Pathak v. Fedex Trade Networks T and B, Inc.

          ORDER

          Michael E. Hegarty, United States Magistrate Judge.

         Defendant FedEx Trade Networks T and B, Inc. (“FedEx”) seeks summary judgment on all nine of Plaintiff Falgun Pathak's employment discrimination and retaliation claims. Because Mr. Pathak agreed to dismiss his seventh, eighth, and ninth causes of action, I will analyze whether summary judgment is proper as to his first six claims. I first find that Mr. Pathak timely exhausted his claims only as they relate to his termination and the failures to promote in May and June 2014. I then hold that Mr. Pathak demonstrates triable issues of fact regarding his Title VII and § 1981 discriminatory termination and failure to promote claims. However, Mr. Pathak produces insufficient evidence to support his prima facie disability discrimination claim. Regarding Mr. Pathak's retaliation claims, I hold disputed issues of material fact exist as to the Title VII and § 1981 claims, but not as to the Americans with Disabilities Act (“ADA”) violation. Accordingly, I grant in part and deny in part FedEx's Motion for Summary Judgment.

         BACKGROUND

         I. Findings of Fact

         I make the following findings of fact viewed in the light most favorable to Mr. Pathak, who is the non-moving party in this matter.^[1]

         1. Mr. Pathak, who is originally from India, began working for FedEx in April 2012 as an associate customer service representative in Salt Lake City, Utah. Def.'s Statement of Facts ¶¶ 1, 63, ECF No. 93; Pl.'s Resp. to Def.'s Statement of Facts ¶¶ 1, 63, ECF No. 99.

         2. At the time he joined FedEx, Mr. Pathak had nineteen years of experience in freight forwarding. Dep. of Falgun Pathak, November 8, 2017 (“Pathak dep.”), 22:8-:15, ECF Nos. 89-1, 99-7.

         3. At Mr. Pathak's request, FedEx approved his transfer to its Denver, Colorado office in July 2012. Def.'s Statement of Facts ¶ 6; Pl.'s Resp. to Def.'s Statement of Facts ¶ 6. When granting Mr. Pathak's request, FedEx's managing director of western region operations, Andrew Holmes, stated to Mr. Pathak, “You have shown over the last 30 days that you have the aptitude and attitude to work with customers and fellow employee's [sic].” ECF No. 99-3.

         4. After transferring to Denver, Mr. Pathak reported to Darlene Dallacarus, who reported to Mr. Holmes and John Krupar-the branch manager of the Denver office. Def.'s Statement of Facts ¶ 7; Pl.'s Resp. to Def.'s Statement of Facts ¶ 7.

         5. In January 2013, Ms. Dallacarus and Mr. Krupar asked Mr. Pathak why Asian people get cold sores, and they commented that Americans do not have cold sores. Def.'s Statement of Facts ¶ 67; Pl.'s Resp. to Def.'s Statement of Facts ¶ 67.

         6. Shortly before this comment, Mr. Pathak emailed Mr. Holmes and Mr. Krupar to inquire about potential promotions. ECF No. 89-7, at 124; Def.'s Statement of Facts ¶ 8; Pl.'s Resp. to Def.'s Statement of Facts ¶ 8. Mr. Holmes responded that Mr. Pathak had to remain in his current position for one year before being eligible for a promotion, but FedEx would consider his April 16, 2012 start date in Salt Lake City as his promotion review date. ECF No. 89-7, at 120-23.

         7. Notwithstanding Mr. Holmes' statement, in February 2013 FedEx gave Mr. Pathak a raise and promoted him to customer service representative. ECF No. 89-7, at 130; Def.'s Statement of Facts ¶ 8; Pl.'s Resp. to Def.'s Statement of Facts ¶ 8.

         8. When Mr. Pathak accepted the promotion, Mr. Holmes told him that FedEx would increase his salary an additional six percent once cost control measures were lifted. ECF No. 89-7, at 137. During the following months, Mr. Pathak repeatedly asked his supervisors about the status of this raise. Id. at 131-37.

         9. In one conversation, Mr. Pathak complained that he had not received a raise “because of the color of [his] skin.” ECF No. 99-8.

         10. In March 2013, Ms. Dallacarus notified Mr. Krupar that Mr. Pathak had consistently been late for work. Mr. Krupar responded, “in Asia everyone is late all the time but that does not cut it here.” ECF No. 89-13, at 3; Def.'s Statement of Facts ¶ 68; Pl.'s Resp. to Def.'s Statement of Facts ¶ 68.

         11. In November 2013, FedEx approved the six percent raise Mr. Pathak had been requesting. Def.'s Statement of Facts ¶ 12; Pl.'s Resp. to Def.'s Statement of Facts ¶ 12; ECF No. 89-7, at 138.

