Ramirez-Cruz v. Chipotle Services, LLC

Filing 130

MEMORANDUM OPINION AND ORDER Adopting 123 Report and Recommendation; denying 43 Plaintiff's Motion for Default Judgment; Motion for Order to exclude testimony; First Motion for Sanctions; Motion for Attorney Fees; denying 69 Plaintiff� 39;s Second Motion for Sanctions. Granting in part and denying in part 94 Defendant's Motion for Summary Judgment; the punitive damages claim in Ramirez-Cruz's Second Amended Complaint 26 is DISMISSED; in all other respects, the Motion is DENIED (Written Opinion). Signed by Judge Ann D. Montgomery on 08/10/2017. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Maria Ramirez-Cruz,
Plaintiff,
v.

MEMORANDUM OPINION
AND ORDER
Civil No. 15-4514 ADM/KMM

Chipotle Services, LLC,
Defendant.
______________________________________________________________________________
Rachel Petersen, Esq., Rachel Petersen Law Office, Minneapolis, MN, and Phillip F. Fishman,
Esq., Phillip Fishman Law Office, Minneapolis, MN, on behalf of Plaintiff.
Brenna L. Wolcott, Esq., and Jacqueline R. Guesno, Esq., Messner Reeves LLP, Denver, CO,
and Kathleen M. Brennan, Esq., McGrann Shea Carnival Straughn & Lamb, Chartered,
Minneapolis, MN, on behalf of Defendant.
Jeffrey R. Mulder, Esq., Bassford Remele, PA, Minneapolis, MN, on behalf of Messner Reeves
LLP, Jacqueline R. Guesno, Esq., and Brenna L. Wolcott, Esq.
_____________________________________________________________________________
I. INTRODUCTION
On May 25, 2017, the undersigned United States District Court Judge heard oral
argument on Defendant Chipotle Services, LLC’s (“Chipotle”) Motion for Summary Judgment
[Docket No. 94]. Also before the Court is Plaintiff Maria Ramirez-Cruz’s (“Ramirez-Cruz”)
Objection [Docket No. 125] to Magistrate Judge Katherine M. Menendez’s May 11, 2017 Report
and Recommendation [Docket No. 123] (“R&R”) recommending that Ramirez-Cruz’s Motion
for Sanctions Based on Spoliation of Evidence [Docket No. 43] and Second Motion for
Sanctions [Docket No. 69] be denied. For the reasons set forth below, Chipotle’s Motion for
Summary Judgment is granted in part and denied in part and Ramirez-Cruz’s Objection is
overruled.

II. BACKGROUND
A. Summary Judgment
On August 27, 2014, Ramirez-Cruz started working as a crew member at Chipotle’s
location in Blaine, Minnesota. See Pl.’s Ex. 1 [Docket No. 101].1 Shortly thereafter, RamirezCruz began a romantic relationship with her co-worker, Jesus Gutierrez (“Gutierrez”). Pl.’s Ex.
2. [Docket No. 116]; Def.’s Exs. [Docket No. 96] Ex. F (collectively, “Ramirez-Cruz Dep.”)
30:25–31:8. In December 2014, Ramirez-Cruz learned she was pregnant with Gutierrez’s child.
Id. at 31:15–18.
Ramirez-Cruz and Gutierrez transferred to a new Chipotle location in Cottage Grove,
Minnesota. Id. 46:3–5. Ramirez-Cruz’s first day at that location was January 10, 2015. Id.
47:22–24. Omar Renteria (“Renteria”) was the store’s General Manager. Def.’s Exs. Ex. A
(“Smiley Decl.”) ¶ 16. Heather Nicole Garbe (“Garbe”) acted as General Manager when
Renteria was on leave between March 18 and April 28, 2015. Id. at Ex. D. The General
Manager is responsible for creating the weekly work schedule. Smiley Decl. ¶ 15.
On her first day of work at the new location, Ramirez-Cruz suffered injuries falling off a
step stool. Ramirez-Cruz Dep. 56:12–17. Omar Cortes (“Cortes”) and Jackie Ventura
(“Ventura”), who were the store’s Service Managers, came to Ramirez-Cruz’s assistance. Id.
56:22–24; Smiley Decl. ¶ 12. In completing paperwork for a Worker’s Compensation claim,

1

Local Rule 7.1(l) provides that “exhibits must be accompanied by an index - either in
the form of a supporting affidavit or of a separate title page - that identifies the exhibits.” The
exhibits supporting Ramirez-Cruz’s Memorandum in Opposition [Docket No. 100] are
individually filed as separate docket entries and do not include an index that identifies the
exhibits. In the future, counsel for Ramirez-Cruz should file exhibits and other supporting
documentation as exhibits to an affidavit or declaration as one docket entry, with the affidavit or
declaration setting forth the contents of the attached materials.
2

Ramirez-Cruz disclosed she was pregnant, which she believes first alerted Chipotle of her
condition. When Ramirez-Cruz returned to work two days later, she avers that she was
medically restricted from lifting heavy items. Ramirez-Cruz Dep. 76:1–7.
1. Allegations of Discrimination
a. Pregnancy-Related Discrimination
Ramirez-Cruz claims that despite her lifting restriction, Chipotle required her to lift
heavy objects. Ramirez-Cruz also contends that Joshua Moua, who became Kitchen Manager on
April 6, 2015, actually made her lift more than non-pregnant employees. Id. 263:3–7. RamirezCruz avers that although she was frequently able to find another employee to assist with lifting,
often other employees were either unavailable or refused to help. Id. 76:8–24.
Ramirez-Cruz also alleges Chipotle discriminated against her on account of her
pregnancy by refusing to provide maternity pants and by not allowing her to chew gum to
alleviate morning sickness. Ramirez-Cruz contends that she was unable to comply with
Chipotle’s dress policy because Chipotle refused to order maternity pants for her from Chipotle’s
website. Id. 137:6–20. Ramirez-Cruz also claims that on one occasion she was singled out for
chewing gum while at work despite receiving prior permission to do so. Id. 85:11–88:15.
b. Reduction in Hours
At the beginning of her employment at the Cottage Grove location, Ramirez-Cruz
worked a consistent Monday through Friday schedule, mornings and nights. Id. 47:3–12. In
March, her schedule changed to Monday through Wednesday. Id. The parties dispute why her
schedule was changed. Although Ramirez-Cruz contends the change was to accommodate her
pregnancy-related sickness, she claims the change was not voluntary. Id. 47:3–12. Chipotle

