Etienne v. ARUP Laboratories

Filing 39

MEMORANDUM DECISION AND ORDER granting Defendant's 19 Motion for Summary Judgment. Signed by Judge Dale A. Kimball on 12/10/2018. (eat)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
DELPHINE ETIENNE,

MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.

Case No. 2:17-cv-00464

ARUP LABORATORIES,

District Judge Dale A. Kimball

Defendants.

Plaintiff Delphine Etienne brings this lawsuit against ARUP alleging that she was
terminated because of her race and national origin. Before the court is Defendant ARUP
Laboratories’ Motion for Summary Judgment.
FACTUAL BACKGROUND
In March of 2015, Etienne, who is black and of Haitian descent, was hired to work at
ARUP in its Genomics Lab as a Technologist Trainee. Etienne’s work in the Genomics Lab
focused on the analysis of blood and tissue samples from fetuses and cancer patients to assess
disease states. As a Technologist Trainee, Etienne prepared blood and tissue samples for testing,
performed and documented test results, and trained to become a Technologist.
Etienne alleges that on several occasions in April and May of 2015 a coworker used the
word “slave” at work and referred to herself as a “slave master.” Etienne also alleges that this
coworker told her that her kind is not welcome here.
On or about May 5, 2015, Etienne complained to her supervisor at the time, Jennifer
Stocks, about this alleged conduct. Stocks investigated the complaint, was informed that the
coworker had said to another employee (not Etienne) that she was a “slave to the lab,” counseled

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this coworker not to use such terms at work and understood that the coworker apologized to
Etienne and that the matter was otherwise resolved.
Thereafter, Etienne alleges that ARUP denied her training opportunities either because of
race and national origin or in retaliation for her complaint. ARUP disputes this assertion and
argues that Etienne received training that is comparable to training received by other
Technologist Trainees who are white, of American national origin, and who did not complain
about discrimination.
Etienne made additional complaints from July 30, 2015 to December 28, 2015, about
alleged coworker mistreatment and perceived unfairness in training. Each time ARUP
investigated Etienne’s concerns. Etienne alleges that her complaints about discrimination caused
ARUP to retaliate by issuing “variances” to her. ARUP issued “Variance Discussion Forms” to
employees to document and correct mistakes. ARUP issued two Variance Discussion Forms to
Etienne – one on October 21, 2015 and the other on January 11, 2016. Both variances concerned
the same test. Moreover, during the time that Etienne was employed ARUP also issued Variance
Discussion Forms to ten other employees in its Genomics Lab, including multiple variances to
two other employees. None of the other employees complained about discrimination, and most
of them were white, and of American national origin.
After ARUP issued its January 11, 2016 Variance Discussion Form, Etienne made two
additional mistakes on the same test in January of 2016. Including Etienne’s prior two variances,
this was now a total of four mistakes on the same test. Patty Miller, Etienne’s supervisor at the
time, decided that Etienne should receive a written warning for her continued errors. Miller and
Johanna Barraco, ARUP’s Director of Human Services, met with Etienne to provide counseling
to her about the additional mistakes. In response to the counseling, Etienne stated that she was

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not responsible for the errors because she had witnessed a coworker try to sabotage her work.
Specifically, Etienne said that she saw a coworker, on multiple occasions, mix up Etienne’s
testing solutions to cause her to make a mistake.
Miller and Barraco demanded that Etienne name the coworker who had allegedly
sabotaged her work. Etienne refused. Miller and Barraco gave Etienne 24 hours to reconsider her
decision not to name the person she accused of sabotage. The next day Miller and Barraco asked
Etienne again to name the coworker. Miller and Barraco terminated Etienne because she would
not name the person who she accused of sabotaging her testing.
In the days that followed Miller investigated the matter by interviewing employees in the
Genomics Lab to see if they had witnessed the type of misconduct that Etienne alleged. The
employees all denied observing tampering or sabotage.
LEGAL STANDARD
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). When considering a motion of summary judgment, the court views “all facts [and
evidence] in the light most favorable to the party opposing summary judgment.” S.E.C. v. Smart,
678 F.3d 850, 856 (10th Cir. 2012) (quoting Grynberg v. Total S.A., 538 F.3d 1336, 1346 (10th
Cir. 2008)). The movant must prove that no genuine issue of material fact exists for trial. See
Fed. R. Civ. P. 56(a); Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010).
Accordingly, to survive summary judgment, “the nonmoving party must come forward with
specific facts showing there is a genuine issue for trial.” Smart, 678 F.3d at 858 (quoting L & M
Enters. v. BEI Sensors & Sys. Co., 231 F.3d 1284, 1287 (10th Cir. 2000)).
DISCUSSION

