United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL UNITED SPATES DISTRICT JUDGE.
Hector Saldivar (“Plaintiff”) has brought this
action against Defendant Aberdeen Dynamics, LLC
(“Aberdeen”) for retaliation under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
seq. (“Title VII”) and for disability
discrimination in employment under the American with
Disabilities Act of 1990, as amended by the ADA Amendments
Act of 2008, 42 U.S.C. § 12101, et seq.
(“ADA”). Now before the Court is Aberdeen's
Motion for Summary Judgment (Doc. 36). Plaintiff has filed a
Response in Opposition (Doc. 42), and Aberdeen has filed a
Reply (Doc. 47).
following facts are supported by evidence in the record and
are construed in favor of Plaintiff, the non-movant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
was first hired by Aberdeen in August 2006 to work as a
hydraulic technician. He held this position for two years
before voluntarily leaving Aberdeen in August 2008. In 2011,
Aberdeen rehired Plaintiff for the same position. After
several months, Plaintiff was promoted to an inside sales
position. Plaintiff had expressed interest in advancing
within the company, and Joseph (“Joe”) Martin,
the company's president, believed Plaintiff had shown an
aptitude for performing the inside sales duties. (Doc. 36-7
at 6 [J. Martin Dep., p. 16]). There was also an opportunity to
earn commissions on sales in this new role. (Id. at
13 [J. Martin Dep., p. 34]). While Plaintiff did not begin
earning commissions while in the inside sales position, he
did receive a raise on August 1, 2011. (Id.; Doc.
December 2011, Joe Martin decided to move Plaintiff back to
the service shop to work under Pete Martin, the shop manager.
(Doc. 36-7 at 9, 12 [J. Martin Dep., p. 30, 33]; Doc. 36-15
at ¶¶ 2, 7]). There was still an opportunity to
earn commissions in this new position if he could perform the
job as it “needed to be done.” (Doc. 36-7 at 14
[J. Martin Dep., p. 35]). Plaintiff received a merit raise on
April 1, 2012, and began earning commissions on September 1,
2012. (Doc. 36-4). Plaintiff became eligible to receive
commissions because “[h]e was putting in the effort and
was improving, he was showing promise.” (Doc. 36-7 at
15 [J. Martin Dep., p. 36]).
new position, Plaintiff was initially helping Pete with
paperwork, though his role evolved over time into a lead
position. (Doc. 36-5 at 2-9 [P. Martin Dep., pp. 14-21]).
Eventually, Plaintiff was making all of the purchases for the
shop, filling out 209 reports,  and submitting repair quotes to
the salesmen to use with customers. (Id.). Plaintiff
was also supervising the shop employees. (Doc. 42-1 at 3 [Pl.
Dep., p. 42-44]).
The Moffatt Incident
February 2014, Aberdeen employee Mike Moffatt
(“Moffatt”) began making derogatory comments to
Plaintiff. Upon learning that Plaintiff was born in the
United States and his parents were from Mexico, Moffatt
called Plaintiff's parents “wetback border
jumpers.” (Id. at 7 [Pl. Dep., p. 98]). Later
that day, Moffatt came up to Plaintiff and a gaggle of other
employees and used the term “wetbacks” to
describe patrons at an AutoZone Moffatt had visited over the
weekend. (Id. at 7 [Pl. Dep., p. 99]). About a week
later, Moffatt told Plaintiff that “a group of good ole
boys needs to come and kill all those wetbacks and
niggers” living in Tulsa. (Id. at 7 [Pl. Dep.,
first reported the comments to Aberdeen's CEO, Dominic
White, on March 14, 2014. (Id. at 8 [Pl. Dep., p.
101]). On March 17, 2014, Plaintiff met with Joe, Pete,
Moffatt, and the human resources manager, Beverly Coulander
(“Coulander”). (Id. at 8 [Pl. Dep., p.
101]). At the meeting, Joe Martin stated that he did not
believe Moffatt was capable of making such remarks. (Doc.
42-1 at 9 [Pl. Dep., pp. 105, 107]). This caused Plaintiff to
“shut down” and worry that there would be
repercussions for making the complaint. (Id.).
the meeting was over, Plaintiff outwardly expressed
satisfaction with the resolution of his complaint. (Doc. 36-8
at 6-7 [Coulander Dep., pp. 22-23]). In fact, he was not
happy about how the meeting went. (Doc. 42-1 at 9 [Pl. Dep.
at 106]). Plaintiff met with Joe again on March 20, at which
point Joe told Plaintiff that he did believe him.
