Collier v. Eastridge et al
Filing
40
MEMORANDUM DECISION AND ORDER The motions for summary judgment filed by defendants (docket nos. 27 & 30 ) are GRANTED IN PART AND DENIED IN PART. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
WANDA COLLIER,
Case No. 4:CV 09-596-BLW
Plaintiff,
v.
MEMORANDUM DECISION
AND ORDER
TURNER INDUSTRIES GROUP, L.L.C., a
Louisiana limited liability company; DAVID
EASTRIDGE; NU-WEST INDUSTRIES, INC.,
a Delaware corporation, d/b/a Agrium Conda
Phosphate Industries, and JACK DANIELL, an
individual,
Defendants.
INTRODUCTION
The Court has before it motions for summary judgment filed by the defendants.
The Court heard oral argument on June 7, 2011, and took the motions under advisement.
For the reasons explained below, the Court will grant the motions in part, dismissing the
claims for (1) intentional infliction of emotional distress, (2) violation of the Idaho
Human Rights Act, (3) breach of contract, (4) breach of the implied duty of good faith
and fair dealing, (5) promissory estoppel, and (6) punitive damages on the state law
claims. In addition, the Court will narrow the Title VII hostile work environment claim to
a single-incident claim based on the pushing incident occurring on September 10, 2008.
In all other respects, the motions shall be denied.
Memorandum Decision & Order - 1
FACTUAL BACKGROUND
Plaintiff Wanda Collier claims she was harassed at her job and ultimately fired
because she was a woman. She has sued her employer, Turner Industries Group, and her
supervisor, David Eastridge. She has also sued the company that retained Turner to do
maintenance work, Agrium Conda Phosphate Industries, and its Maintenance
Superintendent, Jack Daniell. She brings claims for gender discrimination under § 1983,
Title VII, and their Idaho state-law counterparts, along with additional state law claims
such as battery and intentional infliction of emotional distress.
Agrium owns a fertilizer plant located in Soda Springs, Idaho. To maintain the
plant, Agrium entered into a two-year agreement with Turner whereby Turner would
provide maintenance services and labor. Defendant Jack Daniell, Agrium’s Maintenance
Superintendent, helped select Turner as the maintenance contractor. Plaintiff Collier
worked for Turner as the site safety representative.
Collier’s direct supervisor was Fred Keller, Turner’s site manager. Keller in turn
reported to David Eastridge, Turner’s project manager. Eastridge had helped negotiate
Turner’s agreement with Agrium and Daniell. After the agreement was signed, Eastridge
continued to work with Daniell to “ensure that [Agrium’s] needs [were] taken care of.”
See Eastridge Deposition (Vol. I) at p. 19. Because Eastridge was often traveling to other
sites, Daniell frequently dealt with Fred Keller.
The agreement stated that Turner was an independent contractor. Under the
agreement, Agrium would tell Turner what maintenance work it wanted done on the plant
Memorandum Decision & Order - 2
and the number of man-hours Turner could devote to the project, and Turner would
recommend to Agrium how many Turner employees should work on that particular
project. When Agrium approved, Turner would begin the project.
Collier began work with Turner in April of 2008, as an at-will employee. She was
responsible for going into the field, observing and training workers, writing inspection
and incident reports, and correcting any unsafe behaviors.
In June of 2008, Collier was involved in an incident with Turner employee Doug
Taylor over co-worker Kathie Ledger's failure to open a “tool crib” on time. When
Taylor heard Collier questioning Ledger about the late opening, Taylor – according to
Collier – screamed profanities at Collier, including “she will fucking go to the tool crib
when she fucking gets there.” See Collier Deposition at p. 81.
There were also two incidents where Daniell observed employees using or
handling materials improperly – one involving aerosol cans and the other involving face
shields. On both occasions, Daniell berated Collier and demanded that she provide
proper training for these employees. Another incident arose when Daniell spoke with
Collier regarding general housekeeping issues around the plant, as employees on a
weekend shift had left trash strewn about the plant. Collier described Daniell as
intimidating and testified that he treated her in a “mean and nasty” manner. See Collier
Deposition at p. 193.
On August 4th, 2008, Eastridge met with Daniell and discussed Collier’s job
performance. See Eastridge Deposition (Vol. II) at p. 133. On the same day, immediately
Memorandum Decision & Order - 3
after that meeting, Eastridge met with Fred Keller and Collier to discuss complaints made
by Daniell regarding her job performance as well as the “tool crib” incident. Id.
At this meeting, Collier described the tool crib incident to Eastridge. See Collier
Deposition at p. 111. According to Collier, Eastridge responded that “Jack [Daniell] has
a gender issue with you.” Id. Collier’s testimony is confirmed by Keller who recalled
that Eastridge stated that “Jack Daniell was harder on her due to the fact that she was a
woman” and that Daniell was “old school.” See Keller Deposition at pp. 43-44, 77.
Collier also recalls that “Eastridge used the phrase ‘old school’ when discussing Jack’s
attitude toward my role in the workplace.” See Collier Affidavit (Dkt. 34-2) at p. 2, ¶ 2.
In addition, Collier testified that Eastridge directed her to supply additional reports to
Daniell because “[w]e have to make Jack happy.” See Collier Deposition at p. 112.
