Montano v. Donahoe
MEMORANDUM OPINION AND ORDER by District Judge William P. Johnson GRANTING 130 Second Motion for Summary Judgment on Plaintiff's Counts I and III and DECLINING to exercise supplemental jurisdiction over Counts V and VI. (mag)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. CV 14-0634 WJ/GJF
PATRICK R. DONAHOE,
MEMORANDUM OPINION AND ORDER GRANTING SUMMARY JUDGMENT ON
COUNTS I AND III and DECLINING TO EXERCISE SUPPLEMENTAL
JURISDICTION OVER COUNTS V AND VI
THIS MATTER comes before the Court upon Defendant’s Second Motion for Summary
Judgment on Plaintiff’s Counts I and III, filed January 15, 2017 (Doc. 130). Having reviewed
the parties’ briefs and applicable law, the Court finds that Defendant’s motion is well-taken and
is therefore granted; further, the Court declines to exercise supplemental jurisdiction over Counts
V and IV.
This is an employment discrimination case in which Plaintiff alleges discrimination and
retaliation by her supervisors, Michael Flores (“Flores”) and Humberto Trujillo (“Trujillo”). The
Complaint alleges hostile work environment and retaliation under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §2000e et seq. as follows:
Title VII sexual harassment against Michael Flores;
Title VII retaliation against Michael Flores;
Title VII sexual harassment against Humberto Trujillo;
Title VII retaliation against Humberto Trujillo;
Violation of USPS Labor Manual Rule §666.22 (Discrimination and
Violation of USPS employee labor manual §666.22 (Whistleblower
The Court has become quite familiar with the facts in this case. Defendant’s first motion
seeking summary judgment on Counts I and III was denied, even though the facts stacked up in
Defendant’s favor. However, the Court could not grant Defendant’s motion because of defense
counsel’s failure to follow the requirements of Rule 56 of the Federal Rules of Civil Procedure
which requires a defendant to present to the Court the undisputed material facts in a case on
which summary judgment is sought. In the Memorandum Opinion and Order denying summary
judgment, the Court noted that Defendant had “painted itself into a corner” by “avoiding the
substantive facts of a prima facie claim in its presentation of ‘undisputed’ facts” and in doing so,
“effectively precluded the Court from granting it summary judgment.” Doc. 120 at 4. Defense
counsel eventually presented the salient undisputed facts in its reply instead of in the motion
where they properly belonged, but it was too late:
Had Defendant presented this evidence in its motion instead of the reply,
Defendant would have a good case for summary judgment on Plaintiff’s hostile
environment claim. However, the best the Court can do here is note the
substantive evidence presented by Defendant rebutting Plaintiff’s claim of hostile
environment, but ultimately the Court must deny summary judgment because
Defendant, as the moving party, failed in its motion for summary judgment to
make a prima facie demonstration of the absence of a genuine issue of material
fact and entitlement to summary judgment as a matter of law.
Doc. 120 at 25. Defendant fared much better on summary judgment regarding Counts II and IV
alleging retaliation under Title VII. The Court found that Plaintiff failed to submit any evidence
from which a reasonable fact finder could conclude that the reasons for Defendant’s actions were
pretextual for retaliatory motive. Doc. 121.
Allegations in Complaint
The Complaint alleges that Plaintiff began working for the United States Postal Service
(“USPS”) in June 1985. From 2001-2010, Plaintiff served as one of the three Managers of Postal
Operations (“MPOO”) within the New Mexico District, overseeing Postmasters around New
Mexico. In 2010, the New Mexico District was consolidated into the Arizona District and Ms.
Montano’s position was eliminated. She was not selected for an MPOO position in the newly
consolidated District. In July 2011, Plaintiff was hired as the Postmaster of Santa Fe, New
Mexico and retained her level 25 pay for a period of two years while serving in the level 24
Santa Fe Postmaster position. Following the 2010 consolidation, Plaintiff reported to MPOO
In this lawsuit, Plaintiff asserts that Flores discriminated against her by harassing her on
the basis of her gender (Count I). On January 30, 2012, Plaintiff initiated an EEO charge against
Michael Flores alleging race, color, sex discrimination and harassment stemming from Flores’
verbal threats and repeated and unfounded investigative “interviews.” The Complaint states that
Plaintiff rescinded that charge when District Manager John DiPeri advised Plaintiff that he had
negotiated and discussed the issues with Flores, and that Flores would cooperate with Plaintiff by
working on the relationship to achieve better communication. Plaintiff also alleges that Trujillo
also harassed and discriminated against her on the basis of her gender (Count III).
Following additional discovery pursuant to Fed.R.Civ.P.56(d) (see Doc. 101), Defendant
now makes a second attempt at securing dismissal of Counts I and III through summary
judgment. Defendant contends that the alleged conduct was not sufficiently severe or pervasive
to support Plaintiff’s claims for sexual harassment or hostile work environment.
Despite giving defense counsel a clear signal regarding the deficiencies in the initial
summary judgment motion, the Court sees similar problems on this second round. In its
Statement of Undisputed Facts, Defendant cites almost entirely to facts taken from Plaintiff’s
Statement of Additional Facts in her response to Defendant’s initial summary judgment motion
(Doc. 112). A defendant seeking summary judgment is required to offer facts which are
undisputed and which entitle the defendant to summary judgment. See Shapolia v. Los Alamos
Nat’l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993) (“. . . the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact”). The Court cannot imagine how
citing to Plaintiff’s facts bolsters Defendant’s position, and can only conclude that defense
counsel still does not grasp either the purpose or procedure behind Rule 56. Thus, the facts set
forth below are essentially facts alleged by Plaintiff, and not Defendant. Fortunately, Defendant
does eventually present the salient facts within its discussion instead of including them in its
“Statement of Undisputed Facts” section where they belong, which leaves it to the Court to
round up these facts in order to make a determination of the relevant issues. In mentioning these
shortcomings, the Court hopes that defense counsel is moved to seek out ways to refresh her
federal motions practice skills relative to Rule 56.
Facts Concerning Mike Flores
The Court will generally omit references to supporting exhibits because references are provided in the briefs. The
facts included here are undisputed unless otherwise noted. Defendant cites mainly to facts taken from Plaintiff’s
Statement of Additional Facts in her response to Defendant’s initial summary judgment motion (Doc. 116), which is
puzzling, since a defendant seeking summary judgment is supposed to offer facts which are undisputed and which
entitle the defendant to summary judgment. See Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033, 1036 (10th Cir.
1993) (“. . . the moving party bears the burden of demonstrating the absence of a genuine issue of material fact”).
