Free Order on Motion for Summary Judgment - District Court of Colorado - Colorado

Case 1:01-cv-01250-RPM-CBS

Document 149

Filed 06/29/2005

Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior District Judge Richard P. M atsch Civil Action No. 01-cv-1250-RPM -CBS ANA PATRICIA M ONTES; NELY DAVILA; JOSEFA C. DIAZ; M ARGARITA ERAZO; EVA ESCOBEDO; ERNESTO GARCIA; WILLIE M AE HOPKINS; ELIZABETH JARAM ILLO; ANGELICA NUNEZ; and M ERVIN D. VARGAS, Plaintiffs, v. VAIL CLINIC, INC., d/b/a VAIL VALLEY M EDICAL CENTER, INC., and SERVICEM ASTER M ANAGEM ENT SERVICES LIM ITED PARTNERSHIP, Defendants. ______________________________________________________________________________ ORDER GRANTING DEFENDANTS'M OTION FOR SUM M ARY JUDGM ENT ______________________________________________________________________________ Except for Angelica Nunez, the plaintiffs are current or former employees of defendant Vail Clinic, Inc. (" Clinic" who worked in the Clinic' housekeeping or kitchen departments. M s. ) s Nunez was an applicant for a housekeeping position at the Clinic. The plaintiffs are Hispanic, of either M exican or Honduran national origin, or African-American who allege employment discrimination violations under 42 U.S.C. §§1981 and 2000e et seq. and state common law. Some

Case 1:01-cv-01250-RPM-CBS

Document 149

Filed 06/29/2005

Page 2 of 16

of the plaintiffs'claims were dismissed by this court' order dated M ay 10, 2002. The Clinic s and Servicemaster M anagement Services Limited Partnership (" Servicemaster" moved for ) summary judgment of dismissal as to the remaining claims. At the hearing on June 7, 2005 this court declined to exercise supplemental jurisdiction over the remaining state law claims 1 and ordered dismissal of Servicemaster (which has been purchased by and is now known as Aramark M anagement Services, Limited Partnership) because it was not the plaintiffs'employer or prospective employer. The claims remaining asserted by some or all of the plaintiffs are discriminatory disparate treatment (first claim), hostile work environment (second claim), retaliation (third claim), punitive damages (fourth claim), and discrimination in the making and enforcement of contracts (fifth claim). The filed papers and the statements of counsel at the June 7 hearing show some evidentiary support for the following statement of facts. The Clinic is a hospital located in Vail, Colorado. Douglas Grinnell was the housekeeping and food service manager during the relevant time. Onesima M ejia, a Hispanic woman, originally from M exico, was supervisor of the housekeeping department. All of the plaintiffs worked in the housekeeping department except for Elizabeth Jaramillo who worked in the housekeeping and kitchen departments and M s. Nunez who was a prospective employee. Some Anglo employees worked in the kitchen. The housekeeping staff

1

The seventh through ninth and eleventh through thirteenth claims. 2

Case 1:01-cv-01250-RPM-CBS

Document 149

Filed 06/29/2005

Page 3 of 16

was all Hispanic excepting Willie M ae Hopkins, an African-American. The housekeepers assigned to work in the operating room (" OR" were asked by the nurses not to speak Spanish ) while they were working there but they were not disciplined for speaking or continuing to speak Spanish. There is evidence that it was important to have clear, precise, and timely communications in the OR. Separate lockers were assigned to the nurses and housekeepers. The kitchen and housekeeping staff were told not to leave their children or family members unattended for an extended period of time in the Clinic. The plaintiffs'claims are based on a premise that the Clinic considered the work of the housekeeping staff to be appropriate for non-Anglo employees with limited English skills and those working there were treated differently from employees in other non-professional positions. The evidence to support that premise is anecdotal, sporadic and indefinite as to times. There is no basis for finding that all of the plaintiffs shared the same experience in their employment. The individual plaintiffs'claims must be analyzed separately. M s. Davila is from Honduras and worked as a housekeeping employee from M arch 1997 until she quit in April 1999. In June 1998, M s. M ejia said if she wanted pigs, she could bring them from M exico; in September 19982, M s. M ejia called her and Josefa Diaz witches from Honduras; M s. M ejia said " vale madre; here we do what I say" in September 1998, when me ; M s. M ejia' car was scratched she stated M exicans did not do it but that Hondurans did; in s