In response to Eastridge’s comments that Daniell had a problem with her gender,
Collier recalls “I looked at [Eastridge] sitting in that chair and I said he can’t do that. It
doesn’t matter. Male, female, black, white, it doesn’t matter. I said it’s a bunch of
bullshit and you need to fix that problem.” Id. at pp. 111-12. Accepting Collier’s account
as true – as the Court must do in this summary judgment proceeding – she was
complaining about Daniell’s gender discrimination to her supervisor, Eastridge, and
demanding that it stop.1
1
At oral argument, Turner’s counsel argued that Collier’s affidavit testimony conflicted with her
deposition testimony. More specifically, counsel contrasted Collier’s statement in her affidavit that
Daniell’s conduct was “at least partially motivated by the fact that I was a woman,” see Collier Affidavit
at p. 3, with her deposition testimony that “I don’t know what he’s motivated by.” See Collier Deposition
at p. 195. However, the latter statement was made in response to a question, “do you have any evidence
Memorandum Decision & Order - 4
Eastridge had been trained to take complaints of gender discrimination “seriously”
and investigate them immediately. See Eastridge Deposition at p. 75. He took Collier’s
complaint “very seriously,” investigated the “tool-crib” incident immediately, and
concluded that the dispute was based on factors other than gender. Id. at p. 96.
In addition to investigating Collier’s complaint, Eastridge spoke with Daniell about the
August 4, 2008, meeting. See Eastridge Deposition at p. 134.
About a month later, on September 10, 2008, Daniell confronted Collier about
unsafe practices he had observed. A different contractor had dropped a cement pillar
through the roof of the building and a barrier was erected to keep employees away from
the unsafe site. Daniell had apparently seen Turner employees crossing over the safety
barrier. According to Collier, Daniell confronted her, pushing her so that she was up
against the wall where “[t]here was no escaping” and “no getting away from him.” See
Collier Deposition at p. 197. The front of his body touched the front of hers. Id. This
incident is often referred to in the briefing as the “belly-bump” incident, but Collier
testified that Daniell “didn’t bump [me]. He pushed me.” Id. Collier describes Daniell
as “very angry,” and he berated her for three to four minutes over the unsafe conduct of
Turner employees in disregarding the safety barrier. Id.
that Jack’s response or conduct during that particular incident [the housekeeping incident where trash was
strewn about the plant] was in any way motivated by your gender?” Id. Collier’s response – that she did
not know what he was motivated by – appears limited to the housekeeping incident and cannot be read to
exonerate Daniell of all the other incidents that Collier found offensive. Indeed, just a few minutes later
in the deposition, Collier testifies that “I think he [Daniell] had an issue with my gender.” Id. at p. 202.
Granting all inferences to Collier, her deposition testimony was consistent with her affidavit. The Court
therefore rejects counsel’s argument that there is a material variance between Collier’s affidavit and her
deposition testimony.
Memorandum Decision & Order - 5
Collier reported this incident immediately to Fred Keller. Id. at p. 199. Keller
recalls that Collier was “visibly upset” and that she was “borderline hysterical; she was
red in the face . . . she was mad, she was on the verge of crying . . . .” See Keller
Deposition at pp. 52-53. After the pushing incident, Collier would avoid Daniell and she
“kept Fred [Keller] close to me at all times.” See Collier Deposition at p. 104.
A little over a month later, on October 27, 2008, Collier was notified that her
position was to be eliminated as part of a Reduction in Force (“RIF”) to take place on
December 1, 2008. John Tippets, Agrium’s Human Resources Officer, recalled that when
he called Eastridge to discuss Collier on October 28, 2008, Eastridge said he was
“concerned that we [Agrium] were put to the trouble of having to deal with the issue,”
and that he “felt like it would be appropriate to terminate her [Collier’s] employment”
immediately instead of waiting to December 1, 2008. See Tippets Deposition at pp. 8991.
On October 30, 2008, Collier contacted an Agrium HR representative to file a
formal complaint against Daniell. She also contacted Turner’s Ethics and Compliance
Hotline the following day. In both instances, she reported gender discrimination, the
tool-crib incident, the comments made at the August 4th, 2008 meeting with Eastridge,
and the RIF. She also filed a report with Turner and Agrium against Daniell for the
September 10th, 2008, pushing incident. Agrium immediately pursued an investigation
of Collier’s claims, and concluded that her firing was not related to her gender.
Turner offered Collier (1) a safety coordinator position at a facility in Kentucky,
Memorandum Decision & Order - 6
and (2) an opportunity to perform turnarounds at Agrium and other sites at a higher pay
rate than she was receiving. Collier rejected both offers.
On November 24, 2008, Collier filed identical complaints with the EEOC and the
Louisiana Human Rights Commission against Turner and Agrium. In her EEOC
complaint, she alleged that she was the victim of sex discrimination and had been
“verbally harassed and subjected to a hostile work environment by Jack Daniell . . . .”
See Exhibit 14 to Collier Deposition. She has never filed any claim with the Idaho
Human Rights Commission.
On September 3, 2009, the EEOC issued a “right to sue” letter to Collier. Collier
filed this suit on November 19, 2009 claiming gender discrimination, retaliation, breach
of contract, breach of implied duty of good faith and fair dealing and in the alternative,
promissory estoppel, battery, intentional infliction of emotional distress, and interference
with contractual relations. Collier also seeks attorney fees, punitive damages and a jury
trial.
The defendants have filed motions for summary judgment. The Court will analyze
the motions after reviewing the legal standards governing summary judgment
LEGAL STANDARDS
One of the principal purposes of the summary judgment “is to isolate and dispose
of factually unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
(1986). It is “not a disfavored procedural shortcut,” but is instead the “principal tool[ ] by
which factually insufficient claims or defenses [can] be isolated and prevented from going
Memorandum Decision & Order - 7
to trial with the attendant unwarranted consumption of public and private resources.” Id.
at 327. “[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly 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).
The evidence must be viewed in the light most favorable to the non-moving party,
id. at 255, and the Court must not make credibility findings. Id. Direct testimony of the
non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152,
1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable
inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th
Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a
genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001)(en banc). To carry this burden, the moving party need not introduce any
affirmative evidence (such as affidavits or deposition excerpts) but may simply point out
the absence of evidence to support the nonmoving party’s case. Fairbank v. Wunderman
Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000).
