Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEX—D. Colo.: Male sheriff’s sergeant advances claim his non-promotion was based on unlawful sex discrimination, (Apr 15, 2025)

By Kathleen Kapusta, J.D.

The sergeant argued that he adequately alleged the department’s justifications for not promoting him were pretextual, and “[a]n inference of discriminatory motive is permitted... when the reasons provided by the employer are proven to be unworthy of belief.”

Denying the City and County of Denver’s motion for judgment on the pleadings on the Title VII sex discrimination claim of a male sheriff’s department sergeant who alleged he was passed over for promotion in favor of less qualified women, a federal court in Colorado noted that he identified his employer’s stated reason for his non-promotion and provided specific examples as why those rationales could not be the reason he was not selected. While allegations of pretext, said the court, do not compel an inference of discrimination, they may support one (Bowen v. City and County of Denver, No. 24-cv-00917-NYW-NRN (D. Colo. Apr. 14, 2025)).

30x30 initiative. Hired as a deputy sheriff in 2005, the plaintiff was promoted to sergeant 10 years later. He alleged that for several years, policing agencies have been trying to hire more women as officers and supervisors, including through the 30x30 initiative, which is a pledge that by 2030, women will make up 30 percent of all police recruits. Although the sheriff’s department had not yet formally taken the pledge, it has, he alleged, “decided to have 30% of its workforce female by 2030.” Indeed, he claimed that as of April 2024, women made up 30 percent of the department’s workforce.

Promotion changes. In 2019, the sergeant applied for a promotion to captain. Prior to that year, he claimed, the department ranked all candidates based on their assessment scores and promoted the highest scoring employee on the list. For the 2019-2021 cycle, however, the department sorted candidates into high, mid, and low bands based on their assessment scores and all candidates whose scores landed them in the high band were eligible for promotion regardless of where their scores fell within the band. With the third highest assessment score, the sergeant was placed in the high band.

During that cycle, the sergeant asserted, the department promoted three employees to captain, all of whom were women. Although one of the women scored higher than the sergeant on the assessments, the other two purportedly received lower scores. When he asked why he had not been selected, he was told it was because “people found him overly rigid, nit-picky, petty, and unfair to his subordinates and those above him,” and he was ineligible for a promotion due to a pending Administrative Investigations Unit (AIU) case. According to the sergeant, however, the investigation did not open until mid-2021 and department policies preclude using an active AIU investigation against a candidate.

Background circumstances. In cases where the plaintiff is a member of a historically favored group, the court noted, “an inference of invidious intent is warranted only when ‘background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.” According to the sergeant, he alleged background circumstances establishing a prima facie discrimination case including that he was more qualified for the captain position than the women who were promoted, the department changed its promotion process, allowing it to discriminate against men, and the department was committed to the 30x30 initiative.

Commitment to initiative. The court turned first to the sergeant’s assertion that the “Department’s commitment to the Initiative establishes a practice or policy of favoring individuals belonging to groups regarded as disadvantaged” and that “the Department was actively trying to... promote more women when it decided not to promote [him].” Noting that his complaint allegations did not match this contention, the court pointed out that he alleged the department has not taken the 30x30 pledge but “decided to have 30% of its workforce female by 2030.”

And while he alleged that the initiative’s goal is to “hire more women as officers and supervisors” so that 30 percent of the department’s workforce is female, he did not allege that the initiative also aims to promote more women from within or that the department was actively trying to promote more women. Explaining that it was limited to the allegations in the complaint, the court declined to credit the sergeant’s reframing of those allegations in his response brief.

Change in promotion process. The sergeant next argued that the department’s change in its promotion process for the 2019-2021 cycle allowed it “to select less qualified minority candidates over more majority-qualified candidates based on factors other than their performance assessments,” which established the possibility of a discriminatory motive. But not only was he unable to produce any case law establishing that these allegations were sufficient to allege background circumstances, there were no well-pleaded factual allegations to support his assertion.

“While he contends in his Response that the old system was a ‘purely merit-based’ process ‘where sex could not be considered,’ there are no allegations in the Complaint that sex was a factor that could be considered during promotions under the new system,” said the court, noting that he alleged instead that candidates were sorted into three bands based on their assessment scores and that those within the group of top scorers were all eligible for promotion.

The complaint, observed the court, was also devoid of any allegations that the promotion process was changed for the specific purpose of promoting women or for the purpose of facilitating the consideration of sex in promotion decisions. Finding no “plausible allegations demonstrating that this new process was not neutral or that sex was a consideration in the promotion decision,” the court determined that the allegations did not establish the requisite background circumstances.

Promotions of women. As to the sergeant’s assertion he was more qualified than two of the women who were promoted and that this, coupled with his non-promotion, was sufficient to allege the requisite background circumstances, the court explained that simply “alleging that female candidates with lower scores were promoted over male candidates with higher scores is insufficient to plausibly allege that the Sheriff’s Department discriminates against men.” While the sergeant alleged that the department changed its promotion system to no longer automatically promote the candidate with the highest assessment score but to instead make all candidates within the high band eligible for promotion, there were no allegations regarding what factors are considered in deciding which high-band candidate to promote. Thus, his allegations were not sufficient to establish background circumstances under current Tenth Circuit authority, the court concluded.

Pretext. Finally, the sergeant argued that he adequately alleged that the department’s justifications for not promoting him were pretextual, which permits “an inference that it was something other than his interactions with the staff, like his sex, that caused him not to be promoted.” Here, the court found his allegations were sufficient to survive the department’s motion. He identified the department’s stated reasons for his non-promotion and provided specific examples as to why those rationales “could not be the reason” he was passed over for a promotion.

While allegations of pretext do not compel an inference of discrimination, they can support that inference, the court stated, and here the pretext issue precluded it from entering judgment in the department’s favor.

The case is No. 24-cv-00917-NYW-NRN.

Judge: Wang, N.

Attorneys: Thomas H. Mitchiner (Mitchiner Law) for Joseph Bowen. Jonathan David Saadeh, Denver City Attorney's Office, for City and County of Denver, Denver Sheriff Department.

Cases: SexDiscrimination Discrimination ColoradoNews