Peterson v. Avalon Health Care

Filing 61

MEMORANDUM DECISION and ORDER granting 40 Avalon Payson's Motion for Summary Judgment. Signed by Judge Dee Benson on 7/31/2017. (blh)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

LACIE PETERSON, an individual,
Plaintiff,

MEMORANDUM DECISION
AND ORDER
ON DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

vs.

AVALON CARE CENTER – VA PAYSON,
LLC, a Utah Limited Liability Company,

Case No. 2:15cv671
Judge Dee Benson

Defendant.

This matter is before the Court on Defendant Avalon Care Center’s (“Avalon Payson”)
motion for summary judgment on all claims brought by Plaintiff Lacie Peterson in this action.
At oral argument on the motion, Avalon Payson was represented by David C. Castleberry.
Plaintiff Lacie Peterson was represented by Steven R. Sumsion. At the conclusion of the
hearing, the Court took the matter under advisement. Now, having further considered the law
and facts relating to the motions, the Court renders the following Memorandum Decision and

1

Order.
BACKGROUND
On June 10, 2017, Peterson applied on-line for the position of “Director of
Housekeeping” with Avalon Payson. (Am. Compl. ¶ 12 & Ex. A.) In the on-line listing, Avalon
Payson indicated that it was a “[n]ew 108 bed VA Home in Payson, Utah.” (Id., Ex. A at 2) The
job-posting described the housekeeping position as a “housekeeping supervisor” who would be
“responsible to supervise the facility’s day-to-day housekeeping and related functions including
staffing, supply ordering and supervision to ensure facility policy and standards are met, and
oversee and manage all aspects of the laundry operations of the facility.” (Id.)
On June 20, 2017, Peterson interviewed for the position with several Avalon Payson
employees, including the facility’s Administrator, Shauna Kraus (“Kraus”), and Kelly Lawson
(“Lawson”). (Am. Compl. ¶14.) At the time, Peterson believed she was interviewing for the
“Lead Director of Housekeeping” position for which she had applied on-line. (See id.; Dkt. No.
40-1, Peterson Dep. at 22.) However, as Kurt Anderson, Director of Employee Relations, later
acknowledged, the posting’s reference to a “Lead Director” of housekeeping position was an
error because “Lead Director of Housekeeping” was not a position that existed within the Avalon
system. (Dkt. No. 4–2, Anderson Dep. at 36 (stating “we don’t have housekeeping directors in
any of the facilities”).) Despite Avalon’s mistaken posting, Avalon Payson referred to
Peterson’s position as “housekeeper,” rather than “Lead Director of Housekeeping,” and
Peterson was the only housekeeper hired and/or employed by Avalon Payson. (Dkt. No. 40-1,
Peterson Dep. at 88.)

2

On June 27, 2013, Avalon Payson hired Peterson. (Am. Compl. ¶ 15.) On that day,
Maintenance Supervisor Kelly Lawson sent Peterson a text message to inform her that she had
been given the job and stated: “I want you as my lead housekeeper. Work will be M/W/F. Part
time until arrangements can be made.” (Id.)
The next day, on June 28, Lawson and Peterson had the following conversation via text
messaging. First, Lawson sent a message to Peterson stating: “Would it be inappropriate to ask u
out.” (Am. Compl. ¶ 20 & Ex. B.) Peterson responded, saying, “Lol, wow. So the truths
revealed!! That’s why you hired me :) not because you think I will be a great addition to
Avalon. . . only because you thought I was cute :).” (Id.) Lawson responded a few minutes later
saying, “NO wow sorry I shouldn’t have opened my mouth. You will be a great addition to
Avalon, yes I think u r very sexy but that’s not why I hired u!!” (Id.) Peterson responded, “First
of all thank you very much for the compliment. I’m at a place in my personal life right now that
‘sexy’ wouldn’t describe the way I feel. 2ndly, I am very hesitant to get involved with anyone
while going through this divorce, especially with the (supervisor of my new job) I haven’t even
started!” (Id.) Within minutes, Peterson followed up with, “Kelly please don’t take it personal.
I really am flattered and you are a good looking guy but I am simply not ready.” (Id.) Lawson
replied, “Way cool I just asked if it was inappropriate, I didn’t actually ask, and I’m not like that
I wouldn’t hold anything against u, I’m the most laid back guy u will meet.” (Id.)
Over the course of the next two weeks, between Peterson’s hire date and start date, in
addition to the text exchange set forth above, Peterson and Lawson exchanged additional text
messages related to issues regarding Peterson’s employment at Avalon, including Peterson’s

