Limary v. United Parcel Service, Inc.

Filing 28

MEMORANDUM DECISION AND ORDER ORDER - NOW THEREFORE IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment (Dkt. 17 ) is GRANTED IN PART and DENIED IN PART. The Motion is granted with respect to Ms. Limarys gender discrimination claims. Th e Motion is denied with respect to Ms. Limarys retaliation claims as explained more fully herein. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

CRYSTAL LIMARY, an individual
Case No. 1:15-CV-00394-EJL

Plaintiff,
v.
UNITED PARCEL SERVICE, INC., a
Delaware corporation, and JOHN/JANE
DOES I-X, whose true identities are
unknown,

MEMORANDUM DECISION AND
ORDER

Defendants.
Before the Court in the above entitled matter is the Defendants’ Motion for
Summary Judgment. (Dkt. 17.) The parties have filed responsive briefing and the Motion
is ripe for the Court’s consideration. Having fully reviewed the record herein, the Court
finds that the facts and legal arguments are adequately presented in the briefs and record.
Accordingly, in the interest of avoiding further delay, and because the Court conclusively
finds that the decisional process would not be significantly aided by oral argument, the
Motion shall be decided on the record before this Court without oral argument.
FACTUAL BACKGROUND
This is a gender discrimination and retaliation suit brought under Title VII of the
Civil Rights Act and the Idaho Human Rights Act. On August 28, 2007, Plaintiff, Crystal
Limary, began working as a temporary employee for Defendant United Parcel Service, Inc.
(“UPS”). (Dkt. 21, ¶ 3.) She worked as a part-time Customer Counter Associate on the day
shift at the Boise UPS Center. Id. This position became permanent in March 2008. Id.
MEMORANDUM DECISION AND ORDER- 1

In 2009, Ms. Limary’s daughter received a combination of diagnoses including a
rare genetic disorder that makes her prone to extreme behavioral incidences. (Dkt. 21, ¶ 4.)
That same year, Ms. Limary was relocated from the Boise UPS Center to the Nampa UPS
Center. Id. When she was transferred from Boise to Nampa, Ms. Limary communicated to
UPS her need to remain on day shift due to difficulties finding suitable childcare for her
disabled daughter. Id.
At first, while in Nampa, Ms. Limary worked under the supervision of Blaine
Hemmert. (Dkt. 21, ¶ 5.) Ms. Limary enjoyed a solid working relationship with Mr.
Hemmert and, in 2010, she was promoted to Part-Time Package Center Supervisor
(PTPCS). Id. At the time she was promoted, Mr. Limary again communicated to UPS her
need for daytime hours. Id.
As a PTPCS, Ms. Limary’s role was to supervise drivers and package handlers to
ensure all assigned duties were accomplished safely and timely. (Dkt. 17-1.) According to
UPS, Ms. Limary was a salaried, non-union, at-will employee as a member of UPS
management. (Dkt. 17-1.)
In 2011, Mr. Hemmert retired and was replaced by Kevin Tolbert who worked as
the Business Manager of the UPS Nampa Center. (Dkt. 21, ¶ 6.) Ms. Limary immediately
observed that Mr. Tolbert favored male employees and treated female employees poorly.
Id. For example, Ms. Limary received an unfavorable performance evaluation for the first
time after Mr. Tolbert became her supervisor and Mr. Tolbert referred to females in the
workplace as old and needing to retire, stupid bitches, as lacking in intelligence, and old
hags. Id.
MEMORANDUM DECISION AND ORDER- 2

On January 4, 2013, Ms. Limary emailed Evan Johnson, Idaho Human Resources
Manager, a letter requesting a hardship transfer from the Nampa UPS Center to the Boise
UPS Center. (Dkt. 21, Ex. 2.) Ms. Limary sought to return to the Boise Center due to her
daughter’s medical needs, vehicle maintenance costs, and fuel costs. Id.
Despite this transfer request and Ms. Limary’s previous statements concerning her
need to remain on the day shift, in the mid to latter part of January 2013, Ms. Limary was
informed she would be reassigned to the night shift at the Nampa Center. (Dkt. 20-1, ¶ 11;
Dkt. 17-14. Limary Depo. at 147.) UPS explains that Ms. Limary was asked to take over
the night shift because one of the PTCPSs retired and Ms. Limary had the least seniority
of the three remaining PTPCSs. (Dkt. 17-2, ¶ 2.)
In February 2013, Ms. Limary “reported Mr. Tolbert for violating [UPS’s] Code of
Business Conduct.” (Dkt. 20.) Specifically, Ms. Limary reported to Mr. Johnson and
Anthony Nelson, the Area Human Resources Manager, that Mr. Tolbert used derogatory
and inappropriate terms, such as “old hag” and “stupid bitch” in reference to her female
coworkers. (Dkt. 21, ¶ 7.) Ms. Limary also explained to Mr. Johnson and Mr. Nelson that
she believed Mr. Tolbert treated female employees less favorably than male employees and
that his statements were “consistent with the way in which [he] had behaved towards
women since he replaced Mr. Hemmert.” Id.
After making the report against Mr. Tolbert, on or around March 1, 2013, Ms.
Limary’s hardship transfer request was denied. (Dkt. 21, ¶ 10.) Ms. Limary argues that
“she was clearly eligible for the transfer per UPS policy due to [her daughter’s] severe
disability.” (Dkt. 20.) Mr. Nelson told Ms. Limary her request was denied “due to the fact
MEMORANDUM DECISION AND ORDER- 3

that her Quality Performance (“QPR”) scores were below fully acceptable,” which Ms.
Limary contests. (Dkt. 20.)
Ms. Limary further alleges that, after making the report against Mr. Tolbert, she was
constantly harassed over her wardrobe, even though her wardrobe had not changed and she
was compliant with the UPS dress code. (Dkt. 21, ¶ 15.) In addition, in June 2013, Ms.
Limary expressed an interest in a driver position and did not hear back from UPS and, in
August 2013, Ms. Limary contends she was harassed with phone calls when she went on
leave for three days to tend to her son who had been admitted to the hospital. (Dkt. 21,
¶ 17.)
On September 11, 2013, Ms. Limary filed a Charge of Discrimination against UPS
with the Idaho Human Rights Commission (IHRC) alleging workplace discrimination
based on her sex and her daughter’s genetic disability and that she suffered retaliation after
reporting Mr. Tolbert’s conduct to HR. (Dkt. 21, ¶ 17-19.) While the Charge was pending,
Ms. Limary states the harassment continued and Mr. Tolbert instructed her co-workers to
blame her for any mistakes made in her section and “dig up as much dirt as possible” about
her. (Dkt. 21, ¶ 19-21.) Ms. Limary also claims Mr. Tolbert staged a surveillance camera
to monitor her during her work hours. (Dkt. 21, ¶ 22.) In addition, Ms. Limary was passed
over twice when opportunities became available on the day shift. (Dkt. 21, ¶ 23.)
Ms. Limary continued to work for UPS until November 20, 2014 when she filed a
Family and Medical Leave Act (“FMLA”) request for continuous leave through February
20, 2015. (Dkt. 17-1.) UPS granted her leave request. (Dkt. 17-1.)