(Id. at 9 [Pl. Dep., p. 108]). The two men
“shook hands on it, ” and Plaintiff felt
satisfied that the matter was over. (Id.).
March 20, an employee named Donnie Driscoll went into Pete
Martin's office and told him he was willing to vouch for
Plaintiff regarding Moffatt's derogatory remarks. (Doc.
36-5 at 31-32 [P. Martin Dep., pp. 66-67]). Pete was
“very disappointed” because he thought the matter
had been settled at the March 17 meeting. (Id. at 32
[P. Martin Dep., p. 67]). Pete was unaware that Plaintiff had
had a follow-up discussion with Joe. (Id. at 37 [P.
Martin Dep., p. 75]).
next morning, on March 21, Pete Martin went to
Plaintiff's office and began talking loudly and
aggressively. (Doc. 42-1 at 10 [Pl. Dep., p. 112]). Pete told
Plaintiff that he should be handling the Moffatt issue
privately with HR, instead of “caus[ing] dissent out
there with the employees.” (Doc. 36-5 at 32 [P. Martin
Dep., pp. 67]). Pete told Plaintiff that he thought he had
“shot [himself] in the foot on this one.”
(Id. at 33 [P. Martin Dep., p. 68]). Pete also told
Plaintiff that his advancements at Aberdeen had come to an
end and that he no longer supervised employees. (Doc. 42-1 at
10, 13 [Pl. Dep., pp. 112, 128]). Plaintiff then spoke with
Joe Martin, who told him that if Pete said his advancement in
the company was over, then that was true. (Id. at 14
[Pl. Dep., p. 129]).
Plaintiff's Loss of Duties
parties agree that Moffatt ultimately took over
Plaintiff's role as supervisor over the shop employees,
but they disagree as to when and why this occurred. Although
Aberdeen asserts that Moffatt began taking over these duties
in early 2014-before Plaintiff made his complaint to
HR-Plaintiff has presented evidence that Joe and Pete had not
discussed making any changes to Plaintiff's work duties
before the complaint was made. (Doc. 36-5 at 27-28 [P. Martin
Dep., pp. 49-50]; Doc. 42-2 at 7 [J. Martin Dep., p. 79]).
According to Plaintiff, he was a supervisor “[u]ntil
the day that [he] reported the Moffatt incident.” (Doc.
42-1 at 3 [Pl. Dep., p. 44]). For purposes of summary
judgment, “[t]he evidence of the non-movant is to be
believed.” Anderson, 477 U.S. at 255.
was also stripped of his duties concerning repair quotes.
Pete Martin has testified that he began to see a large amount
of errors in Plaintiff's work in January 2014-before the
Moffatt incident. (Doc. 36-5 at 19 [P. Martin Dep., p. 39]).
According to Pete, the company started to look for an
internal candidate to take over Plaintiff's repair
quoting duties. (Id. at 20 [P. Martin Dep., p. 40]).
Derek Moody was identified as an employee who “knew the
repair business.” (Id.). Moody began training
with Plaintiff and slowly took over these duties over the
course of several months. (Id. at 21 [P. Martin
Dep., p. 41]). Notably, Plaintiff has presented evidence that
Derek Moody was not hired by Aberdeen until September
2014-several months after the Moffatt incident. (Doc. 42-3;
Doc. 42-4). Moreover, on November 14, 2014, Pete Martin and
Beverly Coulander met with Plaintiff and told him that his
repair-related work was being turned over to Moody and that
he might stop earning commission wages because he no longer
supervised employees. (Doc. 42-1 at 12 [Pl. Dep., pp.
122-23]). Thus, a reasonable inference can be drawn that
Plaintiff was not stripped of his repair-related duties until
after he made the complaint about Moffatt.
Plaintiff's 401k Hardship Distribution
15, 2014, Plaintiff made a request for a hardship
distribution from his 401(k) account. On the request form,
Plaintiff certified that he was experiencing financial
hardship in regard to “[p]ayment of expenses to repair
damages to [his] principal residence.” (Doc. 36-10).
Nonetheless, it is undisputed that Plaintiff used the funds
to pay tuition for his oldest child's primary school.
(Doc. 36-2 at 12 [Pl. Dep., p. 83]). The only tuition-related
option provided on the hardship distribution request form is
“[p]ayment of tuition and related fees for the next 12
months or quarter of post secondary education for
me, my spouse, or my other qualified dependents.” (Doc.
