Arriwite v. SME Steel Contractors, Inc.
| Decision Date | 31 March 2021 |
| Docket Number | Case No. 4:18-cv-00543-DCN |
| Parties | DANIEL C. ARRIWITE, Plaintiff, v. SME STEEL CONTRACTORS, INC., SME John Does I-V, Defendants. |
| Court | U.S. District Court — District of Idaho |
Pending before the Court is Defendant SME Steel Contractors, Inc.'s ("SME") Motion for Summary Judgment. Dkt. 24. The Court held oral argument on July 30, 2020, and took the motion under advisement. Upon review, and for the reasons set forth below, the Court GRANTS in PART and DENIES in PART SME's Motion.
Plaintiff Daniel Arriwite was employed as a welder by SME until his termination on July 3, 2015.
On July 1, 2015, Arriwite was welding materials for the Chumash Hotel & Casino Project. SME employee Ray Carlson instructed Arriwite to move to a different task and weld on a piece of material which had been partially completed by night-shift employees the night before. As he began his work, Arriwite noticed that the weld was being welded with UltraCore 70C - Lincoln Electric Wire ("70c wire"). Based on his knowledge and experience in the industry, Arriwite knew that 70c wire was a dangerous material that required additional safety measures and specialty equipment in order to safely use it under Occupational Safety and Health Administration ("OSHA") guidelines. Arriwite also knew that 70c wire could cause physical damage to the person using it if welded improperly.
Not seeing any of the requisite safety measures in the immediate area, Arriwite asked other employees where the Personal Protective Equipment ("PPE") was so that he could safely perform the task. Arriwite was provided a paper mask and a fan. He knew these measures were inadequate and expressed concern. He was told to simply return to the Cushing Project. Later, Carlson sent Arriwite home stating there was nothing further for him to do that day.
The following morning, on July 2, 2015, another SME employee asked to switch welders with Arriwite. Not seeing a need, Arriwite declined. Carlson later approached Arriwite about the request. A disagreement ensued.1 Carlson asked Arriwite to come to the main office and accused him of being insubordinate.
In the main office, SME Human Resource Director, Dave Burgess, and other employees were present. Arriwite was given a direct order to go work on the project requiring 70c wire and told that all necessary safety precautions were being taken in accordance with the Material Safety Data Sheet ("MSDS"). Arriwite refused, stating that the MSDS was inadequate and that the manufacturer's warning label on the boxes of 70c wire outlined more detailed safety measures. SME told Arriwite they follow the MSDS.Arriwite told SME that OSHA required compliance with the manufacture's warning labels, not the MSDS, and that—if necessary—he would report SME to OSHA for safety violations.
At the conclusion of the meeting, SME sent Arriwite home for the day. Arriwite immediately went to the Shoshone-Bannock Tribes' Tribal Employment Rights Office and informed the safety compliance officer that he would likely be terminated the following day. He also created an OSHA report outlining SME's unsafe use of 70c wire and the attending unsafe working conditions. Arriwite sent the report to OSHA.
The next morning, July 3, 2015, Arriwite arrived at SME and began work. Shortly thereafter, he was again escorted to the office and informed he was being let go. A discussion regarding unemployment benefits followed and Arriwite left the premises.
On July 14, 2015, Arriwite filed a whistleblower claim with OSHA. On July 15, 2015, OSHA investigated Arriwite's allegations. The investigation yielded no violations. Several employees informed Arriwite that SME had concealed its unsafe practices from OSHA during their visit. When Arriwite informed OSHA of this fact, OSHA initiated a second unannounced site visit. During this subsequent visit, OSHA observed numerous code violations regarding the use of 70c wire. OSHA cited SME for these violations—designated as "SERIOUS" violations under OSHA standards—and proposed substantial fines. SME ultimately entered into a settlement agreement with OSHA for reduced penalties and stricter use of PPE.
