Rubidoux v. Colorado Mental Health Institute

976 F. Supp. 1380, 1997 U.S. Dist. LEXIS 13824, 79 Fair Empl. Prac. Cas. (BNA) 1331, 1997 WL 568790
CourtDistrict Court, D. Colorado
DecidedSeptember 10, 1997
DocketCivil Action No. 94-WM-202
StatusPublished

This text of 976 F. Supp. 1380 (Rubidoux v. Colorado Mental Health Institute) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rubidoux v. Colorado Mental Health Institute, 976 F. Supp. 1380, 1997 U.S. Dist. LEXIS 13824, 79 Fair Empl. Prac. Cas. (BNA) 1331, 1997 WL 568790 (D. Colo. 1997).

Opinion

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

MILLER, District Judge.

Plaintiffs, employees of the Defendant Colorado Mental Health Institute of Pueblo (“CMHIP”), sued Defendant for both quid pro quo and hostile work environment sexual harassment, as well as for unlawful retaliation. Those claims survived Defendants’ Motion for Summary Judgment in accordance with my Order, dated February 24, 1997. All other Defendants were dismissed.

As I have previously ruled, this court has jurisdiction pursuant to 42 U.S.C. § 2000e-5(f)(3). Following a one-week trial and the submission of arguments of the parties, I make the following factual findings and conclusions of law pursuant to Rule 52(a), Fed. R.Civ.P.

FINDINGS OF FACT

Generally

1. Defendant CMHIP, formerly known as the Colorado State Hospital, is a state-operated treatment facility that provides medical and psychiatric care for patients, including children and adolescents who are committed to, and treated at, the facility on a residential basis. '

2. The Child and Adolescent Treatment Center (“CATC”) of Defendant’s facility was composed of five residential units, known as Cottage A, Cottage B, etc. The cottages were clustered near a school building at which the children and adolescents attended classes.

3. Each cottage was managed by a lead nurse and a team leader in the supervisory roles. Another nurse served as shift coordinator.

4. Plaintiff Rubidoux was hired by Defendant in October 1989 at an entry-level registered nursing position known as “Nurse IA” and assigned to Cottage A where she remained until reassigned to Cottage B in 1994. She remains employed by the Defendant.

5. Plaintiff Wisthoff was hired in May 1991 as a psychiatric technician on a probationary status and assigned to Cottage A as [1383]*1383well. She remained in Cottage A until it was closed. She too remains employed by Defendant.

6. Leonard Jiminez, a long-time employee of Defendant, was the lead nurse in Cottage A from the time Plaintiffs were hired until he was placed on administrative leave in September 1992 (and ultimately terminated). As such, he was Plaintiffs’ direct supervisor from the time they were hired until his suspension.

7. For the following reasons, I find that Mr. Jiminez wielded sufficient power with actual or apparent authority to adversely affect the terms and conditions of Plaintiffs’ employment:

a. He was the representative of Defendant who interviewed both Plaintiffs for their jobs and recommended that they be hired, although he did not have the ultimate hiring authority within the state personnel system. Mr. Jiminez was perceived by Plaintiffs and others, including the defense witness nurse LaDean Silberhorn, as the individual who made the hiring decision. The actual “appointing authority,” division director Dr. Kailish Jaitly, testified that it was quite possible he approved the Plaintiffs’ hire solely on the basis of Mr. Jiminez’s recommendation.

b. He had direct control over the working environment.

c. He had the authority to conduct annual performance reviews and to make recommendations for advancement for both Plaintiffs.

d. Although he did not have authority to take formal adverse action concerning pay, seniority, etc., he did have the ability to initiate a hearing process if he took exception to an employee’s performance.

e. He was in charge of granting leave and setting schedules in Cottage A.

8. Jiminez used that actual or apparent authority to sexually harass the Plaintiffs as set forth below.

9. At all times relevant to this action, CMHIP had a-sexual-harassment policy of which Plaintiffs knew but did not use to seek relief from Jiminez’s acts.

Sexual Harassment — Plaintiff Rubidoux

10. Jiminez was described as having a significant physical presence, being heavy set, somewhat less than medium height, but over 200 pounds.

11. Within the first few weeks of her employment in the early fall of 1989, Jiminez invited Plaintiff Rubidoux for an after-work drink, supposedly to review her performance. Instead, Rubidoux recalls Jiminez being much more personal. He declared her to be attractive, asked about the clothing she wore and hugged her as they left.

12. At a 1989 Christmas party in Jiminez’s home, he was overly friendly, taking Plaintiff to the coat room, hugging and holding her close to him.

13. During work hours a pattern evolved. Jiminez commonly touched Plaintiff Rubidoux on her hands and legs, often pulled her close to him, rubbed himself against her and cupped her breast.

14. Matters worsened. Jiminez once asked Plaintiff to come with him to the basement, allegedly for a job-related purpose, where he grabbed her face with both hands and forcefully kissed her.

15. Another time, Jiminez pointed to the examination room for physicals and joked about giving Plaintiff Rubidoux a pelvic exam. He suddenly grabbed her, pushed her against the examination table, and forcefully kissed her. When she resisted, Jiminez became even more forceful, reaching under her clothes. Just as Plaintiff feared he would become more aggressive, Jiminez suddenly let go and apologized for his activities.

16. Later, Jiminez’s treatment of Plaintiff went from being sexually aggressive to demeaning. He made her the butt of tasteless sexual jokes in front of other people, objected to her traditional Spanish pronunciation of his name (Plaintiff Rubidoux is of self-proclaimed Mexican-Apache-Ameriean heri[1384]*1384tage), demanded that she learn to speak English, and called her a “pendeja” (stupid women). Jiminez also declared that Plaintiff needed to attend “obedience school.”

17. After twenty or more months of employment, Plaintiff finally asked Jiminez about her promotion from Nurse IA status to Nurse IB, a step which traditionally took one year. Jiminez asked her “what’s in it for me” if he got Plaintiff promoted (she was ultimately promoted after 22 months).

18. Plaintiff acknowledged that she did not report the incidents until much later, explaining that she felt too embarrassed.

19. Defendant did not directly contest Plaintiffs evidence of harassment, choosing instead to emphasize that the Plaintiff had been publicly supportive of Jiminez for awards, and that the Plaintiff had participated in a common practice of off-colored jokes among the employees and the use of occasional obscene language. There was some testimony that Plaintiff made suggestive comments or engaged in suggestive actions. However, that evidence does not impeach the uncontradicted testimony of Plaintiff Rubidoux and other witnesses of the harassment, nor would such conduct by the Plaintiff have justified the acts of harassment by Jiminez.

Sexual Harassment — Plaintiff Wisthoff

20. Plaintiff Wisthoffs unrebutted-testimony establishes that, after she was hired as a probationary employee, Jiminez told her she could be “fired for anything.”

21. Within a month of being hired, Jiminez asked Plaintiff Wisthoff to remain after a meeting when other employees had left the room.

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976 F. Supp. 1380, 1997 U.S. Dist. LEXIS 13824, 79 Fair Empl. Prac. Cas. (BNA) 1331, 1997 WL 568790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rubidoux-v-colorado-mental-health-institute-cod-1997.