This appears to be the same incident experienced by M s. Diaz but the dates are inconsistent. M s. Diaz stated this occurred in April 1998.
2

3

Case 1:01-cv-01250-RPM-CBS

Document 149

Filed 06/29/2005

Page 4 of 16

October 1998, when M s. Davila tried to talk to M r. Grinnell in the elevator, he said that he did not understand her because of her strong accent; M s. M ejia said that M r. Vargas smelled bad and looked like a black slave; once when she got food after the cafeteria was closed, M r. Grinnell took it and threw it in the garbage; and in April 1999, when M s. Davila was supposed to leave early, M s. M ejia asked her to reclean a room which M s. Davila did not do. M s. Diaz is from Honduras and started in the housekeeping department in January 1997 and transferred to the purchasing department in January 1999. She has had no problems since February 1999. The incidents experienced by M s. Diaz over the approximately two-year period included the following: in April 1998, M s. M ejia said that her car had been scratched and that it was not done by M exicans; in June 1998, M s. M ejia said that if she wanted pigs, she could get them from M exico; in September 1998, M s M ejia said M s. Diaz and others were witches from Honduras; on one occasion a nurse told her not to speak Spanish in the OR; and in April 1999, when she brought her children to work in the morning to do a walk-in appointment over the lunch hour and her children spent the entire day waiting for her while she worked, M r. Grinnell said her children could not be there. M s. Erazo is from M exico and worked for the Clinic from December 1995 until April 1999. Her employment was terminated when she forgot to renew her work permit. She was rehired as a seasonal employee in February 1999. She says that soon after she started working at the Clinic a nurse said that M s. Erazo could not be in the OR because Spanish was not to be

4

Case 1:01-cv-01250-RPM-CBS

Document 149

Filed 06/29/2005

Page 5 of 16

spoken there; about two years later (1997) a nurse told her she could not speak Spanish in the OR; in the Fall or Winter of 1998, M s. M ejia told her she could not change in the nurses'locker room; sometime in the Summer to Winter 1998, M r. Grinnell was at the cash register and an American nurse took food from the cafeteria and did not have to pay; M s. M ejia told M s. Erazo that her unattended children could not be in the cafeteria; and in January 1999, M r. Grinnell asked M s. M ejia to tell the housekeepers to bathe. M s. Escobedo is from M exico and worked for housekeeping at the Clinic from December 1997 until she quit in November 1999. Shortly after she started working, the nurses in the OR told her to perform additional tasks and M s. M ejia said she had to do whatever they asked; in June or July 1998, when she was trying to repay a loan to another employee, M r. Grinnell " grabbed"her and told her to go to work; M r. Grinnell teased M s. Escobedo with her check and then threw it at her; M s. M ejia criticized M s. Escobedo and gave her too much work; in M ay or June 1999, a nurse in the OR told her to speak English there; and M s. Escobedo quit when a nurse wanted her to bring supplies to stock the OR. M r. Garcia is from M exico and originally started work at the Clinic in January 1995. He quit in M ay 1999. M r. Garcia' complaints are that during his employment M s. M ejia asked the s housekeepers not to speak Spanish; in November 1998 M r. Grinnell told M r. Garcia that his wife and infant could not wait for him in the hospital lobby; and in M ay 1999, when he returned to work from vacation and saw additional work on the schedule he quit.

