Vasquez v. Trinity Mission Health and Rehab of Provo LLC
Filing
42
MEMORANDUM DECISION granting in part and denying in part 28 Motion for Summary Judgment. Signed by Magistrate Judge Evelyn J. Furse on 08/13/2013. (asp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
CATALINA VASQUEZ,
MEMORANDUM DECISION AND
ORDER
Plaintiff,
v.
TRINITY MISSION HEALTH AND REHAB
OF PROVO, LLC, dba TRINITY MISSION
HEALTH AND REHAB OR PROVO, LP,
Case No. 2:11-CV-01002-EJF
Magistrate Judge Evelyn J. Furse
Defendant.
I. INTRODUCTION
Defendant Trinity Mission Health and Rehab of Provo, LLC, dba Trinity Mission Health
and Rehab of Provo, LP (“Trinity Mission”) moved the Court for summary judgment.1 Plaintiff
Catalina Vasquez brought claims against Trinity Mission for unlawful discrimination on the
basis of sex, in violation of Title VII and the Utah Anti-discrimination Act, wrongful discharge,
defamation, false light invasion of privacy, tortious interference with prospective business
relationships, and intentional infliction of emotional distress. The Court carefully reviewed the
submissions of the parties and determined it does not need oral argument on this motion. DUCiv
R. 7-1(f).
Trinity Mission seeks summary judgment because, it contends, no genuine dispute as to
any material fact exists. Trinity Mission claims Ms. Vasquez’s cause of action for disparate
treatment discrimination fails as a matter of law because she cannot make a prima facie case.
1
The parties consented to jurisdiction by the undersigned Magistrate Judge. (ECF No. 11.)
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Furthermore, Trinity Mission claims Ms. Vasquez’s cause of action for hostile environment
discrimination fails as a matter of law because she failed to put forth evidence on any element of
this claim aside from her membership in a protected class. Trinity Mission also argues that
because Ms. Vasquez failed to plead vicarious liability, her Complaint’s failure to allege Trinity
Mission took any of the complained-of actions extinguishes her common law claims. Ms.
Vasquez responds that she has set forth sufficient evidence to withstand the Motion for Summary
Judgment, and disputed issues of material fact exist, necessitating a trial on all causes of action.
The Court GRANTS the Motion in part and DENIES the Motion in Part.
Analyzing Ms. Vasquez’s claims for wrongful discharge, sex discrimination through
disparate treatment under the Utah Anti-Discrimination Act, and sex discrimination under Title
VII of the Civil Rights Act together, the Court finds Ms. Vasquez submitted enough evidence to
create a question of fact for a jury as to whether Trinity Mission discriminated against her based
on her sex and whether that discrimination lead to her termination. For these reasons, the Court
DENIES Defendant’s request for summary judgment on Ms. Vasquez’s disparate treatment sex
discrimination claim.
The Court finds Ms. Vasquez has failed to provide evidence from which a reasonable
jury could conclude the alleged harassment rose to a level sufficiently severe or pervasive such
that it altered the conditions of her employment and created an abusive work environment. Thus,
Ms. Vasquez’s claim for hostile work environment discrimination cannot survive summary
judgment. Accordingly, the Court GRANTS Defendant’s Motion for Summary Judgment on
Ms. Vasquez’s hostile work environment claim.
With respect to Trinity Mission’s assertion that Ms. Vasquez’s common law claims fail
as a matter of law because she failed to plead vicarious liability, the Court finds Ms. Vasquez
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sufficiently pled her Complaint to include a claim for vicarious liability and has brought forth
sufficient evidence for a reasonable jury to find vicarious liability. Accordingly, the jury must
determine the question of fact: whether Ms. Vasquez’s supervisor, Mr. Pettijohn, acted within
the course and scope of his employment during the alleged incidents giving rise to this action.
Because the issue of vicarious liability presents a question of fact for the jury, the Court DENIES
Trinity Mission’s Motion for Summary Judgment on vicarious liability.
The Court finds Ms. Vasquez submitted evidence enough to create a question of fact for a
jury as to her claims for defamation per se and false light invasion of privacy arising from
comments by her supervisor that a reasonable person could conclude suggested she, a married
woman, was having an affair with a married co-worker. Thus, the Court DENIES Trinity
Mission’s request for summary judgment on these claims.
Ms. Vasquez failed to set forth sufficient facts to allow a reasonable jury to conclude
Trinity Mission intentionally interfered with Ms. Vasquez’s existing or potential economic
relations. Specifically a defendant cannot interfere with its own contract, and Ms. Vasquez puts
forth no evidence of any other economic relations she has, either existing or potential.
Therefore, Ms. Vasquez’s claim for intentional interference with prospective economic relations
fails as a matter of law. The Court GRANTS summary judgment against Ms. Vasquez’s claim
for intentional interference with prospective economic relations.
With respect to Ms. Vasquez’s claim for intentional infliction of emotional distress, this
Court finds she has failed to provide evidence that would allow a reasonable jury to conclude
that the conduct of Trinity Mission or its agent rose to the level of extreme or outrageous conduct
necessary to sustain this claim. Therefore, the Court GRANTS Trinity Mission’s Motion for
Summary Judgment on Ms. Vasquez’s claim for intentional infliction of emotional distress.
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With these decisions, the following claims remain for trial: disparate treatment sex
discrimination, defamation per se, and false light invasion of privacy.
II. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(c) authorizes summary judgment where no genuine,
disputed, triable issue of material fact remains in the case. Celotex Corp. v. Catrett, 477 U.S.
317, 327 (1986). “[T]he plain language of Rule 56(c) mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Id. at 322. In that case, “no genuine issue as to any
material fact” exists: “a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323; see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Summary judgment allows the Court
and the parties to isolate and dispose of factually unsupported claims or defenses.
A party asserting a fact must support the assertion by “citing to particular parts of
materials in the record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). In this case
Trinity Mission objected to Ms. Vasquez’s asserted evidence, including the Equal Employment
Opportunity Commission (“EEOC”) investigatory materials, as inadmissible hearsay and lacking
foundation. However, the evidence provided to support a summary judgment motion need only
be capable of presentation in an admissible form. See Fed. R. Civ. P. 56(c)(2). Thus, the
information reviewed by a court in response to a summary judgment motion may include hearsay
if the plaintiff could call a witness to testify to the information or present the material in a
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manner that does not constitute hearsay. In this case, Trinity Mission’s objections go to notes of
conversations with people Ms. Vasquez presumably1 could call in her case and who could testify
based on their personal knowledge. Therefore, the Court will consider this evidence at summary
judgment.
In deciding a motion for summary judgment, the Court must “view the evidence and
draw reasonable inferences therefrom in the light most favorable to the nonmoving party.”
Burke v. Utah Transit Auth., 462 F.3d 1253, 1258 (10th Cir. 2006) (citation omitted). The Court
therefore focuses on whether reasonable jurors “can properly proceed to find a verdict for the
party . . . upon whom the onus of proof is imposed.” Liberty Lobby, 477 U.S. at 252 (emphasis
in original). With this standard in mind, the Court sets forth below the facts viewed in a light
most favorable to Ms. Vasquez.
III. FACTUAL BACKGROUND
The parties do not dispute the following facts. Defendant Trinity Mission employed Ms.
Vasquez from January 9, 2008, to approximately May 21, 2009, as a dietary manager overseeing
food preparation and service for residents of a rehabilitation care center. Ms. Vasquez managed
approximately ten employees. As part of the hiring process, Ms. Vasquez received a copy of
Trinity Mission’s employee handbook, read the policies therein, and agreed to adhere to them.
Ms. Vasquez received two performance evaluations while working for Trinity Mission.
The first evaluation covered the period from her hiring until April 25, 2008, and found her
performance overall satisfactory. (ECF No. 34-1 at 5.) David Pettijohn took over as Ms.
Vasquez’s direct supervisor and administrator of the facility in January 2009. Ms. Vasquez
received her next evaluation on March 4, 2009, from Mr. Pettijohn. (ECF No. 34-3 at 4.) The
1
Trinity Mission made no assertions regarding the unavailability of these witnesses and did not
provide any other basis on which the Court would exclude the testimony.
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evaluation has both “Satisfactory” and “Needs Improvement” marked for overall evaluation.
(Id.) The “Needs Improvement” has a circle around it with the initials DP next to it, indicating
Mr. Pettijohn found Plaintiff’s performance needing improvement. (Id.) The comment
underneath the evaluation states: “Attendance with family health concerns is a problem.” (Id.)
All subcategories on the evaluation place Ms. Vasquez’s performance in the satisfactory to
exceptional range. (Id. at 2–3.) After this evaluation but retroactive to January 23, 2009, Ms.
