Jackson v. City & County of Denver ex rel. Denver Department of Human Services (628 F. Supp. 2d 1275, 2008)

United States District Court for the District of Colorado 2008-08-26

The Public Health and Welfare

Citations

Full opinion text

ORDER ON RECOMMENDATION OF MAGISTRATE JUDGE

MILLER, District Judge.

This case is before me on the recommendation of Magistrate Judge Craig B. Shaffer (Docket No. 70) that Defendants’ Motion for Summary Judgment (Docket No. 58) be granted. Plaintiff did not file an objection to the recommendation and, therefore, is not entitled to de novo review. 28 U.S.C. § 636(b); Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1462 (10th Cir.1988). I have reviewed the pertinent portions of the record, including the motion, the response, the reply, and the recommendation of Magistrate Judge Shaffer. For the reasons that follow, the recommendation shall be accepted.

Background

Plaintiff is an African American female and was born on January 3, 1952. She began her employment with Defendant Department of Human Services (“DDHS” or “Defendant” ) beginning in April 2002 when she accepted a promotion from her position in another department. Jackson’s position at DDHS was that of Administrative Support Assistant (“ASA”) IV in the Family and Children’s Services Department. During Plaintiffs employment in that position, she alleges that in December 2002 she filed an intake application with the Equal Employment Opportunity Commission (“EEOC”) relating to hostile work environment and disability discrimination. She did not, however, file a formal charge. Additionally, Plaintiff filed two internal grievances with DDHS in February 2003 regarding a written reprimand she received on January 24, 2003. Then, in November 2003, Plaintiff filed another internal grievance regarding disciplinary action.

In July 2004, due to an 8.2 million reduction in funding from the state of Colorado and the restructuring of services due to the implementation of a new human services database, Defendant was forced to lay off some of its employees. To identify which positions would be eliminated, Defendant used the following criteria: (1) preserve customer service by eliminating non-case carrying positions rather than case carrying positions which directly served clients; (2) maintain a consistent supervisor to supervisee ratio; (3) maintain program functions mandated by law; and (4) determine whether a non-mandated program was losing money. The analysis was done based on the position title rather than on the employee name. Once the positions to be eliminated were identified, seniority determined the specific employees in that position who would be laid off.

Plaintiffs position, the only ASA IV in her department, was one of the positions eliminated. However, based on Defendant’s lay off procedures, Plaintiff was given the option of accepting a demotion to ASA III in lieu of lay off. Plaintiff accepted this option on July 16, 2004, thereby “bumping” into the lay off category the person with the least seniority who previously occupied the ASA III position. The person “bumped” was Angela Johnson, a Caucasian employee. Plaintiff appealed her demotion in July 2004 but the demotion in lieu of lay off was upheld. Plaintiff alleges that although she was demoted, she continued to do the same work as she had done before, but with less compensation. Ultimately, sixty-six employees were affected by the lay offs, either by being laid off, being demoted in lieu of lay off, or retiring in lieu of lay off. Of the sixty-six employees affected, thirty-one were Caucasian, twenty-two were Hispanic, twelve were African American, and one was Asian.

Plaintiff continued in her ASA III position with Defendant until October 24, 2006 when she resigned. She subsequently filed a charge of discrimination with the Colorado Civil Rights Division on December 16, 2004 alleging discrimination based on “race/color (African American) and/or age, 52 (d.o.b. 1/3/52)” and including claims of disparate treatment and hostile work environment. (See Pl.’s Ex. 2 (Docket No. 63-2).) The Colorado Civil Rights Division determined that there was not sufficient evidence to support Plaintiffs charge of discrimination and the EEOC mailed a notice of right to sue to Plaintiff on April 19, 2006. Plaintiff picked up this notice from her mailbox on April 24, 2006 although she admits that it may have arrived on April 22, 2006. Plaintiff filed this lawsuit on July 24, 2006.

Standard of Review

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56. A factual issue is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “When applying this standard, [the court] view[s] the evidence and draws reasonable inferences therefrom in the light most favorable to the nonmoving party.” Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999) (citing Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir.1998)).

Where “the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying ‘a lack of evidence for the nonmovant on an essential element of the nonmovant’s claim.’ ” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir.2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998)). Then, “[t]o avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case.” Id. (citing Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir.1994)). “[T]he nonmovant is given wide berth to prove a factual controversy exists.’ ” MacKenzie v. Denver, 414 F.3d 1266, 1273 (10th Cir.2005) (quoting Jeffries v. Kan. Dep’t of Soc. & Rehab. Servs., 147 F.3d 1220, 1228 (10th Cir.1998)). A mere scintilla of evidence, however, is not sufficient to create a genuine issue of material fact and survive summary judgment. Simms, 165 F.3d at 1326 (quoting Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir.1997)). “Unsupported conclusory allegations ... [also] do not create an issue of fact.” MacKenzie, 414 F.3d at 1273 (citing Shalehpoor v. Shahinpoor, 358 F.3d 782, 789 (10th Cir.2004)).

A plaintiff alleging employment discrimination may prove intentional discrimination directly or indirectly. As is typical, this case is brought under the indirect analysis set forth in McDonnell Douglas Corp. v. Green, which provides a burden-shifting framework for assessing indirect, or circumstantial, evidence. 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see generally St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-08, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir.2000).

Under the McDonnell Douglas framework, the plaintiff bears the initial burden of presenting a prima facie case of discrimination. Kendrick, 220 F.3d at 1226. The essential purpose of the prima facie test is to eliminate “the most common nondiscriminatory reasons for” the employment action. See id. at 1227 (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)); see also St. Mary’s Honor Ctr., 509 U.S. at 506, 113 S.Ct. 2742 (prima facie case “in effect creates a presumption that the employer unlawfully discriminated against the employee”) (quoting Burdine, 450 U.S. at 254, 101 S.Ct. 1089) (alteration in quoted material). If the plaintiff establishes a prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason” for its action. Kendrick, 220 F.3d at 1226 (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). If the defendant presents such a reason, the plaintiff bears the “ultimate burden” of showing that these proffered reasons are a pretext for unlawful discrimination. Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1167 (10th Cir.2000).

