Opinion
Case No. 2:02CV0552
May 7, 2003
MEMORANDUM OPINION AND ORDER
Before the Court is defendant Tel-America Long Distance Company, Lynn Sanderson and Sam Fower's motion for summary judgment to dismiss plaintiff's first amended complaint. Having considered the parties' briefs and the applicable law, the Court now issues the following memorandum opinion and order.
Defendants' motion was originally styled as a motion to dismiss. However, plaintiff submitted an affidavit with her brief in opposition to defendants' motion to dismiss. "If matters outside of the pleadings have been presented to the court for consideration, the court must either exclude the material or treat the motion as one for summary judgment and dispose of it as provided by Rule 56." Fed.R.Civ.Pro. 12(b); Carter v. Stanton, 405 U.S. 669 (1972). The Court elected to consider the affidavit and therefore gave each party notice of the changed status of the motion and informed them that they could present to the Court "all material made pertinent to such motion by Rule 56." Nichols v. United States, 796 F.2d 361 (10th Cir. 1986). Each party thereafter submitted a supplemental memorandum and defendants also submitted their own affidavits.
I. BACKGROUND
Plaintiff, Laurie Ann Tollestrup, worked in the accounting department of defendant Tel. America from December 5, 1998 to December 28, 1999. She alleges that during the time of her employment she was sexually harassed and subjected to a hostile work environment by her supervisor, Lynn Sanderson, and by Sam Fowers, Tel-America's controller and chief financial officer. Specifically, plaintiff complains that Mr. Sanderson and Mr. Fowers encouraged plaintiff to begin a relationship with Mr. Fowers.
Plaintiff alleges that Sanderson, in an attempt to curry favor with Fowers, actively encouraged plaintiff to "be nice to [Mr. Fowers]." Plaintiff also anonymously received some flowers, a bar of soap and when she asked who they were from Mr. Sanderson told her that "she had a secret admirer"
Plaintiff also alleges that during her employment she was illegally discriminated against because of her gender. Plaintiff claims that she was denied emergency leave pay in a situation that was substantially similar to a situation in which a male employee was granted emergency leave pay.
On December 28, 1999, Mr. Sanderson demanded that plaintiff resign or be fired, Plaintiff chose to resign. Plaintiff complains that no reason was given and that company policies and procedures were violated. Defendant argues that plaintiff was asked to resign due to insubordination. Plaintiff alleges, however, that Mr. Sanderson stated, "it's just too bad for you, that you did not get something going with Sam. That was the wrong thing you did. I will make sure you do not work again."
After her termination, plaintiff attempted to obtain other employment. However, plaintiff alleges that she was unsuccessful because defendant, through Mr. Sanderson, provided negative references to plaintiff's prospective employers.
On July 6, 2000 plaintiff filed a charge of discrimination with the Utah Anti-Discrimination and Labor Division ("UALD") and the Equal Employment Opportunity Commission ("EEOC"). In that charge plaintiff alleged that defendant had subjected her to unlawful employment discrimination based on her age, religion and gender. After investigation, the EEOC was unable to conclude that defendant violated any law; the EEOC issued a dismissal and notice of rights thereby giving plaintiff ninety days to file suit. No suit was filed.
Plaintiff, however, alleges in an affidavit that she did not file suit because she was approached on two different occasions by an employee of defendant Tel America and told that she would receive a favorable job reference if she did not exercise her right to file suit in federal court. Thus, plaintiff allowed the ninety day time limit to expire.
Plaintiff subsequently filed a second charge of discrimination with the UALD and the EEOC on December 11, 2001. In that complaint, plaintiff alleged the she had received negative references in retaliation for her first discrimination charge. Again the EEOC was unable to conclude that defendant violated any law and again issued a dismissal and notice of right to sue to plaintiff on March 12, 2002.
Plaintiff filed a complaint with this Court on June 6, 2002 alleging sexual harassment, gender discrimination, hostile work environment, retaliatory termination, providing fraudulent information to workforce services, failure to refer in retaliation, defamation and intentional infliction of emotional distress. This Court has jurisdiction pursuant to 42 U.S.C. § 2000e(5).
