Hutchinson v. City of Oklahoma City
Hutchinson v. City of Oklahoma City
Opinion of the Court
MEMORANDUM OPINION AND ORDER
Plaintiff Cheryl L. Hutchinson filed this suit on June 7, 2011, raising seven claims for relief. (Pl.’s Compl., Dkt. No. 1.) After the dismissal stage, Plaintiff has three claims remaining against both Defendant Dennis Phillips and Defendant City of Oklahoma City (“City”): (1) Count IV, which alleges a violation of equal protection, brought pursuant to 42 U.S.C. § 1983; (2) Count V, which alleges a violation of the Equal Pay Act; and (3) Count VI, which alleges negligent infliction of emotional distress. Three claims also survive against Defendant City alone: (1) Count II, which alleges gender discrimination and retaliation in violation of Title VII; (2) Count III, which alleges a hostile
I. BACKGROUND
Plaintiff began working as a plant operator for the City of Oklahoma City at the Draper Lake Water Treatment Plant (“Draper Plant”) in 2004. As a plant operator, Plaintiff reported to a Chief Plant Operator (“CPO”), who in turn reported to the Water Operations Supervisor (“WOS”). Defendant Dennis Phillips has served as Water Operations Supervisor of the Draper Plant since September of 2006. Jim Crawford, the Plant Manager, is the direct supervisor of Dennis Phillips. For all periods of time relevant to this action, a collective bargaining agreement between the AFSCME union and the City of Oklahoma City governed the terms of Plaintiffs employment, including her pay. At all times relevant to this lawsuit, Plaintiff has received the highest rate of pay authorized for plant operators by the collective bargaining agreement. Plaintiff is the only female employee at the Draper Plant.
Plaintiff first told Jim Crawford that available overtime was not being distributed equally in March of 2008.
II. LEGAL STANDARD
Summary judgment is proper if the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is material if it affects the disposition of the substantive claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party seeking summary judgment bears the initial burden of demonstrating the basis for its motion, and identifying those portions of “ ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ ” that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citation omitted). If the movant satisfactorily demonstrates an absence of genuine issue of material fact with respect to a dispositive issue for which the non-moving party will bear the burden of proof at trial, the non-movant- must then “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548. A. court considering a summary judgment motion must view the evidence and draw all reasonable inferences therefrom in the light most favorable to the nonmoving party. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000).
III. ANALYSIS
A. Title VII
Counts II and III of Plaintiffs Complaint allege violations of Title VII of the Civil Rights Act of 1964 by Defendant City in the nature of gender discrimination, the creation of a hostile work environment, and retaliation. To prevent “ ‘the pressing of stale claims,’ ” aggrieved employees must file a charge of discrimination with the EEOC within 300 days of the allegedly unlawful act. Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1163 (10th Cir. 2007) (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982)); see also 42 U.S.C. § 2000e-5(e)(1). For discrete acts of discrimination, the 300-day time period begins running when an employee first learns of the disputed employment action. Almond v. Unified Sch. Dist. No. 501, 665 F.3d 1174, 1177-78 (10th Cir. 2011). Thus, the Court will only look at individual incidents of discrimination occurring on or after February 22, 2009 — 300 days before
1. Gender Discrimination: Discrete Acts
The McDonnell Douglas
Defendant City first argues that Plaintiff cannot establish her prima facie case because she has not suffered an adverse employment action, or something affecting her “compensation, terms, conditions, or privileges of employment.” See 42 U.S.C. § 2000e2(a)(1). It is true that Plaintiff has not been terminated, demoted, disciplined, or had her salary reduced. Nor did Defendant Phillips ever rate her less than “fully competent” in her annual performance evaluations. Nevertheless, Plaintiff alleges four incidents
First, Plaintiff contends that in 2010 Defendant Phillips refused to allow Plaintiff to receive emergency call-out time even though she had heard that a male employee, Art Ford, had received call-out time the previous year. (Pl.’s Resp. to Def. City, Ex. 3 at 410-411, 450.) When Plaintiff asked Defendant Phillips why she could not receive call-out time, he allegedly responded, “I don’t know why you don’t get it.” (Id., Ex. 3 at 410.) Plaintiff did not ask any of her other supervisors why she could not have call-out time, nor did she file a complaint or grievance, despite having previously utilized the available grievance procedures. (Id., Ex. 3 at 411.) Other than her belief that one employee had received emergency call-out time in a prior year, Plaintiff admits she has no information about who else did or did not receive call-out pay. (Id., Ex. 3 at 450.) A memo issued the following year clarifies that City policy is to not pay “emergency overtime” or “call back” time. (Def. City’s Br., Ex. 5 at 5.) Under these facts, Plaintiff has not raised an inference that Defendant Phillips’s denial of emergency call-out time related to her gender.
