DATE FILED: May 28, 2018 7:53 PM

LARIMER COUNTY DISTRICT COURT, STATE OF FILING ID: D5EB4D49884BA

COLORADO CASE NUMBER: 2017CV30516

201 LaPorte Ave.

Fort Collins, CO 80521
CHRISTINA BOUCHER,

Plaintiff,

v.

BOARD OF GOVERNORS OF THE COLORADO

STATE UNIVERSITY SYSTEM dba COLORADO
STATE UNIVERSITY,

Defendant.
COURT USE ONLY
CYNTHIA H. COFFMAN, Attorney General Case No. 2017CV30516
JULIANE DeMARCO, Assistant Attorney General*
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 10th Floor
Denver, CO 80203
Telephone: 720-508-6585
FAX: 720-508-6032
E-Mail: juliane.demarco@coag.gov
Registration Number: 45990
*Counsel of Record
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Defendant Board of Governors of the Colorado State University System (“CSU”) through

its counsel, the Colorado Attorney General and Assistant Attorney General Juliane DeMarco,

submits its summary judgment motion as to Plaintiff’s claim for retaliation.

STATEMENT OF FACTS

Plaintiff’s exclusion of Life Sciences students from her classes

1. In November 2013, Plaintiff emailed a faculty member in the Biochemistry and

Molecular Biology Department (“BMB”), asking for his assistance in getting a life sciences
student to drop her class and stating she would now have a course assignment designed to “get

these students to drop the course.” Ex. E, p. 2, Life Sciences Emails.

2. The faculty member forwarded the exchange to his department chair, Dr. Shing

Ho, who forwarded it to Plaintiff’s College Dean, Jan Nerger and Plaintiff’s Department Chair,

Dr. Darrell Whitley. Ex. E, pp. 1- 2, Life Sciences Emails (highlighted).

3. Dr. Ho expressed his concerns about Plaintiff’s exclusion of life sciences students

from her class indicated that Plaintiff was “not committed to the teaching mission.” Id., p. 1.

4. Dr. Whitley acknowledged the problem had arisen “in two of the two classes that

[Plaintiff] had taught thus far;” Dr. Whitley noted that Plaintiff’s unwillingness “to work with (or

teach) any non-[computer science] student now” was “unacceptable.” Id., p.4.

5. Dean Nerger stated she was “rather amazed at the tone of [Plaintiff’s] emails” and

noting “there are several aspects of this that are quite troubling, especially in such a young

faculty member.” Id., p. 4.

Plaintiff’s July 2014 interaction with the Denver Zoo regarding a grant

6. In July 2014, Plaintiff and a Grant Manager at the Denver Zoo exchanged emails

about Plaintiff’s request that the Zoo partner with Plaintiff on a grant. Ex. F, Zoo Emails.

7. Ultimately, the Grant Manager expressed her regrets that the Zoo couldn’t commit

without additional time; Plaintiff responded by chiding the Grants Manager stating she had “been

very disappointed in the lack of support” from the Zoo and promised she would “be contacting

someone in the future to tell them about her experience.” Id., p. 3.

8. Plaintiff’s email exchange with the Zoo was forwarded to CSU’s Director of

Development and, eventually, to Dr. Whitley. Ex. F, p. 1, Zoo Emails.

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 9. Dr. Whitley forwarded the email Dean Nerger expressing his concern that “[t]his

is a pattern at this point…we need to talk about this.” Ex. F, p. 1, Zoo Emails.

10. Dr. Whitley also followed up with Plaintiff. Ex. F, pp. 5-7, Zoo Emails.

Plaintiff’s interactions with Dr. Whitley concerning a draft NSF Letter

11. In 2014, Dr. Whitley and Plaintiff exchanged emails regarding Dr. Whitley’s draft

letter of support for Plaintiff’s NSF grant application. Ex. G, p. 4, July 2014 NSF email.

12. In the exchange, Dr. Whitley and Plaintiff disagreed about the extent of Plaintiff’s

permission to edit and whether or not Dr. Whitley needed to review the final version. Id.

13. On July 9, 2014, Dr. Whitley again emailed Dean Nerger, specifically noting

Plaintiff’s dealings with Dr. Shing Ho, the interaction with the Denver Zoo, and the recent

incident concerning the NSF letter. Ex. H, July 9, 2014 Whitley email.

14. Dr. Whitley identified these issues as “warning signs” and stated he “would like

to get [Dean Nerger’s] input about what to do.” Id.

Plaintiff’s allegations regarding her student, Basir

15. In Fall 2014, Plaintiff was advising a student, Basir, who she says “became very

difficult to work with.” Ex. A, Pl. Depo., p. 87:16-24.

16. Plaintiff and Dr. Ben-Hur subsequently agreed that Dr. Ben-Hur would become

Basir’s advisor. Ex. I, p. 1 Basir emails.

17. On October 7, 2014, Dr. Whitley met with Plaintiff about Basir. Ex. W, Whitley

Depo., p. 15:2-19.

18. During this meeting, Plaintiff talked with Dr. Whitley about her allegation that

“Basir had called [the Associate Dean from Veterinary Medicine] Sue VandeWoude, “an f’ing

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bitch.” Ex. A, Pl. Depo., p. 114:18-21.

19. Plaintiff “may have said something like” she had to write a letter of apology to

Dr. VandeWoude. Ex. A, Pl. Depo., pp. 109:21-110:2.

20. On September 30 2014, Plaintiff emailed Dr. Howe about Basir stating: “Finally,

the last straw was that he said some pretty offensive things to Sue VandeWoude (the associate

dean of vet med and the PI on the grant he is funded under. She was not pleased.” Ex. I, pp. 2-3

Basir emails. (emphasis added).

21. On October 11, 2014, Plaintiff emailed Dr. Ray and Dr. Papadopoulos stating:

“The student I had to deal with, I am pretty certain knew that calling the associate dean a

f@#@ing b@#@h and being rude to me is wrong and that she deserves an apology…Also, the

faculty member I brought this to their attention probably knew he should have responded.” Ex. I,

p. 4, Basir emails.

22. Dr. Whitley subsequently reached out to the Associate Dean, Dr. VandeWoude,

as well as other faculty members. Ex. W, Whitley Depo., p. 17:2-18:10; Ex. I, p. 5.

23. Dr. Whitley tried to apologize to Dr. VandeWoude because as far as he knew,

Basir “had called her a fucking bitch to her face and also that she was upset, that she had been

treated badly.” Ex. W, Whitley Depo., p. 20:16-24.

24. Dr. VandeWoude did not know what Dr. Whitley was talking about. Id.

Plaintiff’s allegations concerning Dr. Ben-Hur

25. Also in October 2014, Plaintiff made a complaint of alleged sexual harassment to

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Dr. Whitley and Dean Nerger. Ex. D, p. 2, EEOC Charge. 1

March 2015 annual evaluation

26. Faculty are evaluated in three areas: Instruction, Mentoring and Advising;

Research, Scholarship, and Creativity; and, University/ Professional/ Public Service and

Outreach. See e.g. Ex. J, p. 1, Annual Evals. and Ex. T, p. 3, Faculty Manual.

27. In her 2014 Annual Evaluation, for Instruction, Advising and Mentoring, Plaintiff

received a rating of Below Expectations. Ex. J, p. 1, Annual Evals.

28. Here, Dr. Whitley referenced Basir, noting “[w]ith regard to advising and

mentoring, one of [Plaintiff’s] students changed advisors” and the claims Plaintiff had made to

Dr. Whitley and other faculty members. Id.

29. Dr. Whitley noted when he followed up on Plaintiff’s claim about Basir, Dr.

VandeWoude told him the event never happened and that she had no knowledge of any letter of

apology. Ex. J, p. 1, Annual Evals.

30. Dr. Whitley concluded that Plaintiff “made inaccurate and misleading statements

about what happened.” Id.

31. He noted Plaintiff’s conduct violated Section D.9(c) of the Faculty Manual. Id.

32. Section D.9(c) is part of the Faculty Manual’s Code of Ethical Behavior; this

section indicated that faculty members are expected to “[m]aintain a high level of discretion and

1 Plaintiff alternatively contends that this meeting with Dr. Whitley occurred in “in or around the
end of October 2014,” Second Am. Compl., ¶ 37; “October 2014”, Ex. D. EEOC Charge; and
“Probably August -- August or September 2014;” Pl. Depo., p. 162:11-24. As demonstrated in
this motion, under any asserted versions, Defendant is entitled to summary judgment.

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respect in personal and professional relations with students, faculty members, staff and the

public.” Ex. T, Faculty Manual, p. 5.

33. For University/ Professional/ Public Service and Outreach, Plaintiff received a

rating of Below Expectations. Ex. J, p. 1, Annual Evals.

34. Dr. Whitley indicated that Plaintiff’s interactions with the Denver Zoo were less

than professional. Id.

35. For Research, Scholarship, and Creative Activity, Plaintiff received a rating of

Meets Expectations. Id.

36. In this area, Dr. Whitley noted the interaction that he and Plaintiff had concerning

Plaintiff’s NSF Career Award. Id.

37. The language regarding the NSF letter was later removed, but Plaintiff did not

sign the revised evaluation. Id. p. 2.

April 2015 Midpoint Review

38. In 2015, Plaintiff was in her third year with CSU when a “midpoint review” of

tenure-track faculty members is conducted. Ex. T, Faculty Manual, p. 7.

