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Equal Employment Opportunity Commission v. Greystar Management Services L.P.

United States District Court, Fourth Circuit

December 18, 2013

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
GREYSTAR MANAGEMENT SERVICES L.P., Defandent.

MEMORANDUM OPINION

ELLEN LIPTON HOLLANDER, District Judge.

The Equal Employment Opportunity Commission (the "EEOC") filed suit against Greystar Management Services L.P ("Greystar"), a property management firm, to "correct [alleged] unlawful employment practices on the basis of sex, and to provide appropriate relief to Amada Lucero, " who worked as a housekeeper at a large apartment complex managed by Greystar.[1] Complaint (ECF 1) at 1. Suit is premised on Section 703(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), as amended by the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k) (the "PDA"). The PDA extended the prohibition against sex discrimination under Title VII to include discrimination "on the basis of pregnancy, childbirth, or related medical conditions." Id.

In its Complaint, the EEOC alleges that Greystar engaged in sex discrimination by terminating Lucero after she became pregnant. See ECF 1 at 1. In particular, the EEOC contends that Greystar discriminated against Lucero by deferring to her doctor's pregnancy-based medical restrictions, and by refusing to allow Lucero to waive those restrictions. According to the EEOC, Greystar's statements and actions constitute direct evidence that it violated the PDA.[2]

The EEOC seeks compensatory and punitive damages as well as injunctive relief. In particular, on behalf of Lucero, it requests "appropriate backpay with prejudgment interest" as well as "reinstatement." Id. at 4 (Prayer for Relief). Additionally, the EEOC seeks compensatory damages for Lucero for "past and future pecuniary losses resulting from the unlawful employment practices, " as well as "past and future non-pecuniary losses resulting from the unlawful practices... including emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses" in amounts to be determined at trial. Id. And, the EEOC seeks punitive damages for Lucero. Id. at 4-5.

The parties filed cross-motions for summary judgment, which have been fully briefed.[3] No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I will deny both motions.

Background[4]

A. Lucero's Position at Greystar

In August 2008, Amada Lucero began working as one of two housekeepers for the Huntington at King Farm, a large apartment complex in Rockville, Maryland. Deposition of Amada Lucero, Aug. 23, 2012 ("Lucero Dep.") at 45; Deposition of Joi Ervin, Oct. 5, 2012 ("Ervin Dep.") at 11; Affidavit of Joi Ervin, Apr. 19, 2013 ("Ervin Aff.") ¶ 6; Defendant's Answer to Plaintiff's Interrogatories ("Greystar Interrog. Resp.") at 6.[5] She is from El Salvador, and her command of English is limited. Lucero Dep. at 7-8, 110.

Greystar is a full-service, multi-family property management company headquartered in South Carolina. Greystar Interrog. Resp. at 11. It manages apartment communities across the United States, and assumed management of the Huntington at King Farm when it purchased the real estate firm JPI Management ("JPI") on January 1, 2009. Id.; Ervin Dep. at 9. Although Lucero was originally hired by JPI, she became an employee of Greystar as a result of the purchase. Deposition of Pamela Couch, Aug. 9, 2012, at 12-13.[6] It is undisputed that after Greystar acquired JPI, Lucero continued in her same role as a housekeeper, working at the same facility and reporting to the same manager and Director of Community Operations ("Community Director."). See Greystar Mot. at 5 & n.1.

Lucero's direct supervisor was Angel Rodriguez, the Service Manager. Lucero Dep. at 46; Ervin Dep. at 12; Ervin Aff. ¶ 4. Rodriguez did not have the power, on his own, to terminate Lucero or to place her on a leave of absence. Ervin Dep. at 12. That authority rested with Rodriguez's supervisor, Joi Ervin, the Community Director. Ervin Dep. at 9-13; Ervin Aff. ¶ 4. In at least some instances, Ervin received guidance from others on hiring and firing decisions, including Senior Regional Property Manager Melanie Aaron as well as Greystar's Human Resources department.[7] Deposition of Matthew Smith, Oct. 11, 2012 ("Smith Dep.") at 25-26. In addressing Lucero's situation, Ervin worked with Human Resources Assistant Shawna Solomon, who reported to Human Resources Director Matthew Smith. Id. at 26; Deposition of Shawna Solomon, Aug. 9, 2012 ("Solomon Dep.") at 22. Solomon testified that she coordinated closely with Smith regarding Lucero. Solomon Dep. at 26, 38.

As a housekeeper, Lucero's primary duty was cleaning. Deposition of Melanie Aaron, Aug. 7, 2012 ("Aaron Dep.") at 29. According to the written job description that Greystar used nationally for the position of "Housekeeper, " the job involved exposure to various substances, including cleaning chemicals for up to 33 percent of the time. Id. Ex.A ("Position Description - Housekeeper"). According to Greystar, housekeepers for the Huntington at King Farm spent a majority of their time using cleaning chemicals. Ervin Dep. at 44-45; Ervin Aff. ¶ 9; see also Aaron Dep. at 79-80.

