Jernigan v. Alderwoods Group, Inc., Civil No. 05-1420-PK.

Decision Date21 May 2007
Docket NumberCivil No. 05-1420-PK.
Citation489 F.Supp.2d 1180
PartiesTami JERNIGAN and Jennifer Haller, Plaintiffs, v. ALDERWOODS GROUP, INC., dba Young's Funeral Home, Alderwoods (Oregon), Inc., and Bob Baker, individually, Defendants.
CourtU.S. District Court — District of Oregon

Craig A. Crispin, Shelley D. Russell, Crispin Employment Lawyers, Portland, OR, for Plaintiffs.

David G. Hosenpud, Leah C. Lively, Lane Powell, PC, Alan M. Scott, Galton Scott & Colett, LLP, Portland, OR, for Defendants.

ORDER

MARSH, District Judge.

Magistrate Judge Paul Papak filed his Findings and Recommendation on April 4, 2007. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(3) and Fed.R.Civ.P. 72(b). When either party objects to any portion of the Magistrate's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate's report. See 28 U.S.C. § 636(b)(1)(C); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982).

Plaintiffs have filed timely objections. I have, therefore, given the file of this case a de novo review.

I find no error. Accordingly, I ADOPT the Findings and Recommendation # 70 of Magistrate Judge Papak. Defendants' Motion for Summary Judgment (# 26) is granted with respect to Haller's claim for sexual harassment under Title VII and Oregon law, both plaintiffs' claims for retaliation under Title VII and Oregon law, both plaintiffs' claims for wrongful discharge, and negligent supervision and retention. Defendants' Motion for Summary Judgment (# 26) is denied with respect to Jernigan's claim for sexual harassment under Title VII and Oregon law. Defendants' Motion for Summary Judgment on plaintiffs' claim for punitive damages is denied. Defendant Bob Baker is dismissed from this case. Defendants' Motion to Supplement the Summary Judgment Record (# 60) and plaintiffs' Motion to Strike the Declaration of Guinevere Jones (# 64) are denied as moot. Defendants' Motion to Strike Plaintiffs' Evidence in Support of Opposition to Motion for Summary Judgment (# 49) is granted in part and denied in part as follows: objections to Exhibits 51, 52, 55 and 61 are sustained; all other objections are overruled.

IT IS SO ORDERED.

FINDINGS AND RECOMMENDATION/ORDER

PAPAK, United States Magistrate Judge.

Plaintiffs Tami Jernigan ("Jernigan") and Jennifer Haller ("Haller") are former employees of defendant Alderwoods Group, Inc. ("Alderwoods"). Jernigan and Haller worked at Young's Funeral Home ("Young's"), which was owned by Alderwoods. Defendant Bob Baker ("Baker") was the Location Manager at Young's during plaintiffs' employment.1 Haller and Jernigan filed suit on September 13, 2005, claiming sexual harassment and retaliation under Title VII and Oregon law, wrongful discharge, and negligent supervision and retention. Haller also filed a claim for sexual battery that she voluntarily dismissed at oral argument. This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.

Before this court are defendants' Motion for Summary Judgment (# 26) on all plaintiffs' claims, including their claims for punitive damages, defendants' Motion to Strike Plaintiffs' Evidence in Support of Opposition to Motion for Summary Judgment (# 49), defendants Motion to Supplement the Summary Judgment Record (# 60), and plaintiffs' Motion to Strike the Declaration of Guinevere Jones (# 64). For the reasons set forth below, defendants' motion for summary judgment should be granted in part and denied in part. Defendants' motion to strike is granted in part and denied in part as specified below. Defendants' motion to supplement the summary judgment record is denied as moot, and plaintiffs' motion to strike is denied as moot. Defendant Baker should be dismissed from this lawsuit.

LEGAL STANDARD

A party is entitled to summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Bhan v. NME Hospitals, Inc., 929 F.2d 1404, 1409 (9th Cir. 1991).

