JOSEPH C. PASTORESSA, Judge.
Upon the following papers numbered 1 to 19 read on this motion for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers (001) 1 — 11; Notice of Cross Motion and supporting papers_; Answering Affidavits and supporting papers 12-16; Replying Affidavits and supporting papers 17-19; Other__; (
and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion (001) by the defendant, Town of Smithtown, pursuant to CPLR 3212 for an order granting summary judgment dismissing the complaint against it is granted and the complaint is dismissed with prejudice.
The complaint of this action asserts that on January 30, 2007, the plaintiff, Lenore Goldman, while walking on a sidewalk located at 85 Ashland Drive, Kings Park, Town of Smithtown, New York, was caused to fall due to the allegedly dangerous and defective unlevel condition of the sidewalk. A cause of action asserting negligence against the Town of Smithtown has been set forth.
The defendant Town of Smithtown seeks summary judgment dismissing the complaint on the basis that it did not receive prior written notice of the condition complained of as required by Town Law Section 65-a of the State of New York and Code of the Town of Smithtown § 245-13 which provides that written notice of a claimed defect of a sidewalk shall be filed with the Town Clerk 15 calendar days prior to the event giving rise to the alleged claim.
The plaintiff opposes this motion on the basis that notice of the claimed defect was provided to the Parks Department of the Town of Smithtown by Town Council Woman Joanne Gray on August 28, 2006. It is further opposed on the basis that the Code of the Town of Smithtown § 245-13 is unconstitutional in that it does not provide that notice may be given to the Town Superintendent of Highways as provided by Town Law Section 65-a of the State of New York.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented, ( Sillman v Twentieth Century-Fox Film Corporation , 3 NY2d 395). The movant has the initial burden of proving entitlement to summary judgment ( Winegrad v N.Y.U. Medical Center , 64 NY2d 851). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v N. Y. U. Medical Center , supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form . . . and must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212[b]; Zuckerman v City of New York , 49 NY2d 557). The opposing party must present facts sufficient to require a trial of any issue of fact by producing evidentiary proof in admissible form, ( Joseph P. Day Realty Corp. v Aeroxon Prods. , 148 AD2d 499 [2nd Dept 1979]) and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established ( Castro v Liberty Bus Co. , 79 AD2d 1014 [2nd Dept 1981]). Summary judgment shall only be granted when there are no issues of material fact and the evidence requires the court to direct a judgment in favor of the movant as a matter of law ( Friends of Animals v Associated Fur Mfrs. , 46 NY2d 1065).
In support of this motion the defendant has submitted, inter alia, an attorney's affirmation; copies of the complaint and answer; plaintiff's verified and amended verified bill of particulars; a copy of the transcript of the examination before trial of Lenore Goldman dated November 20, 2008; the affidavit of Vincent Puleo, Town Clerk for the Town of Smithtown; and photographs. In opposing this motion, the plaintiff has submitted, inter alia, an attorney's affirmation; plaintiff's affidavit; a copy of a letter from Joanne Gray dated August 30, 2006; and copies of photographs.
The adduced testimony establishes that Lenore Goldman, on January 30, 2007 at about 5:30 p.m., was walking from her home of thirty six years located at 70 Ashland Drive, Kings Park to her neighbor's house about seven houses down the block at 85 Ashland Drive, Kings Park, on the opposite side of the street, for the purpose of having pizza for dinner. She drove her car, backed out of her driveway, traveled north, and parked in front of her friend's home before she reached her friend's driveway. The driver's side of her vehicle was closest to the street. Upon exiting her vehicle, she walked around the back of it, stepped onto the curb onto the grass and then onto the sidewalk. In front of 85 Ashland Drive was a sidewalk with a grassy medium between the curb and the sidewalk. She walked about half a car's length on the sidewalk when the right toe of her sneaker clipped a raised area of the sidewalk, causing her to fall. The sidewalk was made of individual slabs of concrete and was raised and uneven where she tripped. She had never noticed the condition before and did not know how long it was there. Lighting was not a factor and she had no difficulty seeing as she walked. She never made any complaints about the sidewalk before. After she fell, her friend, Ms. Damsky, told her that she had complained about the sidewalk to the town advising them there was a problem. There was no snow or ice on the sidewalk and the weather was clear.
A letter from Joanne Gray of the Town of Smithtown, Town Hall, dated August 30, 2006, sets forth that "The Town has been notified that your sidewalk is in need of repair. Please see the enclosed memo." The memo annexed thereto, dated August 28, 2006, directed to the attention of William Murphy and Chuck Barrett, of the Parks Department, sets forth that the following sidewalks in Kings Park pose a hazard to pedestrian traffic that may result in physical injury. Among the sidewalks listed was Ashland Drive #85.
Vincent Puleo has set forth in his supporting affidavit that he is the Town Clerk for the Town of Smithtown and has been so employed since 2006. He has responsibility to maintain the files with respect to written notice of all sidewalk defects within the Town and every written notice of defect received by the Town of Smithtown. He maintains an indexed record for all written notices of defects, including sidewalk defects, and also maintains an indexed book regarding claims made against the Town which also includes any allegations of sidewalk defects. He caused a search to be made of those indexed records and book and concludes that the Town Clerk's Office of the Town of Smithtown never received prior written notice of any defective conditions or sidewalk defects in front of the premises designated as #85 Ashland Avenue, Kings Park for the five years preceding January 30, 2007.
In New York, to establish a prima facie case of negligence, a plaintiff must prove (1) that the defendant owed a duty to plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. In order to establish the third element, proximate cause, plaintiff must show that defendant's negligence was a substantial factor in bringing about the injury. If, defendant's negligence were a substantial factor, it is considered to be a "proximate cause" even though other substantial factors may also have contributed to plaintiff's injury ( Spiegel v Fine Paint Co. 2006 NY Misc. LEXIS 2549, 236 NYLJ 51 [Sup. Ct. Nassau County 2006]). Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party (see, Espinal v Melville Snow Contractors, Inc. , 98 NY2d 136; Darby v Compagnie Natl. Air France , 96 NY2d 343.
Where, as here, a municipality has enacted a prior written notice statute pursuant to Town Law, Article 65, it may not be subjected to liability for personal injuries caused by an improperly maintained sidewalk or walkway unless either it has received prior written notice of the defect or an exception to the prior written notice requirement applies ( Wilkie v Town of Huntington , 29 AD3d 898 [2nd Dept 2006], citing to Amabile v City of Buffalo , (citations omitted); Lopez v GJ Rudolph , (citations omitted); Gazenmuller v Incorporated Vil. of Port Jefferson (citations omitted). Actual or constructive notice of a defect does not satisfy this requirement, Wilkie v Town of Huntington , supra). To prove a prima facie case of negligence in a slip and fall case, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition ( Stumacher v Waldbaum , 274 AD2d 572 [2d Dept 2000]. Such has not been demonstrated here.
