Katynski v. Saint-Gobain Corp., No. 2:2013cv00752 - Document 63 (D. Nev. 2015)

Court Description: ORDER Granting in part and denying in part 53 Motion for Summary Judgment. FURTHER ORDERED that the Saint Gobain Corporation is dismissed from this lawsuit. Signed by Judge Andrew P. Gordon on 3/9/15. (Copies have been distributed pursuant to the NEF - MMM)
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Katynski v. Saint-Gobain Corp. Doc. 63 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 5 ALLEN KATYNSKI, Plaintiff, v. 6 7 8 9 10 CERTAINTEED GYPSUM MANUFACTURING, INC., SAINTGOBAIN CORPORATION; and DOES I through X, and ROE CORPORATIONS I through X, Case No. 2:13-cv-00752-APG-PAL ORDER ON MOTION FOR SUMMARY JUDGMENT (Dkt. #53) Defendants. 11 Plaintiff Allen Katynski was injured while working at a gypsum manufacturing plant 12 owned by Certainteed Gypsum Manufacturing, Inc. (“CGM”). Katynski claims his supervisors 13 discouraged him from filing a worker’s compensation claim and then terminated him when he 14 filed a claim. Katynski brought this lawsuit against CGM and its parent company, the Saint15 Gobain Corporation, asserting claims for: (1) wrongful discharge, (2) breach of the covenant of 16 good faith, and (3) intentional infliction of emotional distress (“IIED”). Defendants seek 17 summary judgment on all of Katynski’s claims. Defendants also request that I dismiss Saint18 Gobain because no valid claims are asserted against it. 19 Katynski has created a genuine dispute as to whether CGM wrongfully terminated him in 20 retaliation for filing a worker’s compensation claim. But defendants are entitled to summary 21 judgment on the other claims. A contract is a necessary element of the implied covenant of good 22 faith claim, and Katynski fails to rebut defendants’ showing that no contract exists between them. 23 Katynski also has failed to submit evidence rebutting defendants’ showing that its conduct did not 24 rise to the level of extreme and outrageous required to support an IIED claim. Finally, Katynski 25 has failed to provide any evidence or argument to suggest that Saint-Gobain is a proper party in 26 this case, so I dismiss it from this lawsuit. 27 28 Dockets.Justia.com 1 2 I. BACKGROUND From 2007 to 2012, Katynski worked for CGM at a gypsum manufacturing plant in Blue 3 Diamond, NV. Katynski operated a piece of machinery known as the “knife.” During this period 4 at CGM, Katynski’s supervisors were Phillip Chavira, and James Turba. 5 In July of 2012, Katynski resigned from CGM and moved to Ohio to be near his son. 6 Shortly after starting a new job in Ohio, Katynski was terminated and returned to Nevada. Turba 7 offered Katynski a new job at CGM as a laborer and trainer for the new “knife” operator. 8 Katynski was rehired on October 3, 2012. The parties agree that, when Katynski returned to 9 CGM in October of 2012, he was subject to a 60-day probationary period in which CGM could 10 terminate him at will. 11 A. Katynski’s attitude upon returning to the Blue Diamond plant 12 The parties agree that, after working in Ohio and returning to the Blue Diamond plant, 13 Katynski’s attitude changed. Defendants’ witnesses testified that Katynski had a negative 14 attitude.1 They also testified that Katynski acted inappropriately on several occasions. For 15 example, Katynski allegedly threw papers at his supervisor, left his work area without 16 authorization, showed frustration when receiving critiques, and—on October 12, 2012—had a 17 verbal altercation with a co-worker.2 18 Katynski disputes defendants’ characterization of his attitude. According to Katynski, his 19 attitude was more sober upon returning to CGM, but he never threw papers at his supervisor, he 20 had permission to leave his work area, and during the October 12 incident it was another 21 employee, not Katynski, who instigated the altercation.3 22 23 24 25 1 (Dkt. ##53-1 at 102-105.) 26 2 (Dkt. ##53-1 at 100-120; 53-2 at 90-91.) 27 3 (Dkt. #59 at 45-81.) 28 Page 2 of 9 1 B. Katynski’s back injury, worker’s compensation claim, and termination 2 On October 9, 2012 Katynski injured his back while shoveling at work.4 Katynski 3 testifies that he reported the injury to his supervisors but that they discouraged him from filing a 4 worker’s compensation claim.5 Katynski was told to “suck it up” and pay for his own treatment.6 5 He was told that if he wrote down on forms that the injury was a work injury, Chavira would 6 erase Katynski’s writing. 