IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Christine M. Arguello

Civil Action No. 11-cv-02408-CMA-KMT

SENAD GLUHIC,

Plaintiff,

v.

SAFEWAY, INC.,

Defendant.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on Defendant Safeway Inc.’s (“Safeway”) 

Motion for Summary Judgment. (Doc. # 18.) Pursuant to his Complaint (Doc. 

# 1), Plaintiff Senad Gluhic (“Mr. Gluhic”) brings five claims for relief under Title 

VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., and 

the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112. Mr. Gluhic also 

brings a sixth state law claim for wrongful discharge in violation of public policy. 

Jurisdiction is proper under 28 U.S.C. § 1331. 

I. BACKGROUND

The following facts are undisputed, unless otherwise noted.1 The Court 

will elaborate, as needed, in its analysis section.

 1 As Safeway correctly observes, Mr. Gluhic’s Response does not comply with this 

Court’s Practice Standards. Specifically, any party opposing a motion for summary 

judgment is required to provide a section:

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Mr. Gluhic, a Muslim man originally from Bosnia, was hired by Safeway’s 

Denver Bread Plant (“Bread Plant”) on April 11, 2007. (Doc. # 18 at 2; Doc. # 24 

at 2.) Mr. Gluhic has a speech impediment caused by a brain tumor and is 

unable to speak English well. (Doc. # 24 at 2.) On December 2, 2007, Mr. 

Gluhic became a full-time Checker/Loader in the Bread Plant’s Shipping 

Department. 

While employed at the Bread Plant, Mr. Gluhic received a booklet 

concerning policies and rules relating to the Bread Plant, including the Plant 

Rules, Safeway’s Good Manufacturing Practices, and Safeway’s Harassment 

Policy.2

 (Doc. # 18 at 2-3.) The Plant Rules describe different actions and 

behaviors that “are detrimental to the general operations of the plant for which an 

employee may be subject to disciplinary action up to and including termination.” 

The prohibited actions and behaviors include the “[f]ailure to cooperate in 

maintaining sanitary conditions on Company property” or “[t]hreatening in any 

way . . . the person or property of any other individual.” (Doc. # 18-3 at 2-3.) 

 

admitting or denying the asserted material facts set forth by the movant. 

The admission or denial shall be made in paragraphs numbered to 

correspond to movant’s paragraph numbering. Any denial shall be 

accompanied by a brief factual explanation of the reason(s) for the denial 

and a specific reference to material in the record which establishes that 

fact.

CMA Civ. Practice Standards III.G.5. Instead of following this required format, Mr. 

Gluhic’s Response contains numerous “disputes” that are not supported by specific 

reference to evidence in the record. Moreover, Mr. Gluhic’s disputes do not correspond 

to Safeway’s paragraph numbering, which makes it difficult for the Court to review what 

facts are actually in dispute. The Court’s Practice Standards are not optional but 

mandatory. Thus, the Court will not consider any facts alleged by Mr. Gluhic that are not 

supported by citation to specific evidence found in the record. 

2 Mr. Gluhic disputes that he received these documents, but does not provide any 

evidence in support of this contention. Further, he testified at his deposition that he had 

signed for and received these documents. (Doc. # 25-1 at 25:1-8, 25:19-26:1, 26:9-17.) 

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The Good Manufacturing Practices form expressly states that “[s]pitting is 

not allowed in the general plant or processing areas.” (Id. at 8.) Safeway’s 

Harassment Policy prohibits harassment and instructs employees that have seen 

or experienced any form of harassment or inappropriate conduct to “immediately 

report the situation” to a manager, supervisor, human resources representative, 

or a toll-free hotline. (Id. at 10.)

During his tenure at the Bread Plant, Mr. Gluhic reported several incidents 

to Shipping Supervisor Pat Jones concerning derogatory comments or conduct 

by Mr. Gluhic’s co-workers. The first incident occurred in November of 2008 

when Mr. Gluhic was pushed by an anonymous employee and fell to the floor. 

