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LARIMER COUNTY DISTRICT COURT

201 LaPorte Ave.,


Fort Collins, CO 80521
(970) 494-3500

CHRISTINA BOUCHER
Plaintiff

v.
BOARD OF GOVERNORS OF THE COLORADO
STATE UNIVERSITY SYSTEM dba COLORADO
STATE UNIVERSITY
Defendant
COURT USE ONLY
Sam Cannon #46132
Gordon Hadfield #42759
CANNON HADFIELD STIEBEN & DOUTT, LLC
3534 John F. Kennedy Pkwy, # B,
Fort Collins, CO 80525
Telephone: (970) 689-3037
Fax: (970) 360-1004 CASE: 17CV30516
e-mail: scc@cannonlaw.com; COURTROOM: 3C
gmh@cannonlaw.com

RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Dr. Christina Boucher (“Boucher”) asks the Court to DENY Defendant Board of

Governors of the Colorado State University System’s (“CSU’s”) motion for summary judgment.

As grounds for that request, she states as follows:

STATEMENT OF ADDITIONAL MATERIAL FACTS

The following are relevant, material facts left out of CSU’s statement of facts.
10. Despite the above allegations, Department chair Dr. Darrell Whitley (“Whitley”) claims no

one ever mentioned Jane Doe 1’s allegations to him. Exhibit 3, Whitley Dep. at 64:12-22.

11. During his interview with the Office of Equal Opportunity (“OEO”), Ben-Hur appeared to be

looking at the investigator’s chest. Exhibit 4, Mayhew dep. at 47:3:8.

WHITLEY’S HISTORY OF RETALIATING AGAINST FEMALE COLLEAGUES WHO


COMPLAIN ABOUT SEXUAL HARASSMENT

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CSU’S CULTURE OF GENDER DISCRIMINATION AND RETALIATION

27. In October 2014, computer science graduate students complained to a faculty member about

others “making unwanted advances” and “being biased . . . in working and collaborating with

others in terms of gender, nationality or race, and treating other people with discrimination.”

Exhibit 7, October 20, 2014 Email. (CSU_007467-7470).

28. Dr. , former Vice Provost for Undergraduate Affairs of CSU describes

CSU’s culture as it relates to gender bias and discrimination as follows: “it's an institution

that wants to hold up the notion of inclusivity and equality for -- for women in particular but

that it has a lot of unexamined aspects of its procedures and practices that end up reinforcing

a subculture of gender bias.” Exhibit 8, Dep. at 35:19-23.

29. Dr. continues, “my experience at CSU, coming in with a very broad lens, was that

there are many aspects that in other contexts are considered sort of blatant gender

discrimination that have yet to be examined by the leadership at CSU. And that things that

are taken for sort of emblematic examples of gender bias are still happening on a regular

basis within the upper administration because they themselves have not explored their own

male privilege and the practices within CSU that I would argue have not risen to

contemporary social norms around gender equality.” Id. at 36:6-16.

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30. In March 2017, CSU published a report on the status of women faculty at CSU. Exhibit 9,

Report.

31. Among the findings of that report are that “Participants consistently reported gender-based

inequities at both inter-personal and institutional levels,” “The experience of gender inequity

is most pronounced within “micro-cultures,” i.e., at the level of academic unit (e.g.

department),” “Participants viewed evaluation processes as erratic, unfair, and inconsistently

applied,” and “Participants who turned to institutional systems with grievances or complaints

often reported dissatisfaction with procedures and systemic barriers to resolutions.” Id. at 4.

32. There was also a very clearly articulated concern about retribution if female faculty

complain. Id. at 19.

33. CSU’s administration has accepted this study and the validity of the study. Exhibit 10,

30(b)(6) Dep. (Prieto) at 89:2-5.

34. From January 1, 2014 through summer 2016, OEO received 10 allegations of gender

discrimination, sexual harassment, or retaliation steaming from the College of Natural

Sciences alone. Of those, only two were investigated by OEO. Id. at 63:24-66:11.

BOUCHER’S HIRING AT CSU

36. During Boucher’s interview at CSU, Ben-Hur was on the team that interviewed her. Exhibit

11, Ben-Hur Dep. at 8:2-3.

37. At some point during the interview process, Boucher went to Ben-Hur’s office expecting to

have a meeting with Ben-Hur there. Exhibit 12, Boucher Dep. at 78:5-12.

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38. Instead, Ben-Hur took Boucher for a drive. Exhibit 11, Ben-Hur Dep. at 9:21-22. During the

drive, Ben-Hur stopped in a parking lot with views of Horsetooth Reservoir. Id. at 11:6-10.

39. When Ben-Hur had stopped at the Horsetooth overlook, he said Boucher “looked really

tense” and “should relax.” Exhibit 12, Boucher Dep. at 78:21-23. Boucher then asked Ben-

Hur to take her back to her hotel room, but he said “No, let’s – let’s sit and relax for a bit.”

Id. at 78:24 – 79:1.

40. This continued for 15 minutes with Boucher asking Ben-Hur to take her back to her hotel and

Ben-Hur refusing and telling her to relax. Id. at 79:6-11.

41. Boucher has interviewed at 13 other universities, and nothing like this has happened to her

before. Id. at 14:16.

BOUCHER’S WORK PERFORMANCE AT CSU BEFORE HER COMPLAINT OF


SEXUAL HARASSMENT

46. From the time CSU hired Boucher in 2012 until October 2014, Boucher had received no

formal discipline from CSU. Exhibit 3, Whitley Dep. at 10:11-19.

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47. From the time CSU hired Boucher in 2012 until October 2014, Boucher had received no

negative performance evaluations. Id. at 10:20-22.

48. From the time CSU hired Boucher in 2012 until October 2014, Boucher had received no

negative promotion and tenure letters. Id. at 10:23-25.

49. From the time CSU hired Boucher in Fall 2012 until December 31, 2012, Boucher published

two journal papers and two conference papers. She had no grant funding in 2012. Exhibit 13,

Boucher Personnel File (CSU 15-48) at CSU_000021.

50. Boucher’s 2012 performance in the category of research, scholarship & creative activity was

“meets expectations.” Id.

51. Boucher’s overall performance in 2012 was “meets expectations.” Id.

52. At CSU, “the annual evaluation then becomes the foundation for making decisions about the

distribution of merit [based raises].” Exhibit 14, 30(b)(6) Dep. (Bush) at 44:15-19.

53. Boucher received a 3.1% raise for academic year 2013/14. Exhibit 13, Boucher Personnel

File at CSU_000022.

54. During 2013, Boucher published two journal papers and one conference paper. She was also

funded by two grants. Id. at CSU_000027.

55. Boucher’s 2013 performance in the category of research, scholarship & creative activity was

“meets expectations.” Id.

56. Boucher’s overall grade for 2013 was meets expectations. Id.

57. Boucher’s interactions with a biology professor regarding life sciences students was not

raised in Boucher’s 2013 annual evaluation. Id.

58. If the incident between Boucher and the biology department had been a “major issue,” Janice

Nerger, Dean of the College of Natural Sciences (“Nerger”) would have expected it to come

up in the 2013 evaluation. Exhibit 15, Nerger Dep. at 104:9-17.

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59. Boucher received a 2.5% raise for academic year 2014-2015. Exhibit 16, 2013 Raise Letter at

CSU_00767.

60. Before Boucher’s 2014 annual evaluation, her reputation in the computer science department

was that she was an “excellent researcher.” Exhibit 17, Papadopoulos Dep. at 59:3-14.

BOUCHER’S INITIAL REPORT OF SEXUAL HARASSMENT AND RETALIATION

61. Boucher reported Ben-Hur taking her for a drive to a senior professor in the computer

science department, Dr. Adele Howe. Exhibit12, Boucher Dep. at 81:2-8.