This shifts the burden to the non-moving party to produce evidence sufficient to
support a jury verdict in her favor. Id. at 256-57. The non-moving party must go beyond
the pleadings and show “by her affidavits, or by the depositions, answers to
interrogatories, or admissions on file” that a genuine issue of material fact exists.
Memorandum Decision & Order - 8
Celotex, 477 U.S. at 324.
Only admissible evidence may be considered in ruling on a motion for summary
judgment. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir.2002); see also
Fed.R.Civ.P. 56(e). In determining admissibility for summary judgment purposes, it is
the contents of the evidence rather than its form that must be considered. Fraser v.
Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). If the contents of the evidence could be
presented in an admissible form at trial, those contents may be considered on summary
judgment even if the evidence itself is hearsay. Id. (affirming consideration of hearsay
contents of plaintiff’s diary on summary judgment because at trial, plaintiff’s testimony of
contents would not be hearsay).
In order to preserve a hearsay objection, “a party must either move to strike the
affidavit or otherwise lodge an objection with the district court.” Pfingston v. Ronan
Engineering Co., 284 F.3d 999, 1003 (9th Cir. 2002).
ANALYSIS
Evidence Issues
A critical issue in this summary judgment proceeding is whether Eastridge’s
opinions of Daniell – that Daniell is “old school” and has issues with Collier’s gender –
are admissible in these proceedings. The analysis of the summary judgment motions
differs considerably depending on whether the Court may consider this evidence.
Therefore, the Court will begin by analyzing the evidentiary issues raised by these
allegations.
Memorandum Decision & Order - 9
Eastridge’s Opinion of Daniell Offered Against Eastridge and Turner
To the extent Eastridge’s opinions of Daniell are offered against Eastridge and
Tuner, the opinions are not hearsay under Rule 801(d)(2)(D) because they are a statement
by an employee made within the scope of his employment and during that employment.
For these reasons, the Court rejects the argument of Eastridge and Turner that the
opinions are inadmissible hearsay as against them.
Eastridge’s Opinion of Daniell Offered Against Daniell and Agrium
To the extent Eastridge’s opinions of Daniell are offered against Daniell and
Agrium, they are out-of-court statements offered to prove the truth of the matter stated –
that is, that Daniell actually was “old school” and had an issue with Collier’s gender.
Hence, the opinions would be hearsay under Rule 801(c) unless they can be deemed nonhearsay under subsection (d).
The statements are in the form of Eastridge’s opinions about Daniell rather than
statements attributed by Eastridge to Daniell. Thus, the opinions do not fall under Rule
801(d)(2)(D) as statements of Agrium’s employee Daniell. However, they may still fall
within that Rule if Eastridge is an “agent or servant” of Agrium. Since Eastridge was not
an employee of Agrium, the Court will focus on whether he was an agent of Agrium.
Eastridge’s employer, Turner, was identified as an independent contractor in the
contract Turner signed with Agrium. That relationship by itself does not prevent the
formation of an agency relationship for the purposes of Rule 801(d)(2)(D). See U.S. v.
Bonds, 608 F.3d 495 (9th Cir. 2010). The factors to be considered include the following:
Memorandum Decision & Order - 10
(1) the control exerted by the employer, (2) whether the one employed is engaged in a
distinct occupation, (3) whether the work is normally done under the supervision of an
employer, (4) the skill required, (5) whether the employer supplies tools and
instrumentalities, (6) the length of time employed, (7) whether payment is by time or by
the job, (8) whether the work is in the regular business of the employer, (9) the subjective
intent of the parties, and (10) whether the employer is or is not in business. Id. at 504.
The “essential ingredient . . . is the extent of control exercised by the employer.” Id. at
505. In Bonds, the Court rejected application of Rule 801(d)(2)(D) because there was no
evidence the purported principal “directed or controlled any of [the purported agent’s]
activities.” Id.
Here, there is evidence that Agrium and Daniell directed the activities of Turner
and Eastridge. Daniell had helped select Turner and negotiated its contract with
Eastridge. As the Maintenance Superintendent at the Soda Springs plant, Daniell was
ultimately responsible for Turner’s maintenance work. Eastridge was Daniell’s liaison,
and it was Eastridge’s duty to meet the needs of Daniell and Agrium. Consistent with
that, Eastridge told Collier that they had to keep Daniell happy. Eastridge’s desire to
please Agrium comes through in his apology to Tippets that Agrium had to deal with
Collier’s claims and in his expressed desire to RIF her immediately rather than wait for
the scheduled RIF date of December 1, 2008. It was Daniell’s desire to cut costs that led
Eastridge to conduct the RIF.
Daniell was not a distant manager leaving all decisions up to Eastridge. Daniell
Memorandum Decision & Order - 11
spoke directly with Collier over the incidents described above and demanded that she
train employees on specific safety practices. According to Collier, Daniell intimidated
her and treated her in a mean and nasty manner. Daniell talked with Eastridge about
Collier’s job performance immediately prior to the August 4, 2008, meeting, and later
talked about the meeting with Eastridge. Daniell inquired of Keller ten to twelve times in
2008 about Collier’s job performance.
This is evidence that Daniell was personally scrutinizing Collier’s job
performance, discussing it regularly with Eastridge, and treating Collier in a mean and
nasty manner. This shows that Daniell had a motive to include Collier in the RIF; his
opportunity to do so came from the fact that he negotiated Turner’s contract with
Eastridge and was ultimately responsible for the maintenance work at the plant, thereby
holding significant influence over Eastridge.
While there is contrary evidence, all inferences are granted in favor of Collier in
this summary judgment proceeding. With this standard in mind, the Court finds that there
is sufficient evidence that Agrium directed or controlled Turner and Eastridge in the RIF
so that Eastridge was an agent for Agrium for purposes of Rule 801(d)(2)(D).