Vasquez received a pay increase. (ECF No. 34-4 at 2.)
The following incident occurred during Ms. Vasquez’s employment:
A.
Q.
A.
The marketing director at the time was Gary. He had come here from – had lost
his job in California, had come here to work. He was – he was old enough to be
my father, about my father’s age. Renata didn’t like him. If Renata didn’t like
you, then you were kind of just shunned. And we got along great. His wife was
Italian. I’m Hispanic. His – we would go to lunch, me, him and Sue. And we,
you now, formed a relationship. His wife would call. We called her Queenie.
And we, you know, we talked to her, and he let us stay at - she would call, we’d
always have lunch.
She would always call and we’d talk to her. His dad was ailing. His son’s wife
had gotten pregnant and found out that the baby had some kind of severe – severe
illness and deformity, it was their first child. He was upset. I text him Monday
morning – I wasn’t there Friday. I text him Monday morning and said, Hope
everything’s okay, Gary. How are you, type of text. And I got a text back saying,
I don’t know how Gary is, but I’m fine. So I thought, Well, maybe I text the
wrong person.
So when I got to work, to stand up, Pettijohn had the marketing phone on his hip
because it had the case that hooks into your belt. And I said, Oh, that explains the
text. And he kind of just kind of chuckles. And he goes — and Crystal, the
assistant ADON says, What text? And David goes, Well, Cat was texting Gary
this morning. And he gets up the phone and goes, Yeah, she was texting, Hi,
Lover, how are you? I miss you, XOXOXO. And I said to him, That is not
funny, I’m not having an affair with Gary, and that is out of line. And he just
laughed.
Okay. Did he say you were having an affair with him?
What do you think “lover” means? I mean, that’s basically coming out saying
that there’s something going on.
(Vasquez Dep. 68:7–69:18, ECF No. 28-1.)
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Trinity Mission suspended Ms. Vasquez on April 27, 2009, and formally terminated her
employment on May 21, 2009. By an undated document, a coworker filed a written complaint
against Ms. Vazquez alleging Ms. Vasquez had grabbed her face on April 25, 2009. On April
28, 2009, another employee filed a complaint alleging similar behavior. A third employee
submitted a letter on May 5, 2009, alleging Ms. Vasquez treated her rudely and intimidated her
on April 27, 2009. Following Ms. Vasquez’s termination, she filed a claim with the Utah
Antidiscrimination and Labor Division alleging her direct supervisor, David Pettijohn,
discriminated against her based on her sex and used inappropriate sex-based comments toward
her culminating in her termination.
In addition to the uncontroverted facts, Ms. Vasquez submitted evidence to support the
following facts2:
Mr. Pettijohn had the authority to hire or fire anyone at the facility. When Mr. Pettijohn
took over, he instructed Ms. Vasquez and the other managers, who were mostly female, that at
no time should she go above his head or complain to anyone aside from him, or he would find a
way to fire her. Mr. Pettijohn repeated this instruction to her and others at least two to three
times. Ms. Vasquez did not believe she could complain to another supervisor for fear she would
lose her job. Despite the contents of the employee handbook, Ms. Vasquez did not believe her
employer observed a policy of zero tolerance of any coercion, intimidation, retaliation,
interference, or discrimination if an employee chose to file a complaint or otherwise assist in an
investigation. Ms. Vasquez asserts she personally observed the regional manager of Trinity
Mission, Brian Brinkerhoff, tell those who complained about Mr. Pettijohn to “suck it up.”
2
Trinity Mission argues that Ms. Vasquez’s Declaration does not represent evidence, and
the Court should disregard it. The Court disagrees and notes most of the assertions in the
Declaration also appear in Ms. Vasquez’s deposition, and those that do not, do not contradict the
deposition. (Cf. ECF No. 28-1 at 19–22, 30–33, 39, 42, 46, 50–51, 56–57, 66–69, 71–75, 78–80,
83 with ECF No. 33.)
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During Ms. Vasquez’s employment, Trinity Mission took two disciplinary actions against
her. The first time, her former boss wrote her up for putting Oreo cookies out in the lobby rather
than freshly baked cookies. The second time, Mr. Pettijohn wrote her up for insubordination for
failing to call him the second day she missed work as a result of caring for a sick niece in the
hospital.
In general, Ms. Vasquez had a difficult relationship with Mr. Pettijohn and put forth the
following evidence in support of her claims. Mr. Pettijohn would cut off female employees who
attempted to joke during meetings but allowed men to do so. Once, Mr. Pettijohn commented in
a meeting with the department heads, who were mostly women, that men in a particular state
have sex with animals. During one meeting, Mr. Pettijohn responded to a female manager by
saying “where did you get that smart mouth from, your mother?” Mr. Pettijohn talked down to
female department managers, asking them if they “need a box of tissues” because they might
need to “go cry in the corner” when he told them something he perceived them not to like. Mr.
Pettijohn would roll his eyes when the female managers would speak but would act respectfully
when male managers spoke. Mr. Pettijohn frequently cut off female managers when they spoke
if he disagreed with them. Mr. Pettijohn never treated male employees derogatorily.
During an evaluation, Mr. Pettijohn told Ms. Vasquez that if she could not balance her
work and home life maybe she should stay home, be a mom, and take care of her children. He
went on to threaten to “find a way to fire her” if one of her children ever got sick again. Mr.
Pettijohn commented one or two times a week to a different female manager that women did not
belong in the workplace, but rather should have children and stay home to care for their families.
(ECF No. 34-11 at 2.) Mr. Pettijohn further made fun of Ms. Vasquez when she used
polysyllabic words by saying things like “I didn’t know you knew how to use such big words.”
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In particular, Ms. Vasquez recalls she used the word “congenial,” to which Mr. Pettijohn
responded “Cat can use big words now, can’t she?” Mr. Pettijohn referred to the male managers
as either “the boy’s club” or “the men’s club,” saying “It’s you girls and then it’s just us boys
club, type of thing all the time.”
Ms. Vasquez testified that this behavior caused her to fear for her job, suffer from stress,
and have headaches regularly for four months.
Regarding the complaints made just prior to her termination, Ms. Vasquez denies any
type of physical altercation with any employee. Another employee claims to have overheard the
complainants talking and saying they “got [Ms. Vasquez] good, and they made it up, and . . . got
[her] fired.” (Vasquez Dep. 82:2–6, ECF No. 28-1; see also ECF No. 34-8 at 3.) Further, Ms.
Vasquez testified that Trinity Mission admitted it did not fire her because of the reported
physical abuse. Specifically, in a phone call with human resources following a complaint letter
from Ms. Vasquez, a human resources representative told her that “all [she] ever did was yell at
[her] staff and that — that basically all [her] staff didn’t like [her] and — it had nothing to do
with the grabbing the face.” (Vasquez Dep. 42:1–10, ECF No. 28-1.)
Additionally, Ms. Vasquez asserts Trinity Mission did not follow its strict policy
requiring Trinity Mission immediately to escort an alleged physical abuser from the facility. Ms.
Vasquez’s former supervisor told her “you know the rules, you know you needed to be removed
from the premises.” (Vasquez Dep. 46:1–9, ECF No. 28-1.) Another employee confirmed that
Trinity Mission had a policy of immediate removal following an allegation. (ECF No. 34-8 at
2.) After the alleged altercations, Ms. Vasquez continued to work for three days where she
participated in an inspection of the facility by an outside entity. This failure to follow policy,
Ms. Vasquez claims, undermines Trinity Mission’s current assertion that it fired her because of
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the complaints of physical abuse. Immediately following the inspection, Trinity Mission
informed Ms. Vasquez it intended to suspend her for three to five days. Trinity Mission gave
Ms. Vasquez a letter informing her of the bases for her suspension as follows: allegedly striking
a subordinate’s face, hiring a family member without Mr. Pettijohn’s knowledge, and placing an
employee on light duty without informing Mr. Pettijohn. Ms. Vasquez denies all of these
allegations, and Trinity Mission has not put forth any evidence regarding either the hiring or light
duty claims.
Ms. Vasquez texted Brian Brinkerhoff the morning of her suspension, telling him she felt
Trinity Mission was on a witch-hunt. Following her suspension, Ms. Vasquez drafted a “formal”
e-mail to Brian Brinkerhoff asking the human resource director for Trinity Mission to “handle
this thing” because she felt she was “being railroaded” and that Mr. Pettijohn held a bias against
her and could not perform his role objectively. (Vasquez Dep. 41:12–44:23, ECF No. 28-1.)
Mr. Brinkerhoff forwarded the letter to human resources, who contacted Ms. Vasquez. Ms.
