Gluhic v. Safeway, Inc.
Filing
30
ORDER granting 18 Motion for Summary Judgment by Judge Christine M. Arguello on 3/28/13.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 11-cv-02408-CMA-KMT
SENAD GLUHIC,
Plaintiff,
v.
SAFEWAY, INC.,
Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant Safeway Inc.’s (“Safeway”)
Motion for Summary Judgment. (Doc. # 18.) Pursuant to his Complaint (Doc.
# 1), Plaintiff Senad Gluhic (“Mr. Gluhic”) brings five claims for relief under Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., and
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112. Mr. Gluhic also
brings a sixth state law claim for wrongful discharge in violation of public policy.
Jurisdiction is proper under 28 U.S.C. § 1331.
I. BACKGROUND
The following facts are undisputed, unless otherwise noted. 1 The Court
will elaborate, as needed, in its analysis section.
1
As Safeway correctly observes, Mr. Gluhic’s Response does not comply with this
Court’s Practice Standards. Specifically, any party opposing a motion for summary
judgment is required to provide a section:
Mr. Gluhic, a Muslim man originally from Bosnia, was hired by Safeway’s
Denver Bread Plant (“Bread Plant”) on April 11, 2007. (Doc. # 18 at 2; Doc. # 24
at 2.) Mr. Gluhic has a speech impediment caused by a brain tumor and is
unable to speak English well. (Doc. # 24 at 2.) On December 2, 2007, Mr.
Gluhic became a full-time Checker/Loader in the Bread Plant’s Shipping
Department.
While employed at the Bread Plant, Mr. Gluhic received a booklet
concerning policies and rules relating to the Bread Plant, including the Plant
Rules, Safeway’s Good Manufacturing Practices, and Safeway’s Harassment
Policy. 2 (Doc. # 18 at 2-3.) The Plant Rules describe different actions and
behaviors that “are detrimental to the general operations of the plant for which an
employee may be subject to disciplinary action up to and including termination.”
The prohibited actions and behaviors include the “[f]ailure to cooperate in
maintaining sanitary conditions on Company property” or “[t]hreatening in any
way . . . the person or property of any other individual.” (Doc. # 18-3 at 2-3.)
admitting or denying the asserted material facts set forth by the movant.
The admission or denial shall be made in paragraphs numbered to
correspond to movant’s paragraph numbering. Any denial shall be
accompanied by a brief factual explanation of the reason(s) for the denial
and a specific reference to material in the record which establishes that
fact.
CMA Civ. Practice Standards III.G.5. Instead of following this required format, Mr.
Gluhic’s Response contains numerous “disputes” that are not supported by specific
reference to evidence in the record. Moreover, Mr. Gluhic’s disputes do not correspond
to Safeway’s paragraph numbering, which makes it difficult for the Court to review what
facts are actually in dispute. The Court’s Practice Standards are not optional but
mandatory. Thus, the Court will not consider any facts alleged by Mr. Gluhic that are not
supported by citation to specific evidence found in the record.
2
Mr. Gluhic disputes that he received these documents, but does not provide any
evidence in support of this contention. Further, he testified at his deposition that he had
signed for and received these documents. (Doc. # 25-1 at 25:1-8, 25:19-26:1, 26:9-17.)
2
The Good Manufacturing Practices form expressly states that “[s]pitting is
not allowed in the general plant or processing areas.” (Id. at 8.) Safeway’s
Harassment Policy prohibits harassment and instructs employees that have seen
or experienced any form of harassment or inappropriate conduct to “immediately
report the situation” to a manager, supervisor, human resources representative,
or a toll-free hotline. (Id. at 10.)
During his tenure at the Bread Plant, Mr. Gluhic reported several incidents
to Shipping Supervisor Pat Jones concerning derogatory comments or conduct
by Mr. Gluhic’s co-workers. The first incident occurred in November of 2008
when Mr. Gluhic was pushed by an anonymous employee and fell to the floor.
