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March 26, 2026 Get Citation Alerts Download PDF Add Note

Joseph Bowen v. City and County of Denver, Denver Sheriff Department

District Court, D. Colorado

• Citations: None known
• Docket Number: 1:24-cv-00917

• Precedential Status: Unknown Status

• Opinion

• Authorities (34)

• Cited By (0)

• Summaries (0)

• Similar Cases (82.9K)

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Nina Y. Wang

Civil Action No. 24-cv-00917-NYW-NRN

JOSEPH BOWEN,

Plaintiff,

v.

CITY AND COUNTY OF DENVER, DENVER SHERIFF DEPARTMENT,

Defendant.

        MEMORANDUM OPINION AND ORDER                             

This matter is before the Court on Defendant’s Motion for Summary Judgment (or
“Motion”) filed on August 11, 2025. [Doc. 29]. The Court has reviewed the Motion and
concludes that oral argument would not materially assist in its resolution. For the reasons
set forth in this Order, the Motion for Summary Judgment is respectfully DENIED.

BACKGROUND

Plaintiff Joseph Bowen (“Plaintiff” or “Mr. Bowen”) was previously employed as a
sergeant for the Denver Sheriff’s Department (“Defendant” or “the Department”). [Doc. 1
at ¶ 7]. In 2019, he applied for a promotion to captain and was not selected. [Id. at ¶¶ 25,
39]. During the 2019–2021 promotion cycle, three candidates were promoted to captain;
all three successful candidates were women. [Id. at ¶¶ 46–47].

Plaintiff claims that the Department declined to promote him because of his male
sex. [Id. at ¶¶ 25, 66–83]. He sued the Department in April 2024, asserting one claim of
sex discrimination under Title VII of the Civil Rights Act of 1964. [Id.]. Defendant now
moves for summary judgment in its favor on Plaintiff’s claim. See [Doc. 29]. The Motion
is fully briefed, see [Doc. 31; Doc. 34], and is ripe for resolution.

LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “A dispute is genuine if there is sufficient evidence so that a rational
trier of fact could resolve the issue either way. A fact is material if under the substantive
law it is essential to the proper disposition of the claim.” Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (cleaned up). “There is no genuine issue of material
fact unless the evidence, construed in the light most favorable to the non-moving party,
is such that a reasonable jury could return a verdict for the non-moving party.” Bones v.
Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

At summary judgment, a movant that does not bear the ultimate burden of
persuasion at trial does not need to disprove the other party’s claim; rather, the movant

must only point the Court to a lack of evidence for the other party on an essential element
of that party’s claim. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998).

Once this movant has met its initial burden, the burden then shifts to the nonmoving party
to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quotation omitted).

When considering the evidence in the record, the Court cannot and does not weigh
the evidence or determine the credibility of witnesses. Forth v. Laramie Cnty. Sch. Dist.
No. 1, 85 F.4th 1044, 1052 (10th Cir. 2023). At all times, the Court views the record in
the light most favorable to the nonmoving party. Banner Bank v. First Am. Title Ins. Co., 916 F.3d 1323, 1326 (10th Cir. 2019).

UNDISPUTED MATERIAL FACTS

The following undisputed material facts are drawn from the summary judgment

record.

1. Plaintiff began working for the Department in 2005 as a deputy sheriff. [Doc.
29 at ¶ 1; Doc. 31 at 2 ¶ 1; Doc. 1 at ¶ 15]. He was promoted to a sergeant position in
2015 by Sheriff Elias Diggins (“Sheriff Diggins”). [Doc. 29 at ¶ 2; Doc. 31 at 2 ¶ 2; Doc.
29-1 at 90:23–91:4].

2. The Department utilizes two-year “cycles” for employment promotions.

[Doc. 29 at ¶ 10; Doc. 31 at 5 ¶ 10; Doc. 29-4 at 7:18–21].

3. For the 2019–2021 promotion cycle, candidates completed assessments
and exercises and participated in an interview. [Doc. 29 at ¶ 20; Doc. 31 at 5 ¶ 20; Doc.
1 at ¶¶ 39–41]. Based on their final scores, the candidates were sorted into three “bands”:

a high band, a mid band, and a low band. [Doc. 29 at ¶ 13; Doc. 31 at 5 ¶ 13; Doc. 29-4
at 30:15–24]. The Department could promote any person in the high band, regardless of
the candidate’s final score. [Doc. 29 at ¶ 17; Doc. 31 at 5 ¶ 17; Doc. 29-4 at 32:1–12;
Doc. 29-5 at 31:11–14].

4. Plaintiff applied for a promotion to captain in 2019 and completed the
assessment process. [Doc. 29 at ¶ 19; Doc. 31 at 5 ¶ 19; Doc. 1 at ¶ 39].
5. Plaintiff’s assessments resulted in a final score of 320.25, which placed him
in the high band. [Doc. 29 at ¶ 21; Doc. 31 at 5 ¶ 21; Doc. 1 at ¶ 43]. He scored a 50 out
of 100 in the interview portion, which was “on the lower side.” [Doc. 29 at ¶ 22; Doc. 31
at 5 ¶ 22; Doc. 29-6 at 1].

6. During the 2019–2021 promotion cycle, three candidates were promoted to
captain. [Doc. 29 at ¶ 28; Doc. 31 at 6 ¶ 28; Doc. 29-7 at 1].