The Court cannot imagine how citing to Plaintiff’s facts bolsters Defendant’s position, and can only conclude that
defense counsel still does not grasp either the purpose or procedure behind Rule 56. Because Defendant has
presented the salient undisputed facts throughout its discussion instead of in its “Statement of Undisputed Facts”
section, the Court is forced to find these facts in order to make a determination of the relevant issues.
Following consolidation by the United States Postal Service of the New Mexico District
into the Arizona District in 2011, Plaintiff reported to MPOO Flores. Between October 2012 and
May 2013, Flores imposed three (3) investigative interviews, also known as “fact-finding”
interviews, on Plaintiff within a five-week period. A fact-finding interview includes a written
notice of alleged deficiencies, the opportunity to have a representative present, and the potential
for discipline. Plaintiff considered the imposition of these interviews as “harassing.”
On November 2, 2012, Flores requested a meeting with Plaintiff. During the meeting,
Flores stated that he “was caught off guard with your [Plaintiff’s] behavior today. . .” and that he
was “deeply concerned over what seems to be reluctance on your part to accept my support for
your success.” Plaintiff responded that Flores’s actions were demeaning and adverse, that he had
singled her out, and that he had “no respect for me or anything that I contribute to Santa Fe.” On
November 5, 2012, Flores conducted a “business review” of Ms. Montano in the presence of a
lower level manager, which Plaintiff believed to be an unusual practice. Plaintiff claims that
Flores told her that because she had brought an EEOC charge against him, he wanted to make
sure he “wrote down what we say” or “what [his] expectations are.” Pltff’s Add’l Fact 2.
On Sunday, December 16, 2012, Flores called Plaintiff at her home, yelling, told her that
if she had any early starts the next day, she would be fired. That same month, Plaintiff applied
for a position in Coppell, Texas. Mr. Flores was aware of her application but he had no
communications with anyone regarding Plaintiff’s application, nor was he asked for a
recommendation. Ex. 3 at 91:11-25. Plaintiff was not interviewed or selected for the position.
On January 28, 2013, Flores accused Plaintiff or not managing her station. That same
month, he also failed to respond to Plaintiff for several weeks regarding her request for leave to
attend a work-related Legislative Forum.
On February 8, 2013, Flores sent Plaintiff home to obtain medical release documentation
and told her she had to be “on sick leave or some other type of leave until” she obtained such
documentation. He ordered Plaintiff to “go home and not come back” until she obtained another
medical release because the Health Unit Nurse Halina Gronowski “needs additional medical.”
Plaintiff claimed that Flores was laughing at her during this phone call. When Plaintiff returned
to work from sick leave on January 15, 2013 (24 days before February 8, 2013), she already had
an FMLA release. Plaintiff asked Flores if she could continue working and produce the
additional medical document on February 15 when she had a doctor’s appointment, but he
denied her request.
A team of lower level postal officials called the “dream team,” arrived to evaluate
Plaintiff’s post office in Santa Fe (the Coronado Station) on February 9, 2013 when Flores
ordered Plaintiff to leave work to obtain additional medical documentation. The “dream team”
consisted of lower level postmasters reporting to Flores who were supposed to conduct route
In August 2012, Plaintiff requested Human Resources (“HR”) intervention. Arizona
District Manager John DiPeri told Plaintiff through an HR Manager to “get a book and learn how
to deal with [her] manager.”
The USPS Policy of Workplace Harassment requires any manager who receives a
complaint to “see that a prompt and thorough investigation is conducted.”
As part of the Initial Management Inquiry Process (“IMIP”), which is also known as the
“Harassment Interview,” Plaintiff was interviewed in March 2013. The HR interviewer, Regina
Beckhum, an African-American female, found that “[b]ased upon the initial inquiry, the
allegations raised by Ms. Montano are subjective and appear to be related to organizational
issues. A hostile working environment has not been demonstrated.”
Flores called Plaintiff by unwanted nicknames, including “Yas” and “Yazzie” and at least
on one occasion told Plaintiff she should “take a Yas pill.” Plaintiff also claims that Flores
mimicked her voice while not in her presence “. . . chang[ing] his voice to a very highpitched
Plaintiff is not claiming damages based on any actions of Defendant and Michael Flores
based on sex discrimination or sex harassment prior to February 13, 2012.
Facts Concerning Humberto Trujillo
While Flores was serving a detail in Long Beach, California, Trujillo temporarily served
as the acting MPOO. He served as Plaintiff’s supervisor from March 2013 until July 6, 2013
when Plaintiff took sick leave.
On May 29, 2013, Trujillo sent Plaintiff an e-mail with the mandate that she should have
a minimum of 10 Findings of Fact and 5 corrective action packages by the close of business that
Friday. On June 6, 2013, while Plaintiff was on sick leave, Trujillo gave Plaintiff a Letter of
Warning (“LOW”) evaluation due to a “suspense”2 that had not been completed the prior month
that Plaintiff believed to be completed.
In July, 2013, during Plaintiff’s FMLA leave, Trujillo ordered that Plaintiff turn in her
USPS Blackberry and laptop.
In an e-mail to Plaintiff and Erik Setter, Plaintiff’s manager at the Coronado Station,
Trujillo called that station the “worst in the district,” stating that she should be “embarrassed”
and that she was the “eyesore of the district.” On March 28, 2013, District Manager John DiPeri
It is not clear from the pleadings what is meant by a “suspense” or “suspense item.” The task that had not been
completed concerned a “Scheduling and Staffing Tool” that required finalization. Ex. 10.
e-mailed Plaintiff and Mr. Setter, calling her “disappointing and disgraceful” and asked “How
long is it going to take for you to follow my instructions? Flores was copied on this e-mail, and
Flores responded saying he would “follow up” on the e-mail.
On June 10, 2013, Trujillo ordered Plaintiff to the district office for a fact-finding for
failure to follow instructions, and told Plaintiff he would “not tolerate the lack of respect for my
instructions.” On July 1, 2013, Trujillo e-mailed District Manager DiPeri stating that he had
“concerns and frustrations” regarding Plaintiff.