That employee was fired approximately three hours after Mr. Gluhic reported
the incident to Mr. Jones. (Doc. # 18-2 at 11:19-23.) Also in November of 2008,
Mr. Gluhic and one of his co-workers, Min Oo, had an altercation outside of the
Bread Plant where Mr. Oo “start[ed] insulting [Mr. Gluhic] again regards to [his]
race, as well, he start spitting out the window.” 3 (Id. at 14:5-10.). Mr. Gluhic
reported the incident to Mr. Jones. According to Mr. Gluhic:
I said Min in the streets, and then I was using my hands to gesture
to the spitting, and then [Mr. Jones] gave me a couple options,
couple of words because he was trying to help me to remember the
words that I wanted to say. And when he said spitting, then I said
yes.
(Id. at 15:6-11.)
3
Mr. Gluhic is not a native English speaker and, by his own admission, “doesn’t speak
English well.” (Doc. # 24 at 2.) Thus, many of the quotes taken from Mr. Gluhic’s
deposition contain grammatical errors. In the interest of precision, the Court will quote
Mr. Gluhic with minimal alteration.
3
Another time in late 2008, Mr. Gluhic complained to Mr. Jones that Mr. Oo
was “swearing on my mother every day and on my religion.” (Id. at 12:11-16.)
Mr. Jones then spoke with Mr. Oo and gave him a “last reminder” concerning his
behavior. Sometime in 2009, Mr. Gluhic complained to Mr. Jones that Mr. Oo
screamed “[m]otherf****r Muslim” at him. (Id. at 17:17-21.) Although Mr. Gluhic
did not know whether Mr. Jones spoke with Mr. Oo after this incident, roughly
one or two hours later, Mr. Jones visited the work area “to check in on
[Mr. Gluhic’s] workplace to see if everything is okay.” (Id. at 19:3-8.)
In November or December of 2009, Mr. Gluhic reported to Mr. Jones that
co-worker Mario Espinoza had called him a “mother****r Muslim” and stated
“Muslim is a terrorist and Bosnia people is terrorist.” (Id. at 20:22-25.) Mr. Jones
told Mr. Gluhic that he would speak with Mr. Espinoza and that his comments
would never be repeated. Mr. Gluhic testified, however, that Mr. Espinoza made
similar comments the next day. (Id. at 21:1-5.)
Mr. Gluhic’s final complaint to Mr. Jones occurred in January of 2010,
regarding comments made by his co-worker, Brook Asfaw, who is from Africa.
(Id. at 21:14-25.) At the time, Mr. Gluhic was frequently visiting a doctor and was
having his blood drawn. (Id. at 22:7-13.) Mr. Gluhic reported to Mr. Jones that
Mr. Asfaw had “told me I am use drugs and he say I am old too.” (Id. at 23:6-10.)
At approximately 10:30 p.m. on March 4, 2010, Mr. Asfaw complained to
Production Supervisor Allen Gebers that Mr. Gluhic had cursed at him and spat
in his face. (Doc. # 18-1 at 5.) Mr. Gebers interviewed Mr. Gluhic, who said that
Mr. Asfaw had been cursing first and that he had only returned the same
4
treatment. Mr. Asfaw denied starting the altercation. (Id.) Mr. Gebers sent both
employees home, and reported the issue via email message to Plant
Superintendent Nathan Smith. (Id.) During the next week, Mr. Smith
investigated Mr. Asfaw’s complaint by interviewing several Bread Plant
employees and reviewing written statements by employees. (Id., ¶ 6.) Ruben
Rodriguez, who worked with both Mr. Asfaw and Mr. Gluhic, told Mr. Smith that
Mr. Gluhic had made several negative comments to Mr. Asfaw regarding Africa
over the days preceding the March 4, 2010 incident. (Id., ¶ 10.) Mr. Oo also told
Mr. Smith that Mr. Gluhic had made derogatory comments to Mr. Asfaw
regarding Africa, and said that, while he did not see Mr. Gluhic spit on Mr. Asfaw,
he later saw the spit on Mr. Asfaw’s face. (Id., ¶ 11.)
