Opinion
Civil Action 19-cv-03456-PAB-SKC
09-21-2021
ALLISON MACDOUGALL Plaintiff, v. BANNER HEALTH, Defendant.
ORDER
PHILIP A. BRIMMER, CHIEF UNITED STATES DISTRICT JUDGE
This matter is before the Court on Defendant's Motion for Summary Judgment [Docket No. 40]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
The following facts are undisputed unless otherwise indicated.
Beginning in April 2015, plaintiff worked as a temporary Patient Financial Services Representative (“PFSR”) at defendant's Gastroenterology (“GI”) Clinic in Greeley, Colorado and, in June of that year, she moved to a permanent PFSR position. See Docket No. 40 at 2, ¶¶ 1-2. Plaintiff's initial pay at the GI clinic was determined by a pay rate calculator. Id. at 3, ¶¶ 3-4. Although plaintiff's position theoretically required six to twelve months of relevant experience, which plaintiff did not have, she was nevertheless hired. See id., ¶¶ 8-10. Asha Elmagbari, a recruiter for defendant, was in charge of determining plaintiff's starting salary. Id., ¶ 3. Plaintiff never met or spoke with Ms. Elmagbari. Id., ¶ 5. In June 2015, the starting salary for someone with plaintiff's experience and education was between $13.57 and $14.55 per hour. Id. at 4, ¶ 14. Plaintiff started at $14.00 per hour, which her manager, Joseph Andujo, selected from the range provided. Id., ¶¶ 15-16. Beginning in early 2016, plaintiff's supervisor became Lindsey Maxwell-Label. Id., ¶ 18. In April of that year, plaintiff received a performance evaluation of “[m]eets [e]xpectations” and received a raise. Id., ¶¶ 20-21.
Plaintiff denies that this position required six to twelve months experience. See Docket No. 45 at 2, ¶ 8. However, her denial is based on the fact that she was hired without the experience. Id. Plaintiff, however, is required to “designate specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotations omitted). Plaintiff does not point to any evidence demonstrating this position did not require six to twelve months of relevant experience. As a result, the Court deems this fact admitted. See Fed. R. Civ. Proc. 56(e)(2) (permitting a court to consider a fact that a party “fails to properly address” as “undisputed for the purposes of the motion”).
Plaintiff denies that this was the starting range for her experience and education. See Docket No. 45 at 2, ¶¶ 10, 14. But plaintiff fails to provide any other evidence in the record to support her denial and instead conclusorily states that Theresa McKay, Senior Director of Recruitment for defendant, Docket No. 41-2 at 2, ¶ 2, has no basis to assert this fact. See Docket No. 45 at 2, ¶¶ 10, 14. Therefore, the Court deems this fact admitted.
Plaintiff had two other colleagues who worked at the front desk with her, Brenna Jimenez and Tammy Araujo. See Id. at 5, ¶ 25. The starting salary for someone beginning in June 2016, when Ms. Araujo joined, was between $15.71 and $16.85 per hour. Id., ¶ 31. Ms. Araujo starting salary was $16.28 per hour. Id., ¶ 32. Ms. Araujo was given credit for ten years in related fields. Id., ¶¶ 29-30. Plaintiff was the one responsible for training new hires, including Ms. Araujo. Docket No. 45 at 10, ¶ 7. At some point, plaintiff complained to Ms. Maxwell-LaBel that Ms. Araujo had a salary than her. Id., ¶ 9. Plaintiff's pay was not adjusted, even though plaintiff was doing “additional work” by assisting Spanish-speaking callers, which Ms. Araujo could not. Id., ¶¶ 9-10. Ms. Maxwell-Label did not believe that plaintiff should be paid more because she thought Ms. Araujo had more experience. Id., ¶ 11; see also Docket No. 45-3 at 9.
Plaintiff again denies this fact but fails to designate any specific facts showing there is a dispute. See Docket No. 45 at 3, ¶ 31. Accordingly, the Court deems this fact admitted.
Plaintiff denies this fact but again fails to designate any specific facts showing there is a dispute. See Docket No. 45 at 3, ¶¶ 29-30. Accordingly, this fact is deemed admitted.