7 Katynski also testifies that on October 12, 2012—the same day Chavira says Katynski had 7 8 a verbal altercation with a coworker—Katynski could not take the pain anymore and decided to 9 leave work and go to a hospital for treatment.8 Chavira admits that he decided to terminate 10 Katynski on October 12, but he testifies that his decision was based on Katynski’s poor attitude, 11 not his work injury. 12 Despite that Katynski had reported his injury and was diagnosed by a doctor, his 13 supervisors emailed the worker’s compensation administrator and told him that Katynski’s claim 14 was a lie.9 Later, CGM withdrew its opposition to Katynski’s worker’s compensation claim. 15 Turba did not inform Katynski of his termination until November 1, 2012 when Katynski returned 16 to work with his medical release. 17 II. LEGAL STANDARDS 18 A. Summary Judgment 19 Summary judgment is appropriate when “the pleadings, depositions, answers to 20 interrogatories, and admissions on file, together with the affidavits, if any, show there is no 21 genuine issue as to any material fact and that the movant is entitled to judgment as a matter of 22 4 (Id. at 40.) 5 (Id. at 45.) 6 (Id. at 46.) 7 (Id. at 52-81.) 26 8 (Id. at 90-91.) 27 9 (Dkt. #53-1 at 105-10.) 23 24 25 28 Page 3 of 9 1 law.”10 For summary judgment purposes, the court views all facts and draws all inferences in the 2 light most favorable to the nonmoving party.11 If the moving party demonstrates the absence of any genuine issue of material fact, the 3 4 burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine 5 issue for trial.”12 The nonmoving party “must do more than simply show that there is some 6 metaphysical doubt as to the material facts.”13 She “must produce specific evidence, through 7 affidavits or admissible discovery material, to show” a sufficient evidentiary basis on which a 8 reasonable fact finder could find in her favor.14 A party must support or refute the assertion of a fact with admissible evidence.15 As the 9 10 summary judgment procedure is the pretrial functional equivalent of a directed-verdict motion, it 11 requires consideration of the same caliber of evidence that would be admitted at trial.16 Thus, it is 12 insufficient for a litigant to merely attach a document to a summary judgment motion or 13 opposition without affirmatively demonstrating its authenticity. 14 III. DISCUSSION 15 A. 16 An employer may be liable for a tortious discharge if it terminates an employee for 17 Tortious discharge claim reasons that violate public policy.17 Nevada has recognized that terminating an employee in 18 19 10 Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986) (citing Fed. R. Civ. P. 56(c)). 11 Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 21 12 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Celotex, 477 U.S. at 323. 22 13 Bank of Am. v. Orr, 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). 23 14 Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991); Anderson, 477 U.S. at 20 248–49. 24 25 15 Fed. R. Civ. Proc. 56(c)(1); Orr, 285 F.3d at 773; Harris v. Graham Enterprises, Inc., 2009 WL 648899, at *2 (D. Ariz. Mar. 10, 2009). 16 26 27 28 Anderson, 477 U.S. at 251 (citing Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 745 n.11 (1983)). 17 D'Angelo v. Gardner, 107 Nev. 704, 819 P.2d 206, 212 (Nev.1991). Page 4 of 9 1 retaliation for filing a worker's compensation claim violates public policy.18 “[R]ecovery for 2 retaliatory discharge under state law may not be had upon a ‘mixed motive’ theory; thus, a 3 plaintiff must demonstrate that his protected conduct was the proximate cause of the injury.”19 4 There are genuine disputes of fact material to whether Katynski’s worker’s compensation 5 claim proximately caused his termination. Defendants have provided evidence indicating 6 Katynski was terminated because he had a negative attitude and violated CGM’s rules. But 7 Katynski has provided sufficient evidence to create a genuine dispute about whether these were 8 the real reasons he was fired. For example, (1) Katynski testifies that his supervisors discouraged 9 him from filing a worker’s compensation claim, (2) Chavira admitted that he decided to terminate 10 Katynski within a few days of his workplace injury and on the same day Katynski left work to 11 seek medical treatment,20 (3) CGM challenged Katynski’s claim with the worker’s compensation 12 administrator, and (4) Katynski testifies he did not have a negative attitude at work or violate 13 CGM’s rules.21 Determining the credibility of defendants’ witnesses and Katynski’s testimony is 14 the province of the jury. And—viewing the facts in a light most favorable to Katynski—a 15 rationale jury could find that he would not have been terminated but for his worker’s 16 compensation claim. 