Mr. Smith also interviewed Mr. Gluhic, who “admitted to spitting at
Mr. Asfaw while on the shipping floor but claimed Mr. Asfaw had spit at him first.”
(Id., ¶ 7.) Mr. Asfaw told Mr. Smith that Mr. Gluhic had started the incident
by calling him a “bitch” and making comments regarding Mr. Asfaw’s father.
Mr. Asfaw said that Mr. Gluhic had spat on him when he asked him to stop
making such comments, but denied ever having spit at Mr. Gluhic. (Id., ¶ 8.)
Based on his investigation, Mr. Smith made the decision to terminate
Mr. Gluhic’s employment with Safeway because Mr. Gluhic had admitted to
spitting on Mr. Asfaw on the shipping floor. (Id., ¶ 12.) Mr. Asfaw was
suspended without pay for three days for approaching Mr. Gluhic to ask him to
stop his insults as opposed to reporting the issue to his supervisor. (Id., ¶ 13.)
However, Mr. Asfaw was not terminated, as the only evidence supporting
5
Mr. Gluhic’s claim that Mr. Asfaw had spit at him was Mr. Gluhic’s own belated
allegation, which Mr. Asfaw denied. (Id.)
Mr. Gluhic initiated this civil action by filing his Complaint on September
13, 2011. (Doc. # 1.) Safeway filed the instant Motion for Summary Judgment
on August 16, 2012. (Doc. # 18.) Mr. Gluhic responded on September 26, 2012,
and Safeway replied on October 9, 2012. (Doc. ## 24, 25.)
II. STANDARD OF REVIEW
Summary judgment is appropriate if the moving party demonstrates that
there is Ano genuine dispute as to any material fact@ and that it is Aentitled to a
judgment as a matter of law.@ Fed. R. Civ. P. 56(a). In applying this standard,
the Court views the evidence and all reasonable inferences therefrom in the light
most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d
664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)). A fact is Amaterial@ if, under the applicable
substantive law, it is Aessential to the proper disposition of the claim.@ Id. (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute of fact is
Agenuine@ if Athere is sufficient evidence on each side so that a rational trier of
fact could resolve the issue either way.@ Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a
genuine issue of material fact and entitlement to judgment as a matter of law. Id.
at 670-71. In attempting to meet that standard, a movant who does not bear the
ultimate burden of persuasion at trial does not need to disprove the other party's
claim; rather, the movant need simply point out to the court a lack of evidence for
6
the other party on an essential element of that party's claim. Id. at 671 (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the
nonmoving party to Aset forth specific facts showing that there is a genuine issue
for trial.@ Anderson, 477 U.S. at 256. The nonmoving party may not simply rest
upon its pleadings to satisfy its burden. Id. Rather, the nonmoving party must
Aset forth specific facts that would be admissible in evidence in the event of trial
from which a rational trier of fact could find for the nonmovant.@ Adler, 144 F.3d
at 671. ATo accomplish this, the facts must be identified by reference to
affidavits, deposition transcripts, or specific exhibits incorporated therein.@ Id.
Finally, the Court notes that summary judgment is not a Adisfavored
procedural shortcut@; rather, it is an important procedure Adesigned >to secure the
just, speedy and inexpensive determination of every action.=@ Celotex, 477 U.S.
at 327 (quoting Fed. R. Civ. P. 1).
III. ANALYSIS
A.
NATIONAL ORIGIN AND RELIGIOUS DISCRIMINATION CLAIMS
Mr. Gluhic alleges that he was discriminated against on the basis of his
national origin and religion. (Doc. # 1, ¶¶ 60-67.) Because Mr. Gluhic attempts
to prove these two discrimination claims through circumstantial evidence, the
Court applies the familiar McDonnell Douglas burden-shifting analysis. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Khalik v. United Air
Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).
7
Under the McDonnell Douglas framework, Mr. Gluhic must first establish
a prima facie case of national origin or religious discrimination by Safeway.
