MEMORANDUM DECISION AND ORDER GRANTING [26] DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

DAVID NUFFER, District Judge.

Plaintiff Hernan Valdez ("Valdez") filed this lawsuit on January 6, 2016, alleging: (1) discrimination on the basis of race and color in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") against Defendant Tyco Integrated Security LLC ("Tyco"); (2) discrimination in violation of the Age Discrimination and Employment Act against Tyco; (3) discrimination on the basis of race and color in violation of Title VII against Defendant Jan Giddings ("Giddings"); (4) hostile work environment harassment in violation of Title VII against Tyco; (5) pay inequality in violation of Title VII against Tyco; and (6) discrimination on the basis of race in violation of 42 U.S.C. § 1981.1

Valdez's age and equal pay claims and his claims against individual Defendant Giddings at the pleading stage.2 Tyco moved for summary judgment against Valdez's remaining race and color claims.3 After careful review of the memoranda and evidentiary materials submitted by the parties, the determination was made that Tyco's motion should be GRANTED without oral argument.4 Tyco was instructed to prepare a draft a proposed memorandum decision and order and serve a copy on Valdez.5 Valdez did not object to the proposed order.

Contents

1. Tyco designs, installs, and maintains integrated security and surveillance systems to detect intrusion, fire, environmental conditions, industrial processes and other hazards.7

2. Tyco employed Valdez as an Installer of commercial security systems in Salt Lake City, Utah, most recently from August 2005 until April 2013. Valdez's primary duties involved the servicing and installation of fire alarm systems. Valdez's position frequently required him to drive a van between worksites, work at heights, and work with electricity.8

3. Valdez alleges that four Tyco employees took discriminatory action against him during his employment with Tyco: Giddings, Scott Hill ("Hill"), Rob Stokes ("Stokes"), and Dennis Williams ("Williams").9 Of those four persons, only Giddings was authorized to hire, fire, demote, formally evaluate, or issue written discipline to Valdez.10

Valdez's Allegations Regarding Giddings

4. Valdez identified the following allegedly discriminatory acts taken by Giddings: (a) Valdez walked in on a conversation between Giddings and another employee and believes Giddings was saying to the employee (or was about to say) "I hate Mexican music," but all Valdez overheard was "I hate Mexican"; (b) Valdez sometimes had difficulty obtaining tools he needed for his job; and (c) after Valdez left Tyco's employment, Giddings did not allow him on company premises to retrieve his tools from his work van.11

5. Valdez never heard Giddings say anything negative to him about Mexicans or Hispanics.12 He never heard Giddings say anything he perceived to be negative about Mexicans or Hispanics, except for the comment he overheard about her dislike of Mexican music, noted above, which she made to another employee.13 He does not remember whether he heard Giddings say anything he found offensive in 2012, the last year Valdez reported to work.14 Giddings always approved Valdez's requests for tools eventually, and while it may have taken a follow-up request, Valdez ultimately received the tools he needed to perform his job, except for a "couple times."15

Valdez's Allegations Regarding Hill

6. Valdez alleges that Hill made general negative comments about Mexicans and would not work with him on certain jobs.16 However, Valdez worked with Hill only "about three times in [his] whole career" and would only see him in passing when jobs were assigned.17 Valdez occasionally overheard Hill make remarks in the parking lot about throwing rocks at Mexicans coming over the border and taking "Mexican showers."18 However, Hill never directed negative comments to Valdez.19 Valdez does not remember whether Hill said anything he found offensive in 2012, the last year Valdez reported to work.20

7. In November 2011, Valdez believes Hill "got [Valdez] in trouble" by reporting that Valdez had left material unsecured at a worksite.21

Valdez's Allegations Regarding Stokes

8. Valdez alleges that Stokes made "burro jokes," "Juan Valdez coffee" jokes, and "Mexican shower" jokes.22 However, Valdez worked with Stokes only "about four times."23

Valdez's Allegations Regarding Williams

9. Valdez worked with Lead Installer Dennis Williams frequently.24 According to Valdez, Williams did not make Mexican jokes every time he and Valdez worked together, but, in the break room, where Williams "had a crowd for everybody to laugh and `whooo,' and all this stuff," then Williams made Mexican jokes.25 At his deposition, Valdez could recall only four jokes by Williams: (a) in reference to Valdez, Williams would joke "Watch out for him because he'll steal your stuff"; (b) in a conversation with Hill, Valdez overheard Williams refer to Mexicans crossing the border as "wetbacks"; (c) Williams made "burrito jokes" when everybody was eating burritos; and (d) Williams said "here comes Juan Valdez and his burro" every time Valdez had his cart, which Valdez admitted he thought was funny, at least at first.26 Valdez did not think Williams told jokes to make Valdez feel bad; Valdez believed Williams told the jokes to be funny.27