62. On October 21, 2014, Boucher met with Whitley and reported conduct by Ben-Hur. Exhibit

3, Whitley Dep. at 30:1-31:4.

63. At various times, Whitley has told different stories about exactly what Boucher told him in

the October 21 meeting. In his deposition, Whitley said that Ben-Hur “looked at her chest,”

but he denied Boucher used the work “inappropriate” to describe Ben-Hur’s actions. Id. at

31:21-23. Nevertheless, during Whitley’s interview with OEO regarding Boucher, Whitley

said that Boucher used the work “inappropriately” to describe Ben-Hur’s actions. Exhibit 4,

Mayhew Dep. at 27:1-8.

64. Whitley has also told varying stories about the timeframe referenced in Boucher’s

complaints. In his deposition, he stated that when Boucher reported Ben-Hur’s ogling,

Whitley didn’t know when the ogling occurred. Exhibit 3, Whitley Dep at 213:12-23. But in

an email to the OEO investigator dated December 12, 2015, Whitley specifically stated that

Boucher’s report related to acts at a conference in 2012. Exhibit 18, December 12, 2015

Email. Then, in a sworn statement to the EEOC, Whitley said “She did not say when or

where the alleged action happened, but I had the impression the incident was recent.” Exhibit

19, Whitley Aff. ¶ 9.

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65. In October 2014, Boucher also reported Ben-Hur’s behavior to Nerger. Specifically, Boucher

said, “Ben-Hur looked at her inappropriately,” “that he looked at her chest,” and that “it

made her uncomfortable.” Exhibit 15, Nerger Dep. at 13:17-14:13.

WHITLEY, BEN-HUR, AND NERGER’S INITIAL REACTIONS TO BOUCHER’S


REPORTS OF SEXUAL HARASSMENT

66. Within a few days of Nerger’s meeting with Boucher, Nerger asked Whitley to talk to Ben-

Hur about being sure to make eye contact with people when he talks to them, especially

women. Id. at 17:11-18:4.

67. Within a few days of Nerger and Whitley’s phone call, Whitley said he had talked to Ben-

Hur. Id. at 18:17-19:7. Whitley told Nerger that Boucher’s allegations made Ben-Hur

“uncomfortable.” Id. at 19:11-14.

68. In a November 2014 meeting of the executive committee of the computer science

department, Whitley told committee members that Boucher had accused Ben-Hur of looking

at her chest. Exhibit 20, Strout Dep. at 18, 10-12. Whitley specifically stated that Boucher

had accused Ben-Hur of sexual harassment. Id. at 19:11-14.

70. On November 21, 2014, Nerger emailed Boucher to see “if things have settled down a bit

since we last talked.” Boucher responded stating “some things got better and some things got

worse.” She also said, “I am generally a bit miserable” and I started investigating other

opportunities.” Exhibit 21, November 21, 2014 Email.

71. On December 10, 2014, Boucher emailed Whitley and Nerger stating “Since the thing with

REDACTED, Asa has been very unfriendly to me. i.e., not including me onto

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announcements of bioinformatic talks, not answering any of [sic] emails. He'll email my

students about talk announcements but not me.” Exhibit 22, December 10, 2014 Email 1.

72. On that same day, Boucher emailed Nerger, in response to her email asking “have things

improved at all?” stating, “No, it's worse. After Darrell talked with Asa, it made it way

worse. He holds bioinformatics-meetings and invites Hamid and my students and deliberately

not me. Aside from being shut-out from my own research group in my department, I am

worried for my tenure case.” Boucher continued, “It’s the same thing that always happens,

you make a complaint about treatment and it ends up backfiring and you get treated worse.”

Exhibit 23, December 10, 2014 Email 2.

WHITLEY’S 2014 ANNUAL EVALUATION OF BOUCHER

73. Boucher’s 2014 annual evaluation took place in early 2015, after she had complained about

sexual harassment. Exhibit 13, Boucher Personnel File at CSU_000031.

74. On March 2, 2015, Nerger emailed Boucher stating that she wanted an assistant dean to sit in

on Boucher’ 2014 annual evaluation meeting with Whitley. When Boucher responded that

this made her nervous, and asking why it was necessary, Nerger responded, “Because you

have come to see me about the climate in the department and I know things with Asa have

been disruptive, these two things may well come up in your discussion with Darrell.” Exhibit

48, March 2 Email.

75. During 2014, Boucher published three journal papers and two conference papers. She was

also funded by three grants. Exhibit 13, Boucher Personnel File at CSU_000031.

76. Whitley rated Boucher’s 2014 performance in the category of research, scholarship, &

creative activity was “meets expectations.” Id.

77. Whitley rated Boucher below expectations in the categories of instruction, advising, &

mentoring and university, professional, public service, & outreach. Id.

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78. Whitley’s overall evaluation of Boucher for 2014 was meets/below expectations. Id.

80. Based on Whitley’s 2014 annual evaluation, Boucher received a below average 1.8% raise

for 2015/16. Exhibit 13, Boucher Personnel File at CSU_000044.

81. In comparison to Whitley’s negative evaluation of Boucher, in February 16, 2015, the

computer science P&T committee sent a letter to Boucher. Regarding her research, it said,

“In 2014 you published three journal articles. You also had two papers in good conferences,

three workshop papers, as well as three posters.” It also said that Boucher’s grant activity

was “highly commendable.” Regarding service, the letter said, “Your external service is good

for your stage.” The letter concluded that Boucher was “doing very well in all respects and

we are looking forward to your achievements in the years to come.” Id. at CSU_000029-30.

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87. Papadopoulos believes the issues Whitley raised in Boucher’s 2014 annual evaluation do not

raise to the level of including them in an evaluation, even when taken together. Exhibit 27,

July 8, 2015 Email at CSU_007479.

88. Before the evaluation, Nerger, who knew of the incidents Whitley referred to in the

evaluation, did not expect Whitley to give Boucher a below expectations evaluation. Exhibit

15, Nerger Dep at 45:1-10.

BOUCHER’S RESPONSE TO THE 2014 EVALUATION

89.

90. Nerger testified that this was the worst emotional distress she had ever seen a faculty member

experience as dean. Exhibit 15, Nerger Dep. at 60:24-25.

91. Soon after, Boucher requested a meeting with Nerger, , and various other

professors. The meeting took place in late March 2015. During that meeting, Boucher stated

that she believed Whitley’s evaluation was discriminatory and retaliatory. At this, Nerger got

very frustrated and said she was “done with the meeting.” Exhibit 15, Nerger Dep. at 78:14-

79:8. After Nerger stated the meeting was over, Boucher started crying. Id. at 192:14-17.

92. During the same meeting, Nerger agreed to allow Bruce Draper, another professor in the

computer science department, to be Boucher’s supervisor going forward. Id. at 89:18-24.

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93. On March 26, 2015, Nerger emailed Boucher stating, “I never want to see issues move to

formal grievances and always hope we can handle things ‘in house.’” Exhibit 29, March 26,

2015 Email.

94. After Boucher refused to accept Whitley’s revised evaluation of her and filed a grievance,

Nerger did not assign Draper as Boucher’s supervisor. Exhibit 15, Nerger Dep. at 89:18-24.

95. On May 12, 2015, Boucher revised her grievance of her evaluation. The revised grievance

stated, “In October 2014 I told Dr. Nerger and Dr. Whitley that when I talked with Dr. Asa

Ben-Hur about the behavior of a student that he made me feel uncomfortable by looking at

me inappropriately. I told Dr. Nerger in person and via email that I was concerned that I

maybe retaliated against due to my remarks.” Boucher continued, “Since the time I made a

complaint to Dr. Whitely and Dr. Nerger, Dr. Whitely has tried to tarnish my reputation with

other faculty and students in my department. Exhibit 30, Grievance at CSU_802, 804.

