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Richardson v. Granite Construction

May 6, 2008

DENA JOAN RICHARDSON, PLAINTIFF,
v.
GRANITE CONSTRUCTION, DEFENDANT.



The opinion of the court was delivered by: Ted Stewart United States District Judge

MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

This matter comes before the Court on Defendant's Motion for Summary Judgment.*fn1

This motion is fully briefed. For the reasons discussed below, this motion will be granted in part and denied in part.

I. Factual Background

Plaintiff Dena Joan Richardson ("Plaintiff") was employed as an apprentice mechanic by Defendant Granite Construction ("Granite"). Plaintiff belonged to a union that negotiated her wages with Granite.*fn2 A union steward worked at the shop where Plaintiff worked and handled grievances that arose between Granite and union members. Granite has anti-discrimination and anti-sexual harassment policies that are included in a pamphlet and an employee manual that are given to Granite employees, including Plaintiff. The manual includes instructions on reporting harassment and Plaintiff was aware of these instructions.

Advancement at Granite was based on job classification and hours worked at that job. Plaintiff worked as an apprentice mechanic and spent considerable time cleaning the shop, rather than learning skills that would assist her as she advanced in her position. Therefore, when she advanced to the level of journeyman mechanic, her peers were "probably" better qualified than she was.*fn3

Granite hired and fired employees on a seasonal basis. Plaintiff worked more hours in the summer and was laid off in the winter, along with several other employees. As part of Plaintiff's journeyman training, she obtained a state inspector license. Plaintiff was the only one in her division with an inspector license for some time, and she felt that having her license was the only reason she was called back to work after winter layoffs.

Plaintiff was injured at work in November 2004. Plaintiff reported the injury, went home to rest, and ultimately felt she was supposed to "'take care of it' through her own insurance."*fn4

Plaintiff worked light duty for the week after her injury and felt that attitudes toward her generally changed after she was injured.

In 1994, a co-worker tried to touch Plaintiff from underneath a piece of equipment.*fn5

Plaintiff reported the incident and it never happened again. In 1998 or 1999, another employee picked Plaintiff up by her coverall straps and tried to touch her breasts, but Plaintiff kicked him in the crotch and he stopped.

Beginning in 2001, a laborer that had been hired to clean the shop began making comments to Plaintiff regarding her sexual orientation and the laborer's sexual abilities and prowess. Plaintiff complained about "comments" that were being made, that the laborer was not performing his job, and that Plaintiff was doing it for him.*fn6 She did not complain specifically about the sexual comments being made, only that she was "sick of hearing his comments . . . sick of hearing his mouth . . .[and] sick of cleaning up after him."*fn7 In response to Plaintiff's complaints, she and the laborer were instructed not to work together and the comments stopped.

In the winter of 2004 and continuing through January or February 2005, Plaintiff noticed pictures of naked men hung on pieces of equipment and around the shop on three different occasions. Plaintiff did not complain to anyone about the pictures, other than to mention them to Jerry Comer.

In January 2005, Plaintiff was not initially called back to work after winter layoffs because another employee had been certified to inspect equipment. After that employee was fired, Plaintiff did get her job back, but upon arriving back to work, discovered that her coveralls were no longer there.

Plaintiff was laid off in June 2005 because Granite did not have enough work. Plaintiff felt she was being laid off because of the circumstances surrounding her 2004 on-the-job injury, and her interactions with the laborer. On her way home from being laid off, Plaintiff spoke to somebody at the union about being laid off and was told there was nothing the union could do, and that Plaintiff could "file anything [she needed] to do through the state."*fn8 Plaintiff filed a charge of discrimination with the Utah Anti-discrimination and Labor Division ("UALD") and the EEOC on December 8, 2005, and received a Notice of Right to Sue on March 30, 2006.

II. Procedural History

Plaintiff filed her Complaint on May 25, 2006 and filed an amended Complaint on July 27, 2006.*fn9 Plaintiff asserts three claims: 1) sex discrimination; 2) retaliation; and 3) negligent supervision. Defendant filed the instant motion for summary judgment on October 1, 2007.*fn10 In Plaintiff's Memorandum in Opposition, she withdrew her retaliation and negligent supervision claims, leaving ...


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