This means only that Eastridge’s opinion of Daniell is admissible for purposes of
this summary judgment proceeding, and does not mean the opinion is admissible at trial.
Morgan v Doran, 2009 WL 119802 (9th Cir. Jan. 15, 2009) (unpublished opinion). This
evidentiary ruling was made under the more lenient standards applicable to Collier as the
non-movant in a summary judgment proceeding – those lenient standards do not apply to
Memorandum Decision & Order - 12
Collier at trial. Id. Thus, to admit the statements at trial, Collier will need to put on
testimony and admit documents laying a foundation supporting a finding of agency.
Eastridge’s opinion of Daniell is not admissible in these proceedings against
Daniell and Agrium simply because it passes as non-hearsay; it has other hurdles to
satisfy such as relevance and personal knowledge. See Advisory Committee Notes to Rule
803 (stating that overcoming hearsay objection does not result in admission; all other
exclusionary rules apply and may require exclusion of the evidence). For example, Rule
401 requires relevance. Here, Eastridge’s opinions of Daniell are relevant because they
make it more probable that Daniell used his influence over Eastridge to have Collier
included in the RIF because she was a woman. Hence, the opinion passes Rule 401's test.
Second, the opinion must be based on personal knowledge. Rule 602 requires that
the witness have personal knowledge before he can testify to anything. In addition, Rule
701 requires that for any lay opinion, the witness must base that opinion on personal
knowledge. If Eastridge took the witness stand to testify to his opinion, he would have to
satisfy Rule 602 and 701. The requirement is the same for out-of-court declarants. See 9
Wright, Graham, Gold and Graham, Federal Practice & Procedure, § 6338 at pp. 178-79
(1st ed. 2010) (stating that “[g]iven that one of the functions of the hearsay rule is to
bolster the requirement of personal knowledge, it is not surprising that courts have found
it “incongruous” to admit hearsay opinions that the witness would not be allowed to give
from the witness stand.”). In concluding that Rule 602 applies to hearsay declarants, the
Advisory Committee stated that “[i]n a hearsay situation, the declarant is, of course, a
Memorandum Decision & Order - 13
witness, and neither this rule [Rule 803] nor Rule 804 dispenses with the requirement of
first-hand knowledge. It may appear from his statement or be inferable from the
circumstances.” See Advisory Committee Notes to Rule 803. Given that the out-of-court
declarant is deemed to be a “witness,” the provisions of Rule 602 and 701 – that apply on
their face to “a witness”– would apply to an out-of-court declarant like Eastridge.
Here, the personal knowledge requirement is satisfied. Eastridge was Daniell’s
liaison with Turner during the negotiation of the “nuts and bolts” of Turner’s contract,
See Eastridge Deposition (Vol. 1) at p. 29. Once the contract was signed, Daniell and
Eastridge spoke on a monthly basis through 2008, see Daniell Deposition at pp. 103-04,
because it was part of Eastridge’s duties to ensure that he and Turner were meeting the
needs of Daniell and Agrium. See Eastridge Deposition (Vol. I) at p. 19. Immediately
before making his comments about Daniell, Eastridge had met with Daniell and discussed
Collier’s performance on the job. See Eastridge Deposition (Vol. II) at pp. 116-120.
This association between Eastridge and Daniell would appear to give Eastridge
insight into how Daniell felt about female employees in general and Collier in particular.
That is sufficient to satisfy Rules 602's requirement that Eastridge have “personal
knowledge” of Daniell’s opinion of Collier, and is also sufficient to satisfy Rule 701's
requirement that the opinion be “rationally based on the perception of [Eastridge].” The
other requirements of Rule 701 for admission of an opinion by a lay witness are also
satisfied because the opinions are (1) helpful to a clear understanding of facts at issue and
(2) not based on scientific, technical or other specialized knowledge within the scope of
Memorandum Decision & Order - 14
Rule 702.
Finally, the Court wrestled with the issue under Rule 403 as to whether the
probative value of the opinions is substantially outweighed by the danger of unfair
prejudice. Undoubtedly, there is a danger of prejudice to Daniell and Agrium. Because
the opinions were not accompanied by any specific foundation as to how and when they
were formed, Daniell and Agrium will be hamstrung on cross-examination. The
prejudice is mitigated somewhat by the undisputed association between Daniell and
Eastridge, discussed above, that provides a general foundation for Eastridge’s knowledge
of Daniell. Further diluting the prejudice is Eastridge’s denial that he made such
statements, giving Daniell a potent argument that Collier and Keller should not be
believed. At the same time, the probative value of the opinions is high because they
related directly to a central issue in this case – whether Daniell used his influence with
Eastridge to include Collier in the RIF because she was a woman. While the issue is
certainly a close one, the Court finds, after weighing the probative value against the
danger of unfair prejudice, that Rule 403 does not block admission of these opinions in
this summary judgment proceeding.
Conclusion on Evidentiary Analysis
The Court finds that Eastridge’s opinions of Daniell – that he is “old school” and
has issues with Collier’s gender – are admissible against all defendants in these summary
judgment proceedings. Once again, the conclusions that the foundations for admission
have been satisfied under Rules 401, 403, 602, and 701 were made under the summary
Memorandum Decision & Order - 15
judgment standard that all inferences are granted in Collier’s favor. Hence these
conclusions have no precedential value at trial. There, Collier must lay the foundation
through admissible testimony and/or documents satisfying these Rules of Evidence.
Title VII Claim Against Turner & Eastridge – Exhaustion
Turner and Eastridge argue first that Collier failed to exhaust her claims of
discriminatory firing and retaliation because she made no such allegations in her EEOC
Charge. Collier filed her EEOC Charge herself, without the assistance of counsel. While
she did not allege that she was fired or retaliated against based on her gender, she did
allege that she was “verbally harassed and subjected to a hostile work environment by
Jack Daniel [sic], Maintenance Superintendent for Agrium CPO.” See Exhibit 14 to
Collier Deposition. She also stated that “I believe I have been discriminated against
because of my sex, female, in violation of Title VII . . . in that I was told by David
Eastridge, Turner Industries Project Manager, that Jack Daniel [sic] has a problem with
my gender.” Id.
