TED STEWART, District Judge.
This matter is before the Court on Defendants Murray City (the "City") and Peter Fondaco's Motion for Summary Judgment. For the reasons set forth below, the Court will grant Defendants' Motion.
The following facts are either uncontroverted or, where controverted, are construed in the light most favorable to the nonmovant Plaintiff. Immaterial facts and factual averments not properly supported by the record are omitted.
Plaintiff began work for the City at its animal shelter (the "shelter") as an Animal Control Officer in 1998. The shelter operated under the direction of the City's Police Department. On March 23, 1998, Johnson completed an Application for Employment with the City, which she signed to acknowledge that:
Although the above contract disclaimer is contained within the current online Employee Handbook, Plaintiff claims that the disclaimer is not within the hard copy Employee Handbook she received when she was hired. The City's Employee Handbook expressly provides that "City policy prohibit[s] the harassment of employees on the basis of race, color, age (40 and over) sex, pregnancy, [or] gender...."
In 2000, Cory Bowman became the supervisor of the City's Animal Control Division, where he supervised Plaintiff and two other Animal Control employees. Plaintiff alleges that Mr. Bowman was verbally abusive to the employees he managed and would yell at them about their work. Although Mr. Bowman would yell at both men and women, he would move closer to women and attempt to physically intimidate them. Additionally, Plaintiff alleges that Mr. Bowman was more verbally abusive to women and would call them names. For all but the first year of Mr. Bowman's employment at the shelter, all of the shelter employees other than Mr. Bowman were female.
In May of 2003, Plaintiff and her coworkers in Animal Control, Lonnie Bennett and Jessica Wright, complained to Dale Whittle, the City's Human Resources Director, about Mr. Bowman. They complained about the work environment and behavior they believed was inappropriate towards animals. Although Plaintiff told Mr. Whittle that she believed that Mr. Bowman was hostile towards her because she was a woman, she said that she couldn't say for certain because there had never been a male employee that Mr. Bowman respected in the office.
Shortly after receiving the complaint in 2003, the City assigned a police lieutenant, Sam Skaggs, to take a direct supervisory role over the Animal Control Division. The conditions improved during the time that Lieutenant Skaggs was acting as a supervisor for the shelter. About ten months later, Lieutenant Skaggs was promoted to another division of the Police Department and, as a result, his direct supervisory duties at Animal Control ceased. After the 2003 complaint, Plaintiff alleges that Mr. Bowman demanded that she and her coworkers talk to no one but him about work related problems.
Plaintiff did not complain about Mr. Bowman's treatment of her or animals again until October of 2008. Plaintiff alleges that this was because Plaintiff and her coworkers thought that the City was alright with the work atmosphere, and that her coworkers were afraid of losing their jobs if they complained.
In July of 2004, Assistant Chief of Police Craig Burnett was given responsibility over Animal Control. In this capacity, Burnett was Mr. Bowman's direct supervisor. Assistant Chief Burnett, in turn, reported to Defendant Chief Fondaco. On October 7, 2008, Plaintiff complained to
Plaintiff's complaint included the following description of an incident in which Mr. Bowman yelled at her. On September 30, 2008, Plaintiff saw a poster for a missing cat that matched the description of a cat currently at the shelter. Plaintiff called the woman who put up the poster, and the woman came to pick up her cat. Mr. Bowman was angry that Plaintiff had called the woman, and did not want to return the cat. Plaintiff alleges that Mr. Bowman held the cat down, blew on it and hissed at it in front of the cat's owner and Plaintiff. After the woman left, Mr. Bowman yelled at Plaintiff for calling the woman about her cat.
Chief Fondaco directed Assistant Chief Burnett to conduct an investigation. On October 18, 2008, Plaintiff supplemented her complaint to Assistant Chief Burnett via email to report that Mr. Bowman had thrown "[an animal] carrier towards where [she] was standing" and later allegedly "kicked the carrier out from under [her] hand" twice. Plaintiff said that she did not make this part of her initial complaint because she had forgotten about it. Additionally, Plaintiff said that Mr. Bowman cussed at her and called her names, but she could not "remember enough to state it."
Much later, in 2009, Plaintiff clarified her allegation to specify that Mr. Bowman had called her a "bitch" and a "cunt" after he threw the animal carrier towards where she was standing. Plaintiff did not tell Burnett about these details during his 2008 investigation. Plaintiff alleges that Mr. Bowman called her a "bitch" on a weekly basis prior to receiving sexual harassment training in 2004. However, after 2004, Plaintiff alleges that Mr. Bowman only called her a "bitch" when he threw the carrier towards her and on one other occasion.
Assistant Chief Burnett investigated the incident and obtained additional written complaints from Plaintiff's coworkers, Ms. Bennett and Ms. Arantes. As indicated by their written complaints, Plaintiff, Ms. Bennett, and Ms. Arantes believed that Mr. Bowman lacked the ability to effectively supervise animal control and that he was abusive towards them and towards the shelter's animals. Plaintiff and her coworkers complained that the "verbal harassment, intimidation, degradation, [and] demoralization ... has grown to a point that once again things have become intolerable."
Plaintiff alleges that Mr. Bowman continued to regularly scream at her and her coworkers and intimidate them, often screaming at them just inches from their faces. Although Mr. Bowman would yell just as loudly at men, he would call only women "stupid" and lean in only when he yelled at women.
