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Mayes v. Winco Holdings, Inc.

United States District Court, D. Idaho

April 23, 2014

KATIE MAYES, individually and for and on behalf of dependent beneficiaries, H. M., a minor child; M. M., a minor child; G.M., a minor child; K. M., a minor child; and, JORDAIN MAYES, beneficiary, Plaintiffs,
WINCO HOLDINGS, INC., an Idaho corporation, Defendant.


EDWARD J. LODGE, District Judge.

Pending before the Court in the above-entitled matter are the Defendant's Motion for Summary Judgment and related Motions to Strike. The parties have filed responsive briefing and the matters are 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, the Motions shall be decided on the record before this Court without oral argument.


The Plaintiff, Katie Mayes, worked for Defendant WinCo Holdings, Inc. (WinCo) in Idaho Falls, Idaho from April 13, 1999 until her termination on July 7, 2011. (Dkt. 1.)[1] Ms. Mayes began her employment as a department clerk and, in 2006, was promoted to a supervisory position as the Person In Charge (PIC) and Lead Crew (LC) member of WinCo's night time freight crew. (Dkt. 12.) She also served as the store Safety Committee Chief.

Ms. Mayes' termination arose over her having directed another employee, Nick McInelly, to take a cake out of the stales cart from the bakery for her crew to eat. The use of cakes in this manner, Ms. Mayes argues, was a common on-going practice that she had been given approval for by her supervisor. Ms. Mayes claims she was terminated not because of the cake but because her supervisor, Dana Steen, wanted men in charge of the freight crew. WinCo maintains Ms. Mayes was terminated for theft of the cake which constituted gross misconduct and, on that basis, she was denied benefits to continue her health care coverage for herself and her dependents.

Ms. Mayes filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and the Idaho Human Rights Commission (IHRC). On April 11, 2012, Ms. Mayes received her Notice of Right to Sue letter from the EEOC and IHRC. Having exhausted her administrative remedies, on June 15, 2012, Ms. Mayes, initiated this action by filing a Complaint alleging gender discrimination claims under Title VII, 42 U.S.C. § 2000e-1 et seq. and the Idaho Human Rights Act, Idaho Code § 18-7301 and § 67-5901, et seq. (Dkt. 12.) In addition, Ms. Mayes claims 1) WinCo violated the Comprehensive Omnibus Budget Reconciliation Act of 1985 (COBRA), 29 U.S.C. § 1161, et seq., by denying her continuing health care coverage following her termination and 2) violated federal and state wage laws, Idaho Code § 44-1503 and § 45-601 and the Fair Labor Standards Act, 29 U.S.C. § 203(d), by failing to pay her for her accrued leave and sick time (PTO). Ms. Mayes seeks compensatory, statutory, and punitive damages as well as costs and attorney fees.


Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides, in pertinent part, that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion." Fed.R.Civ.P. 56(a).[2] "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1).

The party moving for summary judgment has the initial burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986). Once the moving party has met this initial burden, the nonmoving party has the subsequent burden of presenting evidence to show that a genuine issue of fact remains. The party opposing the motion for summary judgment may not rest upon the mere allegations or denials of her pleading, but must set forth specific facts showing that there is a genuine issue for trial. Id. at 248. If the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial" then summary judgment is proper as "there can be no genuine issue of material fact, ' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).[3]

Moreover, under Rule 56, it is clear that an issue, in order to preclude entry of summary judgment, must be both "material" and "genuine." An issue is "material" if it affects the outcome of the litigation. An issue, before it may be considered "genuine, " must be established by "sufficient evidence supporting the claimed factual dispute... to require a jury or judge to resolve the parties' differing versions of the truth at trial." Hahn v. Sargent, 523 F.3d 461, 464 (1st Cir. 1975) (quoting First Nat'l Bank v. Cities Serv. Co. Inc., 391 U.S. 253, 289 (1968)). The Ninth Circuit cases are in accord. See, e.g., British Motor Car Distrib. V. San Francisco Automotive Indus. Welfare Fund, 883 F.2d 371 (9th Cir. 1989).