3

start date and time, and that Peterson would work “3 days a week in the beginning.” (Am.
Compl. Ex. B; Dkt. No. 40-1, Peterson Dep. at 38-41.)
Peterson’s employment began on July 15, 2013. Kraus and Lawson filled out an
“Employee Action Form” marking the beginning of Peterson’s employment, and stating that
Peterson’s job title was “housekeeping.” (Dkt. No. 40-8, Employee Action Form.) On
Peterson’s “new hire” paperwork, which she filled out herself, Peterson listed her job title as
“housekeeping.” (Dkt. No. 40-9, New Hire Paperwork.) That Peterson was hired as a part-time
housekeeper who would transition to full-time was stated in the initial text messages from
Lawson and reinforced in Peterson’s offer letter, which she received from Avalon Payson on
July 24, 2013. (Dkt. No. 40-10, Offer Letter (referring to Peterson as “housekeeper” and stating
that her budgeted hours would be “part time, going full time as of July 29, 2013, per pay
period”).)
On July 15, 2013, during Peterson’s first day at Avalon Payson, Peterson claims that
Lawson “ask[ed] about [Peterson’s] sex life” saying, “I bet you are the type of girl who just
wants sex once a month.” (Am. Compl. ¶ 24.) Later that same day, while Peterson was
assembling a wheelchair, Peterson claims Lawson grabbed her by the hips as he passed her in the
hallway. (Am. Compl. ¶ 24; Dkt. No. 40-1, Peterson Dep. at 68.)
That night, after her first day of work, on the evening of July 15, 2013, at 7:22 p.m.,
Peterson sent Lawson the following text: “Kelly i freaking leaked!! I can’t believe you didn’t
tell me!” (Am. Compl. Ex. B, Text Messages.) Lawson responded, “Honey I can’t look at your
bod all day, if I would have seen it believe me I would tell u.” (Id.). A few minutes later,

4

Peterson replied saying, “thank God you didn’t see! I’m so embarrassed ! And thank God you
would of told me :).” (Id.)
The next day, around noon on July 16, 2013, Peterson sent the following text message to
Lawson: “Okay, thinking about the response you sent back to me last night in regards to my
personal female issue, Lol . . . I would much rather you not check my body out at all! That text
you sent me made me feel uncomfortable. I will be a great right hand man but as far as a
personal, physical relationship. I won’t be going there with you. Your my supervisor :).” (Id.)
Within the first few days of working at Payson Avalon, Peterson approached Michelle
Stanley, the assistant to Avalon Payson’s Administrator Shauna Kraus, and told Stanley that she
felt uncomfortable working around Lawson given their prior text exchanges and Lawson’s
conduct at work. (Dkt. No. 40-1, Peterson Dep. at 51-52.) Stanley suggested that Peterson make
an appointment with Kraus. (Id. at 52.)
On or about July 19, 2013, approximately four days after she started working at Avalon
Payson, Peterson scheduled a meeting with the facility’s Administrator, Shauna Kraus, to discuss
Lawson’s conduct and to “get it straight in [her] mind once and for all what exactly [she] was
hired on as.” (Dkt. No. 40-4, Peterson Journal; Dkt. No. 40-1, Peterson Dep. at 102-03.) During
the meeting, Kraus explained that she did not hire Peterson to be a “director” of housekeeping,
and that Peterson was hired as a housekeeper with Lawson as her supervisor. (Dkt. No. 40-4,
Peterson Journal.) Peterson told Kraus that she “wasn’t comfortable with the situation” with
Lawson, and that Lawson had “asked [her] out, pryed into [her] personal life, and now was
treating [her] differently.” (Id.). Peterson claims that Kraus did not seem to take Peterson’s

5

concerns about Lawson seriously and told her that “being called ‘sexy’ was a compliment.” (Id.)
Peterson also felt that Kraus did not like her and was “extremely rude.” (Id.)
After meeting with Kraus, Peterson says that she “took it upon [herself] to stop using the
office she previously shared with Lawson.” (Dkt. No. 40-1, Peterson Dep. at 72.) Peterson used
the facility’s break room instead of the office “so [she] didn’t have to be in the office with
[Lawson] and feel uncomfortable.” (Id.)
On July 24, five days after Peterson’s meeting with Kraus, Lawson provided Peterson
with a new written schedule requiring Peterson to work full time. (Dkt. No. 40-4, Peterson
Journal; Dkt. No. 40-1, Peterson Dep. at 102-03). This new schedule was consistent with
Lawson’s prior text and Peterson’s Offer Letter, which she received that same day, indicating
she would be part time “in the beginning” then shift to full time. (Am. Compl. Ex. B, Text
Messages; Dkt. No. 40-10, Offer Letter.)
The next day, on July 25, 2013, Director of Employee Relations Kurt Anderson visited
Avalon Payson and met with Peterson regarding several concerns, one of which was Lawson’s
conduct. Anderson’s notes from the meeting document that at the end of the meeting he asked
Peterson whether she felt she had been illegally harassed during her employment at Avalon
Payson. (Dkt. No. 40-2, Anderson Dep. at 19; Dkt. No. 40-3, K. Anderson Handwritten Notes,
dated July 25, 2013.) Anderson explained what constituted harassment, and Peterson responded
that she did not believe she had been harassed. (Id.) Anderson then asked Peterson if she could
continue to work with Lawson, to which Peterson answered, “yes.” (Id.) Peterson said, about
the meeting with Anderson, that she “felt for the first time somebody had listened to what [she]

