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Tinoco v. Thesis Painting, Inc.

United States District Court, D. Maryland, Southern Division

September 24, 2018

ARELIS TINOCO, Plaintiff,
v.
THESIS PAINTING, INC., Defendant.

          MEMORANDUM OPINION

          GEORGE J. HAZEL UNITED STATES DISTRICT JUDGE.

         This action stems from Plaintiff Arelis Tinoco's discrimination claims against her former employer, Defendant Thesis Painting, Inc., for purported violations of Chapter 27 of the Montgomery County Code. Pending before the Court is Defendant's Motion for Summary Judgment, ECF No. 39, and Motion to Strike Declaration and In Limine, ECF No. 58. A hearing is unnecessary. Loc. R. 105.6 (D. Md. 2016). For the reasons stated below, the Court will grant in part and deny in part Defendant's Motion for Summary Judgment and deny Defendant's Motion to Strike.

         I. BACKGROUND[1]

         Defendant Thesis is a woman-owned business that offers commercial painting and wallpapering services. ECF No. 39-12 ¶¶ 2, 8. Thesis employed Plaintiff Arelis Tinoco from March 26, 2014 to March 2, 2015 as a cleaner/painter's assistant. ECF No. 57-1 ¶ 2. While working on projects for Thesis, Ms. Tinoco worked in a predominately male environment. ECF No. 57-1 ¶ 7. Ms. Tinoco is “pretty and feminine, ” ECF No. 39-8 ¶ 3, and she dressed differently than her colleagues, ECF No. 39-19 ¶ 4.

         When it hired Ms. Tinoco, Thesis promised to train her as a painter. ECF No. 57-1 ¶ 3; ECF No. 40-12 ¶ 7. Thesis co-owner, Angelo Spyridakis, told Ms. Tinoco that he would instruct the foremen to assign her painting jobs and provide her with training. ECF No. 57-1 ¶ 36. When she complained to Mr. Spyridakis around December 2014 that she had not yet received this training, he told her that he did not want to keep her as a $13.00 an hour cleaner when she could work at McDonalds for $10.00 an hour and not have to put up with the hours, physical labor, and dirt that come with a job in construction. ECF No. 40-12 ¶ 7. He apparently intended this comment to mean that the company planned to train Ms. Tinoco as a painter, id., but Ms. Tinoco understood the comment to be dismissive of her complaint, ECF No. 57-1 ¶ 6. Ms. Tinoco never received the training that she had been promised, and she observed that training and painting job opportunities were given only to men. ECF No. 57-1 ¶ 3.

         A. Disparaging sexual rumors

         While Ms. Tinoco worked as a cleaner, Thesis employees made sexual comments about her and spread rumors about her that were of a sexual nature. See e.g., ECF No. 39-11 ¶ 6; ECF No. 39-13 ¶ 7; ECF No. 39-14 ¶ 4; ECF No. 39-17 ¶ 7; ECF No. 39-18 ¶ 6. For example, a Thesis foreman, Carlos Amaya, heard a false rumor that he “was having sexual relations” with Ms. Tinoco. ECF No. 39-17 ¶ 7. Mr. Amaya did not bring this false rumor to the attention of higher-level management, id., but word of it reached Barbara Spyridakis, Thesis's President, through an anonymous source. ECF No. 40-11 ¶ 4.

         Thesis employees also spread a rumor that Ms. Tinoco would perform sexual favors for $100. See e.g., ECF No. 39-11 ¶ 6; ECF No. 39-17 ¶ 7. The crew member that began this prostitution rumor, Edgar Urquidi (nicknamed Cachito), falsely told Thesis employees that “he'd had sex with Ms. Tinoco.” ECF No. 39-11 ¶ 6. Urquidi also disparaged Ms. Tinoco by telling his coworkers that she had sex with him in the presence of her daughter, ECF No. 40-6 at 7, and that she charged him $100, ECF No. 57-1 ¶ 9.[2] The disparaging prostitution rumor was widespread enough that a cargo elevator operator told Ms. Tinoco that he heard people talking about her selling sexual favors, ECF No. 57-1 ¶ 10, and a new painter who had never worked with Ms. Tinoco before asked for “the girl who charges $100, ” ECF No. 57-1 ¶ 12.[3]

         These experiences impacted Ms. Tinoco emotionally; she had frequent headaches, sleepless nights, and an irregular appetite. ECF No. 57-1 ¶ 13.