That employee was fired approximately three hours after Mr. Gluhic reported 

the incident to Mr. Jones. (Doc. # 18-2 at 11:19-23.) Also in November of 2008, 

Mr. Gluhic and one of his co-workers, Min Oo, had an altercation outside of the 

Bread Plant where Mr. Oo “start[ed] insulting [Mr. Gluhic] again regards to [his] 

race, as well, he start spitting out the window.”3

 (Id. at 14:5-10.). Mr. Gluhic 

reported the incident to Mr. Jones. According to Mr. Gluhic:

I said Min in the streets, and then I was using my hands to gesture 

to the spitting, and then [Mr. Jones] gave me a couple options, 

couple of words because he was trying to help me to remember the 

words that I wanted to say. And when he said spitting, then I said 

yes.

(Id. at 15:6-11.)

 3 Mr. Gluhic is not a native English speaker and, by his own admission, “doesn’t speak 

English well.” (Doc. # 24 at 2.) Thus, many of the quotes taken from Mr. Gluhic’s 

deposition contain grammatical errors. In the interest of precision, the Court will quote 

Mr. Gluhic with minimal alteration.

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Another time in late 2008, Mr. Gluhic complained to Mr. Jones that Mr. Oo 

was “swearing on my mother every day and on my religion.” (Id. at 12:11-16.) 

Mr. Jones then spoke with Mr. Oo and gave him a “last reminder” concerning his 

behavior. Sometime in 2009, Mr. Gluhic complained to Mr. Jones that Mr. Oo 

screamed “[m]otherf****r Muslim” at him. (Id. at 17:17-21.) Although Mr. Gluhic 

did not know whether Mr. Jones spoke with Mr. Oo after this incident, roughly 

one or two hours later, Mr. Jones visited the work area “to check in on 

[Mr. Gluhic’s] workplace to see if everything is okay.” (Id. at 19:3-8.) 

In November or December of 2009, Mr. Gluhic reported to Mr. Jones that 

co-worker Mario Espinoza had called him a “mother r Muslim” and stated 

“Muslim is a terrorist and Bosnia people is terrorist.” (Id. at 20:22-25.) Mr. Jones 

told Mr. Gluhic that he would speak with Mr. Espinoza and that his comments 

would never be repeated. Mr. Gluhic testified, however, that Mr. Espinoza made 

similar comments the next day. (Id. at 21:1-5.)

Mr. Gluhic’s final complaint to Mr. Jones occurred in January of 2010, 

regarding comments made by his co-worker, Brook Asfaw, who is from Africa. 

(Id. at 21:14-25.) At the time, Mr. Gluhic was frequently visiting a doctor and was 

having his blood drawn. (Id. at 22:7-13.) Mr. Gluhic reported to Mr. Jones that 

Mr. Asfaw had “told me I am use drugs and he say I am old too.” (Id. at 23:6-10.)

At approximately 10:30 p.m. on March 4, 2010, Mr. Asfaw complained to 

Production Supervisor Allen Gebers that Mr. Gluhic had cursed at him and spat 

in his face. (Doc. # 18-1 at 5.) Mr. Gebers interviewed Mr. Gluhic, who said that 

Mr. Asfaw had been cursing first and that he had only returned the same 

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treatment. Mr. Asfaw denied starting the altercation. (Id.) Mr. Gebers sent both 

employees home, and reported the issue via email message to Plant 

Superintendent Nathan Smith. (Id.) During the next week, Mr. Smith 

investigated Mr. Asfaw’s complaint by interviewing several Bread Plant 

employees and reviewing written statements by employees. (Id., ¶ 6.) Ruben 

Rodriguez, who worked with both Mr. Asfaw and Mr. Gluhic, told Mr. Smith that 

Mr. Gluhic had made several negative comments to Mr. Asfaw regarding Africa 

over the days preceding the March 4, 2010 incident. (Id., ¶ 10.) Mr. Oo also told 

Mr. Smith that Mr. Gluhic had made derogatory comments to Mr. Asfaw 

regarding Africa, and said that, while he did not see Mr. Gluhic spit on Mr. Asfaw, 

he later saw the spit on Mr. Asfaw’s face. (Id., ¶ 11.)

Mr. Smith also interviewed Mr. Gluhic, who “admitted to spitting at 

Mr. Asfaw while on the shipping floor but claimed Mr. Asfaw had spit at him first.” 