Plaintiff also alleges that Defendant Phillips filed a false report after Plaintiff suffered an on-the-job injury in March 2010. Although Plaintiff does not describe her injury, Defendant Phillips explains that Plaintiff submitted a claim after sticking her finger with a staple from a magazine she was reading. (Reply of Def. Phillips, Dkt. No. 67, at 6.) In his report, Defendant Phillips stated that Plaintiff was on her lunch break when she sustained her injury, which caused the Workets’ Compensation Court to initially deny her claim. After Plaintiff appealed that decision, arguing that she does not have an unpaid lunch break since she is required to be on the clock during her entire shift, the Workers’ Compensation Court found in her favor and the City compensated Plaintiff for her injury. Plaintiff does not allege facts indicating that Defendant Phillips stated she was on her break maliciously or with the intent of causing the Workers’ Compensation Court to deny her claim. Rather than being related to Plaintiffs gender, Defendant Phillips’s report that Plaintiff injured herself while on a break mostly likely stems from the fact that she was reading a magazine when the injury occurred.
Next, Plaintiff claims that Defendant Phillips falsified Plaintiffs overtime balance in the overtime equalization records in order to deny her overtime opportunities. Plaintiffs evidence for this con
Finally, Plaintiff argues that Defendant Phillips attempted to block her from serving as acting CPO on account of her gender, as evidenced by the fact that he allowed males with less experience and qualifications to serve more time as acting CPO than Plaintiff. Other than her own assertions, Plaintiff relies on two pieces of evidence: first, testimony that Defendant Phillips was upset that she served as acting CPO in October of 2009 and, second, that a male co-worker with less experience and lower licenses worked more acting CPO hours than she did. (Pl.’s Resp. to Def. City, Ex. 1 at 157-159, Ex. 3 at 290, 395-96.)
Plaintiff also argues that the number of hours worked by Ryan Osborn, a male eoworker with less experience and lower licenses, indicates an effort to prevent her from serving as acting CPO because of her gender. Plaintiff is correct that Ryan Osborn
Because the discrete acts alleged by Plaintiff to constitute gender discrimination in violation of Title VII do not amount to adverse actions and she offers insufficient evidence to support her beliefs that the actions were taken on account of her gender, Plaintiffs claim fails and summary judgment is appropriate for Defendant City.
2. Gender Discrimination: Hostile Workplace
In Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), the Supreme Court held that “a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.” An employer can be held liable for an individual employee’s harassment “on a negligence theory, ‘if it knew or should have known about the conduct and failed to stop it.’ ” Bertsch v. Overstock.com, 684 F.3d 1023, 1027 (10th Cir. 2012) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). Taking “remedial and preventative action ‘reasonably calculated to end the harass
Not all harassment creates an actionable hostile work environment claim under Title VII. To bring a claim of gender discrimination based on a hostile work environment, Plaintiff must establish (1) discrimination on the basis of her gender and (2) that the discrimination was “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Penn. State Police v. Suders, 542 U.S. 129, 146-147, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004) (quoting Meritor Sav. Bank, 477 U.S. at 67, 106 S.Ct. 2399); see also Morris v. City of Colo. Springs, 666 F.3d 654, 663 (10th Cir. 2012). Gender discrimination by way of a hostile work environment must be sufficiently severe or
Plaintiff identifies three incidents to support her claim of a hostile work environ
Isolated incidents of offensive comments will not support a finding of a pervasively hostile work environment. Morris, 666 F.3d at 666 (“A plaintiff does not make a sufficient showing of a pervasively hostile work environment ‘by demonstrating a few isolated incidents of ... sporadic ... slurs.... Instead, there must be a steady barrage of opprobrious ... comments.’ ” (quoting Chavez, 397 F.3d at 832)). Neither are such statements, alone, sufficiently “severe.” Id. at 666-67 (noting the distinguishable nature of earlier cases finding isolated incidents severe enough to support a hostile work environment; such incidents involved instances of sexual assault and “especially egregious or extreme” conduct). However, Plaintiff claims that these statements must be viewed in the context of Defendant Phillips’s other discriminatory actions.
In Chavez, the Tenth Circuit recognized that “ ‘[f]acially neutral abusive conduct can support a finding of gender animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly gender-discriminatory conduct.’ ” 397 F.3d at 833 (quoting O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1097 (10th Cir. 1999)). As additional support for her hostile work environment claim, Plaintiff alleges Defendant Phillips disproportionately and disparately criticized her over minor work-related matters, such as her use of Draper Plant facilities, her cell phone usage, and not carrying her radio. Plaintiff also argues that Defendant Phillips was more “harsh” with her when she made work-related mistakes, such as allowing her clearwell level to get too low and accidentally entering information incorrectly in a logbook, and that he encouraged her direct supervisors, the CPOs, to harass her. Plaintiff offers little evidence in support of her allegations other than her own testimony and fails to address the conflicting testimony of other employees at the Draper Plant.