         B. Sexual propositioning

         In January 2015, Ms. Tinoco was working at the Twinbrook project. ECF No. 40-6 at 10. The Twinbrook project had no foreman. Id. Ms. Tinoco believed that Elmer Lazo, who was the foreman working on a project closest to the Twinbrook Project, functioned as the Twinbrook's foreman. Id. During this time, Mr. Lazo sent sexual text messages to Ms. Tinoco, at least some of which made her uncomfortable. ECF No. 57-1 ¶ 16-21; ECF No. 57-3; ECF No. 40-7 at 2.[4]Mr. Lazo used a company phone to send these messages. ECF No. 40-3. On January 12, 2015, Mr. Lazo messaged Ms. Tinoco at 6:25 AM “when we gonna fuck.” ECF No. 57-3 at 10. Ms. Tinoco responded that she was going into work at 7:00AM. In response, Mr. Lazo told Ms. Tinoco that he would pay her for the day if she would not go into work so they could have sex. Id. He insisted that she “better take [the] offer, ” id. at 11, and when she deflected, he propositioned her again: “u didn't want me 2 pay u for the day.” Id. She replies, “I'm afraid not to show up to work.” Id. During this exchange, in which Mr. Lazo pressured Ms. Tinoco to allow him to pay her for sex and to convince her not to go into work, Ms. Tinoco asked Mr. Lazo “what do you want” and texted him “you scare me.” Id. He continued, “how u want me 2 convince u” and “wats the problem.” Id. at 12. When Ms. Tinoco responded that she never thought Mr. Lazo wanted “to sleep with” her, Mr. Lazo said “I thought of it cuz those idiots at that company cuz they talkin shit for no reason.”

         Despite Ms. Tinoco's deflections and her “you scare me” text, Mr. Lazo continued to message her throughout the day: at 8:09AM, “don't tell me u gonna bail, ” at 9:29AM “u made up ur mind or u still thinkin bout it, ” at 3:52PM “when can i c u, ” and at 4:07PM “u gonna leave me wantin 2 make love 2 u thats so mean baby.” Id. at 12. Mr. Lazo texted Ms. Tinoco again on January 14, 2015, but Ms. Tinoco never responded. ECF No. 57-3 at 14.

         Thesis has written policies related to “no call/no show absences from work.” ECF No. 40 ¶ 4. Specifically, “[e]mployees are expected to be at work on time and should plan their commute accordingly. If an employee arrives late, leaves early, or otherwise alters his/her normal work schedule without prior approval from management, he/she will only be paid for the hours worked or be expected to make up this time. Any time missed or not made up will be unpaid.” ECF No. 40-1 at 12. Further, “[a]ny employee who fails to maintain an acceptable attendance record will be subject to disciplinary actions, unexcused absence or tardiness may affect future promotions and/or raises.” Id.

         As a foreman, Mr. Lazo was responsible for informing Thesis ownership about who worked on a particular day. ECF No. 57-3 at 2-3. He thus had the power to report that Ms. Tinoco worked even if she took him up on his “offer” to not go into work. Id. In addition to reporting attendance, foremen review employees' timecards, ECF No. 57-1 ¶ 24, ensure all job reports were “completed accurately, honestly, and on time, ” ECF No. 57-4 at 2, and are empowered to discipline and possibly dismiss employees at the job site, id., ECF No. 57-1 ¶ 37. Foremen also provided instructions on how and where painters and painter's assistants should work. ECF No. 57-1 ¶ 33. At staff meetings, Mr. Spyridakis would ask foremen to stand so that they could be seen by all staff and employees would know from whom they should take instructions on the job. ECF No. 57-1 ¶ 32.

         C. Response from Thesis Leadership

         Thesis has written policies related to non-harassment and non-discrimination. ECF No. 40-1. The policy is written in English and there is no written Spanish-translation. ECF No. 57-2 at 10. Mr. Lazo could not read or understand the policy. ECF No. 57-2 at 10. When asked what was explained about the policy to him in Spanish, Mr. Lazo testified “well, she says that this was - well I don't remember what it was. She just asked us to sign it.” Id. A number of Thesis's other foremen speak Spanish as their first language and chose to write their affidavits to the Court in Spanish rather than English. See e.g., ECF No. 39-11; ECF No. 39-17; ECF No. 39-19.

