Smout v. Cutrubus Motors et al
Filing
30
MEMORANDUM DECISION AND ORDER granting 25 Defendants' Motion for Summary Judgment; and denying 26 Plaintiff's Renewed Motion to Appoint Counsel. Judgment is entered in favor of Defendants and against Plaintiff on he r Title VII claims. Plaintiff's state-law claim for negligent retention and supervision is dismissed without prejudice. The Clerk of the Court is directed to enter judgment as set forth above and close this case forthwith. Signed by Judge Ted Stewart on 6/21/2016. (eat)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
HEATHER SMOUT,
MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFF’S
RENEWED MOTION TO APPOINT
COUNSEL
Plaintiff,
v.
CUTRUBUS MOTORS, HOMER
CUTRUBUS, KORD CUTRUBUS,
SKYLER CUTRUBUS, and JUSTIN
SMITH,
Case No. 1:15-CV-1 TS
Defendants.
District Judge Ted Stewart
This matter is before the Court on Defendants’ Motion for Summary Judgment and
Plaintiff’s Renewed Motion to Appoint Counsel. For the reasons discussed below, the Court will
grant Defendants’ Motion for Summary Judgment and deny Plaintiff’s Renewed Motion to
Appoint Counsel.
I. BACKGROUND
Cutrubus Motors, Inc. (“Cutrubus”) is an auto dealership that sells new and used cars in
Weber County, Utah. Cutrubus was founded by Homer Cutrubus and is managed in part by
Kord Cutrubus, who is the Chief Operating Officer. At certain relevant times, Skyler Cutrubus
was Plaintiff’s supervisor.
Justin Smith was hired by Cutrubus in 2005 as a sales manager. He was later promoted
to various management positions within the company.
Plaintiff was hired by Cutrubus in February 2005. Plaintiff started as a sales associate,
but later held other positions like finance manager and new car sales manager. Plaintiff last
1
worked for Cutrubus in February 2014, when she resigned from her position as new car sales
manager.
On June 15, 2012, Plaintiff, Mr. Smith, and another Cutrubus employee were on a
business trip. Mr. Smith was Plaintiff’s manager at the time. On that trip, Mr. Smith entered
Plaintiff’s hotel room, disrobed in front of her, and requested sexual favors. Plaintiff fended off
Mr. Smith’s advances. Upon returning from the trip, Mr. Smith apologized and offered Plaintiff
a promotion to the position of finance manager. Plaintiff accepted the position. Plaintiff had
been promoted to and demoted from this position several times in the past.
In April 2013, Plaintiff was informed by Mr. Smith that she would be removed from the
finance manager position and would be placed in the position of new car sales manager. This
change did not happen right away and Plaintiff was not removed as finance manager until June
17, 2013.
After being removed from the finance manager position, Plaintiff did not have a written
job description and pay plan for a period of time. Ultimately, Plaintiff was provided a job
description and pay plan on August 5, 2013. Under that plan, Plaintiff’s commissions would be
based on sales she made personally, not on the store’s profits. Other than the change in how she
received commissions, Plaintiff’s other benefits largely remained the same in this new position.
On June 25, 2013, Plaintiff was given a written reprimand. Plaintiff was reprimanded for
telling another employee that Mr. Smith was upset with her for being late, and was going to fire
her. The reprimand did not change Plaintiff’s job duties or reduce her compensation.
On or about June 26, 2013, Plaintiff, for the first time, informed Cutrubus of Mr. Smith’s
conduct in June 2012. By that time, Mr. Smith had been transferred to a different dealership.
2
Nevertheless, Cutrubus investigated the incident. At the conclusion of the investigation,
Cutrubus gave Mr. Smith a written warning, instructed him not to contact Plaintiff, did not allow
him to supervise other employees for a period of time, and required him to attend sensitivity
training.
On September 12, 2013, Plaintiff alleges that she was told by a former Cutrubus
employee that Skyler Cutrubus intended to let her go. Plaintiff claims that in the following
months, her ability to earn commissions was restricted. However, Plaintiff also admitted that she
worked less during this time period. Plaintiff eventually resigned on February 22, 2014.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” 1 In
considering whether a genuine dispute of material fact exists, the Court determines whether a
reasonable jury could return a verdict for the nonmoving party in the face of all the evidence
presented. 2 The Court is required to construe all facts and reasonable inferences in the light most
favorable to the nonmoving party. 3
1
Fed. R. Civ. P. 56(a).