II. ANALYSIS A. Standard of Review
Federal Rule of Civil Procedure 56(e) provides that summary judgment is appropriate when there is no genuine issue of a material fact and the moving party is entitled to judgment as a matter of law. In considering whether genuine issues of material fact exist, the Court determines whether a reasonable jury could return a verdict for the nonmoving party in the face of all the evidence presented. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Clifton v. Craig, 924 F.2d 182, 183 (10th Cir. 1991). The moving party need not negate the nonmoving party's claims, but need only point out that "there is an absence of evidence to support the nonmoving party's case." Celotex Corp. it Catrett, 477 US. 317, 322 (1986). For purposes of this motion, the Court construes all facts and reasonable inferences in the light most favorable to plaintiff. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Wright v. Southwestern Bell Tel. Co., 925 F.2d 1288, 1292 (10th Cir. 1991).
B. Sexual Harassment, Gender Discrimination, Hostile Work Environment and retaliatory Termination
Plaintiff's first four claims of sexual harassment, gender discrimination, hostile work environment and retaliatory termination are brought pursuant to Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. Claims brought pursuant to Title VII are subject to a "charge filing provision that `specifics with precision' the prerequisites a plaintiff must satisfy before filing suit." Nat'l R.R. Passenger Corp., v. Morgan, 536 U.S. 101, 109 (2002) (quoting Alexander v. Garnder-Denver Co., 415 U.S. 36, 47 (1974)); see 42 U.S.C. § 20003-5(e)(1). One of those prerequisites is that timely charges be filed with both the state agency and with the Equal Employment Opportunity Commission ("EEOC"). 42 U.S.C. § 2003-5(3); See Nat'l R.R. Passenger Corp., v. Morgan, 536 U.S. 101, 109 (2002) (explaining that "filing a timely charge is a prerequisite to having an actionable claim"). In Utah, an employee must file a charge with the UALD and the EEOC within 300 days after the alleged unlawful employment practice occurred; "a claim is time barred if it is not filed within [this] limit." Nat'l R.R. Passenger Corp., v. Morgan, 536 U.S. 101, 109 (2002). In this case, plaintiff filed two charges of discrimination with the UALD and the EEOC.
Title VII sets up a process by which the state may establish an agency, referred to as a Section 706 Agency, to process charges of discrimination alleged to violate Title VII. If such an agency exists, the complainant must file the charge with that agency before filing the charge with the EEOC. 42 U.S.C. § 2000e-5 (c). In Utah, the established agency is the UALD. Sec U.C.A. § 34A-5-107.
In a state, such as Utah, that has an entity with the authority to grant or seek relief with respect to the alleged unlawful practice, the charge must be filed within 300 days. However, in all other states, the charge must be filed with the EEOC within 180 days. See Nat'l R.R. Passenger Corp., v. Morgan, 536 U.S. 101, 109 (2002).
The first charge of discrimination was filed on July 6, 2000. Therefore plaintiff's charge was timely with respect to any conduct that occurred after September 9, 1999 — 300 days from the date of the charge of discrimination. Plaintiff alleges that "[t]he discriminatory acts arising in plaintiff's first charge to the EEOC began on February 14, 1999 and continued through December 28, 1999"; plaintiff's first four claims were timely brought before the UALD and the EEOC.
After an investigation, however, the EEOC was unable to conclude that an unlawful employment practice occurred and accordingly issued a notice of a right to sue on August 18, 2000. Pursuant to EEOC regulations, plaintiff was given ninety days to pursue her claim by filing suit in federal court. 42 U.S.C. § 2000e-5(f)(1). However, plaintiff failed to file suit within ninety days of receiving the right to sue letter. Instead, plaintiff did not take any action until December 11, 2001 when she filed her second charge of discrimination with the EEOC and the UAD. Therefore, defendants argue that plaintiff's first four claims are time barred.
Where the [EEOC] completes its investigation of a charge and finds that there is not reasonable cause to believe that an unlawful employment practice has occurred or its occurring as to all issues addressed in the determination, the [EEOC] shall issue a letter of determination to all parties to the charge indicating the finding he letter of determination shall inform the person claiming to be aggrieved or the person on whose behalf a charge was filed of the right to sue in Federal district court within 90 days of receipt of the letter of determination.