(Id., ¶ 7.) Mr. Asfaw told Mr. Smith that Mr. Gluhic had started the incident 

by calling him a “bitch” and making comments regarding Mr. Asfaw’s father. 

Mr. Asfaw said that Mr. Gluhic had spat on him when he asked him to stop 

making such comments, but denied ever having spit at Mr. Gluhic. (Id., ¶ 8.) 

Based on his investigation, Mr. Smith made the decision to terminate 

Mr. Gluhic’s employment with Safeway because Mr. Gluhic had admitted to 

spitting on Mr. Asfaw on the shipping floor. (Id., ¶ 12.) Mr. Asfaw was 

suspended without pay for three days for approaching Mr. Gluhic to ask him to 

stop his insults as opposed to reporting the issue to his supervisor. (Id., ¶ 13.) 

However, Mr. Asfaw was not terminated, as the only evidence supporting 

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Mr. Gluhic’s claim that Mr. Asfaw had spit at him was Mr. Gluhic’s own belated 

allegation, which Mr. Asfaw denied. (Id.)

Mr. Gluhic initiated this civil action by filing his Complaint on September 

13, 2011. (Doc. # 1.) Safeway filed the instant Motion for Summary Judgment 

on August 16, 2012. (Doc. # 18.) Mr. Gluhic responded on September 26, 2012, 

and Safeway replied on October 9, 2012. (Doc. ## 24, 25.) 

II. STANDARD OF REVIEW

Summary judgment is appropriate if the moving party demonstrates that 

there is Ano genuine dispute as to any material fact@ and that it is Aentitled to a 

judgment as a matter of law.@ Fed. R. Civ. P. 56(a). In applying this standard, 

the Court views the evidence and all reasonable inferences therefrom in the light 

most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 

664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio 

Corp., 475 U.S. 574, 587 (1986)). A fact is Amaterial@ if, under the applicable 

substantive law, it is Aessential to the proper disposition of the claim.@ Id. (citing 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute of fact is 

Agenuine@ if Athere is sufficient evidence on each side so that a rational trier of 

fact could resolve the issue either way.@ Id. (citing Anderson, 477 U.S. at 248).

The moving party bears the initial burden of demonstrating an absence of a 

genuine issue of material fact and entitlement to judgment as a matter of law. Id. 

at 670-71. In attempting to meet that standard, a movant who does not bear the 

ultimate burden of persuasion at trial does not need to disprove the other party's 

claim; rather, the movant need simply point out to the court a lack of evidence for 

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the other party on an essential element of that party's claim. Id. at 671 (citing 

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

Once the movant has met this initial burden, the burden shifts to the 

nonmoving party to Aset forth specific facts showing that there is a genuine issue 

for trial.@ Anderson, 477 U.S. at 256. The nonmoving party may not simply rest 

upon its pleadings to satisfy its burden. Id. Rather, the nonmoving party must 

Aset forth specific facts that would be admissible in evidence in the event of trial 

from which a rational trier of fact could find for the nonmovant.@ Adler, 144 F.3d 

at 671. ATo accomplish this, the facts must be identified by reference to 

affidavits, deposition transcripts, or specific exhibits incorporated therein.@ Id. 

Finally, the Court notes that summary judgment is not a Adisfavored 

procedural shortcut@; rather, it is an important procedure Adesigned >to secure the 

just, speedy and inexpensive determination of every action.=@ Celotex, 477 U.S. 

at 327 (quoting Fed. R. Civ. P. 1).

III. ANALYSIS

A. NATIONAL ORIGIN AND RELIGIOUS DISCRIMINATION CLAIMS 

Mr. Gluhic alleges that he was discriminated against on the basis of his 

national origin and religion. (Doc. # 1, ¶¶ 60-67.) Because Mr. Gluhic attempts 

to prove these two discrimination claims through circumstantial evidence, the 

Court applies the familiar McDonnell Douglas burden-shifting analysis. See 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Khalik v. United Air 

Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). 

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Under the McDonnell Douglas framework, Mr. Gluhic must first establish 

a prima facie case of national origin or religious discrimination by Safeway. 