96. After reading Boucher’s revised grievance, Nerger sent an email to Whitley. The email read,

“I just read her grievance. Outrageous.” Exhibit 31, May 15, 2015 Email.

BEN-HUR, WHITLEY, AND NERGER’S INTERFERENCE WITH THE P&T PROCESS

97. During April 2014, the computer science department P&T committee met twice to discuss

Boucher. Exhibit 3, Whitley Dep. at 150:17-23.

98. Despite Ben-Hur having been told about Boucher’s allegations against him, Ben-Hur

remained on the P&T committee that was monitoring Boucher’s progress towards tenure. Id.

at 111:10-14.

99. At the first April P&T meeting, Boucher’s tenure case was discussed. At first, the meeting

was extremely positive about Boucher’s evaluation. But then Ben-Hur said that he had

“never been treated so hatefully by anybody in [his] life.” This “brought everything to a

screeching halt.” Exhibit 32, McConnell Dep. at 87:2-12.

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100. The P&T committee didn’t vote on Boucher’s progress towards tenure at the first

meeting. Instead, the committee “left wondering . . . what was this terrible thing that she'd

done that [they were] being asked to downgrade her for.” Id. at 50:14-16.

101. Another senior professor in the computer science department believes the evaluation and

Ben-Hur’s statements at the P&T committee had a negative impact on how Boucher was

perceived in the department.” Exhibit 17, Papadopoulos Dep. at 60:3-4.

102. Dr. Whitley came to the beginning of the second P&T committee meeting where

Boucher’s progress towards tenure was discussed. Exhibit 3, Whitley Dep. at 151:19-25.

103. In a sworn statement to the EEOC, Whitley said the following about Boucher’s allegation

that he attended a P&T meeting about her, “This is false. I have not attended any P&T

Committee meetings where Dr. Boucher's progress towards tenure has been discussed.”

Exhibit 19, Whitley Aff. ¶ 14.

105. Despite Ben-Hur and Whitley’s comments, the P&T committee issued a letter to Boucher

on April 10, 2015, describing Boucher’s research as “very impressive.” It also said that

Boucher was “co-PI on three interdisciplinary projects, two of them are very large” and “You

are working with renowned people and building relationships with faculty in other

disciplines.” The letter concluded that Boucher’s research was “very strong.” The letter also

stated that Boucher’s teaching evaluations were “very good” from both students and faculty

observers. And it said that her teaching style is “innovative” and notes that Boucher won a

CSU internal award for course redesign. The letter concluded by saying that Boucher was

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“doing really well” and that “the faculty member is making satisfactory progress toward

tenure and promotion.” Exhibit 13, Boucher Personnel File at CSU_000037-38.

106. After receiving the April 10 letter, Nerger emailed Whitley stating, “I'm extremely

dissatisfied with the T&P committee's decision to ignore your annual review and Christina's

comments to it.” The email continued, “We now have a situation where if we go to

grievance, it appears as though all the tenured faculty believe all is well and no changes are

needed vs. you who is now standing alone. In addition, at tenure time, if her record is simply

twice what we have on the table now, including all issues we have before us, she will have

good reason to appeal a decision that is contrary to her receiving both tenure and promotion.”

Exhibit 33, April 16, 2015 Email Chain at CSU_003662.

107. After sending the above email, Nerger asked the chair of the P&T committee for an

explanation of why Boucher’s negative evaluation from Whitley was not detailed in their

April 10 letter. Id. at CSU_003660.

108. The chair of the P&T committee responded that that P&T committee did not believe it

was “within the committee’s purview to adjudicate the grievance.” Exhibit 34, April 17, 2015

Letter.

109. At least one member of the P&T committee believed Nerger’s interference with the P&T

process was inappropriate. Exhibit 17, Papadopoulos Dep. at 57:12-18.

110. When asked whether she had ever gone back to a P&T committee and asked for

clarification about whether they considered negative information about a faculty member's

case, Nerger responded that she “didn’t think so.” Exhibit 15, Nerger dep. at 120:5-7.

WHITLEY’S MID-POINT EVALUATION

111. On April 15, 2015, Whitley wrote Boucher a letter regarding his perceptions of her

progress towards tenure. In that letter, he states, “If I only look at your CV, I agree with the

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positive and supportive comments provided to you by the Promotion and Tenure committee.”

Exhibit 13, Boucher Personnel File at CSU_00039-40.

112. Whitley then continued, “The primary concern I have is regarding personal interactions

with others on campus. In general, these incidents occur when another individual has done

something that causes you to take offense and you then lash out at them with threats and

accusations.” Id.

113. An earlier draft of this letter dated April 13, 2015 stated “These are not the only incidents

that have occurred,” after discussing each of the incidents CSU raises in this motion. Exhibit

35, April 13, 2015 Draft letter at CSU_003212.

114. According to Whitley, Nerger then edited the letter and returned it to him. Exhibit 3,

Whitley Dep. at 141:17-142:11.

115. When confronted with the draft letter in her deposition, Nerger said, “Oh, dear. I

recognize it.” But denied editing the letter. Exhibit 15, Nerger Dep. at 182:11-20.

DR. JAIME RUIZ’S LAB SPACE

116. Boucher’s husband, Dr. Jaime Ruiz (“Ruiz”) was also a CSU professor in the computer

science department. During his time at CSU, Ruiz fostered a highly collaborative lab

environment that resulted in successful publications for his graduate students. The lab

environment nurtured undergraduate researchers, allowed graduate students to take on

mentoring roles, and resulted in happy, productive students. As well as students working in

Ruiz’s lab space, he worked there himself. Exhibit 36, May 9, 2015 Email.

117. One night in Spring 2015, Ruiz’s students had been caught out in a rain storm. Another

student brought them dry clothes they could wear instead of the wet ones. Exhibit 37, Ruiz

Dep. at 57:2-6.

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118. Within days, Whitley came to Ruiz’s lab and said that he had issues with Ruiz’s use of

the lab due to the mess from the night with the wet clothes and a sofa being in the lab. Id. at

56:8-11.

119. Whitley said that he had had these concerns for the last two years but had not said

anything to Ruiz during those two years. Exhibit 36, May 9, 2015 Email.

120. Whitley left the lab saying that he would bring these issues up with the chair of the

facilities committee. Exhibit 37, Ruiz Dep. at 58:10-12.

121. In Summer 2015, Ruiz’s lab space was moved. Id. at 59:24-60:1.

122. Although Whitley claims that having a sofa in the lab violated department of computer

science policies, neither CSU nor the computer science department has a written policy about

sofas being in lab space. Exhibit 3, Whitley Dep. at 171:17-19. Further, no emails had been

sent out about this supposed policy. Id. at 172:4-5.

BEN-HUR’S REMOVAL OF BOUCHER FROM A STUDENT’S COMMITTEE

123. On or about June 1, 2015, Ben-Hur asked Boucher to step down from a student’s PhD

committee. Ben-Hur then unilaterally filled out the change form and slid it under Boucher’s

office door. Exhibit 38, June 1, 2015 Email; Exhibit 11, Ben-Hur Dep. at 45:9-12.

124. Ben-Hur admits that he asked Boucher to step down from the student’s PhD committee

because “[He] was feeling uncomfortable in her presence on a personal level.” Exhibit 11,

Ben-Hur Dep. at 46:3-5.

