Opinion
Case No. CV 03-384-S-MHW.
November 16, 2004
MEMORANDUM DECISION AND ORDER
INTRODUCTION
On September 8, 2003, Gary Fenwick ("Plaintiff") filed suit against Tessenderlo Kerly, Inc. ("TKI") and Steve Sailors ("Sailors") (collectively as "Defendants"), alleging unlawful discrimination, harassment, and retaliatory or wrongful discharge under federal and state law, as well as breach of contract, negligence, and various intentional torts. Currently pending before the Court are five motions: (1) Defendants' Motion for Summary Judgment (Docket No. 21), filed July 28, 2004; (2) Defendants' Motion for Rule 11 Sanctions (Docket No. 20), filed July 28, 2004; (3) Plaintiff's Motion for Late Disclosure of Experts; (4) Defendants' Motion to Strike Plaintiff's Disclosure of Expert Witnesses (Docket No. 37), filed August 31; (5) Defendants' Motion to Strike (Docket No. 51), filed September 14, 2004; and (6) Defendants' Motion to Strike Plaintiff's Supplemental Affidavits (Docket No. 62), filed September 24, 2004.
In August 1999, TKI purchased a chemical plant in Burley, Idaho from Sundance Ag. (Affidavit of Gary Fenwick ("Fenwick Aff."); Deposition of Gary Fenwick ("Fenwick Depo."), attached to the accompanying Affidavit of J. Kevin West at 8:7-15). TKI has eleven manufacturing plants throughout the United States and nine non-manufacturing sales offices throughout several countries and it maintains its corporate headquarters in Phoenix, Arizona. (Declaration of Fernando Solano ("Solano Decl.") ¶ 4). TKI's principal chemical lab is located in its manufacturing facility in Sahuarita, Arizona. (Solano Decl. ¶ 7). This lab supports all of TKI's manufacturing facilities. (Solano Decl. ¶ 7). Thus, TKI typically does not employ a chemist at its individual manufacturing plants. (Solano Decl. ¶ 8). Instead, TKI relies primarily on its Director of Research and Development, Michael Hojjatie, to oversee the primary sampling and chemistry functions at the Sahuarita lab. (Solano Decl. ¶ 7). In addition, TKI centralizes all its safety and environmental officer at its corporate headquarters in Phoenix. (Solano Decl. ¶ 5). Consistent with this policy, after purchasing Sundance Ag., TKI shifted all of its safety and environmental officer functions from the Burley plant to the Phoenix headquarters. (Solano Decl. ¶ 6).
However, while TKI has never employed a chemist at its manufacturing plants, it decided to extend an offer of employment to Plaintiff as a chemist given that at the time TKI purchased the plant in Burley, Plaintiff was already employed by Sundance Ag. as a chemist and a plant safety officer. (Fenwick Depo at 8:25; Solano Decl. ¶ 10). Plaintiff holds a B.S. in chemistry and a Ph.D. in physical organic chemistry. (Fenwick Depo. at 7:12-16). At all the other TKI plants, lab technicians with less education and lower salaries performed most of the sampling and chemistry functions which Plaintiff performed for TKI at the Burley plant. (Solano Decl. ¶ 8). Nevertheless, when TKI announced its acquisition of Sundance Ag., the CEO of TKI, Jordan Burns, handed Plaintiff an offer letter, which Plaintiff accepted. (Fenwick Depo. at 17: 15-18:18:3). TKI management hoped and believed Plaintiff's knowledge and expertise would benefit the company. (Solano Decl. ¶ 10).
Plaintiff began his work at TKI, which included analyzing samples every day during production periods and three times a week during non-production periods. (Fenwick Depo. at 43:15-22). When Plaintiff was not analyzing samples, he prepared safety lessons and classes, training schedules, and training classes. (Fenwick Depo. at 44:12-21). To keep himself busy, Plaintiff also worked to maintain his "professional standing" and his "professional knowledge and abilities." (Fenwick Depo. at 44:12-21). Plaintiff sometimes struggled to remain busy and he would often sit around waiting for something to do, even rewriting old company documents to maintain the facade of productivity. (Fenwick Depo. at 56:25-57:3). Plaintiff also maintains that he often felt alienated at TKI because he did not feel that other TKI employees had anything to offer him in terms of friendship due to their lower levels of education. (Fenwick Depo. at 182:13-21).
According to Plaintiff, TKI's transfer of Steve Sailors to the Burley Plant from its Kansas manufacturing plant to serve as plant manager at the Burley plant only exacerbated his problems. (Solano Decl. ¶ 3). Sailors would reprimand Plaintiff for reading professional books while he was working. This frustrated Plaintiff as he believed that he was underutilized at TKI and he could not function as a professional. (Fenwick Depo. at 57:6-12). Plaintiff further asserts that Sailors began to take away his most important job duties, such as denying him the authority to change chemical mixtures or processing. (Fenwick Aff. ¶ 4).
Even more disturbingly, Plaintiff alleges that almost immediately Sailors began harassing him with inappropriate sexual comments and sexual advances. (Fenwick Aff. ¶ 4). Plaintiff states that Sailor's alleged comments caused him emotional distress and he expressed his discontent and discomfort to Sailors. (Fenwick Aff. ¶ 5). According to Plaintiff, the comments continued with some intensity until Christmas of 2001, at which point Plaintiff was hospitalized for his heart condition while visiting family in California. Id. at ¶ 8. Some of the examples include:
Sailors placing his body close to Plaintiffs; Sailors putting his hand on Plaintiff's shoulder and stating, "When are you going to shave off that beard for me?"
Sailors rubbing his leg against Plaintiff and turning so that his buttocks were very near Plaintiff's and stating, "Now don't pat me on the ass!"
(Verified Complaint and Demand for Jury Trial ("Complaint"), ¶ 12). When Plaintiff returned from treatment, he alleges the sexual harassment continued; while the sexual comments were less overt, they still contained sexual overtones. (Complaint ¶ 12).
