Summary
deciding that spreading of false rumors to former co-workers and customers "that plaintiff stole money, used drugs, had a drinking and/or gambling problem and was lesbian" was not "extreme and outrageous" conduct establishing intentional infliction of emotional distress
Summary of this case from Bailey v. Bayer Cropscience L.P.Opinion
CIVIL ACTION No. 02-2237-KHV.
July 16, 2003.
MEMORANDUM AND ORDER
Gina Carraway brings suit against Cracker Barrel Old Country Store, Inc. ("Cracker Barrel"), alleging employment discrimination on account of race and sex in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. as amended, and state law claims for defamation, intentional infliction of emotional distress and negligence. This matter comes before the Court on Defendant's Motion For Summary Judgment (Doc. #48) filed April 11, 2003. For reasons stated below, the Court sustains defendant's motion.
I. Summary Judgment Standard
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; accord Anderson v. Liberty Lobby. Inc., 477 U.S. 242,247 (1986); Vitlus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett 477 U.S. 317, 323 (1986); Hicks v. City Of Watonga, Okla., 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990);see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. See Applied Genetics, 912 F.2d at 1241.
The Court must view the record in a light most favorable to the party opposing the motion for summary judgment. See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. See Anderson, 477 U.S. at 250-51. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
II. Facts
The following facts are either uncontroverted or construed in a light most favorable to plaintiff.
Plaintiff objects to defendant's declarations because they are unsworn and not notarized. The declarations, however, are admissible under 28 U.S.C. § 1746.
A The Parties
Cracker Barrel is headquartered in Lebanon, Tennessee. Cracker Barrel operates a chain of 472 restaurants in 41 states, which it divides into 68 districts. Store 286 is located in Kansas City, Kansas, in district 33. Rick Palmateer, a Caucasian man, has managed district 33 for the past eight years.
Plaintiff is an African-American woman. From 1989 through November of 1997, plaintiff worked at Church's Chicken. Church's Chicken hired plaintiff as associate manager and she grew within the company's ranks. By November of 1997, plaintiff worked as general manager for Church's Chicken in Crosby, Texas.
B. Plaintiff's Employment At Cracker Barrel
Some time in 1997, a Cracker Barrel recruiter approached plaintiff and convinced her to change jobs. On November 24, 1997, plaintiff began working as associate manager of a Cracker Barrel store in Houston, Texas. In February of 1998, plaintiff moved to Kansas City, Kansas to become associate manager of store 286. Theresa Huyck, a Caucasian woman, was general manager of store 286 and supervised plaintiff. When plaintiff began working in Kansas City, store 286 had two other associate managers, both Caucasian men. The store later hired two additional associate managers, also Caucasian men.
Cracker Barrel requires managers and associate managers to record deposits, food costs and food cost percentages in the red book. On a day when plaintiff was not working, Palmateer visited store 286 and discovered that managers were not keeping the red book properly. He counseled Huyck on the issue and ordered her to counsel all managers and associate managers. On January 22, 1998, Huyck gave plaintiff an employee counseling report regarding procedural problems with the red book and daily reports. The report stated:
The record does not explain how Huyck counseled plaintiff on January 22, 1998, when plaintiff did not begin working in Kansas City until February of 1998.
There have been several procedural issues in relation to the red book and daily reports (daily reports have not been properly configured and red book not completed — deposit detail entry [illegible]). This is a final written warning on procedural issues. Any further procedural issues of non-compliance will result in termination.
Defendant's Exhibit 6.
On April 15, 1998, while plaintiff was manager, two cashier drawers were short $100.00 and $10.00, respectively. Two days later, on April 17, 1998, Huyck counseled plaintiff regarding improper cash handling procedures. In doing so, Huyck instructed plaintiff to read the cash handling section in the Cracker Barrel operations manual and to write a report on certain procedures.
Palmateer once accused plaintiff of not having a cook on the line, when in fact Palmateer had earlier released the cook to go home. After the conversation, when plaintiff turned and walked away, another employee heard Palmateer call plaintiff "stupid." Palmateer later apologized to plaintiff and admitted that his action was wrong.
The record does not reveal the date of this incident.