See Khalik, 671 F.3d at 1192. If Mr. Gluhic can do so, the burden shifts to 

Safeway to articulate a legitimate non-discriminatory reason for the adverse 

employment action. Id. If Safeway articulates such a reason, the burden shifts 

back to Mr. Gluhic to demonstrate that Safeway’s proffered reason is pretextual. 

Id.

To establish a prima facie unlawful discharge case, Mr. Gluhic must 

establish that: (1) he belongs to a protected class, (2) he was qualified to perform 

his job, (3) he was terminated, and (4) the circumstances surrounding his 

termination gave rise to an inference of discrimination. Baltazar v. Shinseki, 485 

F. App’x 941, 946 (10th Cir. 2012). Safeway concedes that Mr. Gluhic meets the 

first and third elements of his prima facie burden for both claims, but contends 

that he fails to satisfy the second and fourth elements. Although the Court finds 

that there are disputed issues of material fact with regard to the second element, 

the Court agrees with Safeway that Mr. Gluhic fails to present sufficient evidence

that the circumstances surrounding his termination give rise to an inference of 

discrimination.4

 

 4 The Tenth Circuit has observed that the fourth element of the prima facie burden 

applicable in cases such as this one involves an inquiry similar to the one concerning 

a plaintiff’s burden of demonstrating pretext. Baltazar, 485 F. App’x at 946. Thus, 

Mr. Gluhic’s failure to show that the circumstances surrounding his termination give 

rise to an inference of discrimination also means that he cannot show that Safeway’s 

legitimate, non-discriminatory reason for terminating him – spitting at Mr. Asfaw – was 

pretextual. 

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A plaintiff can establish evidence of the fourth prong in a variety of ways, 

“such as ‘actions or remarks made by decisionmakers,’ ‘preferential treatment 

given to employees outside the protected class,’ or ‘more generally, upon the 

timing or sequence of events leading to plaintiff’s termination.’” Barlow v. C.R. 

England, Inc., 703 F.3d 497, 505 (10th Cir. 2012) (quoting Plotke v. White, 405 

F.3d 1092, 1101 (10th Cir. 2005)). Safeway maintains that Mr. Gluhic was 

terminated because he spat on Mr. Asfaw while at the Bread Plant during their 

March 4, 2010 altercation. 

In his Response, Mr. Gluhic contends that he has presented evidence of 

disparate treatment because Safeway did not fire Mr. Oo for spitting at Mr. Gluhic 

in 2008, nor did Safeway fire Mr. Asfaw for spitting on Gluhic in 2010.5

 However, 

by Mr. Gluhic’s own admission, Mr. Oo spat at him “in the streets,” outside of the 

workplace. (Doc. # 18-1 at 15:6-11.) Thus, unlike Mr. Gluhic, Mr. Oo did not 

violate the Good Manufacturing Practices, which expressly states that “[s]pitting 

is not allowed in the general plant or processing areas.” (Doc. # 18-3 at 8) 

(emphasis added.) Because an outside of work incident is highly dissimilar to 

an incident that occurs at the workplace, Mr. Gluhic has not shown that Safeway 

treated Mr. Oo differently than him. See Sprague v. Thorn Americas, Inc., 129 

F.3d 1355, 1367 (10th Cir. 1997). Further, there is no evidence that Mr. Oo 

admitted to spitting on Mr. Gluhic. With regard to Mr. Asfaw, Mr. Gluhic has 

presented no evidence, beyond his own belated and self-serving allegation, that 

 5 Mr. Gluhic conclusorily asserts that “at least three different employees” were not 

terminated for violating Safeway’s “supposed ‘zero tolerance’ harassment policy.” 

(Doc. # 24 at 10.) Even if true, Mr. Gluhic does not explain how this would provide 

an inference that Mr. Gluhic’s termination was discriminatory. 

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Mr. Asfaw spat on Mr. Gluhic on March 4, 2010. In contrast, Mr. Gluhic admitted 

to spitting on Mr. Asfaw when he was interviewed immediately after the incident. 

(Doc. # 18-2 at 36:2-7.) Thus, Mr. Gluhic was the only employee who admitted 

to spitting on a co-worker in the workplace and the fact that neither Mr. Oo nor 

Mr. Asfaw was terminated does not provide an inference that Mr. Gluhic’s 

termination was discriminatory. 

