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Vasquez v. City of Idaho Falls

United States District Court, D. Idaho

December 20, 2017

LUIS AUGUSTINE VASQUEZ, Plaintiff,
v.
CITY OF IDAHO FALLS, Defendant.

          MEMORANDUM DECISION AND ORDER

          DAVID C. NYE U.S. DISTRICT COURT JUDGE.

         I. OVERVIEW

         This 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.

         II. BACKGROUND[1]

         Vasquez 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”).

         In 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.

         Powell 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.

         After 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.” Id.

         From 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.

         During 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.

         Martin 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, [2] without authority and without providing him with the required “notice of contemplated action.” Dkt. 20-5, at 3.

         On 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.

         Vasquez 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 meeting.

         Apparently 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.[3]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.

         Vasquez 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.

         Vasquez 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. Id.

         Next, 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.

         Finally, 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.

         On 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. Id.

         On 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.

         After 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.

         Vasquez 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 termination. Id.

         On 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.

         Vasquez 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.

         Vasquez 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 ...


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