         On January 23, 2015, Ms. Tinoco complained to Barbara Spyridakis that Mr. Lazo had propositioned her for sex and that other Thesis employees had spread disparaging, sexual rumors about her. ECF No. 57-1 ¶ 22; ECF No. 40-11 ¶¶ 7-8. Ms. Spyridakis assured Ms. Tinoco that she would investigate the matter and that this type of conduct would not be tolerated by Thesis. ECF No. 40-11 ¶¶ 5-8.

         Ms. Spyridakis and Mr. Spyridakis met with Mr. Lazo on January 26, 2015. Id. ¶ 12. Ms. Spyridakis advised Mr. Lazo to stop any non-job-related communications with Ms. Tinoco. Id. She also explained that “retaliation was not allowed and would not be tolerated and further incidents or retaliation could lead to his termination.” Id. Thesis investigated Ms. Tinoco's complaint, id. ¶¶ 14-17, and Ms. Spyridakis began monitoring Mr. Lazo's company phone records to ensure that he stopped communicating with Ms. Tinoco, id. ¶ 22. On February 2, 2015, Thesis held a sexual harassment training session for its foremen and other management employees. Id. ¶¶18-19.

         Shortly after she complained to Ms. Spyridakis, Ms. Tinoco's hours were drastically reduced. ECF No. 57-1 ¶ 23. Thesis's business is seasonal because painting and wallpapering cannot be accomplished unless project sites are conditioned to at least 45 degrees Fahrenheit. ECF No. 40-10 ¶ 8. Thesis consistently reduces employees' hours during the less-busy December through April season. Id. ¶ 7. Consistent with that historical practice, Thesis reduced the number of employees it had working in the field in early 2015. ECF No. 40-5. The timeframe for when Ms. Tinoco's hours were cut overlapped with this seasonal decline in Thesis's work. Additionally, at that time, Thesis had two ongoing projects that required security clearances, which could be obtained only by American citizens. 40-10 ¶ 8. Because Ms. Tinoco is not an American citizen, Thesis could not offer her work on these two projects. Id.

         Ms. Spyridakis claims that after receiving Ms. Tinoco's complaint, she confirmed Ms. Tinoco and Mr. Lazo would not be assigned to work on any of the same projects. ECF No. 40-11 ¶ 13. However, when Ms. Tinoco received her first work assignment after her January conversation with Ms. Spyridakis, she learned that Mr. Lazo was assigned to the same project. ECF No. 57-1 ¶ 25. When she learned that she had been assigned to work on the same project as Mr. Lazo, she felt compelled to resign. ECF No. 57-1 ¶ 24. On February 25, 2015, Ms. Tinoco did not report to work as scheduled, and on March 5, 2015 Thesis received a letter from Ms. Tinoco's counsel regarding her discrimination claims. ECF No. 40-11 ¶ 24.

         D. Procedural background

         On June 24, 2015, Ms. Tinoco filed a Charge of Discrimination with the Montgomery County Human Rights Commission alleging hostile work environment harassment and constructive discharge. ECF No. 58-3. She filed a complaint on January 20, 2016 in the Circuit Court for Montgomery County, Maryland. Defendant removed the matter to this Court on March 15, 2016. The parties conducted discovery, although Thesis chose not to depose Ms. Tinoco. Thesis moved for summary judgment. ECF No. 39. Ms. Tinoco filed an opposition, ECF No. 57, which she supported with a declaration, ECF No. 57-1. Thesis replied, ECF No. 59, and moved to strike Ms. Tinoco's declaration, ECF No. 58. Plaintiff opposed Defendant's Motion to Strike or in Limine, ECF No. 60, and Defendant replied. ECF No. 61.

         II. STANDARD OF REVIEW

         Summary judgment is proper if there are no issues of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett,477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Francis v. Booz, Allen & Hamilton, Inc.,452 F.3d 299, 302 (4th Cir. 2006). A material fact is one that “might affect the outcome of the suit under the governing law.” Spriggs v. Diamond Auto Glass,242 F.3d 179, 183 (4th Cir.2001) (quoting Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248, (1986)). A dispute of material fact is only “genuine” if sufficient evidence favoring the non-moving party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.S. at 248-49. However, the nonmoving party “cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Beale v. Hardy,769 F.2d 213, 214 (4th Cir.1985). The Court may rely on only facts supported in the record, not simply assertions in the pleadings, in order to fulfill its “affirmative obligation . . . to prevent ‘factually unsupported claims or defenses' from ...


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