The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER RE: PLAINTIFF'S MOTION TO AMEND COMPLAINT (Docket No. 29) DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Docket No. 32)
Currently pending before the Court are (1) Plaintiff's Motion to Amend Complaint (Docket No. 29), and (2) Defendant's Motion for Summary Judgment (Docket No. 32). Having carefully reviewed the record, participated in oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:
Kristi Stephens ("Plaintiff") began her career with the Idaho Department of Parks and Recreation ("Defendant," "IDPR," or "Department") as a seasonal worker in 1986 and, in 1989, became a park ranger. See Pl.'s Compl., ¶ 19 (Docket No. 1). In the Spring of 2004, Plaintiff applied for the vacant park manager position at Dworshak State Park near Orofino, Idaho. See id. at ¶ 21. On July 18, 2004, Plaintiff was appointed as "Park Manager 3" at Dworshak State Park. See id. at ¶¶ 14 & 22. At the time of her promotion, Plaintiff was the first and only female to ever be promoted above the position of "Park Manager 1"; Plaintiff was also the first person to make the three-step vertical move up from "Ranger" to "Park Manager 3." See id. at ¶ 22. Plaintiff was fired on December 16, 2008. See id. at ¶ 46. Plaintiff alleges she was wrongfully terminated and, in her original Complaint, asserted three claims for relief: (1) gender discrimination, (2) hostile work environment, and (3) negligent infliction of emotional distress. See id. at ¶¶ 51-58.
Plaintiff seeks to amend her Complaint to add three additional claims: (1) violation of civil rights pursuant to 42 U.S.C. § 1983 (denial of 14th Amendment procedural due process rights); (2) violation of civil rights pursuant to 42 U.S.C. § 1983 (denial of 14th Amendment substantive due process rights); and (3) breach of implied covenant of good faith and fair dealing. See Pl.'s Proposed First Am. Compl., ¶¶ 72-84 (Docket No. 29, Att. 2). Defendant opposes these efforts while also moving for summary judgment on Plaintiff's gender discrimination, hostile work environment, and negligent infliction of emotional distress claims. See Def.'s Mot. for Summ. J. (Docket No. 32).
Although Rule 15 generally provides a liberally allowed avenue for amending pleadings, once a scheduling order has been entered pursuant to Rule 16(b), an additional showing of "good cause" for amendment must be made if the scheduling order deadline for amendment has passed. See Johnson v. Mammoth Recreation, Inc., 975 F.2d 604, 608 (9th Cir. 1992) ("A party seeking to amend a pleading after the date specified in the scheduling order must first show good cause for amendment under Rule 16, then if good cause be shown, the party must demonstrate that amendment was proper under Rule 15."). The "good cause" standard under Rule 16 focuses primarily on the "diligence of the party seeking the amendment." See id. at 609. "If the party seeking the modification was not diligent, the inquiry should end and the motion to modify should not be granted." Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citation and internal quotation marks omitted).
B. Motion for Summary Judgment
One of the principal purposes of the summary judgment "is to isolate and dispose of factually unsupported claims . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is "not a disfavored procedural shortcut," but is instead the "principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). To carry this burden, the moving party need not introduce affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. See Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).
This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in her favor. Id. at 256-57. The non-moving party must go beyond the pleadings and show "by her affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine issue of material fact exists. Celotex, 477 U.S. at 324. Only admissible evidence may be considered in ruling on a motion for summary judgment. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002); see also Fed. R. Civ. P. 56(e).
