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Valdez v. Tyco Integrated Security LLC

United States District Court, D. Utah, Central Division

January 18, 2019

HERNAN VALDEZ, Plaintiff,
v.
TYCO INTEGRATED SECURITY LLC, dba ADT SECURITY SYSTEMS, a Utah registered corporation, et al., Defendants.

          MEMORANDUM DECISION AND ORDER GRANTING [26] DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          David Nuffer, United States District Judge

         Plaintiff Hernan Valdez (“Valdez”) filed this lawsuit on January 6, 2016, alleging: (1) discrimination on the basis of race and color in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) against Defendant Tyco Integrated Security LLC (“Tyco”); (2) discrimination in violation of the Age Discrimination and Employment Act against Tyco; (3) discrimination on the basis of race and color in violation of Title VII against Defendant Jan Giddings (“Giddings”); (4) hostile work environment harassment in violation of Title VII against Tyco; (5) pay inequality in violation of Title VII against Tyco; and (6) discrimination on the basis of race in violation of 42 U.S.C. § 1981.[1]

         Valdez's age and equal pay claims and his claims against individual Defendant Giddings at the pleading stage.[2] Tyco moved for summary judgment against Valdez's remaining race and color claims.[3] After careful review of the memoranda and evidentiary materials submitted by the parties, the determination was made that Tyco's motion should be GRANTED without oral argument.[4] Tyco was instructed to prepare a draft a proposed memorandum decision and order and serve a copy on Valdez.[5] Valdez did not object to the proposed order.

         Contents

         UNDISPUTED MATERIAL FACTS ............................................................................................ 3

         SUMMARY JUDGMENT STANDARD .................................................................................... 11

         DISCUSSION ............................................................................................................................... 12

         A. Valdez Fails to Raise a Triable Issue of Race or Color Discrimination Under Section 1981 .......................................................................................................... 12

         1. Valdez Fails to Establish a Prima Facie Case as to Most of the Acts He Contends Are Discriminatory. . ................................................................. 12

         2. Valdez Fails to Raise a Triable Issue of Pretext as to His Termination. .. 14

         3. Valdez's Failure to Accommodate Claim Fails as a Matter of Law. . ....... 19

         B. Valdez Does Not Establish a Claim for Hostile Work Environment Under Section 1981 ....................................................................................................................... 21

         1. A Four-Year Statute of Limitations Bars Consideration of Conduct About Which Valdez Complains. . ....................................................................... 25

         2. Valdez Fails to Allege Conduct Sufficiently Pervasive or Severe. . ......... 26

         3. Valdez's Failure to Complain Entitles Tyco to a Faragher/Ellerth Defense. . ................................................................................................... 28

         C. Valdez's Title VII Claims Fails for All the Same Reasons His Section 1981 Claims Fail, and for Additional Independent Grounds. . ....................................... 32

         1. The Vast Majority of Conduct About Which Valdez Complains Is Time-Barred Under Title VII .............................................................................. 32

         2. Valdez Failed to Administratively Exhaust His Only Timely Claims Under Title VII. . .................................................................................................. 34

         D. Tyco Is Entitled to Summary Judgment on Grounds that Valdez Cannot Recover Damages ................................................................................................................ 34

         1. Valdez's Inability to Work Forecloses a Claim for Economic Damages. 35

         2. The WCA and a Separate Civil Lawsuit Foreclose Valdez's Claims for Both Economic and Non-Economic Damages. . ....................................... 36

         ORDER ......................................................................................................................................... 38

         UNDISPUTED MATERIAL FACTS[6]

         1. Tyco designs, installs, and maintains integrated security and surveillance systems to detect intrusion, fire, environmental conditions, industrial processes and other hazards.[7]

         2. Tyco employed Valdez as an Installer of commercial security systems in Salt Lake City, Utah, most recently from August 2005 until April 2013. Valdez's primary duties involved the servicing and installation of fire alarm systems. Valdez's position frequently required him to drive a van between worksites, work at heights, and work with electricity.[8]

         3. Valdez alleges that four Tyco employees took discriminatory action against him during his employment with Tyco: Giddings, Scott Hill (“Hill”), Rob Stokes (“Stokes”), and Dennis Williams (“Williams”).[9] Of those four persons, only Giddings was authorized to hire, fire, demote, formally evaluate, or issue written discipline to Valdez.[10]