The Code of the Town of Smithtown § 245-13 provides that written notice of a claimed defect of a sidewalk shall be filed with the Town Clerk 15 calendar days prior to the event giving rise to the alleged claim.
Based upon the foregoing, it is determined that the defendant Town of Smithtown has established prima facie that its Town Clerk did not receive prior written notice of the claimed sidewalk defect at 85 Ashland Drive and therefore the plaintiff failed to comply with the requirement set forth in the Code of the Town of Smithtown § 245-13.
In opposing this motion, the plaintiff has not raised a factual issue to preclude summary judgment dismissing the complaint as a matter of law. Counsel for the plaintiff sets forth in his affirmation that he is well aware of the case law which says that notification to other town officials of defects is not sufficient where there is a Town statute providing who must be notified. Counsel claims when he placed a telephone call to the defendant Town of Smithtown, he was told that the only way to report the sidewalk defect is through the Parks Department. However, counsel's argument is without merit as the statute at issue requires prior written notice and does not provide for a telephonic complaint about an alleged condition which is not the equivalent of prior written notice of the condition (see, Gorman v Town of Huntington , 12 NY3d 275; Kiszenik v Town of Huntington , 2010 NY Slip Op 1621 [Supreme Court of New York, Appellate Division 2nd Dept 2010). Therefore, that counsel was referred to the Parks Department when he called the Town of Smithtown is not dispositive.
"Not every written complaint to a municipal agency necessarily satisfies the strict requirements of prior written notice; any agency responsible for fixing the defect that keeps a record of such complaints does not, ipso facto, qualify as a proper recipient of such notice. Simply put, whereas a written notice of defect is a condition precedent to suit, a written request to any municipal agent other than a statutory designee that a defect be repaired is not" ( Gorman v Town of Huntington , supra). The Code of the Town of Smithtown § 245-13 provides that written notice of a claimed defect of a sidewalk shall be filed with the Town Clerk 15 calendar days prior to the event giving rise to the alleged claim. Prior written notice statutes must be strictly construed, and the written notice of a defect has to be to the statutory designee rather than to any municipal agent (see, Gorman v Town of Huntington , supra). Here the plaintiff does not claim that the Town Clerk was notified in writing at any time of the claimed defect, and the plaintiff has not submitted as evidentiary proof a copy of written notice to the Town Clerk of the Town of Smithtown prior to the accident, and the Code does not provide that notice may be provided to anyone but the Town Clerk.
Counsel for the plaintiff alternatively argues that the Code of the Town of Smithtown § 245-13 is unconstitutional. However, that argument must also fail.
Local governments, including counties, are authorized by our state Constitution to adopt and amend local laws relating to the presentation, ascertainment, and discharge of claims against it or the acquisition, care, management, and use of its highways, roads, streets, avenues and property (see, New York State Constitution Article IX, Section 2(c)(ii)). This constitutional authority is implemented by identical provisions in Section 10(1) of the Municipal Home Rule Law (see, Holt v County of Tioga , 56 NY2d 414). New York Municipal Home Rule Law § 10(1)(ii)(d)(3) confers express authority on towns to amend or supersede provisions of the New York Town Law in relation to matters as to which they are otherwise authorized to adopt local legislation under the N.Y. Mun. Home Rule Law, unless the legislature expressly shall have prohibited the adoption of such local law. The general authority to enact notice of defect provisions falls under a local government's power to legislate relating to the presentation, ascertainment, disposition, and discharge of claims against it, and the acquisition, care, management, and use of its highways, roads, streets, avenues and property (see, Walker et al v Town of Hempstead, 84 NY2d 360). Here, the Town of Smithtown has enacted a prior written notice law similar in effect to New York State Town Law Section 65-a(2) which requires in relevant part that prior written notice for a defective sidewalk be provided to the Town Clerk or Highway Superintendent.
Although the Town of Smithtown requires prior written notice of a claimed defect be given to the Town Clerk of the Town of Smithtown, and although it does not provide for notice to be given to the Highway Superintendent, it is not inconsistent with the provisions of the New York State Constitution Article IX, Section 2(c)(ii) and New York Municipal Home Rule Law § 10(1)(ii)(d)(3) as the Town of Smithtown is not requiring notice to someone or a department other than enumerated in Town Law 65-a(2) (see, Walker v Town of Hempstead , supra). Where a statute creates provisos or exceptions as to certain matters, the inclusion of such provisos or exceptions is generally considered to deny the existence of others not mentioned (Walker v Town of Hempstead , supra). The Town of Smithtown Legislature provided for notice to the Town Clerk and did not expressly require notice to the Highway Superintendent. By not designating the Highway Superintendent as a person required to receive prior written notice, the Superintendent is therefore excluded.
When a locality exercises the legislative power delegated to it by the New York State Constitution, there is an exceedingly strong presumption that the local law enacted is constitutional. In order to defeat that presumption of validity, a party must show that the local law in question is inconsistent with either provisions of the New York Constitution or with a general law enacted by the state legislature (Holt v County of Tioga , 56 NY2d 414). While the presumption of constitutionality is rebuttable, unconstitutionality must be demonstrated beyond a reasonable doubt, and only as a last resort should courts strike down legislation on the ground of unconstitutionality (Lighthouse Shores, Inc. v Town of Islip et al , 41 NY2d 7).
Here it is determined that the Town of Smithtown notice statute is not inconsistent with, and is not precluded by, Town Law 65-a(2). It is further determined that the Code of the Town of Smithtown § 245-13 is more restrictive than Town Law 65-a(2) in that notice may only be provided to the Town Clerk in writing and does not provide for notice to be given to the Town Highway Superintendent. However, this Court does not find an express prohibition in Town Law 65a-(2) against the local law's adoption to preclude the supersession with the Code of the Town of Smithtown § 245-13 as written and which does not provide for written notice to be served upon the Highway Superintendent (see, White v Incorporated Village of Hempstead , 13 Misc3d 471 [Supreme Court of New York, Nassau County 2006]; Walker v Town of Hempstead , supra). A local law inconsistent with the Town Law is permissible as the Town is not required to copy the statutory language of Town Law 65-a and may enact a more restrictive notice requirement which provides the Town with greater insulation from liability (see, Wall v Town of Niskayuna , 14 AD3d 988 [3rd Dept 2005]; Fulgum et al v Town of Cortland et al, 1 AD3d 775 [2nd Dept 2003]). In Costa v Town of Babylon, 6 Misc3d 7 [Supreme Court of New York, Appellate Term, 2nd Dept 2004], the court held that a municipality may impose a more restrictive notice requirement than that contained in the Town Law. Here it is determined that the Code of the Town of Smithtown § 245-13 has a more restrictive notice requirement to insulate its liability, but such restriction, by not naming the Highway Superintendent as a person who may receive prior written notice of a claimed defect, is not prohibited by Town Law 65-a(2).