3

asserts Ramirez-Cruz requested the change to accommodate her changing child care
arrangements. Id. 323:15–22.
c. Removal from the Schedule and Eventual Termination
On April 16, 2015, Gutierrez was fired. Id. 158:15–17. When Cortes made a social visit
to Ramirez-Cruz and Gutierrez’s home shortly thereafter, Ramirez-Cruz allegedly made
comments such as, “why should I go back, when they fired my man” and “I’ll make them
suffer.”1 Def.’s Exs. Ex. N (“Cortes Dep.”) 72:12–19. Cortes informed the other store managers
that he did not believe Ramirez-Cruz wanted to work at Chipotle anymore. Id. at Ex. H
21:21–23.
On Sunday, April 19, 2015, Ramirez-Cruz called Garbe to ask when she was scheduled
to work. Ramirez-Cruz Dep. 169:8–9. Ramirez-Cruz claims Garbe said “I assumed since we
fired [Gutierrez], we were going to take you off the schedule because we assumed that you
weren’t going to come back.” Id. 169:9–12. Ramirez-Cruz replied that Gutierrez’s termination
had nothing to do with her and that she wanted to be put back on the schedule. Id. 169:13–15.
Since Garbe had already made the schedule for the remainder of April, she offered to put
Ramirez-Cruz back on the schedule beginning in May. Id. 169:15–19.
Gutierrez claims to have overheard a phone conversation between Garbe and RamirezCruz. Def.’s Exs. Ex. M 33:3–13. During that conversation, Gutierrez claims Garbe told
Ramirez-Cruz that she would try to shift hours from other employees so Ramirez-Cruz could get
back on the schedule sooner. Id. Gutierrez also claimed to have overheard Garbe direct

1

Ramirez-Cruz, Gutierrez, and Cortes were friends and spent time together outside of
work. Cortes Dep. 19:13–17.
4

Ramirez-Cruz to keep calling the store and request to be put back on the schedule to return to
work. Id. 33:23–34:4. Ramirez-Cruz alleges that she followed Garbe’s directions, but her phone
calls to the store either went unanswered or unreturned. Ramirez-Cruz Dep. 187:8–13.
Ramirez-Cruz also alleges that she spoke with Renteria and Cortes about returning to work.2 Id.
176:14–22; 191:20–192:8.
According to Chipotle, phone records do not show any phone calls from Ramirez-Cruz to
the store until June 30, over two and a half months after Gutierrez’s termination. See Def.’s Exs.
Ex. S (showing phone records for the Cottage Grove Chipotle). Renteria and Cortes each claim
that Ramirez-Cruz never spoke with them about getting back on the work schedule. Id. at Ex. I
(“Renteria Dep.”) 72:8–13; Cortes Dep. 18:13–21. And Garbe claims that she sent RamirezCruz a text message on April 19, but she never received a response. Id. at Ex. L ¶¶ 6–8.
Ramirez-Cruz admits she stopped trying to contact Garbe after April 19 because she believed
Garbe “had something against” her. Ramirez-Cruz Dep. 170:7–12.
The parties do agree that after Gutierrez was fired Ramirez-Cruz never returned to work
at Chipotle. In a May 8, 2015 employment application for a different employer, Ramirez-Cruz
stated that her employment with Chipotle ended in April 2015. Def.’s Exs. Ex. U. On May 18,
2015, Chipotle removed Ramirez-Cruz from their employment system. Renteria Dep. 37:9–17.
2. Legal Theory
On March 17, 2016, Ramirez-Cruz filed a Second Amended Complaint [Docket No. 26]
asserting a single count of sex discrimination under the Minnesota Human Rights Act

2

At this time, Renteria was on leave and Cortes was assisting Garbe in creating the work
schedule. Cortes Dep. 21:9–13.
5

(“MHRA”), Minn. Stat. §§ 363A.04, subd. 43 and 363A.08, subd. 2. Ramirez-Cruz alleges that
her removal from the schedule was based solely upon “sexist assumptions regarding the behavior
of women without any regard to the Plaintiff’s actual ability or willingness to perform her job.
Specifically, [Chipotle] assumed that the Plaintiff would choose not to work anymore upon the
termination of her boyfriend from the same store.” Second Am. Compl. ¶ 19.
Chipotle moves for summary judgment.
B. Report and Recommendation2
Until the summary judgment motion, Chipotle asserted that Ramirez-Cruz’s removal
from the schedule was due to her failure to show up for her scheduled shifts on April 16, 17, and
18, 2015. Ramirez-Cruz disputed that she was scheduled to work those days and sought
production of her work schedule to support her position. Ramirez-Cruz also sought production
of her “Development Journal,” a document purportedly maintained by Chipotle that shows
employee progress and performance reviews.3
Throughout most of discovery, Chipotle claimed that the paper work schedule was
destroyed and electronic schedule data did not exist. Only belatedly did Chipotle reverse course
and produce an electronic schedule, claiming that it initially withheld production because it was
inaccurate. Pl.’s Exs. [Docket No. 70] at Ex. 12. As to the Development Journal, Chipotle never

2

Since neither party argues that Judge Menendez incorrectly described the events
relevant to the two sanctions motions, the factual background for this section is adopted from the
R&R.
3