OSHA later responded to Arriwite's whistleblower complaint and informed him there was insufficient evidence to suggest he'd been terminated for refusing to work indangerous conditions and/or for reporting those conditions to OSHA. Arriwite appealed. OSHA denied the appeal.
On December 7, 2018, Arriwite filed the instant action. In his Complaint, Arriwite brings four causes of action: 1) wrongful termination in violation of public policy; 2) negligent infliction of emotional distress; 3) breach of the covenant of good faith and fair dealing; and 4) wrongful discharge. Dkt. 1. After the close of discovery, SME filed the pending Motion for Summary Judgment. Dkt. 24.
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). The Court's role at summary judgment is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (citation omitted). Importantly, the Court does not make credibility determinations at this stage of the litigation. Such determinations are reserved for the trier of fact. Hanon v. Dataproducts Corp., 976 F.2d 497, 507 (9th Cir. 1992).
In considering a motion for summary judgment, the Court must "view[] the facts in the non-moving party's favor." Zetwick, 850 F.3d at 441. To defeat a motion for summary judgment, the respondent need only present evidence upon which "a reasonable juror drawing all inferences in favor of the respondent could return a verdict in [his or her] favor." Id. (citation omitted). Accordingly, the Court must enter summary judgment if a party "fails to make a showing sufficient to establish the existence of an element essentialto that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The respondent cannot simply rely on an unsworn affidavit or the pleadings to defeat a motion for summary judgment; rather the respondent must set forth the "specific facts," supported by evidence, with "reasonable particularity" that precludes summary judgment. Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001).
SME moves for summary judgment on all four of Arriwite's claims. The Court will address each in turn.
Before doing so, however, the Court notes that SME's summary judgment briefs are severely lacking. The Court is not as concerned with the length of SME's briefs—although the substantive arguments comprise just over seven pages—but with the substance. In essence, SME lists Arriwite's claims and then explains the legal barriers to those claims. Glaringly absent, however, is the "bridge" between these two things. There are no specific facts and hardly even any mention of Arriwite. The sole citation to any discovery is a footnote in SME's reply brief that generically and briefly summarizes certain deposition testimony regarding why SME terminated Arriwite. This footnote comes on the heels of the single case-specific paragraph in all of SME's briefing. Arriwite's termination is the entire substance of this case. Surely such a discussion deserves more than one paragraph and one footnote.2 At summary judgment, it is the moving parties' burden to show thereare no disputed facts at issue and that it is entitled to judgment as a matter of law. By in large, SME failed to do that in this case.
The Court turns to the individual claims.
Arriwite's first cause of action is for wrongful termination in violation of public policy. Dkt. 1, at 9. Broadly speaking, Arriwite claims SME wrongfully terminated him because he refused to work in unsafe working conditions and because he told SME he would report those conditions to OSHA.
SME argues that Arriwite's wrongful termination claim should be dismissed for two interrelated legal reasons. First, SME argues Idaho is an "at-will" employment state and it could fire Arriwite for any number of reasons, or even for no reason at all. Second, SME argues that even if there are public policy concerns at play in this case, Arriwite's remedy lies with OSHA (which, in fact, he already utilized and exhausted), and not with the Federal Court.
The Court will address each argument in turn.
SME argues in its motion for summary judgment that Arriwite's wrongful termination claim should be dismissed in light of the fact that Idaho is an "at-will" employment state. Because Idaho employees are at-will, they "may be terminated by [their] employer at any time for any reason without creating liability." Berrett v. Clark Cty. Sch.Dist. No. 161, 454 P.3d 555 (Idaho 2019). SME admits that there is a narrow exception to the at-will doctrine—the public policy exception—but asserts this exception does not apply to Arriwite because he was not fired for engaging in any type of protected activity. Citing Berrett, SME explains that 454 P.3d at 569 (internal quotations and citations omitted). Determining what constitutes a public policy is a matter of law. Id. SME argues that Arriwite was not engaged in any of the listed protected activities when he was fired and that the only "public policy" that might be implicated in this case relates to OSHA.
Arriwite does...
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