Based upon the foregoing, it is determined as a matter of law that the Code of the Town of Smithtown § 245-13 is constitutional. The plaintiff has not defeated the presumption that the statute is valid and has not demonstrated that the Code of the Town of Smithtown § 245-13 is impermissibly inconsistent with either provisions of the New York Constitution or the New York Town Code 65-a(2) (see Holt v County of Tioga , 56 NY2d 414 [1982]). It is further determined that the plaintiff has failed to demonstrate that prior written notice was given to the Town Clerk as required by the Code of the Town of Smithtown § 245-13.
Accordingly, motion (001) by the Town of Smithtown for summary judgment dismissing the complaint is granted and the complaint is dismissed with prejudice.
reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons."
Riggs v. AirTran Airways, Inc.,
497 F.3d 1108, 1114 (10th Cir. 2007). "Typically, a plaintiff may show pretext in one of three ways: (1) with evidence that defendant's stated reason for the adverse employment action was false; (2) with evidence that the defendant acted contrary to a written company policy prescribing the action taken by the defendant under the circumstances; or (3) with evidence that . . . he was treated differently from other similarly-situated employees who violated work rules of comparable seriousness."
Salguero v. City of Clovis,
366 F.3d 1168, 1176 (10th Cir. 2004). Wilbanks alleges that the reason for her termination was her age, and that Nordam's statements to the contrary are pretextual. In support, she alleges that Nordam's statement that she was terminated for working beyond a doctor's restrictions was false, that Nordam acted contrary to its written company policies, that she was treated differently from other similarly-situated employees, and that Nordam has offered inconsistent explanations for her termination. Dkt. # 43, at 29 (incorporating pretext arguments from FMLA section of brief).
None of plaintiff's asserted bases for pretext can survive summary judgment. Apart from plaintiff's burden under McDonnell Douglas to substantiate an inference of pretext, the Supreme Court in Gross recently clarified that a plaintiff suing under the ADEA also has an affirmative burden to demonstrate that age was a but-for cause of the termination. That is, Wilbanks must show that Nordam would not have fired her, despite any of their proffered reasons for termination, but for her age. See Medlock v. United Parcel Service, Inc., 608 F.3d 1185, 1194 (10th Cir. 2010). Wilbanks has not produced any evidence that supports a reasonable inference that her age was the factor that "made the difference" in her termination.
Abiding by its duty to view the facts in the light most favorable to Wilbanks, the Court credits Creazzo's testimony that Tanner made derogatory age-based comments about Wilbanks and that she heard Tanner state that she "would not be happy until [plaintiff] was gone." Dkt. # 43-15. The Court will also consider Wilbanks's testimony that she was told by Pressnall and others that Tanner was "watching" and that other Nordam employees told her that Tanner had made discriminatory age-based statements about her. However, because these statements are hearsay, they are considered only for the purpose of showing that Wilbanks was made to believe that her job was in danger. They are not considered for their truth — that is, they are not admissible evidence that such discriminatory statements were actually made about Wilbanks, or that she was actually under scrutiny at any time. Thus, plaintiff's theory that her termination was age-based is based on one affidavit with overtones of age discrimination and plaintiff's own concerns that she was under scrutiny because of her age.
The Tenth Circuit has recently affirmed that a plaintiff can carry her burden under McDonnell Douglas by showing even a "weak issue of fact" as to discrimination. See Jones, 2010 WL 3310226, at * 8. However, "the passage of time can . . . render a comment too remote to support a finding of pretext." Kirkpatrick v. Pfizer, Inc., 2010 WL 3199802, at * 7 (10th Cir. Aug. 12, 2010) (holding a comment made ten months prior to termination too remote to establish retaliatory motive). Creazzo was terminated by Nordam in October 2007. Therefore, the latest possible date for Tanner's comments about plaintiff to Creazzo was over a year prior to plaintiff's termination. Moreover, the statements by other employees made closest to plaintiff's termination were those by Pressnall and Hughes telling plaintiff to be careful, made approximately six and three months prior to her termination, respectively. While closer in time, those statements offer no evidence that scrutiny of plaintiff, if any existed, was based on her age. Given the tenuousness of those statements to age-based discrimination and the passage of time between Tanner's statement to Creazzo and plaintiff's termination, the Court cannot find that plaintiff has linked her termination to discriminatory conduct as to her age.
Without a causal link between age and termination, Wilbanks may be able to show procedural sloppiness and inconsistency on the part of Nordam, but cannot make a proper showing of pretext. See, e.g., Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1199 (10th Cir. 2008) ("the mere failure of a company's employees to follow their employer's manuals and written directives, without more, does nothing to suggest discrimination as opposed to perhaps, say, laxity on the part of company employees"). Wilbanks has not made a showing that she would not have been terminated but for her age, and has therefore not met her burden to show pretext. Therefore, Nordam is entitled to summary judgment on plaintiff's ADEA claim for discrimination.
B. FMLA
Plaintiff's petition states a claim under FMLA for retaliation. Dkt. # 2-1, at 3. However, in her summary judgment response, Wilbanks refers to a claim for interference with FMLA rights as well. Dkt. # 43, at 20. Defendant does not address this additional theory of recovery in its reply. Dkt. # 52.
