Fuller v. Corrections, Idaho Department of et al

Filing 82

MEMORANDUM OPINION AND ORER RE: SUMMARY JUDGMENT. Defendants' Motion for Summary Judgment (ECF No. 39 ) is GRANTED. Plaintiff's Motion for Partial Summary Judgment (ECF No. 40 ) is DENIED. Plaintiff's Motions to Strike (ECF No. [57 ] & 71 ) are DENIED. Defendant's Motion to Strike (ECF No. 56 ) is DENIED. The Clerk is directed to enter Judgment in favor of Defendants dismissing the Complaint and the claims therein with prejudice. Signed by Judge Justin L. Quackenbush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp) Modified on 12/2/2014 to edit text (jp).

1
2
3

UNITED STATES DISTRICT COURT

4

DISTRICT OF IDAHO

5
6
7
8
9
10
11
12

CYNTHIA FULLER,

)
)
Plaintiff,
)
vs.
)
)
)
)
STATE OF IDAHO, DEPT. OF
)
CORRECTIONS, BRENT REINKE,
)
and HENRY ATENCIO,
)
)
Defendants.
)
___________________________________ )

No. CV-13-035-JLQ
MEMORANDUM OPINION
AND ORDER RE:
SUMMARY JUDGMENT

13

BEFORE THE COURT are Defendants’ Motion for Summary Judgment (ECF No.

14

39), Plaintiff’s Motion for Partial Summary Judgment (ECF No. 40), and the parties

15

various Motions to Strike supporting evidentiary materials (ECF No. 56, 57, and 71). The

16

court heard oral argument on the matters in Boise, Idaho on September 22, 2014.

17

Kathryn Harstad and Erika Birch appeared for the Plaintiff, who was present. Phillip

18

Collaer and Tracy Crane argued on behalf of Defendants. The court allowed the parties

19

to submit supplemental briefs, which the court has received and considered.

20

I. Introduction/Procedural History

21

This action was filed on January 22, 2013. Defendants filed an early Motion for

22

Partial Summary Judgment (ECF No. 6) on March 13, 2013. The court granted in part

23

the Motion for Partial Summary Judgment. (ECF No. 19). As a result of that ruling, the

24

following claims remained:

25
26

1. The Title VII claims in Counts I and II against IDOC ("Idaho Department of
Corrections");

27
28

ORDER - 1

1
2
3
4

2. The 42 U.S.C. § 1983 claims in Count III against Defendants Atencio and
Reinke in their official capacities;
3. The claim in Count VI against Atencio in his individual capacity for
negligent/intentional infliction of emotional distress.

5

II. Factual Background

6

The court herein recites the basic undisputed Factual Background and will

7

reference the applicable facts in its discussion of the individual claims.

8

Plaintiff, Cynthia Fuller, (hereafter “Plaintiff” or “Fuller”) is a former employee

9

of the Idaho Department of Corrections (“IDOC”). She resigned on November 16, 2011.

10

Plaintiff began working for IDOC as a correctional officer in 2004 and was promoted to

11

Sergeant. In October 2010, she became a probation and parole officer. In 2011, she

12

requested, and received, a transfer to the Caldwell Division III Probation and Parole

13

Office (“D-3 Office”). In March or April 2011, Fuller began a sexual relationship with

14

a co-worker, Herbt Cruz. Plaintiff was aware of a Department of Corrections policy

15

requiring that employees disclose romantic relationships with co-employees, but neither

16

Plaintiff or Cruz disclosed their ongoing relationship to supervisors until sometime after

17

August 15, 2011.

18

On or about August 1, 2011, a criminal investigation of Cruz was opened in Idaho

19

for allegedly raping another woman (not Plaintiff). On August 15, 2011, IDOC placed

20

Cruz on administrative leave pending the investigation. Plaintiff continued her romantic

21

relationship with Cruz. Plaintiff alleges that thereafter she was assaulted and raped by

22

Cruz on three occasions, the first of which was August 22, 2011. Fuller did not

23

immediately report that alleged assault to her employer or law enforcement and resumed

24

her relationship with Cruz. Plaintiff alleges she was also assaulted by Cruz on August

25

30, 2011, but that alleged assault was also not reported until September 6, 2011. Despite

26

the assaults, Plaintiff testified that she continued to be “romantically involved” with Cruz,

27

and continued the sexual relationship, until on or about September 3, 2011 when she was

28

ORDER - 2

1

allegedly assaulted again by Cruz. (See Fuller Depo. p. 122-125; 140-141)1. Fuller

2

reported the Cruz assaults to law enforcement on September 6, 2011. On September 7,

3

2011, Plaintiff obtained an Order of Protection and took leave from work.

4

Plaintiff was not allowed paid administrative leave, but was allowed to use her

5

sick leave and vacation time while she was at home. Plaintiff was also offered

6

intermittent leave under the Family Medical Leave Act ("FMLA"). Fuller makes no

7

claim under FMLA. She returned to work on October 19, 2011. Plaintiff alleges that

8

although Cruz was on administrative leave while being investigated concerning the

9

alleged assault on the third-party and she had an Order of Protection, she felt unsafe at

10

work, although Cruz at no time returned to the work place. Fuller claims the IDOC did

11

not take adequate remedial measures to protect her from further contact by Cruz even

12

though no such contact occurred.

13

On November 10, 2011, Plaintiff attended a meeting with Henry Atencio, Kim

14

Harvey, and Roberta Hartz , supervisors, to discuss further notice to other employees that

15

Cruz was not allowed on the IDOC premises and Plaintiff’s request for paid leave.

