Bushman v. Utah Valley University

Filing 32

MEMORANDUM DECISION AND ORDER granting 24 Motion for Summary Judgment; finding as moot 19 Motion for Partial Summary Judgment. Signed by Judge David Nuffer on 1/30/17 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
JUANITA BUSHMAN,
Plaintiff,
v.

MEMORANDUM DECISION AND
ORDER GRANTING [24] MOTION FOR
SUMMARY JUDGMENT AND FINDING
MOOT [19] MOTION FOR PARTIAL
SUMMARY JUDGMENT

UTAH VALLEY UNIVERSITY,
Case No. 2:14-cv-00748-DN
Defendant.
District Judge David Nuffer

Plaintiff Juanita Bushman alleges various incidents of religious harassment, religious
disparate treatment, and retaliation pursuant to Title VII of the Civil Rights Act of 1964 (“Title
VII”) over a nearly three-year period. 1 Defendant Utah Valley University (“UVU”) moves for
summary judgment. 2 Bushman responded in only partial opposition to the motion. 3 UVU replied
in support of the Motion. 4

1

Complaint at 5–10, docket no. 3, filed Oct. 21, 2014.

2

Defendant’s Motion for Summary Judgment on All Claims (Motion), docket no. 24, filed March 30, 2016.

3

Plaintiff’s Memorandum in Opposition to Defendant Utah Valley University’s Motion for Summary Judgment
(Opposition), docket no. 30, filed June 1, 2016.

4

Reply in Support of Motion for Summary Judgment on All Claims, docket no. 31, filed June 9, 2016.

The Motion is GRANTED because Bushman concedes summary judgment is appropriate
for her harassment 5 and disparate treatment 6 claims 7 and fails to raise a genuine issue of material
fact for her retaliation claim.
Because summary judgment is granted on all claims, UVU’s motion for partial summary
judgment 8 is MOOT.
UNDISPUTED MATERIAL FACTS
The following undisputed material facts are a reconciliation of the statement of material
facts within the Motion, Opposition, and Reply.
1.

Bushman submitted three specific occasions when she believes that then-fellow

employee, Laura McCullough, made offensive religious comments. The three incidents listed by
Bushman occurred on October 27, 2010, September 22, 2011, and October 26, 2011. 9
2.

Bushman alleged other conversations between her and Laura McCullough in

which McCullough expressed her dislike of, and displeasure with, the Mormon religion and
culture. These allegations are not specific as to date or content, they are vague in nature, were not

5

Opposition at 27 (“Ms. Bushman concedes that, after she complained to UVU’s Human Resources Department,
UVU counseled McCullough and she stopped making offensive comments about Ms. Bushman’s religious
preference.”); see Bertsch v. Overstock.com, 684 F.3d 1023, 1028 (10th Cir. 2012) (“An employer’s liability for
allowing a . . . work environment [that violates Title VII] after it is reported to the employer by the employee arises
only if the employer fails to take adequate remedial and preventative responses to any actually or constructively
known harassment.”) (emphasis added) (internal quotation marks omitted).
6

Opposition at 27 (“Ms. Bushman has carefully considered UVU’s arguments as to her claim of disparate treatment
and believe they fairly summarize the relevant facts and the applicable legal principles. Accordingly, she does not
oppose the granting of a summary judgment as to such claim.”).

7

Id. (“So the viability of Ms. Bushman’s case boils down to whether she can raise a genuine issue of material fact as
to whether . . . McCullough . . . sought to retaliate against Ms. Bushman because of making . . . complaints.”).
8

UVU Motion for Partial Summary Judgment for Failure to State a Claim Upon Which Relief Can Be Granted –
Statue of Limitation, docket no. 19, filed December 1, 2015.

9

Motion ¶ 1 at vii (undisputed).

2

written down or recorded by Bushman, and the religious comments seem to have been made in
the course of ordinary conversations, often in large groups. 10
3.

Bushman’s reaction to McCullough’s opinion of the Mormon religion and

Bushman’s description of the conversations as harassment are highly subjective. Bushman
believes that one negative comment about her religion, even when made during a conversation
about religion, is harassment. 11
4.

All of the comments made by McCullough which Bushman complains about,

were made when McCullough was an advisor, a co-worker with Bushman, and before
McCullough became Bushman’s supervisor with authority. 12
5.

