United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
J LODGE UNITED STATES DISTRICT JUDGE
the Court in the above entitled matter is the Defendants'
Motion for Summary Judgment. (Dkt. 17.) The parties have
filed responsive briefing and the Motion is ripe for the
Court's consideration. 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 Motion shall be decided on the record before this Court
without oral argument.
a gender discrimination and retaliation suit brought under
Title VII of the Civil Rights Act and the Idaho Human Rights
Act. On August 28, 2007, Plaintiff, Crystal Limary, began
working as a temporary employee for Defendant United Parcel
Service, Inc. (“UPS”). (Dkt. 21, ¶ 3.) She
worked as a part-time Customer Counter Associate on the day
shift at the Boise UPS Center. Id. This position
became permanent in March 2008. Id.
2009, Ms. Limary's daughter received a combination of
diagnoses including a rare genetic disorder that makes her
prone to extreme behavioral incidences. (Dkt. 21, ¶ 4.)
That same year, Ms. Limary was relocated from the Boise UPS
Center to the Nampa UPS Center. Id. When she was
transferred from Boise to Nampa, Ms. Limary communicated to
UPS her need to remain on day shift due to difficulties
finding suitable childcare for her disabled daughter.
first, while in Nampa, Ms. Limary worked under the
supervision of Blaine Hemmert. (Dkt. 21, ¶ 5.) Ms.
Limary enjoyed a solid working relationship with Mr. Hemmert
and, in 2010, she was promoted to Part-Time Package Center
Supervisor (PTPCS). Id. At the time she was
promoted, Mr. Limary again communicated to UPS her need for
daytime hours. Id.
PTPCS, Ms. Limary's role was to supervise drivers and
package handlers to ensure all assigned duties were
accomplished safely and timely. (Dkt. 17-1.) According to
UPS, Ms. Limary was a salaried, non-union, at-will employee
as a member of UPS management. (Dkt. 17-1.)
2011, Mr. Hemmert retired and was replaced by Kevin Tolbert
who worked as the Business Manager of the UPS Nampa Center.
(Dkt. 21, ¶ 6.) Ms. Limary immediately observed that Mr.
Tolbert favored male employees and treated female employees
poorly. Id. For example, Ms. Limary received an
unfavorable performance evaluation for the first time after
Mr. Tolbert became her supervisor and Mr. Tolbert referred to
females in the workplace as old and needing to retire, stupid
bitches, as lacking in intelligence, and old hags.
January 4, 2013, Ms. Limary emailed Evan Johnson, Idaho Human
Resources Manager, a letter requesting a hardship transfer
from the Nampa UPS Center to the Boise UPS Center. (Dkt. 21,
Ex. 2.) Ms. Limary sought to return to the Boise Center due
to her daughter's medical needs, vehicle maintenance
costs, and fuel costs. Id.
this transfer request and Ms. Limary's previous
statements concerning her need to remain on the day shift, in
the mid to latter part of January 2013, Ms. Limary was
informed she would be reassigned to the night shift at the
Nampa Center. (Dkt. 20-1, ¶ 11; Dkt. 17-14. Limary Depo.
at 147.) UPS explains that Ms. Limary was asked to take over
the night shift because one of the PTCPSs retired and Ms.
Limary had the least seniority of the three remaining PTPCSs.
(Dkt. 17-2, ¶ 2.)
February 2013, Ms. Limary “reported Mr. Tolbert for
violating [UPS's] Code of Business Conduct.” (Dkt.
20.) Specifically, Ms. Limary reported to Mr. Johnson and
Anthony Nelson, the Area Human Resources Manager, that Mr.
Tolbert used derogatory and inappropriate terms, such as
“old hag” and “stupid bitch” in
reference to her female coworkers. (Dkt. 21, ¶ 7.) Ms.
Limary also explained to Mr. Johnson and Mr. Nelson that she
believed Mr. Tolbert treated female employees less favorably
than male employees and that his statements were
“consistent with the way in which [he] had behaved
towards women since he replaced Mr. Hemmert.”
making the report against Mr. Tolbert, on or around March 1,
2013, Ms. Limary's hardship transfer request was denied.