To show pretext, a plaintiff must demonstrate that the defendant was more likely motivated by a discriminatory reason or that its proffered reason “is unworthy of credence.” Id. (quotation omitted). Three typical methods of showing pretext are: (1) evidence that the defendant’s stated reason for the adverse action was false; (2) evidence that the defendant acted contrary to a written company policy prescribing the action to be taken under the circumstances; or (3) evidence that defendant acted contrary to an unwritten policy or practice when making the adverse decision. Kendrick, 220 F.3d at 1230. Pretext may be shown “ ‘by 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.’ ” Rivera v. City & County of Denver, 365 F.3d 912, 925 (10th Cir.2004).

Discussion

In this case, Plaintiff brings six claims: (1) discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq.; (2) retaliation in violation of Title VII; (3) discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.; (4) discrimination in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq.; (5) violation of the Equal Pay Act,-29 U.S.C. § 206; and (6) Respondeat Superior. Additionally, some of the allegations in the Complaint indicate that Plaintiff is claiming she was subjected to a hostile working environment, a violation of Title VII. 42 U.S.C. § 2000e-2(a)(l); Tademy v. Union Pac. Corp., 520 F.3d 1149, 1156 (10th Cir. 2008) (“ ‘Although Title VII does not explicitly mention hostile work environment, a victim of a racially hostile work environment may nevertheless bring a cause of action under Title VII.’ ” (quoting Ford v. West, 222 F.3d 767, 775 (10th Cir.2000))). Magistrate Judge Shaffer recommends that Defendant’s motion for summary judgment be granted and this case be dismissed with prejudice.

1. Eleventh Amendment

Magistrate Judge Shaffer determined that Defendant was entitled to Eleventh Amendment immunity for the ADEA and ADA claims. See Kimel v. Fla. Bd. Of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (“[I]n the ADEA, Congress did not validly abrogate the States’ sovereign immunity to suits by private individuals.”); Migneault v. Peck, 204 F.3d 1003, 1004 (10th Cir. 2000) (noting that Kimel vacated prior Tenth Circuit precedent holding that the ADEA did abrogate the states’ immunity); Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 360, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (determining that the ADA did not validly abrogate the states’ Eleventh Amendment immunity); Whitney v. Bd. of Educ., 292 F.3d 1280, 1285 n. 1 (10th Cir.2002) (“[T]he Eleventh Amendment bars ADA claims against states.” (citing Garrett, 531 U.S. at 360, 121 S.Ct. 955)). “If applicable, the Eleventh Amendment bars suits against states in federal court.” Sutton v. Utah State Sch. For Deaf & Blind, 173 F.3d 1226, 1231-32 (10th Cir.1999). “Eleventh Amendment immunity extends to state agencies that act as arms of the state, but it does not extend to counties, cities, or other political subdivisions of the state.” Ambus v. Granite Bd. Of Educ., 975 F.2d 1555, 1560 (10th Cir.1992). The determination whether a particular state entity is an arm of the state such that Eleventh Amendment immunity applies is based on consideration of four factors: (1) the character of the entity under state law; (2) autonomy accorded the entity under state law; (3) the entity’s finances; and (4) whether the entity in question is concerned primarily with local or state affairs. Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d 1250, 1253 (10th Cir.2007) (citing Mount Healthy City Sch. Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), and Sturdevant v. Paulsen, 218 F.3d 1160, 1164, 1166 (10th Cir.2000)). Although the Tenth Circuit has not determined the issue, my colleagues in the District Court and the Colorado state courts have consistently concluded that Colorado county human services departments are arms of the state. See Freeman v. White, 2006 WL 2793139, at *8-9 (D.Colo. Sept. 28, 2006) (unpublished) (determining that DDHS is an arm of the state for purposes of Eleventh Amendment immunity and cataloguing other cases to hold the same). Therefore, I agree with Magistrate Judge Shaffer’s determination that the Eleventh Amendment bars Plaintiffs claims under the ADEA and ADA.

2. Exhaustion of Remedies and Timeliness of Action

Magistrate Judge Shaffer determined that Defendant was entitled to summary judgment with respect to Plaintiffs retaliation and ADA claims because Plaintiff did not exhaust her administrative remedies with respect to these claims. Plaintiff did not include allegations of retaliation or disability discrimination in the charge she filed with the Colorado Civil Rights Division in 2004. Consequently, the administrative investigation that would follow the charge would not reasonably be expected to include investigation of retaliation or discrimination based on disability. See MacKenzie, 414 F.3d at 1274 (determining that the claim in federal district court “is generally limited by the scope of the investigation that can reasonably be expected to follow the charge of discrimination” in the EEOC charge (citing Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir.1994) and Martin v. Nannie & Newborns, Inc., 3 F.3d 1410, 1416 n. 7 (10th Cir.1993))); Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir.2003) (“[E]ach discrete incident of [discriminatory] treatment constitutes its own ‘unlawful employment practice’ for which administrative remedies must be exhausted.” (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110-13, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002))). Therefore, Magistrate Judge Shaffer concluded that Plaintiff had not exhausted her remedies with respect to these claims and summary judgment in favor of Defendant was appropriate. I agree.

Relatedly, Defendant argued that Plaintiffs claim was time-barred because it was not filed within ninety days of receipt of the EEOC right to sue letter. In this case, if Plaintiff received the letter on the date that she picked it up from her mailbox, then her complaint is timely; however, if she received the letter two days before, as she admits is possible, then the complaint is not timely. See 42 U.S.C. § 2000e-5(f)(l) (“[W]ithin ninety days after the giving of [the right to sue letter] a civil action may be brought against the respondent named in the charge ... by the person claiming to be aggrieved.”). Applying the Tenth Circuit’s mail presumptions does not resolve the dispute. Lozano v. Ashcroft, 258 F.3d 1160, 1165 (10th Cir.2001) (noting that the Tenth Circuit has “implicitly sanctioned either a five-day or a. three-day presumption” of receipt after mailing). Drawing all inferences in Plaintiffs favor, Magistrate Judge Shaffer determined that summary judgment was not appropriate based on untimely filing as there remained issues of fact as to when Plaintiff was required to file her complaint. Simms, 165 F.3d at 1326 (holding that in a motion for summary judgment the court “view[s] the evidence and draws reasonable inferences therefrom in the light most favorable to the nonmoving party” (citing Byers, 150 F.3d at 1274)).