2
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Clifton v. Craig, 924
F.2d 182, 183 (10th Cir. 1991).
3
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Wright v. Sw. Bell Tel. Co., 925 F.2d 1288, 1292 (10th Cir. 1991).
3
III. DISCUSSION
Plaintiff’s Complaint asserts a number of claims against Defendants. 4 Plaintiff brings
claims under Title VII of the Civil Rights Act for hostile work environment, discrimination on
the basis of gender, and retaliation. Plaintiff also brings a claim for constructive discharge and a
state-law claim for negligent retention and supervision. The Court will discuss those claims in
turn.
A.
TITLE VII CLAIMS
1.
Hostile Work Environment
Plaintiff’s hostile work environment claim relates to the June 2012 incident involving Mr.
Smith. The Court must first consider Defendants’ argument that this claim is untimely.
Title VII requires a plaintiff to file a charge of discrimination within 300 days “‘after the
alleged unlawful employment practice occurred.’” 5 “A claim is time barred if it not filed within
these time limits.” 6 However, hostile work environment claims “often involve a series of
incidents that span a period of longer than 300 days.” 7 The Supreme Court has held that “as long
as ‘an act’ contributing to a hostile work environment took place no more than 300 days before
4
The Court would note that the individual Defendants may not be held personally liable
under Title VII. “‘The relief granted under Title VII is against the employer, not individual
employees whose actions would constitute a violation of the Act.’” Haynes v. Williams, 88 F.3d
898, 899 (10th Cir. 1996) (quoting Sauers v. Salt Lake Cty., 1 F.3d 1122, 1125 (10th Cir. 1993)).
Thus, the Court will analyze Plaintiff’s claims as against Cutrubus.
5
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 104–05 (2002) (quoting 42
U.S.C. § 2000e-5(e)(1)).
6
Id. at 109.
7
Duncan v. Manager, Dep’t of Safety, City & Cty. of Denver, 397 F.3d 1300, 1308 (10th
Cir. 2005).
4
the plaintiff filed an EEOC charge, a court may consider the complete history of acts comprising
that hostile work environment.” 8
“[W]hen analyzing a hostile work environment claim spanning longer than 300 days ‘[a]
court’s task is to determine whether the acts about which an employee complains are part of the
same actionable hostile work environment practice, and if so, whether any act falls within the
statutory time period.’” 9 “[T]here must be a relationship between acts alleged after the
beginning of the filing period and the acts alleged before the filing period . . . .” 10 “[A] series of
alleged events comprises the same hostile environment where ‘the pre- and post-limitations
period incidents involve[d] the same type of employment actions, occurred relatively frequently,
and were perpetrated by the same managers.’” 11
Plaintiff filed her charge of discrimination on December 9, 2013. Thus, those incidents
that occurred before February 12, 2013, would generally be barred unless an act contributing to
the hostile work environment took place within the filing period. In making this determination,
the Court examines the “acts within the filing period and consider[s] whether incidents outside
the filing period are sufficiently related to constitute the same employment practice.” 12 “To
determine whether these acts are part of the same hostile work environment, Morgan advises
looking at the type of these acts, the frequency of the acts, and the perpetrator of the acts.” 13
8
Id. (citing Morgan, 536 U.S. at 117).
9
Id. (quoting Morgan, 536 U.S. at 120) (second alteration in original).
10
Id.
11
Id. at 1309 (quoting Morgan, 536 U.S. at 120) (second alteration in original).
12
Tademy v. Union Pac. Corp., 614 F.3d 1132, 1140 (10th Cir. 2008).
13
Duncan, 397 F.3d at 1309.
5
This task proves difficult given the lack of clarity in Plaintiff’s claims. Plaintiff’s
Complaint limits her sexual harassment claim to the incident involving Justin Smith in June
2012. Plaintiff also testified about sexual statements being made by Mr. Smith at company
Christmas parties, the use of sexually charged language by Mr. Smith, and being asked by Mr.
Smith to give him back massages. Plaintiff was not sure when these incidents took place.
However, it appears that they all occurred prior to February 2013.
To the extent the Court can glean them from Plaintiff’s submissions, those acts that
occurred within the limitations period were of a different nature than those involving Mr. Smith.
They did not involve the same employment actions, did not occur with any known frequency,
and were perpetrated by others, as Mr. Smith was transferred to a different location sometime
around June 2013. Thus, Plaintiff’s hostile work environment claim, at least as it relates to the
June 2012 incident with Mr. Smith, is time barred.
