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Britten v. Mountain View Electric Association, Inc.

United States District Court, D. Colorado

June 13, 2019



          William J. Martínez United States District Judge

         Plaintiff Steve Britten (“Plaintiff”) brings this action against his former employer Defendant Mountain View Electric Association, Inc. (“Defendant” or “Mountain View”), alleging gender discrimination, gender harassment, retaliation, and retaliatory harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and the Colorado Anti-Discrimination Act, Colo. Rev. Stat. §§ 24-34-401 et seq. (“CADA”), and intentional infliction of emotional distress.[1]

         Currently pending before the Court is Defendant's Motion for Summary Judgment (the “Motion”) on all claims. (ECF No. 41.) For the reasons set forth below, the Court grants Defendant's Motion as to Plaintiff's claims of gender discrimination (Claim 1), retaliatory discrimination (Claim 3), retaliatory harassment (Claim 4), and intentional infliction of emotional distress (Claim 6), and denies the Motion as to gender harassment (Claim 2) and Defendant's affirmative defense.[2]

         I. BACKGROUND

         The following relevant facts are viewed in the light most favorable to the Plaintiff, and are undisputed except where noted.

         A. Plaintiff's Employment at Mountain View

         Plaintiff began his employment with Defendant in November 2014 as a Step 4 Apprentice Linemen. (ECF No. 41 at 2, ¶ 1.) At Mountain View, apprentice linemen rotate among the Underground Construction Crew, the Overhead Construction Crew, and the Service Crew. (Id. ¶ 2.) Plaintiff rotated onto the Service Crew, the Underground Construction Crew under Foreman Ted Brewer, and, in November 2015, to the Overhead Construction Crew under Foreman Jeremy Greer. (Id. ¶¶ 4-5.) The other members of the Overhead Construction Crew were Journeyman Steve McKinney and Apprentice Lance Freml. (Id. ¶ 5.) Four months later, Freml left the crew and Apprentice Zebulon Birch rotated onto the Overhead Construction Crew. (Id.)

         While on the Overhead Construction Crew, McKinney called Plaintiff “sister” on a daily or near daily basis, and Greer occasionally called Plaintiff “sister.” (ECF No. 43 at 13, ¶ 1; ECF No. 49 at 7, ¶ 1 (admitted “as to Plaintiff's testimony”).) McKinney also called Plaintiff “Felicia.” (ECF No. 43 at 13, ¶ 3.) Greer explained that use of “sister, ” among other familial terms in the workplace, was to create a culture where “the general foreman is the dad and the foremen[] are the uncles and the apprentices are the kids.” (ECF No. 41-11 at 88.) However, Greer also testified that he understood why a man would take offense to being called sister. (Id. at 88-89.)

         The parties dispute whether the names were directed only at Plaintiff, as well as the nature of the comments and pranks on the Overhead Line Crew. Defendant contends that the term “sister” was used “universally by the Overhead Construction Crew and was directed at Mr. McKinney and Mr. Birch as well as Plaintiff.” (ECF No. 41 at 5, ¶ 16.) However, Brewer's deposition makes clear that the terms “sister” and “Felicia” were occasionally directed at other people, but usually directed at Plaintiff and “it just seemed like it was more derogatory toward [Plaintiff].” (ECF No. 43 at 3-4, ¶ 16.)

         Plaintiff also contends that McKinney would play practical jokes on him in a way that was directed at harassing Plaintiff, rather than team-building. (ECF No. 43 at 6, ¶¶ 22-23.) Defendant contends that this was part of the workplace culture. Defendant cites testimony of Brewer that the work environment of construction-including line work-differs from an office setting, “entails rough and crude language, ” and “joking or ribbing [is] common amongst” employees. (ECF No. 41 at 5, ¶ 16.) Brewer also testified that such joking and pranks can build camaraderie among crews. (Id. ¶ 18.) Defendant claims that Greer, McKinney, and Birch all used the term “sister” and it was meant in a joking way; and that Plaintiff was a voluntary participant in the workplace culture and did not complain about the language used. (Id. at 6, ¶ 20.) However, Plaintiff cites contradictory testimony from McKinney, Greer, and Birch about the uses of various terms, as well as Plaintiff's involvement in workplace pranks. (ECF No. 43 at 5, ¶ 20.)

         Plaintiff wore jewelry, drove an expensive vehicle, and occasionally wore slim fitting pants apparently resembling a woman's cut. (ECF No. 43 at 13, ¶ 5.) Plaintiff found McKinney and Greer's comments and conduct demeaning, and perceived that McKinney and Greer were harassing him due to his gender because he did not fit into the “good ol' boys club” stereotype. (Id. ¶ 2.) Others similarly perceived McKinney's conduct as interfering with Plaintiff's job performance. (Id. ¶ 3.) Indeed, Brewer asked management multiple times to move Plaintiff to a new crew so that he would no longer be bullied and called feminine nicknames, and someone “would actually teach him.” (ECF No. 41-10 at 76.)

         Greer raised concerns about Plaintiff's attention to safety to David Lagge (Falcon Operations Superintendent), and on February 16, 2016, Greer, Lagge, Jason Matzke (General Foreman), and Chuck Houghton (Service Area Representative) held a counseling session with Plaintiff to address safety concerns. (Id. at 3, ¶¶ 6-7.) Plaintiff had previously spoke with Matzke about the Overhead Construction Crew bulling him, and claims that Matzke stated during this meeting that “bullying will not be tolerated.” (Id. ¶¶ 8-9.) On March 3, 2016, Greer, Lagge, and Mike Garland held a second counseling session with Plaintiff about continued safety issues. (Id. at 4, ¶ 12.) After Garland and Lagge raised safety concerns to Jim Herron (CEO), Plaintiff was put on a performance improvement plan. (Id. at 3, ¶ 10.)