3. Title VII

First, with respect to Plaintiffs Title VII claim of disparate treatment, Magistrate Judge Shaffer determined that Plaintiff failed to meet her prima facie burden because, other than general allegations, she presented no evidence that other similarly situated employees were treated differently or that the decision to demote her was based on a discriminatory animus. See Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir.2005) (“To make out a prima facie case of discrimination the [plaintiff] must demonstrate (1) membership in a protected class, (2) adverse employment action, and (3) disparate treatment among similarly situated employees.” (citing Trujillo v. Univ. of Colo. Health Sci. Ctr., 157 F.3d 1211, 1215 (10th Cir.1998))); Kendrick, 220 F.3d at 1227 (“The critical prima facie inquiry in all cases is whether the plaintiff has demonstrated that the adverse employment action occurred ‘under circumstances which give rise to an inference of unlawful discrimination.’ ” (citing Burdine, 450 U.S. at 253-54, 101 S.Ct. 1089)). In fact, Plaintiff opined that the lay off decisions were not made based on race but made because “the department found [the laid off employees] expendable ... because they had no political or personal ,.. affinity to keep those people.” (Def.’s Ex. A-4 (Docket .No. 59-5) at 13,) Alternatively, Magistrate Judge Shaffer determined that Plaintiff failed to demonstrate that Defendant’s proffered legitimate reasons for demoting Plaintiff were merely pretext for unlawful discrimination. Indeed, Plaintiff did not present any evidence demonstrating that the lay off decisions were based on any criteria other than the process Defendant articulated. Therefore, Magistrate Judge Shaffer correctly determined that summary judgment in favor of Defendant was appropriate on this claim.

Second, assuming that Plaintiff was not barred from bringing the claim due to failure to exhaust administrative remedies, Magistrate Judge Shaffer concluded that Plaintiff failed to meet her prima fade burden with respect to her Title VII retaliation claim because she did not establish that there was a causal connection between her demotion and any protected activity. See Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1227 (10th Cir. 2008) (“A prima facie case of retaliation [is made] by showing ‘(1) she engaged in protected opposition to Title VII discrimination; (2) she suffered an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse employment action.’ ” (quoting Meiners v. Univ. of Kan., 359 F.3d 1222, 1229 (10th Cir.2004))). I agree. Plaintiff alleges that she engaged in three instances of protected activity: filing an EEOC intake form in December 2002, filing internal grievances in February 2003, and filing an internal grievance in November 2003. She does not, however, present any evidence linking her demotion to these activities. As there was not significant temporal proximity between the grievances and the démotion, Plaintiff could not rely solely on that aspect. See Haynes v. Level 3 Commc’ns, 456 F.3d 1215, 1228 (10th Cir.2006) (“A causal connection may be shown by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action. Standing alone, temporal proximity between the protected activity and the retaliatory conduct must be very close in time. Otherwise, the plaintiff must offer additional evidence to establish causation.” (internal quotation and citation omitted) (quoting O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir.2001))). Furthermore, Plaintiff also failed to demonstrate that those making the lay off decisions knew about Plaintiffs protected activities. Alternatively, Magistrate Judge Shaffer determined that summary judgment was appropriate because Plaintiff did not demonstrate that Defendant’s articulated reasons for the demotion were merely pretext for discrimination.

Third, Magistrate Judge Shaffer correctly determined that Plaintiffs hostile work environment claim should fail because Plaintiff failed to demonstrate that she suffered a workplace “ ‘permeated with discriminatory intimidation, ridicule, and insult, that [was] sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Sandoval v. City of Boulder, 388 F.3d 1312, 1327 (10th Cir. 2004) (quoting Davis v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th Cir.1998)); accord Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (“Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VI I’s purview.”). Plaintiffs allegations concerning her work environment — disagreement regarding the Michael Jackson verdict; a comment about the University of Phoenix, Plaintiffs alma mater; and Plaintiffs younger African American supervisor — are simply not sufficient in terms of frequency, severity, or interference with her job performance to maintain a hostile work environment claim. See Harris, 510 U.S. at 23, 114 S.Ct. 367 (holding that the totality of the circumstances must be analyzed to determine if conduct creates a hostile work environment including the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance”).

Finally, with respect to Plaintiffs disparate impact claim, Magistrate Judge Shaffer determined that Plaintiff failed to demonstrate that the lay off decisions, or any other employment practice, had a disparate impact on a protected group. See Carpenter v. Boeing Co., 456 F.3d 1183, 1187 (10th Cir.2006) (“ ‘[A] plaintiff may establish a prima facie case of disparate impact discrimination by showing that a specific identifiable employment practice or policy caused a significant disparate impact on a protected group.’” (quoting Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1312 (10th Cir.1999))). Therefore, he determined that Defendant was entitled to summary judgment on this claim. Again, I agree.

4. ADEA

Even assuming that Plaintiffs ADEA claim was not barred by the Eleventh Amendment, Magistrate Judge Shaffer correctly determined that Plaintiffs ADEA claims failed. First, with respect to Plaintiffs disparate treatment claim, he determined that she failed to meet her prima facie burden under the McDonnell Douglas burden shifting framework. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir.2002) (determining that ADEA claims are analyzed under the McDonnell Douglas paradigm); Jones v. Unisys Corp., 54 F.3d 624, 630 (10th Cir. 1995) (“An ADEA plaintiff must establish, that age was ‘a determining factor’ in the employer’s challenged decision” and may do so “ ‘by presenting direct or circumstantial evidence.’ ” (citations omitted)). Plaintiff did not present any evidence other than her own conclusory allegations that she was treated less favorably than younger employees or that the lay offs were unlawfully based on age. Additionally, Plaintiff did not present evidence demonstrating that Defendant’s legitimate reasons for the lay offs were pretextual.

Next, with respect to Plaintiffs disparate impact claim, Magistrate Judge Shaffer correctly concluded that Plaintiff failed to demonstrate the requisite disparate impact. See Carpenter, 456 F.3d at 1187 (“ ‘[A] plaintiff may establish a prima facie case of disparate impact discrimination by showing that a specific identifiable employment practice or policy caused a significant disparate impact on a protected group.’ ” (quoting Bullington, 186 F.3d at 1312)). Although Plaintiff stated that “it looks like 77 percent of the people [laid off] were 40 years of age or older” (see Def.’s Ex. A-4 (Docket No. 59-5) at 22) this does not establish a prima facie case because Plaintiff failed to present any evidence of the comparable population. See Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1243 (10th Cir.1991) (“[A]ny statistical analysis must involve the appropriate comparables and must cross a threshold of reliability before it can establish even a prima facie case of disparate impact.” (internal quotations and citations omitted)).