BOUCHER’S REQUEST FOR GRADUATE STUDENT FUNDING IN 2016

125. On May 9, 2016, Boucher asked Nerger to approve funding for three graduate students

over the Summer of 2016. Exhibit 39, May 9, 2016 Email.

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126. Nerger responded that once Boucher and Ruiz formally resigned their positions at CSU,

she would approve the funding requests. She then emailed an administrative assistant that

Boucher had “pushed her too far.” Id.

127. After hearing that her graduate students would not be paid unless she resigned, Boucher

resigned. Exhibit 40, May 10, 2016 Email.

128. Upon hearing that Boucher had resigned, Nerger emailed another CSU employee stating,

“This is not sad news. . . ” Exhibit 41, May 20, 2016 Email.

CSU’S RELEVANT POLICIES AND TRAINING MATERIALS REGARDING


ALLEGATIONS OF SEXUAL HARASSMENT AND RETALIATION

130. CSU’s mandatory employment training regarding sexual harassment states that

supervisors have “a responsibility to report every new complaint to the Office of Equal

Opportunity.” Exhibit 43, Selected CSU Training Materials at CSU_002085.

131. CSU’s department chair training states that if an employee or student claims

discrimination, “Immediately report the claim to CSU's OEO.” Id. at CSU_001680.

132. The department chair training goes on “Once you become aware of a claim [of sexual

harassment], immediately report the claim to the OEO.” Id. at CSU_001685.

133. CSU denies the above statements actually reflect its policy. Instead, CSU claims its

policy is that all CSU employees who receive complaints of sexual harassment are urged to

report them to OEO. Exhibit 10, 30(b)(6) Dep. (Prieto) at 47:13-48:9.

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134. CSU’s Office of General Counsel tells department chairs that “negative evaluations” are

an example of adverse treatment that can give rise to a retaliation case. Exhibit 43, Selected

CSU Training Materials at CSU_1689.

135. CSU’s Office of General Counsel also states that “exclusion from meetings and events”

are an example of adverse treatment that can give rise to a retaliation case. Id.

136. CSU’s training materials state that ogling or leering can be considered sexual harassment.

Id. at CSU_001709.

137. CSU’s training manuals also state that “females in non-traditional roles” are one of the

groups who get sexually harassed most often. Id. at CSU_001713.

138. Computer science fits into the definition of “non-traditional fields” as used in CSU’s

trainings. Exhibit 10, 30(b)(6) Dep. (Prieto) at 45:5-25.

139. Although CSU claims there is no academic industry standard related to conflicts of

interest in promotions and tenure decisions, when one professor makes a formal complaint

about another, that would “probably constitute an appropriate place for conflict of interest.”

Exhibit 14, 30(b)(6) Dep. (Bush) at 18:1-25. Still, CSU has no written policy or procedure

covering this situation. Id. at 47:16-48:3.

140. CSU has no policy regarding conflicts of interest in the merit raise process. Id. at 41:1-4.

141. Under the computer science department code, the department chair is not eligible to be a

member of the P&T committee and may only attend P&T meetings at the invitation of the

committee. Exhibit 44, Computer Science Code § 2.6(A).

142. It is “absolutely” an academic industry standard that the P&T committee is independent

of the evaluations performed by the department chair and the dean. Exhibit 14, 30(b)(6) Dep.

(Bush) at 14:17-15:8.

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BOUCHER’S INTERACTIONS WITH THE BIOLOGY DEPARTMENT

143. At the end of the email chain between Darrell Whitley and Dr. Shing Ho regarding life

science students in Boucher’s class, Whitley stated “the exchange has been a bit unkind to a

3rd semester untenured assistant professor who appears to have gotten beaten up in her first

mixed class.” Exhibit 45, November 13, 2013 Email at CSU_5363.

144. As of March 13, 2014, Whitley did not believe this incident was serious enough to justify

mentioning in Boucher’s 2013 annual evaluation. Exhibit 13, Boucher Personnel File at

CSU_000027.

BOUCHER’S INTERACTIONS WITH THE DENVER ZOO

145. During the original email chain regarding the Denver Zoo, the College of Natural

Resources Executive Director of Development and Operations states, “I don’t think any

action is necessary” after hearing about the incident. Def. MSJ Exhibit F at CSU_003832.

146. Papadopoulos does not believe the email from Boucher to the Denver Zoo was

unprofessional. Exhibit 17, Papadoupoulos Dep. at 24:11-15.

BOUCHER’S ACTIONS REGARDING THE NSF LETTER

147. On July 3, 2014, Whitley responded to Boucher’s request for a letter of reference for an

NSF grant by saying, “Do you want to edit the technical part? Do you want to add something

on outreach? Make sure I see a copy of what you are going to submit. But if you only edit the

technical part, it should be fine.” Def. MSJ Exhibit G at CSU_003894.

148. Boucher responded, “Okay, I am most likely going to have to change it because it sounds

too similar to what I wrote.” Exhibit 46, July 3, 2014 Email Chain at CSU_003411.

149. Boucher edited part of the letter. Ben-Hur also edited part of the letter. Exhibit 11, Ben-

Hur Dep. at 18:6-18.

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150. Ultimately, Whitley received a copy of the letter before it was submitted to NSF and he

said “Okay. Fine. Go ahead and submit it.” Exhibit 3, Whitley Dep. at 91:8-11.

151. At some point, Ben-Hur told Whitley that he did not edit the letter. But he later admitted

that he edited it. Id. at 122:1-123:16.

152. Whitley never disciplined Ben-Hur for editing the letter or for telling Whitley, his

supervisor, inconsistent answers about editing the letter. Id. at 123:17-124:1.

153. Whitley ultimately determined that because of the circumstances surrounding the editing

of the NSF letter that it did not justify inclusion in Boucher’s annual evaluation, and he

removed references to the incident. Id. at 91:1-22.

154. Despite removing reference to the NSF letter, Whitley did not change the grades on

Boucher’s 2014 annual evaluation. See Exhibit 13, Boucher Personnel File at CSU_000036.

BOUCHER’S ACTIONS REGARDING BASIR2

157. On or around October 17, 2014, before Boucher complained about sexual harassment,

Whitley emailed Professor Susan VandeWoude about Basir. The email stated that Dr.

Boucher had alleged Basir “said some extremely unprofessional, disrespectful (and

downright foul) things to you.” The email went on, “But Dr. Boucher also said this was

second-hand information.” Exhibit 47, October 17, 2014 Email at CSU_000124.

2
Unlike Jane Does 1 and 2 above, Boucher has used Basir’s first name here as CSU used it in its motion, which was

filed unsuppressed. Also, unlike Jane Doe 1, Basir is not a victim of sexual assault.

22
158. Ultimately, Whitley called Dr. VandeWoude and determined that Boucher’s second-hand

information was incorrect. Exhibit 3, Whitley Dep. at 20:12-20.

159. believes Boucher’s actions as they related to Basir were “trivial” in

comparison to what it takes to obtain tenure. Exhibit 8, Dep. at 142:21-143:9.

RESPONSE TO DEFENDANT’S STATEMENT OF FACTS

CSU’s statement of facts only tells part of the story of this case. Boucher’s above statement of

additional material facts gives the Court needed context to CSU’s statements. Further, based on

CSU’s statement of facts alone, it is not entitled judgment as a matter of law. In addition to the

above statements of additional material facts, the following allegations in Defendant’s statement

are disputed:

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.” Ex. F, Zoo Emails. p. 3.

Boucher disputes Defendant’s characterization of her statement to the Denver Zoo. She

was disappointed in the lack of support she received on a grant proposal, and she

expressed that. Defendant’s characterization of the exchange as Boucher “chiding” the

Zoo is inaccurate.

