Hernandez v. Valley View Hosp. Ass'n

Decision Date26 June 2012
Docket NumberNo. 11–1244.,11–1244.
Citation115 Fair Empl.Prac.Cas. (BNA) 592,82 Fed.R.Serv.3d 1197,684 F.3d 950
PartiesTeresa HERNANDEZ, Plaintiff–Appellant, v. VALLEY VIEW HOSPITAL ASSOCIATION, Defendant–Appellee, and Morrison Management Specialists, Inc., d/b/a Morrison Healthcare Food Services, Defendant.
CourtU.S. Court of Appeals — Tenth Circuit

OPINION TEXT STARTS HERE

Submitted on the briefs: *

Theodore G. Hess, Hess & Schubert, LLP, Glenwood Springs, CO, for PlaintiffAppellant.

Michael C. Santo, Bechtel & Santo, LLP, Grand Junction, CO, for DefendantAppellee.

Before KELLY, MURPHY, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

Teresa Hernandez sued Valley View Hospital Association for race and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e–17.1 The district court granted summary judgment for Valley View on Ms. Hernandez's claims for hostile work environment and constructive discharge, and dismissed her retaliation claim as time-barred.

Exercising jurisdiction under 28 U.S.C. § 1291, we reverse on the hostile work environment and constructive discharge claims and affirm on the retaliation claim.

I. BACKGROUND
A. Factual History2

Ms. Hernandez, a Latina of Mexican origin, began working in 2001 at Valley View in the food services department. Marc Lillis and Nicholas Stillahn started supervising her in November 2004 and March 2005, respectively. Ms. Hernandez transferred out of food services in June 2005, but returned in October 2006. As discussed in detail below, Ms. Hernandez alleges that during the time Mr. Lillis and Mr. Stillahn supervised her, they frequently made racially derogatory jokes and comments about Latinos and Mexicans, and continued to do so despite her complaints to them that their remarks were offensive.

Ms. Hernandez provided the following examples in her discovery responses and at her deposition:

• Although Ms. Hernandez was not able to recall some dates, the racial joke Mr. Lillis repeated most often was to ask Mr. Stillahn, [D]o you know why Mexicans don't BBQ?,” and when Mr. Stillahn asked [W]hy[?],” Mr. Lillis answered, [B]ecause the beans go through the grill.” Aplt. App. at 298, 427.

• Mr. Lillis and Mr. Stillahn repeated another racial joke several times, once in December 2006: [D]o you know why Mexicans and Latinos make tamales for Christmas? So they can have something to unwrap.” Id. at 298, 427.

• Her supervisors repeated these and other racial jokes before and after her transfer. Id. at 299 (testifying Mr. Lillis made the barbeque joke three to five times); 302–03 (made the tamale joke three or four times); 427 (listing these as examples of the racial jokes). Ms. Hernandez repeatedly complained to Mr. Lillis and Mr. Stillahn that these jokes and comments were racist, inappropriate, and not nice. Id. at 301–03, 305–07.

• In June 2005, Barbara, a non-Latina co-worker, told the other employees, in front of Mr. Lillis, to “put ice in the cups. You're not in Mexico anymore.” Id. at 300–01, 332. Ms. Hernandez told Mr. Lillis this remark was racist and that she was offended by it because she was from Mexico. Id. at 302. He laughed and said, She's not talking about you. She's talking about a country.” Id. Ms. Hernandez replied that she came from that country; Mr. Lillis answered, “Well, you're a citizen of the United States.” Id.

• In August 2006, Mr. Lillis laughed at Ms. Hernandez's son's prom photo and said that only a Latino would wear tennis shoes to a prom. Id. at 303.

• In December 2006, Mr. Stillahn complained about having to work Christmas Day when Latino workers were going to be off, saying “Of course. My hair is not dark.” Id. at 232. When Ms. Hernandez asked what he meant, he said, “I'm not a Latino.” Id. She complained about this remark to Paul Tapia, another supervisor, who told her the remark was not racist. Id.

• In March 2007, when Ms. Hernandez's family members joined her for lunch, Mr. Stillahn asked her if they had paid for their lunches. When she said “yes,” he challenged her because he had not seen her at the register. Id. at 233, 327. She told Mr. Stillahn that she thought he was being racist because some of her family are African–American, and she told him he could check the camera at the register.

• Every time he saw a Latino worker get a drink, Mr. Stillahn asked if they had paid for it, but he never asked that of a non-Latino worker. Id. at 234. Ms. Hernandez repeatedly complained to Mr. Lillis about this, but he never responded. Id. at 235.

• Mr. Stillahn chastised a Latino worker for wearing non-conforming shoes, but he said nothing to a white employee who did the same. Id. at 235–36.

