PHILIP A. BRIMMER, District Judge.
This matter is before the Court on the Recommendation of United States Magistrate Judge (the "Recommendation") [Docket No. 53] filed on January 13, 2012. In the Recommendation, the magistrate judge recommends that the Court grant defendants' motion for summary judgment [Docket No. 31]. Plaintiff filed objections to the Recommendation on January 27, 2012 [Docket No. 54], and the Court will therefore "determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3). Jurisdiction over this matter is based on 28 U.S.C. § 1331.
The Recommendation contains a thorough discussion of the factual background. The Court, therefore, provides only a brief summary for purposes of introducing the discussion of the pending motion.
Plaintiff began working at the Timbers Hotel as the Director of Human Resources in August 2007.
The Loan Fund thereafter created Timbers Group, LLC, and the Loan Fund and Timbers Group, LLC formed defendant Peoria/Timbers Joint Venture (the "Joint Venture").
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994); see also Ross v. The Board of Regents of the University of New Mexico, 599 F.3d 1114, 1116 (10th Cir. 2010). A disputed fact is "material" if under the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & County of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). When reviewing a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id.; see McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010).
Plaintiff claims that defendants terminated her employment due to gender discrimination and in retaliation for protected activity in violation of Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. § 2000e et seq.
Because plaintiff presents no direct evidence of discrimination on account of sex, the Court must apply the burden-shifting analysis outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). The first step of that analysis requires plaintiff to identify evidence supporting a prima facie case of gender discrimination.
After a plaintiff presents a prima facie case, the burden shifts to defendants to identify "a legitimate, nondiscriminatory reason for its employment decision." Sanders v. Sw. Bell Tel., L.P., 544 F.3d 1101, 1105 (10th Cir. 2008). Defendants presented evidence that Mr. Skinner had concerns about plaintiff's failure to prepare a budget or a business plan, to hire a director of sales, to ensure that the sales department participated in a nearby exposition, and to complete an assignment regarding certain invoices. Defendants also put forward evidence that Mr. Skinner was unhappy with plaintiff's lack of urgency and professionalism, as well as the low performance of her staff. These constitute legitimate, nondiscriminatory reasons for plaintiff's termination.
"If the employer comes forward with a nondiscriminatory reason for its actions, the burden then reverts to the plaintiff to show that there is a genuine dispute of material fact as to whether the employer's proffered reason for the challenged action is pretextual — i.e., unworthy of belief." Id. (citation and quotation marks omitted). The Court agrees with the Recommendation that plaintiff has not presented evidence showing "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons." Jaramillo v. Colo. Judicial Dep't, 427 F.3d 1303, 1308 (10th Cir. 2005). In her objections, the plaintiff points out that she had the necessary experience for the job and had increased occupancy rates and revenues. See Docket No. 54 at 5. These facts, however, do not refute most of the stated reasons for her termination, nor do they address whether defendants believed their proffered reasons. Furthermore, in her objections, plaintiff no longer appears to assert that the "real reason" for her termination was gender. Instead, she asserts, without record citation, that she "has provided evidence that the real reason she was terminated was due to the Defendants' retaliation after [she] rais[ed] her concerns about Mr. Skinners' [sic] actions toward herself and other employees." Docket No. 54 at 6 ("The raising of the issues by [plaintiff] is a protected action and [plaintiff] has established that there is significant [sic] dispute in [sic] fact to allow a jury to determine whether or not the actions of the Defendants were wrongful."). Consequently, the Court will accept the Recommendation's conclusion that defendants are entitled to summary judgment on plaintiff's gender discrimination claim.
The Court now turns to plaintiff's retaliation claim. For plaintiff to survive summary judgment, she must present evidence in support of a prima facie case of retaliation. To do so, she must "demonstrate (1) that [s]he engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action." Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006) (footnote omitted). The Court finds that plaintiff has failed to present sufficient evidence to permit a factfinder to conclude that she engaged in protected activity. "Although no magic words are required, to qualify as protected opposition the employee must convey to the employer his or her concern that the employer has engaged in a practice made unlawful by [anti-discrimination statutes]." Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008).
Plaintiff contends that, during the January 27, 2009 meeting that precipitated her termination, she raised "concerns" about Mr. Skinner's behavior. See Docket No. 54 at 7. The evidence plaintiff cites in support of those vague assertions do not reveal that she complained of conduct prohibited by Title VII. See Docket No. 49-2 at 49-50 (testifying that, during the January 27, 2009 meeting, Mr. Skinner expressed his disappointment "about Sysco and the sales manager" after which plaintiff expressed her desire to "discuss some of the things that have happened here" such as Mr. Skinner "screaming" at her and calling her a liar in front of her staff); see Docket No. 49-2 at 53 ("I believe I was retaliated against for being a spokesperson for the hotel as a general manager.").
Although plaintiff failed to present evidence of retaliation prohibited by Title VII during the January 27, 2009 meeting, she has identified inappropriate racial, gender, and sexual comments by Mr. Skinner that she contends created a hostile work environment. See Docket No. 49 at 10; Docket No. 54 at 6.
In order to prove a claim of sex discrimination based on a hostile work environment, "a plaintiff must show (1) that she was discriminated against because of her sex; and (2) that the discrimination was sufficiently severe or pervasive such that it altered the terms or conditions of her employment and created an abusive working environment." Pinkerton v. Colorado Dep't of Transp., 563 F.3d 1052, 1058 (10th Cir. 2009). Even assuming plaintiff could establish that Mr. Skinner's conduct toward her was "because of her sex,"
The Recommendation, interpreting plaintiff's third and fourth claims to be duplicative, addressed them both pursuant to Title VII. Plaintiff did not object to this interpretation. Nevertheless, the Court notes that plaintiff's third claim for relief is entitled "wrongful discharge," whereas the fourth claim for relief specifically invokes Title VII. Therefore, the Court concludes that the third claim for relief arises under state law. Because the Court will grant summary judgment to defendants on all plaintiff's federal claims, the Court declines to exercise supplemental jurisdiction over plaintiff's wrongful discharge claim. See 28 U.S.C. § 1367(c)(3); see also Bauchman v. West High School, 132 F.3d 542, 549 (10th Cir. 1997) ("If federal claims are dismissed before trial, leaving only issues of state law, `the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice.'") (quoting Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 (1988)); cf. Brooks v. Gaenzle, 614 F.3d 1213, 1230 (10th Cir. 2010) ("`Notions of comity and federalism demand that a state court try its own lawsuits, absent compelling reasons to the contrary.'") (quoting Ball v. Renner, 54 F.3d 664, 669 (10th Cir. 1995)). The Court will therefore dismiss plaintiff's third claim for relief without prejudice.
For the foregoing reasons, it is