On May 19, 1998, plaintiff was robbed at gunpoint while on duty at the store. She was in her car in the store parking lot, on the way to the bank. Plaintiff gave the gunman a change fund bag which contained $80.00 to $100.00. Plaintiff did not give him the deposit bag, which contained an undisclosed amount of money. Cracker Barrel and the police in Kansas City, Kansas investigated the incident. Neither party took adverse action against plaintiff.
Plaintiff always took two bags to the bank: the deposit bag and the change fund bag. Carraway Depo. at 196:14-16.
In June of 1999, Gerry Thibodeau, a Caucasian man, became general manager of store 286 and supervised plaintiff. At that time, Thibodeau adjusted the parking lot lights to stay on all night. While he was general manager, deposits came back short from the bank several times. When a shortage occurred, Thibodeau interviewed the responsible manager to find out what had happened to the money. In doing so, Thibodeau listened to the manager's side of the story and determined whether the manager was responsible for the shortage. When an employee violated company policy, Thibodeau met with the employee and discussed the policy and how the employee had failed to meet company expectations.
Cracker Barrel policy requires the closing manager to place the evening deposit in the store safe for deposit at the bank the following morning. Typically, the store makes two bank deposits per day: one in the morning for the prior evening and one in the afternoon after the day shift closes. Occasionally, if the day shift manager did not get to the bank in the afternoon, one of the evening managers would take the afternoon deposit to the bank at night. All managers did this, including Thibodeau. At no time during her employment did plaintiff or any other manager remove the evening deposit from the store after closing.
On March 5, 2000, Thibodeau counseled four associate managers, including plaintiff, regarding a shortage of $100.00 in the cash drawer safe. Because of the shortfall, Thibodeau deducted $25.00 from the bonus pay of each manager.
On January 18, 2001, plaintiff reported another robbery at store 286. After closing, a maintenance employee and a gunman approached plaintiff while she was working in the office. The armed man demanded that plaintiff open the safe, which she did. He escaped with the evening deposit of $5,035.00. Jason Sutton, a detective with the Kansas City police investigated the robbery — as did Thibodeau and Palmateer. Neither the police nor Cracker Barrel took adverse action against plaintiff.
After the January 18 robbery, plaintiff did not feel safe leaving the store at night. She expressed her concerns to Thibodeau, who discussed common sense guidelines such as looking out the window before leaving and checking for strange cars in the parking lot. Plaintiff complained to the head of security about poor lighting and safety in the store. She also discussed security issues with Palmateer. Palmateer worked with plaintiff to contact the Cracker Barrel safety committee, which sent some of its members to visit the store. Plaintiff made various recommendations to improve security. Cracker Barrel implemented only one recommendation: it placed a mirror on the back door.
C. Robbery On April 21, 2001
On April 21, 2001, plaintiff suffered another robbery as closing manager. The store closed at 11:00 p.m. After the last customer left, plaintiff checked the dining room for unauthorized individuals. Zenon Ruiz, a Hispanic man who worked night maintenance, checked the bathrooms. After making sure that no unauthorized individuals were in the building, Ruiz placed a chain on the front doors to prohibit anyone from entering or leaving the store. When the building was secure, plaintiff calculated the evening deposit of $3,704.40 and the change fund of $3,500.00. Plaintiff prepared a deposit slip, which she placed with the deposit money in the deposit bag. She logged the evening deposit and change fund in the red book. She also noted the amount of deposit on the deposit bag and signed that she was the manager responsible for placing the money in the bag.
While plaintiff was performing her closing duties, she became suspicious that Andy Belcher, a grill cook, was planning to rob the store. Thibodeau had previously warned her not to trust Belcher. After the store closed, Belcher received a telephone call. He thereafter told plaintiff that he would be staying late because his wife was at a wedding and would pick him up late. Plaintiff thought that this was unusual because Belcher normally left work immediately and his wife usually slept in the car, waiting for him to get off work. Plaintiff answered a second call for Belcher, which was from a gentleman with whom she was unfamiliar. Plaintiff overheard Belcher say, "So when?" Plaintiff did not know who called Belcher or the context of the conversation. Because of her suspicion, plaintiff put the night deposit bag in her sock. When she and Ruiz let two dish washers out the front door, plaintiff said that she needed to get cigarettes out of her car. Belcher also went outside to smoke a cigarette. In fact, plaintiff did not go to her car to get cigarettes. Instead, she hid the night deposit bag under her car seat. When she returned from her car, Belcher said that he would stay outside. Plaintiff then locked the store door and resumed her closing duties. Plaintiff did not remove the change fund bag — which contained quarters, nickels, dimes and various denominations of dollar bills — because it was too heavy and bulky to conceal. Furthermore, plaintiff did not report her suspicion to the police or to Cracker Barrel management.