10. In 2011, Williams had Valdez "dig a trench to bury a pipe."28

Valdez's Failure to Complain

11. Tyco's Handbook contains robust anti-discrimination, anti-harassment, and anti-retaliation policies, and procedures for reporting harassment.29 Valdez received a copy of the Handbook.30 He was also aware of Tyco's channels for reporting harassment.31

12. Valdez testified at two separate depositions that he did not complain of harassing conduct to any management-level employee of Tyco or utilize any of Tyco's other reporting channels.32 He further testified that he did not complain because he thought he could "hold [his] own and be able to stomp [the harassment] out himself," because he did not "trust authority," because "[y]ou can't complain every time someone says something," and because he thought he "would have been inundated with more paper."33

Valdez's Workplace Injury

13. In March 2011, Valdez suffered an injury while installing surveillance cameras at a slaughterhouse. While kneeling to position a camera, his protective hard hat fell off, and the top of his head touched a live electrical wire. The incident was reported and accepted as a compensable work-related injury under Utah's Workers' Compensation Act.34 Valdez attributes all his physical and mental health conditions to this injury.35

14. Valdez received wage replacement benefits from Tyco's workers' compensation insurer as a result of the injury at the slaughterhouse.36 He also received a settlement from workers' compensation for his medical treatment.37

15. After the workplace injury, Valdez took an approved leave under the Family and Medical Leave Act ("FMLA"), from May to June 2011, when he was cleared to return to work. However, after his return, Valdez continued to experience physical and mental problems that he attributed to the electrical shock injury. For example, Valdez testified that "things were going wrong," that he was experiencing dizziness, and that he had issues with his peripheral vision that caused him difficulty in driving his van.38

Valdez's Disability Leave

16. In July 2012, Valdez had a panic attack while working at heights on a ladder at a jobsite. The foreman excused Valdez from the worksite, and Valdez told Giddings about his continuing difficulties. Giddings arranged to have Valdez driven home by a coworker and recommended that he take a short-term disability ("STD") leave.39

17. The last day Valdez reported to work was July 26, 2012. At that time, he was placed on an STD leave from which he never returned. Once he was no longer in the workplace, Valdez did not communicate with the coworkers that he alleged had harassed him or experience any allegedly harassing conduct.40

18. A few days after Valdez was placed on STD leave, he saw a physician and reported a litany of physical and mental impairments, all of which he attributed to his electrical shock injury in March 2011. Those impairments included severe headaches multiple times a week, unstable mood, extreme stress and anxiety, difficulty concentrating, panic attacks, restlessness, nightmares, flashbacks, hypervigilance, severe depression, difficulty in performing household chores and caring for his daughter, sporadic appetite, lethargy, restless during sleep, significant feelings of worthlessness and guilt, anhedonia, occasional suicidal ideation, difficulty maintaining a work schedule, and moodiness.41

19. Valdez was subsequently referred to a neurologist, whose assessment of Valdez was that he was "dealing with such intense anxiety that he is unable to perform the duties of his job and cannot function." Valdez's primary care physician agreed, stating that his condition was "chronic," that it was likely that he would be incapacitated "for at least one year," that his symptoms severely impaired his ability to complete job duties, and that he was unable to perform any duties at that time.42

20. Valdez agreed with his doctors' assessments. Moreover, he testified that, with the exception of the fact that he has not "seen flashes" for a while, all the symptoms he reported to his physician in July 2012 have "stayed the same," and he suffers from all those symptoms today.43

Valdez's Termination of Employment

21. Because of the severity of his many debilitating health conditions, Valdez was never released to return to work after he was placed on STD leave in July 2012, and he did not report to a Tyco worksite again.44

22. Valdez's STD leave benefit expired January 22, 2013, at which point Tyco approved an additional, unpaid personal leave of absence until April 14, 2013, with a prospective return to work date of April 15, 2013.45 He did not return to work at that time, however.46

23. Valdez also failed to request an extension of his personal leave of absence from Sedgwick CMS ("Sedgwick"), who administers Tyco's leave benefits. On April 17, 2013, Tyco alerted Valdez that his employment would be terminated if he did not provide Sedgwick with the necessary documentation to support a leave extension. As of April 22, 2013, and despite multiple requests, Valdez still had not applied for a leave extension. Accordingly, Tyco notified Valdez that he was being terminated for job abandonment.47

24. Giddings is not aware of any employee who failed to follow Tyco's procedures for obtaining an extension of a medical leave and who failed to show up for work on three consecutive days and who was not terminated.48

25. At the time Tyco terminated Valdez's employment, his health conditions had not improved and he had not been medically cleared to return to work. At Valdez's depositions, he testified that he had not been able to safely perform the physical duties of an Installer at any time since his employment at Tyco ended.49 Valdez has not held any job since his employment at Tyco ended, and he still has not been released to work in any capacity by his doctors. Instead, Valdez pursued disability insurance benefits from the Social Security Administration ("SSA"), which made a partial award of benefits in the approximate amount of $1,600 per month as of January 29, 2016.50 To obtain those benefits, Valdez represented to the SSA that he was "unable to work" because of severe physical and mental limitations.51 In his deposition, Valdez confirmed that he has been unable to work in any capacity since the termination of his employment at Tyco in April 2013.52