MEMORANDUM DECISION AND ORDER- 4

In January 2015, Mr. Tolbert was rotated to the Twin Falls Center and his position
with the Nampa Center was filled by Brad Shreeve. (Dkt. 17-9, Tolbert Affidavit ¶ 11.)
Nevertheless, even with Mr. Tolbert out of the office, Ms. Limary did not return to work
on February 20, 2015. (Dkt. 17-1.) In addition, Ms. Limary did not respond to UPS
notifications that additional documentation was needed for her unexcused absences. Id.
On April 2, 2015, Ms. Limary met with Mr. Shreeve at the Nampa Center and
participated in a telephone conference with Tina Lahaszow, then Area Human Resources
Manager. (Dkt. 17-1.) Ms. Lahaszow explained that in order for Ms. Limary to return to
work she needed to provide UPS with documentation from her healthcare provider so UPS
could retroactively modify her unexcused leave from February 20, 2015 to April 2, 2015.
(Dkt. 17-1.)
On April 3, 2015, Ms. Limary’s healthcare provider sent UPS the requested
documentation stating that during Ms. Limary’s absence she was unable to perform
“customer service, organization, [and] supervision,” which were all essential functions of
her position. (Dkt. 17-1; Dkt. 17-14, Ex. 3.) Mr. Shreeve informed Ms. Limary that she
could return to work as soon as UPS received information that released her to perform the
essential functions of her position. (Dkt. 17-1.)
On April 21, 2015, Ms. Limary, through her attorney, sent UPS a letter notifying
them of her resignation. (Dkt. 17-1.)

Ms. Limary contends she was constructively

discharged given the discriminatory and retaliatory conduct she experienced at UPS
beginning in or around February 2013. (Dkt. 21, Ex. 8.)

MEMORANDUM DECISION AND ORDER- 5

On August 10, 2015, after exhausting all administrative remedies, Ms. Limary filed
suit against UPS in the District Court of the Fourth Judicial District. (Dkt. 1-2.) Before
UPS filed an Answer, Ms. Limary filed her First Amended Complaint and Demand for
Jury Trial. (Dkt. 1-2, pp. 31-54.) In this pleading, Ms. Limary brings four claims against
UPS: sex discrimination in violation of Title VII of the Civil Rights Act of 1964 and the
Idaho Human Rights Act and retaliation in violation of Title VII of the Civil Rights Act of
1964 and the Idaho Human Rights Act.
On September 9, 2015, UPS removed the case to this Court pursuant to 28 U.S.C.
§ 1441(a) and (c). (Dkt. 1.) Just over a year later, on September 16, 2016, UPS filed the
instant Motion asking the Court to grant summary judgment in its favor on all of Ms.
Limary’s claims. (Dkt. 17.)
STANDARD OF REVIEW
Motions for summary judgment are governed by Rule 56 of the Federal Rules of
Civil Procedure. Summary judgment is appropriate where a party can show that, as to any
claim or defense, “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Summary judgment is “not a disfavored procedural shortcut,” but is the “principal
tool[] by which factually insufficient claims or defenses [can] be isolated and prevented
from going to trial with the attendant unwarranted consumption of public and private
resources.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). “[T]he mere existence of
some alleged factual dispute between the parties will not defeat an otherwise properly

MEMORANDUM DECISION AND ORDER- 6

supported motion for summary judgment; the requirement is that there be no genuine issue
of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Rule 56 mandates summary judgment if the non-moving party fails to make a
showing sufficient to establish the existence of an element which is essential to the nonmoving party’s case and upon which the non-moving party will bear the burden of proof
at trial. See Celotex, 477 U.S. at 322.
To show the material facts are not in dispute, a party may cite to particular parts of
the record, or show that the materials cited in the record do not establish the presence of a
genuine dispute, or that the adverse party is unable to produce admissible evidence to
support the fact. Fed. R. Civ. P. 56(c)(1)(A)&(B); see T.W. Elec. Serv., Inc. v. Pacific Elec.
Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex, 477 U.S. at 322).
The Court must consider “the cited materials,” but it may also consider “other materials in
the record.” Fed. R. Civ. P. 56(c)(3).
The materials presented by the parties must be “presented in a form that would be
admissible in evidence.” Fed. R. Civ. P. 56(c)(2). The Court does not make credibility
determinations or weigh the evidence put forth by the non-moving party. Anderson, 477
U.S. at 255; Hughes v. United States, 953 F.3d 531, 541 (9th Cir. 1992). The evidence,
including all reasonable inferences which may be drawn therefrom, must be viewed in a
light most favorable to the non-moving party. Anderson, 477 U.S. at 252. Direct testimony
of the non-movant must be believed, but the Court is not required to adopt unreasonable
inferences from circumstantial evidence. See Leslie v. Grupo ICA, 198 F.3d 1153, 1159
(9th Cir. 1999); McLaughlin v. Lui, 849 F.2d 1205, 1208 (9th Cir. 1988).
MEMORANDUM DECISION AND ORDER- 7

DISCUSSION
The federal and state gender discrimination and retaliation claims are addressed
together because claims brought under the Idaho Human Rights Act are analyzed in the
same manner as claims brought under their equivalent federal statutes. See Wallis v. J.R.
Simplot Co., 26 F.3d 885, 888 n.4 (9th Cir. 1994).
Title VII of the Civil Rights Act of 1964 provides that “[i]t shall be an unlawful
employment practice for an employer . . . 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 . . . sex . . ..” 42 U.S.C. § 2000e-2(a)(1). The Idaho Human Rights Act mimics
this language. See IHRA § 67-5909.
Title VII also provides that “[i]t shall be unlawful employment practice for an
employer to discriminate against any of his employees because [she] has opposed any
practice made an unlawful employment practice by this subchapter, or because [she] has
made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Again, the Idaho
Human Rights Act contains nearly identical language. See IHRA § 67-5911.
1.

