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Tian v. Newmont International Services Limited

United States District Court, D. Colorado

September 18, 2014

FANG TIAN, Plaintiff,


JOHN L. KANE, Senior District Judge.

Defendant Newmont International Services Limited ("Newmont") moves under Fed.R.Civ.P. 56(c) for Summary Judgment in its favor on each of Plaintiff Fang Tian's four claims against it, Doc. 25. Also pending is Newmont's Motion to Strike, Doc. 36. For the reasons that follow, I GRANT Newmont's Motion as to Ms. Tian's claim for race and national origin discrimination and DENY the Motion as to the remainder. Further, for substantially the same reasons as capably set forth in Ms. Tian's Response to Newmont's Motion to Strike, Doc. 37, I DENY Newmont's Motion to Strike in totem, with the conceded exception of Exhibits 11 and 31.


Ms. Tian asserts four claims based on her employment with Newmont as a SCM Senior Generative and Exploration and Mine Operation Service Analyst ("Service Analyst"[1]) and her separation from Newmont upon the elimination of her position. Ms. Tian first claims that she was discriminated against due to her race, Asian, and her national origin, Chinese, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq. Specifically, Ms. Tian alleges that discrimination motivated Newmont to treat her disparately in the terms and conditions of her employment, resulted in her being subjected to a hostile work environment, and motivated Newmont's decision to end her employment. Ms. Tian next asserts claims under Colorado common law for promissory estoppel, fraudulent misrepresentation and negligent misrepresentation based on an alleged promise by her manager to sponsor her application for permanent residence status (or a green card).


Because this action arises under federal law, I have subject matter jurisdiction over it per 28 U.S.C. § 1331 and §1343. Because Newmont transacts business in the State of Colorado, I have personal jurisdiction over it per C.R.S. §13-1-124. Because the unlawful employment practices alleged by Ms. Tian occurred within the State of Colorado, venue is proper in this judicial district per 28 U.S.C. § 1391(b) and 29 U.S.C. § 1132(e)(2).

All administrative prerequisites for filing of this suit have been met. On or about January 25, 2012, Ms. Tian timely filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). On or about June 22, 2012, the EEOC issued a Dismissal and Notice of Right to Sue to Tian on her Charge of Discrimination. Ms. Tian commenced this action within 90 days of receipt of the Dismissal and Notice of Right to Sue.


Summary judgment is appropriate if 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(c); Adamson v. Multi Community Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). A disputed fact is material if it could affect the outcome of the suit under the governing law. Adamson, 514 F.3d at 1145. A factual dispute is genuine if a rational jury could find for the nonmoving party on the evidence presented. Id. The moving party bears the burden of showing that no genuine issue of material fact exists. Adamson, 514 F.3d at 1145. Where, as here, the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden by showing a lack of evidence for an essential element of the nonmovant's claim. Id. In deciding whether the moving party has carried its burden, I may not weigh the evidence and must view the evidence and draw all reasonable inferences from it in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Adamson, 514 F.3d at 1145. Neither unsupported conclusory allegations nor a mere scintilla of evidence in support of the nonmovant's position are sufficient to create a genuine dispute of fact. See Mackenzie v. City and County of Denver, 414 F.3d 1266, 1273 (10th Cir. 2005); Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir. 1997).


Corporate Structure

Newmont is a large mining company heavily involved in gold production. Newmont's corporate structure includes a Global Supply Chain Management organization. Global Supply Chain Management supports Newmont's procurement of goods and services. In the Global Supply Chain Management universe, category management includes two broad categories: goods (bulk commodities) and services (labor). The goods categories include bulk commodities such as fuel, nitrates, and other chemicals. The services categories include outsourced labor for drilling and mine operations services. The goods side of Global Supply Chain Management is more mature than the services side and its categories are more clearly defined.

The Hiring of Ms. Tian

Ramsey Musa was hired in June 2009 as Senior Director Services in the Global Supply Chain Management ("SCM") organization to develop a new services category management team. Mr. Musa sought a new at-will employee to fill a newly created Service Analyst position for the supply side of SCM. This primary role of this position was to support the contract and purchasing functions of Generative Exploration and Mine Operations Services ("GEMOS") by preparing and providing data collection, modeling, analysis, and reports supporting the service contracting function. Ms. Tian applied for and received this job after interviewing with Newmont. She accepted the job at a Newmont internal salary grade of 103 and began work on December 14, 2009, reporting directly to Mr. Musa.

