Gaub v. Prof'l Hosp. Supply, Inc.

• Decision Date: 10 January 2012
• Docket Number: No. CIV. 1:10–313 WBS.,CIV. 1:10–313 WBS.
• Citation: 845 F.Supp.2d 1118
• Parties: Randy F. GAUB and Milissa M. Gaub, Plaintiffs, v. PROFESSIONAL HOSPITAL SUPPLY, INC., a California Corporation, Defendant.
• Court: U.S. District Court — District of Idaho

845 F.Supp.2d 1118

Randy F. GAUB and Milissa M. Gaub, Plaintiffs,

v.PROFESSIONAL HOSPITAL SUPPLY, INC., a California Corporation, Defendant.

No. CIV. 1:10–313 WBS.

United States District Court,

D. Idaho.

Jan. 10, 2012.

Michael G. Miller, Perry, Johnson, Anderson, Miller & Moskowitz, LLP, Santa Rosa, CA, Richard H. Greener, William Charles Tharp, Greener Burke Shoemaker PA, Boise, ID, for Plaintiffs.

John A. Bailey, Jr., Carol Tippi Volyn, Racine Olson Nye Budge & Bailey, Pocatello, ID, Frederick J. Hahn, III, Racine Olson Nye Budge & Bailey, Chtd, Idaho Falls, ID, for Defendant.

MEMORANDUM AND ORDER RE: MOTIONS FOR SUMMARY JUDGMENT

WILLIAM B. SHUBB, District Judge.

Plaintiffs Randy F. Gaub and Milissa M. Gaub brought this action against their employer, defendant Professional Hospital Supply, Inc. (“PHS”), alleging retaliation and sexual harassment pursuant to Title VII of the Civil Rights Act of 1964. Currently before the court are PHS's motions for summary judgment of all claims pursuant to Federal Rule of Civil Procedure 56.

I. Relevant Facts

It is undisputed that the Gaubs were both employees of PHS. Randy Gaub was hired by PHS as a speciality representative on July 9, 2002, and became a full line representative in May of 2007. (Bailey Aff. Exs. 1, 2 (Docket No. 37).) Milissa Gaub became a PHS employee in January of 2008, when she was hired as a full line sales representative. (Bailey Aff. Ex. 6.) In their work, the Gaubs were both directly supervised by Bob Umdenstock, another PHS employee. (Def.'s Statement of Material Undisputed Facts II ¶ 3 (Docket No. 38); R. Gaub Aff. ¶ 2 (Docket No. 50.).)

Mrs. Gaub suffers from chronic anxiety and chronic depression. (Bailey Aff. Ex. 9 (“M. Gaub Dep. I”) at 27:5–28:25, 50:14–17.) She is also an alcoholic. ( Id. at 58:16.) In March of 2008, she was treated for alcoholism at Intermountain Hospital, a drug, alcohol, and psychiatric treatment facility, where she stayed for less than a week. ( Id. at 61:10; Tharp Aff. Ex. A (“R. Gaub. Dep. II”) at 275:3–16 (Docket No. 43); M. Gaub Aff. ¶ 14 (Docket No. 42).)

In May of 2008, Mrs. Gaub and Mr. Umdenstock traveled to Pocatello, Idaho in order to meet with several of Mrs. Gaub's customers. (Bailey Aff. Ex. 19 (“Umdenstock Dep. I”) at 71:1–73:17.) On May 20, 2008, Mrs. Gaub and Mr. Umdenstock made a sales call to Portneuf Medical Center (“Portneuf”). ( Id. at 73:9–20; Tharp Aff. Ex B (“M. Gaub Dep. II”) at 101:20–25.) Mrs. Gaub acknowledges that there were some complaints regarding her performance, but characterizes the fact that Mr. Umdenstock came along on the trip as “routine.” (Bailey Aff. Ex. 10 at 7.) According to PHS, Mr. Umdenstock accompanied Mrs. Gaub on this trip because of complaints Portneuf had made about Mrs. Gaub's performance. (Tharp Aff. Ex. C (“Umdenstock Dep. II”) at 71:7–18.)