Improper Defendant Claim
As a preliminary matter, UPS argues that Ms. Limary has sued the wrong party

because United Parcel Service, Inc., an Ohio corporation, was her employer, not United
Parcel Service, Inc., a Delaware corporation. (Dkt. 17-1.) UPS further alleges Ms. Limary

MEMORANDUM DECISION AND ORDER- 8

was put on notice of this distinction in numerous filings but failed to amend her complaint.
(Dkt. 17-1.)
Ms. Limary contends that while UPS did assert this distinction in footnotes to
several pleadings and discovery responses, they have not provided any evidence in support
of the allegation. Ms. Limary further argues the evidence available suggests that she was,
in fact, employed by Defendant UPS and, in any event, the proffered distinction is wholly
irrelevant. (Dkt. 20.)
As a preliminary matter, the Court finds that UPS has not met their burden of proof
to establish the absence of a genuine issue of material fact on this issue. UPS has simply
alleged, without any supporting evidence, that Ms. Limary has sued the wrong party. There
is no evidence in the record to support this contention and, instead, UPS has appeared in
this action and provided an extensive defense to Ms. Limary’s claims. In light of this
conflicting position, the Court finds UPS is not entitled to summary judgment on the issue.
Moreover, Ms. Limary argues there is no functional distinction between UPS Ohio
and UPS Delaware, the named Defendant. Interpreting the facts in favor of the nonmoving
party and solely for the purpose of resolving this Motion, the Court finds there is a genuine
dispute of material fact on this issue.
“‘[U]nder the single employer doctrine, two nominally separate companies may be
so interrelated that they constitute a single employer subject to liability under Title VII.’”
Wells v. Skynet Digital, LLC, 2015 WL 4250855, at *4 (D. Idaho July 13, 2015) (quoting
Izaguirre v. Glenwood Motor Lines, Inc., 2011 WL 5325658, *6 (D. Idaho Nov. 3, 2011)
(internal quotations omitted)). “[A]n employee is deemed to have ‘joint employers’ if each
MEMORANDUM DECISION AND ORDER- 9

entity or employer ‘control[s] the terms and conditions of employment of the employee.’”
Wells, 2015 WL 4250855, at *4 (quoting Collier v. Turner Industries Group, 797
F.Supp.2d 1029, 1044 (D. Idaho 2011)).
“[T]wo entities should be treated as one for purposes of an employment
discrimination claim if they have: ‘(1) interrelated operations, (2) common management,
(3) centralized control of labor relations and (4) common ownership or financial control.’”
Id. (quoting Morgan v. Safeway Stores, Inc., 884 F.2d 1211 (9th Cir. 1989)). The degree
of an alleged employer’s (1) right to control the employee, (2) supervision of the
employee’s work, (3) right to set schedules, (4) power to hire and fire, (5) power to
determine pay rates and method of payment, and (6) power to modify the employment
conditions, are factors the Court can consider in determining if someone can be held liable
as an employer; however, these factors are not mandatory or all-inclusive. Id. (citing EEOC
v. Pacific Maritime Ass’n, 351 F.3d 1270, 1275 (9th Cir. 2003); Real v. Driscoll Strawberry
Ass’n., Inc., 603 F.2d 748, 754 (9th Cir. 1979)).
There are facts in the record that would support a finding that the single employer
doctrine applies here. First, UPS’s Code of Business Conduct provides for the policy and
“standards of conduct for all of UPS.” (Dkt. 17-11, Ex. 1). The Code of Business Conduct
does not distinguish between UPS entities leading to the reasonable inference that it applies
to all UPS entities. Second and similarly, UPS’s Professional Conduct and AntiHarassment Policy does not appear to distinguish between UPS entities. (Dkt. 17-11, Ex.
2.) Furthermore, both policies were produced by UPS Delaware in this litigation to
demonstrate what policies applied to Ms. Limary’s employment with UPS. Third, UPS’s
MEMORANDUM DECISION AND ORDER- 10

Corporate Disclosure Form reflects that UPS Delaware is the parent corporation of UPS
Ohio and owns all of UPS Ohio’s outstanding public stock. (Dkt. 2.)
Together, these facts support a reasonable finding that Defendant, UPS Delaware,
is not improperly named because: (1) it has complete common ownership and financial
control over UPS Ohio and (2) Ms. Limary was subject to common policies that applied to
all UPS employees, including those employed by UPS Ohio. Thus, summary judgment is
denied on Defendant’s argument that Ms. Limary has sued the wrong party.
2.

Retaliation Claim
Retaliation under Title VII and the IHRA follows the McDonnell-Douglas burden-

shifting formula. To establish a prima facie case of retaliation, Ms. Limary must show that
(1) she acted to protect her Title VII rights, (2) an adverse employment action was taken
against her thereafter, and (3) a causal link exists between those two events. Brooks v. City
of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). The burden then shifts to the employer
to present evidence of a legitimate, nonretaliatory reason for the adverse employment
action. Id. If the employer meets that burden, the plaintiff must demonstrate a genuine issue
of fact as to whether the employer’s justification is pretext. Id. An employee can prove
pretext either: (1) “directly, by showing that unlawful discrimination more likely motivated
the employer”; or (2) “indirectly, by showing that the employer’s proffered explanation is
unworthy of credence because it is internally inconsistent or otherwise not believable.”
Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 849 (9th Cir. 2004) (internal
quotation marks omitted) (quoting Lyons v. England, 307 F.3d 1092, 1113 (9th Cir. 2002)).
The degree of proof necessary to establish a prima facie case for Title VII on summary
MEMORANDUM DECISION AND ORDER- 11

judgment is minimal and does not even need to rise to the level of a preponderance of the
evidence. Wallis, 26 F.3d at 888.
A.

Ms. Limary Acted to Protect Her Title VII Rights.

It is undisputed that Ms. Limary engaged in protected activities. A plaintiff alleging
retaliation need not prove that the employment practice at issue was in fact unlawful under
Title VII; it is sufficient that she had a “reasonable belief” that the employment practice
she protested was prohibited under Title VII. See Trent v. Valley Elec. Assoc., Inc., 41 F.3d
524, 526 (9th Cir.1994).
In this case, Ms. Limary took action to protect her alleged Title VII rights in
February 2013 by reporting Mr. Tolbert to HR and again on September 11, 2013 by filing
a Charge of Discrimination with the IHRC. (Dkt. 20-1, ¶ 6, 18.)
B.