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ARUP seeks summary judgment arguing that: 1) Etienne was fired because she claimed a
coworker sabotaged her test results but then refused to name the alleged saboteur; 2) Etienne
cannot show that she was treated differently than similarly situated employees; 3) Etienne cannot
establish that ARUP’s stated reason for her termination was a pretext for discrimination; 4)
Etienne was not denied training opportunities for discriminatory or retaliatory reasons; 5)
Etienne cannot show that ARUP issued variances to her in retaliation for her discriminatory
complaints; 6) Etienne is not entitled to punitive damages against ARUP.
1) Etienne Was Fired Because She Claimed a Coworker Sabotaged Her Test Results
But Then Refused to Name the Alleged Saboteur.
On February 16, 2016, Etienne’s supervisors, Miller and Barraco, met with Etienne to
issue a counseling record. Etienne made several mistakes on the same tests prior to her
supervisors deciding to issue a counseling record. Etienne’s supervisors previously issued her
several variances because of prior mistakes she made. These mistakes sometimes had serious
consequences such as an incident where Etienne mistakenly threw away a cancer patient’s tissue
sample.
Variances are typically the lowest level of employee discipline at ARUP. Because
Etienne received multiple variances, and because she continued to make similar errors on the
same tests, her supervisors decided to issue a counseling record. A counseling record is
considered a low level of discipline at ARUP and typically doesn’t carry any consequences.
Etienne’s supervisors chose to issue her a counseling record as opposed to requiring her to
change departments, as ARUP required of other employees who made repeated mistakes on
tests.
While Miller and Barraco were issuing the counseling record, Etienne refused to take
responsibility for mistakes on her tests and instead accused an unnamed co-worker of sabotaging

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her test results. Etienne’s supervisors repeatedly ordered her to tell them who sabotaged her
results, but she refused. Etienne’s supervisors gave her 24 hours to name the person she accused
of sabotage, but she again refused when she was called into her supervisor’s office the next day.
Miller and Barraco decided that Etienne did not take responsibility for her mistakes during her
counseling record, accused a coworker of sabotaging her testing, and then refused to name the
coworker when ordered. Citing this reason, Miller and Barraco terminated Etienne from her
position.
2) Etienne Cannot Show that She Was Treated Differently Than Other Similarly
Situated Employees.
Etienne counters that she was terminated because of her race and/or in retaliation for her
complaints of racial discrimination. The applicable legal standards for Etienne’s discrimination
claim are set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248 (1981). Under the burden shifting scheme, Etienne
must first establish that she belongs to a protected class, that she was doing satisfactory work,
that she was subjected to adverse action by the employer, and that she was treated less favorably
than others outside the protected class. See Ortiz v. Norton, 254 F.3d 889, 894 (10th Cir. 2001).
See also Goodwin v. General Motors Corp., 275 F.3d 1005, 1012 (10th Cir. 2002).
ARUP argues that Etienne cannot show that her job performance was satisfactory at the
time of her termination. It is undisputed that Etienne accused an unnamed coworker of sabotage
on February 16, 2016, and that she refused to identify the alleged coworker when Barraco and
Miller demanded that she do so. It is also undisputed that when Etienne met again with Barraco
and Miller on February 17, 2016, Barraco and Miller demanded again that she identify her
alleged saboteur. Etienne admitted at her deposition that she told the Utah Antidiscrimination
and Labor Division investigator that when she failed to give a name of the alleged saboteur she