Alternatively, Magistrate Judge Shaffer determined that Plaintiff failed to demonstrate that Defendant’s lay off procedures were unreasonable. See Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1200 (10th Cir.2006) (“[A]fter an employee establishes a prima facie case of disparate impact age discrimination under the ADEA, the burden of production shifts to the employer to assert that its neutral policy is based on a reasonable factor other than age.... [T]o prevail on an ADEA disparate impact claim, an employee must ultimately persuade the factfinder that the employer’s asserted basis for the neutral policy is unreasonable.” (citations omitted)). In fact, Plaintiff did not address Defendant’s lay off procedures at all.

5. ADA

Even assuming that Plaintiff’s ADA claim is not barred by the Eleventh Amendment or her failure to exhaust administrative remedies, Magistrate Judge Shaffer concluded that Defendant was en-

titled to summary judgment on this claim because Plaintiff could not meet her prima facie burden. See MacKenzie, 414 F.3d at 1274 (“To prevail on her ADA claim, [a plaintiff] must establish: (1) she is a disabled person as defined by the ADA; (2) she is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) her employer discriminated against her because of her disability.”). As Plaintiff did not articulate any major life activity that is limited or that Defendant regarded as limited by her alleged disability, she failed to establish the first element of the prima facie case — that she was disabled or that Defendant regarded her as disabled. See 42 U.S.C. § 12102(2) (defining “disability as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;” (B) a record of such an impairment; or (C) being regarded as having such an impairment.”). Furthermore, Magistrate Judge Shaffer determined that Plaintiff failed to demonstrate that she suffered any adverse employment action due to her disability. Indeed, the lay off decisions were based on criteria completely separate than job performance and there was no evidence that Defendant was even aware that Plaintiff had a disability. I agree with Magistrate Judge Shaffer.

6.Equal Pay Act

Magistrate Judge Shaffer determined that Plaintiff did not have a cognizable claim under the Equal Pay Act because she did not allege that she was being paid less than a similarly situated male employee. See Sprague v. Thorn Ams., Inc., 129 F.3d 1355, 1364 (10th Cir.1997) (“To establish a prima facie case under the [Equal Pay Act], plaintiff, ‘has the burden of proving that (1) she was performing work which was substantially equal to that of the male employees considering the skills, duties, supervision, effort and responsibilities of the jobs; (2) the conditions where the work was performed were basically the same; (3) the male employees were paid more under such circumstances.’ ” (quoting Tidwell v. Ft. Howard Corp., 989 F.2d 406, 409 (10th Cir.1993))). Rather, Plaintiff alleges that she was paid less after the demotion although she was still performing the same job. Therefore, Magistrate Judge Shaffer correctly determined that Defendant was entitled to summary judgment on this claim.

7. Respondeat Superior

Finally, Magistrate Judge Shaffer noted that “Respondeat Superior” is not a separate claim for relief — rather, it is a theory of liability. Furthermore, as Plaintiff is suing only DDHS, she need not rely on respondeat superior. See EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 485 (10th Cir.2006) (“ ‘[A] tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer.’ ”) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 758, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). Therefore, Plaintiffs sixth claim for relief fails.

8. Conclusion

I have reviewed the pertinent portions of the record including the Complaint, Defendant’s Motion, Plaintiffs Response, Defendant’s Reply, and Magistrate Judge Shaffer’s Recommendation. I have also reviewed the legal authorities relied upon by Magistrate Judge Shaffer and discern no error. Therefore, as I agree with Magistrate Judge Shaffer’s recommendation, I conclude that Magistrate Judge Shaffer’s recommendation should be accepted.

Accordingly, it is ordered:

1. The recommendation of Magistrate Judge Shaffer (Docket No. 70) is accepted.

2. Defendants’ Motion for Summary Judgment (Docket No. 58) is granted.

3. Plaintiffs complaint shall be dismissed with prejudice.

4. Defendants may have their costs.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CRAIG B. SHAFFER, United States Magistrate Judge.

This civil action comes before the court on “Defendants’ Motion for Summary Judgment” (filed October 18, 2007) (doc. # 58). Pursuant to the Order of Reference dated July 25, 2006 (doc. # 2) and the memorandum dated April 3, 2008 (doc. # 69), the Motion was referred to the Magistrate Judge to “submit proposed findings of fact and recommendations for rulings on dispositive motions.” The court has reviewed the Motion and Brief, Ms. Jackson’s Response (filed November 15, 2007) (doc. # 63), Defendants’ Reply (filed November 30, 2007) (doc. # 65), the exhibits and affidavits, the entire case file, and the applicable law and is sufficiently advised in the premises.

I. Background

Ms. Jackson is an African American woman who was employed by the Denver Department of Human Services (“DDHS”) during the events relevant to this action. (See Complaint (doc. # 1) at ¶ 5). Ms. Jackson began her employment with DDHS in April of 2002 when she accepted a promotional position. (See Complaint at ¶¶ 21, 24). Since the filing of the Complaint Ms. Jackson has clarified that this action is brought solely against DDHS. (See Defendants’ Exhibit A-4 (doc. # 59-5) at pp. 9-10 of 28).

In July 2004 DDHS was required to reduce its workforce due to an 8.2 million dollar reduction in funding from the State of Colorado. (See Defendants’ Exhibit A-5 (doc. # 59-6) at ¶ 2). Also in 2004 the State of Colorado implemented a new Human Services database called the Colorado Benefits Management System (“CBMS”). (See id. at ¶ 3). The budget reduction and the implementation of CBMS forced DDHS to combine two of its previously separate divisions: Adult Services and Family Employment Resources. As a result of the July 2004 layoffs at DDHS, Ms. Jackson’s position in the Family and Children’s Services Division was abolished. (See Complaint at ¶¶ 33, 35).

Proceeding pro se, Ms. Jackson commenced this action on July 24, 2006 with the filing of her Complaint alleging six claims for: (1) discrimination in violation of Title VII, 42 U.S.C. § 20,00e, et seq.; (2) retaliation in violation of Title VII; (3) discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.; (4) discrimination in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq.; (5) violation of the Equal Pay Act, 29 U.S.C. § 206; and (6) “Respondeat Superi- or.”

