United States District Court, D. Minnesota
Petersen, Esq., Rachel Petersen Law Office, Minneapolis, MN,
and Phillip F. Fishman, Esq., Phillip Fishman Law Office,
Minneapolis, MN, on behalf of Plaintiff.
L. Wolcott, Esq., and Jacqueline R. Guesno, Esq., Messner
Reeves LLP, Denver, CO, and Kathleen M. Brennan, Esq.,
McGrann Shea Carnival Straughn & Lamb, Chartered,
Minneapolis, MN, on behalf of Defendant.
Jeffrey R. Mulder, Esq., Bassford Remele, PA, Minneapolis,
MN, on behalf of Messner Reeves LLP, Jacqueline R. Guesno,
Esq., and Brenna L. Wolcott, Esq.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
25, 2017, the undersigned United States District Court Judge
heard oral argument on Defendant Chipotle Services, LLC's
(“Chipotle”) Motion for Summary Judgment [Docket
No. 94]. Also before the Court is Plaintiff Maria
Ramirez-Cruz's (“Ramirez-Cruz”) Objection
[Docket No. 125] to Magistrate Judge Katherine M.
Menendez's May 11, 2017 Report and Recommendation [Docket
No. 123] (“R&R”) recommending that
Ramirez-Cruz's Motion for Sanctions Based on Spoliation
of Evidence [Docket No. 43] and Second Motion for Sanctions
[Docket No. 69] be denied. For the reasons set forth below,
Chipotle's Motion for Summary Judgment is granted in part
and denied in part and Ramirez-Cruz's Objection is
August 27, 2014, Ramirez-Cruz started working as a crew
member at Chipotle's location in Blaine, Minnesota.
See Pl.'s Ex. 1 [Docket No. 101]. Shortly
thereafter, Ramirez-Cruz began a romantic relationship with
her co-worker, Jesus Gutierrez (“Gutierrez”).
Pl.'s Ex. 2. [Docket No. 116]; Def.'s Exs. [Docket
No. 96] Ex. F (collectively, “Ramirez-Cruz Dep.”)
30:25-31:8. In December 2014, Ramirez-Cruz learned she was
pregnant with Gutierrez's child. Id. at
and Gutierrez transferred to a new Chipotle location in
Cottage Grove, Minnesota. Id. 46:3-5.
Ramirez-Cruz's first day at that location was January 10,
2015. Id. 47:22-24. Omar Renteria
(“Renteria”) was the store's General Manager.
Def.'s Exs. Ex. A (“Smiley Decl.”) ¶ 16.
Heather Nicole Garbe (“Garbe”) acted as General
Manager when Renteria was on leave between March 18 and April
28, 2015. Id. at Ex. D. The General Manager is
responsible for creating the weekly work schedule. Smiley
Decl. ¶ 15.
first day of work at the new location, Ramirez-Cruz suffered
injuries falling off a step stool. Ramirez-Cruz Dep.
56:12-17. Omar Cortes (“Cortes”) and Jackie
Ventura (“Ventura”), who were the store's
Service Managers, came to Ramirez-Cruz's assistance.
Id. 56:22-24; Smiley Decl. ¶ 12. In completing
paperwork for a Worker's Compensation claim, Ramirez-Cruz
disclosed she was pregnant, which she believes first alerted
Chipotle of her condition. When Ramirez-Cruz returned to work
two days later, she avers that she was medically restricted
from lifting heavy items. Ramirez-Cruz Dep. 76:1-7.
Allegations of Discrimination
claims that despite her lifting restriction, Chipotle
required her to lift heavy objects. Ramirez-Cruz also
contends that Joshua Moua, who became Kitchen Manager on
April 6, 2015, actually made her lift more than non-pregnant
employees. Id. 263:3-7. Ramirez-Cruz avers that
although she was frequently able to find another employee to
assist with lifting, often other employees were either
unavailable or refused to help. Id. 76:8-24.
also alleges Chipotle discriminated against her on account of
her pregnancy by refusing to provide maternity pants and by
not allowing her to chew gum to alleviate morning sickness.
Ramirez-Cruz contends that she was unable to comply with
Chipotle's dress policy because Chipotle refused to order
maternity pants for her from Chipotle's website.