In her verified complaint, plaintiff stated that she "was intending, as she frequently did as part of her duties as night manager, to drop the deposits off at the bank." Complaint (Doc. #1) ¶ 17. In her deposition, however, plaintiff stated that she never intended to go to the bank after the store closed. Carraway Depo. at 358:11-13.
Cracker Barrel policy states that an employee "must immediately report . . . suspected dishonesty or other unusual circumstances to store management."
After she hid the evening deposit, plaintiff returned to the manager office. Thereafter, an armed man led Ruiz to the office and told him to open the safe. Plaintiff told the robber that Ruiz did not speak English and that she could open the safe. The gunman ordered plaintiff to open the safe, which she did. After the robber took money from the safe, he ordered plaintiff and Ruiz to exit the back door of the store, threatening to kill them if they turned around. Plaintiff and Ruiz fled to a nearby convenience store where they called the police. A few minutes later, the police picked up plaintiff and Ruiz, took them to the Cracker Barrel parking lot and began investigating the robbery. About an hour after the robbery, Thibodeau arrived on the scene and spoke with plaintiff.
Detective Sutton interviewed plaintiff for about 35 minutes. Plaintiff did not estimate the amount of money which was stolen. Plaintiff did not tell Sutton that she had suspected that the store would be robbed or that she had hidden the evening deposit in her car. Plaintiff testified that she did not tell the police about the evening deposit because:
Sutton reported that plaintiff estimated the loss at $7,000.00 to $8,000.00 — much more than the $3,500.00 which the robber took — thus suggesting that plaintiff may have been trying to conceal the fact that she had hidden roughly $3,700.00 in her car. For purposes of summary judgment, however, the Court construes this fact in favor of plaintiff.
the last thing I was concerned about was the deposit at that time because I was really out of it. I was more concerned about myself and where I am at this point in time, scared. Zenon [Ruiz] was scared, and I was just really totally frantic.
Carraway Depo. at 258:9-15. Because plaintiff had been robbed twice in a relatively short time span, Sutton suspected that she was involved in the robberies. At some point in the evening, Sutton relayed his suspicion to Thibodeau.
Around 3:00 a.m. plaintiff agreed to let Sutton search her car. On the floor under the driver seat, Sutton found the evening deposit bag with about $3,700.00. Sutton asked Thibodeau if there was any reason why plaintiff would have a large sum of store money in her car. Thibodeau responded "no." Sutton arrested plaintiff and placed her in handcuffs. While plaintiff was standing on the front porch in handcuffs, Thibodeau asked why she had not told him about the deposit in her car. Plaintiff responded that she had hidden the money because she anticipated a robbery at the restaurant. Plaintiff stated that she knew it would look suspicious, so she was going to tell him about it after the police left. When she was in the police car, plaintiff tried to tell Sutton why she had hidden the money. Sutton "just got out of the car, and he just walked away." Carraway Depo. at 267:24-25. Sutton took plaintiff to county jail, where she was placed in a holding cell. Plaintiff cried a lot and was emotionally distraught. She felt angry because she was in jail for attempting to protect company assets.
Plaintiff denies making this statement but her record citation does not support her contention that it did not occur.See Plaintiffs Memorandum In Opposition To Defendant's Motion For Summary Judgment ("Plaintiff's Memorandum") (Doc. #53) filed May 5, 2003 ¶ 61.
After the police left, Palmateer arrived at the restaurant. Thibodeau relayed the evening events. Based on what Thibodeau said and the police report, Palmateer decided to terminate plaintiff's employment. Palmateer concluded that plaintiff had hidden store money in her car, had not told anyone about it and had lied to the police and to Thibodeau. Palmateer did not speak to plaintiff or the police about the incident. Nobody from Cracker Barrel attempted to contact plaintiff after her arrest. Neither Thibodeau nor Palmateer knew that plaintiff suspected that Belcher would rob the store because he had received phone calls and stayed late, which was outside his normal routine. At some point over the next few days, Palmateer informed the corporate office of plaintiff s termination. Cracker Barrel classified plaintiff as not eligible for rehire.