EEOC Procedural Regulations, 29 C.F.R. § 1601.9. The "Dismissal and Notice of Rights" given to plaintiff by the EEOC stated:
This will be the only notice of dismissal and of your right to sue that we will send you. You may pursue this matter further by bringing suit in federal or state court against the respondent(s) named in the charge. If you decide to sue, you must sue WITHIN 90 DAYS from your receipt of this Notice. Otherwise your right to sue based on the above-numbered charge will be lost.
Plaintiff, however, claims that she did not pursue her right to sue from her first charge of discrimination because an employee of defendant Tel-America, Mike Jasper, approached plaintiff and told her that she would receive favorable job references from Tel-America if she would abstain from exercising her right to sue. Plaintiff alleges that this promise was given to her on two different occasions: in June 2000 and again in August of the same year. Thus, plaintiff argues that she has not been dilatory and that any claim that was foreclosed by her failure to bring suit within the required ninety day time period should be equitably tolled.
Equitable tolling is "a judicially-crafted stopping of the clock." Fisher v. Gibson, 262 F.3d 1135, 1143 (10th Cir. 2001). This Circuit recognizes equitable tolling of Title VII time limitations only if circumstances "rise to the level of active deception which might invoke the powers of equity to toll the limitations period." Cottrell v. Newspaper Agency Corp., 590 F.2d 836, 838-39 (10th Cir. 1979). Equitable tolling might be appropriate if, for example, "a plaintiff is actively misled, or has in some extraordinary way been prevented from asserting his or her rights." Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir. 1984) (quotations omitted). The Supreme Court has similarly noted that "[w]e have allowed equitable tolling in situations where. . . . the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990).
Viewing the evidence in the light most favorable to plaintiff, the Court finds as a matter of law that equitable tolling is applicable to the circumstances of this case. Plaintiff alleges that she was actively misled and induced by Mr. Jasper not to pursue her claim within the ninety-day time period specified by the right to sue notice. Therefore, her claims fall squarely within the narrow confines of the equitable tolling doctrine.
Defendant argues, however, that even if the ninety-day time limit is tolled plaintiff's claims are still time barred because the time limit should be tolled only until plaintiff realized that — contrary to their agreement — defendant was providing negative job references. It is unclear exactly when plaintiff first learned that defendant was providing negative references to plaintiff's prospective employers. However, plaintiff states in her second charge of discrimination that she learned on at least one occasion, in June of 2000, that prospective employers were receiving negative references. She also stated in her second charge that she had been unable to find employment as late as June 22, 2001 because of the negative references provided by defendant.
Based on plaintiff's allegations, the Court finds that the statutory time limit for plaintiff's right to sue was equitably tolled from the time that the right to sue notice was given to plaintiff until June 22, 2001. June 22, 2001 is the date that plaintiff claims that she last tried to gain employment and was turned down due to the alleged negative references given by defendants. Therefore, plaintiff clearly knew by June 22, 2001 that Mr. Jasper's promise to provide positive references was meritless and that she should seek redress for her grievances. Thus, plaintiff had ninety days from June 22, 2001 to file suit in federal court in order to comply with the statutory time limitations.
However, plaintiff failed to file suit within the ninety day time period. Instead, plaintiff filed a second charge of discrimination with the EEOC in December of 2001 — alleging a claim for retaliation in violation of Title VII. More importantly, plaintiff did not file suit with this Court until June 6, 2002. Therefore, even if the tolling period were extended until June 2001, appellant failed to meet the statutory time limit because she did not file suit within ninety days of June 2001. Rather, plaintiff waited six months to file her second charge of discrimination and almost one year to actually file a complaint with this Court. However, "once tolling has ceased, a plaintiff must act promptly and file his claim." Matthews v. Kennecott Utah Copper Corp., 54 F. Supp.2d 1067, 1074 (D. Utah 1999); see Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1984) (per curiam) (explaining that "[p]rocedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.").
