UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IRMA PORTILLO,

Plaintiff,

v. Civil Action No. 17-1083 (RDM)

IL CREATIONS INC.,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Irma Portillo, a former employee at the Uncommon Café, is suing Defendant IL

Creations Inc., the restaurant’s owner, for race/national origin discrimination, gender and

pregnancy discrimination, and retaliation, in violation of Title VII of the Civil Rights Act of

1964 (“Title VII”) and

. The matter is before the Court on Defendant’s motion

for summary judgment. Dkt. 13. For the reasons set forth below, the Court will GRANT

summary judgment in favor of Defendant on Portillo’s pregnancy discrimination claim and will

DENY summary judgment as to the remainder of her claims.

I. BACKGROUND

Portillo worked as a cashier at the Uncommon Café from June 2014 until her termination

in August 2015. Dkt. 1 at 2 (Compl. ¶ 8). She alleges that, throughout her employment, her

supervisor, Jiyoung Kim, forbade her from speaking Spanish at work, Dkt. 15 at 5 (Pl. Statement

of Material Facts (“SMF”) ¶ 81) (citing Dkt. 15-13 at 9 (Portillo Dep.)); denied her request to sit

on a stool during her shift to accommodate her pregnancy,

(SMF ¶¶ 90–93) (citing Dkt.

15-13 at 11 (Portillo Dep.)); and treated her (and the other Hispanic employees) less favorably than the Korean employees at the restaurant,

(SMF ¶¶ 84, 96) (citing Dkt. 15-13 at 10,

18 (Portillo Dep.)).

Things came to a head when the CEO of IL Creations Inc., Steven Choi, conducted a site

visit in August 2015. Dkt. 13-1 at 4 (Def. Statement of Undisputed Material Facts (“SUMF”)

¶ 38). During the visit, Kim informed Choi that “Portillo would not listen to [her], or do what

she instructed.” Dkt. 13-1 at 10 (Choi Aff. ¶ 12). Choi then requested to meet with Portillo,

Kim, and Jose Lopez, the General Manager of the store. Dkt. 15-16 at 6 (Choi Dep.). It is

undisputed that, at this meeting, Portillo repeatedly accused Kim of being “a racist,” see Dkt. 13-

1 at 10 (Choi Aff. ¶ 12); Dkt. 15 at 10–11 (Pl. SMF ¶¶ 110–113). In response, Choi terminated

Portillo on the spot. Dkt. 13-1 at 10 (Choi Aff. ¶ 12).

Defendant denies that either Kim or Choi engaged in any discriminatory or retaliatory

conduct towards Portillo. With respect to Portillo’s allegations about Kim, Defendant contends

that Kim was merely enforcing the company’s policies, which required employees to speak

English in front of customers, Dkt. 13-1 at 4 (Def. SUMF ¶ 37) (citing

(Yoo Aff. ¶ 9)),

and prohibited cashiers from sitting at the register because “[it] was not an appropriate look,”

(Def. SUMF ¶ 32) (citing

(Yoo Aff. ¶ 7)). Moreover, Defendant argues that Kim did

not favor the Korean employees. Rather, the only two Korean employees at Uncommon Café

worked as chefs in the kitchen and were permitted to eat breakfast on the job and to coordinate

their own breaks because they were salaried employees.

(Def. SUMF ¶¶ 26–27) (citing

(Yoo Aff. ¶ 6)). By contrast, Portillo was an hourly employee who had to punch in and

out on a timecard.

2 Choi, for his part, admits that he fired Portillo for calling Kim a racist. See Dkt. 13-1 at

10 (Choi Aff. ¶ 12) (“The only reason I terminated her was because she repeatedly called her

Manager, Ms. Kim, a racist.”). He explains, however, that:

[Portillo] provided no information to support [her] claim.

As an immigrant and minority myself, I found this conduct particularly reprehensible. There was no way Portillo could continue to work for the Company after repeatedly calling her supervisor a “racist.” I told Portillo she was terminated right then and there, and asked her to leave the property.

(Choi Aff. ¶¶ 10–11). Portillo’s termination notice indicated that she was terminated for

“insubordination” and “language”—specifically, “false accusation of her supervisor” for being a

racist and failure to “follow the direction of her supervisor.” Dkt. 13-1 at 54 (Termination

Notice).