Vasquez felt Mr. Pettijohn had subjected her to an unequal playing field and that she had no
recourse because Trinity Mission had already made its decision to terminate her. (Vasquez Dep.
42:10–23, ECF No. 28-1.)
Two days after her phone conversation with Trinity Mission’s human resource person,
Mr. Pettijohn met with Ms. Vasquez, informed her “the company had made a conclusion,” and
asked her to resign. (Vasquez Dep. 45:2–5, ECF No. 28-1.) Ms. Vasquez refused to resign, and
Trinity Mission terminated her. (Vasquez Dep. 45:5–7, ECF No. 28-1.) Ms. Vasquez asserts she
never received notice, as per policy, of the reason for her termination.
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Additionally, Ms. Vasquez asserts that despite her request for an investigation following
her suspension, and again after her termination, that Trinity Mission never investigated the
alleged incidents—the now purported reason behind her termination.
During the EEOC investigation a female co-worker reported that Mr. Pettijohn stated that
Ms. Vasquez only hired her because the co-worker and Ms. Vasquez were sleeping together.
(ECF No. 34-11 at 2.)
IV. DISCUSSION
A.
SEX DISCRIMINATION–UADA & TITLE VII
This Court has jurisdiction to hear Ms. Vasquez’s claims of sex discrimination because
she timely filed charges of employment discrimination with the EEOC, received and acted upon
the EEOC’s statutory notice of her right to sue pursuant to 42 U.S.C. section 2000e–5(f)(1), and
makes a claim under a federal statue, see 28 U.S.C. §1331.
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating
“against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1). The Utah legislature modeled the Utah Anti-Discrimination Act
(“UADA”) “after Title VII of the Civil Rights Act of 1964.” Gottling v. P.R. Inc., 2002 UT 95, ¶
16, 61 P.3d 989, 995 (Utah 2002) (quoting the legislative history of the UADA). Because the
UADA sets forth the same elements as required by a Title VII claim, Utah courts impose the
Title VII analysis to UADA claims. See Viktron/Lika v. Labor Comm’n, 2001 UT App 394, ¶ 6,
38 P.3d 993, 995. Thus, this Court will analyze Ms. Vasquez’s federal and state discrimination
claims simultaneously.
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Further, the UADA subsumed any common law cause of action for wrongful termination
for sex discrimination. See Gottling, 2002 UT 95, ¶ 9 (holding the plain language of the UADA
shows an “explicit legislative intention to preempt all common law remedies for employment
discrimination”). Hence, the Court will not separately analyze the wrongful termination claim
because Ms. Vasquez admits it arises from the same facts on which she claims to have suffered
sex discrimination under both federal and state statutory law.
In the instant case, Ms. Vasquez pled sex discrimination under Title VII and the UADA,
alleging disparate treatment and hostile work environment. The Court will analyze these issues
separately.
1.
Disparate Treatment
A plaintiff can prove sex discrimination with either direct or circumstantial evidence.
Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008) (citation
omitted). “Direct evidence demonstrates on its face that the employment termination was
discriminatory. Circumstantial evidence permits the fact finder to draw a reasonable inference
from facts indirectly related to discrimination that discrimination, in fact, has occurred.” Id.
(internal citations omitted). At the summary judgment stage, a plaintiff must put forth sufficient
evidence for a rational jury to conclude—with either direct or circumstantial evidence—that the
defendant intentionally discriminated against her. See id. (citation omitted).
In opposition to the summary judgment motion, Ms. Vasquez put forth circumstantial
evidence to demonstrate that a rational jury could conclude Trinity Mission intentionally
discriminated against her. “Where a plaintiff relies on circumstantial evidence, the Supreme
Court has established a three step burden-shifting framework for determining whether a
plaintiff’s evidence raises an inference of invidious discriminatory intent sufficient to survive
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summary judgment.” Id. (citing McDonnell Douglas Corp v. Green, 411 U.S. 792, 802–05
(1973)).
“This three-step analysis first requires the plaintiff to prove a prima facie case of
discrimination.” Adamson, 514 F.3d at 1145 (citation omitted); Texas Dept. of Cmty. Affairs v.
Burdine, 450 U.S. 248, 252–53 (1981). If the plaintiff establishes a prima facie case, the burden
shifts to the defendant to produce a legitimate, non-discriminatory reason for its employment
action. Burdine, 450 U.S. at 253. Third, if the defendant offers this evidence, the plaintiff must
show her “gender, or other illegal consideration was a determinative factor in the defendant’s
employment decision, or show that the defendant’s explanation for its action was merely
pretext.” Adamson, 514 F.3d at 1145 (citation omitted).
At the summary judgment stage in a Title VII case, a moving defendant prevails as a
matter of law unless a plaintiff produces evidence from which a rational jury could infer the
ultimate fact of discrimination or retaliation. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 146–153 (2000). Such evidence can consist of facts sufficient to discredit the
nondiscriminatory business reason the defendant produced, although the Supreme Court
emphasized in Reeves that responsibility remains on the plaintiff to oppose the motion with proof
sufficient to support a finding of discrimination. Id. at 147. “Proof that the defendant’s
explanation is unworthy of credence is simply one form of circumstantial evidence that is
probative of intentional discrimination, and it may be quite persuasive.” Id. (citing St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 517 (1993)). A plaintiff’s prima facie case, combined with
sufficient evidence to discredit the employer’s asserted justification, may suffice to preclude
summary judgment.
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a.
Prima Facie Case
Under Burdine, to prove intentional discrimination, a plaintiff must first establish a prima
facie case that raises an inference of discriminatory intent. 450 U.S. at 252–54. “The burden of
establishing a prima facie case of disparate treatment is not onerous.” Id. at 253. Once plaintiff
establishes a prima facie case, she enjoys a presumption that defendant discriminated against her.
Id. If the plaintiff puts forth sufficient evidence, and the employer remains silent in the face of
the presumption, the court must enter judgment for the plaintiff because no issue of fact remains
in the case. Id. at 253–54.
Under McDonnell Douglas/Burdine, a plaintiff must first establish a prima facie case by
showing that (1) she belonged to a protected class; (2) she had sufficient qualifications for her
job and performed satisfactorily; (3) the employer discharged her despite her qualifications; and
(4) some additional evidence gives rise to an inference of discrimination. Alfonso v. SCC Pueblo
Belmont Operating Co., 912 F. Supp. 2d 1018, 1026 (D. Colo. 2012). “The critical prima facie
inquiry in all cases is whether the plaintiff has demonstrated that the adverse employment action
occurred under circumstances which give rise to an inference of unlawful discrimination.”
Adamson, 514 F.3d at 1151 (citations and internal quotation marks omitted).
A plaintiff has established a prima facie case if the undisputed facts, viewed in the
light most favorable to the plaintiff, would allow a reasonable jury to draw an
inference of discrimination. An inference of discrimination arises when there is a
“logical connection” between each element of the prima facie case and the alleged
discrimination.
Alfonso, 912 F. Supp. 2d at 1026 (internal citations omitted).
In the instant case, the parties agree Ms. Vasquez qualifies as a member of a protected
class: she is female. Additionally, Trinity Mission does not claim it discharged Ms. Vasquez
because she lacked qualifications. Trinity Mission does claim Ms. Vasquez cannot prove she
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performed her job satisfactorily. Courts permit plaintiffs to refer to past performance evaluations
as evidence of job performance and do not consider prior disciplinary action necessarily
inconsistent with adequate job performance. See id. at 1026–27. Courts will discount reviews or
disciplinary actions that precipitate the termination and that the parties dispute. Id. at 1027. In
this case, Ms. Vasquez’s performance review and disciplinary action prior to Mr. Pettijohn’s
becoming her supervisor suffice to allow a rational jury to conclude she performed her job
adequately. The disciplinary action following Mr. Pettijohn’s becoming Ms. Vasquez’s
supervisor and the job review all fall within the discrimination charge in this case; that is, Mr.
Pettijohn intended to fire Ms. Vasquez from the time he started because he thought women
should stay at home and care for their families. Viewing the evidence in a light most favorable
to Ms. Vasquez, these actions do not prevent her from showing adequate job performance.
Defendant also claims Ms. Vasquez has failed to provide evidence sufficient to allow a
reasonable jury to make an inference of discrimination. Ms. Vasquez need not specifically show
that Trinity Mission terminated her because of a discriminatory motive. Id. Rather, Ms.