When Lucero's employment began, she and one other housekeeper were responsible for cleaning the apartment complex's common areas. Ervin Aff. ¶ 6. Their tasks included cleaning bathrooms, kitchens, playrooms, computer rooms, fitness centers, and offices; vacuuming; mopping; and emptying trash cans. Id. Beginning in December 2008, Lucero and the other housekeeper were also required to clean apartments that had been vacated by departing tenants. Aaron Dep. at 43; Ervin Aff. ¶ 7. This change was made for budgetary reasons, to reduce reliance on outside cleaning services that previously had cleaned vacant apartments and prepared them for new tenants. Lucero Dep. at 42-45; Aaron Dep. at 43; Ervin Aff. ¶ 8. By January 2009, each housekeeper was expected to clean 16 apartments per month. Id. Cleaning the vacant apartments involved, among other things, cleaning the bathrooms and kitchens, mopping, and removing debris. Ervin Aff. ¶ 8.

In performing their duties, Lucero and the other housekeeper were required to use various cleaning chemicals, such as Comet, Total Odor Control, Goof Off, CLR, ZEP, Glass Cleaner, 409, Johnny's Bowl Cleaner, Shower Power, Clorox, GOJO, Brasso, Graffiti Remover, WD40, Simple Green, Pledge, and Sunlight Gel. Ervin Aff. ¶ 9; Greystar Mot. Ex.15 (D00719) (e-mail from Ervin to Solomon dated March 24, 2009, listing chemicals used by housekeepers).[8] Greystar expected Lucero to use chemicals for cleaning toilet bowls, sinks, tubs, and showers; cleaning refrigerators, ovens, ranges, and countertops; mopping; and for general cleaning of surfaces in playrooms, fitness centers, offices, and other common areas. Ervin Aff. ¶ 10.

Rodriguez provided the housekeepers with the chemicals they requested. Deposition of Angel Rodriguez, Oct. 5, 2012 ("Rodriguez Dep.") at 15-16. Lucero had some discretion to choose which cleaning products she used, as long as the work was completed. Id. at 16, 19, 24. According to Rodriguez, the cleaning products Lucero used most frequently were bleach, Windex, and Simple Green. Id. at 13.[9]

On February 3, 2009, Lucero received a verbal warning from Rodriguez, her immediate supervisor, and Ervin, Rodriguez's supervisor and the complex's Community Manager, regarding the quality and quantity of her work. Greystar Mot. Ex.17 (D00610) ("Associate Verbal Warning Report" dated February 2, 2009); Ervin Aff. ¶ 11. The "Associate Verbal Warning Report" stated, among other things, that Lucero failed to meet deadlines for cleaning the Resident Services Clubhouse and Leasing Clubhouse at the complex; that she "ha[d] not been paying enough attention to detail[, ] leaving trails of dust on furniture, tabletops, and shelves in both clubhouses"; that she failed to complete four full apartment cleanings each week, as was required beginning in December; and that she had been told to work without the other housekeeper's assistance unless her supervisor grants permission. Id .; see also Rodriguez Dep. at 22 ("I don't remember the details but I do remember the clubhouse was not getting cleaned enough. The models, they were dirty. The vacant unit was not getting ready for the new tenants."). The warning, which was Lucero's first, indicated that she was advised that "her employment is in jeopardy." Greystar Mot. Ex.17 (D00610).[10]

At the time of the February 3 meeting, Lucero was pregnant with her second child. Ervin Dep. at 11. She gave birth to a healthy child in late August 2009. Lucero Dep. at 91; Declaration of Amada Lucero, Mar. 14, 2013 ("Lucero Decl.") ¶ 12.

Upon receiving the warning on February 3, 2009, Lucero informed Rodriguez and Ervin of her pregnancy. Lucero Dep. at 23; Lucero Decl. ¶ 4.[11] Moreover, Lucero stated that she did not want to work around chemicals until after her pregnancy. Lucero Dep. at 19, 23; Ervin Aff. ¶ 12. As Lucero explained in her Declaration, she was concerned that the chemicals she used with Greystar were stronger than those to which she was exposed while working with CBRE during her previous pregnancy. Lucero Decl. ¶ 6. Lucero proposed working with the complex's other housekeeper, who could work with the cleaning chemicals while Lucero performed other tasks. Lucero Dep. at 52-53; see also id. at 16 (Lucero "asked if [she] could do some other type of work"). However, Ervin expressed doubt that such an arrangement was feasible, because Lucero's job required the use of chemicals. Lucero Dep. at 53.[12]