6

was trying to say.” (Dkt. No. 40-1, Peterson Dep. at 63.)
Approximately one week later, on August 1, 2013, Peterson spilled a bucket of water and
asked Lawson for help with the carpet cleaner. (Dkt. No. 40-4, Peterson Journal; Dkt. No. 40-1,
Peterson Dep. at 102-03.) Lawson helped Peterson assemble the carpet cleaner, and as he got up
and turned away from Peterson, Peterson heard Lawson say the word “bitch.” (Id.) Peterson
reported the incident to Kurt Anderson, and a few days later reported the incident to John L.
Walters, an Avalon Payson social worker. (Dkt. No. 40-5, Witness Statement of John L.
Walters, dated Aug. 5, 2013; Dkt. No. 40-2, Anderson Dep. at 83-84.) Walters noted in his
statement (and Peterson agreed during her deposition) that Lawson’s words may not have been
directed at Peterson and he may have simply been frustrated with ongoing construction issues at
the facility. (Id.; Dkt. No. 40-1, Peterson Dep. at 74 (testifying that she “do[es] remember
thinking that” Lawson may have been complaining about something else when he used the word
“bitch”).)
By early August 2013, Peterson felt like she was being “isolated” by Lawson, Kraus and
others at Avalon Payson. Peterson claims that she was not invited to luncheons and work
meetings, or that Lawson would tell Peterson the wrong time to attend such meetings. (Am
Compl. ¶76; Dkt. No. 40-1, Peterson Dep. at 165.)
On August 13, 2013, after approximately one month of working at Avalon Payson,
Lawson issued Peterson a non-disciplinary warning for failing to lock her housekeeping cart in
accordance with state and federal regulations. (Dkt. No. 40-13, Performance Documentation
Form.) In the written warning, Lawson noted that it is a “Federal and State requirement” to lock

7

up housekeeping carts, the violation of which “could result in citations to the facility which
could result in liability to bill for services or civil money penalties.” (Id.) Peterson refused to
sign her warning.
Peterson refused to sign the written warning form because she felt like she was not
required to lock the cart given that there were no veterans in the facility at the time. (Dkt. No.
40-1, Peterson Dep. at 81.) According to a witness statement signed by Michelle Stanley,
Shauna Kraus and Kelly Lawson after the incident, Peterson admitted that Lawson had told her
that “it did not matter if we had residents or not.” (Dkt. No. 40-16, Witness Statement.)
The next day, on August 14, 2013, Peterson was placed on administrative leave by
Avalon Payson’s Administrator, Kraus, pending an investigation for insubordination relating to
Peterson’s refusal to sign her written warning form. (Dkt. No. 40-14, Notice of Admin. Leave;
Dkt. No. 40-1, Peterson Dep. at 89.) Peterson was on administrative leave for approximately
two weeks, during which time Avalon Payson investigated Peterson’s insubordination and
continued to investigate Peterson’s complaints about Lawson. While on administrative leave,
Peterson hired an attorney, Steven Sumsion. (Dkt. No. 40-17, Sumsion Dep. at 5.)
On August 29, 2013, after investigating Peterson’s complaints, Avalon Payson
unconditionally reinstated Peterson to her previous position. (Dkt. No. 40-15, Unconditional
Reinstatement of Lacie Peterson, dated Aug. 29, 2013; Dkt. No. 40-1, Peterson Dep. at 126-27.)
Avalon Payson’s reinstatement letter stated that Avalon Payson had completed its internal
investigation, terminated Lawson, and that Peterson was returned to work in her previous
capacity, with the same pay and benefits she had before her leave. (Id.) Avalon Payson also

8

issued Peterson a check for $552.87, which she cashed, for the time she spent on administrative
leave. Avalon Payson’s reinstatement of Peterson was not contingent on any release of claims
against Avalon Payson. (Am. Compl. ¶ 15 (stating Avalon Payson’s offer was
“unconditional”).) Additionally, Avalon Payson expunged all written warnings from Peterson’s
employee file upon her return to work. (Dkt. No. 40-15, Reinstatement Letter.)
On September 3, 2013, Peterson, her attorney, and representatives of Avalon Payson,
including its counsel, met to discuss Peterson’s return to work. (Am. Compl. ¶¶ 59-60; Dkt. No.
40-17, Sumsion Dep. at 14.) During the return-to-work meeting, counsel for Avalon Payson
reiterated the terms of the reinstatement as outlined in the reinstatement letter, including that
Peterson’s reinstatement was unconditional and that Lawson had been terminated. (Dkt. No. 401, Peterson Dep. at 134; Dkt. No. 40-17, Sumsion Dep. at 15-16.) Avalon Payson also offered to
pay Peterson’s attorney’s fees accrued to that date. (Dkt. No. 40-18, Email from Sabey to
Sumsion dated Sept. 4, 2013; Dkt. No. 40-17, Sumsion Dep. at 24.)
At the meeting, Peterson’s attorney, Steven Sumsion, sought to impose additional
requirements for Peterson’s return to work, including that Peterson be given her own office, a
cell phone, and that Peterson be promoted to supervisor of building maintenance. (Dkt. No. 4017, Sumsion Dep. at 17-19.) Peterson also stated that she did not want to return to work because
“Shauna Kraus was still employed at Avalon Payson.” (Dkt. No. 40-1, Peterson Dep. at 140.)
Peterson recalls her attorney proposing a contract, purportedly between Sumsion, Peterson and
Avalon Payson, to ensure that Peterson would not be the subject of future retaliation from Kraus.
(Id. at 140, 141.) Peterson’s attorney explained that they were merely seeking an

