Summary 2009 WY 19

Summary of Decision issued February 18, 2009

Case Name: Sheaffer V. State of Wyoming ex rel., University Of Wyoming

Citation: 2009 WY 19

Docket Number: S-07-0269

Appeal from the District Court of Albany County, Honorable Wade E. Waldrip, Judge

Representing Appellant (Plaintiff): Bill G. Hibbler, Cheyenne, Wyoming.

Representing Appellees (Defendants): Stephen H. Kline, Cheyenne, Wyoming.

Date of Decision: February 18, 2009

Facts: Appellant was terminated “for cause” pursuant to UW’s University Regulation (UniReg) 174 for her role in a secret audio tape recording of a meeting of the UW Traffic Appeals Committee. This is an appeal from summary judgment granted against Appellant.

Issues: Whether allegations of deception and dishonesty are questions of credibility, and, as such, whether or not the question as to whether Appellant was dishonest to a point justifying her termination is a question of fact to be determined by a jury. Whether the district court erred in granting summary judgment against Appellant’s claim for retaliatory discharge for protected activity in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). Whether the district court erred in granting summary judgment against Appellant’s claim for gender discrimination in violation of 42 U.S.C. §§ 2000e. Whether the district court erred in granting summary judgment against Appellant’s claim for wrongful termination/breach of contract in violation of UniReg 5 and/or 174. Whether the district court erred in granting summary judgment against Appellant’s claim for interference with contract.