After she was terminated, Portillo filed a complaint with the Equal Opportunity

Employment Commission (“EEOC”). Dkt. 15-3 (EEOC Determination). On August 16, 2015,

the EEOC issued a decision letter that stated, in relevant part:

[T]he evidence shows that [Portillo] had a good-faith basis for her complaint that [Defendant] was engaging in national origin discrimination. The evidence also established a strong causal connection between [Portillo’s] protected activity and [Defendant’s] issuance of the Employee Discipline Warning Notice that served as [her] termination notice.

Based on the foregoing, . . . there is reasonable cause to believe that [Defendant] engaged in unlawful retaliation [against Portillo] in violation of Title VII when it terminated her employment.

With regard to [Portillo’s] remaining allegations, I make no finding . . . [T]he commission now invites the parties to join with it in reaching a just resolution of the matter.

at 1–2 (EEOC Determination). The parties were unable to resolve the dispute in the

conciliation process, and Portillo filed this lawsuit on June 7, 2017, alleging five counts: gender

and pregnancy discrimination in violation of Title VII (Count I), Dkt. 1 at 3 (Compl. ¶¶ 9–12);

3 national origin/race discrimination in violation of Title VII and § 1981 (Counts II and III), id. at

4 (Compl. ¶¶ 13–21); and retaliation in violation of Title VII and § 1981 (Counts IV and V), id.

at 5–6 (Compl. ¶¶ 22–29). Defendant’s motion for summary judgment is now fully briefed.

Dkt. 13.

II. ANALYSIS

The Court concludes that, with respect to Portillo’s race/national origin discrimination

and retaliation claims, she has demonstrated a genuine dispute of material fact that precludes the

entry of summary judgment. With respect to her pregnancy discrimination claim, however,

Portillo has failed to adduce any evidence that she was terminated because of her pregnancy, or

that Defendant denied her accommodation—but afforded accommodations to others of similar

ability or inability to work—because she was pregnant. The Court will, accordingly, grant

summary judgment in favor of Defendant on Count I, and deny summary judgment as to the

remaining counts.

A. Race/National-Origin Discrimination Claims

To begin, Portillo alleges “she and other Hispanic employees [at Uncommon Café] were

subjected to . . . unequal terms and conditions of employment based on their national origin and

race.” Dkt. 1 at 2 (Compl. ¶ 8) (Counts II and III). 1 Specifically, Portillo testified that Kim

shouted at her and the other Hispanic employees, prohibited them from speaking Spanish, and

1 Because Portillo’s Title VII claims overlap with her § 1981 claims, the same analysis applies to both. See Battle v. Truland Sys. Corp.,

(D.D.C. 2014) (“Under Section 1981 as under Title VII, Plaintiff must demonstrate by a preponderance of the evidence that the actions taken by his employer were ‘more likely than not based on the consideration of impermissible factors’ such as race, ethnicity, or national origin.” (citing Tex. Dep’t of Cmty. Affairs v. Burdine,

(1981))); see also Cardenas v. Massey,

(3d Cir. 2001) (applying the same framework to adjudicate Title VII and § 1981 retaliation claims).

4 prohibited them from taking a break to eat breakfast—privileges the two Korean employees were

afforded. Dkt. 15-13 at 9–10 (Portillo Dep.). In response, Defendant principally argues that it is

entitled to summary judgment because none of these acts rose to the level of an adverse

employment action. Dkt. 13-2 at 7–8, 12–15. The Court is unpersuaded.

To be sure, “not everything that makes an employee unhappy is an actionable adverse

action.” Douglas v. Donovan,

(D.C. Cir. 2009) (internal quotation marks

omitted). Rather, to qualify as “adverse,” the alleged action must materially alter the terms or

conditions of the plaintiff’s employment. See Burlington Indus., Inc. v. Ellerth,

(1998); see also Baird v. Gotbaum,

(D.C. Cir. 2011). The inquiry is

objective. The Court must ask whether “a reasonable trier of fact could conclude that the

plaintiff has suffered objectively tangible harm.” Brown v. Brody,

(D.C. Cir.

1999) (emphasis added), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v.

White,

(2006). Although courts in this Circuit have held that a mere change in work

schedule or increase in workload does not constitute an adverse employment action, see Saba v.

U.S. Dep’t of Agriculture,

(D.D.C. 2014); Brown v. Georgetown Univ.

Hosp. Medstar Health,

(D.D.C. 2011), a change in work conditions that

adversely affects the plaintiff’s health may suffice, see Achagzai v. Broadcasting Bd. of

Governors, No. 17-612,

, at *7 (D.D.C. Sept. 30, 2018); see also Coleman-

Adebayo v. Leavitt,

, 144 n.8 (D.D.C. 2004).

