A federal judge tentatively green-lit a former Denver Sheriff Department sergeant’s sex discrimination lawsuit for trial last month, based upon allegations that three female employees were promoted ahead of him despite his qualifications.

U.S. District Court Judge Nina Y. Wang described the evidence of discrimination as “not robust,” but she determined plaintiff Joseph Bowen had sufficiently called into question the sheriff’s reasons for passing over Bowen for promotion to captain. At the same time, she held off on setting a jury trial until Bowen and the city’s lawyers could meet with U.S. Magistrate Judge N. Reid Neureiter to explore alternative dispute resolution.

Bowen began as a sheriff’s deputy in 2005 and received a promotion to sergeant in 2015. Historically, during a multi-year window, the department would promote employees based on their assessment scores. The highest-scoring candidate would be first in line, and the department would promote people in that order.

For the 2019-2021 cycle, when Bowen sought a promotion to captain, the department adopted a new approach. Based on assessment scores, candidates for promotion fell into one of three “bands.” Those in the highest-scoring band were eligible for promotion, but the department did not go in any particular order when selecting people.

In that cycle, Interim Sheriff Fran Gomez and now-Sheriff Elias Diggins promoted three people from the top band, all of whom were women. One male sergeant was also selected, but he died unexpectedly.

Bowen’s assessment score was higher than that of two of the women who were promoted. After he went on medical leave in 2021 and did not return to his position, Bowen sued the city for alleged sex discrimination.

Denver moved to end the lawsuit in its favor without a trial. It argued that Bowen was primarily relying on his test score, which was only a few percentage points higher than the lowest-scoring female employee who was promoted. But the evidence also reflected Diggins’ concerns about Bowen’s leadership style and his interactions with other employees.

“Plaintiff was in good standing in the Department as a Sergeant, but he was just not ready to take that next leadership step, which is a significant jump in responsibility and requires a different management skill set,” wrote the city’s attorneys.

Bowen countered that Diggins had seemingly unlimited discretion in deciding who to promote, and he neglected to look at Bowen’s positive performance reviews.

“If Diggins had, he would have found that the people who worked with Bowen every day did not find him overly harsh, but rather direct and polite,” wrote attorney Thomas H. Mitchiner. “The reviews show a person who is a good leader and is liked by the people he works with.”

Wang, in a March 26 order, analyzed whether Denver’s stated reasons for Bowen’s non-promotion were implausible or contradictory in a way that suggested discrimination. She largely disagreed that Bowen had demonstrated objectively superior qualifications for the role of captain.

“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,” she wrote.

However, Wang agreed that two pieces of evidence could lead a jury to question Denver’s motives.

First, Diggins said he had partly relied on his own “direct observation” of the candidates, including watching Bowen speak to others, when making his decisions about who to promote. But Bowen countered that he could not recall any time that Diggins observed him managing employees.

If a jury believed Bowen and not Diggins, “then the jury could find that one of Defendant’s stated bases for its decision is ‘unworthy of credence and therefore pretextual’,” wrote Wang.

Second, although the city did not rely during the litigation on an open administrative investigations unit inquiry into Bowen as a reason for denying him promotion, a 2022 letter submitted to the U.S. Equal Employment Opportunity Commission did cite the investigation as grounds for not promoting him.

“To be sure, Plaintiff’s evidence of pretext is not robust,” Wang wrote. “But Defendant fails to explain its shifting position, and the Court cannot make arguments on Defendant’s behalf.”

She directed the parties to engage in alternative dispute resolution with the magistrate judge and to notify her if they intend to go to trial after all.

The case is Bowen v. City and County of Denver, Denver Sheriff Department.