Thacker v. GPS Insight, LLC

          ORDER

          David G. Campbell, Senior United States District Judge.

         Plaintiff Jeremy Thacker brings this action against Defendants GPS Insight, LLC (“GPSI”) and Robert Donat. Plaintiff alleges claims for tortious interference with contract and prospective economic advantage, defamation, invasion of privacy, and violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., and the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA”). Doc. 70.

         The parties have cross-moved for partial summary judgment. Docs. 112, 113. The motions are fully briefed, and no party requests oral argument. Docs. 119, 123, 129, 133. For the following reasons, the Court will deny Plaintiff's motion, deny summary judgment on the tortious interference with contract claim, and grant summary judgment on the Title VII and FCRA claims and claim for tortious interference with economic advantage.

         I. Background.

         Plaintiff held a sales position at GPSI from approximately June 4, 2013 until his termination on March 6, 2017. Since 2006, Donat has been the president, sole director, and majority shareholder of GPSI's sole member, Sedonatech, Inc. He is also GPSI's founder and CEO. Docs. 70 at 1-2; 105 at 1. Donat had a romantic relationship with a GPSI employee Kristin Lisson, which ended in November 2016. Doc. 105 at 2. Lisson began dating Plaintiff in December 2016. Lisson's supervisors, Tyler Mortensen and Jason Walker, told Plaintiff and Lisson that their relationship did not violate company policy or involve a conflict of interest. Id. Plaintiff alleges that Donat began harassing Plaintiff and Lisson about the relationship and terminated Plaintiff for jealous and retaliatory reasons. Docs. 70, 129 at 1-2.

         Walker, Plaintiff's direct supervisor, testified that he decided to terminate Plaintiff on the evening of March 2, 2017, in part because of a meeting earlier that day about Plaintiff's compensation in which Plaintiff was insubordinate. Docs. 112 at 3; 129-1 at 105-06. Walker testified that several other performance issues contributed to the decision, including problems with Plaintiff's attendance and attitude, as well as instances of untruthfulness in 2013. Doc. 129-1 at 105-06. Plaintiff was terminated on his next day at the office on March 6, 2017. Doc. 112 at 3.^[1]

         Defendants move for partial summary judgment on Plaintiff's claims for Title VII violations (Count 1), tortious interference with contract (Count 2), FCRA violations (Count 5), and tortious interference with prospective economic advantage (Count 7). Doc. 112. Plaintiff cross-moves for summary judgment on his FCRA claim. Doc. 113.

         II. Summary Judgment Legal Standard.

         A party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment is also appropriate against a party who “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome of the suit will preclude summary judgment, and the disputed evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         III. Count 1: Title VII Violations.

         Plaintiff alleges that GPSI discriminated against him because of his romantic relationship with Lisson and retaliated against him because he opposed Donat's sexual harassment of Lisson. Doc. 70 at 11.^[2]

         A. Sex Discrimination.

         1. Standard.

         An employer violates Title VII when it subjects an employee to disparate treatment because of the employee's sex. 42 U.S.C. § 2000e-2(a); see Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 690 (9th Cir. 2017); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972). A plaintiff can establish an inference of discrimination “by satisfying the prima facie elements from McDonnell Douglas: (1) the plaintiff belongs to a protected class, (2) he was performing according to his employer's legitimate expectations, (3) he suffered an adverse employment action, and (4) similarly situated employees were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.” Reynaga, 847 F.3d at 690-91.

         2. Discussion.

         Plaintiff's complaint does not clearly identify the basis for his claim, but he states elsewhere that he was discriminated against because of his association with Lisson as a member of a protected class, and that Donat began disparaging Plaintiff once he learned of Plaintiff's relationship with Lisson. Doc. 129 at 1, 11, 3, 5; see also Doc. 112-2 at 9.^[3]Plaintiff's own statements repeatedly show that his claim of disparate treatment is based not on the fact that he is a male or that he associated with a female, but on Donat's personal jealousy over Plaintiff's and Lisson's relationship. GPSI argues that this is not sex discrimination cognizable under Title VII. Doc. 112 at 6.