See Khalik, 671 F.3d at 1192. If Mr. Gluhic can do so, the burden shifts to
Safeway to articulate a legitimate non-discriminatory reason for the adverse
employment action. Id. If Safeway articulates such a reason, the burden shifts
back to Mr. Gluhic to demonstrate that Safeway’s proffered reason is pretextual.
Id.
To establish a prima facie unlawful discharge case, Mr. Gluhic must
establish that: (1) he belongs to a protected class, (2) he was qualified to perform
his job, (3) he was terminated, and (4) the circumstances surrounding his
termination gave rise to an inference of discrimination. Baltazar v. Shinseki, 485
F. App’x 941, 946 (10th Cir. 2012). Safeway concedes that Mr. Gluhic meets the
first and third elements of his prima facie burden for both claims, but contends
that he fails to satisfy the second and fourth elements. Although the Court finds
that there are disputed issues of material fact with regard to the second element,
the Court agrees with Safeway that Mr. Gluhic fails to present sufficient evidence
that the circumstances surrounding his termination give rise to an inference of
discrimination. 4
4
The Tenth Circuit has observed that the fourth element of the prima facie burden
applicable in cases such as this one involves an inquiry similar to the one concerning
a plaintiff’s burden of demonstrating pretext. Baltazar, 485 F. App’x at 946. Thus,
Mr. Gluhic’s failure to show that the circumstances surrounding his termination give
rise to an inference of discrimination also means that he cannot show that Safeway’s
legitimate, non-discriminatory reason for terminating him – spitting at Mr. Asfaw – was
pretextual.
8
A plaintiff can establish evidence of the fourth prong in a variety of ways,
“such as ‘actions or remarks made by decisionmakers,’ ‘preferential treatment
given to employees outside the protected class,’ or ‘more generally, upon the
timing or sequence of events leading to plaintiff’s termination.’” Barlow v. C.R.
England, Inc., 703 F.3d 497, 505 (10th Cir. 2012) (quoting Plotke v. White, 405
F.3d 1092, 1101 (10th Cir. 2005)). Safeway maintains that Mr. Gluhic was
terminated because he spat on Mr. Asfaw while at the Bread Plant during their
March 4, 2010 altercation.
In his Response, Mr. Gluhic contends that he has presented evidence of
disparate treatment because Safeway did not fire Mr. Oo for spitting at Mr. Gluhic
in 2008, nor did Safeway fire Mr. Asfaw for spitting on Gluhic in 2010. 5 However,
by Mr. Gluhic’s own admission, Mr. Oo spat at him “in the streets,” outside of the
workplace. (Doc. # 18-1 at 15:6-11.) Thus, unlike Mr. Gluhic, Mr. Oo did not
violate the Good Manufacturing Practices, which expressly states that “[s]pitting
is not allowed in the general plant or processing areas.” (Doc. # 18-3 at 8)
(emphasis added.) Because an outside of work incident is highly dissimilar to
an incident that occurs at the workplace, Mr. Gluhic has not shown that Safeway
treated Mr. Oo differently than him. See Sprague v. Thorn Americas, Inc., 129
F.3d 1355, 1367 (10th Cir. 1997). Further, there is no evidence that Mr. Oo
admitted to spitting on Mr. Gluhic. With regard to Mr. Asfaw, Mr. Gluhic has
presented no evidence, beyond his own belated and self-serving allegation, that
5
Mr. Gluhic conclusorily asserts that “at least three different employees” were not
terminated for violating Safeway’s “supposed ‘zero tolerance’ harassment policy.”
(Doc. # 24 at 10.) Even if true, Mr. Gluhic does not explain how this would provide
an inference that Mr. Gluhic’s termination was discriminatory.
9
Mr. Asfaw spat on Mr. Gluhic on March 4, 2010. In contrast, Mr. Gluhic admitted
to spitting on Mr. Asfaw when he was interviewed immediately after the incident.