3. Retaliation
Plaintiff has also asserted a Title VII retaliation claim against Defendant City. Title VII’s anti-retaliation provision makes it unlawful for an employer to discriminate against an employee who has opposed harassment or discrimination in the workplace. 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under McDonnell Douglas, Plaintiff must show: “(1) ‘she engaged in protected opposition to discrimination, (2) a reasonable employee would have considered the challenged employment action materially adverse, and (3) a causal connection existed between the protected activity and the materially adverse action.’ ” Daniels, 701 F.3d at 638 (quoting Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1202 (10th Cir. 2008)). Defendant City concedes that Plaintiff engaged in protected opposition to discrimination when she filed a charge with the EEOC on December 18, 2009,
Although Title VII’s anti-retaliation provision is broader than its anti-discrimination provision, Plaintiff does not allege additional non-employment-related acts of retaliation. Instead, Plaintiff relies on the same allegedly discriminatory actions set forth in her Title VII gender discrimination action. The Court has already rejected Plaintiffs contentions regarding call-out time, her worker’s compensation claim, her overtime hours, and her acting CPO opportunities. See supra Part A.1. Plaintiff makes no effort to describe how these actions were materially adverse, how they stemmed from her protected conduct, or even that they arose after she engaged in protected opposition to discrimination.
B. Equal Protection
Count IV of Plaintiffs Complaint alleges that all Defendants “deprived Plaintiff of her constitutional right to equal protection” while “acting under the color of their authority.” (Pl.’s Compl. at 6.) Plaintiffs claim is brought pursuant to 42 U.S.C. § 1983. Because § 1983 does not provide its own statute of limitations for civil rights claims, the two-year limitations period for injuries to personal rights in Oklahoma applies. See Alexander v. Oklahoma, 382 F.3d 1206, 1212 n. 1 (10th Cir. 2004) (citing 12 Okla. Stat. § 95); Garcia v. Wilson, 731 F.2d 640, 651 (10th Cir. 1984). Thus, the Court will consider only those events occurring on or after June 7, 2009.
1. Defendant City
Although municipalities can be sued under § 1983, “a municipality cannot be held liable solely because it employs a tortfeasor,” or on the basis of the doctrine of respondeat superior. Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see also Milligan-Plitt v. Bd. of Trs. of Sheridan Cnty. Sch. Dist. No. 2, 523 F.3d 1219, 1223 (10th Cir. 2008). Instead, “ ‘to establish municipal liability, a plaintiff must show 1) the existence of a municipal policy or custom, and 2) that there is a direct causal link between the policy or custom and the injury alleged.’ ” Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (quoting Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993)), cert. denied, - U.S. -, 131 S.Ct. 3030, 180 L.Ed.2d 846 (2011). Plaintiff may use any of the following to establish a municipal policy or custom:
(1) “a formal regulation or policy statement,” (2) an informal custom “amoun[ting] to a “widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law' ”; (3) “the decisions of employees with final policymaking authority”; (4) “the ratification by such final policymakers of the decisions — and the basis for them — of subordinates to whom authority was del*1179 egated subject to these policymakers’ review and approval”; or (5) the “failure to adequately train or supervise employees, so long as that failure results from ‘deliberate indifference’ to the injuries that may be caused.”
Id. (quoting Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189-90 (10th Cir. 2010) (internal citations omitted)).
Defendant City requests summary judgment on Plaintiffs § 1983 claim on the basis that such a claim is more properly pursued against Plaintiffs supervisor, not the City, because the City cannot be held vicariously hable for Defendant Phillips’s actions and Plaintiff has not established a City custom or policy of gender discrimination. In response, Plaintiff does not point to a formal City policy of gender discrimination, a widespread practice of gender discrimination, that Defendant Phillips was an employee with final decision-making authority, that final policymakers ratified Defendant Phillips’s conduct, or that the City failed to train or supervise its employees because of its deliberate indifference to the injuries that could be caused by gender discrimination. Instead, Plaintiff argues that by failing to correct Defendant Phillips’s harassment of Plaintiff, Defendant City acquiesced to Defendant Phillips’s discrimination, making the City liable. Plaintiff provides no supporting authority
2. Defendant Phillips
a. Gender Discrimination
The elements of a discrimination lawsuit are the same whether brought pursuant to § 1983 or Title VII. See Drake v. City of Fort Collins, 927 F.2d 1156, 1162 (10th Cir. 1991). Under the McDonnell Douglas burden-shifting framework, Plaintiff has the initial burden of establishing a prima facie case of gender-based discrimination, just as with a Title VII action. E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007). If Plaintiff meets her
First, Defendant Phillips argues that Plaintiff has failed to establish her prima facie case because she has not demonstratr ed that she has suffered an adverse employment action. Plaintiff has not been terminated, demoted, disciplined, or had her salary reduced. (Def. Phillips’s Br., Ex. 16 at 164.) Nor did Defendant Phillips ever rate Plaintiff less than “fully competent” in her annual performance evaluations. (Id., Ex. 16 at 81-90.) Nevertheless, Plaintiff argues that Defendant Phillips took overt employment action against her in two ways: first, by harassing her over minor work-related matters and treating her with hostility, and, second, by denying her the same overtime and acting CPO opportunities as the male employees, thus decreasing her potential earnings. (Pl.’s Resp. to Def. Phillips, Dkt. No. 65, at 1-2, 4-7.)
