United States District Court, D. Colorado
ORDER ON MOTION FOR SUMMARY JUDGMENT
MICHAEL E. HEGARTY UNITED STATES MAGISTRATE JUDGE.
Before the Court is Defendant’s Motion for Summary Judgment (“Motion”) [filed November 4, 2015; docket #30]. The Motion is fully briefed, and the Court finds that oral argument will not assist in its adjudication of the Motion. Based on the record herein and for the reasons that follow, the Motion is granted in part and denied in part.
I. Procedural History
Kalthun Osman (“Plaintiff”) initiated this action on December 3, 2014. Docket #1. Plaintiff’s claims, as detailed in the operative Amended Complaint filed December 5, 2014, arise from her employment at Bimbo Bakeries, USA, Inc. (“Defendant”), where she alleges she encountered unlawful employment practices in violation of Title VII of the Civil Rights Act, 42 U.S.C. §2000e et seq. (“Title VII”). Docket #8 at 1. She alleges her supervisors created a hostile work environment and discriminated against her on the basis of her national origin, race, color, and sex, and retaliated against her after she made a formal complaint about the violations. See id. The operative pleading asserts three claims for relief: (1) hostile work environment and Title VII discrimination based on national origin, race, and color; (2) hostile work environment and Title VII discrimination based on sex; and (3) Title VII retaliation. She requests the following relief: (1) injunctive relief, including reinstatement; (2) back pay, benefits, pension, and seniority; (3) front pay as applicable; (4) compensatory and punitive damages as provided by law; (5) prejudgment and post judgment interest; and (6) costs and reasonable attorney’s fees, including expert witness fees.
Defendant filed the current Motion on November 4, 2015 [see docket #30], arguing (1) the hostile work environment claims must be dismissed because Plaintiff fails to present evidence that any alleged harassment she suffered was motivated by discriminatory animus; (2) the retaliation claim must be dismissed because the retaliatory acts Plaintiff alleges are not actionable; and (3) the remedy of back pay is not available to Plaintiff because she was not constructively discharged. See generally docket #30. Plaintiff filed her Response on December 9, 2015 [see docket #33], and Defendant replied on December 31, 2015 [see docket #37].
II. Findings of Fact
The Court makes the following findings of fact viewed in the light most favorable to Plaintiff, who is the non-moving party in this matter.
1. Plaintiff is an African-American female, and of Somalian national origin. Docket #30, exh. 1, Deposition of Kalthun Osman (“Plaintiff Dep.”) at 5:6-13.
2. Defendant is a manufacturer of fresh-baked, brand-name bread products including products sold under the brands Oroweat, Thomas’ and Sara Lee, which are baked at Defendant’s bakery in Denver, Colorado. Id. at 15:9-17.
3. Approximately 100 employees work at the Denver bakery. Docket #30, exh. 2, deposition of Plaintiff’s supervisor, Kenneth Brown (“Brown Dep.”) at 8:2-4. Approximately 6-8 of the 100 employees are women. Plaintiff Dep. at 32:5-12. About six of the employees are foreign born. Id. at 32:13-22.
4. Plaintiff first began working at the Denver bakery in 2004 and held the position of a “jobber.” Id. at 23:13-17.
5. Many bakery employees, including Plaintiff, are members of the Bakery, Confectionery, Tobacco, and Grain Millers Union (“Union”). Id. at 16:14-19.
6. Kenneth Brown was production manager at Defendant’s Denver bakery from 2007 through September 2013, and during that time was Plaintiff’s second-level supervisor, meaning Plaintiff reported first to a shift supervisor and then to Brown. Brown Dep. 13:18-14:23, 19:23-20:2.
7. Ron Schulthies, plant manager at Defendant’s Denver bakery, was Brown’s supervisor during this same time period. Id. at 7:10-11, 19:23-20:10.
8. When Defendant posts a job category, employees may “bid” on the job - putting themselves in consideration for the position, which is to be determined in part by seniority. Id. at 24:18-25.
