Opinion
Case No. 2:03CV00810 TC.
August 3, 2005
MANNING CURTIS BRADSHAW BEDNAR LLC, Steven C. Bednar, Douglas R. Larson, Salt Lake City, Utah, Attorneys for Defendant Smith's Food Drug Centers, Inc.
ORDER GRANTING SMITH'S FOOD AND DRUG CENTERS, INC.'S MOTION FOR SUMMARY JUDGMENT
Defendant Smith's Food and Drug Centers, Inc.'s ("Defendant") Motion for Summary Judgment came on for hearing on July 7, 2005. Plaintiff Ralph Adam Lee ("Plaintiff") was represented by Bruce Oliver. Defendant was represented by Steven Bednar and Douglas Larson. Having read the briefs submitted by the parties and having considered the arguments raised at the hearing, the Court now enters this Order GRANTING Defendant's Motion for Summary Judgment and dismissing Plaintiff's claims with prejudice and on the merits.
Plaintiff asserts claims for sexual harassment and religions harassment. Plaintiff's complaint does not contain a claim for retaliation, though Plaintiff testified in deposition that he believes he was subjected to unlawful retaliation. Plaintiff was employed by Defendant from September 2001 until September 2002. Plaintiff began his employment in Defendant's Store #81, where he became the Seafood Manager in January 2002. In June 2002 a new Meat Manager, Teena Shepard ("Shepard") arrived at Store #81. Plaintiff alleges that Shepard was his supervisor and that she subjected him to numerous incidents of sexual harassment for a period of approximately 5 weeks between mid-June 2002 and mid-July 2002. Plaintiff specifically testified to 10 incidents of sexual harassment which included being slapped on his backside, the use of lewd and offensive language and simulating sexual acts.
Defendant adopted and implemented a policy prohibiting sexual harassment in its employee handbook (the "Policy"). It also conducted training on the Policy. The Policy, which Plaintiff received, allowed reporting of sexually harassing conduct through at least 6 avenues, including the location manager, the district manager, the location human resources representative, the human resources department, the company president and a 1-800 number.
When Plaintiff finally reported the alleged sexual harassment from Shepard to the Store Director, on or about July 16, 2002, the Store Director immediately involved Defendant's Personnel Director and Security Supervisor, who met with Plaintiff the next day. The Personnel Director and Security Supervisor then met with Ms. Shepard, reviewed the allegations with her, advised that an investigation would take place and warned her of termination if she did not set an appropriate tone in the department. Ms. Shepard testified that she got that warning loud and clear. At the time of the Plaintiff's report of sexual harassment, Plaintiff did not request that Ms. Shepard be removed from the Store, nor did he ask to be transferred while the Personnel Director's investigation took place. When asked in deposition why he did not report the alleged harassment sooner, Plaintiff testified that he didn't know why, he just didn't.
In early August 2002, as Defendant's investigation proceeded, Plaintiff requested to be transferred to another Store, and specifically requested a transfer to Store #83. Because a position was not available at Store #83, Plaintiff spent one week dividing his time between two other stores, and was then transferred to Store #23. After his transfer, Plaintiff maintained the same title, pay and benefits as prior to his transfer. In his deposition, Plaintiff testified that the only thing that changed was the location of his employment, which involved approximately 15 minutes of additional commute time. Subsequent to his deposition, Plaintiff submitted an affidavit, testifying that his position at Store #23 was less desirable because Store #81 was a more prestigious store, because he did not make decisions about ordering product and because he was occasionally required to assist wrapping product. Plaintiff acknowledged that he was not subjected to any retaliation or harassment after his transfer. Plaintiff resigned from Store #23 effective September 22, 2002.
The Court finds that Smith's has established each of the elements of the affirmative defense articulated by the United States Supreme Court in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753 (1998). Smith's is entitled to the assert the defense because Plaintiff was not subjected to tangible employment action. Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff's transfer was purely lateral because Plaintiff held the same position and received the same pay and same benefits. Even accepting as true the unfavorable differences asserted by Plaintiff in his affidavit concerning the position to which he was transferred, such differences are in no way significant so as to constitute a tangible employment action.
Next, the Court finds that Smith's exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Smith's adopted and distributed a policy prohibiting sexual harassment and conducted training on the policy. Once Plaintiff finally complained of the alleged harassment, Smith's took appropriate action reasonably calculated to end the allegedly offensive behavior by warning Ms. Shepard of termination if she engaged in misconduct — a warning which she testified she got loud and clear.
The Court finds that Plaintiff unreasonably failed to take advantage of corrective opportunities available to him to end the harassment by his delay in reporting the alleged misconduct. Plaintiff offered no reason or explanation for his failure to report the alleged harassment. Having met the elements of the affirmative defense set forth in Burlington, Defendant is entitled to summary judgment on Plaintiff's claim of sexual harassment.
The Court also finds that Plaintiff has failed to proffer evidence creating any genuine issue of material fact with respect to his religious discrimination claim. For the same reasons as stated above, Defendant is also entitled to summary judgment on that claim.
Finally, even if Plaintiff's complaint contained a claim for retaliation, Defendant would be entitled to summary judgment on such a claim based upon the absence of adverse employment action.
Defendant's Motion for Summary Judgment is hereby GRANTED. Plaintiff's complaint is dismissed with prejudice and on the merits and the Clerk of the Court is directed to enter an appropriate Judgment.