DAVID NUFFER, District Judge.
Defendant Deseret Mutual Benefit Administrators ("Deseret Mutual") filed a motion for partial summary judgment seeking the dismissal of Plaintiffs Yohana Gardner and Bryce Gardner's ("the Gardners") three causes of action relating to Bryce Gardner ("Mr. Gardner"): FMLA retaliation and Title VII retaliation (Fourth Cause of Action), breach of contract (Sixth Cause of Action), and breach of covenant of good faith and fair dealing (Seventh Cause of Action).
The following undisputed material facts are a reconciliation of the statement of material facts within Deseret Mutual's Amended Motion,
1. Deseret Mutual is a non-profit corporation employing approximately 400 associates in their Salt Lake City office.
2. Deseret Mutual's primary function is to administer a competitive benefits program for employees of the Church of Jesus Christ of Latter-day Saints and its affiliated organizations.
3. Deseret Mutual's call center associates are divided into specialty teams, such as customer service and enrollment, and file telephone calls and written requests regarding medical and dental insurance, life insurance, disability insurance, and retirement plans.
4. A friendly work environment is encouraged by Deseret Mutual, and associates are not prohibited from using social media websites for communicating with each other, in and out of work, including use of the website
5. Mr. Gardner was hired by Deseret Mutual on February 21, 2006.
6. Mr. Gardner was promoted to manager of the enrollment and retirement teams in early 2013.
7. At work, Mr. Gardner discussed owning guns with associates and co-workers, including associates he supervised on the enrollment and retirement teams.
8. Mr. Gardner regularly carried a knife to work.
9. At one point, Mr. Gardner coordinated and arranged a concealed weapons permit class for Deseret Mutual associates.
10. In April 2013, Mr. Gardner married an associate working on Deseret Mutual's customer service team, now known as Yohana Gardner ("Mrs. Gardner").
11. As part of Mr. Gardner's initial employment paperwork, he read, understood, and signed a Conditions of Employment Statement on February 21, 2006 ("Employment Statement").
12. The Employment Statement states:
13. Deseret Mutual's Human Resources Policy Manual ("HR Manual"), which is a portion of Deseret Mutual's employee handbook, states:
14. Policy 106 of the HR Manual outlines that:
15. Comment 1 to Policy 106 of the HR Manual states:
16. Comment 2 to Policy 106 of the HR Manual states:
17. Comment 3 to Policy 106 of the HR Manual further clarifies that:
18. Policy 211 of the HR Manual also provides that:
19. During his deposition, Mr. Gardner testified that he understood the terms of Policy 106.
20. During his deposition, Mr. Gardner testified that he understood his employment was at-will.
21. As a manager and supervisor of employees, Mr. Gardner had hiring and firing power and was aware of and familiar with Deseret Mutual's employment practices and its hiring and discipline practices.
22. During his deposition, Mr. Gardner testified that Deseret Mutual always followed its disciplinary process set out in its associate handbook, administrative policies, and HR Manual by first giving a verbal warning, then a written warning, then discipline, and finally termination.
23. Deseret Mutual's HR Manual provides that:
24. Deseret Mutual deems "a belief that Deseret Mutual policies, practices, rules, regulations, or procedures have been applied inconsistently to an associate" to be a proper dispute.
25. Deseret Mutual also deems reprisal and harassment and discrimination to be proper disputes.
26. The HR Policy Manual further provides that "[a]ssociates are not to be penalized for proper use of the dispute resolution procedure. . . associates and managers are prohibited from retaliating against an associate who properly used the dispute resolution procedure."
27. After being hired and as soon as her training was complete, Mrs. Gardner, a native Spanish speaker, asked if she could take Spanish calls.
28. Deseret Mutual refused to allow Mrs. Gardner to taking Spanish telephone calls.
29. At the same time, Deseret Mutual permitted non-native speakers who were hired at the same time as Mrs. Gardner, namely Chad Loveland and Cameron Solt, to take Spanish calls.