Later in the day on April 22, 2001, Detectives Sutton and William Michael interviewed plaintiff in jail. Plaintiff reported that she and Ruiz were robbed at gun point. Plaintiff said that she had hidden the money for safe-keeping because based on strange behavior by Belcher, she had a feeling that the store was going to be robbed. The detectives did not give plaintiff time to fully explain why she hid the money in her car or any other incidents related to the robbery. Instead, they stopped the interview and escorted plaintiff back to her cell.
On April 23, 2001, the police released plaintiff from jail without charging her. Michael believes that there was enough evidence to charge plaintiff with felony theft. He does not know why she was not charged with the crime.
After she was released from jail, plaintiff called store 286 and spoke with Andy Burris, associate manager, who told her that her employment had been terminated. Plaintiff asked to speak with Thibodeau, but he was not in. Plaintiff asked for Palmateer's number, but Burrs would not give it to her. Burris gave plaintiff the toll free number to corporate headquarters. Plaintiff called the number and left several messages for various employees. Nobody returned her calls.
Store 286 was robbed three times during the time that plaintiff worked there. Each happened while plaintiff was working, and plaintiff reported all three. Before the robbery on April 21, neither Thibodeau nor Palmateer questioned plaintiff's honesty. Thibodeau characterized plaintiff as a very good employee who exceeded standards. Palmateer described plaintiff as a good, and often above-average associate manager.
Plaintiff has never had a chance to fully explain what happened on the evening of April 21, 2001. No one from Cracker Barrel has contacted plaintiff for an explanation. Cracker Barrel cannot point to any policy which she violated that evening. Plaintiff is not aware of any instance where Cracker Barrel fired a white manager or a male employee for any reason without allowing the person to explain what happened.
D. Plaintiff's Employment After Cracker Barrel
After Cracker Barrel fired her, plaintiff did not apply for another job in Kansas City. On May 8, 2001, plaintiff moved back to Houston, Texas to be closer to family. Plaintiff was shocked and jobless for the first time in her life. She had no source of income and decided to go home and live with her mother.
In June of 2001, plaintiff began work as a server at Red Lobster. Red Lobster was the first and only employer to which plaintiff applied. Dean Starkey, general manager, hired plaintiff. During her interview, plaintiff explained that Cracker Barrel had wrongfully terminated her employment. Plaintiff explained that she had hidden the night deposit in her car to protect company assets. Starkey told plaintiff that because of the Cracker Barrel incident, she could not get a job as manager. Starkey asked if he could contact Cracker Barrel, and plaintiff gave him Thibodeau's name and the phone number to the corporate office. After the interview, Starkey offered plaintiff the job of server. He asked whether she would ever be interested in management again. Plaintiff replied that she was in a "legal situation" at that time, but that she would be interested in management in the future. Red Lobster has not offered her a management position.
Plaintiff does not know whether Starkey spoke with anyone at Cracker Barrel.
Plaintiff claims that the circumstances surrounding her Cracker Barrel termination have harmed her reputation and her ability to get another job. Plaintiff believes that other employers in the Kansas City area know of her situation at Cracker Barrel and would not hire her because of it. Plaintiff has not applied for any management positions in Houston. Based on her previous experiences in management, plaintiff believes that she cannot get a management position because of the reason for her termination from Cracker Barrel.
E. Plaintiff's Emotional Distress
Plaintiff suffered emotional distress as a result her arrest and job termination. Plaintiff had never been in jail before. Losing her job and being arrested, handcuffed and put in jail caused her emotional distress. It was the most degrading, hurtful and nasty experience of her life. She did not understand why she was in jail for trying to protect company assets. As a result of stress, plaintiff lost weight, lost some hair and was unable to sleep.
On May 22, 2002, plaintiff filed this lawsuit. Four months after she filed suit, on November 29, 2002, plaintiff discussed her stress with her gynecologist, Dr. Richard Lock. Dr. Lock offered to prescribe mild Prozac or other drugs to help plaintiff sleep and feel less edgy. Plaintiff declined, stating that she would rather not take drugs. Dr. Lock recommended that she seek treatment from a psychologist. Based on her previous visit to a psychologist concerning a store robbery, plaintiff believed that a psychologist would not help her. To date, plaintiff has not sought treatment for stress or any other emotional disorder.