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was terminated. Accordingly, Etienne cannot establish a prima facie case because she cannot
show that her job performance was satisfactory at the time of her termination.
Further, Etienne cannot establish that she was treated differently than similarly situated
employees. In 2015 and 2016, ARUP terminated the employment of four other Technologists for
misconduct issues. Etienne argues that Richendollar, a Technologist Trainee who is white and of
American national origin, engaged in conduct of comparable seriousness and ARUP did not
terminate her employment.
There is no dispute that Richendollar made recurring workplace mistakes. ARUP issued
variances and a counseling record to Richendollar because of these mistakes. Because of
Richendollar’s mistakes, ARUP told her that she would need to transfer to another department or
lose her job at ARUP. Etienne also made recurring workplace mistakes and received variances
and a counseling record. However, ARUP never required Etienne to transfer departments. In this
way Etienne was treated more favorably than Richendollar when the two made similar mistakes
because Etienne was not required to transfer departments.
Etienne cannot show that she was treated less favorably than similarly situated employees
because the record shows that she was treated more favorably when comparing similar conduct.
ARUP’s stated reason for terminating Etienne was not because of her mistakes on tests. ARUP
claims that Etienne was terminated because she accused coworkers of sabotaging her work and
then refused to name the alleged saboteur. Because no other employees accused coworkers of
sabotaging their testing, including Richendollar, there is no comparable conduct engaged in by
other employees to compare to Etienne’s conduct. Accordingly, Etienne cannot establish that her
job performance was satisfactory at the time of her termination and has therefore failed to prove
a prima facie case of discrimination.

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3) Even If Etienne Can Establish a Prima Facie Case of Discrimination or Retaliation,
She Has Not Come Forward with Evidence of Pretext.
If Etienne can establish a prima facie case of discrimination or retaliation then ARUP
must “articulate a legitimate, nondiscriminatory reason” for her employment termination.
Goodwin v. General Motors Corp., 275 F.3d 1005, 1012 (10th Cir. 2002). ARUP contends that
its nondiscriminatory reason for terminating Etienne was her failure to provide a name of the
person she accused of sabotaging her test results.
Once ARUP states a nondiscriminatory reason for the adverse employment action the
burden shifts to the Plaintiff to show that ARUP’s “explanation for its action was merely pretext”
for discrimination or retaliation. Neal v. Roche, 349 F.3d 1246, 1248 (10th Cir. 2003). “The
relevant inquiry is not whether the employer’s proffered reasons were wise, fair or correct, but
whether it honestly believed those reasons and acted in good faith upon those beliefs.” Luster v.
Vilsack, 667 F.3d 1089, 1094 (10th Cir. 2011). “[A] reason cannot be proved to be a pretext for
discrimination unless it is shown both that the [employer’s articulated] reason was false, and that
discrimination was the real reason.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515
(1993).
Etienne cannot show that ARUP’s stated reason for her employment termination is
unworthy of belief. Moreover, it is not enough to disbelieve ARUP, Etienne must still come
forward with credible evidence that the real reason for her termination was discrimination or
retaliation. No such evidence exists. On February 16, 2016, Miller and Barraco met with Etienne
to issue a counseling record and Etienne refused to take responsibility for the mistakes made on
her tests. Rather, Etienne asserted that a coworker sabotaged her testing. Miller and Barraco
demanded Etienne to disclose the alleged saboteur, but Etienne refused. On February 17, 2016,
Miller and Barraco again met with Etienne and ordered her to name the alleged saboteur, to