39. The review is initially conducted by a committee consisting of faculty;

specifically here, the Promotion and Tenure Committee (P&T Committee). Id. p. 8; Ex. K.

40. The P&T Committee will select one of three outcomes, the most favorable is:

“The faculty member is making satisfactory progress toward tenure and promotion.” Ex. T,

Faculty Manual, p. 8.

41. The report (and any response from the faculty member) is then forwarded to the

department head, the college, and the Provost each of whom may add written comments. Id. p. 8.

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 42. A midpoint review, like other performance reviews, is “intended to facilitate

continued professional development, to refocus professional efforts when appropriate, to assure

that faculty members are meeting their obligations to the University, and to assist faculty in

achieving tenure and promotion.” Ex. T.

The P&T Committee’s Midpoint review letter

43. The P&T Committee’s midpoint review letter concerning Plaintiff provided the

most favorable available report. Ex. K, p. 2, Midpoint Review Docs.

44. The vote by the Committee, recorded in the same letter, was 14-0-0. Id.

45. The vote in favor of the letter included Dr. Ben-Hur’s vote. Id.

46. Plaintiff characterizes the P&T committee’s midpoint letter as “positive.” Ex. A,

Pl. Depo., p. 36:20-21.

47. Prior to the letter’s completion, the P&T Committee met on April 3 and April 10,

2015 to discuss Plaintiff’s midpoint review. Ex. K, p. 1, Midpoint Review Docs.

48. Plaintiff didn’t attend the P&T Committee meetings. Ex. A, Pl. Depo., p. 19:9-11.

49. Plaintiff contends that Dr. McConnell told her what Dr. Whitley said at the P&T

Committee meeting; 2 Plaintiff stated “I don’t remember so clearly. I think it was more general,

like he was campaigning to have me downgraded….there [were] two evaluations, and [Dr.

Whitley] had brought the second evaluation and was trying to sat the fact that I need to sign this

second evaluation, that I signed the first evaluation. But that’s as far as I remember.” Ex. A., Pl.

Depo. 23:3-14.

2
Dr. McConnell denied this. This discrepancy is addressed in the motion.

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 50. For the purposes of this motion, Defendant does not dispute that Dr. Ben-Hur told

the P&T Committee during the April 2015 meeting that Plaintiff had treated him “hatefully.”

Dr. Whitley’s Midpoint review letter

51. On April 15, 2015, Dr. Whitley issued his midpoint review letter which ultimately

“recommend[ed] reappointment” for the next year. Ex. K, p. 4, Midpoint Review Docs.

52. Dr. Whitley discussed the issues that would “undermine [Plaintiff’s] progress

toward tenure.” Ex. K, pp. 3-4, Midpoint Review Docs.

53. Specifically, Dr. Whitley identified Plaintiff’s accusations about Basir, her

interactions with the Denver Zoo, and her exclusion of Life Sciences students from her classes

and resulting exchange with Dr. Ho. Ex. K, p. 4, Midpoint Review Docs.

April 2015 email from Dr. Nerger to the P&T Committee

54. On April 15, 2015, Dean Nerger emailed the Chair of the P&T Committee about

the differences in Dr. Whitley’s midpoint review and the committee’s review stating “…I am just

seeking clarification. I am not asking for an amended report on Christina’s progress.” Ex. K, p. 5.

55. She asked the P&T Committee to clarify whether (1) “the committee use[d] the

information [from Dr. Whitley’s 2014 Annual Evaluation of Plaintiff] in their deliberations and

it was reflected in the vote;” (2) “the committee[d] determine[d] it was inappropriate to consider

the information at this time because there was a pending grievance;” or (3) “was there another

reason…?” Ex. K, p. 5, Midpoint Review Docs.

56. Dean Nerger indicated that the “clarification is important to me as I write my own

assessment.” Id.

57. On April 21, 2015, Dean Nerger issued her own assessment. Id., p. 8.

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 58. In the letter, Dean Nerger noted that there were differences between Dr. Whitley’s

April 2015 Midpoint letter and the P&T Committee’s midpoint letter, and “suggest[ed] once the

grievance is resolved, the Chair, Dr. Boucher, and the chair of the Tenure and Promotion

committee meet and assure Dr. Boucher is being given consistent and accurate information

regarding her progress toward tenure.” Ex. K, p. 8, Midpoint Review Docs.

Dr. Ruiz’s lab space

59. Plaintiff met with CSU’s Office of Equal Opportunity (OEO) on May 6, 2015. Ex.

L, p. 1, OEO & Grievance Docs.

60. On May 6, 2015, Dr. Whitley received an email from Kim Judith asking about Dr.

Ruiz’s lab; Ms. Judith asked about the “status of the microwave” and indicating that “dirty

dishes” were in the lab for “at least all of this week.” Ex. M, p. 1, Lab Docs.

61. Dr. Whitley looked into the lab on Thursday, May 7, 2015 and spoke with Dr.

Ruiz on Friday, May 8, 2015. Ex. M, p. 3, Lab Docs.

62. According to Dr. Ruiz, Dr. Whitley raised two concerns: that there were clothes

all over the lab and there was a couch in the lab. Ex. B, Ruiz Depo., p. 57:6-24.

63. At the time Dr. Whitley spoke with Dr. Ruiz about his lab space, a basket with

laundry was in the lab for “a day or two” and had appeared during the same week that Dr.

Whitley spoke with Dr. Ruiz. Ex. B, Ruiz Depo. p. 75:2-6.

64. Dr. Ruiz “admit[ted] that the lab was a disaster” at that time. Ex. M, p. 3.

65. At the time Dr. Whitley spoke with Dr. Ruiz about his lab space, he was not

aware that Plaintiff has spoken to OEO on May 6, 2015. Ex. X, Whitley Aff. at ¶ 16.

66. Plaintiff did not file her revised grievance, that included allegations of

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discrimination and retaliation, until May 12, 2015. Ex. L, pp. 2-6, OEO & Grievance Docs.

67. On May 14, 2015, the University Grievance Officer (UGO) informed Dr. Whitley

of Plaintiff’s revised grievance. Ex. L, pp. 7-11, OEO & Grievance Docs.

68. On May 28, 2015 OEO informed Dr. Whitley that Plaintiff’s complaint had been

referred to OEO. Ex. L, p. 12, OEO & Grievance Docs

69. Regarding Dr. Ruiz’s August 2015 lab move, Plaintiff testified that “moved to a

smaller space…a shared space. But this is – I’m kind of guessing here because I don’t…keep

track of Jaime’s lab space.” Ex. A, Pl. Depo., p. 65:19-23.

70. Similarly, Plaintiff did not know when Dr. Ruiz’s lab space moved “[y]ou’d have

to ask him…I just don’t know.” Ex. A, Pl. Depo., p. 65:15-16.

71. Plaintiff also offered that some students didn’t have desks. Id., p. 66:3-7.

72. Dr. Ruiz testified that he was “not sure” if the lab move was related to the

‘DARPA’ grant he was on with Dr. Beveridge and Dr. Draper. Ex. B, Ruiz Depo., p. 72:1-73:1.

73. In August 2015, Dr. Beveridge emailed about “the space needs for the upcoming

DARPA Communicating with Computers (CWC) project.” Ex. M, Lab Docs. p. 7-8.

74. The lab would have a site visit in October and they “need[ed] to have [their] space

set up and looking real by then.” Ex. M, Lab Docs, pp. 7-8.

75. The email exchange reflects that multiple individuals were involved and had input

in the effort to resolve the space needs for the DARPA grant including the individual’s on the

grant - Dr. Beveridge, Dr. Draper, Dr. Ruiz; the chair of the facilities/operations committee –

Chuck Anderson; and Chair of the Department - Dr. Whitley. Ex. M, Lab Docs, pp. 5-8.

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 Dr. Ben-Hur’s removal of Plaintiff from student’s Ph.D. committee

76. On June 2015, Dr. Ben-Hur asked Plaintiff to step down from his advisee’s Ph.D.

committee. Ex. D, p. 3, EEOC Charge; Ex. C, p. 8, Rog. Resp.

77. Dr. Ben-Hur’s request was based, in part, on the fact that because of what

Plaintiff had done to Basir, Dr. Ben-Hur “was not comfortable with [Plaintiff] being on one of

[his] student’s committees.” Ex. V., Ben-Hur Depo., p. 46:4-4-7.

78. At the time, Plaintiff served on nine graduate student committees. Ex. N, pp. 8-9.

79. During her time at CSU, none of Plaintiff’s annual evaluations mentioned

Plaintiff’s participation on graduate student committees. Ex. K, Annual Evals.

80. Plaintiff’s P&T Committee letter for the relevant year, 2015, made no reference to

Plaintiff’s participation on graduate student committees. Ex. N, pp. 10-11, Add’l Pers. Docs.

Request that Dr. Whitley approve a grant amendment

81. In summer of 2015, Dr. Whitley was asked to approve an amendment to an

interdepartmental grant. Ex. D, p. 3, EEOC Charge.

82. When asked during her deposition about the ‘administrative change,’ to the grant

Plaintiff responded that she “[didn’t] know if [she] could speak really clearly” and referred to her

collaborators on the project. Ex. A, Pl. Depo., p. 199:14-17.

83. When asked about how the grant was allegedly delayed, Plaintiff responded that

she “[didn’t] remember the details. [She] would have to be guessing.” Id., p. 201:19-24.