(Doc. # 18-2 at 36:2-7.) Thus, Mr. Gluhic was the only employee who admitted
to spitting on a co-worker in the workplace and the fact that neither Mr. Oo nor
Mr. Asfaw was terminated does not provide an inference that Mr. Gluhic’s
termination was discriminatory.
Viewing the evidence in the light most favorable to Mr. Gluhic, a
reasonable factfinder could determine that Mr. Asfaw was responsible for inciting
the altercation that occurred on March 4, 2010. Even if true, the Court does not
sit “as a super personnel department that second guesses employers’ business
judgment.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1233 (10th
Cir. 2000). Thus, “the issue is not whether the decision to terminate [Mr. Gluhic]
was wise, fair or correct, but whether [Safeway] reasonably believed at the time
of the termination that [Mr. Gluhic] had violated company policy, and acted in
good faith upon that belief.” Timmerman v. U.S. Bank, N.A., 483 F.3d 1106,
1120 (10th Cir. 2007). As Safeway argues, Mr. Smith’s rationale for not believing
that Mr. Asfaw had spit on Mr. Gluhic – that Mr. Gluhic did not make such a claim
when he was originally interviewed immediately after the altercation occurred – is
inherently reasonable. Thus, the Court finds that Mr. Gluhic has failed to present
sufficient evidence that Safeway discriminated against Mr. Gluhic on the basis
of his religion or national origin when Safeway fired Mr. Gluhic for spitting on
10
Mr. Asfaw, and summary judgment is appropriate on these discrimination
claims. 6
B.
DISABILITY DISCRIMINATION CLAIM
Mr. Gluhic also alleges that Safeway discriminated against him in violation
of the ADA on the basis of his disability. (Doc. # 1, ¶¶ 76-79.) To establish a
prima facie case of disability discrimination under the ADA, Mr. Gluhic must
establish that: “(1) [he] was a disabled person as defined by the ADA; (2) [he]
was qualified, with or without reasonable accommodation, to perform the
essential functions of [his] job; and (3) [he] was fired because of [his] disability.”
Allen v. SouthCrest Hosp., 455 F. App’x 827, 830 n.2 (10th Cir. 2011). Safeway
contends that Mr. Gluhic has not offered any evidence that he was fired because
of his disability. The Court agrees.
“The third prong of the [prima facie] test requires the plaintiff to present
some affirmative evidence that disability was a determining factor in the
employer’s decision, a burden that is not onerous but also not empty or
perfunctory.” Ainsworth v. Indep. Sch. Dist. No. 3 of Tulsa Ctny., Okla., 232
F. App’x 765, 770 (10th Cir. 2007) (internal quotation marks and citation omitted).
Simply put, Mr. Gluhic has presented no “affirmative evidence” that Safeway
discriminated against him on the basis of his speech impediment. Instead,
Mr. Gluhic argues, without citation to case law, that Safeway was negligent by
6
Mr. Gluhic also relies on a finding from the Colorado Department of Labor that
Mr. Gluhic was not at fault for his termination. Again, the issue is not whether Mr. Gluhic
was actually at fault, but whether Safeway had a good faith belief that Mr. Gluhic violated
company policy. See Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076, 1080 (10th Cir.
1999) (noting that the pertinent question is not whether the employer was right to believe
that the employee engaged in misconduct, but whether the employer’s belief was
genuine and not pretextual).
11
failing to provide him with an interpreter to register his various complaints.
However, the issue is whether Mr. Gluhic’s disability was a determining factor in
Safeway’s decision to terminate his employment. Id. Proving that Safeway was
negligent in some way is not sufficient to show that Safeway discriminated
against Mr. Gluhic in its decision to discharge him from employment. Thus,
summary judgment is appropriate on Mr. Gluhic’s disability discrimination claim.
C.
