The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge
MEMORANDUM DECISION AND ORDER ON MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE
Pending before the Court in the above-entitled matter is the Defendant's Motion for Summary Judgment. The parties have filed responsive briefing and the matter is now ripe for the Court's review. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this Motion shall be decided on the record before this Court without oral argument.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, Christine M. Marceau ("Marceau"), began her employment with Defendant, the Idaho Department of Insurance (the "Department") as a Personnel Technician in September of 2007. She was later promoted to the position of Human Resource Specialist ("HR Specialist") in March of 2008. As HR Specialist, it was Marceau's duty to investigate "personnel problems, report findings, and mak[e] recommendations to management." (Dkt. No. 22.) Specifically, one of Marceau's responsibilities was to investigate alleged incidents of sexual harassment and report these incidents to management. Id.
Marceau testified that, early in her time as HR Specialist, she "was told by various women" that Tom Wilkerson, a Principal Financial Specialist for the Department, would "stare at their buttocks or breasts, stand unusually close to them, and, in general, make them very uncomfortable." (Dkt. No. 22.) Marceau became aware that these types of complaints "regarding Mr. Wilkerson [went] back several years," and preceded Marceau's tenure as a HR Specialist. Marceau reported such incidents to Mr. William Deal ("Deal"), Director of the Department, and Mr. Shad Priest ("Priest"), Deputy Director of the Department. According to Marceau, both Priest and Deal indicated that they "would take care of it." Id. Marceau acknowledges that none of these women filed a "formal complaint." Id. In December 2008, Marceau again complained to Deal about Wilkerson's conduct after she "personally witness[ed] Mr. Wilkerson ogling the buttocks of women, staring at their breasts, sticking out his tongue in a sexual manner, and sneaking out of my office after leaving a box of chocolates." Id. Marceau testified that "Mr. Deal again assured me he would take care of it." Id. Marceau claims that Deal failed to take remedial action. Id. In February 2009, Marceau complained to Deputy Attorney General Tom Donovan ("Donovan") that Becky Barton-Wagner ("Barton-Wagner"), the IT Supervisor for the Department, and Wilkerson had arranged a blind date between Mr. Wilkerson and another Department employee, Margene Bendetti ("Bendetti"). Marceau investigated the blind-date arrangement, viewing it as a potential "quid-pro-quo" demand, and reported the blind-date to Priest, who allegedly informed Marceau that she "was not permitted to speak with....Ms. Barton-Wagner." Marceau then proceeded to discuss the blind-date issue with an Employee Relations Specialist with the Department of Human Resources. According to Marceau, Deal informed her that "he did not feel he needed to address the blind date situation further." Id. Marceau also testifies that in April of 2009, Wilkerson "stopped in front of my officer door and luridly stuck out his tongue at me and moved it in a sexual manner." She subsequently reported this to Deal, who allegedly told Marceau that "he would speak to Mr. Wilkerson."
The Department contends, however, that it did not condone or tolerate the alleged sexual harassment. Instead, it indicates it appointed an independent investigator, Kathi Brack ("Brack"), to investigate the claims of sexual harassment. (Dkt. No. 19.) On the basis of Brack's investigation, on July 24, 2009, the Department issued a formal written reprimand of Wilkerson. Id. The written reprimand acknowledged that "several female employees came forward to complain that you stare at women to the point that they become uncomfortable, (occasionally) look at women's chests, stare at women from the back or follow them as they walk down the halls and you have a tendency to linger around the work spaces of some women." Id. The reprimand also acknowledged that "[s]everal years ago, the Department addressed similar complaints with you regarding a complaint by a female co-worker who felt you unnecessarily monitored her whereabouts and stared at her." Id.
On August 19, 2009, Marceau's employment with the Department was involuntarily terminated. The Department claims Marceau was fired for "reveal[ing] confidential H.R. information to other state employees," falsely accusing a co-worker of improperly accessing Marceau's computer, and for involving individuals from outside the Department before any investigation of that claim could take place. (Dkt. No. 19.) Marceau denies she revealed confidential H.R. information to other state employees and claims her accusation that Barton-Wagner improperly accessed her computer was factually accurate. Instead of being terminated for the reasons offered by the Department,
Marceau claims that she was terminated in retaliation for her investigation of complaints of sexual harassment.
