United States District Court, D. Idaho
MEMORANDUM OPINION AND ORDER RE: SUMMARY JUDGMENT
JUSTIN L. QUACKENBUSH, Senior District Judge.
BEFORE THE COURT are Defendants' Motion for Summary Judgment (ECF No. 39), Plaintiff's Motion for Partial Summary Judgment (ECF No. 40), and the parties various Motions to Strike supporting evidentiary materials (ECF No. 56, 57, and 71). The court heard oral argument on the matters in Boise, Idaho on September 22, 2014. Kathryn Harstad and Erika Birch appeared for the Plaintiff, who was present. Phillip Collaer and Tracy Crane argued on behalf of Defendants. The court allowed the parties to submit supplemental briefs, which the court has received and considered.
I. Introduction/Procedural History
This action was filed on January 22, 2013. Defendants filed an early Motion for Partial Summary Judgment (ECF No. 6) on March 13, 2013. The court granted in part the Motion for Partial Summary Judgment. (ECF No. 19). As a result of that ruling, the following claims remained:
1. The Title VII claims in Counts I and II against IDOC ("Idaho Department of Corrections");
2. The 42 U.S.C. § 1983 claims in Count III against Defendants Atencio and Reinke in their official capacities;
3. The claim in Count VI against Atencio in his individual capacity for negligent/intentional infliction of emotional distress.
II. Factual Background
The court herein recites the basic undisputed Factual Background and will reference the applicable facts in its discussion of the individual claims.
Plaintiff, Cynthia Fuller, (hereafter "Plaintiff" or "Fuller") is a former employee of the Idaho Department of Corrections ("IDOC"). She resigned on November 16, 2011. Plaintiff began working for IDOC as a correctional officer in 2004 and was promoted to Sergeant. In October 2010, she became a probation and parole officer. In 2011, she requested, and received, a transfer to the Caldwell Division III Probation and Parole Office ("D-3 Office"). In March or April 2011, Fuller began a sexual relationship with a co-worker, Herbt Cruz. Plaintiff was aware of a Department of Corrections policy requiring that employees disclose romantic relationships with co-employees, but neither Plaintiff or Cruz disclosed their ongoing relationship to supervisors until sometime after August 15, 2011.
On or about August 1, 2011, a criminal investigation of Cruz was opened in Idaho for allegedly raping another woman (not Plaintiff). On August 15, 2011, IDOC placed Cruz on administrative leave pending the investigation. Plaintiff continued her romantic relationship with Cruz. Plaintiff alleges that thereafter she was assaulted and raped by Cruz on three occasions, the first of which was August 22, 2011. Fuller did not immediately report that alleged assault to her employer or law enforcement and resumed her relationship with Cruz. Plaintiff alleges she was also assaulted by Cruz on August 30, 2011, but that alleged assault was also not reported until September 6, 2011. Despite the assaults, Plaintiff testified that she continued to be "romantically involved" with Cruz, and continued the sexual relationship, until on or about September 3, 2011 when she was allegedly assaulted again by Cruz. (See Fuller Depo. p. 122-125; 140-141). Fuller reported the Cruz assaults to law enforcement on September 6, 2011. On September 7, 2011, Plaintiff obtained an Order of Protection and took leave from work.
Plaintiff was not allowed paid administrative leave, but was allowed to use her sick leave and vacation time while she was at home. Plaintiff was also offered intermittent leave under the Family Medical Leave Act ("FMLA"). Fuller makes no claim under FMLA. She returned to work on October 19, 2011. Plaintiff alleges that although Cruz was on administrative leave while being investigated concerning the alleged assault on the third-party and she had an Order of Protection, she felt unsafe at work, although Cruz at no time returned to the work place. Fuller claims the IDOC did not take adequate remedial measures to protect her from further contact by Cruz even though no such contact occurred.