The moving party carries the initial burden of proof. The party meets this burden by identifying portions of the record on file which demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the initial burden is satisfied, the burden shifts to the nonmoving party to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Id.

The court must view the evidence in the light most favorable to the non-moving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir.1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir.1976). The inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir.1989). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Life Ins. Co. of N. America., 638 F.2d 136, 140 (9th Cir.1981).

The Ninth Circuit has set a high standard for granting summary judgment in employment discrimination cases. Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1410 (9th Cir.), cert. denied, 519 U.S. 927, 117 S.Ct. 295, 136 L.Ed.2d 214 (1996) (courts should require very little evidence to survive summary judgment in a discrimination case, because ultimate question is one that can be resolved only through searching inquiry that is most appropriately conducted by the fact-finder, upon a full record).

However, deference to the nonmoving party does have some limit. The non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Self-serving affidavits will not establish a genuine issue of material fact if they fail to state facts based on personal knowledge or are too conclusory. Rodriguez v. Airborne Express, 265 F.3d 890, 902 (9th Cir.2001). The "mere existence of a scintilla of evidence in support of the [non-moving party's] position would be insufficient." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Therefore, where "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

STATEMENT OF FACTS
Background

Alderwoods operates funeral homes and cemeteries in North America. One of Alderwoods' funeral homes is Young's, located in Tigard, Oregon. Young's employed Funeral Directors, a Local Administrator, pre-need salespeople, and a Location Manager. Funeral Directors, Location Administrators and pre-need salespeople are equal positions organizationally. The Location Manager supervised the Funeral Directors and Location Administrators. A Sales Manager supervised the pro-need salespeople, but did not necessarily work at the Young's location.2 For clarity, the following graphic demonstrates the relevant part of the organizational structure of Alderwoods:

                                REGIONAL GENERAL MANAGER (Head, C. LaFollette)
                                              |
                                      GENERAL MARKET MANAGER (Edgerly)
                                      /                           \
                          LOCATION MANAGER                         SALES MANAGER
                     (Baker then D. LaFollette)                    (Kleumpke) |
                     |        |   \                                           |
                     |        |    Secretary/Bookkeeper at Young's (Haller)   |
                     |        |                                               |
                   FUNERAL    LOCATION                           PRE-NEED SALESPEOPLE
                   DIRECTORS  ADMINISTRATORS                     (Jernigan)
                   (Waud,     (Riggleman)
                   Cafferky
                   Gatchell
                   Morris
                   Raney)
                

Robert Baker ("Baker") was the Location Manager at Young's from March 1996 until May 10, 2004, when he was terminated. Chris Waud ("Waud"), Bob Cafferky ("Cafferky"), and Ernest Gatchell ("Gatchell") were Funeral Directors at Young's. Joseph Kluempke ("Kluempke") was a Sales Manager for Alderwoods from 2001 until April 10, 2005.

Alderwoods published and disseminated an Employee Handbook ("the Handbook"). The Handbook referred to a section in Alderwoods' Policy Manual entitled "Respectful Workplace", ("the Policy"), which included a section on sexual harassment. The Policy defined sexual harassment with examples. The Policy set forth a reporting structure for complaints of sexual harassment, and stated that it was a violation of the Policy to `retaliate against an employee making a complaint of sexual harassment. Jernigan and Haller received the Handbook and read the Policy on sexual harassment. Haller knew she could report sexual harassment to her immediate supervisor or to Human Resources, a Vice President, or the company helpline if the complaint involved her supervisor. Jernigan knew she could report sexual harassment to Human Resources if the allegation involved her supervisor.

Jernigan

On January 31, 2002, Alderwoods hired Jernigan to work as a pre-need salesperson at Young's. Kluempke was Jernigan's supervisor. Kluempke's supervisor was Brett Edgerly ("Edgerly"), Alderwoods' General Market Manager.

On January 15, 2003, Kluempke disciplined Jernigan for poor performance. In August 2003 and April 2004, Jernigan received certificates for meeting sales goals of $100,000 from the Mayflower National Life Insurance Company, a company affiliated with...

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