1. Janelle Orozco, who scored the highest of all the candidates, was promoted to captain in 2019. [Doc. 29 at ¶¶ 30–31; Doc. 31 at 6 ¶¶ 30–31; Doc. 29-6 at 1; Doc. 29- 7 at 1].1
   
2. A male sergeant was selected for the next promotion to captaincy before he unexpectedly passed away. [Doc. 29 at ¶ 33; Doc. 31 at 6 ¶ 33; Doc. 29-3 at 29].
3. Keri Adcock, who had an assessment score of 310.42, was promoted to captain in September 2020. [Doc. 29 at ¶¶ 35–36; Doc. 31 at 6 ¶¶ 35–36; Doc. 29-6 at 1; Doc. 29-7 at 1].
   
4. Alberta Compton scored 305 on the assessment and was promoted to captain in November 2020. [Doc. 29 at ¶¶ 39–40; Doc. 31 at 6 ¶¶ 39–40; Doc. 29-6 at 1;

Doc. 29-7 at 1].

11. Mr. Bowen believes that both Captain Adcock and Captain Compton were
qualified for their promotions. [Doc. 29 at ¶¶ 37, 42; Doc. 31 at 6 ¶¶ 37, 42; Doc. 29-5 at
37:10–38:16].

12. In promoting employees, Sheriff Diggins looked for candidates who “[led]
with humanity,” had empathy, were respected, and had a good reputation among

1 Interim Sheriff Fran Gomez made the decision to promote Captain Orozco, not Sheriff
Diggins. [Doc. 29 at ¶ 30 n.1; Doc. 31 at 6 ¶ 30; Doc. 29-3 at 5].

subordinates, peers, and superiors. [Doc. 29 at ¶ 24; Doc. 31 at 5 ¶ 24; Doc. 29-1 at
46:2–16].

13. The Department received feedback and/or complaints from the Fraternal
Order of Police that Plaintiff’s subordinates perceived him to have an “overly rigid and

harsh management style.” [Doc. 29 at ¶ 3; Doc. 31 at 2 ¶ 3; Doc. 29-1 at 68:21–25,
70:14–19, 82:10–23, 83:13–24].2

14. In 2021, an Administrative Investigations Unit (“AIU”) investigation was
opened into alleged discriminatory conduct committed by Plaintiff. [Doc. 29 at ¶ 5; Doc.
31 at 3 ¶ 5; Doc. 29-1 at 69:15–21; Doc. 29-2 at 1–3].3

15. After the AIU investigation, Plaintiff was found to have not violated any
Department rules or policies, but it was recommended that Plaintiff receive training about
supervision and interpersonal communications. [Doc. 29 at ¶ 7; Doc. 31 at 4 ¶ 7; Doc.
29-2 at 3].

16. Sheriff Diggins stated that one of the reasons he decided to not promote

Plaintiff was his observations of Plaintiff and the type of leader Plaintiff was over his entire
career. [Doc. 29 at ¶ 44; Doc. 31 at 6 ¶ 44; Doc. 29-1 at 71:17–21, 72:22–23, 73:5–25].

2 Mr. Bowen “denies [that] all officers under him had this perception” and questions the
credibility of the reports of his management style. [Doc. 31 at 2 ¶ 3 (emphasis omitted)].

But Mr. Bowen does not deny that these reports were made or received. [Id.].

Accordingly, the Court deems this fact undisputed. See Fed. R. Civ. P. 56(e)(2) (“If a
party . . . fails to properly address another party’s assertion of fact as required by Rule
56(c), the court may . . . consider the fact undisputed for purposes of the motion.”).
3 Mr. Bowen denies much of the Department’s assertion of fact, but he does not deny that
an AIU investigation was opened against him. [Doc. 31 at ¶ 5].

ANALYSIS

When a plaintiff asserting a discrimination claim relies on circumstantial evidence
of discrimination (as opposed to direct evidence), courts employ the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Mauldin v. Driscoll, 136 F.4th 984, 993 (10th Cir. 2025).4 Under this framework, the

plaintiff has the initial burden of establishing a prima facia case of discrimination. Id. This
requires the plaintiff to show (1) he is a member of a protected class; (2) he experienced
an adverse employment action; and (3) “the challenged action occurred under
circumstances giving rise to an inference of discrimination.” McNellis v. Douglas Cnty.
Sch. Dist., 116 F.4th 1122, 1139 (10th Cir. 2024) (quotation omitted).

If the plaintiff meets this burden, then the employer must “‘articulate some
legitimate, nondiscriminatory reason’ for its action.” Mauldin, 136 F.4th at 993 (quoting
McDonnell Douglas, 411 U.S. at 802). If it does so, then the burden moves back to the
plaintiff to “show there is at least a genuine issue of material fact as to whether the