The Court finds that plaintiff did not promptly exercise her rights upon learning that she was not receiving positive references as promised by Mr. Jasper. By failing to file suit within ninety days after she learned that positive references were not forthcoming, plaintiff failed to timely pursue her first charge of discrimination.
Plaintiff's second charge of discrimination is also incapable of reviving plaintiff's first four claims. None of plaintiff's first four claims relate to conduct that occurred after she was terminated. However, plaintiff's second charge of discrimination was a claim for retaliation only. Therefore the second charge of discrimination was actionable only to conduct that occurred after she was terminated. Because none of plaintiff's first four claims involved activity that occurred after she was terminated, her second charge of discrimination could not and does not put at issue any acts that occurred before she was terminated. Therefore, plaintiff's second charge of discrimination is also ineffective to overcome the statutory time limit of Title VII at to her first four claims. Accordingly, plaintiff's claims for sexual harassment, gender discrimination, hostile work environment and retaliatory termination are time barred. Defendants' motion to dismiss these claims as to defendant Tel-America Long Distance and as to individual defendants Lynn Sanderson and Sam Fowers is, therefore, GRANTED.
The Court acknowledges that a claim for a hostile work environment does permit a party to bring an action involving conduct that falls outside the statutory 300 day limit as long as at least one illegal act does fall within the 300 day time period. See Nat'l R.R. Passenger Corp., v. Morgan, 536 U.S. 101, 117, 122 (2002). However, a discrete act such as termination of employment is an intervening act that severs those acts that can be joined together because it removes the employee from the same hostile environment. Id. Therefore, this Court may not construe plaintiff's claims of retaliation as a continuation of the hostile working environment experienced by plaintiff while she was employed at Tel-America.
The Court also notes that individual defendants Sanderson and Fowers could not be liable for these claims on an individual basis even if plaintiff was not time barred. "Under Title VII, suits against individuals must proceed in their official capacity. Haynes v. Williams, 88 F.3d 898, 899 (10th Cir. 1996). "The relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act." Id. Therefore, a suit against an individual supervisor is a suit against that supervisor's employer. See id.
C. Knowingly Providing Fraudulent Information to Workforce Services
Plaintiff also asserts a claim against defendants for "providing fraudulent information to workforce services." Specifically, plaintiff alleges that Lynn Sanderson forced her to resign but later told the "unemployment office" that plaintiff was terminated for insubordination. Plaintiff alleges that false information was provided in order to prevent her from receiving unemployment benefits.Section 35-4-104(2)(a) of the Utah Code precludes a party from providing false information to the Utah Department of Workforce Services. However, that section only provides for criminal penalties and does not support a civil cause of action. Thus, even assuming plaintiff's claims are true, plaintiff has failed to state a claim upon which relief could be granted.
Utah Code 35A-4-104 reads in pertinent part:
(2)(a) Any employing unit or any officer or agent of an employing unit or any other person who makes a false statement or representation knowing it to be false, or who knowingly fails to disclose a material fact, to prevent or reduce the payment of benefits to any individual entitled thereto, or to avoid becoming or remaining a subject employer or to avoid or reduce any contribution or other payment required from an employing unit under this chapter or under the Unemployment Compensation Law of any state or of the federal government, or who will fully fails or refuses to make any such contributions or other payment or to furnish any reports required in this chapter or to produce or permit the inspection or copying of records as required hereunder is guilty of:
(i) a class B misdemeanor when the value of the money obtained or sought to be obtained is less than $300;
(ii) a class A misdemeanor when the value of the money obtained or sought to be obtained is or exceeds $300 but is less than $1,000;
(iii) a third degree felony when the value of the money obtained or sought to be obtained is or exceeds $1,000 but is less than $5,000; or
(iv) a second degree felony when the value of the money obtained or sought to be obtained is or exceeds $5,000.
(b) The determination of the degree of any offense under Subsection (2)(a) shall be measured by the total value of all money obtained or sought to be obtained by the unlawful conduct.