Plaintiff’s additional facts add a bit more detail to those set out by Defendant (because
after all, Defendant relied on Plaintiff’s facts in setting them out), but many of these facts are
either immaterial, are self-serving, or constitute legal conclusions. See Murray v. City of
Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995) (nonmovant’s conclusory and self-serving
statements, without other supporting evidence, are insufficient for the purpose of surviving
summary judgment). For example, Plaintiff’s Additional Fact 1 states that Flores knew about the
EEO charge she brought against him. Defendant has never disputed that Plaintiff brought this
charge, nor is it relevant to Plaintiff’s hostile environment claims in Counts I and III.3 In
Additional Fact 3, Plaintiff states that Flores was “relentless” in disciplining her, humiliating her,
and in trying to “ruin her reputation”; and in Additional Fact 5, Plaintiff states that Trujillo
“repeatedly threatened to fire” her. However, aside from these general accusations, there are no
specific dates or specific instances which give this statement any context sufficient to consider
for summary judgment purposes. Similarly, in Additional Fact 6, Plaintiff states that “[e]very
time Flores or Trujillo demanded Plaintiff attend an investigative interview while she was on
sick leave, it was another instance of them harassing her.” Legal conclusions are not facts, and
Flores’ awareness of Plaintiff’s EEO charge is, however, relevant to Plaintiff’s retaliation claims in Counts II and
IV. See Doc. 121 at 17-18 (granting Defendant summary judgment on those claims).
are also insufficient for a nonmovant to avoid summary judgment. See Libertarian Party of N.M.
v. Herrera, 506 F.3d 1303, 1309 (10th Cir. 2007) (nonmovant must “set forth specific facts from
which a rational trier of fact could find for the nonmovant).
Plaintiff offers a few facts which are material to her hostile work environment claims,
although they are cumulative to those presented by Defendant. For example, Plaintiff states that
Flores had a lower level manager witness her “business review” in order to take notes. Add’l
Fact 2. In Additional Facts 7-9, Plaintiff gives examples of allegedly harassing conduct: that
Flores told other employees that he wanted Plaintiff out of the Postal Service; and that he was
“condescending” to her and “belittled her.” Plaintiff claims that Flores was noted to treat female
employees in a belittling and degrading manner and that he commented on the work
accomplishments of men but discrediting accomplishments by females. Plaintiff also describes
Flores as “abusive” and “hostile” toward her in meetings.
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A fact is material if it could have an effect on the outcome of the suit. Smothers v. Solvay
Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014). A dispute over a material fact is genuine if the
evidence presented could allow a rational jury to find in favor of the nonmoving party. EEOC v.
Horizon/CMS Heathcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). A court is to view the
facts in the light most favorable to the non-moving party and draw all reasonable inferences in
favor of that party. Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007). A court cannot
weigh the evidence and determine the truth of the matter, but instead determines whether there is
a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243 (1986). The moving
party “bears the initial burden of making a prima facie demonstration of the absence of a genuine
issue of material fact and entitlement to judgment as a matter of law.” Libertarian Party of N.M.
v. Herrera, 506 F.3d 1303, 1309 (10th Cir. 2007). Only disputes of material fact “preclude the
entry of summary judgment.” Elliott Indus. Ltd. P’ship v. BP Am. Prod. Co., 407 F.3d 1091,
1111 (10th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). If
the moving party meets its burden, “the burden then shifts to the nonmovant to set forth specific
facts from which a rational trier of fact could find for the nonmovant.” Herrera, 506 F.3d at
1309 (citation and internal quotation marks omitted).
Title VII’s prohibition against sex discrimination includes a ban on sexual harassment.
Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986). Discriminatory harassment, however, is
actionable only if it is pervasive or extreme, amounting to a change in the terms and conditions
of employment and creating a hostile work environment. Faragher v. City of Boca Raton, 524
U.S. 778 (1998); see also, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752, (1998); Clark
County Sch. Dist. v. Breeden, 532 U.S. 268 (2001). In order for a hostile environment claim to
survive summary judgment, a plaintiff must show that a rational jury could find that the
workplace was 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. Penry v. Fed. Home Loan of Topeka, 155 F.3d 1257, 1261 (10th
Cir. 1998) (quotation omitted).
To evaluate whether a working environment is sufficiently hostile or abusive, a court
must examine all the circumstances, including: (1) the frequency of the discriminatory conduct;
(2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating,
or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the
employee's work performance. Harris v. Forklift Sys., Inc. 510 U.S. 17, 23 (1993). In addition,
the environment must be both subjectively and objectively hostile or abusive. Id.; see also Davis
v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th Cir. 1998). But severity and pervasiveness are
not enough. The “plaintiff must produce evidence that she was the object of harassment because
of her gender.” Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir.1998).
(emphasis added). [from original]. In short, a hostile environment claim requires a showing of
severe and pervasive harassment that is based on gender.
Plaintiff sums up the relevant conduct which she alleges forms the basis for a hostile
work environment, as listed in her EEO charge:
(1) Between November 21, 2012 and January 28, 2013, Plaintiff was subjected to
harassment. She felt belittled, disrespected, yelled at, and her manager made
degrading comments about her work unit;
(2) On December 22, 2012 and other date(s), she was given a fact-finding
(3) On November 21, 2012 and February 8, 2013, she was sent home and told to
bring medical documentation;
(4) On January 5 and 11, 2013, her manager refused to approve her leave request
to attend the League Postal Forum;
(5) On March 1, 2013, her manager refused to approve her leave request to attend
the League Postal Forum;
(6) In March 2013, Plaintiff was given an IMIP, or “Harassment Interview” by
HR and was not told the reason for the IMIP;
(7) On June 6, 2013, she received a Letter of Warning; and
(8) On an unspecified date, her Postal access was removed.
Doc. 131 at 7.4
Plaintiff characterizes this list as inclusive, but not exhaustive, of the allegedly harassing conduct. The Court’s
discussion will encompass the entirety of Plaintiff’s charged conduct. However, the Court will not consider non-
Severe and Pervasive Requirement
Sexual harassment is actionable under a hostile work environment theory when the
harassing conduct is “sufficiently severe or pervasive to alter the conditions [of the victim's]
employment and create an abusive working environment.” Lockard v. Pizza Hut, Inc. 162 F.3d
1062, 1071 (10th Cir. 1998) quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. at 67.
There is no “mathematically precise test” for determining whether the conduct is
sufficiently severe or pervasive. Harris v. Forklift Sys., Inc., 510 U.S. at 22. Severity and
pervasiveness are evaluated according to the totality of the circumstances, considering such
factors as the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee's work performance.” Smith v. NW Fin. Acceptance Corp., 129 F.3d 1408,
1413 (10th Cir. 1997); Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir.2005)). ). Because
frequency is merely one factor in the analysis, an isolated incident may suffice if the conduct is
severe and threatening. See, e.g., Lockard, 162 F.3d at 1072 (allowing claim based on single
incident).5 The concept of “pervasive” is not a counting measure. Rather, the trier of fact utilizes
a broader contextual analysis. Smith v. Northwest Financial Acceptance, Inc., 129 F.3d 1408,
*1414 (10th Cir. 1997).
Plaintiff can survive summary judgment if she can show that evidence of the alleged
conduct can be considered either severe or pervasive, and that the complained of conduct was
carried out because of her gender. Plaintiff may have been offended by the alleged genderspecific conduct or conclusory allegations as a basis for her hostile work environment claim, such as Plaintiff’s
claim that “[o]n an unspecified date, she was given unreasonable expectations as a Postmaster.” Doc. 131 at 7.