9. In 2006, Plaintiff bid to move from the “jobber” role to a “vacation relief associate” position, which Defendant granted. Plaintiff Dep. at 23:13-17. In her new capacity, she replaced workers and performed their jobs while they were on vacation. Id. at 20:16-21:1. Plaintiff wanted that job because she aspired to be a foreman and then a supervisor someday, so she wanted to be familiar with many positions. Id. at 23:18-24:7.
10. Those employees working in vacation relief positions must be versatile to be able to fill in for a variety of positions at the bakery. Id. at 21:2-11. However, not all vacation relief associates are qualified to work positions that involve the oven and the mixing jobs. Id. at 202:19-22. Vacation relief associates work week-long shifts, but they may be asked to help in other positions mid-week, which they are allowed to decline. Id. at 21:14-23:3.
11. Later, Plaintiff bid for foreman jobs, but she was never interviewed for one. Id. at 24:1-4.
12. Kimberly Hert, who was Union shop steward at the bakery in 2008 and 2009, met with Brown to discuss how Brown “often refused to let [Plaintiff] bump other employees, even though [Plaintiff] was entitled to do so under the collective bargaining agreement” and “refused to train her, despite [Hert’s] requests that he do so, when she got the vacation relief job.” Kimberly Hert Affidavit (“Hert Aff.”), docket #33-4 at 2.
13. Brown does not recall a meeting with Hert regarding Plaintiff’s training. Brown Dep. at 63:5-8.
14. Plaintiff began having issues with Brown, her second-level supervisor. Plaintiff Dep. at 52:8-21. Brown frequently yelled and cursed at her, leading Plaintiff to verbally report the alleged mistreatment to Schulthies, Brown’s supervisor, many times. Id. Plaintiff says she did not report the mistreatment in writing to human resources until 2012 (as explained below) because she was scared she would lose her job, but she told “Schulthies, not once, not 10 times, maybe over like 50 times” that she had been “discriminated against” and “harassed.” Id.
15. Employee Amina Wako, who worked at the bakery from 2000 until November 2014, bid on a job that she had seniority to receive, but Brown wanted to give the job to a male employee instead. Amina Wako Declaration (“Wako Dec.”), docket #33-6 at 2. When she objected to this with Brown, Brown tried to “intimidate” her. Id. When Wako elevated this to the Union, she received the position. Id. Wako saw Brown yell at female employees, but not at male employees. Id.
16. Brown denies yelling or cursing at Wako. Brown Dep. at 46:23-25.
17. Employee Vera Borulko has been employed at Defendant’s bakery “a number of years, ” including “during the time that [Plaintiff] has been employed there.” Vera Borulko Affidavit (“Borulko Aff.”), docket #33-7 at 1. Borulko had difficulties with her foreman, and when the problems were taken to Brown for resolution, “he yelled at me, treated me with disrespect, and did not listen to what I was saying.” Id. Brown “made it clear he would never help me with regard to any work-related issues.” Id. Borulko reported “many of these incidents” to Roxine Nixon, the Union steward during that time. Id. at 2. Borulko saw Brown yelling at female employees, but not male. Id. at 1. Borulko said Brown yelled at foreign-born women “very frequently, usually on a daily basis.” Id. at 1-2.
18. However, in a statement provided by Defendant regarding its Motion, signed 19 days before the Borulko Aff., above, Borulko (currently an employee of Defendant), said that Brown has “never yelled or cursed” at her. Vira Borulko Declaration (“Borulko Dec.”), docket #37-8 at 1.
19. Brown denies yelling or cursing at Borulko. Brown Dep. at 46:19-22.
20. Some of Defendant’s employees have not experienced discrimination by Brown or been cursed at by him, nor have they seen him do these things to other employees. See, e.g., Declaration of Donald Garcia, docket #37-1; Declaration of Rick Vigil, docket #37-3; Declaration of Adela Orozco, (born in Mexico) docket #37-5; Declaration of Luisa Hernandez (born in El Salvador), docket #37-6; Declaration of Anabel Cardenas (a woman born in Mexico who has seen Brown yell, but equally at men and women), docket #37-7.