The EEOC Charge must be construed “with utmost liberality since they are made
by those unschooled in the technicalities of formal pleading.” B.K.B. v. Maui Police
Dep’t, 276 F.3d 1091, 1100 (9th Cir.2002). If the claim “could reasonably be expected to
grow out of” the claims expressly made in the Charge, the claim should be considered.
Id. Reading Collier’s EEOC Charge liberally, the Court concludes that claims of gender based discharge and retaliation could be expected to grow out of the allegations expressly
made in the Charge. The Court therefore rejects defendants’ failure-to-exhaust argument.
Memorandum Decision & Order - 16
Title VII Claim Against Turner & Eastridge – Discriminatory Discharge
Turner argues next that Collier has not produced sufficient evidence of
discriminatory discharge under Title VII. To prevail on this claim, Collier must show (1)
that she was discharged by Turner, and (2) that her gender was a motivating factor in
Turner’s decision to discharge her. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 98-102
(2003); Ninth Circuit Model Civil Jury Instructions § 10.1C. An employer may be held
liable under Title VII even if it had a legitimate reason for its employment decision, as
long as an illegitimate reason was a motivating factor in the decision. Dominguez-Curry
v. Nevada Transp. Dept., 424 F.3d 1027, 1041 (9th Cir. 2005). “[V]ery little evidence is
necessary to raise a genuine issue of fact regarding an employer's motive; any indication
of discriminatory motive may suffice to raise a question that can only be resolved by a
fact-finder.” Nicholson v. Hyannis Air Service, Inc, 580 F.3d 1116, 1127 (9th Cir. 2009).
Here, as discussed above, Collier has presented evidence that Daniell was old
school and had a gender issue with Collier. This is direct evidence of discriminatory
animus on the part of Daniell. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221(9th
Cir. 1998) (labeling as direct evidence of gender discrimination opinion of decisionmaker that he “did not want to deal with another female”). While defendants argue that
Eastridge did not make those statements about Daniell’s opinions, and that Daniell did not
hold such opinions, those are questions of fact on these matters given Collier’s testimony.
But Daniell’s motivations are irrelevant unless they were a motivating factor in
Eastridge’s decision to include Collier in the RIF. There are questions of fact on this
Memorandum Decision & Order - 17
issue. The Court has already discussed at length the evidence that (1) Daniell negotiated
Turner’s contract with Eastridge and had significant influence over Eastridge, (2)
Eastridge’s duties included meeting the needs of Daniell and keeping him happy, and (3)
Daniell personally scrutinized Collier’s job performance, discussed it regularly with
Eastridge and Keller, and treated Collier in a mean and nasty manner. When this
evidence is combined with Collier’s assertions that Daniell was old school and had a
gender issue with her, they raise a genuine issue whether Daniell had a gender bias that
was a motivating factor in Eastridge’s decision to include Collier in the RIF.2
Given this, the Court will deny Turner and Eastridge’s motion for summary
judgment on Collier’s claim that she was fired for being a woman in violation of Title
VII.
Title VII Claim Against Turner & Eastridge – Retaliation
Collier claims that she was fired because she complained about Daniell’s genderbased discrimination. To make out a claim of retaliation, Collier must show that she
suffered an adverse employment action because she opposed a practice of her employer
made unlawful by Title VII or participated in an EEOC Charge or investigation. 42
2
This analysis also refutes defendants’ argument that Daniell’s opinions fall with the “stray
remarks” line of cases as a matter of law. Clark County School District v. Breeden, 532 U.S. 268, 271
(2001) (holding that “offhand comments, and isolated incidents (unless extremely serious)” do not
amount to discrimination). Under those cases, stray remarks not acted upon or communicated to a
decision-maker are not actionable. See Mondero v. Salt River Project, 400 F.3d 1207, 1213 (9th Cir.
2005). Given the issues of fact discussed above, the Court cannot find as a matter of law that Daniell’s
opinions are mere stray remarks.
Memorandum Decision & Order - 18
U.S.C. § 2000e-3(a). In order to be a protected activity, the plaintiff’s opposition must
have been directed toward a discriminatory act by an employer or an agent of an
employer. EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1013–14 (9th Cir.1983)
(employee’s objections to discriminatory practices by the warehouse personnel manager
constituted objections to discriminatory actions of the employer). The plaintiff need not
show that retaliation was the sole motive for the adverse action so long as it was a
motivating factor. Stegall v. Citadel Broadcasting, Co., 350 F.3d 1061 (9th Cir. 2003).
In this case, as discussed in detail above, one reasonable inference from the record
is that Collier complained about Daniell’s gender discrimination at the August 4, 2008,
meeting with Eastridge. Her complaint is a protected activity under Title VII and was
directed at her employer, as required. Less than three months later she was notified that
she was included in the RIF. That temporal proximity is some evidence that Collier’s
complaint – her protected activity – was a motivating factor in her termination. See
Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (holding that period of three
months between complaint and adverse action was sufficiently close in time to raise
questions of fact whether complaint caused adverse action).
Given these circumstances, the Court finds that questions of fact exist on Collier’s
retaliation claim, and will therefore deny summary judgment on that claim.