Laura McCullough was appointed as the coordinating manager of the Academic

Advisement Center with limited authority in October 2011. Her role was to coordinate and
advise Associate Dean Bule (Bule) who retained supervisory authority. She did not have
performance evaluation or disciplinary authority. 13
6.

Bushman complained to HR about McCullough’s religious statements in February

7.

All of the religious comments stopped after Bushman complained to the

2012. 14

University and the University counseled McCullough. 15

10

Motion ¶ 2 at vii (undisputed).

11

Motion ¶ 3 at vii (undisputed).

12

Motion ¶ 5 at viii (undisputed).

13

Motion ¶ 6 at viii (undisputed).

14

Motion ¶ 7 at ix (undisputed).

15

Motion ¶ 8 at ix (undisputed)

3

8.

Laura McCullough was given full supervisory authority over the Academic

Advisement Center, including performance management and disciplinary authority over the
other counselors, on March 29, 2012. 16
9.

On April 26, 2012, Bushman was issued a Written Warning by her supervisor

Laura McCullough, Associate Dean Bule, and HR representative Kurt Ashworth. 17
10.

Prior to the Written Warning being issued Laura McCullough consulted with HR

and with Dean Dayley and Associate Dean Bule who concurred in the action and who
participated in the preparation of the Written Warning and the presentation of the Written
Warning to Bushman. 18
11.

The Written Warning was based on what the University personnel perceived as a

historical lack of cooperation with other counselors and not being a team player, causing
negative atmosphere and tension. It was also based on complaints from students, a complaint
from the IT department for which Bushman rejected responsibility, poor student evaluations, and
resistance to training from HR. 19
12.

On July 9, 2012, Bushman was issued a Final Written Warning in lieu of

termination. 20
13.

Although the Final Written Warning was signed by Laura McCullough, it was

presented to Bushman by Dean Dayley and the head of HR, Vice President Ronald Price. The

16

Motion ¶ 9 at ix (undisputed).

17

Motion ¶ 11 at x (undisputed).

18

Motion ¶ 12 at x (undisputed).

19

Motion ¶ 13 at xi; Opposition at 13. Changing it to how University personnel perceived Bushman resolves the
alleged dispute.
20

Motion ¶ 14 at xi (undisputed).

4

Final Written Warning was prepared by McCullough, and HR, including Price and Ashworth in
consultation with Dean Dayley, starting in June 2012. 21
14.

The Final Written Warning was triggered by what University personnel perceived

as plaintiff’s insubordination, calling her supervisor a liar and of low character during a
counseling session with an HR representative, and by what University personnel perceived as
Bushman’s continued resistance to counseling and refusal to accept any responsibility for the
problems she was creating. 22
15.

Laura McCullough left the University on October 19, 2012. 23

16.

The only disciplinary actions Laura McCullough took against Bushman were the

Written Warning and the Final Written Warning. 24
17.

On August 7, 2013, Bushman’s employment with the University was terminated

by her supervisor Associate Dean Bule with the full support of Dean Dayley and the concurrence
of University Vice President Wilson.25
18.

Prior to terminating Bushman, Steve Bule consulted with HR and the Dean of the

School of Arts, who concurred in the action. 26
19.

The termination was supported by numerous incidents and complaints which had

occurred after the departure of Laura McCullough from the University, including what various
University personnel perceived as Bushman’s continued antagonistic attitude and behavior,

21

Motion ¶ 15 at xi (undisputed).

22

Motion ¶ 16 at xii; Opposition at 14–15. Changing it to how University personnel perceived Bushman resolves the
alleged dispute.

23

Motion ¶ 17 at xii (undisputed).

24

Motion ¶ 18 at xii (undisputed).

25

Motion ¶ 19 at xii (undisputed).

26

Motion ¶ 20 at xii (undisputed).

5

complaints from the School of Music, the result of an accreditation evaluation that reflected
negatively on Bushman, complaints from students, and the departure of yet another co-worker. 27
20.

Before approving the decision to terminate Bushman, Dean Dayley met with

Bushman in March 2013 and in July 2013. Bushman refused to accept any responsibility. 28
21.

Dean Dayley conducted an investigation and interviewed all staff members,

including Bushman, before approving the termination. 29
22.

Bushman did not believe she was the cause of the interpersonal problems in the

Advisement Center. 30
23.