Vasquez must “allege facts sufficient to permit an inference that, more likely than not, her
termination was motivated by discrimination.” Id. (citation omitted). “Evidence relevant to this
inquiry includes: ‘actions or remarks made by decisionmakers that could be viewed as reflecting
a discriminatory animus . . . , preferential treatment given to employees outside the protected
class . . . or, more generally, upon the timing or sequence of events leading to plaintiff’s
termination.’” Id. (quoting Plotke v. White, 405 F.3d 1092, 1101 (10th Cir. 2005) (alterations in
original)). Plaintiffs may rely on derogatory remarks made by a supervisor, because the remarks
“‘reflect[] a discriminatory animus’ on the part of [the supervisor], one of the two decision
makers in plaintiff’s termination.” Alfonso, 912 F. Supp. 2d at 1027 (“holding that age-related
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remarks made by a decision maker were sufficient to establish a prima facie case of termination
on the basis of age where there was a temporal nexus between the remarks and the decision to
terminate” (citing Hare v. Denver Merch. Mart, Inc., 255 Fed. App’x 298, 303 (10th Cir. 2007)).
Ms. Vasquez put forth evidence from which a rational jury could conclude that her
supervisor, Mr. Pettijohn, subjected her to disparate treatment because he held a gender bias
against females and that he threatened to “find a way to fire her.” Within five months of Mr.
Pettijohn’s taking over supervision of Ms. Vasquez, he terminated her. During that time,
according to the evidence Ms. Vasquez submitted, she and her female coworkers experienced
gender discrimination through disparate treatment in the workplace. Specifically, Mr. Pettijohn
prevented females from participating in company meetings by rolling his eyes at them; referring
to “the boy’s club”; joking with men but cutting off women; asking if the women needed a box
of tissues when he disagreed with them, implying that females were too emotional; commenting
on their use of “big” words; and accusing at least one of them of having a “smart mouth,” which
he then tried to attribute to her mother. Furthermore, Ms. Vasquez alleges Mr. Pettijohn told her
and other female employees that they did not belong in the workplace and maybe they should
stay home, be mothers, and take care of their children. A rational jury could determine Mr.
Pettijohn’s actions and remarks reflect a discriminatory animus, giving rise to an inference of
discrimination. Thus, Ms. Vasquez has established a prima facie case of gender discrimination
for purposes of summary judgment, shifting the burden to the Trinity Mission.
b.
Proffered Legitimate Non-Discriminatory Reason for Termination
Under Burdine’s second step the defendant must articulate a “legitimate, nondiscriminatory reason” for its action. Burdine, 450 U.S. at 254. The defendant need only
produce some evidence sufficient to create an issue of fact. Id. (“The defendant need not
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persuade the court that it was actually motivated by the proffered reasons.”). In the instant case,
Trinity Mission has offered evidence it terminated Ms. Vasquez for poor work performance,
reprimands, unsatisfactory management, and the use of verbal and physical violence against
subordinate employees. Under Burdine, articulation of these reasons rebuts the presumption of
discrimination created by establishment of the prima facie case. Id. at 255, 255 n.10.
“Poor performance is a quintessentially legitimate and nondiscriminatory reason for
termination.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1125 (10th Cir. 2005) (citing
Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1218 (10th Cir. 2002)). Trinity Mission argues
it terminated Ms. Vasquez because she did not perform her job duties satisfactorily. Near or at
the time of her termination, three of Ms. Vasquez’s subordinate employees had filed written
complaints against her with the company outlining complaints of physical violence, verbal abuse,
and poor management.
Having articulated reasons for Ms. Vasquez’s discharge and provided some evidence to
support those reasons, Defendant has satisfied its burden of production and rebutted the
presumption created by the prima facie case.
c.
Pretext
The third part of the inquiry requires the plaintiff to come forth with evidence “that the
legitimate reasons offered by the defendant were not its true reasons, but were a pretext for
discrimination.” Burdine, at 253. Because Trinity Mission proffered evidence of a facially nondiscriminatory reason for the employment action, “the presumption of discrimination established
by the prima facie showing ‘simply drops out of the picture.’” Bryant, 432 F.3d at 1125(quoting
St. Mary’s Honor, 509 U.S. at 511).
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At summary judgment, the Court does not decide the “true” reasons for termination
because that determination rests largely upon the credibility of the parties. See Reeves, 530 U.S.
133, 150–51; Bryant, 432 F.3d at 1125; Liberty Lobby, 477 U.S. at 249 (“[A]t the summary
judgment stage the judge’s function is not [herself] to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine issue for trial.”). The Court must
decide whether sufficient evidence exists to allow a rational jury to conclude that Trinity
Mission’s stated justifications for terminating the Ms. Vasquez reflect pretext for discriminatory
motivations. Alfonso, 912 F. Supp. 2d at 1028; see also Bryant, 432 F.3d at 1125 (“Evidence
tending to show pretext permits an inference that the employer acted for discriminatory
reasons.”); Celotex, 477 U.S. at 322 (“Rule 56(c) mandates the entry of summary judgment . . .
against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.”).
“’[I]f a plaintiff advances evidence establishing a prima facie case and evidence upon which a
factfinder could conclude that a defendant’s alleged nondiscriminatory reasons for the
employment decisions are pretextual, the case should go to the factfinder.’” Bryant, 432 F.3d at
1125 (citation omitted).
A plaintiff can demonstrate pretext in two ways: “directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.” See Burdine, 450 U.S. at 256
(citation omitted).
The trier of fact may infer
the ultimate fact of discrimination from the falsity of the employer’s
explanation. . . . “The factfinder’s disbelief of the reasons put forward by
the defendant (particularly if disbelief is accompanied by a suspicion of
mendacity) may, together with the elements of the prima facie case, suffice
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to show intentional discrimination. Thus, rejection of the defendant’s
proffered reasons will permit the trier of fact to infer the ultimate fact of
intentional discrimination.”
Reeves, 530 U.S. at 147 (quoting St. Mary’s Honor, 509 U.S. at 511). A plaintiff may offer
evidence of pretext through showing “‘such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that
a reasonable factfinder could rationally find them unworthy of credence and hence infer that the
employer did not act for the asserted non-discriminatory reasons.’” Bryant, 432 F.3d at 1125
(citations omitted).
At [the summary judgment] stage, if a plaintiff advances evidence
establishing a prima facie case and evidence upon which a factfinder could
conclude that the defendant’s alleged nondiscriminatory reasons for the
employment decisions are pretextual, the case should go to the factfinder.
Bryant, 432 F.3d at 1125 (citation omitted).
Ms. Vasquez offers the following facts to show pretext: she put forth evidence that a coworker overheard the complainants of physical abuse commenting that they “got [Ms. Vasquez]
good, and they made it up, and . . . got [her] fired.” Further, Ms. Vasquez submitted evidence
that Trinity Mission failed to follow its own termination protocol and company policy by not
investigating the claims, by allowing Ms. Vasquez to work two days after her subordinate
employee(s) complained of abuse and mistreatment, and by not telling Ms. Vasquez why it fired
her. In addition, Ms. Vasquez testified to having a conversation with a human resources
representative who admitted Trinity Mission did not fire her because of the allegations about
grabbing subordinates’ faces.
This evidence creates a material issue of fact about the reason for Ms. Vasquez’s
termination. When the Court considers this evidence coupled with the evidence of disparate
treatment, the Court can only conclude that Ms. Vasquez has demonstrated a material issue of
19
fact that a jury must resolve. Accordingly, for these reasons, this Court DENIES Trinity
Mission’s motion for summary judgment based on Ms. Vasquez’s claims of disparate treatment
sex discrimination.
2.
Hostile Work Environment
In addition to Ms. Vasquez’s claim of disparate treatment sex discrimination, she claims
Trinity Mission engaged in sex discrimination by allowing a hostile work environment to
pervade the workplace and result in her termination.
Trinity Mission put forth evidence that Ms. Vasquez never reported any harassment as
provided for by company policy and moves for summary judgment in part because of this failure.
An employer may prove an affirmative defense to a hostile work environment claim by
exercising “reasonable care to prevent and correct promptly any sexually harassing behavior”
and showing the plaintiff “unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer,” including a reporting requirement or policy. Pinkerton
v. Colo. Dep’t of Transp., 563 F.3d 1052, 1061–62 (10th Cir. 2009). An employer may not
claim this affirmative defense when a supervisor’s actions “‘culminate[] in a tangible
employment act, such as discharge, demotion, or undesirable reassignment.’” Id. at 1059
(quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998)). Because the evidence
offered for purposes of summary judgment could support a finding of a tangible employment
action by the supervisor alleged to have created the hostile environment, Trinity Mission does
not receive the benefit of the affirmative defense.