4 Mr. Bowen asserts that the McDonnell Douglas framework “is not a substantive legal
standard that a plaintiff must establish to survive summary judgment,” [Doc. 31 at 12],
and frequently cites a concurring opinion that critiques the use of the McDonnell Douglas
framework at the summary-judgment stage, see [id. at 1, 12–14, 16 (citing Jenny v.
L3Harris Techs., Inc., 144 F.4th 1194, 1202 (10th Cir. 2025) (Eid, J., concurring))]; see
also Jenny, 144 F.4th at 1202 (Eid, J., concurring) (stating that “McDonnell Douglas has
faced mounting scrutiny over the years” and collecting cases). To the extent Plaintiff
suggests that this Court should disregard the McDonnell Douglas framework in its
analysis, the Court cannot do so. The Tenth Circuit continues to employ this framework
in its summary-judgment analysis, see, e.g., Mauldin, 136 F.4th at 993; Byrnes v. St.
Catherine Hosp., 158 F.4th 1107, 1113–14 (10th Cir. 2025), and the Court remains bound
by this authority absent a United States Supreme Court or en banc Tenth Circuit decision
overruling this precedent, Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996); see
also Van Huss v. Bill’s Elec., Inc., No. 24-cv-00213-SH, 2025 WL 2834742, at *11 (N.D.
Okla. Oct. 6, 2025) (“This Court is bound by Tenth Circuit precedent, and that precedent
teaches that the McDonnell Douglas framework is appropriately used at the summary
judgment stage.”).

employer's proffered legitimate reason is genuine or pretextual.” Jenny v. L3Harris
Techs., Inc., 144 F.4th 1194, 1198 (10th Cir. 2025) (quotation omitted).

Generally speaking, “a plaintiff who has shown pretext under the McDonnell
Douglas framework . . . need not do anything further to avoid summary judgment.” Id. (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146–48 (2000)). But
in “rare” cases, where “no rational factfinder could conclude that the [adverse
employment] action was discriminatory,” summary judgment may be appropriate. Id. (first
quoting Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1282 (10th Cir. 2010); then
quoting Reeves, 530 U.S. at 148). The Supreme Court has identified “only two”
circumstances in which this exception could apply: “(1) if the record conclusively revealed
some other, nondiscriminatory reason for the employer’s decision’ or (2) if ‘the plaintiff
created only a weak issue of fact as to whether the employer’s reason was untrue and
there was abundant and uncontroverted independent evidence that no discrimination had
occurred.’” Id. at 1198–99 (quoting Reeves, 530 U.S. at 148).

I. Prima Facie Case of Discrimination

The Department argues that Mr. Bowen cannot establish a prima facie case of
discrimination because he cannot show that the Department’s decision to pass him over
for a promotion “was based on him being male or under circumstances which give rise to
an inference of unlawful discrimination.” [Doc. 29 at 13]. Plaintiff responds that
“[r]ejecting a more qualified candidate in favor of a minority applicant with lesser
qualifications raises [an] inference of discrimination,” relying on a case from the District
of Columbia Circuit. [Doc. 31 at 21 (citing Harding v. Gray, 9 F.3d 150, 153 (D.C. Cir.
1993), abrogated on other grounds by Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303 (2025))].

The Court notes that, in the Tenth Circuit, the plaintiff’s qualifications are usually
discussed in the pretext analysis, as opposed to the initial prima facie analysis. See, e.g.,

Jaramillo v. Colo. Jud. Dep’t, 427 F.3d 1303, 1308–09 (10th Cir. 2005); Johnson v. Weld
Cnty., 594 F.3d 1202, 1211 (10th Cir. 2010); Ford v. Jackson Nat’l Life Ins. Co., 45 F.4th
1202, 1219 (10th Cir. 2022). Moreover, the Court is respectfully unpersuaded by
Plaintiff’s reliance on Harding to suggest that the promotion of an allegedly less qualified
person necessarily raises an inference of discrimination, as the District of Columbia
Circuit more recently stated that “[i]n order to justify an inference of discrimination, the
qualifications gap must be great enough to be inherently indicative of discrimination.”

Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006). It is undisputed that Plaintiff,
Captain Adcock, and Captain Compton were all categorized in the same “high band,”
making all three eligible for promotion to captain. [Doc. 29 at ¶¶ 17, 35, 40; Doc. 31 at

5–6 ¶¶ 17, 35, 40]. Plaintiff does not advance any arguments about the size of the gap
between his qualifications and the women who were promoted over him, or legal authority
to suggest that the use of the band system itself satisfies the inquiry at the prima facie
stage. See [Doc. 31 at 12–13].

The Tenth Circuit has a “tradition of treating McDonnell Douglas’s prima-facie-case
requirement as an entirely flexible standard,” Plump v. Gov’t Emps. Ins. Co., 161 F.4th
1222, 1232 (10th Cir. 2025), and “the articulation of the plaintiff’s prima facie test might
vary somewhat depending on the context of the claim and the nature of the adverse
employment action alleged,” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220,
1227 (10th Cir. 2000). Here, neither Party articulates what constitutes “circumstances
giving rise to an inference of discrimination” in this context. Based on this Court’s
independent research, the Tenth Circuit has, at least twice, articulated the elements of a
prima facie case in the failure-to-promote context as requiring the following elements:

(1) there were promotional opportunities available; (2) the plaintiff was qualified for a
promotion; (3) the plaintiff was not promoted; and (4) the promotional opportunities were
filled by someone outside of the plaintiff’s protected class. See Nulf v. Int’l Paper Co., 656 F.2d 553, 558 (10th Cir. 1981); Sprague v. Thorn Ams., Inc., 129 F.3d 1355, 1362 (10th Cir. 1997). These elements do not appear to be in dispute here. See [Doc. 29 at
¶¶ 17, 21, 30, 35, 39; Doc. 31 at 5–6 ¶¶ 17, 21, 30, 35, 39]. And because the prima facie
burden is “not onerous,” Ames, 605 U.S. at 309 (quotation omitted), the Court finds that
Plaintiff has met his prima facie burden here.