• One day in June 2007, Mr. Lillis repeatedly asked Ms. Hernandez if, or made the accusation that, an accused murderer in the news with the Hernandez surname was her son or brother. Id. at 230–31. He asked this question every time he walked by her, at least five times, in front of others. Id. at 230–31, 428. She told Mr. Lillis she was unrelated to the murderer and that [j]ust because my name is Hernandez and just because I'm a Latino doesn't mean my son murdered that guy.” She repeatedly told him that his remark upset her, made her uncomfortable, and was racist. Id.

Ms. Hernandez testified that on July 20, 2007, Mr. Stillahn angrily yelled at her that the cafeteria had “looked like shit” the day before and then “started screaming.” Aplt. App. at 238. Ms. Hernandez responded, “Well, maybe I'm not white enough.” Id. She said Mr. Stillahn “got even more upset” and pushed a cart and kicked a door. Id. When she confirmed to Mr. Lillis that she had made that remark, he told her to go home.

That afternoon, Nikki Norton, Valley View's Human Resources Coordinator, told Ms. Hernandez she was being suspended for making the “not white enough” comment. Ms. Hernandez asked Ms. Norton why she was being suspended for her comment when a non-Latina co-worker, Barbara, was not disciplined for making a remark Ms. Hernandez had complained at the time was racist and offensive to Mexicans. Id. at 317, 303–02. Ms. Hernandez told Ms. Norton about the racist jokes and comments that Mr. Lillis and Mr. Stillahn often made. Id.

That same day, Ms. Norton sent an email to Valley View's Administrative Director of Human Resources, Daniel Biggs, stating that Mr. Lillis and Mr. Tapia wanted to fire Ms. Hernandez because they “didn't want that type of person working here.” Id. at 573. She told Mr. Biggs that she agreed Ms. Hernandez should be fired and told Mr. Lillis he first had to “get his ducks in a row' and write [Ms. Hernandez] up for job performance issues.” Id. Ms. Norton further stated she would pull Ms. Hernandez's personnel file to see if there were other write-ups. Id. at 574.

Ms. Hernandez met with Mr. Lillis and Mr. Biggs on July 30, 2007, and asked to be reassigned to any other position at Valley View outside of food services because she did not feel safe working in the kitchen given how angry Mr. Stillahn had been. Id. at 247–48. Mr. Biggs denied her transfer request but offered her leave under the Family and Medical Leave Act (FMLA) until October 15, 2007, which Ms. Hernandez accepted.

Mr. Biggs met with Ms. Hernandez on October 12, 2007, to discuss “performance concerns raised with [Ms. Hernandez] but never formally documented.” Id. at 572. Ms. Hernandez again requested a transfer to any position at Valley View other than food services, which Mr. Biggs denied. When Ms. Hernandez failed to return to work by October 18, 2007, Mr. Biggs terminated her employment.

B. Procedural History

After exhausting her administrative remedies and obtaining a notice of right to sue from the Equal Employment Opportunity Commission (EEOC), Ms. Hernandez filed a complaint against Valley View claiming racial and national origin discrimination based on a hostile work environment and constructive discharge. In an amended complaint, she claimed retaliation.

Valley View moved for summary judgment. Ms. Hernandez submitted an affidavit from herself and one from a Latina co-worker, Raquel Nunez. In her affidavit, Ms. Hernandez gave another example of a racial joke, stating Mr. Lillis asked, [d]o you know why blacks and Latino[s] never get married? ... Well, blacks are lazy, and Latinos steal. So if they got married, a black Latino would be too lazy to steal.” Id. at 552. She also stated that Mr. Stillahn and Mr. Lillis referred to a black cook using a racial epithet. Id. It is unclear from Ms. Hernandez's affidavit if she heard the latter reference or if she was relying on Ms. Nunez's affidavit.

Ms. Nunez stated in her affidavit that Mr. Lillis called the black cook a racial epithet, made fun of him, and excluded him from meetings. Id. at 563. Ms. Nunez stated that Mr. Lillis often questioned Latino workers if they had paid for their bottled drinks but never questioned white employees. Id. at 563–64.3

The district court granted summary judgment for Valley View on Ms. Hernandez's hostile working environment claim. It characterized Ms. Hernandez's evidence as only “a handful of racially insensitive jokes and comments over a period of more than three years,” which, “while not laudable,” would not support a racial or national origin hostile work environment claim. Aplt. App. at 613. It held the evidence demonstrated that Ms. Hernandez's supervisors were “boorish, infantile, and unprofessional,” but ruled that she failed to present evidence of a ‘steady barrage of opprobrious racial comments.’ Id. (quoting Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir.1994) (holding that a plaintiff does not make a sufficient showing of a pervasively hostile work environment with a few isolated incidents, but must show “a steady barrage of opprobrious racial comments”) (internal quotation marks omitted)). The district court stated Ms. Hernandez provided “few specifics” to support her allegations of insensitive jokes and disparate treatment, noting it was unclear if the jokes or...

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