Plaintiff experienced discrimination from her colleague, Sue McCrary, starting around six months before she left. See Docket No. 40 at 9, ¶ 62; Docket No. 45 at 5-6, ¶ 62. Ms. McCrary commented that one employee got married to stay in the country legally and expressed a desire for then-candidate Donald Trump to build a wall to “get rid” of “all of you.” Docket No. 40 at 9, ¶ 63. Ms. McCrary also stated that Mexican patients utilizing Medicaid were a “drain on society.” Id. at 10, ¶ 64. When plaintiff told Ms. McCrary that she was Mexican, Ms. McCrary said that plaintiff was “one of the good ones.” Id., ¶ 65.
Another employee at Banner was Natasha Gonzales, who is a medical assistant at Banner and former employee of the GI clinic. See Docket No. 45 at 6, ¶¶ 1-2. Ms. Gonzales testified that there was “a lot of harassment and bullying in the GI clinic.” Id. at 6-7, ¶ 2. She witnessed GI clinic employees make “derogatory comments about Hispanics, ‘all the time, every day.'” Id. at 7, ¶ 3. Ms. McCrary expressed interest in President Trump “kick[ing] all the Mexicans out of the United States.” Id., ¶ 4. Ms. McCrary also made fun of Ms. Gonzales's salary, stating that Mexicans were “cheap labor, ” which is why Ms. Gonzales was paid less than other employees. Id., ¶ 5. Ms. McCrary also said that those of Mexican descent were pathetic because adults would live with their parents. Id. Ms. Gonzales heard “at least three” GI clinic employees make derogatory statements about Hispanic people. Id., ¶ 6. Another employee, Ms. Rackley, also was subjected to comments regarding those of Hispanic and Mexican descent. Id., ¶ 8. Ms. McCrary said to Ms. Rackley that “they should just keep all the Mexicans over there.” Id. Ms. Maxwell-LaBel heard some of the discriminatory comments, as well, including the comment for President Trump to “build a wall and get rid of them all.” Id. at 8, ¶ 10. Ms. Maxwell-Label did nothing to stop these comments when she heard them. Id. at 8-9, ¶ 15.
Plaintiff consistently performed well, although she felt the job was “always stressful” from the beginning of her time with defendant. Id. at 4, ¶¶ 22, 24. She felt that her job got more stressful as time went on. Id. at 7, ¶ 46. This was partly because she felt there was too much work for one person. Id., ¶ 47. She began to suffer panic attacks from the workload and discrimination she experienced. Id., ¶ 49. In September 2016, plaintiff went on medical leave, and stayed on medical leave while employed by defendant for two years. Id., ¶ 50. She never returned to work for defendant. Id., ¶ 51.
On December 9, 2019, plaintiff filed suit. See Docket No. 1. She alleges four claims: (1) hostile work environment pursuant to 42 U.S.C. § 1981; (2) hostile work environment pursuant to Title VII, 42 U.S.C. § 2000e-2; (3) race and national origin discrimination pursuant to § 1981; and (4) race and national origin discrimination pursuant to Title VII, § 2000e-2. See Id. at 7-12.
II. LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when 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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if, under the relevant substantive law, it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
Where “the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quotations omitted). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The nonmoving party may not rest solely on the allegations in the pleadings, but instead must designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotations omitted). “To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case.” Bausman, 252 F.3d at 1115. When reviewing a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id.
III. ANALYSIS
Plaintiff asserts claims for hostile work environment and race and origin discrimination pursuant to both Title VII and § 1981. See Docket No. 1 at 7-12. The Court addresses each in turn.
A. Hostile Work Environment
To make out a claim a for hostile work environment, plaintiff must show that, “under the totality of the circumstances (1) the harassment was pervasive or severe enough to alter the terms, conditions, or privileges of employment, and (2) the harassment was racial or stemmed from racial animus.” Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994) (citations omitted). The standard is the same whether under Title VII or § 1981. See Durham v. Xerox Corp., 18 F.3d 836, 939 (10th Cir. 1994) (citations omitted). A court must examine the factors both subjectively and objectively. See Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 680 (10th Cir. 2007) (citations omitted). Defendant argues that plaintiff has not demonstrated that (1) she subjectively experienced a hostile work environment, (2) she was targeted as a result of a protected class, or (3) the environment was objectively hostile. See Docket No. 40 at 16-17. The Court finds these arguments unpersuasive.
