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Nicholas v. Windstream Communications, LLC

United States District Court, D. New Mexico

April 17, 2018

MARSHA NICHOLAS, Plaintiff,
v.
WINDSTREAM COMMUNICATIONS, LLC, Defendant.

          ORDER DENYING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          KEVIN R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER comes before the Court on Defendant Windstream Communications, LLC's motion for partial summary judgment on its affirmative defense of failure to mitigate damages. (Doc. 31). Windstream contends that Nicholas is not entitled to lost wages or benefits in this employment discrimination case because the undisputed facts establish that Nicholas did not apply for jobs or otherwise seek employment comparable to her past position with Windstream as an account executive. Nicholas largely concedes the point, but submits her self-employment at “Marsha's Vintage and Vogue Boutique, ” a limited liability company she established and operates with her husband, and her mental health preclude judgment as a matter of law. With the consent of the parties to conduct dispositive proceedings, see 28 U.S.C. 636(c), the Court has reviewed the parties' submissions (see Docs 31, 40, & 42), examined the record on summary judgment, and considered the applicable law. Having done so, the Court denies Windstream's motion.

         FACTS[1]

         Nicholas began working for Windstream in 2006 when it purchased Alltel Communications. (Doc. 1, Compl., ¶8). She rose through the ranks from administrative assistant to retail store manager in Carlsbad, New Mexico, to an account executive in 2008. (Id., ¶¶7-10) As of 2009, Nicholas reported to and was supervised by Ed Hernandez. (Id., ¶10; see also Doc. 31-1, Pl.'s Dep., at 96). By all accounts, Nicholas was a “rock star” at Windstream, selling 150 to 200 percent of her quota and earning “superior ratings.” (Doc. 1, ¶¶ 10-1; Doc. 31-1, at 90). There was an unfortunate downside, however: Hernandez had a temper. He cussed at, yelled at, intimidated, and bullied employees including Nicholas. (Doc. 31-1, at 92).

         Over time, Hernandez's behavior became intolerable and, in part, motivated Nicholas to apply for a “small-business” position within the company, away from Hernandez. (Doc. 1, ¶ 13; Doc. 31-1, at 92, 129). Although Windstream offered her the new role, it did not make sense financially. (Doc. 40-1, Pl's Dep., at 82). And Hernandez pleaded with her to stay and promised her a stake in the “West Texas market, ” including a percentage of every sale. (Id.). Nicholas agreed to stay on. (Id., at 84). Despite his assurances, Hernandez did not “stay true to his word.” (Id., at 83). Nicholas “did not get any percentage at all . . . and [Hernandez] basically took accounts from [her], [and] reassigned them to other . . . men.” (Id.).

         In late 2015, Nicholas began having health problems, which she attributes to Hernandez. (Id., at 84). For example, Nicholas would “panic when [she] would - we would have . . . team meetings . . . anytime there was an encounter with Ed, [she] would physically find [herself] getting sick” (Id.). Hernandez:

would curse, he would yell, he would intimidate, he would bully . . . and he did it to [Nicholas], and [she] became fearful. . . . [I]t would literally physically make [Nicholas] sick because [she] never knew if he was going to yell at [her] in front of the team, if he was going to cuss at [her] in front of the team, how he was going to approach it, but [Nichoals] knew that [she] was next on the list.

(Id., at 92). Nicholas felt “targeted” and “harassed” by Hernandez, and when she travelled “somewhere . . . [she'd] have to call her husband to pick [her] up because [she] was sick.” (Id. at 90, 93). Nicholas resigned from Windstream on June 2, 2016 “when [her] family became very concerned about [her] health” and when it became apparent [Hernandez] would continue to lie and set [her] up for failure and [she] would not succeed in her position.” (Id, at 91:25 - 94:15).

         After separating from Windstream, Nicholas did not apply for jobs. (Doc. 31-1, at 128-130). She asked a friend about jobs at “TDS” in Hobbs, but concluded “there was not any positions available in what [she] was trained to do.” (Doc. 40-1, Pl.'s Dep., at 131). Since resigning, however, “account executive and sales positions comparable to [] Nicholas' position at Windstream are and have been available in the relevant market[.]” (Doc. 31-1, Toney Decl., ¶ 9). Additionally, “Nicholas retains the requisite skills, training, education and work experience necessary to return to the workplace in the usual and customary occupations she has had in the past, earning a wage comparable to what she earned at Windstream.” (Id.).

         Nicholas opened “Marsha's Vintage & Vogue Boutique” in October 2016 with her husband. (Doc. 31-1, Pl.'s Dep., at 8). The boutique started off mostly selling antiques but the focus later became women's clothing. (Id. at 9). The store does not have a payroll and Nicholas does not earn a certain income, but Nicholas and her husband keep whatever money remains after bills and purchasing inventory. (Id., at 12). The shop was not profitable in 2016. (Doc. 42-1, Schedule C (Form 1040)).

         Nicholas typically spends eight hours each day at the business. (Doc. 31-1, at 9). Nicholas' husband estimates she works at least 50 to 60 hours each week there. (Doc. 40-2, Joe Nicholas Dep., at 33). At times, Nicholas has closed the shop when her husband cannot stay and takes her to the doctor, or when her son is in school, but endeavors to keep regular hours: Tuesday through Friday from 10 a.m. to 5 p.m. and on Saturday from 10 a.m. to 2 p.m. (Doc. 40-1, at 14). The boutique gives Nicholas a sense of “security” and “safety.” (Id., at 131). The work allows her to go in the back and lay down. Nicholas hopes the boutique will prosper and she will not have to seek other jobs. (Id.).

         PROCEDURAL BACKGROUND

         Nicholas commenced this action on March 27, 2017. (Doc. 1). In her four-count complaint, Nicholas alleges multiple violations of Title VII of the Civil Rights Act: Windstream created and subjected Nicholas to a hostile work environment (Count I); Windstream engaged in disparate treatment of Nicholas because she is female (Count II); Windstream retaliated against Nicholas after she complained to supervisory employees in human resources (Count III); and the retaliation resulted in a materially adverse employment action (Count IV). (Doc. 1, Compl., ¶¶ 22-29). Nicholas seeks compensatory and punitive damages, prejudgment interest, and attorney fees and costs. (See id.). On February 12, 2018, the Court dismissed Count III with ...


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