16

Plaintiff secretly recorded that meeting and a transcript of the meeting is part of the

17

record. (at ECF No. 47-26). At the November 10, 2011, meeting, Fuller told her

18

supervisors that she felt ostracized because her co-workers did not know the full story as

19

to why she had been on leave and had missed POST training. Fuller also stated, "and I

20

believe the supervisors have been very supportive, absolutely." Fuller further stated that

21

although she was now in an "uncomfortable situation," that "the whole thing--I mean,

22

granted, you know, it's not your guys' fault that I - - you know, I got into that kind of

23

relationship." (Tr. p. 32). At the conclusion of the meeting, Atencio stated: "Well, I think

24
25

1

Fuller and Cruz also continued to communicate extensively via text message during this

26

time period. The texts were submitted in the record as Fuller deposition exhibit 72 at ECF No.

27

45-16 and 45-17.

28

ORDER - 3

1

the two things we need to do, we'll talk to one of our AG's [Assistant Attorney Generals]

2

about how we can, you know, announce Cruz's not being allowed to be by the building,

3

or in the building, how we can do that legally. And then the other thing is looking at it,

4

again, with paid leave options in the future for you." (Tr. p. 39).

5

On November 16, 2011, Kim Harvey sent a notice to all District 3 employees

6

informing them that Cruz is “on leave pending an investigation” and that he is “not

7

allowed in the D-3 offices” and that “if anyone sees him, they are to notify a supervisor.”

8

(ECF No. 47-40). That very same day, after receiving the e-mail, Plaintiff submitted her

9

“Resignation Memo”. (ECF No. ECF No. 47-41). Plaintiff later filed for unemployment

10

benefits. The IDOC contested the claim. An Idaho Department of Labor hearing was

11

held on January 27, 2012, and benefits were denied.

12

III. The Remaining Claims

13

The Title VII claims in Count I allege hostile work environment and constructive

14

discharge. (ECF No. 1, p. 9). Plaintiff claims that IDOC "failed to take adequate remedial

15

measures to prevent [Cruz's] on-going sexual harassment within the workplace" and that

16

IDOC's failures to take such measures led to Ms. Fuller's constructive discharge. (ECF

17

No. 1, ¶¶ 48-53). Count II alleges gender discrimination and disparate treatment leading

18

to constructive discharge.

19

administrative leave, and that Cruz was on paid administrative leave. Count III alleges

20

violation of Equal Protection under the Fourteenth Amendment. Count VI against

21

Atencio alleges that Atencio caused Plaintiff emotional distress by not offering her paid

22

administrative leave, inadequately protecting her in the workplace, and contesting her

23

unemployment application after she was constructively discharged. (ECF No. 1, p. 15).

24

Defendants deny these allegations.

Plaintiff complains that she was not offered paid

25

Defendants' instant Motion for Summary Judgment seeks judgment in Defendants

26

favor on the remaining claims. Plaintiff's Motion for Partial Summary Judgment seeks

27

judgment in her favor on Counts I and II.

28

ORDER - 4

1

IV. Standard of Review

2

The purpose of summary judgment is to avoid unnecessary trials when there is no

3

dispute as to the material facts before the court. Northwest Motorcycle Ass'n v. U.S.

4

Dept. of Agriculture, 18 F.3d 1468, 1471 (9th Cir. 1994). The moving party is entitled

5

to summary judgment when, viewing the evidence and the inferences arising therefrom

6

in the light most favorable to the nonmoving party, there are no genuine issues of material

7

fact in dispute. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

8

(1986). While the moving party does not have to disprove matters on which the opponent

9

bears the burden of proof at trial, they nonetheless bear the burden of producing evidence

10

that negates an essential element of the opposing party’s claim and the ultimate burden

11

of persuading the court that no genuine issue of material fact exists. Nissan Fire &

12

Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102 (9th Cir. 2000). When the

13

nonmoving party has the burden of proof at trial, the moving party need only point out

14

that there is an absence of evidence to support the nonmoving party’s case. Devereaux

15

v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001).

16

Once the moving party has carried its burden, the opponent must do more than

17

simply show there is some metaphysical doubt as to the material facts. Matsushita Elec.

18

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the opposing party

19

must come forward with specific facts showing that there is a genuine issue for trial. Id.

20

Although a summary judgment motion is to be granted with caution, it is not a

21

disfavored remedy: “Summary judgment procedure is properly regarded not as a

22

disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a

23

whole, which are designed to secure the just, speedy and inexpensive determination of

24

every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)(citations and quotations

25

omitted).

26

V. Discussion

27

A. Count I - Hostile Work Environment and Constructive Discharge

28

ORDER - 5

1

Plaintiff brings her claims in Counts I and II under Title VII which is codified at

2

42 U.S.C. 2000e-2, which provides in pertinent part:

3

(a) Employer practices

4

It shall be an unlawful employment practice for an employer--

5
6
7
8
9

(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race, color,
religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any
way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because of
such individual's race, color, religion, sex, or national origin.

