Stoddard v. Be & K, Inc.

• Decision Date: 29 January 2014
• Docket Number: No. 3:12–cv–00063–JEG.,3:12–cv–00063–JEG.
• Parties: Corrina R. STODDARD, Plaintiff, v. BE & K, INC.; BE & K Construction Company, LLC; KBR Construction Company, LLC; and Kevin Jones, Defendants.
• Court: U.S. District Court — Southern District of Iowa

993 F.Supp.2d 991

Corrina R. STODDARD, Plaintiff,

v.BE & K, INC.; BE & K Construction Company, LLC; KBR Construction Company, LLC; and Kevin Jones, Defendants.

No. 3:12–cv–00063–JEG.

United States District Court,

S.D. Iowa,

Davenport Division.

Jan. 29, 2014.

Robert Scott Gallagher, Peter Glenn Gierut Gallagher Millage & Gallagher PLC, Bettendorf, IA, for Plaintiff.

Timothy M. Feeney, McCarthy Callas & Feeney PC, Rock Island, IL, Martha L. Shaff, Betty Neuman & McMahon PLC, Davenport, IA, for Defendants.

ORDER

JAMES E. GRITZNER, Chief Judge.

This matter comes before the Court on Motion for Summary Judgment by Defendants BE & K, Inc.; BE & K Construction Company, LLC; KBR Construction Company, LLC ¹ (collectively, BE & K); and Kevin Jones (Jones). Plaintiff Corrina R. Stoddard ² (Stoddard) resists. A hearing on the Motion was conducted on December 19, 2013. Attorney Robert Scott Gallagher was present on behalf of Plaintiff, attorney Martha Shaff was present on behalf of BE & K, and attorney Timothy M. Feeney was present on behalf of Jones. The Motion is fully submitted and ready for disposition.

I. FACTUAL BACKGROUND³

Stoddard began working for BE & K Construction Company on June 9, 2008. Stoddard was assigned to work as a planner's assistant for the Archers Daniels Midland Company (ADM), and her primary job responsibility was data entry. Jones was hired at BE & K as Project Site Manager on August 18, 2008. Stoddard was assigned to assist Jones with data entry in developing a Performance Metrics Data Base—a system which measured the performance of BE & K employees.

In the second week of January 2009, ADM employees expressed concern to Jones and Beverly Norris (Norris), Stoddard's supervisor, about Stoddard's work performance. Specifically, they were informed that Stoddard was falling behind in her assigned data entry and, Stoddard and another coworker, Dawn Gerdes (Gerdes), had been emailing about non-work related matters on company time. About one week later, Jones had a meeting with Stoddard and Gerdes to counsel them on their unprofessional behavior. Jones took Stoddard and Gerdes into a small room and screamed and yelled at them for approximately ten to fifteen minutes for sending inappropriate emails regarding other BE & K employees.

On February 12, 2009, Stoddard became engaged to be married. In April 2009, when Jones found out about Stoddard's engagement, Jones questioned Stoddard about why she did not tell him. According to Stoddard, Jones approached Stoddard a few weeks later and again questioned her as to why she did not tell him she was engaged, and during that encounter, Jones briefly rubbed her shoulders. Stoddard asserts that thereafter, Jones began to ignore Stoddard in the office and tell Stoddard that he was busy when Stoddard would ask for directions on her job duties.

In April 2009, Jones was informed that Stoddard and Gerdes were again talking about other BE & K employees; particularly, he was informed that they were chatting about a company investigation into complaints of harassment by two other BE & K employees. Jones called a meeting with all of the female employees of the administrative team, which included Stoddard, to discuss the serious nature of talking about a confidential company investigation involving harassment. Jones screamed and yelled at the women and told them they were unprofessional. Jones' conduct brought some of the women to tears. Jones told the group that he was not afraid to treat them like they were in the military and he stated, “If any of you do not want to be here, then you need to leave now.” Stoddard Dep. 46:10–11, BE & K App. 7, ECF No 13–4. Stoddard responded by stating, “Sometimes I do and sometimes I don't.” Id. 46:15–16. Displeased with Stoddard's response, Jones told the group “that he would make it hell for [them] if [they] ever quit there.” Id. 46:17–18. Stoddard found it offensive that Jones screamed at a group consisting of only women and not men.

Stoddard asserts that beginning in February 2009, she made several complaints about Jones' behavior to her supervisors Norris, Jess Lockhart (Lockhart), and Cheryl Clark (Clark), as well as to the BE & K Hotline. Stoddard's complaints about Jones included that Jones ignored her, overloaded her with work, and told the women in the office that he was going to treat them like they were in the military.