Plaintiffs § 1988 gender discrimination claim against Defendant Phillips fails for the same reasons that the Court laid out in analyzing her Title VII gender discrimination claim against Defendant City. The Court has already rejected Plaintiffs claims with respect to her overtime and acting CPO opportunities, concluding that the evidence shows that Plaintiff worked more overtime and acting CPO hours than all but one of her male co-workers, rebutting any suggestion of adverse action or gender bias. See supra part A.1. Moreover, the statute of limitations bars this Court from considering many of the actions Plaintiff suggests constitute actionable harassment.
b. Retaliation
Plaintiff has also asserted a retaliation claim against Defendant Phillips.
C. Equal Pay Act
Count V of Plaintiffs Complaint alleges a violation of the Equal Pay Act (“EPA”) based on the fact that “Defendants paid other male co-workers more than what they paid Plaintiff notwithstanding that the male co-workers had jobs substantially equal to Plaintiffs job.” (Pl.’s Compl. at 6.) Claims brought pursuant to the Equal Pay Act are subject to a two-year statute of limitations, meaning the Court will only look at actions of the Defendants taking place on or after June 7, 2009. See 42 U.S.C. § 255. For claims based upon the EPA, Plaintiff has the initial burden of “demonstrating that employees of the opposite sex were paid differently for performing substantially equal work.” Mickelson v. New York Life Ins. Co., 460 F.3d 1304, 1311 (10th Cir. 2006). If Plaintiff establishes a prima facie case of discrimination, Defendant City and Defendant Phillips will have the burden of persuasion and must “prove that the wage disparity was justified by one of four permissible reasons.” Id.
Plaintiff has not satisfied her initial burden by providing evidence she received less pay than the City’s male employees who performed substantially equal work. For all time relevant to this action, a controlling collective bargaining agreement has determined Plaintiffs base rate of pay. Plaintiff receives the top pay authorized by the collective bargaining agreement for a plant operator; no plant operator receives a higher rate of pay than Plaintiff. The only times male employees received a higher rate of pay, the City
D. Tort Claims
1. Defendant City
Plaintiff asserted two negligence claims in her Complaint against Defendant City: (1) infliction of emotional distress
a. Negligent Infliction of Emotional Distress
Plaintiff bases her negligent infliction of emotional distress claim on Defendant City’s failure to intervene and protect Plaintiff from Defendant Phillips’s conduct that was “outrageous in the extreme.” (Pl.’s Resp. to Del City at 28.) To prevail on a negligent infliction of emotional distress claim, Plaintiff must prove: (1) a duty on the part of the City to protect Plaintiff from injury; (2) the City’s failure to perform that duty; and (3) that Plaintiff suffered an injury as a result of Defendant’s failure. Chenoweth, 2010 OK CIV APP 91, ¶ 14, 240 P.3d at 1083 (citing Kraszewski v. Baptist Med. Ctr. of Okla., Inc., 1996 OK 141, ¶ 1, 916 P.2d 241, 243 n. 1). Oklahoma law permits Plaintiff to recover for mental anguish only upon proper proof that the anguish either “is caused by physical suffering” or “inflicts physical suffering.” Ellington v. Coca Cola Bottling Co. of Tulsa, Inc., 1986 OK 11, ¶ 8, 717 P.2d 109, 111; see also Roberts v. Langston Univ., Case No. CIV-10-1378-C, 2011 WL 1194673 at *2 (W.D.Okla. Mar. 30, 2011).