         Valdez's Allegations Regarding Giddings

         4. Valdez identified the following allegedly discriminatory acts taken by Giddings: (a) Valdez walked in on a conversation between Giddings and another employee and believes Giddings was saying to the employee (or was about to say) “I hate Mexican music, ” but all Valdez overheard was “I hate Mexican”; (b) Valdez sometimes had difficulty obtaining tools he needed for his job; and (c) after Valdez left Tyco's employment, Giddings did not allow him on company premises to retrieve his tools from his work van.[11]

         5. Valdez never heard Giddings say anything negative to him about Mexicans or Hispanics.[12] He never heard Giddings say anything he perceived to be negative about Mexicans or Hispanics, except for the comment he overheard about her dislike of Mexican music, noted above, which she made to another employee.[13] He does not remember whether he heard Giddings say anything he found offensive in 2012, the last year Valdez reported to work.[14]Giddings always approved Valdez's requests for tools eventually, and while it may have taken a follow-up request, Valdez ultimately received the tools he needed to perform his job, except for a “couple times.”[15]

         Valdez's Allegations Regarding Hill

         6. Valdez alleges that Hill made general negative comments about Mexicans and would not work with him on certain jobs.[16] However, Valdez worked with Hill only “about three times in [his] whole career” and would only see him in passing when jobs were assigned.[17]Valdez occasionally overheard Hill make remarks in the parking lot about throwing rocks at Mexicans coming over the border and taking “Mexican showers.”[18] However, Hill never directed negative comments to Valdez.[19] Valdez does not remember whether Hill said anything he found offensive in 2012, the last year Valdez reported to work.[20]

         7. In November 2011, Valdez believes Hill “got [Valdez] in trouble” by reporting that Valdez had left material unsecured at a worksite.[21]

         Valdez's Allegations Regarding Stokes

         8. Valdez alleges that Stokes made “burro jokes, ” “Juan Valdez coffee” jokes, and “Mexican shower” jokes.[22] However, Valdez worked with Stokes only “about four times.”[23]

         Valdez's Allegations Regarding Williams

         9. Valdez worked with Lead Installer Dennis Williams frequently.[24] According to Valdez, Williams did not make Mexican jokes every time he and Valdez worked together, but, in the break room, where Williams “had a crowd for everybody to laugh and ‘whooo,' and all this stuff, ” then Williams made Mexican jokes.[25] At his deposition, Valdez could recall only four jokes by Williams: (a) in reference to Valdez, Williams would joke “Watch out for him because he'll steal your stuff”; (b) in a conversation with Hill, Valdez overheard Williams refer to Mexicans crossing the border as “wetbacks”; (c) Williams made “burrito jokes” when everybody was eating burritos; and (d) Williams said “here comes Juan Valdez and his burro” every time Valdez had his cart, which Valdez admitted he thought was funny, at least at first.[26] Valdez did not think Williams told jokes to make Valdez feel bad; Valdez believed Williams told the jokes to be funny.[27]

         10. In 2011, Williams had Valdez “dig a trench to bury a pipe.”[28]

         Valdez's Failure to Complain

         11. Tyco's Handbook contains robust anti-discrimination, anti-harassment, and anti-retaliation policies, and procedures for reporting harassment.[29] Valdez received a copy of the Handbook.[30] He was also aware of Tyco's channels for reporting harassment.[31]

         12. Valdez testified at two separate depositions that he did not complain of harassing conduct to any management-level employee of Tyco or utilize any of Tyco's other reporting channels.[32] He further testified that he did not complain because he thought he could “hold [his] own and be able to stomp [the harassment] out himself, ” because he did not “trust authority, ” because “[y]ou can't complain every time someone says something, ” and because he thought he “would have been inundated with more paper.”[33]

         Valdez's Workplace Injury

         13. In March 2011, Valdez suffered an injury while installing surveillance cameras at a slaughterhouse. While kneeling to position a camera, his protective hard hat fell off, and the top of his head touched a live electrical wire. The incident was reported and accepted as a compensable work-related injury under Utah's Workers' Compensation Act.[34] Valdez attributes all his physical and mental health conditions to this injury.[35]

         14. Valdez received wage replacement benefits from Tyco's workers' compensation insurer as a result of the injury at the slaughterhouse.[36] He also received a settlement from workers' compensation for his medical treatment.[37]