Ms. Tian understood that "employment with Newmont is at-will, which means that either the employee or Newmont may terminate the relationship at any time, with or without cause, justification or explanation to the other. The at-will nature of any Newmont employee's individual employment relationship with Newmont can only be modified by contract through a written agreement signed by both the employee and either the Senior Vice-President, Human Resources or the Chief Executive Officer." Ms. Tian acknowledged her understanding of the at-will employment relationship on at least four separate occasions, including: (1) the offer letter she signed on October 12, 2009; (2) the application for employment she completed on October 15, 2009; (3) the New Hire Orientation Checklist and Employee Agreement she signed on December, 14, 2009 and; (4) the Newmont Code of Business Ethics and Conduct which she received at the outset of her employment and was available to her throughout her employment.

Ms. Tian's Immigration Status

Ms. Tian is a Chinese citizen and does not hold U.S. Citizenship. When she was interviewing for her Service Analyst position, she asked Re Essig, a human resources representative, about Newmont's policy regarding supporting green card applications and was informed that the decision to sponsor a green card would be made in the future and would depend on the company's needs and her performance with input from her supervisor. At the time Ms. Tian was hired by Newmont, Ms. Tian had an H1-B visa with her former employer. An H1-B visa allows a non-immigrant to work for a U.S. employer for three years with an option to renew the visa for an additional three years for total of six years. Ms. Tian's H1-B visa was successfully transferred to Newmont through November 2012. A green card is a separate authorization from an H1-B visa. A green card allows a foreign national to live and work in the U.S. for ten years. The process of obtaining a green card is lengthier and more complex than that of obtaining an H1-B visa. The average length of time that it takes to obtain a green card is 1.5 years.

Mr. Reyes, Ms. Tian's Supervisor

In late 2009, Mr. Musa was also seeking to hire a more senior category manager to manage the service category function. Mr. Musa hired Juan Pablo Reyes into the role of Category Manager II position with a salary grade of 107. Mr. Reyes began working at Newmont on January 5, 2010 and Ms. Tian reported to Mr. Reyes from January 2010 through her position elimination a year and a half later. During Ms. Tian's employment, Mr. Reyes supervised her and one other employee, a lower salary grade contracts administrator, Jana Wening. During 2010 and 2011, Mr. Musa's counterpart on the goods side of the supply chain management organization was Juan Becerra. Three Bulk Commodities Analysts, Kevin Fair, Craig Jacoby and Jillian Carmichael worked in Mr. Becerra's group during 2010 and 2011. Manuel Rocha was an Analyst for Process Equipment during 2010 and 2011. These analysts did not report to either Mr. Musa or Mr. Reyes.

Ms. Tian's Performance Reviews

Mr. Reyes conducted mid-year and year-end performance reviews for and with Ms. Tian during the year and a half that she worked at Newmont. The reviews use a performance rating assessment rubric having 6 categories for which 6 rankings are available. The rankings range from a low 1 of "Did Not Achieve Most Results" to a high 6 of "Achieved All and Exceeded Most/All Results." Ms. Tian's overall scores were consistently in the 3 range. Her "Relationship" results tended to be among her lower scores (she twice scored a 2 in this area); she never scored above a 4 in any category. While Mr. Reyes's reviews of Ms. Tian included unsatisfactory and minimally satisfactory numbers during her tenure, he also gave her complimentary feedback.

Facts Relating to Ms. Tian's Allegedly Discriminatory Terms and Conditions of Employment and Hostile Work Environment

Ms. Tian claims that she was excluded from meetings, travel, and training relating to her job because of her race and national origin. Her factual evidence to support the allegation that she was excluded from meetings consists of a list she compiled, after she had learned of her position elimination, of all of Mr. Reyes's meetings for a period of roughly six months. A footnote provided by Ms. Tian explains that her list would have been longer, but she only had access to Mr. Reyes's calendar data from the time period her list covers. She claims she should have been included at every single meeting on Mr. Reyes's calendar during this period. She does not claim that her non-attendance compromised her ability to do her job in any way or that her performance suffered because she did not attend the meetings.

Mr. Reyes denies that he excluded Ms. Tian from meetings she should have attended. Ms. Tian does not claim that she never attended meetings and it is undisputed that she attended some. Ms. Tian claims that Jana Wening, a Caucasian Contracts Supervisor also under Mr. Reyes management, was invited to attend meetings than she was not. Again, Ms. Tian does not specifically explain ...

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