84. The grant “had been in place and spending for a long time;” the grant money had

been distributed and final distribution of the overhead was at issue. Ex. W, Whitley Depo., p.

182:2-17.

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 85. The request for a contractual change to the agreed upon split of the overhead (or

‘indirect’) costs was a “highly unusual request.” Ex. X, Whitley Aff. at ¶ 17.

86. The revision was likewise described by Plaintiff’s collaborator on the project as

“a somewhat unusual way to partition costs.” Ex. O, VandeWoude email.

87. Dr. Whitley asked the Dean’s office how to handle the request since he had never

been asked to sign off on a similar request. Ex. X, Whitley Aff. at ¶ 17.

The associate dean of the college was ultimately involved in resolving the request for the

change to the grant overhead. Ex. X, Whitley Aff. at ¶ 17.

Plaintiff’s 2015/2016 raise

88. On April 30, 2015, Dr. Whitley informed Department faculty that the base merit

raise for the year would be two percent. Ex. P, p. 1, Raise Docs.

89. He explained that CSU would not allow him to “just give everyone 2.0 percent”

as raises must be based on merit. Ex. P, p. 1, Raise Docs.

90. Pursuant to the Faculty Manual, one purpose of annual reviews is for evaluation

of merit salary increases. Ex. T, Faculty Manual, p. 7.

91. Plaintiff received a 1.8 percent base salary increase for 2015-2016. Ex. P, p. 3.

Plaintiff’s departure from CSU

92. On April 22, 2016, Plaintiff notified the University of Florida (UoF) that she and

Dr. Ruiz intended to accept UoF’s offers of employment. Ex. R, p. 1, UoF Docs.

93. On April 26, 2017, Dr. Ruiz signed UoF’s offer of employment and on April 27,

2016, Plaintiff signed UoF’s offer of employment. Ex. R, pp. 9, 13, UoF Docs.

94. On April 30, 2016, Dean Nerger emailed Plaintiff and Dr. Ruiz and stated “I just

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heard that the two of you have accepted positions elsewhere and will be leaving CSU. I’d

appreciate it if you would please either confirm or deny this information so we can begin

processing the appropriate paperwork on our end.” Ex. S, p. 1, Nerger Requests.

95. Dean Nerger was concerned about the fall schedule, “if they weren’t going to be

here, we couldn’t assign them to classes. If I didn’t have anybody to cover those classes, we

would then have students enrolling in classes that didn’t exist.” Ex. Y, Nerger Dep., p. 146:4-9.

96. Plaintiff and Dr. Ruiz had been making arrangements for their departure from

CSU which included: informing colleagues that they would resign from grants, preparing

equipment for moves and arranging funding for themselves and their students for the summer

months. See e.g., Ex. R, pp. 14-20, UoF Docs (highlighted).

97. On May 9, 2016, Dean Nerger followed up again asking for “formal letters of

resignation.” Ex. S, pp. 2-3, Nerger Requests.

98. Since Plaintiff and Dr. Ruiz had been unresponsive to her April 30, 2016 request,

and had since been continuing to move funds and equipment, Dean Nerger stated “once she [had]

confirmation of your resignations, I will then instruct Cheryl to approve your spending requests

below.” Ex. S, pp. 2-3, Nerger Requests.

99. The requests for spending were against Plaintiff’s “start-up” funds. Ex. S, pp. 2-3.

100. The start-up package is a sum of money provided by the Dean’s office when

faculty begins working with CSU and is intended “to be spent during the first three years” of the

faculty member’s appointment. Ex. N, p. 2, Add’l Pers. Docs.

Plaintiff’s contentions re ‘slander’

101. Plaintiff asserts that her student, Sarah, told Plaintiff that Basir told Sarah that Dr.

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Ben-Hur said Plaintiff hates all men, “maybe” in June or July 2016. Ex. A, Pl. Depo., p. 68:7-21.

102. Plaintiff asserts, approximately two months before her January 2018 deposition,

Dr. McConnell told her that Dr. Draper, said “Well, Christina had psychiatric problems.” Ex. A,

Pl. Depo., pp. 69:20-70:8.

103. Plaintiff asserts that, Dr. Papadopoulos told her that Dr. Whitley, said “Christina’s

not a loss.” Ex. A, Pl. Depo., p. 69:7-16.

104. When asked when this happened, Plaintiff said “I want to say, maybe, it was like

four to six months ago, maybe. I’m taking a guess. Ex. A, Pl. Depo., p. 69:7-16.

STANDARD

Summary judgment is appropriate when there is no genuine issue as to any material fact

and the moving party is entitled to a judgment as a matter of law. C.R.C.P. 56(c). The Court

gives the nonmoving party the benefit of all favorable inferences that may reasonably be drawn

from the undisputed facts and resolves all doubts against the moving party. Bebo Constr. Co. v.

Mattox & O'Brien, P.C., 990 P.2d 78, 83 (Colo. 1999). However, “the nonmoving party may not

rest on its mere allegations or denials of the opposing party's pleadings but must provide specific

facts demonstrating a genuine issue for trial.” City of Longmont v. Colo. Oil & Gas Ass'n, 369

P.3d 573, 578 (2016)(citing C.R.C.P. 56(e)).

ARGUMENT

For purposes of this Motion, the relevant and undisputed protected activities include: (1)

Plaintiff’s October 2014 complaints to Dr. Whitley and Dean Nerger of alleged sexual

harassment by Dr. Ben-Hur; (2) Plaintiff’s allegations of retaliation in the March 2015 meeting

with Dean Nerger; (3) Plaintiff’s May 6, 2015 meeting with the OEO; Plaintiff’s May 12, 2015

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Grievance that included allegations of discrimination and retaliation; and (4) Plaintiff’s

September 3, 2015 EEOC Charge. See Ex. C, pp. 2-4, 9-12, Rog. Resp. 3

In support of her retaliation claim, Plaintiff alleges she suffered ten adverse actions: (1)

March 2015 annual evaluation; (2) Dr. Whitley’s April 2015 midpoint review; (3) Dr. Whitley

and Dr. Ben-Hur’s ‘campaign’ to affect the P&T Committee’s midpoint review; (4) April 2015

Letter from Dr. Nerger to the P&T Committee; (5) ‘removal’ of Dr. Ruiz’s lab space; (6) Dr.

Ben-Hur’s removal of Plaintiff from his student’s Ph.D. committee; (7) Dr. Whitley’s failure to

approve a routine grant amendment; (8) 2015/2016 raise; (9) ‘forced’ resignation; and (10)

“slander.” See Ex. C, pp. 5-9, Rog. Resp.; 2nd Am. Compl., ¶¶ 32-36.

I. Plaintiff has failed to exhaust each of her claims.

Under Title VII, “exhaustion of administrative remedies is a prerequisite to suit.” Apsley

v. Boeing Co., 691 F.3d 1184, 1210 (10th Cir. 2012) (internal citations omitted). Administrative

remedies generally must be exhausted as to each discrete instance of discrimination or

retaliation. Id. (internal citations omitted). Courts “lack jurisdiction to review Title VII claims

that are not part of a timely-filed EEOC charge.” Annett v. Univ. of Kansas, 371 F.3d 1233, 1238

(10th Cir. 2004).

In Martinez v. Potter, the Tenth Circuit, relying on Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101 (2002), held that “each discrete incident of [discriminatory or retaliatory]

treatment constitutes its own unlawful employment practice for which administrative remedies

3
Plaintiff identifies additional protected activities; however, Plaintiff does not contend that the
additional reports resulted in adverse action against her and/or that the alleged decision makers
knew of these additional alleged protected activities. See Ex. C, pp. 2-4, 9-12.

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must be exhausted.” 347 F.3d 1208, 1210 (10th Cir. 2003) (quotation omitted). In Martinez, the

plaintiff attempted to litigate claims related to adverse employment actions – a reprimand and his

termination – that occurred after he filed his EEOC charge, without addressing these incidents in

an amended or new EEOC charge. Id. at 1210. The Court held that the plaintiff was required to

exhaust his administrative remedies with respect to these discrete acts. See id. at 1211.

Here, Plaintiff impermissibly seeks relief for alleged adverse actions that she failed to

administratively exhaust. Specifically, Plaintiff seeks relief for the following actions: (1) alleged

‘slander’ from Fall 2014 to present; (2) Dr. Whitley’s April 2015 Pre-Tenure (midpoint)

evaluation; (3) April 2015 Letter from Dr. Nerger to the P&T Committee; (4) May 2016 ‘forced’

resignation; and (5) Plaintiff’s 2015/2016 raise. Ex. C, pp. 5-9, Rog. Resp.; 2nd Am. Compl. The

alleged adverse actions were not addressed in Plaintiff’s EEOC Charge. Ex. D, EEOC Charge.

Plaintiff is barred from pursing these claims in Court.

II. Plaintiff cannot seek for relief for adverse actions not alleged in the Second
Amended Complaint.

Plaintiff’s claims regarding ‘slander’ and the April 2015 Letter from Dr. Nerger to the

P&T Committee are not properly before the Court for an additional reason – Plaintiff did not

allege these adverse actions in her Second Amended Complaint. See 2nd Am. Compl., generally.