Moreover, Plaintiff claims that Sailors was not sensitive to his needs stemming from his disabilities and his heart problems. (Affidavit of Gary Fenwick in Support of the Opposition to Defendants' Summary Judgment ("2nd Fenwick Aff.") ¶ 1). Plaintiff notified TKI that he suffers from diabetes at the time it hired him and that he needed time to sit down and take breaks often to assure that his blood sugar remained at normal levels as the diabetes affects the length of time he can stand and how much sugar he can consume. (2nd Fenwick Aff. ¶ 1). The diabetes also limits his ability to perform strenuous exercise or activities outside in excessive heat. (2nd Fenwick Aff. ¶¶ 5 and 6). Plaintiff alleges he would sometimes sit down to avoid passing out because of his low blood sugar levels related to the diabetes and Sailors would admonish him for this type of behavior. (Complaint ¶ 17). Also, according to Plaintiff, Sailors would not allow him to take breaks to control his diabetes. (Complaint ¶ 17). Moreover, Plaintiff complains that when he requested time off to visit a cardiologist because he was suffering from chest pains, Sailors directed Plaintiff to first obtain a doctor's written excuse. (Fenwick Depo. at 124:5-10). Plaintiff called his doctor in California to send him a fax regarding his heart condition, and in the meantime, Sailors made Plaintiff move equipment and clean the facilities while he suffered from the chest pains. (Fenwick Depo. at 124:5-10). When the doctor contacted Sailors, he advised that Plaintiff should return to California for further treatment. (Fenwick Depo. at 124:5-10). Thereafter, Plaintiff took a leave of absence to undergo treatment for his heart problem. (Fenwick Depo, at 124:5-10).
In his affidavit, Plaintiff states that the diabetes affects his major life activities such as his diet, his ability to handle stress, and his driving because of the dangers of hypoglycemia, which causes dizziness, disorientation, tiredness and may lead to a blackout or a coma. (Fenwick Aff. at ¶ 3). Plaintiff also asserts that the hypoglycemia may also cause shakes, headaches, muscle aches, disorientation and confusion and may result in insulin shock. Id. However, in contrast to his affidavit, Plaintiff stated in his deposition that the diabetes did not interfere with his driving, exercising, or living a normal life. (Fenwick Depo. at 125:11-13). Nor does Plaintiff depend on insulin to control his diabetes. (Fenwick Depo. at 121:22-122:17).
Sailors does have the right as site manager and supervisor to ask for medical certification if an employee asks for sick or medical leave. (Affidavit of J. Kevin West ("West Aff."), Exhibit 26).
During this time, Plaintiff generally received positive performance evaluations. However, Sailor criticized Plaintiff for his lack of teamwork and failure to follow instructions on a few occasions. Specifically, on September 29, 2000, Sailors sent an e-mail to his supervisor informing him about Plaintiff's performance problems. (Solano Decl. ¶ 11). Again, on July 23, 2001, Sailors complained to company officials about Plaintiff's work performance and expressed his opinion that Plaintiff's position should be added to the list of positions the company was considering eliminating. (Solano Decl. at ¶ 12). As of November, 2001, TKI officials exchanged a series of e-mails discussing possible dates for termination of Plaintiff's employment in either December 2001 or January 2002. (Solano Decl. ¶ 13). Defendants expressed concern in these e-mails that Plaintiff would file an age discrimination case if TKI eliminated his position. (Solano Decl. ¶ 14). Specifically, Fernando Solano stated in his e-mail dated January 3, 2003 to Sailors that he felt "uncomfortable terminating Gary [Plaintiff]" given that they could only find one official reprimand letter in Plaintiff's file. Moreover, in the performance review, Sailors wrote that Plaintiff was meeting his expectations. (Documents, TKJ-0033, TKJ-0035, and TKJ-0036, attached to the accompanying Affidavit of Harry DeHaan ("2nd DeHaan Aff.")).
The e-mail containing these statements were originally attached to Plaintiff's response brief without an authenticating affidavit. After the Court issued an Order directing Plaintiff to file a statement of facts, Plaintiff's counsel, Harry DeHaan, filed an affidavit with the e-mails attached.
TKI did not take any further action at this time, but in February 2002, Sailors gave Plaintiff a disciplinary memorandum for not attending the meetings for the Local Emergency Planning Committee. The disciplinary memorandum upset Plaintiff greatly as he claimed that he did not attend the meeting because Sailors had instructed him not to attend. (Fenwick Depo. at 240: 22-241:10 and 241:13-14; and Exhibit 17). Plaintiff alleges this was the third time that Sailors instructed him not do something and then wrote a letter criticizing Plaintiff's actions, when Plaintiff claims he only had been following Sailor's instructions. (Fenwick Depo. at 242: 7-12). Plaintiff, frustrated with the treatment, sent an e-mail protesting the disciplinary letter. (Fenwick Depo. at 124:5-10.; and Exhibit 18). In addition, Fenwick sent out a barrage of e-mails protesting the write-up and reporting Sailors for alleged safety and environmental violations.
In response to Plaintiff's complaints, TKI management scheduled a conference call for March 6, 2002 between several TKI supervisors, Plaintiff, and Sailors. (Solano Decl. at ¶ 16). TKI also wanted to inform Plaintiff of its decisions to place Plaintiff on probation for a 60-day period after Plaintiff's return from medical leave. (Solano Decl. at ¶ 16). During the call, Plaintiff repeated his allegations with respect to the environmental and safety violations, and for the first time, accused Sailors of sexual harassment. (Solano Decl. at ¶ 17). TKI management asked Plaintiff to provide specific details of the harassment so it could begin its investigation of Plaintiff's claims. Plaintiff told management that he or his lawyer would supply the specific details about the harassment allegations before he left on medical leave. (Solano Decl. at ¶ 18).
Plaintiff went on medical leave without filing a grievance. (Fenwick Depo. at 110:2-9; 292:23-293:3). Upon returning, TKI management contacted Plaintiff over the course of weeks, seeking specific details relating to Plaintiff's sexual harassment allegations against Sailors. (Fenwick Depo. at 110:2-9; 292:23-293:3). TKI warned Plaintiff if he did not file an official grievance, then company would assume the allegations were untrue. (Fenwick Depo. at 293:4-14). Despite the several phone calls and e-mails asking Plaintiff to file a formal grievance, Plaintiff claims that he believed that management did not want to pursue the matter and an official complaint would prove futile. (Fenwick Depo. at 293:14-297:24). Plaintiff maintains that Solano told him it would not be in his best interest to continue with the allegations against Sailors because Solano had already contacted the other employees and "pretty much informed them that it would be in their advantage not to testify against Steve [Sailors]." (Fenwick Depo. at 297:21-24).