II. Standard of Review

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the initial burden of showing that there is an absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant need not negate the nonmovant’s claim, but need only point to an absence of evidence to support the nonmovant’s claim. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. If the moving party meets this burden, the non-moving party may not rest upon its pleadings, but must come forward with specific facts showing that there is a genuine issue for trial as to the elements essential to the non-moving party’s case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

“In determining whether a genuine issue of material fact exists, the court must draw all reasonable inferences in favor of the nonmoving party.” Curtis v. Oklahoma City Pub. Sch. Bd. of Education, 147 F.3d 1200, 1214 (10th Cir.1998). See also Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994) (noting that “[b]ecause discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant”). The court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52,106 S.Ct. 2505. Immaterial factual disputes and evidence that is not significantly probative will not defeat a motion for summary judgment. Ayon v. Gourley, 47 F.Supp.2d 1246, 1252 (D.Colo.1998).

III. Analysis

A. Eleventh Amendment Immunity “If applicable, the Eleventh Amendment bars suits against states in federal court.” Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1231-32 (10th Cir. 1999) (citation omitted). State courts and courts in the District of Colorado have repeatedly applied the factors of Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), to hold that Colorado county human services departments are arms of the state under the Eleventh Amendment. (See “Order and Memorandum of Decision” (doc. # 85 at pp. 25-26 of 57) in Civil Action No. 05-cv-00164-EWN-CBS, Freeman v. White et al, 2006 WL 2793139 (D.Colo. Sept. 28, 2006) (collecting cases)). As a Colorado county health and human services department, DDHS is an arm of the State of Colorado. Thus, DDHS is entitled to Eleventh Amendment immunity from Ms. Jackson’s claim pursuant to the ADEA. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (holding that Congress did not validly abrogate the states’ Eleventh Amendment immunity in passing the ADEA). Further, DDHS is entitled to Eleventh Amendment immunity from Ms. Jackson’s claim pursuant to the ADA. (See “Order on Motion to Dismiss” (doc. # 46 at pp. 7-13 of 28) in Civil Action No. 03-cv-02122-WDM-CBS, Cisneros v. Colorado, 2005 WL 1719755 *4-6 (D.Colo. July 22, 2005) (dismissing claim pursuant to Titles I, II, and V of the ADA as barred by Eleventh Amendment immunity)). Defendants are entitled to summary judgment on Ms. Jackson’s Third and Fourth Claims for Relief based on Eleventh Amendment immunity.

B. Exhaustion of Administrative Remedies

1.Title VII Retaliation and ADA Claims

Defendants move for summary judgment on Ms. Jackson’s Title VII retaliation and ADA claims based on her failure to exhaust her administrative remedies. As a threshold issue, a plaintiff must exhaust certain administrative remedies in order to file a Title VII or an ADA claim in federal court. 42 U.S.C. § 2000e-5 (Title VII); 42 U.S.C. § 12117(a) (ADA, incorporating § 2000e-5(e)(l)). In the Tenth Circuit, exhaustion of administrative remedies is a jurisdictional prerequisite to instituting an action for employment discrimination under Title VII or the ADA. See Woodman v. Runyon, 132 F.3d 1330, 1341 (10th Cir.1997) (“[Ejxhaustion of administrative remedies is a jurisdictional prerequisite to instituting a Title VII action in federal court.”) (internal quotation marks and citation omitted); MacKenzie v. City and County of Denver, 414 F.3d 1266, 1274 (10th Cir.2005) (“In the tenth circuit, a plaintiff must exhaust her claims before the EEOC as a prerequisite to federal court jurisdiction over her ADA claims.”) (citation omitted).

“A plaintiffs claim in federal court is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge.... ” MacKenzie, 414 F.3d at 1274. See also Broum v. Hartshome Public School Dist. No. 1, 864 F.2d 680, 682 (10th Cir.1988) (a complaint may only include those claims which were explicitly raised in the administrative charge with the EEOC and “any discrimination like or reasonably related to the allegations of the EEOC charge”) (internal quotation marks and citation omitted).

Ms. Jackson filed one Charge of Discrimination with the EEOC in 2004. (See Defendants’ Exhibit A-9 (doc. # 59-10); see also Defendants’ Exhibit A-4 (doc. # 59-5) at p. 17 of 28). In her December 16, 2004 Charge of Discrimination, Ms. Jackson alleged:

II. Personal Harm: That on or about July 16, 2004, the Respondent demoted me from the position Administrative Support Assistant III[sic], for which I was otherwise qualified.

III. Discrimination Statement: I believe I was unlawfully discriminated against because: of race/color (African American) and/or age; 52 (d.o.b. 1/3/52) in violation.of the State anti-discrimination law and in violation of the Title VII of the Civil Rights Act of 1964 as amended and in violation of the Age Discrimination in Employment Act (ADEA). 1) I performed the duties of the position to a satisfactory manner since I was hired on or about April 1, 2002, 2) I was treated differently compared to similarly situated employees, who were not of my protected groups. 3) I believe the Respondent has subjected me to a hostile working environment. 4) The Respondent demoted me. 5) The Respondent filled the position I was demoted from.

(See Defendants’ Exhibit A-9 (doc. # 59-10)).

Ms. Jackson’s administrative charge relates to disparate treatment and a hostile work environment under Title VII and the ADEA. There is no reference in Ms. Jackson’s Charge of Discrimination to a disability or retaliation claim. Ms. Jackson responds to Defendants’ argument that she “filed a charge of disability discrimination in her prior EEOC filing” by referring to a Charge of Discrimination filed on or about June 23, 1997 regarding her employment at a different agency approximately five years before she was employed at DDHS. (See Plaintiffs Exhibit 1 (doc. # 63-2) at p. 1 of 20; see also Defendants’ Exhibit A-4 (doc. # 59-5) at p. 8 of 28).