Additionally, Plaintiff alleged that Mr. Bowman would regularly abuse animals and euthanize them early. Among these allegations of animal abuse, Plaintiff provided an audio tape to Assistant Chief Burnett which contained the following account from an incident that is alleged to have occurred in or about 2002:
Ms. Bennett told Assistant Chief Burnett this particular kitten had just survived being put in a carbon monoxide gas machine, may have been in distress, and that Mr. Bowman's conduct was intended for euthanasia purposes. However, this form of euthanasia was not a practice of the City and she considered it to be unethical.
The City investigated Plaintiff's complaints, and the shelter employees were all interviewed about Mr. Bowman's behavior and his capabilities as a shelter employee. Although some statements were made that Mr. Bowman's coworkers only wanted Mr. Bowman to be demoted, Plaintiff alleges that Mr. Bowman's coworkers were clear that Mr. Bowman should not be allowed to work in the shelter at all.
Mr. Bowman was told orally and in writing that retaliation would not be tolerated. Additionally, Chief Fondaco met with all employees of the Animal Control Division to tell them that he would not tolerate retaliation. However, Plaintiff informed Assistant Chief Burnett that Mr. Bowman had made comments that imply Mr. Bowman intended to retaliate.
On or about December 11, 2008, Chief Fondaco conducted a Pre-disciplinary Hearing with Mr. Bowman as a required procedure pursuant to City policy. Later that day, Chief Fondaco made the decision to demote Mr. Bowman from his position as Animal Control Supervisor to the rank of Animal Control Officer and gave a Police Sergeant, Deven Higgins, responsibility to supervise the Animal Control Division effective December 15, 2008.
Chief Fondaco decided to demote Mr. Bowman to the position of Animal Control Officer because he believed he had failed as a supervisor. In particular, Chief Fondaco believed that Mr. Bowman had used profane language, displayed a bad temper, and had been uncivil and disrespectful towards his coworkers.
On February 12, 2009, Plaintiff requested FMLA leave and sent an email to Seargent Higgins asserting that "I can't keep coping with being around Cory. I had another panic attack when he walked in yesterday and I thought it was Ana until I turned around and saw him.... I just don't want to be around Cory anymore."
When Plaintiff met with the City's investigator, she told her that "[Mr. Bowman] probably hasn't [done] anything more to cause more problems that could get him in more trouble. The damage was already done before he was demoted he was just his normal self afterwards."
In March of 2009, while still on leave, Plaintiff sent the City a letter indicating that she wanted to return to work with a modified work schedule so that she could "be assured of not having to see [Mr. Bowman] for a while."
On April 7, 2009, Plaintiff wrote to Chief Fondaco to request an ADA accommodation of a no contact order with Mr. Bowman and to obtain a schedule change to the latest shift possible. Chief Fondaco told Plaintiff that he could not guarantee no contact with Mr. Bowman because there were only four employees in Animal Control and, as a result, contact may be necessary. On April 6, 2009, Plaintiff returned from FMLA leave and began work on the noon to 8:00 p.m. shift that had been created for her.
After her schedule was changed, Plaintiff participated in a meeting with the other employees of Animal Control, including Mr. Bowman. Following this meeting, Plaintiff requested to Sergeant Higgins that she not be required to be in meetings with Mr. Bowman. Sergeant Higgins granted Plaintiff's request, and did not require her to attend any meetings where Mr. Bowman was present. Thereafter, Plaintiff only saw Mr. Bowman about twice a month. Plaintiff testified that, as of early May 2009, she believed that the modified work schedule provided by the City had "worked" to address her concerns.
However, on May 6, 2009, Plaintiff reported for the first time to Sergeant Higgins that Mr. Bowman would allegedly glare at her when no one else was around, probably once or twice a month. Additionally, Plaintiff reported her suspicion that Mr. Bowman was taking papers on her desk and turning them over. Plaintiff also told Sergeant Higgins that she needed additional leave, and the City granted her FMLA leave request.
The City investigated Plaintiff's complaint about Mr. Bowman by asking him whether he ever glared at Plaintiff or whether he had handled any papers on her desk. Mr. Bowman denied the alleged conduct. Because the City was not able to verify Plaintiff's allegation, it took no further disciplinary action with Mr. Bowman's employment. However, the City warned Mr. Bowman again that retaliation would not be tolerated.
On May 29, 2009, Plaintiff returned to work from FMLA leave and continued to work her noon to 8:00 p.m. shift. Shortly thereafter, on June 17, 2009, Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination on the basis of sex, and retaliation for complaining about discrimination.
During this same meeting, Plaintiff also told Chief Fondaco that the Animal Control Division was not functioning as a group and that "no one is on the same page now. No one is communicating. Four people are doing four different things."
Later, in mid-July 2009, Plaintiff alleges that Chief Fondaco met with the entire Animal Control Division to tell them that he "was upset with animal control in general.... He told us we had to work together. And then said if he continued to have any problems, sorry, he was going to replace the entire department. And he had brought that proposal from Salt Lake County with him. And he held it up in the air and waved it."
On October 7, 2009, Plaintiff obtained a report from her physician stating that she was suffering from "Depression, PTSD, severe anxiety, and panic attacks causing insomnia, fatigue, headaches, abdominal pain, rash, hives, nightmares unless she takes sleeping pill[s], chest pain, [and] shortness of breath."
On November 16, 2009, while Plaintiff was on FMLA leave, the City received a letter from Plaintiff's lawyer indicating that Plaintiff would like to return to work, but only if she is guaranteed no contact with Mr. Bowman. The City responded to Plaintiff's request by creating an even later shift especially for her, 4:00 p.m. to midnight (the "night shift"), which removed
Although the City did not move Mr. Bowman's shift, on December 2, 2009, Chief Fondaco made clear to Plaintiff that she did not have to work the night shift, and could elect to continue to work the noon to 8:00 p.m. shift if she liked. Plaintiff then chose to work the newly-created night shift, feeling that she had no choice if she wanted to avoid contact with Mr. Bowman. Although Plaintiff did not enjoy working the night shift, she testified that she did not feel that her reassignment to the night shift was based on her gender.