Retaliatory Adverse Employment Action

“‘An adverse employment action’ . . . [is] “any adverse treatment that is based on
a retaliatory motive and is reasonably likely to deter the charging party or others from
engaging in protected activity.’” Ray v. Henderson, 217 F.3d 1234, 142-42 (9th Cir. 2000)
(quoting EEOC Compliance Manual Section 8, “Retaliation,” ¶ 8008 (1998)). The
expansive view adopted by the Ninth Circuit includes “a wide array of disadvantageous
changes in the workplace.” Id. at 1240. Under this framework, adverse employment actions
include, but are not limited to the following actions: “lateral transfers, unfavorable job
references, and changes in work schedules.” Id. at 1243. It may also include omissions,
such as the denial of a promotion if the employee can demonstrate adequate qualifications.

MEMORANDUM DECISION AND ORDER- 12

See Chuang v. Univ. of cal. Davis, Bd. of Trustees, 225 F.3d 1115 (9th Cir. 2000) (holding
denial of full time tenured teaching position constitutes adverse employment action).
The Ninth Circuit has described two “countervailing concerns” that are at issue
when determining what constitutes an “adverse employment action”:
On the one hand, we worry that employers will be paralyzed
into inaction once an employee has lodged a complaint under
Title VII, making such a complaint tantamount to a ‘get out of
jail free’ card for employees engaged in job misconduct. On
the other hand, we are concerned about the chilling effect on
employee complaints resulting from an employer's retaliatory
actions. In an effort to strike the proper balance, we have held
that only non-trivial employment actions that would deter
reasonable employees from complaining about Title VII
violations will constitute actionable retaliation.
Brooks, 229 F.3d at 928-929. To establish a causal link between the protected activity and
the adverse employment action, Ms. Limary must show “that the desire to retaliate was the
but-for cause of the challenged employment action.” University of Texas Southwestern
Medical Center v. Nassar, 133 S. Ct. 2517, 2528 (2013) (citing Gross v FBL Financial
Services, Inc., 557 U.S. 167, 176 (2009)).
C.

Plaintiff’s Allegations of Retaliatory Adverse Employment Actions

Ms. Limary alleges the following adverse employment actions occurred in
retaliation for her reporting Mr. Tolbert to HR: her transfer to night shift; the denial of her
hardship transfer request; constant harassment for her wardrobe; her ignored application
for a driving position; and the receipt of harassing phone calls while she was on leave.
(Dkt. 20.) Additionally, Ms. Limary alleges she also suffered retaliation for filing a Charge
of Discrimination with the IHRC on September 11, 2013 as evidenced by the following

MEMORANDUM DECISION AND ORDER- 13

actions: Mr. Tolbert directed Shawna Herberger to blame Ms. Limary for all mistakes and
errors in their department; Mr. Tolbert directed Tina Drown to dig up dirt on Ms. Limary;
Mr. Tolbert staged a surveillance camera to monitor Ms. Limary’s every move while on
shift; and Ms. Limary was passed over for two opportunities to return to dayshift. (Dkt.
20.) Ms. Limary further alleges that, as a result of all of this retaliatory and harassing
conduct, she was forced to take FMLA leave on November 20, 2014 and was constructively
discharged on April 21, 2015. (Dkt. 20.)
As further discussed below, the Court finds that Ms. Limary has shown a genuine
issue of material fact as to whether the denial of her hardship transfer request was a
retaliatory adverse employment action. The Court also finds that Ms. Limary has shown a
genuine issue of material fact as to whether, based on the totality of circumstances and as
a result of her protected activity, her work environment became so harassing and hostile
that she was forced to take FMLA leave and was ultimately constructively discharged.
(1) Transfer to Evening Shift
Ms. Limary contends that Mr. Tolbert’s decision to transfer her to night shift was
retaliatory. (Dkt. 20.) However, Ms. Limary was transferred to night shift in January 2013
and her first protected activity did not occur until February 2013 when she reported Mr.
Tolbert to HR. (Dkt. 20.) Accordingly, Ms. Limary’s transfer to the evening shift could not
have been a retaliatory adverse employment action and she cannot rely upon this fact to
support her retaliation claim.

MEMORANDUM DECISION AND ORDER- 14

(2) Denial of Hardship Transfer Request
Ms. Limary asserts that her hardship transfer request was also denied in retaliation
for her reporting Mr. Tolbert to HR. (Dkt. 20.) UPS maintains that Ms. Limary’s hardship
transfer request was denied due to her low QPR scores and was not retaliatory. (Dkt. 26.)
The Court finds, under the circumstances presented here, that denial of the hardship
transfer request may constitute an adverse employment action. Cf. Bukiri v. Lynch, 648
Fed. Appx. 729 (9th Cir. 2016) (denial of hardship transfer request did not constitute
adverse employment action because policy expressly excluded hardships that arose prior
to employment). There is a genuine dispute of fact regarding Ms. Limary’s qualification
for the hardship transfer and this dispute cannot be resolved on summary judgment.
UPS asserts that an employee is only eligible for transfer if he or she is a fully
acceptable performer, which it maintains Ms. Limary was not. (Dkt. 26.) Ms. Limary
argues that this is pretext because her relevant QPR score, her 2012 mid-year score, showed
she was, in fact, a “Fully Acceptable Performer.” (Dkt. 20-1, SODF ¶ 14.)
UPS contends that Mr. Grant relied upon Ms. Limary’s 2011 year-end and 2012
year-end QPR scores when he reviewed and ultimately denied her transfer request, which
rated Ms. Limary as “Significant Improvement Needed” and “Improvement Needed,”
respectively. (Dkt 17-10, Grant Affidavit ¶ 10-14; Dkt. 17-11, Ex. 4.) However, in an
email summarizing the material considered when reviewing the transfer request, Mr.
Nelson told Mr. Grant that Ms. Limary’s 2012 mid-year QPR was the most recent score
available at the time. (Dkt. 21, Ex. 4.) Mr. Nelson’s email incorrectly stated that her 2012
mid-year QPR score rated Ms. Limary as “Improvement Needed” and her 2012 year-end
MEMORANDUM DECISION AND ORDER- 15