F. Negative Comments About Plaintiff
After plaintiffs arrest, several co-workers heard Cracker Barrel management speak negatively about plaintiff. Management made such comments within hearing distance of customers in the gift shop, at the cash stand and in the restaurant. Barbara Mickey, retail manager, said that plaintiff was a homosexual drug user and that she was dishonest. Mickey told Judy Whiting, cashier, that plaintiff was guilty of stealing money and that management had suspected her before the arrest. On numerous occasions, Mickey said that plaintiff had drinking, gambling or drug problems, that she had gotten involved with the wrong crowd and that she had lied about living with her sister and might be living with a lesbian lover. Mickey last made such comments in the fall of 2002.
In late April or early May of 2001, Whiting heard Jim Douglas, associate manager, say that plaintiff had drinking and gambling problems. Whiting also heard Andy Burris, associate manager, make numerous comments that plaintiff had gambling and drug problems and that she had been convicted of armed robbery. Burris made such comments in the gift shop when customers were present. Burris also said that since plaintiffs termination, several folders were missing and food costs were down, and that plaintiff was trying to collect unemployment. Burns stopped making such comments in the summer or fall of 2002.
Whiting also heard non-management employees make negative comments about plaintiff to customers. One employee told a customer that plaintiff had been convicted of robbery. Cracker Barrel management did not instruct employees not to discuss plaintiff s situation with customers or with each other. Despite hearing negative comments about plaintiff, Whiting does not think that plaintiff has a drinking or a gambling problem, or that she robbed the store. To the contrary, Whiting has always believed that plaintiff is a respectable and honest person whom she trusts and admires.
During the five days following the robbery, Thibodeau told Dreya Grieb-Beck, a Cracker Barrel employee, that plaintiff had been arrested for robbing the store and that her employment was terminated. Thibodeau speculated that plaintiff might have a drug or gambling problem. Grieb-Beck told plaintiff about the comment, and plaintiff became very upset. During the two weeks following the robbery, Grieb-Beck heard rumors that management was making negative comments about plaintiff to customers and to non-management employees — including that plaintiff had a drug and gambling problem and dressed like a man. Grieb-Beck, however, did not witness the comments. Also, a server in another Kansas City restaurant asked Grieb-Beck about the manager who robbed the Cracker Barrel store. Despite hearing negative comments about plaintiff, Grieb-Beck does not believe that plaintiff robbed the store or that she has a drinking or drug problem. To the contrary, Grieb-Beck believes that plaintiff is an honest person for whom she has utmost respect.
The record does not reveal the name of the other restaurant. Grieb-Beck cannot recall the server's name and does not know how the server became aware of the incident.
Another Cracker Barrel employee, Tenisha Rainey, also heard management and non-management employees talk negatively about plaintiff. When Rainey reported to work on April 22, 2001, Thibodeau told her that plaintiff had taken the evening deposit out of the store in her sock, had hidden it in her car and had been arrested for stealing. He stated that several robberies had occurred on plaintiff's shift. Rainey also heard Dave Ryan, associate manager, say that plaintiff made a really dumb move. Rainey has not heard any negative comments since May of 2001. Despite the negative comments, Rainey does not think that plaintiff robbed the store. Rainey believes that plaintiff is an honest person whom she respects.
Tammy Head, Cracker Barrel employee, also heard negative comments from management. A few days after the robbery, Mickey told her and a group of employees that the store had been robbed, that money was found in plaintiff's car and that plaintiff had stolen the money. Mickey also said that plaintiff hung out with the wrong crowd, drank a lot and had money problems. In addition, immediately after the robbery, Burris repeatedly said that plaintiff was guilty of stealing the money. Burris also said that plaintiff gambled, drank and used drugs. In May of 2001, Head stopped working at Cracker Barrel and did not hear any more comments. Despite the comments, Head does not believe that plaintiff robbed the store. Head believes that plaintiff is an honest and respectable person.
Plaintiff has never been diagnosed or treated for gambling or drug abuse. In addition, plaintiff did not use illegal drugs after she started work at Cracker Barrel.
