United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. NYE U.S. DISTRICT COURT JUDGE.
employment discrimination case comes before the Court
primarily on Defendant the City of Idaho Falls'
(“the City”) Motion for Summary Judgment. Dkt.
20. Also pending before the Court are two motions to strike.
Dkts. 28, 29. Plaintiff Luis Augustine Vasquez claims the
City unlawfully fired him from his position within the
City's Department of Parks and Cemeteries because of (1)
his race and (2) in retaliation for complaints he made about
(a) the discrimination he was experiencing and (b) the
City's failure to comply with state law regarding casket
vaults and tombs in the City's cemeteries. For the
reasons set forth below, the Court GRANTS the Motion for
Summary Judgment, GRANTS IN PART the City's Motion to
Strike, and DENIES AS MOOT Vasquez's Motion to Strike.
is a 42-year old Hispanic Mexican-American. He began working
for the City in 2004. He obtained a position as a seasonal
laborer with the City's Department of Parks and
Cemeteries in 2005. Vasquez's immediate superior was Jeff
Baird, and Baird's supervisor was Daris Powell. In 2007,
Vasquez applied for a position as a full-time, year-round
Cemetery Attendant. Powell hired Vasquez for the position.
During the hiring process, Baird asked Powell who he was
hiring to fill the position. When Powell indicated he was
hiring Vasquez, Baird asked, “you're not hiring
that wetback, are you?” Dkt. 24-7, at 2 (Powell
declaration). In addition to this comment, Powell asserts
that he heard Baird make “racist comments in [his]
presence several times per month during the 18 years or so he
worked for the city.” Id. Powell reported
these comments to the Superintendent (first Jim Chadwick and
later Eddie Farr, after Chadwick retired in 2008).
Id. at 3. According to Vasquez, Powell recommended
that he record all of the racist comments Baird made to him,
because the City was refusing to take disciplinary action
against Baird for his comments. Dkt. 24-2, at 2-3. Vasquez
claims he “recorded all Jeff Baird's discriminatory
comments and improper treatment of burial sites in a black
spiral notebook . . . and several red calendars (for each
year from 2010 through 2015) which [he] kept in [his] desk,
which [he] personally owned, at the cemetery office.”
Id. Vasquez has submitted affidavits from other
individuals that confirm Baird made many racist and
inappropriate statements while at work over the years.
See Dkt. 24-6 (declaration of Malim Byington, owner
of Byington Memorials and Funeral Products, LLC, confirming
that “Baird was . . . sexist and racist”).
2009, Vasquez reported Baird to Powell after Baird
purposefully broke a buried vault in order to fit another
vault into the ground that otherwise would not fit. Dkt.
20-4, at 7 (Vasquez deposition). Apparently, the buried vault
had not been placed properly. Powell confirmed that Baird
“often buried caskets in the wrong place” or
“misplaced . . . casket[s] by a good 6 to 8 inches,
” such that they encroached on adjacent plots. Dkt.
24-7, at 3.
retired in 2010. When he retired, he “warned [his]
superiors . . . not to promote Baird to [his] position”
because he was racist, did not work well with others, and was
unable to do the job. Id. He also believes
“Baird disliked [Vasquez] and resented him because [he]
did a better job than Baird and was a threat to him.”
Id. at 4. Despite these warnings, the City promoted
Baird to Powell's position.
Powell retired, Vasquez discovered a vault that was buried in
the wrong plot. Dkt. 20-4, at 8-9. Vasquez reported the
misplaced vault to Baird, who did nothing. Id.
Vasquez claims he reported Baird's inaction to the
City's Superintendent of Parks and Cemeteries, Brent
Martin, who also failed to take action. Id. In the
Summer of 2013, Baird asked Vasquez to break another buried
vault to make room for a new vault. Id. Vasquez
refused. Id. Baird then broke the vault himself.
Id. Vasquez again claims he reported the incident to
Martin, who did not take any action. Id. Martin
admits that he is aware of “at least two instances of
possible damage or mix-ups occurring with burial plots during
the course of Plaintiff's employment with the
City.” Dkt. 20-5, at 2. However, he maintains he
“learned about th[e] mix-up[s] through word-of-mouth
around the office, and received no written or verbal report
of the incident[s] from Plaintiff.” Id. As to
the 2013 incident specifically, Martin maintains that
“Baird ultimately did not damage the vault in
question” and that he “received no written or
verbal report of the incident from Plaintiff.”