Plaintiff cannot effectively amend her complaint through discovery, so identification of these

alleged actions in her Interrogatory responses is insufficient to state a claim. See e.g., Am. Family

Mut. Ins. Co. v. Haslam, 2011 WL 148836, at *2 (D. Colo. Jan. 10, 2011)(“[Plaintiff] may not

amend the claims in its complaint…via [its Rule 30(b)(6) witnesses]’s answer to deposition

questions.”); Brown v. Snow, 440 F.3d 1259, 1266 (11th Cir. 2006) (“discussion of a potential

16
claim in a deposition does not satisfy the requirement of Rule 8(a).”); Auffarth v. Nationwide

Mut. Ins. Co., 2010 WL 2651187, at *5 (D. Md. June 30, 2010) (internal citation omitted)

(“[Plaintiff] may not amend her complaint by way of an interrogatory answer.”); Sloan v. Urban

Title Servs., Inc., 689 F. Supp.2d 94, 120 (D.D.C. 2010).

III. Plaintiff cannot establish a prima facie case of Title VII retaliation and CSU had
legitimate non-retaliatory reasons for its actions.

Because Plaintiff has no direct evidence of having been retaliated against, her claim is

subject to the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Plaintiff must first establish a prima facie case of retaliation by Defendant by showing

that (1) she engaged in protected activity; (2) she “suffered an adverse action that a reasonable

employee would have found material”; and (3) “there is a causal nexus” between her activity and

the adverse action. See id. If she does so, the burden shifts to Defendant to show “a legitimate

non-discriminatory or non-retaliatory reason for the adverse employment action.” See id. If the

defendant meets this burden, the burden shifts back to plaintiff to show that defendant’s

“proffered reason is pretext.” See id.

Title VII’s anti-retaliation provision “protects an individual not from all retaliation, but

from retaliation that produces an injury or harm,” or actions that “a reasonable employee would

have found ... materially adverse.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-

68 (2006). A materially adverse action is one that “might have dissuaded a reasonable worker

from making or supporting a charge of discrimination.” Id. at 68 (internal quotation marks and

citations omitted). The materiality requirement “separate[s] significant from trivial harms.” Id.

(quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)).

17
 A. Plaintiff’s claim based on her March 2015 annual evaluation fails as a matter of law.

1. Plaintiff cannot establish causation.

Plaintiff must prove “that a causal connection existed between the protected activity and

the materially adverse action.” Somoza v. Univ. of Denver, 513 F.3d 1206, 1212 (10th Cir. 2008).

Here, Plaintiff made her allegation about Dr. Ben-Hur to Dr. Whitley in October 2014.

Ex. D, p. 2, EEOC Charge. Plaintiff March 2015 annual evaluation was conducted approximately

five months later. Ex. J, p. 1. Because there is not a “very close temporal proximity between the

protected activity and the retaliatory conduct, the plaintiff must offer additional evidence to

establish causation.” O'Neal v. Ferguson Const. Co., 237 F.3d 1248, 1253 (10th Cir. 2001); see

Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (separation of 1.5

months, by itself, is sufficient to establish causation while 3.0 months, by itself, was not).

Further, the issues identified in Plaintiff’s performance evaluation were identified as

problems prior to Plaintiff’s October 2014 complaint about Dr. Ben-Hur. 4 See Ex. F, p. 1, Zoo

Emails (“[t]his is a pattern at this point); Ex. H, July 9, 2014 Whitley email (“warning signs”);

Ex. E, p. 4, Life Sciences Emails (“quite troubling”). “Title VII’s anti-retaliation provisions do

not allow employees who are already on thin ice to insulate themselves against termination or

discipline by preemptively making a discrimination complaint.” Hawkins v. BBVA Compass

Bancshares, Inc., 613 Fed. Appx. 831, 839 (11th Cir. 2015); see Malloy v. U.S. Postal Serv., 756

F.3d 1088, 1091 (8th Cir. 2014) (“[E]vidence that the employer had been concerned about a

4
Even if Plaintiff seeks to rely on her version of events that puts her complaint about Dr. Ben-
Hur in August or September 2014, the issues identified in the annual evaluation were part of a
‘pattern’ identified prior to Plaintiff’s complaint about Dr. Ben-Hur.

18
problem before the employee engaged in the protected activity undercuts the significance of the

temporal proximity.”) (internal citations omitted).

Finally, “the causal-connection element of a prima facie retaliation claim requires the

employee to show that the employer’s motive for taking adverse action was its desire to retaliate

for the protected activity.” Wells v. Colo. DOT, 325 F.3d 1205, 1218 (10th Cir. 2003). It is not

enough to show that the decisionmaker knew of the protected activity, the employer must

actually have a retaliatory motive. Greenlee v. SW. Health Sys.,2007 U.S. Dist. LEXIS 58557, at

*39 (D. Colo. Aug. 9, 2007) (unpub’d).

2. Defendant had a legitimate non-retaliatory reason for the 2014 annual

evaluation.

Plaintiff’s 2014 Annual Evaluation was based on well documented issues concerning

Plaintiff’s performance as related to the three areas of evaluation: Instruction, Mentoring and

Advising; Research, Scholarship, and Creativity; and, University/ Professional/ Public Service

and Outreach. See e.g. Ex. J, p. 1, Annual Evals. and Ex. T, p. 3, Faculty Manual.

For Instruction, Advising and Mentoring, Plaintiff Below Expectations. Ex. J, p. 1. Here,

Dr. Whitley referenced Basir, noting “[w]ith regard to advising and mentoring, one of

[Plaintiff’s] students changed advisors.” Id. Dr. Whitley indicated that Plaintiff had made claims

about Basir to Dr. Whitley and several other faculty member. Id Dr. Whitley recorded that

Plaintiff told Dr. Whitley that she had to write a letter of apology to Professor VandeWoude, and

that Plaintiff had been clear that she wanted to Basir to be held accountable. Id. Dr. Whitley

recorded that when he followed up on Plaintiff’s claim about Basir, Dr. VandeWoude told him

the event never happened and that she had no knowledge of any letter of apology. Id. Dr.

19
Whitley concluded that Plaintiff “made inaccurate and misleading statements about what

happened.” Id. He noted that Plaintiff’s conduct violated Section D.9(c) of the Faculty Manual.

Id. Section D.9(c) is part of the Faculty Manual’s Code of Ethical Behavior; this section

indicates that faculty members are expected to “[m]aintain a high level of discretion and respect

in personal and professional relations with students, faculty members, staff and the public.” Ex.

T, Faculty Manual, p. 5.

Plaintiff’s claims about one of her students, Basir, are directly related to the criteria of

Instruction, Advising and Mentoring; in addition, the Faculty Manual specifically provides that it

is “appropriate for performance reviews to document problems with behavior (see Section D.9

and also Section E.15).” Id., p. 7. Plaintiff’s allegations about Basir had come to Dr. Whitley’s

attention through Plaintiff and through other faculty members. During an October 7, 2014

meeting, Plaintiff talked with Dr. Whitley about her allegation that “Basir had called [the

Associate Dean from Veterinary Medicine,] Sue VandeWoude, “an f’ing bitch.” Ex. A, Pl.

Depo., p. 114:18-21; Ex. W, Whitley Depo., p. 15:2-19. Plaintiff “may have said something like”

she had to write a letter of apology to Dr. VandeWoude. Id., p. 109:21-110:2.

Around the same time, Plaintiff was telling colleagues of her allegations regarding Basir.

On September 30 2014, Plaintiff emailed Dr. Howe about Basir stating: “[f]inally, the last straw

was that he said some pretty offensive things to Sue VandeWoude (the associate dean of vet med

and the PI on the grant he is funded under. She was not pleased.” Ex. I, pp. 2-3 Basir emails.

(emphasis added). On October 11, 2014, Plaintiff emailed two more colleagues, Dr. Ray and Dr.

Papadopoulos stating: “The student I had to deal with, I am pretty certain knew that calling the

associate dean a f@#@ing b@#@h and being rude to me is wrong and that she deserves an

20
apology…Also, the faculty member I brought this to their attention probably knew he should

have responded.” Id., p. 4.

Dr. Whitley followed up on Plaintiff’s claims about Basir by reaching out to Associate

Dean VandeWoude. Ex. W, Whitley Depo., p. 17:2-18:10. Dr. Whitley tried to apologize to the

Associate Dean because as far as he knew, Basir “had called her a fucking bitch to her face and

also that she was upset, that she had been treated badly.” Id., p. 20:16-24. Dr. VandeWoude did

not know what Dr. Whitley was talking about. Id.

For University/ Professional/ Public Service and Outreach, Plaintiff received Below

Expectations. Ex. J, p. 1. Dr. Whitley indicated that Plaintiff’s interactions with the Denver Zoo

were less than professional. Id. Plaintiff’s interactions with the Zoo came to Dr. Whitley’s

attention in July 2014 when the exchange was forwarded to CSU’s Director of Development and,

eventually, to Dr. Whitley. Ex. F, p. 1, Zoo Emails. During Plaintiff’s exchange, the Grant

Manager ultimately expressed her regrets that the Zoo couldn’t commit without additional time;

Plaintiff responded by chiding the Grants Manager stating she had “been very disappointed in the

lack of support” and promised she would “be contacting someone in the future to tell them about

her experience.” Id., p. 3. Upon receiving the forwarded email, Dr. Whitley forwarded it to the

Dean expressing his concern that “[t]his is a pattern at this point…we need to talk about this.”

Id., p. 1 (emphasis added). Dr. Whitley also followed up with Plaintiff. Id. pp. 5-7.