QPR score rated her as a “Fully Acceptable Performer.” (Dkt. 21, Ex. 4.) Contrary to this
email, the record shows that Ms. Limary received a “Fully Acceptable Performer” rating
on her mid-year 2012 QPR. (Dkt. 21, Ex. 3.) During his deposition testimony, Mr. Nelson
asserted that his email incorrectly referenced Ms. Limary’s 2012 mid-year QPR as the most
recent rating, when her 2012 year-end QPR was actually the most recent available and, as
such, was the score relied upon in denying her transfer request. (Dkt. 22-5, Nelson Depo.
at 68.) Mr. Nelson also stated that “miskeying” was to blame for his flip-flopping her 2012
mid-year to the 2012 year-end. (Dkt. 22-5, Nelson Depo. at 68.)
In short, while UPS offered a nonretaliatory explanation for Ms. Limary’s denied
transfer request, Ms. Limary has identified facts that bring that justification into doubt.
Interpreting the facts in favor of the nonmoving party, Ms. Limary has raised a genuine
issue of material fact as to whether UPS’s explanation is pretextual.
Moreover, given the proximity in time between Ms. Limary reporting Mr. Tolbert
to HR and the denial of her hardship transfer request, the Court finds Ms. Limary has set
forth sufficient facts to meet the prima facie requirement of causation specific to this issue.
Ms. Limary’s hardship transfer request was denied on or around March 1, 2013, which was
within one month of her report of Mr. Tolbert to HR. On these facts, the Court finds a
reasonable inference can be made that her hardship transfer request was denied for
retaliatory reasons.
(3) Driving Position Application
Ms. Limary contends that her letter of interest for the off-the-street driving position
was wholly ignored by UPS in retaliation for her report of Mr. Tolbert to HR. (Dkt. 20.)
MEMORANDUM DECISION AND ORDER- 16

The Court finds that Ms. Limary has failed to create a genuine dispute of fact on this issue,
because the undisputed facts reflect that she was not qualified for the position and was not
treated any differently than the other unqualified applicants for the position.
“[I]f a transfer to a ‘position was not made available to [plaintiff] because of her
involvement in protected activities,’ then she suffered an adverse employment decision.
McAlindin v. County of San Diego, 192 F.3d 1226, 1239 (9th Cir. 1999) (quoting Bouman
v. Block, 940 F.2d 1211, 1229 (9th Cir. 1991)). If Ms. Limary’s letter of interest was
ignored and she was not given a fair chance to get the driver’s position this could constitute
an adverse employment action to the extent she was otherwise qualified for the position
and her application was ignored because of her involvement in protected activities.
Ms. Limary expressed interest in an off-the-street driving position with UPS by
email on June 24, 2013. (Dkt. 17-3, Ex. 1.) By early September 2013, Ms. Limary had not
heard anything about the position. (Dkt. 20.) On September 16, 2013 Ms. Limary sent a
follow-up email inquiring as to why she never received any response or acknowledgment
about her letter of interest. (Dkt. 17-3, Ex. 3; Dkt. 21, Limary Affidavit ¶ 18.) Mr. Johnson
sent a response email on September 17, 2013 apologizing for a lack of response, explaining
that it was his common practice to provide notice to those that made the first cut, and
explaining what he looked for in moving candidates on to the next step. (Dkt. 17-3, Ex. 3.)
Further, he explained that while Ms. Limary did not currently have the experience he was
looking for to fill the position, if she would “like the opportunity to run an operation and
get the experience of employees reporting directly to [her] to let [him] know.” (Dkt. 17-3,
Ex. 3.)
MEMORANDUM DECISION AND ORDER- 17

The Court finds the UPS’s nonretaliatory explanation for their conduct is not
reasonably subject to dispute. The undisputed facts demonstrate Ms. Limary’s letter of
interest was treated in the same manner as the other applicants. Mr. Johnson reviewed all
candidates that were interested in the position and eliminated those that were not enrolled
in the Management Assessment and Promotion Program (“MAPP”) to narrow down the
pool. As a result, Ms. Limary and Douglas McKillop were eliminated as potential hires for
this position and Mr. Johnson did not provide notice to either candidate because it was his
general practice to only notify candidates who made the first cut. (Dkt. 17-3 at 3, ¶ 9.) The
only candidates who made it to the next stage of the hiring process were highlighted in
green on Mr. Johnson’s spreadsheet and all were either enrolled or in the process of
enrolling in MAPP. (Dkt. 17-3, p. 7.)
In short, UPS has met their burden by providing a nonretaliatory explanation for
how Ms. Limary’s application for the off-the-street driving position was handled. This
evidence defeats both causation and also provides a nonretaliatory reason for the alleged
misconduct: Ms. Limary and Mr. McKillop were not enrolled in MAPP and therefore did
not make it to the next step in the interview process or receive a phone call or email
explaining that their applications were denied. Ms. Limary has not provided evidence to
establish this nonretaliatory explanation was pretext.
(4) Day Shift Opportunities
Ms. Limary contends that “UPS passed over two opportunities to return [her] to dayshift hours by awarding the open positions to Stephanie Leggeman and Jennifer Compton.”
(Dkt. 20.) Ms. Limary argues that those positions were “lateral” moves; she had more
MEMORANDUM DECISION AND ORDER- 18

seniority than Ms. Leggeman and Ms. Compton; and Ms. Leggeman agreed to switch Ms.
Limary shifts, taking the evening shift so that Ms. Limary could work day shift. (Dkt. 20.)
UPS maintains that Ms. Limary did not suffer retaliatory adverse employment action when
she was not given either of these positions because the positions were for different
positions; Ms. Compton’s position was filled prior to Ms. Limary’s move to the evening
shift; and Ms. Leggeman did not agree to switch shifts with Ms. Limary. (Dkt. 26, Dkt. 178, Taylor Affidavit ¶ 3; Dkt. 22-3, Tolbert Depo. at 157-159.)
There can be no adverse employment action in the context of a “failure to hire
retaliation” where an individual did not apply for the position. See Kamdem-Ouaffo v.
Idahoan Foods, LLC, 2017 WL 1073350, at *9 (D. Idaho Mar. 20, 2017) (citing Valez c.
Janssen Ortho, LLC, 467 F.3d 802, 807 (1st Cir. 2006)). Ms. Limary does not allege she
applied for either of the positions the other women ultimately filled and Phil Taylor,
Division Manager of the Idaho Division, provides sworn testimony establishing that she
did not. (Dkt. 17-8, Taylor Affidavit ¶ 4.)
Ms. Limary testified that she “express[ed] interest of moving around within the
company,” but has not alleged she expressed interest in either of these open positions, knew
those positions were available at the time or in retrospect, or that she was qualified for
those positions. (Dkt. 17-14, Limary Depo. at 113-115.) Again, despite viewing the facts
in the light most favorable to Ms. Limary, the Court does not find that Ms. Limary applied
for these positions. Accordingly, she cannot establish that UPS retaliated against her by
failing to provide her with opportunities to transfer to the day shift.