         12. In May 2014, Mr. Pathak applied for a supervisor promotion. Although Mr. Krupar interviewed Mr. Pathak for the position, he eventually hired Chad Teschler. Mr. Teschler, a Caucasian American, had six and a half years of relevant experience. Def.'s Statement of Facts ¶¶ 17-18; Pl.'s Resp. to Def.'s Statement of Facts ¶¶ 17-18; Dep. of Chad Teschler, Nov. 13, 2017 (“Teschler dep.”), 22:8-:11, ECF No. 99-13.

         13. On June 23, 2014, Mr. Krupar emailed Mr. Pathak requesting to meet with him in his office regarding feedback for the supervisor position and Mr. Pathak's behavior toward him and other supervisors. ECF No. 89-8, at 14. Mr. Pathak responded, “If protocol allows please forward me by email.” Id.

         14. Notwithstanding Mr. Pathak's request, Mr. Krupar and Mr. Pathak met in person that same day. Def.'s Statement of Facts ¶ 21; Pl.'s Resp. to Def.'s Statement of Facts ¶ 21.

         15. During the meeting, Mr. Krupar informed Mr. Pathak that he did not receive the promotion because he does not have “American experience, ” and his Indian accent is too strong. Pathak dep. 139:21-141:25.

         16. Additionally, Mr. Krupar told Mr. Pathak that he has an anger management problem, stating, “Have you seen your face in the mirror? You look like this.” Mr. Pathak construed Mr. Krupar's facial expression to be portraying a monkey. Def.'s Statement of Facts ¶ 22; Pl.'s Resp. to Def.'s Statement of Facts ¶ 22; Pathak dep. 136:7-138:24.

         17. Shortly after the meeting, Mr. Krupar came to Mr. Pathak's cubicle, pulled his chair away from his desk, shut down his computer, and told him to leave the office. Def.'s Statement of Facts ¶ 24; Pl.'s Resp. to Def.'s Statement of Facts ¶ 24.

         18. Three days later, on June 26, 2014, Mr. Pathak began an FMLA medical leave of absence. Mr. Pathak remained on FMLA leave until September 14, 2014. Pl.'s Resp. to Def.'s Statement of Facts ¶ 25; ECF No. 100-3, at 12.

         19. On his first day of leave, Mr. Pathak submitted a formal employee statement form to FedEx's Human Resources (“HR”) department. Mr. Pathak detailed the events at the June 23, 2014 meeting in response to a question asking him how he has been discriminated against or harassed. Def.'s Statement of Facts ¶ 27; Pl.'s Resp. to Def.'s Statement of Facts ¶ 27; ECF No. 99-14, at 3-6.

         20. Mr. Holmes and Martin Wilbur, an HR representative, conducted an investigation of Mr. Pathak's complaint. As part of the investigation, Mr. Pathak informed Mr. Holmes and Mr. Wilbur that he had approached the EEOC about his allegations. Def.'s Statement of Facts ¶¶ 28-29; Pl.'s Resp. to Def.'s Statement of Facts ¶¶ 28-29.

         21. Additionally, Mr. Pathak told Mr. Krupar in September 2014 that he had informed the EEOC about the June 23 incident. Pathak dep. 277:10-:20.

         22. In July 2014, while still on FMLA leave, Mr. Pathak was diagnosed with “major depressive affective disorder.” ECF No. 100-7. Mr. Pathak's doctor noted that Mr. Pathak had poor concentration, headaches, major depression, and anxiety. ECF No. 100-3, at 6.

         23. Before returning from FMLA leave, Mr. Krupar interviewed Mr. Pathak for a team lead position. Def.'s Statement of Facts ¶ 30; Pl.'s Resp. to Def.'s Statement of Facts ¶ 30.

         24. However, Mr. Krupar selected Coral Zobel, of Mexican Hispanic origin, for the position. Ms. Zobel originally came to FedEx from Graebel Relocation Services, and she worked in FedEx's brokerage department for one or two years before receiving the promotion. Def.'s Statement of Facts ¶ 30; Pl.'s Resp. to Def.'s Statement of Facts ¶ 30; Dep. of John Victor Krupar, November 9, 2017 (“Krupar dep.”), 154:17-155:6, ECF No. 99-6.

         25. On September 5, 2014, Mr. Pathak and Irene Phu, FedEx's HR representative, discussed Mr. Pathak's need to work part-time for one or two weeks and any other accommodations he may need upon returning to work. Def.'s Statement of Facts ¶ 32; Pl.'s Resp. to Def.'s Statement of Facts ¶ 32.

         26. After the conversation, Ms. Phu sent Mr. Pathak an accommodations form. ECF No. 89-6, at 65-68. Mr. Pathak does not remember whether he submitted the form, and neither party has any record of him returning the form. Pathak dep. 207:3-:9.

