United States District Court, D. Utah, Central Division
Benson, District Judge
REPORT AND RECOMMENDATION RE: DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT (ECF NO. 41)
J. FURSE, UNITED STATES MAGISTRATE JUDGE.
Peak Restaurant Partners (Peak) moves the Court 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.
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
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,
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.
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.
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.)
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.
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.)
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.)
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.
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.
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.
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.)
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
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.)
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.)
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
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.)
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.)
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 ...