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Davis v. Crescent Electric Supply, Co.

United States District Court, D. South Dakota, Western Division

August 5, 2016

LISA A. DAVIS, Plaintiff,
v.
CRESCENT ELECTRIC SUPPLY, COMPANY (

          Lisa A. Davis, Plaintiff, represented by Mario Gonzalez & Terry L. Pechota.

          Crescent Electric Supply Company, Defendant, represented by Donald P. Knudsen, Gunderson, Palmer, Nelson & Ashmore, LLP & Nathan R. Chicoine, Gunderson, Palmer, Nelson & Ashmore, LLP.

          James M. Sullivan, Defendant, represented by Donald P. Knudsen, Gunderson, Palmer, Nelson & Ashmore, LLP & Nathan R. Chicoine, Gunderson, Palmer, Nelson & Ashmore, LLP.

          Martin S Burbridge, Defendant, represented by Donald P. Knudsen, Gunderson, Palmer, Nelson & Ashmore, LLP & Nathan R. Chicoine, Gunderson, Palmer, Nelson & Ashmore, LLP.

          James R Etheredge, Defendant, represented by Donald P. Knudsen, Gunderson, Palmer, Nelson & Ashmore, LLP & Nathan R. Chicoine, Gunderson, Palmer, Nelson & Ashmore, LLP.

          Christopher P Breslin, Defendant, represented by Donald P. Knudsen, Gunderson, Palmer, Nelson & Ashmore, LLP & Nathan R. Chicoine, Gunderson, Palmer, Nelson & Ashmore, LLP.

          Daniel E. Philippi, Defendant, represented by Donald P. Knudsen, Gunderson, Palmer, Nelson & Ashmore, LLP & Nathan R. Chicoine, Gunderson, Palmer, Nelson & Ashmore, LLP.

          MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          LAWRENCE L. PIERSOL, District Judge.

         Before the Court is Defendant Crescent Electric Supply Company's ("CESCO" or "Defendants") Motion for Summary Judgment against Plaintiff Lisa A. Davis ("Davis" or "Plaintiff). According to Davis, this federal action is based primarily on wage discrimination and retaliation, but "is not a sexual harassment case." Plaintiff's Response to Defendants' Statement of Material Facts, Doc. 132, at 43-44. Sexual harassment is only relevant here insofar as it created a hostile work environment in retaliation to Davis's EEOC complaints. Id. at 44. For the following reasons, the motion is granted in part and denied in part.

         On July 21, 2016, Davis filed a motion for leave to file a second amended complaint, Doc. 130. In addition, the proposed Second Amended Complaint, Doc. 130-1, was submitted. The Court grants the motion and bases this memorandum opinion on the Second Amended Complaint, Doc. 130-1. In addition, on August 1, 2016, Davis filed her response to Defendants' Statement of Material Facts ("Plaintiff's Response"), Doc. 132. The Court will consider those papers in ruling on CESCO's Motion for Summary Judgment.

         BACKGROUND

         Davis formerly worked for Defendant Crescent Electric Supply Company ("CESCO"). CESCO is an electrical distributor with over 120 locations and about 1550 employees throughout the United States. She began work at CESCO on August 31, 2005 in a clerical position. During all relevant time of Davis's employment, Defendant James M. Sullivan ("Sullivan") was her direct supervisor. For her clerical position, Davis received an hourly wage. On June 1 2010, Davis was promoted to a sales position-Quotations Specialist-as a replacement to Ken Herman ("Herman"). Prior to Davis accepting the position, Herman implied to Davis that she would receive commissions as part of being a Quotations Specialist. Sullivan, however, indicated only that Davis would receive a raise, but did not state that that raise would be in the form of commissions. Davis did receive a pay increase of $2.10, raising her pay rate of $12.40 per hour to $14.50 per hour. Affidavit of Nathan R. Chicoine in Support of Defendants' Motion for Summary Judgment (Chicoine Affidavit), Doc. 69-1, at 8; Chicoine Affidavit, Doc. 69-8.

         As a Quotations Specialist, Davis received a list of jobs to bid on. She then had to request plans and produce counts of light fixtures to the customer. Prior to accepting the Quotations Specialist position, Davis had no experience in quotations. She was told by Sullivan, however, that she would not need product training. Plaintiff's Response, Doc. 132, at 12. As a result, Davis did not pursue product training. Id. Training for the position itself was conducted between the incoming and outgoing Quotations Specialists.