The parties previously disputed the relevance of Ramirez-Cruz’s performance on her
discrimination claim. Since Chipotle is not now arguing that any of Ramirez-Cruz’s claimed
adverse employment actions were taken as a result of poor work performance, any remaining
dispute concerning her work performance is immaterial to these motions.
6

produced any such document, claiming it never existed or, if it did, it was no longer available.
Def.’s Exs. [Docket No. 91] at Ex. B ¶¶ 5, 10.
Ramirez-Cruz filed two separate motions for sanctions. The First Motion for Sanctions
[Docket No. 43] seeks spoliation sanctions against Chipotle for the alleged failure to preserve the
paper schedule and Development Journal. The Second Motion for Sanctions [Docket No. 69]
seeks sanctions against Chipotle’s counsel for Chipotle’s counsels’ conduct relating to the
untimely disclosure of the electronic schedule.
Regarding the first sanctions motion, the parties agree that the paper schedule and the
Development Journal were destroyed pursuant to Chipotle’s document retention policies; the
schedule is discarded at the end of each week and the Development Journal, if it existed, would
have been destroyed at the end of September 2015. Ramirez-Cruz argues that Chipotle had a
duty to preserve the paper schedule and Development Journal and suggests that the failure to
preserve the documents supports an inference of bad faith.
The background concerning the electronic schedule is more complicated. In RamirezCruz’s initial written discovery requests, she requested broad production of employee work
schedules. Pl.’s Exs. at Ex. 4. Chipotle responded with objections that did not disclose that
electronic schedule information existed but was being withheld pursuant to a specific objection.
Id. at Ex. 5. Chipotle’s answer to an interrogatory request asking how work schedules are
created and stored was similarly imprecise, failing to mention that a computer program called
MenuLink was used to create work schedules.
At the November 17, 2016 deposition of Cortes, counsel for both parties had an extended
discussion concerning production of the work schedule. Although Chipotle’s counsel began by

7

maintaining that no electronic scheduling data existed, counsel eventually disclosed that
schedule data did exist but that it was inaccurate. Cortes Dep. 33:17–37:15.
On January 19, 2017, over two months later, counsel for Ramirez-Cruz learned from an
attorney litigating a case against Chipotle in the District of Columbia, that Chipotle had
introduced employee work schedules into evidence during trial. On February 6, 2017, RamirezCruz sent Chipotle a deficiency letter addressing its discovery responses to Ramirez-Cruz’s
requests for her work schedule. Chipotle responded on February 10:
It is Defendant’s counsels’ understanding that the hardcopy
schedules that are physically posted in the restaurant are disposed
of at the end of the scheduled week. It is also Defendant’s
counsels’ understanding that MenuLink, the computer program
used to make the weekly schedules, does not maintain accurate
representations of the schedules that are physically posted in the
restaurant.
Pl.’s Exs. at Ex. 12. Chipotle promised to produce the April 2015 computer created schedule by
February 17, 2017. Id.
On February 15, 2017, two days prior to Chipotle’s self-imposed deadline to turn over
the electronic work schedules, Ramirez-Cruz filed the Motion for spoliation sanctions. On
February 28, 2017, Ramirez-Cruz filed the second sanctions Motion.
Chipotle did produce the electronic schedule information on February 17, 2017. This
information shows that Ramirez-Cruz was not scheduled to work April 16, 17, or 18. Chipotle
maintains that this information is not accurate. Chipotle offered Ramirez-Cruz the opportunity
to depose a corporate representative who would provide testimony about the accuracy of the
MenuLink data. Guesno Decl. [Docket No. 89] at Ex. 6. Ramirez-Cruz declined Chipotle’s
offer. Id. at Ex. 7.

8

In the R&R, Judge Menendez recommends denying both sanctions Motions. Regarding
the first Motion, Judge Menendez determined that the documents were destroyed pursuant to
company policy well before Ramirez-Cruz’s initial request on December 2, 2015, and that no
duty to preserve those items arose before that date. As to the second Motion, although seriously
concerned by the obstructionist behavior displayed by Chipotle, Judge Menendez concluded that
sanctions against counsel were inappropriate. With respect to sanctions under 28 U.S.C. § 1927,
Judge Menendez reasoned that Chipotle’s counsels’ behavior, while leaving “much to be
desired,” did not meet the high bar required to impose sanctions. And although “Chipotle’s
approach to the discovery obligations imposed by the Federal Rules of Civil Procedure was not
substantially justified, and ordinarily . . . would warrant the imposition of sanctions,” Judge
Menendez concluded that sanctions were inappropriate under Federal Rule of Civil Procedure
37(c)(1) because counsel to Ramirez-Cruz were also culpable in unnecessarily multiplying
litigation.
Ramirez-Cruz objects to Judge Menendez’s recommendations.
III. DISCUSSION
A. Summary Judgment
1. Legal Standard
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall
be rendered if there exists no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. On a motion for summary judgment, the court views the
evidence in the light most favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465,
470 (8th Cir. 1995). However, the nonmoving party may not “rest on mere allegations or denials

9

but must demonstrate on the record the existence of specific facts which create a genuine issue
for trial.” Krenik v. Cty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
If evidence sufficient to permit a reasonable jury to return a verdict in favor of the
nonmoving party has been presented, summary judgment is inappropriate. Id. However, “the
mere existence of some alleged factual dispute between the parties is not sufficient by itself to
deny summary judgment. . . . Instead, ‘the dispute must be outcome determinative under
prevailing law.’” Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992) (citation
omitted). “[S]ummary judgment need not be denied merely to satisfy a litigant’s speculative
hope of finding some evidence that might tend to support a complaint.” Krenik, 47 F.3d at 959.
2. Discrimination Under the Minnesota Human Rights Act
The MHRA makes it unlawful for an employer to discharge an employee because of the
employee’s sex. Minn. Stat. § 363A.08, subd. 2. The term “sex” is defined to include
pregnancy. Minn. Stat. § 363A.03, subd. 42.
In analyzing sex discrimination claims under the MHRA, courts “apply the principles
developed in the adjudication of claims under Title VII because of the substantial similarities
between the two statutes.” Hanenburg v. Principal Mut. Life Ins. Co., 118 F.3d 570, 574 (8th
Cir. 1997); see also Bahr v. Capella Univ., 788 N.W.2d 76, 83 (Minn. 2010) (“[W]e have said
that in construing the MHRA, we apply law developed in federal cases arising under Title VII of
the 1964 Civil Rights Act.”) (quotations omitted). Under Title VII, a plaintiff may substantiate
claims of discrimination through either direct or indirect evidence. Fjelsta v. Zogg Dermatology,
PLC, 488 F.3d 804, 809 (8th Cir. 2007).

