Gamez v. Country Cottage Care & Rehab.

• Citation: 377 F.Supp.2d 1103
• Decision Date: 28 February 2005
• Docket Number: No. CIV. 04-719 JB/WCS.,CIV. 04-719 JB/WCS.
• Court: U.S. District Court — District of New Mexico
• Parties: Maria R. GAMEZ, Plaintiff, v. COUNTRY COTTAGE CARE & REHAB., Defendant.

377 F.Supp.2d 1103

Maria R. GAMEZ, Plaintiff, v. COUNTRY COTTAGE CARE & REHAB., Defendant.

No. CIV. 04-719 JB/WCS.

United States District Court, D. New Mexico.

February 28, 2005.

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Maria R. Gamez, Hobbs, Plaintiff pro se.

Duane C. Gilkey, Carol Dominguez Shay, Gilkey and Stephenson, P.A., Albuquerque, for the Defendant.

MEMORANDUM OPINION AND ORDER

BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant Silverstone Healthcare of Hobbs, L.L.C. d/b/a Country Cottage Care and Rehab.'s Motion for Summary Judgment and Memorandum in Support of Motion for Summary Judgment, filed on January 14, 2005 (Docs. 22 & 23). The pro se Plaintiff, Maria R. Gamez, did not file a response to the motion. The Court held a hearing on this motion on February 18, 2005. Gamez did not appear in person or telephonically for the February 18th hearing. The Court took the motion under advisement and did not rule at that time. Gamez still did not respond or attempt to contact the Court about this motion. The pretrial conference is set for today, February 28, 2005; the Court therefore needs to rule on this pending motion. The Court, after reviewing Silverstone's¹ briefing and relevant caselaw, concludes that Silverstone is entitled to summary judgment on the federal claims. Having dismissed all claims on which the Court has original jurisdiction,² the Court will remand all remaining claims — all of which sound in state law — to the Fifth Judicial District, County of Lea, State of New Mexico.

FACTS³

1. Reduction in Hours.

Country Cottage is a fifty-five bed nursing home located in Hobbs, New Mexico. See Operations Transfer Agreement, § I, at 1. Since September, 1993, Gamez has worked at Country Cottage as a housekeeper, see Deposition of Maria R. Gamez at 10:12-14; id. at 14:18-19 (taken November 17, 2004) (hereinafter, "Gamez Depo."), in the maintenance department.⁴ Gamez is still employed in this position.⁵ See Gamez Depo. at 10:12-14; Initial Pretrial Report ("IPTR"), ¶ 2, at 2, filed on August 4, 2004 (Doc. 8)("Stipulations").

At the time Gamez began working at Country Cottage, Silverstone alleges that Horizon Healthcare leased and operated the facility. See Gamez Depo. at 14:3-17; Affidavit of Ernest A. Schofield ¶ 2, at 1 (executed January 13, 2005) (hereinafter, "Schofield Aff."); Application for Employment at 1 (indicating Gamez applied to the Horizon Healthcare Corporation).⁶ Silverstone contends that several different entities leased and operated Country Cottage during Gamez' employment. See Schofield Aff. ¶ 3, at 1. In January, 2003, BNMHC I, L.L.C. ("BNMHC") leased and operated Country Cottage. See id.⁷

In January, 2003, the number of patients at Country Cottage declined, causing revenues to decrease. See White Aff. ¶ 2, at 1; Lozano Aff. ¶ 3, at 1. Because of the decreased revenue, BNMHC management decided that it was necessary to reduce expenses, including payroll expenses that the housekeeping, maintenance, dietary, and nursing departments incurred. See White Aff. ¶ 2, at 1; Lozano Aff. ¶ 3, at 1. Thus, management reduced the number of hours allocated to housekeepers.⁸ See White Aff. ¶ 2, at 1; Lozano Aff. ¶ 3, at 1.

Gamez — in January, 2003 — was working an average of twenty-eight hours per week⁹ — six hour shifts of four days on and two days off. See White Aff. ¶ 4, at 1-2; Lozano Aff. ¶ 4, at 1-2; Payroll Records of Rosa Gamez at 1 ("Payroll Records").¹⁰ On February 9, 2003, management reduced her shifts to five hour shifts, but the number of days Gamez worked remained the same. See White Aff. ¶ 5, at 2; Lozano Aff. ¶ 5, at 2; Payroll Records at 2-3. Thus, management reduced her average hours per week from twenty-eight hours per week to twenty-four hours per week. See White Aff. ¶ 5, at 2; Lozano Aff. ¶ 5, at 2; Payroll Records at 1-3.

At that time, Country Cottage employed two other housekeepers, and each of the other two housekeepers worked the same number of hours per week as Gamez. See White Aff. ¶ 4, at 1-2; Lozano Aff. ¶ 4, at 1-2. Management reduced the other housekeepers' hours the same amount it had reduced Gamez's hours. See White Aff. ¶ 5, at 2; Lozano Aff. ¶ 5, at 2. BNMHC did not hire additional employees to assume these reduced hours. See White Aff. ¶ 5, at 2; Lozano Aff. ¶ 5, at 2. Manuel Lozano, Gamez' supervisor and the person in charge of the housekeepers' schedules, see Lozano Aff. ¶¶ 2, 4, at 1-2; Gamez Depo. at 9:1-2; id. at 15:7-23, explained to Gamez that the reason management was reducing her hours was because there were fewer residents in the facility. See Lozano Aff. ¶ 5, at 2; Gamez Depo. at 50:10-13.