Considering Plaintiff’s claims that occurred within the limitations period, the Court finds
that they fail. In evaluating a hostile work environment claim, the Court considers the work
atmosphere both objectively and subjectively 14 while keeping in mind that Title VII is not “a
general civility code for the American workplace.” 15 To that end, “run-of-the-mill boorish,
juvenile, or annoying behavior that is not uncommon in American workplaces is not the stuff of
a Title VII hostile work environment claim.” 16 The United States Supreme Court has “made it
clear that conduct must be extreme to amount to a change in the terms and conditions of
14
Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998).
15
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998).
16
Morris v. City of Colo. Springs, 666 F.3d 654, 664 (10th Cir. 2012).
6
employment.” 17 These standards are “sufficiently demanding” to ensure that they “filter out
complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of
abusive language, gender-related jokes, and occasional teasing.” 18
“‘Conduct that is not severe or pervasive enough to create an objectively hostile or
abusive work environment—an environment that a reasonable person would find hostile or
abusive—is beyond Title VII’s purview.’” 19 The harassment’s severity and pervasiveness are
“evaluated according to the totality of the circumstances, considering such factors as 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.” 20
The acts of which Plaintiff complains do not meet this standard. As stated, the exact
nature of Plaintiff’s claim is unclear. At most, Plaintiff has pointed to the sporadic use of
abusive language, gender-related jokes, and occasional teasing. Such acts are not sufficient to
survive summary judgment. As a result, the Court need not consider Defendants’ arguments
concerning the Faragher/Ellerth defense.
17
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
18
Id. (internal quotation marks omitted).
19
Oncale, 523 U.S. at 81 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
20
Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir. 2005) (citations and internal
quotation marks omitted).
7
2.
Discrimination
Title VII prohibits an employer from discriminating against any individual because of
“race, color, religion, sex, or national origin.” 21 “To make out a prima facie case of
discrimination, [Plaintiff] must demonstrate (1) membership in a protected class, (2) adverse
employment action, and (3) disparate treatment among similarly situated employees.” 22
In her Complaint, Plaintiff alleged that she received more abrasive treatment and was
belittled and singled out by Mr. Smith. Plaintiff also complains of being treated worse than other
employees. For example, Plaintiff stated that she was sometimes given demonstration cars
(“demo cars”) that were worse than others received.
To the extent that these incidents occurred prior to February 2013, they are barred as set
forth above. Even considering these claims, they fail because they do not rise to the level of an
adverse employment action. “Adverse employment action includes ‘significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.’” 23 The Tenth
Circuit does not consider “a mere inconvenience or an alteration of job responsibilities to be an
adverse employment action.” 24
None of the actions complained of by Plaintiff rise to this level. Plaintiff asserts that she
was yelled at by her manager and was sometimes given less desirable demo cars to drive. Such
21
42 U.S.C. § 2000e-2(a)(1).
22
Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005).
23
Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir. 2007) (quoting Hillig v. Rumsfeld,
381 F.3d 1028, 1032–33 (10th Cir. 2004)).
24
Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998) (internal quotation
marks omitted).
8
actions did not result in a significant change in her employment status. Further, Plaintiff cannot
show that these actions were the result of her gender. Plaintiff testified that Mr. Smith yelled at
both male and female employees. She also testified that at times she was given more desirable
demo vehicles. Therefore, this claim fails.
4.
Retaliation
To establish a prima facie case of retaliation under Title VII, Plaintiff must show that “(1)
she engaged in protected opposition to discrimination; (2) she suffered an adverse action that a
reasonable employee would have found material; and (3) there is a causal nexus between her
opposition and the employer’s adverse action.” 25
Plaintiff’s retaliation claim contains three parts. First, she alleges that she was retaliated
against when she was removed from the finance manager position. Second, Plaintiff alleges the
written warning she received on June 25, 2013, was in retaliation for a complaint filed by her
husband. Finally, Plaintiff complains that she did not receive a written job description and pay
plan between June 2013 and August 2013.
The Court first examines Plaintiff’s claim that her removal from the finance manager
position was in retaliation for refusing Mr. Smith’s sexual advances in June 2012. Defendant
argues that Plaintiff’s removal from the finance manager position was not a materially adverse
action and that she cannot show a causal connection between her protected activity and her
removal from this position. The Court agrees that Plaintiff cannot satisfy the third prong.