10

Plaintiff contends she was subjected to a hostile work environment, and ultimately

11

constructively discharged. This claim is without factual and legal merit. When

12

considering a claim of sexual harassment based on a hostile work environment, there

13

are two primary considerations: “whether the plaintiff has established that she or he

14

was subjected to a hostile work environment, and whether the employer is liable for

15

the harassment that caused the environment.” Little v. Windermere Relocation, Inc.,

16

301 F.3d 958, 966 (9th Cir. 2002). Title VII is “not a general civility code.” Manatt

17

v. Bank of America, 339 F.3d 792, 798 (9th Cir. 2003) citing Faragher v. City of Boca

18

Raton, 524 U.S. 775 (1998). To establish a prima facie hostile work environment

19

claim, Plaintiff must show: 1) she was subjected to verbal or physical conduct

20

because of her sex, 2) the conduct was unwelcome, and 3) the conduct was

21

sufficiently severe or pervasive to alter the conditions of her employment and create

22

an abusive work environment. Manatt, 339 F.3d at 798. Although Title VII “evinces

23

a congressional intent to strike at the entire spectrum of disparate treatment of men

24

and women in employment,” to be actionable, the offending conduct must be

25

“sufficiently severe or pervasive to alter the conditions of the victim’s employment

26

and create an abusive working environment.” Oncale v. Sundowner Offshore Serv.,

27

523 U.S. 75, 78 (1998).

28

ORDER - 6

1

Plaintiff has not demonstrated that she was subject to a hostile work

2

environment, or that her employer is responsible for the alleged harassment.

3

Plaintiff admits that what she considers the sexual harassment–Cruz’ alleged

4

assaultive behavior–occurred outside the workplace. Further, it occurred while Cruz

5

was suspended. Both parties rely upon Little v. Windermere Relocation, Inc., 301

6

F.3d 958, 966 (9th Cir. 2002), but the case does not aid Fuller. In Little, the plaintiff

7

was employed as a “Corporate Services Manager”, and she worked with corporate

8

clients providing relocation services for those employees. Little attended a business

9

dinner with a client, and after dinner became ill, passed out, and was raped by the

10

client. When Little told a co-worker, the co-worker advised her not to tell

11

management. When Little told a vice-president of operations of the assault, she

12

advised that she “wished there was something she could do,” and would not tell the

13

president, Gayle Glew, unless Little was going to pursue legal action. When

14

Plaintiff told Glew, he told her to speak to his attorneys, and immediately lowered

15

her pay. He then told Little that if the pay cut was not acceptable, “it would be best

16

if she moved on and that she should clean out her desk.” Id. at 965.

17

The Ninth Circuit Court of Appeals noted that the “rape occurred at a business

18

meeting with a business client” and that “having out-of-office meetings with

19

potential clients was a required part of the job.” Id. at 967. The Circuit also stated

20

that, “being raped by a business associate, while on the job, irrevocably alters the

21

conditions of the victim’s work environment.” Id. at 967-68. The court also

22

observed that Little’s employer had demoted her and terminated her when she

23

reported the rape. The employer had also failed to take steps to prevent contact

24

between Little and the client. The court found that a jury could find the employer

25

liable for a hostile work environment after the rape “if a jury finds that [the

26

employer] ratified or acquiesced in the rape by failing to take immediate corrective

27

action once it knew or should have known of the rape.” Id. at 969.

28

ORDER - 7

1

The facts of this case are in stark contrast to Little. Here, Fuller was not

2

sexually harassed while performing the functions of her job. Rather, viewing the

3

facts in a light most favorable to her, she was sexually assaulted by her co-worker,

4

Herbt Cruz, whom she had been having a consensual sexual relationship with for

5

four-to-six months2. These assaults all occurred outside the workplace, and after

6

Cruz had been suspended from work. Fuller testified that she had no conflicts with

7

her direct supervisor, Orestes Alambra. (Fuller Depo. p. 46). Further, she could not

8

identify any specific individual she had a conflict with at work, either before or after

9

she was assaulted by Cruz. (Id. at p. 47). When she was assaulted on August 22,

10

2011, Cruz was already suspended from work. Unlike in Little, Fuller’s employer

11

took steps to prevent contact between Fuller and Cruz. The IDOC notified

12

employees that Cruz was not to be on the premises. The IDOC conducted an

13

investigation into Cruz’ conduct and recommended his termination. Cruz resigned in

14

lieu of termination. Unlike in Little, no adverse employment action was taken

15

against Fuller. Fuller was not demoted, her salary was not decreased, and she was

16

not terminated.

17

Plaintiff has not produced evidence to establish that the alleged sexually

18

assaultive conduct by Cruz created a hostile work environment. Fuller was in a long-

19

standing romantic relationship with Cruz. The alleged assaultive conduct occurred

20

between August 22, 2011 and early-September 2011. The alleged assaults occurred

21
22

2

For the purposes of summary judgment, the court views the facts in a light most

23

favorable to Fuller and accepts that a jury could find the alleged sexual assaults occurred. The

24

parties informed the court at oral argument that no criminal charges were ever brought against

25

Cruz for these alleged assaults, and Cruz’s affidavit states the same. The court makes no finding

26

that the assaults did occur, but viewing the facts in a light most favorable to Fuller, finds that a

27

jury could so conclude.

28

ORDER - 8

1

outside of the workplace and after Cruz was suspended from the workplace. To

2

succeed on a hostile work environment claim, the “plaintiff must show that the work

3

environment was so pervaded by discrimination that the terms and conditions of

4

employment were altered.” Vance v. Ball State University, 133 S.Ct. 2434, 2441

5

(2013). Plaintiff has not established that her employer, IDOC, is liable. “[G]enerally

6

an employer is not liable for the harassment or other unlawful conduct perpetrated by

7

a non-supervisory employee after work hours and away from a workplace setting.”

8

Duggins v. Steak’n Shake, Inc., 3 Fed.Appx. 302 (6th Cir. 2001) citing Candelore v.

9

Clark County, 975 F.2d 588, 590 (9th Cir. 1992).

10

Plaintiff has also not demonstrated that IDOC failed to take appropriate

11

remedial action. Cruz was suspended. Other employees were advised he was not to

12

be on the premises. He did not return to the premises or have further contact with

13

Fuller. Termination was recommended, and he resigned in lieu of termination. The

14

Seventh Circuit has stated that when a sexual assault has occurred, “the emphasis of

15

Title VII in this context is not on redress but on the prevention of future harm.”