Based- on Ms. Jackson’s representations in her Charge of Discrimination, any investigations and determinations regarding her discrimination claim either addressed or would reasonably be expected to have addressed her charges of race and age discrimination based on her demotion on July 16, 2004. See Powers v. Grinnell Corp., 915 F.2d 34, 38 (1st Cir.1990) (proper scope of a complaint in federal court is determined from the EEOC administrative charge and any actual investigation or any investigation which could reasonably have been expected to occur as a result of the charge). Ms. Jackson’s Charge of Discrimination cannot fairly be construed to encompass the claims of disability discrimination and retaliation contained in the Complaint. See Aramburu v. Boeing Co., 112 F.3d 1398, 1409-10 (10th Cir.1997) (wrongful discharge allegations not reasonably related to hostile environment allegations); Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 798-99 (10th Cir.1997) (allegations of racial discrimination and sexual harassment in EEOC charge were not “reasonably related” to retaliation claim); Mawson v. U.S. West Business Resources, Inc., 23 F.Supp.2d 1204, 1215-17 (D.Colo. 1998) (administrative charge containing only allegations of disability discrimination did not give defendants notice of any hostile environment or other Title VII claims). As Ms. Jackson’s ADA and Title VII retaliation claims raise matters unrelated to her Charge of Discrimination, this court’s jurisdiction does not extend to Ms. Jackson’s ADA or Title VII retaliation claims. Thus, Defendants are entitled to summary judgment on the Second and Fourth Claims for Relief.

2. Title VII and ADEA Claims

Defendants further move for summary judgment on Ms. Jackson’s Title VII and ADEA claims based on her failure to timely file suit within ninety days of receiving a right-to-sue notice from the EEOC.

Unless a plaintiff files suit within ninety days of receiving a right-to-sue notice from the EEOC, he or she is foreclosed from ■ bringing suit on the allegations made in the EEOC Charge of Discrimination. See 42 U.S.C. § 2000e-5(f)(l); 29 U.S.C. § 626(e). The 90-day time limit starts to run on the date the plaintiff receives the EEOC notice of right to sue. Jackson v. Continental Cargo-Denver, 183 F.3d 1186, 1189 (10th Cir.1999). The 90-day time limit is strictly administered. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (“Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants”).

Ms. Jackson filed a charge of discrimination against DDHS with the EEOC on December 16, 2004. {See Defendants’ Exhibit A-9 (doc. # 59-10)). The EEOC notified Ms. Jackson on April 19, 2006 of her right to file a civil action. {See Defendants’ Exhibit A-ll (doc. # 59-12); Complaint (doc. # 1) at p. 16 of 17). In her deposition testimony, Ms. Jackson alleged that the notice of right to sue may have arrived on Saturday, April 22, 2006 but that she did not pick it up until Monday, April 24, 2006. {See Defendants’ Exhibit A-4 (doc. # 59-5) at p. 18 of 28).

Ms. Jackson filed her Complaint on July 24, 2006. If the notice was received on April 22, 2006, Ms. Jackson had to file her Complaint on or before Friday, July 21, 2006 and her Complaint was untimely filed on Monday, July 24, 2006, 92 days after she received the notice of right to sue. If the notice was received on July 24, 2006, then Ms. Jackson had to file her Complaint on or before Sunday, July 23, 2006 and her Complaint was timely filed on Monday,

July 24, 2006. See Fed.R.Civ.P. 6(a)(3) (“the period runs until the end of the next day that is not a Saturday, Sunday legal holiday, ... ”).

“When the receipt date for an EEOC right-to-sue letter is unknown or disputed, federal courts have presumed various receipt dates ranging from three to seven days after the letter was mailed.” Lozano v. Ashcroft, 258 F.3d 1160, 1165 (10th Cir. 2001). The Tenth Circuit has “implicitly sanctioned applying either a five-day or a three-day presumption” of receipt after mailing. Lozano, 258 F.3d at 1165. Were the court to apply either a three-day or a five-day presumption of receipt after mailing of an EEOC right-to-sue letter, again Ms. Jackson had to file her Complaint either on or before Friday, July 21, 2006 or on or before Sunday, July 23, 2006, that is, Monday July 24, 2006. See Fed. R.Civ.P. 6(a)(3).

Drawing all reasonable inferences in favor of Ms. Jackson as the nonmoving party, the court must conclude that a genuine issue of fact remains as to whether Ms. Jackson timely filed suit within ninety days of receiving a right-to-sue notice from the EEOC. Defendants have not proffered conclusive evidence that Ms. Jackson actually received the notice of right to sue on April 22, 2006. Defendants are not entitled to summary judgment on the First and Third Claims for Relief on this basis.

C. Title VII Claims

1. Disparate Treatment

Title VII prohibits an employer from terminating any individual because of “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). Ms. Jackson alleges that Defendants subjected her to disparate treatment when she received the demotion in lieu of layoff in 2004.

Because Ms. Jackson has proffered no direct evidence of discrimination, the court “applies the three-part burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),” to Ms. Jackson’s Title VII disparate treatment claim. Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1220 (10th Cir.2007) (citation omitted). This framework requires Ms. Jackson to make a prima facie case of disparate treatment by showing: (1) membership in a protected class, (2) an adverse employment action, and (3) an inference of discriminatory intent. See. Kendrick v. Penske Trans. Srvs., Inc., 220 F.3d 1220, 1227-29 (10th Cir.2000) (noting that the “critical prima facie inquiry in all cases is whether the plaintiff has demonstrated that the adverse employment action occurred under circumstances which give rise to an inference of unlawful discrimination”) (internal quotation marks and citation omitted). Upon making this showing, “the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. If the employer satisfies this burden, summary judgment is warranted unless the employee can show there is a genuine issue of material fact as to whether the proffered reasons are pretextual.” Etsitty, 502 F.3d at 1220 (internal quotations omitted).

There is no dispute that Ms. Jackson is a member of a protected class and that she was demoted in lieu of layoff. Ms. Jackson does not make her prima facie case because it is not arguable that she was terminated under circumstances that create an inference of discrimination. Ms. Jackson offers evidence that the employees affected by the 2004 layoffs were not targeted based on their race; rather “the department found them expendable ... because they had no political or personal ... affinity to keep those people .... ” (See Defendants’ Exhibit A-4 (doc. # 59-5) at p. 14 of 28); see also p. 15 of 28 (Ms. Jackson believed that expendable employees were- those “employees who were not valuable to them politically, personally, or that no one really had any vested interest in ... ”). To prevail on a disparate treatment claim under Title VII, a plaintiff must show that his employer intentionally discriminated against him for a reason prohibited by the statute. See Salguero v. City of Clovis, 366 F.3d 1168, 1178 (10th Cir.2004) (Title VII “prohibits only intentional discrimination based upon an employee’s protected class characteristics.”) (internal quotation marks and citation omitted) (emphasis in original). Ms. Jackson has presented insufficient evidence that her demotion in lieu of layoff was motivated by discrimination.

