Riggs v. County of Banner

• Decision Date: 24 August 2001
• Docket Number: Nos. 7:98CV5036 to 7:98CV5040.,s. 7:98CV5036 to 7:98CV5040.
• Citation: 159 F.Supp.2d 1158
• Parties: Blaise RIGGS, Linden Snyder, Van Harpold, Wendell Domina, and Jerry Soule, Plaintiffs, v. COUNTY OF BANNER, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

Page 1158

159 F.Supp.2d 1158

Blaise RIGGS, Linden Snyder, Van Harpold, Wendell Domina, and Jerry Soule, Plaintiffs, v. COUNTY OF BANNER, et al., Defendants.

Nos. 7:98CV5036 to 7:98CV5040.

United States District Court, D. Nebraska.

August 24, 2001.

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Plaintiffs' Counsel: Henry F. Bailey, Jr., Bailey, Stock Law Firm, Cheyenne, WY, Kay A. Nehring, Nehring Law Firm, Alpine, TX.

Defense Counsel: Robert M. Brenner, Gering, NE, Richard L. Boucher, Kimberly L. Sturzenegger, Boucher Law Firm, Lincoln, NE.

MEMORANDUM AND ORDER

KOPF, District Judge.

This matter is before the court on the defendants' motions for summary judgment¹ regarding the plaintiffs' remaining claims.² Upon careful consideration of the pleadings, evidence,³ and briefs submitted by the parties, I conclude that summary judgment should be granted in Case Nos. 7:98CV5037 (plaintiff Linden Snyder), 7:98CV5038 (plaintiff Van Harpold), 7:98CV5039 (plaintiff Wendell Domina), and 7:98CV5040 (plaintiff Jerry Soule), and should be granted in part and denied in part in Case No. 7:98CV5036 (plaintiff Blaise Riggs).

I. BACKGROUND

The plaintiffs are current and former employees of Banner County, Nebraska (County): Blaise Riggs (Riggs) was employed as a road equipment operator from May 1995 until February 11, 1998, when his employment was terminated; Linden Snyder (Snyder) has been employed as a road equipment operator since August 1986; Van Harpold (Harpold) has been employed as a road equipment operator since February 1984; Jerry Soule (Soule) has been employed as a road equipment operator since February 1983; and Wendell Domina (Domina) was a shop foreman from January 1983 until his resignation in March 1999.

The defendants in each action are the County, three county commissioners, George Van Pelt (Van Pelt), Klayton Johnson (Johnson), and Dale Shaul (Shaul), and the plaintiffs' former supervisor, Charles Person (Person). Person served as superintendent of the County's road and weed department from 1980 until his retirement on December 31, 1997.

The plaintiffs' claims concern events which occurred after June 1996, when a female county employee, Lynette Schleicher (Schleicher), who worked as a secretary for the road and week department, was transferred from the courthouse to the shop building. The plaintiffs contend that Schleicher received preferential treatment and that they meanwhile were subjected to a hostile work environment. The plaintiff Riggs also contends that he was fired by the county commissioners for reporting that he had witnessed Schleicher performing oral sex on the defendant Person on January 15, 1998, in the shop building office, and because he was prepared to report to authorities that the county commissioners had received supplies and services from the road and weed department without payment.

II. DISCUSSION

Summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Egan v. Wells Fargo Alarm Servs., 23 F.3d 1444, 1446 (8th Cir.1994). It is not the court's function to weigh evidence in the summary judgment record to determine the truth of any factual issue. Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir.1999). In passing upon a motion for summary judgment, the district court must view the facts in the light most favorable to the party opposing the motion. Dancy v. Hyster Co., 127 F.3d 649, 652 (8th Cir.1997).

In order to withstand a motion for summary judgment, the nonmoving party must substantiate their allegations with "`sufficient probative evidence [that] would permit a finding in [their] favor on more than mere speculation, conjecture, or fantasy.'" Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir.1994) (quoting Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir.1992)). "A mere scintilla of evidence is insufficient to avoid summary judgment." Id. Essentially the test is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

I.