Id. 137:6-20. Ramirez-Cruz also claims that on one
occasion she was singled out for chewing gum while at work
despite receiving prior permission to do so. Id.
Reduction in Hours
beginning of her employment at the Cottage Grove location,
Ramirez-Cruz worked a consistent Monday through Friday
schedule, mornings and nights. Id. 47:3-12. In
March, her schedule changed to Monday through Wednesday.
Id. The parties dispute why her schedule was
changed. Although Ramirez-Cruz contends the change was to
accommodate her pregnancy-related sickness, she claims the
change was not voluntary. Id. 47:3-12. Chipotle
asserts Ramirez-Cruz requested the change to accommodate her
changing child care arrangements. Id. 323:15-22.
Removal from the Schedule and Eventual Termination
April 16, 2015, Gutierrez was fired. Id. 158:15-17.
When Cortes made a social visit to Ramirez-Cruz and
Gutierrez's home shortly thereafter, Ramirez-Cruz
allegedly made comments such as, “why should I go back,
when they fired my man” and “I'll make them
suffer.” Def.'s Exs. Ex. N (“Cortes
Dep.”) 72:12-19. Cortes informed the other store
managers that he did not believe Ramirez-Cruz wanted to work
at Chipotle anymore. Id. at Ex. H 21:21-23.
Sunday, April 19, 2015, Ramirez-Cruz called Garbe to ask when
she was scheduled to work. Ramirez-Cruz Dep. 169:8-9.
Ramirez-Cruz claims Garbe said “I assumed since we
fired [Gutierrez], we were going to take you off the schedule
because we assumed that you weren't going to come
back.” Id. 169:9-12. Ramirez-Cruz replied that
Gutierrez's termination had nothing to do with her and
that she wanted to be put back on the schedule. Id.
169:13-15. Since Garbe had already made the schedule for the
remainder of April, she offered to put Ramirez-Cruz back on
the schedule beginning in May. Id. 169:15-19.
claims to have overheard a phone conversation between Garbe
and Ramirez-Cruz. Def.'s Exs. Ex. M 33:3-13. During that
conversation, Gutierrez claims Garbe told Ramirez-Cruz that
she would try to shift hours from other employees so
Ramirez-Cruz could get back on the schedule sooner.
Id. Gutierrez also claimed to have overheard Garbe
direct Ramirez-Cruz to keep calling the store and request to
be put back on the schedule to return to work. Id.
33:23-34:4. Ramirez-Cruz alleges that she followed
Garbe's directions, but her phone calls to the store
either went unanswered or unreturned. Ramirez-Cruz Dep.
187:8-13. Ramirez-Cruz also alleges that she spoke with
Renteria and Cortes about returning to work. Id.
to Chipotle, phone records do not show any phone calls from
Ramirez-Cruz to the store until June 30, over two and a half
months after Gutierrez's termination. See
Def.'s Exs. Ex. S (showing phone records for the Cottage
Grove Chipotle). Renteria and Cortes each claim that
Ramirez-Cruz never spoke with them about getting back on the
work schedule. Id. at Ex. I (“Renteria
Dep.”) 72:8-13; Cortes Dep. 18:13-21. And Garbe claims
that she sent Ramirez-Cruz a text message on April 19, but
she never received a response. Id. at Ex. L
¶¶ 6-8. Ramirez-Cruz admits she stopped trying to
contact Garbe after April 19 because she believed Garbe
“had something against” her. Ramirez-Cruz Dep.
parties do agree that after Gutierrez was fired Ramirez-Cruz
never returned to work at Chipotle. In a May 8, 2015
employment application for a different employer, Ramirez-Cruz
stated that her employment with Chipotle ended in April 2015.
Def.'s Exs. Ex. U. On May 18, 2015, Chipotle removed
Ramirez-Cruz from their employment system. Renteria Dep.
March 17, 2016, Ramirez-Cruz filed a Second Amended Complaint
[Docket No. 26] asserting a single count of sex
discrimination under the Minnesota Human Rights Act
(“MHRA”), Minn. Stat. §§ 363A.04, subd.
43 and 363A.08, subd. 2. Ramirez-Cruz alleges that her
removal from the schedule was based solely upon “sexist
assumptions regarding the behavior of women without any
regard to the Plaintiff's actual ability or willingness
to perform her job. Specifically, [Chipotle] assumed that the
Plaintiff would choose not to work anymore upon the
termination of her boyfriend from the same store.”
