Reyes v. Pharma Chemie, Inc.
| Decision Date | 11 September 2012 |
| Docket Number | No. 8:11CV228.,8:11CV228. |
| Citation | 890 F.Supp.2d 1147 |
| Parties | Rocio REYES, Plaintiff, v. PHARMA CHEMIE, INC., a Nebraska Corporation, Defendant. |
| Court | U.S. District Court — District of Nebraska |
OPINION TEXT STARTS HERE
Held Invalid
Rocio Reyes, Aaron F. Smeall, Smith, Gardner Law Firm, Omaha, NE, for Plaintiff.
Gregory H. Perry, Jeanette L. Stull, Perry, Guthery Law Firm, Lincoln, NE, for Defendant.
This matter is before the Court on the motion for summary judgment (filing 24) filed by defendant Pharma Chemie, Inc. (PCI). The Court has considered the parties' briefs (26, 47, and 53) and indexes of evidence (25 and 48). For the reasons discussed below, the Court finds that PCI's motion should be granted and judgment entered accordingly.
The following facts are those stated in the parties' briefs that are supported by the record, that the parties have admitted, or that the parties have not properly resisted. See, NECivR 56.1(b)(1); Fed.R.Civ.P. 56(c)(1)(A) and (e)(2). Unless otherwise noted, the following facts are undisputed for purposes of the pending motion for summary judgment.1
PCI produced nutritional supplements, animal health products, and “flavor base systems” that other companies use to make their products more palatable. Filing 25–1 at ¶ 1. PCI's owner and president was Mark Pieloch. Filing 25–1 at ¶ 2. The company was small: as of January 2010, it had 40 employees, including Pieloch. Filing 48–4 at 40. By April 30, 2010, that number had dropped to 29. Filing 48–4 at 45.
Plaintiff Rocio Reyes began working for PCI as a temporary contract employee in March 2008. Filing 25–1 at ¶ 3. In July 2008, she was hired directly by PCI to a permanent part-time position as a product packaging technician. Filing 25–1 at ¶ 3. Reyes' immediate supervisor was Jeanette Rivera, who was supervised in turn by Brad Sears. Filing 25–2 at ¶ 1. Rivera and Reyes were friends before Reyes began working at PCI, and Rivera recommended that PCI hire Reyes. Filing 25–2 at ¶ 10.
Reyes often worked together with Monica Cortez. Filing 25–1 at ¶ 5. Both women were fluent in Spanish and would talk with one another in Spanish while working. Filing 25–1 at ¶ 5. Cortez and Reyes were also the only Hispanic employees of PCI. Filing 48–4 at 44–45. While Reyes' first language was Spanish, she spoke some English. Filing 25–1 at ¶ 4. Her level of fluency is disputed. PCI asserts that Reyes is “bilingual.” Filing 25–1 at ¶ 4. Reyes stated she did not speak much English, and that is why she and Cortez almost always conversed in Spanish. Filing 48–4 at 19. When she was being interviewed for the position, Reyes was given a paper to read that was written in English, and had trouble reading it. Filing 48–4 at 19. However, Reyes also stated that she enjoyed talking to Rivera, who did not speak Spanish, and that she did so often. Filing 48–4 at 19; filing 25–2 at ¶ 4. Reyes' coworkers in the packaging department did not speak Spanish, nor did any of the packaging supervisors. Filing 25–2 at ¶ 4; filing 25–1 at ¶ 10.
According to Pieloch and Rivera, Reyes and Cortez's use of Spanish was problematic, because PCI's packaging operations required clear communication among employees and supervisors. Filing 25–1 at ¶ 10; filing 25–2 at ¶ 4. Reyes' job description stated that she was responsible for reading batch records and performing work as assigned by her supervisor, attaching appropriate labels to products and packing them into the correct cases, tracking production schedules, notifying her supervisor of mechanical or material issues, placing the finished goods on the designated pallet, attaching appropriate shipping documentation to the pallet, signing batch records, and calculating yield figures. Filing 25–1 at 11–12. The position also required the ability to read, write, and communicate in English, and to read and understand batch records and written instructions. Filing 25–1 at 13. Accuracy was important, because PCI shipped its customers fully-finished products that had to be correctly bottled and labeled for use or resale. Filing 25–1 at ¶ 1.
In early 2010, Rivera expressed concerns to Pieloch and Sears about Reyes and Cortez “constantly speaking Spanish during work activities.” Filing 25–2 at ¶ 2; filing 25–1 at 5. Rivera averred that when a supervisor would give Reyes and Cortez directions in English, they would not respond to the supervisor, but would commence speaking to one another in Spanish. Filing 25–2 at ¶ 2; filing 25–1 at ¶ 5. This left the supervisors uncertain if their directions had been understood. Filing 25–2 at ¶ 2; filing 25–1 at ¶ 5.
