Donaldson v. American Banco Corp., Inc.

• Decision Date: 20 November 1996
• Docket Number: Civil No. 95-B-826.
• Citation: 945 F.Supp. 1456
• Parties: Virginia L. DONALDSON, Patricia B. Morale, and Lacinda J. Zavilla, Plaintiffs, v. AMERICAN BANCO CORPORATION, INC., and Rita Bass, individually and as a shareholder and owner of American Banco Corporation, Inc., Defendants.
• Court: U.S. District Court — District of Colorado

945 F.Supp. 1456

Virginia L. DONALDSON, Patricia B. Morale, and Lacinda J. Zavilla, Plaintiffs, v. AMERICAN BANCO CORPORATION, INC., and Rita Bass, individually and as a shareholder and owner of American Banco Corporation, Inc., Defendants.

Civil No. 95-B-826.

United States District Court, D. Colorado.

November 20, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Sandra L. Spencer, Frank D. Sledge, Kristi L. Blumhardt, White and Steele, P.C., Denver, CO, for Plaintiffs.

Carol M. Welch, Linda Zinser, Miller & Welch, L.L.C., Mark P. Field, Denver, CO, for Defendants.

Jay S. Horowitz, Krendl Horowitz & Krendl, Denver, CO, for Rita Bass.

MEMORANDUM OPINION & ORDER

BABCOCK, District Judge.

This is a case about alleged pregnancy discrimination. Plaintiffs Virginia L. Donaldson (Donaldson), Patricia B. Morale (Morale), and Lacinda J. Zavilla (Zavilla) claim violations of 42 U.S.C. § 2000e et seq. by Defendants American Banco Corp. (Banco) and Rita Bass (Bass). Plaintiffs claim that defendants harassed and discriminated against them on the basis of their gender and their pregnancies. In addition, plaintiffs claim that defendants' conduct constitutes outrageous conduct that caused them severe emotional distress.

The following motions are pending:

1. Defendants' first motion for summary judgment;

2. Defendants' second motion for summary judgment (partial);

3. Defendants' motion to dismiss supplemental state law claim;

4. Defendant Bass's motion to dismiss;

5. Plaintiffs' request for sanctions against defendant Bass;

Many of the issues in these motions overlap, so I will address several of the motions in tandem.

I.

The very purpose of a summary judgment motion is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.1995). Fed.R.Civ.P. 56 provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). If a reasonable juror could not return a verdict for the nonmoving party, summary judgment is proper and there is no need for a trial. Celotex, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265.

For purposes of a motion to dismiss under Fed.R.Civ.P. 12(b)(6), I accept all factual allegations in the complaint as true and resolve all reasonable inferences in favor of the plaintiffs. Tri-Crown, Inc. v. American Federal Sav. & Loan Ass'n, 908 F.2d 578, 582 (10th Cir.1990). A case should not be dismissed for failure to state a claim unless the court determines that plaintiffs can prove no set of facts that entitle them to relief. Id.

II.

Donaldson, Morale, and Zavilla were all employed by Banco when they became pregnant. Bass is the president and sole shareholder of Banco, which is a collection agency. Plaintiffs assert that Bass and Banco discriminated against them in the form of both harassment and involuntary terminations. The complaint contains two claims for relief. The first claim for relief is styled "Sexual Discrimination and Harassment." I will treat these as separate claims for sexual harassment and sex discrimination under Title VII. The second claim for relief is for outrageous conduct under Colorado state law. Through various motions, defendants move for summary judgment and/or dismissal of plaintiffs' claims. For the purposes of defendants' dispositive motions, I assume the following facts to be true.

Donaldson was hired by Banco on August 15, 1991, as a supervisor. She was promoted to manager on March 1, 1992. She announced her pregnancy on March 19, 1993, and she was involuntarily terminated on July 28, 1993, apparently as some sort of forced maternity leave. Banco rehired Donaldson on December 1, 1993, on a part-time basis, performing her duties from home via a modem. Donaldson returned to Banco full-time on February 1, 1994, in a different position. She was paid her pre-childbirth salary, but Donaldson contends that she no longer received significant benefits that she had previously received. Donaldson was involuntarily terminated on April 15, 1994. She filed a charge with the EEOC on June 21, 1994, alleging discrimination as a result of her sex and pregnancy.