30. Deseret Mutual employees who take Spanish calls receive a salary increase.
31. Mr. Gardner was aware that Mrs. Gardner was on a committee that was referred to as the "Hispanic committee."
32. During her employment with Deseret Mutual, Mrs. Gardner attempted to apply for a promotion that was being offered.
33. Allison Bishop, Mrs. Gardner's supervisor, told her that she could not apply for the promotion because she had not been employed for more than one year.
34. However, Chad Loveland, an employee hired the same day as Mrs. Gardner, received the promotion.
35. The Gardners felt that Mrs. Gardner was being discriminated against and was receiving disparate treatment both because she was a minority and because she was pregnant and had applied for accommodation under the Family and Medical Leave Act ("FLMA").
36. Mrs. Gardner became pregnant in approximately May 2013.
37. Immediately after becoming pregnant, Mrs. Gardner began getting sick.
38. Mrs. Gardner would throw up approximately three or four time a day, and it was necessary for her to spend additional time in the bathroom.
39. Due to her pregnancy, Mrs. Gardner would get sick and needed to use the bathroom more frequently in order to vomit.
40. Mrs. Gardner became especially sick in the mornings—she felt fatigue and irritability.
41. Due to her pregnancy, Mrs. Gardner was hospitalized and received IV treatment therapy in order to restore fluids to her body because she was vomiting so frequently.
42. On July 8, 2013, Mrs. Gardner submitted a Request for Family or Medical Leave to Deseret Mutual due to her pregnancy.
43. Mrs. Gardner's Request for Family or Medical Leave was granted on July 12, 2013.
44. Thereafter, Mrs. Gardner's supervisors began monitoring her every move and bathroom break.
45. Mrs. Gardner's supervisors began monitoring all the time when she logged in, went to lunch, took a break, and logged out.
46. Mrs. Gardner's supervisors would comment about the time she spent, to which she would respond that it was due to her pregnancy-related sickness and that she could not help it.
47. Mrs. Gardner's supervisors continued to send constant emails demanding updates as to where she was going, where she was, how long she was gone, and why was she gone so long.
48. Mrs. Gardner felt that she was being discriminated against and was receiving disparate treatment because she was a minority and she was pregnant.
49. Mrs. Gardner went to speak with the vice president, Jana Sybrowsky, and informed her of the behavior of her supervisors.
50. Jana Sybrowsky told Mrs. Gardner that she would look into the issue.
51. Subsequently, Jana Sybrowsky met with Mrs. Gardner and indicated that they were looking into moving her to another team so that she would not have to work under her current supervisors.
52. However, Jana Sybrowsky later informed Mrs. Gardner that she was too valuable to her team and that they would not be moving her.
53. After the meeting with Jana Sybrowsky, one of Mrs. Gardner's supervisors in particular refused to even look at her.
54. Mrs. Gardner felt like she was on her supervisor's "target list."
55. Mrs. Gardner felt that her job was on the line.
56. On Thursday, August 1, 2013, approximately six weeks after complaining of discrimination and less than a month after applying for FMLA leave, Deseret Mutual terminated Mrs. Gardner's employment, purportedly for performance issues.
57. Mr. Gardner was notified of Mrs. Gardner's termination and allowed to escort her home.
58. The reason offered for Mrs. Gardner's termination was that for the period from May 1, 2013, through July 31, 2013, during her pregnancy and related sickness, Mrs. Gardner had intentionally disconnected 52 calls.
59. Deseret Mutual did not provide Mrs. Gardner with any documentation to support the allegation that she had intentionally dropped the calls.
60. Prior to her pregnancy, Mrs. Gardner never hung up any calls.
61. During her pregnancy, Mrs. Gardner may have disconnected one or two calls because she had to throw up into her waste basket or run to the bathroom because of her pregnancy-related sickness.
62. Mrs. Gardner was not informed or warned prior to her termination that there was an issue with her number of dropped calls.
63. Mrs. Gardner was not given an opportunity or allowed to correct the alleged problem as Deseret Mutual had allowed her to do in prior instances of performance issues, such as tardies.