The plaintiff in Lockard was a Pizza Hut waitress who alleged that her employer created a hostile environment by
refusing to address the conduct of two male customers, who commented to plaintiff that she smelled nice, pulled her
by the hair, grabbed her breast and placed his mouth on it. 162 F.3d at 1072. The court found that while this was a
one-time incident, the harassing nature of the conduct was severe enough to support the jury’s finding that it created
an actionable hostile work environment.
related comments, but the question is whether a reasonable juror or fact finder would find the
comments and conduct offensive. See., e.g., Russell v. Board of Trustees of University of Illinois
at Chicago, 243 F.3d 336, 343 (7th Cir. 2001) (finding evidence of offensive behavior and
boorish comments insufficient to sustain hostile environment claim where supervisor habitually
referred to plaintiff as “grandma,” held to the idea that all intelligent women are unattractive,
called each of plaintiff’s female colleagues a bitch at least once, comments that female employee
dressed “like a whore” and had been hired for her looks); see also Chavez v. New Mexico, 397
F.3d 826, 832 (10th Cir.2005) (a few isolated incidents of racial enmity or sporadic racial slurs
insufficient to constitute harassing conduct) (quoting Bolden v. PRC, Inc., 43 F.3d at 551);
Gerald v. Locksley, 849 F.Supp.2d 1190 (2011) (plaintiff must demonstrate a “steady barrage” of
opprobrious racial comments).
Based on the above list, Plaintiff was required to attend three fact-finding interviews; she
was told to furnish her employer with medical documentation; leave requests to attend a postal
forum were ignored; and she received a Letter of Warning (“LOW”) for failure to complete a
work project. None of these work-related actions, even when considered together, can be
considered sufficiently severe or pervasive to alter the conditions Plaintiff’s employment and
create an abusive working environment. The LOW did not result in any negative effects on
Plaintiff’s employment. While Plaintiff considers fact-finding interviews to be harassing,
Plaintiff herself utilized these interviews as a supervisor. Discipline did not automatically result
from these fact finding meetings. According to Plaintiff herself, they are considered more of an
information-gathering tool which provided the means to a “verbal discussion pending that the
performance [of the employee] improved.” Ex. 2 (Pltff’s Depo.) at 44:1-8.
Plaintiff also balks at Flores having a witness at the November 2012 “business review.”
Flores believed it prudent to have a witness to their conversation to prevent misunderstandings:
Do you remember that you called in Brenda Panas to take notes?
Okay. And why was that?
I felt it was appropriate to take notes in a meeting with Yasmin. Because as I told
Yasmin before, I think sometimes we don’t listen to each other the same way. And
so having a third party there might improve any—or minimize the chance of
misunderstanding. And it was also a good way to be sure that any action plans that
we initiated were documented.
Ex. 3 (Flores’ Dep.) at 175:7-17. Plaintiff contends that Flores’ decision to have a witness
present was demeaning and denigrating, and that the November 2012 meeting was evidence of
Flores’ intention to threaten her job and ruin her reputation by “parading her into his office for
baseless fact-finding interviews.” Pltff’s Add’l Fact 4. Plaintiff may subjectively feel as though
these interviews were hostile and demeaning, but in order to qualify as hostile work
environment, the alleged conduct must also qualify as objectively severe or pervasive. See Davis
v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th Cir. 1998).
Plaintiff claims that Flores called her nicknames she disliked and mimicked her voice.
This conduct is certainly inappropriate for work and even childish, but there is no evidence of a
severity or pervasiveness that rises to the level of a hostile work environment, even when
considered with the other alleged incidents. Cmp. Huffman v. City of Prairie Vill., Kan., 980 F.
Supp. 1192, 1201 (D. Kan. 1997) (holding that sexual epithets that a woman worker is a “whore”
or a “bitch” are capable of making the workplace unbearable for the woman verbally so
harassed). Further, Title VII does not target all behavior (such as name-calling and mimicking)
and boorish conduct that is inappropriate for the workplace and was never meant to be a “code of
workplace conduct.” See Chavez v. New Mexico, 397 F.3d 826, 833 (10th Cir. 2005) (Title VII
was not “designed to bring about a magical transformation in the social mores of American
workers. . . .”) (citing Gross v. Burggraf Constr. Co., 53 F.3d 15331, 1538 (10th Cir. 2005)).
Plaintiff claims she was twice denied leave to attend a postal conferences, one taking
place in February 2013 and the other in March 2013. However, it appears that Flores did
eventually respond to Plaintiff’s requests for leave and that Plaintiff did attend the conferences,
so that what Plaintiff essentially complains of is a delayed response to her requests by Flores.
Moreover, even if Plaintiff did not attend the conferences because of late permission (or lack of
permission) from her superiors, such conduct would still not rise to the level of hostile work
environment because a reasonable fact finder would not consider this conduct to create an
abusive working environment. See Doc. 115-11.6
Plaintiff requested intervention by HR twice. As a result of her request for a Harassment
Interview (or “IMIP”) in August 2012, District Manager DiPeri advised Plaintiff (through an HR
manager) to “get a book” and learn how to get along with Flores. Plaintiff was also interviewed
in March 2013in order to address her allegations against Flores. She objects to the way that
interview was conducted, although it is not clear how the interview process fits into her
allegations of hostile work environment. Plaintiff claims that she was not told the reason for the
IMIP and that the interviewer would not her to speak about Flores’ mistreatment:
I got an IMIP, and they wouldn’t let me tell them what was going on. [The
interviewer] shut me down, which I never experienced anybody getting an IMIP
and being told, You can’t say that, you can’t say this, you can’t say this. You
know, when you’re testifying under a harassment thing, you’re able to let that
person know everything you’ve been through, not being told, Don’t talk about it.
So I was just sick . . . .
Defendant includes references to Plaintiff’s exhibits from the response to the first motion for summary judgment,
and the Court also takes judicial notice of other pleadings and exhibits in this case. See Duhart v. Carlson, 469 F.2d
471 (10th Cir. 1972). When referring to exhibits from Plaintiff’s response to the initial summary judgment motion,
the Court will use the docket number of the pleading for reference.