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a. Direct Evidence
Ramirez-Cruz argues that the assumption that she would no longer want to work for
Chiptole after Gutierrez was fired is direct evidence of sex discrimination. Ramirez-Cruz
contends Garbe’s assumption is rooted in a perverse stereotype about a woman’s role in the
workforce. Chipotle responds that there is no link between a discriminatory animus and any
adverse employment action. Chipotle also argues that Garbe’s assumption was facially neutral
and was not premised upon a discriminatory stereotype.
Under the direct evidence approach, Ramirez-Cruz must “produce[ ] direct evidence of
conduct or statements by persons involved in the decision-making process, which indicate a
discriminatory attitude was more likely than not a motivating factor in the employer’s decision.”
Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1045–46 (8th Cir. 2005) (citing Price
Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989)). Direct evidence is evidence that “must be
strong enough to show a specific link between the [alleged] discriminatory animus and the
challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate
criterion actually motivated the employment decision.” Schierhoff v. GlaxoSmithKline
Consumer Healthcare, L.P., 444 F.3d 961, 965 (8th Cir. 2006) (quotation marks omitted).
“Thus, ‘direct’ refers to the causal strength of the proof, not whether it is ‘circumstantial’
evidence.” Torgerson v. City of Rochester, 643 F.3d 1031, 1044 (8th Cir. 2011).
“‘[D]irect evidence’ does not include ‘stray remarks in the workplace,’ ‘statements by
nondecisionmakers,’ or ‘statements by decisionmakers unrelated to the decisional process
itself.’” Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 635 (8th Cir.
1998) (quoting Price Waterhouse, 490 U.S. at 277). In sex discrimination cases, direct evidence

11

“might include proof of an admission that gender was the reason for an action, discriminatory
references to the particular employee in a work context, or stated hostility to women being in the
workplace at all.” Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1017 (8th Cir. 1999). Direct
evidence cases are rare, but they do exist. See, e.g., Simmons v. New Pub. Sch. Dist. No. Eight,
251 F.3d 1210, 1214 (8th Cir. 2001) (decisionmaker’s comments that “a woman can’t handle
[the female plaintiff]’s job” and that the plaintiff was “a woman in a man’s job” were direct
evidence of sex discrimination); Kneibert v. Thompson Newspapers, Mich. Inc., 129 F.3d 444,
452 (8th Cir. 1997) (decisionmaker’s statements that he “had no use for a senior editor” but
needed “three young editors” were direct evidence of age discrimination); EEOC v. Liberal R-II
Sch. Dist., 314 F.3d 920, 924–25 (8th Cir. 2002) (remarking that a 70-year-old employee “was
too old to drive a bus” was direct evidence of age discrimination).
Ramirez-Cruz’s claim of direct evidence is solely premised on Garbe’s statement that she
assumed Ramirez-Cruz would not want to return to work after Gutierrez was fired. This is not
direct evidence of sex discrimination. Garbe’s statement was facially neutral and did not include
any explicit discriminatory references to Ramirez-Cruz’s sex or pregnancy. Without direct
evidence of a discriminatory motive, the case must proceed by way of the indirect method of
proof. See Torgerson, 643 F.3d at 1044 (“But if the plaintiff lacks evidence that clearly points to
the presence of an illegal motive, he must avoid summary judgment by creating the requisite
inference of discrimination through” the indirect method).
b. Indirect Evidence
The indirect evidence method of proof follows the burden-shifting analysis set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Ramirez-Cruz must establish a

12

prima facie case of sex discrimination by showing that: 1) she is a member of a protected class;
2) she was qualified to perform her job; 3) she suffered an adverse employment action; and 4)
the adverse employment action occurred under circumstances giving rise to an inference of
discrimination. Elam v. Regions Fin. Corp., 601 F.3d 874, 879 (8th Cir. 2010). If a prima facie
case is established, the burden shifts to Chipotle “to articulate a non-discriminatory, legitimate
justification” for the adverse action. Id. (citation omitted and quotations omitted). If successful,
the burden then returns to Ramirez-Cruz to prove that Chipotle’s proffered reason for taking the
adverse action is pretext for unlawful discrimination. Lewis v. Heartland Inns of Am., L.L.C.,
591 F.3d 1033, 1038 (8th Cir. 2010).
i. Prima Facie Case
Chipotle argues that Ramirez-Cruz cannot establish the third and fourth prongs of her
prima facie case—that she suffered an adverse employment action and that the adverse
employment action occurred under circumstances giving rise to an inference of discrimination.
“Although the burden of establishing a prima facie case . . . is not onerous, the plaintiff must
satisfy every element of [her] prima facie case, carrying at all times the ultimate burden of proof
and persuasion to establish that the employer discriminated against [her] on an impermissible
basis.” Grant v. City of Blytheville, Ark., 841 F.3d 767, 773 (8th Cir. 2016) (citation and
quotations omitted)..
1. Adverse Employment Action
Chipotle contends that Ramirez-Cruz’s claimed adverse employment actions are legally
insufficient. Ramirez-Cruz argues that her reduction in scheduled work hours and her removal

13

from the work schedule are both adverse employment actions.4
For purposes of the MHRA, “an adverse employment action must include some tangible
change in duties or working conditions.” Bahr, 788 N.W.2d at 83 (citing Burchett v. Target
Corp., 340 F.3d 510, 518 (8th Cir. 2003)). “There must be some material employment
disadvantage; minor changes in working conditions are insufficient.” Id. (citing Brannum v. Mo.
Dep’t of Corr., 518 F.3d 542, 549 (8th Cir. 2008)). “Not everything that makes an employee
unhappy is an actionable adverse employment action.” LaCroix v. Sears, Roebuck, & Co., 240
F.3d 688, 691 (8th Cir. 2001).
A. Removal From the Work Schedule and Eventual
Termination
Chipotle has now come to agree that Ramirez-Cruz should not have been removed from
the work schedule immediately following Gutierrez’s termination. Chipotle nevertheless argues
that the omission of Ramirez-Cruz from the April schedule is not an adverse employment action
because it took timely corrective action. Chipotle argues that Ramirez-Cruz thwarted Chipotle’s
effort at corrective action by failing to follow through with Garbe’s direction to call the store and
express her desire to return to work. Ramirez-Cruz disagrees and argues that she phoned Garbe,
the store, and others to try to get back on the work schedule.
In Jackson v. United Parcel Service, Inc., the Eighth Circuit reaffirmed its prior holding
“that a demotion or denial of a promotion, even when accompanied by a loss in pay, is not an

