Velasquez v. Frontier Medical Inc.

Decision Date28 February 2005
Docket NumberNo. CIV 03-1403 JB/ACT.,CIV 03-1403 JB/ACT.
PartiesCorine VELASQUEZ, Plaintiff, v. FRONTIER MEDICAL INC., and Frontier Medical Equipment, Inc., Defendants.
CourtU.S. District Court — District of New Mexico

Gilbert J. Vigil, Christina A. Vigil, Albuquerque, NM, for Plaintiff.

Calvin Hyer, Jr., Michael H. Holt, Spann, Hyer, Hollowwa & Artley, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

BROWNING, District Judge.

THIS MATTER comes before the Court on Defendants' Frontier Medical Inc. and Frontier Medical Equipment, Inc.'s Motion for Summary Judgment, filed November 29, 2004 (Doc. 18). The Court held a hearing on this motion on February 1, 2005. The Court took the motion under advisement and did not rule at that time. The Court, after reviewing the parties' briefing and relevant case law, including the United States Court of Appeals for the Tenth Circuit recent decision in Chavez v. New Mexico, 397 F.3d 826 (10th Cir.2005),1 finds that the Defendants' Frontier Medical, Inc., and Frontier Medical Equipment, Inc. ("Frontier")2 are entitled to summary judgment on their federal claims.3 Having dismissed all claims on which the Court has original jurisdiction, the Court will dismiss all remaining claims — all of which sound in state law — without prejudice.

FACTS4

The Plaintiff, Corine Velasquez, worked as an office assistant and equipment technician for Frontier Medical, Inc. ("Frontier Medical"), and Frontier Medical Equipment, Inc. ("Frontier Medical Equipment"), from October 2, 2001 to October 25, 2002. See Complaint for Damages and Jury Demand ¶¶ 4, 6, at 2 (filed December 9, 2003)(hereinafter "Complaint"); Affidavit of Michael D. Holt ¶ 3, at 1 (executed November 16, 2004)(hereinafter "Holt Aff."). From October 25, 2002 to January 14, 2003, Velasquez worked as an equipment technician for Frontier Medical Equipment. See Complaint ¶¶ 4, 6, at 2 (filed December 9, 2003); Holt Aff. ¶ 3, at 1. Velasquez' supervisors at Frontier Medical and Frontier Medical Equipment were Michael D. Holt, President of Frontier Medical and Frontier Medical Equipment, and Corina Chaves-Sambrano ("Sambrano"), Vice President and Administrative Assistant for Frontier Medical.5 Holt Aff. ¶¶ 1-2, at 1.

1. Sexual and Racial Harassment.

Velasquez alleges that various incidents by several of Frontier's employees and supervisors created a hostile work environment in violation of Title VII. Velasquez contends that, while working at Frontier, she was placed in situations that made her feel "intimidated," "embarrassed," and "degraded." Deposition of Corine Velasquez at 164:23 — 165:2 (hereinafter "Velasquez Depo.").6 In support of this contention, Velasquez offers evidence of comments that two coworkers, Paula Wilkes and Coletta Zamora, made.

As part of her job, Velasquez would travel once or twice a week to meet another employee, Tony Godac. See Complaint ¶ 21, at 5. When Velasquez would let either Wilkes or Zamora know of her destination, Wilkes and Zamora would make comments to suggest that Velasquez and Godac were having a sexual relationship, such as: "If you come back with a ponytail, we'll know what you were doing;" "[Y]ou sure meet Tony a lot. Are you sure nothing is going on?;" and "Are you sure you are exchanging equipment and nothing else?" Id. ¶ 21, at 5; Velasquez Depo. at 156:21 — 157:22.7 Although it does not appear from the record that Holt made any of these comments to Velasquez, Velasquez testified that he would make comments such as: "I don't know what's going on between you and Tony and I don't really care, just keep it out of the office." Velasquez Depo. at 160:2-4.

Velasquez testified that Wilkes and Zamora did not say anything to any other workers about meeting Godac. See id. at 166:4-6. Velasquez complained to her supervisor, Corina Sambrano, about Wilkes and Zamora's comments, and Sambrano responded: "Don't let them get to you." Id. at 189:16. Sambrano also told Velasquez: "I know they didn't like you because you are Chicana." Id. at 189:8-9. Velasquez also testified that Sambrano referred to Wilkes and Zamora as "bitches." Id. at 189:18.8

Velasquez also alleges that Zamora showed her a photograph of "a man that had his penis hanging down to his knees and a woman hugging his leg." Id. at 178:24-25.9 Velasquez contends that Zamora "thought it was going to blow [Velasquez'] mind" because they knew how Holt's jokes embarrassed her. See id. at 178:21-23. According to Velasquez, Wilkes and another coworker, Francis Christian, were also present when Zamora showed her this photograph. See id. at 179:15-19. Velasquez testified that Wilkes said, "Oh, man," and started laughing. Id. at 179:5-7. Velasquez stated that Christian's reaction suggested that she had maybe seen the photo before, and only stated, "Oh, god." Id. at 179:21-24. Velasquez complained about this incident to Sambrano. See id. at 179:21 — 180:13. Sambrano allegedly responded by laughing about it, see id. 180:10, and telling Velasquez that Zamora kept the photograph so she would not "be in such a bad mood," id. at 180:4-5.

