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Yoseph v. Kavod Senior Living

United States District Court, D. Colorado

June 27, 2017

SINKSAR YOSEPH, also known as Senksar Kelebe, Plaintiff,
v.
KAVOD SENIOR LIVING/ALLIED JEWISH APARTMENTS, Defendant.

          ORDER ON PENDING SUMMARY JUDGMENT MOTIONS

          William J. Martiez United States District Judge.

         Plaintiff Sinksar Yoseph (a.k.a. Senksar Kelebe or “Mimi” Kelebe) (“Yoseph”) sues her former employer, Defendant Kavod Senior Living/Allied Jewish Apartments (“Kavod”), for race, color, and national origin discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and in violation of 42 U.S.C. § 1981; and for retaliation for allegedly complaining about such discrimination, in violation of the same statutes. (ECF No. 1.)

         Before the Court is Yoseph's Motion for Summary Judgment. (ECF No. 45.) Yoseph seeks summary judgment against Kavod as to liability only on her retaliation theories. Also before the Court is Kavod's Motion for Summary Judgment. (ECF No. 46.) Kavod seeks summary judgment against Yoseph on all of her theories. For the reasons explained below, the Court grants Yoseph's motion on a limited issue regarding whether she suffered a materially adverse employment action, but otherwise denies her motion; and the Court grants Kavod's motion on Yoseph's Title VII and § 1981 discrimination claims, but otherwise denies Kavod's motion. In short, this case remains set for trial, but that trial will address only Yoseph's retaliation claims, including whether she timely filed them.

         I. LEGAL STANDARD

         Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if 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 also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A 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). An issue is “genuine” if the evidence is such that it might lead a reasonable trier of fact to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).

         In analyzing a motion for summary judgment, a court must view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. See Houston v. Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).

         II. FACTS

         The following facts are undisputed unless attributed to one party or the other.[1]

         A. Yoseph's Hiring & Initial Responsibilities

         Kavod hired Yoseph on March 27, 2010. (ECF No. 46 at 2, ¶ 1.) Jennifer Grant (“Grant”), Kavod's Assisted Living Director, made the decision to hire Yoseph, and was Yoseph's direct supervisor for the duration of Yoseph's employment with Kavod. (Id. ¶ 4.) Yoseph is a black female of Ethiopian national origin. (Id. ¶ 2.)

         Yoseph worked for Kavod as a “Resident Assistant.” (Id. ¶ 1.) A Resident Assistant's responsibilities largely comprised “working with residents of the Assisted Living Department at Kavod, including bathings, . . . serving in the dining room, delivering food to residents, collecting laundry, and ironing, among other things.” (Id. ¶ 3.)

         B. Change to Medication Distribution Procedures

         For most of Yoseph's tenure with Kavod, Kavod administered residents' routine medications by splitting up certain duties between a “Wellness Coordinator” and the Resident Assistants. Specifically, “Kavod's ‘Wellness Coordinator' would fill a Medication Reminder Box with routine medications and the Resident Assistants would administer medicine to the residents from the Medication Reminder Box.” (Id. ¶ 5.) However, Kavod decided in November 2013 to eliminate Medication Reminder Boxes, and instead have the Resident Assistants administer medications at the proper time directly from the original containers. (Id. ¶ 5; id. at 4-5, ¶¶ 14, 15, 24.)

         The first reason for this change flowed from a seminar Grant attended that month, at which “a representative from the Colorado Department of Public Health and Environment (‘CDPHE') indicated CDPHE would announce a regulation prohibiting the practice of pre-pouring medication in advance of administering the medication to residents.” (Id. ¶ 6.)[2] Pre-pouring is not the same as using a Medication Reminder Box, but “the two concepts of pre-arranging medications are very similar and CDPHE does not recommend the practice of using Medication Reminder Boxes.” (Id. ¶ 7.)[3]

         According to Kavod, problems with overtime work also prompted the change in medication administration procedures. Kavod “Program Director and Service Coordinator positions” required substantial overtime work in 2012 and 2013. (Id. at 3, ¶ 8.) Kavod claims that, given this, it chose to transfer certain duties from those positions to the Wellness Coordinator, who in turn could take on the new responsibilities because the Wellness Coordinator would no longer be filling Medication Reminder Boxes. (Id. at 3-4, ¶¶ 9-13.) Yoseph denies that this rearrangement of assignments to reduce overtime was a true motivation, claiming that Kavod's assertions are belied by its failure to change the Wellness Coordinator's job description following the change. (ECF No. 45 at 2, ¶ 8; ECF No. 49 at 2, ¶¶ 9-10.)

