Retired Colorado Supreme Court Chief Justice Nathan Coats (copy)

Nathan Coats

The human resources director of the Colorado judicial department in an email said he “didn’t want to create a paper trail” for then-Chief Supreme Court Justice Nathan Coates regarding details of an investigation into a Black lawyer’s claims that the Supreme Court exhibited racial and age discrimination against her when it hired a less experienced Caucasian lawyer for a job.

Michele Brown and her husband, Andrew Maikovich, submitted the email as evidence in their federal lawsuit alleging racially discriminatory hiring practices by the state’s judicial branch for not hiring Brown.

The email references their allegations of discriminatory practices in hiring that they brought to the judicial branch’s attention before suing. They claim in court filings that the email is a smoking gun that indicates an effort to suppress potential evidence of wrongdoing.

“At a very minimum, it provides a clear appearance of impropriety for the individuals and the institution,” they stated in one court filing. “Many will view the exchange in much harsher terms.”

Eric Brown, the human resources director at the time, wrote the Sept. 7, 2018 email. Brown sent a copy of the email to Coats, while addressing and sending another copy to the justice's general counsel, Andrew Rottman. “I wanted to give you an idea of where this is going,” wrote Brown, who is not related to Michele Brown. “I didn’t want to create a paper trail for the chief, so I’ll trust you’ll know the best way to keep him informed.”

The state’s judicial branch is vigorously contesting the lawsuit brought by the couple, who claim the wife, now 66, suffered racial discrimination in 2018 when the court hired a 33-year-old Caucasian woman who worked in the Supreme Court law library instead of her for a rules attorney post.

In court filings, lawyers with the Colorado Attorney General’s Office, which is representing the judicial branch, state that no discrimination occurred in the hiring of another applicant for the post. They also argue that the couple failed to take advantage of preventive or corrective opportunities the department offered.

One recipient of the email, Rottman, did not return telephone and email messages seeking comment from The Gazette. Coats, who retired in December, in the past has declined comment regarding judicial branch controversies, and Eric Brown, who was forced to resign for other matters, has not responded to requests for comment.

Court won't require Colorado Judicial Department to turn over sex harassment allegations

The lawsuit, filed in the U.S. District Court in Denver, comes at a delicate time for the state Supreme Court, which is battling similar allegations of secrecy and discrimination involving an alleged hush-money contract worth up to $2.7 million given to the court’s former chief of staff, Mindy Masias, in 2019.

The Supreme Court is paying up to $350,000 for a comprehensive investigation into the circumstances surrounding the awarding of the sole-source contract. The probe will review allegations the contract was given to Masias to prevent her from filing a tell-all lawsuit that would divulge long-held secrets of sexual discrimination in the judiciary, including allegations involving two former members of the state’s Supreme Court and one current member.

Masias’ contract to train judges in leadership skills was rescinded after The Denver Post reported she had received the contract despite facing potential termination from her chief of staff post after her expense reports were flagged for financial discrepancies. In the wake of that controversy, Eric Brown, the court’s human resources director, resigned along with Christopher Ryan, the top court administrator in the state.

The Supreme Court has denied the contract was extended to Masias to keep her quiet, but the comprehensive investigation into Masias’ contract also will probe the judicial branch’s workplace environment.

Colorado judicial system makes public memo detailing alleged misconduct in alleged hush money contract

A judicial branch memo detailing allegations Masias threatened to include in a potential lawsuit painted a picture of a hostile work environment for female judicial employees, including instances of alleged sexual misconduct, harassment and bias long kept secret from the public. The Masias memo also referenced as evidence of discriminatory practices a complaint Michele Brown had filed with the U.S. Equal Employment Opportunity Commission over the state Supreme Court’s decision to bypass hiring her for the rules attorney post.

Michele Brown and Maikovich allege in their lawsuit that the person who got the rules attorney post had an insider on the hiring panel – a Supreme Court staff attorney -- who provided her with the interview questions and answers, and tips on how to dress for the interview. Their evidence includes emails between the Supreme Court staff attorney and the person who eventually got the job. The judicial branch, in court filings states the emails show something less sinister: initiative by the person who got the job who wanted to put herself in the best light possible.

The couple contend in their lawsuit that Michele Brown was more qualified for the job than the woman the Supreme Court picked. Brown had worked three years as a lawyer with the office of legislative legal services and had worked closely with the person who was being replaced as the Supreme Court rules attorney, according to the lawsuit. 

Michele Brown and Maikovich are both lawyers who are handling their own case.

Maikovich is a 10-year employee of the Colorado Supreme Court who provides judicial education on violence against women. When his wife didn’t get the job, he complained to Masias and Ryan, which eventually prompted the judicial branch to hire Paul Buckley, a court administrator in Missouri, to conduct an external investigation. Maikovich was ordered as part of his employment with the court to sit in for an interview with Buckley to go over the couple’s complaints with the hiring process.

A court filing from Michele Brown and her husband seeking to amend their lawsuit, filed in the U.S. District Court in Denver, says the email detailing a need to avoid a “paper trail” is “almost beyond belief.”

“It frankly shocks the conscience that officials employed by the state’s court of last resort would openly discuss ways to exchange information in a manner to hide evidence and avoid its production in legal settings,” their court filing states.

In addition, notes of interviews from the hiring panel for the rules attorney post have since been destroyed, in violation of the court’s own requirement that those notes be maintained for three years, states the court filing from Michele Brown and Maikovich. Among those who destroyed their notes was Supreme Court Justice Richard Gabriel, a member of the hiring panel, according to their filing. The lawyers representing the judicial branch have denied to Brown and Maikovich that anything nefarious was afoot in the destruction of the notes. The "sparse" and "marginal" handwritten notes taken during 10 applicant interviews would have been shredded in the "interest of confidentiality" and prior to hint of any litigation, the judicial branch's lawyers wrote in a letter to the couple. 

Buckley, the external investigator hired to probe the allegations of racial discrimination raised by Brown and Maikovich, also didn’t keep contemporaneous notes that he took during the seven interviews he conducted as part of his investigation, the filing further states. Brown and Maikovich say in their court filing that Buckley's investigation wasn’t a good-faith effort to find out what occurred. Rather, they contend, the investigation's intent was to provide the judicial branch with a way to defend against potential litigation.

Buckley’s contemporaneous notes were destroyed despite his contract stating the following: “In the event, the contractor creates notes (electronic or otherwise) during the course of contractor’s investigation, contractor shall retain all notes at the end of the investigation and shall keep copies of such notes for a period of three years.”

That three-year time frame is set to expire in August.

The filing from Brown and Maikovich say they’ve also obtained a “confidential” email Buckley wrote to the court’s human resources director at the time. Their filing says the email states: “The individuals involved in the selection process of the staff attorney position failed to rely on the policies and tools available through the Human Resources Division.”

Soon, the couple will get to take deposition testimony, including that of members of the state Supreme Court who were on the hiring panel. At that point, they’ll get a chance to ask why notes weren’t maintained and why there was a desire against creating a paper trail regarding their claims. U.S. Magistrate Judge Michael Hegarty granted them permission to take the depositions, which are slated to begin within weeks.

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