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Marker v. Jackson Hewitt, Inc.

United States District Court, D. Wyoming

October 15, 2015

LINDA MARKER, Plaintiff,


ALAN B. JOHNSON, District Judge.

The defendants' Motion for Partial Summary Judgment (Doc. No. 37), the plaintiff's opposition (Doc. No. 41), and the defendants' reply (Doc. No. 44) are before the Court. After reviewing the parties' submissions, the applicable law, and being fully advised, the Court finds that the defendants' Motion for Partial Summary Judgment (Doc. No. 37) should be GRANTED IN PART and DENIED IN PART for the reasons stated below.

This case is about an employee injured while setting up satellite tax preparation locations for Jackson Hewitt and the confusion thereafter regarding who would ultimately pay for her injuries. First, the Court will give a brief factual background, discussing before, during, and after the injury. Next, Court will present the standard of review, followed by an analysis of the law and facts as to each count affected by this motion for partial summary judgment. Finally, the Court will conclude by listing the counts not remaining and those remaining for trial.


Leading up to the Plaintiff's Injury

Linda Marker, the plaintiff, began working as a tax preparer for Jackson Hewitt, Incorporated, one of two defendants in this case, in 2004. Jackson Hewitt eventually promoted Marker to Seasonal Area Assistant Manager. In this new position, Marker travelled around Wyoming and set up tax preparation kiosks for the tax season. On November 8, 2012, Jackson Hewitt appointed Matt Brown, the individual defendant, as the Senior Area Manager, making him Marker's direct supervisor.

As happens each day at worksites everywhere, the new supervisor and supervisee did not cooperate well. Two months into this working relationship, in mid-January, Marker and Brown met in Casper to discuss Marker's work performance. Brown told Marker that her performance was lacking. During the discussion of her lackluster performance, Marker blamed her unsatisfactory performance on medical issues with her back. Brown asked Marker whether she needed assistance unloading tax kiosk materials, and Brown contends that Marker stated she did not need such assistance. After the cold mid-January meeting, Marker and Brown spent hours in a car together quality checking various Jackson Hewitt locations in Wyoming. After a few days and while in Cody, Wyoming, Brown decided the team should split up. From Cody, Brown drove to Colorado and Marker drove to Evanston, Wyoming in a rental sport-utility vehicle. Marker-with the help of another Jackson Hewitt employee, Roberta Makinen, and Makinen's husband-unloaded and built the kiosk in Evanston. Marker and Makinen would head to Rock Springs, Wyoming the very next day.

Marker's Injury and Thereafter

The next day, January 19, 2013, Marker travelled with Makinen to the Jackson Hewitt kiosk at Walmart in Rock Springs. When they arrived, the pair unloaded the setup materials without requesting help from anyone else. The pair attempted to remove an eighty pound box containing an unassembled podium from the sport-utility vehicle. Each one took a side, and they attempted to place the box into a shopping cart. The box slipped from Marker's grasp, she lost her footing, and-as she fell-the box fell with her, landing directly on her. Marker had immediate back pain, but waited until the next day to visit the hospital. Doctors performed various imaging tests on Marker and discovered injuries to her lumbar spine and neck. A doctor told Marker she could not return to work until she was cleared by a medical professional.

Marker worried about who would be paying her medical bills. Marker claims that she understood her injuries to be covered by Wyoming's workers' compensation insurance. Apparently, Jackson Hewitt understood the same, because its benefits manager, Edgar Oteiza, submitted Marker's Report of Injury to the Wyoming Workers' Safety and Compensation Division ("Division") on January 23, 2013. Doc. No. 38-2, pp. 19-20. The Division indicated to Oteiza that Jackson Hewitt previously declined coverage offered by the Division. Jackson Hewitt informed Marker that it would submit Marker's injury claim to its third party insurer, Zurich Insurance. Zurich Insurance also denied coverage for Marker's injuries.

Dispute exists as to Marker's cooperation in submitting her medical bills to the defendants. Marker blames the defendants for ostracizing her from the company and keeping her out of the loop. The defendants blame Marker for not replying to numerous emails.