In another incident to which Velasquez refers to in support of her claim of sexual discrimination, Velasquez' husband had sent her flowers at work. Id. at 162:2-5. Velasquez testified that Holt stated: "You must be doing something right for your husband to be sending you roses."10 Id. at 162:6-7. In addition, when Godac telephoned the office, Wilkes answered the phone and commented to Godac that the flowers he had sent to Velasquez were beautiful. See id. at 162:8 — 163:2. Velasquez testified that these comments bothered her because it "continued the harassment of ... me and [Godac]." Id. at 163:9-10.

Velasquez alleges that Holt also created a hostile environment by telling sexual jokes. According to Velasquez, Holt would "stand in the office and [tell] dirty jokes." Id. at 166:10-11. Velasquez contends that, because all of the desks were lined up next to each other in the office, she had no choice but to listen to the jokes, although frequently she would walk away. See id. at 166:11-15.

Velasquez asserted at her deposition that Holt got "a kick out of" telling such jokes because he would point out that Velasquez' face would turn red. See id. at 167:12-15.11 He would then laugh and continue telling the joke. See id. Although Velasquez does not provide the Court with evidence indicating how frequently such jokes were told, Velasquez testified that none of the conduct of which she complains occurred on a daily basis. See id. at 181:11-14.12 When asked for an example of the numerous sexual jokes and sexual innuendos, Velasquez recited a joke Holt told at work about a man who, based on a friend's recommendation on how to attract more women, placed a potato in his swimsuit. See id. 167:18-168:12.13 The man, however, placed the potato in the back side of his swimsuit. According to Velasquez, as Holt told this joke, he motioned in front of his genitals to indicate the potato's bulge. See id. Velasquez testified that the other women present during the joke did not appear to be embarrassed. See id. at 168:19-22. Although she never told Holt that any of his jokes were improper or made her embarrassed, see id. at 169:3-8; id. at 172:25 — 173:3; Holt Aff. ¶ 16, at 5, Velasquez asserts that Holt knew she was uncomfortable based on her "actions." Velasquez Depo. at 169:8-10. Velasquez concedes, however, that Holt never made any sexual propositions or advances. See id. at 189:20-23; Holt Aff. ¶ 17, at 5.

Velasquez also alleges that Holt wore "real short, short skin tight shorts." Velasquez Depo. at 342:8-9. Velasquez testified that this made her feel uncomfortable because she sat close to him when he stood at the front counter and "he bulged through his shorts." Id. at 342:21-24. Velasquez conceded, however, that she did not complain to any one about Holt's alleged inappropriate attire. See id. at 342:14-16. Velasquez also admitted that Holt's attire did not prevent her from completing her work. See id. at 342:17-19.14

Another incident occurred when Velasquez answered the phone in the office and the person on the other end asked to speak to his "homosexual lover." Id. at 170:5-6.15 Velasquez testified that she was caught off guard, and was unsure of what to do until Christian explained that it was a doctor, Dr. Siedel, calling for Holt. See id. at 169:20-21; id. at 170:6-7. When Velasquez told Holt what occurred, Holt responded: "Well, haven't you heard, the girls haven't told you? That sexual harassment will not be tolerated, it will be graded[.]" Id. at 170:9-15. Velasquez testified that she "couldn't believe what [she] was hearing out of the boss'[] mouth." Id. at 170:17-18. Velasquez alleges that Holt laughed when she told him about Dr. Siedel's call. See id. at 172:6-15.

Finally, Velasquez testified about a conversation with Sambrano that made her "very uncomfortable." Id. at 164:22. One day, while at the Ruidoso office with Sambrano, see id. at 163:23-24, Sambrano allegedly told Velasquez that she lives in the mountains so that she can walk around naked in her house and that she and her daughter wear G-strings, see id. at 164:1-12. Velasquez claims that Sambrano's comments made her uncomfortable and that Velasquez felt this information was none of her business. See id. at 164:13-15.

Velasquez also offers other evidence which, although in isolation appears gender-neutral, the Court should consider when evaluating the totality of the circumstances of Velasquez' work environment at Frontier. According to Velasquez, one day — although the date this occurred in relation to the other incidents is unclear — Wilkes and Zamora stopped Velasquez in the office and asked her if she stole popcorn from the back. See id. at 303:18 — 306:10. Velasquez contends that she asked "everyone else," and that she was the only one in the office that Wilkes and Zamora accused of stealing the popcorn. See id. at...

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