64. At her deposition, Mrs. Gardner testified that had she been given an opportunity to correct the issue she would have.
65. During this period, Mrs. Gardner was meeting the specified amount of calls.
66. During the same time period that Mrs. Gardner's allegedly disconnected 52 calls, a Caucasian, male employee, Chad Loveland, disconnected 333 telephone calls.
67. In a single day, June 24, 2013, Chad Loveland disconnected at least 78 telephone calls.
68. Chad Loveland was given an opportunity to correct his issues.
69. Despite his numerous dropped calls, Chad Loveland was promoted, while Mrs. Gardner was terminated.
70. Mr. Gardner believed that Deseret Mutual had discriminated against Mrs. Gardner when it refused to give her the promotion that was given to Chad Loveland, and terminated her instead.
71. Mr. Gardner was informed that Deseret Mutual had an unwritten policy not to hire pregnant women.
72. After being promoted to manager, Mr. Gardner was specifically told "Do not hire a pregnant person again" by his direct supervisory, Donna McReavy.
73. This occurred after Mr. Gardner and another manager hired a pregnant woman.
74. Deseret Mutual terminated this pregnant employee shortly after she was hired, and Mr. Gardner was called into meet with Donna McReavy and told not to hire a pregnant employee again.
75. In another instance, a pregnant employee was terminated and then denied FMLA coverage.
76. Mr. Gardner believed that there was an appearance that Mrs. Gardner was being expected to be on the phones more than others and was not allowed to take medically necessary breaks.
77. Mr. Gardner was aware that Mrs. Gardner was not given any verbal or written warnings about dropped calls prior to her termination.
78. On August 1, 2013, Mr. Gardner specifically blocked Donna McReavy and Allison Bishop from his account at
79. On Monday, August 5, 2013, Mr. Gardner returned for his next day of work at Deseret Mutual.
80. Mr. Gardner requested a meeting with Deseret Mutual's General Counsel, Scott Eastmond, to express his concerns that Mrs. Gardner was being treated differently from other associates.
81. Mr. Gardner presented a three-page written document addressing his concerns to Scott Eastmond at their meeting ("Termination Concerns Document").
82. The Termination Concerns Document included a conclusion that Mrs. Gardner's termination "represents a targeted, personal, discriminative, retaliatory, wrongful termination of a pregnant minority who voiced her concern regarding inconsistencies between how she, as a minority[,] was being treated compared to those who are Caucasian."
83. During his deposition, Mr. Gardner testified as to his belief that Mrs. Gardner's managers and the Vice President of Operations "had it out" for her because she "is extremely personable, she's friendly, she's happy and everyone loved her. She does an excellent job, she's an excellent worker and both in my opinion Donna [McReavy] and Allison [Bishop] were envious and jealous of the attention [Mrs. Gardner] always received."
84. Shortly after the meeting with Scott Eastmond ended, Mr. Gardner posted the following message on
85. Mr. Gardner's Facebook Post was not made until the afternoon of August 5, 2013, after Mrs. Gardner called him in tears regarding a visit from a heating and cooling repairman.
86. At lunch on August 5, 2013, Mrs. Gardner called Mr. Gardner in tears.
87. Mrs. Gardner explained that her father had contacted a heating and cooling company to repair their air conditioning unit that had malfunctioned.
88. Before the repairman was scheduled to inspect the air conditioning unit, Mrs. Gardner's friend repaired the unit.
89. Mrs. Gardner's father contacted the repairman and informed him that the unit had been repaired.
90. Nonetheless, the repairman showed up and Mrs. Gardner informed him that the matter had been resolved.
91. The repairman then made derogatory, racist, sexist, and offensive comments to Mrs. Gardner and her parents.
92. The Facebook Post was seen by a number of associates and co-workers of Mr. Gardner, and was forwarded to Deseret Mutual's management.
93. Associates expressed their fears to Deseret Mutual managers that Mr. Gardner would seek violent retribution for the termination of Mrs. Gardner.