Publicly, however, Plaintiff represented to TKI management that he ultimately decided to drop the sexual harassment claim because the sexual innuendos ceased after Plaintiff's return to work on May 17, 2002. (Fenwick Depo. at 303: 10-13). In fact, Plaintiff stated that "the situation had completely reversed itself." (Fenwick Depo. at 303: 10-13). However, Plaintiff alleges that the harassment continued in other ways. (Fenwick Depo. at 303:16-17). For example, when he returned to work, Plaintiff alleges Sailors forced him to shovel gravel and perform other heavy labor in addition to his chemist duties, which exacerbated his dizziness resulting from his diabetes and also endangered his already fragile heart condition. (Fenwick Depo at 303: 20-25).
Despite the allegations of harassment, Plaintiff was successfully able to fulfill his probationary period and he received a glowing review from Sailors commending him for his positive attitude, willingness to help others, and willingness to do the manual labor. (West Aff., Exhibit 34). Nevertheless, as a result of the economic downturn and in an effort to reduce costs and improve profitability, TKI finally decided to eliminated the chemist position at the Burley plant by February 12, 2003. (Solano Decl. at ¶ 20). TKI had already eliminated 89 positions within its organization during the course of several layoffs in the past four years. (Solano Decl. ¶ 19). TKI has not hired a new chemist or even a lab technician at the Burley plant to replace Plaintiff after his termination. Rather, TKI installed a new piece of equipment and trained the operators how to use the equipment and obtain the required sample analyses. (Solano Decl. ¶ 23).
Plaintiff filed a charge of sex-based harassment with the EEOC and the Idaho Human Rights Commission on April 29, 2003, and Plaintiff filed this action on September 8, 2003. Defendants filed a motion for summary judgment and a motion for Rule 11 Sanctions on July 28, 2004. Subsequently, Plaintiff filed a response to Defendants' motion for summary judgment, attaching two Gary Fenwick affidavits and three e-mails, all of which Plaintiff submitted in support of his opposition to the defense motion for summary judgment. Defendants then filed on September 14, 2004, the motion to strike portions of the Fenwick affidavits and the three e-mails. Defendant also filed it motion to strike Plaintiff's disclosure of expert witnesses on August 31, 2004, as well as a motion to strike Plaintiff's supplemental affidavits on September 24, 2004.
The Court will first briefly address Defendants' various motions to strike as these motions bear on their Motion for Summary Judgment. Following the discussion of the three motions to strike, the Court will then discuss the summary judgment motion and the Rule 11 motion.
I. Motions to Strike
A. Defendants' Motion to Strike Plaintiff's Disclosure of Expert Witnesses
Plaintiff moves the Court to allow him to extend the deadline for disclosure of expert witnesses to August 27, 2004, citing the fact that he inadvertently recorded August 27, 2004 as the last date for witness disclosure. Plaintiff submitted its expert witness list in conjunction with his motion for late disclosure. Defendants responded with a motion to strike Plaintiff's Disclosure of Expert Witnesses (Docket No. 37), as untimely and in violation of the requirements of Rule 26 of the Federal Rules of Civil Procedure.
Rule 37 provides for the exclusion of expert testimony if a party "without substantial justification" fails to disclose information required by Rule 26 "unless such failure is harmless." Rule 37(c)(1), Fed.R.Civ.P. Rule 26(a)(2)(B) requires that the expert report include:
a complete statement of the opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
Rule 26 (a)(2)(B), Fed.R.Civ.P.
The deadline for Plaintiff's disclosure of expert witnesses was April 27, 2004. Plaintiff did not submit his list until August 30, 2004 — over four months after the deadline. The Court cannot find that an inadvertent recording of the deadline as August 27, 2004 constitutes "substantial justification" for a fourth-month delay. Moreover, the Court finds that Plaintiff's expert disclosure falls exceedingly short of the requirements set forth in Rule 26. Rule 26 requires a complete report and Plaintiff's disclosure only includes the witnesses' names, one curriculum vitae, and a very brief synopsis of one expert's background. Clearly, Plaintiff's one page filing on August 30, 2004, contains such substantial violations of Rule 26, it cannot constitute the report required by that rule. Accordingly, the Court will grant Defendants' motion striking Plaintiff's Disclosure of Expert Witnesses from the record.
Defendants also argue they should be awarded attorneys' fees incurred as a result of Plaintiff's improper disclosure. Rather than addressing this independently, the Court took Defendants' argument into consideration when deciding the Rule 11 motion for sanctions.
B. Defendants' Motion to Strike
In its Motion to Strike, filed September 14, 2004, Defendants move the Court to strike portions of Gary Fenwick's affidavits, including paragraphs 8-11 of the "Affidavit of Gary Fenwick in Support of the Opposition to Defendants' Summary Judgment" and paragraph 14 of the "Affidavit of Gary Fenwick" on the grounds that they are not based on personal knowledge and are mere conclusions. While Plaintiff is entitled to submit affidavits on his behalf in an attempt to defeat a motion for summary judgment; in fact, he is compelled to do so by Fed.R.Civ.P. 56(c) in order to be successful, See Celotex Corp. v. Citrate, 477 U.S. 317 (1986), and British Motor Car Distributors, Ltd. v. San Francisco Automotive Industries Welfare Fund, 882 F.2d 371 (9th Cir. 1989), he must do so within the mandate of Fed.R.Civ.P.56(e), which provides:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. . . .
The Court has reviewed the affidavits and finds Defendants' objections have merit. Therefore, the Court finds that it is appropriate to strike portions the affidavits. Accordingly, Defendants' motion to strike the previously noted paragraphs will be granted.
In addition, Defendants move the Court to strike the e-mails attached to Plaintiff's Response to Defendants' Motion for Summary Judgment. Plaintiff merely stapled the documents to his response without any effort to authenticate them. When a party staples documents to a supporting memorandum, the documents must be authenticated through a proper affidavit pursuant to Fed.R.Civ.P. 56(e). Although Plaintiff did not submit an affidavit authenticating two of the documents, he re-submitted the e-mails with an accompanying affidavit from Harry DeHaan in conjunction with his Statement of Disputed Facts, which cures the defect. (Docket Nos. 58 and 60). Therefore, Defendants' Motion to Strike is denied to the extent that the e-mails will not be stricken from the record.
