Summary
finding hostile work environment claim falls "far short" of demonstrating pervasive or severe workplace harassment where only one comment relates to plaintiff's gender and only one comment relates to her age over her long employment with defendant
Summary of this case from Tonello v. City of Grand JunctionOpinion
Civil Action No. 11–cv–00968–REB–KLM.
2013-04-3
Kathleen CHYTKA, Plaintiff, v. WRIGHT TREE SERVICE, INC., Defendant.
Kathleen Chytka, Denver, CO, pro se. Brett C. Painter, Davis Graham & Stubbs, LLP, Denver, CO, for Defendant.
Kathleen Chytka, Denver, CO, pro se. Brett C. Painter, Davis Graham & Stubbs, LLP, Denver, CO, for Defendant.
ORDER ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
BLACKBURN, District Judge.
This matter is before me on the following: (1) the plaintiff's Motion for Summary Judgment [# 81] filed May 29, 2012; (2) the Defendant's Motion for Summary Judgment [# 115] filed August 16, 2012; and (3) the Recommendation of United States Magistrate Judge [# 146] filed November 13, 2012. The plaintiff filed five separate documents [# 156, # 157, # 158, # 160, & # 161], which, with a modicum of judicial munificence, can be read as objections to the recommendation. The defendant filed a response [# 175] to the plaintiff's objections. I overrule the plaintiff's objections, approve and adopt the recommendation, deny the plaintiff's motion, deny the defendant's motion in part, and grant the defendant's motion in part.
“[# 81]” is an example of the convention I use to identify the docket number assigned to a specific paper by the court's case management and electronic case filing system (CM/ECF). I use this convention throughout this order.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which the plaintiff objects. I have considered carefully the recommendation, the objections, and the applicable case law.
The plaintiff is proceeding pro se. Thus, I have construed her pleadings and other filings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir.2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
The plaintiff, Kathleen Chytka, is a former employee of the defendant, Wright Tree Service, Inc. In 2011, Wright Tree terminated Ms. Chytka's employment. In her complaint [# 13], Ms. Chytka asserts claims under Title VII for hostile work environment, gender discrimination, disparate treatment, and retaliation. In addition, Ms. Chytka asserts claims under the Fair Labor Standards Act, the Age Discrimination in Employment Act, the Equal Pay Act, and the Employee Retirement Income Security Act. Finally, Ms. Chytka asserts state law claims for unjust enrichment and promissory estoppel.
In the recommendation [# 146], the magistrate judge analyzed thoroughly each of the claims and the parties' arguments in support of their cross-motions for summary judgment. I agree with the analysis and conclusions of the magistrate judge. Having reviewed the plaintiff's objections [# 156, # 157, # 158, # 160, & # 161] to the recommendation, I conclude that the plaintiff has not stated any valid objection to the recommendation.
THEREFORE, IT IS ORDERED as follows:
1. That any objections stated by the plaintiff in documents [# 156, # 157, # 158, # 160, & # 161] are OVERRULED;
2. That the Recommendation of United States Magistrate Judge [# 146] filed November 13, 2012, is APPROVED and ADOPTED as an order of this court;
3. That the plaintiff's Motion for Summary Judgment [# 81] filed May 29, 2012, is DENIED;
4. That the plaintiff's retaliation claim, her Eighth Claim for Relief, is DISMISSED without prejudice for lack of subject matter jurisdiction;
5. That the portions of the plaintiff's age and gender discrimination claims concerning the alleged failure to promote the plaintiff to Operations Manager, part of the plaintiff's Third and Fourth Claims for Relief, are DISMISSED without prejudice for lack of subject matter jurisdiction;
6. That the Defendant's Motion for Summary Judgment [# 115] filed August 16, 2012, is DENIED as to the plaintiff's claim of gender discrimination to the extent that claim is based on the defendant's alleged failure to train the plaintiff, part of the plaintiff's Fourth Claim for Relief;
7. That the Defendant's Motion for Summary Judgment [# 115] filed August 16, 2012, is GRANTED as to each of the plaintiff's other claims for relief;
8. That, thus, the one claim still pending in this case is the plaintiff's claim of gender discrimination to the extent that claim is based on the defendant's alleged failure to train the plaintiff, part of the plaintiff's Fourth Claim for Relief.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KRISTEN L. MIX, United States Magistrate Judge.
This matter is before the Court on Plaintiff's Motion for Summary Judgment [Docket No. 81; Filed May 29, 2012] (“Plaintiff's Motion)” and on Defendant's Motion for Summary Judgment [Docket No. 115; Filed August 16, 2012] (“Defendant's Motion”). Plaintiff proceeds in this matter as a pro se litigant. On August 17, 2012, Defendant filed a Response [# 117] to Plaintiff's Motion. Plaintiff did not file a Reply. On August 18, 2012, Plaintiff filed a Response [# 118] to Defendant's Motion. On September 24, 2012, Defendantfiled a Reply [# 128]. Pursuant to 28 U.S.C. § 636(b)(1)(A) and D.C.COLO.LCivR 72.1C.3., the Motion has been referred to this Court for a recommendation regarding disposition. The Court has reviewed the pleadings, the entire case file, and the applicable law and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that Plaintiff's Motion [# 81] be DENIED and that Defendant's Motion [# 115] be GRANTED in part and DENIED in part.
Because Plaintiff's Response exceeded the page limitations set by the District Judge, the Court struck pages 21–43 of the Response and granted Plaintiff leave to amend her Response. See Minute Order [# 126]. Plaintiff did not file an amended Response, and the Court does not here consider pages 21–43 of her Response.
I. Summary of the Case
The Court largely adopts Defendant's clear and well-supported statement of facts, where not contradicted by Plaintiff's evidence. See Def.'s Motion [# 115] at 2–7; Def.'s Response [# 117] at 7–9.
In the Amended Complaint [# 13], Plaintiff asserts ten claims against Defendant, her former employer: (1) hostile work environment; (2) violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq.; (3) age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621– 634; (4) gender discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq.; (5) disparate treatment in violation of Title VII; (6) violation of the Equal Pay Act (“EPA”), 29 U.S.C. § 206(d); (7) violation of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001, et seq.; (8) retaliation in violation of Title VII; (9) promissory estoppel; and (10) unjust enrichment.
3. Plaintiff attested to the veracity of her Amended Complaint, as demonstrated by the notarized “Verification” at the
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