Even if Ms. Jackson had presented a prima facie case, Defendants have present7 ed a legitimate business reason for her demotion in lieu of layoff. Roxane White was the Manager of the DDHS since August 27, 2003. {See Defendants’ Exhibit A-5 (doc. # 59-6) at ¶ 1). Ms. White and her executive management team determined the number of positions that needed to be cut in order to balance DDHS’ budget. {See id. at ¶ 5). Ms. White then gave instructions to her Division Directors to identify positions within their respective divisions that could be eliminated using the following guidelines: (1) preserve customer service by eliminating non-case carrying positions rather than case carrying positions which directly served clients of DDHS; (2) maintain a consistent supervisor to supervisee ratio; (3) maintain program functions mandated by law; and (4) determine whether a non-mandated program was losing money. {See Defendants’ Exhibit A-5 (doc. # 59-6) at ¶ 6). Once positions to be abolished were identified in each division, length of service (seniority) determined which employees would have their positions abolished. {See Defendants’ Exhibit A-3 (doc. # 59-4) at p. 2 of 50, ¶ 8)

Deputy Manager Cecilia Mascarenas, working in a committee of eight employees facilitated by Elaine Hoffman, State Field Administrator of the Colorado Department of Human Services, identified 28 positions in the Family and Children’s Services Division for elimination. {See Defendants’ Exhibit A-6 (doc. #59-7) at ¶2). Ms. Mascarenas and her committee identified positions to be abolished in the Family and Children’s Division by job titles, not by employee names. {See Defendants’ Exhibit A-5 (doc. # 59-6) at ¶ 3).

Following city-wide layoffs in 2003, on January 15, 2004 the Denver Career Service Board had adopted a revised layoff rule (Rule 14 — 40 through 14^9), with an effective date of March 19, 2004. {See Defendants’ Exhibit A-3 (doc. # 59-4) at p. 1 of 50, ¶ 4 and pp. 5-10 of 50). Under the revised layoff rule, employees whose positions were abolished could only bump into lower positions within their consolidation group that were in a class series, or were positions previously held by the employee, and the bumping employee had more seniority than the replaced employee. {See Defendants’ Exhibit A-3 (doc. # 59 — 4) at p. 2 of 50, ¶ 6 and pp. 11-17 of 50). ■

On or about June 4, 2004 the Career Service Authority delivered to Julie Maerz, Senior Personnel Analyst in the DDHS Human Resources Department, rank order lists to be used to match employees’ length of service with abolished positions. {See Defendants’ Exhibit A-3 (doc. # 59-4) at p. 2 of 50, ¶ 10). On June 8, 2004, Ms. Maerz received from the Career Service Authority a class series document to be used to determine bumping rights. (See Defendants’ Exhibit A-3 (doc. # 59 — 4) at p. 2 of 50, ¶ 11). Tamara Tyler and Ms. Maerz used the rank order lists to determine which employees would have then-positions abolished based on length of service, used the class series document to determine whether an employee in an abolished position was in a class series for purposes of bumping into a lower position, and used employee personnel files to determine whether an employee had previously held any other lower positions for purposes of bumping. (See Defendants’ Exhibit A-3 (doc. # 59-4) at pp. 2-3 of 50, ¶ 12). There were six layoff plans for the six consolidation groups at DDHS in July 2004 including the layoff plan for the Family and Children’s Services Division (See Defendants’ Exhibit A-3 (doc. # 59 — 4) at p. 3 of 50, ¶ 16 and p. 18 of 50). The layoff plans were reviewed by Peter Garritt of the Career Service Authority and approved by Kelly Brough, the Personnel Director of the Career Service Authority. (See id. at ¶ 18).

The layoff plan for the Family and Children’s Division , abolished twenty-eight positions including the Administrative Support Assistant (“ASA”) IV position held by Ms. Jackson, three ASA III positions and seven social case worker positions. (See Defendants’ Exhibit A-6 (doc. # 59-7) at ¶ 4). Ms. Jackson’s ASA IV position was the only ASA IV position in the Family and Children’s Service Division consolidation code. (See Defendants’ Exhibit A-6 (doc. # 59-7) at ¶ 5). Ms. Jackson’s position as an ASA IV was a non-case carrying position. Ms. Jackson’s ASA IV position was selected for abolition because its duties and functions could be absorbed by the remaining ASA III positions in the Division. (See Defendants’ Exhibit A-6 (doc. # 59-7) at ¶ 6); see also Plaintiffs Exhibit 6 (doc. # 63-2 at p. 12 of 20). Ms. Jackson was offered and accepted the opportunity to accept a demotion in lieu of layoff from an ASA IV to an ASA III position, effective July 16, 2004. (See Scheduling Order (doc. # 9) at p. 4; Complaint at ¶¶ 33-36; Plaintiffs Exhibit 3 (doc. # 63-2 at p. 3 of 20)). Pursuant to DDHS’ layoff plan, Angela Johnson, a white DDHS employee who held the position of ASA III, was bumped by Ms. Jackson. (See Defendants’ Exhibit A-3 (doc. # 59 4) at p. 1 of 50, ¶¶ 2, 3; pp. 45^6 of 50). After the 2004 demotion in lieu of layoff, Ms. Jackson remained employed at DDHS until she voluntarily resigned in October 2006. (See Defendants’ Exhibit A-4 (doc. # 59-5) at p. 3 of 28). Ultimately, 66 DDHS employees were impacted by the layoff by either being laid off, demoted to a lower position in lieu of layoff, resigning in lieu of layoff, or retiring in lieu of layoff. (See Defendants’ Exhibit A-3 (doc. # 59-4) at p. 4 of 50, ¶ 19 and pp. 49-50 of 50).