C. Motion to Strike Plaintiff's Supplemental Affidavits
In Defendants' Motion to Strike Plaintiff's Supplemental Affidavits, filed on September 24, 2004, Defendants ask the Court to strike the affidavit of Harry DeHaan for lack of personal knowledge and the affidavit of Dr. Kurt Seppi pursuant to Rule 56(e), which requires that affidavits contain evidence that would be admissible at trial through the testimony of a sworn witness. Rule 56(e), Fed.R.Civ.P. Attached to Mr. DeHaan's affidavit are the previously mentioned e-mails, and what appears to be a page from the Equal Employment Opportunity Commission's website about diabetes in the workplace. The Court finds that the e-mails have been properly authenticated, but finds that the document about diabetes in the workplace has not. In addition, the Court will strike the affidavit as Dr. Seppi as he was not properly disclosed as an expert witness and would not be able to testify at trial. Accordingly, the Court will grant in part and deny in part Defendant's motion.
II. Motion for Summary Judgment
Defendants filed this motion on moving for summary judgment as to each of Plaintiff's twenty claims for relief. It should be noted that Plaintiff has "abandoned" twelve of the twenty claims listed in his Complaint. Specifically, Plaintiff has agreed to withdraw or abandon the claims under the FMLA. In addition, he has withdrawn his claims for intentional infliction of emotional distress, slander and libel, estoppel, the three claims for invasion of privacy, the breach of contract claims, and the negligence claims. Thus, the Court grants Defendants' Motion for Summary Judgment with respect to these twelve claims. The Court will also grant Defendants' motion for the retaliation claim in violation of various environmental law statutes
Plaintiff abandoned Fifth and Sixth Claims for Relief (all claims under the FMLA), Eleventh Claim for Relief (Intentional Infliction of Emotional Distress), Twelfth Claim for Relief (Slander and Libel), Fourteenth Claim for Relief (Estoppel), Fifteenth Claim for Relief (False Light), Sixteenth Claim for Relief (Public Disclosure of Private Facts), Seventeenth Claim for Relief (Intrusion upon Scclusion), Eighteenth Claim for Relief (Negligence), and Nineteenth Claim for Relief (Negligence per se). Plaintiff also states the breach of contract claim (Thirteenth Claim for Relief) and, presumably, the breach of the implied-fact contract claim (Twentieth Claim for Relief) are subsumed in the breach of covenant of good faith and fair dealing claim. Therefore, the Court will not address these two claims.
(Ninth Claim for Relief). Although Plaintiff never specifically abandons this claim, none of his arguments address this cause of action and the Court finds it is without merit. Thus, the remaining allegations may be narrowed to four principal issues: (1) whether Defendant Steve Sailors sexually harassed Plaintiff within the meaning of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Idaho Human Rights Act ("IHRA"); (2) whether Defendants unlawfully discriminated against Plaintiff on account of his disability in violation of the American With Disabilities Act ("ADA"); (3) whether Defendants wrongfully discharged Plaintiff in retaliation in violation of Title VII, the IHRA, and the ADA; and (4) whether Defendants breached the covenant of good faith and fair dealing. The Court will address Defendants' summary judgment motion for each of the claims in turn.
A. Standard of Review
Motions for summary judgment are governed by Fed.R.Civ.P. 56. Rule 56, which provides in pertinent part, that judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
The United States Supreme Court has made it clear that under Rule 56, summary judgment is required if the nonmoving party fails to make a showing sufficient to establish the existence of an element which is essential to his case and upon which he/she will bear the burden of proof at trial. If the nonmoving party fails to make such a showing on any essential element of his case, "there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."
See Celotex Corp. v. Citrate, 477 U.S. 317, 322 (1986).
Id. at 323. See also Rule 56(e).
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 is "genuine" when there is "sufficient evidence supporting the claimed factual dispute . . . to require a jury or judge to resolve the parties' differing versions of the truth at trial," or when the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." The Ninth Circuit cases are in accord.
Hahn v. Sargent, 523 F.2d 461, 463 (1st Cir. 1975) (quoting First Nat'l Bank v. Cities Serv. Co., Inc., 391 U.S. 253, 289 (1968)), cert. denied, 425 U.S. 904, 96 S. Ct. 1495, 47 L.Ed.2d 754 (1976).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L.Ed.2d 202, 212 (1986).
See British Motor Car Distributors, Ltd. v. San Francisco Automotive Industries Welfare Fund, 882 F.2d 371 (9th Cir. 1989).
B. Hostile Work Environment Claim
Plaintiff asserts that Defendant Sailors sexually harassed him. To support this allegation, Plaintiff refers to a few specific incidents where Defendant Sailors allegedly made inappropriate comments, mainly referring to Plaintiff looking at or touching Defendant Sailor's "butt", and standing uncomfortably close to Plaintiff. In his defense, aside from denying having made the comments, Defendant Sailors makes two legal arguments.
Sailors first argues that Plaintiff did not file the sexual harassment claim within the applicable statute of limitations. Title VII requires a plaintiff to file a charge within 300 days of the alleged harassment and the IHRA requires a plaintiff to file a charge within one year of the alleged harassment. 42 U.S.C. § 2000e-5(e) and Idaho Code § 67-5907(1). It is undisputed that Plaintiff did not file his charge until April 29, 2003; however, the parties dispute when the harassment ended. The conduct that serves as the basis of Plaintiff's principal allegations of sexual harassment occurred between 1999 and 2001. Assuming that the sexual harassment ended in 2001, then the statute of limitations would bar Plaintiff's sexual harassment claims as they occurred more than a year before Plaintiff filed his charge. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 2074 (2002); see also 42 U.S.C. § 2000e-5(e) (requiring a plaintiff to file a charge within 300 days of the alleged harassment to be timely under Title VII); Idaho Code § 67-5907(1) (requiring a plaintiff to file an action with one year of the alleged harassment).
However, some ambiguity exists as to when the sexual harassment actually ended due to several statements Plaintiff has made in this regard. While he states that the more overt and aggressive sexual harassment stopped in 2001, Plaintiff further claims that Defendant Sailor's statements continued to have sexual overtones (without providing any specific examples) until the day of his termination. This statement contradicts an e-mail Plaintiff sent to Mr. Solano in May 2002 expressing his unwillingness to file a sexual harassment charge because the "situation had completely reversed itself." When questioned about this statement in his deposition, Plaintiff claims he told Mr. Solano this because he wanted to keep his job and the statement "was a little white lie to make it go down easier." (Fenwick Depo., 211:4-5).