5

Case 1:01-cv-01250-RPM-CBS

Document 149

Filed 06/29/2005

Page 6 of 16

M s. Hopkins is an African-American woman who worked in the housekeeping department from January 1998 until her discharge in November 1998. M s. Hopkins'complaints included the following: when M s. Hopkins was introduced to M r. Grinnell he called her " s. M Willie M ae"and continued to do so during her employment; when M s. Hopkins complained about another employee, M s. M ejia gave this plaintiff more work; M r. Grinnell gave her extra work; other housekeeping personnel complained about her which complaints she disputes; and in November 1998 when M r. Grinnell terminated her, he " grabbed"her and tried to escort her out of the building. M s. Jaramillo was born in the United States. English is her first language. M s. Jaramillo started working at the Clinic in September 1998 as a housekeeper and a dietary aid in the kitchen. She transferred to the medical records department to become a medical records clerk in April 1999. That was a promotion. M s. Jaramillo' claims are based on incidents occurring before that s promotion. She says that kitchen and housekeeping staff worked weekends from time to time except for David LaGrange, an Anglo male, whom M r. Grinnell favored; M r. Grinnell said that M exicans were dirty and lazy; during the last part of 1998, M r. Grinnell yelled at her when her son was having lunch in the cafeteria; in December 1998, one of the OR nurses asked her not to speak Spanish with M s. Escobedo because M s. Escobedo needed to learn to speak English; in December 1998 or January 1999, M r. Grinnell made a comment about M exican food being M exican dirt; and in January 1999, when M s. Jaramillo burned her feet a social services

6

Case 1:01-cv-01250-RPM-CBS

Document 149

Filed 06/29/2005

Page 7 of 16

employee said to M r. Grinnell' assistant that they should use tap - not sterile - water on her s feet. M s. M ontes is from M exico and worked at the Clinic from1992 until her discharge in August 1999. M s. M ontes worked the night shift and saw very little of M r. Grinnell or M s. M ejia. Her complaints which occurred over a period of about seven years included the following: M s. M ejia called M s. M ontes'home and spoke English to her mother and sister when she knew everybody spoke Spanish; in 1992, an OR nurse told her that a pool of blood and bones was M s. M ontes'dinner; sometime before 1995, a nurse asked her not to speak Spanish in the OR; when Patrick Coatney, an Anglo employee, was hired, M r. Grinnell introduced him but did not do so when new Hispanic employees were hired; in M arch 1999, when M s. M ontes complimented M r. Grinnell on his yellow sweater, he said the colors were better than the loud and dirty colors of M exico; M r. Grinnell asked whether she had paid for her food at the cafeteria; and M r. Grinnell called security to make sure she left the Clinic when she was discharged. M s. M ontes admitted that M r. Grinnell told her she was terminated for insubordination because she refused to throw out the trash when asked by one of her supervisors as she felt it was work that should be done by the day shift person. In December 2000, M s. Nunez, from Honduras, applied for a housekeeping position at the suggestion of M s. Diaz but did not receive an offer for that position. M r. Vargas is from Honduras and worked in the housekeeping department from January

7

Case 1:01-cv-01250-RPM-CBS

Document 149

Filed 06/29/2005

Page 8 of 16

1997 until his discharge in M ay 1999. His complaints over the more than two-year period included the following: M s. M ejia said to him and M s. Davila that her car was scratched by Hondurans; in 1998 or 1999, M s. M ejia took away the keys to the cleaning supply room she had previously given him and gave them to another Hispanic housekeeping employee; M r. Grinnell believed M ercedes Agurcia (from Honduras) when she accused M r. Vargas of trying to hit her with a cart; in April 1999, M r. Grinnell yelled at him when his wife (M s. Diaz) brought his children to the Clinic for the day; and in M ay 1999, when he was terminated, M r. Grinnell told him that he could not come into the hospital again and would have to wait in the hospital parking lot for his wife who was still employed at the Clinic. Charges of discrimination were filed by M s. Hopkins on M arch 3, 19993 and by M s. Nunez sometime after December 2000.4 The remaining plaintiffs'charges are deemed filed August 17, 1999 through their lawyer' written transmittal, and enclosed intake forms, to the s Colorado Civil Rights Division (" CCRD" The CCRD forwarded the matter to the Equal ). Employment Opportunity Commission who accepted them for processing. The plaintiffs allege that all of them were subjected to a hostile work environment. Title VII requires a plaintiff to file a charge within 300 days of the alleged discriminatory practice. 42

