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Gomez v. Sam's West, Inc.

United States District Court, D. Colorado

July 19, 2018

JOSEPH E. GOMEZ, III, Plaintiff,
SAM'S WEST, INC., Defendant.



         Currently 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.


         Plaintiff 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.)

         Based 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 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).

         The 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)).

         Once 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.


         A. TIMELINESS

         1. Applicable Law

         Title 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 (1980).

         “Each 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.

         2. Analysis

         Defendant 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.)

         To 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.

         Moreover, 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 ...

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