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Zelaya v. Unicco Service Co.

August 20, 2010


The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge


This matter comes before the Court on defendant UNICCO Service Company's ("UNICCO") and defendant Carlos Alarcon's "Motion [51] for Partial Summary Judgment". Upon full consideration of the motion, the opposition and reply thereto, the applicable law, and the entire record herein, the Court finds, for the reasons set forth below, that defendants' motion for partial summary judgment will be DENIED in part and GRANTED in part.


Plaintiff Blanca Zelaya worked for defendant UNICCO as a custodian providing cleaning services at 1200 K Street in Washington, D.C., starting in 2004. (Compl. ¶ 9.) Plaintiff alleges that from January 2005 until November 2006, UNICCO discriminated and retaliated against her based on her gender, and defendant Carlos Alarcon sexually harassed her, creating a hostile work environment. (Compl. ¶¶ 15-60.)

With respect to the actions of individual defendants, plaintiff alleges that her problems at UNICCO began shortly after January 4, 2005, when UNICCO promoted Alarcon to the position of Building Operations Manager at 1200 K Street. (Compl. ¶ 13.)

As Manager, Alarcon supervised plaintiff. (Compl. ¶ 13.) According to plaintiff, almost immediately after becoming supervisor, defendant Alarcon began making offensive and unwelcome sexual comments and sexual advances toward her while she was pregnant. (Compl. ¶ 15.)

Plaintiff alleges that from January 2005 and continuing until April 2006, Alarcon subjected plaintiff to an extensive campaign of explicit comments, sexual propositions, unwanted touching, harassment, and other retaliatory job-related conduct after she refused his advances. (Compl. ¶¶ 15-60.) Plaintiff further alleges that Alarcon facilitated the revocation of her health insurance benefits and enlisted the support of other individuals on his behalf. Specifically, Alarcon first involved Oscar Argueta to "monitor" plaintiff, and to seek a reason to fire her in early 2005. (Compl. ¶¶ 21-23.) She subsequently took extended leave from her job, beginning of May 18, 2005, and gave birth to her child. (Compl. ¶¶ 21-23.)

Thereafter, beginning at some point after August 2005 when plaintiff returned to work following the birth of her son, Alarcon allegedly enlisted Carlos Fernandes to monitor plaintiff. He allegedly issued inaccurate disciplinary notices, eliminated her break, and attempted to drive her to a meeting with a human resources officer about her complaints of harassment. (Compl. ¶¶ 34, 35, 45, 56.)

Plaintiff filed a discrimination complaint with the District of Columbia Office of Human Rights ("DCOHR") on April 18, 2006, listing UNICCO as the respondent and attaching her signed declaration. The first paragraph reads as follows:

I, Blanca Zelaya, this 14th day of April, 2006, am submitting this declaration in support of my claims against the UNICCO Services Company ("UNICCO") for sexual harassment, creation of a hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq., and against UNICCO and Carlos Alarcon, Operations Manager, for sexual harassment, sex discrimination, and unlawful retaliation in violation of the District of Columbia Human Rights Act ("DCHRA"), D.C. Code §§ 1-2501 et seq. (emphasis added).

(DCOHR Compl. Form; Pl.'s Opp'n to Defs.' Mot. to Dismiss, Ex. A [13-2].) The DCOHR complaint was cross-filed with the Equal Employment Opportunity Commission ("EEOC"). (Compl. ¶ 74.) The charge of discrimination generated during this process was sent via certified mail to UNICCO on April 28, 2006, lists UNICCO as the employer that discriminated against the plaintiff, and under the section allowing for description of the particulars of the charge, only generically refers to a singular "Respondent's Building Operations Manager (Male)." (DCOHR Charge of Discrimination; Defs.' Reply to Pl.'s Opp'n to Defs.' Mot. to Dismiss, Ex. 1 [14-2].)