In December of 2009, Plaintiff began meeting with Nate Carlisle, a reporter with the Salt Lake Tribune (the "Tribune"), to report to him that Mr. Bowman was verbally abusive to his coworkers and had mistreated animals. As a result, on February 2, 2010, the Tribune published an article titled "Animal control worker says ex-boss cruel to pets."
The Tribune article reported that Mr. Bowman had decapitated a kitten, used pepper spray on dogs, and euthanized animals before the mandatory waiting period. The article also stated that Mr. Bowman was demoted in December 2008 and that Plaintiff "has since decided she would like Mr. Bowman fired or kept from working with animals."
Mayor Dan Snarr felt that following the Tribune article, the public lost confidence in the City's ability to run animal control. The City received many complaints from citizens after the Tribune article was published. Chief Fondaco, Mayor Snarr, and City Council members spent time answering phone calls and dealing with the public backlash that came after the article was printed.
At the same time, the 2010 budget year was the most difficult year that the Mayor and the City Council could remember. By early 2010, the City Council determined that it would not resolve the City's budget shortfall by raising taxes and fees. Instead, the City Council decided at this time to cut an additional 5% of the City's expenses. To this end, in February of 2010, the Murray City Council instructed Mayor Snarr that he needed to make significant additional cuts from his proposed budget.
Mayor Snarr sought the input of City department heads, including Chief Fondaco, who helped prepare the budget. Prior to this time, as early as the summer of 2009, Chief Fondaco had received inquires from Salt Lake County about the possibility of the City outsourcing its animal control services. Mayor Snarr and Chief Fondaco discussed outsourcing the City's animal control services as a means of reducing the budget. As a result, Mayor Snarr made the decision to do a Request for Proposal ("RFP") to determine whether outsourcing animal control services would save the City money. The City had previously outsourced many other services to third parties.
Led by Carol Heales, the City Recorder, and Chief Fondaco, the City formed a review committee to consider any responses received by the City from its RFP about animal control. The review committee included Ms. Heales, Chief Fondaco, Assistant Chief Burnett, Sergeant Higgins, and Pat Wilson, the City's Finance Director. On March 4, 2010, the City sent an RFP to Salt Lake County and West Jordan to determine the cost that these governments would charge for the provision of animal control services and the circumstances under which they would provide those services.
After Mr. Bowman's resignation in mid-February 2010, the Animal Control Division was down to two employees, Plaintiff and Ms. Bennett. Ms. Arantes had resigned in December of 2009. On April 9, 2010, Plaintiff's lawyer sent a letter to the City to complain that her client's workload was too much and demanded that the City take measures to reduce Plaintiff's workload. The letter alleged that the stress of being abused by Mr. Bowman had been replaced by new stress resulting from the shelter being short staffed and the possibility of the shelter being outsourced.
In addition, the City received numerous complaints about the lack of response from animal control, and Chief Fondaco was forced to devote police resources to animal control functions, leaving the police department shorthanded for its regular responsibilities.
On April 22, 2010, Plaintiff's lawyer wrote to the City to request that the shelter be allowed to use volunteers or police cadets to relieve the workload. The letter requested the assistance as a means of accommodating Plaintiff's disabilities, including PTSD, anxiety, depression, and panic disorder. In late April of 2010, Plaintiff requested additional leave. The City again denied that Plaintiff had a disability, and stated that "right now, most of [the City's] employees are under stress and overworked."
On May 18, 2010, Sergeant Higgins delivered a memorandum to Plaintiff that described the steps the City would take to reduce her workload, including: 1) reducing the hours the shelter was open to the public, 2) removing Plaintiff's responsibility for licensing animals, 3) removing Plaintiff's responsibility to respond to calls in the field, and 4) making arrangements with West Jordan Animal Control to provide assistance when needed. The City did not allow Plaintiff to use volunteers to help reduce her workload. Plaintiff also states that she wanted to be able to respond to calls in the field, and was upset about being restricted from doing so.
On May 20, 2010, Plaintiff's doctor provided a letter to the City stating that the workload reductions described in Sergeant Higgins' memorandum appeared to be sufficient to reduce Plaintiff's previous problems at work. Plaintiff never complained to the City that the workload reduction measures taken by the City were not sufficient to address her workload problems. Shortly after the City implemented the workload reduction measures, Plaintiff wrote to Sergeant Higgins that "I would like to report up through the chain of command that I am feeling much better and we have been able to keep up with the workload."
Meanwhile, the City's review committee continued its work reviewing the RFP responses provided by West Jordan and Salt Lake County. In conducting its review of the RFP responses, the review committee claims it considered two main factors: quality of service and savings to the City. To help with its decision, the City hired an independent financial consultant, David Miner with Municipal Bond Consulting, Inc., to review the RFP submissions provided by West Jordan and Salt Lake County and to render an opinion as to whether or not the City would save money by outsourcing animal control services. On May 20, 2010, Mr. Miner submitted his written report to the City concerning his financial analysis of the proposals submitted by West Jordan and Salt Lake County. Mr. Miner opined that the savings over a five-year contract with West Jordan would total $477,629 and that the savings over a five-year contract with Salt Lake County would total $610,290.
