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Mario Velasco v. Broadway Arctic Circle

June 28, 2012

MARIO VELASCO, PLAINTIFF,
v.
BROADWAY ARCTIC CIRCLE, LLC; AND HITT ARCTIC CIRCLE, DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER

The Court has before it Defendants' Renewed Motion for Judgment as a Matter of Law or New Trial (Dkt. 53), and the parties' briefs on front and back pay.

ANALYSIS

1. Discrimination Claim

At the close of Velasco's case during the trial in this matter, Defendants moved for judgment as a matter of law pursuant to Rule 50(a) on Velasco's discrimination claims and retaliation claims.*fn1 The Court allowed the jury to consider the claims, and the jury rendered a verdict in favor of Velasco on all claims. Defendants now renew their motion on the discrimination claims.

Under Rule 50(b), when a court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. Fed. R. Civ. P. 50(b). The party may then file a renewed motion for judgment as a matter of law and may include a request for a new trial. Id. The Court may resolve the issue in one of three ways: (1) allow judgment on the verdict if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law. Id. "Judgment as a matter of law is appropriate when the evidence presented at trial permits only one reasonable conclusion." Torres v. City of Los Angeles, 548 F.3d 1197, 1205 (9th Cir. 2008) (Internal citation omitted). Thus, "[a] motion for a judgment as a matter of law is properly granted only if no reasonable juror could find in the non-moving party's favor." Id. (Internal citation omitted). Evidence must be viewed in the light most favorable to the nonmoving party, with all reasonable inferences drawn in favor of that party. Id. at 1205-06.

Under the ADA,*fn2 an employer may not discriminate against an employee who has a disability by subjecting him to harassment because of his disability. As outlined in the Court's jury instructions, to prove his discrimination claim Velasco was required to prove each of the following elements by a preponderance of the evidence: (1) the plaintiff is disabled as that term is defined in the ADA; (2) he was subjected to un-welcomed harassment in the workplace; (3) this harassment was based on his disability; (4) the harassment was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive or hostile work environment; (5) the plaintiff perceived the working environment to be abusive or hostile; (6) a reasonable person in plaintiffs circumstances would consider the work environment to be abusive or hostile; and (7) defendants' owner knew or should have known of this harassment and failed to take prompt, remedial action.

Defendants contend that there was insufficient evidence that Velasco was subjected to un-welcomed harassment in the workplace based on his disability, or that the harassment was sufficiently severe or pervasive to alter the conditions of Velasco's employment and create an abusive or hostile work environment. The Court agrees with the second argument.

The Supreme Court has explained that in determining whether an environment is sufficiently hostile or abusive, a district court must look at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating or just a mere offensive utterance, and whether it unreasonably interferes with the employee's work performance. Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (Internal citation omitted). Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment. Id.*fn3 These standards properly filter out complaints "attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing." Id. (Internal citation omitted). "[C]onduct must be extreme to amount to a change in the terms and conditions of employment. . . ." Id. A derogatory nickname and occasional insulting comments may constitute only simple teasing and isolated incidents not sufficiently severe or pervasive to alter the terms and conditions of employment and create an abusive work environment. Meirhofer v. Smith's Food and Drug Centers, Inc., 2011 WL 642664 (9th Cir. 2011).*fn4

Velasco asserts that the evidence at trial showed that harassment toward him permeated his employment and that it was ongoing from June 2008 until his employment ended. However, the focus of the discrimination claim related to only two or three instances: (1) the statement asking Velasco how long it was going to take him to get something out to the customers; (2) the related incident where Mr. Bell made faces at Velasco after the statement about getting something out to the customers; and (3) the statement that all Velasco was doing with the newspaper was looking at the pictures. Evidence of some additional general behavior was also presented at trial, but nothing specific. These general allegations included testimony that Velasco was treated differently, that he did not feel like a member of the team, that he wasn't treated right, that his manager got upset with him especially during busy lunch hours, that Mr. Bell and Ms. Mata made comments that Velasco was "more or less incompetent. . . or . . . stupid," and that Mr. Bell treated Velasco like a "slave." Additionally, one witness testified that at the end of the comment about Velasco only looking at the pictures in the newspaper, Mr. Bell also called Velasco a "retard." However, no other witnesses testified to this statement.

Under these circumstances, the Court will enter judgment as a matter of law in favor of Defendants on Velasco's discrimination claim. To be clear, calling Velasco a derogatory name and insinuating that he could not read were insulting. However, the remainder of the allegations, even if taken as true, are so general in nature that they don't establish the existence of a hostile environment. Taken as a whole, these statements and gestures amount to the sort of simple teasing and ordinary tribulations of the workplace the Ninth Circuit alluded to in Meirhofer. They fall in line with the Ninth Circuit's recent suggestion that a derogatory nickname and occasional insulting comments are not sufficiently severe or pervasive to alter the terms and conditions of employment and create an abusive work environment. Meirhofer v. Smith's Food and Drug Centers, Inc., 2011 WL 642664 (9th Cir. 2011).

2. Damages

Having granted Defendants' motion for judgment as a matter of law on Velasco's discrimination claims, the Court will also dismiss ...


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