Second Am. Compl. ¶ 19.
moves for summary judgment.
Report and Recommendation
the summary judgment motion, Chipotle asserted that
Ramirez-Cruz's removal from the schedule was due to her
failure to show up for her scheduled shifts on April 16, 17,
and 18, 2015. Ramirez-Cruz disputed that she was scheduled to
work those days and sought production of her work schedule to
support her position. Ramirez-Cruz also sought production of
her “Development Journal, ” a document
purportedly maintained by Chipotle that shows employee
progress and performance reviews.
most of discovery, Chipotle claimed that the paper work
schedule was destroyed and electronic schedule data did not
exist. Only belatedly did Chipotle reverse course and produce
an electronic schedule, claiming that it initially withheld
production because it was inaccurate. Pl.'s Exs. [Docket
No. 70] at Ex. 12. As to the Development Journal, Chipotle
never produced any such document, claiming it never existed
or, if it did, it was no longer available. Def.'s Exs.
[Docket No. 91] at Ex. B ¶¶ 5, 10.
filed two separate motions for sanctions. The First Motion
for Sanctions [Docket No. 43] seeks spoliation sanctions
against Chipotle for the alleged failure to preserve the
paper schedule and Development Journal. The Second Motion for
Sanctions [Docket No. 69] seeks sanctions against
Chipotle's counsel for Chipotle's counsels'
conduct relating to the untimely disclosure of the electronic
the first sanctions motion, the parties agree that the paper
schedule and the Development Journal were destroyed pursuant
to Chipotle's document retention policies; the schedule
is discarded at the end of each week and the Development
Journal, if it existed, would have been destroyed at the end
of September 2015. Ramirez-Cruz argues that Chipotle had a
duty to preserve the paper schedule and Development Journal
and suggests that the failure to preserve the documents
supports an inference of bad faith.
background concerning the electronic schedule is more
complicated. In Ramirez-Cruz's initial written discovery
requests, she requested broad production of employee work
schedules. Pl.'s Exs. at Ex. 4. Chipotle responded with
objections that did not disclose that electronic schedule
information existed but was being withheld pursuant to a
specific objection. Id. at Ex. 5. Chipotle's
answer to an interrogatory request asking how work schedules
are created and stored was similarly imprecise, failing to
mention that a computer program called MenuLink was used to
create work schedules.
November 17, 2016 deposition of Cortes, counsel for both
parties had an extended discussion concerning production of
the work schedule. Although Chipotle's counsel began by
maintaining that no electronic scheduling data existed,
counsel eventually disclosed that schedule data did exist but
that it was inaccurate. Cortes Dep. 33:17-37:15.
January 19, 2017, over two months later, counsel for
Ramirez-Cruz learned from an attorney litigating a case
against Chipotle in the District of Columbia, that Chipotle
had introduced employee work schedules into evidence during
trial. On February 6, 2017, Ramirez-Cruz sent Chipotle a
deficiency letter addressing its discovery responses to
Ramirez-Cruz's requests for her work schedule. Chipotle
responded on February 10:
It is Defendant's counsels' understanding that the
hardcopy schedules that are physically posted in the
restaurant are disposed of at the end of the scheduled week.
It is also Defendant's counsels' understanding that
MenuLink, the computer program used to make the weekly
schedules, does not maintain accurate representations of the
schedules that are physically posted in the restaurant.
Pl.'s Exs. at Ex. 12. Chipotle promised to produce the
April 2015 computer created schedule by February 17, 2017.
February 15, 2017, two days prior to Chipotle's
self-imposed deadline to turn over the electronic work
schedules, Ramirez-Cruz filed the Motion for spoliation
sanctions. On February 28, 2017, Ramirez-Cruz filed the
second sanctions Motion.
did produce the electronic schedule information on February
17, 2017. This information shows that Ramirez-Cruz was not
scheduled to work April 16, 17, or 18. Chipotle maintains
that this information is not accurate. Chipotle offered
Ramirez-Cruz the opportunity to depose a corporate
representative who would provide testimony about the accuracy
of the MenuLink ...