Agency Proceedings

26. On August 12, 2013, Valdez filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC") and the Utah Antidiscrimination and Labor Division ("UALD"). Valdez checked the boxes for national origin, retaliation, and disability on the EEOC form; he did not indicate he had been discriminated against on the basis of race, color, or age. Valdez also did not allege that Tyco failed to accommodate him by offering him a job transfer or attribute his termination to any protected characteristic other than disability.53

27. The UALD closed its investigation on September 26, 2014, finding no reasonable cause to support Valdez's Charge.54 Valdez appealed that determination and requested an evidentiary hearing before the agency's Adjudication Division.55 After limited discovery, Tyco filed a motion for summary adjudication; Valdez responded by withdrawing his appeal.56 The EEOC issued a right to sue notice on October 14, 2015.57

28. On January 6, 2016, Valdez filed his Complaint in this Court, alleging violations of Title VII, 42 U.S.C. § 1981, and the Age Discrimination and Employment Act.58 The Complaint alleged race, color, and age discrimination and harassment under federal law only.59 Valdez abandoned any disability-related claims under the Americans with Disabilities Act or analogous state law.60

SUMMARY JUDGMENT STANDARD

A party is entitled to summary judgment when there is no genuine dispute as to any material fact and the party is entitled to judgment as a matter of law.61 The party moving for summary judgment has the initial burden of showing that there is an absence of evidence to support the non-moving party's case. Once that initial burden is satisfied, the burden shifts to the nonmoving party to make a showing sufficient to establish that there is a genuine issue of material fact for trial.62

"To defeat a motion for summary judgment, a party cannot merely rest on the allegations contained in the complaint and other filings."63 Instead, the nonmoving party must come forward with specific facts, supported by materials that would be admissible at trial, showing the existence of a genuine issue for trial.64 If the non-moving party fails to meet this burden as to one element of a claim, summary judgment is appropriate.65

DISCUSSION

A. Valdez Fails to Raise a Triable Issue of Race or Color Discrimination Under Section 1981.

1. Valdez Fails to Establish a Prima Facie Case as to Most of the Acts He Contends Are Discriminatory.

Valdez alleges that, having asserted his race played a role in certain acts taken by his supervisor, "TYCO [] must show that absent Mr. Valdez's race," the alleged discriminatory acts "would not have occurred."66 Valdez misunderstands the burdens of proof. It is Valdez, not Tyco, who bears the burden of coming forward with evidence sufficient to establish a prima facie case of discrimination by showing that: (1) he is a member of a protected class; (2) he suffered an adverse employment action; and (3) similarly situated persons outside his protected class were treated more favorably.67 Valdez's claim fails in the first instance because the majority of "discriminatory" acts he alleges are not adverse employment actions.

In the context of a discrimination claim, adverse employment actions are employment actions that "result in an adverse effect on the terms, conditions, or benefits of employment," such as hiring, discharge, and setting compensation.68 Actions that cause no more than a "bruised ego" do not suffice.69

At his deposition, Valdez identified only four Tyco employees whom he believes discriminated against him: his supervisor, Giddings, and three coworkers, Williams, Stokes, and Hill.70 Of those four persons, only Giddings was authorized to take material employment action against Valdez.71 As a result, it stands to reason that Williams, Stokes, and Hill, Valdez's peers, could not have "discriminated" against him.72

With respect to Giddings, Valdez identified the following allegedly discriminatory actions:

None are materially adverse employment actions. The first, a single off-hand comment (which was not directed at Valdez), did not adversely affect the terms, conditions, or benefits of Valdez's employment. At most, that comment resulted in a "bruised ego," which is not actionable. The second—Giddings' alleged refusal to let Valdez clean out his van—also is not a materially adverse employment action. Critically, Valdez admitted at deposition that that incident occurred after his termination.74 As such, it could not possibly have affected the terms, conditions, or benefits of Valdez's employment, which had already ended. Though a closer call, Valdez's third alleged adverse action—that he had trouble getting tools issued to him from the tool supply facility75—also does not amount to a materially adverse employment action. Valdez admits that Giddings always approved his request for tools, and while it may have taken a follow-up request, he ultimately received the tools he needed to perform his job, except for a "couple times."76 Not having access to certain tools a "couple times" during a seven-year period does not effect a material change in the terms, conditions, or benefits of employment.

Though not specifically cited by Valdez at deposition, Valdez also believes Tyco's decision to terminate his employment was discriminatory. Tyco concedes that Valdez's termination would qualify as a materially adverse employment action, but argues that Valdez's termination cannot support a discrimination claim because there is no evidence that similarly situated persons outside Valdez's protected class were treated more favorably. Tyco is correct. The only evidence in the record on this point is the declaration of Valdez's supervisor, Giddings, who attests that she is unaware of a single employee who failed to follow Tyco's procedures for obtaining an extension of a medical leave and who was not terminated.77 Valdez's claim fails on this basis alone.

