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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 1004

## Text

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

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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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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1591%3A1. Public record. Not legal advice.