The Tenth Circuit has recognized two theories of recovery under FMLA: "an entitlement or interference theory arising from § 2615(a)(1), and a retaliation or discrimination theory arising from § 2615(a)(2)." Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006). Insertion of new theories of relief into summary judgment briefing is not always successful.E.g., Spencer v. Wal-Mart Stores, Inc., 203 F. App'x 193, 196 n. 2 (10th Cir. 2006); Orr v. City of Albuquerque, 417 F.3d 1144, 1153 (10th Cir. 2005); Evans v. McDonald's Corp., 936 F.2d 1087, 1090-91 (10th Cir. 1991). The general rule is that "a plaintiff should not be prevented from pursuing a valid claim just because she did not set forth in the complaint a theory on which she could recover, provided always that a late shift in the thrust of the case will not prejudice the other party in maintaining his defense upon the merits."Evans, 936 F.2d 1087, 1090-91 (10th Cir. 1991). In considering the propriety of introducing of a new claim at a late stage of litigation, the Tenth Circuit has balanced the liberal pleading standard with potential prejudice faced by the defendant. See Green Country Food Market, Inc. v. Bottling Group, LLC, 371 F.3d 1275, 1279 (10th Cir. 2004). Here, Nordam was put on notice by the petition of the facts underlying plaintiff's FMLA interference claim, as the claim is based on the same set of operative facts as the claim for retaliation. Moreover, while defendant had the opportunity in its reply to respond to plaintiff's introduction of this claim, it did not mention the addition at all, let alone claim that it faced prejudice or request rejection of a new theory for relief. The Court will therefore accept plaintiff's characterization of her petition as stating claims for both FMLA interference and retaliation. Cf. Jones v. Denver Public Schools, 427 F.3d 1315, 1323, 1323 n. 2 (10th Cir. 2005) (considering plaintiff's FMLA claim on grounds of both interference and retaliation where complaint did not specifically state under which theory of recovery his FMLA claim was brought).
1. Retaliation
Retaliation claims under the FMLA are subject to the same burden-shifting analysis under McDonnell Douglas as applied to the ADEA claims, and the Court incorporates its statement of the law set out in Section III.A., supra, Thus, if Wilbanks is able to make a prima facie case for retaliation, the burden will shift to Nordam to articulate legitimate, non-retaliatory reasons for plaintiff's termination. If defendant is successful in doing so, the burden will then shift back to plaintiff to show that those reasons are pretextual.
To make a prima facie case of retaliation, Wilbanks must show that: (1) she engaged in a protected activity; (2) Nordam took an action that a reasonable employee would have found materially adverse; and (3) a causal connection exists between the protected activity and the adverse action. Metzler, 464 F.3d at 1171. Defendant does not argue that Wilbanks has not made a prima facie case, and the Court finds that the close proximity of plaintiff seeking and taking FMLA leave from August to October 2008, and her termination on October 30, 2008, establishes plaintiff's prima facie case for retaliation under FMLA. See id. at 1171-72 (noting that termination very closely connected in time to the protected activity is sufficient on its own to establish the prima facie causation element).
For the reasons stated in the discussion of plaintiff's AEDA discrimination claim, the Court also finds that Nordam has articulated legitimate, nondiscriminatory reasons for plaintiff's termination. The burden therefore shifts to Wilbanks to present evidence of pretext. The pretext threshold is lower for claims under the FMLA than the AEDA; while the latter requires a showing of but-for causation to defeat summary judgment, the former requires only that a plaintiff "present evidence sufficient for a reasonable jury to find that the employer's proffered nondiscriminatory reason was unworthy of belief." See Burris v. Novartis Animal Health U.S., Inc., 309 F. App'x 241, 244 (10th Cir. 2009) (unpublished). Under this lesser burden, plaintiff argues that Nordam's proffered reasons for her dismissal are pretextual based on evidence that plaintiff was not in fact acting in violation of doctor's restrictions and based on Nordam's procedural irregularities, varying treatment of similarly situated employees, and inconsistent explanations for her termination. Dkt. # 43, at 25-27.
Unpublished decisions are not precedential, but may be cited for their persuasive value. See Fed.R.App. 32.1: 10th Cir. R. 32.1.
First, Wilbanks testified that according to her doctor's instructions, the choice was hers as to whether to stay home from work. Therefore, she argues, she did not work beyond her doctor's restrictions on the morning of October 28, and justifying her termination on that ground would be mere pretext. However, Wilbanks has not shown that she informed either Baker or Pressnall, the two individuals to whom she spoke about her note, of the doctor's recommendations as to her presence at work. The Court must examine the "facts as they appear to the person making the decision to terminate." Salguero, 366 F.3d at 1168. Based on the facts as they appeared at the time of Wilbanks's termination, the note plaintiff presented excused her from work from October 27-29, and plaintiff's presence in the bonding room on the morning of October 28 violated that restriction. Therefore, the Court will not find pretext based on defendant's interpretation of Wilbanks's medical status, even if mistaken.
Defendant argues that Wilbanks's account of what she was told by her doctor is inadmissible hearsay. Dkt. # 52, at 4. However, because the Court finds that plaintiff did not relay her doctor's instructions to Nordam at the time of her termination, it is not necessary to reach defendant's argument, as the truth of what the doctor told Wilbanks is not at issue.
Wilbanks's pretext argument also fails insofar as she argues that she was treated differently than other employees who engaged in similar conduct. Dkt. # 43, at 8. Plaintiff claims that she was terminated for working beyond doctor's orders when that same action had not resulted in termination for other employees. An established method of proving pretext is "to show that the employer treated the plaintiff differently from other similarly-situated employees who violated work rules of comparable seriousness." Nwagbologu v. Regents of Univ. of New Mexico, 33 F. App'x 449, 452 (10th Cir. 2002) (unpublished) (internal citations omitted). Wilbanks first uses herself as the point of comparison, arguing that she had previously worked beyond doctor's restrictions and experienced no repercussions. However, the only evidence of Wilbanks's prior experience is the letter of termination given to her by Nordam. Dkt. ## 43, 43-12. That letter offers as one reason for her termination the fact that she had worked beyond restrictions one month earlier, on August 19, 2008. Construing the facts as favorably as possible for Wilbanks, she still has not presented evidence that she had any reason to expect she would escape punishment the second time she worked beyond doctor's restrictions. A pattern of behavior may be considered differently than an isolated incident in determinations of pretext. See Nwagbologu, 33 F. App'x, at 452.
Unpublished decisions are not precedential, but may be cited for their persuasive value. See Fed.R.App. 32.1: 10th Cir. R. 32.1.
Moreover, Wilbanks's evidence of experiences by other employees comes only from the affidavits submitted by Alley and Creazzo. Alley testified to her "personal knowledge that another employee, Robin Callaway, worked beyond her doctor restrictions/limitations for an on-the-job inquiry during the same time period as [] Wilbanks," but was neither disciplined nor terminated for doing so. Dkt. # 43-14. Similarly, Creazzo testified that she was "routinely asked to work beyond [] restrictions that were placed on [her] by [her] doctor and [] was not disciplined" for doing so. Dkt. # 43-15. These affidavits describe conduct similar to that which provided an alleged basis for plaintiff's termination. However, they do not contain any facts showing that these individuals were "similarly situated" with Wilbanks.