After meeting with Portneuf, Mr. Umdenstock and Mrs. Gaub returned to their hotel. Initially they returned to their separate rooms to work individually, but later met to go over the earlier meeting. (M. Gaub Dep. II at 115:15–23, 118:18–22.) According to Mrs. Gaub, they met at the hotel bar. ( Id. at 118:11–15.) They discussed some of the concerns Portneuf had regarding Mrs. Gaub's performance, and Mr. Umdenstock suggested ways in which Mrs. Gaub could improve. ( Id. at 112:13–114:1.) Mrs. Gaub states that during this meeting they had several drinks. ( Id. 119:4–6.) According to Mr. Umdenstock, the two did not begin drinking until after they had concluded their work-related discussion. (Umdenstock Dep. II at 84:4–7.)

According to Mrs. Gaub, Mr. Umdenstock then suggested that they go out to dinner at a nearby restaurant and she felt as though she was obligated go along with his suggestion as he was her boss. (M. Gaub Dep. II at 121:18–123:1.) At dinner, both Mrs. Gaub and Mr. Umdenstock continued to drink. ( Id. at 123:5–17.) Following dinner, the two returned to the hotel bar, where they had several more alcoholic beverages. ( Id. at 124:3–19.) Mrs. Gaub characterizes her decision to consume alcoholic drinks before, after, and during dinner as “voluntary” and as decisions she made “of her own accord” or her “own free will.” ( Id. at 119:7–17, 123:9–13, 125:16–19.) She also states, however, that she “felt obligated” to have drinks with Mr. Umdenstock. ( Id. at 128:17–18.)

According to Mrs. Gaub, after the two left the hotel bar to return to their rooms, they stopped in the hallway in front of his room and Mr. Umdenstock turned around and kissed her. (M. Gaub Dep. I at 134:1–15; Bailey Aff. Ex. 14 at PHS00315.) They then entered his room, where they “fooled around.” (Bailey Aff. Ex. 14 at PHS00315.) Both were very intoxicated by this point. ( Id.) She then returned to her hotel room. (M. Gaub Dep. II at 137:5–18.) Some time later, she contends that he called her and asked “What's taking you so long?,” and she went back to his hotel room, where she found him lying naked in bed. (Bailey Aff. Ex. 14 at PHS00315; M. Gaub Dep. I at 145:18–146:6.) She claims the two then engaged in sexual relations. (M. Gaub Dep. II at 144:6–8.) Mrs. Gaub testified that although Mr. Umdenstock never explicitly used his position as her supervisor to force her to have sex with him, Mr. Umdenstock was a “very intimidating fellow,” and she felt “obligated” to have sex with him. ( Id. at 145:13–147:25.)

Mr. Umdenstock claims that it was Mrs. Gaub who kissed him outside of his hotel room, and that ever since they began drinking before dinner, she had indicated a desire to have sex with him. (Bailey Aff. Ex. 14 at PHS00311.) According to him, Mrs. Gaub returned to her room after kissing him, but called him sometime after midnight to again proposition him. ( Id. at PHS00311–12.) He states that he rejected her offer and did not have any other contact with her until the next morning, when they met in the hotel lobby in order to go on another sales call. ( Id. at PHS00312.)

After returning from Pocatello, Mrs. Gaub fell into a depressive, anxious state. (Bailey Aff. Ex. 10 at 1.) She remained in bed for a week, consuming approximately two bottles of wine a day. ( Id.; M. Gaub Dep. II at 158:6–159:14.) She did not initially tell her husband what had transpired in Pocatello between herself and Mr. Umdenstock.(R. Gaub Dep. II at 167:20–168:12.)