Finally, for Research, Scholarship, and Creative Activity, Plaintiff received a rating of

Meets Expectations. Ex. J, p. 1, Annual Evals. In this area, Dr. Whitley noted the July 2014

interaction that he and Plaintiff had concerning Plaintiff’s NSF Career Award. Id. The July 2014

exchange reflects that Dr. Whitley and Plaintiff disagreed about the extent of Plaintiff’s

21
permission to edit and whether or not Dr. Whitley needed to review the final version. Ex. G, p. 4,

July 2014 NSF. The language regarding the NSF letter was later removed, but Plaintiff did not

sign the revised evaluation. Ex. J, p. 2. As early as July 9, 2014. Dr. Whitley identified these

issues concerning the Zoo interaction, and the NSF letters as “warning signs” and sought Dean

Nerger’s “input about what to do.” Id. (emphasis added). Ex. H, July 9, 2014 Whitley email.

B. Plaintiff’s claim based on statements made to the P&T Committee fails as a matter
of law.

Plaintiff contends that Dr. Whitley and Dr. Ben-Hur ‘campaigned’ to affect her 2015

evaluation by the P&T Committee. These claims fail for multiple reasons.

1. Dr. Whitley’s statements to the P&T Committee.

First, Plaintiff relies entirely and impermissibly on hearsay in support of this claim. “[A]t

summary judgment courts should disregard inadmissible hearsay statements contained in

affidavits, as those statements could not be presented at trial in any form.” Argo v. Blue Cross &

Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006). Plaintiff contends that Dr.

McConnell told her of the statements Dr. Whitley made at the P&T Committee meeting;

however, Dr. McConnell denies telling Plaintiff. Even if Plaintiff was able to cure this defect,

Plaintiff’s claim still fails.

a. The statements were not an adverse action.

As a threshold matter, Plaintiff had little to report about what Dr. Whitley told the P&T

Committee. When asked about Dr. Whitley’s statements to the P&T Committee, Plaintiff was

both conclusory and unsure: “I don’t remember so clearly. I think it was more general, like he

was campaigning to have me downgraded.” Ex. A., Pl. Depo. 23:3-14. Plaintiff added “….there

22
[were] two evaluations, and [Dr. Whitley] had brought the second evaluation and was trying to

say the fact that I need to sign this second evaluation, that I signed the first evaluation. But that’s

as far as I remember.” Id.

Even if Dr. Whitley made the alleged (somewhat unclear) comments, Plaintiff cannot

demonstrate she was harmed by the statements generally and especially in light of favorable

report from the P&T Committee’s midpoint. Ex. K, p. 2, Midpoint Review Docs. See White, 548

U.S. at 67 (“The antiretaliation provision protects an individual not from all retaliation, but from

retaliation that produces an injury or harm.”); see e.g., Fox v. Nicholson, 304 F. App’x 728, 733

(10th Cir. 2008) (unpublished) (plaintiff did not suffer a retaliatory adverse action for his claim

that “negative comments and lower scores on his performance review constituted because he was

ultimately rated ‘Fully Successful’”).

Finally, Plaintiff cannot rely on her conclusory assertions about a ‘campaign.’ Cf.

Johnson v. FedEx Corp., 2016 WL 1593811, *5 (D. Ariz. 2016)(“[A] reasonable worker cannot

be dissuaded from engaging in protected activity by deliberations he knows nothing about.”).

b. Plaintiff cannot establish causation.

Plaintiff made her allegation about Dr. Ben-Hur to Dr. Whitley in October 2014. Ex. D,

p. 2, EEOC Charge. The P&T Committee meetings took place over five months later on April 3

and 10, 2015. Ex. K, p. 1. 5 Without more, this is insufficient to establish causation. See O'Neal,

237 F.3d at 1253; see Anderson, 181 F.3d at 1179, supra. Further, to the extent Plaintiff asserts

5
If Plaintiff relies on her version of events in which she reported Dr. Ben-Hur’s alleged sexual
harassment to Dr. Whitley in August or September 2014, the temporal proximity becomes even
more remote.

23
that Dr. Whitley presented her evaluation to the P&T Committee, as explained above, Plaintiff’s

evaluation was based on issues identified prior to her October 2014 complaint about Dr. Ben-

Hur. Plaintiff’s complaint does not insulate her from the consequences of these matters. See

Hawkins., 613 Fed. Appx. at 839; Malloy, 756 F.3d at 191, supra.

c. Dr. Whitley had a legitimate non-retaliatory reason for making

statements concerning Plaintiff’s evaluation.

Even if Dr. Whitley made the alleged (albeit unclear) statements to the P&T Committee,

there were, at that time, two versions of Plaintiff’s 2014 evaluation, one that had been signed and

one that had not been signed. Ex. K, pp. 1-2, Midpoint Review Docs.

2. Dr. Ben-Hur’s statements at the April 3, 2015 P&T Committee meeting.

For the purposes of this motion, Defendant does not dispute that Dr. Ben-Hur stated that

Plaintiff had treated him “hatefully.” Although Plaintiff additionally contends that Dr.

McConnell reported to her that Dr. Ben-Hur told the committee that Plaintiff was “hateful

toward men” and that he “was trying to minimize [her] research contributions” Ex. A, Pl. Depo.,

p. 22:18-23, Dr. McConnell denies relaying information regarding the Committee meeting to

Plaintiff. Ex. U, McConnell Depo., pp. 72:15-23; 74:14-18. Plaintiff cannot rely on these hearsay

statements at summary judgment. See Argo, 452 F.3d at 1199. Moreover, Dr. McConnell did not

testify that Dr. Ben-Hur’s statements were as Plaintiff contends. Rather, Dr. McConnell testified

that, Dr. Ben-Hur said he “had never been treated so hatefully,” that Plaintiff no longer said hi in

the hallways and that he “didn’t elaborate much more.” Ex. U, pp. 87:6-9. Even accepting that

Dr. McConnell relayed to those statements to Plaintiff, her claim still fails.

24
 a. Dr. Ben-Hur’s statement was not an adverse action.

While co-worker retaliation can sometimes constitute an adverse action, Dr. Ben-Hur’s

statements at the P&T Committee meeting do meet the criteria. The Tenth Circuit has recognized

that “co-worker hostility or retaliatory harassment, if sufficiently severe, may constitute ‘adverse

employment action’ for purposes of a retaliation claim.” Gunnell v. Utah Valley State Coll., 152

F.3d 1253, 1264 (10th Cir. 1998). But, “an employer can only be liable for co-workers’

retaliatory harassment where its supervisory or management personnel either (1) orchestrate[d]

the harassment or (2) [knew] about the harassment and acquiesce [d] in it in such a manner as to

condone and encourage the co-workers’ actions.” Id. at 1265.

First, Dr. Ben-Hur’s statement that Plaintiff was “hateful” toward him (and/or didn’t say

hello to him in the hallways) was not “sufficiently severe” to constitute an adverse action. See

e.g., See Somoza, 513 F.3d at 1214–15 (incivility of co-workers at a meeting, including eye-

rolling, laughing at plaintiff's opinions, and commenting behind his back, were not materially

adverse). Plaintiff’s contention otherwise is further undermined by the P&T Committee’s

favorable midpoint letter concerning provided the most favorable available report, which

included Dr. Ben-Hur’s vote. Ex. K, p. 2. Further, courts have rejected more significant

statements, even as made by supervisors, as adverse actions. See e.g., Brown v. Advocate S.

Suburban Hosp., 700 F.3d 1101, 1107 (7th Cir. 2012) (supervisor’s name calling of plaintiffs as

a “trouble maker,” a “cry baby,” and a “spoiled child” were not retaliatory adverse actions).

Second, Plaintiff cannot demonstrate that supervisory personnel orchestrated or condoned

Dr. Ben-Hur’s statement that Plaintiff treated him hatefully (and/or did not say hi to him in the

hallways). Gunnell, 152 F.3d at 1264.

25
 b. Plaintiff cannot establish causation.

Taking the evidence in the light most favorable to the Plaintiff, the closest time prior to

the April 2015 P&T Committee meetings that Dr. Ben-Hur could have heard of Plaintiff’s

harassment allegations about him was during January 2014. See Ex. W, Whitley Depo., p. 58:1-

4. The P&T committee meetings occurred on April 3 and April 10, 2015. Ex. K. Plaintiff cannot

demonstrate causation. See, e.g., Meiners v. Univ. of Kan., 359 F.3d 1222, 1231 (10th Cir. 2004)

(suggesting that “two months and one week” was “probably too [long] ... to establish causation

by temporal proximity alone”).

C. Plaintiff’s claim based on Dr. Whitley’s April 2015 Midpoint review letter fails as a
matter of law.

Plaintiff has not exhausted this claim with the EEOC, see Section I, and thus, it is not

properly before the Court. Plaintiff’s claim fails for additional reasons.

1. Dr. Whitley’s midpoint review letter was not an adverse action.

Performance documents are not materially adverse as a matter of course. See Felix v. City

& County of Denver, Felix v. City & Cty. of Denver, 729 F. Supp. 2d 1243, 1257 (D. Colo.

2010), opinion adhered to on reconsideration, 2011 WL 1085766 (D. Colo. Mar. 24, 2011), and

aff’d, 450 F. App’x 702 (10th Cir. 2011) (“To hold otherwise would be to suggest that, once an

employee engages in protected conduct, she cannot be subjected to any criticism with which she

disagrees.”); see also, e.g., Fox v. Nicholson, 304 F. App’x at 733.

