Johnson v. City of Murray

909 F.Supp.2d 1265

Dianna JOHNSON, Plaintiff,

v.CITY OF MURRAY, a political subdivision of the State of Utah, and Peter A. Fondaco, in his official and individual capacities, Defendants.

Case No. 2:10–CV–1130 TS.

United States District Court,

D. Utah,

Central Division.

Nov. 9, 2012.

April L. Hollingsworth, Hollingsworth Law Office LLC, Salt Lake City, UT, for Plaintiff.

Mark D. Tolman, Michael P. O'Brien, Jones Waldo Holbrook & McDonough, Salt Lake City, UT, for Defendants.

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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.

I. FACTUAL BACKGROUND

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.

A. PLAINTIFF'S HIRING

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:

I understand that this employment application and any other City documents are not contracts of employment and that any oral or written statements to the contrary are hereby expressly disavowed and should not be relied upon by any prospective or existing employee.¹

Additionally, the City's Employee Handbook contains the following contract disclaimer:

This Handbook is provided to inform and acquaint employees with the City's policies, procedures, and practices. Neither this Handbook, employment with the City, nor the maintenance of supervisory or other policies or procedures shall be construed as constituting a promise from or contract of any kind with the City, either express or implied, regarding any of the matters addressed in any such handbooks or policies.²

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....” ³

B. PLAINTIFF'S 2003 COMPLAINTS

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.

C. PLAINTIFF'S 2008 COMPLAINTS

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 Burnett that Mr. Bowman was verbally abusive to his coworkers and had mistreated animals.

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.” ⁴ This incident occurred on August 7, 2008.

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.” ⁵

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:

West Jordan had had a little kitten, a brand new day old kitten—I don't remember the exact circumstances of this, but Jerry Gonzales was holding the kitten and for some reason, [Mr. Bowman] got mad. I wasn't there at the time, so I only heard this from Jerry. But for some reason, [Mr. Bowman] got angry at that kitten meowing or something and he took the kitten from Jerry and there is a procedure called cervical dislocation, where you're literally breaking their neck. You're supposed to be properly trained to do it and actually, you're really not supposed to do it on kittens. It's supposed to be done on birds and some small animals like rats, mice, things like that. But, for a long time, we didn't have any injection ability and so [Mr. Bowman] euthanized our kittens that way. So I could understand why he'd think that was acceptable to euthanize that way, but he literally ripped the kitten's head off in front of Jerry.⁶

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...