         Plaintiff relies on a line of cases dealing with associational discrimination based on race or national origin. Id. at 11; Doc. 112-2 at 8-13; see, e.g., Tovar v. Essentia Health, 857 F.3d 771, 776 (8th Cir. 2017) (discussing examples). He acknowledges that those cases involve only relationships between people of different races or national origins, but asserts that “there is nothing in any of [the] decisions that suggests their holdings are so limited.” Docs. 129 at 11; 112-2 at 8-13. The Ninth Circuit appears to have treated favorably the notion that a plaintiff has a Title VII hostile environment claim when he is discriminated against based on his association with members of a different race. See McFinest v. GTE Serv. Corp., 360 F.3d 1003, 1118 (9th Cir. 2004). But Plaintiff cites no Ninth Circuit authority for extending the race-based associational discrimination theory to a case like this, where Plaintiff does not allege that he was mistreated for associating with someone of a different race or national origin.

         Some courts have extended associational discrimination to sexual orientation discrimination. See Zarda v. Altitude Express, Inc., 883 F.3d 100, 128 (2d Cir. 2018). But Plaintiff does not argue that he was discriminated against because he had a heterosexual romantic relationship. He asserts that he was discriminated against because he dated Lisson, who formerly had a relationship with Donat. Plaintiff states repeatedly that “Donat was motivated by his jealousy and Lisson's rejection of his sexual advances in favor of” Plaintiff. See, e.g., Doc. 129 at 8. The alleged basis for the conflict is Donat's alleged jealousy of Lisson's relationship with Plaintiff, not that Plaintiff was a male dating a female.

         “Title VII only prohibit[s] discrimination based on immutable characteristics associated with a worker's sex.” Jespersen v. Harrah's Operating Co., 392 F.3d 1076, 1080 (9th Cir. 2004). “[P]ersonal animosity is not the equivalent of sex discrimination, ” and Plaintiff “cannot turn a personal feud into a sex discrimination case.” Jura v. County of Maui, No. 11-00338 SOM/RLP, 2012 WL 5187845, at *7 (D. Haw. Oct. 17, 2012) (quoting Succar v. Dade Cty. Sch. Bd., 229 F.3d 1343, 1345 (11th Cir. 2000)); see also Onscale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (Title VII is not “a general civility code for the American workplace”); Northington v. H&M Int'l, 712 F.3d 1062, 1065 (7th Cir. 2013) (no protected activity where plaintiff complained about employee's maltreatment based on that employee's personal dispute with plaintiff over a relationship between plaintiff and the employee's ex); cf. Maner v. Dignity Health, 350 F.Supp.3d 899, 904-06 (D. Ariz. 2018) (discussing cases and holding that defendant's favoritism of his romantic partner was non-cognizable under Title VII because it was not based on sex, but a personal relationship).^[4]

         Plaintiff has failed to establish elements essential to his prima facie case for which he would have the burden at trial, namely that he suffered an adverse employment action on the basis of his sex. See Celotex, 477 U.S. at 322. The Court will grant summary judgment to GPSI on Plaintiff's sex discrimination claim.

         B. Retaliation

         1.Standard.