G. Other Events At Cracker Barrel
On September 23, 2002, about five months after Cracker Barrel fired plaintiff, store 286 was robbed again. Derek Percival, a Caucasian man, was associate manager on duty. Percival recounted the following facts regarding the robbery: A man who had just eaten at the store walked out at closing, then turned around and told Percival that he had forgotten his wallet. Percival walked the man back to the dining room, where the man pulled a gun and demanded money from the safe. Percival opened the safe and the robber escaped with $3,302.48. Under Cracker Barrel policy, Percival should not have let the customer back in the restaurant. Cindy Stickney, a Caucasian woman and associate manager, was also on duty but did not witness the robbery. After the robbery, police were called to investigate the incident.
Palmateer interviewed Percival and Stickney about the incident. Other than taking Percival's statement, Cracker Barrel did not investigate what happened during the robbery. Cracker Barrel did not take adverse action against Percival. Percival could have stolen the money himself, but nobody searched him or his car. Percival had not been in involved in other robberies and Palmateer believed that his story was credible.
In another instance, James Douglas, a Caucasian associate manager, lost a bank deposit of $6,000.00. Palmateer investigated the incident and interviewed Douglas and other managers. The investigation revealed cash policy violations regarding signing deposit forms. Cracker Barrel never located the missing money. Cracker Barrel counseled Douglas for procedural errors and deducted approximately $4,000.00 from his bonus and $2,000.00 from the general manager bonus.
At a Cracker Barrel store in Olathe, Kansas, Palmateer fired a male manager for cashing employee payroll checks. Before terminating his employment, Palmateer interviewed the manager to find out his side of the story. Palmateer also fired two general managers, both Caucasian men, for padding restaurant food inventory in different stores. Before terminating their employment, Palmateer interviewed both managers.
The record does not disclose the date of this incident.
The record does not disclose the date of these incidents.
At an unspecified time, Burris violated Cracker Barrel policy, which prohibits fraternization with employees, by dating a server while he was married. Thibodeau and Palmateer were aware of the relationship but did not discipline Burris.
Store 286 is in a high crime area. In March of 2003, the store was in the process of installing eight cameras — four inside the restaurant and four in the parking lot — with 24-hour continual digital recording.
III. Analysis
Plaintiff asserts claims of race and sex discrimination, defamation, intentional infliction of emotional distress and negligence. Defendant seeks summary judgment on all claims, arguing that (1) plaintiff cannot establish a prima facie case or pretext of race or sex discrimination; (2) plaintiff cannot show damages on her defamation claim; (3) plaintiff cannot prove that defendant's conduct was extreme and outrageous or that she suffered severe emotional distress; and (4) the Kansas Workers Compensation Act, K.S.A. § 501 et seq., preempts plaintiff's negligence claim.
A. Race And Sex Discrimination Claims
Defendant asserts that plaintiff cannot establish a prima facie case or pretext of race or sex discrimination. Because plaintiff relies on indirect evidence to demonstrate discriminatory intent, the Court applies the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under this approach, plaintiff initially bears the burden of production to establish a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802. If plaintiff establishes a prima facie case, the burden shifts to defendant to articulate a facially nondiscriminatory reason for its actions. See Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1533 (10th Cir. 1995). If defendant articulates a legitimate nondiscriminatory reason, the burden shifts to plaintiff to present evidence sufficient on which a reasonable jury might conclude that defendant's proffered reason is pretextual, that is, "unworthy of belief." Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir. 1998) (quotingRandle v. City Of Aurora, 69 F.3d 441, 451 (10th Cir. 1995)).
Defendant contends that plaintiff cannot establish a prima facie case because she cannot show that it treated similarly situated employees differently. In Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1229 (10th Cir. 2000), the Tenth Circuit ruled that in cases involving termination, plaintiff can establish a prima facie case by showing that (1) she belongs to a protected class; (2) she was qualified for the job; (3) despite her qualifications, she was discharged; and (4) the job was not eliminated after her discharge. See id. Defendant does not argue that plaintiff cannot meet these elements. Therefore, it is not entitled to summary judgment on this issue. See Henderson v. Montgomery County, Kan., 213 F. Supp.2d 1262, 1269 (D. Kan. 2002).