9

“acknowledgment, apology, something in writing” regarding Avalon’s actions. (Dkt. No. 40-17,
Sumsion Dep. at 19.)
In response, Avalon Payson offered to “designate a representative other than [Kraus and
the] HR Director, for [Peterson] to raise any concerns or complaints about her work environment
going forward.” (Dkt. No. 40-18, Sumsion Email; Dkt. No. 40-17, Sumsion Dep. at 35; Dkt. No.
40-11, Anderson Return-to-Work Meeting Notes.) However, Avalon Payson declined
Sumsion’s additional demands regarding Peterson’s own office, cell phone, and promotion.
Because Avalon Payson refused to fulfill these demands, and based on Sumsion’s
implicit advice to Peterson that her case would be worth more money if she did not return to
work, Peterson refused to resume work after having been unconditionally reinstated. (Dkt. No.
40-1, Peterson Dep. at 144; Am. Compl. ¶ 60 (“On advice of her attorney, she did not go back to
work”); Dkt. No. 40-17, Sumsion Dep. at 33-34 (testifying that it was “implicit” in his advice to
Plaintiff that she could possibly obtain more money if she did not return to work).)
On September 17, 2015, Peterson filed the Complaint in this case, asserting two claims,
both under Title VII of the Civil Rights Act of 1964 and the Utah Discrimination Act: (1) that
she suffered a hostile work environment as a result of harassment by Kelly Lawson, and (2) that
she was subjected to retaliation after complaining to management about Lawson’s actions. (Am.
Compl. at 12-16.) In the motion now before the Court, Avalon Payson moves for summary
judgment on both claims, asserting: (1) that Peterson’s allegations do not rise to the level of
severe and pervasive harassment necessary to establish an actionable claim for hostile work
environment, and (2) that Peterson did not suffer an “adverse employment action” as a result of

10

her complaints. Additionally, Avalon Payson claims that even if Peterson were to prevail on her
claims, she suffered no recoverable damages because Peterson’s refusal to return to work was
unreasonable as a matter of law.
DISCUSSION
Federal Rule of Civil Procedure 56 permits the entry of summary judgment “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Anderson v. Libberty Lobby,
Inc., 477 U.S. 242, 250-51 (1986). The court must “examine the factual record and reasonable
inferences therefrom in the light most favorable to the party opposing summary judgment.”
Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Not every issue of fact or conflicting inference presents a genuine issue of material fact.
“The mere existence of a scintilla of evidence in support of the plaintiff’s position will be
insufficient [to overcome a motion for summary judgment]; there must be evidence on which the
jury could reasonably find for the plaintiff.” Liberty Lobby, 477 U.S. at 252; see also Anderson
v. Coors Brewing Co., 181 F.3d 1171, 1175 (10th Cir. 1999). Finally, conclusory allegations
without supporting evidence, do not raise a genuine issues of material fact, especially in light of
other evidence in the record. Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1178
(10th Cir. 2006); see Annett v. Univ. of Kan., 371 F.3d 1233, 1237 (10th Cir. 2004) (“Unsupported
conclusory allegations . . . do not create a genuine issue of fact.”); Cone v. Longmont United

11

Hosp. Ass’n, 14 F.3d 526, 530 (10th Cir. 1994) (providing that “allegations alone will not defeat
summary judgment”). With this standard in mind, the Court considers the two causes of action
brought by Plaintiff.
I.