According to the Ninth Circuit, in order to withstand a motion for summary judgment, a party

(1) must make a showing sufficient to establish a genuine issue of fact with respect to any element for which it bears the burden of proof; (2) must show that there is an issue that may reasonably be resolved in favor of either party; and (3) must come forward with more persuasive evidence than would otherwise be necessary when the factual context makes the non-moving party's claim implausible.

Id. at 374 (citation omitted). Of course, when applying the above standard, the court must view all of the evidence in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992).


I. Motions to Strike

A. WinCo's Motion to Strike Documents - Docket 51

1. Procedural Challenges

WinCo has filed a Motion to Strike Ms. Mayes' Statement of Disputed Facts and the Affidavits of Chris Priest, Trent Gallup, and Nick McInelly arguing they are untimely and fail to conform to the format required by Local Civil Rule 7.1 and Rule 56(e). (Dkt. 51.) Plaintiffs oppose the Motion. (Dkt. 54.)

As to the timeliness of the materials, it appears that the Affidavits were filed 14 minutes after midnight on the day they were due and the Statement of Undisputed Facts was filed at 9:21 a.m. the morning after they were due because of an oversight. (Dkt. 54.) While the Court does not condone tardy filings, in this case there is no undue prejudice suffered by WinCo resulting from the untimeliness of the filings. As such, the Court denies the Motion to Strike on the basis of timeliness. The Court does caution counsel for Plaintiffs to ensure that future filings are timely made in this and other cases. While the violations may be "technical" and "inadvertent, " the fact remains that the filing requirements are not mere guidelines but are actual rules that counsel should conform its practice to ensure are met.

As to the challenge to the Plaintiffs' Statement of Facts, Local Civil Rule 7.1(c)(2) provides that

In responding to a motion for summary judgment under Federal Rule of Civil Procedure 56, in addition to the requirements contained in Federal Rule of Civil Procedure 56(c)(1), the responding party shall also file a separate statement, not to exceed ten (10) pages, of all material facts which the responding party contends are in dispute.

WinCo challenges that no disputed facts are alleged in Ms. Mayes' filing. (Dkt. 51, 56.) Essentially, WinCo disagrees with the format of the Plaintiffs' Statement of Facts to the extent it is a narrative and includes facts which it does not believe are relevant to the Motion for Summary Judgment. (Dkt. 56.) The Court has reviewed the Plaintiffs' Statement of Facts, the applicable rules, and the parties' argument on the issue and denies the Motion to Strike.

2. Substantive Challenges

WinCo has also moved to strike the Affidavit of Trent Gallup arguing it contains irrelevant information outside of the time period at issue. (Dkt. 50, App. A.) Specifically, WinCo points out that Mr. Gallup was employed by WinCo from 2000 to 2007 but Ms. Mayes' claims relate to her termination in 2011. Further, WinCo notes that the store manager at the time of Mr. Gallup's employment was Mark Wright, not Dana Steen whom Ms. Mayes alleges discriminated against her based on her gender. Thus, WinCo argues, Mr. Gallup's observations between 2000 and 2007 are irrelevant to the facts and circumstances relating to Ms. Mays' claims raised here arising from events in 2011.

Mr. Gallup's Affidavit discusses his personal observations concerning Ms. Mayes, other WinCo employees, and the practice concerning the use of in-store items by employees during the term of his employment from 2000 to 2007. As to WinCo's objection to the timeliness of the materials in the Affidavit, the Court will consider the materials only to the extent they are relevant to the time period during which Mr. Gallup was employed at WinCo. For instance, as to Ms. Mayes' contentions that the practice of using in-store items had occurred and been ongoing prior to her termination in 2011. The fact that WinCo may argue the facts concerning this alleged practice had changed following Mr. Gallup's term of employment does not, in and of itself, render Mr. Gallup's Affidavit entirely irrelevant such that it should be stricken. The Motion is denied.