On April 21, 2009, Stoddard was verbally counseled by Lockhart about her declining work performance and attitude, and Lockhartinstructed Stoddard on areas of needed improvement. Lockhart advised Stoddard that participation in office gossip and non-work related emails to coworkers must stop.

Without notifying BE & K, Stoddard failed to show up for work from May 12 through May 14, 2009. Stoddard returned to work on May 15 with a doctor's note explaining the reason for her absence. Stoddard asserts she was absent from work because of symptoms related to depression and stomach sickness. After arriving at work on May 15, Stoddard was instructed to go into the break room to meet with Jones and Clark. Stoddard sat in the room while Jones and Clark contacted the KBR HR/Labor Relations Department to determine how to handle Stoddard's attendance issues. BE & K's attendance policy provides varying levels of employee discipline based on the number and context of the employee's absences. After waiting approximately 45 minutes, an ADM employee approached Stoddard from the hallway and asked her why she was waiting for paperwork if she was being fired. Stoddard then walked out of the break room and turned in her ADM identification card, office keys, safety eye wear, and helmet to the front gate. At no point was Stoddard expressly informed by Jones or Clark that she was being terminated.

Stoddard filed suit on May 14, 2012, after receiving right to sue letters from the Iowa Civil Rights Commission and Equal Employment Opportunity Commission. Stoddard alleges claims for hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Chapter 216 of the Iowa Civil Rights Act (ICRA). Stoddard also asserts claims for intentional infliction of emotional distress against Defendants, and aiding and abetting against Jones. BE & K and Jones moved for summary judgment alleging (1) Stoddard failed to make a prima facie showing of sexual harassment/hostile work environment and retaliation under Title VII and the ICRA, (2) Stoddard's claim for intentional infliction of emotional distress is pre-empted by the ICRA, and (3) even if it was not pre-empted, the claim for intentional infliction of emotional distress fails as a matter of law. Jones further alleges that because Stoddard's claims for harassment/hostile work environment and retaliation fail, Stoddard's claim against him for aiding and abetting also fails. Stoddard resists, arguing there are material facts at issue precluding summary judgment.

II. JURISDICTION

This Court has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1331 as the claims arising under Title VII of the Civil Rights Act of 1964 are matters of federal law. This Court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367 as the state law claims are so related to the federal claims that they form the same case or controversy.

III. DISCUSSIONA. Stoddard's Post–Deposition Affidavit

In support of her resistance to summary judgment, Stoddard submitted a post-deposition affidavit, ECF No. 21–4, providing statements that supplement, embellish, and contradict statements made in her prior sworn deposition. Generally, a district court must consider an otherwise admissible affidavit, “ unless that affidavit contradicts previous deposition testimony.” See Popoalii v. Corr. Med. Servs., 512 F.3d 488, 498 (8th Cir.2008) (emphasis added). In addition, a party cannot generate issues of fact by submitting an affidavit that contradicts prior deposition testimony without showing special circumstances reflecting confusion or mistake in the earlier deposition. See Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364–65 (8th Cir.1983) (noting that “[i]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own earlier testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”); see also Am. Airlines, Inc. v. KLM Royal Dutch Airlines, Inc., 114 F.3d 108, 112 (8th Cir.1997) (concluding that the plaintiff “attempted to manufacture a material issue of fact just to evade the impact of summary judgment by inexplicably changing his testimony. Thus, the district court correctly disregarded the subsequent manufactured contradictory testimony of [the plaintiff] and concluded that no factual issue for trial existed....”).

Although much of Stoddard's affidavit simply rephrases her prior deposition testimony in a light most favorable to her claims, the affidavit also contains statements that substantially embellish and contradict her prior sworn statements. In the affidavit, Stoddard uses such terms as “consistently,” “repeatedly,” “systematically,” and “numerous” to refer to only two distinct occasions where Jones yelled at her and the other women in the office.⁴ Stoddard Aff. ¶¶ 9, 12, 18, & 26, Pl.'s App. 15–17, ECF No. 21–4; Stoddard Dep. 51, ECF No. 21–4. In her affidavit, Stoddard also embellishes her prior deposition testimony by asserting that “Mr. Jones began retaliating against [sic] me by repeatedly screaming at me in front of the other employees.” Stoddard Aff. ¶ 12, ECF No. 21–4. Whereas, in her deposition, Stoddard stated that Jones yelled at all of the women in the office on only two occasions, and he never yelled at her individually. Stoddard Dep. 47:15–17, Pl.'s App. 6, ECF No. 21–4 (Q. Did Kevin Jones ever pull you aside individually and scream at you by...