Hostile work environment

“To survive summary judgment, a plaintiff must show that a rational jury could find that
the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is
sufficiently severe and pervasive to alter the conditions of the victim’s employment and create an
abusive working environment . . . [and] must also produce evidence from which a rational jury
could infer that she was targeted for harassment because of her gender, race or national origin.”
Sandoval v. City of Boulder, 388 F.3d 1312, 1326-27 (10th Cir. 2007) (quoting O’Shea v. Yellow
Tech. Servs., 185 F.3d 1093, 1098 (10th Cir. 1999)).1
“Title VII does not establish ‘a general civility code’ for the workplace.” Morris v. City
of Colo. Springs, 666 F.3d 654, 663-64 (10th Cir. 2013) (citation omitted). “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.” Id. While the
“severity and pervasiveness evaluation [of a hostile work environment claim] is particularly
unsuited for summary judgment because it is quintessentially a question of fact,” the Tenth
Circuit has often “affirmed the resolution of this issue at the summary judgment stage.” Payan
v. United Parcel Servs., 2016 WL 5724743, *4 (D. Utah Sept. 30, 2016) (quoting McElroy v.
1

For purposes of the motion for summary judgment, Avalon Payson does not dispute that
Peterson is a member of a protected class and was subjected to “unwelcome” harassment.
Accordingly, for purposes of this motion the sole issue is whether that harassment was
sufficiently severe and pervasive.
12

Am. Family Ins., 630 Fed. Appx. 847, 849 (10th Cir. 2015)).
Additionally, to survive summary judgment Peterson must show that the environment
was both objectively and subjectively hostile or abusive. Morris, 666 F.3d at 664 (quoting Davis
v. U.S. Postal Serv., 142 F.2d 1334, 1341 (10th Cir. 1998)). The court assesses “the objective
severity of the harassment from the perspective of a reasonable person in the plaintiff’s position,
considering all the circumstances.” Id. These circumstances must be viewed in their totality and
include the “frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” Id. (quoting Chavez v. New Mexico, 397 F.3d 826, 83233 (10th Cir. 2005)). These standards are “sufficiently demanding” to ensure that they “filter out
complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of
abusive language” or “tense personal relationships.” Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998); see also Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1265 (10th Cir.
1998); Jeffries v. Kansas, 147 F.3d 1220, 1232-33 (10th Cir. 1998).
Turning to the facts of this case, Peterson points to the following allegations in support of
her hostile work environment claim: (1) Peterson’s supervisor, Lawson, called Peterson “sexy”
and asked if “it would be inappropriate to ask [her] out on a date” via text message (Dkt. No. 401, Peterson Dep. at 34-35); (2) Lawson “grabbed Peterson’s hips one day as [they] were putting
wheelchairs together” (id. at 68); (3) Lawson commented to Peterson, “I bet you are the type of
girl who wants sex once a month” (id.); and (4) Lawson said the word “bitch” after helping
Peterson clean up a spilled bucket of water (id. at 72). (See also Am. Compl. ¶¶ 20, 24, 45.)

13

Reviewing these allegations, the Court concludes that Peterson has failed to produce
evidence, whether considered in isolation or in the aggregate, of an objectively severe or
pervasive hostile work environment. Stated another way, no reasonable employee would find
Lawson’s conduct to be so severe, pervasive, threatening or humiliating as to alter the terms or
conditions of employment. Lawson’s remark that he thought Peterson was “sexy,” sent via text
message prior to Peterson’s first day of work and in the context of asking Peterson if it would
“be inappropriate to ask [her] out on a date,” is not severe, pervasive, threatening or humiliating,
and the Court finds that no reasonable juror could find that this conversation could have
humiliated Peterson or interfered with her work performance.
The same can be said for Lawson “grabbing” Peterson’s hips on a single occasion as he
passed her in the hallway, and Lawson stating in another situation, “I bet you are the type of girl
who wants sex once a month.” (Am. Compl. ¶24.) Such isolated actions are simply insufficient
as a matter of law to constitute severe or pervasive behavior sufficient to interfere with
Peterson’s job duties. See, e.g., Lowe v. Cardinal Health Inc., 61 F.3d 1228, 1236 (N.D. Ala.
2014) (concluding that conduct failed to meet the “severe and pervasive standard” where
supervisor’s conduct was not “physically threatening or humiliating” and because the
“cumulative effect [did not] unreasonably interfere with [plaintiff’s] job duties”).
Similarly, the court finds that Lawson’s utterance of the word “bitch,” on one occasion,
“as his back was turned away” (Am. Compl. ¶45), is not actionable harassment. Peterson
acknowledged at the time and again during her deposition that Lawson may have simply been
frustrated about cleaning up Peterson’s mess and the on-going construction at the facility when