94. Soon after making the Facebook Post, Mr. Gardner was contacted by Jana Sybrowsky about the Facebook Post.
95. Mr. Gardner immediately removed the Facebook Post from
96. After his August 5, 2013 meeting with Scott Eastmond, Mr. Gardner began feeling hostility from his co-workers, specifically, Jana Sybrowsky, Allison Bishop, and Donna McReavy.
97. The next day, August 6, 2013, Mr. Gardner met with Jana Sybrowsky.
98. In a letter dated August 6, 2013, Mr. Gardner's supervisor, Donna McReavy, stated that Mr. Gardner's Facebook Post "did not contain an explicit threat; however, it did appear to have a veiled threat to people involved with [Mrs. Gardner's] termination. Due to the uncertainty and vagueness of the posting, it's difficult to determine his intentions. The posting could have been done for a range of reasons from venting frustration to wanting to harm people's reputations to the potential for destruction of property or physical harm."
99. During his deposition, Mr. Gardner testified that it was possible the Facebook Post could be perceived as threatening to co-workers and associates at Deseret Mutual.
100. As soon as it became known that Mr. Gardner was opposing his wife's termination "[he] no longer had communications, [he] felt on an island. Despite multiple projects [he] was running [he] felt [he] couldn't even leave [his] office to use the restroom without being questioned why."
101. Allison Bishop refused to look at Mr. Gardner when she spoke to him and Jana Sybrowsky no longer spoke cordially to him.
102. Donna McReavy, who had previously been very friendly, made a complete change of attitude toward Mr. Gardner.
103. Mr. Gardner's co-workers began finding ways of circumventing him and removing him for the picture.
104. Mr. Gardner was denied assignments and supervisory roles that had been his in the past, such as the VSP project.
105. Mr. Gardner's presence became disruptive to associates at Deseret Mutual who say they feared him.
106. Deseret Mutual management hoped that Mr. Gardner would be able to return to work as normal.
107. However, at least one of Mr. Gardner's co-workers, Allison Bishop, was terrified in interactions with him, and other co-workers continued to express their fears to Deseret Mutual management.
108. On August 23, 2013, the Gardners had a meeting with Scott Eastmond and Bob Johnson regarding Mrs. Gardner's termination.
109. On August 29, 2013, Mr. Gardner met with Scott Eastmond and Bob Johnson.
110. During the August 29th meeting, Mr. Gardner acknowledged that he was having trouble with his co-workers.
111. During the August 29th meeting, Scott Eastmond and Bob Johnson stated to Mr. Gardner that "[Scott Eastmond] was going to be meeting with Layne [Sybrowsky], Andy [Almeida], and Kent [Whiting] about [Mr. Gardner] possibly moving to one of their areas because [Mr. Gardner] had mentioned to them in that meeting that [he] felt there was some hostility towards [him]."
112. Scott Eastmond proposed placing Mr. Gardner on paid administrative leave, and Mr. Gardner readily accepted.
113. Within one month after his August 5, 2013 meeting with Scott Eastmond opposing Mrs. Gardner's termination, Mr. Gardner was placed on administrative leave.
114. Deseret Mutual did not believe it could return Mr. Gardner to work as manager of enrollment and retirement.
115. Deseret Mutual did not consider it appropriate for Mr. Gardner to publicly threaten co-workers on
116. Additionally, Deseret Mutual employees indicated that they had concerns about working with Mr. Gardner because they feared for their personal safety at work and at home.
117. In Deseret Mutual's communications with Mr. Gardner, he refused to acknowledge that his Facebook Post was the source of conflict with his co-workers.
118. In September 2013, Deseret Mutual arranged a meeting with the Gardners to discuss Mr. Gardner's continued employment with Deseret Mutual.
119. On September 5, 2013, Mr. Gardner met with Scott Eastmond who informed him that Layne Sybrowsky, Andy Almeida, and Kent Whiting would all like to have him work in their divisions and asked Mr. Gardner to take some time to think about where he would like to go.
120. The next day, Mr. Gardner emailed Scott Eastmond and informed him that he would like to be transferred to client services (employer relations) with Layne Sybrowsky.