2. Valdez Fails to Raise a Triable Issue of Pretext as to His Termination.

Even if Valdez could establish a material issue of fact as to each element of his prima facie case, Tyco is still entitled to summary judgment because he fails to raise a triable issue that his termination was discriminatory. When a plaintiff establishes a prima facie case, the defendant may respond with a legitimate, non-discriminatory reason for taking the adverse action.78 Once the defendant has done so, the burden shifts back to the employee to demonstrate the existence of a genuine issue of material fact as to whether that reason is pretextual.79

Pretext can be shown "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence."80 As a matter of law, neither bald assertions in the pleadings, nor a declaration that contradicts the plaintiff's prior admissions, establish pretext.81

Tyco met its burden of production by offering evidence of a legitimate and non-discriminatory reason for terminating Valdez's employment: Valdez failed to follow Tyco's procedures for obtaining a further extension of a nine-month medical leave. It is well-established that an employer's requirement that an employee provide a medical certification as a condition of returning to work "does not reflect a discriminatory animus."82

Valdez offers no direct or indirect evidence that race or color more likely motivated Tyco's decision. Direct evidence is "`evidence, which if believed, proves [the] existence of [a] fact in issue without inference or presumption.'"83 "In contrast, statements of personal opinion, even when reflecting a personal bias or prejudice, do not constitute direct evidence of discrimination."84 "At most, such statements constitute only indirect or circumstantial evidence of discrimination because the trier of fact would have to infer that the bias reflected in the statements was the reason behind the adverse employment decision."85 Stated another way, direct evidence of discrimination, standing alone, explicitly connects the allegedly discriminatory motive to the alleged adverse action.86

Valdez points to the fact that he overheard "a couple of statements about [Giddings] not liking Mexican music" as evidence of Tyco's motives.87 Those comments are not direct evidence of discrimination. Critically, Valdez does not claim that Giddings told him he was being fired because she "hate[s] Mexican[s]." Instead, Valdez asks that discriminatory motives be inferred from a comment about Giddings' dislike of Mexican music that was not related to the decision-making process. It is therefore not direct evidence of discrimination. Indeed, because Giddings had no input into the decision to terminate Valdez,88 and her single comment regarding Mexican music is wholly-divorced from Valdez's termination, it amounts to a mere "stray remark" not entitled to any probative weight, even if it could be relied upon as indirect evidence of discriminatory animus.89

To survive summary judgment, Valdez must adduce some other evidence that reveals sufficient "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [Tyco's] proffered legitimate reason[] for its action that a reasonable factfinder could rationally find [] unworthy of credence."90 A plaintiff typically makes such showing in one of three ways: (1) with evidence that the defendant's stated reason for the adverse employment action was false; (2) with evidence that the defendant acted contrary to a written company policy prescribing the action to be taken by the defendant under the circumstances; or (3) with evidence that the defendant acted contrary to an unwritten policy or contrary to company practice when making the adverse employment decision affecting the plaintiff.91 Valdez submitted no evidence of any type.

To the contrary, Valdez admits that the basis of Tyco's termination decision was valid. He testified that he had repeatedly failed to follow Tyco's policies in requesting a further extension of medical leave:

Valdez's own testimony establishes that Tyco's decision to terminate his employment accorded with its policies.

There also is no evidence that Tyco acted contrary to its regular practices. On this issue, Valdez offered the declaration of his union steward, James Muirhead, who attests that he attended two terminations and, in contrast to Valdez's termination (which was effectuated by letter), "both times the employee was present."93 However, Muirhead's vague and limited experience is not probative of pretext. His testimony hardly establishes a "regular practice," particularly in light of the fact that Valdez's was not a "regular" termination. It is undisputed that at the time of his termination, Valdez had been on leave continuously for nine months, several communications from Tyco and its third-party leave administrator had gone unanswered, and he was not released to return to work at the time he was terminated (or at any subsequent time).94 Muirhead does not allege that the other terminations he witnessed occurred under similar circumstances or that Valdez's termination deviated from the norm. Without that evidence, his observations are not probative of pretext. An inference of discrimination arises only from disparate treatment of persons who are similarly situated to the plaintiff in "relevant employment circumstances,"95 and only where there is evidence of a "disturbing procedural irregularity" that is "often exemplified by an employer's `falsifying or manipulating of relevant criteria.'"96 Nothing remotely close to this sort of evidence exists in this case. Summary judgment is therefore warranted.

