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Merriam v. Peak Restaurant Partners

United States District Court, D. Utah, Central Division

March 12, 2018

SHERILYNN MERRIAM, Plaintiff,
v.
PEAK RESTAURANT PARTNERS, Defendant.

          Dee Benson, District Judge

          REPORT AND RECOMMENDATION RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 41)

          EVELYN J. FURSE, UNITED STATES MAGISTRATE JUDGE.

         Defendant Peak Restaurant Partners (Peak) moves the Court[1] for summary judgment. (Def.'s Mot. for Summ. J. & Incorporated Mem. in Support (Mot.), ECF No. 41.) Ms. Merriam brought gender discrimination, retaliation, and hostile work environment claims under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e- 17 (Title VII). (Am. Compl. ¶¶ 3, 22, 30, 31, ECF No. 16.) In response to Peak's Motion for Summary Judgment, Ms. Merriam withdrew her hostile work environment claim, (Pl.'s Opp'n to Def.'s Mot. for Summ. J. (Opp'n) 1, ECF No. 48), and thus, the undersigned RECOMMENDS the District Judge dismiss Ms. Merriam's hostile work environment claim with prejudice. Ms. Merriam also asserts she is not pursuing a separate constructive discharge claim under Title VII. (Opp'n 47, ECF No. 48) Therefore, the undersigned RECOMMENDS the District Judge dismiss with prejudice any claim for constructive discharge. Having carefully considered the parties' memoranda and viewing all facts in the light most favorable to Ms. Merriam, the undersigned RECOMMENDS the District Judge GRANT Peak's Motion for Summary Judgment on Ms. Merriam's gender discrimination claim because Ms. Merriam fails to provide sufficient evidence to show she suffered an adverse employment action. The undersigned RECOMMENDS the District Judge DENY Peak's Motion for Summary Judgment on Ms. Merriam's retaliation claim because a material issue of fact exists as to whether a causal connection exists between her protected activity and the materially adverse action.

         STANDARD OF REVIEW

         Courts grant summary judgment when the record demonstrates “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). Only facts “essential to the proper disposition of a claim” qualify as material. Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011).

“[W]here the non moving party will bear the burden of proof at trial on a dispositive issue” that party must “go beyond the pleadings” and “designate specific facts” so as to “make a showing sufficient to establish the existence of an element essential to that party's case” in order to survive summary judgment.

McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). A party asserting or disputing a fact “must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A). When applying the summary judgment standard, the court must “view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Ribeau v. Katt, 681 F.3d 1190, 1194 (10th Cir. 2012) (quoting Doe v. City of Albuquerque, 667 F.3d 1111, 1122 (10th Cir. 2012)). The Court therefore focuses on whether reasonable jurors “can properly proceed to find a verdict for the party … upon whom the onus of proof is imposed.” Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986) (quoting Improvement Co. v. Munson, 14 Wall. 442, 448 (1872)).

         FACTUAL BACKGROUND

         The undersigned considers the following facts in making its recommendation on the Motion for Summary Judgment. All facts come from the parties' briefings and accompanying exhibits. The undersigned resolves all disputed issues of material fact in favor of Ms. Merriam.

         Ms. Merriam worked in the restaurant business since 1998 and as a general manager at various restaurants. (Opp'n, Statement of Facts (Facts) ¶ 1, ECF No. 48; Def.'s Reply in Supp. of Summ J. (Reply), Peak's Resp. to Pl.'s Statement of Facts (Facts) 3, ECF No. 60.) In May 2011, Ms. Merriam served as a general manager at the Orem, Utah IHOP restaurant when Peak acquired the franchise. (Opp'n, Facts ¶¶ 10-11, ECF No. 48; Reply, Facts 3, ECF No. 60.)