         Around that time, Defendant decided to leave Plaintiff on the Overhead Construction Crew to improve his competencies. (ECF No. 41 at 12, ¶ 33.) Also at that time, Brewer reported to Garland that the Overhead Construction Crew was “being mean” to Plaintiff because he “wasn't a member of the good ol' boys club.” (Id.; ECF No. 41-10 at 75.) Brewer perceived this as reporting harassment (potentially on the basis of sex) to management, whereas Garland states that Brewer never made any allegations about harassment. (ECF No. 41-10 at 75-76, 176-77, 175; ECF No. 41-3 at 146.)

         B. Plaintiff's Termination

         During his time on the Overhead Construction Crew, Plaintiff started saying “smile and wave.” Plaintiff testified that this began when Freml was on the crew and continued with Birch, and explained that he started using the phrase “had to laugh it off, ” referring to his frustrations with the Overhead Construction Crew. (ECF No. 43 at 10, ¶ 48.)

         One day in March 2016, McKinney, Birch, and Plaintiff had a difficult job, and finally reached agreement about how to do it. (Id. ¶ 50.) Defendant claims that Plaintiff was unable to follow instructions or the agreed-upon plan, resulting in missteps, arguments, and yelling. (Id.) The crew did a review of what happened. McKinney claims that Plaintiff then “clicked his heels together, put his hand to his chest, and made his hand flat in the air and said, ‘Sieg Heil.'” (ECF No. 41-12 at 34.) Plaintiff disputes saying “Sieg Heil, ” but admits he may have done the Nazi salute at that time. (ECF No. 41-1 at 261-63.) Plaintiff stated “just smile and wave, Zeb, ” referring to Birch. (ECF No. 41 at 18, ¶ 51; ECF No. 41-14 at 87.)

         McKinney asked Birch what Plaintiff meant by “smile and wave, ” and Birch told McKinney “he's going to shoot you, Steve.” (ECF No. 41-12 at 34-35; see ECF No. 41-13 at 88.) Birch recounted a prior conversation with Plaintiff in the parking lot when Plaintiff allegedly told Birch: “If you ever come to work or if you're leaving work and you see bodies dropping around you, just look up and smile and wave.” (ECF No. 41-13 at 89, 91.) Birch understood Plaintiff to imply that Plaintiff would be standing on top of the building, shooting people in the parking lot. Birch initially thought Plaintiff was “just blowing off steam.” (Id. at 90.) However, Plaintiff's “tone and his demeanor and the way he acted after saying the comment [to McKinney] led [Birch] to belief that this ha[d] gone past joking or blowing off steam.” (Id. at 86.)

         Plaintiff denies ever having such a conversation with Birch about use of a firearm and the phrase “smile and wave, ” and flatly asserted in his deposition that Birch was lying. (ECF No. 41-1 at 169.)

         McKinney and Birch reported the incident to Defendant's management, specifically Lagge, Garland, and Kristi Hobbs. Hobbs separately met with Birch and McKinney. (ECF No. 41-15 at 112, 114, 123.) Hobbs in turn informed Herron, likely by phone call, of the situation after speaking with Birch. (Id. at 120-21.) Hobbs asked Birch and McKinney to write and submit statements, which they did. (ECF No. 19.) Herron reviewed the written statements. (ECF No. 41 at 21, ¶ 59.) At the request of Herron, Hobbs contacted the Mountain States Employers Council for advice. Over the course of several days, Hobbs and Herron spoke several times, with Hobbs presenting facts for Herron's consideration and Herron making the ultimate decision. (ECF No. 41-15 at 121-22.) Because of the severity of the threat, Herron was hesitant to do a full investigation. (Id. at 122.)

         Herron, the decisionmaker for all terminations at Mountain View, decided to terminate Plaintiff's employment because of Plaintiff's serious, threatening comments. (ECF No. 41 at 21, ¶ 62; ECF No. 41-4 at 88-89.) Herron testified that the combination of Plaintiff's comment about wanting to shoot coworkers from the building's roof and stating “just smile and wave” was “really the foundation of all of it.” (Id. at 92.)

         Plaintiff was terminated in a meeting with Garland, Lagge, and Hobbs at Mountain View on March 29, 2016. (ECF No. 41 at 22, ¶ 65.) Herron was out of the office that day, but instructed the staff to move forward with immediate termination. (Id.) Plaintiff was escorted off the property and informed he was not allowed on any Mountain View property. Defendant notified all employees of Plaintiff's termination and that Plaintiff was not allowed on Mountain View property. (ECF No. 43 at 16, ¶ 20.)

         Plaintiff cites a report that another employee who showed “signs of a confrontational nature with aggressive behavior” was not disciplined or terminated for his behavior. (Id. ¶ 22.) Coworkers complained that the employee in question “is allowed to continue to use the sign of raising his middle finger to relay his opinion of his female co-workers to those female co-workers, ” “bangs on the wall of cubicles while female co-workers are having discussions with other co-workers about company related business, ” and “has stepped into the personal space of female co-workers and female co-worker[s] [have] feared for their safety.” (ECF No. 43-6 at 6.)

         C. Defendant's Harassment Policy

         Defendant maintains a harassment policy forbidding workplace harassment on the basis of any protected characteristic, including sex. (ECF No. 41-14 at 1.) The policy also directs any employee who has been subjected to harassment to “report the incident immediately to his or her immediate supervisor.” (Id. at 2.) The policy further directs that “[i]f the immediate supervisor is involved in the activity, the incident must be reported to the Chief Executive Officer (CEO) or the Administrative Manager.” (Id.) There is no dispute that Plaintiff knew of the employee handbook which contained the harassment policy and that he understood the policies in the handbook applied to him.

         II. ...

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