Doc. 112 at 5 (Pltff’s Add’l Fact 23). Since Plaintiff requested the IMIP in the first place, it is
not clear why she did not know the reason for the meeting. See Ex. C (Pltff’s Dep.) at 120:9-11
(“I believe the interview should have taken place within a week of my requesting intervention,
not six months later”). Part of this claim could be due to confusion on the part of Ms. Beckhum,
who noted in the interview notes that she “[a]t the onset of the Interview, [she] didn’t know if the
Complainant was the harassee or the harasser.” Ex. 7 at 4. Ms. Beckhum was charged with
conducting the interviews of all individuals involved in Plaintiff’s harassment claim. Ex. 7 at 4
(“During [Plaintiff’s] interview I told [her] that I was there to interview individuals regarding
some complaints of harassment”). At any rate, based on Ms. Beckhum’s interview notes, there is
no evidence that Plaintiff was limited in her statements during the interview. Exs. 7 & 8.
In her earlier response to the initial summary judgment motion, Plaintiff claimed that the
interviewer, Regina Beckhum, prohibited her from discussing prior harassment. However, Ms.
Beckhum’s copious notes regarding the interview indicate that Plaintiff was given ample time
and leeway in describing her perceived pattern of harassment extending as far back as 2011
through 2012. See Doc. 115-5 (interview notes); Doc. 120 at 8-9 (Mem. Opin. & Order). There
is simply no evidence to support any kind of hostile work environment in the way the IMIP was
conducted. Moreover, Plaintiff’s claims of hostile work environment are based solely on the
conduct of Flores and Trujillo, and Plaintiff does not allege (nor is there any evidence) that either
of them had a hand either in directing the manner in which these interviews were conducted or in
how Plaintiff’s harassment claims were resolved (DiPeri’s advice to Plaintiff to “get a book” to
learn how to get along with Flores, or Beckhum’s finding that a “hostile working environment
has not been demonstrated”).
The actions taken by Flores and Trujillo were not sufficiently severe or pervasive to
constitute a hostile work environment. Defendant offers a case for comparison, Trujillo v. Univ.
of Colo. Health Sci. Ctr., 157 F.3d 1211 (10th Cir. 1998). In that case, the plaintiff alleged that
he was the victim of a racially hostile work environment when:
(1) his supervisor documented improprieties in his job performance;
(2) his supervisor criticized and checked his work;
(3) his supervisor sent him memos requesting Leave Requests and Approval forms;
(4) his supervisor instructed him to cancel a request for leasing space in a building;
(5) the University refused to refurbish a building he found to operate his program;
(6) his request to attend a leadership program for Hispanics was denied;
(7) he was not included as one of the University representatives to the Latin American
Educational Fund Anniversary dinner;
(8) he was not informed that the combination lock to the office housing the Xerox
machine had been changed;
(9) he was required to bring a final budget for one of his programs to a meeting;
(10) he was excluded from part of the budgetary process; and
(11) his supervisor placed a corrective action in his personnel file that warned him that he
needed to improve his attendance, instructed him that he should not offer employment
positions without involving his supervisor, and told not to produce or distribute the PreCollegiate Program without first presenting it to his supervisor for review and approval.
In Trujillo, the Tenth Circuit affirmed the district court’s grant of summary judgment to
the defendant and concluded that plaintiff failed to make a showing of pervasive or severe
The record on appeal provides evidence of little more than a collection of
unrelated incidents where Plaintiff and Dr. Hill were at odds. Plaintiff was not
subjected to anything that was physically threatening or humiliating, nor was
he subjected to any offensive utterances. . . . Plaintiff’s list of grievances
includes none of the racial comments or ridicule that are hallmarks of hostile
work environment claims. . . . The hostile work environment that Plaintiff
portrays is simply a work environment that exhibits the monitoring and job
stress typical of life in the real world. Normal job stress does not constitute a
hostile or abusive environment. As the Seventh Circuit explained, federal law
“does not guarantee a utopian work place, or even a pleasant one . . . .
[P]ersonality conflicts between employees are not the business of the federal
courts.” . . . We cannot vilify every supervisor that implements a policy with
which an employee disagrees or that monitors her employees’ conduct.
157 F.3d at 1214. The nature of the plaintiff’s grievances in Trujillo is not unlike the harassment
and hostility alleged by Ms. Montano in this case, who also appears to be constantly “at odds”
with her supervisors Mike Flores and Humberto Trujillo. Here also, the alleged conduct did not
cause Plaintiff to be subjected to such ridicule, threats or comments that could be considered
either severe or pervasive enough to qualify as a hostile work environment. Plaintiff’s
perception that her working environment was abusive and hostile, but a reasonable fact finder
would not agree and would chalk up the incidents to work place stressors. While the alleged
nickname-calling and mimicking may be unrelated to expected workplace stressors, these few
isolated instances are certainly not a basis for Plaintiff’s hostile work environment claims.
Plaintiff contends that Flores was abusive and hostile in meetings and that Flores
humiliated her by raising his voice in the November 2012 fact-finding interview. Plaintiff takes
issue with the fact a lower-level employee was also present at the meeting to take notes, but her
conduct during that meeting could also be described as unprofessional and even insubordinate,
according to Flores:
. . . What is the first thing that was said at the meeting that you
I remember asking [Plaintiff] to read an email and tossing it on the
table for her to read.
Okay. And do you remember raising your voice telling her to read
No. but she – I may have. She’d gotten up pretty quick and was
. . . Do you have an independent recollection of [Plaintiff] taking
issue with [the witness taking notes]?
Oh, no. I remember that.
What do you remember Yasmin said?
She didn’t want – she felt uncomfortable with someone taking
And you testified that you may have raised your voice. Why
would you have raised your voice?
Because she was walking out of the office and I was trying to get
her to stop and finish the discussion.
Okay. What else do you remember about the meeting?
I was shocked about her abrupt departure.
Ex. 3 at 175:21-25; 176:1-3, 8-15; 177:20-25; 177:1-2.7
Therefore, the Court finds that Plaintiff has not presented factual disputes to suggest that
the alleged conduct of Flores and Trujillo constitute hostile work environment.
A hostile environment claim requires a showing not only of severe and pervasive
harassment, but of severe and pervasive harassment based on gender. The “plaintiff must
produce evidence that she was the object of harassment because of her gender.” Penry v. Fed.
Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir.1998); see Gross v. Burggraf
Construction Co., 53 F.3d 1531, 1546 (10th Cir. 1996) (“if the nature of an employee’s
environment, however unpleasant, is not due to her gender, she has not been the victim of sex
discrimination as a result of that environment.” Stahl v. Sun Microsystems, Inc., 19 F.3d 533,
538 (10th Cir.1994).