         After Peak acquired the store, Ms. Merriam reported to Area Director Oscar Dominguez. (Opp'n, Facts ¶ 13, ECF No. 48; Reply, Facts 3, ECF No. 60.) Mr. Dominguez described Ms. Merriam as a consistent manager who was receptive to his coaching, which would sometimes result in improvement. (Opp'n, Facts ¶¶ 15-16, ECF No. 48; Reply, Facts ¶¶ 15-16, ECF No. 60.) On August 6, 2011, Mr. Dominguez gave Ms. Merriam's store the “WOW pin, ” which represented the store's receptiveness to feedback and ability to work as a team. (Opp'n, Facts ¶ 17, ECF No. 48; Reply, Facts ¶ 17, ECF No. 60.) On September 2, 2011, Mr. Dominguez sent a Peak-wide e-mail recognizing Ms. Merriam and her team for receiving a perfect health inspection. (Opp'n, Facts ¶ 18, ECF No. 48; Reply, Facts ¶ 18, ECF No. 60.) Mr. Tomlinson, Peak's President, also sent an e-mail stating “And by the way - this is a 100% score! Just thought I would pat them on the back!!” (E-mail from Tomlinson to SM IHOP Restaurant Reports, Sept. 3, 2011, ECF No. 48-1 at 6.) On September 14, 2011, and November 7, 2011, Ms. Merriam's restaurant also scored high scores overall and in food sanitation and safety during anonymous internal health inspections (called Operational Assessment Reports (“OARs”)). (Opp'n, Facts ¶¶ 37-38, ECF No. 48; IHOP Operational Assessment Report, Sept. 14, 2011, ECF No. 48-1 at 40; IHOP Operational Assessment Report, Nov. 11, 2011, ECF No. 48-1 at 38.)

         Peak asserts the OARs Ms. Merriam submitted are “not in the form of admissible evidence, but even if [they] were, [Ms. Merriam's] performance in 2011 is not probative of whether her performance subsequently declined. (Reply, Facts ¶¶ 37-38, ECF No.60.) Peak, however, does not state a specific admissibility objection and does not contest the validity of Ms. Merriam's contention that she passed the OAR inspections in 2011. The undersigned further notes the Federal Rule of Civil Procedure 56(c)(2) permits a party to object to evidence submitted on summary judgment only if “the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Whatever Peak's objection to OAR inspection attached, the record appears to be one of Peak's business records that it presumably has in proper form and would likely constitute the admission of a party opponent. Therefore, the undersigned will consider it.

         When Peak needed to hire a new assistant manager for a restaurant in Springville, Utah, Ms. Merriam gave Mr. Dominguez a list of possible female candidates and also suggested Sean Nagel, a male employee. Mr. Dominguez told Ms. Merriam he wanted a male for the position and later apologized for making the comment. (Opp'n, Facts ¶ 21, ECF No. 48; Reply, Facts ¶¶ 20-21, ECF No. 60.) A different manager, Ms. Claudia Orozco, hired Mr. Nagel for that position. (Reply, Facts ¶ 21, ECF No. 60.)

         Mr. Dominguez also inadvertently sent an e-mail disclosing all manager salaries. Through this e-mail, Ms. Merriam discovered she made less than other male general managers and less than one male assistant manager. (Opp'n, Facts ¶¶ 22, 50, ECF No. 48; Reply, Facts ¶¶ 22, 50, ECF No. 60; Salary Spreadsheet, ECF No. 60-7 at 12-13.) In December 2011, Ms. Merriam complained about the salary issue to Kathleen Zarit, Peak's human resources director, who said the President of Peak, Mr. Tomlinson would address salary discrepancies at the beginning of 2012, but Ms. Merriam's salary never changed. (Opp'n, Facts ¶¶ 22, 50, ECF No. 48; Reply, Facts ¶¶ 22, 50, ECF No. 60; Merriam Dep. 30:9-31:15, ECF No. 60-2.)

         In December 2011, Claudia Orozco replaced Mr. Dominquez as Ms. Merriam's Area Director and served in that position through Ms. Merriam's resignation on June 10, 2012. (Opp'n, Facts ¶¶ 23-24, ECF No. 48; Reply, Facts ¶¶ 23-24, ECF No. 60.) During their initial interactions, Ms. Orozco told Ms. Merriam that Ms. Merriam was going to hate Ms. Orozco so much that Ms. Merriam would quit. (Opp'n, Facts ¶ 31, ECF No. 48; Reply, Facts ¶ 31, ECF No. 60.) Ms. Orozco apparently told another general manger that she and Mr. Tomlinson had a contest to see whom Ms. Orozco could get to quit first, Ms. Merriam or Ms. Lang. (Lang Decl. ¶ 13, ECF No. 48-1 at 20.) Peak objects to this declaration as more prejudicial than probative because it lacks specific instances of behavior. (Reply, Facts ¶ 30, ECF No. 60.) Ms. Lang's declaration is specific on this factual point, and the undersigned will consider it.

         During the First Annual General Management Leadership meeting in February 2012, Ms. Orozco told Ms. Merriam and two other women she sat with to separate and sit away from each other. Ms. Orozco, however, did not tell any other groups to separate. (Opp'n, Facts ¶ 32, ECF No. 48; Reply, Facts ¶ 32, ECF No. 60; see also Lang Decl. ¶ 7, ECF No. 48-1 at 19.) Peak objects to this declaration as more prejudicial than probative because it lacks specific instances of behavior. (Reply, Facts ¶ 30, ECF No. 60.) Ms. Lang's declaration is specific on this factual point, and the undersigned will consider it.