Defendant objects to the statement in Alley's affidavit regarding disparate treatment of Robin Callaway as inadmissible hearsay. Dkt. # 52. Interpreting the evidence in the light most favorable to plaintiff, however, the Court will accept as true, for the purposes of summary judgment only, Alley's statement that she has personal knowledge about the matter.
Without evidence affirmatively supporting the "similarly situated" requirement, disparate treatment of employees does not support a finding of pretext. See, e.g., Medlock, 608 F.3d at 1195. In Medlock, the Tenth Circuit reviewed a grant of summary judgment on a pretext claim based on disparate treatment. Evidence showed several employees were not similarly situated with the plaintiff; however, there was one unexplained employment decision. Id. The court decided that it could not conclude that the other employee's situation created an inference of pretext on the part of the plaintiff, as such a decision would be based on "sheer conjecture, which [it] ha[d] long recognized is an inadequate basis on which to oppose summary judgment." Id. Here, Wilbanks has not presented evidence from which a reasonable jury could infer that Callaway and Creazzo were employees similarly situated with her. Thus, she has not shown pretext on that ground.
However, plaintiff makes a sufficient showing of pretext based on inconsistencies in Nordam's explanations for her termination.See Paup v. Gear Prods., Inc., 327 F. App'x 100, 112-13 (10th Cir. 2009) (unpublished); Hare v. Denver Merch. Mart, Inc., 255 F. App'x 298, 304-05 (10th Cir. 2007) (unpublished). In Paup, the court reversed the district court's grant of summary judgment to an employer where testimony as to why the employee was terminated conflicted among various corporate representatives. 327 F. App'x at 113-114. The court took pains to clarify that its opinion did not mean that a company could not change its mind or rely on multiple factors in an employee's termination, and that at trial a company may pursue multiple, even inconsistent, lines of defense. Id. at 113. However, it concluded that on the motion for summary judgment, the plaintiff had met his burden under theMcDonnell Douglas framework by showing his employer's stated reasons for termination to be so inconsistent that "a rational factfinder could conclude the reasons were unworthy of belief." Id. Similarly, in Hare, the court again reversed a grant of summary judgment to an employer based on an employee's showing of multiple inconsistent justifications for his termination. 255 F. App'x at 304-05. It found that "[u]nder the McDonnell Douglas framework, contradictions of [that] sort are sufficient to establish pretext for purpose [sic] of summary judgment." Id. at 305.
Unpublished decisions are not precedential, but may be cited for their persuasive value. See Fed.R.App. 32.1: 10th Cir. R. 32.1.
Thus, the Tenth Circuit has found that evidence of multiple, conflicting explanations for why an employee was terminated satisfies an employee's burden of production as to pretext under the McDonnell Douglas analysis. Here, Nordam's employees have explained plaintiff's termination as based on absences, working beyond a doctor's restrictions, both of those reasons, or neither of those reasons. Dkt. ## 43-5, at 11; 43-6, at 10-11; 43-7, at 8; 43-8, at 10; 43-13, at 11; 43-16, at 10. To be sure, "individual participants in a collective termination decision might well provide a variety of reasons for the termination of an employee." Hare, 255 F. App'x at 305. However, not only did Nordam employees offer different reasons for Wilbanks's termination, but also the reasons relied on by some employees are disclaimed by others. For instance, the following is an excerpt from Tanner's deposition regarding her understanding as to why Wilbanks was terminated: Q: [L]et's talk about what you say the reason for the termination was. Again, it's different than what these other ladies have testified to under oath earlier. A: Okay. Q: . . . Your reason was that it had something to do with her not — she shouldn't have been at work at all because of a doctor's deal; right? A: Yes. Q: And in your mind, that's the only reason she was terminated; right? A: Yes. Q: In your mind, it had nothing whatsoever to do with this final warning; right? A: Yes. Q: Despite what Gayle [sic] Wilkinson and Lynn Pressnall testified to under oath and despite the fact that you agree they had more knowledge about the termination than you did; right? . . . Q: . . . You say it's only because of this doctor's note; right? A: Yes. Dkt. # 43-13, at 11. Conflicts in testimony take this case out of the realm where various explanations provided by an employer "merely elaborate[] on the initial justification for termination." Ramsey v. Labette County Med. Center, 2008 WL 4672248, at * 3 (10th Cir. 2008). The varying explanations given by Nordam and, in particular, the conflicts between those explanations support a finding under Tenth Circuit precedent that Wilbanks has shown her employer's stated reasons for termination to be so inconsistent that a rational factfinder could conclude the reasons were unworthy of belief.
Because the Court finds Wilbanks has made a sufficient showing of pretext based on these inconsistencies in Nordam's explanations, it need not consider the other grounds for pretext asserted by plaintiff. However, "procedural irregularity" may also provide evidence of pretext where sufficiently serious. See, e.g., Schoenfeld v. AT T Commc'ns, 1991 WL 50172, at * 2 (10th Cir. 1991). Plaintiff's evidence that Nordam's internal policy called for retroactive removal of her final warning following her FMLA approval, and that Nordam failed to follow its policy in her case, would also support a finding of pretext sufficient to survive summary judgment. Nordam's defense that it was not required to remove plaintiff's absences because she did not properly document them is an argument upon which it may prevail at trial. Dkt. # 39, at 11-12. However, construing the facts in favor of plaintiff, a reasonable jury could find Nordam's failure to follow its own internal policy persuasive in finding pretext as to why Wilbanks was terminated.
The Court does not, however, find persuasive Wilbanks's pretext argument based on Nordam's violation of its normal disciplinary policy. Although Nordam has a progressive disciplinary policy that typically advances from verbal warning to written warning to final warning to termination, Dkt. # 43-6, at 11, the policy does not require that every employee disciplinary action proceed through all of the steps. Id. at 13.
The Court did not find pretext in its consideration of plaintiff's ADEA claims because she failed to make a showing that age was the but-for cause of her termination by Nordam. In contrast, under the FMLA, "a plaintiff need not demonstrate that discriminatory reasons motivated the employer's actions to avoid summary judgment." Burris, 309 F. App'x at 244. Thus, because plaintiff has raised a genuine issue of material fact as to pretext, her FMLA retaliation claim survives summary judgment.