Holdings: Evidence that the employer should not have made the termination decision - for example, that the employer was mistaken or used poor business judgment - is not sufficient to show that the employer’s explanation is unworthy of credibility. The relevant inquiry is not whether the employer’s proffered reasons were wise, fair or correct, but whether it honestly believed those reasons and acted in good faith upon those beliefs. Perhaps a reasonable fact-finder could observe all the witnesses and believe Appellant’s version of the events surrounding the surreptitious taping. What is at issue is whether the evidence of misconduct presented a genuine issue of material fact. Thus, the relevant “falsity” inquiry is whether the employer’s stated reasons were held in good faith at the time of the discharge, even if they later prove to be untrue, or whether plaintiff can show that the employer’s explanation was so weak, implausible, inconsistent or incoherent that a reasonable fact-finder could conclude that it was not an honestly held belief but rather was subterfuge for discrimination. The evidence on the record shows that UW--the decision-maker--believed, based upon other employees’ reports, that Appellant had, in fact, directed the secret taping of a committee meeting. At the very least, UW believed that Appellant, as manager, had a direct hand in the taping. There is no evidentiary basis suggesting that UW came to this belief in bad faith. As a result, while UW’s conclusion about Appellant’s conduct may have been off base, there is no basis upon which a reasonable fact-finder could have found that it was not honestly held. Given the facts known to UW at the time, its decision seems reasonable. Although Appellant did not, at the summary judgment stage, have a burden to establish conclusively whether UW’s stated reliance on the results of the investigation was pretextual, she was required to “establish that there is a genuine factual dispute with regard to the truth.” Viewing Appellant’s evidence in the light most favorable to her position, the evidence demonstrates that UW may have been unwise or utilized questionable judgment, but it does not draw into question whether UW actually relied, honestly and in good faith, upon the appearance of improprieties arising from the evidence gathered in the investigations. The district court’s ruling on summary judgment will not be disturbed on this issue.
It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. Where a plaintiff cannot produce direct evidence of an employer’s discriminatory intent, the plaintiff may prove his case with circumstantial evidence under the burden-shifting scheme of proof established in McDonnell Douglas Corp. v. Green. In the instant case, Appellant has presented no direct evidence of discriminatory intent on the part of UW. Under McDonnell Douglas, the initial burden falls on Appellant to demonstrate a prima facie case of retaliatory discharge. If Appellant satisfies this initial burden, then a presumption of discrimination arises, and the burden shifts to the employer to produce a legitimate, non-discriminatory reason for its adverse employment action. If the employer proffers a legitimate reason, the employee then must prove, by a preponderance of the evidence, that the employer’s explanation is merely a pretext for unlawful discrimination.
To establish a prima facie case of retaliation, a plaintiff must demonstrate (1) that he engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action. If a plaintiff is unable to make out a prima facie case, judgment as a matter of law is appropriate. Appellant in the present action failed to meet the first requirement in establishing her prima facie case. Appellant argues that she participated in a protected activity – that is, reporting complaints and providing recorded evidence of the “hostile, vulgar, unprofessional, abusive, discriminatory and offensive behavior, language and conduct” of the TAC members – specifically, that her workplace could be defined as a “hostile work environment.” In order for a hostile work environment claim to survive a summary judgment motion, a plaintiff must show that a rational jury could find that the workplace was permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. To evaluate whether a working environment is sufficiently hostile or abusive, we examine all the circumstances, including: (1) the frequency of the discriminatory conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s work performance. In addition, the environment must be both subjectively and objectively hostile or abusive. Applying these principles to the present action, Appellant’s allegations regarding the behaviors of the TAC fall short of demonstrating a pervasive or severely hostile work environment. The evidence proffered by Appellant includes “hostile, vulgar, unprofessional, abusive, discriminatory and offensive behavior” and gender-based appellate decision-making. Specifically, when considering the TAC’s conduct, it cannot be concluded that the committee’s sometimes off-the-record joking, gossip, and swearing could be considered hostile – perhaps unprofessional, but not hostile. There is no evidence, that a hostile work environment, as is defined by civil rights laws, existed in the instant case. Furthermore, it should be noted that Appellant never complained of being personally victimized by the allegedly offensive behavior of TAC members, or even present during their allegedly “vulgar” behavior.
Even if Appellant had met her burden of establishing a prima facie case, UW, under its burden, produced legitimate, non-discriminatory reasons for firing Appellant. In fact, UW provided three specific, non-discriminatory reasons for her termination: (1) significant misconduct and carelessness by engaging in activities (secret audio taping of the [TAC]) which are detrimental to the operations of UW and which impair UW missions, purposes, and objectives as an institution of higher education and which caused an irreversible erosion of trust; (2) asking a subordinate employee to implement detrimental activities; and (3) deception and dishonesty in the investigation of the misconduct. Without a prima facie showing of retaliation, Appellant’s claim fails on appeal.
Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for an employer to discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). UW concedes that Appellant met the requirement of showing a prima facie case for gender discrimination. Therefore, the burden then shifts to UW to articulate a legitimate, non-discriminatory reason for the adverse employment decision. Because UW met its burden of production, the burden shifted once again back to Appellant to show UW’s reasons for termination were not legitimate, but pretextual. UW terminated Appellant because it concluded, in good faith, that she was dishonest and deceitful during its personnel investigation. UW explained its legitimate reasons for not firing two men involved in the incident because they found both men to be honest, contrite and remorseful during the investigation of the taping incident. Again, UW is not required to be correct in its assessment that Appellant was, in fact, dishonest and deceitful; it is only required to have come to its conclusions in good faith and in a non-discriminatory manner. UW completed a thorough personnel investigation surrounding the audio taping incident, concluded that Appellant was dishonest and deceptive, and relied upon that conclusion in good faith when terminating Appellant. This is all that the law can require of an employer. Thus, there was no discrimination against Appellant on the basis of her gender, and the district court is affirmed on this issue.
Though Appellant did not have an express employment contract with UW, both parties have assumed that the UniRegs removed Appellant from “at-will” employment and allowed her to only be terminated “for cause.”Ordinarily, in implied employment contract cases, a breach of contract is established by the employer’s failure to follow the procedures contained in the handbook, by a showing there was no cause for termination, or by both. In order to establish a breach of contract claim based upon a violation of personnel rules, a plaintiff must prove two things: (1) The handbook actually became part of the employment contract, and (2) the terms of the handbook were breached. Appellant complains that UW committed an act of retaliation against her for reporting harassment and/or discrimination. However, this claim fails because she never actually reported her claim that she was terminated in retaliation. Appellant had ample opportunity to do so – including at her pre-termination hearing and post-termination dispute resolution proceeding available to her. The post-termination appeal afforded Appellant a hearing before an independent hearing examiner, but Appellant reached an agreement with UW before that hearing could take place. Without having the opportunity to cure a reported incident, UW cannot be held responsible for a claim to which they were never privy.
Appellant also contends that UW failed to ensure that the work environment was free of discrimination and harassment; that UW failed to ensure that any report of discrimination and harassment shall be forwarded to the next level; and that it failed to promptly address any instance of discrimination and harassment. Appellant contends that the complaints she received, she reported to her supervisor. However, Appellant failed to adhere to the requirements of the UniRegs by not submitting a report to an Employment Practices Officer. UW has defined procedures, set out in the UniRegs, providing the process that a UW employee must follow in complaining of discrimination and harassment. These procedures allow UW to investigate and correct the problem. However, UW must learn that a problem exists before it can actually address it. Here, it was Appellant, not UW, who did not follow proper procedure. Accordingly, there was no breach of Appellant’s implied contract with UW.
Appellant can also prove breach of her employment contract by showing that she was terminated without cause. UW conducted an investigation into the taping incident, from which it concluded that Appellant directed the audio recording to be performed, or, at the very least, that Appellant had a large hand in ensuring that the taping occurred. A review of the record shows that the investigation was appropriate and altogether thorough, lasting nearly one month until any disciplinary actions were discussed and recommended. The facts do support UW’s decision to terminate Appellant. The question on appeal is not who taped the meeting, or even who ordered the taping, but rather, did UW act in good faith in terminating Appellant? After a thorough review of the record, the conclusion is that UW did act in good faith.
Appellant’s final argument on appeal is that the individual appellees wrongfully interfered with her implied employment contract with UW by “urging” her termination. In Wyoming, the following elements must be demonstrated to sustain a cause of action for tortious interference with a contract or prospective economic advantage: (1) The existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferer; (3) intentional and improper interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. The plaintiff has the burden of proving these elements. Whether or not interference with a contract was improper is a question of fact. However, in the present action the record is lacking in evidence to support that claim. The appellees were interviewed as part of UW’s official internal investigation regarding the taping incident. Other committee members were also questioned, and everyone interviewed was asked the same set of questions. Furthermore, the investigation was conducted during business hours. There is, accordingly, no evidence that either appellee was acting outside the scope of their employment or that their actions were legally improper. It is clear that Appellant failed to meet her burden of proof of the four elements of a cause of action for tortious interference with a contractual relationship or business expectancy.
No genuine issues of material fact exist on Appellant’s claims on appeal. Both her gender discrimination claim and hostile work environment claim fail to raise further questions. There was no breach of contract by UW. Furthermore, nothing in the record to supports her claims against the individual appellees for interference with a contract.

The district court is affirmed in all respects.

Link: http://tinyurl.com/ag59wq .

J. Hill delivered the opinion for the court.

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