During February and March, the intermittent communication between the parties continued. The defendants sent a few emails requesting medical bills from Marker, but to no avail. Marker contends she did not reply for many reasons, including her concern with Brown's actions toward her before and after the injury. She contends that Brown generally harassed her and treated her poorly throughout Brown's time at Jackson Hewitt.[1] Soon after the injury, Brown requested Marker return all company property and told other employees not to talk to her. Brown contends that he wanted to keep her away from work so she could heal faster. Marker argues that Brown was trying to force her out as quickly as possible. In addition, Brown broke the lock on Marker's employee mailbox and put most her personal items outside of the Jackson Hewitt office in Casper. Brown told Marker to come pick them up. Marker did not pick up the items; she claims the City of Casper threatened to prosecute her for littering. Also, Marker contends that she requested-with no reply-a letter confirming Jackson Hewitt did not have insurance coverage so that her husband's insurance company would pay her bills. Marker contends that the defendants acted intentionally to frustrate and intimidate her.

On May 21, 2014, Marker filed her Complaint against the defendants, thereby commencing this action. Marker claimed that the defendants (1) negligently failed to provide a safe workplace; (2) owed her redress under the doctrine of promissory estoppel; (3) intentionally inflicted emotional distress; and (4) failed to cover her under state workers' compensation insurance. Marker also requested punitive damages. The defendants moved for summary judgment on all claims except for negligently failing to provide a safe workplace.


Summary judgment is appropriate where "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). A dispute of fact is genuine if a reasonable juror could resolve the disputed fact in favor of either side. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is material if under the substantive law it is essential to the proper disposition of the claim. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). When the Court considers the evidence presented by the parties, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn" in the non-movant's favor. Anderson, 477 U.S. at 255.

The party moving for summary judgment has the burden of establishing the nonexistence of a genuine dispute of material fact. Lynch v. Barrett, 703 F.3d 1153, 1158 (10th Cir. 2013). The moving party can satisfy this burden by either (1) offering affirmative evidence that negates an essential element of the nonmoving party's claim, or (2) demonstrating that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim. See Fed.R.Civ.P. 56(c)(1)(A)-(B).

Once the moving party satisfies this initial burden, the nonmoving party must support its contention that a genuine dispute of material fact exists either by (1) citing to particular materials in the record, or (2) showing that the materials cited by the moving party do not establish the absence of a genuine dispute. See id. The nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, to survive a summary judgment motion, the nonmoving party must "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Further, when opposing summary judgment, the nonmoving party cannot rest on allegations or denials in the pleadings but must set forth specific facts showing that there is a genuine dispute of material fact for trial. See Travis v. Park City Mun. Corp., 565 F.3d 1252, 1258 (10th Cir. 2009).

When considering a motion for summary judgment, the court's role is not to weigh the evidence and decide the truth of the matter, but rather to determine whether a genuine dispute of material fact exists for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the fact-finder, not the court. Id. at 255.


I. The defendants are entitled to summary judgment on Marker's claim for promissory estoppel because no disputed issues of material fact exist.

In her Complaint, Marker claims that the defendants promised her that they would submit her medical expenses for payment by the Division and Zurich Insurance, and she relied on that promise to her detriment. After her claims were submitted, it was determined that Marker's injuries were not covered by either workers' compensation or Zurich Insurance. The defendants argue that there is no dispute of material fact because Marker could not have reasonably relied on the promises made by the defendants and she did not rely to her detriment. Marker contends that whether she did reasonably rely on the defendants' promise is a question of fact for the jury.

Promissory estoppel involves three elements.

(1) the existence of a clear and definite promise which the promisor should reasonably expect to induce action by the promisee; (2) proof that the promisee acted to its detriment in reasonable reliance on the promise; and (3) a finding that injustice can be avoided only if the court enforces the promise.

Parkhurst v. Boykin, 2004 WY 90, ¶ 21, 94 P.3d 450, 460 (Wyo. 2004) quoting City of Powell v. Busboom, 2002 WY 58, ¶ 8, 44 P.3d 63, 66 (Wyo. 2002). Promissory estoppel can be properly ...

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