4

Ramirez-Cruz also argues that Chipotle refused to help her lift heavy items, failed to
provide maternity pants, and asked her to stop chewing her gum on one occasion. None of these
allegations raise an actionable claim of sex discrimination because they do not present a
“tangible change in working conditions that produces a material employment disadvantage.”
Clegg v. Ark. Dep’t of Corr., 496 F.3d 922, 926 (8th Cir. 2007).
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adverse employment action when it is corrected in a timely manner.” 548 F.3d 1137, 1141 (8th
Cir. 2008).5 But Jackson, and the similar corrective action cases, addressed the situation where
the adverse employment action was actually corrected. See, e.g., id. (noting that Jackson was
reinstated with full back pay and no loss of seniority); Kent v. Iowa, 651 F. Supp. 2d 910, 944
(S.D. Iowa 2009) (“[E]ach Plaintiff received all back pay and benefits lost by virtue of his
suspension.”); Fair v. Norris, 480 F.3d 865, 870 (8th Cir. 2007) (recognizing that liability may
have occurred had employer not taken corrective action “by offering her the position she
wanted”).
Despite Garbe stating that Ramirez-Cruz would be placed back on the work schedule
starting in May, Ramirez-Cruz was never scheduled again. See Def.’s Exs. Ex. D (showing
employee schedules). Chipotle blames this on Ramirez-Cruz for failing to follow through with
Garbe’s directions to her, but Chipotle’s argument misses the mark. Chipotle cannot claim it
took corrective action when it placed the burden on Ramirez-Cruz to rectify its error. When
Ramirez-Cruz clearly stated her desire to return to work after learning that Garbe took her off the
schedule—something Chipotle does not dispute here—in order to escape liability for taking
timely corrective action Chipotle was required to actually take corrective action itself.
Corrective action here required Chipotle to quickly place Ramirez-Cruz back on the schedule.
Chipotle already knew that Ramirez-Cruz worked a regular Monday through Wednesday
schedule, her availability was not in question and, therefore, there was no need for Ramirez-Cruz

5

While Jackson and the cases it relies upon involved demotions and denials of
promotions, the foundation for the corrective action theory is rooted in promoting “the kind of
extrajudicial corrective action envisioned by Congress when it passed Title VII.” Fair v. Norris,
480 F.3d 865, 870 (8th Cir. 2007). Thus, the reasoning in Jackson is instructive here.
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to later telephone Garbe and explain her availability. Ramirez-Cruz Dep. at 47:6–12.
Accordingly, Ramirez-Cruz’s removal from the work schedule satisfies the adverse employment
action prong of her prima facie case.
B. Reduction in Hours
Ramirez-Cruz argues that her scheduled work hours dropped drastically after she
disclosed her pregnancy to Chipotle. Pl.’s Ex. 1. Ramirez-Cruz contends she worked on
average over 33 hours per week before she was pregnant, and that after Chipotle learned she was
pregnant her weekly average was reduced to under 22 hours. Id. Chipotle responds the
reduction in Ramirez-Cruz’s weekly hours was in response to Ramirez-Cruz’s request to work
fewer days to either accommodate pregnancy-related health concerns or because of schedule
changes in her child care arrangement. Chipotle also argues that even if Ramirez-Cruz’s
explanation of why her hours were reduced is credited, the percentage by which her work
schedule decreased after she disclosed her pregnancy is not sufficient to amount to a material
change in her working conditions.
Although there is no established standard for when a reduction in hours becomes a
material change in working conditions constituting an adverse employment action, prior cases
provide guidance. In Baucom v. Holiday Cos., the Eighth Circuit concluded that a normal
schedule of 43–45 hours per week that was cut to consistently less that 40 hours per week did not
constitute an actionable adverse employment action. 428 F.3d 764, 767 (8th Cir. 2005). In
Bergstrom-Ek v. Best Oil Co., a greater than fifty percent cut in hours was held to be an adverse
employment action. 153 F.3d 851, 859 (8th Cir. 1998). Similarly, in Scamardo v. Scott County
Arkansas, a reduction in hours of greater than fifty percent was also found to be an adverse

16

employment action. 12 F. Supp. 2d 939, 941 (W.D. Ark. 1998), rev’d on other grounds sub nom.
Scamardo v. Scott Cty., 189 F.3d 707 (8th Cir. 1999).
Prior to Chipotle knowing she was pregnant, Ramirez-Cruz worked an average of 33.51
hours per week. Pl.’s Ex. 1. After Chipotle learned that she was pregnant, Ramirez-Cruz
worked an average of 21.84 hours per week, a difference of just over 42%. Id. Although the
precise requirements of a prima facie case were “never intended to be rigid, mechanized, or
ritualistic,” this is a significant decrease in her hours and may be considered to be a material
change in her working conditions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002).
2. Inference of Discrimination
The final step in the prima facie case analysis is determining whether the adverse
employment action gives rise to an inference of discrimination. There is no hard and fast method
for establishing an inference of discrimination at the prima facie stage. Grant, 841 F.3d at 774.
Approved methods include showing preferential treatment of “similarly-situated employees who
are not in the protected class,” “biased comments by a decisionmaker,” and “evidence that an
employer failed to follow its own policies or shifted its explanation of the employment decision.”
Id. (quotation marks and citations omitted).
A. Reduction in Hours
There is no evidence in the record that Ramirez-Cruz’s decline in weekly hours gives rise
to an inference of discrimination. The record reflects that Ramirez-Cruz’s hours were reduced,
at least in part, because of illness. See Ramirez-Cruz Dep. 47:3–12 (“When I wasn’t that sick
yet with my pregnancy, I was doing Monday through Friday. I wouldn’t work weekends,
because I did go to church on Sundays, and Saturdays with the kids, so then when I started