14

he used the word. (Dkt. No. 40-5, Witness Statement of John L. Walters; Dkt. No. 40-1,
Peterson Dep., at 74 (testifying she “do[es] remember thinking that” Lawson may have been
complaining about something else when he used the word “bitch”).) And even if the word
“bitch” was directed at Peterson, a one-time “offensive utterance” cannot rise to the level
necessary for Peterson to succeed on her claim. See Schofield v. Maverik Country Store, 26 F.
Supp. 3d 1147, 1159-60 (D. Utah 2014) (holding that repeated use of the terms “ho,” “kitchen
bitches,” and “lesbo” was insufficient to create actionable hostile work environment).
Additionally, Peterson’s own admissions at the time of the events at issue indicate that
Peterson did not subjectively believe she was subjected to a hostile work environment. During
Peterson’s employment with Avalon Payson, Peterson met with Avalon Payson’s Director of
Employee Relations, Kurt Anderson, wherein Peterson expressed her concerns over Lawson’s
conduct. Anderson then explained to Peterson the definition of sexual harassment, and asked
Peterson “Do you feel you were illegally harassed?” and Peterson answered “no.” (Dkt. No. 4011, Anderson’s hand-written notes, dated July 25, 2013.) Similarly, when Anderson asked
Peterson if she could continue to “work with [Lawson],” Peterson answered “yes.” (Id.) The
Tenth Circuit has expressly stated: “[I]f the victim does not subjectively perceive the
environment to be abusive, the conduct has not actually altered the conditions of the victim’s
employment, and there is no Title VII violation.” Payan v. United Parcel Serv., 2016 WL
5724743, at *5 (D. Utah Sept. 30, 2016).
In her opposition to Avalon Payson’s motion for summary judgment, Peterson raises
several additional complaints about working at Avalon Payson. Many of these, however, have

15

nothing to do with the alleged harassment by Lawson, and focus instead on the actions of Shauna
Kraus or written discipline Peterson received.2 To the extent any of these actions can in any way
be attributed to Lawson – such as being “written up for not locking her cart,” being “assigned
undesirable work,” and having her schedule changed in such a way that was difficult to arrange
childcare” (Pl.’s Opp’n at 12, 13-14) – the court similarly concludes that none of these instances
rise to the level of severe or pervasive treatment sufficient to satisfy a hostile work environment
claim.
Similarly, Peterson’s argument, that Avalon Payson is attempting to create a “double
standard” by claiming that Lawson did not sexually harass Peterson while acknowledging that it
terminated Lawson’s employment due to his improper conduct, is unavailing. This argument has
no bearing on the essential elements of Peterson’s claim. Moreover, there is no evidence that
representatives of Avalon Payson have ever taken the position that Lawson unlawfully harassed
Peterson based on her gender. Terminating the employment of an employee or supervisor is not
evidence of harassment, especially in this case where the Plaintiff expressly stated she did not
believe she had been unlawfully harassed.
Accordingly, for the reasons stated, and applying well-established standards to the
undisputed facts, the court concludes that no severe or pervasive conduct occurred in this case
sufficient for Peterson to prevail on her hostile work environment claim.
II.

Retaliation

2

Peterson explicitly stated in her deposition that her complaints were centered on Kelly
Lawson. She agreed that she never complained of harassment by anyone other than Lawson and
that she never made any complaints about other Avalon Payson employees. (Dkt. No. 40-1,
Peterson Dep. at 131.)
16

To demonstrate prima facie retaliation under Title VII and the Utah Anti-Discrimination
Act, Peterson must show (1) that she engaged in protected opposition to discrimination, (2) a
reasonable employee would have considered the challenged employment action materially
adverse, and (3) a causal connection existed between the protected activity and the materially
adverse action. Payan v. United Parcel Serv., 2016 WL 5724743, at *7 (D. Utah Sept. 30, 2016)
(citing Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1202 (10th Cir. 2008)).
The United States Supreme Court has determined that to constitute an “adverse
employment action,” “an employer’s actions must be harmful to the point that they could well
dissuade a reasonable worker from making or supporting a charge of discrimination.”
Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006). Thus, “the inquiry
is an objective one, and not based on a ‘plaintiff’s personal feelings.’” Daniels v. United Parcel
Serv., 701 F.3d 620, 638 (10th Cir. 2012) (quoting Semsroth v. City of Wichita, 555 F.3d 1182,
1184 (10th Cir. 2009)). Applying these well-established principles to this case, the Court
concludes that Peterson has failed to show that she suffered an adverse employment action as the
result of any protected activity.
First, the Court finds there is no protected conduct here because, as set forth above, no
reasonable person would believe that sexual harassment occurred, and Peterson herself did not
subjectively believe that she had been sexually harassed. The United States Court of Appeals for
the Tenth Circuit has explained:
As the law stands, Title VII does not create a claim for every employee who
complains about the potential for Title VII violations or about other employees’
isolated racial slurs. It protects an employee who opposes ‘any practice made an
unlawful employment practice.’ 42 U.S.C. § 2000e-3(a), or who ‘reasonably
17