Plaintiff also argues, however, that her complaint states a claim for fraud. Defendants argue that even if plaintiff has made a claim for fraud that claim is deficient because plaintiff has failed to plead that claim with particularity as required by Federal Rule of Civil Procedure 9(b). Rule 9(b)'s purpose is "to afford defendant fair notice of plaintiff's claims and the factual ground upon which [they] are based. . . ." Farlow v. Peat, Marwick, Mitchell Co., 956 F.2d 982, 987 (10th Cir. 1992) (quotation omitted). The Tenth Circuit requires a complaint alleging fraud to "set forth the time, place and contents of the false representation, the identity of the party making the false statements and the consequences thereof." Lawrence Nat'l Bank v. Edmonds (In re Edmonds), 924 F.2d 176, 180 (10th Cir. 1991). While "[a]llegations of fraud may be based on information and belief when the facts in question are peculiarly within the opposing party's knowledge," Scheidt v. Klein, 956 F.2d 963, 967 (10th Cir. 1992), the complaint must set forth the factual basis for the plaintiff's belief. Id.
Paragraph 59 of plaintiff's first amended complaint comes closest to meeting these requirements. It states, "[o]n or about December 29, 1999, plaintiff learned that although Supervisor, Lynn Sanderson, force me to resign in order for me to get severance pay, and then, in order for me to not receive my unemployment he told the unemployment office Plaintiff was terminated, for insubordination."
This paragraph sets forth the identity of the person making the fraudulent statements as well as the content of those statements. However, the complaint fails to describe the time or the place that the fraudulent statements were made. Furthermore, although plaintiff states that she "learned" that Mr. Sanderson made a fraudulent statement in her second charge of discrimination, plaintiff fails to explain how, where or when she learned this information. Thus, plaintiff's complaint does not provide any factual basis to support her allegation that false information was submitted even though the facts in question are not solely within defendants' control. Thus, plaintiff has failed to plead with particularity her claim for fraud, and defendants' motion for summary judgment as to this claim is GRANTED.
D. Title VII retaliation
Plaintiff's sixth claim asserts that defendant illegally retaliated against plaintiff by "giving false statements about plaintiff's employment and work quality to prospective employers." A claim for retaliation under Title VII also requires the plaintiff to show that she was subjected to adverse employment action within 300 days of filing her charge of discrimination with the UALD and the EEOC. See Nat'l R.R. Passenger Corp., v. Morgan, 536 U.S. 101, 122 (2002). Plaintiff alleged in her second charge of discrimination, which was filed on December 11, 2001, that defendants provided false statements about her employment and work quality to prospective employers. Thus, plaintiff's claim is timely only with respect to retaliatory acts that occurred after February 14, 2001 — 300 days before her second charge of discrimination.
Plaintiff's second charge of discrimination filed with the UALD and the EEOC alleges that the last time that she was refused employment by a prospective employer because of defendant's negative references was on June 22, 2001. Plaintiff's amended complaint, filed on September 11, 2002, alleges that at the time of filing, defendant was "still" providing false statements to prospective employers and therefore committing "retaliatory" acts. Therefore, plaintiff's allegations of retaliatory conduct clearly fall within the 300 day requirement of Title VII.
In order to establish a prima facie case of Title VII retaliation, plaintiff must show (I) she previously engaged in protected opposition to Title VII discrimination, (2) she was later subjected to adverse employment action, and (3) a causal connection exists between the adverse employment action and her protected activity. Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1320 (10th Cir. 1999). Once a plaintiff establishes a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse action. Id. (citing Burrus, 683 F.2d at 343).
It is clear that plaintiff's first discrimination charge against defendants constitutes protected Opposition to Title VII discrimination. Plaintiff claims that she was harassed and that she was subject to a hostile work environment while employed at Tel-America. She then filed a claim with the EEOC. The filing of claim with the EEOC is a form of protected Opposition to the harassment that plaintiff claims she was subjected to. Thus, the first prong is met.
The negative references provided by defendants constitute an adverse employment action. The Tenth Circuit "liberally defines adverse employment action." Jeffries v. Kansas, 147 F.3d 1220, 1231-32 (10th Cir. 1998). Consistent with this interpretation, a "tainted employment reference" falls within the ambit of an adverse employment action. Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996).