3. Valdez's Failure to Accommodate Claim Fails as a Matter of Law.

Valdez's final theory of liability for discrimination is a quasi-disability claim. Having abandoned his disability claim under the ADA, his Complaint attempts to recast a failure-toaccommodate claim as race or color discrimination, asserting that Tyco allegedly "refused to allow Mr. Valdez to be transfer to a position that would accommodate his work related work restrictions," and instead fired him, although "Caucasian[s] were allowed to make similar position transfers."97 This claim fails for several reasons. First, Valdez concedes he was not capable of returning to work at Tyco at the time he was terminated.98 Indeed, Valdez has not been released to return to work in any capacity since he began his leave of absence from Tyco.99 To the contrary, his doctors have continued to express their belief that he is not capable of working.100

Second, Valdez never requested a transfer, which request would have been necessary to support his claim under the rubric of race or color discrimination. To establish the prima facie case of failure to hire or promote under Section 1981, Valdez must have shown, inter alia, that he applied for—or at least sought—a position.101 Valdez's own testimony makes clear that that did not happen here.102 He testified as follows:

Having not asked for any accommodation in the form of a job transfer (which Valdez was not capable of performing anyway), he cannot now assert that it was discriminatory for Tyco not to transfer him. Tyco is therefore entitled to judgment as a matter of law.

B. Valdez Does Not Establish a Claim for Hostile Work Environment Under Section 1981.

In his Sixth Claim for Relief, Valdez alleges that Tyco created a hostile work environment in the workplace that "encouraged racial disparity, racial denigration, and racial hostility between [Valdez] and his Caucasian counterparts."104 In his deposition, Valdez testified that four Tyco employees, (Giddings, Hill, Stokes, and Williams), made remarks that he found harassing or discriminatory based on his race, color, or perceived national origin.105 Only one of those individuals (Giddings) was Valdez's manager; the others were his coworkers. None of the conduct he described,106 either in isolation or collectively, qualifies as a hostile work environment as a matter of law:

Giddings. Valdez testified that he never heard Giddings say anything negative to him about Mexicans or Hispanics, but that once, as described above, at an unspecified time, he walked in on a conversation between Giddings and another employee and believes she said (or was about to say) "I hate Mexican music."107 Valdez also speculated that Giddings might have harbored a discriminatory animus towards him because, although she always approved his request for tools, he had trouble getting the tools issued to him from the tool supply facility.108 Valdez admits, however, that he ultimately received the tools he needed, except a "couple times."109

Hill. Hill was an installer like Valdez.110 Valdez testified that he believed Hill "hated" him because Hill was "a redneck from El Paso," made general negative comments about Mexicans, and would not work with him on certain jobs.111 Valdez also suspects that, once, in November 2011, Hill "got [him] in trouble" with Giddings by reporting that he (Valdez) had left material unsecured at a worksite, resulting in an unwarranted discipline.112 Valdez admits he did not like Hill either and refused to work with him.113 As a result of this mutual dislike, Valdez testified that he worked with Hill "about three times in [his] whole career" and would only see him in passing when jobs were assigned.114 Although Valdez occasionally overheard Hill make remarks in the parking lot about throwing rocks at Mexicans coming over the border and taking "Mexican showers,"115 Hill never directed negative comments to Valdez, because "[h]e wouldn't dare."116

Stokes. Stokes was also an installer. Valdez testified that, unlike Hill, Stokes was "a pretty nice guy," but he "was free with his jokes and . . . comments."117 Valdez worked with Stokes only "about four times" and, on one or more of those few occasions, heard him make "burro jokes," "Juan Valdez coffee" jokes, and "Mexican shower" jokes. Valdez believed Stokes "was probably doing it in all fun and joking and everything," but it "got old."118

Williams. Williams was a lead installer.119 In contrast to Hill and Stokes, Valdez testified that he worked with Williams regularly.120 According to Valdez, Williams would ask him to help on a lot of his jobs, because Valdez "was a worker and [he] hustled."121 Valdez does not think Williams was a bad person, but he would "speak[] his mind," "and it was always the Mexican jokes."122

Valdez explained that Williams would not make Mexican jokes every time they worked together, but, in the break room, where "Dennis had a crowd for everybody to laugh and `whooo,' and all this stuff," then Valdez would hear Williams make Mexican jokes.123 In his deposition, Valdez gave four specific examples: (1) He recalled that, in reference to Valdez, Williams would joke "Watch out for him because he'll steal your stuff," which Valdez interpreted as a comment on Mexicans or Hispanics.124 (2) In a conversation with Hill, Valdez overheard Williams refer to Mexicans crossing the border as "wetbacks."125 (3) Williams made "burrito jokes" when everybody was eating burritos.126 (4) Williams would say "here comes Juan Valdez and his burro" every time Valdez had his cart, which Valdez admitted he thought was funny too, at least at first.127 Valdez could think of no other remarks he found discriminatory or harassing.128 And he testified that he did not think Williams told these jokes to make Valdez feel bad: "I think he said them to be funny."129 Other than the jokes, the only other specific conduct Valdez found objectionable was one instance, in 2011, when Williams had Valdez "dig a trench to bury a pipe," which Valdez felt was discriminatory, because he had not seen anyone else do that before.130

Accepting these allegations as true, they do not give rise to employer liability under Section 1981 for three independent reasons: (1) most, if not all, of the alleged conduct occurred outside the statute of limitations; (2) even if the alleged conduct could be considered in totality, it was not sufficiently pervasive or severe to give rise to actionable claim; and (3) Tyco has a valid Ellerth/Faragher defense to liability, because Valdez admits he never complained of conduct he perceived as harassing or discriminatory, despite his knowledge of robust reporting procedures available to him.