In Felix, the plaintiff received an overall rating of “successful” on her evaluation but

complained that the evaluation was adverse based on the contained criticisms within it. 729 F.

Supp. 2d at 1257. The Court held that the evaluation (and the criticisms contained within it) did

26
not constitute an adverse employment action. “A reasonable employee recognizes that a

performance evaluation is a largely subjective exercise and that constructive criticism from

one’s supervisor is an inherent part of that process.” Id. The Court distinguished this

circumstance from those when “adverse performance evaluation or particular criticisms therein

might deter an employee from engaging in protected activity—say, where obtaining a certain

score on the evaluation is a requirement to become eligible for a promotion or raise, or where

the criticism is particularly insulting or irrelevant—but there is no such evidence here.” Id.

Dr. Whitley’s April 15, 2015 midpoint letter ultimately “recommend[ed] reappointment”

for the next year. Ex. K, p. 4. Although Dr. Whitley discussed issues that would “undermine

[Plaintiff’s] progress toward tenure” Id., pp. 3-4, this does not make the letter an adverse action.

See e.g., Felix, 729 F. Supp. 2d at 1257.

2. Plaintiff cannot establish causation.

Plaintiff made her allegation about Dr. Ben-Hur to Dr. Whitley in October 2014. Ex. D,

p. 2, EEOC Charge. Dr. Whitley’s letter was issued almost six months later, on April 15, 2015.

Ex. K, p. 4. This is insufficient to establish causation. See O'Neal, 237 F.3d at 1253; see

Anderson, 181 F.3d at 1179, supra.

Further, like the issues raised in the Plaintiff’s Annual evaluation, the issues raised in Dr.

Whitley’s April 15, 2015 midpoint review letter – Plaintiff’s accusations about Basir, her

interactions with the Denver Zoo, and her exclusion of Life Sciences students from her classes,

were recognized as causes for concern in July 2014, prior to Plaintiff’s complaint about Dr. Ben-

Hur. Plaintiff cannot insulate herself from consequences of these matters by making a complaint.

See Hawkins., 613 Fed. Appx. at 839 and Malloy, 756 F.3d at 191, supra.

27
 3. Defendant had a legitimate non-retaliatory reason for the midpoint review.

The April 2015 midpoint review did precisely what is designed to do – it provided

guidance and feedback to Plaintiff about her progress and potential impediments to achieving

tenure. See e.g., Ex. T, p. 7, Faculty Manual (performance reviews are “intended to facilitate

continued professional development, to refocus professional efforts when appropriate, to assure

that faculty members are meeting their obligations to the University, and to assist faculty in

achieving tenure and promotion.”). Dr. Whitley identified Plaintiff’s accusations about Basir, her

interactions with the Denver Zoo, and her exclusion of Life Sciences students from her classes

resulting in an exchange with the Department Chair Dr. Ho. Id. Dr. Whitley noted that he has

sought to address these issues with Plaintiff but to no avail: “[w]hen I have tried to communicate

these concerns with you, you are defensive and shut down communication. I don’t see any

indication that you recognize these problems, and there is no indication that you are doing

anything to remedy these problems.” Id., p. 2.

The issues identified in the letter concerning the Zoo, the NSF letter and Basir and the

facts surrounding them are discussed above. See Section III.A.2. The April 2015 midpoint letter

also discussed Plaintiff’s exclusion of Life Sciences students from her class and the resulting

exchange with that Department Chair, Dr. Ho. In November 2013, Plaintiff had emailed a faculty

member in BMB, asking for his assistance in getting a life sciences student to drop her class and

stating she would now have a course assignment designed to “get these students to drop the

course.” Ex. E, p. 2, Life Sciences Emails. This exchange came to Dr. Whitley’s attention when

the faculty member forwarded the exchange to his department chair, Dr. Shing Ho, who

28
forwarded it to Plaintiff’s Dean, Jan Nerger and Plaintiff’s Department Chair, Dr. Whitley. Id.,

pp. 1- 2 (highlighted).

In the exchange, Dr. Whitley acknowledged the problem had arisen “in two of the two

classes that [Plaintiff] had taught thus far.” Id., p. 5. Dr. Whitley noted that Plaintiff’s

unwillingness “to work with (or teach) any non-[computer science] student now” was

“unacceptable.” Id. Dean Nerger stated she was “rather amazed at the tone of [Plaintiff’s]

emails” and noting “there are several aspects of this that are quite troubling.” Id., p. 4. Dr. Ho

expressed his concerns about Plaintiff’s exclusion of life sciences students from her class

indicated that Plaintiff was “not committed to the teaching mission.” Id., p. 1.

D. Plaintiff’s claim based on Dean Nerger’s April 2015 Communication to the P&T
Committee fails as a matter of law.

Plaintiff has not exhausted this claim with the EEOC, see Section I, and has not included

this claim in her second Amended Complaint, see Section II. Thus, it is not properly before the

Court. Plaintiff’s claim fails for additional reasons.

1. Plaintiff did not suffer an adverse action.

In determining whether a plaintiff has suffered an adverse action, it is “important to

separate significant from trivial harms.” Burlington, 548 U.S. at 68. Her, Plaintiff has cannot

demonstrate any harm as Dean Nerger’s email to the P&T Committee was categorically neutral.

Plaintiff asserts that “[o]n or about April 10, 2015 , Dr. Nerger wrote a letter to the P&T

committee indicating that she would like them to reconsider their positive evaluation of

[Plaintiff] in light of Dr. Whitley’s negative evaluation.” Ex. C, p. 8, Rog. Resp. However,

Plaintiff’s unsupported contention is belied by the undisputed facts: Dean Nerger’s April 15,

29
2015 email began with “… I am just seeking clarification. I am not asking for an amended

report on Christina’s progress.” Ex. K, p. 5 (emphasis added). Dean Nerger simply asked the

P&T Committee to clarify whether (1) “the committee use[d] the information [from Dr.

Whitley’s 2014 Annual Evaluation of Plaintiff] in their deliberations and it was reflected in the

vote;” (2) “the committee[d] determine[d] it was inappropriate to consider the information at this

time because there was a pending grievance;” or “was there another reason…?” Id. Dean Nerger

indicated that the “clarification is important to me as I write my own assessment.” Id.

Further, “the fact that an employee continues to be undeterred in his or her pursuit of a

remedy, as here was the case, may shed light as to whether the actions are sufficiently material

and adverse to be actionable.” Somoza, 513 F.3d at 1214; Samuels v. Potter, 372 Fed.Appx. 906,

908-09 (10th Cir. 2010). In this case, Plaintiff’s claim that April 2015 midpoint review related

actions (alleged ‘campaign’ by Dr. Whitley and Dr. Ben-Hur; Dr. Whitley’s midpoint letter and

Dean Nerger’s communication to the P&T Committee) were adverse is further undermined by

the filing of complaints on the heels of those alleged actions. Plaintiff met with OEO on May 6,

2015 OEO and filed her grievance concerning her 2014 Annual evaluation and alleging

discrimination and retaliation on May 12, 2015. Ex. L.

2. Defendant had a legitimate non-retaliatory reason for the April 2015 letter.

As Dean Nerger indicated, the requested clarification was important for her own

assessment letter. Ex. K, p. 8. In Dean Nerger’s midpoint letter, she noted that there were

differences between Dr. Whitley’s April 2015 letter and the P&T Committee’s report and

“suggest[ed] once the grievance is resolved, the Chair, Dr. Boucher, and the chair of the Tenure

30
and Promotion committee meet and assure Dr. Boucher is being given consistent and accurate

information regarding her progress toward tenure.” Id.

E. Plaintiff’s claim based on the alleged removal of Dr. Ruiz’s lab space fails as a
matter of law.

Plaintiff contends that Dr. Whitley’s May 2015 discussion with Dr. Ruiz was retaliatory

and that a subsequent move of Dr. Ruiz’s lab was retaliatory. Both claims are addressed and fail

for multiple reasons.

1. Dr. Whitley’s discussion with Dr. Ruiz in May 2015 concerning his lab.

a. Plaintiff did not suffer an adverse action.

Although Plaintiff brings a claim based on an alleged employment action that happened

to Dr. Ruiz, the operative inquiry remains the same – whether a reasonable employee in

Plaintiff’s shoes might have been dissuaded from making or supporting a charge of

discrimination. Here, what Dr. Ruiz received was, at best, a reproach regarding the state of his

lab; Plaintiff cannot demonstrate that a reasonable worker in her shoes would have been

dissuaded from making a claim of discrimination.

According to Dr. Ruiz, Dr. Whitley raised two concerns: that there were clothes all over

the lab and there was a couch in the lab. Ex. B, Ruiz Depo., p. 57:6-24. Dr. Whitley indicated

that he would raise the issue of the couch with the facilities committee. Id., p. 59:10-14. This

does not rise above “petty slights” or “minor annoyances” and would not deter “a reasonable

worker from making or supporting a charge of discrimination.” McGowan v. City of Eufala, 472

F.3d 736, 742 (10th Cir. 2006) (quoting White, 126 S.Ct. at 2415); see also Flowers v. Fed.

Express Corp., 2008 WL 185699, at *7 (D. Colo. Jan. 18, 2008) (plaintiff’s claim that she was

31
“interrogated” by a supervisor following an incident in which she had to stop her route to seek

medical attention was not a retaliatory adverse action).

b. Plaintiff cannot establish causation.