In her response to Defendant’s first summary judgment motion, Plaintiff also describes this meeting as one in
which Flores “threw papers” at her and “forced” her to read an e-mail in front of a secretary. Doc. 112, Pltff’s Add’l
In addition to proving that the alleged conduct was considered either severe or pervasive
(which the Court has found it is not), Plaintiff is also required to show that it was gendermotivated. The instances cited by Plaintiff as belittling and degrading events are at most,
unpleasant and perhaps frustrating, but not evidence of a hostile work environment due to her
Plaintiff claims that Flores treated female employees in a belittling and degrading
manner. To support this contention, Plaintiff cites to the deposition testimony of Robert Roark,
the acting MPOO in the Tucumcari, New Mexico post office. Roark did state that Flores and
Trujillo belittled other females in the postal service as well as Plaintiff by yelling and screaming.
However, when specifically asked, Roark denied that women were treated differently than men.
Ex. 1 (Roark Depo.) at 62-63. Instead, he acknowledged that Trujillo and Flores’ behavior was
based on whether they liked or disliked the individual—whether the individuals was a man or a
woman. Id. (“[Trujillo] definitely had people he liked and didn’t like. If he didn’t like you he
treated you like crap.”). Favoritism exhibited by Trujillo or Flores is not in itself harassment
without an impermissible motive. See Taken et al. v. Okla. Corp. Comm., 125 F.3d 1366 (10th
Cir. 1997) (favoritism, unfair treatment and unwise business decisions do not violate Title VII
unless based on a prohibited classification). Here, because Trujillo and Flores were equally
unkind to both men and women, their behavior cannot be considered part of a hostile work
environment proscribed by Title VII.
Plaintiff also considers Flores’ mimicking her voice and name-calling (for example, that
Plaintiff should take a “Yas Pill”) as demeaning and having a sexual connotation. None of this
evidence points to animosity towards Plaintiff based on her gender, despite Plaintiff’s subjective
description of the evidence. Cmp. Huffman v. City of Prairie Vill., Kan., 980 F. Supp. 1192,
1201 (D. Kan. 1997) (holding that sexual epithets that a woman worker is a “whore” or a “bitch”
are capable of making the workplace unbearable for the woman verbally so harassed). Further,
while this behavior (such as the name-calling and mimicking) is certainly not appropriate for the
workplace, it is also not targeted by Title VII, which monitors discriminatory behavior, not
incivility. See Chavez v. New Mexico, 397 F.3d 826, 833 (10th Cir. 2005) (Title VII is not a code
of workplace conduct, nor was it “designed to bring about a magical transformation in the social
mores of American workers. . . .”) (citing Gross v. Burggraf Constr. Co., 53 F.3d 15331, 1538
(10th Cir. 2005)).
All of the other instances of alleged hostile work environment were not even remotely
connected to Plaintiff’s gender, and all were tied to legitimate business reasons. The Court
addresses these instances next.
Fact-Findings, Business Reviews and General Work Performance
There is no evidence that any of the fact-findings interviews were imposed on Plaintiff
because of her gender, and no evidence that more female employees than men were required to
attend these interviews. Flores’ decision to have a witness sit in to take notes at the November
2012 business review meeting may have been unusual, but it was done to avoid any
misunderstandings between them, which given the history of their relationship was a legitimate
(and wise) business decision. Ex. 3 (Flores’ Dep.) at 175:7-17. Plaintiff presents no facts to
Plaintiff makes much of the fact that Flores brought in a “dream team” to evaluate the
Coronado Station, claiming that Flores sent her home for additional medical documentation on
the same day the “dream team” was scheduled to start the evaluation in order to minimize her
involvement with the evaluation and to demean and demoralize her. There is no evidence that
Flores brought in the “dream team” to minimize or demean Plaintiff, but there is evidence that
the Coronado Station where Plaintiff was Postmaster was in an unsatisfactory state of affairs as
compared to other post offices in the region. Defendant presents evidence showing that the
Coronado Station ranked extremely low in the system and was in need of an overhaul. Flores
expressed dissatisfaction with Plaintiff’s performance at the Coronado Station. In his deposition,
Flores stated that was “not happy with the performance in Santa Fe and I’m not happy with the
performance in other units, too. Santa Fe is ranked based on most assessments as the poorest
performer in my area.” Ex. 3 at 77:20-25. In fact, the Coronado Station was ranked 31 out of 35
in the district. Ex. 3 at 236:1-5.
Dissatisfaction with the Coronado post office was expressed not only by Flores, but by
DiPeri as well. On March 28, 2013, DePeri sent an e-mail to Plaintiff and Setter, copying Flores,
calling the situation “disappointing and disgraceful.” Plaintiff may have felt belittled by these
comments, but the source of these comments arose from a genuine concern for the business
operations of that post office, and they were not directed solely at Plaintiff but for her immediate
supervisor Erik Setter, as well:
Erik and Yasmin, This is a totally unacceptable shop. Disappointing and
disgraceful. How long is it going to take for you to follow my instructions?
Mike, I will not tolerate another failed shop from Santa Fe. . . fix this issue
because the postal service cannot afford to not serve the customer again. Do a
complete investigation and take the appropriate corrective action that will correct
this failure. . . . .
Doc. 114-24 (Ex. X to Pltff’s Resp. to initial Mot. For Sum. J.) (emphasis added).8
Thus, the overwhelming evidence shows that the “dream team” was brought in for
legitimate business reasons. Plaintiff’s claim that “degrading comments” were made about her
Defendant cites to DiPeri’s email only partially. To put it in proper context, the Court refers to the exhibits
submitted with earlier summary judgment pleadings. See Fed.R.Civ.P. 56(c)(3) (court can consider “other materials
in the record” for summary judgment purposes).
work may have been unnecessarily harsh to take, but there is no evidence at all that such
comments were made because of her gender, which is a necessary component for hostile work
Plaintiff characterizes as harassment certain instances where she was directed to address
the deficiencies of the Coronado Station. One instance Plaintiff considers harassing is the
mandate sent by Trujillo in an e-mail requiring her to have a minimum of 10 Findings of Fact
and 5 corrective actions completed within a certain time period. However, it is clear from the
express language of the e-mail that Trujillo’s directive was specifically aimed at addressing
excessive use of Penalty Overtime (“POT”) by the Santa Fe stations—an issue that had persisted
over the course of more than one week:
Of the 47 hours of POT used yesterday Santa Fe had 23 of those hours. Main 8 hours and
Coronado 15. What actions were taken for yesterdays [sic] performance? . . . Where is
the corrective action from last weeks over runs? I should have a minimum of 10 FF
[fact-findings] and 5 corrective action packages by Friday . . . .
Ex. 6. There is nothing in the e-mail suggesting any intention by Trujillo to make unreasonable
demands on Plaintiff because she is female. Performance improvement is a legitimate business
of any employer, including the USPS. Both Flores and Trujillo may have been more diplomatic
and delicate in the directives they issued to Plaintiff, but Title VII does not require this.