In addition, plaintiff alleges that UNICCO retaliated against her in July 2006 by denying her time off to attend a mediation of her claims by DCOHR. (Compl. ¶ 58.) On November 9, 2006, UNICCO assigned plaintiff to a position at another building. (Compl. ¶ 63.) Plaintiff alleges that UNICCO's retaliation culminated in her termination by transferring her to another building, where she claims UNICCO knew it would soon lose the maintenance contract. (Compl. ¶¶ 63-64.) On April 23, 2007, UNICCO lost the contract on the building, and plaintiff was no longer employed by UNICCO as of that date. (Compl.¶ 66.)

A new company, Cavalier, took over responsibility for cleaning the building and offered plaintiff a position, which she turned down. (Compl. ¶¶ 66, 69.) However, plaintiff alleges Cavalier constructively discharged her by offering her a work schedule preventing her from taking care of her son, even though other positions were available. (Compl.¶¶ 68-69.) Plaintiff alleges that defendants UNICCO and Alarcon made false and defamatory statements about the plaintiff, which caused Cavalier to offer her the untenable work schedule. (Compl.¶¶ 68-69.) Plaintiff states that Cavalier should have offered her a different position because she had more seniority than the two other employees at the work site who held daytime positions like her.*fn1 (Compl. ¶ 68.)

Plaintiff withdrew the complaint she previously filed with DCOHR on November 14, 2007 and requested a Right to Sue Notice from the EEOC, which the EEOC issued on December 5, 2007. (Compl. ¶ 74.) On December 21, 2007, plaintiff filed the complaint in this matter. The complaint consisted of five counts as follows: (1) Title VII discrimination against defendant UNICCO; (2) DCHRA discrimination against defendant UNICCO and its individual employees, defendants Alarcon, Argueta, and Fernandes; (3) Title VII and DCHRA retaliation against defendant UNICCO; (4) DCHRA aiding and abetting of defendant UNICCO's retaliation by defendants Alarcon, Argueta, and Fernandes; and (5) intentional interference with prospective contractual relations against defendant UNICCO. The Court dismissed count (5) against defendant UNICCO and all counts against defendants Argueta and Fernandes, and denied defendant Alarcon's Motion to Dismiss. Defendants' motion for partial summary judgment targets counts (3) and (4).


Defendants request the Court to grant summary judgment on plaintiff's retaliation complaint. Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). "In assessing whether a genuine issue exists, we 'view the evidence in the light most favorable to the nonmoving party.'" Porter v. Shah, 2010 U.S. App. LEXIS 11033 at *7 (quoting Miller v. Hersman, 594 F.3d 8, 10 (D.C. Cir. 2010)). A genuine dispute of material fact concerning the lapse in plaintiff's health benefits does not exist; thus, summary judgment on this issue is appropriate.*fn2

Retaliation claims are governed by a three-step test established in McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802 (1973). A movant must display that 1) she was part of a protected class; 2) suffered a materially adverse action, and; 3) the adverse action is causally connected to the plaintiff's status within the protected class. Id. A materially adverse action is one that "could well dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Sante Fe Ry. v. White, 548 U.S. 53, 57 (2006) (other internal quotation omitted), or one resulting in "materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm." Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002). Examples of adverse employment actions include "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998).

"If the plaintiff [satisfies the McDonnell Douglas test], then the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for its action." Taylor v. Solis, 571 F.3d 1313, 1320 (D.C. Cir. 2009) (quoting Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007)). "If the employer does so, then the court 'need not -- and should not -- decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas." Id. (quoting Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (emphasis in original)). "The court should proceed to the question of retaliation vel non." Id. "The court can resolve that question in favor of the employer based either upon the employee's failure to rebut its explanation or upon the employee's failure to prove an element of her case." Id.


Plaintiff brings a retaliation claim against defendant for revoking her health insurance benefits. Defendants submit that plaintiff's retaliation claim for lapses of health insurance benefits is time-barred. The Court finds that plaintiff's retaliation claim for benefits lapses exceeds the statute of ...

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