In support of this claim, Plaintiff contends that Dr. Whitley contacted Dr. Ruiz about his

lab “less than a week” after Plaintiff’s report to the OEO. Ex. C, pp. 7-8. Plaintiff met with OEO

on May 6, 2015. Ex. L, p. 1. At the time he spoke with Dr. Ruiz about his lab, Dr. Whitley did

not know of Plaintiff’s OEO meeting. Ex. X, at ¶ 16; see Montes v. Vail Clinic, Inc., 497 F.3d

1160, 1176 (10th Cir. 2007) (“the individual who took adverse action against [her] knew of the

employee's protected activity.” ). Plaintiff only speculates that Dr. Whitley knew stating that

OEO personnel told her “they were going to talk to Dr. Whitley.” Ex. A, p. 60:6-61:4.

Further, the email initiating the chain of events leading to Dr. Whitley speaking with Dr.

Ruiz about his lab began on Wednesday, May 6, 2015, the same day of Plaintiff’s OEO meeting,

with an email from Kim Judith, inquiring about the state of the lab. Ex. M, Lab Docs. Plaintiff

does not allege that Ms. Judith retaliated against her, nor does she contend that Ms. Judith knew

of Plaintiff’s May 6, 2015 meeting with OEO. See Ex. D, generally.

c. Dr. Whitley had a legitimate non-retaliatory reason for speaking with Dr.
Ruiz about his lab.

Dr. Whitley spoke with Dr. Ruiz about his lab based on a complaint he received and

during a time that Dr. Ruiz acknowledged the lab was a ‘disaster.’ On May 6, 2015, Dr. Whitley

received an email from Kim Judith asking about the “status of the microwave” in Dr. Ruiz’s lab

and stating “dirty dishes” were in the lab for “at least all of this week.” Ex. M, p. 1, Lab Docs.

Dr. Whitley looked into the lab on Thursday, May 7, 2015 and spoke with Dr. Ruiz on Friday,

32
May 8, 2015. Id. p. 3. According to Dr. Ruiz, Dr. Whitley raised two concerns: that there were

clothes all over the lab and there was a couch in the lab. Ex. B, Ruiz Depo., p. 57:6-24.

Dr. Ruiz acknowledges that, at the time Dr. Whitley spoke with him, a basket with

laundry was in the lab for “a day or two” and had appeared during the same week that Dr.

Whitley spoke with Dr. Ruiz. Id., p. 75:2-6. Dr. Ruiz further “admit[ted] that the lab was a

disaster” at that time. Ex. M, p. 3, Lab Docs.

2. Dr. Ruiz’s lab move in August 2015.

a. Plaintiff did not suffer an adverse action.

Here, as a threshold matter, Plaintiff’s limited substantive knowledge concerning the lab

move precludes her assertion that a reasonable worker would have been dissuaded by the actions

taken regarding her husband’s lab space. Cf. Estate of Oliva v. New Jersey, 579 F. Supp. 2d 643,

676 (D.N.J. 2008), aff'd sub nom. Estate of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788

(3d Cir. 2010) (“Logically, a reasonable worker cannot be dissuaded by a decision or action of

which he is not aware.”). When asked, Plaintiff could not confidently articulate alleged problems

with the August 2015 lab move other than: Dr. Ruiz “moved to a smaller space…a shared space.

But this is – I’m kind of guessing here because I don’t…keep track of Jaime’s lab space.”

Ex. A, Pl. Depo., p. 65:19-23 (emphasis added). Similarly, Plaintiff did not know when Dr.

Ruiz’s lab space moved “[y]ou’d have to ask him…I just don’t know.” Id., p. 65:15-16. Plaintiff

also offered that some students didn’t have desks. Id., p. 66:3-7.

Further, a work space relocation, without more, does not constitute an adverse action. See

e.g., Unal v. Los Alamos Pub. Sch., 638 F. App’x 729, 743–44 (10th Cir. 2016) (unpublished)

(collecting cases) (finding that plaintiff’s relocation to a portable classroom did not have a

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disruptive effect and was not a retaliatory adverse action.); see also Stone v. Mukasey, 2008 WL

1883548, at *7 (D. Colo. Apr. 25, 2008)(plaintiff's relocation to a smaller office where she could

not fit all of her files and no longer contained common amenities ”may well have been

inconvenient” but was not a retaliatory adverse action).

b. Dr. Ruiz’s lab moved for legitimate non-retaliatory reasons.

Dr. Ruiz’s lab was moved because he and his grant collaborators needed specific space

for a ‘DARPA’ grant. Dr. Ruiz could only testify that he was “not sure” if the move was related

to the DARPA grant that he was working on with Dr. Beveridge and Dr. Draper. Ex. B, Ruiz

Depo., p. 72:1-73:1. However, in August 2015, Dr. Beveridge emailed regarding “the space

needs for the upcoming DARPA Communicating with Computers (CWC) project.” Ex. M, Lab

Docs. p. 7-8. The lab would have a site visit in October and they “need[ed] to have [their] space

set up and looking real by then.” Id. The email exchange reflects that multiple individuals were

involved and had input in the effort to resolve the space needs for the DARPA grant including

the individual’s on the grant - Dr. Beveridge, Dr. Draper, Dr. Ruiz; the chair of the facilities

committee – Chuck Anderson; and Chair of the Department - Dr. Whitley. Id., pp. 5-8.

F. Plaintiff’s claim based Dr. Ben-Hur’s removal of Plaintiff from his student’s Ph.D.
committee fails as a matter of law.

1. Plaintiff did not suffer an adverse action.

Dr. Ben-Hur’s removal of Plaintiff from his student’s Ph.D. committee was not an

adverse action because an action must be “materially adverse” to constitute retaliation in order

“to separate trivial harms from actionable injuries.” See Somoza, 513 F.3d at 1212 (citing

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Oncale, 523 U.S. at 80); White., 548 U.S. at 67 (workers are protected from “retaliation that

produces an injury or harm”).

Here, Plaintiff’s removal from Dr. Ben-Hur’s Ph.D. committee was not materially

adverse. At the time, Plaintiff served on nine graduate student committees. Ex. N, pp. 8-9, Add’l

Pers. Docs. During her time at CSU, none of Plaintiff’s annual evaluations mentioned her

participation on graduate student committees. Ex. K, Annual Evals. Plaintiff’s P&T Committee

letter for the relevant year, 2015, made no reference to Plaintiff’s participation on graduate

student committees. Ex. N, pp. 10-11. Thus, Plaintiff cannot establish that Dr. Ben-Hur’s

removal of Plaintiff from his graduate student’s committee was more than a “trivial harm.”

2. Plaintiff cannot establish causation.

Plaintiff contends that Dr. Ben-Hur removed her from his student’s Ph.D. committee

“immediately after [she] made a report to the OEO.” Ex. F, p. 4. However, while close in time,

Plaintiff impermissibly speculates that Dr. Ben-Hur knew of her OEO meeting.

Further, as noted above, the latest (i.e. the time closest to June 1, 2015) that Dr. Ben-Hur

learned of Plaintiff’s initial allegations about him was January 2014. Ex. W, Whitley Depo., p.

58:1-4. Plaintiff was removed Dr. Ben-Hur’s student’s Ph.D. committee on June 1, 2015, at least

four months later. Without more, this does not establish causation. See O'Neal, 237 F.3d at 1253;

Anderson, 181 F.3d at 1179, supra.

3. Dr. Ben-Hur had a legitimate, non-retaliatory reason for removing Plaintiff

from his student’s committee.

Given Plaintiff’s allegations concerning Basir, a student that Plaintiff and Dr. Ben-Hur

had in common, it was not unreasonable for Dr. Ben-Hur to be concerned about Plaintiff’s

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participation in his graduate student’s committee. Dr. Ben-Hur removal of Plaintiff was based, in

part, because of what Plaintiff had done to Basir, Dr. Ben-Hur “was not comfortable with

[Plaintiff] being on one of [his] student’s committees.” Ex. V, Ben-Hur Depo., p. 46:4-7.

G. Plaintiff’s claim based on the request for Dr. Whitley’s approval on a grant
amendment fails as a matter of law.

Plaintiff contends that Dr. Whitley alleged failure to approve a “routine amendment” to a

grant application was retaliatory. Ex. A, p. 9, Pl. Resp. to Disc.

1. Plaintiff did not suffer an adverse action.

As a threshold matter, Plaintiff is unable to articulate the particulars of the alleged action

or any harm that she suffered as a result of the alleged act; this is fatal to her claim. Cf. Estate of

Oliva, 579 F. Supp. at 676 ; see also, e.g. Jones v. Bush, 160 F.Supp. 3d 325, 345 (D.C. Cir.

2016)(Where the plaintiff is unable to describe the action or the harm stemming from it, it cannot

be said that she was dissuaded by it.) When asked during her deposition about the ‘administrative

change,’ Plaintiff responded that she “[didn’t] know if [she] could speak really clearly” and

referred to her collaborators on the project. Ex. A, Pl. Depo., p. 199:14-17. When asked about

how the grant was allegedly delayed, Plaintiff responded that she “[didn’t] remember the details.

[She] would have to be guessing.” Id., p. 201:19-24. However, the grant “had been in place and

spending for a long time;” the grant money had been distributed and at issue was the final

distribution of the overhead. Ex. W, Whitley Depo., p. 182:2-17.