(Dkt. 21, ¶ 10.) Ms. Limary argues that “she was
clearly eligible for the transfer per UPS policy due to [her
daughter's] severe disability.” (Dkt. 20.) Mr.
Nelson told Ms. Limary her request was denied “due to
the fact that her Quality Performance (“QPR”)
scores were below fully acceptable, ” which Ms. Limary
contests. (Dkt. 20.)
Limary further alleges that, after making the report against
Mr. Tolbert, she was constantly harassed over her wardrobe,
even though her wardrobe had not changed and she was
compliant with the UPS dress code. (Dkt. 21, ¶ 15.) In
addition, in June 2013, Ms. Limary expressed an interest in a
driver position and did not hear back from UPS and, in August
2013, Ms. Limary contends she was harassed with phone calls
when she went on leave for three days to tend to her son who
had been admitted to the hospital. (Dkt. 21, ¶ 17.)
September 11, 2013, Ms. Limary filed a Charge of
Discrimination against UPS with the Idaho Human Rights
Commission (IHRC) alleging workplace discrimination based on
her sex and her daughter's genetic disability and that
she suffered retaliation after reporting Mr. Tolbert's
conduct to HR. (Dkt. 21, ¶ 17-19.) While the Charge was
pending, Ms. Limary states the harassment continued and Mr.
Tolbert instructed her co-workers to blame her for any
mistakes made in her section and “dig up as much dirt
as possible” about her. (Dkt. 21, ¶ 19-21.) Ms.
Limary also claims Mr. Tolbert staged a surveillance camera
to monitor her during her work hours. (Dkt. 21, ¶ 22.)
In addition, Ms. Limary was passed over twice when
opportunities became available on the day shift. (Dkt. 21,
Limary continued to work for UPS until November 20, 2014 when
she filed a Family and Medical Leave Act (“FMLA”)
request for continuous leave through February 20, 2015. (Dkt.
17-1.) UPS granted her leave request. (Dkt. 17-1.)
January 2015, Mr. Tolbert was rotated to the Twin Falls
Center and his position with the Nampa Center was filled by
Brad Shreeve. (Dkt. 17-9, Tolbert Affidavit ¶ 11.)
Nevertheless, even with Mr. Tolbert out of the office, Ms.
Limary did not return to work on February 20, 2015. (Dkt.
17-1.) In addition, Ms. Limary did not respond to UPS
notifications that additional documentation was needed for
her unexcused absences. Id.
April 2, 2015, Ms. Limary met with Mr. Shreeve at the Nampa
Center and participated in a telephone conference with Tina
Lahaszow, then Area Human Resources Manager. (Dkt. 17-1.) Ms.
Lahaszow explained that in order for Ms. Limary to return to
work she needed to provide UPS with documentation from her
healthcare provider so UPS could retroactively modify her
unexcused leave from February 20, 2015 to April 2, 2015.
April 3, 2015, Ms. Limary's healthcare provider sent UPS
the requested documentation stating that during Ms.
Limary's absence she was unable to perform
“customer service, organization, [and] supervision,
” which were all essential functions of her position.
(Dkt. 17-1; Dkt. 17-14, Ex. 3.) Mr. Shreeve informed Ms.
Limary that she could return to work as soon as UPS received
information that released her to perform the essential
functions of her position. (Dkt. 17-1.)
April 21, 2015, Ms. Limary, through her attorney, sent UPS a
letter notifying them of her resignation. (Dkt. 17-1.) Ms.
Limary contends she was constructively discharged given the
discriminatory and retaliatory conduct she experienced at UPS
beginning in or around February 2013. (Dkt. 21, Ex. 8.)