A. Plaintiff's Motion to Amend Complaint (Docket No. 29)
Plaintiff argues that, through discovery -- in particular, the April
2011 depositions of Betsy Johnson, Dean Sangrey, and David White --
she "discovered additional facts, which[,] when considered in
conjunction with the original allegations in the May 27, 2010
complaint, and when considered in their own light, warrant the
amending of the original complaint." See Pl.'s Mem. in Supp. of Mot.
to Am., p. 2 (Docket No. 29, Att. 1). Consistent with FRCP 15(a)(2),
Plaintiff "requests the Court's approval to file the amended complaint
because justice so requires." See id. at p. 4. However, Plaintiff's
amendment efforts take place nearly six months after the December 17,
2010 amendment deadline set forth in the Court's September 2, 2010
Case Management Order. See 9/2/10 CMO (Docket No. 15).*fn1
Therefore, to amend her pleadings, Plaintiff must actually
satisfy the more heightened "good cause" standard under FRCP 16(b)(4).
See supra at pp. 2-3 (citing Fed. R. Civ. P. 16(b)(4) ("A schedule may
be modified only for good cause and with the judge's
Plaintiff maintains that, through the above-referenced depositions, she "discovered that she was not afforded procedural rights during her termination and that her termination violated the implied covenant of good faith and fair dealing." See Pl.'s Mem. in Supp. of Mot. to Am., p. 2 (Docket No. 29, Att. 1). Independent of whether Plaintiff should have already been aware of Defendant's internal protocol for dismissing an employee (through either her 22-year employ with the IDPR or as a result of her participation with the administrative process following her termination) and whether those procedures were in fact followed here, Plaintiff offers no reason why such information could not have otherwise been discovered before the December 17, 2010 amendment deadline -- particularly when considering that Plaintiff first initiated this action on May 27, 2010. So, while it may be argued that Plaintiff only became aware of additional causes of action following these depositions, the record contains no justification for her failure to uncover these alleged circumstances before December 17, 2010 -- through either earlier written discovery or earlier depositions. This lack of diligence augurs against any finding of good cause.
Plaintiff argues, however, that the delay in taking the referenced depositions is not what it may appear. She contends that an agreement between counsel made in January 2011 called for the depositions to be taken in late February/early March 2011, but at the request of Defendant's counsel, and due to Defendant's counsel's trial schedule, the depositions had to be moved to late April 2011. See Pl.'s Reply in Supp. of Mot. to Am., p. 2 (Docket No. 31). Even if true, these scheduling changes cannot constitute good cause given that the December 17, 2010 amendment deadline had already come and gone before the parties even agreed to the referenced deposition dates in January 2011,*fn2 let alone the actual April 2011 depositions themselves. The relevant time period was that period between the time the scheduling order was entered, and the deadline in December for amendment of pleadings.
The Court accepts Plaintiff's arguments that facts emerged during depositions that could support previously-unasserted causes of action. Still, such a circumstance cannot overcome that party's lack of diligence in actually (and timely) uncovering those same facts. Even though such a result may seem harsh, the need for orderly and timely progression of the lawsuit is necessary and important. Pleadings cannot be a continuously moving target for obvious reasons. The amendment deadline serves to frame the issues at a fixed point in time so that the parties have an adequate opportunity to prepare their respective positions moving forward. Even so, the deadline will not entirely foreclose amendments, so long as the standard of good cause is met to warrant the amendment. Here, the proffered reasons for the proposed untimely amendment do not constitute good cause, particularly where a primary element of good cause is due diligence. Accordingly, Plaintiff's Motion to Amend Complaint (Docket No. 29) is denied.
B. Defendant's Motion for Summary Judgment (Docket No. 32)
The Court next considers Defendant's motion for summary judgment on each of Plaintiff's three remaining causes of action: (1) gender discrimination, (2) hostile work environment, and (3) negligent infliction of emotional distress.
1. Plaintiff's Gender Discrimination Claim
Plaintiff argues that Defendant terminated her because she is female. Under Title VII, an employer may not discriminate against an individual with respect to her privileges of employment because of her gender. See 42 U.S.C. § 2000e-2(a). Any such "disparate treatment" is a violation of federal law, unless a defense also recognized by law would insulate such action
Under the familiar burden-shifting scheme set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a plaintiff alleging disparate treatment under Title VII must first establish a prima facie case of discrimination by offering evidence that "give[s] rise to an inference of unlawful discrimination." E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009) (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). A prima facie case may be established either by (1) providing direct evidence suggesting that the employment decision was terminated based on an impermissible criterion, or (2) the four-part test laid out in McDonnell Douglas.*fn3 See id.
