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Oviedo-Alvarenga v. Caito Foods Service Inc.

United States District Court, S.D. Indiana, Indianapolis Division

November 9, 2017

MARIA T. OVIEDO-ALVARENGA, Plaintiff,
v.
CAITO FOODS SERVICE INC., Defendant.

          ORDER ADOPTING AND AFFIRMING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          SARAH EVANS BARKER, JUDGE

         Plaintiff Maria T. Oviedo-Alvarenga (“Oviedo”) has brought this action against her former employer, Caito Food Service (“Caito”), [1] alleging that it discriminated against her because of her gender and retaliated against her for raising the issue of harassment by another Caito employee, all in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). Caito filed a Motion for Summary Judgment [Dkt. No. 37] on March 23, 2017. This case was referred to Magistrate Judge Mark Dinsmore for a report and recommendation. It is now before the Court on the parties' objections to the Magistrate Judge's Report and Recommendation (“R&R”) [Dkt. No. 60]. For the reasons detailed in this entry, we ADOPT the Magistrate Judge's recommendation to GRANT IN PART and DENY IN PART Defendant Caito's Motion for Summary Judgment.

         Factual and Procedural Background

         On April 13, 2016, Oviedo filed her Complaint in this court after receiving her right to sue notice from the Equal Employment Opportunity Commission (Dkt. No. 1). The Complaint alleges that, throughout her employment, she (along with other female co-workers) were harassed by Operations Director Dan Correll (“Correll”) based on to her female gender; for example, on three occasions Correll “pointed at [her] chest, touched her chin, flipped her hair, and called her an “asshole.” Dkt. No. 23 (Compl.) at 2. In support of her gender discrimination claim, Oviedo asserts that shortly after she reported this harassment to Carrie Frizzell (“Frizzell”), Vice President of Caito's Human Resources Department, Correll called her and two co-workers to his office and demanded to know “who spoke to HR.” Id. at 3. Further, Oviedo says, the next day he told her that “he would need a tissue box because he was going to make a lot of people cry.” Id. Oviedo contends that although her direct supervisor, Dan Gatto (“Gatto”), gave her a positive performance review, Correll “continued to intimidate [her], give [her] additional duties, criticize [her] for tasks that were outside of her control, and give men preferential treatment.” Id. at 3. On July 7, 2015, Frizzell and Gatto met with Oviedo and told her that “she was being terminated because she did not accomplish projects on time.” Id. Oviedo “believes that she was terminated in retaliation for complaining about workplace harassment in violation of Title VII and that this vague and alleged reason was merely a pretext for discrimination and retaliation.” Id.

         Caito filed its summary judgment motion on March 23, 2017. Dkt. No. 37. On April 26, 2017, the motion (along with Oviedo's response) were referred to Magistrate Judge Dinsmore for issuance of proposed rulings and a recommended disposition. Dkt. No. 43.

         On August 8, 2017, Magistrate Judge Dinsmore issued his Report and Recommendation (“R&R”), recommending that the court grant Caito's summary judgment motion as to Oviedo's hostile work environment and gender discrimination claims and deny Caito's motion with respect to Oviedo's retaliation claim, which should be allowed to proceed to trial. Dkt. No. 60 (R&R). Regarding Oviedo's claim that she was harassed and subjected to a hostile work environment on the basis of her gender, the Magistrate Judge found, after setting forth the applicable legal framework, that “[n]o reasonable juror could find Correll's conduct objectively severe and pervasive as that term is understood.” Id. at 16. Noting that while Correll's act of gesturing at Oviedo's chest, his flipping her hair, massaging the shoulders of Oviedo's assistant, and using crude language were “inappropriate and undignified, ” they did not amount to “employment-changing behavior”-particularly when Correll stopped such behavior each time Oviedo asked him to. Id.

         Turning to Oviedo's discrimination claim, the Magistrate Judge found that, based on the record before the court, no reasonable juror could find that Oviedo was terminated on the basis of her gender. Caito has asserted that it terminated Oviedo for her failure to follow through with assignments and her poor communication with management and companies staffing Caito's temporary workers, which reasons the Magistrate Judge credited.[2] Id. at 18-22.

         Finally, the Magistrate Judge concluded that Oviedo has presented sufficient evidence to warrant a jury determination on her retaliation claim. Id. at 21-26. Specifically, Magistrate Judge Dinsmore found that that there was a genuine issue of material fact as to each of the following issues:

• whether Oviedo engaged in statutorily protected activity by complaining to Frizzell about Correll's harassment;
• whether a reasonable juror could find that the reassignment of assistant Munoz to another manager, which led to increased criticism of Oviedo for her failure to timely follow through and communicate with others and which ultimately led to Oviedo's termination, amounted to a such a change that it would dissuade an employee from protected activity;
• whether there was a causal connection between Oviedo's complaint to Frizzell and Munoz's reassignment.

         R&R at 21-26. On this third point, the Magistrate Judge found that the following facts gave rise to a reasonable inference of causation:

• Frizzell spoke with Gatto and Correll's boss regarding Oviedo's complaints, though Frizzell did not “name names.”
• Just a few days after Oviedo's complaints, Correll rounded up Oviedo and two other Caito managers and demanded to know who complained to human resources.
• Around the same time as Correll's questioning, he told Oviedo that he would need boxes of tissues because he was going to make people cry.
• Briefly thereafter, Correll notified Oviedo that Munoz would be reassigned to work with another manager.

Id. at 25. Magistrate Judge Dinsmore rejected Caito's argument that it had presented admissible evidence to show that Correll had no knowledge of Oviedo's report of harassment to Frizzell and, accordingly, could not have retaliated against Oviedo for making such a complaint. Caito's evidence consisted of a note written by Frizzell stating that the decision to reassign Munoz was made a month prior to Oviedo's complaint to Frizzell about Correll's behavior. Caito also argued that an inference that Correll knew about Oviedo's complaint is unreasonable because Frizzell testified she did not tell Correll, which assertion she also corroborated. Id. at 24-25. Notwithstanding this testimony, the Magistrate Judge found that a reasonable jury, in evaluating these facts, could conclude that Correll did know about the complaint which gave rise to his retaliatory towards Oviedo. A trial is therefore necessary to resolve these factual and causation issues. Id. at 25-26. The Magistrate Judge also concluded that a jury trial was necessary to resolve the issue of whether Oviedo's evidence successfully links Munoz's reassignment to Oviedo's work performance issues that eventually led to her termination. Id. at 26, n.8.

         On August 23, 2017, Caito and Oviedo each filed their respective objections to the R&R. Dkt. Nos. 64 and 65. On September 6, 2017, Caito and Oviedo responded to each other's objections. Docket Nos. 66 and 67, respectively. The objections are now fully developed and ripe for ruling.

         Standard of Review

         A district court reviews de novo any portion of a magistrate judge's report and recommendation to which written objections have been made. SeeFed. Rule Civ. P. 72(b). “The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.” Id. When no objection is made to a portion of the report, the district judge subjects that portion of the report to a clear error review. Id. When performing such a review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id. See Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 759-761 (7th Cir. ...


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