To survive summary judgment on a hostile work environment claim, a plaintiff must
provide evidence from which a rational jury could conclude, based on the totality of the
circumstances, sexual harassment pervaded the workplace or rose to a level so severe such that it
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altered the terms or conditions of employment. See Chavez v. New Mexico, 397 F.3d 826, 832–
33 (10th Cir. 2005). Furthermore, “[t]he ‘plaintiff must produce evidence that she was the object
of harassment because of her gender.’” Id. at 833 (emphasis in original) (quoting Penry v. Fed.
Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998)). In determining whether
conduct rises to this level, the Court considers: “‘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. at 832–33
(citing O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1098 (10th Cir. 1999)); see also
Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998). “[A] sexually objectionable
environment must be both objectively and subjectively offensive, one that a reasonable person
would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher,
524 U.S. at 787; see also Morris, 666 F.3d at 664.
“Accordingly, the 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.” Morris v. City of Colorado Springs, 666 F.3d 654, 664 (10th Cir. 2012); see also EEOC
v. Sunbelt Rentals, Inc., 521 F.3d 306, 316 (4th Cir. 2008) (“Workplaces are not always
harmonious locales, and even incidents that would objectively give rise to bruised or wounded
feelings will not on that account satisfy the severe or pervasive standard. Some rolling with the
punches is a fact of workplace life.”). “A recurring point in [Supreme Court] opinions is that
‘simple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the ‘terms and conditions of employment.’” Faragher, 524
U.S. at 788 (internal citations omitted). “Properly applied, th[e standards] will filter out
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complaints attacking ‘the ordinary tribulations of the workplace, such as the sporadic use of
abusive language, gender-related jokes, and occasional teasing.’” Id. (citation omitted).
Ms. Vasquez unquestionably perceived her environment as abusive and hostile and
attributes that abuse and hostility to her gender. In assessing whether an objective, reasonable
person could similarly perceive the environment, the Court must look at the evidence provided
through a precedential lens in determining whether Ms. Vasquez’s claim will survive summary
judgment. “A plaintiff does not make a sufficient showing of a pervasively hostile work
environment ‘by demonstrating a few isolated incidents of . . . sporadic . . . slurs. . . . Instead,
there must be a steady barrage of opprobrious . . . comments.’” Morris, 666 F.3d at 666 (quoting
Chavez, 397 F.3d at 832).
Other courts have found that isolated events and offensive utterances, over the course of
employment, did not amount to an actionable hostile work environment under Title VII. See
Morris, 666 F.3d at 658–59, 664–66 (upholding summary judgment for the employer on hostile
work environment claims where plaintiff claimed her supervisor made demeaning comments to
her and treated female employees differently than male, flicked her with his finger in her head
twice, threw pericardium tissue at her, and joked about it); Sprague v. Thorn Americas, Inc., 129
F.3d 1355, 1365–66 (10th Cir. 1997) (upholding summary judgment for the employer where
plaintiff provided evidence of five separate incidents of sexist comments or actions by a coworker who became her supervisor, over sixteen months); Gaff v. St. Mary’s Reg’l Med. Ctr.,
506 Fed. App’x 726, 727–29 (10th Cir. 2012) (upholding summary judgment for employer
where co-worker commented that plaintiff’s husband was going to leave her for another woman,
was “a little too friendly and smiled and stared at her a little too much,” and told her she needed
a “good f[---]”).
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In the instant case, Mr. Pettijohn did not physically threaten or harm Ms. Vasquez. Ms.
Vasquez’s testimony does not support a claim that she labored under a steady barrage of gender
motivated incidents or comments. Rather, Ms. Vasquez put forth evidence of isolated incidents
of comments, generally referencing an anti-woman sentiment, one alleged incident where Mr.
Pettijohn made a vague comment about men having sex with animals, and one alleged incident
where Mr. Pettijohn implied Ms. Vasquez was having an affair with a co-worker. Further, Ms.
Vazquez expresses great frustration with Mr. Pettijohn’s instructions not to go over his head with
complaints. She does not provide any evidence, however, to suggest that Mr. Pettijohn gave that
instruction because of her gender. (See Vasquez Dep. at 30:9-33:25 (indicating he gave the
instruction to both male and female employees), ECF No. 28-1 at 9-10.)
Apart from these isolated incidents, the only evidence regarding the frequency of antiwoman statements comes from the EEOC file. Specifically, Amanda White, another Trinity
Mission employee, told the EEOC investigator that Mr. Pettijohn made anti-woman statements
one to two times per week. Yet Ms. Vasquez offered no evidence suggesting she heard or found
out about these comments prior to her termination. Ms. Vasquez’s deposition and declaration
recall a couple of incidents but nowhere mention the frequency of such comments. Similarly, no
evidence suggests Ms. Vasquez knew about allegations of a sexual relationship between Ms.
Vasquez and Ms. White resulting in Ms. White’s hiring until after Ms. Vasquez filed this case.
Because Ms. Vasquez did not know about the comments, they do not contribute to the hostile
work environment she alleges in this case. See Tademy v. Union Pac. Corp., 614 F.3d 1132,
1146 (10th Cir. 2008) (citation omitted) (noting the court will consider evidence regarding the
work atmosphere “as long as [plaintiff] presents evidence that he knew about the offending
behavior”).
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While Mr. Pettijohn and Ms. Vasquez obviously did not get along, Mr. Pettijohn’s
actions do not rise to the level that an objective observer would find the environment hostile or
abusive. The totality of the circumstances does not contain sufficient facts to allow a reasonable
jury to conclude the harassing conduct qualified as so severe or pervasive that it altered the terms
or conditions of her employment. For these reasons, the Court GRANTS Trinity Mission’s
Motion for Summary Judgment as to Ms. Vasquez’s Title VII hostile work environment claim.
B.
UTAH COMMON LAW CLAIMS4
1.
Pleading Vicarious Liability
Trinity Mission’s Motion for Summary Judgment argues that Ms. Vasquez’s common
law tort claims fail because Ms. Vasquez failed to plead vicarious liability. A plaintiff need only
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp v.
Twombly, 550 U.S. 544, 570 (2007). In light of well-pled factual allegations, courts will assume
the veracity of the allegations and may draw plausible inferences based on the alleged
misconduct. Twombly, 550 U.S. at 556.
Ms. Vasquez’s Complaint asserts her direct supervisor, a high level employee for Trinity
Mission, subjected her to actionable behavior. The Complaint further alleges that Trinity
Mission did all acts alleged through its employees or representatives in the course and scope of
their employment. (ECF No. 2 at ¶ 4.) On these allegations, the Court finds Ms. Vasquez’s
Complaint sufficiently pled vicarious liability.
2.
Vicarious Liability
Having determined Ms. Vasquez sufficiently pled vicarious liability, the Court must
decide if a material dispute of fact exists regarding whether Mr. Pettijohn acted under the scope
of his employment with Trinity Mission when he commented on an errant text message received
4
The Court has supplemental jurisdiction over these claims pursuant to 28 U.S.C. section 1367.
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from Ms. Vasquez in front of at least one other Trinity Mission employee. Trinity Mission only
has liability for Mr. Pettijohn’s actions if he acted within the course and scope of his
employment during the above-referenced incident. See Clover v. Snowbird Ski Resort, 808 P.2d
1037, 1040 (Utah 1991) (noting the doctrine of respondeat superior holds employers
“vicariously liable for the torts their employees commit when the employees are acting within
the scope of their employment”). Deciding whether an alleged offending employee acted within
the course and scope of employment often poses a question of fact for submission to the jury. Id.
“[W]henever reasonable minds may differ as to whether the [employee] was at a certain time
involved wholly or partly in the performance of [the employer’s] business or within the scope of
employment,” the jury must decide the issue. Id. (citation omitted). When an employee’s
activity falls so clearly within or without the scope of employment that reasonable minds would
not differ, the court may decide the issue as a matter of law. Birkner v. Salt Lake Cnty., 771 P.2d
1053, 1057 (Utah 1989) (citation omitted).
Utah courts use a three-part test, outlined in Birkner, to make scope of employment
determinations. An employee’s conduct must fall within the general kind of conduct the
employer employs the employee to perform; the employee’s conduct must occur within the
employee’s work hours and the work’s ordinary spatial boundaries; and the purpose of serving
the employer’s interest must motivate the employee’s conduct at least in part. Id. at 1056–57
(following Restatement (Second) of Agency § 228 (1958) (defining “scope of employment”)).