2. Interference
A valid claim for interference with rights under FMLA will be found where "an employer interferes with the FMLA-created right to medical leave . . . regardless of the employer's intent."Satterlee v. Allen Press, Inc., 274 F. App'x 642, 645 (10th Cir. 2008) (unpublished). A prima facie case for FMLA interference requires a plaintiff to show (1) that she was entitled to FMLA leave, (2) that some adverse action by the employer interfered with her right to take FMLA leave, and (3) that the employer's action was related to the exercise or attempted exercise of her FMLA rights. Id. Unlike the burden-shifting McDonnell Douglas analysis, the defendant bears the burden on the third element of an interference claim of proving that the employee would have been dismissed regardless of the employee's request for, or taking of, FMLA leave.Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287-88 (10th Cir. 2007).
Unpublished decisions are not precedential, but may be cited for their persuasive value. See Fed.R.App. 32.1: 10th Cir. R. 32.1.
Here, plaintiff's testimony, testimony from Nordam employees, and Nordam's approval of her application for FMLA leave provide a sufficient showing that plaintiff was entitled to that leave. The undisputed fact of her termination qualifies as an adverse action. Plaintiff is then left only with the requirement of showing a causal connection between that termination and her exercise of her FMLA rights. In support, Wilbanks argues that because she was terminated for absences that would have been excused under a proper application of her FMLA rights, there is a clear connection between her exercise of her FMLA right to absence from work and her termination. Dkt. # 43, at 20-21. The Court finds persuasive her argument that a genuine issue of material fact exists as to whether she was fired for absences that ought to have been excused under FMLA.
The quick succession of events surrounding plaintiff's application, exercise of rights, and termination also supports an inference of causation, as temporal proximity may be used to establish causation in FMLA interference claims. Satterlee, 274 F. App'x at 646 ("protected conduct under the FMLA closely followed by an adverse action may be evidence of causation").
Defendant has not met its burden of showing otherwise. Nordam's evidence is contradictory as to whether Wilbanks's application for or taking of FMLA leave was a crucial factor in her termination. As noted, Nordam's varying explanations for Wilbanks's dismissal require the sort of credibility determinations better left for trial. Moreover, defendant's argument that plaintiff was fired for failure to follow proper company procedures in documenting her time away from work is similarly insufficient to eliminate any genuine issue of material fact. Certainly, as the Tenth Circuit has noted, a plaintiff's request for FMLA leave does not "shelter her from the obligation, which is the same as that of any other employee, to comply with employment policies."McGinnis v. Employer Health Servs., Inc., 246 F. App'x 543, 545 (10th Cir. 2007) (unpublished). However, construing the evidence in the light most favorable to Wilbanks, the Court finds that she complied with Nordam's requirements as she understood them by informing her lead of the reasons for her absence, calling work on the mornings she would be late, and getting appropriate doctors' notes. Dkt. # 43-1, at 9-10. Therefore, defendant is not entitled to summary judgment on the FMLA interference claims.
Some Nordam employees have stated that Wilbanks's absences were irrelevant to the decision to terminate her. However, Pressnall testified that knowing Wilbanks's absences were excused under FMLA would likely have affected her decision to support Wilbanks's termination. Dkt. # 43-5, at 15. Siegfried also stated that Wilbanks's absences being excused under FMLA would have factored into his decision regarding dismissal, although he also noted that working beyond doctor's restrictions could also provide sufficient justification for termination. Dkt. # 43-6, at 10, 14.
Unpublished decisions are not precedential, but may be cited for their persuasive value. See Fed.R.App. 32.1: 10th Cir. R. 32.1.
C. State law claims
For the reasons stated below, the Court grants summary judgment as to all of plaintiff's state law claims.
1. Oklahoma Anti-Discrimination Act
Plaintiff claims that the OADA, OKLA. STAT. tit. 25 § 1101 et seq., "sets forth a clear and unequivocal public policy regarding discrimination in employment in Oklahoma." Dkt. # 2-1, at 5. However, the OADA "does not provide a private right of action for any protected group other than victims of handicap discrimination." Gardner v. Sears Holdings Corp., 2010 WL 4027814, at * 2 (10th Cir. 2010); see also Bacon v. TCIM Servs., Inc., 2010 WL 915051, at * 1 n. 3 (N.D. Okla. March 10, 2010). Both parties acknowledge that Wilbanks is unable to recover under the OADA. Dkt. ## 39, at 8; 43, at 29-30. No factual issue remains as to this claim, and summary judgment is therefore appropriate.
"The OADA provides only administrative remedies for victims of . . . age discrimination." Harman v. Oklahoma, 2007 WL 1674205, at *2 (W.D. Okla. June 7, 2007).
2. Burk Tort for Wrongful Termination
Although plaintiff acknowledges her lack of remedy under the OADA, she argues that she has an equivalent tort claim under Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989). Dkt. # 43, at 29-30. Oklahoma recognizes the common law at-will employment doctrine.Darrow v. Integris Health Inc., 176 P.3d 1204, 1210 (Okla. 2008). Under that doctrine, "employers are free to discharge at-will employees in good or bad faith, with or without cause," thereby depriving employees of any right to sue for wrongful discharge.Id. Burk provides an exception to the doctrine, as it recognizes a tort claim for wrongful discharge where an employee is discharged for "refusing to violate an established and well-defined public policy" or for "performing an act consistent with a clear and compelling public policy." Id. The OADA may provide the policy basis for a Burk tort, including claims filed by alleged victims of age discrimination. See Gardner, 2010 WL 4027814, at * 2; Bacon, 2010 WL 915051, at * 1 n. 3. Thus, a Burk claim provides a remedy for actual or constructive discharge of an employee.
The Court reads plaintiff's petition as stating only a claim for wrongful termination under Burk. Thus, defendant's argument that plaintiff may not state a claim for age discrimination underBurk, Dkt. # 39, at 8, is correct but irrelevant.
Wilbanks appears to rely on the OADA as providing the basis for her Burk claim. Dkt. # 43, at 29-30. As discussed above, Wilbanks has not shown that she was discriminated against on the basis of age. The "significant factor" test for a Burk claim does not require the "but for" causation of the AEDA, although a plaintiff "must do more than show that age was only one of many possible factors resulting in discharge." Medlock, 608 F.3d at 1197. However, the different burdens under federal and state law have not prevented courts from repeatedly recognizing that a plaintiff's failure to establish federal discrimination claim is equally dispositive of Burk claims. See, e.g., Brown v. Bd. of Regents, 353 F. App'x 169, 172-173 (10th Cir. 2009) (unpublished); Ruleford v. Tulsa World Publ'g Co., 266 F. App'x 778, 784 (10th Cir. 2008) (unpublished); Smith v. Okla. ex rel. Tulsa County Dist. Attorney, 245 F. App'x 807, 818 (10th Cir. 2007) (unpublished); Malone v. MAPCO, Inc., No. 91-5073, 1992 WL 26788, at *1 (10th Cir. Feb. 11, 1992) (unpublished). The same is true here. For the reasons stated above, plaintiff has failed to set forth evidence showing that age was a significant factor in her termination, and Nordam is entitled to summary judgment on Wilbanks's Burk tort claim.