         On November 29, 2010, via email, Davis told Sullivan that she was informed by Herman that she would receive commissions as a part of the promotion. Davis wanted to know when she would receive the same. In a response email, Sullivan informed Davis that Herman did not have anything to do with wage decisions and should not have told her that she would receive commissions. Sullivan further explained that commission pay for her position was not budgeted for the year, and that she received an hourly pay rate increase instead.

         Around January 1, 2011, Davis was placed in CESCO's warehouse in an effort to familiarize Davis with CESCO's products and help her successfully return to the Quotations Specialist position. Defendants' Statement of Material Facts ("DSMF"), Doc. 70, at 6 ¶¶39-40. It is disputed whether her duties in the warehouse were actually in furtherance of the quotations positon. See Plaintiff's Response at 22. Davis's hourly pay rate was unaffected. Her duties in the warehouse included emptying garbage, assisting customers at the counter sales, writing orders, and stocking shelves. Plaintiff's Response at 23.

         On February 16, 2011, Davis was again reassigned, this time to Project Specialist positon, a new position that was created for Davis. DSMF at 7 ¶ 44; Plaintiff's Response at 22. The Project Specialist positon was created for Davis and only existed at CESCO during Davis's time in the position. Plaintiff's Response at 25. Her hourly pay rate was again unaffected and her duties as Project Specialist were similar to the Quotations Specialist position, except that, as Project Specialist, Davis no longer bid on jobs. Chicoine Affidavit, Doc. 69-2, at 6. Instead, Davis supported the new Quotations Specialist, Kody Mendel ("Mendel"), on the clerical components of quotations. Id. at 7. According to Davis, the Project Specialist position "was just like a clerical position to help all the sales people for the quotations person to get their jobs done." Plaintiff's Response at 24. Davis held the Project Specialist position until June 2011, at which time she resigned from the position. Chicoine Affidavit, Doc. 69-2, at 8.

         Related to her reassignments, Sullivan had been reviewing Davis's performance from February 25, 2011 to March 14, 2011 and concluded that Davis struggled to understand CESCO's product line. DSMF at 8 ¶¶ 55-57. Davis states that it was customary for her to be allowed input related to the appraisals. She claims she was not allowed to do so during the February and March appraisals. Second Amended Complaint, Doc. 130-1, at 14. Her electronic signature, however, appears on the second-to-last page of the appraisal. Chicoine Affidavit, Doc. 69-17, at 12.

         Sometime in April 2011, Davis complained to CESCO of wage discrimination. Compare Second Amended Complaint, Doc. 130-1, at 13 (stating that the date of the complaint was April 25, 2011) with DSMF at 7 ¶ 49 (misstates the year as 2010, but correctly states April as the month). Julie Skinner ("Skinner" or "Steinstra"), CESCO's HR Generalist, investigated Davis's complaint. As a result of the investigation, Skinner concluded that Davis's Quotation Specialist successor, Mendel, while receiving commissions, was making approximately $2, 000 less than Davis. The investigation further concluded that Davis was moved out of the Quotation Specialist position as a result of her performance. Skinner informed Davis of her conclusions in a letter dated April 27, 2011, Chicoine Affidavit, Doc. 69-10.

         Between March and May 2011, Davis encountered behaviors of Mendel that she considered to be sexual harassment directed toward her. Interpreting these behaviors as retaliation for her discrimination complaint, Davis, on May 16, 2011, filed a complaint with CESCO HR again. Second Amended Complaint, Doc. 130-1, at 13-14. Davis did not know for certain if Mendel was aware of her wage discrimination claim to HR. Chicoine Affidavit, Doc. 69-2, at 10. Davis does not recall complaining of Mendel's actions to Sullivan. Similar to the April 27 letter from Skinner related to the discrimination claim, Skinner sent Davis a letter on May 26, 2011 informing Davis of Skinner's conclusions related to the sexual harassment/retaliation claim. In the letter, Skinner stated that she believed Mendel should receive disciplinary action for the behavior detailed by Davis. Mendel was suspended for two days without pay. Plaintiff's Response, Doc. 132-8.

         Around June 3, 2011, Davis contacted personnel at the regional Equal Employment Opportunity Commission (EEOC) office. Davis filed a formal complaint with the EEOC on or about that same day alleging claims of wage discrimination and retaliation. Second Amended Complaint, Doc. 130-1, at 14. On June 16, 2011, Davis resigned from CESCO. Davis filed her complaint in this Court on February 8, 2012.