Defendant first seeks to dismiss Plaintiffs negligent infliction claim under the GTCA. Defendant City argues that if
Defendant City next argues that Plaintiffs claim must fail because she did not allege a physical injury, as required by Ellington. (Def. City’s Br. at 23-24.) However, Plaintiff alleged that she “suffered from migraines and stress that affected her work and her ability to sleep” and “also broke her molar because of her grinding her teeth due to the stress of work.” (Pl.’s Resp. to Def. City at 28.) Although Defendant City attempts to refute Plaintiffs testimony about her broken molar (Def. City’s Br. at 24), Plaintiff still has testified that she has suffered migraines, trouble sleeping, and grinding her teeth, all physical manifestations of emotional distress. The Tenth Circuit has recognized difficulty sleeping, crying, and weight gain as evidence of physical harm in a negligent infliction of emotional distress case. Wilson v. Muckala, 303 F.3d 1207, 1213 (10th Cir. 2002). Plaintiff’s alleged physical harm is likewise sufficient for summary judgment purposes.
Alternatively, Defendant City maintains that if Plaintiff alleged a physical injury, the exclusivity provision of the Oklahoma Workers’ Compensation Act, 85 Okla. Stat. § 302(A), bars Plaintiffs negligent infliction claim. Section 302(A) provides: “[t]he liability prescribed in this act shall be exclusive and in place of all other liability of the employer and any of his or her employees, at common law or otherwise, for such injury ... to the employee ... except in the case of an intentional tort.” In a recent case in the Northern District of Oklahoma, the Court held that the plaintiffs emotional distress and digestive problems resulting from his termination arose out of his employment, meaning the exclusivity provision of the Oklahoma Workers’ Compensation Act barred his claim for negligent infliction of emotional distress. Amin v. Flightsafety Int’l, Inc., Case No. 06-CV-568-GKF-PJC, 2009 WL 4729946, at *4-5 (N.D.Okla. Dec. 2, 2009) (“In this case there is quite plainly a connection between plaintiffs termination and the alleged physical injury — stomach discomfort.... Therefore, as a separate and alternative ground for summary adjudication, the court concludes plaintiffs negligence claim for physical injuries is barred by the exclusivity provision of the Oklahoma Workers’ Compensation Act.”). Likewise, the Tenth Circuit affirmed the reliance of the Utah District Court on the Utah Worker’s Compensation Act in dismissing the plaintiffs claim for negligent infliction of emotional distress as manifested in the worsening of his heart condition after his discharge. Gephart v. Delmed,
b. Negligent Training and Retention
In Count VII of her Complaint, Plaintiff alleges that Defendant City breached its duty “to properly supervise and train its employees to refrain from engaging in ... gender harassment, discrimination, and retaliation.” (Pl.’s Compl. at 8.) Oklahoma law recognizes the tort of negligent hiring and retention. N.H. v. Presbyterian Church (U.S.A), 1999 OK 88, ¶ 20, 998 P.2d 592, 600. An employer will be held liable if, at the time of the tortious incident, “the employer had reason to believe that the [tortfeasor-employee] would create an undue risk of harm to others.” Employers are only liable if they had “prior knowledge of the [employee’s] propensity to commit the very harm for which damages are sought,” id., but “knowledge may be imputed to the employer from information obtained by its supervisory employees.” Austin v. Edmond Transit Mgmt., Inc., Case No. CIV-12-324-D, 2013 WL 49710, at *6 (W.D.Okla. Jan. 2, 2013).
Defendant City was aware that Plaintiff had complained of gender discrimination and retaliation as of October 19, 2009, when she filed her union grievance against Defendant Phillips. However, Plaintiffs assertion — that Defendant City took no action after learning of potential discrimination — is inaccurate. When Defendant City learned of Plaintiffs claims of gender discrimination, it referred the matter to two investigators who looked into Plaintiffs claims and submitted a thirteen-page report. (Def. City’s Reply at 2-4, Ex. 3.) The investigators’ conclusions were that there was insufficient evidence to support Plaintiffs claim that she had been denied overtime opportunities and “insufficient evidence to support any claim of disparate treatment in other aspects of her employment environment.” (Id., Ex. 3 at 12.) Thus, the investigators recommended no administrative action be taken. (Id., Ex. 3 at 13.) Although Plaintiff refers to the City’s discrimination investigation as “ineffectual,” merely because the investigation came to a conclusion contrary to her position does not mean that her claims were not thoroughly investigated. Based on the City’s investigation into Plaintiffs claims, the City did not breach its duty to Plaintiff and summary judgment is appropriate.
2. Defendant Phillips
Although Plaintiffs Complaint asserted that .Count VI “goes against all Defendants,” in her response to Defendant’s motion Plaintiff states that she “did not allege infliction of emotional distress against Defendant Phillips.” (Pl.’s Resp. to Def. Phillips at 15.) Thus, Defendant Phillips’s Motion for Summary Judgment is granted.