         15. After the workplace injury, Valdez took an approved leave under the Family and Medical Leave Act (“FMLA”), from May to June 2011, when he was cleared to return to work. However, after his return, Valdez continued to experience physical and mental problems that he attributed to the electrical shock injury. For example, Valdez testified that “things were going wrong, ” that he was experiencing dizziness, and that he had issues with his peripheral vision that caused him difficulty in driving his van.[38]

         Valdez's Disability Leave

         16. In July 2012, Valdez had a panic attack while working at heights on a ladder at a jobsite. The foreman excused Valdez from the worksite, and Valdez told Giddings about his continuing difficulties. Giddings arranged to have Valdez driven home by a coworker and recommended that he take a short-term disability (“STD”) leave.[39]

         17. The last day Valdez reported to work was July 26, 2012. At that time, he was placed on an STD leave from which he never returned. Once he was no longer in the workplace, Valdez did not communicate with the coworkers that he alleged had harassed him or experience any allegedly harassing conduct.[40]

         18. A few days after Valdez was placed on STD leave, he saw a physician and reported a litany of physical and mental impairments, all of which he attributed to his electrical shock injury in March 2011. Those impairments included severe headaches multiple times a week, unstable mood, extreme stress and anxiety, difficulty concentrating, panic attacks, restlessness, nightmares, flashbacks, hypervigilance, severe depression, difficulty in performing household chores and caring for his daughter, sporadic appetite, lethargy, restless during sleep, significant feelings of worthlessness and guilt, anhedonia, occasional suicidal ideation, difficulty maintaining a work schedule, and moodiness.[41]

         19. Valdez was subsequently referred to a neurologist, whose assessment of Valdez was that he was “dealing with such intense anxiety that he is unable to perform the duties of his job and cannot function.” Valdez's primary care physician agreed, stating that his condition was “chronic, ” that it was likely that he would be incapacitated “for at least one year, ” that his symptoms severely impaired his ability to complete job duties, and that he was unable to perform any duties at that time.[42]

         20. Valdez agreed with his doctors' assessments. Moreover, he testified that, with the exception of the fact that he has not “seen flashes” for a while, all the symptoms he reported to his physician in July 2012 have “stayed the same, ” and he suffers from all those symptoms today.[43]

         Valdez's Termination of Employment

         21. Because of the severity of his many debilitating health conditions, Valdez was never released to return to work after he was placed on STD leave in July 2012, and he did not report to a Tyco worksite again.[44]

         22. Valdez's STD leave benefit expired January 22, 2013, at which point Tyco approved an additional, unpaid personal leave of absence until April 14, 2013, with a prospective return to work date of April 15, 2013.[45] He did not return to work at that time, however.[46]

         23. Valdez also failed to request an extension of his personal leave of absence from Sedgwick CMS (“Sedgwick”), who administers Tyco's leave benefits. On April 17, 2013, Tyco alerted Valdez that his employment would be terminated if he did not provide Sedgwick with the necessary documentation to support a leave extension. As of April 22, 2013, and despite multiple requests, Valdez still had not applied for a leave extension. Accordingly, Tyco notified Valdez that he was being terminated for job abandonment.[47]

         24. Giddings is not aware of any employee who failed to follow Tyco's procedures for obtaining an extension of a medical leave and who failed to show up for work on three consecutive days and who was not terminated.[48]

         25. At the time Tyco terminated Valdez's employment, his health conditions had not improved and he had not been medically cleared to return to work. At Valdez's depositions, he testified that he had not been able to safely perform the physical duties of an Installer at any time since his employment at Tyco ended.[49] Valdez has not held any job since his employment at Tyco ended, and he still has not been released to work in any capacity by his doctors. Instead, Valdez pursued disability insurance benefits from the Social Security Administration (“SSA”), which made a partial award of benefits in the approximate amount of $1, 600 per month as of January 29, 2016.[50] To obtain those benefits, Valdez represented to the SSA that he was “unable to work” because of severe physical and mental limitations.[51] In his deposition, Valdez confirmed that he has been unable to work in any capacity since the termination of his employment at Tyco in April 2013.[52]

         Agency Proceedings

         26. On August 12, 2013, Valdez filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) and the Utah Antidiscrimination and Labor Division (“UALD”). Valdez checked the boxes for national origin, retaliation, and disability on the EEOC form; he did not indicate he had been discriminated against on the basis of race, color, or age. Valdez also did not allege that Tyco failed to accommodate him by offering him a job transfer or attribute his termination to any protected characteristic other than disability.[53]