Here, the fact that Kim allegedly refused to allow Portillo to eat breakfast on the job and

denied her requests to take breaks might rise to the level of an adverse employment action. If

Portillo were, for example, denied the ability to take any break between the start of her shift,

which, at times, was as early as “five or six [a.m.],” Dkt. 15-13 at 10 (Portillo Dep.), and lunch,

5 that could be sufficiently deleterious as to alter a material “condition” of her employment. The

Court cannot conclude one way or another, however, because of the paucity of evidence in the

record. It is unclear whether the cashiers had any scheduled breaks (aside from lunch), and, if

so, how often they could take a break, and whether they could eat during those breaks. Portillo

only testified that she was supposed to be given “15 or 10 minutes for breakfast” at around “7

[a.m.],” but that Kim “didn’t let anybody . . . have breakfast.”

at 10–11 (Portillo Dep.). She

also stated that she did not eat breakfast at home because she had to “sometimes start work at

five or six [a.m.],” id. at 10 (Portillo Dep.), and her commute was over an hour, see Dkt. 15-11

(describing her commute). Defendant does not address this evidence at all; it only points to an

affidavit from Yoo explaining why the Korean chefs were permitted to take breaks. See Dkt. 13-

1 at 30–31 (Yoo Aff. ¶ 6). The Court, accordingly, declines to enter summary judgment in

Defendant’s favor on the ground that Portillo has failed to allege an adverse employment action.

Although it is a close issue, the Court further concludes that a reasonable trier of fact

could find in Portillo’s favor on this claim. Defendant proffers a non-discriminatory reason why

the Korean employees, but not Portillo or the other Hispanic employees, were permitted to eat

breakfast and to take breaks: The Korean chefs were salaried and thus entitled to determine their

own schedules. Id. at 3 (Def. SUMF ¶ 26) (citing id. at 30–31 (Yoo Aff. ¶ 6)). But a reasonable

jury could find that reason pretextual. Brady v. Office of Sergeant at Arms,

(D.C. Cir. 2008) (“[Once] an employer has asserted a legitimate, non-discriminatory reason for

the decision,” the district court is left with “one central question: Has the employee produced

sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory

reason was not the actual reason and that the employer intentionally discriminated against the

employee . . . ?”). Although the distinction between salaried and hourly workers explains why

6 the Korean chefs were given more autonomy than the Hispanic employees, it does not explain

why Portillo was categorically denied the right to eat breakfast or to take a break. It also does

not explain why Kim yelled at the Hispanic workers but not the Korean employees. To be sure,

Portillo’s evidence that Kim acted with discriminatory intent is thin and entirely circumstantial.

But, at this stage, the Court cannot conclude, in light of the above, that no reasonable jury could

find—based on Kim’s pattern of behavior towards the Hispanic staff—that Kim was motivated

by race/national-origin discrimination.

Moreover, Defendant’s English-only rule may also give rise to a viable disparate

treatment claim. This poses a novel legal question the D.C. Circuit has yet to address. The

EEOC has promulgated a regulation, which states: “[R]equiring employees to speak only English

at all times in the workplace is a burdensome term and condition of employment” that the

Commission “presume[s]” to violate Title VII. 2

. That regulation is not

binding on this Court, but the view of an expert agency at least bears consideration. See EEOC

v. Premier Operator Servs., Inc.,

(N.D. Tex. 2000) (noting that the

agency’s interpretation of Title VII on this issue is entitled to “deference”). On the other hand,

as noted above, the law is clear that, to qualify as an adverse employment action, an employer’s

conduct must rise to the level of affecting the employee’s “terms, conditions, or privileges of

employment or future employment opportunities.” Baird,

(citation omitted).

2 Other courts have held that an English-only rule can, absent a business justification, support a claim for hostile work environment. See, e.g., Maldonado v. City of Altus,

(10th Cir. 2006) (“We cannot say that on the record before us it would be unreasonable for a juror to agree that the City’s English-only policy created a hostile work environment for its Hispanic employees.”), overruled on other grounds by Burlington N.,

; Garcia v. Spun Steak Co.,

(9th Cir. 1993) (refusing to “foreclose the prospect that[,] in some circumstances[,] English-only rules can exacerbate existing tensions, or, when combined with other discriminatory behavior, contribute to an overall environment of discrimination”). Portillo, however, has not alleged a hostile work environment claim here.