Finally, Marceau argues that, during the period from her termination to the present, the Department has failed to comply with the notice requirements of 29 U.S.C. § 1166(a)(4)(A). Specifically, Marceau claims that she has never received the required notice of her right to continue insurance coverage and argues the Department has offered no evidence which suggests the notice was properly sent. However, the Department argues that the notice was sent to Plaintiff's proper mailing address on November 19, 2009. (Dkt. No. 19 Ex. 4.)
On June 30, 2010, Marceau filed an Amended Complaint alleging six different causes of action. In the Amended Complaint, Plaintiff articulates six separate claims against the Department. (Dkt. No. 13.) First, Marceau claims the Department retaliated against her for "complain[ing] about suspected violations of the law....as a public employee" and so "violated her First Amendment rights to speak on matters of public concern." Id. Second, Plaintiff argues that such retaliation entitled her to declaratory relief pursuant to 42 U.S.C. § 1983 as well as attorneys fees pursuant to 42 U.S.C. § 1988(b). Third, Plaintiff claims the Department "failed and continues to fail" to notify her of her right to receive COBRA benefits pursuant to 29 U.S.C. § 1166. Fourth, Plaintiff argues the Department violated I.C. § § 12-2101 et seq. because it retaliated against her for reporting a suspected violation of Idaho law. Fifth, Marceau claims the Department violated Title VII of the Civil Rights Act by permitting a sexually hostile working environment, failing to investigate complaints of gender hostility and otherwise discriminatory behavior, and by retaliating against her for complaining about discriminatory conduct following her charge of discrimination. Sixth, Plaintiff alleges discrimination on the basis of gender in violation of I.C. § § 67-5901. Marceau does not "contest entry of summary judgment on" on claims 1, 2, 4, and 6. However, she does contest the entry of summary judgment for claims 3 and 5.
The admissibility of evidence supporting or opposing a motion for summary judgment is a threshold question which must be answered before determining whether a material issue of fact exists for trial. This is because "[a] trial court can only consider admissible evidence in ruling on a motion for summary judgment." Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002) (citing Fed.R.Civ.P. Rule 56(e)). In the Motion to Strike, the Department challenges the admissibility of certain portions of the Affidavit of Christine M. Marceau in Response to Defendants' Motion for Summary Judgment ("Marceau Affidavit") as well as the Affidavit of Mindy Long ("Long Affidavit") (Dkt. No. 26.). Before evaluating the merits of Motion for Summary Judgment, this Court will consider each of the Department's evidentiary challenges to the Marceau and Long affidavits in turn.
The Department first argues that the Court should strike the Long Affidavit because it is a "sham affidavit" which contradicts her earlier deposition testimony. "The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Van Asdale v. International Game Technology, 577 F.3d 989, 998 (9th Cir. 2009) (citing Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991)(emphasis added). However, the "the sham affidavit rule 'should be applied with caution'" because the rule "is in tension with the principle that a court's role in deciding a summary judgment motion is not to make credibility determinations or weigh conflicting evidence." Id. (citing Sch. Dis. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1264 (9th Cir. 1993). Further, "[a]ggressive invocation of the rule also threatens to ensnare parties who may have simply been confused during their deposition testimony and may encourage gamesmanship by opposing attorneys." Id.
Consistent with these concerns, the Ninth Circuit has "fashioned two important limitations on a district court's discretion to invoke the sham affidavit rule." First, "the inconsistency between a party's deposition testimony and subsequent affidavit must be clear and unambiguous to justify striking the affidavit. " Van Asdale v. International Game Technology, 577 F.3d 989, 998 (9th Cir. 2009). Second, courts must "make a factual determination that the contradiction was actually a 'sham.'" Id. (citing Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 26-67 (9th Cir. 1991).
To satisfy the first prong, the inconsistency in the witness' testimony must be "clear and unambiguous." In the challenged affidavit, Long testified that "[Marceau] had never disclosed confidential information to me." (Dkt. No. 23.) The Department argues that this statement contradicts Long's earlier representations that Marceau had discussed personnel issues with her, that Marceau had no business reason for discussing such matters with her, and that she knew that Marceau "had the duty to keep [such information] confidential." (Dkt. No. 26.) While these statements appear to be conflicting, this Court cannot find, when the context of the statements is considered, that they "clearly and unambiguously" contradict Long's testimony in the affidavit. In her deposition testimony, Long identified only a single specific incident in which Marceau shared personnel-related information. Specifically, she indicated that Marceau had told her that she "was frustrated with Becky Barton-Wagner['s]" handling of a work-related issue. While Long testified that she "probably shouldn't know," about this information, such a statement does not "clearly and unequivocally" contradict her testimony that Marceau "had never disclosed confidential information to me." This is because the qualifying phrase "probably"reveals at least some level of uncertainty as to whether the information Marceau shared was in fact confidential. While it is true that Long further testified that she knew Marceau had the duty to keep information obtained by virtue of her position as an HR Specialist confidential, Long repeatedly indicated she did not recall "the nature of" the conversations in which Marceau allegedly divulged confidential information. Given that Long repeatedly represented that she could not even remember what kind of information was being allegedly divulged, it would be difficult for this Court to conclude that the Long Affidavit "clearly and unequivocally" contradicted Long's prior deposition testimony.