B. Plaintiffs' Motion to Strike Declarations - Docket 53

Plaintiffs seeks to strike the Declarations of Beth Rieb and Ben Swanson filed with WinCo's Reply Brief or, alternatively, asks to be allowed to file a sur-reply. (Dkt. 53.) Plaintiffs argue the materials are improper additional evidence filed in violation of the applicable rules which Plaintiffs have not had an opportunity to address. WinCo maintains that the materials are proper because the rules allow such submissions with a reply brief to address new issues raised in a response brief. (Dkt. 57.) Plaintiffs counter arguing no new issues were raised necessitating the filing of additional materials. (Dkt. 58.)

"It is well established in this circuit that [t]he general rule is that appellants cannot raise a new issue for the first time in their reply briefs.'" Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990) (quoting Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 924 (9th Cir. 1988)); see also Bazuaye v. I.N.S., 79 F.3d 118, 120 (9th Cir.1996) ("Issues raised for the first time in the reply brief are waived."). When new material is raised, courts have discretion to strike that material. See, e.g, Tovar v. United States Postal Serv., 3 F.3d 1271, 1273 (9th Cir. 1993) (striking portions of a reply brief that presented new information).

However, reply affidavits that respond only to the opposing party's brief are properly filed with a reply brief. Peters v. Lincoln Elec. Co., 285 F.3d 456, 477 (6th Cir. 2002). "While the Rules are silent as to timing matters with reply affidavits, precedent establishes that, in the face of new evidence, the court should permit the opposing party an opportunity to respond" so long as no element of surprise or prejudice is created by doing so. Peters, 285 F.3d at 477. The Ninth Circuit has also recognized that "[w]here new evidence is presented in a reply to a motion for summary judgment, the district court should not consider the new evidence without giving the [non-]movant an opportunity to respond." Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (quoting Black v. TIC Inv. Corp., 900 F.2d 112, 116 (7th Cir. 1990)).

Ben Swanson is WinCo's Director of Labor Relations. (Dkt. 50, Att. 3.) In his Declaration, Mr. Swanson states that WinCo's Idaho Falls store is established as a union facility which means that each new hire automatically becomes subject to the Collective Bargaining Agreement (CBA). (Dkt. 50, Att. 3.) He goes on to note that an Employee Association Committee negotiates and signs the CBA that binds all of WinCo's hourly, non-management employees at the Idaho Falls store. A copy of the CBA is posted near the break room in the Idaho Falls store.

The Court finds that Ms. Mayes did argue in her response brief that she is not bound by the CBA and that the CBA is an illegal and unenforceable contract. (Dkt. 44 at 20.) This question is a new challenge to WinCo's position that Ms. Mayes' wage claim fails because of the terms of the CBA. As such, the Court denies the Motion to Strike as to Mr. Swanson's Declaration. The Declaration was filed in response to a new argument raised by Ms. Mayes in her response brief concerning the CBA. (Dkt. 44.) No sur-reply is necessary.

Beth Rieb is a Human Resources Specialist for WinCo who states in her Declaration that WinCo regularly makes strategic and policy decisions concerning whether it will contest a former employee's claim for unemployment benefits and that WinCo regularly declines to participate. (Dkt. 50, Att. 2.) Ms. Rieb then goes on to describe why WinCo did not opt to participate in Ms. Mayes' unemployment proceedings. Attached to Ms. Rieb's Declaration are materials relating to those proceedings.

The Court finds that Ms. Mayes did not raise a new issue concerning the Idaho Industrial Commission's determination. In her response brief, Ms. Mayes makes two references to the Idaho Industrial Commission's determination. (Dkt. 44 at 5, 15.) Attached to Ms. Mayes' response brief is the Idaho Industrial Commission's decision. (Dkt. 44, Ex. F.) The Court finds these references are not new arguments as much as they are narrative discussion of the history of her case.