In Birkner, the court indicated acts falling within the scope of employment include “those acts
which are so closely connected with what the servant is employed to do, and so fairly and
reasonably incidental to it, that they may be regarded as methods, even though quite improper
ones, of carrying out the objectives of the employment.” Id. at 1056 (quoting Prosser and
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Keeton on the Law of Torts § 70, at 502 (5th ed. 1984)). Additionally, Utah courts have found
“[s]cope of employment questions are inherently fact bound.” Newman v. White Water
Whirlpool, 2008 UT 79, ¶ 10, 197 P.3d 654 (citation omitted) (upholding reversal of summary
judgment on the grounds that reasonable minds might differ as to whether employee/agent acted
within the course and scope of employment at the time of an auto accident, thus presenting a
genuine issue of material fact for the jury).
For purposes of this inquiry, the Court will review each prong of the Birkner test
separately.
a.
Agent/Employee Conduct
The first scope of employment criterion set forth in Birkner requires that an employee’s
conduct constitute the kind the employer hired him/her to perform or “‘the employee must be
about the employer’s business and the duties assigned by the employer, as opposed to being
wholly involved in a personal endeavor.’” Christensen v. Swenson, 874 P.2d 125, 128 (Utah
1994) (quoting Birkner, 771 P.2d at 1056–57).
Mr. Pettijohn’s conduct consisted of receiving and commenting about a text message he
mistakenly received from Ms. Vasquez, a subordinate employee, in front of at least one other
employee. Ms. Vasquez argues that Mr. Pettijohn’s conduct involved the use of a company
phone, that he made his statements in front of co-workers, and therefore the comments involved
“work-related” matters making his conduct employment related. Trinity Mission argues that Mr.
Pettijohn merely made a joke during work hours and that Trinity Mission did not employ Mr.
Pettijohn to make jokes. Trinity Mission further asserts that Mr. Pettijohn did not make the
comment in the scope of his employment nor did making such a comment fulfill a duty required
by the company.
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From the evidence submitted, a jury could find that Trinity Mission hired Mr. Pettijohn to
supervise employees, including Ms. Vasquez, by holding meetings, among other things. As part
of his job, Trinity Mission provided a cell phone. A jury could find a joke/comment made
incident to a meeting falls within the employer’s business. For these reasons, examination of the
first Birkner criterion becomes a question of fact for a jury to determine whether Mr. Pettijohn’s
conduct—alleging/joking about an affair between coworkers in the context of a meeting—falls
under the scope of employment as part of his supervisory duties.
b.
Work Hours and Spatial Boundaries of Employment
The second Birkner criterion states “the employee’s conduct must occur within the hours
of the employee’s work and the ordinary spatial boundaries of the employment.” Birkner, 772
P.2d at 1057 (citations omitted). Ms. Vasquez asserts Mr. Pettijohn made the comment during
work hours and within the spatial boundaries of the Trinity Mission facility when managers,
including her, gathered for a managerial meeting called by Mr. Pettijohn. Trinity Mission does
not dispute this point.
c.
Conduct Motivated by Employer Interest
The third Birkner criterion provides that “the employee’s conduct must be motivated, at
least in part, by the purpose of serving the employer’s interest.” Birkner, 772 P.2d at 1057
(citation omitted). Courts use varied approaches in determining whether the employer’s interest
motivates the employee conduct by looking at other factors aside from the alleged conduct itself.
Where reasonable minds differ as to whether serving the employer’s interest motivated
the employee’s conduct, at least in part, a jury must determine the issue. Christensen, 874 P. 2d
at 129. While no Utah case law addresses similar facts, other jurisdictions have addressed
analogous circumstances.
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In Sanders v. Day, a case with facts similar to those alleged, the plaintiff appealed the
trial court’s award of summary judgment under the doctrine of respondeat superior for the
charge of slander brought against her employer for comments made by an agent of the company
at an industry golf outing. 468 P.2d 452, 453–54 (Wash. App. 1970). In Sanders, the corporate
vice president commented to a number of individuals that he and the plaintiff “had engaged in an
act of sexual impropriety.” Id. at 453. The parties did not dispute the facts. Id. Rather, they
disputed the inferences drawn therefrom. Id. “The Court held that the ultimate and critical
question—whether [defendant/agent] acted within the scope and course of his employment—is
necessarily inferential.” Id. at 455. Further, quoting the Restatement of Agency, the Court
noted:
“If the master employs a servant to speak for him, he is subject to liability
if the servant makes a mistake as to the truth of the words spoken or as to
the justification for speaking them, or even if he speaks with an improper
motive, provided that he acts at least in part to serve his employer’s
purposes. The master may be liable even though the servant knows the
statement to be untrue, * * * (D)efamation is effective, in part at least,
because of the personality of the one publishing it. Thus, one who appears
to have authority to make statements for the employer gives to his
statements the weight of the employer’s reputation. For this reason, the
liability of the master may be based upon apparent authority.”
See Sanders, 468 P.2d at 455 (quoting Restatement (Second) of Agency § 247 cmt. c (1958)
(alterations in original)).
The plaintiff in Sanders argued that the [agent]’s “motive in defaming her character was a
misguided desire to ingratiate himself” with others in the industry for the company’s benefit and
“that she should have an opportunity to examine [the agent] and other officers of [the
corporation] in the presence of the trier of fact to establish that [the agent’s] slanderous utterance
should not have come as any surprise—that his public relations personality was that of the hail
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fellow with a ready anecdote or ribald story.” Id. at 454. The appellate court reversed summary
judgment and remanded the case for trial, “[e]xpressing no opinion as to the merits, [the court]
h[eld] that [plaintiff] is entitled to have the inferences drawn by the trier of fact. At trial, of
course, the burden of persuasion will be [plaintiff’]s.” Id. at 456.
In the instant case, Trinity Mission asserts Mr. Pettijohn acted outside the scope of his
employment when he joked, during work hours, that Ms. Vasquez was having an affair with a
co-worker and that no reasonable person would believe his comment constituted anything other
than a joke. Trinity Mission cites evidence that Ms. Vasquez’s immediate reaction, by correcting
Mr. Pettijohn, followed by Mr. Pettijohn’s laughing at the situation, instantly corrected any false
impression by any person listening and confirmed he merely made a joke.
Ms. Vasquez, however, asserts Mr. Pettijohn was not joking; rather, he acted as her direct
supervisor under the scope of his employment with Trinity Mission. Ms. Vasquez further argues
Trinity Mission knew of and supported Mr. Pettijohn’s management style, as evidenced by Mr.
Pettijohn’s instruction to his employees that employees should not go above his head with
complaints, and by upper management, instructing employees to “suck it up.” Further, Ms.
Vasquez argues Mr. Pettijohn used intimidation, coercion, and off-color humor during meetings,
and in his day-to-day management.
A jury may infer from the information provided that Mr. Pettijohn served his employer’s
purpose in making his comments. The jury may determine Mr. Pettijohn believed he served his
employer’s interests by using intimidation or off-color humor in responding to potential
disciplinary problems between employees and co-workers. A jury may also conclude that
Trinity Mission found Mr. Pettijohn’s management style effective because it knew of and
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acquiesced to it. All of these factors may support a positive finding in the third inquiry of the
Birkner test for scope of employment.
The Court DENIES summary judgment because the evidence could support a finding that
Mr. Pettijohn acted within the scope of his employment, and resolution of the question requires
submission to the jury.
3.
Defamation Per Se
Ms. Vasquez pled defamation per se, alleging that comments made by Trinity Mission’s
agent defamed her by publishing a false statement to co-workers accusing her of having an affair
with a married co-worker. To maintain a claim for basic defamation, a plaintiff must show the
defendant “published the statements concerning him, that the statements were false, defamatory,
and not subject to any privilege, that the statements were published with the requisite degree of
fault, and that their publication resulted in damage.” West v. Thomson Newspapers, 872 P.2d
999, 1007–08 (Utah 1994) (footnotes and citations omitted). A statement constitutes defamation
“if it impeaches an individual’s honesty, integrity, virtue, or reputation and thereby exposes the
individual to public hatred, contempt, or ridicule.” Id. at 1008 (citing Cox v. Hatch, 761 P.2d
556, 561 (Utah 1998)). “[I]n determining whether a particular statement fits within the rather
broad definition of what may be considered defamatory, the guiding principle is the statement’s
tendency to injure a reputation in the eyes of its audience,” when viewed in context. Id. at 1008–
09 (citation omitted); see also Mast v. Overson, 971 P.2d 928, 932 (Utah Ct. App. 1998).
Whether a statement can sustain a defamatory meaning presents a question of law. Cox, 761
P.2d at 561; see also Restatement (Second) of Torts § 614 (1977). If the Court determines the
statement can sustain such a meaning as a matter of law, the trier of fact must determine whether
its audience understood the statement as defamatory. Id.