2007 to 2015, Vasquez received several promotions and steady
pay increases. See Dkt. 25-1 (employment file). His
employment file contains one performance evaluation, which
Powell completed in October of 2008. Dkt. 24-12, at 2. The
review indicates that Vasquez is “[a] very good
employee” who “cares about his work, ”
“[w]orks well with families and . . . has good ideas
for the job.” Id.
his employment with the City, Vasquez supervised a handful of
people, including Sergio Soto, Tanisha Kunz, and Brady
Stevens (Baird's nephew). On Sunday, November 1, 2015,
Kunz reported to Martin that Vasquez had been sexually
harassing her for some time. Dkt. 20-5, at 2. Martin had Kunz
prepare a written statement chronicling the harassment she
had experienced. Id.; Dkt. 20-6. That day, Martin
also received written statements from Stevens and Soto,
confirming some of Kunz's sexual harassment allegations
and outlining other complaints they had about Vasquez. Dkt.
20-5, at 3; Dkts. 20-8, 20-9. All three complained that
Vasquez would swear at and put down subordinates and call
them offensive names. Martin also received a note from Mike
Jones, an employee with Idaho Falls Monuments, that stated he
felt like he could not go to the Rose Hill Cemetery any more
due to Vasquez's actions. Dkt. 20-7. However, the note
did not provide any details about Vasquez's actions that
caused this feeling.
reported all of these complaints to Greg Weitzel and the
Human Resources Department, and provided them with copies of
the written statements he had received. Dkt. 20-5, at 3.
While investigating the complaints, Martin also learned,
although it is unclear how exactly, that Vasquez had
terminated an employee, Art Alvarez,  without authority and
without providing him with the required “notice of
contemplated action.” Dkt. 20-5, at 3.
Monday, November 2, 2015, Weitzel and Martin entered
Vasquez's office, asked for his keys, told him to leave,
and told him not to enter either of the City's cemeteries
until further notice. Dkt. 24-2, at 3. Vasquez asked about
the personal belongings he kept in his work desk; Weitzel and
Martin stated that they would be safe. Id.
was asked to come to Weitzel's office on November 6,
2015. Id. On that day he met with Weitzel, Martin,
and Melanie Marsh, the Director of Human Resources.
Id. They gave Vasquez copies of the written
statements Kunz, Soto, and Stevens had submitted to Martin.
Id. They also confronted Vasquez about the
termination of Art Alvarez. Id. Vasquez asserts that
“[t]his was the very first time [he] had ever been
notified that anyone had ever accused [him] of sexual or
other harassment or for improperly firing Art Alvarez.”
Id. It is not clear what else transpired during this
at the end of the meeting Vasquez stated that he needed some
belongings from his desk, including some medication and the
calendars and notebook in which he had recorded Baird's
improprieties. Id. Martin retrieved the medication,
but stated the City would “have to go through [the
calendars and notebook] to determine whether there was
anything related to the city before they could return
them.” Id. at 4. Vasquez recorded this
conversation and submitted it to the Court on a CD. According
to Vasquez, Martin still has not returned the calendars or
notebook and, at a later grievance hearing, Martin stated
that he was unaware of the existence of the calendars or
notebook.Id. Vasquez's wife confirms
that she has seen the contents of the spiral notebook Vasquez
kept in his desk. Dkt. 24-5, at 2.
maintains that the allegations made by Kunz, Soto, and
Stevens are false and fabricated. He has submitted affidavits
from other employees stating that the allegations of sexual
harassment are false. For example, Whitney Manzanares, a
laborer who worked with Vasquez, Soto, and Kunz, who was also
Kunz's roommate for a short period of time, maintains
that Vasquez was always professional and respectful while
Kunz engaged in “sexual banter” at work. Dkt.
24-8. Manzanares asserts that Kunz never mentioned the
alleged sexual harassment to her, but would complain when
Vasquez told her to get back to work and do her job.
Id. Manzanares submitted a written statement about
Vasquez to the City in November of 2015. Id.
also submitted an affidavit from Jesse Alvarez. Jesse Alvarez
is one of Vasquez's and Soto's close friends. Dkt.
24-9. Jesse Alvarez maintains that Vasquez was always polite
and respectful, while Soto used sexually explicit and
offensive language at work and “treat[ed] women as
sexual objects.” Id. Jesse Alvarez also states
that Soto never complained to him about Vasquez's alleged
sexual harassment, even though they were close friends.
Vasquez submitted the affidavit of Gustavo Chavez. Chavez is
also one of Vasquez's and Soto's close friends. Dkt.
24-10. Chavez also maintains that Vasquez was always
respectful while Soto used offensive language,
“treat[ed] women as sexual objects, ” committed
acts of domestic violence, and has a history of dishonesty.
Id. Vasquez and Chavez believe Soto lied to have
Vasquez fired so he could take Vasquez's job.