In conducting his analysis, Miner communicated with Ms. Heales and Mr. Wilson (the City's Director of Finance), who provided the City's financial information to him. Mr. Wilson reported to Miner that the City's personnel costs for Animal Control totaled $246,799 including base salary, overtime, social security, insurance, retirement benefits, and workers compensation insurance. Ms. Heales believed that this number included an amount for only three employees, and not a fourth employee supervisor. On May 13, 2010, Ms. Heales instructed Mr. Miner that the personnel
However, Ms. Heales was mistaken, the personnel cost figure had already included the correct employee cost. As a result, an additional $68,000 for the salary and benefits of a fourth employee should not have been added to Mr. Miner's assumptions. Accounting for this difference, Mr. Miner has now revised his opinion to state that the City should have expected to see a cost savings of $256,418 with Salt Lake County and a cost savings of $123,757 with West Jordan, over the life of a five-year contract.
Before Mr. Miner was able to correct the mistake in his report, on June 8, 2010, the City's review committee recommended to Mayor Snarr that the City outsource its animal control operations by contracting with West Jordan. The committee summarized Mr. Miner's financial analysis for the Mayor, and explained that, although Salt Lake County offered greater cost savings, West Jordan would provide the better service by maintaining two animal control officers within the City's existing Shelter. Additionally, the City's communications and data transfer systems were compatible with those used by West Jordan and not with Salt Lake County.
On June 11, 2010, the Mayor's Office prepared a memorandum to the City Council, signed by Mayor Snarr and Chief Fondaco, recommending that the City Council approve an Interlocal Agreement with West Jordan for the provision of animal control services. Mayor Snarr and Chief Fondaco explained that the City had "been experiencing an unfavorable public perception of its Animal Control services.... In order to effectively perform Animal Control services, the City needs to have positive interactions with its residents."
At the June 15, 2010, City Council meeting, the City Council heard from Chief Fondaco, Plaintiff's lawyer, and Ms. Bennett, among others. All four of the present members of the City Council (Krista Dunn, James Brass, Jared Shaver, and Darren Stam) then voted to approve an Interlocal Agreement with West Jordan City for the provision of animal control services. The City Council members testified that they examined the proposal to outsource animal control operations and made their own independent assessment about what was in the best interests of the City.
In making their individual decisions, the City Council members relied on Mr. Miner's independent financial analysis showing that the City would save $477,629 over the course of a five-year period if it outsourced animal control operations to West Jordan.
On June 24, 2010, with its Animal Control Division eliminated, the City notified its Animal Control employees, including Plaintiff, that their positions had been eliminated and that they would be laid off as part of a reduction in force effective June 30, 2010. West Jordan took over the operations of the shelter on September 1, 2010.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."
Plaintiff brings eleven different claims against Defendant Murray City and two claims against Defendant Peter Fondaco. These claims will be considered in turn below.
Plaintiff's first claim alleges gender and racial discrimination in violation of Title VII by Defendant Murray City. Plaintiff alleges both individual incidents of discrimination and a hostile work environment. As there is a different analysis for a hostile work environment claim than for a claim based on individual discriminatory actions, these claims will be evaluated separately.
As a preliminary matter, it must be noted that Plaintiff's racial discrimination claim must fail as a matter of law because she has not alleged any racial discrimination against herself personally. Plaintiff is not a member of any race that she alleges was discriminated against. Instead, her allegations are that she heard discriminatory remarks made about a coworker. "We have never recognized this as a valid theory of discrimination under Title VII.... If unease on observing wrongs perpetrated against others were enough to support litigation, all doctrines of standing and justiciability would be out the window."
"In states in which a state agency has authority to investigate employment discrimination ("deferral states"), Title VII requires claimants to file a charge of discrimination within 300 days of the alleged unlawful employment practice. Utah is a deferral state."
Plaintiff's charge was filed with the EEOC on June 17, 2009. Any incident on which a claim could be predicated must therefore have occurred on or after August 21, 2008. Plaintiff's only discrete allegation of gender-based discrimination occurring after August 21, 2008, is the City's reassignment of Plaintiff to the night shift. However, this claim must fail because Plaintiff has failed to allege any evidence that this was the result of gender-based discrimination. Indeed, in her deposition, Plaintiff admits that she is not alleging that the city put her on the night shift because of her gender.
The undisputed facts show that Plaintiff was originally reassigned to a 12:00 p.m. to 8:00 p.m. shift upon her request for a later shift so that she would not have contact with Mr. Bowman. Likewise, her reassignment to the night shift came about as a result of her request to have no contact with Mr. Bowman. Plaintiff had the option of returning to an earlier shift if she wanted to, although she would have had to risk contact with Mr. Bowman if she chose to do so.
The only link between the shift change and gender is based on the fact that her shift was moved rather than Mr. Bowman's. However, the simple fact that Mr. Bowman is a male and Plaintiff is a female is not sufficient for a jury to find that this was discrimination based on gender. Plaintiff was the one requesting an accommodation and a new shift was created for her. Given that Plaintiff does not allege that any gender-based comments were made in connection with her reassignment, and given that Plaintiff's personal belief is that this reassignment was not made on the basis of gender, this claim fails.
Unlike claims based on individual incidents of discrimination, a discrimination claim based on a hostile work environment "is composed of a series of separate acts that collectively constitute one `unlawful employment practice.'"
"To determine whether separate acts are part of the same practice, we look to the type, frequency, and timing of the acts, as well as to the perpetrator of the acts."
