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Basulto v. Exact Staff, Inc.

United States District Court, D. Colorado

January 6, 2016




This matter comes before the court on Defendant Exact Staff, Inc.’s (“Exact Staff” or “Defendant”) Motion to Dismiss. [#13, filed August 25, 2015]. The Motion was referred to the undersigned Magistrate Judge pursuant to the Order of Reference dated July 24, 2015 [#4] and memorandum dated September 1, 2015 [#15]. After carefully considering the Motion and related briefing, the entire case file, and the applicable case law, I respectfully RECOMMEND that the Motion to Dismiss be DENIED.


Plaintiff Jorge Basulto (“Plaintiff” or “Mr. Basulto”) initiated this lawsuit by filing a Complaint on July 23, 2015 asserting a single claim for retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”). [#1]. The Complaint seeks declaratory relief and monetary damages in the form of back pay, front pay, compensatory damages for emotional distress, humiliation, and inconvenience, punitive damages, pre- and post-judgment interest, and attorneys’ fees and costs. [Id. at 1 and ¶ 69].

The following facts are drawn from the Complaint, and are taken as true for the purposes of considering the instant Motion. Exact Staff is a staffing agency “that provides jobs and staffing services for its clients, ” and has its principal place of business in Woodland Hills, California [#1 at ¶¶ 7, 8]. Defendant Electronic Recyclers, Inc. (“Electronic Recyclers”) “is engaged in the business of recycling and/or repairing electronic equipment and appliances, ” and is a Colorado corporation with its principal place of business in Fresno, California. [Id. at ¶¶ 9, 10].

In March 2013, Mr. Basulto applied for employment with Exact Staff, and on April 9, 2013, Exact Staff hired Plaintiff to work as an On-Site Supervisory/Human Resources Representative. [#1 at ¶¶ 16, 17]. At this time, Exact Staff was providing staffing and managerial services to Electronic Recyclers. [Id. at ¶ 19]. Exact Staff arranged for Plaintiff to interview with Electronic Recyclers for an On-Site Supervisory/Human Resources Representative position. [Id. at ¶ 20]. Following an interview with Joe Haight, the Commodities Manager and Assistant Plant Manager at Electronic Recyclers, Plaintiff was hired for the position. [Id. at ¶ 21]. As the On-Site Supervisor/Human Resources Representative, Mr. Basulto selected candidates to fill available positions at the Electronic Recyclers plant. [Id. at ¶ 25].

During Mr. Basulto’s first week of employment with Electronic Recyclers, Mr. Haight and the plant manager, Dean Holter, told Plaintiff that “Electronic Recyclers did not want female employees working at the plant, ” and subsequently referred to women generally as “broom pushers.” [#1 at ¶¶ 26, 27]. Mr. Basulto simultaneously observed that Electronic Recyclers had a “disproportionately large number of men working at the plant.” [Id. at ¶ 30]. When Plaintiff attempted to protest that women are equally capable of performing jobs at the plant, Mr. Haight and Mr. Holter responded that Plaintiff “did not understand the job well enough and, as a result, could not understand why females could not perform the job.” [Id. at ¶ 29].

At the end of the first week of employment, Mr. Basulto hired Antenea Brown to work as an Orderly at the plant. [#1 at ¶ 31]. An Orderly is responsible for various cleaning tasks in the office and plant area. [Id. at ¶ 32]. When Plaintiff subsequently informed Mr. Haight and Mr. Holter of the hire, they responded with hesitation and stated that she would be limited to performing the job’s functions within the office and would not be permitted to work inside the plant. [Id. at ¶ 35]. Mr. Basulto reported these comments to Toni Kemp, Exact Staff’s National Human Resources Manager, who asked if she could discuss the remarks with Plaintiff the following week. [Id. at ¶ 37]. Ms. Kemp also shared with Plaintiff that “there had been some issues with discrimination by Electronic Recyclers at the plant.” [Id.]

The following week, Mr. Basulto interviewed and hired Amber Deciedue for a second Orderly position that included cleaning responsibilities within the plant. [#1 at ¶¶ 38, 39]. Mr. Haight was upset when he learned of the hire, and told Plaintiff, “you need to know the duties of the position before you hire a female employee.” [Id. at ¶ 41]. Mr. Basulto responded that “Ms. Deciedue was qualified for the job and that he did not understand why Mr. Haight was so upset over the hiring decision, ” and that he “intended to comply with the law and would not discriminate against female applicants.” [Id. at ¶¶ 42, 43].

On April 22, 2013, Ms. Deciedue began work at Electronic Recyclers. [#1 at ¶ 44]. That same day, Lori Johnson, a Safety Officer at Electronic Recyclers, told Mr. Basulto that male employees in the plant were commenting that they did not want to work with a female co-worker. [Id. at ¶ 45]. Approximately 45 minutes after Ms. Deciedue’s first day of work commenced, Mr. Holter complained to Mr. Basulto that her “pace” in performing the Orderly job was too slow. [Id. at ¶ 46]. Mr. Basulto responded that he thought she was performing satisfactorily. [Id. at ¶ 47]. Later that day, Mr. Holter informed Plaintiff that he had decided to fire Ms. Deceidue, but would retain two recently hired male Orderlies. [Id. at ¶ 48].

Mr. Basulto advised Ms. Kemp of the exchange in the following email:

Today it was brought to my attention by our safety officer Lori, that while we had a female candidate doing her working interview, [a] few of the male employees were making comments, and one of them told Lori that he did not want to work with a female employee. In the short time I have been in the office, I have noticed there has been a lot of resistance in diversifying our work force. I believe our facility is not giving an equal opportunity to females as they are to male applicants. Our facility is willing to take male applicants with felonies and others who are currently on parole/probation but they are not willing to give a chance to a female candidate with a much better background the same opportunity. I understand this has been the case for a very long time. But these are not the hiring practices that I follow. I really think this issue should be addressed with all those concerned. Today for example we had 2 male working interviews and 1 female working interview. The 2 males were given the approval by [D]ean, however, the female who in my opinion appeared to be working as hard as any other orderly, was rejected, supposedly for not working fast enough. If that is the case than the current male orderly needs to be removed because as per what I have seen he violates safety rules and does not clean as fast either. This is an important matter which needs to be addressed, because if this is the way the facility wishes to hire employees, then I’d rather not have any part in it.

[#1 at ¶ 49]. Ms. Kemp responded the same day that she appreciated Plaintiff’s concerns and would raise the issue with “[Electronic Recyclers] corporate.” [Id. at ¶ 50]. On April 23, 2013, Ms. Brown, Mr. Basulto’s first female hire, reported to Plaintiff that Mr. Holter had told her “not to get too comfortable” because she would not be working at the plant much longer. [Id. at ¶ 51]. Ms. Brown stated her discomfort to Plaintiff and asked to submit her two weeks of notice. [Id. at ¶ 52]. Mr. Basulto asked Ms. Brown to give him an opportunity to address her complaints before she resigned, and again raised his concerns to Ms. Kemp. [Id. at ¶¶ 53, 54].

Plaintiff and Ms. Kemp discussed his specific concerns during a telephone conversation held later on April 23. [Id. at ¶ 58]. Ultimately, Ms. Kemp thanked Plaintiff for alerting her to the practices within the plant and advised that she had been happy with his performance, but informed Plaintiff that “she had to let [him] go because Electronic ...

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