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Bushman v. Utah Valley University

United States District Court, D. Utah

January 30, 2017

JUANITA BUSHMAN, Plaintiff,
v.
UTAH VALLEY UNIVERSITY, Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING [24] MOTION FOR SUMMARY JUDGMENT AND FINDING MOOT [19] MOTION FOR PARTIAL SUMMARY JUDGMENT

          David Nuffer United States District Judge.

         Plaintiff Juanita Bushman alleges various incidents of religious harassment, religious disparate treatment, and retaliation pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) over a nearly three-year period.[1] Defendant Utah Valley University (“UVU”) moves for summary judgment.[2] Bushman responded in only partial opposition to the motion.[3] UVU replied in support of the Motion.[4]

         The Motion is GRANTED because Bushman concedes summary judgment is appropriate for her harassment[5] and disparate treatment[6] claims[7] and fails to raise a genuine issue of material fact for her retaliation claim.

         Because summary judgment is granted on all claims, UVU's motion for partial summary judgment[8] is MOOT.

         UNDISPUTED MATERIAL FACTS

         The following undisputed material facts are a reconciliation of the statement of material facts within the Motion, Opposition, and Reply.

         1. Bushman submitted three specific occasions when she believes that then-fellow employee, Laura McCullough, made offensive religious comments. The three incidents listed by Bushman occurred on October 27, 2010, September 22, 2011, and October 26, 2011.[9]

         2. Bushman alleged other conversations between her and Laura McCullough in which McCullough expressed her dislike of, and displeasure with, the Mormon religion and culture. These allegations are not specific as to date or content, they are vague in nature, were not written down or recorded by Bushman, and the religious comments seem to have been made in the course of ordinary conversations, often in large groups.[10]

         3. Bushman's reaction to McCullough's opinion of the Mormon religion and Bushman's description of the conversations as harassment are highly subjective. Bushman believes that one negative comment about her religion, even when made during a conversation about religion, is harassment.[11]

         4. All of the comments made by McCullough which Bushman complains about, were made when McCullough was an advisor, a co-worker with Bushman, and before McCullough became Bushman's supervisor with authority.[12]

         5. Laura McCullough was appointed as the coordinating manager of the Academic Advisement Center with limited authority in October 2011. Her role was to coordinate and advise Associate Dean Bule (Bule) who retained supervisory authority. She did not have performance evaluation or disciplinary authority.[13]

         6. Bushman complained to HR about McCullough's religious statements in February 2012.[14]

         7. All of the religious comments stopped after Bushman complained to the University and the University counseled McCullough.[15]

         8. Laura McCullough was given full supervisory authority over the Academic Advisement Center, including performance management and disciplinary authority over the other counselors, on March 29, 2012.[16]

         9. On April 26, 2012, Bushman was issued a Written Warning by her supervisor Laura McCullough, Associate Dean Bule, and HR representative Kurt Ashworth.[17]

         10. Prior to the Written Warning being issued Laura McCullough consulted with HR and with Dean Dayley and Associate Dean Bule who concurred in the action and who participated in the preparation of the Written Warning and the presentation of the Written Warning to Bushman.[18]

         11. The Written Warning was based on what the University personnel perceived as a historical lack of cooperation with other counselors and not being a team player, causing negative atmosphere and tension. It was also based on complaints from students, a complaint from the IT department for which Bushman rejected responsibility, poor student evaluations, and resistance to training from HR.[19]

         12. On July 9, 2012, Bushman was issued a Final Written Warning in lieu of termination.[20]

         13. Although the Final Written Warning was signed by Laura McCullough, it was presented to Bushman by Dean Dayley and the head of HR, Vice President Ronald Price. The Final Written Warning was prepared by McCullough, and HR, including Price and Ashworth in consultation with Dean Dayley, starting in June 2012.[21]

         14. The Final Written Warning was triggered by what University personnel perceived as plaintiff's insubordination, calling her supervisor a liar and of low character during a counseling session with an HR representative, and by what University personnel perceived as Bushman's continued resistance to counseling and refusal to accept any responsibility for the problems she was creating.[22]

         15. Laura McCullough left the University on October 19, 2012.[23]

         16. The only disciplinary actions Laura McCullough took against Bushman were the Written Warning and the Final Written Warning.[24]

         17. On August 7, 2013, Bushman's employment with the University was terminated by her supervisor Associate Dean Bule with the full support of Dean Dayley and the concurrence of University Vice President Wilson.[25]

         18. Prior to terminating Bushman, Steve Bule consulted with HR and the Dean of the School of Arts, who concurred in the action.[26]

         19. The termination was supported by numerous incidents and complaints which had occurred after the departure of Laura McCullough from the University, including what various University personnel perceived as Bushman's continued antagonistic attitude and behavior, complaints from the School of Music, the result of an accreditation evaluation that reflected negatively on Bushman, complaints from students, and the departure of yet another co-worker.[27]

         20. Before approving the decision to terminate Bushman, Dean Dayley met with Bushman in March 2013 and in July 2013. Bushman refused to accept any responsibility.[28]

         21. Dean Dayley conducted an investigation and interviewed all staff members, including Bushman, before approving the termination.[29]

         22. Bushman did not believe she was the cause of the interpersonal problems in the Advisement Center.[30]

         23. Bushman admits that no one else at the University harassed her based on her religion, discriminated against her based on her religion, or retaliated against her for reporting Laura McCullough to HR. Specifically, Bushman admits that no one in HR and no one in the School of Arts was involved in religious harassment, discrimination or retaliation, including Dean Dayley, Associate Dean Bule, Mark Wiesenberg (HR), Kurt Ashworth (HR), Vice president Ron Price (HR), Vice President Wilson, Music Chair Fairbanks, Professor Smith, Professor Nelson, Secretary Paula Nye, and the co-workers, fellow counselors who worked in the Center, including Christine Daoust, Rae Ann Ellis, Melissa Eiche, and Audrey Thrasher.[31]

         24. Bushman admits that Dean Dayley and Steve Bule, both of whom were decision makers in each of the warnings and the termination decision, are, like Bushman, both Latter-Day Saints (Mormons).[32]

         25. Bushman admits she has no direct evidence to support her retaliation claim.[33]

         26. The only evidence Bushman cites in support of her retaliation claim is the timing of the Written Warning Bushman received from her supervisor Laura McCullough, Associate Dean Bule, and HR representative Kurt Ashworth.[34]

         27. Bushman complains that she was excluded from conversations and other activities, including not being invited to lunch, but admits she was never denied any benefits of employment, pay raises, promotion, or prevented from attending employment connected meetings such as The Learning Circle.[35]

         STANDARD ...


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