MEMORANDUM DECISION AND ORDER- 19

(5) Other Allegations of Retaliatory Harassment
Ms. Limary alleges that she was constantly harassed about her wardrobe, despite
being in compliance with UPS’s dress code; UPS harassed her with phone calls when she
was on leave while her son was in the hospital for three days; Mr. Tolbert installed a
surveillance camera to watch her while she was on shift; and Mr. Tolbert instructed other
female employees to dig up dirt on her and blame all mistakes on her. (Dkt. 20-1.)
Retaliatory “[h]arassment is actionable only if it is ‘sufficiently severe or pervasive
to alter the conditions of the victim’s employment and create an abusive working
environment.’” Ray, 217 F.3d at 1245 (quoting Harris v. Forklift Systems, Inc., 510 U.S.
17, 21 (1993)). Like a hostile work environment harassment claim, retaliatory harassment
requires that the alleged harassment “be both objectively and subjectively offensive.” Id.
“To determine whether an environment is sufficiently hostile, we look to the totality of the
circumstances, including the ‘frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance.’” Id. (quoting
Faragher v. City of Boca Raton, 524 U.S. 775, 787, (1998)).
(a) Wardrobe Harassment
Ms. Limary asserts that after reporting Mr. Tolbert “she was constantly harassed
over her wardrobe.” (Dkt. 20.) UPS argues that comments regarding Ms. Limary’s choice
to wear pumps was out of concern for Ms. Limary’s safety. (Dkt. 26.)
Ms. Limary describes the harassment as Mr. Tolbert “ask[ing] if [her] uniform, or
[her] stuff, was within the guidelines.” (Dkt. 17-14, Limary Depo. at 102.) Ms. Limary
MEMORANDUM DECISION AND ORDER- 20

alleges she was told to follow different guidelines at different times, one guideline allowed
her to wear pumps and another allowed her to wear shorts, which led to her confusion and
constant harassment by Mr. Tolbert. (Dkt. 17-14, Limary Depo. at 103-104.) Ms. Limary
testified during her deposition that the issues regarding her wardrobe ceased when she
stopped wearing pumps. (Dkt. 17-14, Limary Depo. at 204-05.)
No reasonable juror could find the comments Ms. Limary received concerning her
wardrobe, either alone or combined with other acts of alleged harassment, were sufficiently
severe or pervasive to support a retaliatory harassment claim. Ms. Limary has not described
that she was singled out or treated differently from anyone else, and the concerns expressed
about her shoe choices were both reasonable and safety-related.
(b) Phone Calls
Ms. Limary had to leave work suddenly when her son was hospitalized. (Dkt. 1714, Limary Depo. at 106.) When she called to follow up on her departure Mr. Tolbert gave
her the time off, but “asked [her] questions as far as like, what was going on, how long it
would be . . .” (Dkt. 17-14, Limary Depo. at 106-107.)
No reasonable juror could find this communication, either alone or combined with
other acts of alleged harassment, was sufficiently severe or pervasive to support a
retaliatory harassment claim. Ms. Limary has not described that she was singled out or
treated differently from anyone else, and the questions she was asked appear abundantly
reasonable under the circumstances. By all accounts, this was an isolated incident where
UPS was trying to gather information on Ms. Limary’s status so they could get coverage

MEMORANDUM DECISION AND ORDER- 21

for her shift while she was gone, which Ms. Limary essentially acknowledged in her
deposition. (Dkt. 17-14, Limary Depo. at 106-107.)
(c) Surveillance Camera and Co-Worker Recruitment
Ms. Limary alleges that, after she initiated a Charge with the Idaho Human Rights
Commission, Mr. Tolbert staged a surveillance camera to monitor her activities throughout
the work day and recruited her co-workers to dig up dirt on her and to blame her for any
mistakes made in her section. (Dkt. 21, ¶ 19-22.) These allegations, supported by Ms.
Limary’s sworn testimony, are sufficient to create a genuine dispute of material fact as to
whether Ms. Limary suffered retaliatory harassment.
Ms. Limary contends that Mr. Tolbert “staged a surveillance camera to monitor
[her] every move while on shift.” (Dkt. 21, ¶ 22.) In addition, Ms. Limary alleges that Mr.
Tolbert instructed Ms. Herberger “see to it that all mistakes made in Ms. Limary’s section
of employment were blamed on [her]” and following that directive Ms. Herberger not only
blamed mistakes on Ms. Limary, but also instructed another coworker to do the same. (Dkt.
21, ¶ 19-20.)
UPS argues that the camera was installed in response to office vandalism and was
taken down after a week with no effect on Ms. Limary’s employment. (Dkt. 26.) UPS
further argues that Ms. Herberger has denied Ms. Limary’s allegations and Ms. Limary has
provided no factual support for her contention. (Dkt. 26.)
The Court finds these allegations, taken together, create a genuine dispute of
material fact concerning retaliatory harassment. Making every reasonable inference in Ms.
Limary’s favor, the Court finds her testimony provides evidence sufficient to demonstrate
MEMORANDUM DECISION AND ORDER- 22