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When a person uses defamatory words actionable per se, the law presumes the existence
of both malice and damages. Larson v. SYSCO Corp., 767 P.2d 557, 560 (Utah 1989). To
constitute slander per se, the defamatory words must “fall into one of four categories: (1) charge
of criminal conduct, (2) charge of a loathsome disease, (3) charge of conduct that is incompatible
with the exercise of a lawful business, trade, profession, or office; and (4) charge of the
unchastity of a woman.” Allred v. Cook, 590 P.2d 318, 320 (Utah 1979) (citation omitted).
The parties do not dispute the statements and events concerning the comment or
publication giving rise to Ms. Vasquez’s claim for defamation per se. Ms. Vasquez sent a text
message to the marketing director of Trinity Mission. Ms. Vasquez has a husband of twenty-five
years and four children. Ms. Vasquez and her husband have a friendship with the marketing
director and his wife. According to Ms. Vasquez, she thought she sent a benign text message to
her friend, Gary, the marketing director, inquiring about his family issues. Mr. Pettijohn
received the message. When she returned to work after the weekend, Ms. Vasquez attended a
meeting with a co-worker. At that meeting Mr. Pettijohn said to a co-worker, “Cat was texting
Gary this morning . . . Hi, lover, how are you? I miss you, XOXOXO.” Ms. Vasquez told Mr.
Pettijohn, “that’s not funny, I’m not having an affair with Gary, and that is out of line.” Mr.
Pettijohn laughed in response. Ms. Vasquez understood Mr. Pettijohn to have told their coworker that she was having an affair with the marketing director.
The words uttered by Mr. Pettijohn, an agent of Trinity Mission, may fall into the fourth
category of slander per se as communicated or published to a third party, their co-worker: the
implication or allegation that Ms. Vasquez, a married woman, had engaged in unchaste behavior
by having an alleged “affair” with the married marketing director. Trinity Mission argues that no
reasonable person would view this comment as a factual statement or as anything other than a
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joke, and therefore, the statement cannot constitute defamation. Additionally, Trinity Mission
argues Ms. Vasquez immediately corrected Mr. Pettijohn and that Mr. Pettijohn laughed at the
situation, instantly correcting any false impression held by any person listening. Thus, no
damage to her reputation resulted. Ms. Vasquez, however, asserts that Mr. Pettijohn did not
comment about her alleged affair in front of a co-worker in jest and consequently damaged her
reputation.
The Court’s inquiry focuses on whether a jury could find Mr. Pettijohn’s comment
implied Ms. Vasquez engaged in an alleged affair and thus unchaste behavior, and whether that
statement falls within the fourth category of defamation per se, the charge of unchastity of a
woman. This Court finds a jury could construe Mr. Pettijohn’s comment as charging Ms.
Vasquez, a woman, with unchastity.
A jury may find an allegation of infidelity constitutes slander per se and provides the
basis for damage to Ms. Vasquez’s reputation among her coworkers and the public. Therefore,
the determination of how a reasonable person would construe the offending statement at issue
should go to a jury. For this reason, the Court DENIES Trinity Mission’s request for summary
judgment as to the defamation per se claim.
4.
False Light Invasion of Privacy
Plaintiff has pled false light invasion of privacy based on this same incident involving an
errant text message.
Utah has adopted the Restatement (Second) of Torts section 652E (1977) for invasion of
privacy torts, which states as follows:
One who gives publicity to a matter concerning another that places the
other before the public in a false light is subject to liability to the other for
invasion of his privacy, if (a) the false light in which the other was placed
would be highly offensive to a reasonable person, and (b) the actor has
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knowledge of or acted in reckless disregard as to the falsity of the
publicized matter and the false light in which the other would be placed.
Russell v. Thomson Newspapers, Inc., 842 P.2d 896, 907 (Utah 1992) (quoting and noting
recognition of false light doctrine as delineated in § 652E of Restatement (Second) of Torts
(1977)).
However, the Utah Supreme Court recognized a modification of this rule when the
plaintiff represents a private, rather than public figure. Id. at 909. Specifically, Ms. Vasquez
must make a threshold showing of only negligence, rather than knowledge or recklessness, to
maintain a claim for invasion of privacy, provided she can show the implication would highly
offend a reasonable person. Id. at 907.
In Russell, the plaintiff appealed the trial court’s dismissal of her claim for
invasion of privacy relating to a newspaper that allegedly published an
article making public issues from her private life that “placed her in a false
light before the public.” Id. at 902, 906 (holding genuine issues of
material fact precluded summary judgment). The court determined that an
invasion of privacy claim protects an individual’s interest in being let
alone. This interest is distinct from the interest in reputation. Further, an
action for invasion of privacy may be the only available remedy when the
statements complained of are not themselves false, but merely place the
plaintiff in a false light.
Id. at 906–07 (citation omitted).
The Utah Court of Appeals again addressed this issue in Stien v. Marriott Ownership
Resorts, Inc., 944 P.2d 374, 377 (Utah Ct. App. 1997). In Stien, the plaintiff claimed false light
invasion of privacy where the defendant produced a videotape, purportedly as a joke, and then
published the videotape to its employees at a company party. Id. at 376–77. At the time of
taping, the defendant asked the interviewees, including plaintiff’s husband, to comment on a
hated household chore, but in the finished videotape, the defendant captioned the responses as
“What’s sex like with your partner?” Id. at 376. The plaintiff sued after the defendant showed
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the videotape at the party, claiming false light invasion of privacy, because it subjected her to
“shame [and] humiliation.” Id. at 378. With respect to the offensive nature of the statement, the
Stien court concluded the plaintiff had not established a viable claim for invasion of privacy
because while no one disputed the videotape proceeded “in poor taste and its presentation rather
ill-advised,” taken in context, the defendant clearly intended the video as a joke, and the content
would not highly offend an ordinary reasonable person; thus the claim failed as a matter of law.
Id. at 379.
“[A]n action for ‘false light’ invasion of privacy cannot survive when the publication or
statement sued upon cannot be reasonably viewed as a factual claim and is nothing more than a
joke or a spoof.” Stien, 944 P.2d at 380–81 (citing Partington v. Bugliosi, 825 F. Supp. 906, 925
(D. Haw. 1993), aff’d, 56 F.3d 1147 (9th Cir. 1995)); Hicks v. Casablanca Records, 464 F. Supp.
426, 433 (S.D.N.Y. 1978); Byrd v. Hustler Magazine, Inc., 433 So.2d 593, 595 (Fla. Dist. Ct.
App. 1983); Walko v. Kean Coll., 235 N.J. Super. 139, 155 (Ch. Div. 1988)). In Stien, the court
stated, “While the ‘false light’ tort protects individuals from ‘major mispresentation[s] of . . .
character, history, activities or beliefs’, if a statement cannot reasonably be taken as factual, as
with the contrived statements in the videotape about sex with the participants’ partners, the
statement does not amount to false light invasion of privacy because the public—or in this case
the 200 party-goers—did not receive a false impression about plaintiff.” Stien, 944 P.2d at 381
(alterations in original) (internal citations omitted).
The determination of whether a statement would highly offend a reasonable person
ordinarily falls “within the province of the jury”; however, the trial court must make a threshold
determination of offensiveness in discerning whether a cause of action exists in a false light
context. Id. at 379 (citing Vassiliades v. Garfinckel’s, 492 A.2d 580, 588 (D.C. 1985); Sofka v.
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Thal, 662 S.W.2d 502, 511 (Mo. 1983) (en banc)). In making the threshold determination
whether a publication rises to the level of highly offensive to a reasonable person, the Court
considers facts such as “‘the degree of intrusion, the context, conduct and circumstances
surrounding the intrusion as well as the intruder’s motives and objectives, the setting into which
he intrudes, and the expectations of those whose privacy is invaded.’” Stien, 944 P.2d at 379
(quoting Miller v. Nat’l Broad. Co., 232 Cal. Rptr. 668, 679 (Cal. Ct. App. 1986)).
In the instant case, Ms. Vasquez alleges Mr. Pettijohn published, to at least one other coworker, that she, a married woman, was having an illicit affair with another co-worker, Gary, a
married man, placing her in a false light.
Ms. Vasquez argues Mr. Pettijohn made this comment knowing its falsity and not in a
joking manner. Further, Ms. Vasquez argues that Mr. Pettijohn’s comments would highly offend
a reasonable person. Trinity Mission asserts that Mr. Pettijohn’s comment constituted a mere
off-the-cuff joke, and no reasonable person would believe his comments or take them as
anything other than a joke made during work hours regarding the errant text message he
received. All parties agree the statement was false. A jury could find, based on the evidence
submitted, that Mr. Pettijohn made the statement knowingly or recklessly or negligently.