believes’ he is opposing a practice made an unlawful practice by Title VII. The
employer must know not only that the employee has opposed an action by the
employer . . . , but that the opposition was based on a belief that the employer’s
action constituted discrimination prohibited by Title VII.
Robinson v. Calvary Portfolio Servs., LLC, 365 F. App’x 104, 112-13 (10th Cir. 2010) (citation
omitted).
Second, even if this Court were to conclude that Peterson engaged in protected conduct,
the actions of which Peterson complains do not constitute actionable “adverse employment
actions” because they either pre-date her alleged protected activity or do not qualify as such as a
matter of law.
For example, Peterson’s allegation that she was demoted from “Director of
Housekeeping” to “housekeeper” in retaliation for complaining about Lawson fails as a matter of
law. Any confusion regarding Peterson’s official title occurred before she engaged in any
protected activity. Although the on-line job description for which Peterson applied listed
“Director of Housekeeping,” Kurt Anderson, explained that the job title was erroneous because
“Lead Director of Housekeeping” is “not a position that existed in [Avalon’s] system.” (Dkt.
No. 40-2, Anderson Dep. at 36.) Significantly, when Peterson filled out her new hire paperwork,
Peterson herself used the term “housekeeping” to describe her position in multiple instances
when asked to provide a “position description.” (Dkt. No. 40-9, New Hire Paperwork.) Further,
when Peterson’s employment began on July 15, 2013, Kraus and Lawson filled out an
“Employee Action Form” marking the beginning of Peterson’s employment and stating that
Peterson’s job title was “housekeeping.” (Dkt. No. 40-8, Employee Action Form.) Although
Peterson may have been “confused” about her job title, Peterson was the only housekeeper
18

employed by Avalon at the time, and any confusion regarding her title did not affect her duties,
pay, or any other material aspect of her job. Thus, Peterson’s claim that she was demoted as a
result of her complaints to management is not factually supported.
Peterson’s allegation that she was required to work a standard, full-time schedule in
retaliation for complaining to management is also unsupported. The record reflects that Lawson
informed Peterson via text message on June 27, 2013, weeks prior to Peterson making any
complaint, that her schedule would be “M/W/F. Part-time until arrangements can be made.”
(Am. Compl., Ex. B.) Peterson began her employment at Avalon Payson on July 15, 2013, and
just over a week later she was given a written schedule requiring her to work Monday through
Friday during standard work hours. (Dkt. No. 40-1, Peterson Dep. at 91.) Peterson’s transition
to full time was consistent with Lawson’s June 27, 2013 text message and consistent with
Peterson’s offer letter, which stated: “Your budgeted hours at the time of hire are part time,
going full time as of July 29, 2013 per pay period.” (Dkt. No. 40-10, Offer Letter.) Thus,
Peterson’s schedule change was contemplated and determined before Peterson ever complained
to management about Lawson’s conduct.
Peterson’s claim that was assigned “extra or undesirable work” as a result of complaining
about Lawson is also unsupported by the record. It does not appear that Peterson was assigned
to perform any responsibilities outside her job description, which explicitly included cleaning
Avalon Payson facilities and equipment, “including vacuuming, wiping, mopping, polishing,
etc.” (Dkt. No. 40-6, Housekeeper Job Description.) Likewise, there are no facts to support the
allegation in the Amended Complaint that after complaining to management about Lawson’s

19

conduct Peterson was “forced to work in the same office as her sexual harasser.” (Am. Compl. ¶
82(h).) Peterson readily admits that she “took it upon herself” to use a different office when she
felt uncomfortable sharing with Lawson. And even if she had been “forced” to share an office
with Lawson initially, that office assignment had been made prior to her complaints to
management.
The only action that could even theoretically constitute an adverse employment action for
retaliation purposes is the decision to “write up” Peterson for failing to lock her cart, coupled
with her subsequent placement on administrative leave for insubordination. With regard to the
“write up,” the parties do not dispute that there was a workplace rule that carts must be locked.
Peterson’s written warning explains that locking a housekeeping cart is a “Federal and State
requirement,” the violation of which “could result in citations to the facility which could result in
liability to bill for services or civil money penalties.” (Dkt. No. 40-13, Performance
Documentation Form.) In response, Peterson provides no evidence to show that any similarly
situated co-worker was treated differently for failing to lock her cart, but rather submits her own
subjective belief that the workplace rule was unnecessary under the circumstances because no
veterans were residing in the facility at the time. Peterson also claims that in any event the lock
on her cart was broken. Peterson’s assertions are irrelevant and cannot save her retaliation
claim.
The law is clear in the Tenth Circuit that written warnings that do not result in actual
disciplinary action, such as the August 2, 2013 written warning, do not constitute retaliatory
adverse employment actions under Title VII. See, e.g., Howkins v. Smith, 46 F. Supp. 3d 1175,