21. Hert, the Union steward in 2008 and 2009, “frequently” witnessed Brown yelling at Plaintiff, characterizing it as Brown “getting in her face for no reason.” Hert Aff. at 1, 5. Hert also noted Brown “yelled at other female employees as well” with an “aggressive and abusive attitude and demeanor toward female employees that was not evident in his interactions with male employees. He was always very short and rude with the women who worked in the [b]akery.” Id. at 1. Hert also indicated Brown had issues with foreign-born women and was “frequently in disputes with these employees.” Id. at 2.
22. Fellow employee Henry Mitchell “often over the years since at least 2008, and at least through 2013” saw and heard Brown “yelling at [Plaintiff] in a very abusive manner” about “once a week to about once every other week over those years.” Henry Mitchell Affidavit (“Mitchell Aff.”), docket #33-5 at 1. Mitchell said Brown yelled at other foreign-born women as well during the same time period. Id.
23. However, in a statement provided by Defendant regarding its Motion, signed 15 days before the Mitchell Aff., above, Mitchell (currently an employee of Defendant) reported that he has seen “Brown yell at employees, but this has included both men and women, ” and that he has “never heard what Ken Brown and/or the employees were discussing during these incidents.” Henry Mitchell Declaration (“Mitchell Dec.”), Docket #37, exh. 2 at 1-2.
24. In 2008, Brown and Plaintiff had an altercation when she refused to do a job Brown had asked her to perform. Plaintiff Dep. at 83:10-84:3.
25. The altercation began because Plaintiff believed Brown was ignoring her seniority by pulling her off her schedule in the middle of the week to fill in on a more difficult job while giving another employee an easy job. Id. at 77:4-12. She said she would not make the switch, which resulted in Brown yelling, cursing, and throwing a “bump cap” - a hat worn by employees in the bakery - at Plaintiff, saying “I’m tired of your fucking attitude.” Plaintiff Dep. at 69:14-23; 77:8-16; Brown Dep. at 57:6-11.
26. The bump cap incident, which happened in a windowed office near the production floor, was witnessed through the glass window by many employees. Plaintiff Dep. at 77:8-24; Mitchell Aff. [produced by Plaintiff] at 2 (indicating it appeared to him to be “an intentional act”); Mitchell Dec. [produced by Defendant] at 2 (indicating he saw Brown throw his bump cap and saw the cap hit Plaintiff, but he does “not recall the path the bump cap took before hitting [Plaintiff] and does not know if it was intentional”).
27. Brown denies throwing the bump cap at Plaintiff, instead saying he may have “slammed it down on the table hard, ” causing it to bounce “off the table, hit the floor, and hit [Plaintiff’s] leg.” Brown Dep. at 24:22-25; 56:8-14. Brown also denies Mitchell would have physically been in a position to see the event, nor that the event occurred as Mitchell described, perhaps because Mitchell has a motive to misrepresent because he and Plaintiff “are very close friends.” Id. at 59:13-61:17.
28. Immediately after the bump cap incident, Plaintiff used the bakery’s intercom to summon the shop steward, Hert, who arrived at the production office and then called Schulthies, the plant manager. Plaintiff Dep. at 78:3-6. As he entered the office, Schulthies said, “I know it was an accident. . . . It’s okay. He didn’t mean nothing [sic] by it.” Id. at 78:7-15. Mike Fushimi [vice president of the Union, see docket #8 at 6],  later called Plaintiff, told her he had talked with Schulthies, and determined it was an accident. Id. at 93:11-15.
29. Brown admitted to Hert that he threw the bump cap at Plaintiff. Hert Aff. at 2. Hert also wrote a statement contemporaneous to the ...