121. Scott Eastmond responded "Great. I'll go ahead and get with Brad [Volmar] and Layne [Sybrowsky] and let them know."
122. Mr. Gardner's Facebook Post was not raised with him by either Scott Eastmond or Bob Johnson in their August 5, 23, 29 and September 5, 2013 meetings.
123. On September 9, 2013, Mr. Gardner send Scott Eastmond a follow up email to coordinate his transfer, Scott Eastmond responded that "after further consideration this morning. . . we want to emphasize a desire to resolve both sides of this equation (i.e., both your situation and [Mrs. Gardner's]) at the same time. . . . [Bob Johnson] and I believe it is in everyone's best interest to achieve resolution of these issues before you return."
124. Mr. Gardner believed that Deseret Mutual was "angry that [he] pointed out its inconsistent disciplinary standards and instead of addressing those inconsistent disciplinary standards it attempted to paint [him] as this person who's horrible—to horriblize [sic] [him], to assassinate [his] character, if you will, and put smoke and mirrors up to the reason why [they] found [themselves] in this situation, which was the termination of a pregnant minority."
125. On October, 1, 2013, represented by counsel, the parties met and negotiated a resolution that included transferring Mr. Gardner to another division of the company where he would not directly interact with the associates on the enrollment or customer service teams.
126. Deseret Mutual believed this transfer of Mr. Gardner was necessary.
127. A few days later, on October 3, 2013, the Gardners' counsel withdrew Mr. Gardner's acceptance of this resolution and indicated that "Mr. Gardner wishe[d] to return to his same position right away."
128. On October 4, 2013, Deseret Mutual's counsel responded and informed the Gardners' counsel that Mr. Gardner would remain on paid administrative leave while it continued to assess the unique issues presented by Mr. Gardner's situation.
129. On October 7, 2013, Deseret Mutual sent another letter to the Gardners' counsel, which highlighted that it had "serious concerns regarding Mr. Gardner's workplace behavior following the termination of Mrs. Gardner. It is critical to [Deseret Mutual] that Mr. Gardner appreciate that his inappropriate Facebook [P]ost . . . [was] not acceptable to [Deseret Mutual]. . . . This concern may be exacerbated as a consequence of the actions [Mrs. Gardner] may or may not take against [Deseret Mutual] for termination of her employment."
130. Mr. Gardner viewed this statement as an admission that he was being terminated due to his and Mrs. Gardner's opposition to her termination by Deseret Mutual.
131. Deseret Mutual emphasized that "[t]o be clear, Mr. Gardner's return to work cannot unduly disrupt the work environment or other employees."
132. Deseret Mutual expressed its concern that "Mr. Gardner is unwilling to sign an acknowledgement and release reflecting his understanding of these issues."
133. Deseret Mutual indicated that it was going "to consider Mr. Gardner's continued employment based on its budgetary needs and its comfort level with Mr. Gardner's behavior on a go-forward basis."
134. Mr. Gardner viewed these statements as pretext for terminating him for opposing his wife's termination.
135. Deseret Mutual indicated that it would like to speak with the Gardner's counsel regarding these issues, requested a time for a telephone call, and stated that Mr. Gardner would remain on paid administrative leave through October 2013.
136. Deseret Mutual never received a response to its October 7, 2013 letter.
137. Deseret Mutual terminated Mr. Gardner's employment at the company on October 31, 2013, purportedly for the expiration of his paid administrative leave expired without further attempt on his part to discuss or reach an acceptable resolution.
Summary judgment is appropriate if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."
The moving party "bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law."
Deseret Mutual's Amended Motion on the Gardners' breach of contract claim (Sixth Cause of Action) depends on Mr. Gardner's employment relationship with Deseret Mutual. "The elements of a prima facie case for breach of contract are (1) a contract, (2) performance by the party seeking recovery, (3) breach of the contract by the other party, and (4) damages."
