Opinion
Case No. 2:02CV346 DAK
October 14, 2003
ORDER
This matter is before the court on Defendant Wal-Mart Stores, Inc.'s ("Wal-Mart") Motion for Summary Judgment on Plaintiff Kirkwood's Claims and its Motion for Summary Judgment on Plaintiff Lemon's Claims. A hearing on the motions was held on August 20, 2003. At the hearing, Wal-Mart was represented by Kathleen W. Toth. Plaintiffs Kristine L. Kirkwood ("Kirkwood") and Patty L. Lemon ("Lemon") were represented by John L. Black, Jr. Before the hearing, the court considered carefully the memoranda and other materials submitted by the parties. Since taking the motions under advisement, the court has further considered the law and facts relating to these motions, including Wal-Mart's Notice of Supplemental Legal Authority on Defendant Wal-Mart's Motions for Summary Judgment, which was submitted after oral argument on the motions. Now being fully advised, the court renders the following Order.
I. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF KIRKWOOD'S CLAIMS
Kirkwood has alleged four causes of action against Wal-Mart: (1) hostile work environment sexual harassment; (2) retaliation in violation of Title VII; (3) negligent hiring, supervision and retention; and (4) intentional infliction of emotional distress, Wal-Mart has moved for summary judgment on all four claims.For purposes of this motion, Wal-Mart has assumed that (1) Kirkwood has established a prima facie case of hostile work environment sexual harassment, and that (2) both Hayes and Robinson were Kirkwood's supervisors. It claims, however, that the claim must be dismissed because Kirkwood has failed to establish any basis for holding Wal-Mart liable.
An employer is vicariously liable for a supervisor's creation of a sexually hostile work environment, but it may be able to raise an affirmative defense to liability or damages. See, e.g., Deters v. Equifax Credit Info. Servs., 202 F.3d 1262, 1270 n. 3 (10th Cir. 2000). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 777-78 (1998). To avail itself of this defense, Wal-Mart must prove, by a preponderance of the evidence, that both of these criteria have been satisfied Harrison v. Eddy Potash, Inc., 248 F.3d 1014 (10th Cir. 2001),
As the Tenth Circuit has pointed out, "vicarious liability applies to situations in which a supervisor perpetrates harassment himself, whereas a theory of direct liability is more appropriate where an employer fails to respond adequately to harassment of which a management-level employee knew or should have known." Deters, 202 F.3d at 1270 n. 3. Although both Plaintiffs have improperly used the terminology associated with a direct liability (i.e., negligence) claim, the court has analyzed both Plaintiffs' hostile work environment claims under a vicarious liability theory because Wal-Mart has conceded for purposes of this motion that both of the alleged harassers were supervisors. However, Plaintiffs' arguments and evidence pertaining to their misplaced direct liability theory (e.g., that Wal-Mart knew or should have known about the harassment), while couched in the terminology of a direct liability claim, remain relevant to the court's vicarious liability analysis because such evidence bears upon whether Plaintiffs have created a genuine issue of material fact regarding whether Wal-Mart exercised reasonable care to prevent and correct promptly any sexually harassing behavior.
The court finds that Kirkwood has created genuine issues of material fact regarding both elements of this defense, including when and to whom she reported the alleged harassment, what actions Wal-Mart took in response to her complaints, and whether such actions were reasonably calculated to prevent and correct promptly the alleged harassment,
This court recognizes that Kirkwood has attempted to create factual disputes by citing to her diary. A diary does not constitute admissible evidence, and many courts likely would ignore such "evidence" and grant summary judgment In the interests of justice, however, this court has accepted the diary evidence based on the assumption that Kirkwood's counsel could have transformed the information in the diary into an affidavit or could have simply created an affidavit in which Kirkwood testified to her personal knowledge and the truthfulness of the information in her diary.