         27. The UALD closed its investigation on September 26, 2014, finding no reasonable cause to support Valdez's Charge.[54] Valdez appealed that determination and requested an evidentiary hearing before the agency's Adjudication Division.[55] After limited discovery, Tyco filed a motion for summary adjudication; Valdez responded by withdrawing his appeal.[56] The EEOC issued a right to sue notice on October 14, 2015.[57]

         28. On January 6, 2016, Valdez filed his Complaint in this Court, alleging violations of Title VII, 42 U.S.C. § 1981, and the Age Discrimination and Employment Act.[58] The Complaint alleged race, color, and age discrimination and harassment under federal law only.[59]Valdez abandoned any disability-related claims under the Americans with Disabilities Act or analogous state law.[60]

         SUMMARY JUDGMENT STANDARD

         A party is entitled to summary judgment when there is no genuine dispute as to any material fact and the party is entitled to judgment as a matter of law.[61] The party moving for summary judgment has the initial burden of showing that there is an absence of evidence to support the non-moving party's case. Once that initial burden is satisfied, the burden shifts to the nonmoving party to make a showing sufficient to establish that there is a genuine issue of material fact for trial.[62]

         “To defeat a motion for summary judgment, a party cannot merely rest on the allegations contained in the complaint and other filings.”[63] Instead, the nonmoving party must come forward with specific facts, supported by materials that would be admissible at trial, showing the existence of a genuine issue for trial.[64] If the non-moving party fails to meet this burden as to one element of a claim, summary judgment is appropriate.[65]

         DISCUSSION

         A. Valdez Fails to Raise a Triable Issue of Race or Color Discrimination Under Section

         1. Valdez Fails to Establish a Prima Facie Case as to Most of the Acts He Contends Are Discriminatory.

         Valdez alleges that, having asserted his race played a role in certain acts taken by his supervisor, “TYCO [] must show that absent Mr. Valdez's race, ” the alleged discriminatory acts “would not have occurred.”[66] Valdez misunderstands the burdens of proof. It is Valdez, not Tyco, who bears the burden of coming forward with evidence sufficient to establish a prima facie case of discrimination by showing that: (1) he is a member of a protected class; (2) he suffered an adverse employment action; and (3) similarly situated persons outside his protected class were treated more favorably.[67] Valdez's claim fails in the first instance because the majority of “discriminatory” acts he alleges are not adverse employment actions.

         In the context of a discrimination claim, adverse employment actions are employment actions that “result in an adverse effect on the terms, conditions, or benefits of employment, ” such as hiring, discharge, and setting compensation.[68] Actions that cause no more than a “bruised ego” do not suffice.[69]

         At his deposition, Valdez identified only four Tyco employees whom he believes discriminated against him: his supervisor, Giddings, and three coworkers, Williams, Stokes, and Hill.[70] Of those four persons, only Giddings was authorized to take material employment action against Valdez.[71] As a result, it stands to reason that Williams, Stokes, and Hill, Valdez's peers, could not have “discriminated” against him.[72]

         With respect to Giddings, Valdez identified the following allegedly discriminatory actions:

• Valdez once walked in on a conversation between Giddings and another employee and believes she was saying (or was about to say) “I hate Mexican music, ” but all Valdez heard was “I hate Mexican”;
• After Valdez left Tyco's employment, Giddings did not allow him on premises to retrieve his tools from his work van; and
• On occasion over the course his seven-year employment, Valdez had difficulty obtaining tools he needed for his job as an installer.[73]

         None are materially adverse employment actions. The first, a single off-hand comment (which was not directed at Valdez), did not adversely affect the terms, conditions, or benefits of Valdez's employment. At most, that comment resulted in a “bruised ego, ” which is not actionable. The second-Giddings' alleged refusal to let Valdez clean out his van-also is not a materially adverse employment action. Critically, Valdez admitted at deposition that that incident occurred after his termination.[74] As such, it could not possibly have affected the terms, conditions, or benefits of Valdez's employment, which had already ended. Though a closer call, Valdez's third alleged adverse action-that he had trouble getting tools issued to him from the tool supply facility[75]-also does not amount to a materially adverse employment action. Valdez admits that Giddings always approved his request for tools, and while it may have taken a follow-up request, he ultimately received the tools he needed to perform his job, except for a “couple times.”[76] Not having access to certain tools a “couple times” during a seven-year period does not effect a material change in the terms, conditions, or benefits of employment.

