United States District Court, D. Colorado
JOSEPH E. GOMEZ, III, Plaintiff,
SAM'S WEST, INC., Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
before the Court is Defendant Sam's West Inc.'s
Motion for Summary Judgment. (Doc. # 80.) For the reasons
discussed herein, the Court grants Defendant's motion.
BACKGROUND AND PROCEDURAL HISTORY
Joseph E. Gomez was employed by Defendant Sam's West Inc.
for almost seventeen years, serving primarily as a Marketing
Representative and Membership Team Lead. (Doc. # 17 at 2.)
Plaintiff contends that throughout his employment Defendant
discriminated against him on the basis of his race and
religion - denying him promotions, transfers, and paid leave
without a proper basis for doing so. (Id. at
¶¶ 49, 50, 60.) On February 20, 2013, Plaintiff
experienced a work-related injury but Defendant denied his
workers' compensation claim and, according to Plaintiff,
improperly forced him onto unpaid leave under the Family
Medical Leave Act (FMLA). Id. An administrative law
judge (ALJ) later determined that Plaintiff sustained an
injury that “arose out of and in the course of
employment[, ] [but] the injury did not entitle Plaintiff to
disability indemnity compensation and thus, was not a
‘compensable' injury as described in the
Workers' Compensation Act.” (Doc. # 101-7 at 8.)
Plaintiff contends that when he returned to work, Defendant
retaliated against him for pursuing workers' compensation
and for submitting complaints through Defendant's ethics
systems. (Doc. # 17 at ¶ 87.)
generally on these allegations, Plaintiff filed two Charges
of Discrimination with the EEOC - one on April 16, 2013
(“April 2013 Charge”) (Doc. # 23-1) and the other
on July 13, 2015 (“July 2015 Charge”) (Doc. #
23-2). The EEOC issued a right-to-sue letter and Plaintiff
subsequently initiated this lawsuit on November 10, 2016,
alleging employment discrimination under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000 et
seq., the Americans with Disabilities Act of 1990 (ADA),
42 U.S.C. § 12101 et seq., and Colorado common
law. Specifically, Plaintiff alleged the following seven
claims for relief: discrimination based on (1) religion and
(2) race; (3) violation of the ADA; (4) retaliation; (5)
spoliation; (6) bad faith; and (7) defamation. (Doc. # 17.)
Defendant moved for partial dismissal of Plaintiff's
claims under Rule 12(b)(6). (Doc. # 23.) The Court granted
Defendant's motion in part, dismissing the spoliation
claim and limiting the bad faith claim to only allegations
related to the handling of Plaintiff's workers'
compensation claim. (Doc. # 58.) Defendant now argues for
summary judgment on Plaintiff's remaining claims for
relief. (Doc. # 80.)
SUMMARY JUDGMENT STANDARD
judgment is warranted when “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). A fact is “material” if it is
essential to the proper disposition of the claim under the
relevant substantive law. Wright v. Abbott Labs.,
Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). A dispute
is “genuine” if the evidence is such that it
might lead a reasonable jury to return a verdict for the
nonmoving party. Allen v. Muskogee, Okl., 119 F.3d
837, 839 (10th Cir. 1997). When reviewing motions for summary
judgment, a court may not resolve issues of credibility, and
must view the evidence in the light most favorable to the
non-moving party-including all reasonable inferences from
that evidence. Id. However, conclusory statements
based merely on conjecture, speculation, or subjective belief
do not constitute competent summary judgment evidence.
Bones v. Honeywell Int'l, Inc., 366 F.3d 869,
875 (10th Cir. 2004).
moving party bears the initial burden of demonstrating an
absence of genuine dispute of material fact and entitlement
to judgment as a matter of law. Id. In attempting to
meet this standard, a movant who does not bear the ultimate
burden of persuasion at trial does not need to disprove the
other party's claims; rather, the movant need simply
point the court to a lack of evidence for the other party on
an essential element of that party's claim. Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.
