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Provencio v. Intel Corp.

United States District Court, D. New Mexico

May 17, 2018



         This is an employment discrimination case that invokes the Court's diversity jurisdiction under 28 U.S.C. § 1332. See Doc. 50. Plaintiff Jollene Provencio alleges a single New Mexico state law claim for retaliation by Intel in violation of the New Mexico Human Rights Act, N.M. Stat. Ann. §§ 28-1-1 to -15 (West 2008) (“NMHRA”), for participating as a witness in two internal Intel investigations in which she reported witnessing discrimination by Intel's management. She claims that thereafter Intel placed her in a hostile work environment resulting in Ms. Provencio being shunned and isolated by her colleagues, receiving reports that she was difficult to work with, deprived of her leadership role that comprised approximately 20-30% of her job duties, and given a negative job performance evaluation that set her on a track towards being fired.

         Now pending is Intel's Motion for Summary Judgment. Doc. 30. After careful consideration of the motion, briefs, and relevant law, the Court concludes that the motion should be granted.

         I. BACKGROUND

         Ms. Provencio worked at Intel as a Systems Analyst for 19 years without any prior discipline. Doc. 30, ¶ 1; Doc. 30-1, p. 1, 31:4-6. She worked as an “individual contributor, ”[1] but never worked as a manager, supervisor, or staff member at Intel. Doc. 30, ¶ 1.

         A. York Open Door Investigation

         In March 2015, about one year before Ms. Provencio resigned, she was a witness in Intel's internal Open Door Investigation stemming from her colleague Dwight York's charge that Intel practiced age discrimination (“York ODI”).[2] Doc. 30, ¶ 3. During an interview with an Intel investigator, Camella McIntosh, Ms. Provencio did not specifically tell the investigator that she witnessed age discrimination. Doc. 30-1, p. 4, 72:2-6. But she did tell the investigator that some of her supervisors created a hostile work environment. See Id. (Q: “But you did not alert Camella specifically to any discrimination correct?” A: “Just a hostile environment. Correct.”) She described one supervisor, Janice Lee, as a “bully” who seemed to have “issues with other women.” Doc. 33-3, pp. 1-2. She told the investigator that she should talk to another colleague, Jeanette Lee, [3] about Jeanette Lee's previous internal discrimination claim. Id. at p. 2. Ms. Provencio said of another supervisor, Randie Dorrance, that he “back[ed] his people, ” and “none of his managers will ever get written up.”[4] Id.

         About three to four months after the York ODI, in June and July 2015, Ms. Provencio's immediate supervisor, Keith Baumgardner, told her that Janice Lee, Dorrance (Baumgardner's supervisor), and Jeff Kiehne, another manager, complained that she was unapproachable and hard to work with. Doc. 33-2, ¶ 5; Doc. 30-1, p. 8, 112:11. Dorrance apparently pressured Baumgardner to “coach” Ms. Provencio about these qualities. Doc. 33-8, p. 3, 17:4-23. Coaching is a form of discipline, the first step on the ladder of Intel's progressive discipline policy. Id. at p. 3, 18:8-10; Doc. 33-6, p. 1. Intel's “Open Door Guidelines” permitted co-workers to complain about her to her direct supervisor, Baumgardner. Doc. 30-1, p. 1, 34:12-25.

         Baumgardner and Ms. Provencio had a more amicable relationship, and Baumgardner did not want to coach Ms. Provencio because he did not believe the accusations about her were true. Doc. 33-8, p. 3, 17:20 - 18:7. As her supervisor, though, he relayed these comments to her. Id. at 17:21-23. But, according to Ms. Provencio, he did not tell her that he was officially coaching her. Doc. 33-6, p.1. And in any case, he told her that the complaints did not make sense, and to not worry about them. Doc. 33-2, ¶ 6. In response, Ms. Provencio told Baumgardner that she believed Intel managers were retaliating against her for participating in the York ODI, since human resources had not before received complaints about her being unapproachable or difficult to work with. Id. at ¶ 9; Doc. 33-5, p. 5, 88:15-25.

         B. Reduction of Ms. Provencio's Job Duties

         Around the same time, in May or June of 2015 - about two to three months after Ms. Provencio participated in the York ODI - Dorrance took away Ms. Provencio's job duties as “lead” for improving the Engineering Project Tracker (“EPT”), a computer program. Doc. 33-2, ¶ 7. Dorrance instead placed Janice Lee into that position, despite Ms. Provencio's superior qualifications and the fact that EPT improvement team leader was in her job description. Id. at ¶¶ 7-8; Doc. 33-1, p. 7, 81:14. Baumgardner even told Provencio, “[t]hey [Dorrance and Janice Lee] want you removed from the team.” Doc. 33-1, p. 6, 77:16. Until Janice Lee took over, Ms. Provencio had always been the EPT improvement team since the program was developed. Doc. 33-2, ¶ 8; Doc. 33-1, p. 7. About 20-30% of Ms. Provencio's job duties were reduced following her removal as leader.[5] Doc. 33-8, p. 4, 35:10-15. Dorrance relegated Ms. Provencio to a lesser position of “facilitator.” Doc. 33-1, p. 5, 76:8-10. After the new EPT improvement team was formed, Baumgardner advised Ms. Provencio - on Janice Lee's request - to not attend the initial kick-off meeting because it was believed that she would be argumentative. Doc. 33-8, p. 4, 35:5-26-36:1-2. However, Intel managers did add Ms. Provencio to later meetings. Doc. 33-1, p. 6, 78:14. She attended about four or five more meetings after the new team was formed, merely serving as a minute-taker and providing input only when asked. Id. at p. 5, 76:16-17; p. 6, 78:20-24.