         Though not specifically cited by Valdez at deposition, Valdez also believes Tyco's decision to terminate his employment was discriminatory. Tyco concedes that Valdez's termination would qualify as a materially adverse employment action, but argues that Valdez's termination cannot support a discrimination claim because there is no evidence that similarly situated persons outside Valdez's protected class were treated more favorably. Tyco is correct. The only evidence in the record on this point is the declaration of Valdez's supervisor, Giddings, who attests that she is unaware of a single employee who failed to follow Tyco's procedures for obtaining an extension of a medical leave and who was not terminated.[77] Valdez's claim fails on this basis alone.

         2. Valdez Fails to Raise a Triable Issue of Pretext as to His Termination.

         Even if Valdez could establish a material issue of fact as to each element of his prima facie case, Tyco is still entitled to summary judgment because he fails to raise a triable issue that his termination was discriminatory. When a plaintiff establishes a prima facie case, the defendant may respond with a legitimate, non-discriminatory reason for taking the adverse action.[78] Once the defendant has done so, the burden shifts back to the employee to demonstrate the existence of a genuine issue of material fact as to whether that reason is pretextual.[79]

         Pretext can be shown “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.”[80] As a matter of law, neither bald assertions in the pleadings, nor a declaration that contradicts the plaintiff's prior admissions, establish pretext.[81]

         Tyco met its burden of production by offering evidence of a legitimate and non-discriminatory reason for terminating Valdez's employment: Valdez failed to follow Tyco's procedures for obtaining a further extension of a nine-month medical leave. It is well-established that an employer's requirement that an employee provide a medical certification as a condition of returning to work “does not reflect a discriminatory animus.”[82]

         Valdez offers no direct or indirect evidence that race or color more likely motivated Tyco's decision. Direct evidence is “‘evidence, which if believed, proves [the] existence of [a] fact in issue without inference or presumption.'”[83] “In contrast, statements of personal opinion, even when reflecting a personal bias or prejudice, do not constitute direct evidence of discrimination.”[84] “At most, such statements constitute only indirect or circumstantial evidence of discrimination because the trier of fact would have to infer that the bias reflected in the statements was the reason behind the adverse employment decision.”[85] Stated another way, direct evidence of discrimination, standing alone, explicitly connects the allegedly discriminatory motive to the alleged adverse action.[86]

         Valdez points to the fact that he overheard “a couple of statements about [Giddings] not liking Mexican music” as evidence of Tyco's motives.[87] Those comments are not direct evidence of discrimination. Critically, Valdez does not claim that Giddings told him he was being fired because she “hate[s] Mexican[s].” Instead, Valdez asks that discriminatory motives be inferred from a comment about Giddings' dislike of Mexican music that was not related to the decision-making process. It is therefore not direct evidence of discrimination. Indeed, because Giddings had no input into the decision to terminate Valdez, [88] and her single comment regarding Mexican music is wholly-divorced from Valdez's termination, it amounts to a mere “stray remark” not entitled to any probative weight, even if it could be relied upon as indirect evidence of discriminatory animus.[89]

         To survive summary judgment, Valdez must adduce some other evidence that reveals sufficient “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [Tyco's] proffered legitimate reason[] for its action that a reasonable factfinder could rationally find [] unworthy of credence.”[90] A plaintiff typically makes such showing in one of three ways: (1) with evidence that the defendant's stated reason for the adverse employment action was false; (2) with evidence that the defendant acted contrary to a written company policy prescribing the action to be taken by the defendant under the circumstances; or (3) with evidence that the defendant acted contrary to an unwritten policy or contrary to company practice when making the adverse employment decision affecting the plaintiff.[91] Valdez submitted no evidence of any type.