In footnote 10 of the defendants'brief they state that M s. Hopkins filed her charge on M arch 3, 1999, referring to Exhibit G-16, but that exhibit is dated November 3, 1999. Another exhibit, G-8, is dated August 31, 1999. The plaintiffs did not dispute the M arch 3, 1999 date.
3

M s. Nunez' charge is not dated but the alleged act of discrimination occurred in s December 2000.
4

8

Case 1:01-cv-01250-RPM-CBS

Document 149

Filed 06/29/2005

Page 9 of 16

U.S.C. § 2000e-5(e)(1); Duncan v. Manager, Dept. of Safety, 397 F.3d 1300, 1308 (10th Cir. 2005). " [W]hen analyzing a hostile work environment claim spanning longer than 300 days a court' task is to determine whether the acts about which an employee complains are part of the s same actionable hostile work environment practice, and if so, whether any act falls within the statutory time period." Duncan v. Manager, Dept. of Safety, supra at 1308 (internal quotation marks and citation omitted). To survive summary judgment on a timely claim, " plaintiff must show that a rational a jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim' employment s and create an abusive working environment." Sandoval v. City of Boulder, Colo., 388 F.3d 1312, 1327 (10th Cir. 2004) (internal quotation marks omitted). An employee may only rely on evidence of harassment of others of which he or she was aware during that time the employee was allegedly subject to a hostile work environment. Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 782 (10th Cir. 1995). M s. Nunez never worked for the Clinic and admitted she has no facts to support a claim. To the extent that the incidents described by the other plaintiffs may be considered to have occurred within 300 days prior to the filing of their respective charges, they are not sufficiently connected to constitute a continuing violation. The only incident alleged by M s. Davila within the 300-day limitations period (October

9

Case 1:01-cv-01250-RPM-CBS

Document 149

Filed 06/29/2005

Page 10 of 16

21, 1998-August 17, 1999) which is related to race or national origin is M r. Grinnell' alleged s statement that he could not understand her because of her strong accent. This incident, even assuming it could be deemed discriminatory, is not sufficiently related to prior incidents to constitute a continuing violation and does not rise to the level required for a hostile work environment claim. M s. Diaz transferred to purchasing in January 1999. None of the incidents with any connection to M s. Diaz' national origin occurred within her 300-day window (October 21, s 1998-August 17, 1999), and the incidents complained of are neither severe nor pervasive. The incidents complained of which has any connection to her race or national origin occurred outside M s. Erazo' 300-day window (October 21, 1998-August 17, 1999) and there is s no linkage between any incidents which occurred inside and outside this window. The incidents are also not sufficiently severe or pervasive. M s. Escobedo has alleged one incident within her 300-day window (October 21, 1998August 17, 1999), the nurses in the OR wanted the housekeepers to speak English there. The head nurse told M s. Escobedo to practice speaking English so that she could do her job better. The incident is not sufficiently severe or pervasive to constitute a hostile work environment or sufficiently related to link back to incidents outside the limitations period. M r. Garcia has asserted one incident with any connection to his national origin, when M s. M ejia allegedly asked the housekeepers not to speak Spanish, but has not established this