         Regardless of Kavod's motivations, Kavod announced the change to all Resident Assistants in a staff meeting on November 20, 2013. (ECF No. 46 at 5, ¶ 24.) The Resident Assistants at that time “consisted of individuals who were male and female; black[ and] white . . .; and also of various national origins, including American, Russian and African.” (Id. ¶ 19.) The Wellness Coordinator at the time was Sara Diaz, a Hispanic female born in the United States. (ECF No. 47 at 2, ¶ 6.)

         The Resident Assistants were not pleased with this announcement, and voiced their disapproval during the staff meeting. (ECF No. 46 at 6, ¶ 25.) Their main worry was the amount of extra time it would take to administer medications under the new procedures. (ECF No. 45 at 3, ¶ 10.) Yoseph and a few other Resident Assistants continued their protests in a smaller meeting with Grant directly after the staff meeting. (ECF No. 46 at 6, ¶¶ 29-30.) They asserted that, “if Resident Assistants were going to implement these changes, they should get a raise.” (Id. ¶ 29.) Grant replied that Kavod would not be raising wages for Resident Assistants based on these new duties. (Id. ¶ 30.) At some point either in the staff meeting or the follow-up meeting, Grant interrupted the Resident Assistants' complaints by making a “time out” gesture with her hands. (ECF No. 45 at 3, ¶ 10.) Yoseph claims that Grant also shouted, “I said, do it!” (Id.)

         According to Kavod, nobody in the staff meeting and nobody in the subsequent meeting with Grant claimed that these new job responsibilities discriminated against employees based on their race, gender, or national origin. (ECF No. 46 at 6, ¶¶ 26, 31.) Yoseph counters by pointing to her EEOC charge, filed on July 19, 2014, where she recounted the following:

In or about November 2013, my Supervisor changed my job duties. I believe this was discrimination because the change in duties made my work more difficult because I was not born in America, while it made job duties for employees who were born in America much easier. . . . On or about November 20, 2013, I complained to my Supervisor and let her know I felt that I was being discriminated against.

(ECF No. 49-13 at 1.)

         On November 25, 2013, Yoseph and four other Resident Assistants met with Kavod's human resources director, Christine Dewhurst (“Dewhurst”), and “expressed concerns that they were being disrespected, not allowed to raise questions about the working conditions, and that they were being required to do [Sara Diaz's] job.” (ECF No. 45 at 3, ¶ 11.) Yoseph alleges that she, specifically, “stated that she believed the group of Resident Assistants, who were primarily African immigrants, was being treated unequally in favor of [Diaz], a white female.” (Id.) Dewhurst denies that anyone voiced such a complaint at this meeting. (ECF No. 47 at 3, ¶ 11; ECF No. 47-6 ¶ 3.)

         The changes went into effect in December 2013. (ECF No. 46 at 4, ¶ 15.) Kavod had estimated that the Resident Assistants' additional duties would require about thirty minutes per shift. (Id. ¶ 16.)[4] Yoseph says that, in practice, this was a significant underestimate, consuming so much time that she “was forced to skip lunch and any break and to rush through assignments.” (ECF No. 49 at 3, ¶ 16.) It is undisputed, however, that Kavod's payroll records show “no overtime or additional hours were accrued by any of the Resident Assistants due to the change.” (ECF No. 46 at 7, ¶ 33.)

         C. Yoseph's Leave Request in January 2014

         As of January 2014, Yoseph was regularly scheduled to work every Friday, Saturday, Sunday, and Monday from 3:00 PM to 11:00 PM. (Id. at 8, ¶ 40.) On January 10, 2014, however, she told Grant that she was going back to school and would require every Saturday and Sunday off through April to attend certain classes. (Id. ¶ 41.) Yoseph told Grant that she had already found two specific employees (identified as “Seta” and “Saba”) who would cover for her on all of those days. (ECF No. 45 at 4, ¶ 14.)

         Grant helped Yoseph fill out an Employee Leave Request form, although Grant did not sign that request form. (ECF No. 47 at 5, ¶ 15.) Grant instead wrote on the form, “Every Sat-Sunday through April. Have covered 2 wks (4 shifts) while schedule is reviewed (through end of January).” (ECF No. 46-2 at 111.)