Bushman admits that no one else at the University harassed her based on her

religion, discriminated against her based on her religion, or retaliated against her for reporting
Laura McCullough to HR. Specifically, Bushman admits that no one in HR and no one in the
School of Arts was involved in religious harassment, discrimination or retaliation, including
Dean Dayley, Associate Dean Bule, Mark Wiesenberg (HR), Kurt Ashworth (HR), Vice
president Ron Price (HR), Vice President Wilson, Music Chair Fairbanks, Professor Smith,
Professor Nelson, Secretary Paula Nye, and the co-workers, fellow counselors who worked in the
Center, including Christine Daoust, Rae Ann Ellis, Melissa Eiche, and Audrey Thrasher. 31

27

Motion ¶ 21 at xii–xiii; Opposition at 16–17. Changing it to how University personnel perceived Bushman
resolves the alleged dispute.
28

Motion ¶ 22 at xiii; Opposition at 17. The exhibits cited do not create a genuine dispute of material fact.

29

Motion ¶ 23 at xiii (undisputed).

30

Motion ¶ 24 at xiii; Opposition at 17–18.

31

Motion ¶ 25 at xiii–xiv (undisputed).

6

24.

Bushman admits that Dean Dayley and Steve Bule, both of whom were decision

makers in each of the warnings and the termination decision, are, like Bushman, both Latter-Day
Saints (Mormons). 32
25.

Bushman admits she has no direct evidence to support her retaliation claim. 33

26.

The only evidence Bushman cites in support of her retaliation claim is the timing

of the Written Warning Bushman received from her supervisor Laura McCullough, Associate
Dean Bule, and HR representative Kurt Ashworth. 34
27.

Bushman complains that she was excluded from conversations and other

activities, including not being invited to lunch, but admits she was never denied any benefits of
employment, pay raises, promotion, or prevented from attending employment connected
meetings such as The Learning Circle. 35
STANDARD OF REVIEW
Summary judgment is appropriate if “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” 36 A factual dispute is genuine when
“there is sufficient evidence on each so that a rational trier of fact could resolve the issue either
way.” 37 In determining whether there is a genuine dispute as to material fact, the district court

32

Motion ¶ 26 at xiv (undisputed).

33

Motion ¶ 27 at xv (undisputed).

34

Motion ¶ 28 at xv; Opposition at 20. Bushman contends this is in dispute because she “alleges the reasons for the
discipline which led up to the point of termination and the decision of termination itself are false and support her
claim that such reasons are pretextual.” In support, she cites four exhibits. Setting aside the concern that the exhibits
fail to satisfy the Federal Rules of Evidence admissibility requirements, these exhibits do not create an issue of fact.
Bushman’s private notes and letters only demonstrate that Bushman disagreed with her supervisor’s interpretation of
events. They do not provide an additional evidentiary basis for supporting her retaliation claim. In fact, they only
reiterate her assertion regarding the questionable timing of the Written Warning.

35

Motion ¶ 29 at xv (undisputed).

36

Fed. R. Civ. P. 56(a).

37

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).

7

should “view the factual record and draw all reasonable inferences therefrom most favorably to
the nonmovant.” 38
DISCUSSION
Bushman bases her Title VII claim for discriminatory retaliation on circumstantial
evidence and she fails to prove a prima facie case of retaliatory discrimination.
“In cases brought under Title VII . . . where circumstantial evidence is the basis for the
claim, [the] analysis at the summary judgment stage is governed by the burden-shifting
framework laid out in McDonnel Douglas Corp. v. Green.” 39 “The McDonnell Douglas test
involves a three-step analysis.” 40
First, the plaintiff must prove a prima facie case of discrimination. If the plaintiff
satisfies the prima facie requirements, the defendant bears the burden of
producing a legitimate, nondiscriminatory reason for its action. If the defendant
does so, the plaintiff must either show that his race, age, 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. 41
Bushman admits that she bases her Title VII claim for discriminatory retaliation on
circumstantial evidence. 42 Therefore, the McDonnel Douglas test applies.
To establish a prima facie case for retaliation, the plaintiff must show the following: “(1)
he or she is engaged in protected opposition to discrimination; (2) he or she was subject to
adverse employment action; and (3) a causal connection exists between the protected activity and
the adverse action.” 43

38

Id.

39

Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002).

40

Id.

41

Id.

42

Opposition at 22.

43

Garrett, 305 F.3d at 1220.