II. Legitimate Explanation for the Decision

The second step of the McDonnell Douglas test requires Defendant to “to articulate
some legitimate, nondiscriminatory reason” for its decision to not promote Plaintiff.

McDonnell Douglas, 411 U.S. at 802. This burden is “exceedingly light.” DePaula v.
Easter Seals El Mirador, 859 F.3d 957, 970 (10th Cir. 2017) (quotation omitted).

Defendant argues that the women who were promoted to captain were selected
not only based on their assessment and interview scores, but also on “their leadership
skills and competencies, reputation in the department, and previous performance.” [Doc.
29 at 18]. It also argues that Plaintiff was not selected for a promotion because of Sheriff
Diggins’s observations of Plaintiff’s leadership style and complaints about Plaintiff from
others in the Department about his “overly rigid and harsh management style.” [Id. at 18–
19; id. at ¶ 3]. Plaintiff does not dispute that Defendant has articulated a legitimate, non-
discriminatory reason for its decision. See [Doc. 31]. The Court thus finds that Defendant
has met its “exceedingly light” burden here. DePaula, 859 F.3d at 970; cf. Turner v. Pub.
Serv. Co. of Colo., 563 F.3d 1136, 1143 (10th Cir. 2009) (finding that plaintiff’s low

interview score was legitimate reason for defendant’s hiring decision).

III. Pretext

Now, the burden shifts back to Plaintiff to “present evidence that shows a genuine
issue of material fact as to whether [Defendant’s] reason was pretextual.” Mauldin, 136
F.4th at 996. To establish pretext, Plaintiff “must show that the [employer’s] proffered
reasons were so incoherent, weak, inconsistent, or contradictory that a rational factfinder
could conclude the reasons were unworthy of belief.” Bekkem v. Wilkie, 915 F.3d 1258,
1268 (10th Cir. 2019) (quotation omitted); see also Jaramillo, 427 F.3d at 1308 (pretext
may be shown through evidence of “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its

action” (quotation omitted)). “Mere conjecture that the employer’s explanation is a pretext
for intentional discrimination is an insufficient basis for denial of summary judgment.”

Bekkem, 915 F.3d at 1268 (quotation omitted). The Court looks at pretext evidence in its
totality, as opposed to looking at each piece of evidence in isolation. Id. at 1270.

In his Response, Mr. Bowen lists a number of “[r]easons to doubt [the] veracity” of
Defendant’s explanation. [Doc. 31 at 13–20]. The Court discusses each piece of
evidence before determining whether, when considered in its totality, Plaintiff’s evidence
is sufficient to create an inference of pretext. See Ford, 45 F.4th at 1217–21 (addressing
each piece of evidence to determine whether it would permit an inference of pretext before
determining whether, based on that evidence, a reasonable jury could find that employer’s
reasons were pretextual); Plump, 161 F.4th at 1233–37 (same).

The “Overlooking” of Information about Plaintiff. Plaintiff argues that “the
Department overlooked information indicating that he did [sic] not align with its view of

[Plaintiff].” [Doc. 31 at 13]. But his first example does not concern an alleged overlooking
of information; it instead identifies what Plaintiff perceives as a weakness in the
Department’s explanation for its decision. Specifically, with respect to the informal
complaints allegedly made about Plaintiff, he asserts that “[t]here is reason to question
whether the complaints occurred because Diggins never shared them with Bowen, or with
any of Bowen’s Captains” and because Sheriff Diggins “could not articulate the substance
of any of the[] complaints, who made them, or when they occurred.” [Id. at 14]. This
argument is unsupported by legal authority, [id. at 14–15], and Plaintiff fails to explain
how Sheriff Diggins’s inability to recall specifics about the exact number or date of
complaints, and Plaintiff’s resulting speculation about whether the complaints actually

occurred, creates a genuine dispute about pretext. “Mere conjecture that the employer’s
explanation is a pretext for intentional discrimination is an insufficient basis for denial of
summary judgment.” Bekkem, 915 F.3d at 1268. The Court cannot conclude that Sheriff
Diggins’s inability to recall the specifics of the informal complaints—years after they were
made—creates a reasonable inference that the Department’s reliance on those
complaints is a pretextual excuse. Cf. Brown v. Colo. Jud. Dep’t, No. 22-1065, 2023 WL
4743055, at *6 (10th Cir. July 25, 2023) (inconsistencies that “involved evidentiary
conflicts rather than inconsistent explanations for the hiring decision itself” did not
establish pretext).

Plaintiff also argues that Sheriff Diggins “overlooked information about Bowen that
did not fit [Sheriff Diggins’s] view of Bowen.” [Doc. 31 at 13 (emphasis omitted)].

Specifically, he argues that Sheriff Diggins “did not look at Bowen’s performance reviews,”
and that if he had, he would have seen that “people who worked with Bowen every day

did not find him overly harsh, but rather direct and polite.” [Id. at 14–15]. But notably,
Sheriff Diggins stated that he did not look at the performance reviews of any candidate.