As reasoned above, Plaintiff has not alleged any individual incidents occurring after August 21, 2008, that could rise to the level of actionable discrimination. However, the Court need only find an act that is part of an ongoing violation in order for a hostile work environment claim to survive, even if that act alone is not actionable.
On May 9, 2009, Plaintiff reported that Mr. Bowman would allegedly glare at her once or twice a month when no one else was around. Additionally, she claimed that he would overturn papers on her desk while she was away. Even assuming that these allegations are true, they do not appear to be the same practice as any earlier continuing hostile work environment based on gender discrimination. "Title VII does not establish a general civility code.... Accordingly, the run-of-the-mill boorish, juvenile, or annoying behavior that is not uncommon in American workplaces is not the stuff of a Title VII hostile work environment claim."
Plaintiff also alleges that Mr. Bowman yelled at her after August 21, 2008, and alleges one specific incident that occurred on September 30, 2008. Plaintiff alleges that Mr. Bowman yelled at Plaintiff for calling the owner of a cat being held at the shelter. Mr. Bowman told her to never contact any owners who put a poster on the shelter's board. When the owner came to pick up the cat, Mr. Bowman appeared to deliberately distress the cat in front of the owner and his coworkers. Afterwards, Mr. Bowman yelled at Plaintiff for calling the woman about the cat.
However, there are no allegations that this incident involved any gender-based
As there were neither discrete acts of gender discrimination nor any acts contributing to the claim of gender discrimination based on a hostile work environment that occurred within the statutory time period, the Court will grant Defendants' Motion for Summary Judgment on Plaintiff's claims for discrimination under Title VII.
In order to establish a prima facie case of retaliation, Plaintiff must show that: "`(1) [Plaintiff] engaged in protected opposition to discrimination; (2) [Plaintiff] suffered an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse employment action.'"
If Plaintiff is able to establish a prima facie case, the burden shifts "to the employer to produce a legitimate, nondiscriminatory justification for taking the disputed employment action."
It is not disputed that the charge of discrimination that Plaintiff filed with the EEOC on June 17, 2009, meets the first prong of the test. Plaintiff alleges that Murray City retaliated against her by (1) forcing her to work the night shift, and (2) outsourcing the operations of the animal shelter, resulting in the termination of Plaintiff's employment. These two claims will be discussed in turn below.
In order to establish that she suffered an adverse action Plaintiff "must show that the `employer's challenged action would have been material to a reasonable employee,' which ... means that it would likely have `dissuaded a reasonable worker from making or supporting a charge of discrimination.'"
Plaintiff argues that working the night shift disrupted her family life and made it so that she could not see her thirteen-year-old child or her husband. Working the night shift made it so that Plaintiff worked on her own and had trouble coordinating work with her day-shift coworkers. Although Defendants argue that a shift change does not constitute an adverse action, a reasonable jury could find that under the circumstances, this change in shift time could be material to a reasonable
Finally, in order to establish her prima facie case, Plaintiff must show a causal connection between the filing of her complaint and her reassignment to the night shift. "A retaliatory motive may be inferred when an adverse action closely follows protected activity. However, unless the termination is very closely connected in time to the protected activity, the plaintiff must rely on additional evidence beyond temporal proximity to establish causation."
In this case, Chief Fondaco gave Plaintiff the option of either working the night shift or a shift during which she would have contact with Mr. Bowman on December 2, 2009, over five months after Plaintiff filed her complaint with the EEOC. Plaintiff does not allege additional facts establishing a causal connection between the complaint and assignment to the night shift. Instead, the undisputed evidence is that the night shift was created in response to a letter from Plaintiff's lawyer stating that she would only return to work if she was guaranteed no contact with Mr. Bowman.
Nevertheless, Plaintiff alleges that the creation of the night shift was a punitive action because Assistant Chief Burnett stated that reassigning Mr. Bowman to the night shift "would have been punitive. [Mr. Bowman] has seniority and had the right to bid shifts by seniority."
The fact that the City felt it would have been punitive to move Mr. Bowman's shift when he had seniority and had not requested a change does not mean that the City intended it to be punitive to give Plaintiff the option to move shifts when she was requesting no contact with a coworker. Furthermore, requiring Plaintiff to work the hours she was assigned once she had chosen a shift does not appear to be punitive.
However, even if the Court were to assume that Plaintiff could establish that the shift was punitive, she has not provided evidence that it was connected to the EEOC complaint. Instead, all evidence indicates that the night shift was created and enforced in response to Plaintiff's requests for an accommodation for no contact with Mr. Bowman. Indeed, even if Plaintiff were able to establish a prima facie case, this evidence demonstrates that the City had a legitimate, non-discriminatory reason for taking the action, and Plaintiff has not shown that the City's reason for creating the night shift position were pretext. Therefore, this claim fails.
There is no dispute that Murray City's outsourcing of the operations of the animal shelter, ultimately resulting in the termination of Plaintiff's employment, was an adverse employment action. Here, viewing the evidence in the light most favorable to Plaintiff, she has provided evidence
In Plaintiff's deposition, she alleges that July 9, 2009, a few weeks after filing her EEOC complaint, she had a conversation with Chief Fondaco in which he told her he had an offer from Salt Lake County for a proposal to outsource the City's animal control services. Plaintiff claims that in her conversation with Chief Fondaco, "[h]e said, `Due to this — you know, I have an EEOC complaint sitting on my desk. And you keep telling us what your doctors are saying and I want those things to stop.' And he said, `You know, if you keep digging holes, then I will replace the department.'"
