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).

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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

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