IV. CONCLUSION
Defendant City and Defendant Phillips have established that they are entitled to summary judgment as a matter of law with respect to the claims raised in Plaintiffs Complaint. Accordingly, Motion for Summary Judgment of Defendant, Dennis Phillips (Dkt. No. 53) and Defendant City’s
. At that time, the City had implemented an overtime equalization policy to fairly distribute any available overtime hours among eligible employees. Under the equalization procedure, records were kept of how much overtime each employee actually worked. In addition, employees who turned down overtime when offered or who did not timely respond to an offer of overtime were credited overtime hours. When overtime became available, a supervisor would contact the qualified employee with the lowest amount of credited overtime hours and offer him or her the overtime.
. Plaintiff filed a grievance with the AFSCME in accordance with the dispute resolution procedure found in the collective bargaining agreement governing the terms of Plaintiff's employment. Plaintiff filed her grievance on October 19, 2009.
.Permanent CPOs must possess at least a Class "B” Water Treatment Operator Certification. In contrast, plant operators only need to have a Class "C” license. However, a plant operator can fill in for a CPO on a temporary basis, even if he or she only possesses a "C” license. This is known as working as an "acting CPO." If a plant operator works as an acting CPO for two or more shifts in a pay period, the plant operator receives higher CPO pay.
.Plaintiff contends that the Lilly Ledbetter Fair Pay Act of 2009 removes the 300-day rule from Title VII claims by "clariflying] that gender discrimination claim will accrue each time the employee receives compensation pursuant to gender based discriminatory practices.” (Pl.’s Resp. to Def. City, Dkt. No. 66, at 12) (emphasis added). However, Plaintiff misunderstands the Ledbetter Act. The Ledbetter act does not "work[] a near total revolution in how we measure time, with a new claim arising- — and the limitations clock resetting anew — each time an employer issues a new paycheck reflecting or effecting an act of discrimination.” Almond, 665 F.3d at 1180. Instead, "the Act applies only to claims alleging' discrimination in compensation ’ — or, put another way, claims of unequal pay for equal work.” Id. at 1180 (emphasis added). Plaintiff’s Title VII claims allege gender discrimination, retaliation, and the creation of a hostile work environment, not that Plaintiff was paid less than her male co-workers for performing substantially the same work.
. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
. Plaintiff also alleges gender discrimination through disparate treatment by Defendant Phillips. For example, Plaintiff contends she was disciplined more harshly than her coworkers over work-related matters such as her cell phone use on the job, not carrying
. The Tenth Circuit has established that "at the summary judgment stage,' statements of mere belief in an affidavit must be disregarded.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir. 2006) (quoting Tavery v. United States, 32 F.3d 1423, 1427 n. 4 (10th Cir. 1994); see also Ney v. City of Hoisington, Kan., 264 Fed.Appx. 678, 681 n. 3 (10th Cir. 2008)) (affirming that it is a. "well-settled premise” that summary judgment affidavits not based on personal knowledge or supported by other portions of the summary judgment record must be disregarded).
. It is unclear what action Jim Crawford took in response other than to advise Plaintiff to be more clear with Defendant Phillips when he offered her overtime. (Pl.’s Resp. to Def. City, Ex. 3 at 298-99.)
. Plaintiff worked the sixth most overtime in 2010 but the third most overtime in 2011. (Def. City's Br., Ex. 19.) From 2009 through 2011, Plaintiff worked the second highest total number of overtime hours. (Id., Ex. 7 at 1, Ex. 19.)
.Plaintiff's own history of grievances further indicates that if Defendant Phillips falsified the overtime records, he did not do so on account of Plaintiff's gender. As pointed out by Defendant Phillips, in Plaintiff’s complaints of January 7, 2009, and October 19, 2009, Plaintiff accused Defendant Phillips of falsifying the overtime records of "his employees” or “his crew,” indicating that he changed the overtime balances of male employees, in addition to Plaintiff's. (Def. Phillips's Br. at 16 (citing Exs. 7 & 8) (emphasis added)). Plaintiff admitted in her deposition that she used the word "crew” to refer to "[ejveryone under [Defendant Phillips's] supervision,” both male and female. (Id. (citing Ex. 16 at 121).)
. Ryan Osborn’s full name is Patrick Ryan Osborn. Defendant City's chart detailing the amount of acting CPO hours worked by each employee refers to Ryan Osborn as "Patrick Osborn.” (Def. City's Br., Ex. 19.)
. The Supreme Court's use of the disjunctive “or” indicates that the conduct Plaintiff complains of has to be either severe or pervasive, not both, to establish a claim of discrimination based on the infliction of a hostile working environment. Morris, 666 F.3d at 665.