         Defendants filed the instant Motion for Summary Judgment, Doc. 68, on April 16, 2015. On May 29 2015, Davis's then-attorney-of-record, Deborah Dubray, withdrew as Davis's counsel, Doc. 78, and Davis's current attorney-of-record, Mario Gonzalez, began handling Davis's case, Doc. 79.[1] DuBray never responded to Defendants' motion. Since that time, there have been several intervening motions, two of which the Court previously dealt with, Docs. 121, 122. Not having received papers in opposition to CESCO's motion for summary judgment, on July 14, 2016, the Court issued an Order, Doc. 129, providing Davis with seven business days within which to file papers she wished to be considered by the Court related to Defendants' motion. In that time, Davis filed a Motion for Leave to File a Second Amended Complaint, Doc. 130. In addition, on August 1, 2016, Davis filed her opposition to Defendants' statement of material facts, Doc. 132.

         In the Second Amended Complaint, Davis has removed four counts that were recited in the First Amended Complaint: Tortious Interference with a Business Expectancy (Former Count 4), Intentional and/or Negligent Misrepresentation (Former Count 5), Adversarial Investigation and Breach of Confidentiality (Former Count 8), and Intentional or Negligent Supervision (Former Count 9). Contained in the Second Amended Complaint are as follows: Wage Discrimination Based on Gender, Hostile Work Environment, Retaliation, Disparate Treatment Based on Gender (Clerical Designation), Disparate Treatment Based on Gender (Training), and Constructive Discharge. Each of these six counts was also recited in the First Amended Complaint. Davis has pled an additional count, however, that was not in the First Amended Complaint: Breach of Oral Contract. Because Defendants' Motion for Summary Judgment addressed six of the seven counts contained in Davis's Second Amended Complaint, the Court will proceed to rule on the motion relative to those counts. The seventh count will not be addressed at this time.

         STANDARD OF REVIEW

         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 party asserting that a fact cannot be... disputed must support the assertion" either by "citing to particular parts of materials in the record, " or by "showing that the materials cited do not establish the... presence of a genuine dispute[.]" Fed.R.Civ.P. 56(c)(1)(A)-(B). "The movant can also establish the absence of a disputed material fact by showing that an adverse party cannot produce admissible evidence to support the fact.'" Jensen v. Hy-Vee Corp., No. CIV. 09-4057-KES, 2011 WL 1832997, at *1 (D.S.D. May 13, 2011) (quoting Fed.R.Civ.P 56(c)(1)(B)). "The burden is initially placed on the moving party to establish the absence of a genuine issue of material fact and that the party is entitled to judgment as a matter of law." Id. (citing Celotex Corp. v. Catrett, All U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once the party seeking summary judgment has met this initial burden, the burden then shifts to the non-moving party who must demonstrate "that a fact... is genuinely disputed" either "by citing to particular parts of materials in the record, " or by "showing that the materials cited do not establish the absence... of a genuine dispute." Fed.R.Civ.P 56(c)(1)(A)-(B). "For purposes of summary judgment, the facts, and inferences drawn from those facts, are viewed in the light most favorable to the party opposing the motion.'" Jensen, 2011 WL 1832997, at *2 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Employment discrimination cases are not immune from summary judgment, and there is no separate summary judgment standard that applies to these cases. See Fercello v. County of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010).

         DISCUSSION

         Wage Discrimination

         The Eighth Circuit has held that Title VII wage discrimination claims are subject to the Equal Pay Act framework. See Horn v. Univ. of Minn., 362 F.3d 1042, 1045 (8th Cir.2004); Tenkku v. Normandy Bank, 348 F.3d 737, 741 (8th Cir.2003). The Equal Pay Act is a strict liability statute that prohibits discrimination in wages on the basis of sex even where there is no showing of discriminatory intent. Bauer v. Curators of Univ. of Mo., 680 F.3d 1043, 1045 (8th Cir.2012); 29 U.S.C. § § 206(d).

A plaintiff must first establish a prima facie case that women were paid less than men in the same establishment for equal work requiring equal skill, effort, and responsibility and performed under similar working conditions. Hutchins v. Int'l Bhd. of Teamsters, 177 F.3d 1076, 1080 (8th Cir.1999). If a plaintiff establishes a prima facie case, the burden then shifts to the defendant to prove one of four statutory affirmative defenses. Id. at 1081. Those defenses require an employer to prove that any wage differential is explained by "(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex." 29 U.S.C. § 206(d)(1). In an EPA case, "a defendant cannot escape liability merely by articulating a legitimate ...

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