Silverstone alleges that BNMHC's group health care plan, Ballantrae Healthcare, L.L.C., defined an employee as "[a] regularly assigned, full-time Employee of the Company scheduled to work 32 or more hours per week."¹¹ Ballantrae Healthcare, L.L.C. Summary Plan Description at 29 (effective March 1, 2003). The Ballantrae Healthcare plan that BNMHC offered, however, is effective March 1, 2003; there is no evidence in the record indicating the health care benefit plan available on or before February, 2003.

2. Successor Liability.

On August 1, 2003, Silverstone began leasing and operating Country Cottage from BNMHC. See Schofield Aff. ¶ 4, at 1; Operations Transfer Agreement, Art. 1, § 1.1, at 1.¹² On that same date, Silverstone entered into a contract with Peak Medical NM Management Services ("Peak Management") whereby Peak Management would provide facility management services to Silverstone for Country Cottage's operation. See Schofield Aff. ¶ 4, at 1-2. Thus, in August, 2003, Silverstone became Gamez' employer. See IPTR ¶ 2, at 2 ("Stipulations").

The transfer agreement between Silverstone and BNMHC includes a contract provision which states that Silverstone does not assume BNMHC's preexisting liabilities. See Operations Transfer Agreement, Art. 2, § 2.18, at 6; Schofield Aff. ¶ 6, at 2. The transfer agreement provides: "Other than as specifically set forth herein, [Silverstone] shall not assume and shall not be liable for any debts, liabilities or obligations of [BNMHC] including, but not limited to, any... (b) liabilities or obligations of [BNMHC] with respect to any acts, events or transactions occurring prior to, on or after the Closing Date." Operations Transfer Agreement, § 2.18, at 6. Silverstone contends that neither Peak Management nor its parent company, Peak Medical Corporation ("Peak Medical"), assumed liability for any of BNMHC's acts or omissions. See Schofield Aff. ¶ 6, at 2. When Silverstone began operating Country Cottage on August 1, 2003, neither Silverstone or Peak Management had knowledge of Gamez' EEOC Charge against Country Cottage for discrimination or of Gamez' potential claim against Country Cottage for breach of contract. See id. ¶ 5, at 2.

Silverstone, when it began operating Country Cottage in August, 2003, increased each of the housekeepers' — including Gamez' — hours. See Gamez Depo. at 18:20 — 19:11; White Aff. ¶ 6, at 2; Lozano Aff. ¶ 6, at 2; Payroll Records at 4. Silverstone increased Gamez' hours from an average of twenty-four hours per week to an average of approximately twenty-eight hours per week. See Gamez Depo. at 19:9-11; White Aff. ¶ 6, at 2; Lozano Aff. ¶ 6, at 2; Payroll Records at 4.

Silverstone's Healthcare Benefit Plan, which went into effect August 1, 2003, states that, to be eligible for the plan, the employee must be "regularly scheduled to work at least 30 hours per week[.]" Silverstone Healthcare, Inc. Benefit Plan, Plan Document, at 2 (effective August 1, 2003).¹³ In her deposition, Gamez was shown this excerpt from Silverstone's benefit plan, and then asked if she worked thirty hours a week, to which she responded that she did not. See Gamez Depo. at 32:11-16.

3. Age, Race, and National Origin Discrimination.

Gamez is originally from Mexico, but is a resident alien in the United States. See Gamez Depo. at 16:5-10. At the time of her deposition, in November, 2004, Gamez was fifty-nine years old. See id. at 9:10-11.

The Silverstone Employee Handbook states: "This Handbook and any Handbook Supplements are not an employment contract and are not intended to guarantee ... any specific terms or benefits of employment.... No member of the Company's management staff has the authority to make oral or written promises of employment that are inconsistent with the policy of at-will employment." Silverstone Healthcare Employee Handbook at 1 (effective September 1, 2003). The Handbook also states that the employee's "work schedule generally will be determined by [the employee's] supervisor or Department Head." Id. at 11. Gamez has no reason to believe that anyone other than Lozano determines her work schedule.¹⁴ See Gamez Depo. at 30:20-22. Lozano is Hispanic and over forty-years old. See Lozano Aff. ¶ 2, at 1. Gamez conceded that Lozano is not prejudiced against Hispanics or older people. See Gamez Depo. at 30:23 — 31:2.

Gamez alleges that, in 2000, when Gamez told a supervisor, "Tammy,"¹⁵ that a buffer was broken, Tammy said: "Shut your mouth, do your work, or else I'm going to call immigration to come get you." Id. at 19:25 — 20:8. Gamez reported this comment to the administrator, Antonieta Sanchez. See id. at 20:9-12. In response, Sanchez held a meeting with Tammy, Gamez, and one of the residents. See id. at 20:14-17. According to Gamez, Tammy said "that she would never tell [Gamez] that again." Id. at 20:18-20. Gamez also testified that another incident occurred in which Tammy said to Gamez: "I'm sorry but you speak really bad English." Id. at 21:1-2.¹⁶ Gamez, however, admitted that Tammy is not responsible for scheduling her hours. See id. at 42:15-16. Gamez also conceded that Tammy left the company in 2002. See id. at 42:19-20. When asked if there was any other evidence other than these conversations that Gamez had to support her...