10

Case 1:01-cv-01250-RPM-CBS

Document 149

Filed 06/29/2005

Page 11 of 16

occurred within 300 days of the filing of his charge (October 21, 1998-August 17, 1999). The three incidents he complained of occurred over a four-year period and are insufficient to constitute a hostile work environment. Assuming M s. Hopkins'charge was filed M arch 3, 1999, her 300-day window was between M ay 7, 1998 and M arch 3, 1999. M s. Hopkins testified M r. Grinnell called her " s. M Willie M ae"when he started working at the Clinic and continued to call her that during her employment, which was terminated November 1998. M r. Grinnell also tried to escort her out of the building when she was terminated. These incidents are insufficient to constitute a hostile work environment or to link back to the other incidents complained of. During M s. Jaramillo' 300-day window (October 21, 1998-August 17, 1999), a nurse in s the OR told her to speak English while working there, M r. Grinnell allegedly said " What is this M exican dirt?,"a social service employee said that sterile water should not be used on M s. Jaramillo' injured feet, and M r. Grinnell yelled at her when her son was eating in the cafeteria. s These events are not sufficiently severe or pervasive to constitute a hostile work environment. M s. M ontes only asserts one incident within her 300-day limitations period (October 21, 1998-August 17, 1999) which relate to her national origin, when M s. M ontes complimented M r. Grinnell on his yellow sweater, he allegedly said that the colors were better than the loud and dirty colors of M exico. This incident is not sufficiently severe or related to other incidents identified. The incidents complained of are not sufficiently severe or pervasive.

11

Case 1:01-cv-01250-RPM-CBS

Document 149

Filed 06/29/2005

Page 12 of 16

M r. Vargas has not identified any incidents connected to his national origin which occurred within the applicable 300-day limitation (October 21, 1998-August 17, 1999) so cannot link back to any other incidents. The incidents are also insufficient to establish a hostile environment claim as they were not based on his national origin or sufficiently severe or pervasive. To establish a prima facie case of disparate treatment, a plaintiff must show: (1) membership in a protected class; (2) an adverse employment action; (3) qualification for the position; and (4) the adverse employment action occurred under circumstances which give rise to an inference of unlawful discrimination, such as being replaced by a person outside the protected class or being treated differently than similarly situated employees not in a protected class. Sanchez v. Denver Public Schools, 164 F.3d 527, 531 (10th Cir. 1998); Hysten v. Burlington Northern & Santa Fe Ry. Co., 296 F.3d 1177, 1181 (10th Cir. 2002). The elements of the prima facie case are flexible and depend on the circumstances of the case. See Hysten v. Burlington Northern & Santa Fe Ry. Co., supra at 1181. Although " [t]he Tenth Circuit liberally defines the phrase ` adverse employment action,'. . . ` mere inconvenience or an alteration of job a responsibilities' ,"Sanchez v. Denver Public Schools, supra at 532, is insufficient. " Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for the action. If the defendant does so, the plaintiff must show the defendant' proffered reasons are pretextual." Id. at 531. s

12

Case 1:01-cv-01250-RPM-CBS

Document 149

Filed 06/29/2005

Page 13 of 16

M s. Nunez' disparate treatment claim fails as she testified that she was not hired s because she was M s. Diaz' friend, not because of her national origin. The claims based on s national origin are flawed because the employees from Honduras alleged they were treated more poorly than those from M exico, but the employees from M exico also claim they were treated poorly. One of the alleged major perpetrators was M s. M ejia, who is Hispanic and from M exico, but M s. Jaramillo, who is Hispanic, testified that she was not treated unkindly and did not hear discriminatory or derogatory comments by M s. M ejia. There is testimony that M r. Grinnell was rude to everyone. There is testimony that M s. M ejia and M r. Grinnell treated some housekeeping employees better than others, even though all were from protected classes. Except for M s. Jaramillo, there are no similarly situated employees not in the protected class. M s. Jaramillo worked in the housekeeping and kitchen departments and there were Anglo employees working in the kitchen. M s. Jaramillo testified that David LaGrange did not have to work weekends while the rest of the housekeeping and kitchen staff - including the Anglos - did. The plaintiffs failed to show that their positions were replaced by someone outside of the protected class or that their vacated positions remained open. The plaintiffs have failed to provide evidence sufficient to raise an inference of discrimination to establish a prima facie case of disparate treatment. Six of the plaintiffs failed to establish an adverse employment action. M s. Jaramillo and M s. Diaz transferred from their departments to the medical records department and purchasing