It is unclear whether it stopped after Christmas 2001 or if it stopped when Plaintiff left on medical leave in March 2002 or if actually continued until the day Plaintiff was terminated as he asserts in his affidavit. The Court observes that Plaintiff's own contradictory statements to his employers in his deposition and in his affidavits have created the ambiguity as to when the sexual harassment actually ceased. The Court agrees with Defendants' recitation of the law that a party may not create a genuine issue of material fact by making statements in his affidavit which contradict or undermine his prior deposition testimony. See Kennedy v. Allied Mutual Insurance Co., 952 F.2d 262, 266 (9th Cir. 1991). Nevertheless, in the interest of deciding the case on its merits, the Court finds that Plaintiff's deposition testimony is sufficiently unclear as to when the harassment ended to preclude a finding of summary judgment in favor of Defendants on the basis of the statute of limitations.
Yet, even assuming that Plaintiff's claim is not barred by the statute of limitations, the Court concludes that Plaintiffs' hostile work environment claim should be dismissed on the merits because Plaintiff failed to establish that the sexual harassment was sufficiently "severe and pervasive" to violate Title VII. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 1002 (1998). "An employer is liable under Title VII for conduct giving rise to a hostile environment where the employee proves (1) that he was subject to verbal or physical conduct of a harassing nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Kortan v. California Youth Authority, 217 F.3d at 1109-10 (9th Cir. 2000), citing Pavon v. Swift Trans. Co., Inc., 192 F.3d 902, 908 (9th Cir. 1999). "Harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex." Kortan v. California Youth Authority, 217 F.3d at 1110 (9th Cir. 2000), citing Oncale, 118 S.Ct. at 1002. The motivation can be a "general hostility to the presence of [men] in the workplace." Id. However, the Oncale court made clear that Title VII should not be expanded into a "general civility code." 118 S.Ct. at 1002.
In an effort to meet this burden, Plaint refers the Court to a few alleged offhand remarks made by Sailors to Plaintiff containing slight sexual overtones, which alone do not meet the standard for establishing the sexual harassment was sufficiently severe and pervasive to violate Title VII. Plaintiff then follows this evidence with the assertion that the sexual harassment is part of an "over-all harassment discrimination claim" encompassing age, expense, disability, and education. In support of his sexual harassment claim, he refers to facts that bear no relationship to gender based harassment. For example, Plaintiff cites instances where Sailors allegedly forced Plaintiff to stand for long periods of time, shovel gravel, and do other types of physical labor out in the sun-activities he had difficulty performing because of his diabetes and his heart condition. Although harassment based on age or disability is lamentable, such allegations are not properly addressed under Title VII. Plaintiff may not string together harassment claims under Title VII, the ADA, and the Age Discrimination in Employment Act ("ADEA") as an "over-all harassment discrimination claim"; such a cause of action does not exist. Accordingly, the Court concludes that the alleged sexual harassment was not "severe" and "pervasive" as a matter of law, and grants Defendants' motion for summary judgment on Plaintiffs' sexual harassment claims.
C. Americans with Disabilities Act
Plaintiff next asserts claims against TKI for discrimination and harassment in violation of the Americans with Disabilities Act ("ADA"). He contends that he is disabled on account of his diabetes and heart disease. In disability discrimination cases, courts must apply a three-step burden shifting test that was first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the test, the plaintiff bears the initial burden of stating a prima facie case of discrimination. In order to establish a prima facie case under the ADA, a plaintiff is required to show that: 1) he was disabled within the meaning of the ADA; 2) he was qualified to do the job with or without accommodation; and 3) an adverse employment action was taken against him because of the disability. Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996); and Willis v. Pacific Maritime Association, 162 F.3d 561, 565 (9th Cir. 1998). If an employer asserts that the employee was terminated for legitimate and non-discriminatory reasons, the burden shifts to the employee to show the articulated reasons are merely pretext for discrimination. Smith v. Barton, 914 F.2d 1330, 1340 (9th Cir. 1990), cert. denied, 501 U.S. 1217 (1991).
To prove a disability within the meaning of the statute, a plaintiff must show that he possesses a "physical or mental impairment that substantially limits one or more the major life activities of such individuals," a record of such an impairment or being regarded as having such an impairment. 42 U.S.C. § 12102(2). Furthermore, to meet this burden in the summary judgment context, Rule 56(c) mandates that the party opposing summary judgment present evidentiary matter showing that there is a genuine issue of material fact that is worth bringing to trial. The adverse party may not rest on mere allegations or denials in the pleadings. If the adverse party fails to put forth such evidence, then summary judgment may be entered against him. See Rule 56(c), Fed.R.Civ.P.
Plaintiff has offered almost no evidence in support of his allegations, and the evidence he does offer is conflicting. Plaintiff, in his deposition, admitted that his diabetes does not interfere with his major life activities, such as driving, exercising, or otherwise living a normal life. Then he states in his affidavit that his diabetes does affect his driving, his eating, and his ability to handle stress. He also stated in his deposition that he never had a heart attack because it was stopped in time. A statement he later contradicts in his briefing. The Court reiterates that Plaintiff may not create a genuine issue of material fact by making statements in his affidavit which contradict or undermine his prior deposition testimony. See Kennedy v. Allied Mutual Insurance Co., 952 F.2d 262, 266 (9th Cir. 1991).
Furthermore, Plaintiff counsel's assertion that: "[t]he fact that Plaintiff's diabetes contributed to a heart attack, that the Plaintiff had a heart attack, certainly constitute a disability in this counsel's mind," simply does not suffice to withstand a motion for summary judgment. Plaintiff even filed a supplemental response (Docket No. 54), and a statement of disputed facts (Docket No. 58). However, in these more recent documents, Plaintiff offers no new arguments that he was disabled. In his supplemental response, he merely attaches a Question and Answer webpage from the EEOC website (we assume because it was not authenticated) and baldly declares that it was "clear in this case that the Plaintiff is disabled" without citing any piece of evidence in support of this contention. (Docket No. 54). In his statement of facts, Plaintiff notably fails to state any "facts" or cite to any affidavit or deposition. Plaintiff only offers the affidavit of Dr. Kurt Seppi, which the Court has stricken from the record because he was never disclosed as an expert witness. (Affidavit of Dr. Kurt Seppi ("Seppi Aff.")). Yet, even if the Court did not strike this affidavit, none of the activities Dr. Kurt Seppi listed in his affidavit, which Plaintiff's diabetes and heart condition allegedly affected, would constitute a major life activity. Clearly, Plaintiff has not met his burden for establishing a prima facie case for disability discrimination because he has not proven that he is disabled within the meaning of the statute. Accordingly, the Court will grant summary judgment in favor of the defense on all claims under the ADA.
Plaintiff filed the Affidavit of Dr. Kurt D. Seppi on September 23, 2004, more than a month after his original response was due. Moreover, Dr. Seppi was not listed in Plaintiff's disclosure of experts, which was also filed late.