HOSTILE WORK ENVIRONMENT CLAIM
Next, the Court considers Mr. Gluhic’s claim that Safeway “promoted and
condoned a hostile work environment.” (Doc. # 1, ¶ 73.) In order to bring a
hostile work environment claim, a plaintiff must show “that the workplace is
permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create
an abusive working environment.” Sandoval v. City of Boulder, 388 F.3d 1312,
1327 (10th Cir. 2004) (quotation omitted). “Title VII does not establish a general
civility code for the workplace . . . the run-of-the-mill boorish, juvenile, or
annoying behavior that is not uncommon in American workplaces is not the stuff
of a Title VII hostile work environment claim.” Morris v. City of Colo. Springs, 666
F.3d 654, 663-64 (10th Cir. 2012). The test for a hostile work environment claim
has both objective and subjective components. Id. at 664. Thus, the Court looks
to whether Mr. Gluhic was offended by the work environment as well as whether
a reasonable person would likewise be offended. Id. The Court determines
whether an environment is hostile or abusive by examining “the frequency of
the discriminatory conduct; its severity; whether it is physically threatening or
12
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17,
22-23 (1993).
During his deposition, Mr. Gluhic recounted several incidents that he
claimed were indicative of religious or national origin discrimination. 7 The first
incident occurred in November of 2008 when Mr. Gluhic was pushed by an
anonymous employee. (Doc. # 18-2 at 11:7-12.) Although Mr. Gluhic asserts in
his Response that the anonymous employee was “harassing [Mr.] Gluhic based
on his religion and disability,” Mr. Gluhic fails to present any evidence that
he was pushed because of his religion or disability. (Doc. # 24 at 14.) Thus,
Mr. Gluhic has not shown that this incident of harassment stemmed from any
discriminatory animus. Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994)
(“General harassment if not [discriminatory] is not actionable.”). Moreover,
Safeway took immediate action to address this unacceptable behavior by
terminating the anonymous employee approximately three hours after Mr. Gluhic
reported the incident.
Mr. Gluhic has presented evidence that his co-workers made some
derogatory comments about Mr. Gluhic’s religion and/or his national origin.
Viewing the evidence in the light most favorable to Mr. Gluhic, Mr. Oo called
Mr. Gluhic a “mother****r Muslim” in late 2008 and again in 2009. (Doc. # 18-2
7
Mr. Gluhic also complained to Mr. Jones that Mr. Asfaw accused him of using drugs
and called him old. (Doc. # 18-2 at 23:8-10.) Although Mr. Gluhic may have been
offended by this comment, the Court does not perceive how this comment exhibits
religious, national origin, or disability animus by Mr. Asfaw. Thus, the Court will not
consider this comment in determining whether Mr. Gluhic has presented sufficient
evidence to show that he was subjected to a hostile work environment.
13
at 13:1-9; 18:19-25.) Additionally, Mr. Oo accosted Mr. Gluhic “in the streets”
in November 2008, when Mr. Oo spat at Mr. Gluhic and insulted Mr. Gluhic
with “regard[] to [his] race.” (Id. at 14:5-10.) Mr. Espinoza called Mr. Gluhic
a “mother****r Muslim” and stated “Muslim is a terrorist and Bosnia people is
terrorist” in November or December of 2009. (Id. at 20:1-7; 20:20-25.) And, on
March 4, 2010, Mr. Asfaw also called Mr. Gluhic a “mother****r Muslim” during
their confrontation. (Id. at 33:10-15.)
Although it is regrettable that these incidents may have occurred, “a few
isolated incidents of sporadic slurs” do not make a sufficient showing of a
pervasively hostile work environment. Morris, 666 F.3d at 666 (internal quotation
and citation omitted). “Instead, there must be a steady barrage of opprobrious
comments.” Id. The comments in this case were made sporadically over a
seventeen month period. 8 Further, with the possible exception of the
confrontation between Mr. Oo and Mr. Gluhic, which did not take place in the
work environment, but rather, “in the streets,” none of the alleged offensive
conduct appears to have been physically threatening. Although the severity
and pervasiveness evaluation of a hostile work environment claim is usually a
question of fact, see O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1098
(10th Cir. 1999), summary judgment is appropriate if the complained of behavior
was not sufficiently pervasive to support a hostile work environment claim. See,
e.g., Sprague, 129 F.3d at 1365-66 (concluding that five separate incidents of
8
At one point in his deposition, Mr. Gluhic suggests that Mr. Oo called him a
“motherfucker Muslim” every day. (Doc. # 18-2 at 13:5-6.) However, Mr. Gluhic
also testified that he complained to Mr. Jones “every time” a co-worker made such
comments, but recounted only the specific incidents described above. (Id. at 9:18-19.)