1998) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986)).
the movant meets its initial burden, the burden then shifts
to the nonmoving party to “set forth specific facts
showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 256
(1986). The nonmoving party may not simply rest upon its
pleadings to satisfy this burden. Id. Rather, the
nonmoving party must “set forth specific facts that
would be admissible in evidence from which a rational trier
of fact could find for the nonmoving party.”
Adler, 144 F.3d at 671. “To accomplish this,
the facts must be identified by reference to affidavits,
deposition transcripts, or specific exhibits incorporated
therein.” Id. Ultimately, the Court's
inquiry on summary judgment is whether the facts and evidence
identified by the parties present “a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Anderson, 477 U.S. at 251-52.
CLAIMS I & II-TITLE VII DISCRIMINATION
VII requires an employee challenging an employment practice
to exhaust administrative remedies by filing a charge of
discrimination with the EEOC within “300 days after the
allegedly unlawful act.” Montes v. Vail Clinic,
Inc., 497 F.3d 1160, 1163 (10th Cir. 2007) (citing 42
U.S.C. § 200e-5(e)(1)). The limitations period begins on
“the date the employee is notified of an adverse
employment decision by the employer.” Davidson v.
Am. Online, Inc., 337 F.3d 1179, 1187 (10th Cir. 2003);
see also Del. State Coll. v. Ricks, 449 U.S. 250
discrete incident of [discrimination or retaliation]
constitutes its own ‘unlawful employment practice'
for which administrative remedies must be exhausted.”
Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir.
2003) (citing National R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 110-13 (2002)). Therefore, when a
complaint alleges multiple discrete acts, the limitations
period runs separately for each act. Davidson, 337
F.3d at 1185. Furthermore, “discrete discriminatory
acts are not actionable if time barred, even when they are
related to acts alleged in timely filed charges.”
Morgan, 536 U.S. at 113-14. Discrete discriminatory
acts that require their own timely exhaustion of
administrative remedies include “termination, failure
to promote, denial of transfer, or refusal to hire.”
Id. at 114.
first argues that the majority of the alleged unlawful acts
underlying Claims I and II are time-barred. (Doc. # 80.) In
response, Plaintiff asserts that this Court already found
that Plaintiff adequately exhausted his administrative
remedies when it denied Defendant's 12(b)(6) motion
related to those claims, and that the claims are not,
therefore, time-barred. The Court agrees with Defendant.
(Doc. # 101 at 22.)
begin, Plaintiff misrepresents the Court's ruling on
Defendant's 12(b)(6) motion. The Court found that the
unlawful acts alleged by Plaintiff in his Complaint were
sufficiently related to the allegations in the EEOC charges
such that dismissal of his Title VII claims was not warranted
at that time. (Doc. # 58.) The Court did not determine,
however, whether the EEOC charges were timely under 42 U.S.C.
§ 200e-5(e)(1). Moreover, that Plaintiff's claim
survived dismissal under Rule 12(b)(6) does not mean that it
must also survive Defendant's motion for summary
judgment. Indeed, to defeat summary judgment, Plaintiff must
“go beyond the pleadings.” Celotex, 477
U.S. at 324.
many of Plaintiff's allegations are time-barred.
Plaintiff filed EEOC charges on April 16, 2013 and July 14,
2015 alleging discrete acts of discrimination- failure to
promote and denial of his worker's compensation claim and
bereavement leave request. (Doc. # 80-5.) As for the failures
to promote, Plaintiff specifically alleges that he sought and
was improperly denied the following positions:
1. Centralize Team Lead, 2001;
2. April 2010 Market Membership Sales Manager, April 2010;
3. Manager in Training, 2010;
4. Asset Protection Manager, 2010;
5. Manager in Training, October 2011;
6. Membership Asst. Manager, December 18, 2011;
7. Advantage Coordinator, 2011;
8. Advantage Coordinator, May 5, 2012;
9. Advantage Coordinator, August 2012;
10. Market Assistant, November 2012-January 2013;
11. Team Lead--Membership, August 2013;
12. Truckload Sales Manager, late ...