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. Ex. G, p. 4,

July 2014 NSF email.

Boucher disputes that there was a disagreement about the NSF letter. Dr. Whitley gave

her permission to edit it, which she did with the help of Dr. Ben Hur.

23
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 Dep., p. 20:16-24.

Boucher disputes Whitley’s characterization of this interaction. In his initial email to Dr.

VandeWoude, Whitley admits that Boucher told him this information was second hand

and that he was simply trying to investigate the truth of the allegations. Exhibit 47,

October 17, 2014 Email at CSU_000124.

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

happened.” Id.

Boucher disputes this is what Dr. Whitley concluded. Although this is what he wrote on

the annual evaluation, his email to Dr. VandeWoude indicates that he knew Boucher’s

statements were accurate but wanted to use the incident as pretext to retaliate against her.

Exhibit 47, October 17, 2014 Email at CSU_000124.

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

While Boucher admits that is what Dr. Whitley noted, she disputes that her behavior

violated the faculty manual.

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.

Boucher disputes that this is all Dr. Ben-Hur said. Specifically, Dr. McConnell testified

that “[Dr. Ben-Hur] was really upset. Said that she'd mistreated him, she'd been hateful to

him” and that D. Ben-Hur “ha[d] never been treated so hatefully by anybody in [his]

life.” Exhibit 32, McConnell Dep. at 86:22-87:7.

24
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.

Plaintiff disputes that Dr. Ben-Hur’s actions had anything to do with the comments about

Basir. Dr. Ben-Hur made it clear in the April 3, 2015 P&T committee that his problem

with Boucher was that she had treated him hatefully as opposed to his student Basir.

Exhibit 32, McConnell Dep. at 92:6-11.

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

participation on graduate student committees. Ex. K, Annual Evals.

Plaintiff believes this is a materially incomplete statement due to Dr. Whitley never

giving Boucher her 2015 annual evaluation. Accordingly, no evaluation was given after

the removal of Boucher from the PhD student’s committee. In addition, Boucher’s 2014

and 2015 P&T progress letters discuss how many student committees she is serving on.

Exhibit 13, Personnel File at CSU_000024, CSU_000029.

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.

Boucher disputes that Dr. Nerger was concerned about the fall schedule. In fact, she

simply wanted to be rid of Boucher and Dr. Ruiz. This is demonstrated by her email May

20, 2016 stating “this is not sad news. . .” Exhibit 29, May 20 Email (Nerger Exhibit 61).

And by her email on may 10, 2016 stating “she’s pushed me too far this time.” Exhibit

39, May 9, 2016 Email..

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]

25
confirmation of your resignations, I will then instruct Cheryl to approve your spending requests

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

This is an incomplete recitation of the referenced email chain. The remaining part of this

email chain is attached as exhibit 39. In it, Dr. Nerger makes it clear that she is refusing

to fund Boucher’s graduate students unless her and Ruiz formally resign. To that end, she

states that Boucher has “pushed me too far.” Exhibit 39, May 9, 2016 Email.

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.

Boucher disputes this characterization of the purpose of start-up funds. CSU has

stipulated that CSU does not prohibit the use of startup funds to pay students.

LEGAL STANDARD

The Court can enter summary judgment only if there is no material factual dispute and

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

establishing that there is no material factual dispute is on the moving party. Once the movant has

met this initial burden, the burden shifts to the nonmoving party to establish that there is a triable

issue of fact. Schultz v. Wells, 13 P. 3d 846, 848 (Colo. App. 2000).

Summary judgment is a drastic remedy and should only be granted if it is clear that the

moving party is entitled to a judgment as a matter of law. Clementi v. Nationwide Mut. Fire Ins.

Co., 16 P. 3d 223, 225 (Colo. 2001). In determining if summary judgment is proper, the

nonmoving party is entitled to all favorable inferences that can reasonably be drawn from the

facts. And all doubts must be resolved against the moving party. Id. at 225-26.

A person’s intent is a question of fact, so it is not an appropriate issue for summary

judgment. Wolther v. Schaarschmidt, 738 P. 2d 25, 28 (Colo. App. 1986). The Court should only

26
decide issues of causation if the facts are undisputed and it is clear that all intelligent persons can

draw only one inference from them. Moon v. Platte Valley Bank, 634 P. 2d 1036, 1038 (Colo.

App. 1981).

ANALYSIS

At the summary judgment stage, Title VII retaliation claims are analyzed under the

McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802-03 (1973), Colo. Civil Rights Com’n v. Big O Tires, Inc., 940 P.2d 397, 398

*Colo. 1997). Under that framework, Boucher must first present a prima facie case. Once

Boucher makes the prima facie showing, CSU must articulate a legitimate, nonretaliatory reason

for the adverse employment action. Boucher must then respond by raising a material factual

dispute about whether the asserted reasons for the adverse actions are pretextual. See Wells v.

Colorado Dept. of Transp., 325 F. 3d 1205, 1212 (10th Cir. 2003). The prima facie case consists

of the following elements: (1) Boucher opposed discrimination, harassment, or retaliation; (2) a

reasonable employee would have considered the challenged employment actions materially

adverse, and (3) a causal connection existed between the protected activity and the materially

adverse action. Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1202 (10th Cir. 2008).

CSU admits Boucher engaged in protected opposition to discrimination, harassment, or

retaliation on four occasions.3 So the first prong of the prima facie case is not at issue. Instead,

CSU makes five arguments in its motion: 1) Boucher failed to exhaust her administrative

remedies, 2) Boucher did not mention some facts in her complaint, 3) Boucher did not suffer any

adverse actions during her employment at CSU, 4) the negative actions CSU took against

3
As discussed below, Boucher opposed unlawful harassment or retaliation on many more occasions than that.

27
Boucher were not caused by her complaints of sexual harassment and retaliation, and 5) CSU

had legitimate non-retaliatory reasons for its actions. They are addressed in turn below.

1. BOUCHER HAS EXHAUSTED HER ADMINISTRATIVE REMEDIES

As relevant here, a Title VII plaintiff must file a charge with the EEOC within 300 days of an

alleged discriminatory or retaliatory action or else the claim is barred. National Railroad

Passenger Corporation v. Morgan, 536 US 101, 109 (2002). Each discrete retaliatory incident

must be presented to the administrative agency or else it is barred. Martinez v. Potter, 347 F. 3d

1208, 1210 (10th Cir. 2003). But a plaintiff may sue over events that are so tied to events in a

charge that the charge should have prompted an EEOC investigation of the events. See EEOC v.

R.G. & G.R. Harris Funeral Homes, Inc., (6th Cir. 2018) (available at

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0045p-06.pdf). Even if a retaliatory act is

barred under this rule, a plaintiff may still use the barred act to prove her case provided at least

one retaliatory act is preserved through the administrative process. See Morgan, 536 US at 113,

Martinez, 347 F. 3d at 1211.

The EEOC received Boucher’s charge of discrimination on September 8, 2015. 300 days

before then is November 12, 2014. Boucher concedes that she cannot base her case exclusively

on events occurring before that date. Boucher further concedes that she cannot base her claims

exclusively on CSU’s actions unless she presented the actions to the EEOC for investigation. In

this case, that means the case cannot rise or fall exclusively on the following acts: slander of her

by CSU and CSU’s refusal to fund Boucher’s graduate students unless she resigned. Because the

below acts are not discrete and separate from allegations contained in Boucher’s charge of

discrimination, Boucher disputes that she failed to exhaust her administrative remedies with

respect to the following actions: (1) Whitley’s Midpoint Evaluation of Boucher, (2) Nerger’s

interference with the P&T Committee in Spring 2015, and (3) Boucher’s 2015/16 raise.