See [Doc. 31-1 at 50:8–10].5 At best, this evidence might call the thoroughness of Sheriff
Diggins’s selections into question. But “[e]vidence . . . that the employer was mistaken
or used poor business judgment—is not sufficient to show that the employer’s explanation
is unworthy of credibility.” Plump, 161 F.4th at 1233. The relevant question is not
“whether the employer’s reasons were wise, fair or correct,” but “whether the employer
honestly believed its reasons and acted in good faith upon them.” Riggs v. AirTran
Airways, Inc., 497 F.3d 1108, 1118–19 (10th Cir. 2007). Evidence that Sheriff Diggins
did not look at any employee’s performance reviews does not create an inference that his

stated bases for his decision—his observations of Plaintiff and reports of Plaintiff’s harsh
leadership style—were pretextual.

Qualifications. Next, Mr. Bowen highlights that he had a higher assessment
score than two candidates promoted to captain. [Doc. 31 at 15]. A plaintiff can establish

5 Similarly, Plaintiff’s evidence that he was “commended . . . for being different” and was
“describ[ed] in glowing terms” in his performance reviews, [Doc. 31 at 15], does not
support a finding of pretext. This evidence does not constitute an inconsistency,
weakness, or implausibility in the Department’s assertion that Sheriff Diggins relied on
informal complaints about Plaintiff in deciding not to promote him because it does not call
into question the veracity of the Defendant’s statement. See Ford, 45 F.4th at 1216 (“[E]ven if others may have ‘praised’ Ford’s product knowledge, it does not follow that
May’s reason for hiring another candidate—because he had ‘better product knowledge’—
was pretextual.”).

pretext by showing that the plaintiff was more qualified than applicants who were hired
for a position. Jaramillo, 427 F.3d at 1308–09. But courts “must proceed with caution
when considering the relative merits of individual employees” and cannot “act as a super
personnel department that second guesses employers’ business judgments.” Id. at 1308 (quotation omitted). “[M]inor differences between a plaintiff’s qualifications and those of
a successful applicant are not sufficient to show pretext.” Id. at 1308–09. Rather, “[t]o
show pretext, the disparity in qualifications must be overwhelming.” Id. at 1309 (quotation
omitted). And “an employee’s own belief that [he] was the most qualified candidate for a
position is not enough to show pretext.” Ford, 45 F.4th at 1219.

Mr. Bowen’s qualifications argument relies solely on the fact that his “assessment
scores were objectively higher than those of two of the women promoted to Captain.”

[Doc. 31 at 15]. He argues that the Court cannot consider the degree to which his scores
were higher than the other candidates’ scores because this would require the Court to
weigh evidence, which it cannot do. [Id. at 16]. The Court disagrees. This Court is bound

by Tenth Circuit authority instructing that a difference in qualifications only establishes
pretext if the difference is “overwhelming,” which necessarily requires consideration of
qualification disparities between candidates. Jaramillo, 427 F.3d at 1308–09; Johnson,
594 F.3d at 1211–12 (assessing differences in qualifications between plaintiff and
comparator employee). Moreover, by relying only on his assessment score, without any
supporting argument explaining why his higher score alone shows that he was more
qualified for a promotion, Plaintiff has not shown that he was “overwhelmingly” more
qualified than either of the two women promoted in 2020. See Santana v. City & Cnty. of
Denver, 488 F.3d 860, 865 (10th Cir. 2007) (concluding that the plaintiff’s higher
assessment score “alone [did] not demonstrate pretext” where both candidates “received
assessment scores high enough to be placed in a pool of candidates qualified for a
promotion to captain” and “[o]nce applicants reached the interview process, the panelists
were free to select any of the candidates in the group without regard to score”); cf. Conroy

v. Vilsack, 707 F.3d 1163, 1174 (10th Cir. 2013) (“Even granting Ms. Conroy’s contention
[that she had superior technical skills to the comparator], she still fails to demonstrate that
she was overwhelmingly more qualified than [the comparator employee] on the whole,
taking into account all of the factors that the agency found relevant.”). Plaintiff’s
assessment score alone does not establish an inference of pretext.

Subjective Criteria. Next, Plaintiff argues that he can establish pretext by pointing
out the “subjective” nature of the promotion decisions. [Doc. 31 at 16]. He contends that
Sheriff Diggins “did not follow any established standards but instead used his own
discretion,” acted alone in the promotional decisions, and “depended on others’
perceptions, which could be subjective,” and he suggests that these circumstances

establish pretext. [Id. at 17].

“[A] plaintiff cannot prove that he was discriminated against simply because an
employment decision was based on subjective criteria.” Cortez v. Wal-Mart Stores, Inc., 460 F.3d 1268, 1275 (10th Cir. 2006). “Indeed, some subjectivity is to be expected in
every hiring decision.” Conroy, 707 F.3d at 1177. “Title VII does not do away with
traditional management rights. An employer has discretion to choose among equally
qualified candidates, provided that the decision is not based upon unlawful criteria.” Id. at 1177–78 (quotation omitted).

To be sure, the use of subjective criteria can be evidence of pretext. See Ford, 45
F.4th at 1218. But courts “‘typically’ will infer pretext from the employers’ use of subjective
evaluation criteria in the hiring process ‘only when the criteria on which the employers
ultimately rely are entirely subjective in nature.’” Conroy, 707 F.3d at 1178 (quoting

Jones, 349 F.3d at 1267–68) (first emphasis added). This is not the case here, where it
is undisputed that objective assessments placed candidates in a high, mid, or low band,
and only candidates from the high band were eligible for promotion. [Doc. 29 at ¶¶ 13,
17; Doc. 31 at 5 ¶¶ 13, 17]. Accordingly, this evidence does not permit an inference of
pretext. See Ford, 45 F.4th at 1219 (the use of subjective hiring criteria “[did] not allow”
an inference of pretext where the defendant used “some objective measurements” in its
hiring decision, such that it was not “wholly subjective”); Conroy, 707 F.3d at 1178 (finding
that plaintiff failed to show pretext based on the use of subjective criteria where the
candidates’ qualifications were assessed based on five areas of knowledge, skills, and
abilities, and those criteria were made known to candidates).