20

1190 (N.D. Okla. 2014); Weil v. Carecore Nat., LLC, 833 F. Supp. 2d 1289, 1297-98 (D. Colo.
2011). Moreover, under no circumstances could Peterson’s written warning constitute an
adverse employment action where, as in this case, the warning was completely expunged from
her file. (Dkt. No. 40-15, Unconditional Reinstatement Letter, dated Aug. 29, 2013; Dkt. No.
40-1, Peterson Dep. at 127.)
Similarly, Peterson’s claim that she was “placed on administrative leave” in retaliation
for engaging in protected activity – an allegation she does not make in her Amended Complaint
– is unavailing. Given the facts of this case, Peterson’s brief placement on paid administrative
leave is not an adverse employment action. Peterson has failed to show that she was placed on
administrative leave for anything other than the legitimate, non-discriminatory reason that
Avalon Payson was investigating the facts surrounding her insubordination. Moreover, and as
previously stated, at the conclusion of that investigation, Peterson was given an unconditional
offer of reinstatement to her previous position with full back pay. Avalon Payson also
terminated Lawson’s employment and even offered to pay her attorney’s fees. Under these
circumstances, Peterson’s administrative leave cannot be an adverse employment action. See,
e.g., Juarez v. Utah, 263 Fed. Appx. 726, 737 (10th Cir. 2008) (affirming district court’s
conclusion that plaintiff’s paid administrative leave did not constitute material adverse action for
Title VII retaliation purposes); Baker v. City & County of Denver, 2016 WL 54110, at *10 (D.
Colo. Jan. 5, 2016) (concluding that “a brief paid administrative leave generally is not an adverse
employment action, even in the context of a retaliation claim” because it “show[s] only a mere
inconvenience and brief alteration of job responsibilities, followed by a restoration of the status

21

quo”).
Finally, and as will be set forth in detail below, Plaintiff’s retaliation claims also fail
because she has not established that she has any damages related to her retaliation claims. As the
United States Supreme Court has noted:
The antiretaliation provision protects an individual not from all retaliation, but
from retaliation that produces an injury or harm. *** In our view, a plaintiff must
show that a reasonable employee would have found the challenged action
materially adverse, which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006) (citations omitted). In
sum, the Court finds that, as a matter of law, the facts alleged by Peterson do not establish any
adverse employment action that might dissuade a reasonable worker from making or supporting
a charge of discrimination.
III.

Damages

Finally, even if Peterson had facts sufficient to survive summary judgment on the merits
of either claim, the Court finds that she has suffered no actionable damages.
The Supreme Court has held that the “primary objective” of Title VII “is to bring
employment discrimination to an end” and to “compensate victims for their injuries.” Ford
Motor Co. v. E.E.O.C., 458 U.S. 219, 228 & 230 (1982). “The preferred means for achieving
this goal,” the Ford Court continued, “is through cooperation and voluntary compliance.” Id.
(quotations omitted). Thus, Title VII is designed to “encourage Title VII defendants promptly to
make curative, unconditional job offers to Title VII claimants.” Id. Under Ford, when a Title
VII defendant provides an aggrieved employee with unconditional reinstatement to a comparable

22

position, back pay liability ceases to accrue on the date the unconditional reinstatement is
rejected. See id. at 234-35. The only exception to the rule is where, under “special
circumstances,” the plaintiff acted reasonably in refusing the offer. Id.
Following the Supreme Court’s pronouncement in Ford, the Tenth Circuit has instructed
that a plaintiff’s unreasonable refusal to return to work after an unconditional reinstatement
constitutes a failure to mitigate damages and “will cut off an employer’s liability for damages
[under Title VII] as of the date the offer is rejected or expires.” Albert v. Smith’s Food & Drug
Centers, Inc., 356 F.3d 1242, 1253 (10th Cir. 2004) (citing Ford Motor Co. v. EEOC, 458 U.S.
219, 230-32 (1982)). “In determining whether the right to relief extends beyond the date of an
offer of reinstatement, the trial court must consider the circumstances under which the offer was
made or rejected, including the terms of the offer and the reasons for refusal.” Giandonato v.
Sybron Corp., 804 F.2d 120, 124 (10th Cir. 1986). “[A]n offer rejected solely for personal
reasons,” such as apprehension over working under a particular supervisor, “will not avoid the
rule” allowing the defendant to cut off damages. Albert, 356 F.3d at 1253; see also Giandonato,
804 F.2d at 124.
Applying these principles to the facts of this case, the Court concludes that, even
assuming arguendo that Peterson’s claims were viable, Peterson suffered no cognizable damages
because she failed to mitigate her damages by unreasonably rejecting Avalon Payson’s
unconditional offer of reinstatement. As set forth above, Avalon Payson not only reinstated
Peterson to her previous position but also offered to give her the title of Lead Housekeeper; paid
her wages for time missed; terminated her alleged harasser, Lawson; expunged her written

23

warnings and disciplinary file; offered to designate a representative “other than Shauna Kraus or
Kurt Anderson” to whom Peterson could raise any complaints, and offered to pay Peterson’s
attorney’s fees accrued to that date. (Dkt. No. 40-15, Unconditional Reinstatement.)
Applying Ford and its Tenth Circuit progeny, this Court concludes that Peterson’s refusal
to return to work under these circumstances was unreasonable, and by refusing Avalon Payson’s
offer of reinstatement Peterson failed to mitigate her damages.
CONCLUSION
For the reasons stated above the Court hereby GRANTS Avalon Payson’s motion for
Summary Judgment.
DATED this 31st day of July, 2017.

_________________________________
Dee Benson
United States District Judge

24