Id. On October 31, 2015-the day before Soto
submitted his written statement to Martin-Soto told Chavez
that he was “going to be the new boss at the
cemetery.” Id. Vasquez asserts that in the few
weeks leading up to his termination he had confronted Soto
for not doing his work, taking long breaks, and drinking with
underage co-workers on breaks. Vasquez claims this
confrontation caused animosity in their relationship, which
lead Soto to lie about Vasquez.
Vasquez asserts that he did not fire Art Alvarez without the
proper authority. Rather, he claims Art Alvarez was given the
opportunity to save his job with the City, but decided to
pursue other employment. See Dkt. 24-13. The
City's records indicate that Alvarez resigned from his
position. Dkt. 24-14.
November 9, 2015, Vasquez received a Notice of Contemplated
Action, informing him that the City was contemplating the
termination of his employment. Dkt. 20-12. The notice listed
four examples of conduct it was investigating and considering
as grounds for termination: (1) sexual harassment,
intimidation, and discrimination of a fellow employee; (2)
the unauthorized termination of an employee; (3) offensive or
immoral activity while on duty; (4) failure to cooperate with
fellow employees and dishonesty in the performance of job
duties. Id. The notice also informed Vasquez that
the City would hold a meeting on November 13, 2015, at 1:00
pm, during which Vasquez would have the opportunity to
present reasons for why the City should not terminate him.
November 13, 2015, Vasquez met with Weitzel, Martin, and
Marsh. Dkt. 20-5, at 4. During that meeting, Vasquez asserted
(according to Martin, for the first time) that Baird was
racist. Id. Vasquez also asserted (again according
to Martin, for the first time) that Baird had damaged buried
vaults and buried caskets in the wrong plots.
the meeting, Weitzel, Martin, and Marsh determined that
termination was appropriate because the reports of four
employees corroborated that Vasquez had violated multiple
City personnel policies. Id. Vasquez received a
Notice of Termination on November 16, 2015. Dkt. 20-13. While
Weitzel, Martin, and Marsh, were determining whether to
terminate Vasquez, “Baird was under investigation for
improper use of City equipment.” Dkt. 28-1, at 2.
Accordingly, Baird was not acting as a supervisor when the
City terminated Vasquez and the City did not consult Baird
before terminating Vasquez. Id.
asserts that the City filled Vasquez's position with a
younger, Caucasian man named Dave Hodson. The City maintains
it has not filled Vasquez's position as Cemetery Lead
Maintenance Operator. Dkt. 28-1. Rather, the City had Hodson,
a worker from the City's irrigation division, help with
some of the extra workload created by Vasquez's
December 21, 2015, Vasquez appealed the decision to terminate
him. Dkt. 20-14. Vasquez met with Weitzel and an unnamed
“Initial Hearing Officer” (“IHO”) on
December 30, 2015. On December 31, 2015, Weitzel and the IHO
informed Plaintiff that, after carefully reviewing all facts
and information Vasquez presented during their December 30
meeting, they had determined that Vasquez's termination
was reasonable and warranted. Dkt. 20-15.
appealed the decision upholding his termination. Mayor
Rebecca Casper appointed a Final Hearing Panel
(“FHP”) to hear Plaintiff's appeal. The FHP
consisted of Council President Thomas Hally and Municipal
Services Director Pam Alexander, neither of whom are
employees of the City Parks or Cemetery Departments. Dkt.
20-11. The FHP held a hearing on Vasquez's termination on
February 1, 2016. However, the recording equipment the City
used at the hearing did not create a transcribable, verbatim
record, as required. Dkt. 20-11, at 2. Vasquez did not waive
the recording requirement, so the FHP held another hearing on
March 18, 2016. Id. During the hearing, Vasquez was
able to present evidence and witnesses. Id. Thirteen
individuals testified at the hearing and the parties
presented thirty-three documents for the FHP to consider.
Id. at 2-4. Vasquez submitted the recording of the
hearing to the Court on a CD. On April 11, 2016, the FHP
issued a decision concluding that the City did “not
unjustifiably terminate” Vasquez, his superiors did not
treat Vasquez inappropriately, and the City afforded Vasquez
“an opportunity to resolve errors and disputes.”
Id. at 4.
filed suit in this Court against the City on April 29, 2016.
However, Vasquez did not serve the City until July 26, 2016.
Dkt. 4. Vasquez then filed an Amended Complaint on August 29,
2016. Dkt. 8. The Amended Complaint does not distinctly
enumerate the claims Vasquez is pursuing. Rather the Amended
Complaint generally states “[t]his action for money
damages and declaratory relief arises under  Title VII of
the Civil Rights Act of 1964, . . . the Idaho ...