Defendants assert that no false or negative references were given. Specifically, Mr. Sanderson, Mr. Fowers, and Mr. Jasper each assert in their respective affidavits that they never provided negative references to any of plaintiff's prospective employers. However, based on the totality of the allegations made by plaintiff the Court finds that plaintiff has established a prima facie case of adverse employment action. Together, the parties assertions establish that a genuine issue of material fact exists with regards to the issue of whether plaintiff was subjected to an adverse employment action. The second requirement for showing a prima facie case of Title VII retaliation is also met.
Mr. Jasper stated that he has "never . . . made or provided any statements at all regarding Ms. Tollestrup's work quality or the reason for her termination." (Jasper Aff). Mr. Sanderson stated that, "[a]ll comments I made to prospective employers regarding Ms. Tollestrup have been positive comments concentrating on her technical skills," and that he has "never made nor provided false statements regarding Ms. Tollestrup's work history or quality to any prospective employer or any employment agency." (Sanderson Aff). Finally, Mr. Fowers testified that he "personally, ha[s] not received any calls from prospective employers seeking a reference check regarding Ms. Tollestrup." (Fowers Aff).
Because plaintiff has shown that there is at least a triable issue of fact regarding the first two prongs, the third prong must now be addressed. At this step, plaintiff must show that a causal connection exists between plaintiff's first charge of discrimination with the EEOC and the negative references provided by defendants to plaintiff's prospective employees. Plaintiff alleges that the false statements provided to future employers were in retaliation for her first charge of discrimination.
A causal connection may be shown by "evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action." Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982). Unless there is very close temporal proximity between the protected activity and the retaliatory conduct, the plaintiff must offer additional evidence to establish causation. See Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1395 (10th Cir. 1997). The Tenth Circuit has held that "a one and one-half month period between protected activity and adverse action may, by itself establish causation." In contrast, that court has "held that a three-month period, standing alone, is insufficient to establish causation." Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (citation omitted).
In this case, plaintiff's protected activity — her first charge of discrimination — occurred in July 2000. Determining when the retaliatory conduct took place, however, is more problematic. Plaintiff's second charge of discrimination states that the "earliest" date the discrimination took place was January 1, 2000. Further down on the charge of discrimination form, plaintiff also alleges that she believes she is being retaliated against "because I filed a previous charge of discrimination." Finally, in the last paragraph of the charge of discrimination form plaintiff states that she learned in June of 2000 that Mr. Sanderson had been giving her unfavorable references.
It is clear from these statements within the second charge of discrimination that plaintiff "believe[s]" that defendant was providing negative references in retaliation for her first charge of discrimination. However, there are two reasons why such is not the case. First, plaintiff stated in her second charge in response to a question on the form that the earliest date of discrimination took place was on January 1, 2000 — six months before her first charge of discrimination was filed. Second, and more importantly, plaintiff affirmatively stated that she "learned" in June 2000 that Mr. Sanderson had been giving her unfavorable references. However, plaintiff's first charge of discrimination was not filed until July 2000. Therefore, plaintiff admits that defendant was providing negative references before she filed her first charge of discrimination. Accordingly, no casual connection exists between plaintiff's protected activity — her first charge of discrimination — and defendants retaliatory conduct. Furthermore, plaintiff has engaged in no other conduct before June 2000 that could qualify as protected conduct to Title VII discrimination. Therefore, based on the totality of these statements, the Court holds that plaintiff has not shown a prima facie case of causal connection between her protected activity and the adverse employment action. Because plaintiff has not put forth a prima facie case of Title VII retaliation, defendants' motion for summary judgment with respect to that claim is therefore GRANTED.
E. Defamation
Plaintiff also argues that the negative references given by defendant constitute defamation. Utah law requires that a claim identify the defamatory statement either by its "words or words to that effect." Williams v. State Farm Insurance Co., 656 P.2d 966, 971 (Utah 1982). A party must also allege "when, where, and to whom the alleged defamatory statement was made." Bosjoly v. Morton Thiokol, Inc., 706 F. Supp. 795, 800 (D. Utah 1988). General conclusory statements are inadequate. Id. Paragraph 62 of plaintiffs amended complaint states: "[o]n information and belief Plaintiff avers that Defendant through Sanderson, and others, conducted retaliation through giving false statements about Plaintiff's employment and work quality to prospective employers.
