grant as to the fol-

lowing issues:

Whether an employer’s motion for summary judgment in

a gender discrimination case should be granted even

though the plaintiff has made a prima facie case of dis-

crimination and has offered evidence of pretext in

response to employer’s claim that the plaintiff was fired

for legitimate, non-discriminatory reasons.

App. 15

Whether an inference of unlawful discrimination arises

once the plaintiff shows that the employer's allegedly

non-discriminatory reason for discharge was pretextual

and that similarly situated males were treated more

favorably, or whether, as the court of appeals held, the

plaintiff must also produce either direct evidence of dis-

crimination or direct evidence that the employer’s pro-

ferred reason was pretextual and that discrimination was

the underlying purpose disguised by the pretext.

Whether the petitioner’s evidence that she was qualified

for the job and had received exemplary performance rat-

ings two months before discharge, combined with the fact

that male workers involved in the same event were

treated less harshly, is sufficient evidence of pretext to

defeat summary judgment.

In light of Colorado Civil Rights Commission v. Big O Tires,

Inc., 940 P.2d 397 (Colo. 1997) (rehearing denied), did the

court of appeals err in suggesting that when the employer

comes forward with a non-discriminatory intent and can-

not demonstrate both discriminatory intent and pretext

with the same evidence she produced to demonstrate a

prima facie case of discrimination.

App. 16

ey

Ralph Ogden

M. Anne Wilcox

1750 Gilpin Street

Denver, CO 80215

James A. Carleo

1401 Court Street

Pueblo, CO 81003

Steven U. Mullins

P.O. Box 2940

Colorado Springs, CO

80901-2940

Jane Ebisch

[Thomas |]. Overton

1120 Lincoln Street, #1120

Denver, CO 80203

Thomas J. Sullivan

Assistant Attorney General

Patrick Stanford, Clerk

Colorado Court of Appeals

Clerk of District Court City

& County Building

1437 Bannock, Room 256

Denver, CO 80202

Honorable John W.

Coughlin

City & County Building

1437 Bannock, Room 256

Denver, CO 80202