Plaintiff's testimony is further supplemented by the deposition testimony of her coworker, Ms. Bennett, who claims that Assistant Chief Burnett told her she was collateral damage,
Defendants have offered two legitimate, non-discriminatory reasons for the outsourcing of Murray City's animal control services: (1) outsourcing would achieve significant cost savings in a time of extreme budget pressure; and (2) outsourcing would alleviate the unfavorable public perception of the City's abilities to manage animal control services. The undisputed evidence supports both reasons. As Defendants have offered legitimate, non-discriminatory reasons for the outsourcing, the burden shifts to Plaintiff to show that the proffered reasons were pretext.
In order to establish a genuine issue as to pretext, Plaintiff must show that Defendants' "proffered non-discriminatory reason is unworthy of belief."
"[A] challenge of pretext requires [the Court] to look at the facts as they appear to the person making the decision to terminate plaintiff."
"To prevail on a subordinate bias claim, a plaintiff must establish more than mere `influence' or `input' in the decisionmaking process. Rather, the issue is whether the biased subordinate's discriminatory reports, recommendation, or other actions caused the adverse employment action."
Plaintiff has provided evidence that Chief Fondaco's stated reasons for outsourcing the City's animal control services may have been pretextual. Plaintiff has provided evidence that the public's negative perception of the City's ability to manage animal control services came as the result of the newspaper article published on February 2, 2010. Plaintiff cites to complaints that indicate that much of the public outcry was a result of the City's employment of Mr. Bowman and animal control's lack of responsiveness to animal control needs in the spring of 2010. However, by this time, Mr. Bowman had resigned, and the lack of responsiveness was due, at least in part, to the fact that the City had not replaced Mr. Bowman or another animal control employee who had quit. Plaintiff argues that the City, by refusing to hire additional employees until the outsourcing issue had been determined, partially created one of the stated problems the outsourcing was intended to solve.
Additionally, Plaintiff has presented evidence that the cost savings numbers presented to the City were inflated. Although Plaintiff alleges that Chief Fondaco deliberately inflated those numbers, there is no objective evidence in support of that claim. Murray City hired an independent advisor to prepare the financial analysis, and it is his testimony, along with the testimony of others, that Chief Fondaco had no part in supplying the data in support of the financial analysis. However, Chief Fondaco did speak before the City Council, claiming that the savings from outsourcing the animal control service would be even greater than what the financial analysis claimed.
Although Plaintiff may be able to claim that Chief Fondaco's reasons for outsourcing the City's animal control services were pretextual, the ultimate decision to outsource
Although Defendants admit that the proposal to outsource animal control came at the recommendation of the Mayor and Chief Fondaco, the City Council performed an independent investigation. The City Council members testified that they were experiencing genuine budget difficulties and needed to make cuts. The City Council members hired an independent financial analyst to provide them with their financial information, and held a council meeting at which testimony was heard from many people, including Plaintiff's attorney. The independent financial analyst testified that he obtained his information independent of Chief Fondaco. As all evidence suggests that the City Council made its own independent investigation into the advisability of outsourcing the City's animal control department, Plaintiff's claim for retaliation must fail as a matter of law. Therefore, the Court will grant Defendants' Motion for Summary Judgment with regard to Plaintiff's Title VII retaliation claims.
Plaintiff brings claims of gender discrimination and retaliation in violation of the Equal Protection Clause of the Fourteenth Amendment under 42 U.S.C. § 1983.
Plaintiff's § 1983 claim for retaliation must fail as a matter of law. The Tenth Circuit has found that § 1983 cannot serve as the basis for a claim of retaliation.
Claims asserted under § 1983 "need not be asserted within the ... 300-day period applicable to Title VII claims."
"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law."
A policy can be based on the decisions of "officials whose acts may fairly be said to be those of the municipality."
Plaintiff has failed to identify any City policy or custom that would allow liability to attach to the City under § 1983 for the alleged gender discrimination by Mr. Bowman. Instead, Plaintiff alleges that City ratified Mr. Bowman's actions by being deliberately indifferent to discrimination against Plaintiff. However, the facts do not support this claim. The undisputed facts are that the City received Plaintiff's October 2008 complaint against Mr. Bowman, that the City performed an investigation, and that the City then relieved Mr. Bowman of his supervisory responsibilities. The City then hired an independent investigator to ensure that Mr. Bowman's alleged bad behavior had stopped.
Plaintiff does not allege any further discrimination by Mr. Bowman following his demotion. However, Plaintiff does allege that he continued to retaliate against her by glaring at her a couple of times a month and by overturning papers on her desk while she was away. Again, Plaintiff cannot show that any City policy or custom allowed this to happen. Instead, the City investigated the incidents but was unable to find any evidence of discrimination. Plaintiff's evidence of a discriminatory City custom or policy is insufficient to allow liability to attach to the City pursuant to § 1983 for Mr. Bowman's alleged gender discrimination.
Plaintiff alleges that Chief Fondaco is a policy maker for the City, and that Chief Fondaco's decision to place Plaintiff on the night shift and his role in outsourcing the City's animal control services are attributable to the City. Likewise, Plaintiff alleges that the roles of the Mayor and City Council in outsourcing the animal control department are acts of official policy. However, even assuming that these people are all policy makers for the City, these claims must fail because the facts do not support a claim of gender discrimination. Plaintiff has not alleged any facts that tie either of these actions to gender discrimination. Instead, Plaintiff alleges that these actions were retaliation for Plaintiff's complaints. However, as noted above, § 1983 does not provide a basis for Plaintiff's retaliation claims.
Therefore, the Court will grant Defendants' Motion for Summary Judgment as it relates to Plaintiff's Equal Protection claims under § 1983.
