United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY
MATTER is before the Court on Defendant's Motion for
Summary Judgment, filed May 9, 2019 (Doc.
33). Having reviewed the parties' briefs and
applicable law, the Court finds that Defendant's motion
is well-taken in part and, therefore, is GRANTED IN
PART AND DENIED IN PART.
asserts she was subjected to a hostile work environment, was
constructively discharged, and received less pay than her
male counterparts. Plaintiff is a former branch manager for
Defendant MRC Global, Inc. She alleges the following claims:
Count I - Constructive discharge in violation of Title VII of
the Civil Rights Act of 1964
Count II - Severe Emotional Distress
Count III- Violation of the New Mexico Fair Pay for Women
motion for summary judgment may be granted only when
“the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(a). Summary
judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact. Munoz v. St. Mary Kirwan
Hosp., 221 F.3d 1160, 1164 (10th Cir. 2000). When
applying this standard, the court examines the record and
makes all reasonable inferences in the light most favorable
to the non-moving party. Id. The movant bears the
initial burden of establishing that no genuine issue exists
as to any material fact. See Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970). A court cannot weigh the
evidence and determine the truth of the matter. Rather, where
the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no genuine
issue for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (quoting First
Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S.
253, 289 (1968)).
statement of facts are generally undisputed. Plaintiff
asserted additional facts, which Defendant generally disputes
as “subjective”, but Defendant did not object to
each fact with particularity or explain with particularity
why each additional fact is not supported by the record.
Rather, Defendant generally argues that Plaintiff view of her
employment situation is irrelevant. Defendant asserts that at
trial, it may produce evidence to controvert
Plaintiff's additional facts, but Defendant did not do so
in its reply. This is not sufficient under either Federal
Rules of Civil Procedure or the local rules to create a
genuine dispute of fact. Therefore, the Court deems
Plaintiff's additional facts to be undisputed, but will
omit immaterial facts below. The Court finds that the
following material facts are not in genuine dispute:
Background and Promotion to Branch Manager.
provides supplies to businesses operating in the oil and gas
industry. Plaintiff worked for Defendant in its Carlsbad, New
Mexico branch, in her final position as branch manager.
Plaintiff previously worked for Production Specialty as an
administrative assistant for five years before Defendant
acquired that company. Defendant promoted her to
“inside sales” after it acquired Production
November 4, 2014, Defendant promoted Plaintiff to assistant
manager. Defendant selected Plaintiff over another male sales
employee. Her branch manager was David Ramirez, who was
supervised by Defendant's Regional Operations Director
Daniel Rappe. Eventually her branch manager left, and the
position was open. It appears there were two other applicants
for the branch manager position. Plaintiff does not know who
they were, whether they were interviewed, or their gender.
The branch manager position was first offered to another male
employee, who apparently declined the position. As assistant
manager, Plaintiff believed she was next in line and applied
for the position.
Rappe gave Plaintiff an offer letter for the manager position
without an interview. Plaintiff viewed the promotion to
Branch Manager as a “good thing.” Mr. Rappe was
Plaintiff's direct supervisor once she was promoted to
Branch Manager. When she was promoted, Defendant gave her a
raise to $75, 000. Plaintiff was the only female member of
management and was manager for approximately one year before
Disrespect and Lack of support by her immediate
supervisor, Daniel Rappe
April 2017, Plaintiff sent an employee Ralph Olivas home
after he told her in a meeting that no one respected her.
Daniel Rappe told her she did not have the authority to send
him home. This contradicted the human resources department,
which told Plaintiff she has authority to send employees
home. In her discussion with Mr. Rappe, Plaintiff accused Mr.
Rappe of not “having her back.” She believed that
he supported other male managers, but not her. She also
believed she did not have a good working relationship with
Mr. Rappe, and that he did not communicate with her unless it
was to express something negative.
also believed that Mr. Rappe did not like her and she told
him so. Mr. Rappe asked what she meant and reminded her that
he promoted her to Branch Manager. In other words, Mr. Rappe
appeared to like her enough to give her a promotion.
Plaintiff contacted human resources, which confirmed she had
authority to send an employee home. Plaintiff also reported
to human resources that she felt Mr. Rappe treated her
differently from other branch managers because of her gender.
stated that Mr. Rappe did not talk to any man the way he
would talk to her, and did not give Plaintiff respect because
of her gender. As evidence, Plaintiff cited to the following
• Mr. Rappe would shake male managers' hands and
greet them, but he would walk past her office and not greet
her. He would fail to respond to her emails, but he did not
ignore her male predecessor's emails. Moreover, Mr. Rappe
did not acknowledge her at a manager's meeting, but did
acknowledge other male managers.
• When Plaintiff was an assistant manager, work was
passed down to her from her Branch Manager. When she became
Branch Manager, she did not have an assistant manager to give
reported these concerns to human resources. Immediately
thereafter, Mr. Rappe's supervisor, Jason McAnally,
visited the Carlsbad branch and met with Plaintiff for half a
day. She stated he treated her “super nice.” They
met again the following day to address Plaintiffs concerns.
Mr. Rappe and Mr. McAnally subsequently supported her writing
up Ralph Olivas for being disrespectful to her. When Mr.
McAnally left, Plaintiff was satisfied. Mr. McAnally told her
to bring future concerns to him, and not human resources. Mr.
McAnally told her that Mr. Rappe would not be coming around
her and that she did not have to worry about retaliation.
Plaintiff agrees that no one disciplined her or retaliated
against Plaintiff for (1) sending Mr. Olivas home or (2)
reporting the alleged discrimination.
Plaintiff notes the following further evidence of disrespect
• Other new branch managers were provided with new
trucks, but Plaintiff was not. Rather, she inherited the
previous manager's truck, which had a broken grill,
broken windshield, and cigarette burn marks. Mr. McAnally
arranged to provide her with a new truck. Defendant provided
Plaintiff a new Dodge Ram work truck within two months of
Plaintiffs request. To do so, Defendant re-rerouted a male
Branch Manager's new truck to Plaintiff.
• When Plaintiff and Mr. Rappe were going to lunch, he
told her “I don't know how a company man is gonna
take going out to eat with a woman…” Plaintiff
took that to mean he did not know how a customer would feel
having a business lunch with her. Plaintiff is not aware of
any customers who did not want to work with her because she
is a woman.
• Plaintiff asked for a raise in January 2018, and Mr.
Rappe told her she did not qualify for one. She does not know
why she didn't qualify for one. Every other employee at
her branch received a raise.
• Mr. Rappe had offered to help Plaintiff prepare for
her branch assessment but did not show up. He would spend
upwards of two weeks helping other male branch managers
prepare for their assessments.
• Mr. Rappe took a driver from Plaintiff s branch to use
him at different locations, while at the same time charging
the driver's hours to her branch and telling Plaintiff
she had to cut hours at her branch.
Rappe never put Plaintiff on a performance improvement plan
or disciplined her. Plaintiff contends Mr. Rappe is the only
employee of Defendant who discriminated against her because
of her gender. Plaintiff admits Mr. Rappe never made any
sexual comments to her.