Requests for Leave and Leave Documentation
As mentioned previously, Plaintiff alleges that Flores failed to respond to Plaintiff for
several weeks regarding her requests for leave to attend a work-related postal forum. However,
there is no evidence to suggest that Flores’ delayed response (or for that matter Flores’ failure to
respond at all) was motivated by Plaintiff’s gender.
Plaintiff claims that Flores’ request for additional medical documentation for her sick
leave was unjustified, and that it was an excuse to remove her from the post office while the
“dream team” was on site for its evaluation. Here again, there is no evidence at all that Plaintiff
was required to get additional medical documentation because of her gender. Flores’ e-mail to
Plaintiff requesting the additional documentation was professional in tone and clear about the
reason for the request. See Ex. 5. Plaintiff contends that she had submitted FMLA paperwork
documenting her leave, but Defendant presents evidence stating that postmasters are required to
submit a PS Form 3971 within two days of returning to work if absent more than 3 days. Ex. 4.
As a Level 24 Postmaster and former Level 25 POOM, Plaintiff was expected to be familiar with
medical documentation requirements.
Ex. 3 (Flores’ Dep.), 247:3-13. Other Postmasters
acknowledge that Form 3971 is a requirement, and that as a POOM, Plaintiff herself would
require this form to be submitted from her postmasters. See Roark Depo, Ex. 1, p. 97, l. 20-p. 98,
l. 8. It is undisputed that Plaintiff did not submit a form 3971, and her position that the FMLA
paperwork that was submitted should have been adequate does not rebut Defendant’s evidence
that Plaintiff had not complied with the submission of the proper postal service medical forms
when she returned from sick leave. See also Ex. E at 10 (Beckhum’s notes stating that Flores
stated that “Yasmin brought in the wrong documentation. It was for FMLA and it didn’t have a
release from the doctor.”).
Letter of Warning
On June 6, 2013, Trujillo gave Plaintiff a Letter of Warning (“LOW”) due to a suspense
that had not been completed the prior month that Plaintiff believed was completed. The LOW
was signed by MPOO Flores, citing various violations of the Employee Labor Relations Manual
(ELM). Ex. 10. Plaintiff considers the LOW to be “baseless,” see Doc. 131 at 8, n.1, but the
actual LOW details Plaintiff’s failure to follow the work instructions given to her. Plaintiff
contends that she had delegated the task to her station manager, but the LOW notes that she
failed to “directly oversee or verify that the action was actually completed despite repeated
warnings that Santa Fe was not in compliance.” Ex. 10. Plaintiff does not dispute that the task
was not completed, nor does she dispute that she had not verified completion of the task from the
person to whom the task was delegated. The LOW also goes on to state that Plaintiff’s
explanations for her failure to complete the task “were misleading and ultimately inaccurate.”
Id. at 1. Plaintiff was cited for her failure to discharge her duties, failure to obey orders, failure to
conduct herself honestly and reliably, and failure to cooperate in investigations. Id. at 2.
As noted earlier, there were no negative implications from the issuance of the LOW. See
Fortner v. State of Kansas, 934 F.Supp. 1252 (D.Kan.1996), aff'd 122 F.3d 40 (10th Cir.1997)
(“there are many interlocutory or mediate decisions having no immediate effect upon
employment conditions which were not intended to fall within the direct proscriptions . . . of
Title VII”) (citation omitted). Here again, the reasons for issuing the LOW was a legitimate
business decision, and Plaintiff presents no facts which infer it was gender-motivated.
Collection of Electronic Equipment
In July 2013, during Plaintiff’s FMLA leave, Trujillo ordered that Plaintiff turn in her
USPS Blackberry and laptop. Plaintiff asserts that this inhibited her ability to perform her job.
The evidence indicates that while Plaintiff was unable to work from home, Trujillo felt this
would hinder her recovery. Ex. 12. Trujillo was aware that Plaintiff was on leave because of
work-related stress, and he “was going to take anything away from her that was going to maybe
keep her out longer . . . I wanted to take all her temptations away of using the postal service,
getting on e-mails, doing anything that may trigger something else.”
Ex. 11 at 166:8-16.
Plaintiff knew of other employees who were on extended sick leave who were able to keep their
laptop and Blackberry during leave. According to Plaintiff, Mike Flores kept his electronic
equipment when he was on sick leave for a bypass, and also on different occasions when he took
leave when his mother was ill; and a female manager in Arizona who kept her computer while on
leave after suffering a mini-stroke. Ex. C at 125:7-25. Even assuming Plaintiff’s facts to be true,
this evidence does not suggest that Trujillo’s decision to have Plaintiff turn in her electronic
equipment was motivated by discriminatory intent or by Plaintiff’s gender. The other employees
mentioned by Plaintiff were on leave for different reasons (and one of these individuals, by
Plaintiff’s own admission was also female), and Trujillo’s concern that working from home
would only aggravate Plaintiff’s stress and compound her leave time was a reasonable and
legitimate business reason.
Other Job Openings
In December 2012, Plaintiff applied for a position in Coppell, Texas, but she was not
interviewed for the job.
Flores was aware of Plaintiff’s application but he had no
communications with anyone regarding Plaintiff’s application, nor was he asked for a
recommendation. Ex. 3 at 91:11-25. Flores’ familiarity with the application was based on his
review of Plaintiff’s deposition in this case. Ex. 3 at 90:15-25. He states that he did not
communicate with anyone regarding Plaintiff’s job application, and that nobody asked him for a
recommendation. Ex. 3 at 91:8-10; 17-18. Plaintiff offers no facts which dispute Flores’
statements and therefore offers no evidence to suggest that Flores had anything to do with the
fact that she did not get interviewed or selected for that position.
Both Counts I and III are described as violations of Title VII based on “sexual
harassment” and the Court has conducted the above analysis based on the arguments in the
pleadings which have treated Counts I and III as having been brought solely under a hostile work
environment theory. However, the text of the complaint states that both Flores and Trujillo
“discriminated” against Plaintiff based on gender. For example, Plaintiff asserts that Trujillo
discriminated against her by imposing unfounded and disparately focused discipline, as
compared to men, treated Plaintiff with disdain and in a harassing manner, stating that he would
rather work with women who would obey all orders without question, and by constantly
threatening termination. Compl., ¶91. Disparate treatment and hostile work environment claims
are separate and distinct causes of action designed to redress different forms or discrimination in
the work place, each having different elements of proof. Nat’l R.R. Passenger v. Morgan, 536
U.S. 101, 103 (2002). Disparate treatment claims are designed to redress discrimination relating
to employment decisions such as hiring and firing, compensation and other terms or conditions
of employment. Hostile work environment claims, on the other hand, are designed to redress
non-traditional forms of discrimination that pollute the emotional and psychological environment
of the work place, ultimately altering the conditions of employment. Meritor Savings Bank
F.S.B. v. Vinson, 477 U.S. 57, 64-67 (1986). While there may be certain alleged acts that could
be characterized as discrete acts of alleged disparate treatment (for example, refusal to approve
leave requests to attend postal forums, and non-selection for the MPOO level 25 job), it appears
that Plaintiff is including these acts as part of an alleged series of repeated and episodic acts that
occurred over a period of time—which is characteristic of hostile environment claims.