D. Retaliation Claims
1. Applicable Legal Standards for Retaliation in Violation of Title VII
Under the Civil Rights Act of 1964, it is unlawful for an employer "to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a).
Using the McDonnell Douglas framework, to establish a prima facie case of retaliation in violation of Title VII, Plaintiff bears the initial burden of establishing a prima face case that: (1) she engaged in protected activity; (2) she suffered an adverse employment decision; and (3) there was a causal link between the protected activity and the adverse employment action. Villarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002).
Once the plaintiff establishes a prima facie case of retaliation, "the burden shifts to [Defendant] to establish a legitimate, non-discriminatory reason for the adverse employment action." Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1066 (9th Cir. 2004) (quoting Manatt v. Bank of Am., N.A., 339 F.3d 792, 800 (9th Cir. 2003)). If the defendant establishes such a reason, the plaintiff "bears the ultimate burden of demonstrating that the reason was merely a pretext for a discriminatory motive." Id. If a plaintiff can demonstrate pretext, the burden shifting framework disappears and "the sole remaining issue is `discrimination vel non.'" Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
a. Protected Activity
The Ninth Circuit Court of Appeals has established that a plaintiff does not need to prove that the employment practice at issue was in fact unlawful under Title VII. Trent v. Valley Electrical Ass'n, Inc., 41 F.3d 524, 526 (9th Cir. 1994). To do so "[w]ould not only chill the legitimate assertion of employee rights under Title VII but would tend to force employees to file formal charges rather than seek conciliation or informal adjustment of grievances." Id. (citation omitted). Instead, Plaintiff must establish that "[he] had a `reasonable belief' that the employment practice [he] protested was prohibited under Title VII." Id. (finding plaintiff had established a reasonable belief that being subjected to sexually offensive remarks was prohibited under Title VII). When Sailors made comments to Plaintiff that he believed were inappropriate, Plaintiff expressed his discomfort and displeasure at the remarks. Plaintiff also complained of Sailors alleged sexual comments to TKI management in the March 6, 2002 conference call. TKI management instructed Plaintiff to file a formal grievance against Sailors so they could further investigate the claim. Consistent with the Ninth Circuit's decision in Trent, the Court finds that Plaintiff held a reasonable belief that being subjected to sexually offensive remarks was prohibited under Title VII. Accordingly, the Court finds that Plaintiff has established by a preponderance of the evidence that Plaintiff's complaining to TKI management about Sailors sexual innuendoes constitutes protected activity.
b. The "Adverse Employment Action."
The EEOC defines an "adverse employment action" as "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000). The Ninth Circuit has expressly adopted the latter portion of this definition, but has omitted the requirement of establishing a retaliatory motive. Id. Accordingly, Plaintiff must establish, as part of his prima facie case of discrimination, that he suffered treatment that was reasonably likely to deter him or others from engaging in protected activity. Mere ostracism by co-workers, however, does not constitute an adverse employment action. Id. at 1241.
The Ninth Circuit explained that the "first part of the EEOC's definition of adverse employment action, which requires that the action be `based on a retaliatory motive,' collapses into the `causal link' prong of the prima facie test for retaliation." Id. at 1243, fn.6.
Plaintiff has presented evidence that his position was eliminated and he was terminated from this job as a TKI chemist. The Court finds that termination of employment constitutes "adverse employment action" of the most fundamental nature. Accordingly, the Court concludes that Plaintiff has established the adverse employment action element of the prima facie case.
c. Causal Link Between The Protected Activity and The Adverse Employment Action
To establish causation, Plaintiff must show "by a preponderance of the evidence that engaging in the protected activity was one of the reasons for [the adverse employment action] and that but for such activity [he] would not have [suffered the adverse employment action]." Villarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002) (quoting Ruggles v. Cal. Polytechnic State Univ., 797 F.2d 782, 785 (9th Cir. 1986)). The Ninth Circuit has explained that the Court may infer a causal connection between an employer's action and the employee's protected activity from "proximity in time between the protected action and the allegedly retaliatory employment decision." Ray, 217 F.3d at 1244 (quoting Yartzoff v. Thomas, 809 F.3d 1371, 1376 (9 Cir. 1987)); Passantino v. Johnson Johnson Consumer Prods., Inc., 212 F.3d 493, 507 (9th Cir. 2000) (noting that causation can be inferred from timing alone). However, "timing alone will not show causation in all cases; rather, `in order to support an inference of retaliatory motive, the [adverse employment action] must have occurred fairly soon after the employee's protected expression.'" Villarimo, 281 F.3d at 1065 (quoting Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1009-10 (7th Cir. 2000)). The Court may also infer causation through circumstantial evidence such as the employer's knowledge that the employee engaged in a protected activity. Yartzoff, 809 F.3d at 1376.
Plaintiff presents no significant evidence that Defendants' desire to eliminate Plaintiff's position arose as a result of his accusations that Sailors sexually harassed him. Plaintiff has submitted e-mails showing that Defendants "wanted to get rid of the Plaintiff' and replace him with a "younger cheaper lab technician." Plaintiff also claims his "firing was perpetual." Yet, these e-mails actually undermine Plaintiff's claims that Defendants fired him in retaliation for making sexual harassment claims against Sailors because they are dated January 3, 2002, and Plaintiff did not communicate his allegations of sexual harassment against Sailors to TKI management until the March 6, 2002 conference call. If Defendants wanted to fire Plaintiff before he reported Sailor's alleged sexual harassment and if Plaintiff's firing was "perpetual" as he alleges, then he was not fired in retaliation for reporting Sailor's alleged sexual harassment. Therefore, the Court concludes that Plaintiff has failed to state a prima facie case for retaliation.
2. Plaintiff Must Show the Reason for His Firing is Pretextual
However, even if Plaintiff could state a prima facie case of retaliation, he must still address whether Defendants' reasons for eliminated Plaintiff's position were pretextual. The Court notes that Plaintiff may not state his mere beliefs that he was fired in retaliation for reporting sexual harassment and that the reason given for his firing was pretextual and expect to withstand a motion for summary judgment. He must offer evidence in support of the allegations. Instead Plaintiff essentially argues that this is what I believe and so it must be so. However, Defendants have offered evidence proving that they have not replaced Plaintiff with a younger and cheaper lab technician in spite of the fact that they built a new lab facility. Thus, the facts, as they stand, demonstrate that TKI installed a new piece of equipment and trained the existing Operators how to use that equipment to perform the required analyses. Hence, Defendants have established a non-discriminatory reason for terminating Plaintiff and Plaintiff has provided no admissible evidence to the contrary. Accordingly, the Court will grant Defendants' motion for summary judgment on all of Plaintiff's retaliation claims.