Viewing the evidence in the light most favorable to Mr. Gluhic, a 

reasonable factfinder could determine that Mr. Asfaw was responsible for inciting 

the altercation that occurred on March 4, 2010. Even if true, the Court does not

sit “as a super personnel department that second guesses employers’ business 

judgment.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1233 (10th 

Cir. 2000). Thus, “the issue is not whether the decision to terminate [Mr. Gluhic] 

was wise, fair or correct, but whether [Safeway] reasonably believed at the time 

of the termination that [Mr. Gluhic] had violated company policy, and acted in 

good faith upon that belief.” Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 

1120 (10th Cir. 2007). As Safeway argues, Mr. Smith’s rationale for not believing 

that Mr. Asfaw had spit on Mr. Gluhic – that Mr. Gluhic did not make such a claim 

when he was originally interviewed immediately after the altercation occurred – is 

inherently reasonable. Thus, the Court finds that Mr. Gluhic has failed to present 

sufficient evidence that Safeway discriminated against Mr. Gluhic on the basis 

of his religion or national origin when Safeway fired Mr. Gluhic for spitting on 

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Mr. Asfaw, and summary judgment is appropriate on these discrimination 

claims.

6

B. DISABILITY DISCRIMINATION CLAIM

Mr. Gluhic also alleges that Safeway discriminated against him in violation 

of the ADA on the basis of his disability. (Doc. # 1, ¶¶ 76-79.) To establish a 

prima facie case of disability discrimination under the ADA, Mr. Gluhic must 

establish that: “(1) [he] was a disabled person as defined by the ADA; (2) [he] 

was qualified, with or without reasonable accommodation, to perform the 

essential functions of [his] job; and (3) [he] was fired because of [his] disability.” 

Allen v. SouthCrest Hosp., 455 F. App’x 827, 830 n.2 (10th Cir. 2011). Safeway 

contends that Mr. Gluhic has not offered any evidence that he was fired because 

of his disability. The Court agrees.

“The third prong of the [prima facie] test requires the plaintiff to present 

some affirmative evidence that disability was a determining factor in the 

employer’s decision, a burden that is not onerous but also not empty or 

perfunctory.” Ainsworth v. Indep. Sch. Dist. No. 3 of Tulsa Ctny., Okla., 232 

F. App’x 765, 770 (10th Cir. 2007) (internal quotation marks and citation omitted). 

Simply put, Mr. Gluhic has presented no “affirmative evidence” that Safeway 

discriminated against him on the basis of his speech impediment. Instead, 

Mr. Gluhic argues, without citation to case law, that Safeway was negligent by 

 6 Mr. Gluhic also relies on a finding from the Colorado Department of Labor that 

Mr. Gluhic was not at fault for his termination. Again, the issue is not whether Mr. Gluhic 

was actually at fault, but whether Safeway had a good faith belief that Mr. Gluhic violated 

company policy. See Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076, 1080 (10th Cir. 

1999) (noting that the pertinent question is not whether the employer was right to believe 

that the employee engaged in misconduct, but whether the employer’s belief was 

genuine and not pretextual). 

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failing to provide him with an interpreter to register his various complaints. 

However, the issue is whether Mr. Gluhic’s disability was a determining factor in 

Safeway’s decision to terminate his employment. Id. Proving that Safeway was 

negligent in some way is not sufficient to show that Safeway discriminated 

against Mr. Gluhic in its decision to discharge him from employment. Thus, 

summary judgment is appropriate on Mr. Gluhic’s disability discrimination claim. 