Defendant also argues that plaintiff has failed to demonstrate that she was constructively discharged. See Docket No. 40 at 14. However, the final pretrial order contains no claim for constructive discharge, see Docket No. 50, even though the complaint did. See Docket No. 1. The Court thus considers plaintiff's constructive discharge claim waived. See Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002) (“[C]laims, issues, defenses, or theories of damages not included in the pretrial order are waived even if they appeared in the complaint.”); Expertise Inc. v. Aetna Fin. Co., 810 F.2d 968, 973 (10th Cir. 1987) (“[T]he pretrial order is the controlling document for trial.”).
First, defendant argues that, because plaintiff put on one dinner party for Ms. McCrary and invited her to an event where plaintiff was honored as citizen of the year, plaintiff did not subjectively experience harassment that was so severe or pervasive that it altered her employment. See Id. at 17. In response, plaintiff argues that the dinner party was put on early in plaintiff's tenure with defendant, before Ms. McCrary's comments, and that the entire office was invited to the event. See Docket No. 45 at 18. The Court agrees with plaintiff that the single dinner party early in her tenure and the whole-office nature of the celebration invitation do not have the preclusive effect that defendant believes they have. The undisputed evidence shows that Ms. McCrary's comments began later in plaintiff's career. As to the event where plaintiff was honored, a reasonable jury could conclude that plaintiff was subjectively offended by Ms. McCrary's various comments, including about keeping Mexicans out of America, that plaintiff was a “good” Mexican, and that Mexicans were a drain on the system, and yet still invite Ms. McCrary to an event that the entire office was invited to. At a minimum, this creates a genuine issue of material fact as to plaintiff's subjective beliefs that precludes summary judgment. See Carpenter v. Sw. Bell Tel. Co., 27 F.Supp.3d 1168, 1171 (D. Kan. 2014) (finding it sufficient that a plaintiff stated the conduct was offensive).
Second, defendant argues that Ms. McCrary's comments are related to citizenship and not race or national origin and, because citizenship is not a protected class, her claim must fail. See Docket No. 40 at 17. Ms. McCrary made the following statements: (1) she wanted a wall to “get rid” of “all of you”; (2) Mexican patients using Medicaid were a “drain on society;” (3) plaintiff was a “good” Mexican; (4) Mexicans should be kicked out of the country; (5) Mexican people were “cheap labor”; and (6) Mexican people were pathetic because they live with their parents. Docket No. 40 at 9-10, ¶¶ 63-65; Docket No. 45 at 7, ¶¶ 4-5. A reasonable jury could conclude that these are explicitly derogatory references to those of Mexican and Hispanic descent.
Third, defendant argues that these comments are insufficient to show an objectively hostile work environment because the comments did not begin until the end of plaintiff's tenure and the comments were not frequent enough. Docket No. 40 at 17. The Court is not persuaded. First, defendant offers no support for the proposition that an employee must satisfy a magic number of hostile months to make out a claim for hostile work environment. Rather, a court looks at the “totality of the circumstances” to see whether a “reasonable person would likewise be offended.” Hernandez v. Valley View Hosp. Ass'n, 684 F.3d 950, 957, 959 (10th Cir. 2012). Even if the comments began six months or so before plaintiff went on medical leave, the Court finds a reasonable jury could conclude that the frequency and explicitly derogatory nature of them would offend a reasonable person. For example, in Hernandez, the plaintiff was subjected to roughly a dozen racially charged comments and jokes about Mexicans over a fourteen month period, which the Tenth Circuit found sufficient to survive summary judgment. Id. at 958. Here, there are at least six explicit comments in a six month period and the comments regarding Hispanics occurred “all the time, every day” in the GI clinic. See Docket No. 45 at 7, ¶ 3. While defendant argues that Ms. McCrary's comments were “mere offensive utterances, ” Docket No. 40 at 18, that characterization belies reasoning. Telling someone that those of their racial descent and national origin should be kicked out of the country is not a mere offensive utterance. At the very minimum, a reasonable jury could conclude that it is objectively offensive.