Unpublished decisions are not precedential, but may be cited for their persuasive value. See Fed.R.App. 32.1: 10th Cir. R. 32.1.
3. Retaliatory Discharge
Under OKLA. STAT. tit. 85, § 5, no corporation may discharge an employee for filing in good faith a claim for worker's compensation. To establish a prima facie case for retaliatory discharge under section 5, a discharged employee must show "(1) employment; (2) on-the-job injury; (3) medical treatment putting the employer on notice or the good faith start of workers' compensation proceedings; and (4) consequent termination of employment." Taylor v. Cache Creek Nursing Centers, 891 P.2d 607, 610 (Okla. Civ. App. 1994) (citing Buckner v. Gen'l Motors Corp., 760 P.2d 803, 806 (Okla. 1988)). A showing of "consequent termination" requires production of evidence that gives rise to "a legal inference [that] the discharge was significantly motivated by retaliation for exercising one's statutory rights."Wallace v. Halliburton Co., 850 P.2d 1056, 1058 (Okla. 1993); see also Taylor, 891 P.2d at 610. A plaintiff need not meet a "but for" standard for a successful section 5 claim; however, she must "present evidence that does more than show the exercise of her statutory rights was only one of many possible factors resulting in her discharge." Blackwell v. Shelter Mut. Ins. Co., 109 F.3d 1550, 1554 (10th Cir. 1997). Where an employee's allegations are sufficient to bring her within the section's protection, the employer is called upon to present an alternate reason for the employee's termination. Buckner, 760 P.2d at 807. However, the employee bears the burden of persuasion that any reason given for termination was pretextual. Id.
Wilbanks filed workers' compensation claims in 2004, 2005, and 2006, and now alleges that the "substantial motivation" for her termination in 2008 was her "on-the-job injury and intent to file a workers' compensation suit." Dkt. # 2-1, at 4. However, Wilbanks has presented no evidence linking her workers' compensation claims with her termination. She does not allege that Nordam discouraged her from filing her claims or that it engaged in a pattern of terminating employees for that reason. Nor can Wilbanks rely on temporal proximity to support an inference of retaliatory discharge, as her last claim occurred approximately two years before her termination. Instead, Wilbanks supports her section 5 claim with the statements made about her age and health by Tanner, and she cites only to her own deposition and affidavits from Alley and Creazzo in support. The Court has excluded as inadmissible hearsay Alley's statements regarding what she was told by Creazzo, as well as statements made to Wilbanks by other employees about Tanner's comments. Once more, the Court is left with only the statement by Creazzo that Tanner made negative comments about Wilbanks's age and health.
Plaintiff has attached complaints from other former Nordam employees, some of which involved claims for workers' compensation. Dkt. ## 43-17, 43-18, 43-19, 43-20, 43-21, 43-22, 43-23. However, such complaints would be hearsay if introduced for the purpose of showing the truth of the allegations contained therein, and will therefore not be considered as evidence of a pattern of practice. E.g., Eddy v. Waffle House, Inc., 482 F.3d 674, 682 (4th Cir. 2007) (reversed and remanded on other grounds, 128 S. Ct. 2957 (2008)).
Tanner's statement to Creazzo does not specifically mention plaintiff's workers' compensation claims. However, assuming that the statement was made in reference to workers' compensation, it is far too temporally removed to support a finding of retaliation. And even if the Court takes plaintiff's testimony as true that the statement by Creazzo was included in her allegation that Tanner began making derogatory statements about plaintiff in approximately July 2008, Dkt. # 43-1, at 17, one statement about plaintiff's health from one link in the decision-making chain would be insufficient to show that her termination was "significantly" motivated by her workers' compensation claims.
Creazzo's affidavit does not say when the statement by Tanner was made. Dkt. # 43-15. Although plaintiff does not remember when she was told about the statement by Creazzo, she said that it was following her return to work after her wrist injury. Dkt. # 43-1, at 17. Wilkinson, a human relations representative, testified that Wilbanks returned to work following her injury on June 12, 2006, and that Creazzo ceased working at Nordam on October 2, 2007. Dkt. # 52-3.
Again, the following individuals were involved in the decision to terminate Wilbanks: Wilkinson, Tanner, Pressnall, Hebermehl, Brewer, Bagrosky, Siegfried, and Andrew. Dkt. # 43-16, at 9.
Viewing the evidence in the light most favorable to Wilbanks, a reasonable jury could not conclude that her discharge was significantly motivated by retaliation for exercising her rights under the Workers' Compensation Act, as she has "failed to establish a nexus between her termination and any protected activity on her part." Blackwell, 109 F.3d at 1556. Summary judgment is appropriate on this claim as well. 4. Intentional Infliction of Emotional Distress
Wilbanks also alleges that statements made by Tanner support a claim for intentional infliction of emotional distress. Oklahoma courts have recognized such a cause of action, also known as the tort of outrage. See Gaylord Entm't Co. v. Thompson, 958 P.2d 128, 149 (Okla. 1998). The action is governed by the restricted standards set forth in the Restatement (Second) of Torts, § 46 (1965). Id. In Breeden v. League Services Corp., 575 P.2d 1374 (Okla. 1978), the Oklahoma Supreme Court explained:
Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!' The liability clearly does not extent to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.
Id. at 1376. To state a claim, a plaintiff must allege that "(1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's conduct caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe."
Schovanec v. Archdiocese of Oklahoma City, 188 P.3d 158, 175 (Okla. 2008) (quoting
Computer Publications, Inc. v. Welton, 49 P.3d 732, 735 (Okla. 2002)). Under Oklahoma law, the trial court must assume a "gatekeeper role" and make an initial determination that the defendant's conduct "may be reasonably regarded as sufficiently extreme and outrageous to meet the Restatement § 46 standards."
Trentadue v. United States, 397 F.3d 840, 856 n. 7 (10th Cir. 2005) (applying Oklahoma law). If reasonable persons could reach differing conclusions in the assessment of the disputed facts, the Court should submit the claim to a jury to determine whether the defendant's conduct could
result in liability.