         To the contrary, Valdez admits that the basis of Tyco's termination decision was valid. He testified that he had repeatedly failed to follow Tyco's policies in requesting a further extension of medical leave:

Q. Now, this letter is sent by Melinda Gallegos, who is an HR coordinator at Tyco. … And she describes in her letter to you that you have been out of work since July 26, 2012, that your FMLA had expired on October 17, 2012, that your short term disability leave also had expired as of January 22, 2013 … that you were approved for an additional unpaid personal leave of absence until April 14, 2013, with a return to work date of April 15, 2013, and that - second paragraph, as of … April 17, 2013 … you had failed to return to work and that you had not provided the documentation needed to extend your leave, that Sedgwick attempted to contact you on April 5th and April 12th regarding your return to work and that you had not responded or requested an extension, and that as a result you were a no call/no show on April 15; that on April 16 you spoke with Jan Giddings, and you indicated you were unable to return, that you had not yet requested an extension with Sedgwick.
Do you disagree with anything that's recounted there factually?
A. No, I don't disagree with that.
….
Q. The letter of April 22, 2013, Exhibit 15, states that you had not requested an extension of your leave as had been requested of you. That was true, correct?
A. True.
Q. And you were not medically cleared to come back to work as of April 22, 2013, true?
A. True.[92]

         Valdez's own testimony establishes that Tyco's decision to terminate his employment accorded with its policies.

         There also is no evidence that Tyco acted contrary to its regular practices. On this issue, Valdez offered the declaration of his union steward, James Muirhead, who attests that he attended two terminations and, in contrast to Valdez's termination (which was effectuated by letter), “both times the employee was present.”[93] However, Muirhead's vague and limited experience is not probative of pretext. His testimony hardly establishes a “regular practice, ” particularly in light of the fact that Valdez's was not a “regular” termination. It is undisputed that at the time of his termination, Valdez had been on leave continuously for nine months, several communications from Tyco and its third-party leave administrator had gone unanswered, and he was not released to return to work at the time he was terminated (or at any subsequent time).[94]Muirhead does not allege that the other terminations he witnessed occurred under similar circumstances or that Valdez's termination deviated from the norm. Without that evidence, his observations are not probative of pretext. An inference of discrimination arises only from disparate treatment of persons who are similarly situated to the plaintiff in “relevant employment circumstances, ”[95] and only where there is evidence of a “disturbing procedural irregularity” that is “often exemplified by an employer's ‘falsifying or manipulating of relevant criteria.'”[96]Nothing remotely close to this sort of evidence exists in this case. Summary judgment is therefore warranted.

         3. Valdez's Failure to Accommodate Claim Fails as a Matter of Law.

         Valdez's final theory of liability for discrimination is a quasi-disability claim. Having abandoned his disability claim under the ADA, his Complaint attempts to recast a failure-to-accommodate claim as race or color discrimination, asserting that Tyco allegedly “refused to allow Mr. Valdez to be transfer to a position that would accommodate his work related work restrictions, ” and instead fired him, although “Caucasian[s] were allowed to make similar position transfers.”[97] This claim fails for several reasons. First, Valdez concedes he was not capable of returning to work at Tyco at the time he was terminated.[98] Indeed, Valdez has not been released to return to work in any capacity since he began his leave of absence from Tyco.[99]To the contrary, his doctors have continued to express their belief that he is not capable of working.[100]

         Second, Valdez never requested a transfer, which request would have been necessary to support his claim under the rubric of race or color discrimination. To establish the prima facie case of failure to hire or promote under Section 1981, Valdez must have shown, inter alia, that he applied for-or at least sought-a position.[101] Valdez's own testimony makes clear that that did not happen here.[102] He testified as follows:

Q. Did you ever request an accommodation for a medical or mental health condition while employed at Tyco?
Do you know what I mean by that? Did you ever request - A. No. I hadn't gone back to work yet.
Q. Okay.
A. I didn't know about any requests being made.
….
Q. [] But since you hadn't been back to work, just so I'm clear, you hadn't requested an accommodation for any disability or medical or mental health condition from Tyco, correct?
A. I didn't know any requests could be made. … I don't believe I asked for any.[103]

         Having not asked for any accommodation in the form of a job transfer (which Valdez was not capable of performing anyway), he cannot now assert that it was discriminatory for Tyco not to transfer him. Tyco is therefore entitled to judgment as a matter of law.