August 10, 2015, after exhausting all administrative
remedies, Ms. Limary filed suit against UPS in the District
Court of the Fourth Judicial District. (Dkt. 1-2.) Before UPS
filed an Answer, Ms. Limary filed her First Amended Complaint
and Demand for Jury Trial. (Dkt. 1-2, pp. 31-54.) In this
pleading, Ms. Limary brings four claims against UPS: sex
discrimination in violation of Title VII of the Civil Rights
Act of 1964 and the Idaho Human Rights Act and retaliation in
violation of Title VII of the Civil Rights Act of 1964 and
the Idaho Human Rights Act.
September 9, 2015, UPS removed the case to this Court
pursuant to 28 U.S.C. § 1441(a) and (c). (Dkt. 1.) Just
over a year later, on September 16, 2016, UPS filed the
instant Motion asking the Court to grant summary judgment in
its favor on all of Ms. Limary's claims. (Dkt. 17.)
for summary judgment are governed by Rule 56 of the Federal
Rules of Civil Procedure. Summary judgment is appropriate
where a party can show that, as to any claim or defense,
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a).
judgment is “not a disfavored procedural shortcut,
” but is 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.”
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
“[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,
mandates summary judgment if the non-moving party fails to
make a showing sufficient to establish the existence of an
element which is essential to the non-moving party's case
and upon which the non-moving party will bear the burden of
proof at trial. See Celotex, 477 U.S. at 322.
the material facts are not in dispute, a party may cite to
particular parts of the record, or show that the materials
cited in the record do not establish the presence of a
genuine dispute, or that the adverse party is unable to
produce admissible evidence to support the fact. Fed.R.Civ.P.
56(c)(1)(A)&(B); see T.W. Elec. Serv., Inc. v.
Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630
(9th Cir. 1987) (citing Celotex, 477 U.S. at 322).
The Court must consider “the cited materials, ”
but it may also consider “other materials in the
record.” Fed.R.Civ.P. 56(c)(3).
materials presented by the parties must be “presented
in a form that would be admissible in evidence.”
Fed.R.Civ.P. 56(c)(2). The Court does not make credibility
determinations or weigh the evidence put forth by the
non-moving party. Anderson, 477 U.S. at 255;
Hughes v. United States, 953 F.3d 531, 541 (9th Cir.
1992). The evidence, including all reasonable inferences
which may be drawn therefrom, must be viewed in a light most
favorable to the non-moving party. Anderson, 477
U.S. at 252. Direct testimony of the non-movant must be
believed, but the Court is not required to adopt unreasonable
inferences from circumstantial evidence. See Leslie v.
Grupo ICA, 198 F.3d 1153, 1159 (9th Cir. 1999);
McLaughlin v. Lui, 849 F.2d 1205, 1208 (9th Cir.
federal and state gender discrimination and retaliation
claims are addressed together because claims brought under
the Idaho Human Rights Act are analyzed in the same manner as
claims brought under their equivalent federal statutes.
See Wallis v. J.R. Simplot Co., 26 F.3d 885, 888 n.4
(9th Cir. 1994).
VII of the Civil Rights Act of 1964 provides that “[i]t
shall be an unlawful employment practice for an employer . .
. 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 individual's . . . sex . .
..” 42 U.S.C. § 2000e-2(a)(1). The Idaho Human
Rights Act mimics this language. See IHRA §
VII also provides that “[i]t shall be unlawful
employment practice for an employer to discriminate against
any of his employees because [she] has opposed any practice
made an unlawful employment practice by this subchapter, or
because [she] has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding,
or hearing under this subchapter.” 42 U.S.C. §
2000e-3(a). Again, the Idaho Human Rights Act contains nearly
identical language. See IHRA § 67-5911.
Improper Defendant Claim
preliminary matter, UPS argues that Ms. Limary has sued the
wrong party because United Parcel Service, Inc., an Ohio
corporation, was her employer, not United Parcel Service,
Inc., a Delaware corporation. (Dkt. 17-1.) UPS further
alleges Ms. Limary was put on notice of this distinction in
numerous filings but failed to amend her complaint. (Dkt.
Limary contends that while UPS did assert this distinction in
footnotes to several pleadings and discovery responses, they
have not provided any evidence in support of the allegation.
Ms. Limary further argues the evidence available suggests
that she was, in fact, employed by Defendant ...