17

getting sick, my usual days were always Mondays, Tuesdays, and Wednesdays.”). Additionally,
Ramirez-Cruz’s disclosure of her pregnancy to Chipotle directly coincides with her transfer from
the Blaine store to the Cottage Grove store, which may also be a significant factor in her
schedule change.6
B. Removal From the Work Schedule and Eventual
Termination
Ramirez-Cruz alleges that Garbe’s comment that she assumed Ramirez-Cruz would not
want to work at a place that had fired her boyfriend and the father of her unborn child could be
interpreted as a biased comment that supports an inference of discrimination. Ramirez-Cruz
Dep. at 169:10–19. A reasonable fact finder could infer that a discriminatory motive was behind
Chipotle’s decision to remove Ramirez-Cruz from the work schedule immediately following
Gutierrez’s termination. Additionally, as explained more fully below, Chipotle’s explanation for
taking Ramirez-Cruz off the work schedule has shifted over time, which further supports a
finding that the adverse employment action gives rise to an inference of discrimination,
satisfying the fourth prong of her prima facie case.
ii. Non-Discriminatory Reason
The burden now shifts to Chipotle to articulate a “non-discriminatory, legitimate
justification for its conduct which rebuts the employee’s prima facie case.” Elam, 601 F.3d at
879. Chipotle’s burden at this step “is not onerous, and the explanation need not be
demonstrated by a preponderance of the evidence.” Floyd v. State of Mo. Dep’t of Soc. Servs.,

6

Only 14 weeks were used to establish Ramirez-Cruz’s pre- and post-pregnancy
averages. With such a small sample size, it is difficult to draw too much significance from the
change. See Bergstrom-Ek, 153 F.3d at 854–56 (showing that plaintiff’s average number of
hours worked per week prior to her pregnancy was calculated over a two year period).
18

Div. of Family Servs., 188 F.3d 932, 936 (8th Cir. 1999). Moreover, district courts are “not
supposed to evaluate the veracity of [Chipotle’s] offered reasons.” Groves v. Cost Planning &
Mgmt. Intern., Inc., 372 F.3d 1008, 1009 (8th Cir. 2004) (citing Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142 (2000)).
Chipotle contends that Ramirez-Cruz’s removal from the work schedule and eventual
termination was voluntary. Chipotle has presented evidence that Ramirez-Cruz told multiple
employees that she no longer wanted to work at Chipotle after Gutierrez was fired. Def.’s Exs.
Ex. H at 21:13-22; Cortes Dep. at 72:3–19. This non-discriminatory justification for its conduct
returns the burden to Ramirez-Cruz to demonstrate pretext.
iii. Pretext
Ramirez-Cruz argues that Chipotle’s shifting justification for taking her off the work
schedule is also evidence of Chipotle’s stated reason being a pretext for discrimination.
According to Ramirez-Cruz, Chipotle has shifted from its initial position that she was taken off
the schedule because she failed to work scheduled shifts. Ramirez-Cruz additionally argues that
a reasonable fact finder could conclude that Chipotle’s justification for removing her from the
work schedule was likely motivated by a discriminatory stereotype that a woman’s commitment
to her family is superior to that of her employment. Pl.’s Mem. Opp’n Mot. Summ. J. [Docket
No. 100] at 19.
This final step of the analysis requires Ramirez-Cruz to “produce evidence sufficient to
create a genuine issue of material fact regarding whether [Chipotle’s] proffered
nondiscriminatory reason is a pretext for discrimination.” Doucette v. Morrison Cty., Minn., 763
F.3d 978, 982 (8th Cir. 2014) (citation omitted). To meet this requirement, “[a] plaintiff may

19

show that the employer’s explanation is unworthy of credence . . . because it has no basis in fact.
. . . [A] plaintiff may show pretext by persuading the court that a [prohibited] reason more likely
motivated the employer.” Torgerson, 643 F.3d at 1047 (quotations and citations omitted,
alterations in original). The Eighth Circuit has also recognized that a substantial change in an
employer’s proffered reason for its employment decision can support a finding of pretext. Amini
v. City of Minneapolis, 643 F.3d 1068, 1076 (8th Cir. 2011).
1. Shifting Justification
“A change in an employer’s legitimate, nondiscriminatory reason for firing an employee
is probative of pretext only if the discrepancy is ‘substantial.’” Bone v. G4S Youth Servs., LLC,
686 F.3d 948, 957 (8th Cir. 2012) (citation omitted).
Chipotle’s proffered reason for removing Ramirez-Cruz from the work schedule has
substantially changed throughout this litigation. Chipotle initially claimed that Ramirez-Cruz
was removed from the work schedule because she missed scheduled shifts. It was not until
Chipotle disclosed the MenuLink data, which showed that Ramirez-Cruz was not scheduled to
work those days, that Chipotle retreated from this position.7 Chipotle now asserts that RamirezCruz was removed from the schedule because of a good faith belief that she no longer wanted to
work at Chipotle after Gutierrez was fired. Chipotle claims that these two theories are consistent
with its belief that Ramirez-Cruz “voluntarily abandoned her employment.” Def.’s Am. Mem.