Regarding Kirkwood's Title VII retaliation claim, however, Kirkwood has failed to create a genuine issue of material fact. To establish a retaliation claim, a plaintiff must show that: (1) she was engaged in protected opposition to harassment or participated in a Title VII proceeding; (2) she suffered adverse action contemporaneous with or subsequent to such opposition or participation; and (3) there is a causal connection between the protected activity and the adverse employment action. Cole v. Ruidoso Mun. Sch. Dist., 43 F.3d 1373, 1381 (10th Cir. 1994). It is well settled that at all times the plaintiff carries the burden of proving that the employer's action was intentionally retaliatory. Gunnell v. Utah Valley State College, 152 F.3d 1253, 1263 (10th Cir. 1998). "Retaliation claims under Title VII are subject to the burden-shifting analysis of McDonnell Douglas Corp, v. Green, 411 U.S. 792, 802-04 (1973)." Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th Cir. 2000). If the plaintiff establishes a prima facie case of retaliation, then the defendant must offer a legitimate, non-discriminatory reason for its employment action. Id. The plaintiff then bears the ultimate burden of demonstrating that the defendant's proffered reason is pretextual. A plaintiff may demonstrate pretext by showing "such weakness, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence." Id at 1206.
Kirkwood's only evidence regarding this claim is her subjective belief that she was retaliated against for complaining of sexual harassment. Even assuming that she has established a prima facie retaliation claim, she has failed to create any disputed fact concerning pretext. Kirkwood does not dispute her poor attendance record, and she has failed to offer any other evidence of pretext such that a jury could find that Wal-Mart's preferred reason for failing to promote her to a full-time cashier position is "unworthy of credence." Thus, Kirkwood's retaliation claim is dismissed.
In addition, Wal-Mart has moved for summary judgment on Kirkwood's claims for negligent hiring, supervision, and retention (her "negligence claims") and her claim for intentional infliction of emotional distress, claiming that such claims are barred by the exclusive remedy provisions set forth in the Workers' Compensation Act. Wal-Mart further claims that Kirkwood cannot establish a claim for intentional infliction of emotional distress because she cannot demonstrate that Wal-Mart's conduct was outrageous and intolerable.
In Mounteer v. Utah Power Light Co., 823 P.2d 1055, 1058 (Utah 1991), the Utah Supreme Court found that a claim for intentional infliction of emotional distress was barred by the Utah Workers' Compensation Act. In Mounteer, the plaintiff had not alleged that the employer had directed or intended the alleged injurious acts. Similarly, in this case, Kirkwood has not demonstrated that Wal-Mart had directed or intended the alleged injurious acts. Similarly, intfirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 786 (10th Cir. 1995), the Tenth Circuit, applying Utah law, found that the plaintiffs state law claims for (1) failure to adequately train, supervise, or control, and (2) intentional infliction of emotional distress were barred by the exclusivity provisions of the Utah Workers' Compensation Act. See also, Matthews v. Kennecott Utah Copper Corp., 54 F. Supp.2d 1067, 1076 (D. Ut. 1999).
Accordingly, this court agrees that Kirkwood's state law claims for negligent hiring, supervision, and retention and for intentional infliction of emotional distress are barred by the exclusivity provisions of the Utah Workers' Compensation Act. In addition, the conduct alleged by Kirkwood does not rise to the level of outrageous conduct required under Utah law to establish a claim for intentional infliction of emotional distress.
II. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF LEMON'S CLAIMS
Lemon has alleged three causes of action against Wal-Mart: (1) hostile work environment sexual harassment; (2) negligent hiring, supervision and retention; and (3) intentional infliction of emotional distress. Wal-Mart has moved for summary judgment on all three claims.
Regarding Lemon's Title VII claim for hostile work environment sexual harassment, Wal-Mart claims that it is entitled to summary judgment because she is unable to show sufficiently severe or pervasive conduct that altered the conditions of her employment and created an abusive working environment. Wal-Mart claims that sexually neutral conduct is not actionable, and Title VII does not protect against generic harassing behavior. It further claims that even if Lemon can make such a showing, then she has failed to establish any basis for imputing liability to Wal-Mart.
Contrary to Wal-Mart's argument, the court finds that Lemon has created a genuine issue of material fact regarding whether she was subjected to a hostile work environment based on her gender. In addition, as with Plaintiff Kirkwood, the court finds that Lemon has created a triable issue as to whether Wal-Mart is entitled to avoid liability pursuant to the Burlington/Faragher affirmative defense.
Finally, for the same reasons set forth above pertaining to Plaintiff Kirkwood, the court dismisses Lemon's claims for negligent hiring, supervision and retention and her claim for intentional infliction of emotional distress.