1. A Four-Year Statute of Limitations Bars Consideration of Conduct About Which Valdez Complains.

The statute of limitations for bringing a claim under Section 1981 is four years.131 Based on Valdez's filing date of January 6, 2016,132 Valdez must assert facts showing that his hostile work environment claim arose on or after January 6, 2012.133 Under the "continuing violation" doctrine, acts that occurred prior to January 6, 2012, can be considered only if at least one act contributing to the "same hostile work environment" takes place within the statutory time period.134 To determine whether acts are part of the same hostile work environment, a court looks at "the type of these acts, the frequency of the acts, and the perpetrator of the acts."135

Valdez reported to work at Tyco only through July 2012, meaning that, at most, a brief window of seven months of his employment falls within the limitations period. By this time, Valdez admitted that one of the four alleged harassers, Stokes, was long gone, having left the company at least two years earlier.136 Similarly, one of the few instances of harassing conduct Valdez attributes to Hill—falsely reporting him to Giddings for failing to secure material at a worksite—occurred no later than November 2011.137

As for Giddings and Williams, Valdez does not remember whether they said anything he found offensive in 2012 that could give rise to a timely claim.138 By contrast, Valdez recalled that Williams had him dig a trench "right after [his] accident," which would have been early 2011.139 Valdez also presents no evidence that Giddings, Williams, Hill, and/or Stokes acted in concert, or even had knowledge of one another's alleged conduct, such that their acts could be considered part of the same hostile work environment.140 In short, Valdez's vague allegations do not establish a timely claim.141

2. Valdez Fails to Allege Conduct Sufficiently Pervasive or Severe.

Even all the conduct Valdez attributes to Giddings, Hill, Stokes, and Williams is considered, that conduct was not sufficiently pervasive or severe to give rise to an actionable claim. To survive summary judgment, Valdez "must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," and that the victim "was targeted for harassment because of [his] . . . race[] or national origin."142 To meet this burden, Valdez must do more than demonstrate "a few isolated incidents of racial enmity" or "sporadic racial slurs."143 Nor can he prevail on a claim "merely by establishing a pattern of `general harassment.'"144 Instead, "there must be a steady barrage of opprobrious racial comments."145

To discern the difference between actionable harassment and "run-of-the mill boorish, juvenile, or annoying behavior," courts look to such things as "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."146 Instances of coworker incivility, rudeness, and offensive statements have often been found to be insufficiently severe, as federal law does not create a "general civility code for the American workplace."147 And, as noted above, the acts constituting the alleged hostile work environment must be sufficiently related, i.e., they must involve the same type of employment actions, occur relatively frequently, and be perpetrated by the same employees.148

Valdez's deposition testimony shows that he cannot meet these standards: He admitted that Giddings (the only manager) said nothing more offensive than "I hate Mexican music" to another employee.149 Valdez admitted working with Hill and Stokes very infrequently (three and four times, respectively) and the jokes or comments he alleges they made (none of which, at least in Hill's case, were directed at him), are precisely the kind of "isolated incidents of racial enmity" and "sporadic racial slurs" that are not actionable.150 Lastly, Williams engaged in more frequent joking, but Valdez admits knew Williams "said [the jokes] to be funny."151 "Where comments are made in jest and the plaintiff recognizes them as such, unless they are of unusual pervasiveness or severity, they cannot ordinarily be regarded as having `alter[ed] the conditions of the victim's employment and create[d] an abusive working environment."152 Valdez's hostile work environment claim fails as a matter of law.

3. Valdez's Failure to Complain Entitles Tyco to a Faragher/Ellerth Defense.

Even if Valdez could sustain a claim for hostile work environment, Tyco would still be entitled to summary judgment based on the Faragher/Ellerth defense. That defense applies where (a) the employer exercised reasonable care to prevent and correct promptly any harassing behavior; and (b) the plaintiff employee unreasonably failed to take advantage of the preventative or corrective opportunities provided by the employer or to avoid harm otherwise.153 The purpose of the Faragher/Ellerth defense is to "recognize the employer's affirmative obligation to prevent violations and give credit . . . to employers who make reasonable efforts to discharge their duty."154

Here, Valdez received an ADT Team Member Handbook ("Handbook") that set out the Company's anti-discrimination, anti-harassment, and anti-retaliation policies.155 If Valdez felt that he had been subjected to any kind of discrimination, harassment, or retaliation, he was required to report the conduct immediately using any of nine approved reporting channels:

Valdez admits that he was aware of, but failed to utilize, any of these reporting channels to place Tyco on notice of unlawful conduct.157 As a result, to avoid summary judgment, Valdez must come forward with some admissible evidence that Tyco would not have responded to his complaints or that he would have suffered retaliation. Specifically, "[e]vidence must be produced to the effect that [Tyco] has ignored or resisted similar complaints or has taken adverse actions."158

Valdez produced no such evidence. To the contrary, in his depositions, he explained that he failed to complain because he thought he could "hold [his] own and be able to stomp [the harassment] out himself," because he did not "trust authority," because "[y]ou can't complain every time someone says something," and because he "would have been inundated with more paper."159 Accordingly, Valdez testified that he decided to confine his complaints to his Union Steward, which he believed would be "more effective."160 Those are not valid excuses. Valdez's decision to ignore all nine of Tyco's reporting channels was unreasonable, and the fact that he complained to his Union Steward (who Tyco did not empower to handle complaints of harassment) is irrelevant.161

Valdez does not argue that his failure to complain is excusable, but rather attempts to circumvent this defense altogether by arguing that his termination is a "tangible employment action" and that, as a result, Tyco "does not have recourse to the Ellerth/Faragher affirmative defense" under Pennsylvania State Police v. Suders, 542 U.S. 129 (2004).162 Valdez has confused his claims of discrimination and harassment. The administrative termination of Valdez for failing to follow absence policies was a discrete act occurring nine months into a medical leave. It constituted actionable discrimination if Valdez had evidence that Tyco's reason for terminating him was unlawful pretext. As explained elsewhere, he lacks that evidence.

By contrast, Valdez's claim that he was subjected to an actionable hostile work environment requires different evidence. He must show that, in the months before he was placed on medical leave, (and within the statute of limitations—i.e., from January to July 2012), he was "targeted" for harassment because of his race or national origin and that the workplace at Tyco was "permeated with discriminatory intimidation, ridicule, and insult, that [was] sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment."163 Tyco is liable for a hostile work environment, if at all, on a negligence theory, which means Valdez must also show that Tyco "fail[ed] to take adequate remedial and preventative responses to any actually or constructively known harassment."164 Valdez did not come forward with evidence of actionable harassment during the relevant time period, and, even if he had, Tyco validly invokes the Faragher/Ellerth defense, because, as detailed above, Valdez repeatedly admitted that he failed to use any of the reporting channels available to him.165

Moreover, Valdez misreads Suders and other relevant case law regarding the circumstances in which the employer may invoke the Faragher/Ellerth defense. The U.S. Supreme Court has held that an employer cannot invoke Faragher/Ellerth where the employee has suffered supervisor harassment that "culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment."166 The tangible employment action in Suders, for instance, was a "constructive discharge"—in other words, the plaintiff decided to resign in the face of an "abusive working environment" that was the product of supervisor harassment.167

Here, Valdez was not constructively discharged, and his termination was not the product of supervisor harassment. Indeed, it is undisputed that Giddings, the only supervisor Valdez accuses of harassment, had no input into his termination.168 Instead, Valdez was administratively terminated after a nine-month medical leave from which he admits he was unable to return. Unlike the plaintiff in Suders, Valdez does not claim that he suffered any workplace harassment by anyone during the nine months culminating in his termination; he was not in the workplace. When Valdez was in the workplace, he concededly did not complain. His attempt to defeat Tyco's Faragher/Ellerth defense fails.

C. Valdez's Title VII Claims Fails for All the Same Reasons His Section 1981 Claims Fail, and for Additional Independent Grounds.

The parties' respective burdens are the same under both Title VII and Section 1981.169 Accordingly, Valdez's Title VII discrimination and harassment claims fail for all the same reasons his Section 1981 claims do. Valdez's Title VII claims also fail for two independent reasons: (1) the vast majority of actions he relies on in support of those claims are time-barred under Title VII's more restrictive statute of limitations, and (2) Valdez failed to administratively exhaust his only timely claims.

1. The Vast Majority of Conduct About Which Valdez Complains Is Time-Barred Under Title VII.

Claims arising under Title VII must be filed with the EEOC within 180 days, or with the UALD within 300 days, of the alleged unlawful employment practice.170 Valdez filed his Charge with the UALD on August 12, 2013.171 Accordingly, any allegedly harassing or discriminatory conduct that occurred prior to October 16, 2012, is time-barred.

Here, although Valdez's employment at Tyco did not officially terminate until April 2013, the last day he reported to work was July 26, 2012, after which he was placed on an STD leave from which he never returned. Valdez admits that, once he was no longer in the workplace, he did not communicate with alleged harassers, much less experience harassment.172 Accordingly, the potentially harassing conduct about which he complains would have had to occur on or before July 26, 2012, nearly three months before the statutory cut-off date.