7

Chipotle represents that the MenuLink data is not an accurate reflection of whether
Ramirez-Cruz was actually scheduled to work on April 16, 17, or 18. Since Chipotle still
contends that Ramirez-Cruz was scheduled to work those days, a point Ramirez-Cruz continues
to dispute, a genuine dispute on this issue remains. If a jury credits Ramirez-Cruz’s position, it
is also evidence of pretext because it suggests that Chipotle’s initial justification for taking her
off the schedule lacked factual support.
20

Supp. [Docket No. 122] at 28.
Chipotle’s present justification, however, relies upon alleged statements Ramirez-Cruz
made to Cortes immediately following Gutierrez’s termination, such as “why should I go back,
when they fired my man?” Cortes Dep. 72:10–19. Chipotle now contends that these statements,
rather than missed shifts, motivated Chipotle not to schedule Ramirez-Cruz after Gutierrez was
fired. An employee who misses scheduled shifts presents a quite different context than an
employee who verbalizes frustration and anger that her boyfriend was fired. The two situations
pose substantially different reasons for believing that an employee has abandoned their
employment.8 Chipotle’s proffered reason for its employment decision to remove Ramirez-Cruz
from the schedule has substantially changed over time.
2. Motivated by Discrimination
Ramirez-Cruz also argues that a reasonable fact finder could conclude that Garbe’s
assumption was motivated by a discriminatory stereotype about women in the workplace.
Chipotle argues to the contrary, that any assumption Garbe made about Ramirez-Cruz’s desire to
continue working was nondiscriminatory.
Women have been historically stereotyped as less committed to their employment than
men. See Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003) (“These mutually
reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to
continue to assume the role of primary family caregiver, and fostered employers’ stereotypical
views about women’s commitment to work and their value as employees.”) The legislative

8

It is also notable that Ramirez-Cruz’s alleged comments do not clearly articulate her
firm intention to quit. Saying “why should I go back” is not the same as saying “I will not go
back.”
21

intent in enacting the MHRA was to promote a public policy “fostering the employment of all
individuals in this state in accordance with their fullest capacities . . . and to safeguard their
rights to obtain and hold employment without discrimination.” Ridler v. Olivia Pub. Sch. Sys.
No. 653, 432 N.W.2d 777, 781 (Minn. Ct. App. 1988) (citation omitted). Likewise, when
Congress enacted Title VII, the legislature intended to “strike at the entire spectrum of disparate
treatment of men and women resulting from sex stereotypes.” Id. (quoting Sprogis v. United Air
Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971), cert. denied, 404 U.S. 950 (1971)).
In this case, a reasonable juror could conclude that Garbe’s employment decision about
Ramirez-Cruz was rooted in her belief that Ramirez-Cruz would be more committed to her
family than her job and she would not want to continue working for the company that just fired
her boyfriend and father of her unborn child. Further, a reasonable juror could conclude that a
discriminatory stereotype based upon Ramirez-Cruz’s sex or pregnancy was the true reason
Ramirez-Cruz was taken off the work schedule. Therefore, there is sufficient evidence in the
record to create a genuine issue of material fact regarding whether Chipotle’s proffered
nondiscriminatory reason was a pretext for discrimination. Chipotle’s Motion for Summary
Judgment is denied.
B. Punitive Damages
Chipotle argues that Ramirez-Cruz’s claim for punitive damages must be dismissed
because she cannot establish that Chipotle acted with deliberate disregard for the rights or safety
of others. Chipotle also argues that punitive damages are inappropriate because Ramirez-Cruz
cannot demonstrate actual or compensable damages, which must be established before punitive
damages may be awarded. Ramirez-Cruz responds that Chipotle’s action of removing her from

22

the work schedule while she was pregnant constitutes a deliberate disregard for her rights and
that she suffered damages as a result.
Under the MHRA, punitive damages of not more than $25,000 may be awarded. Minn.
Stat. §363A.29, subd. 4. To recover such damages, Ramirez-Cruz must establish “upon clear
and convincing evidence that the acts of the defendant show deliberate disregard for the rights or
safety of others.” Minn. Stat. § 549.20, subd. 1(a)(b); Minn. Stat. § 363A.29, subd. 4 (stating
that punitive damages under the MHRA “shall be awarded pursuant to section 549.20”).
There is a genuine dispute as to whether Chipotle discriminated against Ramirez-Cruz
because of her sex or pregnancy. This genuine dispute is evinced by Chipotle’s shifting
explanation as to why Ramirez-Cruz was removed from the schedule, as well as Garbe’s
statement that she assumed Ramirez-Cruz would not want to continue working after Gutierrez
was fired. This evidence may be indicative of discriminatory stereotypes attributed to women
that are pervasive in the workplace, and provide a basis for a reasonable juror to conclude that
Chipotle discriminate against Ramirez-Cruz. While probative of possible discrimination, the
evidence does not, however, clearly and convincingly reflect that Chipotle was acting with
deliberate disregard for the rights or safety of Ramirez-Cruz. Ramirez-Cruz’s punitive damages
claim is therefore dismissed.
C. Objection to the R&R
Ramirez-Cruz objects to Judge Menendez’s R&R recommending that sanctions not be
imposed for Chipotle’s failure to preserve a paper work schedule and Development Journal, and
for Chipotle’s failure to timely supplement its discovery responses concerning the MenuLink
data.

23

1. Standard of Review
The standard of review applicable to an appeal of a magistrate judge’s order on a
nondispositive issue is extremely deferential. See Reko v. Creative Promotions, Inc., 70 F.
Supp. 2d 1005, 1007 (D. Minn. 1999). The district court must affirm a decision by a magistrate
judge on a nondispositive issue unless the decision is “clearly erroneous or contrary to law.”
Fed. R. Civ. P. 72(a). A decision is “‘clearly erroneous’ when, although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.” Chakales v. Comm’r of Internal Revenue, 79 F.3d 726, 728
(8th Cir. 1996). “A decision is ‘contrary to the law’ when it ‘fails to apply or misapplies relevant
statutes, case law or rules of procedure.”’ Knutson v. Blue Cross & Blue Shield of Minn., 254
F.R.D. 553, 556 (D. Minn. 2008) (quoting Transamerica Life Ins. Co. v. Lincoln Nat’l Life Ins.
Co., 592 F. Supp. 2d 1087, 1093 (N.D. Iowa 2008)).
2. First Motion for Sanctions: Paper Work Schedule and Development Journal
In her Objection, Ramirez-Cruz does not articulate specifically which portion of Judge
Menendez’s analysis concerning spoliation is clearly erroneous or contrary to law. Instead,
Ramirez-Cruz recasts her argument that EEOC rules obligated Chipotle to preserve the
documents at issue, an argument that was presented to and rejected by Judge Menendez. Since
Ramirez-Cruz has neither identified a flaw in Judge Menendez’s legal reasoning nor cited record
evidence showing that Judge Menendez’s conclusion was clearly erroneous, her Objection
pertaining to the First Motion for Sanctions is overruled.
3. Second Motion for Sanctions: Electronic Work Schedule
Ramirez-Cruz’s also objects to Judge Menendez’s recommendation to deny sanctions due