The evidence presented by Defendants indicates that the criteria for layoff were consistent with Denver Career Service Board rules and race-neutral. Thus, summary judgment is warranted unless Ms. Jackson can show there is a genuine issue of material fact as to whether the proffered legitimate, nondiscriminatory reasons were pretextual. Etsitty, 502 F.3d at 1220 (internal quotations omitted). Ms. Jackson’s evidence includes copies of emails regarding: her job duties as an ASA III (doc. # 63-2 at pp. 4-11 of 20), her communications with a former coworker before she began working for DDHS (doc. # 63-2 at pp. 13 of 20), and her sick leave records (doc. # 63-2 at pp. 14-16 of 20). Ms. Jackson’s exhibits also include a DDHS press release in 2003 (doc. # 63-2 at p. 17 of 20) and a Fact Sheet regarding the 2004 layoff (doc. # 63-2 at p. 19 of 20). None of this evidence is sufficient to demonstrate that she or African American employees were treated any less favorably than employees of other races. (See, e.g., Plaintiffs Response (doc. # 63-2) at pp. 4-20 of 20). Ms. Jackson’s own evidence show that among the employees she describes as “expendable,” approximately 18 were white, 11 were Hispanic, and eight or nine were African American. (See Defendants’ Exhibit A-4 (doc. # 59-5) at pp. 15-16 of 28). Of the total number of employees affected by the July 2004 layoff, 33 were white, 22 were Hispanic, 10 were African American, and 1 was Asian. (See Defendants’ Exhibit A-3 (doc. # 59-4) at p. 4 of 50, 1130; pp. 49-50 of 50). This evidence does not demonstrate that Ms. Jackson or African American employees were treated any less favorably than employees of other races. As Ms. Jackson has failed to present any evidence of pretext, Defendants are entitled to summary judgment on the First Claim for Relief.

2. Retaliation

Even if Ms. Jackson’s retaliation claim were not barred for failure to exhaust administrative remedies, it would fail on the merits. Title VII prohibits discrimination against an employee because “he has opposed any practice made an unlawful employment practice ... or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this chapter.” 42 U.S.C. § 2000e-3(a). “Where there is no direct evidence of retaliation, we analyze a retaliation claim under the McDonnell Douglas burden-shifting framework.” Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir.2004) (citing McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. 1817). See also Jeffries v. State of Kansas, 147 F.3d 1220, 1231 (10th Cir. 1998) (applying the McDonnell Douglas framework to a claim of retaliation).

“As to the McDonnell Douglas first prong, [Ms. Jackson] must first demonstrate a prima facie case.” Stover, 382 F.3d at 1071. “To state a prima facie ease of retaliation, [Ms. Jackson] must demonstrate that: (1) she engaged in protected opposition to discrimination; (2) [DDHS] took an adverse employment action against her; and (3) there exists a causal connection between the protected activity and the adverse action.” Stover, 382 F.3d at 1071 (citations omitted). A plaintiff must show that his or her protected activity was a “but for” cause of the adverse employment action. “If the employee does not bear that burden of persuasion, she may not prevail.” McDaniel v. Temple Indep. Sch. Dist., 770 F.2d 1340, 1346 (5th Cir.1985).

Once Ms. Jackson establishes a prima facie case, there is a presumption of retaliation and the burden of production then shifts to Defendants, who must articulate a legitimate, nondiscriminatory reason for the adverse employment action. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817.

The defendant’s burden is merely to articulate through some proof a facially nondiscriminatory reason for the [adverse employment action]; the defendant does not at this stage of the proceedings need to litigate the merits of the reasoning, nor does it need to prove that the reason relied upon was bona fide, not does it need to prove that the reasoning was applied in a nondiscriminatory fashion.

E.E.O.C. v. Flasher Co., 986 F.2d 1312, 1316 (10th Cir.1992).

If Defendants can produce evidence that the employment action was motivated by a legitimate nondiscriminatory reason for the adverse employment action, the presumption created by Ms. Jackson’s prima facie case drops out of the litigation. It then remains Ms. Jackson’s burden to show that her protected activity was a determinative factor in Defendants’ employment actions, or show that the explanation for the employment action was merely pretextual. Flasher, 986 F.2d at 1321.

To show that an employer’s proffered nondiscriminatory reason for an employment action is pretextual, a plaintiff must produce evidence of 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 nondiscriminatory reasons.

Equal Employment Opportunity Commission v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476, 490 (10th Cir.2006) (internal quotation marks and citation omitted). See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (ultimate burden of persuading the trier of fact that defendant deliberately discriminated against the plaintiff remains at all times with the plaintiff).

In moving for summary judgment on Ms. Jackson’s claim for retaliation under Title VII, Defendants contend that Ms. Jackson has not demonstrated either a causal connection between her protected activity and her demotion in lieu of layoff or that Defendants’ articulated legitimate reasons for her demotion are pretextual. Ms. Jackson submitted two grievances in February 2003, grieving a written reprimand that she received on January 24, 2003. (See Defendants’ Exhibits A-18, A-19 (docs. # 59-19 and # 59-20)). Ms. Jackson has presented no evidence of a causal connection between her grievances in February 2003 and her demotion in lieu of layoff 17 months later. See Trujillo v. PacifiCorp, 524 F.3d 1149, 1157 n. 5 (10th Cir.2008) (“In the context of retaliation claims, we have permitted plaintiffs to establish a prima facie case of discrimination by showing only close proximity in time between a protected activity and an adverse action.”) (collecting cases); Hinds v. Sprint/United Management Co., 523 F.3d 1187, 1204 (10th Cir.2008) (“retaliatory motive may be inferred from a close temporal proximity between an employee’s protected conduct and an employer’s adverse employment action.”). Nor has Ms. Jackson presented sufficient evidence of a causal connection with a grievance she allegedly filed in November 2003. (See Defendants’ Exhibit A-17 (doc. # 59-18) at p. 6 of 12). Ms. Jackson also “filed a grievance regarding my demotion in lieu of layoff in 2004.” (See Defendants’ Exhibit A4 (doc. # 59-5) at p. 17 of 28). This grievance does not support Ms. Jackson’s claim, as it occurred at the same time or after the demotion in lieu of layoff. (See Defendants’ Exhibit A-17 (doc. # 59-18) at pp. 6-7 of 12). There is no evidence that Ms. Jackson’s ASA IV position was abolished and she was offered an ASA III position based upon her previous grievances. See Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir.2007) (to satisfy the causal connection element, “a plaintiff must show that the individual who took adverse action against [her] knew of the employee’s protected activity.”) (internal quotation and citation omitted). The court must conclude that Ms. Jackson has not met her burden as to the third element of her prima facie retaliation claim.

Even if Ms. Jackson had made a prima facie case for retaliation, Defendants have presented legitimate and nondiscriminatory justifications for her demotion in lieu of layoff. The burden thus shifts back to Ms. Jackson to present evidence that Defendants’ “proffered reason for the employment decision was pretextual — i.e., unworthy of belief.” Kendrick, 220 F.3d at 1230 (internal quotation marks and citation omitted). It is not enough to disbelieve Defendants’ explanation. T