that this conduct was taken in retaliation against Ms. Limary for filing a Charge with the
Idaho Human Rights Commission. Furthermore, this conduct is not trivial and could have
a chilling effect on employee complaints- whether or not any dirt was actually acquired via
video surveillance or employee recruitment. A reasonable juror could find, as Ms. Limary
alleges, that this conduct was so intolerable that it was harder for Ms. Limary to conduct
her own tasks and made Ms. Limary “an object lesson about the perils of complaining
about sexual [discrimination] in the workplace.” Ray, 217 F.3d at 1245.
(6) FMLA Leave and Constructive Discharge
Ms. Limary argues that she took FMLA leave due to the emotional and physical toll
of the hostilities in the workplace. (Dkt. 20.) Ms. Limary contends that she was
constructively discharged from her employment at UPS due to a continued course of
retaliatory conduct. (Dkt. 1-2 ¶ 42; Dkt. 20.) UPS contends that Ms. Limary took FMLA
leave due to a collection of psychological stressors unrelated to her employment with UPS
and she was not constructively discharged but quit because she was “uncertain” what would
happen when she returned to work. (Dkt. 26, citing Dkt. 17-14, Limary Depo. at 246-247.)
The plaintiff has the burden in a claim of constructive discharge to prove two
elements: (1) that “[she] was discriminated against by [her] employer to the point where a
reasonable person in [her] position would have felt compelled to resign” and (2) that [she]
actually resigned.” Green v. Brennan, 136 S.Ct. 1769, 1777 (2016) (citing Pennsylvania
State Police v. Suders, 542 U.S. 129, 148 (2004)). The Ninth Circuit has set a high bar for
a claim of constructive discharge. Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007).
“[C]onstructive discharge requires some aggravating factors, such as a continuous pattern
MEMORANDUM DECISION AND ORDER- 23

of discriminatory treatment.” Brooks, 229 F.3d at 931 (citing Thomas v. Douglas, 877 F.2d
1428, 1434 (9th Cir. 1989)). “[A] single isolated incident is insufficient as a matter of law
to support a finding of constructive discharge, we have upheld factual findings of
constructive discharge when the plaintiff was subjected to incidents of differential
treatment over a period of months or years.” Wallace v. City of San Diego, 479 F.3d 616,
626 (9th Cir. 2007) (internal citations and quotations omitted).
The proper lens for a constructive discharge claim is from the perspective of a
reasonable person considering the totality of the circumstances. See Wallace, 479 F.3d at
625. “‘Whether working conditions were so intolerable and discriminatory as to justify a
reasonable employee’s decision to resign is normally a factual question for the jury.’” Id.
at 626 (quoting Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1411 (9th Cir. 1996)).
Examining the record as a whole, including Ms. Limary’s allegations of retaliatory
harassment, and making every reasonable inference in Plaintiff’s favor, the Court finds that
Ms. Limary has set forth sufficient facts to create a genuine issue of fact on this issue. The
evidence is sufficient to allow the jury to decide: (1) whether Ms. Limary was
constructively discharged from her employment and/or (2) whether Ms. Limary’s use of
FMLA and constructive discharge were adverse employment actions caused by the UPS’s
retaliation.
Ms. Limary applied for, and was granted, continuous FMLA leave on November
20, 2014 through February 20, 2015. (Dkt. 20.) Ms. Limary testified that she took leave
due to “[t]he retaliatory write-ups, discipline” and the emotional stress of UPS telling her
she would get to go back to dayshift and it not happening. (Dkt. 17-14, Limary Depo. at
MEMORANDUM DECISION AND ORDER- 24

181.) Ms. Limary also cited her mental health and stress as reasons for taking leave and
her medical records reflect additional stressors including financial issues, divorce,
educational problems, family problems, primary support group problems, and relationship
problems. (Dkt. 17-14, Limary Depo. at 181-182.)
Ms. Limary did not return to work and had no communication with UPS until
sometime in March 2015 when she spoke to Mr. Shreeve. (Dkt. 17-7, Shreeve Affidavit
¶ 4; Dkt. 17-4, Ex. 2.) On April 2, 2015, Ms. Limary met with Mr. Shreeve at the Nampa
Center and they spoke with Ms. Lahaszow about providing additional documentation to
retroactively excuse her absence since February 20, 2015. Additionally, Ms. Lahaszow
informed Ms. Limary that since she had taken leave UPS had become aware that Ms.
Limary was dating a driver at the Nampa Center in violation of UPS’s conflict of interest
policy so when she was ready to return to work Ms. Lahaszow would work with her to find
other potential roles that would avoid the conflict of interest. (Dkt. 17-2, ¶ 40, 42.) Ms.
Limary’s absences were retroactively excused with documentation from her health care
provider stating that Ms. Limary was unable to perform “customer service, organization,
supervision,” which were essential functions of her position. (Dkt. 17-4, Ex. 3.) On April
21, 2015, Ms. Limary, through her attorney, sent a letter to UPS notifying them of her
constructive discharge. (Dkt. 20-1.)
UPS contends that Ms. Limary’s work conditions were improving before she took
leave, which undercuts her argument that she was forced to leave because her working
conditions had deteriorated to the point they had become “sufficiently extraordinary and
egregious to overcome the normal motivation of a competent, diligent, and reasonable
MEMORANDUM DECISION AND ORDER- 25

employee to remain on the job to earn a livelihood. . . .” Brooks, 229 F.3d at 930. For
example, in October 2014, Mr. Tolbert moved Ms. Limary to an earlier shift (1:30 p.m. to
7:00 p.m.). (Dkt. 17-9, Tolbert Affidavit ¶ 8-9.) On November 11, 2014, Mr. Tolbert told
Ms. Limary he would return her to her preferred day shift after the New Year. (Dkt. 17-19,
Ex. 1.)
Nevertheless, while “‘[t]he frequency and freshness of the instances of harassment
may enter into’ a jury’s determination of constructive discharge, . . . a jury is free to find
constructive discharge ‘under all of the circumstances.’” Wallace, 479 F.3d at 628 (Draper
v. Coeur Rochester, Inc., 147 F.3d 1104, 1110 n. 2 (9th Cir. 1998)). Thus, this Court finds
that a reasonable juror could conclude, based on the totality of the circumstances, Ms.
Limary suffered adverse employment actions when she took FMLA leave and was
constructively discharged and these adverse employment actions were caused by the
retaliatory harassment she experienced at work.
3.

Sexual Discrimination- Hostile Work Environment
In her First Amended Complaint and Demand for Jury Trial, Ms. Limary asserts a

sexual discrimination hostile work environment claim. (Dkt. 1-2.) This claim was
addressed in UPS’s summary judgment motion. (Dkt. 17.) However, Plaintiff’s response
focused solely upon her sexual discrimination disparate treatment claim. (Dkt. 20).
Accordingly, the Court finds Ms. Limary has failed to demonstrate a genuine dispute of
fact that would preclude summary judgment on her hostile work environment claim.

MEMORANDUM DECISION AND ORDER- 26

4.