Title VII Claim Against Daniell & Agrium
Daniell and Agrium argue that Title VII applies only to an “employer” and that
they did not employ Collier. They recognize that an employee could have “joint
Memorandum Decision & Order - 19
employers” if each entity “control[s] the terms an conditions of employment of the
employee.” See EEOC v. Pacific Maritime Ass’n, 351 F.3d 1270 (9th Cir. 2003). An
entity could be deemed to be a joint employer when it “interferes with an individual’s
employment opportunities with another employer.” Gomez v. Alexian Bros. Hosp. of San
Jose, 698 F.2d 1019, 1021 (9th Cir.1983) (per curiam). Title VII provides protection not
to an “employee” but rather to a “person aggrieved,” and “that term can certainly be taken
as comprehending individuals who do not stand in a direct employment relationship with
an employer.” Gomez, 698 F.2d at 1021 (quoting Sibley Memorial Hospital v. Wilson,
488 F.2d 1338, 1341 (D.C.Cir.1973).
In Gomez, a hospital allegedly refused, on racial grounds, to hire a Hispanic
physician who sought employment as an independent contractor with the hospital. In
Sibley, a hospital allegedly blocked private nurses, on gender grounds, from working for
patients in the hospital. In both cases, the Title VII claims were allowed to go forward
against the hospitals even though the hospitals did not employ the plaintiffs. In both
cases, the courts noted the perverse result if an employer was allowed “to exploit
circumstances peculiarly affording it the capability of discriminatorily interfering with an
individual’s employment opportunities with another employer, while it could not do so”
with its own employees. Gomez, 698 F.2d at 1021 (quoting Sibley, 488 F.3d at 1341).
Here, Collier alleges that Daniell and Agrium interfered on gender grounds with
her employment with Turner, an independent contractor working for Agrium. She alleges
that Daniell influenced Eastridge to include Collier in the RIF because Collier was a
Memorandum Decision & Order - 20
woman. The Court has held that questions of fact exist on these issues, and hence the
Court cannot find, as a matter of law, that Agrium and Turner were not joint employers of
Collier for Title VII purposes.
Hostile Work Environment Claim Against Turner and Agrium
To survive summary judgment on her hostile work environment claim, Collier
must raise genuine issues of material fact that (1) she was subjected to verbal or physical
harassment due to her gender, (2) the harassment was unwelcome, and (3) the harassment
was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment
and create an abusive work environment. See Kortan v. California Youth Authority, 217
F.3d 1104, 1110 (9th Cir. 2000). Collier must show that the conduct at issue was both
objectively and subjectively offensive: she must show that a reasonable person would find
the work environment to be “hostile or abusive,” and that she in fact did perceive it to be
so. Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662
(1998). Where an employee is allegedly harassed by co-workers, the employer may be
liable if it knows or should know of the harassment but fails to take steps “reasonably
calculated to end the harassment.” Dawson v. Entek Intern., 630 F.3d 928, 937-38 (9th
Cir. 2011).
Defendants argue that the conduct giving rise to this claim must be sexual in
nature, and they argue that none of the incidents cited by Collier involved any sexually
explicit conduct. The Circuit has often used the phrase “sexual in nature” in listing the
elements of a hostile work environment claim. Dawson, 630 F.3d at 937-38 (stating that
Memorandum Decision & Order - 21
plaintiff may establish hostile work environment claim by showing, among other things
“harassment that was sexual in nature”). However, the Circuit has made it clear that
while conduct including sexually-explicit words or acts is one way to prove hostile work
environment, it is not the only way – the ultimate issue is whether an employee is
subjected to hostile conduct based on gender. See EEOC v. National Educ. Ass’n, Alaska,
422 F.3d 840, 844-45 (9th Cir. 2005). Thus the lack of any sexually explicit behavior is
not fatal to Collier’s claim.
Portions of Collier’s claim nevertheless fail for another reason: Some of the
incidents she describes do not, as a matter of law, constitute a hostile work environment.
With regard to Daniell’s demands that Collier train employees on the disposal of aerosol
cans and the use of face shield incidents, Collier concedes that both incidents were safety
issues within her responsibilities as site safety representative. See Collier Deposition at p.
95 (when asked if the aerosol training would have been a safety issue, Collier responded
“[c]orrect”); p. 97 (when asked if it was reasonable to demand proper use of face sheilds,
Collier responded “[y]es”). Daniell’s anger over the houskeeping incident was directed at
both male and female employees, according to Collier’s own testimony. Id. at p. 99
(when asked if Daniell “was requesting you, as well as other males . . . to address this
housekeeping issue,” Collier responded “[y]es”).
With regard to the “tool crib” incident, Doug Taylor overheard Collier
reprimanding Kathie Ledger for not opening the tool crib, and Taylor started shouting
profanities at Collier because he was having an affair with Ledger, according to Collier.
Memorandum Decision & Order - 22
See Collier Deposition at p. 82. Taylor’s hostile conduct toward Collier was therefore not
gender-based. Moreover, Eastridge immediately investigated Collier’s complaint about
Taylor’s treatment of her, and concluded that Taylor’s conduct was not gender based.
This incident happened in June of 2008, id. at p. 89, and for the next four months that
Collier worked there, she never reported any gender-based harassing conduct – or any
offensive conduct whatsoever – from Doug Taylor. The tool-crib incident cannot form
the basis for a hostile work environment claim.
The final incident involves Daniell pushing Collier up against the wall and
berating her for three or four minutes over the safety barrier issue. This incident is clearly
offensive, and there are at least questions of fact (discussed in detail above) over whether
Daniell’s conduct was based on Collier’s gender. The issue is whether it is sufficiently
“severe or pervasive” to support a hostile work environment claim. Although a single
incident like this is not “pervasive” it could be “severe” if it was “extremely serious.” See
Clark County School Dist. v. Breeden, 532 U.S. 268, 271 (2001).
As discussed above, severity is judged both objectively and subjectively. There
are at least questions of fact concerning the subjective effect on Collier of the pushing
incident, given Keller’s testimony, discussed above, that Collier was “visibly upset” and
“borderline hysterical” immediately after the incident.