Title VII, Gender-Based Disparate Treatment (Count I of all Amended Complaints)

The plaintiffs, all of whom are males, allege that they were discriminated against by their employer, Banner County,⁴ because Lynette Schleicher, a female employee, received preferential treatment. In particular, it is alleged that she was treated more favorably than the plaintiffs by "being paid for 40 hours per week of work for a job that took approximately 20 hours a week to do, receiving raises from the county commissioners on a more frequent basis than male employees who had been employed by the road department for a longer time period than she had, receiving larger raises from the county commissioners than other employees who had been employed by the road department for a longer time period than she had, being allowed to switch her days off, being given comp time, being allowed to discipline other male road department employees when she had no authority to do so, having her car filled with gas by her supervisor, Charles Person, from the county gas tank without paying for the gas, making and receiving personal phone calls on the job, engaging in art work unrelated to her employment while on the job, playing cribbage during work time, and being frequently taken to lunch, to town, and out in the country during work hours by her supervisor, when these were not part of her job duties." (Amended complaint,⁵ ¶ 21) The plaintiffs allege that they suspected Schleicher of engaging in sexual relations with the defendants Person and Johnson. (Amended complaint, ¶¶ 22-24)

Even if the plaintiffs' allegations are true, sexual favoritism has been held by a clear majority of courts not to constitute actionable discrimination under Title VII. See, e.g., Womack v. Runyon, 147 F.3d 1298, 1300 (11th Cir.1998) (Title VII does not encompass a claim based on favoritism shown to a supervisor's paramour); Taken v. Oklahoma Corp. Com'n, 125 F.3d 1366, 1370 (10th Cir.1997) ("Favoritism, unfair treatment and unwise business decisions do not violate Title VII unless based on a prohibited classification."); Becerra v. Dalton, 94 F.3d 145, 149-50 (4th Cir.1996) (no sexual discrimination under Title VII even if supervisor granted plaintiff's coworker job benefits in exchange for sexual favors from coworker); DeCintio v. Westchester County Medical Center, 807 F.2d 304, 306-07 (2nd Cir.1986) ("The proscribed differentiation under Title VII ... must be a distinction based on a person's sex, not on his or her sexual affiliations."); Thomson v. Olson, 866 F.Supp. 1267, 1272 (D.N.D.1994) (preferential treatment on the basis of a consensual relationship between a supervisor and an employee is not a cognizable sex discrimination claim under Title VII), aff'd, 56 F.3d 69, 1995 WL 296399 (8th Cir.1995) (Table). See also Miscellaneous Docket Matter # 1 v. Miscellaneous Docket Matter # 2, 197 F.3d 922, 926-27 (8th Cir.1999) (citing with approval DeCintio and Taken, in holding that district court did not err in refusing to permit discovery in Title VII action regarding voluntary romantic or sexual relationships). The Equal Employment Opportunity Commission has also taken this position. See EEOC Policy Guidance on Employer Liability under Title VII for Sexual Favoritism, EEOC Notice No. 915-048, at 2 (Jan. 12, 1990) ("An isolated instance of favoritism toward a `paramour' (or spouse, or a friend) may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders."). But cf. 29 CFR § 1604.11(g) ("Where employment opportunities or benefits are granted because of an individual's submission to the employer's sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit.")

The plaintiffs have not presented any direct evidence⁶ that they were discriminated against with respect to their compensation, terms, conditions, or privileges of employment because they were male. See 42 U.S.C. § 2000e-2(a)(1) (defining unlawful employer practices). Their evidence concerning Schleicher's alleged relationships with Person and Johnson does not create an inference that the defendants were motivated to discriminate against male employees, and is irrelevant to the plaintiffs' Title VII claims. See Miscellaneous Docket Matter # 1, supra.

In the absence of any direct evidence of discrimination, the plaintiffs' claims are analyzed under the three-stage, burden-shifting standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817...