Payne v. WS Servs., LLC

216 F.Supp.3d 1304

Leona PAYNE, Darrell Payne, Plaintiffs,

v.WS SERVICES, LLC, Defendant.

Case No. CIV–15–1061

United States District Court, W.D. Oklahoma.

Signed October 25, 2016

Leah M. Roper, Amber L. Hurst, Mark E. Hammons, Hammons Gowens Hurst & Associates, Christine C. Vizcaino, Mazaheri Law Firm, Oklahoma City, OK, for Plaintiffs.

Justin R. Landgraf, Meredith P. Turpin, Hisey & Landgraf, Ardmore, OK, for Defendant.

ORDER

DAVID L. RUSSELL, UNITED STATES DISTRICT JUDGE

Three motions are before the Court. The Court resolves them by entry of a single order. The Court DENIES Defendant's Motion to Dismiss Plaintiffs' Second Claim for Retaliation as moot. (Doc. No. 47). The Court GRANTS in part and DENIES in part Defendant's Motion for Summary Judgment. (Doc. No. 54). Finally, the Court GRANTS Plaintiffs' Motion for Summary Judgment. (Doc. No. 55).

I. BACKGROUND

A. Factual History

This case stems from the refusal of Defendant WS Services, LLC, (WSS) to hire Plaintiff Leona Payne, the wife of a then-employee of WSS. Ms. Payne argues WSS failed to hire her because she was a woman and then terminated her husband, Darrell Payne, after he complained to WSS. The following facts are either undisputed or viewed in the light most favorable to the nonmoving party.

In January 2015, Plaintiff Darrell Payne was employed as a foreman for WSS Services. (Doc. No. 44). On January 28 of that month, Mr. Payne learned from WSS's general manager, Tom Spencer, that WSS was interested in hiring ten more laborers. (Doc. No. 62, Ex. 1, at 116–117). Mr. Payne asked Spencer, who was responsible for the company's hiring and firing decisions, if WSS would be interested in hiring Mr. Payne's wife, Leona Payne. (Id. , Ex. 12, at 7–10). Mr. Payne alleges that, in response, Spencer said that he "could see telling [co-owner of WSS] Carolyn that they had hired a woman," and that he "could see telling Carolyn that I hired Darrell Payne's wife. I'm not going to fly that." (Id. , Ex. 1, at 187–188, 249). Mr. Payne argues that he protested, explaining that his wife was qualified and could do the job. (Id. ).

Regardless, Ms. Payne obtained an application for employment at WSS on January 28, 2015, and submitted it the next day. Ms. Payne called WSS over the next couple of days but did not reach anyone from WSS until February 3 or 4. (Doc. No. 62, Ex. 8, at 151, 336). Also on February 3, Mr. Payne had another conversation with Tom Spencer. (Doc. No. 62, Ex. 1, at 112–113). In this conversation, Spencer allegedly told Mr. Payne that he only hires young men to serve as blasters and painters (presumably the labor position that Ms. Payne had applied for) and accused Mr. Payne of having his wife apply in order to institute a lawsuit. (Id. at 112–113, 188–190). Mr. Payne says he again protested and explained to Spencer that the Paynes were merely looking for a second income. (Id. ). Two days later, on February 5, Mr. Payne was terminated by WSS. (Doc. No. 44).

This termination followed alleged poor performance by Mr. Payne on a job site. At the time of his termination, Mr. Payne had been assigned by WSS to work in Cushing, OK, on a project for another company, Enbridge. (Doc. No. 54, Ex. 11, at 72–73). On February 3, Mr. Payne had been moved to the night crew on that site, which WSS argues was the result of arguments that Mr. Payne had with his supervisor. (Doc. No. 54, Ex. 7, at 83). Further, WSS argues that an examination of the job site on the night of February 3 revealed that Mr. Payne was neglecting to monitor his crew. (Doc. No. 54, Ex. 11, at 23, 25–26, 31). The next night, an inspection by Spencer and Danny Brown, the Enbridge project manager, allegedly showed that Mr. Payne was once again not observing his crew and was instead in his truck. (Doc. No. 54, Ex. 30, at 26–29). WSS contends this was the final event that culminated in the decision to terminate Mr. Payne. It argues that while Mr. Payne had been a good employee during the first two years of his employment, during the final two years, Mr. Payne was combative with inspectors on job locations, his production declined, and he did not manage his crew as expected. (Doc. No. 54, Ex. 11, at 21). The Paynes dispute this, however, and contend that Ms. Payne's decision to apply for employment led to Mr. Payne's termination.