2. Defendant had a legitimate non-retaliatory reason inquiring into basis for

the requested grant change.

Dr. Whitley inquired into the basis for the grant change request and ultimately referred it

to the Dean’s office because he had not seen this type of request before. The request for a

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contractual change to the agreed upon split of the overhead (or “indirect) costs was a “highly

unusual request.” Ex. X. at ¶ 17. The revision of the distribution of overhead was likewise

described by Plaintiff’s collaborator on the project as “a somewhat unusual way to partition

costs.” Ex. O, VandeWoude email. Thus, rather than signing the request, Dr. Whitley asked the

Dean’s office how to handle the request since he had never been asked to sign off on a similar

request. Ex. X at ¶ 17. The associate dean of the college was ultimately involved in resolving the

request for the change to the grant overhead. Id.; Ex. O.

H. Plaintiff’s claim based on her 2015/2016 raise fails as a matter of law.

Plaintiff has not exhausted this claim with the EEOC, see Section I. Thus, this claim is

not properly before the Court. Plaintiff’s claim fails for additional reasons.

1. Plaintiff cannot establish causation.

Plaintiff was informed of 2015-2016 raise on June 9, 2015. Ex. P, p. 3, Raise Docs.

However, the raise was based on the annual review that was conducted in March 2015. As

demonstrated regarding the 2014 Annual Review, Plaintiff cannot establish causation because (1)

of the significant gap between her October 2014 complaint and the March 2015 review and (2)

the issues raised in her 2014 Annual review were documented as problematic before Plaintiff

made any complaint about Dr. Ben-Hur. See Section III.A.1. Because Plaintiff’s raise was based

on her 2014 Annual review, causation fails for these same reasons.

2. Defendant had a legitimate non-retaliatory reason for the Plaintiff’s slightly

below Department-average raise.

Plaintiff received a below average raise because she received a below average annual

evaluation. The base merit raise for 2015/2016 was two percent. Ex. P, p. 1, Raise Docs. Dr.

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Whitley could not “just give everyone 2.0 percent” as raises must be based on merit. Id. Plaintiff

received a 1.8 percent base salary increase. Id., p. 3. The underlying basis for the raise – the 2014

Annual Evaluation, was supported by legitimate, non-retaliatory reasons. See Section III.A.2.

I. Plaintiff’s claim based on a ‘forced’ resignation fails as a matter of law.

Plaintiff has not exhausted this claim with the EEOC, see Section I, Thus, this claim is

not properly before the Court. Plaintiff’s claim fails for additional reasons.

1. Dean Nerger’s request for confirmation of Plaintiff’s and Dr. Ruiz’s

resignation was not an adverse action.

In order to be actionable, the alleged retaliation must “produce[] an injury or harm.”

White, 548 U.S. at 67. Despite Plaintiff’s characterization that she and Dr. Ruiz were forced to

resign, what Dean Nerger asked them to do was provide formal notice of what was already

known – that Plaintiff and Dr. Ruiz had accepted employment elsewhere. Plaintiff cannot

demonstrate harm based on Dean Nerger’s April 30 and May 9, 2016 requests.

When Dean Nerger sent her first email on April 30, 2016, Plaintiff and Dr. Ruiz had

already signed offers of employment with the University of Florida. See Ex. R, pp. 1, 9, 13, UoF

Docs. CSU Faculty contracts are for nine-month appointments ending on May 15 of each year.

See e.g., Ex.N, p. 1 Add’l Pers. Docs. Thus, the April 30, 2016 request was made when Plaintiff

and Dr. Ruiz had approximately two weeks left on their CSU employment contracts.

On May 9, 2016, Dean Nerger followed up again with Plaintiff and Dr. Ruiz about their

impending departure and asking for “formal letters of resignation.” Ex. S, pp. 2-3. Since Plaintiff

and Dr. Ruiz had been unresponsive to her April 30, 2016 request, Dean Nerger stated that “once

she [had] confirmation of your resignations, I will then instruct Cheryl to approve your spending

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requests below.” Id. Plaintiff cannot demonstrate that she was harmed by the request for formal

resignation or by Dean Nerger making the release of CSU funds contingent on that formal notice.

2. Plaintiff cannot establish causation.

Prior to May 2016, Plaintiff’s latest protected activity was her September 9, 2015 EEOC

charge. Ex. D. Dean Nerger sent her first request for confirmation on April 30, 2016. Ex. S, p. 1,

Nerger Requests. This is a gap of more than seven months and is insufficient to establish

causation. See O'Neal, 237 F.3d at 1253; see Anderson, 181 F.3d at 1179, supra.

3. Defendant had a legitimate non-retaliatory reason requesting confirmation

of Plaintiff’s and Dr. Ruiz’s resignation.

First, because Dean Nerger had already heard that Plaintiff and Dr. Ruiz intended to

resign, it was entirely reasonable to request confirmation. Ex. S, p. 1, Nerger Requests. Second,

Dean Nerger was concerned about the fall teaching schedule, “if they weren’t going to be here,

we couldn’t assign them to classes. If I didn’t have anybody to cover those classes, we would

then have students enrolling in classes that didn’t exist. Ex. Y, Nerger Dep., p. 146:4-9.

In addition, Plaintiff and Dr. Ruiz had been making arrangements for their departure from

CSU which included: informing colleagues that they would resign from grants, preparing

equipment for moves, and arranging funding for themselves and their students for the summer

months. See e.g., Ex. R, pp. 14-20, UoF Docs (highlighted). In her May 9, 2016, follow up

request, since Plaintiff and Dr. Ruiz had been unresponsive to her previous request, and had

since been continuing to move funds and equipment, Dean Nerger stated that “once she [had]

confirmation of your resignations, I will then instruct Cheryl to approve your spending requests

below.” Id. The requests for spending were against Plaintiff’s “start-up” account. Id. The start-up

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package is a sum of money provided by the Dean’s office when faculty begins working with

CSU and is intended “to be spent during the first three years” of the faculty member’s

appointment. Id. Ex. N, p. 2.

J. Plaintiff’s claim based on “slander” fails as a matter of law.

Plaintiff has not exhausted this claim with the EEOC, see Section I, nor has Plaintiff

included allegations of ‘slander’ in her Second Amended Complaint. See Section II. Thus, this

claim is not properly before the Court. Plaintiff’s claim fails for additional reasons.

Plaintiff impermissibly seeks to rely entirely on hearsay (and hearsay within hearsay) in

support of her claim. See Argo, 452 F.3d at 1199. Plaintiff asserts that (1) her student, Sarah, told

Plaintiff that Basir told Sarah that Dr. Ben-Hur said Plaintiff “hates all men,” this occurred

“maybe” in or around June or July 2016, Ex. A, Pl. Depo., p. 68:7-21; (2) approximately two

months before her January deposition, Dr. McConnell told her that Dr. Draper, said “Well,

Christina had psychiatric problems,” Id., pp. 69:20-70:8; and (3) approximately four to six

months before her deposition, Dr. Papadopoulos told her that Dr. Whitley said “Christina’s not a

loss.” Id., p. 69:7-16.

1. Plaintiff did not suffer an adverse action.

Plaintiffs assertion that former co-workers Dr. Draper and Dr. Ben-Hur made certain

statements about her fail because they are not sufficiently severe and because Plaintiff cannot

demonstrate that supervisory personnel orchestrated or condoned the alleged statements. See

Gunnell, 152 F.3d at 1264. Further, Plaintiff’s contention that Dr. Whitley said she is “not a loss”

40
does not constitute an adverse action. See e.g., also Brown, 700 F.3d at 1107 (supervisor’s name

calling of “trouble maker,” “cry baby,” and a “spoiled child” were not adverse actions).

2. Plaintiff cannot establish causation.

Plaintiff asserts that Dr. Ben-Hur’s commented about her in “maybe” in or around June

or July 2016. Plaintiff cannot establish causation as Plaintiff’s latest protected activity prior to

June or July 2016 was her September 2015 EEOC charge. See O'Neal, 237 F.3d at 1253; see

Anderson, 181 F.3d at 1179, supra. Plaintiff asserts that approximately two months before her

January deposition, Dr. McConnell told her about Dr. Draper’s statement. Ex. A, Pl. Depo., pp.

69:20-70:8. Plaintiff cannot demonstrate causation as her latest protected activity was her June

2017 Complaint in this matter. Plaintiff could only guess when Dr. Whitley commented and thus,

cannot establish causation. Ex. A, Pl. Depo., p. 69:7-16. (“I want to say, maybe, it was like four

to six months ago, maybe. I’m taking a guess.).

CONCLUSION

For these reasons, the Defendant respectfully requests the Court enter an order granting

CSU’s motion for summary judgment.

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Dated: May 28, 2018

Respectfully submitted,

CYNTHIA H. COFFMAN
Attorney General

s/Juliane DeMarco
JULIANE DeMARCO*
Assistant Attorney General
Civil Litigation and Employment Law
Attorneys for Defendant
*Counsel of Record

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 CERTIFICATE OF SERVICE

I certify that on May 28, 2018, I caused the forgoing Motion for Summary Judgment to
be served upon all parties herein by e-filing, addressed as follows:

Sam Cannon
Gordon Hadfield
CANNON HADFIELD STIEBEN &
DOUTT, LLC
3534 John F. Kennedy Pkwy, #B
Fort Collins, CO 80525
scc@cannonlaw.com
gmh@cannonlaw.com

s/Juliane DeMarco

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