However, even if the Long Affidavit "clearly and unequivocally" contradicted Long's prior statements regarding Marceau's alleged disclosure of confidential information, such a finding is not alone sufficient for this Court to strike the affidavit. In addition, this Court must "make a specific factual finding" that the "contradiction was actually a sham." Van Asdale v. International Game Technology, 577 F.3d 989, 999 (9th Cir. 2009). (Finding that the District Court's sole determination that simply finding a contradiction in an affidavit with prior testimony given during a deposition the affidavit must be disregarded is insufficient to strike the affidavit.) Importantly, Courts in the Ninth Circuit are particularly reluctant to find a sham affidavit when the challenged affidavit is not from a party to the suit. Nelson v. City of Davis, 571 F.3d 924, 928 (9th Cir. 2009) (quoting Lane v. Celotex Corp., 782 F.2d 1526, 1531 (11th Cir. 1986) (emphasis added). ("While a district court may find that a party's contradictory affidavit constitutes a sham,....we would be unable, absent great trepidation, to affirm a similar finding with respect to a disinterested witness' contradictory affidavit.") Given this reluctance, as well as this Court's finding that the Department has not offered sufficient evidence to demonstrate that any contradictory testimony was in fact offered for the purpose of avoiding summary judgment, this Court cannot make the required finding that the "contradiction is actually a sham." Therefore, the Department's Motion to Strike the Long Affidavit must be denied.
The Department next moves to strike ¶ ¶ 4, 7, 9, 11, 12, 18, 21, 24, 25, 28, 29, 30, 34, 39, 42, 43, 45, 48, 49, 51, 53, 54, 55, 61, 64, of the Marceau Affidavit. The Department claims each of these paragraphs contain hearsay and therefore must be stricken. Marceau contends however, that the challenged statements are admissions by a party-opponent and may be properly considered.
Hearsay is a "statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c). Federal Rule of Evidence 801(d)(2)(D) provides, however, that "[a] statement is not hearsay if [t]he statement is offered against a party and is a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." Plaintiffs argue that "[t]he statements which Defendants ask the Court to strike fall within" this exception. To fall within the scope of Rule 801(d)(2)(D) however, Marceau must first show that the challenged statement was made by an "agent or servant" of the Department. Second, she "[must] lay a foundation to show that an otherwise excludible statement relates to a matter within the scope of the agent's employment." Sims v. Lakeside School, 2007 WL 4219347(W.D. Wash. Nov. 28, 2007 ) (quoting Breneman v. Kennecott Corp., 799 F.2d 470, 473 (9th Cir 1986). Third, the statement must be "concerning a matter within the scope of the agency or employment."
First, to qualify as an admission by a party-opponent, the challenged statements must have been made by an "agent or servant" of the Department. The Department concedes that Barton-Wagner, Teresa Jones, Don Roberson, Long, and Bob Pridgen, as employees or former employees of the Department, are "agents or servants" as contemplated by Rule 801(d)(2)(D). The Department asserts instead that "the record fails to establish that the alleged statements by Becky Barton-Wagner, Teresa Jones, Don Robertson, Long, and Bob Pridgen occurred within the scope of the declarants' employment or that they were authorized to make such statements on behalf of the [Department]." However, the proponent of evidence is not required to lay a foundation establishing that the "agent or servant" had authority to make the statements. Instead, the rule requires only that "the proffering party lay a foundation to show that an otherwise excludible statement relates to a matter within the scope of the agent's employment." Sims v. Lakeside School, WL 4219347 (Nov. 28, 2007, W.D. Wash.) (quoting Breneman v. Kennecott Corp., 799 F.2d 470, 473 (9th Cir 1986). "When a court is evaluating whether such a foundation has been established, 'the contents of the statement shall be considered but are not alone sufficient to establish...the agency or employment relationship and scope thereof." Sea-Land Service, Inc. v. Lorzen Intern., LLC, 285 F.3d 808, 821 (9th Cir. 2002) (quoting Fed. R. Evid. 801(d)(2)). This Court finds that Marceau has not laid the required foundation for the challenged statements in ¶ ¶ 18, 43, 64 and so may properly strike them. However, Marceau has laid the required foundation for the statements made in ¶ ¶ 28, 29, 30, and 54. As a result, this Court may consider the statements contained in those paragraphs. The statement in ¶ 25 is not hearsay and therefore may be properly considered.