. See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (noting that “[a] recurring point in [the Supreme Court's hostile work environment] opinions is that ‘simple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment' ”) (citation omitted); Morris, 666 F.3d at 665-68 (concluding evidence of discrimination — flicking plaintiff in the head twice, throwing pericardium tissue at plaintiff in the operating room, yelling at plaintiff and demeaning her work, and making comments to her such as "get your ass in gear” — was insufficiently severe or pervasive to have altered the terms and conditions of plaintiff's employment). Compare Sprague v. Thorn Ams., Inc., 129 F.3d 1355, 1365 (10th Cir. 1997) (finding no hostile work environment from "five separate incidents of allegedly sexually-oriented, offensive comments either directed to [the plaintiff] or made in her presence in a sixteen month period”) with Chavez v. New Mexico, 397 F.3d 826, 836 (10th Cir. 2005) (reversing trial court's grant of summary judgment for defendants because of the strong evidence of a hostile work environment: a supervisor had sexually propositioned a plaintiff in exchange for not issuing a reprimand letter, stood close behind one of the plaintiffs while staring at her lewdly and massaging his genitals, brushed the backside of one of the plaintiffs, called another plaintiff a "fucking bitch,” and made a lewd, seductive invitation for a "real experience” to another plaintiff).
. First, Plaintiff alleges that Defendant Phillips complained to management about her use of the Draper Plant’s showers in 2008. However, Plaintiff’s CPO at that time, John Henderson, testified that he did not know who had complained about Plaintiff taking too many showers at work, but that he believed it was Sonny Massy, not Defendant Phillips. (Def. Phillips’s Br., Ex. 15 at 42-45.) John Henderson also testified that Jim Crawford took the lead in the meeting relating to Plaintiff’s use of the showers, not Defendant Phillips. (Id.) Next, although Plaintiff claims that "Phillips verbally chastised Plaintiff for her cell phone usage while her male coworkers were never chastised” (Pl.’s Resp. to Def. Phillips, at 2), John Henderson testified that when Defendant Phillips said something about Plaintiff's cell phone usage, Defendant Phillips also told him that he was using his cell phone too- much. (Def. Phillips’s Br., Ex. 15 at 50.) According to John Henderson, after Henderson told Defendant
. Under Tenth Circuit case law, filing an internal grievance alleging sexual harassment qualifies as protected opposition to discrimination under Title VII. Argo, 452 F.3d at 1202. As Plaintiff points out, Plaintiff filed a grievance in October of 2009. Thus, Plaintiff engaged in protected opposition to discrimination on October 19, 2009, and on December 18, 2009.
. For example, Plaintiff's complaints with respect to her overtime began in March of 2008, well before Plaintiff complained of gender discrimination in her grievance of October 19, 2009. Likewise, Plaintiff's complaints regarding her acting CPO time began before she filed her grievance or EEOC charge, as both documents reflect. Moreover, Plaintiff has alleged no facts indicating that Defendant Phillips's actions with respect to her request for call-out time or her worker’s compensation claim were in any manner related to her 2009 grievance or her 2009 EEOC charge. As pointed out in Part A.1 of this Opinion, Defendant Phillips told Plaintiff he did not know why she could not refuse call-out time and Plaintiff chose not to follow-up with any of her supervisors. The City issued a memo the following year clarifying that employees were not entitled to compensation for such time. Also as previously discussed in Part A.l, Defendant Phillips seems to have relied on the fact that Plaintiff was reading a magazine when she was injured — not her gender or the fact that she had filed a grievance or EEOC charge- — when stating in his worker’s compensation report that she was on break when her injury occurred.
. It is unclear whether Defendant Phillips’s comments to Plaintiff occurred before or after she filed her grievance on October 19, 2009. In a portion of Plaintiff's deposition she refers to this happening in 2009, but does not give a more specific time frame. (Pl.'s Resp. to Def. City, Ex. 3 at 272.) In another portion of the deposition, counsel asks whether the telephone usage issue occurred before or after Plaintiff filed her grievance. (Id., Ex. 3 at 400.) Unfortunately, although cited to by Plaintiff in her Response, the next page of the deposition, with Plaintiff’s answer to that question, is missing from her exhibits. (See id. at 8, Ex. 3.)
. Neither does Plaintiff actually establish that Defendant Phillips singled her out, as the evidence shows that Defendant Phillips spoke to others about their cell phone usage and issued a general directive to all operators, reminding them to carry their radios. (Def. Phillips’s Br., Ex. 15 at 50, Ex. 18 at 35-37, 44-45.)