14
allegedly sexually-oriented, offensive comments either directed at the plaintiff or
made in her presence were not sufficiently pervasive to support a hostile work
environment claim); Morris, 666 F.3d at 666 (finding that there was “insufficient
evidence for a jury to find that the alleged harassment was pervasive.”). The
Court finds that Mr. Gluhic has failed to show that the alleged harassment was
pervasive or serious enough to avoid summary judgment on his hostile work
environment claim.
D.
RETALIATION CLAIM
Mr. Gluhic also contends that his termination was in retaliation for
complaining about discrimination to Safeway management. (Doc. # 1, ¶¶ 69-71.)
To establish a prima facie case of retaliation, Mr. Gluhic must show that (1) he
engaged in protected opposition to discrimination; (2) he suffered an adverse
action that a reasonable employee would have found material; and (3) there
is a causal nexus between his opposition and the employer’s adverse action.
Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1181 (10th Cir. 2006). Although
Mr. Gluhic engaged in protected opposition when he voiced complaints to
Mr. Jones, and he suffered an adverse action when he was terminated,
Mr. Gluhic has presented no evidence of any causal connection between his
complaints to Mr. Jones and his termination by Mr. Smith. Further, Mr. Gluhic’s
last complaint to Mr. Jones about racial or national origin discrimination by
Mr. Espinoza occurred in November or December of 2009, well before Mr. Gluhic
was terminated. Thus, he cannot show a causal connection by temporal
proximity alone. See Conroy v. Vilsack, 707 F.3d 1163, 1181 (10th Cir. 2013)
15
(“a three month period, standing alone, is insufficient to establish causation.”).
Even assuming arguendo that Mr. Gluhic can establish a prima facie case of
retaliation, Mr. Gluhic fails to present any evidence that Safeway’s legitimate,
non-discriminatory reason for his termination – his spitting in Mr. Asfaw’s face
at work – was pretextual. (See supra, § III.A.)
E.
PUBLIC POLICY DISCHARGE CLAIM
Lastly, Mr. Gluhic brings a public policy wrongful discharge claim, alleging
that “Colorado law protects employees from retaliatory termination based on that
employee’s exercise of a legal right or duty.” (Doc. # 1, ¶ 109.) Because the
Court has disposed of all claims over which it has original jurisdiction, it declines
to exercise supplemental jurisdiction over Mr. Gluhic’s final state law claim. See
28 U.S.C. § 1367(c)(3) (a federal court may decline to exercise supplemental
jurisdiction when it “has dismissed all claims over which it has original
jurisdiction.”); Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011)
(“When all federal claims have been dismissed, the court may, and usually
should, decline to exercise jurisdiction over any remaining state claims.”).
Because the Court discerns no compelling reason why it should retain jurisdiction
of Mr. Gluhic’s state law claim, the Court declines to exercise supplemental
jurisdiction over Mr. Gluhic’s final state law claim, and thus, dismisses it without
prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.
2006) (dismissals for lack of jurisdiction should be without prejudice because
the court has not reached a disposition on the merits of the underlying claim).
16
IV. CONCLUSION
Based on the foregoing, it is ORDERED that Defendant Safeway’s Motion
for Summary Judgment (Doc. # 18) be GRANTED.
FURTHER ORDERED that Mr. Gluhic’s Public Policy Discharge Claim is
DISMISSED WITHOUT PREJUDICE. All other claims are DISMISSED WITH
PREJUDICE.
DATED: March
28
, 2013
BY THE COURT:
_______________________________
CHRISTINE M. ARGUELLO
United States District Judge
17
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