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Limary v. United Parcel Service, Inc.

United States District Court, D. Idaho

September 20, 2017

CRYSTAL LIMARY, an individual Plaintiff,
v.
UNITED PARCEL SERVICE, INC., a Delaware corporation, and JOHN/JANE DOES I-X, whose true identities are unknown, Defendants.

          MEMORANDUM DECISION AND ORDER

          EDWARD J LODGE UNITED STATES DISTRICT JUDGE

         Before 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.

         FACTUAL BACKGROUND

         This is 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.

         In 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. Id.

         At 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.

         As a 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.)

         In 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. Id.

         On 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.

         Despite 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.)

         In 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.” Id.

         After 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.)

         Ms. 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.)

         On 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, ¶ 23.)

         Ms. 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.)

         In 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.

         On 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. (Dkt. 17-1.)

         On 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.)

         On 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.)

         On 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.

         On 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.)

         STANDARD OF REVIEW

         Motions 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).

         Summary 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, 247-48 (1986).

         Rule 56 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.

         To show 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).

         The 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. 1988).

         DISCUSSION

         The 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).

         Title 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 § 67-5909.

         Title 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.

         1. Improper Defendant Claim

         As a 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. 17-1.)

         Ms. 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 ...


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