36-10) (emphasis added).
Plaintiff's Last Months with Aberdeen
December 11, 2014, Aberdeen received notice that Plaintiff
had filed a complaint with the Office of Civil Rights
Enforcement (“OCRE”) of the Oklahoma Attorney
General's Office. Pete Martin was upset by this, because
he “[did] not believe it to be accurate.” (Doc.
42-6 at 16 [P. Martin. Dep., p. 119]).
later, on December 18, Plaintiff received a written warning
for failing to inform a supervisor that he would be late
coming back from lunch. (Doc. 36-15 at 4 [P. Martin Aff. at
¶ 24]). Plaintiff refused to sign the warning and
contends that he tried, unsuccessfully, to call Pete and
ultimately left a voicemail message for Brandon Durbin
explaining that he would be late. (Doc. 42-1 at 15 [Pl. Dep.,
pp. 134-135]). There is evidence in the record that Aberdeen
had an attendance/tardiness policy providing that an employee
should contact someone in management or human resources if
his immediate supervisor was unavailable. (Doc. 42-7 at 6).
There is also evidence suggesting that Brandon Durbin was
part of management at Aberdeen. (Id. at 4).
December 2014, Plaintiff's then-wife told him she wanted
a divorce. (Doc. 42-1 at 14 [Pl. Dep., p. 131]). The two
separated in January 2015. (Doc. 36-2 at 8 [Pl. Dep., p.
52]). Plaintiff was emotionally devastated. (Id. at
4 [Pl. Dep., p. 53]). In January or February, Pete Martin
learned from other Aberdeen employees that Plaintiff was
going through a “bad divorce.” (Doc. 42-6 at 15
[P. Martin Dep., pp. 109-10]).
March 30, 2015, Plaintiff called in and left a voicemail
message for Joe Martin, stating that he would not be coming
to work that day. The unexcused absence report, which was
signed by Plaintiff, states that Plaintiff did not give a
reason for his absence. (Doc. 36-18 at 1; Doc. 36-2 at 30
[Pl. Dep., p. 138]).
next day, March 31, Plaintiff called in after 10:00 a.m. and
told Pete Martin that he would be out for the day and that he
was “going through some family problems.” (Doc.
36-18 at 2; Doc. 36-2 at 31 [Pl. Dep., p. 139]). Pete could
tell Plaintiff was upset and on the verge of tears. (Doc.
42-6 [P. Martin Dep., pp. 99-100]). The next day, Plaintiff
called after 12:00 p.m. and again told Pete that he would not
be coming to work that day. (Doc. 36-18 at 3). He told Pete
that he was having emotional problems, and Pete noted that
Plaintiff sounded “very emotional.” (Doc. 36-2 at
32 [Pl. Dep., p. 140]; Doc. 36-18 at 3). Plaintiff called in
again on April 2 to tell Pete that he would not be coming to
work. (Doc. 36-18 at 4). On April 6, Plaintiff worked for
little more than an hour before leaving again. (Doc. 36-18 at
5). Plaintiff has testified that he could not stay at work
due to emotional problems. (Doc. 36-2 at 34 [Pl. Dep., p.
April 7, Plaintiff called in around 10:00 a.m. and told Pete
that he would not be coming to work that day. He told Pete
that he could not function and was “all mixed
up.” (Doc. 36-18 at 6). Pete asked Plaintiff if he
wanted to discuss it with him, and Plaintiff said no. Pete
also asked if he was seeking help, and Plaintiff told him
that he was. (Id.). In fact, Plaintiff had seen a
doctor in March. (Doc. 36-2 at 34-35 [Pl. Dep., pp. 142-43]).
This doctor diagnosed Plaintiff with depression and anxiety.
(Doc. 42-1 at 4 [Pl. Dep., pp. 53-54]).
April 8, Plaintiff called in around 10:30 and again stated
that he would not be coming to work. Pete Martin had
discussed Plaintiff's situation with Joe Martin the day
before, telling Joe that he wanted to put Plaintiff on a
supervisory referral to the Employee Assistance Program
(“EAP”) “to see if we can . . . get him
straightened out.” (Doc. 42-6 at 14 [P. Martin Dep., p.
105]). Joe agreed with the plan, and Pete informed Plaintiff
that he was being referred to the EAP. (Id. at ...