Deseret Mutual maintains that Mr. Gardner was an at-will employee who could be terminated at any time, for any reason, with or without cause or notice. To support its position, Deseret Mutual relies on the express language of the Employment Statement that Mr. Gardner read and signed when he began working at Deseret Mutual and on its HR Manual. Deseret Mutual argues that these documents expressly establish that Mr. Gardner's employment was atwill and prevent any written term or oral representation from creating a contrary implied-in-fact contract. Deseret Mutual therefore submits that its termination of Mr. Gardner's employment cannot constitute a breach of contract as a matter of law.
The Gardners, on the other hand, contend that the disciplinary policies and procedures contained in Deseret Mutual's employee handbook establish implied-in-fact contract terms precluding termination absent a prior verbal warning, followed by a written warning, and then by discipline short of termination. The Gardners use Mr. Gardner's deposition testimony that Deseret Mutual always followed this disciplinary process as support for their position. Accordingly, the Gardners argue that Deseret Mutual breached Mr. Gardner's employment contract when it terminated his employment without following its established disciplinary process.
"An employment relationship for an indefinite term gives rise to a presumption that the employment relationship is at will."
"The existence of such an [implied-in-fact] agreement is a question of fact which turns on the objective manifestations of the parties' intent and is primarily a jury question."
The Employment Statement that Mr. Gardner read and signed when he began working at Deseret Mutual expressly provides that his employment was at-will:
Deseret Mutual's HR Manual also sets forth multiple express statements that Deseret Mutual's employees are at-will employees, unless the employee has a separate written employment contact. Specifically, Policy 106, titled "Employment-At-Will," provides:
Comment 1 to Policy 106 further clarifies the at-will nature of Deseret Mutual's employees:
Additionally, Policy 211, title "Termination of Employment," provides:
It is undisputed that Mr. Gardner, as a manager and supervisor of employees, was aware of and familiar with Deseret Mutual's employment practices and its hiring and discipline practices.
There is no direct evidence to support the Gardners' argument that Mr. Gardner's promotion somehow altered his at-will employment status. Nor do the undisputed material facts and competent evidence presented support a reasonable inference that Mr. Gardner's promotion altered his at-will employment status. Rather, the clear and plain language of Mr. Gardner's Employment Statement and Policies 106 and 211 of Deseret Mutual's HR Manual demonstrate that in the absence of an separate written employment contact, Mr. Gardner's employment with Deseret Mutual was at-will at the time of his hiring and remained at-will following his promotion.
"An implied-in-fact promise cannot, of course, contradict a written contract term."
Mr. Gardner's Employment Statement, signed February 21, 2006, as he started work at Deseret Mutual, is a one-page document consisting of eight bulleted paragraphs.
It is undisputed that Mr. Gardner read and understood the document.
The disclaimer of contract liability is also restated in Policy 102 of Deseret Mutual's HR Manual, titled "Functions of Human Resources Policies," which provides:
Comment 2 of Policy 106 then clarifies that the disclaimer of contract liability cannot be modified orally or in writing by a Deseret Mutual representative:
Comments 3 of Policy 106 further clarifies that Deseret Mutual's policies may not, collectively or individually, be construed as creating an express or implied contract that modifies the at-will employment status of its employees:
It is undisputed that Mr. Gardner was aware of and familiar with these policies, and that he understood these policies.
The actual text of Deseret Mutual's disclaimer of contract liability in Mr. Gardner's Employment Statement was no more or less prominent then the text of other provisions in the Employment Statement.
The multiple placements of Deseret Mutual's disclaimer of contract liability in Mr. Gardner's Employment Statement and the HR Manual further add to the disclaimer's conspicuous nature. Moreover, the plain language of the disclaimer of contract liability in each placement is clear, consistent, and unambiguous. Accordingly, Deseret Mutual's disclaimer of contract liability, coupled with Mr. Gardner's undisputed familiarity and understanding of the documents and policies that contain the disclaimer, prevent Deseret Mutual's employee handbook materials from creating implied-in-fact contract terms that modified Mr. Gardner's atwill employment status as a matter of law.