C. HOSTILE WORK ENVIRONMENT CLAIM

Next, the Court considers Mr. Gluhic’s claim that Safeway “promoted and 

condoned a hostile work environment.” (Doc. # 1, ¶ 73.) In order to bring a 

hostile work environment claim, a plaintiff must show “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.” Sandoval v. City of Boulder, 388 F.3d 1312, 

1327 (10th Cir. 2004) (quotation omitted). “Title VII does not establish a general 

civility code for the workplace . . . the run-of-the-mill boorish, juvenile, or 

annoying behavior that is not uncommon in American workplaces is not the stuff 

of a Title VII hostile work environment claim.” Morris v. City of Colo. Springs, 666 

F.3d 654, 663-64 (10th Cir. 2012). The test for a hostile work environment claim 

has both objective and subjective components. Id. at 664. Thus, the Court looks 

to whether Mr. Gluhic was offended by the work environment as well as whether 

a reasonable person would likewise be offended. Id. The Court determines 

whether an environment is hostile or abusive by examining “the frequency of 

the discriminatory conduct; its severity; whether it is physically threatening or 

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humiliating, or a mere offensive utterance; and whether it unreasonably interferes 

with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 

22-23 (1993).

During his deposition, Mr. Gluhic recounted several incidents that he 

claimed were indicative of religious or national origin discrimination.7

 The first 

incident occurred in November of 2008 when Mr. Gluhic was pushed by an 

anonymous employee. (Doc. # 18-2 at 11:7-12.) Although Mr. Gluhic asserts in 

his Response that the anonymous employee was “harassing [Mr.] Gluhic based 

on his religion and disability,” Mr. Gluhic fails to present any evidence that 

he was pushed because of his religion or disability. (Doc. # 24 at 14.) Thus, 

Mr. Gluhic has not shown that this incident of harassment stemmed from any 

discriminatory animus. Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994)

(“General harassment if not [discriminatory] is not actionable.”). Moreover, 

Safeway took immediate action to address this unacceptable behavior by 

terminating the anonymous employee approximately three hours after Mr. Gluhic 

reported the incident.

Mr. Gluhic has presented evidence that his co-workers made some

derogatory comments about Mr. Gluhic’s religion and/or his national origin. 

Viewing the evidence in the light most favorable to Mr. Gluhic, Mr. Oo called 

Mr. Gluhic a “mother** **r Muslim” in late 2008 and again in 2009. (Doc. # 18-2

 7 Mr. Gluhic also complained to Mr. Jones that Mr. Asfaw accused him of using drugs 

and called him old. (Doc. # 18-2 at 23:8-10.) Although Mr. Gluhic may have been 

offended by this comment, the Court does not perceive how this comment exhibits

religious, national origin, or disability animus by Mr. Asfaw. Thus, the Court will not 

consider this comment in determining whether Mr. Gluhic has presented sufficient 

evidence to show that he was subjected to a hostile work environment. 

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at 13:1-9; 18:19-25.) Additionally, Mr. Oo accosted Mr. Gluhic “in the streets” 

in November 2008, when Mr. Oo spat at Mr. Gluhic and insulted Mr. Gluhic 

with “regard[] to [his] race.” (Id. at 14:5-10.) Mr. Espinoza called Mr. Gluhic 

a “mother r Muslim” and stated “Muslim is a terrorist and Bosnia people is 

terrorist” in November or December of 2009. (Id. at 20:1-7; 20:20-25.) And, on 

March 4, 2010, Mr. Asfaw also called Mr. Gluhic a “mother** **r Muslim” during 

their confrontation. (Id. at 33:10-15.)

Although it is regrettable that these incidents may have occurred, “a few 

isolated incidents of sporadic slurs” do not make a sufficient showing of a 

pervasively hostile work environment. Morris, 666 F.3d at 666 (internal quotation 

and citation omitted). “Instead, there must be a steady barrage of opprobrious 

comments.” Id. The comments in this case were made sporadically over a 

seventeen month period.8

 Further, with the possible exception of the 

confrontation between Mr. Oo and Mr. Gluhic, which did not take place in the 

work environment, but rather, “in the streets,” none of the alleged offensive 

conduct appears to have been physically threatening. Although the severity 

and pervasiveness evaluation of a hostile work environment claim is usually a 

question of fact, see O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1098 

(10th Cir. 1999), summary judgment is appropriate if the complained of behavior

was not sufficiently pervasive to support a hostile work environment claim. See, 

e.g., Sprague, 129 F.3d at 1365-66 (concluding that five separate incidents of 

 8 At one point in his deposition, Mr. Gluhic suggests that Mr. Oo called him a 

“motherfucker Muslim” every day. (Doc. # 18-2 at 13:5-6.) However, Mr. Gluhic 

also testified that he complained to Mr. Jones “every time” a co-worker made such 

comments, but recounted only the specific incidents described above. (Id. at 9:18-19.)