16

Lapka v. Chertoff, 517 F.3d 974, 984 (7th Cir. 2008). Stated otherwise, “the

17

emphasis is on the prevention of future harassment” Id. The court further stated: “we

18

have noted that taking effective steps to physically separate employees and limit

19

contact between them can make it “distinctly improbable” that there will be further

20

harassment.” Id. at 985. In Lapka, the court found the employer had taken effective

21

steps to separate the co-workers, and in fact the alleged harasser never entered

22

Lapka’s workplace again. However, Lapka complained that more could have been

23

done - - Federal Protective Services should have been notified and the employer

24

should have specifically notified the harasser of the protective order. The Seventh

25

Circuit stated: “it is not availing to say that the employer should have taken even

26

more aggressive measures. The measures taken by employers often will not meet the

27

plaintiff’s expectations.” Id. at 985. The court concluded the employer “took

28

ORDER - 9

1
2

reasonable steps in this case; that is enough to justify denial of Lapka’s claims.” Id.
Plaintiff's hostile work environment claim fails for several reasons. Plaintiff

3

has not established severe or pervasive conduct in the workplace. Plaintiff

4

complains of no sexually harassing or assaultive conduct that occurred in the

5

workplace. Rather, Plaintiff complains that Cruz, a suspended employee, whom she

6

had been voluntarily seeing outside of the workplace, and whom Fuller had been

7

engaged in a several month consensual sexual relationship with, assaulted her.

8

Fuller’s only complaint concerning the work environment is that some of her co-

9

workers were not talkative after her leave of absence because they did not understand

10

the circumstances of it. Title VII is not a civility code for the workplace, and the

11

Ninth Circuit has repeatedly held that “ostracism by coworkers does not constitute an

12

adverse employment action, at least where it does not have an effect on the

13

employee’s ability to perform her job.”Hellman v. Weisberg, 360 Fed.Appx. 776 (9th

14

Cir. 2009) citing Brooks v. City of San Mateo, 229 F.3d 917, 929 (9th Cir. 2000).

15

The IDOC took effective remedial action against Cruz. Cruz was suspended and

16

IDOC notified co-workers and supervisors that Cruz was not to be on the premises.

17

He did not return to the premises. Any future harassment in the workplace was

18

prevented, and Cruz was forced to resign. Defendants’ Motion for Summary

19

Judgment on the hostile work environment claim is GRANTED.

20

1. Constructive Discharge - Plaintiff alleges she was constructively

21

discharged from her employment because she no longer felt safe at work. Plaintiff

22

left her employment with IDOC on November 16, 2011. “Constructive discharge

23

occurs when, looking at the totality of circumstances, a reasonable person would

24

have felt that he was forced to quit because of intolerable and discriminatory

25

working conditions.” Watson v. Nationwide, Ins. Co., 823 F.2d 360, 361 (9th Cir.

26

1987). The test is an objective standard. The plaintiff “need not show that the

27

employer subjectively intended to force the employee to resign.” Id. The Ninth

28

ORDER - 10

1

Circuit Court of Appeals has further stated that “a plaintiff alleging constructive

2

discharge must show some aggravating factors, such as a continuous pattern of

3

discriminatory conduct.” Id. The determination of whether conditions were so

4

intolerable and discriminatory as to justify a reasonable employee’s decision to

5

resign is normally, but not always, a question of fact for the jury. Thomas v.

6

Douglas, 877 F.2d 1428, 1434 (9th Cir. 1989). In Thomas, the court found

7

“insufficient evidence...from which a rational trier of fact could conclude” that his

8

working conditions were such that a reasonable person would have been compelled

9

to quit. Id. The Ninth Circuit further observed: “It was not unreasonable for

10

[plaintiff] to feel uncomfortable in his situation. His subjective personal discomfort,

11

however, was most likely not the product of any action by [defendants] but, rather,

12

the product of human nature.” Id.

13

As stated, supra, after reporting the non-work assaults by Cruz, and taking

14

leave in early-September, Fuller returned to work on October 19, 2011. On

15

November 10, 2011, Fuller met with her supervisors Henry Atencio, Kim Harvey,

16

and Roberta Hartz to discuss the issues of Fuller taking additional leave, and again

17

notifying employees that Cruz was not to be on premises. Shortly after Cruz was

18

suspended on August 15, 2011, Kim Harvey had called a staff meeting and “advised

19

everyone that Cruz had been placed on administrative leave because of an ongoing

20

investigation...the details of which were confidential.” (ECF No. 44-9, Harvey Depo.

21

p. 100). Harvey additionally informed employees that Cruz “was not authorized to

22

be on the premises that if he was seen, that a supervisor was to be contacted

23

immediately.” (Id.). At the November 10, 2011, meeting, Fuller stated that her

24

supervisors had been supportive: “I believe the supervisors have been very

25

supportive, absolutely.” (ECF No. 47-26, p. 22). Just six days later, on November

26

16, 2011, Kim Harvey sent out a notice to all District 3 employees informing them

27

that Cruz was “on leave pending an investigation” and that he is “not allowed in the

28

ORDER - 11

1

D-3 offices” and that if anyone sees him, they are to notify a supervisor. (ECF No.

2

47-40). Fuller submitted a “resignation memo” later that same day, after receiving

3

the e-mail notice.