In response to Lucero's request for a modification of her duties, Ervin told Lucero to provide a doctor's letter specifying what work she was capable of doing, and gave her a job description that she could share with her physician. Solomon Dep. Ex.A (e-mail from Ervin to Solomon dated February 3, 2009, recounting conversation with Lucero); Lucero Dep. at 53. Immediately after the conversation on February 3, 2009, however, Lucero was transitioned to tasks that did not expose her to chemicals. Lucero Dep. at 58-59. That work initially involved delivering written notifications to apartments in the complex. Lucero Dep. at 75; Ervin Aff. ¶ 14. She was subsequently assigned to work for several weeks on a biannual preventative maintenance project, which required her to accompany a maintenance employee to apartments and to record items in need of repair. Lucero Dep. at 61, 74-75; Ervin Aff. ¶ 14. According to Ervin, neither of these tasks were typical responsibilities for a housekeeper. Ervin Aff. ¶ 14.

On February 6, 2009, Lucero met with her physician and obtained a letter (the "February 6 Letter") setting forth certain medical restrictions for Lucero, which she submitted to Greystar. Lucero Dep. at 54 & Ex.4. The letter, signed by Jacqueline Apgar, M.D., stated that Lucero "should minimize exposure to any chemicals for the remainder of her pregnancy." Lucero Dep. Ex.4.[13] Two HR employees, Matthew Smith and Shawna Solomon, found "very vague" the February 6 Letter's statement that Lucero should "minimize exposure" to "chemicals." Solomon Dep. at 42. Accordingly, Greystar asked Lucero to bring another note from her physician that explained with greater specificity what Lucero was permitted to do. Lucero Dep. at 62.

Around the time that Lucero obtained the first doctor's note, Lucero began to modify her original request to avoid exposure to cleaning chemicals, by expressing a willingness to resume at least some of her prior responsibilities. See Ervin Dep. at 13. According to Ervin, at the time Lucero provided the February 6 Letter, Lucero indicated that she was willing to vacuum and to perform "[l]imited cleaning based on the chemical" exposure, which included cleaning refrigerators, pantries, and floors. Ervin Dep. at 51, 56 & Ex.I (D00697) (e-mail from Ervin to Solomon and Aaron dated February 6, 2009). However, as Ervin further noted, Lucero wanted to avoid cleaning showers and bathrooms, ovens, and light fixtures, as well as any work requiring a ladder. Ervin Dep. Ex.I (D00697).

At her deposition, Lucero testified that she remained willing to receive shipments and packages, to clean the gyms, check the trash, tend to plants, and clean model apartments. Lucero Dep. at 14. But, performing those tasks required Lucero to use cleaning chemicals, which according to Greystar included 409, Zep cleaner, bleach, and Windex. Ervin Dep. at 53; Solomon Dep. at 40; Aaron Dep. at 49-50; Lucero Dep. at 15; see also EEOC Mem. at 4 (acknowledging that those tasks required cleaning products, including bleach). As Lucero explained in her Declaration of March 14, 2013, she was unwilling to work with oven cleaner and undiluted Simple Green, as she believed that they were stronger than the products she used while employed at CBRE during her first pregnancy. Lucero Decl. ¶ 6.

Despite Lucero's willingness to work with certain cleaning products, Ervin remained "uncomfortable having her do anything that [was] within the confines of the letter" from Lucero's physician. Ervin Dep. Ex.I (D00696) (e-mail from Ervin to Solomon and Aaron dated February 10, 2009). Based on the restriction in the February 6 Letter, stating that Lucero "should minimize exposure to any chemicals for the remainder of her pregnancy, " Lucero Dep. Ex.4, Ervin was unwilling to allow Lucero to perform work that involved any product or chemical other than water. See Ervin Dep. at 57-59. Accordingly, Ervin did not permit Lucero to clean refrigerators, pantries, and floors, Ervin Dep. at 53-54, or to otherwise work with cleaning products. Id. at 57-58 & Ex.I.

Lucero met again with her physician on February 17, 2009. Lucero Decl. ¶ 9. She obtained a second letter, dated that day (the "February 17 Letter"), which stated, in part, Lucero Dep. Ex.5 (D00457) (capitalizations in original):

Amada Lucero is an obstetrical patient under our care. Her EDC is 9/3/09.
Due to her pregnancy I have advised the following restrictions for the remainder of her pregnancy:
1. No lifting, carrying, pushing or pulling anything over 25lbs 100% of the time.
2. Exposure to chemicals/cleaning supplies or pre-mixing MUST be kept to a minimum (10% or less total time) - must work in well ventilated area and wear mask when chemicals/cleaning supplies present
3. NEVER climb ladders....

