Fisher v. Electronic Data Systems

• Decision Date: 08 August 2003
• Docket Number: No. 4:02-CV-90199.,4:02-CV-90199.
• Citation: 278 F.Supp.2d 980
• Parties: Vikki Lynn FISHER, Plaintiff, v. ELECTRONIC DATA SYSTEMS and Darin K. McDonald Defendants.
• Court: U.S. District Court — Southern District of Iowa

278 F.Supp.2d 980

Vikki Lynn FISHER, Plaintiff, v. ELECTRONIC DATA SYSTEMS and Darin K. McDonald Defendants.

No. 4:02-CV-90199.

United States District Court, S.D. Iowa, Central Division.

August 8, 2003.

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Bruce H. Stoltze, Brick, Gentry, Bowers, Swartz, Stoltze, Schuling & Levis, PC, Ward A. Rouse, Berg, Rouse Spaulding & Schmidt, PLC, Des Moines, IA, for plaintiff.

Barbara A. Hering, Hugh J. Cain, Hopkins & Huebner, Des Moines, IA, Vicki L. Gillette, Plano, TX, for defendants.

MEMORANDUM OPINION AND ORDER

PRATT, District Judge.

Plaintiff Vikki Lynn Fisher ("Fisher") brings this action against her former employer, Electronic Data Systems Corporation ("EDS"), and former supervisor Darin K. McDonald ("McDonald"), alleging sexual harassment, gender-based discrimination, and retaliation in violation of 42 U.S.C. § 2000e-2 ("Title VII") and the Iowa Civil Rights Act, Iowa Code § 216.1 et seq (the "ICRA"), and common law claims for assault and battery, wrongful discharge, and intentional infliction of emotional distress. Now before the Court is Defendants' Motion for Partial Summary Judgment, filed on May 2, 2003. For the reasons set forth below, Defendants' motion is granted in part and denied in part.

I. Factual Background

Ms. Fisher was employed by EDS and served as an administrative assistant to Defendant McDonald from around December, 1999 until May 14, 2001. She alleges that for a period of at least a year during the time she worked for McDonald, beginning around May, 2000, she was subjected to sexual comments, touching, and implications that she would be fired if she refused McDonald's advances. She often received personal telephone calls from McDonald after work hours, during which McDonald would "suggest [she] do sexual things to [herself]" and would make other "explicit" and "demeaning" remarks. McDonald would frequently ask Plaintiff to describe her undergarments before he would provide work-related information Plaintiff needed. McDonald also made sexual remarks about Plaintiff's dress, "dropped" items on the floor so as to watch Plaintiff as she picked them up, "poked [her] in the butt," and would attempt to unsnap or pull open her clothing or look down her shirt. On one occasion, he went to the men's room and removed his underwear, then placed it on her desk, saying "It's your turn." McDonald became jealous of Plaintiff paying attention to other men and on one occasion, kissed her in the elevator. A log kept by Plaintiff for April and May 2001 indicates that these kinds of remarks and sexual advances occurred on nearly a daily basis. During the period the harassment was ongoing, she continued to receive substantial bonuses and salary. About six to eight months prior to her May, 2001 complaint, Ms. Fisher also received a raise when her position was reclassified from "administrative assistant" to "business systems analyst."

At all times relevant to this dispute, EDS maintained a sexual harassment policy and an "open door" policy whereby any employee could complain to any manager, including the CEO, regarding workplace sexual harassment. Both McDonald and Ms. Fisher were aware of the policy and had received training concerning sexual harassment. Ms. Fisher repeatedly resisted McDonald's harassing conduct, but did not inform anyone else at EDS that she was being harassed until May, 2001, when she first reported McDonald's behavior to an EDS officer.

As soon as it received the complaint, EDS immediately obtained a written statement from Ms. Fisher, hired its outside legal counsel to conduct an investigation, and told McDonald he could not take any action in retaliation against Plaintiff. During the period of the investigation, McDonald was on vacation for part of the time and was required to work from home for part of the time. During some portion of the investigation period, McDonald was permitted to work in the office, and EDS separated Plaintiff and McDonald by asking Plaintiff to work from home with pay.