         Further, Ms. Orozco would speak in Spanish to Ms. Merriam's, and two other female managers', Spanish speaking staff without informing Ms. Merriam what they discussed. (Opp'n, Facts ¶ 34, ECF No. 48; Vilas Aff. ¶ 16, ECF No. 48-1 at 12; Lang Decl. ¶ 8, ECF No. 48-1 at 19; Reply, Facts ¶ 34, ECF No. 60.) Peak objects to these affidavits as more prejudicial than probative because they lack specific instances of behavior. (Reply, Facts ¶¶ 29-30, ECF No. 60.) Ms. Vilas's affidavit and Ms. Lang's declaration are specific on this factual point, and the undersigned will consider them.

         Additionally, Peak refused to send Ms. Merriam to a general manager training even though Ms. Merriam requested to attend. Ms. Merriam further contends Peak did not send any female managers to the training. (Opp'n, Facts ¶ 33, ECF No. 48; Reply, Facts ¶ 33, ECF No. 60.)

         Ms. Merriam also includes a number of facts, an affidavit, and a declaration reciting that other general managers thought Ms. Orozco “discriminat[ed] against white women.” (Opp'n, Facts ¶¶ 25-30, ECF No. 48; Vilas Aff. ¶ 25, ECF No. 48-1 at 14; Lang Decl. ¶ 6, ECF No. 48-1 at 19.) Peak objects to these statements as inadmissible hearsay and more prejudicial than probative. (Reply, Facts ¶¶ 25-30, ECF No. 60.) Ms. Merriam offers these out of court statements to prove the truth of the matter asserted- that Ms. Orozco discriminated against women. These statements are inadmissible hearsay, but Ms. Merriam presumably could call these same witnesses at trial to make these same statements. Thus, Federal Rule of Civil Procedure 56(c)(2) permits Ms. Merriam to rely on these statements and affidavits for purposes of summary judgment. The general managers' statements that Ms. Orozco discriminated against white females draws a legal conclusion and to the extent they lack “specific instances of disparate treatment, ” the undersigned will not consider them. Jones v. Denver Post Corp., 203 F.3d 748, 756 (10th Cir. 2000). “When opposing a motion for summary judgment, the non-movant may not rest upon mere allegations but must set forth specific facts showing that there is a genuine issue for trial.” Id. (citations omitted).

         On February 7, 2012, the restaurant Ms. Merriam served as general manager of received six critical violations and ultimately failed the Utah County Health Department's inspection. (Opp'n, Facts ¶¶ 39 - 40, ECF No. 48; Reply, Facts ¶¶ 39 - 40, ECF No. 60.) Ms. Merriam was on vacation at the time, and an assistant manager was left in charge when the inspection occurred. (Id.) On February 9, 2012, Ms. Orozco notified Mr. Tomlinson that the restaurant failed its health inspection, and Mr. Tomlinson instructed Ms. Orozco to document the restaurant's performance. (Opp'n, Facts ¶ 41, ECF No. 48; E-mail from Tomlinson to Orozco, Feb. 9, 2012, ECF No. 48-1 at 23; Reply, Facts ¶ 41, ECF No. 60.) A Peak representative drafted a written warning for Ms. Merriam but ultimately did not give her the warning. (Opp'n, Facts ¶ 42 - 43, ECF No. 48; Reply, Facts ¶¶ 42 - 43, ECF No. 60.) Instead, Peak disciplined Carlos Ramirez, the cook who caused the critical violations, and Angela Black, the assistant manager in charge at the time of the health inspection. (Opp'n, Facts ¶¶ 43 - 44, ECF No. 48; Reply, Facts ¶¶ 43 - 44, ECF No. 60.) Peak did not discipline or warn Ms. Merriam. (Opp'n, Facts ¶ 45, ECF No. 48.)

         In early 2012, IHOP developed new food safety standards. On February 24, 2012, IHOP conducted an OAR of the restaurant and evaluated it under both the new and old food safety standards. Under the old safety standards, the restaurant received an overall rating of 95% and 90% in food safety and sanitation, respectively. (Opp'n, Facts ¶ 47, ECF No. 48; Ex. M, ECF No. 48-1 at 33.) However, the restaurant failed food safety and sanitation under IHOP's new food safety standards. (Ex. A-11, ECF No. 41-1 at 67-70.) The IHOP Account Management Team told Ms. Merriam that it would not use her score under the new standards to grade store performance and that Peak was “taking 2012 to help familiarize IHOP restaurants with the New OAR Evaluation containing a revised food safety section.” (Opp'n, Facts ¶ 48, ECF No. 48; Ex. M, ECF No. 48-1 at 33; Tomlinson Aff. ¶17, ECF No. 60-7.)