D. Breach of Covenant of Good Faith and Fair Dealing
The implied-in-law covenant of good faith and fair dealing operates to protect "the right of the parties to an agreement to receive the benefits of the agreement that they entered into." Metcalf v. Intermountain Gas Co., 116 Idaho 622, 627, 778 P.2d 744, 749 (1989). If a party is denied the right to the benefits of the agreement they entered into, then the covenant of good faith and fair dealing, which is implicit in the agreement, is breached. Id. In Metcalf, the court held that the implied covenant of good faith and fair dealing in the employment-at-will contract does not require the employer to only terminate an employee for good cause. Id. At 749. However, the Metcalf court did recognize a cause of action for the breach of the covenant of good faith and fair dealing when an employer wrongfully discharges the employee in contravention of public policy. Id. The court concluded that any action by either party which violates, nullifies or significantly impairs any benefit of the employment contract is a violation of the implied-in-law covenant of good faith and fair dealing. Id.
Plaintiff argues that Defendants violated the covenant because they subjected him to "harassment, intimidation, degradation, ridicule and the Defendants planned "to get rid of him." The Court does not find any merit to Plaintiff's argument. First, Plaintiff's allegation that Defendants' planned "to get rid of him" violates no law. It is within the discretion of both parties to terminate an employment-at-will contract at any time and for any reason as long as it is not motivated by bad faith or malice or based on retaliation. Metcalf, 116 Idaho at 629, 778 P.2d at 751. Nor do the other acts Plaintiff alleges breach the covenant of terms of his employment contract. The rights Plaintiff seeks to protect, i.e. to be free from harassment or intimidation, arise, not from the employment contract, but from a statute (Title VII, ADA etc.). See Atwood v. Western Constructin, Inc., 129 Idaho 234, 923 P.2d 479 (1996) (distinguishing employee's claims for breach of implied covenant of good faith and fair dealing, which is rooted in contract, and the plaintiff's age discrimination claim which sought recovery for infringement of rights created not by contract, but purely violation of a statute).
The only remote basis for Plaintiff's breach of covenant claim would be his allegation of retaliation. While Plaintiff made various allegations in his Complaint that Defendants essentially fired him in retaliation, he never argues this point in the context of the breach of covenant claim, and, as noted above, Plaintiff has offered no evidence substantiating his allegations. Defendants, on the other hand, have submitted unrefuted evidence that they terminated Plaintiff because his position was eliminated. Such a reason coincides with the normal course of business and does not constitute a wrongful discharge that would breach the implied covenant of good faith and fair dealing. Therefore, the Court will grant summary judgment in favor of Defendants for the breach of covenant claim as well.
In sum, the Court finds that Plaintiff did not submit sufficient evidence or set forth any legal basis for denying Defendant's motion for summary judgment, even in part. Accordingly, the Court will grant summary judgment in favor of Defendants with respect to all twenty claims listed in the Complaint.
III. Defendants' Motion for Rule 11 Sanctions
In addition to its Motion for Summary Judgment, Defendants move the Court to impose sanctions upon Plaintiff's Counsel pursuant to Rule 11. In total, the Complaint has alleged twenty claims for relief, including sexual harassment and discrimination under state and federal law, along with negligence, invasion of privacy, slander, and breach of contract. Defendants assert that the following claims have no basis in law or fact: (1) (2) FMLA (Fifth and Sixth Claims for Relief); (3) Estoppel (Fourteenth Claim for Relief); (4) False Light (Fifteenth Claim for Relief); (5) Public Disclosure of Private Facts (Sixteenth Claim for Relief); (6) Intrusion Upon Seclusion (Seventeenth Claim for Relief); (7) (8) Negligence and Negligence Per Se (Eighteenth and Nineteenth Claims for Relief).
Although Plaintiff's counsel, Harry DeHaan, did not draft or sign the complaint, Defendants argue that after being substituted as new counsel for Plaintiff, Mr. DeHaan continued to later advocate "legally frivolous" or "factually misleading" claims. After Mr. DeHaan replaced the original attorney, defense counsel, John Egbert, sent a letter on May 11, 2004, requesting that Mr. DeHaan agree to voluntarily dismiss the eight causes of action listed above. Defense counsel did not receive any response until Mr. Egbert sent Mr. DeHaan a second letter dated June 9, 2004, informing him that Mr. Egbert was preparing a motion for sanctions and a motion for summary judgment for all of Plaintiff's claims. Following the second letter, Mr. DeHaan sent a letter to Mr. Egbert on June 14, 2004, acknowledging that the attorney who drafted the complaint may have been "a bit overzealous" and agreeing to dismiss the claims. Yet, Mr. DeHaan never followed up on the June 14, 2004 letter until after Defendants' filed their Motion for Summary Judgment and this Motion for Rule 11 sanctions.
Initially, the Court issued an order denying Defendants' motion for sanctions for failure to comply with 21-day safe-harbor period, which it subsequently vacated after finding that Defendants did indeed comply. After the Court reinstated the motion, Mr. DeHaan finally faxed a Stipulation to Dismiss the eight claims to Mr. Egbert to which Defendants agreed upon the condition that it not affect the pending motion. Again Mr. DeHaan did not respond and Defendants executed a new Stipulation with a request that Mr. DeHaan draft a Proposed Order to accompany it. To this date, the Court has not received either a Stipulation or a Proposed Order to dismiss the eight claims. Mr. DeHaan, in his defense, reiterates that he did not prepare the Complaint. Moreover, he maintains that Defendants have failed to show that they have expended any efforts in defending the eight claims and that he has agreed to dismiss the claims in a timely manner.
Rule 11 of the Federal Rule of Civil Procedure grants the Court discretion to impose sanctions on attorneys, law firms, or parties for violation of the certification that "the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." See Rule 11(b)(2), Fed.R.Civ.P. Rule 11 is violated where the claim is not warranted by existing law. Id. Such a violation is shown if no "plausible, good faith argument can be made by a competent attorney to the contrary." Zaldivar v. City of Los Angeles, 780 F.2d 823, 829 (9th Cir. 1986). The imposition of sanctions does not require a showing of subjective bad faith; rather, the Court applies an objective test when determining whether the rule has been violated. Yagman v. Republic Insurance, 987 F.2d 622, 628 (9th Cir. 1993). Furthermore, Rule allows sanctions not only for filing and signing a pleading that puts forth meritless claims, but also for the continuing advocacy of such frivolous claims. See Rule 11(b), Fed.R.Civ.P.
