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Saldivar v. Aberdeen Dynamics, LLC

United States District Court, N.D. Oklahoma

February 16, 2018




         Plaintiff 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).

         I. Background

         The 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 (1986).

         Plaintiff 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]).[1] 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. 36-4).

         In 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]).

         In this 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, [2] 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]).

         A. The Moffatt Incident

         In 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., p. 100]).

         Plaintiff 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.).

         When 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.).

         Also on 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]).

         The 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]).

         B. Plaintiff's Loss of Duties

         The 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.

         Plaintiff 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.

         C. Plaintiff's 401k Hardship Distribution

         On July 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).

         D. Plaintiff's Last Months with Aberdeen

         On 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]).

         A week 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).

         In late 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]).

         On 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]).

         The 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. 142]).

         On 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]).

         On 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 ...

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