28
Whitley’s midpoint evaluation of Boucher was simply an extension of the 2014 evaluation

procedure and therefore is preserved. The EEOC charge detailed Whitley’s 2014 annual

evaluation of Boucher and Ben-Hur’s interference with the P&T process in 2015. Upon receiving

that information, the EEOC’s investigation should have encompassed Whitley’s mid-point

evaluation as well. It was tied inextricably with both the 2014 annual evaluation and Ben-Hur’s

interference with the P&T committee. Accordingly, Boucher exhausted her administrative

remedies regarding Whitley’s midpoint evaluation. See Harris Funeral Homes, supra.

The same holds true for Nerger’s interference with the P&T committee’s 2015 review of

Boucher. The charge brought up Ben-Hur’s interference with the committee. Any reasonable

investigation into the events described in the charge would have uncovered and encompassed

Nerger’s interference with the P&T process. Accordingly, Boucher exhausted her administrative

remedies regarding Nerger’s interference with the P&T committee. See id.

The above arguments are even stronger for Boucher’s 2015/16 raise. As CSU testified,

Boucher’s negative 2014 evaluation was “the foundation” for her below average raise in

2015/2016. Exhibit 14, 30(b)(6) Dep. (Bush) at 44:15-19. Accordingly, any EEOC investigation

of the evaluation would have encompassed the raise as well, preserving Boucher’s right to sue

about the raise. See Harris Funeral Homes, supra. The negative 2014 annual evaluation was a

direct and proximate cause of the below average raise Boucher received for 2015/16. In that

sense, it is not a discrete retaliatory act covered by Martinez, 347 F. 3d at 1210. Instead it is the

logical result of the 2014 annual evaluation, which was mentioned in the EEOC charge.

2. BOUCHER CAN SEEK RELIEF BASED ON FACTS NOT SPECIFICALLY


MENTIONED IN THE SECOND AMENDED COMPLAINT

Under C.R.C.P. 8(a), a complaint must contain a “short and plain statement of the claim

showing that the pleader is entitled to relief.” The rule does not require a complaint to express all

29
facts that support a cause of action. Blake v. Samuelson, 524 P. 2d 624, 625 (Colo. App. 1974).

Instead, a general summary of the case that affords notice to the defendant of the issues for trial

is all the rules require. Smith v. Mills, 225 P.2d 483, 484 (Colo. 1950).

CSU argues Boucher may not rely on facts outside her second amended complaint to support

her claim. Specifically, it argues Boucher may not use allegations regarding slander by CSU and

an April 2015 letter from Nerger to the P&T committee regarding Boucher to prove her case.

This theory defies the plain language of C.R.C.P. 8 and the cases interpreting it. The complaint

set out a detailed summary of the facts known to Boucher at the time she originally filed it. That

she discovered additional facts through the discovery process is unsurprising. The original

complaint was sufficient to state a claim as was the second amended complaint at issue. Long

ago, Colorado courts rejected CSU’s argument that a plaintiff must plead all facts supporting a

cause of action in the complaint. See Blake, 524 P.2d at 625, Smith, 225 P.2d at 484. CSU had

notice of the basis for Boucher’s claim; that is all C.R.C.P. 8 requires.

3. A REASONABLE EMPLOYEE WOULD HAVE FOUND CSU’S RETALIATION


AGAINST BOUCHER MATERIALLY ADVERSE

Title VII forbids retaliation against an employee for opposing unlawful discrimination,

harassment, or retaliation. Burlington Northern & Santa Fa Railway Co., v. White, 548 U.S. 53,

59 (2006). To prove retaliation, an employee does not need to prove a tangible change in her

terms and conditions of employment. Id. at 67. Instead, retaliation is illegal if the claimed

adverse action would be likely to deter a reasonable employee from engaging in protected

activity. Id. at 68. Many actions that individually may not be materially adverse actions can

become material cumulatively. Rodriguez-Vives v. Puerto Rico Firefighters Corps, 743 F. 3d

278, 285-86 (1st Cir. 2014).

30
The following adverse actions were raised in Boucher’s EEOC charge of discrimination: (1)

Ben-Hur’s exclusion of Boucher from research meetings, (2) Whitley’s Spring 2015 evaluations

of Boucher and the Related Raise, (3) Ben-Hur’s statements at the April 2015 P&T committee

meeting, (4) Whitley and Nerger’s interference with the P&T committee, (5) Whitley’s threat to

take lab space away from Boucher’s husband, (6) Ben-Hur’s removal of Boucher from a PhD

student’s committee, and (7) Whitley’s delay of a grant.

Ben-Hur’s exclusion of Boucher from lab events was a materially adverse action. Although

its lawyers deny this, CSU’s Office of General Counsel tells its department chairs that “exclusion

from meetings and events” are an example of adverse treatment that can give rise to a retaliation

case. Exhibit 43, Training Materials (Whitley Exhibits 28-30) at CSU_1689. In addition,

collaborative research is an important part of CSU’s faculty evaluation system. This is evident in

Boucher’s 2012 and 2013 P&T letters and annual evaluations, which describe Boucher’s efforts

to build connections to other professors. Exhibit 13, Boucher Personnel File at CSU_000019, 21,

27. By excluding Boucher, Ben-Hur shut her out of opportunities to improve her standing in the

department and the university. It was a materially adverse action.

Whitley’s 2014 Annual Evaluation and related below average raise were materially adverse

actions. CSU, through its general counsel’s office, tells its department chairs that “negative

evaluations” are an example of adverse treatment that can give rise to a retaliation case. Exhibit

43, Training Materials (Whitley Exhibits 28-30) at CSU_1689. CSU also admits that the 2014

evaluation was the “foundation” of her below-average merit raise in 2015/16. Exhibit 14,

30(b)(6) Dep. (Bush) at 44:15-19. Therefore, the negative evaluation reduced her pay compared

to her peers. Further, as one of the gatekeepers of tenure, department chair evaluations have a

serious impact on tenure-track professors’ chances of promotion. See id at 52:16-24. Because

even CSU believes negative evaluations are materially adverse actions, negative evaluations

31
affect faculty pay, and department chairs vote on faculty tenure decisions, the negative 2014

annual evaluation was a materially adverse action. If this was not enough, Boucher’s

emails after meeting with Whitley about the annual evaluation show the importantance of the

negative evaluation. Exhibit 39, March 8, 2015 Email Chain at CSU_000230 (Nerger exhibit

40).

Ben-Hur’s statements to the P&T committee in April 2015 were materially adverse. As its

name suggests, the P&T committee is the primary arbitrator of promotion and tenure decisions at

CSU. Exhibit 14, 30(b)(6) Dep. (Bush) at 52:25-53:1. Two attendees of the April 2015 P&T

meetings have testified in this case. McConnell describes the effect of Ben-Hur’s statements as

follows: “It brought everything to a screeching halt. The meeting up to that point had been

extremely positive.” Exhibit 32, McConnell Dep. at 87:2-12. He continued, “The meeting had

been a disaster, I presumed she’d done something that had derailed her career…I talked with

[another P&T member] after the meeting, and she seemed disturbed by it. . . She said it was

really damaging to her perception, the perception of [Boucher] by the P&T committee.” Id. at

72:8-10, 88:2-9. Papadopoulos, another member of the P&T committee says that “the whole

incident had a negative impact on how she was perceived in the department.” Exhibit 17,

Papadopoulos Dep. at 60:3-4. Ben-Hur’s statements at the April 2015 P&T meetings brought an

extremely positive meeting for Boucher to a “screeching halt.” They damaged Boucher’s

reputation in the eyes of the same committee that would be the primary arbitrator of whether she

achieved tenure at CSU. Ben-Hur’s statements were materially adverse actions.