25
Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1086 (10th Cir. 2007) (internal
quotation marks omitted).
9
To prevail on a retaliation claim, a plaintiff must prove “that a causal connection existed
between the protected activity and the materially adverse action.” 26 “A causal connection is
established where the plaintiff presents evidence of circumstances that justify an inference of
retaliatory motive.” 27 “‘A retaliatory motive may be inferred when an adverse action closely
follows protected activity. However, unless the termination is very closely connected in time to
the protected activity, the plaintiff must rely on additional evidence beyond temporal proximity
to establish causation.’” 28
The exact nature of Plaintiff’s claimed protected opposition is unclear. To the extent that
Plaintiff asserts that she was removed from the finance manager position because she refused
Mr. Smith’s advances in June 2012, that claim fails. As set forth above, Mr. Smith informed
Plaintiff that she would be removed from the finance manager position in April 2013 and she
was actually removed from that position in June 2013. Thus, the minimum amount of time
between the protected activity and the adverse action was ten months. The Tenth Circuit has
found that when the time between the protected activity and the adverse action was three months,
the plaintiff could not establish causation without additional evidence. 29 Here, Plaintiff has
failed to supply any additional evidence that would lead a reasonable jury to conclude that she
26
Somoza v. Univ. of Denver, 513 F.3d 1206, 1212 (10th Cir. 2008).
27
Garrett v. Hewlett–Packard Co., 305 F.3d 1210, 1221 (10th Cir. 2002) (internal
quotation marks omitted).
28
Piercy, 480 F.3d at 1198 (quoting Anderson v. Coors Brewing Co., 181 F.3d 1171,
1179 (10th Cir. 1999)).
29
See id. at 1198–99; Hysten v. Burlington N. & Santa Fe Ry., 296 F.3d 1177, 1183–84
(10th Cir. 2002); Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir.1997).
10
was removed from the finance manager position as a result of refusing Mr. Smith’s advances in
June 2012.
To the extent that Plaintiff is arguing that she was removed from the finance manager
position as a result of her complaint against Mr. Smith, again the timing does not support her
claim. Plaintiff did not report the June 2012 incident to Cutrubus until approximately June 26,
2013. As stated, Plaintiff was removed from the finance manager position before this date.
Therefore, there can be no causal connection between her complaint and her removal from that
position.
The Court next examines Plaintiff’s allegation that she received a written warning on
June 25, 2013, in retaliation for an EEOC complaint filed by her husband, also a Cutrubus
employee. 30 “Disciplinary proceedings, such as warning letters and reprimands, can constitute
an adverse employment action.” 31 However, such proceedings are generally insufficient absent
evidence that they had some impact on Plaintiff’s employment status. 32 Here, there is no
evidence that the written warning Plaintiff received had any effect on her employment status.
Therefore, she has failed to make out a prima facie case.
Even if Plaintiff could make out a prima facie case, Plaintiff’s claim would still fail.
Plaintiff’s retaliation claim is subject to the burden-shifting framework set forth in McDonnel
Douglas Corp. v. Green. 33 Under that framework, once Plaintiff has established a prima facie
30
The extent of Plaintiff’s husband’s complaint is unclear, but there is no evidence that it
related to Plaintiff in any way. Rather, it was related to his own employment.
31
Medina v. Income Support Div., 413 F.3d 1131, 1137 (10th Cir. 205).
32
Id.
33
411 U.S. 792 (1973); see Jeffries v. State of Kan., 147 F.3d 1220, 1231 (10th Cir.
1998) (applying the McDonnell Douglas framework to a claim of retaliation).
11
case, “[t]he burden then shifts to the employer to articulate a legitimate non-retaliatory reason for
taking the adverse employment action before ultimately shifting back to the plaintiff to establish
that the employer’s explanation is pretextual—i.e., unworthy of belief.” 34
Plaintiff testified that she was given the reprimand because she told another employee
that Mr. Smith was upset with her and was going to fire her. Thus, there is evidence of a
legitimate non-retaliatory reason for the reprimand. Plaintiff has provided no evidence that this
reason was a pretext to retaliate her for her husband’s complaint. Therefore, this claim fails.