4

Plaintiff was not constructively discharged. A reasonable person would not

5

have felt that she was forced to quit because of intolerable and discriminatory

6

working conditions. IDOC provided notice to all employees that Cruz was not to be

7

on site. Plaintiff admits that Cruz surrendered his service weapon at the time of

8

suspension and had not returned to the premises after being suspended on August 15,

9

2011. (Resp. to St. Of Facts, ECF No. 60, ¶ 5 & 6). Plaintiff describes a work

10

environment where her supervisors were supportive and where she had no specific

11

conflicts with any co-workers–other than Cruz- who was already suspended.

12

Plaintiff has not shown a pattern of discriminatory conduct, nor a workplace

13

situation in which a reasonable person would have felt that she was forced to quit

14

because of intolerable and discriminatory working conditions created by the

15

Defendants. Plaintiff has not met the “high bar” necessary to establish that she was

16

constructively discharged. See Poland v. Chertoff, 494 F.3d 1174, 1185 (9th Cir.

17

2007)(“We set the bar high for a claim of constructive discharge because federal

18

antidiscrimination policies are better served when the employee and employer attack

19

discrimination within their existing employment relationship, rather than when the

20

employee walks away and then later litigates whether his employment situation was

21

intolerable.”). Defendants’ Motion for Summary Judgment on the constructive

22

discharge claim is GRANTED.

23

B. Count II - Gender Discrimination

24

Plaintiff’s gender discrimination claim pertains to what she sees as unequal

25

treatment between her and Cruz in the provision of administrative leave. She

26

contends that he was given paid administrative leave while under investigation, and

27

that she was “initially promised” paid administrative leave, but then paid

28

ORDER - 12

1
2

administrative leave was denied. (Complaint ¶ 55-63).
A disparate treatment claim under Title VII is analyzed under the burden-

3

shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

4

Hawn v. Executive Jet Management, 615 F.3d 1151, 1155 (9th Cir. 2010). Under

5

McDonnell Douglas, a plaintiff must first establish a prima facie case of

6

discrimination. The burden then shifts to the employer to articulate a legitimate,

7

nondiscriminatory reason for the challenged action, and if the defendant meets that

8

burden, the plaintiff must then raise a triable issue of material fact as to whether the

9

defendant’s proffered reasons are pretextual. To establish a prima facie case,

10

Plaintiff must show: 1) membership in a protected class; 2) qualified for and

11

performing satisfactorily in her employment; 3) that she experienced an adverse

12

employment action; 4) that similarly situated individuals outside the protected class

13

were treated more favorably, or other circumstances surrounding the adverse

14

employment action give rise to an inference of discrimination. Id. at 1156. A

15

plaintiff is not required to rely on comparison to similarly situated individuals, but

16

may rely on “other circumstances surrounding the adverse employment action that

17

give rise to an inference of discrimination.” Id.

18

Plaintiff has failed to make a prima facie showing. Plaintiff is a member of a

19

protected class. The court also assumes the second element is met, that Plaintiff was

20

performing satisfactorily, although Plaintiff did admit to violating workplace policy

21

by not disclosing her relationship with Cruz. As to the third element, Plaintiff did

22

not suffer an adverse employment action. As set forth supra, she was not

23

constructively discharged. Plaintiff was not demoted, nor were her pay or benefits

24

reduced. Plaintiff was not legally entitled to paid administrative leave, and not

25

providing her with such was not an adverse action. Even if the court assumes that

26

not providing Fuller with paid administrative leave was an adverse action, Fuller has

27
28

ORDER - 13

1

not provided evidence giving rise to an inference of discrimination.3 At oral

2

argument, Plaintiff’s counsel argued that the inference was established because

3

different IDOC supervisors gave different reasons as to why the administrative leave

4

was not provided, and because Plaintiff claims she was initially told she would

5

qualify, but then was told she did not. The court disagrees. No evidence was

6

provided giving rise to an inference of discrimination. The decision whether to put

7

an employee on paid administrative leave was discretionary, and no evidence has

8

been provided that such discretion was exercised in a discriminatory manner.

9

Even if the court assumes Plaintiff has made a prima facie showing, or that such

10

showing was made merely because Cruz and Fuller were co-workers in a sexual

11

relationship, and Cruz received paid administrative leave and Fuller did not,

12

Defendants offered legitimate non-discriminatory reasons for the decision. Fuller

13

has not created a triable issue that such reasons were pretextual.

14

The IDOC administrative leave policy provided in pertinent part:

15

Paid Administrative Leave

16

The Director of the IDOC, in consultation with the director of HRS and the

17

applicable division chief, may grant paid administrative leave under the following

18

conditions:

19

1) When the employee is being investigated;

20

2) When the employee is in the due process procedure of a disciplinary action;

21

3) [n/a]

22

4) When a manager (or designee) deems it necessary due to an unusual

23
24

3

The Ninth Circuit has found that placing an employee on administrative leave can

25

constitute an adverse employment action. See Dahlia v. Rodriguez, 735 F.3d 1060, 1078 (9th Cir.

26

2013)(“We conclude that, under some circumstances, placement on administrative leave can

27

constitute adverse employment action.”).

28

ORDER - 14

1

situation, emergency, or critical incident that could jeopardize IDOC

2

operations, the safety of others, or could create a liability situation for the

3

IDOC; or

4

5) [n/a]

5

(emphasis added) (P’s Ex. QQ at ECF No. 47-29).

6

Cruz was put on paid administrative leave because he was being investigated

7

with termination contemplated–implicating subsections 1 and 2 of the Policy. The

8

investigation was initiated after IDOC found out that Cruz was under investigation

9

by the Canyon County Sheriff’s office for an allegation of assault made by another

10

woman, J.W.. He was not suspended on August 15, 2011, for having an undisclosed

11

relationship with his co-worker, Fuller. Fuller argues she should have received leave

12

under subsection 4, "unusual situation". However, any such leave was entirely

13

discretionary - - it “may” be granted, if deemed necessary. Plaintiff was allowed to

14

take vacation and sick time and expended approximately 4 weeks of such time. She

15

was also given intermittent leave under the Family Medical Leave Act.