The results of the investigation found Ms. Fisher's claims against McDonald to be unsubstantiated, and EDS therefore took no disciplinary action against him. EDS did advise McDonald that disciplinary action would be taken if substantiated complaints were made in the future. Although Ms. Fisher had initially expressed her desire to remain in her job, she felt uncomfortable returning to work for McDonald once the investigation concluded. EDS responded by giving her access to its internal job posting board, assigning an employee to assist her in her job search, and providing Ms. Fisher 90 days' paid leave to conduct a job search. No EDS positions were available in Iowa for which Ms. Fisher was qualified and she was unwilling to relocate outside the state. When no job was found, EDS terminated Ms. Fisher on August 28, 2002, offering her a severance payment conditioned on waiver of any claims against EDS or McDonald. She declined to provide such a waiver and this lawsuit ensued.

II. Standard of Review

The purpose of summary judgment is to "pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required." Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir.1992), cert. denied, 507 U.S. 1030, 113 S.Ct. 1845, 123 L.Ed.2d 470 (1993). Summary judgment is properly granted when the record, viewed in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences, shows 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); Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994). The Court does not weigh the evidence nor make credibility determinations; rather the court only determines whether there are any disputed issues and, if so, whether those issues are both genuine and material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact based on the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Once the moving party has carried its burden, the nonmoving party must go beyond its allegations and the pleadings and, by affidavits or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(c), (e); Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Anderson, 477 U.S. at 257, 106 S.Ct. 2505. Accordingly, the nonmovant "must make a sufficient showing on every essential element of its case for which it has the burden of proof at trial." Wilson v. Southwestern Bell Tel. Co., 55 F.3d 399, 405 (8th Cir. 1995).

III. Analysis

On this motion, Defendants argue that 1) EDS is entitled to summary judgment on its affirmative defense to all of Plaintiff's sexual harassment and discrimination claims; 2) that EDS is also entitled to summary judgment on Ms. Fisher's retaliation claim; 3) that her common law claims for wrongful termination and intentional infliction of emotional distress are preempted by the ICRA; and 4) that EDS cannot be held vicariously liable for McDonald's alleged assault and battery of Ms. Fisher or for intentional infliction of emotional distress resulting from it. The Court considers each of these arguments in turn below.

A. Ellerth/Faragher Affirmative Defense to Title VII Sexual Harassment Claim

Plaintiff's claims for sexual harassment and discrimination are raised under both Title VII and the ICRA. As the ICRA was modeled after Title VII of the United States Civil Rights Act, Iowa courts traditionally have looked to federal law for guidance in evaluating hostile work environment and sexual harassment claims brought under the ICRA. Vivian v. Madison, 601 N.W.2d 872, 873 (Iowa 1999); Lynch v. City of Des Moines, 454 N.W.2d 827, 833 (Iowa 1990). See also Beard v. Flying J, 266 F.3d 792, 798 (8th Cir.2001). Accordingly, the Court will assess the strength of Plaintiff's claims under the rubric of Title VII.

EDS has not challenged Plaintiff's prima facie case on this motion, but has moved for summary judgment on its affirmative defense to Plaintiff's sexual harassment and discrimination claims under Ellerth and Faragher. Burlington Industries v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 2293, 141 L.Ed.2d 662 (1998). In Ellerth and Faragher, the Supreme Court provided an affirmative defense to an employer's vicarious liability under Title VII for an employee's hostile work environment claim based on a supervisor's harassment, holding that:

When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages ... [which] comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Ellerth, 524 U.S. at 765, 118 S.Ct. 2257; Faragher, 524 U.S. at 807, 118 S.Ct. 2275. See also Todd v. Ortho Biotech, Inc., 175 F.3d 595, 597 (8th Cir.1999).

1. Availability of the Defense: Quid Pro Quo as "Tangible Employment Action"

Plaintiff argues the harassment she experienced is actionable as both "quid pro quo" sexual harassment¹ and "hostile work environment" sexual harassment,² and that EDS is not entitled to the affirmative defense on her "quid pro quo" claim. The Supreme Court has found that the...