         27. When Mr. Pathak returned to work on September 15, 2014, his new supervisor, Mr. Teschler, permitted him to attend regular appointments and work part time for several weeks. Def.'s Statement of Facts ¶ 34; Pl.'s Resp. to Def.'s Statement of Facts ¶ 34; ECF No. 89-8, at 72.

         28. On November 14, 2014, Mr. Pathak attended a closed-door team meeting to discuss the reallocation and reassignment of customer accounts. Mr. Pathak's supervisors spoke with him about an incident in which he had apologized to a customer about a co-worker's conduct. Def.'s Statement of Facts ¶ 36; Pl.'s Resp. to Def.'s Statement of Facts ¶ 36; Krupar dep. 199:4-200:16.

         29. During the meeting, Mr. Pathak complained that Mr. Teschler and Mr. Krupar treated him differently and favored other employees. Id. at 208:10-209:24.

         30. Shortly after returning to his desk, Mr. Pathak collapsed and lost consciousness. Paramedics arrived and moved him from the office to an ambulance. However, Mr. Pathak declined to be taken to the hospital, and he returned to work. Def.'s Statement of Facts ¶ 37; Pl.'s Resp. to Def.'s Statement of Facts ¶ 37.

         31. Later that same day, Mr. Pathak informed Mariann Cantie in HR that, based on the discussion at the meeting, “it is very clear th[at] retaliation is going on to me so I can leave [the] office.” ECF No. 29-8, at 134; Def.'s Statement of Facts ¶ 36; Pl.'s Resp. to Def.'s Statement of Facts ¶ 36. Additionally, Mr. Pathak requested to have HR present in all future meetings with his supervisors. ECF No. 89-8, at 137.

         32. Mr. Pathak then took an approximately one-month medical leave. ECF No. 89-9, at 9.

         33. Before returning to work in mid-December 2014, Mr. Pathak emailed HR stating that he had been suffering retaliation since 2012 because of his race and color. Additionally, Mr. Pathak requested assurance that his supervisors would not retaliate against him upon his return. ECF No. 89-9, at 26; Def.'s Statement of Facts ¶ 39; Pl.'s Resp. to Def.'s Statement of Facts ¶ 39.

         34. Mr. Pathak then returned to work, and on December 16, 2014, Mr. Teschler emailed him about the status of several issues his co-workers had encountered with his files while he was on medical leave. ECF No. 29-9, at 39-40; Def.'s Statement of Facts ¶ 42; Pl.'s Resp. to Def.'s Statement of Facts ¶ 42.

         35. Later that day, Mr. Pathak verbally accused Mr. Teschler of sending the email as retaliation. Def.'s Statement of Facts ¶ 44; Pl.'s Resp. to Def.'s Statement of Facts ¶ 44.

         36. Mr. Pathak also responded to Mr. Teschler via email. He reiterated that Mr. Teschler's complaints were unwarranted and that the email was retaliatory. Further, Mr. Pathak stated that he was “not happy to continue further closed door meeting[s].” ECF No. 89-9, at 38-39.

         37. That evening, Mr. Teschler informed Mr. Pathak via email that he must attend an in-person meeting the next day. ECF No. 89-9, at 45. Mr. Pathak responded that a closed-door meeting is not safe, and he “would like to have [the] meeting agenda and message by email . . . considering all previous incidents, ” and because it will be beneficial to his “health recovery.” Id. at 44.

         38. After Mr. Teschler insisted that Mr. Pathak attend in person, Mr. Pathak emailed Ms. Cantie to ask her advice on whether he must attend. Mr. Cantie responded that the request for an in-person meeting is reasonable, and he is expected to attend. She informed Mr. Pathak that an HR representative would attend via telephone. Id. at 47-49.

         39. Mr. Pathak eventually agreed to attend the meeting. However, shortly after the meeting began Mr. Pathak asked to leave three times, because he felt as if he was going to collapse. Dep. of Michelle Hawkins, Dec. 15, 2017 (“Hawkins dep.”), 28:24-29:5, ECF No. 89-6; Pathak dep. 289:11-290:5. Mr. Krupar and Mr. Teschler continually asked Mr. Pathak to sit down and complete the meeting. Def.'s Statement of Facts ¶ 53; Pl.'s Resp. to Def.'s Statement of Facts ¶ 53.

         40. Mr. Pathak complained that the meeting was retaliatory, and he was not comfortable. He eventually left the meeting after allegedly asking for permission from the HR representative. Def.'s Statement of Facts ¶ 53; Pl.'s Resp. to Def.'s Statement of Facts ¶ 53; Pathak dep. 295:18-:24.

         41. At some point before or shortly after the meeting, Mr. Teschler and Mr. Krupar drafted a written warning to give to Mr. Pathak. ECF No. 99-25. However, they did not give him ...