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which she again refused. Accordingly, Etienne has not come forward with evidence that ARUP’s
stated reason for the termination based on Etienne’s refusal to name a person she accused of
sabotaging her test results was false and merely a pretext for discrimination or retaliation.
Etienne has therefore failed to produce evidence of a dispute of material fact showing that
ARUP’s stated reason for termination was based on discrimination or retaliation.
Etienne claims that Barraco told Etienne while terminating her that it was insensitive of
her to have complained about her coworker referring to her as a slave. Etienne argues that
Barraco’s statement was evidence that she was terminated in retaliation for complaining about
possible discrimination.
To establish a prima facie case of retaliation, Etienne must show that “there is a causal
connection between the protected activity and the adverse employment action.” Petersen v. Utah
Dep’t of Corr., 301 F.3d 1182, 1188 (10th Cir. 2002). The United States Supreme Court has held
that this causal connection requires “proof that the desire to retaliate was the but-for cause of the
challenged employment action.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352
(2013).
Even assuming Barraco made the statement that Etienne was being insensitive for
complaining about discrimination, there is no evidence that discrimination or retaliation was the
but-for cause for her termination. The evidence shows that Etienne made multiple reports of
discrimination over the course of her employment and ARUP investigated each claim and spoke
to the coworkers whom Etienne claimed made discriminatory statements. The evidence also
shows that ARUP intended to issue a counseling record to Etienne at the February 16, 2016,
meeting and that it was not planning on terminating her. Miller and Barraco ordered Etienne to
provide the name of the person she accused of sabotaging her work at the February 16, 2016

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meeting. The next day Miller and Barraco again ordered Etienne to provide the name of the
person she accused of sabotage. Etienne refused. The evidence shows that the but-for cause of
Etienne’s termination was her failure to provide the name of the person she accused of sabotage.
Accordingly, Etienne has not created a dispute of material facts that ARUP’s stated reason for
her termination was a pretext for discrimination or retaliation.
4) Etienne Was Not Denied Training Opportunities for Discriminatory or Retaliatory
Reasons.
Etienne alleges that she was denied valuable training opportunities based on her race
and/or national origin. Etienne alleges that employees who were white and of U.S. national
origin could attend training that was allegedly denied to her. Etienne also alleges that ARUP
denied her training in retaliation for her complaints of discrimination.
To prevail on either theory, Etienne must show, among other things, “that similarly
situated comparators were treated differently for the same conduct.” Behendwa v. Univ. of
Colorado at Boulder, 214 F. App’x 823, 828 (10th Cir. 2007). A similarly situated individual is
one who: (1) has dealt with the same supervisor; (2) is subjected to the same work standards; and
(3) has engaged in the same conduct without such differentiating or mitigating circumstances
that would distinguish their conduct or the employer’s treatment of them for it. Id.
Etienne was given an initial six-month training plan when she started her employment at
ARUP in its Genomics Lab as a Technologist Trainee – the same training plan received by the
Technologist Trainees who started work around the same time as Etienne. Bird and Richendollar
are the only adequate comparators because by November 2015 ARUP completely revamped its
training process.
Although Etienne did not complete all the training listed in her initial training plan by the
six-month completion goal, neither did Bird or Richendollar. In fact, ARUP removed training

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from Richendollar’s training plan because ARUP was already training Etienne on these subjects
and ARUP was not able to train Etienne and Richendollar on the same subjects at the same time.
Etienne therefore received training in microarrays, BCRABL, and T Cells during her six-month
training plan and Richendollar did not. Such differences in training are common at ARUP
because it is common for Technologist Trainees not to complete all their initial training within
their initial six-month goal. Thus, Etienne received some training that other Technologist
Trainees did not receive, and other Technologist Trainees received some training that Etienne did
not receive.
Etienne alleges in her Complaint that ARUP denied her solid tumor training, array
training, and a categorical class. During her deposition, Etienne acknowledged that those
allegations are not true. Etienne received training in June of 2015 and started solid tumor training
in January of 2016. Etienne testified that ARUP had changed its array procedure in the fall of
2015 and that she was denied training on these new procedures. However, ARUP did not provide
training on its new array procedures to anyone beginning November of 2015 and extending into
2016.
Etienne also acknowledges that ARUP did not deny her participation in the “categorical”
class – she just could not take this class during her first year. Etienne was scheduled to attend
this class in the spring of 2017. Etienne points to Technologists Davin Larsen and Scott Pew,
who were both allowed to take the categorical class before they worked for ARUP for a full year.
However, neither of them were similarly situated to Etienne. Here, Etienne’s supervisor Miller
decided that Etienne could not take the categorical class her first year. Miller has never permitted
anyone to take the categorical class during their first year of employment. A different ARUP
supervisor, Jennifer Stocks, made the decision for Larsen and Pew to take the class. Stocks