16

Brent Reinke, the Director of IDOC, has averred that where an employee is

17

being investigated and suspended concerning possible disciplinary action, an

18

“employee is not allowed to be at work,” and therefore “continue[s] to receive all

19

pay and benefits during the time they are not allowed to be at work.” (ECF No. 39-

20

4). He further averred that he had received instruction, prior to September 2011,

21

from the State Board of Examiners to be restrictive in exercising his discretion to put

22

employees on paid administrative leave.

23

The record suggests that there may have been some miscommunication in

24

September, 2011 regarding Fuller’s eligibility for paid administrative leave. Plaintiff

25

contends she was initially told by a supervisor that he “did not believe that would be

26

a problem.” (P’s St. of Facts, ECF No. 44, ¶ 66). Atencio shortly thereafter

27

communicated to Harvey that Fuller would not receive paid administrative leave

28

ORDER - 15

1

“because she does not have any personnel action pending against her.” (Id. at ¶ 67).

2

This was communicated to Fuller no later than September 19, 2011. (Id. at ¶ 70); see

3

also Harvey and Atencio e-mails at ECF No. 47-19 & 47-23). Assuming that Fuller

4

was told she “may” or “might” qualify for paid leave, or that a supervisor “believed”

5

she qualified, such statements are not inconsistent with a discretionary policy and

6

such statements do not evidence a discriminatory intent or motive. The record also

7

reflects that her supervisors continued to evaluate various leave options, and

8

provided Fuller with unpaid leave options, such as FMLA, up through November 16,

9

2011, when Fuller resigned. The record does not support a conclusion that there was

10

any discriminatory intent or motive behind not providing Fuller with paid

11

administrative leave. Employers are not legally required to always provide paid

12

administrative leave to an employee who makes allegations of misconduct against

13

another employee.

14

Plaintiff has not provided evidence to support her claim that the decision to

15

provide Cruz paid administrative leave, and not to provide her paid administrative

16

leave was impermissibly based on gender. Defendants’ Motion for Summary

17

Judgment on Count II is GRANTED.

18

C. Count III - Plaintiff’s Section 1983 claims against Atencio and Reinke

19

In this Count, Plaintiff repeats the same factual allegations that underlie Counts

20

I and II and argues that Defendants’ conduct amounts to a violation of the Equal

21

Protection Clause. Defendants argue that in order to establish a violation of equal

22

protection, a plaintiff must prove discriminatory intent or motive. Defendants argue

23

that the discretionary decision of Atencio and Reinke to deny Fuller paid

24

administrative leave does not implicate the Equal Protection Clause. Defendants

25

argue that Fuller was treated the same as other similarly situated employees. At her

26

deposition, Fuller testified that she could not identify anyone that had requested

27

voluntary paid administrative leave and had the request granted. (Fuller Depo. p.

28

ORDER - 16

1

180).

2

For the same reasons discussed, supra, in regard to Plaintiff’s Title VII claims,

3

this § 1983 claim also fails. Although the analysis under Title VII is not identical to

4

the analysis of an Equal Protection claim under Section 1983, “because both

5

disparate treatment and § 1983 claims require a showing of intentional

6

discrimination, it is unsurprising that summary judgment decisions with regard to §

7

1983 claims are remarkably similar to their Title VII counterparts.” Keyser v.

8

Sacramento City School Dist., 265 F.3d 741, 754 (9th Cir. 2001). Defendants’

9

Motion for Summary Judgment on Count III is GRANTED.

10

D. Count VI - Infliction of Emotional Distress against Atencio

11

The Complaint, in Count VI, alleges “Intentional and/or Negligent Infliction of

12

Emotional Distress” (Complaint ¶ 91-96). These are distinct torts and should not be

13

combined in one count. Plaintiff alleges that Atencio “revoked a promise,”

14

“refused” to act, and “contested” her unemployment benefits–acts which appear to

15

be intentional. The crux of the allegation is that after the reported assaults by Cruz,

16

Atencio told Plaintiff she could take “as much paid leave as she needed,” but then

17

revoked this promise. (Id. at ¶ 92). Plaintiff appears to claim she was entitled to

18

indefinite paid leave because she made an allegation of sexual assault against a co-

19

worker, one she had been sexually involved with for several months. Cruz was

20

suspended from the workplace, so Fuller was not required to return to work and

21

work with him. IDOC provided Fuller leave from work. IDOC allowed Fuller to

22

use vacation and sick leave to be absent from work from early-September to mid-

23

October, and then offered her intermittent Family Medical Leave Act (“FMLA”)

24

leave.

25

In Defendant’s earlier Motion for Partial Summary Judgment (ECF No. 6),

26

Defendants had claimed that they were entitled to summary judgment on this Count

27

because Plaintiff did not file a timely notice of claim under Idaho Code § 9-605.