7 Under that test, which unlike the EEOC rule, is binding, the Court can conceive of circumstances

under which a limitation on an employee’s ability to speak with co-workers (and others) in her

native language might qualify as an adverse employment action, and other circumstances under

which it would not. The Court is unable, however, to draw any conclusions based on the present

record, because there is little evidence about how the rule was applied, and what little evidence

exists is conflicting. Accordingly, viewing the evidence in the light most favorable to Portillo,

Defendant has failed to satisfy its burden under Federal Rule of Civil Procedure 56(c).

In light of the above, the Court will deny Defendant’s motion for summary judgment as

to Portillo’s disparate treatment claim on the basis of her race/national-origin.

B. Retaliation Claims

The Court will also deny Defendant’s motion for summary judgment as to Portillo’s

retaliation claims because there is a genuine issue of material fact as to whether Portillo called

Kim “a racist” as an insult or whether she intended to make a report of racial discrimination

protected under Title VII and § 1981. See 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful

employment practice for an employer to discriminate against any of his employees . . . because

[s]he has made a charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under [Title VII].”); CBOCS West, Inc. v. Humphries,

(2008) (holding that § 1981 encompasses retaliation claims).

Defendant argues that Portillo’s outburst during the meeting with Choi was rude and

insubordinate—not protected activity. Specifically, Choi testified that Portillo failed to offer any

evidence during the meeting to substantiate her accusation, Dkt. 15-16 at 6 (Choi Dep.), and that

the General Manager, Lopez, stated—in front of everyone—that there was no reason to think that

Kim was racist, id. at 8 (Choi Dep.). Yoo also stated in his affidavit that, prior to this incident,

8 Portillo had never utilized the reporting mechanism set forth in the Employee Handbook to

complain about Kim’s alleged conduct. Dkt. 13-1 at 32 (Yoo Aff. ¶ 13). Portillo counters that

she gave Choi a number of examples of Kim’s discriminatory conduct: She informed Choi that

Kim shouted at Hispanic employees, that she did not permit them to speak Spanish, and that she

had preferences for Korean rather than Hispanic employees. Dkt. 15 at 9–10 (Pl. SMF ¶ 107)

(citing Dkt. 15-13 at 13–14 (Portillo Dep.)). Portillo further testified that she and the other

Hispanic employees had complained about Kim’s behavior to the General Manager, Jose Lopez.

Dkt. 15 at 12 (Pl. SMF ¶ 117) (citing Dkt. 15-13 at 12 (Portillo Dep.) (“Yes, they would tell Jose

[Lopez] about this, but I think Jose was scared.”)); Dkt. 15-12 at 1 (Portillo Decl. ¶ 5)

(describing her own complaint about Kim denying her breaks). Viewing the above evidence in

the light most favorable to Portillo (the nonmovant), the Court concludes that Defendant is not

entitled to summary judgment on Portillo’s retaliation claims because a reasonable trier of fact

could infer that Portillo was terminated for reporting what she believed to be racial

discrimination—not for being insubordinate.

C. Pregnancy Discrimination Claim

The Court will, however, grant summary judgment in favor of Defendant on Portillo’s

pregnancy discrimination claim. The Pregnancy Discrimination Act (“PDA”) amended the

definition section of Title VII. The first clause of the PDA specifies that Title VII’s reference to

“on the basis of sex” includes “because of or on the basis of pregnancy, childbirth, or related

medical conditions.” 42 U.S.C. § 2000e(k). The second clause states that “women affected by

pregnancy, childbirth, or related medical conditions shall be treated the same for all

employment-related purposes . . . as other persons not so affected but similar in their ability or

inability to work.” Id.

9 Portillo argues that Defendant violated Title VII because Kim refused to accommodate

her pregnancy by allowing her to remain seated while at the cash register. 3 See Dkt. 15 at 16–18

(arguing that Defendant had an affirmative obligation to accommodate her pregnancy). That

argument is misplaced. As Defendant correctly observes, Title VII imposes no such free-

standing obligation on employers to accommodate on the basis of pregnancy. To the contrary,

the cases and regulations that Portillo cites, see id., concern the employer’s obligations under the

American with Disabilities Act of 1990 (“ADA”), which covers pregnancy-related “impairments

or conditions that ‘substantially limit[] one or more major life activities.’” Webster v. U.S.