         On March 31, 2012, Ms. Orozco e-mailed Ms. Zarit with a list of areas where Ms. Merriam needed to improve. (Zarit Aff., Ex. 1, ECF No. 60-10 at 9.) That list included scheduling, ordering, inventories, coaching, delegating, training, budgeting, documentation, sales, cleanliness, and health inspections. (Id. at 10.) The subject line of the e-mail reads, “Shelirynn's [sic] area of focus list.”

         On April 10, 2012, Ms. Merriam met with Ms. Zarit, the human resources director, and explained that Ms. Orozco created a hostile working environment and discriminated against white women. (Opp'n, Facts ¶ 51; Reply, Facts ¶ 51, ECF No. 60.) Peak thus knew about Ms. Merriam's gender discrimination and hostile work environment claims no later than April 10, 2012. On April 14, 2012, Ms. Orozco and another Area Director went to Ms. Merriam's restaurant and presented Ms. Merriam with a Performance Improvement Plan (“PIP”) dated April 12, 2012. (Opp'n, Facts ¶ 54 - 56, ECF No. 48; Reply, Facts ¶ 54 - 56, ECF No. 60.) At that meeting Ms. Merriam complained that Ms. Orozco put her on the PIP in retaliation for her gender discrimination and hostile work environment claims. (Id.) On April 17, 2012, Ms. Orozco and Mr. Tomlinson met with Ms. Merriam to discuss the PIP, and Ms. Merriam again stated she believed they had given her the PIP in retaliation for her complaining about Ms. Orozco's behavior. (Opp'n, Facts ¶ 58, ECF No. 48; Reply, Facts ¶ 58, ECF No. 60.)

         The PIP constituted discipline and threatened further disciplinary action, including termination if Ms. Merriam failed to improve substantially within sixty days. (Signed PIP dated Apr. 14, 2012 (“PIP”), ECF No. 41-1 at 32, 35.) The PIP threatens potential discharge when it states, “Lack of sufficient improvement can lead to disciplinary action up to and including termination.” (PIP, ECF No. 41-1 at 32.) Further, the PIP acknowledges its disciplinary nature by including, “Failure to complete the Performance Improvement Plan may result in further disciplinary action up to and including termination.” (PIP, ECF No. 41-1 at 35 (emphasis added).) The PIP also required Ms. Merriam to meet with Ms. Orozco once a week throughout the sixty-day period to determine whether Ms. Merriam improved and prevented Ms. Merriam from receiving a promotion for ninety days. (Id. at 34-35.)

         Ms. Orozco gave Ms. Merriam consistently negative reviews over the next thirty days. Ms. Orozco claimed Ms. Merriam was always behind schedule on the improvements she needed to make, (Merriam Dep. 100:24-102:08, ECF No. 57-1), and Ms. Merriam's failed to follow directions to improve her restaurant's cleanliness, such as hand-washing techniques, (id. at 110:21-111:11), and cross-contamination practices, (id. at 114:12-22). Ms. Orozco further claimed Ms. Merriam was not checking in on night staff as Ms. Orozco instructed, (id. at 162:20-164:03), or delegating tasks to her staff. (Id. at 126:05-24.) According to Ms. Orozco, her progress appointments with Ms. Merriam went quickly because when she inspected Ms. Merriam's restaurant “[i]t was like, not fixed, not fixed, not fixed, not fixed.” (Orozco Dep. 39:16-17, ECF No. 41-1.) Ms. Merriam contends she did make all of these improvements. (Merriam Dep. 100:24- 102:08, 110:21-111:11, 114:12-22, 126:05-24, 162:20-164:03, ECF No. 57-1.) Additionally, Ms. Merriam retrained her team on Health Department and OAR sanitation requirements, (id. 89:23-90:05), managed her team and disciplined anyone who did not comply with the “disciplinary process, ” (id. at 90:14-21), gave Ms. Orozco weekly feedback regarding any ongoing employee issues, (id. at 92:19-93:02), and provided Ms. Orozco with weekly budget projections and Ms. Merriam's feedback on strategies to manage her budget and control costs, (id. at 93:08-18). Ms. Merriam argues that despite her improvements nothing she did pleased Ms. Orozco. (Id. at 160:20-25.) Ms. Orozco ...


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