Valdez also cannot save these claims through an invocation of the "continuing violation" doctrine. Untimely acts can be considered only if at least one act contributing to the "same hostile work environment" takes place within the statutory time period.173 Only one allegedly unlawful employment practice occurred during the limitations period: Valdez's termination, which occurred in April 2013. The U.S. Supreme Court has held unequivocally that the continuing violation doctrine does not apply to discrete discriminatory acts, like Valdez's termination, which "occur," for purposes of 42 U.S.C. § 2000e-5(e)(1), on the day they "happen."174 In any case, the alleged harassment is too distinct from the termination decision to be considered part and parcel of the "same hostile work environment." Valdez adduces no evidence to connect his termination to other complained-of events and no evidence that any of the perpetrators of the other allegedly harassing acts had any input with regard to his termination.

To the contrary, Tyco has adduced evidence that none of the alleged harassers (including Valdez's supervisor, Giddings) had any such input.175 Valdez's termination, separated from the other alleged acts of harassment by at least nine months, is also too remote in time and too distinct in nature to be part of "continuing" harassment.

2. Valdez Failed to Administratively Exhaust His Only Timely Claims Under Title VII.

Valdez's discrimination also cannot survive summary judgment because Valdez failed to timely exhaust them. Before bringing a civil action under Title VII, a plaintiff must file a timely administrative charge.176 An unexhausted claim is subject to dismissal with prejudice, unless there is time left in the limitations period for the plaintiff to file a timely EEOC charge.177

In his Complaint, Valdez alleges that Tyco failed to accommodate him by transferring him to a new position and instead terminating him in April 2013 because of his race and color.178 Those claims do not appear anywhere in Valdez's EEOC Charge.179 Rather, during the agency proceedings, Valdez contended that his termination was due to disability discrimination only.180 Additionally, more than 300 days have now elapsed since Valdez's termination in April 2013, so he could not now exhaust his new theories of relief. Tyco is therefore entitled to dismissal of Valdez's Title VII claims with prejudice.

D. Tyco Is Entitled to Summary Judgment on Grounds that Valdez Cannot Recover Damages.

As a final matter, Valdez's claims fail because he cannot show that he suffered any damages as a result. This is true for two reasons: (1) since his separation from Tyco, Valdez has never been "ready, willing and able" to work; and (2) he has already obtained a complete and/or exclusive remedy for any alleged harm.

1. Valdez's Inability to Work Forecloses a Claim for Economic Damages.

Where an employee is not "ready, willing and able" to return to work, lost wages and benefits are not available as a matter of law.181 In Jackson, for example, the plaintiff "unequivocally testified she had been medically unable to work at any job, even one involving only light duties, since November 15, 1998, and had completely withdrawn from the job market."182 As a result, the court held that her claim for lost wages and benefits under Title VII failed "for lack of remedy."183

Valdez provided similar unequivocal testimony that he was unable to work "in any capacity," and attributed that solely to his workplace injury:

A. Yes.

. . . .

Q. Do you agree that the reason you have been unable to work in any

A. Yes.184

Valdez made similar representations to the SSA in support of his application for disability benefits:

Valdez does not attribute his inability to work to any conduct giving rise to his discrimination or hostile work environment claims under Title VII or Section 1981, and the result is the same as in Jackson: Valdez's claim for lost wages and benefits fails for lack of remedy.

2. The WCA and a Separate Civil Lawsuit Foreclose Valdez's Claims for Both Economic and Non-Economic Damages.

The Workers' Compensation Act of Utah ("WCA") is "the exclusive remedy against an employer" for injuries sustained by an employee "in the course of or because of or arising out of the employee's employment."186 In his deposition, Valdez attributed all physical or mental impairments to his workplace shock injury. For example:

Valdez received workers' compensation benefits as a result of the injury he sustained at the slaughterhouse in March 2011.188 While on medical leave, he received wage replacement benefits for lost time. He also received a workers' compensation settlement.189

Additionally, Valdez subsequently pursued a civil lawsuit against the slaughterhouse, alleging that the slaughterhouse was responsible for his continuing health and mental impairments, including daily headaches, dizziness, memory problems, PTSD, panic attacks, a detached retina, psychological and cognitive difficulties, inability to maintain a checkbook, difficulty focusing on even the simplest of household chores, the need for medications, a fear of heights, and other phobias.190

In the lawsuit, Valdez sought one million dollars as compensation for these problems, as well as his medical expenses, and as compensation for his "great physical and mental pain and anguish" that he predicted would continue "long into the future, if not for the balance of his natural life."191 In January 2016, Valdez settled the lawsuit and received $290,000 to compensate him for these claimed injuries.192

As a result of the WCA's exclusive remedy provision and Valdez's settlement with the slaughterhouse, he cannot recover additional amounts from Tyco for the same injuries. The law does not permit "double recovery."193 Valdez's claims must be dismissed for this additional reason.

ORDER

THEREFORE, IT IS HEREBY ORDERED that Tyco's Motion194 is GRANTED and all claims against Tyco are dismissed with prejudice.

The Clerk is directed to close the case