Although it is an exceedingly close question, the Court finds that there are
questions of fact on the objective effect as well. The Court examines the objective effect
from the perspective of the victim, in this case a woman. Brooks v. City of San Mateo,
Memorandum Decision & Order - 23
229 F.3d 917,924 (9th Cir. 2000). In Brooks, the Circuit affirmed summary judgment for
the employer despite plaintiff’s claim that a co-worker boxed her against a console,
forced his hand under her sweater and bra and fondled her bare breast with his hand. Id.
The Circuit reasoned that
an isolated incident of harassment by a co-worker will rarely (if ever) give rise
to a reasonable fear that sexual harassment has become a permanent feature of
the employment relationship. By hypothesis, the employer will have had no
advance notice and therefore cannot have sanctioned the harassment
beforehand. And, if the employer takes appropriate corrective action, it will
not have ratified the conduct. In such circumstances, it becomes difficult to say
that a reasonable victim would feel that the terms and conditions of her
employment have changed as a result of the misconduct.
Id. at 924. The result would be much different, the Circuit stated, if the offender was a
supervisor rather than a co-worker: “[A] sexual assault by a supervisor, even on a single
occasion, may well be sufficiently severe so as to alter the conditions of employment and
give rise to a hostile work environment claim.” See Brooks v. City of San Mateo, 229
F.3d 917, 927 n. 9 (9th Cir. 2000). This statement was dicta because the offender in
Brooks was a co-worker rather than a supervisor.
Here, Daniell was the man everyone had to “keep happy” because he helped select
Turner and negotiated its contract on behalf of Agrium. The Court has found questions of
fact whether Daniell directed Eastridge to include Collier in the RIF, and whether Agrium
and Turner are joint employers of Collier for Title VII purposes. Thus, Daniell falls
within Brooks’ category of “supervisor,” at least in these summary judgment proceedings.
While his assault on Collier was not sexual in nature, he did physically trap her and
Memorandum Decision & Order - 24
subject her to three or four minutes of his rage (according to Collier’s testimony), and
there are questions of fact over whether his conduct was gender-based. Once again, Title
VII bars gender-based discrimination and is not limited simply to banning sexual assaults.
Finally, the pushing incident did change the terms of Collier’s employment. She testified
that after the incident she avoided Daniell and “kept Fred [Keller] close to me at all
times.” See Collier Deposition at p. 104
Nevertheless, this remains a difficult issue because so few single-incident hostile
work environment claims survive summary judgment, and the ones that do involve far
more serious conduct than the present case. See Little v. Windermere Relocation, Inc.,
301 F.3d 958, 967 (9th Cir.2002) (reversing summary judgment for employer because
single incident of rape of plaintiff created question of fact on hostile work environment
claim), see also, Berry v. Chicago Transit Authority, 618 F.3d 688 (7th Cir. 2010)
(reversing summary judgment for employer because single incident of co-worker lifting
plaintiff by breasts, holding her in the air, rubbing her body against his crotch three times,
and forcefully dropping her to the ground created question of fact on hostile work
environment claim). While the present case does not rise to the level of these cases,
Collier was, according to her testimony, physically assaulted and trapped for three or four
minutes by her superior – with the front of his body touching the front of hers – and
subjected to his rage. The Court must determine if a reasonable juror could conclude that
a reasonable woman would find Daniell’s conduct severe. The Court finds that a
reasonable juror could so conclude. Finding persuasive the dicta in Brooks discussed
Memorandum Decision & Order - 25
above, the Court will accordingly deny defendants’ motion for summary judgment on the
hostile work environment claim.
Idaho Human Rights Claims Against Turner and Agrium
The defendants argue that Collier’s failure to file a claim with the Idaho Human
Rights Commission (IHRC) bars her from asserting those claims. In response, Collier
argues that by filing a claim with the Equal Employment Opportunity Commission
(EEOC) she has substantially complied with the requirement of filing with the IHRC.
Idaho’s statutory provision requires the filing of a complaint with the IHRC as a
condition precedent to litigation. I.C. § 67-5908(2). Further, the Idaho Supreme Court
has interpreted it to that effect. Bryant v. City of Blackfoot, 48 P.3d 636, 642 (Idaho
2002) (holding that a plaintiff’s failure to file an IHRC complaint would warrant a
dismissal of those claims). Collier cites no authority holding that filing a charge with the
EEOC satisfies this condition precedent. The Court will accordingly grant this part of
defendants’ motions for summary judgment, and dismiss Collier’s claim under Idaho
Code §§ 67-5909, 67-5911. See Complaint (Dkt. 1) at ¶¶ 45, 49.
Intentional Infliction of Emotional Distress Claims
As against all defendants, Collier alleges that she was subjected to extreme and
outrageous conduct that caused severe emotional distress. She claims Turner’s
perpetuation of Daniell’s alleged gender discrimination is per se outrageous, that she lost
sleep and was emotionally harmed.
Memorandum Decision & Order - 26
After the pushing incident, Collier was, as discussed above, “visibly upset” and
“borderline hysterical” according to Fred Keller. However, Collier required no
counseling, was unaffected in her performance at her subsequent job, and showed no
physical manifestation from her distress. See Collier Deposition, at pp. 167-68. She also
testified that, after the pushing incident, she required no time off and suffered no physical
harm. Id., at pp. 201-02.
Under Idaho law, a claim of Intention Infliction of Emotional Distress (IIED)
consists of severe emotional distress caused by intentional or reckless conduct which was
both extreme and outrageous. Edmondson v. Shearer Lumber Products, 75 P.3d 733, 740
(Id.Sup.Ct. 2003). “Unlike the tort of negligent infliction of emotional distress,
intentional infliction of emotional distress does not require injury or a physical
manifestation resulting from emotional turmoil.” Alderson v. Bonner, 132 P.3d 1261,
1269 (Id.Ct.App. 2006). However, the plaintiff must show both outrageous conduct and
severe emotional distress. Hatfield v. Max Rouse & Sons Northwest, 606 P.2d 944, 953
(Id.Sup.Ct. 1980). The distress must be so severe that “no reasonable man could be
expected to endure it.” Davis v. Gage, 682 P.2d 1282, 1288 (Id.Ct.App. 1984) (citations
omitted.)