         Grant claims she filled out this form on January 13, 2014 (the Monday after Yoseph spoke with her about the leave request). (ECF No. 46 at 8, ¶ 43.) Yoseph denies ever meeting with Grant on that date (ECF No. 49 at 5, ¶ 43), but does not state precisely when the Employee Leave Form was filled out.

         Yoseph claims that the filled-out Employee Leave Request represents Grant's approval of the entire time-off request through April. (ECF No. 45 at 4, ¶ 15.) It is undisputed, moreover, that Grant updated the employee schedules for February and March to reflect that Yoseph's pre-arranged substitutes, Seta and Saba, would be working in her place. (Id. ¶ 16.) But Kavod has a different explanation. It was then planning to adopt restaurant-style dining for its residents in the next couple of months. (ECF No. 46 at 8, ¶ 44.) Grant says that she was in the middle of preparing employee schedule changes linked to the rollout of restaurant-style dining “and would know by the end of January whether the request [Yoseph] made could be approved.” (Id. ¶ 45.) Grant claims that she updated the work schedule to reflect that Yoseph's substitutes would cover her shifts, but only “until the new schedule was made for the conversion to restaurant-style dining or someone was hired into the position to take those shifts.” (ECF No. 47 at 5, ¶ 16.)

         Grant was also concerned because, she says, another Resident Assistant spoke with her on January 12, 2013 (the day before Grant allegedly filled out the Employee Leave Request form) and informed her that “the residents were upset due to inconsistent staffing . . . on the weekend evening shift, which was [Yoseph's] shift.” (ECF No. 46 at 8, ¶ 46.) According to Grant, this Resident Assistant also accused Yoseph of “missing her shifts and asking others to cover for her and it had been going on for a long time.” (Id. at 9, ¶ 48.)[5] Grant says she then audited Yoseph's timesheets and learned that Yoseph “had been switching shifts and/or taking time off and finding coverage nearly every weekend since August 2013.” (Id. ¶ 49.) “Upon review and audit of [Yoseph's] time sheets and absences, ” she says, “it was clear [Yoseph] could not work at least half of her assigned shifts through April 2014 and coverage was excessively required.” (Id. ¶ 50.)

         Yoseph denies all of this, claiming that “Grant never told [her] of any problems with her attendance” and “[Kavod] never informed [her] of any resident complaints or concerns” (ECF No. 49 at 5, ¶¶ 46, 47)-and thereby, it appears, drawing an inference that these events did not happen or else she would have learned about them directly. Yoseph also seems to be accusing Grant of fabricating the timesheet audit. Although Grant's report of that audit refers almost exclusively to Yoseph (ECF No. 46-2 at 108- 09), Yoseph herself claims that “[a]ll of the switches listed in Grant's audit were made by Grant to cover for other missing Resident Assistants.” (ECF No. 49 at 6, ¶ 49.)

         D. January 13, 2014 Protest Letter & Related Meetings

         On January 13, 2014, Yoseph and four other female Resident Assistants met with Dewhurst to present a letter they had prepared and signed that day. (ECF No. 45 at 4, ¶ 19.) Two of the other signatories were, like Yoseph, black African immigrants; the remaining two were white Russian immigrants. (ECF No. 46 at 16, ¶¶ 108-11.) The letter reads, in full, as follows:[6]

         To whom it may concern:

We are imploring you to help us to have a privilege of fair and equal treatment of our work administration.
Despite of being dedicated to our job with love and respect we could not have a privilege of fair an equal treatment of our administration in our work activities.
At the regular monthly meeting that happened on November 20 2013, Ass. Living Director told us that the character of worked changed into the situation that is not comfortable for us to work with. Instead of giving the residents medication from MRB, we have to give them from the bottle or pop. When she said this we explained that it was too much work and difficult for us to do this on top of the other work. We are going to have more responsibility and this work should be done by the nurse. Second our job should be specified and known. When we explained to her like this she responded in a very shocking and unexpected way, that we have two options. Either you have to work what I tell you or leave to other facilities.
Later we went to Human resource personnel and explained the situation. Then the H.R. personnel promised to improve the situation. The Ass. Living Director said it would be easy when you adapted it. But first of all we did not find it easy. Second the H.R. personnel did not do change.
As we said above we like our job and our resident, a nice place to work. We never complain before. But now despite we are dedicated to our work, we are applying to H.R. personnel to help us know our job, and privilege of not losing the fair and equal treatment of ...

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