8

Assuming Bushman engaged in protected opposition to discrimination and was subject to
adverse employment action, she fails to show a causal connection between the protected activity
and the adverse action. “A causal connection is established where the plaintiff presents evidence
of circumstances that justify an inference of retaliatory motive, such as protected conduct closely
followed by adverse action.” 44 The standard for proving this prong “is low.” 45
In Murray v. City of Sapulpa, 46 one of the plaintiffs alleged that he was terminated
because he filed a complaint with the Equal Employment Opportunity Commission.47 “Four
months before his discharge, [the plaintiff] filed a complaint with the Equal Employment
Opportunity Commission against” the employer. 48 The timing of his termination in relation to
when he complained to the EEOC was the only evidence he presented to make a prima facie case
of retaliation. The court held that he “presented insufficient evidence to support the inference
that his termination was in retaliation to his complaints to the” EEOC. 49
Similar to Murray, Bushman’s evidence is insufficient. She acknowledges she “does rely
on the temporal proximity between her complaints about McCullough, McCullough then
obtaining supervisory authority over [her] and McCullough’s immediate efforts to discipline her,

44

Id. at 1221.

45

Id.

46

45 F.3d 1417 (10th Cir. 1995).

47

Id. at 1421.

48

Id.

49

Id. at 1422; see also Garrett, 305 F.3d at 1221 (“[I]n Murry, the plaintiff had only one possible ‘connection’: the
fact that he filed complaints with the EEOC and was subsequently fired. Here, [the plaintiff] has presented not only
evidence of temporal connections, but he has also documented evidence of a marked shift in the attitudes and
treatment of him by his supervisors. The evidence presented by [the plaintiff] satisfies the requirements necessary to
make a prima facie case of retaliation.”).

9

to forge the necessary causal connection.” 50 This is not enough to show a causal connection
between her protected complaint and termination.
Even if Bushman were able to prove a prima facie case for retaliation, the University had
legitimate reasons for terminating her, and temporal proximity alone does not show
pretext.
The University offers many reasons for deciding to terminate Bushman’s employment. 51
If true, there can be no serious argument that they are not legitimate justification for termination.
Indeed, Bushman does not dwell on whether, in the abstract, the reasons enumerated by the
University were legitimate; she instead jumps to the question of pretext. 52
“In determining whether the proffered reason for a decision was pretextual, we examine
the facts as they appear to the person making the decision not the plaintiff’s subjective evaluation
of the situation.” 53 “The relevant inquiry is not whether the employer’s proffered reasons were
wise, fair or correct, but whether it honestly believed those reasons and acted in good faith upon
those beliefs.” 54
[T]emporal proximity alone is insufficient to raise a genuine issue of material fact
concerning pretext. In other words, temporal proximity is only one factor that can
give rise to a finding of pretext; it must be combined with other evidence
proffered by the plaintiff to create a reasonable inference that the employer’s
asserted reason for discipline is unworthy of belief. We do not allow “very close”
temporal proximity to operate as a proxy for this evidentiary requirement. 55

50

Opposition at 31.

51

See Undisputed Material Facts ¶¶ 11, 14, and 19.

52

Opposition at 21–34. It is hard to track Bushman’s argument. At points, she seems to be making her prima facie
case, but, in that same section speaks of the University’s burden. See, e.g., Opposition at 32–34.

53

Luster v. Vilsack, 667 F.3d 1089, 1093 (10th Cir. 2011) (emphasis in original; internal quotation marks omitted).

54

Id. (internal quotation marks omitted).

55
Lounds v. Lincare, Inc., 812 F.3d 1208, 1236 n.10 (10th Cir. 2015) (internal quotation marks and citations
omitted) (punctuation altered).

10

Bushman does not satisfy the evidentiary requirements. She does not provide evidence
that demonstrates pretext. She attaches exhibits that reflect her subjective evaluation of the
situation. And she offers only the not-so-close temporal proximity of her protected complaints to
her termination as proof of pretext. 56 This does not satisfy her burden.
ORDER
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment on All
Claims 57 is GRANTED.
IT IS FURTHER ORDERED that UVU Motion for Partial Summary Judgment for
Failure to State a Claim Upon Which Relief Can Be Granted – Statute of Limitation 58 is MOOT.
The clerk of the court is directed to CLOSE this case.
Dated January 30, 2017.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

56

See Opposition at 30–34.

57

Docket no. 24, filed March 30, 2016.

58

Docket no. 19, filed December 1, 2015.

11