The Department next claims that because Donovan, Birch, Benjamin, Webber, and Brack were not "employees" of the Department, Rule 801(d)(2)(D) does not apply to the statements made by them in ¶ ¶ 7, 9, 12, 21, 24, 34, 39, 45 48, 51, and 53. However, Rule 801(d)(2)(D) is clear that the exception applies to both an "agent" and "servant" of the Department, not just "employees." While the Federal Rules of Evidence do not specifically define "agent" and "servant" for the purposes of 801(d)(2)(D), "we believe that Congress intended Rule 801(d)(2)(D) 'to describe the traditional master-servant relationship as understood by common law agency doctrine." Lippay v. Christos, 996 F.2d 1490 (3rd Cir. 1993) (quoting Boren v. Sable, 887 F.2d 1032, 1038 (10th Cir. 1989)). Under this common law agency doctrine, "[a]n agent is one who 'acts on the principal's behalf and subject to the principal's control.' To form an agency relationship, both the principal and the agent must manifest assent to the principal's right to control the agent." US v. Bonds, 608 F.3d 495, 504 (9th Cir. 2010) (citing Restatement (Third) Agency § 1.01). While these persons may be "agents" or "servants" of the Department, Marceau has made no showing in the record as to whether any of these individuals are "agents" or servants of the Department. As a result, the challenged statements must be stricken to the extent that they constitute hearsay. This Court finds that the statements contained in ¶ ¶ 7, 12, 21, 24, 34, 39, 48, and 53 are not hearsay because Marceau was merely testifying to the fact that certain statements were made by others rather than to the facts contained within those statements. However, ¶ ¶ 9, 45, and 51 do constitute hearsay and therefore must be stricken.
Finally, this Court finds that the statements allegedly made to Marceau by unidentified women in ¶ ¶ 4, 11, 42, 55, and 61 do not fall within the scope of Rule 801(d)(2)(D), as Marceau has made no showing that the women were "agents or servants" of the Department. However, ¶ ¶ 4 and 11 are not hearsay and so may be considered by this Court. However, ¶ ¶ 42, 55 and the first line of ¶ 61 do constitute hearsay and must be stricken.
C. Best Evidence Rule Challenge
The Department next moves to strike ¶ ¶ 13, 31, 38, 43, 56, 57, 61, and 62 of the Marceau Affidavit on the ground that these paragraphs contain statements about the content of emails which Marceau has failed to introduce into evidence. Generally, "[t]o prove the content of a writing...the original writing....is required, except as otherwise provided in these rules or by Act of Congress." Fed. R. Evid. 1002. The requirement that the original writing must be produced in order to prove the content of the writing is frequently referred to as the "best evidence rule." "The purpose of the best evidence rule is to prevent inaccuracy and fraud when attempting to prove the contents of a writing." United States v. Ross, 33 F.3d 1507, 1513 (11th Cir. 1994). "The rule's application turns on 'whether contents [of the document] are sought to be proved" Id. or instead whether the testimony merely "states a fact about [the] writing" such as whether the document exists, "its type, history, execution or delivery." 2 McCormick on Evidence § 234 (6th ed.) (internal citations omitted). If testimony attempts to prove the contents of the document, such testimony is not admissible unless the original document is provided or an indication the original is lost. Conversely, where the testimony merely states a fact about the writing, then the challenged testimony is admissible. "Where the rule applies, the proponent must produce the original (or a duplicate, see Fed.R.Evid. 1003) or explain its absence." United States v. Bennett, 363 F.3d 947, 953 (9th Cir. 2004).
It is uncontested that Marceau has not produced the emails referenced in her affidavit. Nor does Marceau produce an acceptable duplicate pursuant to Fed. R. Evid.1003 or "explain [the email's] absence." Instead, Marceau argues that "[n]owhere does the testimony purport to rely on the contents of the email" and so it may not be properly stricken. Thus, whether the challenged statements must be stricken pursuant to Fed.Rule.Evid. 1002 turns on whether the challenged testimony attempted to "prove the contents of" the referenced emails or ...