Accordingly, there are genuine issues of material fact that prevent summary judgment on plaintiff's claims for a hostile work environment.
B. Race and Origin Discrimination
Title VII makes it unlawful “for an employer . . . to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” See 42 U.S.C. § 2000e-2(a)(1). Similarly, § 1981 gives “all persons . . . the same right . . . to make and enforce contracts . . . and to the full and equal benefit of all laws.” § 1981(a). The standards for evaluating the claims are the same. See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000). Plaintiff brings a disparate treatment claim, which can be demonstrated either by “direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic” or by “using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Young v. United Parcel Serv., Inc., 575 U.S. 206, 212 (2015). Under McDonnell Douglas, plaintiff must first establish a prima facie case of race or national origin discrimination. Kendrick, 220 F.3d at 1226. Next, the employer must “articulate some legitimate, nondiscriminatory reason for its employment action.” Id. If the employer meets this burden, it shifts back to the plaintiff to show that the employer's “justification is pretextual.” Id.
Plaintiff brings a claim for race and national origin discrimination in violation of Title VII. See Docket No. 1 at 9-10. Specifically, plaintiff alleges that defendant paid her less than other employees because she is Mexican and of Hispanic descent. Id. There are two aspects to plaintiff's pay argument: first, her initial salary, and, second, the pay disparity between her and Ms. Araujo. Defendant argues that, under McDonnell Douglas, plaintiff cannot make out a prima facie case of race or origin discrimination. Docket No. 40 at 10-11. And, even if she could, she cannot point to any evidence, disputed or otherwise, demonstrating that defendant's justification for the pay disparity was pretextual. Id. at 11-13.
Defendant argues that plaintiff, for the first time, raises the issue of the lack of a pay raise. Docket No. 46 at 4-5. However, this claim is found in the final pretrial order, Docket No. 50 at 3-4, which controls the litigation, see Hullman v. Bd. of Trs., 950 F.2d 665, 668 (10th Cir. 1991), and is also found in the complaint. See Docket No. 1 at 5, ¶ 28. Accordingly, the Court will consider it.
First, the Court finds that plaintiff has failed to make a prima facie case of race or national original discrimination based on her initial salary. While plaintiff's burden at step one is “not onerous, ” she still must “show[] actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under Title VII.” See Young, 575 U.S. at 298 (citations and quotations omitted). Here, there is no evidence that Ms. Elmagbari, the person who set plaintiff's initial salary, knew that plaintiff was from a protected class and plaintiff does not point to any evidence raising an inference that Ms. Elmagbari knew plaintiff belonged to a protected class. To make out a prima facie case of discrimination, plaintiff must either demonstrate or raise a genuine issue of material fact that Ms. Elmagbari was “aware that [] plaintiff belonged to a protected class.” See Belcher v. Boeing Commercial Airplane Grp., 105 Fed.Appx. 222, 226 (10th Cir. 2004) (unpublished) (citations omitted); see also Owens v. Donahoe, 913 F.Supp.2d 1055, 1062 (D. Colo. 2012) (noting that a court cannot infer discriminatory intent if the decision maker is “not aware of a person's race”). Additionally, plaintiff offers no evidence regarding the salaries of persons from non-protected classes to compare to her initial salary. Rather, the only person she compares herself to is Ms. Araujo. But Ms. Araujo joined after plaintiff started. To make out a prima facie case, she must show that she was “paid less, or given a lesser pay raise, than similarly situated employees of different races.” Young v. Physician Off. Partners, Inc., 2020 WL 1446911, at *8 (D. Kan. Mar. 25, 2020). Without identifying a non-protected comparator for her initial salary, plaintiff cannot demonstrate that she was paid less as a result of her race or national origin. Finally, the salary range for the position was between $13.57 and $14.55 per hour. Docket No. 40 at 4, ¶ 14. Plaintiff's salary was squarely in the middle of this range at $14.00 per hour, id., ¶ 15, even though she was hired without the listed qualifications for the job. Given that her salary was within defendant's range, and plaintiff did not hold the qualifications required but was still hired, plaintiff cannot show that it is “more likely than not” that her initial salary was “based on a discriminatory criterion.” See Young, 575 U.S. at 298 (citations and quotations omitted).