Nerger’s interference with the P&T process was a materially adverse action. In eight years as

dean, Nerger hasn’t asked a P&T committee to go back and take another look at negative

material relating to a professor’s tenure case. Exhibit 15, Nerger dep. at 120:5-7. CSU admits

that it is an academic industry standard for the P&T committee’s evaluation to be independent

32
from the department chair and dean. Exhibit 14, 30(b)(6) Dep. (Bush) at 14:17-15:8. This shows

how out-of-the-ordinary Nerger’s actions were. As dean, Nerger was each member of the P&T

committee’s boss’s boss. Her message to the committee had sufficient weight to be a materially

adverse action.

Whitley’s threat to take lab space away from Boucher’s husband was a materially adverse

action. Title VII prohibits retaliation against third-parties who have close relationships with a

person who engages in protected activity. See Thompson v. North American Stainless, L.P., 131

S.Ct. 863, 868 (2011). Even if they are never consummated, threats of retaliatory action can be

adverse actions under Title VII. Jeffries v. State of Kan., 147 F. 3d 1220, 1231 (10th Cir. 1998).

Here, Ruiz was threatened with the removal of his lab space that he had created especially for his

students. Ruiz attributed much of his students’ success to the non-traditional, highly

collaborative space he had fostered. Exhibit 36, May 9, 2015 Email (Ruiz Exhibit 6).

Accordingly, the threat to remove lab space from Ruiz struck at the core of Ruiz’s independence

as a researcher and mentor. In that light, a similar threat would be likely to dissuade a reasonable

employee from complaining about sexual harassment. It is therefore a materially adverse action.

See Burlington Northern, 548 U.S. at 68.

Ben-Hur’s removal of Boucher from a PhD student’s committee was a materially adverse

action. In Boucher’s first two years at CSU, the P&T committee complimented her on the

number of students she was advising and mentoring by being on their committees. The

committee wrote a letter in February 2014 specifically praising Boucher for being a committee

member for five graduate students stating, “This is a great start and a good way to build a

research program.” Exhibit 13, Boucher Personnel File at CSU_000024. The P&T committee

repeated this praise in February 2015, when Boucher was a committee member for seven

graduate students. Id. at CSU_000029. From these letters, it is clear that Boucher was evaluated

33
on her ability to serve on graduate student committees by “the primary arbitrators” of whether

she achieved tenure at CSU. See Exhibit 14, 30(b)(6) Dep. (Bush) at 52:25-53:1.

Whitley’s delay of a grant was a materially adverse action. Professors at CSU are graded on

their scholarship, teaching, and service. Part of the scholarship component of this evaluation is

grant funding, and CSU professors are evaluated on their ability to obtain grant funding. Exhibit

49, 30(b)(6) Dep. (Whitley) at 17:17-19. CSU professors are also evaluated on their ability to

collaborate across departments. See, e.g. Exhibit 13, Boucher Personnel File at CSU_000019, 37.

By delaying the grant, Whitley was impacting both Boucher’s funding and her ability to

collaborate with other researchers. Accordingly, it negatively affected areas on which she was

evaluated, so the delay of the grant was a materially adverse action.

Even if none of the above actions was materially adverse in themselves, together they are.

Boucher endured a campaign of retaliation that started within weeks of her initial complaint and

lasted until her final months at CSU. Although the impacts on Boucher’s mental health began as

early as March 2015, Exhibit 39, March 8, 2015 Email Chain at CSU_000230 (Nerger exhibit

40), the height of the impact on Boucher was in May 2016,

This mirrors the legal analysis. Each act listed above was serious in its own

right, but together they were death by a thousand cuts. Cumulatively, they were a materially

adverse action. See Rodriguez-Vives, 743 F. 3d at 285-86.

34
4. CSU’S RETALIATORY ACTIONS AGAINST BOUCHER WERE CAUSED BY HER
COMPLAINTS OF SEXUAL HARASSMENT AND RETALIATION

A causal connection between protected activity and an adverse action can be proven by

temporal proximity alone if the adverse action closely follows the protected activity. Haynes v.

Level 3 Communications, LLC, 456 F. 3d 1215, 1228 (10th Cir. 2006). Where there is a longer

time lapse between the protected activity and the adverse action, a plaintiff may prove causation

with other evidence. Id. For example, a six-week gap is enough by itself, but a three-month

period requires additional evidence. Compare Ramirez v. Oklahoma Dept. of Mental Health, 41

F.3d 584, 596 (10th Cir.1994) with Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th

Cir.1997).

Even without other evidence, temporal proximity would be enough to make out the prima

facie case. Boucher complained about sexual harassment to Whitley on October 21, 2014.

Exhibit 3, Whitley Dep. at 30:1-31:4. And she reported it to Nerger shortly after that. Exhibit 15,

Nerger Dep. at 13:17-14:13. Within a few days of Boucher’s report to Nerger, Whitley told Ben-

Hur of the accusation. Id. at 17:11-18:4. Less than one month later, on November 21, 2014,

Boucher told Nerger that some things had gotten worse after Ben-Hur was told of the accusation.

Exhibit 21, November 21, 2014 Email. On December 10, 2014, Boucher told Nerger that “after

[Whitley] talked to [Ben-Hur] things got way worse” and that Ben-Hur was excluding her from

lab events. Exhibit 22, December 10, 2014 Email 1; Exhibit 23, December 10, 2014 Email 2. To

summarize, within six weeks of Boucher’s initial allegations of sexual harassment, she had been

excluded from lab events so badly that she told her dean she was being retaliated against. Under

Ramirez, 41 F.3d at 596, that is sufficient to make out the prima facie case of retaliation.

That other acts took place longer after the protected activity does not defeat this argument.

CSU’s retaliatory campaign against Boucher started almost immediately after her initial

35
complaint of sexual harassment and continued for a year and a half. Just like CSU kept

retaliating against her, Boucher kept opposing the harassment. She complained about retaliation

by Ben-Hur in November and December 2014. She told Nerger she thought her evaluation was

retaliatory in a meeting in March 2015. Exhibit 15, Nerger Dep. at 78:14-79:8. Boucher grieved

the evaluation on the basis that it was retaliatory in May 2015. See Exhibit 30, Grievance at

CSU_802, 804. She met with OEO in May and later in the summer of 2015. All these actions

were protected, and CSU’s actions were never far behind. The negative evaluation was in March

2015. Exhibit 13, Boucher Personnel File at CSU_000031. Ben-Hur, Whitley, and Nerger’s

interference with the P&T committee took place in April 2015. See ¶¶ 97-110, supra. Whitley’s

midpoint evaluation of Boucher also took place in April 2015. Exhibit 13, Boucher Personnel

File at CSU_00039-40. Whitley threatened Ruiz’s lab space in May 2015. See ¶¶ 116-122,

supra. Ben-Hur removed Boucher from the PhD student committee in June 2015. Exhibit 38,

June 1, 2015 Email; Exhibit 11, Ben-Hur Dep. at 45:9-12. None of these materially adverse

actions took place more than six weeks after Boucher engaged in a protected act. Accordingly,

under Ramirez, 41 F.3d at 596, there is close enough temporal proximity to make out the prima

facie case.

Even if temporal proximity wasn’t enough to prove causation, there is plenty of other

evidence to support the prima facie case. Nerger’s initial response to Boucher’s use of the word

retaliation was to get frustrated and end the meeting about Boucher’s evaluation. Exhibit 15,

Nerger Dep. at 78:14-79:8. When she received the revised grievance, she emailed the accused

party, before any investigation had been done, and called the grievance “outrageous.” Exhibit 31,

May 15, 2015 Email. In addition, Whitley didn’t follow CSU procedures in dealing with

Boucher’s complaint, as he failed to maintain confidentiality, see Exhibit 10, 30(b)(6) Dep.