Plaintiff does not clearly articulate whether she claims that defendant discriminated against her (1) by failing to investigate and interview her regarding the April 21 robbery, or (2) by terminating her employment, or (3) both. Because failing to investigate and interview plaintiff would not constitute adverse employment action, see Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (adverse employment action requires significant change in employment status), the Court analyzes her claim as one for discriminatory discharge.
Defendant also argues that plaintiff cannot show that its stated reasons for discharging plaintiff are pretextual. Defendant states that it fired plaintiff because: (1) she hid store money in her car when it should have been in the safe and did not tell anyone about it; (2) she reported a robbery but did not tell police or management that she had hidden money in her car; and (3) the police arrested her after finding the money in her car. See Memorandum In Support Of Defendant's Motion For Summary Judgment (Doc. #49) filed April 11, 2003 at 33. Because defendant states legitimate nondiscriminatory reasons for its action, the burden shifts to plaintiff to show evidence of pretext. Evidence of pretext may take a variety of forms. See Aramburu v. Boeing Co., 112 F.3d 1398, 1411 n. 10 (10th Cir. 1997). Plaintiff can show pretext by pointing to "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence." Morgan v. Hilti Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quotations omitted). Typically, a plaintiff demonstrates pretext with evidence that (1) defendant's stated reason for the adverse action was false; (2) defendant acted contrary to written company policy prescribing the action to be taken by defendant under the circumstances; or (3) defendant acted contrary to an unwritten policy or contrary to company practice when making the adverse decision. See Kendrick, 220 F.3d at 1230. A plaintiff can show pretext under the third category by showing that defendant treated her differently from other similarly situated employees who violated work rules of comparable seriousness. See id. (citing Aramburu, 112 F.3d at 1404).
Although plaintiff's brief is not clear, it appears that she attempts to show pretext by showing disparate treatment, i.e. that defendant treated her differently from other similarly situated employees who violated work rules of comparable seriousness. Specifically, plaintiff asserts that defendant treated her differently from white male managers who were involved in situations involving loss of money or violation of company policy. In order to show pretext, plaintiff must show (1) that the other managers were similarly situated, and (2) that the other managers violated work rules of comparable seriousness. See Kendrick, 220 F.3d at 1230. An employee is similarly situated if he or she deals with the same supervisor and is subject to the "same standards governing performance evaluation and discipline." Id. at 1232 (quoting Aramburu, 112 F.3d at 1404). In determining whether employees are similarly situated, the Court compares the relevant employment circumstances, such as work history and applicable company policies. Kendrick, 220 F.3d at 1232. Not every difference in treatment will establish discriminatory intent.
Plaintiff also asserts that defendant acted contrary to a "regular procedure" of interviewing managers and investigating situations which involved violations of company policy. Plaintiff's argument is circular because what she calls "regular procedure" is how defendant treated white male employees whom she contends were similarly situated and violated work rules of comparable seriousness. In other words, plaintiff attempts to use alleged incidents of disparate treatment to show the existence of company practice and pretext itself. See Plaintiffs Memorandum at 45-48. Under either theory, the thrust of plaintiff's claim is disparate treatment. The Court therefore analyzes it as such.
Title VII does not make unexplained differences in treatment per se illegal nor does it make inconsistent or irrational employment practices illegal. It prohibits only intentional discrimination based upon an employee's protected class characteristics. Human relationships are inherently complex. Large employers must deal with a multitude of employment decisions, involving different employees, different supervisors, different time periods, and an incredible array of facts that will inevitably differ even among seemingly similar situations. * * *
What the law does require is that an employer not discriminate on the basis of the employee's protected class characteristics.Id. (quoting EEOC v. Flasher Co., 986 F.2d 1312, 1319 (10th Cir. 1992)) (emphasis deleted).
Plaintiff asserts that when faced with situations involving short bank deposits and violations of company policy, Thibodeau treated other managers differently because he interviewed them and investigated their situations. As previously noted, the Court does not construe plaintiffs discrimination claim as one for discriminatory failure to interview or investigate, because such conduct does not constitute adverse employment action. Although plaintiff does not clearly articulate such an argument, to the extent that she may be claiming disparate treatment because defendant did not fire the employees whom Thibodeau interviewed, plaintiff has not shown that she was similarly situated to the employees or that they violated work rules of comparable seriousness.