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allegedly sexually-oriented, offensive comments either directed at the plaintiff or 

made in her presence were not sufficiently pervasive to support a hostile work 

environment claim); Morris, 666 F.3d at 666 (finding that there was “insufficient 

evidence for a jury to find that the alleged harassment was pervasive.”). The 

Court finds that Mr. Gluhic has failed to show that the alleged harassment was 

pervasive or serious enough to avoid summary judgment on his hostile work 

environment claim.

D. RETALIATION CLAIM

Mr. Gluhic also contends that his termination was in retaliation for 

complaining about discrimination to Safeway management. (Doc. # 1, ¶¶ 69-71.)

To establish a prima facie case of retaliation, Mr. Gluhic must show that (1) he 

engaged in protected opposition to discrimination; (2) he suffered an adverse 

action that a reasonable employee would have found material; and (3) there 

is a causal nexus between his opposition and the employer’s adverse action. 

Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1181 (10th Cir. 2006). Although 

Mr. Gluhic engaged in protected opposition when he voiced complaints to 

Mr. Jones, and he suffered an adverse action when he was terminated, 

Mr. Gluhic has presented no evidence of any causal connection between his 

complaints to Mr. Jones and his termination by Mr. Smith. Further, Mr. Gluhic’s 

last complaint to Mr. Jones about racial or national origin discrimination by 

Mr. Espinoza occurred in November or December of 2009, well before Mr. Gluhic

was terminated. Thus, he cannot show a causal connection by temporal 

proximity alone. See Conroy v. Vilsack, 707 F.3d 1163, 1181 (10th Cir. 2013) 

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(“a three month period, standing alone, is insufficient to establish causation.”). 

Even assuming arguendo that Mr. Gluhic can establish a prima facie case of 

retaliation, Mr. Gluhic fails to present any evidence that Safeway’s legitimate, 

non-discriminatory reason for his termination – his spitting in Mr. Asfaw’s face 

at work – was pretextual. (See supra, § III.A.)

E. PUBLIC POLICY DISCHARGE CLAIM

Lastly, Mr. Gluhic brings a public policy wrongful discharge claim, alleging 

that “Colorado law protects employees from retaliatory termination based on that 

employee’s exercise of a legal right or duty.” (Doc. # 1, ¶ 109.) Because the 

Court has disposed of all claims over which it has original jurisdiction, it declines 

to exercise supplemental jurisdiction over Mr. Gluhic’s final state law claim. See

28 U.S.C. § 1367(c)(3) (a federal court may decline to exercise supplemental 

jurisdiction when it “has dismissed all claims over which it has original 

jurisdiction.”); Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011) 

(“When all federal claims have been dismissed, the court may, and usually 

should, decline to exercise jurisdiction over any remaining state claims.”). 

Because the Court discerns no compelling reason why it should retain jurisdiction 

of Mr. Gluhic’s state law claim, the Court declines to exercise supplemental 

jurisdiction over Mr. Gluhic’s final state law claim, and thus, dismisses it without 

prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 

2006) (dismissals for lack of jurisdiction should be without prejudice because 

the court has not reached a disposition on the merits of the underlying claim).

Case 1:11-cv-02408-CMA-KMT Document 30 Filed 03/28/13 USDC Colorado Page 16 of 17
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IV. CONCLUSION

Based on the foregoing, it is ORDERED that Defendant Safeway’s Motion 

for Summary Judgment (Doc. # 18) be GRANTED.

FURTHER ORDERED that Mr. Gluhic’s Public Policy Discharge Claim is 

DISMISSED WITHOUT PREJUDICE. All other claims are DISMISSED WITH 

PREJUDICE.

DATED: March 28 , 2013

BY THE COURT:

_______________________________

CHRISTINE M. ARGUELLO

United States District Judge

Case 1:11-cv-02408-CMA-KMT Document 30 Filed 03/28/13 USDC Colorado Page 17 of 17