28

ORDER - 17

1

This Count VI claim is asserted against only Defendant Atencio in his individual

2

capacity. The court set forth in its prior Order (ECF No. 19) a timeline of the

3

relevant events:

4

- March/April 2011 Plaintiff began a relationship with Cruz;

5

- August 15, 2011 Cruz was placed on administrative leave;

6

- August 30, 2011, Plaintiff was allegedly assaulted by Cruz;

7

- September 15, 2011, Plaintiff was informed orally that she would not receive

8
9
10

paid administrative leave;
- September 19, 2011, Plaintiff received written notification from Atencio that
she would not receive paid administrative leave;

11

- October 19, 2011, Plaintiff returned to work;

12

- November 7, 2011, Plaintiff challenged the denial of leave in writing;

13

- November 10, 2011, Plaintiff met with IDOC administrators including

14

Atencio and requested reinstatement of sick time and vacation leave that she had

15

used;

16

- November 17, 2011, Plaintiff ceased her employment; and

17

- May 14, 2012, Plaintiff filed a Notice of Claim with the Idaho Secretary of

18
19

State’s Office.
These dates are still essentially accurate, but the evidence presented with the

20

current summary judgment motions has provided more information. For example,

21

Fuller alleges she was first assaulted by Cruz on August 22, 2011. Also, Fuller’s

22

resignation was submitted the evening of November 16, 2011, not November 17,

23

2011. Idaho Code § 6-905 provides that all claims against the state or against an

24

employee of the state for any act or omission of the employee within the course and

25

scope of his employment shall be presented to the Secretary of State within 180 days

26

“from the date the claim arose or reasonably should have been discovered, whichever

27

is later.” Plaintiff’s Notice of Claim was submitted to the Secretary of State 180-

28

ORDER - 18

1

days after her last day of employment. Pursuant to Idaho Code 6-905 and 6-908, no

2

claim shall be allowed that has not been timely presented and the “notice of claim

3

requirement is a mandatory condition precedent to bringing suit against the state or

4

its employee.” Overman v. Klein, 103 Idaho 795, 797 (1982).

5

Fuller had argued in the prior briefing that the infliction of emotional distress

6

was a continuing tort that continued at least until November 16, 2011, the day she

7

claims she was constructively discharged due to what she alleged was an unsafe

8

working environment. She therefore asserted her claim is timely. Although

9

compliance with the ITCA’s notice requirements is mandatory and failure to comply

10

“is fatal to the claim, no matter how legitimate,” Idaho courts have extended the time

11

in cases of continuing torts. See Cobbley v. City of Challis, 138 Idaho 154 (2002)

12

citing favorably to Farber v. State, 102 Idaho 398 (1981)(in suit alleging damages

13

from negligent planning, construction, and design, ITCA notice period began when

14

the project was complete rather than when the project or damage began). Thus, in

15

cases of continuing torts, the Idaho courts have held that the 180-day time period is

16

tolled until the tortious behavior has ceased. However, the Idaho Supreme Court

17

also stated in Cobbley that, “upon filing their notice of claim, the [Plaintiffs] could

18

seek damages that resulted during the 180-day period preceding their notice.” Id. at

19

159.

20

In this case, the only acts which occurred within 180-days of the Notice of

21

Claim were the November 16, 2011 e-mail from Mr. Harvey informing employees

22

that Cruz was “on leave pending an investigation” and “not allowed in D-3 offices”;

23

and Plaintiff’s alleged constructive discharge on November 16, 2011. (Complaint, ¶

24

39, 44). Plaintiff also complains of IDOC contesting her application for

25

unemployment benefits (Complaint, ¶ 93), which would have occurred during the

26

180-day period. However, Plaintiff has previously admitted that her claim

27

concerning unemployment benefits was not included in her tort claim notice. See

28

ORDER - 19

1

Plaintiff’s Response to Defendant’s Motion for Partial Summary Judgment (ECF No.

2

16, p. 12)(“It is true that Ms. Fuller did not state in her notice of claim that she was

3

injured because Defendants contested her request for unemployment benefits.”).

4

Defendants have renewed the argument that the claim is untimely. (ECF No.

5

39-1, p. 19). Defendants also argue that Atencio’s conduct was not extreme and

6

outrageous. Defendants argue that Fuller was asked at deposition to describe the

7

actions of Atencio that were wrongful and she stated: “denying paid administrative

8

leave, refusing to disclose the protection order, and denying me unemployment

9

benefits.” (Fuller depo, p. 208).

10

Under Idaho law, intentional infliction of emotional distress requires a plaintiff

11

to show: 1) defendant’s conduct was intentional or reckless; 2) the conduct was

12

extreme and outrageous; 3) there was a causal connection between the wrongful

13

conduct and plaintiff’s emotional distress; and 4) the emotional distress was severe.

14

Spence v. Howell, 126 Idaho 763, 774 (1995). “It is for the court to determine, in the

15

first instance, whether the defendant’s conduct may reasonably be regarded as so

16

extreme and outrageous to permit recovery.” Edmondson v. Shearer Lumber

17

Products, 139 Idaho 172, 180 (2003) citing Restatement (Second) of Torts § 46.

18

“Although a plaintiff may in fact have suffered extreme emotional distress...no

19

damages are awarded in the absence of extreme and outrageous conduct by a

20

defendant.” Id. at 179. The Idaho Supreme Court has said that “very extreme

21

conduct” is required before awarding damages for intentional infliction of emotional

22

distress. Id. The conduct must go “beyond all possible bounds of decency that would

23

cause an average member of the community to believe it was outrageous.” Id. at 180.

24

None of Atencio’s alleged wrongful conduct could be found to have been so

25

extreme and outrageous as to go beyond all bounds of decency. Even if the claim is

26

timely, Defendants are entitled to summary judgment on the Intentional Infliction of

27

Emotional Distress claim.

28

ORDER - 20

1

Negligent Infliction of Emotional Distress requires a showing of: 1) a legally

2

recognized duty, 2) a breach of that duty, 3) a causal connection between the

3

defendant’s conduct and the breach, and 4) actual loss or damage. Bollinger v. Fall

4

River Rural Elec. Co., 152 Idaho 632, 642 (2012). A plaintiff must demonstrate

5

“physical manifestation of the alleged emotional injury.” Id. An employer does not

6

breach a legal duty to an at-will employee simply by terminating her, even if such

7

termination is without cause. Id.