Plaintiff alleges that Defendants Murray City and Chief Fondaco's decision to outsource the animal control department was a violation of Plaintiff's procedural and
Substantive due process protections "apply to transgressions above and beyond those covered by the ordinary civil tort system; the two are not coterminous."
Plaintiff has cited no legal precedent for a finding of a violation of a party's substantive due process rights in a case like this one. The conduct alleged in this case simply is not above and beyond that covered by the ordinary civil tort system to the degree it shocks the conscience. Therefore, the Court will grant Defendants' Motion for Summary Judgment as it relates to Plaintiff's substantive due process claim.
Plaintiff argues that because the City's decision to outsource its animal control department ultimately resulted in Plaintiff's termination, it violated her procedural due process rights. "To assess whether an individual was denied procedural due process, courts must engage in a two-step inquiry: (1) did the individual possess a protected interest such that the due process protections were applicable; and, if so, then (2) was the individual afforded an appropriate level of process."
Therefore, the Court will grant Defendants' Motion for Summary Judgment as it relates to Plaintiff's procedural due process claims.
Plaintiff alleges that the City violated the Americans with Disabilities Act Amendments Act of 2008 ("ADAAA") by failing to accommodate the known disabilities of Plaintiff. The ADAAA provides that "[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to ... terms, conditions, and privileges of employment."
In order to make a claim under the ADAAA, Plaintiff "must demonstrate that [she] `(1) is a disabled person as defined by the ADA; (2) is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) suffered discrimination by an employer or prospective employer because of that disability."
In her memorandum in opposition, Plaintiff alleges that she has been documented as having several impairments, including "PTSD, severe anxiety, panic attacks ... causing insomnia, fatigue, headaches, abdominal pain, rash, hives, nightmares unless she takes sleeping pills, chest pains, shortness of breath."
The Tenth Circuit has long recognized that "[t]o be disabled in the major life activity of working, an employee must be `significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.'"
Although this language was eliminated in the 2011 modifications, the Tenth Circuit has found that "the Interpretive Guidance goes on to explain that the `broad class of jobs' restriction remains in place even after the amendment to the regulations."
In the present case, Plaintiff has failed to demonstrate that she is substantially limited in performing a class of jobs or a broad range of jobs in various classes as compared to most people with comparable training, skills, and abilities. Instead, the evidence and Plaintiff's requests for accommodation indicate two limitations on her ability to work. First, she claims that she was unable to "work with her abusive coworker, Mr. Bowman, who was the cause of her disabilities."
In her memorandum in opposition, Plaintiff also notes that "[i]nsomnia, in and of itself, affects a major life activity."
Plaintiff claims that Murray City took adverse actions against Plaintiff in violation of the Utah Protection of Public Employees Act because Plaintiff communicated suspected violations of law, rule, or regulation. The Utah Protection of Public Employees Act provides that:
The statute also provides that "[a]n employee who alleges a violation of this chapter may bring a civil action for appropriate injunctive relief or actual damages, or both, within 180 days after the occurrence
"To plead a claim under this Act, Plaintiff must show that (1) [she] communicated in good faith the existence of waste of public funds, property, or manpower or a violation of a law or regulation and (2) [her] employer took an adverse employment action against [her] because of said communication."
However, Plaintiff has not provided sufficient evidence to establish a causal relationship between her communications and the City Council's decision to outsource animal control. The only evidence that the City Council had any bias against Plaintiff comes from an email sent to the City Council from the Mayor's Chief of Staff. The email states that the article "was written with information from [a] disgruntled employee who has filed legal action against the City."
The animal shelter was a division of the City, "and as such, its employees are public employees. Ordinarily, `employment of public employees is governed by statute, not contract.'"
"An implied contract may arise from a variety of sources including personnel policies or provisions of an employment manual."
Plaintiff does not deny that she signed the above disclaimer in her application for employment. Additionally, the City's Employee Handbook contains the following disclaimer:
Plaintiff alleges that the employee handbook she received at the start of her employment did not have the above disclaimer. However, Plaintiff does not dispute that the Employee Handbook states that the City's Personnel polices and procedures are guidelines. Instead, Plaintiff relies on Cabaness to argue that an implied contract can arise even when there is a disclaimer.
In Cabaness, the court found that the following language created only a limited disclaimer: "No contract exists between [the City] and its employees with respect to salary, salary ranges, movement within salary ranges, or employee benefits."
The court then found that the clear language of the limited disclaimer in conjunction with other provisions in the employee handbook was evidence of the employer's intent to voluntarily assume certain duties to their employees, thereby forming an implied contract.
The disclaimer that the City had Plaintiff sign was not a limited disclaimer like the one considered in Cabaness. Instead, the disclaimer signed by Plaintiff stated that the application and "any other City documents" along with "any oral or written statements" were not contracts. This does not evince an intent by the City to create a contract with its employees like the disclaimer in Cabaness. Instead, this is an example of "a clear and conspicuous disclaimer" which the Utah Supreme Court has held "as a matter of law, prevents employee manuals or other like material from being considered as implied-in-fact contract terms."
The Family Medical Leave Act ("FMLA") provides that:
Plaintiff took FMLA leave in February of 2009 due to difficulties associated with working with Mr. Bowman. On March 24, 2009, Plaintiff sent a letter to Defendants requesting that she be allowed to "come back with the work schedule modified so I can be assured of not having to see Cory for a while."