(Prieto) at 56:1-14, and he failed to immediately report the issue to OEO, see Exhibit 43,

36
Selected CSU Training Materials at CSU_001680. He also failed to take any action after

Boucher’s subsequent complaints of retaliation. Ben-Hur clearly spoke at the first April 2015

P&T meeting about how Boucher had treated him “hatefully.” Exhibit 32, McConnell Dep. at

87:2-12. Finally, Ben-Hur said Boucher made him feel “uncomfortable” so he excluded her

from lab events and removed her from a PhD student’s committee. Exhibit 11, Ben-Hur Dep. at

32:4-21, 45:9-12.

5. CSU’S OFFERED NON-RETALIATORY EXPLANATIONS ARE PRETEXT

A plaintiff may show pretext by demonstrating 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

infer that the employer did not act for the asserted non-discriminatory reasons. Anderson v.

Coors Brewing Co., 181 F. 3d 1171, 1180 (10th Cir. 1999). Procedural irregularities, including

deviations from normal company procedure, provide support for a plaintiff's assertion of pretext.

Garrett v. Hewlett Packard Co., 305 F. 3d 1210, 1220 (10th Cir, 2002). A plaintiff may also

show pretext with evidence that she was treated differently from other similarly-situated

employees who violated work rules of comparable seriousness. Kendrick v. Penske Transp.

Services, Inc., 220 F. 3d 1220, 1232 (10th Cir. 2000). An employee is similarly situated to the

plaintiff if the employee deals with the same supervisor and is subject to the same standards

governing performance evaluation and discipline. Id. Testimony of other employees that shows a

defendant’s pattern of discriminatory or retaliatory behavior or that helps discredit the

employer's assertion of legitimate motives is relevant in a Title VII case if it can be logically and

reasonably linked to the plaintiff’s case. Coletti v. Cudd Pressure Control, 165 F. 3d 767, 776-

777 (10th Cir. 1999).

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Because of (1) the inconsistencies in CSU’s explanations of its behavior, (2) the direct

evidence of animas by CSU regarding Boucher’s protected activity, (3) the deviations from

normal CSU procedure related to her complaints, (4) the differential treatment of Ben-Hur, and

(5) the similar experiences of other CSU employees, she has met her burden of showing pretext.

Inconsistencies in CSU’s explanations for its actions against Boucher show pretext.

Whitley’s varying explanations of Boucher’s initial report of sexual harassment and his change

of tune regarding Basir demonstrate this. Initially, in an email to CSU’s OEO, Whitley said

Boucher’s allegations were about behavior that took place long ago. Exhibit 18, December 12,

2015 Email. Then, in a sworn statement to the EEOC, Whitley said “She did not say when or

where the alleged action happened, but I had the impression the incident was recent.” Exhibit 19,

Whitley Aff. ¶ 9. Finally, in his deposition, Whitley said that he didn’t know when the alleged

behavior took place. Exhibit 3, Whitley Dep. at 213:12-23. Regarding Basir, Whitley originally

recognized that Boucher told him the information regarding Basir was secondhand information.

Exhibit 47, October 17, 2014 Email at CSU_000124. But by the time of Whitley’s 2014 annual

evaluation, this story had evolved to “You claimed this PhD student called Associate Dean

VanderWoude (sic) foul names to her face in your presence.” Exhibit 13, Boucher Personnel File

at CSU_000031. Whitley also swore to the EEOC that he never attended a P&T committee

hearing where Boucher’s tenure case was discussed. Exhibit 19, Whitley Aff. ¶ 14. That has also

been proven false. See Exhibit 32, McConnell Dep. at 77:17-24. Finally, Whitley stated under

oath that Nerger helped him edit his draft midpoint evaluation of Boucher. Exhibit 3, Whitley

Dep. at 141:17-142:11. Yet when confronted with the same document, Nerger said, “Oh, dear. I

recognize it” but then denied editing the letter. Exhibit 15, Nerger Dep. at 182:11-20. That

Whitley and Nerger’s explanations of key events in this case keep shifting, even in sworn

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statements, show that CSU’s explanations for its actions are pretext. See Anderson, 181 F. 3d at

1180.

The statements by Boucher’s supervisors demonstrate CSU’s animas towards Boucher

because of her complaints about sexual harassment and retaliation. In a meeting about Boucher’s

2014 evaluation, Nerger responded to Boucher’s statement that she believed the evaluation was

retaliatory by getting frustrated and saying the meeting was over. Exhibit 15, Nerger Dep. at

78:14-79:8. Then, when Boucher formally grieved the evaluation alleging retaliation, Nerger

emailed Whitley, the subject of the retaliation complaint, calling it “outrageous.” Exhibit 31,

May 15, 2015 Email. Ultimately, due to her allegations of harassment and retaliation, Boucher

“pushed [Nerger] too far.” Exhibit 39, May 9, 2016 Email. After Boucher resigned, Nerger was

relieved stating “this is not sad news.” Exhibit 41, May 20, 2016 Email. These statements, when

taken together show that Nerger, one of Boucher’s supervisors, thought her allegations of

retaliation were outrageous and that Nerger wanted her gone from CSU. That is clear evidence of

pretext. That Nerger has never before or since asked a P&T committee to revisit the decision to

remain silent on negative information regarding a P&T candidate supports this conclusion. See

Exhibit 15, Nerger dep. at 120:5-7.

CSU procedures urge employees to report allegations of sexual harassment and

retaliation to OEO. Exhibit 10, 30(b)(6) Dep. (Prieto) at 47:13-48:9. Its training materials go

further and mandate reporting. Exhibit 43, Selected CSU Training Materials at CSU_002085.

Whitley didn’t report Boucher’s allegations to OEO until months afterwards. CSU has a practice

of keeping allegations of sexual harassment on a need-to-know basis, and believes that if a

supervisor needs to seek advice from others regarding an allegation of sexual harassment, she

should try to keep the identities of the parties confidential. Exhibit 10, 30(b)(6) Dep. (Prieto) at

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CSU’s own report into its climate of retribution shows pretext. The Report went so far as to limit

quotes about retaliation for fear of making the retaliation worse. Exhibit 9, Report at 19. This

evidence of pervasive retaliation at CSU is admissible under C.R.E. 802(d)(2), as CSU has

adopted the Report and believes it to be valid. Exhibit 10, 30(b)(6) Dep. (Prieto) at 89:2-5. The

experiences of other women and the research into other victims of CSU’s retaliation are evidence

of pretext.

Because of CSU’s stated animas towards Boucher’s allegations, its failure to follow its

own policies, its differential treatment of Ben-Hur, and the similar experiences of other CSU

employees in the computer science department, the Court should find that Boucher has produced

sufficient evidence of pretext to allow Boucher to go to trial.

CONCLUSION

CSU asks the Court to deny Boucher a trial in this case. The record is full of factual

disputes that must be settled by a jury. Boucher asks the Court to DENY the motion.

DATED June 11, 2018.

Respectfully submitted by:

CANNON HADFIELD STIEBEN & DOUTT, LLC

Sam Cannon

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CERTIFICATE OF SERVICE

I certify that on June 11, 2018, a true and correct copy of the foregoing RESPONSE TO
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT was e-filed upon the following:

Cynthia Coffman
Juliane DeMarco
Ralph L. Carr Colorado Judicial Center
1300 Broadway 10th Floor
Denver, CO 80203
s/ Lisa Keller
For Cannon Hadfield Stieben & Doutt, LLC

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