Culp v. Remington of Montrose, LLC

Decision Date19 August 2021
Docket NumberCivil Action 18-cv-02213-MSK-GPG
PartiesSTACIE CULP, and STEPHANIE PETERS, Plaintiffs, v. REMINGTON OF MONTROSE, LLC, and REMINGTON OF MONTROSE GOLF CLUB, LLC, Defendants.
CourtU.S. District Court — District of Colorado

STACIE CULP, and STEPHANIE PETERS, Plaintiffs,
v.
REMINGTON OF MONTROSE, LLC, and REMINGTON OF MONTROSE GOLF CLUB, LLC, Defendants.

Civil Action No. 18-cv-02213-MSK-GPG

United States District Court, D. Colorado

August 19, 2021


OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

Marcia S. Krieger Senior United States District Judge

THIS MATTER comes before the Court pursuant to the Defendants' (collectively referred to as “Remington”) Motion for Summary Judgment (# 62), the Plaintiffs' response (#66), and Remington's reply (# 69).

FACTS

The Court briefly summarizes the pertinent facts here, taken in the light most favorable to the Plaintiffs, and elaborates as necessary in the analysis.

Remington operates a restaurant and event space. Plaintiff Stephanie Peters began a job as a Server at Remington in June 2016. In February 2017, Remington hired Jason DeSalvo as a Bartender and Assistant Floor Manager. Ms. Peters contends that Mr. DeSalvo was authorized to act as her direct supervisor, although that fact is disputed.

Mr. DeSalvo made sexually-implicit and explicit comments to Ms. Peters and another co-worker, such as inviting them over to his house to drink wine because his wife was away, asking Ms. Peters if she “want[ed] a cock in [her] mouth, ” and referring to a calculator as a “cockulator.”

Ms. Peters was told by the co-worker that the co-worker had complained about Mr. DeSalvo to Rick Crippen, Remington's Food and Beverage Manager, and Eric Feely, Remington's General Manager, but that neither acted in response. Eventually, the co-worker resigned and Ms. Peters concluded that complaints about sexual harassment to Remington's management would not be treated seriously.[1]

Ms. Culp was hired as a server at Remington in June 2017. Ms. Peters was assigned to train Ms. Culp. When Ms. Culp interacted with Mr. DeSalvo, he made a variety of sexually-implicit comments to her. For example, Ms. Culp alleges that Mr. DeSalvo offered to give Ms. Culp shots of alcohol if she got him the phone numbers of female customers and employees and asking Ms. Culp if she would participate in a threesome with him and a female guest. Mr. DeSalvo also touched Ms. Culp inappropriately on several occasions, deliberately touching her breasts while purporting to take glasses from a tray she was holding, touching the back of her neck and sliding his hand down her back, and standing close behind her in order to press his groin against her, among other instances. Ms. Culp reported these incidents to Ms. Peters and asked if she should report them to Mr. Crippen or other members of management. Mindful that Remington management had apparently ignored her prior co-worker's complaints of sexual harassment, Ms. Peters cautioned Ms. Culp against raising the issue with upper management, and neither woman shared their complaints with any Remington official.[2]

By late June 2017, Ms. Culp applied for a position with a former employer, telling that employer of her problems at Remington. Word of Ms. Culp's comments about Remington got back to Mr. Crippen, and on July 25, 2017, Mr. Crippen met with Ms. Culp to ask about the issue she was having with Mr. DeSalvo. Eventually, Ms. Culp gave Remington a written statement that recited certain instances of inappropriate conduct by Mr. DeSalvo.

Mr. Feely and Beth Feely, Remington's Human Resources Manager, began an investigation into Ms. Culp's complaints. As discussed in more detail below, that investigation was fairly limited, but even so, it adduced some evidence of Mr. DeSalvo having engaged in inappropriate behavior. On August 5, 2017, Mr. and Ms. Feely decided to suspend Mr. DeSalvo for five days and to demote him from his supervisory position.

Ms. Culp alleges that, shortly after Mr. DeSalvo returned from his suspension, Mr. Crippen removed her from the work schedule entirely.[3] On September 1, 2017, Ms. Culp resigned from Remington, stating that it was “due to the sexual harassment and retaliation I have experienced.”

Meanwhile, Ms. Peters was assigned to work with Mr. DeSalvo on August 17 and 18, 2017 after he returned from his suspension. She states that during those shifts, he “treated me poorly and yelled at me for asking him about work-related matters.” Ms. Peters felt like she was being retaliated against for having supported Ms. Culp's complaints, and mid-shift on August 18, 2017, Ms. Peters resigned her employment with Remington.

Both women commenced this action, alleging: (i) claims of hostile environment sexual harassment under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. and the Colorado Anti-Discrimination Act (“CADA”), C.R.S. § 24-34-401 et seq.[4]; (ii) retaliation for engaging in protected conduct in violation of Title VII and CADA; and (iii) a tort claim for negligent supervision under Colorado law, invoking Keller v. Koca, 111 P.3d 445 (Colo. 2005).

Remington moves (# 62) for summary judgment on all claims against it. As to the hostile environment claims, Remington contends that: (i) neither Plaintiff gave Remington actual or constructive notice of their concerns about Mr. DeSalvo prior to July 25, 2017; (ii) Mr. DeSalvo was not a supervisor of Ms. Culp or Ms. Peters, such that Remington would be vicariously liable for his harassment under Burlington Industries v. Ellerth, 524 U.S. 742, 760 (1998); and (iii) Remington can satisfy the affirmative defense to liability for supervisor harassment articulated in Ellerth because it promptly took adequate remedial actions upon learning of Ms. Culp and Ms. Peters' complaints of harassment. As to the retaliation claims, Remington argues that neither Plaintiff can identify a retaliatory action taken by Remington after their complaints and that Remington had legitimate non-retaliatory reasons for reducing Ms. Culp's schedule. Finally, as to the negligent supervision claim, Remington argues that the Plaintiffs cannot show that Remington knew Mr. DeSalvo posed a risk of sexually harassing them.

ANALYSIS

A. Standard of review

Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v. Producer=s Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is "genuine" and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).

If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.

If the moving party does not have the burden of proof at trial, it must point to an absence of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, a trial is required. If the respondent fails to produce sufficient competent evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

B. Hostile environment claim

For purposes of the Plaintiffs' hostile environment claim, Remington effectively concedes (at least for purposes of this motion) that Mr. DeSalvo engaged in conduct amounting to sexual harassment in violation of Title VII. Thus, the issue is whether Remington can be held liable for that harassment.

The Supreme Court has set forth different standards for holding an employer liable for workplace sexual harassment, depending on the status of the employee engaging in the offending conduct. When the employee is a non-supervisory co-worker, the employer's liability turns on ordinary principles of negligence. Vance v. Ball State University, 570 U.S. 421, 427 (2013). The plaintiff employee bears the burden of showing that the employer had actual or constructive knowledge of the harassment, and that it thereafter failed to take “remedial and preventative action . . . reasonably calculated to end the harassment.” Jackson v. Kansas City Public Schools, 799 Fed.Appx. 586, 591 (10th Cir. 2020).

When the harassing employee is a supervisor, a standard is different. In Ellerth, the Supreme Court discussed two forms of employer liability for a supervisor's sexual harassment. First, when the harasser has taken a tangible employment action - e.g. a hiring, firing, failing...

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