On November 10, 2011, Plaintiff attended a meeting with Henry Atencio, Kim Harvey, and Roberta Hartz, supervisors, to discuss further notice to other employees that Cruz was not allowed on the IDOC premises and Plaintiff's request for paid leave. Plaintiff secretly recorded that meeting and a transcript of the meeting is part of the record. (at ECF No. 47-26). At the November 10, 2011, meeting, Fuller told her supervisors that she felt ostracized because her co-workers did not know the full story as to why she had been on leave and had missed POST training. Fuller also stated, "and I believe the supervisors have been very supportive, absolutely." Fuller further stated that although she was now in an "uncomfortable situation, " that "the whole thing-I mean, granted, you know, it's not your guys' fault that I - you know, I got into that kind of relationship." (Tr. p. 32). At the conclusion of the meeting, Atencio stated: "Well, I think the two things we need to do, we'll talk to one of our AG's [Assistant Attorney Generals] about how we can, you know, announce Cruz's not being allowed to be by the building, or in the building, how we can do that legally. And then the other thing is looking at it, again, with paid leave options in the future for you." (Tr. p. 39).
On November 16, 2011, Kim Harvey sent a notice to all District 3 employees informing them that Cruz is "on leave pending an investigation" and that he is "not allowed in the D-3 offices" and that "if anyone sees him, they are to notify a supervisor." (ECF No. 47-40). That very same day, after receiving the e-mail, Plaintiff submitted her "Resignation Memo". (ECF No. ECF No. 47-41). Plaintiff later filed for unemployment benefits. The IDOC contested the claim. An Idaho Department of Labor hearing was held on January 27, 2012, and benefits were denied.
III. The Remaining Claims
The Title VII claims in Count I allege hostile work environment and constructive discharge. (ECF No. 1, p. 9). Plaintiff claims that IDOC "failed to take adequate remedial measures to prevent [Cruz's] on-going sexual harassment within the workplace" and that IDOC's failures to take such measures led to Ms. Fuller's constructive discharge. (ECF No. 1, ¶¶ 48-53). Count II alleges gender discrimination and disparate treatment leading to constructive discharge. Plaintiff complains that she was not offered paid administrative leave, and that Cruz was on paid administrative leave. Count III alleges violation of Equal Protection under the Fourteenth Amendment. Count VI against Atencio alleges that Atencio caused Plaintiff emotional distress by not offering her paid administrative leave, inadequately protecting her in the workplace, and contesting her unemployment application after she was constructively discharged. (ECF No. 1, p. 15). Defendants deny these allegations.
Defendants' instant Motion for Summary Judgment seeks judgment in Defendants favor on the remaining claims. Plaintiff's Motion for Partial Summary Judgment seeks judgment in her favor on Counts I and II.
IV. Standard of Review
The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the material facts before the court. Northwest Motorcycle Ass'n v. U.S. Dept. of Agriculture, 18 F.3d 1468, 1471 (9th Cir. 1994). The moving party is entitled to summary judgment when, viewing the evidence and the inferences arising therefrom in the light most favorable to the nonmoving party, there are no genuine issues of material fact in dispute. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). While the moving party does not have to disprove matters on which the opponent bears the burden of proof at trial, they nonetheless bear the burden of producing evidence that negates an essential element of the opposing party's claim and the ultimate burden of persuading the court that no genuine issue of material fact exists. Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102 (9th Cir. 2000). When the nonmoving party has the burden of proof at trial, the moving party need only point out that there is an absence ofevidence to support the nonmoving party's case. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001).
Once the moving party has carried its burden, the opponent must do more than simply show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the opposing party must come forward with specific facts showing that there is a genuine issue for trial. Id.
Although a summary judgment motion isto be granted with caution, it is not a disfavored remedy: "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)(citations and quotations omitted).
A. Count I - Hostile Work Environment and Constructive Discharge
Plaintiff brings her claims in Counts I and II under Title VII which is codified at 42 U.S.C. 2000e-2, which provides in pertinent part:
(a) Employer practices
It shall be an unlawful employment practice for an employer-
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such ...