Ms. Payne contacted the EEOC on February 6, 2015, about filing a charge of discrimination in regard to Mr. Payne's firing and WSS's failure to hire her. (Doc. No. 54, Ex. 23). WSS contends, though, that Ms. Payne's gender had nothing to do with its decision not to hire her. Rather, it offers other reasons. For one, it claims it was not hiring laborers at the time. What's more, it cites earlier posts by Ms. Payne on her public Facebook page, posts in which Ms. Payne allegedly disparaged WSS's work environment, its employees, and the type of assignments Mr. Payne was receiving. (Doc. No. 54, Ex. 4–6). Spencer says his daughter had shown him these posts over the previous months, and after viewing them, he decided he did not want to hire somebody who was hostile to the company instead of someone who was not. (Doc. No. 54, Ex. 11, at 10, 121–124, 172).

Ms. Payne did in fact post several comments about WSS on her Facebook page in the months before and after her husband's termination. For example, she posted a comment the morning of January 29, 2015—the day she applied—accusing WSS of not hiring women. (Doc. No. 54, Ex. 12). Her posts on February 3 continued to lament, albeit with profanities, the type of work her husband was receiving. (Doc. No. 54, Ex. 18). The next day, Ms. Payne began threatening legal action, and threatened, in two separate posts on February 4 and 5, to release recordings of WSS employees at work that Mr. Payne had allegedly taken in secret. (Doc. No. 54, Ex. 21–22). And on May 29, 2015, Ms. Payne took to the public streets of Cushing, Oklahoma, wearing a homemade sandwich board containing the following message:

Husband fired after wife apply's [sic] for labor position.

1. Jan 29th 2015 wife applies

2. was told day of application Tom Spencer doesn't do hiring—Juan

3. got call back JaFeb 3rd Juan looking at app.

4. Husband confronted by Tom Spencer on wife not being hired

5. Feb 4th at end of shift Tom Spencer's cousin wrote derogatory stuff inside the tank in sand

6. Feb 5th No call to me so called WS back. Husband called in & fired.

(Doc. No. 55, Ex. 29). Though the exact dates of every day she wore the sign are not known, Ms. Payne continuously posted about wearing the sign during May and June of 2015. (Doc. No. 54, Ex. 26–27, 29, 30). WSS insists that, as a result of Ms. Payne's Facebook posts and her sandwich board, it had to repair its relationship and restore confidence with Enbridge, the company to whom Darrell Payne had been assigned by WSS for a project. (Doc. No. 61, at 5).

B. Procedural History

The Paynes timely filed a charge of discrimination with the EEOC on March 17, 2015, and received their right to sue letters on July 16, 2015. They assert claims in violation of Title VII of the Civil Rights Act of 1964 and Oklahoma's Anti–Discrimination Act.¹ (Doc. No. 1). WSS then counterclaimed for defamation against Leona Payne (Doc. No. 9). After WSS filed an amended counterclaim (Doc. No. 30) that more specifically identified the three alleged defamatory statements of Ms. Payne, the Court dismissed one of those statements with prejudice. (Doc. No. 45). Ms. Payne now has brought her own retaliation claim against WSS, arguing that the company retaliated against her by bringing its defamation suit. (Doc. No. 44).

Thus, as it stands today, three motions are before the Court. WSS has moved to dismiss Ms. Payne's retaliation claim (Doc. No. 47). It has also moved for summary judgment on all claims asserted by the Paynes, including Ms. Payne's retaliation claim. (Doc. No. 54). In addition, the Paynes have moved for summary judgment on WSS's defamation claim (Doc. No. 55). Responses and replies have been filed as to each of these.

For the following reasons, the Court GRANTS in part and DENIES in part WSS's Motion for Summary Judgment. (Doc. No. 54). Additionally, the Court GRANTS the Paynes' Motion for Summary Judgment on WSS's Defamation Claim. (Doc. No. 55). And because the Court grants summary judgment on Ms. Payne's retaliation claim, it DENIES WSS's Motion to Dismiss that claim as moot. (Doc. No. 47).

II. SUMMARY JUDGMENT STANDARD

Summary judgment is proper "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." Fed. R. Civ. P. 56(a). A fact is material if it affects the disposition of a substantive claim. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 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 of 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) (internal quotations omitted). "[A] party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson , 477 U.S. at 248, 106 S.Ct. 2505 (alteration and internal quotation marks omitted). The Court then inquires "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251–52, 106 S.Ct. 2505. While the Court construes all facts and reasonable inferences in the light most favorable to the non-moving party, Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), "[t]he mere existence of a scintilla of evidence in support of...