Further, the findings of the Idaho Industrial Commission are not binding on this Court. See Idaho Code § 72-1368(11)(b) ("No finding of fact or conclusion of law contained in a decision or determination rendered pursuant to this chapter by an appeals examiner, the industrial commission, a court, or any other person authorized to make such determinations shall have preclusive effect in any other action or proceeding, except proceedings" brought in four circumstances not present here.). Accordingly, the Motion to Strike is granted as to Ms. Rieb's Declaration and attached materials concerning the Idaho Industrial Commission. The Court will not consider these materials in ruling on the Motion for Summary Judgment. Likewise, the Court has not considered Ms. Mayes' references to the Idaho Industrial Commission's findings as they are not binding here. Also attached to Ms. Rieb's Declaration are pages from Ms. Mayes' personnel file. To the extent these pages relate to Ms. Mayes' argument that the CBA does not apply to her, the Court finds these pages appropriate for its consideration of that question for the reasons stated above as to Mr. Swanson's Declaration.

C. Plaintiffs' Motion to Strike Declaration - Docket 43

Ms. Mayes has filed a Motion to Strike the Declaration of Gary Pickel and attached expert report arguing the materials are irrelevant, lack foundation, makes legal conclusions, and contains hearsay. (Dkt. 43.) WinCo opposes the Motion arguing Mr. Pickel has adequate personal knowledge to address the relevant topics contained therein and, regardless, the Motion specifically challenges only five paragraphs of his Declaration. (Dkt. 52.)[4] WinCo notes that it filed Mr. Pickel's Declaration in support of its Motion for Summary Judgment on the question of what constitutes gross misconduct for purposes of determining whether a terminated employee qualifies for COBRA coverage. WinCo maintains that Mr. Pickel's materials are proper Rule 56 expert testimony given concerning areas within his expertise and personal knowledge relating to the facts at issue in this case. (Dkt. 52.) In reply, Ms. Mayes argues the testimony is not relevant and otherwise fails to apply the appropriate analysis for defining gross misconduct. (Dkt. 55.)

Mr. Pickel's Declaration and attached report concern his interpretation of WinCo's employee policies based on his time spent working in the grocery store industry. (Dkt. 40-4.) In particular, Mr. Pickel offers his opinion as to WinCo's personnel policies and the Collective Bargaining Agreement. Mr. Pickel further makes generalized statements concerning the rights of businesses concerning employment matters and conclusions as to Ms. Mayes' conduct at issue in this matter.

The Court may consider expert opinion testimony in ruling on a summary judgment motion so long as it contains facts that would be admissible at trial and the opinion is based on the expert's personal knowledge. In considering expert testimony, the Court has a "gatekeeping responsibility" to objectively screen such testimony to ensure that it "is not only relevant, but reliable." Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141-42 (1999) (clarifying the court's "gatekeeping" obligation "applies not only to testimony based on scientific knowledge, ' but also to testimony based on technical' and other specialized' knowledge"). Prior to considering proffered expert testimony, a trial court "must merely make a determination as to the proposed expert's qualifications." Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1124 (9th Cir. 1994). A court is not to attempt to determine whether an expert's conclusions are correct, but rather examine only "the soundness of his methodology." Daubert, 43 F.3d at 1318. In doing so on a motion for summary judgment, the Court does not weigh the persuasiveness or credibility of one expert as compared to the other but, instead, only determines whether there is a genuine issue for trial.

In general, contract interpretation is a matter of law for the Court. Flores v. Arizona, 516 F.3d 1140, 1166 (9th Cir. 2008). Expert "testimony cannot be used to provide legal meaning or interpret [a contract] as written." McHugh v. United Serv. Auto. Assoc., 164 F.3d 451, 454 (9th Cir. 1999) (citation omitted). But, an expert can testify about the practices and norms of an industry if the expert is "qualified as an expert by knowledge, skill, experience, training, or education." Hangarter v. Provident Life and Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004) (quoting Federal Rule of Evidence 702). The Ninth Circuit has also recognized that there may be "instances in rare, highly complex and technical matters where a trial judge utilizing limited and controlled mechanisms, under the matter of trial management, permits some testimony seemingly at variance with the general rule." Flores, 516 F.3d at 1166 (citation omitted).

This case does not present such a highly complex or technical matter that necessitates expert opinion as to the interpretation of the contract. Accordingly, the Court will grant the Motion to Strike as to any opinion testimony on how the contract should be interpreted for purposes of this summary judgment motion. The Court will, however, allow Mr. Pickel's testimony about industry practices and norms. In so ruling, the ...

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