Dep’t of Energy,

(D.D.C. 2017) (quoting

(1)); see

also Spees v. James Marine, Inc.,

(6th Cir. 2010) (“Pregnancy-related

conditions have typically been found to be impairments where they are not part of a ‘normal’

pregnancy.”). Here, Portillo has neither alleged an ADA claim, nor has she provided any

evidence that her pregnancy resulted in “impairments or conditions” that constitute a disability

under the ADA.

Accordingly, the only pregnancy discrimination claim that Portillo can pursue under Title

VII is one that alleges that Kim’s denial of her request to use a stool “constituted disparate

treatment” based on her pregnancy status. Webster,

(citing Young v. U.S.

Parcel Service, Inc.,

(2015)). To make out a prima facie case, the plaintiff

must show that “she belongs to the protected class, that she sought accommodation, that the

3 To the extent that Portillo is also alleging that she was terminated because of her pregnancy (a claim she neither raised in her complaint nor briefed), that claim fails as a matter of law. Portillo has conceded that Choi, the only decisionmaker in this case, was unaware that she was pregnant at the time he terminated her. Dkt. 13-1 at 10 (Choi Aff. ¶ 12); see also Dkt. 15 at 5 (Pl. SMF ¶ 86). She further agrees that she was terminated because she accused Kim of being “a racist.” Dkt. 15 at 10–11 (Pl. SMF ¶¶ 111–15).

10 employer did not accommodate her, and that the employer did accommodate others ‘similar in

their ability or inability to work.’”

(quoting Young,

). The burden then

shifts to the employer to show “‘legitimate, nondiscriminatory’ reasons for denying her

accommodation.”

If the defendant succeeds, the burden then shifts back to the plaintiff to

demonstrate pretext—for instance, by providing evidence that “the employer’s policies impose a

significant burden on pregnant workers,” or that “the employer’s ‘legitimate, nondiscriminatory’

reasons are not sufficiently strong to justify the burden, but rather—when considered along with

the burden imposed—give rise to an inference of intentional discrimination.”

Once the

employer offers a legitimate non-discriminatory reason for its action, however, the Court “need

not—and should not—decide whether the plaintiff actually made out a prima facie case.” Brady

v. Sergeant at Arms,

(D.C. Cir. 2008) (emphasis in original). At that point,

the only question for the Court is “whether the plaintiff produced sufficient evidence for a

reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual

reason and that the employer intentionally discriminated against the plaintiff on a prohibited

basis.” Adeyemi v. District of Columbia,

(D.C. Cir. 2008).

Here, Defendant contends that Portillo’s request was denied for a legitimate, non-

discriminatory reason: “The Company does not permit cashiers at Uncommon Café to sit in a

chair while working at the registers” because “[w]e do not believe it is an appropriate appearance

for cashiers to be seated while customers pay for their food standing over them.” Dkt. 13-1 at 31

(Yoo Aff. ¶ 7); see also id. at 4 (Def. SUMF ¶ 32) (citing same). Portillo testified, however, that

Kim sat while operating the register, Dkt. 15-13 at 11 (Portillo Dep.), and that Kim stated that

she was denying her request because “[she] didn’t comply with any of [Kim’s] orders,” id. But,

even if Portillo’s testimony is sufficient to create a genuine issue of material fact as to whether

11 Defendant’s justification was pretextual, it does not answer the “ultimate question”: “whether the

employer intentionally discriminated,” Reeves v. Sanderson Plumbing Prod., Inc.,

(2000), against Portillo based on her pregnancy. Simply put, Portillo has offered no

evidence that Kim refused to allow her to sit while at the cash register because she was pregnant

or that Kim granted similar accommodations to other employees who had difficulty standing for

extended periods of time, but refused her the same accommodation based on her pregnancy. To

the contrary, as Portillo herself testified, Kim refused to allow her to sit because she was upset

that Portillo allegedly refused to follow orders. Although that may be an unfair reason, it does

not evince disparate treatment in violation of Title VII and the PDA. The Court, accordingly,

concludes that—on the present record—no reasonable juror could conclude that Kim’s decision

was motivated by pregnancy discrimination.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED that Defendant’s motion for summary

judgment is GRANTED in part and DENIED in part. The motion is GRANTED with respect

to Portillo’s pregnancy discrimination claims (Count I) and DENIED with respect to the

remainder of her claims (Counts II through V).

It is further ORDERED that the parties shall appear for a status conference on April 8,

2019, at 10:30 a.m., in Courtroom 21 to discuss further proceedings in this case.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: March 31, 2019

12