Plaintiff took FMLA leave for a third time in October of 2009. On November 16, 2009, Plaintiff's attorney sent a letter to Defendants, indicating that Plaintiff would like to return to work, but only if she was guaranteed no contact with Mr. Bowman. In response, the City created a 4:00 p.m. to 12:00 a.m. shift for Plaintiff. Plaintiff does not dispute that she was given the option of returning to work either the night shift or the 12:00 p.m. to 8:00 p.m. shift. Although Plaintiff opposed taking the night shift, she ultimately accepted it because it was the only option given her that guaranteed no contact with Mr. Bowman. Plaintiff feels that this was punitive because the City did not guarantee her no contact with Mr. Bowman by either firing him or moving his shift times. Plaintiff alleges that the City admitted it was punitive because of the following explanation by Assistant Chief Burnett for why Mr. Bowman was not moved to the night shift:
Plaintiff's claim that her shift changes violated the City's FMLA obligations to restore Plaintiff to the same or an equivalent position simply cannot stand under these facts. It is not disputed that the City provided Plaintiff with the option of returning to her pre-leave shift each time she returned from leave. The FMLA does not require the City to place Plaintiff in a better environment or give her a better shift than the one she left. Instead, the FMLA requires an employer to restore an employee to an equivalent position to the one the employee left, which the City offered to do.
Plaintiff's claims for discrimination and retaliation in violation of the FMLA amount to claims that the City discriminated and/or retaliated against the
Therefore, the Court will grant Defendants' Motion for Summary Judgment on Plaintiff's FMLA claims.
Plaintiff claims that the City and Chief Fondaco retaliated against her First Amendment rights to petition and speak on matters of public concern when the shelter operations were outsourced to another city. Freedom of speech retaliation claims are analyzed under a five step inquiry referred to as the Garcetti/Pickering analysis.
Defendants have made no argument that Plaintiff was speaking pursuant to her official duties or that her speech was not a matter of public concern. Therefore, for purposes of the Motion for Summary Judgment, the Court will assume that Plaintiff was speaking as a citizen on a matter of public concern.
"Even if an employee does speak as a citizen on a matter of public concern, the employee's speech is not automatically privileged. Courts balance the First Amendment interest of the employee against `the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'"
"[T]here is no easy formula for `weighing' an employee's First Amendment speech against an employer's interest in an efficient and disciplined work environment."
Pertinent considerations include "whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise."
Defendants have provided evidence that Plaintiff's statements caused significant disruptions to the City's operations. It is not disputed that Mr. Bowman resigned approximately one week after the article containing Plaintiff's statements was published. Plaintiff does not dispute that this resignation left the department with insufficient staff and was against the wishes of Chief Fondaco. The article also contained volatile allegations about her coworker, Mr. Bowman, that would have otherwise been certain to have a detrimental impact on employee relations in the shelter.
Courts have routinely found that the government's interests outweigh those of the employee when the employee's speech threatens to have a significant impact on the operational efficiency of a department.
However, even considering the mitigating factors, Plaintiff's speech had a significant impact on the animal shelter and police department's internal operations. Mr. Bowman's resignation was a direct result of the speech. It is not disputed that Chief Fondaco and other City officials had to devote time and resources to dealing with the public outcry. Police resources had to be reassigned from their original purpose. As a result, Court finds that the City and Chief Fondaco's interest in promoting the efficiency of the public services they perform outweigh Plaintiff's First Amendment interests.
Even had Plaintiff's claim survived the third-step balancing test, it must still fail because Defendants have demonstrated
Defendants argue that the City's budgetary constraints and the financial savings that it believed would result from outsourcing the animal control department demonstrate that the decision to outsource was based on efficiency reasons. It is not disputed that the City was facing significant financial pressure and a budget shortfall. Nor is it disputed that the City Council decided to cut 5% of the City's expenses and instructed Mayor Snarr that he needed to make significant additional cuts from his proposed budget. It is not disputed that Mayor Snarr's suggestion to initiate an RFP to get bids from other cities with regards to the animal control services came in response to that request. Finally, Plaintiff does not dispute that it was a common practice for the City to outsource services to other cities, and that Salt Lake County had approached Murray City as early as the summer of 2009 to see whether the City was interested in having Salt Lake County take over its animal control operations. The Court finds that Defendants have provided undisputed facts to show that the RFP process was initiated in response to budgetary pressures and inquiries from Salt Lake County. None of these factors are related to Plaintiff's speech.
Defendants have not only demonstrated that the RFP process was initiated independent of Plaintiff's speech, they have also demonstrated that the subsequent investigation and decision to outsource were made independent of Plaintiff's speech. Defendants have demonstrated that the actual decision to outsource was made pursuant to an independent investigation by the City Council members. Defendants have shown that the City Council members hired an independent financial analyst to provide them with financial information, and held a council meeting at which testimony was heard from many people, including Plaintiff's attorney. Plaintiff does not dispute, and in fact argues, that the animal shelter was not operating effectively prior to her speech. Finally, Plaintiff has not provided any evidence that the City Council members themselves were biased towards Plaintiff, or that any action taken by them was in retaliation for Plaintiff's speech. In light of this undisputed evidence, the Court concludes that Defendants have shown that they would have made the decision to outsource even in the absence of Plaintiff's protected speech.
Therefore, because Plaintiff's First Amendment claim under § 1983 cannot survive the third or fifth step of the Garcetti/Pickering test, the Court will grant Defendants' Motion for Summary Judgment on this claim.
It is therefore
ORDERED that Defendants' Motion for Summary Judgment (Docket No. 22) is GRANTED.
The Clerk of the Court is directed to enter judgment in favor of Defendants and close this case forthwith.