Rule 11 expressly authorizes the imposition of monetary and/or nonmonetary sanctions. See Fed.R.Civ.P 11(c)(2); Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1198 (9th Cir. 1999). A monetary sanction may be composed of either or both a penalty payable to the court, and/or an award of reasonable attorneys' fees to the opposing party for those "fees and other expenses incurred as a direct result of the violation. See Fed.R.Civ.P 11(c)(2). A fee award may only be made "on motion and [if] warranted for effective deterrence." Id. Thus, "[i]t is critical . . . that the sanctioning court embrace the overriding purpose of deterrence and mold its sanctions in each case so as to best implement that policy." In re Yagman, 796 F.2d 1165, 1184 (9th Cir. 1986). Rule 11 is not designed as a fee-shifting provision or to compensate the opposing party. Its primary purpose is to deter sanctionable conduct. Thus, in addition to requiring that any fees be a direct result of the offending conduct, the court must consider the deterrent effect of any fee award. See Fed.R.Civ.P. 11(c)(2); Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed. 2d 359 (1990). Moreover, an award of fees is limited to fees "reasonably" expended as a result of an unwarranted filing. See Fed.R.Civ.P 11(c)(2).
A. Sanctionable Conduct
Mr. DeHaan, by his own admission, recognized that some of the claims in the Complaint did not have any evidentiary support. While Mr. DeHaan did not prepare the Complaint and he has now agreed to withdraw all the claims subject to this motion, these facts cannot shield him from Rule 11 sanctions. Defendants provided Mr. DeHaan with ample opportunity to withdraw these claims before they filed their summary judgment motion and this Rule 11 motion and Mr. DeHaan failed to do so. The Court notes that it does not normally impose Rule 11 sanctions; however, the circumstances in this case warrant such a result. Defense counsel sent numerous, detailed letters to Mr. DeHaan requesting that he dismiss these claims, which should have been a simple matter and would have saved all involved considerable time and money. Mr. DeHaan apologized to the Court, but offered no legitimate argument in his defense. Thus, the Court will grant Defendants' Motion for Rule 11 Sanctions and concludes that sanctions are therefore justified solely on the basis of Plaintiff's counsel's persistent prosecution of claims without any reasonable basis in the law. These sanctions are particularly proper given that Defendant's counsel gave Plaintiff's counsel at least three opportunities to withdraw these claims, and on each occasion cited to relevant authority demonstrating the speciousness of eight claims at issue. It is clear that sanctions are necessary to deter similar conduct in the future.
B. Award of Attorneys' Fees as a Necessary Deterrent
Here, defense counsel has submitted a detailed claim for costs totaling $21,293.83. The level of recovery sought is based roughly on a fraction of the total of 126 hours spent on researching, drafting, and preparing for the summary judgment motion with respect to the eight baseless claims, as well as a portion of the deposition costs of the Plaintiff concerning the eight baseless claims, and fees arising from the Rule 11 motion. This is based on a billing rate of $285.00 per hour for a partner in a Phoenix law firm with seventeen years experience in labor and employment law and appellate litigation.
The Court is cognizant of the deterrent factor in Rule 11 proceedings. However, the Court also recognizes that Mr. DeHaan is a sole practitioner in Twin Falls, Idaho, recently out of the hospital, representing an individual who is currently unemployed. The Court does not dispute a billing rate of $285.00 is reasonable for an attorney with Mr. Egbert's experience in Phoenix. Nor does the Court find that Defendants have requested an unreasonable amount for the work performed. However, as noted above, the goal of Rule 11 sanctions is not to compensate the opposing party, but to deter the offending conduct in the future. The Court does not believe saddling Mr. DeHaan with overly burdensome sanctions will be any more of an effective deterrent than a more measured approach. As such, the Court does not find that a full imposition of the total fees would be appropriate in this instance. Yet, it is undeniable that Mr. DeHaan acted with a clear disregard for Defendants, their counsel, and this Court by failing multiple time to dismiss the frivilous claims in question and the Federal Rule of Civil Procedure do not condone such conduct. Accordingly, in effort to balance these interests, Court finds sanctions in a lump sum amount of $5000.00 are appropriate.
The Court further ORDERS Plaintiffs counsel, HARRY DEHAAN, to pay this amount to Defendants by no later than thirty (30) days from the date of entry of this Order. Plaintiff's counsel shall be personally liable for this entire amount and because it arises from counsel's continuous advocacy of frivolous legal claims, Mr. De Haan may not pass these costs on to his client.
IV. Conclusion
With the exception of the later authenticated e-mails, the Court will grant Defendants' motions to strike the paragraphs of the two Plaintiff affidavits at issue and Plaintiff's disclosure of expert witnesses. The Court will grant in part and deny Defendants' motion to strike the affidavit of Harry DeHaan filed with his supplemental response to Defendants' summary judgment motion. The Court concludes that Mr. DeHaan properly authenticated the disputed e-mails, but he did not properly authenticate the EEOC webpage attached to his affidavit. The Court will also strike the affidavit of Dr. Seppi. Furthermore, the Court will grant Defendants' motion for summary judgment and the motion for Rule 11 sanctions. As the Court has granted Defendants' motion to strike the disclosure of expert witnesses, the Court finds Plaintiff's motion for late disclosure is moot.ORDER
Based on the foregoing, the Court being otherwise fully advised in the premises, IT IS HEREBY ORDERED that:
1) Defendants' Motion for Summary Judgment (Docket No. 23), filed July 28, 2004, is GRANTED.
2) Defendants' Motion for Rule 11 Sanctions (Docket No. 20), filed July 28, 2004, is GRANTED.
3) Defendants' Motion to Strike Plaintiff's Disclosure of Expert Witnesses (Docket No. 37), filed August 31, is GRANTED
4) Plaintiff's Motion for Late Disclosure of Experts (Docket No. 46), filed September 3, 2004, is MOOT.
5) Defendants' Motion to Strike (Docket No. 51), filed September 14, 2004, is GRANTED IN PART and DENIED IN PART.
6) Defendants' Motion to Strike Plaintiff's Supplemental Affidavits (Docket No. 62), filed September 24, 2004, is GRANTED IN PART and DENIED IN PART.