         B. Valdez Does Not Establish a Claim for Hostile Work Environment Under Section

         In his Sixth Claim for Relief, Valdez alleges that Tyco created a hostile work environment in the workplace that “encouraged racial disparity, racial denigration, and racial hostility between [Valdez] and his Caucasian counterparts.”[104] In his deposition, Valdez testified that four Tyco employees, (Giddings, Hill, Stokes, and Williams), made remarks that he found harassing or discriminatory based on his race, color, or perceived national origin.[105] Only one of those individuals (Giddings) was Valdez's manager; the others were his coworkers. None of the conduct he described, [106] either in isolation or collectively, qualifies as a hostile work environment as a matter of law:

         Giddings. Valdez testified that he never heard Giddings say anything negative to him about Mexicans or Hispanics, but that once, as described above, at an unspecified time, he walked in on a conversation between Giddings and another employee and believes she said (or was about to say) “I hate Mexican music.”[107] Valdez also speculated that Giddings might have harbored a discriminatory animus towards him because, although she always approved his request for tools, he had trouble getting the tools issued to him from the tool supply facility.[108]Valdez admits, however, that he ultimately received the tools he needed, except a “couple times.”[109]

         Hill. Hill was an installer like Valdez.[110] Valdez testified that he believed Hill “hated” him because Hill was “a redneck from El Paso, ” made general negative comments about Mexicans, and would not work with him on certain jobs.[111] Valdez also suspects that, once, in November 2011, Hill “got [him] in trouble” with Giddings by reporting that he (Valdez) had left material unsecured at a worksite, resulting in an unwarranted discipline.[112] Valdez admits he did not like Hill either and refused to work with him.[113] As a result of this mutual dislike, Valdez testified that he worked with Hill “about three times in [his] whole career” and would only see him in passing when jobs were assigned.[114] Although Valdez occasionally overheard Hill make remarks in the parking lot about throwing rocks at Mexicans coming over the border and taking “Mexican showers, ”[115] Hill never directed negative comments to Valdez, because “[h]e wouldn't dare.”[116]

         Stokes. Stokes was also an installer. Valdez testified that, unlike Hill, Stokes was “a pretty nice guy, ” but he “was free with his jokes and . . . comments.”[117] Valdez worked with Stokes only “about four times” and, on one or more of those few occasions, heard him make “burro jokes, ” “Juan Valdez coffee” jokes, and “Mexican shower” jokes. Valdez believed Stokes “was probably doing it in all fun and joking and everything, ” but it “got old.”[118]

         Williams. Williams was a lead installer.[119] In contrast to Hill and Stokes, Valdez testified that he worked with Williams regularly.[120] According to Valdez, Williams would ask him to help on a lot of his jobs, because Valdez “was a worker and [he] hustled.”[121] Valdez does not think Williams was a bad person, but he would “speak[] his mind, ” “and it was always the Mexican jokes.”[122]

         Valdez explained that Williams would not make Mexican jokes every time they worked together, but, in the break room, where “Dennis had a crowd for everybody to laugh and ‘whooo,' and all this stuff, ” then Valdez would hear Williams make Mexican jokes.[123] In his deposition, Valdez gave four specific examples: (1) He recalled that, in reference to Valdez, Williams would joke “Watch out for him because he'll steal your stuff, ” which Valdez interpreted as a comment on Mexicans or Hispanics.[124] (2) In a conversation with Hill, Valdez overheard Williams refer to Mexicans crossing the border as “wetbacks.”[125] (3) Williams made “burrito jokes” when everybody was eating burritos.[126] (4) Williams would say “here comes Juan Valdez and his burro” every time Valdez had his cart, which Valdez admitted he thought was funny too, at least at first.[127] Valdez could think of no other remarks he found discriminatory or harassing.[128] And he testified that he did not think Williams told these jokes to make Valdez feel bad: “I think he said them to be funny.”[129] Other than the jokes, the only other specific conduct Valdez found objectionable was one instance, in 2011, when Williams had Valdez “dig a trench to bury a pipe, ” which Valdez felt was discriminatory, because he had not seen anyone else do that before.[130]

         Accepting these allegations as true, they do not give rise to employer liability under Section 1981 for three independent reasons: (1) most, if not all, of the alleged conduct occurred outside the statute of limitations; (2) even if the alleged conduct could be considered in totality, it was not sufficiently pervasive or severe to give rise to actionable claim; and (3) Tyco has a valid Ellerth/Faragher defense to liability, because Valdez admits he never complained of conduct he perceived as harassing or discriminatory, despite his knowledge of robust reporting procedures available to him.

         1. A Four-Year Statute of Limitations Bars Consideration of ...


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