Plaintiff has failed to identify with particularity the defamatory statements. of significant importance, plaintiff has not even attempted to explain the "words or words to th[e] effect" used by defendants. Nor has defendant listed the name of one prospective employer who received a negative reference from defendants. Furthermore, plaintiff's lack of specificity is magnified when placed beside plaintiff's claim that she "learned" that defendants had provided negative references in June 2000. Assuming this allegation is true, plaintiff has utterly failed to convey to the Court and defendants the information that she "learned" about these negative references. Because plaintiff has not met the requirements for properly pleading a claim for defamation, defendants' motion for summary judgment as to plaintiff's defamation claim is GRANTED.
F. Intentional Infliction of Emotional Distress
Plaintiff also alleges that defendants Sanderson and Fowers "engaged in a pattern of conduct which was calculated to place Defendant in emotional distress through their acts to encourage a relationship between Plaintiff and Fowers, then discourage the relationship, then to encourage the relationship." (Am. Compl. ¶ 66). Plaintiff alleges that these actions caused her "great emotional distress." (Am. Compl. ¶ 67).
The elements of intentional infliction of emotional distress are (1) that the defendant intentionally engaged in some conduct toward the plaintiff considered outrageous and intolerable in that it offends the generally accepted standards of decency and morality, (2) with the purpose of inflicting emotional distress or where any reasonable person would have known that such would result, and (3) that severe emotional distress resulted as a direct result of the defendant's conduct. Russell v. Thomson Newspapers, Inc., 842 P.2d 896 (Utah 1992); accord Jackson v. Brown, 904 P.2d 685, 687-88 (Utah 1995).
The first requirement of intentional infliction of emotional distress requires the Court to determine that the alleged conduct is "outrageous." Samms v. Eccles, 358 P.2d 344 (1961). This Court has held that "a defendant's acts must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Boisjoly v. Morton Thiokol, Inc., 706 F. Supp. 795, 801 (D. Utah 1988).
In Boisjoly this Court analyzed a party's claim for intentional infliction of emotional distress based on his allegations that he had been defamed and removed from his usual position in the company. The Court dismissed the plaintiff's claim for damages relating to the employer's conduct reasoning that "while threatening an employee's job, discrediting his reputation and removing him from a position of importance, is certainly not desirable behavior, this court does not find it to be `so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency. . . .'" Boisjoly, at 802. See also Ankers v. Rodman, 995 F. Supp. 1329 (D. Utah 1997) (pinching plaintiffs buttocks on national television insufficient to state a claim).
In this case, plaintiff claims that defendants Sanderson and Fowers participated in a coordinated scheme to induce plaintiff to submit to "a relationship" with Fowers. Plaintiff alleges that Sanderson, in an attempt to curry favor with Fowers, actively encouraged plaintiff to "be nice to him." Plaintiff anonymously received some flowers and a bar of soap. When plaintiff asked who they were from Mr. Sanderson told her that "she had a secret admirer." Finally, plaintiff alleges that she was fired because she would not acquiesce to a relationship with Mr. Powers.
Based on these facts, the Court cannot find that the alleged conduct is "outrageous." While such alleged conduct may be undesirable and improper in our society, the Court finds that defendants' actions in this case do not rise to such a level that could be described as "atrocious" or "utterly intolerable in a civilized society." Bosjoly at 801. Therefore, plaintiff has failed to meet the first requirement of a claim for intentional infliction of emotional distress and defendants' motion for summary judgement as to that claim is GRANTED.
III. CONCLUSION
For the reasons stated above, the Court GRANTS defendants' motion for summary judgment as to plaintiff's claims for sexual harassment, hostile work environment, gender discrimination, termination in retaliation, providing fraudulent information to workforce services, fraud, failure to refer in retaliation, libel and slander and intentional infliction of emotional distress. Defendants' motion to dismiss plaintiff's complaint with prejudice is GRANTED. IT IS SO ORDERED.