Idaho courts have often made decisions as a matter of law that the emotional injury
was not sufficiently severe. In Jeremiah v. Yanke Machine Shop, Inc., 953 P.2d 992, 999
(Id.Sup.Ct. 1998), the Supreme Court of Idaho held that, “being seriously frustrated from
enduring a hostile and abusive workplace” was insufficient. A child’s screams, fear, and
Memorandum Decision & Order - 27
loss of sleep from seeing his mother being yelled at by another motorist after a car
accident was insufficient. Payne v. Wallace, 32 P.3d 695, 698-99 (Id.Ct.App. 2001).
Moreover, a plaintiff’s testimony that they were “upset, embarrassed, angered, bothered
and depressed” was insufficient. Davis, 682 P.2d 1288.
This Court recognizes, as Idaho courts have, that severity is generally an issue for
the jury. However, under the authorities cited above, this issue may, at times, be resolved
as a matter of law. Collier’s claim that Eastridge’s conduct was per se outrageous is
unsupported by Idaho law which has, in fact, been persuasively interpreted to the
contrary. Ward v. Sorrento Lactalis, Inc., 392 F. Supp. 2d 1187, 1195 (D. Idaho 2005)
(noting that a Title VII violation was not enough to satisfy an IIED claim under Idaho
law). The descriptions of Collier’s emotional harm, loss of sleep, and reaction to the
pushing incident have, in one way or another, been found insufficient by Idaho courts.
Accordingly, the Court shall grant defendants’ motion to dismiss the claim for intentional
infliction of emotional distress.
Battery Claim Against Agrium
Daniell claims that even if a battery did occur, no proof of injury has been alleged
and, accordingly, “resolution of the matter is a question of law for the court.” Pierson v.
Brooks, 768 P.2d 792 (Idaho Ct. App. 1989). Daniell also claims that because the
Plaintiff was able to return to work the same day, and because Collier’s emotional
suffering was in some way related to prior events, no injury occurred. Collier responds
that although she suffered no physical harm from the pushing incident she may recover
Memorandum Decision & Order - 28
for emotional or mental suffering she endured.
Under Idaho law, a battery is an “intentional, unpermitted contact upon the person
of another which is either unlawful, harmful or offensive.” Neal v. Neal, 873 P.2d 871,
876 (Idaho 1994). Taking Collier’s testimony as true, as we must, a battery occurred
during the pushing incident. Keller testified that when Collier reported it to him “she was
borderline hysterical; red in the face . . . she was mad, she was on the verge of crying.”
Keller Deposition, pp. 13-14. This at least establishes a genuine issue of fact over
Collier’s mental or emotional injuries. Agrium cites no authority that Collier cannot
recover, as a matter of law, for mental or emotional injuries resulting from a battery but
instead must show a physical injury. Accordingly, the Court will deny summary
judgment on this issue.
Punitive Damages
Collier’s complaint contains a claim for punitive damages on both her Title VII
claim and her state law claims. A Title VII plaintiff may recover punitive damages for
intentional discrimination where “the complaining party demonstrates that the respondent
engaged in . . . discriminatory practices with malice or with reckless indifference to . . .
federally protected rights.” 42 U.S.C. § 1981a(b)(1). Defendants seek to dismiss Collier’s
punitive damage claim solely on the ground that the claims falls along with Collier’s Title
VII claim. However, the Title VII claim has not fallen, and so the punitive damage claim
remains. Defendants do not seek to dismiss the Title VII punitive damage claim on any
other ground.
Memorandum Decision & Order - 29
Collier’s punitive damage claim for her state law causes of action is governed by
Idaho Code § 6-1604. That statute forbids pleading punitive damages in the complaint
but requires instead a motion to amend once discovery has been completed. The Court
will therefore strike the punitive damage claim in the complaint to the extent it relates to
Collier’s state law claims, and will require Collier to bring a separate motion to amend to
add that claim.
Conceded Claims
Collier agrees to dismissal of her claims for breach of contract, breach of the
implied duty of good faith and fair dealing, and promissory estoppel. The Court will so
order.
Attorney Fees
Defendants seek the fees they incurred in briefing the claims that Collier conceded,
arguing that it was clear from the beginning that those claims should not have been
brought. The Court finds the argument highly persuasive. However, Collier’s counsel is
entitled to have this issue set up by a separate motion and fully briefed and argued. Thus,
the Court will not grant the attorney fees at this time.
The Court would put counsel on notice of three things in regard to this issue. First,
the defense needs to cull out only those fees incurred for the claims that were conceded
and support its motion with time sheets and billings. Second, Collier’s counsel must
explain why he maintained those conceded claims far past the time when they should
have been withdrawn. Third, any award of fees will run against Collier’s counsel rather
Memorandum Decision & Order - 30
than Collier.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motions for summary
judgment filed by defendants (docket nos. 27 & 30) are GRANTED IN PART AND
DENIED IN PART. They are granted to the extent they seek to dismiss the following
claims: (1) intentional infliction of emotional distress, (2) violation of the Idaho Human
Rights Act, (3) breach of contract, (4) breach of the implied duty of good faith and fair
dealing, (5) promissory estoppel, and (6) punitive damages on the state law claims. In
addition, the Title VII hostile work environment claim is narrowed to a single-incident
claim based on the pushing incident occurring on September 10, 2008. In all other
respects, the motions shall be denied.
DATED: June 22, 2011
Honorable B. Lynn Winmill
Chief U. S. District Judge
Memorandum Decision & Order - 31
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