In the absence of any competent evidence of an express, written employment contract for a duration other than an indefinite term between Mr. Gardner and Deseret Mutual, and in the absence of sufficient competent evidence suggesting a manifestation of Deseret Mutual's intent to create an implied-in-fact contract for a duration other than an indefinite term regarding Mr. Gardner's employment, no triable issue of fact exists as to whether Mr. Gardner's employment was anything other than at-will. Given the undisputed material facts and the competent evidence presented, no reasonable jury could find the existence of an implied-in-fact contract for a duration other than an indefinite term between Mr. Gardner and Deseret Mutual. As such, Mr. Gardner's employment at Deseret Mutual was at-will and Deseret Mutual could terminate his employment at any time, for any reason, with or without cause or notice.
Under Utah law, "[a]n implied covenant of good faith and fair dealing inheres in every contact."
In the employment contract context,
In other words, the implied covenant of good faith and fair dealing "cannot be construed to change an indefinite-term, at-will employment contract into a contract that requires an employer to have good cause to justify a discharge."
The undisputed material facts establish, as a matter of law, that no express or implied-infact employment contract for a duration other than an indefinite term existed between Mr. Gardner and Deseret Mutual. Mr. Gardner's employment at Deseret Mutual was therefore at-will and Deseret Mutual had the right to terminate his employment at any time, for any reason, with or without cause or notice.
"Both FMLA retaliation and Title VII [retaliation] claims are subject to the burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)."
Viewing the undisputed evidence and all reasonable inferences in a light most favorable to the Gardners, genuine disputes of material fact preclude summary judgment on their FMLA retaliation and Title VII retaliation claim (Fourth Cause of Action). For purposes of summary judgment, the Gardners have established a prima facie case of retaliation under the FMLA and Title VII regarding Deseret Mutual's employment decisions relating to Mr. Gardner. Mr. Gardner perceived and believed that Deseret Mutual implemented practices involving discrimination and retaliation against employees having serious medical conditions or for taking FMLA leave, and discrimination based on race and gender, specifically with Mrs. Gardner's treatment and termination.
After it became know that Mr. Gardner voiced his opposition to Mrs. Gardner's treatment and termination to Deseret Mutual's management, he began feeling hostility from his co-workers and was circumvented on work projects and assignments he previously received.
Because the Gardners established a prima facie case of FMLA retaliation and Title VII retaliation, the burden shifts to Deseret Mutual to "articulate a legitimate, nondiscriminatory (or non-retaliatory) reason for the employment decision."
Deseret Mutual further presented evidence through the undisputed material facts that its decision to terminate Mr. Gardner's employment resulted from the expiration of his paid administrative leave without further attempt on his part to resolve the situation caused by his Facebook Post.
Accordingly, to avoid summary judgment on their FMLA retaliation and Title VII retaliation claim (Fourth Cause of Action), the Gardners bear the burden of presenting evidence that Deseret Mutual's proffered reasons for its employment actions are pretextual.
The undisputed material facts demonstrate that Mr. Gardner made the Facebook Post in the afternoon on August 5, 2013, the same day he voiced his opposition to Ms. Gardner's treatment and termination to Deseret Mutual management.
Additionally, it was not until August 29, 2013, approximately three weeks after the Facebook Post and within one week after a meeting between the Gardners and Deseret Mutual regarding Mrs. Gardner's termination, that Deseret Mutual proposed transferring Mr. Gardner to another division and placed him on paid administrative leave.
The undisputed material facts further demonstrate that on September 9, 2013, Deseret Mutual informed Mr. Gardner that it desired to resolve both his and Mrs. Gardner's issues at the same time and before he could return to work.
Given these genuine disputes of material fact, Deseret Mutual is precluded from obtaining summary judgment in its favor on the Gardners' FMLA retaliation and Title VII retaliation claim (Fourth Cause of Action).
IT IS HEREBY ORDERED that Deseret Mutual's Amended Motion
Consequently, the Gardners' breach of contract claim (Sixth Cause of Action) and breach of covenant of good faith and fair dealing claim (Seventh Cause of Action) are DISMISSED WITH PREJUDICE.