17 Because I find there are genuine disputes of fact material to whether Katynski’s worker’s 18 compensation claim was the proximate cause for his termination, I deny summary judgment on 19 the tortious discharge claim. 20 21 22 18 Hansen v. Harrah's, 100 Nev. 60, 675 P.2d 394 (Nev.1984). 19 23 24 25 26 27 28 Allum v. Valley Bank of Nevada, 114 Nev. 1313, 1319-20, 970 P.2d 1062, 1066 (1998); see also Hansen v. Harrah's, 100 Nev. 60, 675 P.2d 394 (1984) (expressly permitting retaliatory discharge claim if an employer terminates an employee for filing a worker’s compensation claim). 20 Notably, proximity in time between a protected activity and a negative employment action is an important factor in discrimination and retaliation cases. See Kristzen v. Flender Corp, 589 N.E.2d 909 (1992). 21 (Dkt. #59 at 45-81.) Page 5 of 9 1 B. 2 In his response to the motion, Katynski withdraws his claim for breach of the implied 3 covenant.22 Nevertheless, I grant summary judgment on this claim in defendants’ favor.23 A 4 claim for breach of the covenant of good faith and fair dealing requires a plaintiff to demonstrate 5 that a contractual relationship existed and that the covenant of good faith was breached.24 6 Katynski has failed to establish that any contract existed in this case or that the implied covenant 7 has been breached. Section 301 of the Labor Management Relations Act also appears to pre-empt 8 Katynski’s implied covenant claim.25 Because defendants have met their burden to show 9 judgment as a matter of law is warranted, and because Katynski has failed to rebut this showing, I 10 Breach of the covenant of good faith and fair dealing grant summary judgment in defendants’ favor on the breach of implied covenant claim. 11 C. 12 To prove a claim of IIED in Nevada, Katynski must show (1) the defendants’ conduct was 13 extreme and outrageous; (2) the defendants either intentionally or recklessly caused the emotional 14 distress; (3) the plaintiff actually suffered severe or extreme emotional distress; and (4) the 15 defendants’ conduct actually or proximately caused the plaintiff's suffering.26 16 17 IIED claim A retaliatory termination, in itself, “does not even come close” to extreme and outrageous conduct.27 Only where an employer’s treatment of an employee “go[es] beyond all possible 18 22 19 20 21 22 23 (Dkt. #59 at 3.) 23 Katynski suggests that his agreement to withdraw this claim moots defendants’ motion as to this claim. But defendants moved for summary judgment and they are entitled to judgment if they meet their burden. Katynski was free to seek dismissal of his claim prior to my consideration of this motion for summary judgment, but he did not. 24 Martin v. Sears Roebuck, 111 Nev. 923, 927 (1995). 25 See Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059 (9th Cir. 2007). 26 24 25 Star v. Rabello, 97 Nev. 124, 625 P.2d 90, 92 (1981); Nelson v. City of Las Vegas, 99 Nev. 548, 665 P.2d 1141, 1145 (1983); see also Posadas v. City of Reno, 109 Nev. 448, 851 P.2d 438, 444 (1993). 27 26 27 28 Kegel v. Brown & Williamson Tobacco Corp., No. 3:06-cv-00093-LRH-VPC, 2009 WL 656372, at *9 (D. Nev. March 10, 2009) (granting summary judgment in favor of employer where employee asserted IIED claim based on alleged retaliatory termination for filing a worker's compensation claim); Alam v. Reno Hilton Corp., 819 F.Supp. 905, 911 (D.Nev.1993). Page 6 of 9 1 bounds of decency, is atrocious[,] and utterly intolerable” will the defendant be liable.28 2 Occasionally treating another in an inconsiderate, unkind, or rude manner is not enough.29 Nor is 3 conduct extreme and outrageous merely because an employer knows the employee will “regard 4 the conduct as insulting, or will have his feelings hurt.”30 5 Even if there is a genuine dispute as to whether Katynski suffered severe emotional 6 distress, he has not created a triable issue as to whether defendants carried out extreme and 7 outrageous conduct. Viewing all of the evidence in a light most favorable to Katynski, his 8 supervisors discouraged him from filing a worker’s compensation claim and refused to pay for his 9 medical treatment. On a few occasions, his supervisors made derogatory comments about his 10 injury. Even if all this is true, defendants’ conduct does not rise to the level of extreme and 11 