Id. The Court is to make a similar threshold determination with regard to the fourth prong, the presence of severe emotional distress.
Id.
In cases arising out of the workplace, Oklahoma appellate courts have found that a defendant engaged in extreme and outrageous conduct only when that defendant intentionally and persistently engaged in a course of conduct that harmed the plaintiff. See Computer Publications, 49 P.3d at 736 (claim should have been submitted to a jury when plaintiff presented evidence that harassment lasted more than two years and caused plaintiff to quit her job, move and repeatedly change phone numbers); Miner v. Mid-America Door Co., 68 P.3d 212 (Okla.Civ.App. 2002) (employer's alleged failure to reassign the plaintiff after learning of workplace harassment, even if unreasonable, was not extreme and outrageous); Gabler v. Holder Smith, Inc., 11 P.3d 1269 (Okla.Civ.App. 2000) (noting that workplace harassment rarely rises to the level of extreme and outrageous conduct); Mirzaie v. Smith Cogeneration, Inc., 962 P.2d 678 (Okla.Civ.App. 1998) (employer's conduct was not extreme and outrageous when, inter alia, the plaintiff's manager made derogatory sexual remarks about the plaintiff, woke plaintiff up in the middle of the night to do unnecessary work, and terminated him two hours before his wedding); Zahorsky v. Community Nat'l Bank of Alva, 883 P.2d 198 (Okla. Civ. App. 1994) (employer not liable for intentional infliction of emotional distress when an employee forced the plaintiff to have sex with him and employer failed to fire the employee, even though the employer allegedly knew about the conduct).
Plaintiff claims that she has suffered severe emotional distress because of defendant's actions. Dkt. # 2-1, at 4. In support of her claim, she argues that the statements made by Tanner to other employees were abusive, and that they could be found by a jury to be outrageous. Dkt. # 43, at 32. Even if none of the Court's hearsay rulings about many of those statements applied, however, the statements made by Tanner would still not rise to the level of extreme and outrageous conduct as defined by Oklahoma courts, as liability "does not extend to mere insults, indignities, threats[,] annoyances[], petty oppressions, or other trivialities." Mirzaie, 962 P.2d at 681. Plaintiff has alleged nothing more than a finite number of statements made outside her presence that she was not capable of performing her job. This simply does not rise to the level of conduct in any case in which an Oklahoma appellate court has found extreme and outrageous conduct in the workplace setting. Thus, Nordam is entitled to summary judgment on plaintiff's claim for intentional infliction of emotional distress.
5. Negligent Hiring, Monitoring, Training, and Supervision
Although plaintiff's petition titles her claim as one for respondeat superior, she has clarified that it is actually one for "negligently failing to hire, monitor, train, and supervise employees" and "negligently failing to provide the [p]laintiff a reasonably safe workplace." Dkt. # 43, at 33-34. Oklahoma recognizes a tort claim for negligent hiring and retention where vicarious liability has not been established. See, e.g., Jordan v. Cates, 935 P.2d 289, 292 (Okla. 1997). Such a claim "is based on the principle that a person conducting an activity through employees is subject to liability for harm resulting from negligent conduct in the employment of improper persons or instrumentalities in work involving risk of harm to others;" in other words, employers have a duty to hire employers who are "competent and not dangerous." Magnum Foods, Inc. v. Continental Cas. Co., 36 F.3d 1491, 1500 (10th Cir. 1994). Thus, an employer will be held liable for an employee's harm to a third party through employment where "at the critical time of the tortious incident[,] the employer had reason to believe that the person would create an undue risk of harm to others." N.H. v. Presbyterian Church (U.S.A.), 998 P.2d 592, 600 (Okla. 1999). "The critical element for recovery is the employer's prior knowledge of the servant's propensities to create the specific danger resulting in damage." Id.
Plaintiff's claim rests nearly entirely on tortious conduct on the part of Tanner. She claims that the harm inflicted upon her by Tanner might have been avoided by the adoption of appropriate policies, procedures, and supervision protocols. Dkt. # 43, at 34. Beyond that, she states that the failure of Nordam to follow procedures, including those for FMLA and progressive discipline, and the lack of knowledge about details of Wilbanks's employment by Vice Chairman Siegfried, "testify to a breakdown in Nordam internal operations." Id.
Although plaintiff's complaints about Nordam's operations have some justification, they do not support a tort claim for negligent hiring, monitoring, training, or supervision. The behaviors about which Wilbanks complains are statements made by Tanner, failure by Nordam to follow internal procedures, and lack of knowledge by a Nordam executive. Of these, only the derogatory statements by Tanner qualify as remediable tortious conduct. Moreover, even assuming that the statements were made, Wilbanks has failed to make any showing that Nordam had notice of propensities on the part of Tanner to cause the harm at issue. Plaintiff has attached complaints from other former Nordam employees, presumably in an attempt to show that Nordam was on notice of bad behavior by its personnel. Dkt. ## 43-17, 43-18, 43-19, 43-20, 43-21, 43-22, 43-23. However, none of these complaints discuss conduct by Tanner, nor do they even address conduct sufficiently similar to that complained of by Wilbanks to put Nordam on notice.
As stated, the admissibility of these statements is limited, for the reasons discussed above.
Defendant argues that these complaints are inadmissible as propensity evidence. Dkt. # 52, at 3-4. However, they might be admissible, if relevant, to show notice of other claims brought against the company on employment grounds. See, e.g., Soden v. Freightliner Corp., 714 F.2d 498, 509 (5th Cir. 1983) (where notice was an element of a products liability case, admitting evidence of other complaints filed against the company in substantially similar circumstances as relevant to question of notice).
Finally, although plaintiff did testify that she complained of Tanner's behavior to Pressnall and Siegfried, the complaints were made after the alleged conduct by Tanner had begun. Complaints about behavior already occurring "cannot be found to provide defendant with prior knowledge" for purposes of showing liability under a theory of negligent hiring. Hill v. Green Bay Packaging, Inc., 2006 WL 1663781, at * 7-8 (W.D. Okla. June 9, 2006). Faced with a lack of evidence that Nordam had notice of any tortious conduct on the part of Tanner, the Court must find that it "lacked knowledge sufficient to impose liability." See N.H., 998 P.2d at 601. Summary judgment is appropriate on this claim as well.
IT IS THEREFORE ORDERED that Defendant's Motion for Summary Judgment (Dkt. # 39) is granted in part and denied in part: it is denied as to plaintiff's FMLA claims for interference and retaliation; it is granted as to all other claims.
DATED this 25th day of October, 2010.