III. TRIAL ORDER
This case is set for a four-day jury trial beginning on Monday, December 1, 2003 at 8:30 a.m. In order to expedite the conduct of the trial in this case, counsel are instructed as follows:
This trial date is a second place setting. Currently, a criminal trial occupies the first place setting. Counsel are advised to contact Kirn Jones (524-6114) to keep apprised of whether the criminal trial will take place, and, if so, when this trial may be reset.
A. PROPOSED VOIR DIRE AND VERDICT FORM
1. Proposed Voir Dire
The parties must file an original and a copy of any proposed voir dire no later than November 25, 2003.
2. Proposed Verdict Form
The parties must file a proposed special verdict form no later than November 25, 2003. The parties must submit an original and a copy, along with a computer disk, formatted for WordPerfect 9.0, which contains the proposed form.
B. JURY INSTRUCTIONS
A copy of the court's stock jury instructions are available upon request. The stock jury instructions need not be re-submitted to the court with the parties' proposed instructions, and the parties should understand that all applicable stock jury instructions will be used at trial, absent a compelling reason why a particular instruction should not be used or should be altered. The parties should not, absent a compelling reason, submit instructions that are duplicative of the stock jury instructions.
Please contact Arline Rubin (524-6610) to obtain a copy of the stock instructions.
All additional jury instructions must be submitted according to the following procedure:
1. The parties are required to jointly file with the court one set of stipulated final instructions. To this end, the parties must serve (by facsimile, email, or hand-delivery) their proposed instructions upon each other by November 10, 2003. The parties must then meet and confer to agree on a single set of instructions, to the extent possible.
2. If the parties cannot agree upon a complete set of final instructions, they may file separately those instructions upon which they cannot agree. However, the parties are expected to agree upon the majority of the substantive instructions for the case.
3. The stipulated instructions and each party's supplemental instructions must be filed with the court by November 17, 2003. The parties should file an original and one copy of each set of instructions, which must include citations to authority. Along with the copy of the instructions, the parties must also provide a computer disk, formatted for WordPerfect 9, 0, which contains the proposed instructions, without citation to authority. Each party's supplemental instructions must be served (by facsimile, email, or hand-delivery) on the other party by the same date.
4. No later than November 24, 2003, each party must file and serve (by facsimile, email, or hand-delivery) its objections to the supplemental instructions proposed by the other party. All such objections must recite the proposed disputed instruction in its entirety and specifically highlight the objectionable language in the proposed instruction. Each objection must contain citations to authority and a concise argument explaining why the instruction is improper. If applicable, the objecting party should submit an alternative instruction addressing the subject or principle of law.
5. No later than December 1, 2003, the parties may file a concise written argument supporting the propriety of their proposed instructions to which the other party objected. If such a filing is made, the parties should file an original and one copy of the reply arguments.
C. PRETRIAL ORDER
A Pretrial Order must be filed by November 3, 2003, A sample Pretrial Order may be found at Appendix IV of the Local Rules of Practice for the District of Utah.
D. MOTIONS IN LIMINE
All motions in limine must be filed and served (by facsimile, email, or hand-delivery) no later than November 12, 2003. Responses to the motions must be filed and served (by facsimile, email, or hand-delivery) by November 19, 2003. A hearing on the motions, if necessary, will be set at a later date.
E. EXHIBITS
All exhibits must be premarked before trial. Plaintiffs' exhibits should be marked numerically, and Defendant's exhibits should be marked alphabetically.
F. PRETRIAL CONFERENCE
In light of this Order, a final pretrial conference is unnecessary.
IV. CONCLUSION
Defendant's Motion For Summary Judgment on Plaintiffs Kirkwood's Claims [docket # 27] is GRANTED in part and DENIED in part. Plaintiff Kirkwood's claims for retaliation, intentional infliction of emotional distress, and negligent hiring, training, and supervision are DISMISSED. In addition, Defendant's Motion For Summary Judgment on Plaintiffs Lemon's Claims [docket # 29] is GRANTED in part and DENIED in part. Plaintiff Lemon's claims for intentional infliction of emotional distress, and negligent hiring, training, and supervision are DISMISSED. Dates regarding deadlines for proposed jury instructions, proposed special verdict forms, proposed voir dire and other instructions regarding the trial are set forth above.