In making a threshold determination of offensiveness, and viewing the facts in a light
most favorable to Ms. Vasquez, the Court finds that publication of an alleged affair by a
supervisor to subordinates inside the work setting may indeed have intruded on Ms. Vasquez’s
privacy and placed her in a false light. Mr. Pettijohn made a public issue of Ms. Vasquez’s
private life, in publishing a purported affair to at least one co-worker. A person accusing another
of an illicit affair makes a highly explosive allegation. Depending on the circumstances, a
reasonable person could view the statement as highly offensive, if taken as a fact or a legitimate
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accusation as opposed to an obviously untrue joke. An alleged illicit workplace affair, involving
two married persons, could hurt one’s reputation and affect the work environment negatively.
Further, people often cast statements as “jokes” that they believe true, hence the adage “many a
true word is said in jest.” Thus, whether Mr. Pettijohn “joked” when he made the statement does
not provide the touchstone for liability. Rather, the Court must focus on whether a reasonable
person would find the statement highly offensive. Unlike the “joke” in Stien, a reasonable
person could understand the statement here to disclose a truth, which then would be highly
offensive. For these reasons, reasonable minds can disagree as to whether Mr. Pettijohn’s
comment constituted a joke or rose to the level of highly offensive. Therefore, the Court finds
the question belongs to the jury and thus precludes summary judgment on this cause of action.
5.
Tortious Interference with Economic Advantage
To recover for a claim of tortious interference with existing or prospective business
relationships (collectively, “tortious interference with economic advantage”), a plaintiff must
show conduct on the part of the defendant that “‘intentionally and improperly interferes with the
performance of a contract . . . between another and a third person by inducing or otherwise
causing the third person not to perform the contract.’” Leigh Furniture & Carpet Co. v. Isom,
657 P.2d 293, 301 (Utah 1982) (emphasis added) (quoting Restatement (Second) of Torts § 766
(1979)). “The tort of intentional interference with prospective economic relations reaches
beyond protection of an interest in an existing contract and protects a party’s interest in
prospective relationships of economic advantage not yet reduced to a formal contract (and
perhaps not expected to be).” Leigh Furniture, 657 P.2d at 302 (citing Buckaloo v. Johnson, 537
P.2d 865, 868–69 (1975); Restatement (Second) of Torts § 766B cmt. c; Prosser, Handbook of
the Law of Torts § 130 (4th ed. 1971)). To survive summary judgment on a claim for intentional
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interference with economic advantage, a plaintiff must put forth evidence that: “(1) . . . the
defendant intentionally interfered with the plaintiff’s existing or potential economic relations, (2)
for an improper purpose or by improper means, (3) causing injury to the plaintiff.” Anderson
Dev. Co. v. Tobias, 2005 UT 36, ¶ 20, 116 P.3d 323, 331 (quoting Leigh Furniture, 657 P.2d at
304). However, “[i]t is settled that one party to a contract cannot be liable for the tort of
interference with contract for inducing a breach by himself or the other contracting party.” Leigh
Furniture, 657 P.2d at 301 (emphasis added) (citations omitted).
Although a claim of intentional interference with economic advantage has three elements,
in the instant case, this court need only address the first element—that Trinity Mission
intentionally interfered with Ms. Vasquez’s existing or potential economic relations—because
the lack of evidence on that element proves dispositive. Ms. Vasquez alleges Mr. Pettijohn,
Trinity Mission’s agent, made a defamatory statement, subjecting Trinity Mission to vicarious
liability for these statements and actions. Further, Ms. Vasquez alleges Mr. Pettijohn placed her
in a false light by alleging she engaged in an illicit affair. Ms. Vasquez provides no evidence
regarding with what existing or potential economic relations Mr. Pettijohn’s actions interfered.
For this reason alone, Ms. Vasquez’s claim cannot survive summary judgment.
This Court recognizes that though the typical injury in a claim for tortious interference
with economic advantage involves the driving away of potential or existing customers, the tort
allows for other sources of injury. Given the allegations of the Complaint and the evidence
included in the motion for summary judgment, the Court can only assume that the existing or
potential economic relations purportedly interfered with relate directly to Ms. Vasquez’s job with
Trinity Mission, in terms of her continued employment. Assuming Ms. Vasquez argues her job
qualified as an economic relationship, because it provides a source of income for her, her claim
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against Trinity Mission would be that the acts of Mr. Pettijohn interfered with her position of
employment. Ms. Vasquez did not bring a claim against Mr. Pettijohn; rather, she complained
against her employer, Trinity Mission. Trinity Mission cannot tortiously interfere with its own
business. Consequently, Ms. Vasquez has failed to put forth evidence to support the first
essential element for this cause of action. For this reason, the Court finds Ms. Vasquez’s tortious
interference claim fails as a matter of law. The Court GRANTS summary judgment against Ms.
Vasquez’s tortious interference with economic advantage claim.
6.
Intentional Infliction of Emotional Distress
When faced with a motion for summary judgment on an intentional infliction of
emotional distress claim, the plaintiff must put forth evidence from which a jury could decide the
defendant
intentionally engaged in some conduct toward the plaintiff, (a) with the
purpose of inflicting emotional distress, or, (b) where any reasonable
person would have known that such would result; and his actions are of
such a nature as to be considered outrageous and intolerable in that they
offend against the generally accepted standards of decency and morality.
Cabaness v. Thomas, 2010 UT 23, ¶ 36, 232 P.3d 486, 499 (emphasis in original) (citation
omitted). The Court must first decide if a reasonable person would consider defendant’s actions
“so extreme and outrageous as to permit recovery.” Id. (citation omitted). If reasonable people
could disagree on this point, the Court must let the jury decide whether the actions qualify as
sufficiently extreme and outrageous to warrant recovery. Id.
“‘The liability [for intentional infliction of emotional distress] clearly does not extend to
mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’” Bennett v.
Jones, Waldo, Holbrook & McDonough, 2003 UT 9, ¶ 64, 70 P.3d 17, 32 (quoting Restatement
(Second) of Torts § 46 cmt. d (1965)). “To be considered outrageous, the conduct must evoke
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outrage or revulsion; it must be more than unreasonable, unkind, or unfair.” Id. (citations and
internal quotation marks omitted). Utah courts have repeatedly rejected claims of intentional
infliction of emotional distress arising from alleged wrongful terminations. Zoumadakis v.
Uintah Basin Med. Ctr., Inc., 2005 UT App 325, ¶ 8, 122 P.3d 891, 894–95. Further,
defamation, even if coupled with termination, “does not constitute the kind of outrageous
conduct required to support the cause of action.” Id. (citing Russell, 842 P.2d at 905).
Trinity Mission argues Ms. Vasquez’s claim fails as a matter of law because she cannot
demonstrate Mr. Pettijohn directed his conduct toward her with the intent to inflict emotional
distress. Trinity Mission argues it did not engage in any intentional act toward Ms. Vasquez,
aside from terminating her employment. Ms. Vasquez argues the Court should consider the
totality of the work environment she suffered in as a result of the acts of her supervisor, Mr.
Pettijohn. Ms. Vasquez requests the Court determine that the instances and acts she has outlined
could allow a jury to determine they rise to level of intentional, outrageous, and intolerable
enough to offend generally accepted standards of decency and morality.
Ms. Vasquez has not shown a pattern of intimidation or abuse from which a jury could
consider the behavior outrageous and intolerable. The Court has reviewed all evidence provided
by Ms. Vasquez and finds the evidence would not evoke emotions of outrage or revulsion at the
conduct of Trinity Mission or its agent in a reasonable jury. Ms. Vasquez’s supervisor may have
subjected her to distasteful, insulting, and threatening behavior, but Ms. Vasquez has not
proffered evidence of any intentional, extreme, or outrageous conduct that would fall within the
requirements of this cause of action.
Additionally, Ms. Vasquez failed to put forth evidence that Trinity Mission deliberately
intended to injure her by comments made by its agent. Ms. Vasquez failed to put forth evidence
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that the agent knew or should have known his conduct would result in severe emotional distress
to her. And she failed to offer any evidence of severe emotional distress. Ms. Vasquez testified
she suffered headaches due to stress but never sought any medical attention. According to
information provided to the Court, Ms. Vasquez continued to work, without comment or
complaint to other supervisory staff, until after her suspension and suffered no other symptoms.
This evidence does not suffice to support a claim for intentional infliction of emotional distress
against Trinity Mission.
The Court therefore GRANTS Trinity Mission’s motion for summary judgment with
respect to Ms. Vasquez’s intentional infliction of emotional distress claim.
SO ORDERED.
DATED this 13th day of August, 2013.
BY THE COURT:
________________________________
EVELYN J. FURSE
United States Magistrate Judge
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