On February 11, 2010, Pieloch met with Reyes and Cortez to discuss their use of Spanish in the workplace. Filing 25–1 at ¶ 11. Precisely what Pieloch said at this meeting is disputed. Pieloch averred that he told Reyes and Cortez that they needed to speak English while working, in order to prevent packaging mistakes and facilitate relations with coworkers and supervisors. Filing 25–1 at ¶ 11. According to Pieloch, Reyes and Cortez said they could speak Spanish whenever they wanted, and if he did not like it, he could fire them, but they would not quit their jobs and they would continue to speak Spanish while working. Filing 25–1 at ¶ 11. Pieloch stated that he told them he would not fire them, but that he would seek the assistance of an attorney. Filing 25–1 at ¶ 12. According to Reyes, Pieloch told her and Cortez that he could fire them for speaking Spanish. Filing 48–4 at 3. Reyes also stated that Pieloch said the reason they could not speak Spanish was because their conversations bothered the other workers, who thought Reyes and Cortez were talking about them. Filing 48–4 at 3, 19.
On February 17, 2010, Rivera completed a performance evaluation of Reyes, as part of a broader review of PCI's packaging technicians. Filing 25–1 at ¶ 17, pp. 134–35; filing 25–2 at ¶ 7. Reyes had been on a leave of absence from May to December 2009. Filing 25–2 at ¶ 7. Work operations had changed during that time, and Reyes had some difficulty adapting. Filing 25–2 at ¶ 7. In the evaluation, Rivera noted under “Interpersonal Relationships” that Reyes “had a rough start with some of the people and it has led her to become quiet and that is leading to her productivity being low.” Filing 25–1 at 135. Reyes, along with two other non-Hispanic employees received “below average” performance evaluations. Filing 25–2 at ¶ 7; filing 25–1 at 134–35. On a scale of 1 to 5, this was a 2, with 1 being “unsatisfactory” and 5 being “excellent.” Filing 25–1 at 134–35. Following the evaluations, Rivera spent extra time with all three employees, observing them and trying to help them improve their performance. Filing 25–1 at ¶ 17; filing 25–2 at ¶ 7. Rivera also made herself available to help Reyes. Filing 25–2 at ¶¶ 8–9.
On March 4, 2010, PCI adopted a policy entitled “Language While Performing Work”. Filing 25–1 at ¶ 6, p. 14. The policy provided, in full:
Pharma Chemie requires all employees to speak English while performing work to promote efficiency, safety, and monitoring of the workplace by supervisors and others who speak English.
Employees are required to speak English while performing work when other employees are present. Exceptions are made for situations where speaking a language other than English does not affect efficiency, safety, or the monitoring of work by supervisors:
• If two or more employees are working in an area and all of the employees have a good ability to communicate in a language other than English, and no other employees are in the area, the employees may communicate in the non-English language that they all understand.
• If a customer, vendor, or other person not employed by Pharma Chemie addresses an employee using a language other than English or otherwise indicates a preference for communicating in that language, the employee can respond in that language, if capable of doing so, provided such does not affect efficiency, safety, or the monitoring of work by supervisors.
• The use of words or phrases from languages other than English that are commonly known to English speakers (!Hola!, Salut, Guten Tag) or other uses of words from languages other than English that do not interfere with work communications is not prohibited.
Employees are not required to speak English when not performing work. For instance, the requirement does not apply during work breaks, lunch breaks, personal calls, or any other personal time or activity.
Violations of the language policy may result in disciplinary action, up to and including termination. Inadvertent or isolated violations of the language policy may be addressed by a reminder. Intentional and repeated violations will be considered insubordination.
Filing 25–1 at ¶ 8, p. 41. The policy applied to all PCI employees. Filing 25–1 at ¶ 8. Reyes signed a form acknowledging she had received notice of the new policy on March 25, 2010. Filing 25–1 at ¶ 6, p. 14. She also wrote on the signature page that she did not agree with the new policy. Filing 25–1 at 14.
Pieloch averred that the language policy was “justified by business necessity.” Filing 25–1 at ¶ 9. Pieloch and Rivera explained that in early 2010, employees in the packaging line were making too many mistakes. Filing 25–1 at ¶ 9; filing 25–2 at ¶ 3. For example, products were being shipped without caps and employees were retrieving the wrong lids and labels for products. Filing 25–1 at ¶ 9; filing 25–2 at ¶ 3. According to Pieloch, the policy was principally adopted in response to these mistakes, but also in order to improve efficiency, quality, safety,2 and the ability of supervisors to monitor employees. Filing 25–1 at ¶ 9. PCI management determined that “communications on the packaging line needed to be in a language all employees and their supervisors understood in...
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