Morale was hired by Banco on May 13, 1991, as a paralegal. In September 1992, she was promoted to manager of the legal department. Morale became pregnant and gave birth to a girl on July 26, 1993. After the birth of her child, Morale left work. She was rehired on a part-time basis in September or October 1993. Morale also worked from home via modem for some time. She returned to work full-time on December 1, 1993. Her hours were involuntarily reduced in February 1994 at Bass's direction. Morale was involuntarily terminated on March 9, 1994. She filed a charge with the EEOC on June 21, 1994, alleging discrimination as a result of her sex and pregnancy.

Zavilla began employment with Banco on March 1, 1990, as a "skip tracer." She was eventually promoted to client representative on February 19, 1992. Zavilla became pregnant and gave birth to a son on April 15, 1993, at which time she stopped work at Banco. Zavilla was rehired full-time on August 15, 1993, for a position in marketing, which was different than the position she previously held. Zavilla was involuntarily terminated on April 29, 1994. She filed a charge with the EEOC on June 21, 1994, alleging discrimination as a result of her sex and pregnancy.

All three plaintiffs allege that Bass made various derogatory comments to them and other employees regarding their pregnancies that created a hostile work environment. In addition, plaintiffs contend that Bass's comments and actions evince an intent to discriminate against them on the basis of their sex and pregnancies and that they were involuntarily terminated because of that discrimination. Plaintiffs invoke 42 U.S.C. § 2000e et seq. (Title VII), as amended by the Pregnancy Discrimination Act (PDA) (codified at 42 U.S.C. § 2000e(k)), in support of their claims. In addition, plaintiffs claim that defendants' conduct qualifies as outrageous conduct that has caused each of them severe emotional distress.

III.

In their first and second motions for summary judgment, defendants move for summary judgment on all of plaintiffs claims: sexual harassment, sex discrimination, and outrageous conduct. Defendants further move for summary judgment on any claims for sex discrimination that are not pregnancy-related on the basis that they are beyond the scope of plaintiffs' EEOC charges. Finally, defendants move for summary judgment on all of plaintiff Zavilla's claims arguing that they are either time-barred or outside the scope of her EEOC charge. For the following reasons, I will grant in part and deny in part defendants' motions for summary judgment.

A. SEXUAL HARASSMENT (HOSTILE WORK ENVIRONMENT)

1. Hostile Work Environment Based upon Same-Gender Discrimination

Defendants argue that because plaintiffs admit that Bass's alleged comments did not contain sexual innuendo, they cannot be the basis for a Title VII claim. Defendants further contend that regardless of how hostile or abusive plaintiffs' work environment may have been, plaintiffs cannot maintain a Title VII harassment action because the alleged harasser (Bass) and the plaintiffs are all women. I disagree.

A plaintiff may establish a Title VII violation by showing that "discrimination based on sex has created a hostile or abusive work environment." Meritor Savings Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986). Hostile work environment harassment is discriminatory conduct that "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment." Sauers v. Salt Lake County, 1 F.3d 1122, 1126 (10th Cir.1993); see also Meritor Savings Bank, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (quoting 29 C.F.R. § 1604.11(a)(3)).

The Tenth Circuit has expressly refused to limit the basis for hostile work environment claims to overtly "sexual" comments or acts. Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir.1987). Rather, the court has stated that "`any harassment or other unequal treatment of an employee or group of employees that would not occur but for the sex of the employee or employees may, if sufficiently patterned or pervasive, comprise an illegal condition of employment under Title VII.'" Id. (quoting McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C.Cir.1985)). This position makes eminent sense as there is no basis in 42 U.S.C. § 2000e-2(a) for distinguishing gender-based discrimination from racial discrimination. Courts have long allowed racial discrimination to be established by showing a work environment pervaded by racial hostility and/or discrimination. See, e.g., Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir.1981). Accordingly, it is inapposite that Bass's alleged comments were not "sexual" in nature. Rather, so long as the comments would not have been made but for the sex of the plaintiffs and they were pervasive enough to create a hostile environment, plaintiffs can maintain a Title VII claim.

Defendants next argue that Bass's comments cannot give rise to a cause of action under Title VII because she and the plaintiffs are all women; therefore, Bass's comments could not have been made "because of" plaintiffs' gender. This argument also misses the mark. First, I recently held that harassment claims based upon "sexual" comments and acts by same-gender employees may be maintained. Gerd v. United Parcel Service, 934 F.Supp. 357 (D.Colo. 1996). In addition, 42 U.S.C. § 2000e(k) states that for the purposes of Title VII, "[t]he terms `because of sex' or `on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related...