Gender Stereotypes. Plaintiff also points out that one of the criteria Sheriff
Diggins used in assessing candidates was whether a candidate had empathy. [Doc. 31
at 17]; see also [Doc. 29-1 at 46:6–11; Doc. 29-3 at 7]. He observes that Sheriff Diggins
“admitted [in his deposition] that one [gender stereotype] could be that men lack
empathy,” and he argues that “[i]f Diggins believed men lacked empathy, or women
inherently possessed more, and used that belief in his employment decisions, the
Department discriminated against Bowen based on his sex.” [Doc. 31 at 17].
This evidence does not create an inference of pretext. There is no evidence that
Sheriff Diggins holds the belief that men lack empathy. As Plaintiff himself acknowledges,
see [id.], Sheriff Diggins stated that he disagreed “that the stereotypical man would be
considered to lack empathy,” see [Doc. 29-1 at 47:14–18], and Plaintiff offers no
conflicting evidence. Nor is there any evidence that Sheriff Diggins relied on this
stereotype in deciding who to promote. Relying on the supposition that some unidentified,

and hypothetical, individuals might believe that men lack empathy to find an inference of
pretext in this case would require an enormous inferential leap. This does not
demonstrate pretext.

Subsequent Promotion of Men. Mr. Bowen asserts that, in 2022, the
Department promoted five men and one woman to captain. [Doc. 31 at 19]. He argues
that “[a] juror could . . . decide [the Department’s 2022 promotion slate] is evidence of the
Department discriminating against men in the 2019–2021 promotion cycle and
compensating for that discrimination by promoting men afterwards.” [Id. at 19–20].

Plaintiff fails to articulate how the Department’s 2022 promotion decisions demonstrate
pretext. Because his argument fails to make any connection between the Department’s

2022 promotion decisions and the Department’s stated reasons for not promoting Plaintiff
during the 2019–2021 promotion cycle, this evidence does not create an inference
pretext. See Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1001 (10th Cir. 2011)
(rejecting pretext argument that made “no apparent connection between [the plaintiff’s]
evidence and the alleged falsity of [the employer’s] reason for terminating [the plaintiff]”).
Flexible Process. Plaintiff also takes issue with the Department’s position at
summary judgment that its promotion procedures prior to the 2019–2021 cycle lacked
flexibility and prevented the Department from considering anything other than
assessment scores, see [Doc. 29 at ¶¶ 14–15], arguing that “[t]he Department did not
need to change its process to consider factors such as past employee performance in
determining who to promote” because, in 2014, the Department passed over a high-
scoring candidate who lacked leadership skills, see [Doc. 31 at 20]. Again, this argument
fails to articulate any inconsistencies, weaknesses, or implausibilities in the Department’s

stated reasons for declining to promote Plaintiff, so as to establish pretext. Twigg, 659
F.3d at 1001.

Observations of Mr. Bowen and the AIU Investigation. Although the majority
of the pretext grounds raised by Mr. Bowen do not help create an inference of pretext,
two of his arguments may—drawing all reasonable inferences in Plaintiff’s favor—be
sufficient to create a question for the jury as to pretext.

First, with respect to the Department’s assertion that Sheriff Diggins relied on his
own personal observations of Mr. Bowen’s management style in deciding to not promote
him, [Doc. 29 at ¶ 44], Mr. Bowen asserts that “[t]here is a question of fact as to whether
Diggins actually observed Bowen manage employees,” [Doc. 31 at 18 (emphasis

omitted)]. In his deposition, Sheriff Diggins stated that he considered the following factors
in making his promotion decisions:

[The candidates’] reputation amongst staff, amongst their peers, and other
leaders above them. Their performance. Their engagement with staff, with
the community. There are a number of different characteristics. . . . Their
involvement in the department. My direct observation of them when walking
around. The achievements that they’ve had in the agency, such as being a
field training officer, being on the emergency response unit, working in
different areas, going above and beyond the call of duty, just to name a few.

[Doc. 29-1 at 26:23–27:14]. With respect to Mr. Bowen specifically, when Sheriff Diggins
was asked to “give . . . examples of when [he] observed Mr. Bowen not leading with
humanity,” he stated that he “would see [Mr. Bowen] speak to people and working in pods
in a way that was just rigid.” [Id. at 114:20–23].

Mr. Bowen “denies [that] Diggins had the chance to see his management style.”

[Doc. 31 at 3 ¶ 4 (emphasis omitted)]. He asserts that he “cannot recall any time Diggins

observed him managing employees.” [Id. at 18]; see also [Doc. 31-3 at ¶¶ 13–16]. He
also asserts that Sheriff Diggins’s “own testimony raises questions about his ability to
observe Bowen manage employees” because Sheriff Diggins stated that he only
observed Mr. Bowen “at most, once every couple weeks, at least once a month.” [Doc.
29-1 at 72:7–12; Doc. 31 at 18].