Finally, the Court considers Plaintiff’s complaint that she did not receive a written job
description and pay plan. Plaintiff has failed to show that the failure to provide her with a
written job description and pay plan constitutes an adverse employment action. “To be
materially adverse, an action must be sufficient to ‘dissuade [ ] a reasonable worker from making
or supporting a charge of discrimination.’” 35 “Title VII protects individuals ‘not from all
retaliation’ but only from retaliation ‘that produces an injury or harm.’” 36 This requires injury
rising to a requisite “level of seriousness.” 37 Plaintiff’s claim does not reach this level of
seriousness.
Even if Plaintiff could demonstrate an adverse action, Plaintiff’s claim fails on the third
prong. Title VII retaliation claims require an employee to demonstrate that, but for her protected
34
Thomas v. Berry Plastics Corp., 803 F.3d 510, 514 (10th Cir. 2015).
35
Daniels v. United Parcel Service, Inc., 701 F.3d 620, 638 (10th Cir. 2012) (quoting
Burlington N. & Santa Fe Ry Co. v. White, 548 U.S. 53, 68 (2006)).
36
Williams, 497 F.3d at 1087 (quoting White, 548 U.S. at 67).
37
Id. (quotation marks omitted).
12
activity, she would not have faced the alleged adverse employment action. 38 Plaintiff was
working without a written job description and pay plan before she informed Cutrubus of her
complaint against Mr. Smith. Therefore, there can be no but-for causation and this claim fails.
5.
Constructive Discharge
Plaintiff next brings a claim for constructive discharge. “Title VII encompasses
employer liability for a constructive discharge.” 39 “The plaintiff’s burden in establishing
constructive discharge is substantial.” 40 “A constructive discharge occurs when an employer,
through unlawful acts, makes working conditions so intolerable that a reasonable person in the
employee’s position would feel forced to resign.” 41 “The conditions of employment must be
objectively intolerable; the ‘plaintiff’s subjective views of the situation are irrelevant.’” 42
Plaintiff has failed to meet her substantial burden. There is no evidence from which a
reasonable jury could conclude that Cutrubus made working conditions so intolerable that a
reasonable person in Plaintiff’s position would feel forced to resign. While Plaintiff may have
felt this way, her subjective views are irrelevant. There is no evidence that Plaintiff’s
employment was objectively intolerable.
B.
NEGLIGENT RETENTION AND SUPERVISION
Plaintiff also brings a state-law claim for negligent retention and supervision. Plaintiff’s
Complaint invoked federal question jurisdiction. Thus, her state-law claim is before the Court
38
Univ. of Tex. Sw. Med. Ctr. v. Nassar, ---U.S.---, 133 S. Ct. 2517, 2534 (2013).
39
Penn. State Police v. Suders, 542 U.S. 129, 143 (2004).
40
Fischer v. Forestwood Co., Inc., 525 F.3d 972, 980 (10th Cir. 2008).
41
Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1135 (10th Cir. 2004).
42
Sanchez, 164 F.3d at 534 (quoting Yearous v. Niobrara Cty. Mem’l Hosp., 128 F.3d
1351, 1356 (10th Cir. 1997)).
13
under supplemental jurisdiction. 43 But, as here, “‘[w]hen all federal claims have been dismissed,
the court may, and usually should, decline to exercise jurisdiction over any remaining state
claims.’” 44 Therefore, upon dismissing Plaintiff’s Title VII claims, the Court declines to
exercise supplemental jurisdiction over her negligent retention and supervision claim, and will
dismiss it without prejudice.
C.
APPOINTMENT OF COUNSEL
Plaintiff has renewed her request for appointed counsel. As explained previously, 45 the
decision as to whether to appoint counsel is within the discretion of the court. 46 For substantially
the same reasons previously stated, the Court denies Plaintiff’s Motion.
IV. CONCLUSION
It is therefore
ORDERED that Defendants’ Motion for Summary Judgment (Docket No. 25) is
GRANTED. Judgment is entered in favor of Defendants and against Plaintiff on her Title VII
claims. Plaintiff’s state-law claim for negligent retention and supervision is dismissed without
prejudice. It is further
ORDERED that Plaintiff’s Renewed Motion to Appoint Counsel (Docket No. 26) is
DENIED.
The Clerk of the Court is directed to enter judgment as set forth above and close this case
forthwith.
43
28 U.S.C. § 1367.
44
Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011) (quoting Smith v. City
of Enid, 149 F.3d 1151, 1156 (10th Cir. 1998)).
45
Docket No. 17
46
McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985).
14
DATED this 21st day of June, 2016.
BY THE COURT:
Ted Stewart
United States District Judge
15
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