24

to Chipotle’s failure to timely produce and later supplement the electronic schedule information.
Ramirez-Cruz argues Chipotle’s counsels’ conduct warrants sanctions under either Federal Rule
of Civil Procedure 37 or 28 U.S.C. § 1927.
a. 28 U.S.C. § 1927
Section 1927 provides that “[a]ny attorney . . . who so multiplies the proceedings in any
case unreasonably and vexatiously may be required by the court to satisfy personally the excess
costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” 28 U.S.C. §
1927. The statute “is concerned only with limiting the abuse of court processes” by providing a
remedy to those who suffer dilatory and vexatious action. Roadway Express, Inc. v. Piper, 447
U.S. 752, 762 (1980). But “[b]ecause section 1927 is penal in nature, it should be strictly
construed so that it does not ‘dampen the legitimate zeal of an attorney in representing [a]
client.’” Lee v. L.B. Sales, Inc., 177 F.3d 714, 718 (8th Cir. 1999) (quoting Travelers Ins. Co. v.
St. Jude Hosp. of Kenner, La., Inc., 38 F.3d 1313, 1316 (5th Cir. 1994)). Sanctions under § 1927
are proper if “attorney conduct, viewed objectively, manifests either intentional or reckless
disregard of the attorney’s duties to the court.” Lee v. First Lenders Ins. Servs., Inc., 236 F.3d
443, 445 (8th Cir. 2001) (quotation marks omitted); see also Books Are Fun, Ltd. v. Rosebrough,
239 F.R.D. 532, 543–44 (S.D. Iowa 2007) (discussing change in Circuit law pertaining to §
1927).
Chipotle’s conduct during discovery was objectionable and failed to provide or put
Ramirez-Cruz on notice about a critical piece of evidence, the electronic work schedule, that was
germane to Chipotle’s now abandoned defense. Although Chipotle’s counsel did not fulfill their
discovery obligations, the record does not reflect that Chipotle’s counsels’ delay in producing

25

the electronic schedule was a product of unreasonable or vexatious conduct that was in reckless
or intentional disregard of their duties to the Court. Accordingly, Judge Menendez’s
recommendation not to impose sanctions under § 1927 is neither clearly erroneous nor contrary
to law.
b. Federal Rule of Civil Procedure 37(c)(1)
Federal Rule of Civil Procedure 26(e)(1)(A) requires a party to timely supplement or
correct responses to interrogatories or requests for production if the party learns that the response
is “in some material respect . . . incomplete or incorrect, and if the additional corrective
information has not otherwise been made known to the other parties during the discovery process
or in writing.” Failure to promptly and properly supplement deficient discovery responses may
lead to sanctions under Federal Rule of Civil Procedure 37(c)(1).9
The record reflects that Ramirez-Cruz requested broad production of work schedule
information, a request that certainly included any electronic schedule data that Chipotle had in its
possession. Rather than disclose the MenuLink data or articulate a valid objection to justify
withholding production, Chipotle chose a third option, asserting general objections that failed to
put Ramirez-Cruz on notice that electronic scheduling information existed. It was not until
November 17, 2016, while taking the deposition of Cortes, that Ramirez-Cruz learned that
electronic schedule data might be available. Judge Menendez accurately criticized Chipotle’s
counsel for failing to supplement their discovery responses promptly after Cortes’ deposition.

9

Judge Menendez rejected Ramirez-Cruz’s argument that sanctions were warranted
under Federal Rule of Civil Procedure 26(g) based on Chipotle’s certification that its Rule
26(a)(1) disclosures were complete when they failed to include Ramirez-Cruz’s shift schedules.
Nothing in Ramirez-Cruz’s Objection persuades the Court that this conclusion was clearly
erroneous or contrary to law.
26

She also correctly observed that “Chipotle’s approach to the discovery obligations imposed by
the Federal Rules of Civil Procedure was not substantially justified, and ordinarily, this would
warrant the imposition of sanctions.” R&R at 27.
However, it was not clearly erroneous or contrary to law for Judge Menendez to depart
from the ordinary and decline to impose sanctions here. After Cortes’ November 17, 2016
deposition, Ramirez-Cruz waited until February 6, 2017 to notify Chipotle of the deficiency in
failing to produce the electronic scheduling data. In the interim, rather than engaging with
counsel in this case, Ramirez-Cruz contacted an attorney in the District of Columbia litigating a
different case against Chipotle to probe what type of scheduling information had been introduced
there. Ramirez-Cruz explains that she took this approach rather than initiating a meet and confer
because “[t]here is nothing in the conduct of Defendant and it’s [sic] counsel to support this hope
of civility.” Obj. at 5. While this may have been true, past performance does not guarantee
future conduct. Abandoning an opportunity to reach an agreement based upon the assumption
that any effort to do so would be fruitless is not a proper foundation upon which to impose
sanctions. To countenance Ramirez-Cruz’s argument ignores the role Ramirez-Cruz played in
delaying the disclosure of the electronic schedule data. Under these circumstances, Judge
Menendez’s decision to not award sanctions was neither clearly erroneous or contrary to law.

27

IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS
HEREBY ORDERED that:
1.

Defendant Chipotle Services, LLC’s Motion for Summary Judgment [Docket No.
94] is GRANTED IN PART and DENIED IN PART as follows: The punitive
damages claim in Ramirez-Cruz’s Second Amended Complaint [Docket No. 26]
is DISMISSED. In all other respects, the Motion is DENIED.

2.

Plaintiff Maria Ramirez-Cruz’s Objection [Docket No. 125] to Magistrate Judge
Katherine M. Menendez’s May 11, 2017 Report and Recommendation [Docket
No. 123] is OVERRULED;

3.

The Report and Recommendation is ADOPTED;

4.

Plaintiff’s First Motion for Sanctions [Docket No. 43] is DENIED; and

5.

Plaintiff’s Second Motion for Sanctions [Docket No. 69] is DENIED.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: August 10, 2017.

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