Lucero subsequently gave this letter to Ervin. Lucero Dep. at 67.[14]

In Ervin's view, the February 17 Letter confirmed that, if Lucero were to comply with her physician's restrictions, Lucero could not perform her job. As Lucero explained, "[Ervin] told me that most of the jobs there involve working with chemicals all the time, so how could I possibly work 10 percent with chemicals." Lucero Dep. at 67; see id. at 68 (Ervin wondered "how would this work, too much of [Lucero's] job involves chemicals"). Notably, Ervin said she could not eliminate from Lucero's tasks the cleaning of vacant apartments, which required the use of cleaning chemicals. Lucero Dep. at 18. Ervin estimated that, at each apartment location, Lucero would have to spend more than 75 percent of her time working with chemicals. Greystar Mot. Ex.21 (000831) (e-mail of March 11, 2009, from Ervin to Solomon).

Ervin discussed the February 17 Letter with her supervisor, Senior Regional Property Manager Melanie Aaron, as well as with Shawna Solomon in Human Resources. Ervin Aff. ¶ 19. They agreed that it was impossible to eliminate the use of chemicals from Lucero's position as a housekeeper. Id. Because housekeepers were required to work with cleaning chemicals for more of their day than the 10 percent limit allowed by Lucero's physician, Greystar concluded it could not retain Lucero in her housekeeping role. Aaron Dep. at 80.

The parties' accounts diverge on the extent to which Lucero subsequently sought to waive her request for an accommodation and her physician's restrictions. In her post-deposition Declaration, Lucero stated that, shortly after meeting with her physician on February 17, 2009, she told her supervisor, Rodriguez, that she "was willing to work with all of the cleaning products at Greystar so long as I could wear a mask and gloves." Lucero Decl. ¶ 10.[15] The EEOC also cites to several statements in which, it says, Ervin admitted that Lucero sought to waive her medical restriction in its entirety. See EEOC Mem. at 6 (citing Ervin Dep. Ex.A (D00563) (e-mail from Ervin to Solomon dated March 3, 2009, explaining that Lucero "is frustrated because she now wants to take back her whole initial complaint") and Ervin Dep. at 13 (stating that Lucero "did want to take back the doctor's note that had already been given to us" and affirming that Lucero "wanted to go back to her regular responsibilities")).

According to Greystar, several of Lucero's statements demonstrate only a limited willingness to resume her prior duties. Greystar Mot. at 10-11. For one, Greystar points to a purported admission by Lucero that she agreed with her physician's restriction and wanted to abide by the limitations. Lucero Dep. at 66 (Lucero agreed that she "was willing to work according to what [the medical restrictions] indicated") and 70 (Lucero agreed with statement that she "want[ed] to follow [her] doctor's advice to make sure that [she] and [her] child were safe"). Greystar also cites an unsigned letter dated February 19, 2009, which Lucero prepared with the help of a coworker, outlining the cleaning products with which Lucero was and was not willing to work. Lucero Dep. at 72; Greystar Mot. Ex.20 (EEOC000027). The letter, addressed "To Whom it May Concern, " Greystar Mot. Ex.20 (EEOC000027), stated, in part, id.:

Amada Lucero may perform all job-related duties with the exception of the following chemicals:
Clorox
Degreaser 409
General Purpose Simple Green
Easy Off (kitchen cleaner)
Murphy Oil Soap
Hungry Helpers - Stain and Odor Eaters
Spray Nine
Climb big ladders
She may use chemicals diluted with water. These include:
Windex or any glass window cleaner
Pledge furniture polish
Comet powder cleanser
Pine Sol
Scrubbing Bubbles - bathroom cleaner
She is able to clean clubhouses, run vacuums, dust, pull trash, and clean the fitness centers. Touch cleans and cleaning the models is okay as well.

In response, see EEOC Reply at 4-5, the EEOC notes that Lucero never gave this letter to her doctor, apparently because the doctor had already written the second letter, dated February 17, 2009. See Lucero Dep. at 71.

Greystar also points to Ervin's Affidavit of April 19, 2013. See Greystar Reply at 14. There, she averred that although Lucero "was frustrated by her inability to work and wished she had never provided the doctor's notes, [Lucero] never stated that she wanted to begin working with all cleaning chemicals, nor did she state that she wanted to disregard her doctor's recommendations." Ervin Aff. ¶ 25.

In any event, Greystar refused to allow Lucero to perform work that contradicted her physician's instructions, as set forth in the letters it had received. See Lucero Decl. ¶ 11. Accordingly, it would not permit Lucero to resume her prior responsibilities without clearance from her physician. Aaron Dep. at 60; Ervin Dep. at 15 ("I explained to [Lucero] that if her restrictions were going to change then she needed to have a doctor's note changing the restrictions that the doctor had already given her."). In other words, Greystar would not allow Lucero to waive her pregnancy-related medical restriction without her doctor's approval, and, ...


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