On May 26, 2008, Mrs. Gaub told her husband to call Mr. Umdenstock and tell him that she was resigning. (Bailey Aff. Ex. 10 at 1; R. Gaub Dep. II at 198:3–13, 278:15–18; Bailey Aff. Ex. 17 at 3.) Mr. Umdenstock asked Mr. Gaub to have her call him, and told Mr. Gaub that he would need written confirmation of her resignation so that he could notify her customers. (R. Gaub Dep. II at 281:5–282:15.) On May 30, 2008, at Mr. Umdenstock's urging and as requested by Mrs. Gaub, Mr. Gaub sent Mr. Umdenstock an email from Mrs. Gaub's computer confirming her resignation. (M. Gaub Dep. II at 155:11–157:13; R. Gaub Dep. II at 198:3–199:6, 278:3–279:6; Bailey Aff. Ex. 10 at 2.)

The next day, Mrs. Gaub told her husband that she and Mr. Umdenstock had engaged in sexual relations while in Pocatello. (M. Gaub Dep. II at 167:20–168:12.) After learning about this, Mr. Gaub called John Abele, the Vice President of Sales for PHS, to report the incident. (R. Gaub Dep. I at 171:2–13; Bailey Aff. Ex. 17 at 3.) He further indicated that he could no longer work with Mr. Umdenstock as his supervisor, and requested that Mr. Umdenstock be fired. (R. Gaub Dep. I 171:2–13; Bailey Aff. Ex. 17 at 3.) It was arranged that from then on Mr. Gaub would report to Mr. Abele. (Abele Dep. I at 48:22–25; Bailey Aff. Ex. 17 at 3.) Mr. Gaub also reported the incident to Jed Marcus, Vice President of Human Resources, and lodged a complaint against Mr. Umdenstock. (R. Gaub Dep. II at 216:6–217:10; R. Gaub Aff. Ex. CC.)

PHS conducted an internal investigation of the incident involving Mrs. Gaub and Mr. Umdenstock. (Bailey Aff. Ex. 10 at 1.) As part of the investigation, they flew Mrs. Gaub to San Diego, California, where she was interviewed by Mr. Abele and Mr. Marcus. (M. Gaub Dep. I at 159:17–24.) When Mr. Gaub asked Mr. Abele whether Mrs. Gaub needed to bring an attorney along to the San Diego meeting, Mr. Abele indicated that that would not be necessary and that it was not that kind of a meeting. ( Id. at 160:1–18; 237:21–238:4.)

According to Mrs. Gaub, the meeting was not limited to a discussion of the incident involving herself and Mr. Umdenstock, and at the end of the meeting, the men mentioned that her position was being restructured. (M. Gaub Aff. ¶ 15.) Mr. Abele contends that the sole topic of discussion was the events that arose in Pocatello, but agrees that PHS did decide to eliminate her position because of performance issues specific to Mrs. Gaub and a general need to restructure the position. (Abele Dep. II at 31:6–19, 33:20–25; Bailey Aff. Ex. 10 at 2.) Both Mrs. Gaub and Mr. Abele were under the impression that she had resigned before flying to San Diego to participate in the investigation. (Abele Dep. II at 30:10–20; M. Gaub Aff. ¶ 15.)

Some time after the investigation had concluded, PHS offered Mrs. Gaub a severance agreement, which provided her $10,000 in severance pay in exchange for an agreement to release any claims she might have against PHS. (Abele Dep. II at 32:4–14; Bailey Aff. Ex. 13; M. Gaub Dep. II at 239:1–6.) The agreement allowed her twenty-one days to consider the offer, and another seven days to rescind the offer after signing. (Bailey Aff. Ex. 13.) Mrs. Gaub signed the agreement on the twenty-first day and was duly paid $10,000. ( Id.) Since then, she has made no effort to rescind the agreement or to return the $10,000. (Bailey Aff. Ex. 10 at 2.) According to Mrs. Gaub, she does not remember signing the Severance Agreement as she was intoxicated at the time, and it was her understanding that her husband had to prop her up in bed so that she could sign the document.¹ (M. Gaub Dep. II at 239:15–18.). Mrs. Gaub is a college...