13

Case 1:01-cv-01250-RPM-CBS

Document 149

Filed 06/29/2005

Page 14 of 16

department, respectively, and there is no evidence they suffered an adverse employment action. M s. Davila, M s. Escobedo and M s. Garcia claim they suffered adverse employment actions as they were constructively discharged but their evidence is insufficient to create a genuine issue of material fact that " employer by its illegal discriminatory acts has made working conditions so the difficult that a reasonable person in the employee' position would feel compelled to resign." s Sandoval v. City of Boulder, Colo., supra at 1325 (" plaintiff must show that she had no [A] other choice but to quit. The conditions of employment must be objectively intolerable; the plaintiff's subjective views of the situation are irrelevant." emphasis in original, quoting Sanchez ; v. Denver Public Schools, supra). M s. Erazo was a seasonal employee and discharged at the end of the ski season. M s. Hopkins was not qualified for her position as, although she disagrees with the veracity of the complaints made against her by others, it is undisputed that complaints were made and documented. The Clinic articulated a legitimate nondiscriminatory reason for her termination and there is an insufficient showing that such reason was pretextual. M r. Vargas was discharged after he did not clean the elevators as he was asked and M s. M ontes was discharged after she refused to throw out trash asked by one of the supervisors, and neither has shown that his or her discharge was a pretext for discrimination. The retaliation claims of M s. Davila, M s. Erazo, M s. Escobedo, M r. Garcia, and M r. Vargas were dismissed by order dated M ay 10, 2002, and M s. Diaz, M s. Jaramillo, and M s.

14

Case 1:01-cv-01250-RPM-CBS

Document 149

Filed 06/29/2005

Page 15 of 16

Nunez admit they have no facts to support this claim, leaving as plaintiffs M s. M ontes and M s. Hopkins. To establish a prima facie case of retaliation, a plaintiff must demonstrate that: 1) she engaged in protected opposition to discrimination; 2) her employer took an adverse employment action against her; and 3) there exists a causal connection between the protected activity and the adverse action. Once a prima facie case is established, the burden shifts " the employer to to produce a legitimate, nondiscriminatory justification for taking the disputed employment action." Stover v. Martinez, 382 F.3d 1064, 1070-1071 (10th Cir. 2004). If the employer meets its burden, the burden shifts back to the employee to show that the employer' proffered reason is a s pretext for discrimination. Id. at 1071. M s. Hopkins failed to demonstrate that she engaged in protected activity or that the Clinic' legitimate, nondiscriminatory reason for her discharge, poor performance, was a pretext s for discrimination. M s. M ontes failed to demonstrate any causal connection between her protected activity (visiting an attorney) and discharge, or that her discharge for insubordination was a pretext for discrimination. The plaintiffs with claims under 42 U.S.C. § 1981 are M s. M ontes, M s. Diaz, M s. Escobedo, M s. Jaramillo and M s. Nunez as the other plaintiffs'claims were dismissed by order dated M ay 10, 2002. All of these remaining plaintiffs have admitted they have no facts to support this claim except M s. M ontes whose claim fails for the same reason that her Title VII disparate treatment claim fails.

15

Case 1:01-cv-01250-RPM-CBS

Document 149

Filed 06/29/2005

Page 16 of 16

There is no basis for punitive damages. It is ORDERED that defendant Servicemaster M anagement Services Limited Partnership is dismissed with prejudice, the plaintiffs'state law claims (seventh, eighth, ninth, eleventh, twelfth, and thirteenth claims) are dismissed without prejudice, the defendants'motion for summary judgment as to the remaining claims (the first, second, third, fourth and fifth claims) is granted and those claims are dismissed with prejudice. The clerk will enter a judgment dismissing the plaintiffs'claims against both defendants with an award of costs to the defendants. DATED: June 29th, 2005

BY THE COURT: s/Richard P. M atsch Richard P. M atsch, Senior District Judge

16