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Boone v. Cementation USA Inc.

United States District Court, D. Nevada

December 9, 2014

TAMMY BOONE, Plaintiff,
v.
CEMENTATION USA INC., a Nevada Corporation, Defendant

For Tammy Boone, Plaintiff: Michael P. Balaban, Law Offices of Michael P. Balaban, Las Vegas, NV.

For Cementation USA Inc., Defendant: Scott M. Mahoney, LEAD ATTORNEY, Fisher & Phillips, LLP, Las Vegas, NV; Danielle Urban, Fisher & Phillips LLP, Denver, CO.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Dkt. #21)

ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE.

Tammy Boone alleges that, while working for Cementation USA Inc. (" Cementation") as an office clerk, she was sexually harassed by her supervisor on a daily basis. After Boone opposed the harassment, she was allegedly given a negative work evaluation. Boone sued Cementation, alleging four claims: (1) hostile work environment sexual harassment, (2) quid pro quo sexual harassment, (3) gender discrimination; and (4) retaliation. Cementation has moved for summary judgment. (Dkt. #21.)

I rule in Cementation's favor on Boone's claims of hostile work environment, quid pro quo harassment, and gender discrimination. Cementation addressed the alleged harassment with reasonable care and Boone unreasonably failed to take advantage of the available remedies. Cementation is not liable for quid pro quo harassment because Boone has provided no evidence of anything more than an unfulfilled sexual threat, which is insufficient. Boone's gender discrimination claim fails for a variety of reasons, including that there were no open positions for which she was qualified. But I deny Cementation's motion on the retaliation claim. There is a triable issue of fact whether Boone's supervisor retaliated after Boone reported the sexual harassment.

I. BACKGROUND

In January of 2012, Boone began working as an office clerk at Cementation's Leeville, Nevada mining project.[1] The mining project was temporary, and Boone knew her employment would last only until the Leeville project was completed later in 2012.[2]

Boone alleges that about two weeks after she began working, her supervisor, Charlie Lackie, began to sexually harass her.[3] The harassment allegedly took various forms, including: Lackie viewing sexually explicit jokes near where Boone worked; [4] Lackie texting Boone sexually explicit communications, such as that he needed Boone to help him take a bath; [5] Lackie making sexually suggestive comments such as that Boone could thank Lackie in " other ways; " [6] and Lackie telling Boone that he was going to do a " reach around*' on her.[7]

On April 7, 2012, Lackie filled out a work-review form for Boone. Lackie marked that Boone qualified for continued employment.[8] He rated Boone's safety, quality of work, and attendance as " five out of five." [9]

On April 27, 2012, Boone discussed the harassment with two of her co-workers.[10] Boone said she felt uncomfortable reporting the harassment, so one of her co-workers decided to make a report on Boone's behalf. He reported the harassment to Cementation management that same day.[11]

On April 28, 2012, the day after management first received a report of Boone's harassment, Cementation's human resources department contacted Boone.[12] Wiley Finch, the human resources director, told Boone that Cementation would investigate the harassment immediately and remove Lackie from the project if needed.[13] Boone refused to discuss the harassment in detail, but Finch nevertheless offered to place Boone on paid vacation.[14] Boone refused. Finch asked Boone to come into Cementation's Salt Lake City office the following week for a meeting.[15]

Over the next several days, Finch regularly called and emailed Boone to gather information about the alleged harassment.[16] Eventually, Boone cancelled the meeting in Salt Lake City.[17] Finch called and offered to drive to Elko to meet with Boone, but Boone admitted she was already out of state.[18] On May 1, 2012, Boone emailed a complaint to Finch that, for the first time, provided specific details about the alleged harassment.[19] After receiving the complaint, Finch attempted to contact Boone several times to gather additional information. Boone never responded.[20]

On May 5, 2012, Boone was laid off because the Leeville project was ending. Lackie filled out Boone's final paperwork and rated her as " above average" for safety and work habits, and " average" for attitude. But he wrote that, overall, he would not recommend her for rehire.[21]

After fully investigating Boone's complaint, Finch concluded that some of the allegations were substantiated and others were not. Finch sent Boone a letter that contained his findings.[22] A " Disciplinary Action Report" was issued against Lackie, and he was required to take sexual harassment training, including a class in workplace harassment and a class in managerial harassment." [23] After her position ended on May 5, 2012, Boone did not apply for a transfer or rehire at Cementation.[24]

On September 23, 2012, Boone filed her lawsuit in this Court. Cementation seeks summary ...


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