Second, the Court finds that, even assuming plaintiff has made out a prima facie case of discrimination based on the continuation of a pay disparity after Ms. Araujo was hired, defendant has offered a legitimate, non-discriminatory reason for the pay disparity that plaintiff has failed to rebut as pretextual. First, defendant has submitted evidence that the reason Ms. Araujo had a higher salary than plaintiff when she started was because of Ms. Araujo's qualifications. Docket No. 40 at 5, ¶¶ 29-30. Specifically, defendant cites to evidence that Ms. Araujo had experience in medical billing, financial collecting services, and insurance industry services. See id.; see also Id. at 13. Defendant points to evidence showing that Ms. Araujo had ten years relevant experience. See Docket No. 40 at 5, ¶¶ 29-30. Defendant has met its burden at step two. See Sprague v. Thorn Ams., Inc., 129 F.3d 1355, 1363 (10th Cir. 1997) (noting that the defendant's burden at step two is “exceedingly light”).
As a general matter, a plaintiff can demonstrate pretext by revealing “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.” Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1242 (10th Cir. 2002) (citations omitted). Typically, a plaintiff will do this in one of three ways: (1) the defendant's stated reason for the adverse employment action was false; (2) the defendant acted contrary to a written company policy; or (3) the defendant acted contrary to an unwritten policy or practice. See Kendrick, 220 F.3d at 1230.
Plaintiff has not submitted any evidence, disputed or otherwise, that defendant's reasons were false or that defendant acted contrary to any policy, written or otherwise. Rather, plaintiff's only argument is that she had been in the role for a year, and therefore must be more qualified, and she speaks Spanish, whereas Ms. Araujo does not. See Docket No. 45 at 15. But neither of these attributes demonstrate an “overwhelming disparity in qualifications.” See Johnson v. Weld Cnty., 594 F.3d 1202, 1211-12 (10th Cir. 2010). The Court is in no position to “substitute [its] views” that plaintiff's year in the role is more valuable than Ms. Araujo's other experience. MacKenzie v. City and Cnty. Of Denver, 414 F.3d 1266, 1278 (10th Cir. 2005) abrogated on other grounds by Lincoln v. BNSF Ry. Co., 900 F.3d 1166 (10th Cir. 2018). As to plaintiff's argument that she spoke Spanish when Ms. Araujo did not, plaintiff does not point to any evidence that Spanish was a required part of the PFSR position, although she does demonstrate that it was beneficial. But, even if plaintiff spoke Spanish when Ms. Araujo did not, this disparity in qualification is not so “obvious” that it demonstrates pretext for giving Ms. Araujo a higher salary given her years of experience. See id.
That there is no significant disparity in qualifications is particularly relevant given that plaintiff has not pointed to any evidence that defendant is lying or that it is not following company policy. In fact, the only evidence is that, when defendant did not follow company policy, it was in favor of plaintiff. For example, in Physician Officer Partners, the court found that the plaintiff demonstrated pretext by showing that the objective qualifications the employer touted as relevant “did not always apply . . . equally.” 2020 WL 1446911, at *10. As a result, the court concluded that, because the written qualifications did not always apply for white employees, the plaintiff had demonstrated pretext. Id. Here, however, the undisputed evidence shows that the only time someone was hired without the requisite qualifications was when plaintiff was hired. Docket No. 40 at 3, ¶¶ 8-10.
Accordingly, the Court finds that defendant did not violate either Title VII or § 1981, and defendant is entitled to judgment as a matter of law on those claims.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendant's Motion for Summary Judgment [Docket No. 40] is GRANTED in part and DENIED in part. It is further
ORDERED that plaintiffs second and third claims are DISMISSED with prejudice.