outrageous.31 12 The cases cited by Katynski address situations where an employer did much more than 13 make a few derogatory comments and terminate an employee for a wrongful reason. In Shoen v. 14 Amerco, Inc., 111 Nev. 735, 747, 896 P.2d 469, 477 (1995), the Nevada Supreme Court found 15 triable issues on an IIED claim because evidence indicated the defendant assaulted and threatened 16 the plaintiff, admitted to litigating a lawsuit solely to harass the plaintiff, and knew that 17 termination would cause the plaintiff extreme distress because the defendant and plaintiff had 18 undergone counseling together. Likewise, in Dillard Dep't Stores, Inc. v. Beckwith, 115 Nev. 19 20 Hirschhorn v. Sizzler Restaurants Int'l, Inc., 913 F. Supp. 1393, 1401 (D. Nev. 1995); Welder v. Univ. of South. Nev., 833 F.Supp.2d 1240, 1245-46 (D. Nev. 2011). 21 28 22 29 23 24 Alam, 819 F.Supp. at 911. Maduike v. Agency Rent–A–Car, 114 Nev. 1, 953 P.2d 24, 26 (1998) (per curiam) (quotation omitted); Schneider v. TRW, Inc., 938 F.2d 986, 992–93 (9th Cir.1991) (affirming summary judgment against plaintiff's IIED claim where her supervisor “screamed and yelled in the process of criticizing her performance, threatened to throw her out of the department and made gestures she interpreted as threatening”). 25 30 26 31 Chehade Refai v. Lazaro, 614 F. Supp. 2d 1103, 1121 (D. Nev. 2009). 27 See, e.g., Hirschhorn v. Sizzler Restaurants Int'l, Inc., 913 F. Supp. 1393, 1401 (D. Nev. 1995) (termination and derogatory comments not enough to constitute extreme and outrageous conduct). 28 Page 7 of 9 1 372, 378 (1999), evidence showed that the defendant admitted to the plaintiff that she was 2 demoted because of her worker’s compensation claim, that employees openly speculated about 3 plaintiff’s demotion without recourse, and that the plaintiff’s complaints about her harmful work 4 environment were ignored. 5 Here, Katynski has provided evidence that defendants might have refused to pay for his 6 medical treatment and potentially terminated him because he filed a worker’s compensation 7 claim. Defendants’ conduct was potentially wrongful, but not “beyond all possible bounds of 8 decency.” I therefore grant summary judgment in defendants’ favor on Katynski’s IIED claim. 9 10 D. Whether Saint-Gobain should be dismissed from this lawsuit Defendants argue that Saint-Gobain should be dismissed from this case because it was not 11 Katynski’s employer and there are no allegations against it. Katynski argues Saint-Gobain is a 12 proper defendant because it was his employer. Katynski reasons that because Saint-Gobain’s 13 name was on his paychecks, defendants have the burden of rebutting the inference that Saint- 14 Gobain is his employer. 15 Under Nevada law, an employment relationship is created “when the ‘employee’ is under 16 the control of the ‘employer.’”32 “This element of control requires that the employer have control 17 and direction not only of the employment to which the contract relates but also of all of its details 18 and the method of performing the work.”33 19 Here, the only evidence indicating Saint-Gobain was Katynski’s employer is that its name 20 was on some of Katynski’s paycheck stubs. This is insufficient to establish the existence of an 21 employment relationship. There is no evidence Saint-Gobain controlled Katynski’s employment, 22 23 24 25 32 26 27 28 Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 1223 (1996) (quoting Nat' Convenience Stores, Inc. v. Fantauzzi, 94 Nev. 655, 657 (1978). 33 Id. Page 8 of 9 1 and Katynski has not provided any other evidence or authority to indicate Saint-Gobain might be 2 liable for any claim in this lawsuit.34 I therefore dismiss Saint-Gobain from this case. 3 IV. 4 5 CONCLUSION IT IS THEREFORE ORDERED that defendants’ motion for summary judgment (Dkt. #53) is GRANTED in part and DENIED in part as follows: 6 1. Summary judgment is granted in defendants’ favor as to the second cause of action for breach of the implied covenant of good faith and fair dealing and third cause of action for intentional infliction of emotional distress. 7 8 2. Summary judgment is denied as to the first cause of action for wrongful discharge. 9 10 11 IT IS FURTHER ORDERED that the Saint Gobain Corporation is dismissed from this lawsuit. DATED this 9th day of March, 2015. 12 13 ANDREW P. GORDON UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 34 27 28 Katynski’s entire argument on this issue consists of two sentences without citation to authority or evidence. Page 9 of 9