. As support for her position, Plaintiff first cites Bristol v. Board of County Commissioners of the County of Clear Creek, 312 F.3d 1213, 1221 (10th Cir. 2002). Flowever, Bristol is distinguishable and not on point. Bristol dealt with the question of what test to apply when a Title VII plaintiff alleges more than one employer. 312 F.3d at 1216-18. The Court held that such a situation called for applications of the joint-employer and single-employer tests, rather than a hybrid test the Tenth Circuit had followed in an earlier case. Id. at 1218. The Court made a passing reference to § 1983 cases from other circuits that suggested a county might be liable for the misdeeds of a sheriff if the sheriff set "official policy” for the county, but in no way indicated that acquiescence alone constituted setting "official policy” or what exactly would constitute acquiescence. Id. at 1221. Plaintiff also relies on Murrell v. School District Number 1, Denver, Colorado, 186 F.3d 1238 (10th Cir. 1999). Murrell contradicts Plaintiff's argument. In Murrell, the plaintiff alleged that the school district was liable for gender discrimination under § 1983 for "failing to take steps to eradicate the hostile environment created by Mr. Doe.” 186 F.3d at 1249. The Tenth Circuit disagreed, upholding the district court's dismissal of the plaintiff’s § 1983 claim after finding that "acts of sexual harassment by a student directed solely at Ms. Jones do not demonstrate a custom or policy of the School District to be deliberately indifferent to sexual harassment as a general matter.” Id. at 1250.
. Many of the actions Plaintiff complains of took place in 2008: "yelling” at Plaintiff for leaving a polymer valve open, "screaming” at Plaintiff's CPO about Plaintiff's showering at work, and accusing Plaintiff of falsifying entries in the Draper Plant's "log books” after Plaintiff made a mistake in her entries. (Def. Phillips’s Br. at 10-11 n. 3 (citing Ex. 15 at 40-45, 58-59, 134-35; Ex. 16 at 151-56, 225, 230, 271-72, 281-82).)
. Defendant Phillips denies that he singled out Plaintiff for her cell phone usage or for failing to carry her radio. (Def. Phillips's Br. at 12-13 (citing Ex. 11; Ex. 15 at 49-50; Ex. 18 at 35-37, 40, 44-45).) Defendant Phillips also presented testimony from Tucker, Plaintiff's CPO, that Defendant Phillips had instructed him to monitor the performance of his prior male plant operator in the same way that Defendant Phillips told him to monitor Plaintiffs performance. (Id. at 12 (citing Ex. 18 at 95-98).)
.Defendant argues that under Starrett v. Wadley, 876 F.2d 808 (10th Cir. 1989), Plaintiff's claim for retaliation is not legally cognizable under § 1983 because it is predicated on an asserted Fourteenth Amendment violation. Defendant acknowledges that this Court has previously reached a different conclusion but asks this Court to re-examine its interpretation of Starrett. See Harman v. Okla. ex rel. N. Okla. Bd. of Regents, Case No. CIV-07-327-C, 2007 WL 1674205, *5 (W.D.Okla. June 7, 2007). In Harman, the Court found that
. In an earlier Order, this Court found that Plaintiff asserted a claim of negligent infliction of emotional distress, rather than an intentional tort. (Order of Jan. 24, 2012, Dkt. No. 32, at 5.) Under Oklahoma law, negligent infliction of emotional distress " 'is not an independent tort, but is in effect the tort of negligence.' ” Chenoweth v. City of Miami, 2010 OK CIV APP 91, V 13, 240 P.3d 1080, 1083 (quoting Lockhart v. Loosen, 1997 OK 103, ¶ 16, 943 P.2d 1074, 1081).
. Plaintiff contends that she "does not have to establish she suffered physical injury to support her emotional distress claim nor invasion of other interest.” (Pl.'s Resp. to Def. City at 28.) However, as support, Plaintiff incorrectly relies on a case involving intentional infliction of emotional distress, not negligent infliction of emotional distress. See Williams v. Lee Way Motor Freight, Inc., 1984 OK 64, 688 P.2d 1294, 1296-97.
. The GTCA defines "scope of employment” as "performance by an employee acting in good faith within the duties of the employee's office or employment or of tasks lawfully assigned by a competent authority.” 51 Okla. Stat. § 152(12).
. Alternatively, the Court notes that as in Amin, the Court has found that there was no gender discrimination. See supra Part A. Thus, as in Amin, “to the extent the defendant had a duty not to discriminate against Plaintiff, that duty was not breached.” 2009 WL 4729946 at *4.
Reference
- Full Case Name
- Cheryl L. HUTCHINSON v. CITY OF OKLAHOMA CITY, a municipality Dennis Phillips, in his individual and official capacity as Water Operations Supervisor Jim Crawford, in his individual and official capacity as Plant Manager and Monte Hannon, in his individual and official capacity as Water Quality Superintendent
- Cited By
- 1 case
- Status
- Published