United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE.
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.
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.
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.
Disparaging sexual rumors
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.
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 ¶
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.
experiences impacted Ms. Tinoco emotionally; she had frequent
headaches, sleepless nights, and an irregular appetite. ECF
No. 57-1 ¶ 13.
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.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
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.
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
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.
Response from Thesis Leadership
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.
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.
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.
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.
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.
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
STANDARD OF REVIEW
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