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allowed Larsen to take the categorical class early because Larsen has a master’s degree in the
molecular field, unlike Etienne. Stocks allowed Pew to take the categorical class early because
Pew had accelerated through his initial training at an unprecedented pace and completed all his
competencies within six months. Etienne cannot show a meaningful discrepancy from the
training she received and what other similarly situated employees received. Accordingly, Etienne
cannot show that she was denied training opportunities based on discrimination or retaliation.
5) Etienne Cannot Show that ARUP Issued Variances to Her in Retaliation for Her
Discriminatory Complaints
As described above, to make a prima facie retaliation case Etienne must demonstrate: “1)
[she] engaged in protected opposition to discrimination; 2) [she] suffered an adverse employment
action; and 3) there [was] a causal connection between the protected activity and the adverse
employment action.” Petersen, 301 F.3d at 1188. In retaliation cases, the Tenth Circuit will
“consider acts that carry a significant risk of humiliation, damage to reputation, and a
concomitant harm to future employment prospects” as an adverse employment action. Annett v.
Univ. of Kansas, 371 F.3d 1233, 1239 (10th Cir. 2004). Although disciplinary actions, such as
written warnings, may sometimes constitute adverse employment action, such reprimands “will
only constitute adverse employment action if it adversely affects the terms and conditions of the
plaintiff’s employment – for example, if it affects the likelihood that the plaintiff will be
terminated, undermines the plaintiff’s current position, or affects the plaintiff’s future
employment opportunities.” Medina v. Income Support Div., 413 F.3d 1131, 1137 (10th Cir.
2005).
Etienne received two Variances from ARUP – one on October 21, 2015 and another on
January 11, 2016. Barraco testified for ARUP that the “intent of a variance is to correct a
behavior” to encourage employees who made the mistake to do “root cause analysis about why

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that error occurred and what they’re going to do to correct it.” ARUP’s practice is to wait until
an employee has three or more variances on the same test before entering even the lowest level
of its progressive discipline policy.
Etienne has not established that a Variance constitutes an adverse employment action.
She has failed to come forward with evidence showing how receiving Variances harmed her
employment. Further, ARUP has issued Variances to other employees who made errors in their
testing. Etienne does not dispute that there were errors in her testing. She only disputes whether
she made those errors, or whether her results were sabotaged. Etienne therefore also fails to show
that was a causal connection between the alleged adverse employment action of receiving a
Variance and discrimination or retaliation. Accordingly, Etienne’s claim for discrimination or
retaliation based on ARUP issuing her Variances fails.
6) Etienne’s Claim for Punitive Damages Fails.
Etienne asserts a claim for punitive damages. “A Title VII plaintiff is entitled to punitive
damages if [her] employer engaged in discriminatory practices with malice or with reckless
indifference to [her] federally protected rights.” Zisumbo v. Ogden Reg’l Med. Ctr., 801 F.3d
1185, 1201 (10th Cir. 2015). ARUP argues that summary judgment is appropriate on Etienne’s
punitive damages claim. Etienne did not oppose summary judgment on the punitive damage
claim. Accordingly, Etienne’s claim for punitive damages fails.
CONCLUSION
For the reasons stated above, Defendant’s Motion for Summary Judgment is GRANTED
in its entirety. (Dkt. No. 19).
Dated this 10th day of December 2018.
BY THE COURT:

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____________________________________
DALE A. KIMBALL,
United States District Judge

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