As to Mr. Bowen’s suggestion that Sheriff Diggins did not have enough time to
meaningfully observe Mr. Bowen during his workday, this alone does not support an
inference of pretext. Rather, it would only suggest that Sheriff Diggins made his decisions
without sufficient information about all of the candidates. But the relevant question is not
whether Sheriff Diggins’s stated reasons “were wise, fair or correct.” Riggs, [497 F.3d at

1118](https://www.courtlistener.com/opinion/169600/riggs-v-airtran-airways-inc/#1118). The Court cannot “sit as a superpersonnel department that second-guesses the
[employer’s] business decisions, with the benefit of twenty-twenty hindsight.” Frappied v.
Affinity Gaming Black Hawk, LLC, 966 F.3d 1038, 1059 (10th Cir. 2020) (quotation
omitted).

However, Plaintiff has also submitted evidence that might call into question Sheriff
Diggins’s statement that he directly observed Mr. Bowen’s harsh and rigid management
style himself. Compare, e.g., [Doc. 29-1 at 114:18–23 (“When I observed him, I saw it
myself. . . . I would see him speak to people and working in pods in a way that was just
rigid.”)], with [Doc. 31-3 at ¶¶ 14–15 (“Diggins never stopped to observe me in doing my
duties. . . . Diggins never stopped to observe me performing my duties, and he never
had the opportunity to personally observe me in any kind of a confrontation with any staff
or inmate.”)]. The Court cannot resolve this factual dispute on summary judgment. And
if the jury believes Mr. Bowen that Sheriff Diggins never personally observed his

management style, and disbelieves Sheriff Diggins when he says that he did, then the
jury could find that one of Defendant’s stated bases for its decision is “unworthy of
credence and therefore pretextual.” Tabor v. Hilti, Inc., 703 F.3d 1206, 1219 (10th Cir.
2013).

Plaintiff also argues that “[t]here is a question of fact regarding the Department’s
reliance on the AIU Investigation” in making its promotion decisions. [Doc. 31 at 19
(emphasis omitted)]. He notes that although the Department now states that the AIU
investigation was not one of the reasons for Plaintiff’s non-promotion, see [Doc. 29 at
¶ 6], he asserts that “[t]his differs from what the Department stated to the EEOC,” [Doc.
31 at 19].6 Specifically, in its EEOC position statement,7 the Department provided a chart

6 Mr. Bowen also asserts that Defendant’s current position “differs from what the
Department stated” in Defendant’s responses to Plaintiff’s interrogatories. [Doc. 31 at
19]. This argument misconstrues Defendant’s interrogatory response. When asked to
“[l]ist the reasons why the Department did not promote Bowen to Captain,” the
Department responded in part: “The Department determined that Bowen was not ready
to serve as a Captain based on complaints received from staff members about their
interactions with him and Sheriff Diggins’ personal observations of Bowen when he
performed his work on a day-to-day basis. Notably, complaints from staff members
culminated in an AIU investigation in late 2021, case number 2021-0069. Although the
investigation did not result in a sustained rule violation, the Conduct Review Unit . . .
recommended that Bowen receive remedial training regarding supervision and
interpersonal communications.” [Doc. 29-3 at 6 (emphasis added)]. The Department did
not state that it relied on the AIU investigation in its promotion decisions; it stated that it
relied on staff complaints before noting that employee complaints ultimately led to an AIU
investigation in late 2021.

7 An individual alleging employment discrimination must file a charge with the EEOC
before filing a formal lawsuit under Title VII. Payan v. UPS, 905 F.3d 1162, 1169 n.1
with the name and demographic information of all seven individuals who scored in the
high band during the 2019–2021 promotion cycle. [Doc. 31-6 at 4]. In a column titled
“Promoted/Reason,” the chart states, with respect to Mr. Bowen: “Declined to promote –
numerous subordinate complaints and other concerning behaviors, open AIU

investigation.” [Id.]. Then, in its narrative explanation, the Department stated:
[Mr. Bowen] also has numerous complaints against him. While many were
not the type that involved misconduct or a violation of policy, there were
many about his overly rigid and harsh management style. Currently, the
Sheriff Department is significantly understaffed, and was at the time [Mr.
Bowen] declined for promotion. Morale is already low due to long hours
and mandatory overtime. Promoting a supervisor into a higher-level
position when he is already viewed as “out to get them” by deputies, was
determined to be not in the best interest of the Department. [Sheriff Diggins]
has long advocated the core value of the Department “lead with humanity.”

It was the Sheriff’s experience with [Mr. Bowen] that he does not lead with
humanity, and instead is unduly harsh on everyone who does not outrank
him. While the Sheriff does not believe that [Mr. Bowen] can never be
promoted, he feels [Mr. Bowen] is not ready to be promoted at this time.

[Id.].

