United States District Court, D. Colorado
Michael E. Hegarty, United States Magistrate Judge.
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
Findings of Fact
the following findings of fact viewed in the light most
favorable to Mr. Pathak, who is the non-moving party in this
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.
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.
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.
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.
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.
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.
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.
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
one conversation, Mr. Pathak complained that he had not
received a raise “because of the color of [his]
skin.” ECF No. 99-8.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Pathak then took an approximately one-month medical leave.
ECF No. 89-9, at 9.
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.
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.
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.
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
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.
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.
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.
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.
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 ...