Once a prima facie case has been made, "[t]he burden of production, but not persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action." Chuang v. Univ. of Cal. Davis, 225 F.3d 115, 1123-24 (9th Cir. 2000).
If the employer provides such a reason, the plaintiff must then show that the articulated reason is pretextual "either directly by persuading the [fact-finder] that a discriminatory reason more likely motivated the employer[,] or indirectly by showing that the employer's proffered explanation is unworthy of credence." Tex. Dep't of Cmty. Affairs. V. Burdine, 450 U.S. 248, 256 (1981). When the evidence is direct, "'[w]e require very little evidence to survive summary judgment' in a discrimination case." Lam v. Univ. of Hawaii, 40 F.3d 1551, 1564 (9th Cir. 1994) (quoting Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1111 (9th Cir. 1991)). "But when the plaintiff relies on circumstantial evidence, that evidence must be specific and substantial to defeat the employer's motion for summary judgment." Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1095 (9th Cir. 2005).
a. Plaintiff's Burden: Establishing a Prima Facie Case
Defendant obliquely argues in a footnote that Plaintiff is incapable of establishing the prima facie elements of her disparate treatment claim, stating only that, "given her significant performance deficiencies in the core administrative duties as a Park Manager, there is no evidence that she was fully qualified for the position." See Def.'s Mem. in Supp. of Mot. for Summ. J., p. 3 n.2 (Docket No. 32, Att. 2). The Court disagrees.
As to the discrete issue of Plaintiff's ability to establish a prima facie case of disparate treatment, Defendant merely disputes Plaintiff's qualifications. On this point, it must be recognized that Plaintiff's supervisor, David White ("Supervisor White"), testified that Plaintiff was, in fact, qualified to be a Park Manager. See White Depo. at 78:22-79:14 (Docket No. 36, Att. 5). Additionally, Plaintiff had been with the IDPR for 22 years, including over four years as a Park Manager, prior to her termination. When construing all disputed facts in Plaintiff's favor, Plaintiff was qualified to be a Park Manager.
It is undisputed that Plaintiff is a woman. It is also undisputed that Plaintiff was subjected to an adverse employment action by virtue of her termination. To the extent she was fired while other similarly-situated male Park Managers were not fired (Defendant does not dispute this alleged detail), it would appear that such men were treated more favorably. These factors, along with Plaintiff's qualifications to be a Park Manager, combine to establish a prima facie case for disparate treatment. Plaintiff's arguments in this respect are therefore persuasive. See Pl.'s Resp. to Def.'s Mot. for Summ. J., p. 3 (Docket No. 36).
b. Defendant's Burden: Legitimate, Non-Discriminatory Reason for Plaintiff's Termination
The thrust of Defendant's challenge to Plaintiff's gender discrimination claim is that the IDPR had "legitimate, non-discriminatory reasons for dismissing [Plaintiff] after more than two years of poor performance." See Def.'s Mem. in Supp. of Mot. for Summ. J., p. 3 (Docket No. 32, Att. 2). According to Defendants, Plaintiff's poor performance can be summarized as: (1) Plaintiff's failure to follow Department fiscal and revenue policies, (2) Plaintiff's failure to follow directives related to employee overtime, (3) Plaintiff's lack of organization, (4) Plaintiff's inability to adequately communicate with IDPR management and fiscal staff, and (5) Plaintiff's failure to successfully discharge the core responsibilities of her position. See id. at p. 4.
i. Alleged Failure to Follow Department Fiscal and Revenue Policies
Defendants argue that, as Park Manager, Plaintiff was repeatedly told to follow internal fiscal policies, to no avail. See id. For example, ...