Plaintiff argues that the AIU investigation could not have been a reason for the
non-promotion because the AIU investigation “was not assigned to an investigator until
May 3, 2021,” and the last person promoted during the 2019–2021 cycle was promoted
on November 20, 2020, “making it difficult to believe the AIU investigation played any role
in the decision to not promote Bowen.” [Doc. 31 at 19 (emphasis omitted)]. Defendant
agrees with this timing argument, stating that “[t]he AIU investigation itself was not a basis
for the decision to not promote Plaintiff to Captain, as the complaint that promoted the
investigation occurred after the Captain selection.” [Doc. 29 at ¶ 6]. However, Defendant

(10th Cir. 2018); 42 U.S.C. § 2000e-5(e)(1). On March 11, 2022, the Department filed a
position statement responding to Mr. Bowen’s charge. See [Doc. 31-6].

does not address its prior reliance—albeit cursory—on the AIU investigation to explain its
decision or its subsequent abandonment of this explanation. [Doc. 34 at 9–10].
“Contradictions or inconsistencies in an employer’s proffered reason for
termination can be evidence of pretext.” Litzsinger v. Adams Cnty. Coroner’s Off., [25

F.4th 1280, 1291](https://www.courtlistener.com/opinion/6353109/litzsinger-v-adams-county-coroners-office/#1291) (10th Cir. 2022). “[A] jury can reasonably infer pretext when an
employer provides one explanation for an adverse action but later affirmatively disclaims
or otherwise abandons the rationale.” Id. “But pretext cannot be established by ‘the mere
fact that the [employer] has offered different explanations for its decision.’” Id. (quoting
Jaramillo, 427 F.3d at 1311) (alterations in original). To determine whether an employer’s
change in its explanation can establish pretext, courts look at “(1) the timing of the change
in position and (2) the evidentiary basis for the new rationale.” Jaramillo, 427 F.3d at
1311. “The timing of the change has been found to support the inference of pretext when
it occurs after significant legal proceedings have occurred.” Id. This may be the case
here, where the Department asserted an explanation for its decision in pre-litigation

administrative proceedings but, due to the impossibility of that explanation, abandoned it
at some point after a lawsuit was filed. See Fassbender v. Correct Care Sols., LLC, 890
F.3d 875, 887 (10th Cir. 2018) (jury could infer pretext where the employer “continued to
change its position even after [the plaintiff] filed a formal EEOC charge against it”).
The question before the Court, then, is whether Plaintiff’s challenge to two of the
Department’s reasons for not promoting Plaintiff are together sufficient to create an
inference of pretext. Construing all evidence and drawing all inferences in Plaintiff’s favor,
and mindful that it is not this Court’s role to weigh the strength of Plaintiff’s evidence,
Forth, 85 F.4th at 1052, the Court finds that this case cannot be resolved at the summary-
judgment stage.

To be sure, Plaintiff’s evidence of pretext is not robust. Plaintiff’s evidence about
Sheriff Diggins’s (lack of) opportunity to observe him at work does not outright contradict

Sheriff Diggins’s statement that he personally observed Plaintiff. And the Department’s
reference to the AIU investigation in its EEOC position statement is cursory at best, and
the Department does not reference the investigation at all in its narrative explanation of
its promotion decision. See [Doc. 31-6 at 4]. Notably, “[m]inor inconsistencies [in the
employer’s explanation] . . . do not constitute evidence of pretext; . . . only those
inconsistencies that allow ‘a reasonable factfinder to rationally find the defendant’s
proffered reason unworthy of credence and hence infer that the employer did not act for
the asserted non-discriminatory reasons’ are probative of pretext.” Hysten v. Burlington
N. Santa Fe Ry. Co., 415 F. App’x 897, 908 (10th Cir. 2011) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (cleaned up)). But Defendant fails to explain its

shifting position, see [Doc. 29; Doc. 34], and the Court cannot make arguments on
Defendant’s behalf, Lebahn v. Owens, 813 F.3d 1300, 1307–08 (10th Cir. 2016).
The Court finds that this evidence, construed in Plaintiff’s favor, might “undermine
the employer’s credibility to the point that a reasonable jury could not find in [the
employer’s] favor.” Jaramillo, 427 F.3d at 1310. And as explained above, a plaintiff who
has made the minimal showing of pretext typically can survive summary judgment except
in two “rare” circumstances: “(1) if ‘the record conclusively revealed some other,
nondiscriminatory reason for the employer’s decision’ or (2) if ‘the plaintiff created only a
weak issue of fact as to whether the employer’s reason was untrue and there was
abundant and uncontroverted independent evidence that no discrimination had
occurred.” Jenny, 144 F.4th at 1198-99 (quoting Reeves, 530 U.S. at 148). Even if
Plaintiff has created “only a weak issue of fact,” the Court cannot conclude that there is
“abundant and uncontroverted independent evidence that no discrimination hal[s]
occurred.” /d. Accordingly, the Court will DENY the Motion for Summary Judgment.
Nevertheless, given its analysis of this action, this Court respectfully ORDERS the Parties
to engage in alternative dispute resolution before the Honorable N. Reid Neureiter. The
Parties shall contact the Chambers of Judge Neureiter no later than April 9, 2026 to
schedule such proceeding.
CONCLUSION
For the reasons set forth in this Order, IT IS ORDERED that:
(1) Defendant's Motion for Summary Judgment [Doc. 29] is DENIED;
(2) This matter is REFERRED to the Honorable N. Reid Neureiter for
alternative dispute resolution, subject to his discretion;
(3) | Within three days of completing such alternative dispute resolution and no
later than June 12, 2026, the Parties shall FILE a Joint Status Report
advising whether this matter has been resolved or whether this Court should
set a Telephonic Status Conference for purposes of setting the Final
Pretrial/Trial Preparation Conference and trial.

DATED: March 26, 2026 BY THE COURT:

                                 United States District Judge 

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