8

As this court has stated, supra, the only acts which occurred within 180-days of

9

the Notice of Claim were the November 16, 2011 e-mail from Mr. Harvey informing

10

employees that Cruz was “on leave pending an investigation” and “not allowed in D-

11

3 offices”; and Plaintiff’s alleged constructive discharge on November 16, 2011

12

when she resigned. The court has determined, as a matter of law, that Fuller was not

13

constructively discharged. The November 16, 2011 e-mail does not support a claim

14

of negligent infliction of emotional distress, and certainly the e-mail sent by Mr.

15

Harvey does not support such claim against Mr. Atencio.

16

Defendants also argued that Atencio had immunity from the tort claim Count VI

17

by virtue of Idaho Code § 6-904, which provides in pertinent part: “A governmental

18

entity and its employees while acting within the course and scope of their

19

employment and without malice or criminal intent shall not be liable for any

20

claim...based upon the exercise or performance or the failure to exercise or perform a

21

discretionary function or duty on the part of a governmental entity or employee

22

thereof, whether or not the discretion be abused.” I.C. § 6-904(1). It appears that this

23

section could foreclose an emotional distress claim based on Fuller’s claim that

24

IDOC should have exercised its discretion to provide her paid administrative leave.

25

There has been no evidence produced of “malice or criminal intent” on the part of

26
27
28

ORDER - 21

1

Atencio.4 However, Plaintiff argues that Atencio’s decisions were routine

2

operational decisions not entitled to immunity. Defendants have presented valid

3

argument that Count VI is time-barred and that I.C. § 6-904 provides immunity.

4

However, the court has, for the purposes of these Motions, resolved those close

5

questions in favor of Plaintiff, and proceeded to the merits of the claims. The court

6

has addressed the legal sufficiency of this claim and Defendants’ Motion for

7

Summary Judgment on Count VI is GRANTED.

8

E. Plaintiff’s Motion for Partial Summary Judgment

9

For the reasons stated, supra, in granting Defendant’s Motion for Summary

10

Judgment on Counts I and II, Plaintiff’s Motion is DENIED.

11

F. Motions to Strike

12

Defendants have filed a Motion to Strike (ECF No. 56) portions of the

13

Affidavits of Aleshea Boals, Kim Harvey, and Patty Booth. Defendants contend the

14

affidavits contain inadmissible hearsay and statements that are speculative,

15

conclusory, and/or about which the affiant lacks personal knowledge. The court has

16

reviewed the affidavits and given them their appropriate evidentiary weight, if any.

17

The Affidavits need not be stricken from the record and the Motion is DENIED.

18

Plaintiff has filed a Motion to Strike the affidavits of Catherine Gates and Mark

19

Kubinski. (ECF No. 57). As to Ms. Gates, Plaintiff argues that she was not disclosed

20

on Defendants’ witness list and therefore cannot offer an affidavit. However,

21

Plaintiff admits that she identified Ms. Gates in Interrogatory responses as someone

22

Mr. Cruz allegedly harassed. Defendants point out that Ms. Gates was listed on

23

Plaintiff’s initial witness list, but removed when Plaintiff filed an amended list. Mr.

24
25

4

Idaho Code 6-903(5) provides “a rebuttable presumption that any act or omission of an

26

employee within the time and at the place of his employment is within the course and scope of

27

his employment and without malice or criminal intent.”

28

ORDER - 22

1

Kubinski is an attorney in the Idaho Attorney General’s Office, and Plaintiff

2

complains he was not earlier disclosed. Mr. Kubinski’s affidavit offers no

3

substantive testimony about the facts at issue but merely states that the IDOC has

4

adopted certain workplace policies. There is no prejudice to Plaintiff. In fact

5

Plaintiff states, “the subject matter of Mr. Kubinski’s affidavit, Defendant’s relevant

6

policies, is not a newly discovered issue.” (ECF No. 57-1, p. 4). Plaintiff’s Motion

7

to Strike is DENIED.

8

Plaintiff filed a Second Motion to Strike (ECF No. 71) the affidavit of Ms.

9

Dickinson (ECF No. 55-4) that Defendants submitted with their summary judgment

10

response. Plaintiff states that “Ms. Dickinson presents testimony including

11

purportedly sending information to Ms. Fuller regarding disability benefits.” Ms.

12

Dickinson’s testimony concerning the mailing of a disability claim form to Fuller on

13

October 12, 2011 is not material to the facts at issue and has not affected the court’s

14

judgment herein. The Motion to Strike is DENIED.

15

IT IS HEREBY ORDERED:

16

1. Defendants’ Motion for Summary Judgment (ECF No. 39) is GRANTED.

17

2. Plaintiff’s Motion for Partial Summary Judgment (ECF No. 40) is DENIED.

18

3. Plaintiff’s Motions to Strike (ECF No. 57 & 71) are DENIED.

19

4. Defendant’s Motion to Strike (ECF No. 56) is DENIED.

20

5. The Clerk is directed to enter Judgment in favor of Defendants dismissing the

21
22
23
24

Complaint and the claims therein with prejudice.
IT IS SO ORDERED. The Clerk shall file this Order, enter Judgment in favor
of Defendants as directed herein, furnish copies to counsel, and close this file.
Dated this 2nd day of December, 2014.
s/ Justin L. Quackenbush
JUSTIN L. QUACKENBUSH
SENIOR UNITED STATES DISTRICT JUDGE

25
26
27
28

ORDER - 23