         A retaliation claim must establish that (1) the employee engaged in a protected activity, (2) the employer took an adverse employment action against the employee, and (3) the employer would not have taken the adverse employment action but for a design to retaliate. Nilsson v. City of Mesa, 503 F.3d 947, 953-54 (9th Cir. 2007); see Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013) (clarifying that employee must show “but for” causation). An employee engages in protected activity when he complains about conduct that he reasonably believes constitutes an unlawful employment practice under Title VII or participates in an EEOC investigation or proceeding. 42 U.S.C. § 2000e-3(a); see Trent v. Valley Elec. Ass'n Inc., 41 F.3d 524, 526 (9th Cir. 1994). “An employee need not utter magic words to put his employer on notice that he is complaining about unlawful discrimination.” Ekweani v. Ameriprise Fin., Inc., No. CV-08-01101-PHX-FJM, 2010 WL 481647, at *6 (D. Ariz. Feb. 8, 2010) (citation omitted). Whether “analyzed as a requirement for protected activity or under the element of causal link, . . . an employer must reasonably be aware that its employee is engaging in protected activity.” Id. (citing Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982); see also Quinones v. Potter, 661 F.Supp.2d 1105, 1126-27 (D. Ariz. 2009) (citing Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 291-92 (2d Cir. 1998) for the proposition that “implicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood or could reasonably have understood, that the plaintiff's opposition was directed at conduct prohibited by Title VII”).

         2. No Protected Activity by Plaintiff.

         GPSI argues that Plaintiff engaged in no protected activity and was terminated for his conduct, not for retaliatory reasons. Docs. 112 at 3, 6 n.3; 133 at 2, 5. According to Defendants, Plaintiff has misrepresented as protected activity a complaint he made to Mortensen about Donat's harassment of Lisson. Doc. 112 at 6. The alleged complaint was an email Plaintiff sent from his personal email address to Mortensen's personal email address in February 2017. Doc. 112-1 at 232. Plaintiff's message appears to be following up on an earlier conversation with Mortensen (“I told you today because I want you to have a heads up personally”), but indicates that Plaintiff does not wish for Mortensen to share the information, especially with Walker. Plaintiff's statements to that effect include:

I am ONLY telling you things because first and foremost you're my friend. I'm not sure if that is right either though because it's unfair to ask you to not say anything when it [a]ffects others professionally and personally.

Professionally, I don't think it's worth telling anyone because I don't think anyone is in a position to do anything about it. . . . If nobody is willing or ready do anything about it, I don't know what good it does for them to know.

[Lisson] doesn't want [Walker] to know because she doesn't trust him to not do anything or to do enough if he did. I agree with her.

Doc. 112-1 at 232 (emphasis added). Plaintiff reiterated in a text message that he did not want Mortensen to share the information or take any action. Doc. 112-1 at 201-02, 204.

         Defendants argue that this email was not a Title VII complaint. It was a personal communication, not a professional complaint about discrimination. And even if the email was protected activity, Defendants argue, the person who decided to terminate Plaintiff - Walker - was unaware of it before the termination decision. Doc. 112 at 6 n.3.

         Plaintiff responds that disputes of fact exist about whether Walker knew of the email, but he cites no evidentiary support. Doc. 129 at 6. He also contends that he complained about unlawful discrimination in January 11 and March 2, 2017 meetings with Walker and Mortensen, but his cited support fails to mention discrimination or complaints of Title VII misconduct. See Docs. 129-1 at 112 (Walker's testimony that Plaintiff never told Walker that Donat was harassing Lisson, and only stated that he thought he was unfairly judged by Donat and another employee); 147 (Mortensen's testimony that he did not remember discussing Lisson with Plaintiff on January 11, 2017).

         Plaintiff states that he complained of discrimination in oral and written statements to Mortensen. Doc. 129 at 6. But his citations rely again on Plaintiff's incorrect theory of sex discrimination based on his relationship with Lisson, or simply refer to issues regarding his compensation. See Docs. 129-3 at 17 (from the February 2017 email, stating that Plaintiff does not think Donat will ever “treat Kristin or [him] fairly after she has crushed [Donat's] ego by choosing [Plaintiff]”); 129-2 at 80 (Plaintiff's text message to Mortensen stating: “If [Donat] is not willing to pay me because of who I'm dating, I shouldn't be the only one willing to say it”); 129-2 at 84 (discussing his compensation in text messages with ...