Therefore, based on the Complaint and on Plaintiff’s arguments in the underlying pleadings, the
Court has addressed Plaintiff’s claim solely under a hostile environment theory in the above
Alleged actions underlying a hostile environment are not subject to administrative exhaustion to the same extent
as disparate treatment claims. Thus, any claim by Defendant that certain conduct by Flores or Trujillo was not
included in Plaintiff’s EEO charge would not apply to actions which form the basis for Plaintiff’s hostile
environment claims. See Davidson v. AOL, Inc., 337 F.3d 1179 (10th Cir. 2003) (citing Nat’l RR Passenger Corp.
Plaintiff’s claims would be meritless even under a disparate treatment theory, which
would be analyzed somewhat differently. For those claims, Plaintiff would be required to
establish a prima facie case by showing (1) that she belongs to a protected class; (2) that she
suffered an adverse employment action; and (3) that the adverse employment action occurred
under circumstances giving rise to an inference of discrimination. See Jones v. Denver Post
Corp., 203 F.3d 748, 753 (10th Cir.2000). Even assuming that Plaintiff satisfied the first two
prongs, Plaintiff would not be able to meet her ultimate burden of proving intentional
discrimination. See Riser v. QEP Energy, 776 F.3d 1191, 1199 (10th Cir.2015); Adamson v.
Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir.2008) (under Title VII, a
plaintiff bears the ultimate burden of proving intentional discrimination).
Disparate treatment claims are subject to the three-pronged burden-shifting analysis set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Thus, once a plaintiff
establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate
nondiscriminatory reason for the action. If the defendant does so, the plaintiff may survive
summary judgment by showing that there is a genuine dispute of material fact as to whether the
proffered reason for the challenged action is pretextual. See Richmond v. Oneok, Inc., 120 F.3d
205, 208 (10th Cir. 1997).
The Court has discussed at length all the legitimate reasons provided by Defendant for
the actions taken by Flores and Trujillo, and the Court finds, based on that discussion, that
Defendant has more than sufficiently satisfied its burden of showing legitimate reasons for that
conduct under a disparate treatment theory. In the last part of the burden-shifting analysis, a
plaintiff must show that these reasons were “so incoherent, weak, inconsistent, or contradictory
v. Morgan, 536 U.S. 101, 114 (2002) (hostile environment claims not subject to individual exhaustion as long as one
of the component actions occurred within limitations period).
that a rational fact finder could conclude the reasons were unworthy of belief.” Young v. Dillon
Cos., 468 F.3d 1243, 1250 (10th Cir. 2006). Plaintiff has failed to present any facts to infer
pretext on the part of Defendant. The Court finds that there is no evidence at all from which a
reasonable fact finder could infer that Plaintiff was subjected to any differential treatment based
on her gender. Accordingly, to the extent Plaintiff is attempting to bring her claims as part of a
disparate treatment claim, that attempt fails and Defendant is entitled to summary judgment on
Counts I and III under that theory as well.
In this Memorandum Opinion and Order, the Court rules on Counts I and III. The Court
has also previously ruled on Counts II and IV, granting summary judgment to Defendant on
those claims. See Doc. 121. Two claims remain in the Complaint which have not been addressed
by the Court: Count V asserts a violation of USPS Labor Manual Rule (ELM) §666.22
(Discrimination and Retaliation), and Count VI asserts a violation of USPS employee labor
manual (ELM) §666.22 (Whistleblower Protection Retaliation). Because neither of these are
federal claims, the Court declines to exercise supplemental jurisdiction over Counts V and VI,
pursuant to 28 U.S.C. §1367. See Smith v. City of Enid ex rel. Enid City Comm'n, 149 F.3d
1151, 1156 (10th Cir.1998) (when all federal claims have been dismissed, the court . . . “usually
should decline to exercise jurisdiction over any remaining state claims”); Ball v. Renner, 54 F.3d
664, 669 (10th Cir. 1995) (district court should dismiss state claims without prejudice after all
federal claims have been dismissed, particularly when federal claims are dismissed before trial).
In sum, the Court finds and concludes that Defendant is entitled to summary judgment on
Counts I and III of the complaint which asserts violations of Title VII based on hostile work
environment against Mike Flores and Humberto Trujillo.
Hostile environment claims require a showing of severe and pervasive harassment that is
based on gender. Here, the alleged conduct, even when considered together and in the light most
favorable to Plaintiff, does not satisfy the severe or pervasive requirement for such claims, nor
does any of this conduct suggest that the actions of either Flores or Trujillo were motivated by,
or based on, Plaintiff’s gender.
The Court believes it is worth reiterating its previous assessment of this case, in that
“what is driving Plaintiff’s hostile environment claim is a personality clash between Plaintiff and
her supervisors, Mike Flores and Humberto Trujillo which is two-sided, based on outside
accounts.” Doc. 120 at 24. One such account was provided by HR manager Lerene Wiley who
noted that there was “constant digging between the two [Plaintiff and Flores]” and who observed
Ms. Montano and Mr. Flores frequently make condescending comments to one
another on telecons and during conversations. These perceptions should be
brought to the attention of Ms. Montano and Mr. Flores and they should be
advised to find a way to communicate more professionally and without the use of
condescending comments especially in the presence of others.
Doc. 120 at 24 (citing Doc. 115-26). Personal dislike in itself is not a basis for a hostile
environment claim. See, e.g., Mitchell v. ESPY, 845 F.Supp. 1474, 1493 (D.Kan. 1994) (dislike
is not a pretext for discrimination); Rakovich v. Wade, 850 F.2d 1180, 1192-93 (7th Cir. 1987)
(generic dislike is not retaliation).
IT IS ORDERED that Defendant’s Second Motion for Summary Judgment on Plaintiff’s
Counts I and III (Doc. 130) is hereby GRANTED for reasons described in this Memorandum
Opinion and Order;
IT IS FURTHER ORDERED that the Court DECLINES TO EXERCISE
SUPPLEMENTAL JURISDICTION UNDER 28 U.S.C. §1367 over Counts V and VI of the
A Rule 58 Judgment shall be entered separately.
UNITED STATES DISTRICT JUDGE
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