Sexual Discrimination- Disparate Treatment
Consistent with Ms. Limary’s retaliation claim, her sexual discrimination claim

follows Title VII's burden-shifting formula. First, the plaintiff must establish a prima facie
case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);
Vasquez v. Cty. of L.A., 349 F.3d 634, 640 (9th Cir. 2003), as amended (Jan. 2, 2004). If
the plaintiff succeeds in doing so, the burden shifts to the employer “to articulate a
legitimate, nondiscriminatory reason for its allegedly discriminatory conduct.” Vasquez,
349 F.3d at 640. If the employer articulates “such a reason, the burden shifts back to the
[employee] to show that the employer's [stated] reason is a pretext for discrimination.” Id.
In the discrimination context, the plaintiff has two alternative ways to establish a
prima facie claim that gives rise to an inference of unlawful discrimination. Id.; Wallis, 26
F.3d at 889. One way is for the plaintiff to demonstrate: (1) she belongs to a protected class,
(2) she was performing according to her employer’s legitimate expectations, (3) she
suffered an adverse employment action, and (4) other employees with qualifications similar
to her own were treated more favorably. Cordova v. State Farm Ins. Cos., 124 F.3d 1145,
(9th Cir. 1997); Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008).
Alternatively, the plaintiff may provide “more direct evidence of discriminatory intent.”
Id. (citing Wallis, 26 F.3d at 889). Ms. Limary contends that she satisfies both tests.
A. Ms. Limary Has Not Made a Prima Facie Case of Gender Discrimination
Through Direct Evidence.
“Direct evidence is evidence which, if believed, proves the fact of discriminatory
animus without inference or presumption.” Vasquez, 349 F.3d at 640 (internal quotations
MEMORANDUM DECISION AND ORDER- 27

omitted). Further, where, as here, direct evidence is alleged through discriminatory
remarks, there must be a nexus between the discriminatory remarks and the subsequent
employment decisions. Id.
Ms. Limary generally contends that Mr. Tolbert “favored male employees and
treated female employees poorly” and that each subsequent employment action taken
against her was a result of his less favorable approach to her because she was a woman.
(Dkt. 20.) However, this is a bald and conclusory allegation. The only specific support Ms.
Limary offers for this conclusion is that on two occasions, Mr. Tolbert referred to Ms.
Limary’s female coworkers in a derogatory manner referring to one as a “stupid bitch” and
another as an “old hag.” (Dkt. 17-4, Limary Depo. at 80-90.). In addition, Ms. Limary
reports that Mr. Tolbert said one female co-worker was “old and needed to retire” and he
did not like another and wanted her fired. Id. Ms. Limary contends Mr. Tolbert did not
refer to or speak about male employees in this same manner.
Certainly, the terms “hag” and “bitch” are derogatory terms used specifically in
reference to females. However, the terms were used on only two occasions in reference to
Ms. Limary’s coworkers. Further, the comments stopped after UPS spoke with Mr. Tolbert
about appropriate language in the workplace. In addition, Ms. Limary has not drawn the
requisite connection between Mr. Tolbert’s use of these terms generally and in reference
to her co-workers and the adverse employment actions she allegedly suffered. Even reading
every fact in the record in the light most favorable to the Plaintiff, the Court finds there is
no direct evidence of discriminatory animus.

MEMORANDUM DECISION AND ORDER- 28

B. Ms. Limary Has Not Made a Prima Facie Case of Gender Discrimination
Through the McDonnell Douglas Factors.
Ms. Limary cannot demonstrate a prima facie case through the McDonnell Douglas
factors. It is undisputed that she is a member of a protected class and there are disputes of
fact that preclude summary judgment as to her job performance and whether she suffered
adverse employment actions. The central problem for Ms. Limary is she has not
demonstrated that similarly situated males were treated more favorably than her. See
Aragon v. Republic Silver St. Disposal, Inc., 292 F.3d 654, 660 (9th Cir. 2002).
“Whether two employees are similarly situated is ordinarily a question of fact.”
Hawn v. Executive Jet Management, 615 F.3d 1151, 1157 (9th Cir. 2010). And while “the
employees’ roles need not be identical; they must . . . be similar in all material respects.”
Id. at 1157 (quotation marks omitted).
As general support for her gender discrimination claim, Ms. Limary identifies male
employees she says were treated more favorably than her. These include: Jim Lovett, Steve
Westendorf, Eric Beck, and Matt Addleman. (Dkt. 17-14, p. 94.) However, at her
deposition, Ms. Limary admitted: (1) these employees were not similarly situated; and (2)
her only basis for claiming these individuals were treated more favorably was her
perception that Mr. Tolbert was more “responsive” to them. (Dkt. 17-14, pp. 94-99).
Furthermore, Ms. Limary puts forth no connection between the alleged adverse
employment actions she suffered and the relative treatment of the allegedly similarly
situated male employees.

MEMORANDUM DECISION AND ORDER- 29

For example, Ms. Limary complains about her transfer to night shift; however, that
decision was made between three female employees. Two of the female employees kept
their day shifts and Ms. Limary, who had the least experience, was transferred to night
shift. In addition, with specific regard to the rejection of her hardship transfer, Ms. Limary
has not made any allegations or offered any evidence that would suggest male employees
were treated more favorably. Finally, as to Ms. Limary’s letter of interest in the off-thestreet driver’s position, she was treated the same as the one similarly situated employee
who was also not enrolled in the MAPP program, and that employee was a male.
In short, Ms. Limary has not met her burden to show a genuine dispute of material
fact as to whether any similarly situated male employees were treated more favorably than
she was because of her gender. Accordingly, she has failed to establish a prima facie case
of discrimination. There is simply no evidence for a reasonable juror to conclude that
gender animus was the cause of the adverse employment actions alleged by Ms. Limary.
Therefore, summary judgment should be granted in favor of UPS on Ms. Limary’s gender
discrimination claims under Title VII and the IHRA.
CONCLUSION
Ms. Limary has established genuine issues of material fact that preclude summary
judgment on her retaliation claims. In contrast, her sexual discrimination claims fail. She
has not established the record necessary to demonstrate sexual harassment either in the
form of a hostile work environment or disparate treatment. Accordingly, those claims must
be dismissed as a matter of law.

MEMORANDUM DECISION AND ORDER- 30

ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Defendant’s Motion for
Summary Judgment (Dkt. 17) is GRANTED IN PART and DENIED IN PART. The
Motion is granted with respect to Ms. Limary’s gender discrimination claims. The Motion
is denied with respect to Ms. Limary’s retaliation claims as explained more fully herein.
DATED: September 20, 2017

_________________________
Edward J. Lodge
United States District Judge

MEMORANDUM DECISION AND ORDER- 31