         Colleagues starting ignoring Ms. Provencio's work e-mails, impairing her ability to carry out her job. Id. at p. 16, 177:7-18. After one engineer repeatedly ignored Ms. Provencio's emails, Ms. Provencio appealed to Janice Lee for help. Id. Instead of responding, Janice Lee likewise ignored Ms. Provencio's e-mails. Id. This happened two or three times. Id. Peers began isolating Ms. Provencio. Id. at p. 14, 153:6. Her health became was affected, and she was nervous and scared. Id. at p. 13, 152:10-23.[6]

         Then, in June 2015, three months after the York ODI, Intel reneged on a promise to allow Ms. Provencio to use a spare work room. Id. at pp. 8-9, 100:8-25-101:1-25. Kiehne later assigned the room to himself. Id. at p. 9, 104:21-25. When Ms. Provencio protested in a June 10, 2015 email to Kiehne, calling his actions “disrespectful and underhanded, ” he closed his reply e-mail by saying “Just FYI I am copying my manager as I do not want him to hear from someone else that these statements were made.” Doc. 33-7, pp. 1-2.

         C. Ms. Provencio's First Internal Complaint

         In mid-June 2015, Ms. Provencio made an internal complaint with Intel's human resources department alleging retaliation, the first such complaint she had ever made in her 19 year career there. Doc. 30-1, p. 11, 188:12-25. David Sanchez, a human resources employee, investigated her complaint. Doc. 36-1. After completing his investigation, Sanchez said that he could not substantiate Ms. Provencio's claims. Id. at p. 2. He wrote in a post-investigation report that he found no support that Kiehne or Janice Lee retaliated against Ms. Provencio for acting as a witness in internal investigations. Id. He also stated that he found no evidence suggesting that individuals who worked in Ms. Provencio's organization knew she participated as a witness in the York ODI. Id.

         Sanchez did find, however, that Kiehne and Dorrance should be given documented “coachings” - i.e. disciplined - for certain misbehaviors. Sanchez recommended that Kiehne receive a coaching for telling a staff member, “if people want to learn to keep their jobs around here they need to shut their mouth.” Id. at p. 3. As for Dorrance, Sanchez found that he instilled fear in his staff, modeled inappropriate behavior, and was a poor manager. Id. at pp. 2-3. When Sanchez met Dorrance in August 2015 to discuss the post-investigation findings, Dorrance - enraged - pressured Sanchez to reveal who complained about him. Doc. 33-9, p. 1. In a later email to his superiors, Sanchez wrote that he was “concerned about Randie Dorrance's behavior towards Jollene since Randie was upset about the June 2015 investigation and Randie wanted to know who I talked with during my investigation.” Id. Despite Intel's ability to transfer or move Ms. Provencio to another department, Intel never did so. Doc. 33-5, p. 4, 67:6-9. By fall of 2015, Baumgardner told Ms. Provencio that she should take a new job outside of her department. Doc. 33-2, ¶ 10. Frustrated by months of hostility at work and sensing that it would not let-up, Ms. Provencio spent November and December 2015 looking for another job. Doc. 33-1, p. 13, 152:10-15.

         Around December 2015 - nine months after Ms. Provencio participated in the York ODI - Dorrance again pressured Baumgardner to coach Ms. Provencio about her being unapproachable and difficult to work with, even though Baumgardner thought it was unwarranted. Doc. 33-9, p. 7. In a December meeting, Dorrance, Baumgardner, and Kiehne, met to discuss what the “issues” were concerning Ms. Provencio. Id. at p. 2. Dorrance asked Baumgardner if Ms. Provencio was “the one who went to HR.” Id. Baumgardner confirmed this suspicion, telling Dorrance that she “was involved in 3 to 4 HR things this past year.” Id. This disclosure drew a sharp rebuke from human resources, which later coached Baumgardner, telling him “that he should not be divulging who has talked to HR or discussed concerns with HR.” Id.

         D. Down-graded Job Performance Evaluation

         In Ms. Provencio's annual job performance review for 2015, Intel down-graded her job performance rating. Before she participated in the York ODI and made her own internal complaints, Intel rated her performance as “Exceeds Expectations, ” entitling her to a $3, 623 bonus. Doc. 33-4, p. 1; Doc. 30-1, p. 4, 68:1. In the following evaluation, after she participated in the York ODI, Intel rated her as “Successful, ” noting that she must “internalize constructive confrontation”; “need[ed] to improve how she comes across when she is not in agreement or proposes a different solution”; and “need[ed] to fully understand when she is the key decision maker and when she is not.” Doc. 33-4, p. 3. A rating of “Successful” entitled Ms. Provencio to a diminished bonus of $1, 700. Doc. 30-1, p. 7, 110:14 - 111:25. Moreover, before participating in the York ODI, Ms. Provencio had been rated previously as a “Regularly High Performer.” Doc. 33-9, p. 6.

         Also, when her annual review was delivered to her in January 2016, Sanchez from human resources attended the performance review, a sign that he was there to deliver bad news, according to Ms. Provencio. However, in a deposition Sanchez stated that while not typical, it also not unusual for a human resources representative to be present during ...

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