In support of her argument, plaintiff cites the fact that during the time that Thibodeau was general manager, when a deposit came back short from the bank, Thibodeau (1) interviewed the responsible manager to find out what had happened to the money; (2) listened to the manager's side of the story; and (3) determined whether the manager was responsible for the shortage. Also, when an employee violated company policy, Thibodeau met with the employee and discussed the policy and how the employee had failed to meet company expectations.
Even if plaintiff asserted a discrimination claim based on such conduct, she has not shown evidence of damages, i.e. that defendant would not have fired her if it had interviewed her or further investigated the situation.
Plaintiff contends that defendant treated her differently from Percival and Douglas because it interviewed Percival and Douglas and did not fire them. Percival reported an armed robbery in which he could have been involved and Douglas was responsible for losing a deposit of $6,000.00. Plaintiff has not shown, however, that Percival and Douglas were similarly situated to her or that they violated work rules of comparable seriousness. Plaintiff offers no evidence which compares her work history to that of Percival and Douglas. Moreover, neither Percival nor Douglas was found to have hidden store money, and neither was arrested for theft. The fact that defendant did not terminate Percival and Douglas does not show that its reasons for terminating plaintiff are pretextual.
Plaintiff asserts that before terminating white male managers in other stores for cashing employee payroll checks and padding restaurant food inventory, Palmateer interviewed them to find out their side of the story. Plaintiff contends that defendant treated her differently because it did not interview her before it fired her. As previously discussed, the Court does not interpret plaintiff's claim as one for failure to interview. The fact that Palmateer interviewed other managers before firing them does not show that defendant's reasons for firing plaintiff are pretextual.
Plaintiff also argues that defendant treated Burris differently because it did not fire him when he had an affair with a subordinate employee. Plaintiff asserts that the affair constitutes a matter of "comparable seriousness." Plaintiffs Memorandum at 46. The Court disagrees. "A company must be allowed to exercise its judgment in determining how severely it will discipline an employee for different types of conduct."Kendrick, 220 F.3d at 1233. The fact that defendant did not terminate Burris does not suggest that its reasons for terminating plaintiff are pretextual.
Finally, plaintiff asserts that comments by Cracker Barrel management demonstrate racial and sexual bias. Specifically, plaintiff points to Palmateer's statement that she was "stupid" and management comments regarding her alleged use of drugs, alcohol and gambling and her alleged sexual orientation. Plaintiff has not shown, however, that such statements were made with racial or sexual animus, or that a nexus exists between the statements and defendant's decision to terminate her employment.See Aquilino v. Univ. of Kan., 83 F. Supp.2d 1248, 1259 n. 6 (D. Kan. 2000); Moore v. Norfolk W. Ry. Co., 731 F. Supp. 1015, 1020 (D. Kan. 1990). Defendant is therefore entitled to summary judgment on plaintiff's race and sex discrimination claims.
B. Defamation
Defendant maintains that plaintiff cannot prove defamation because she cannot show harm to her reputation. To prevail on her defamation claim, plaintiff must prove (1) false and defamatory words, (2) communicated to a third person, (3) which result in harm to her reputation. See Dominguez v. Davidson 266 Kan. 926, 930, 974 P.2d 112, 117 (1999). Injury to reputation may not be presumed under Kansas law. See Gobin v. Globe Publ'g Co., 232 Kan. 1, 6, 649 P.2d 1239, 1244 (1982). Rather, to survive summary judgment, plaintiff must present some evidence that defendant's statements caused identifiable damage to her reputation. See id. Plaintiff can prove such damage by showing that (1) persons were deterred from associating with her; (2) her reputation has been lowered in the community; or (3) her profession suffered. See Ali v. Douglas Cable Communications, Ltd., 929 F. Supp. 1362,1385 (D. Kan. 1992) (citing Hartman v. Meredith Corp., 638 F. Supp. 1015, 1017 (D. Kan. 1986)). Injury to plaintiff's own sensibilities is not enough to support a claim of defamation. See St. Catherine Hosp. of Garden City v. Rodriguez, 25 Kan. App. 2d 763, 768, 971 P.2d 754,758 (1998) (quoting Lindemuth v. Goodyear Tire Rubber Co., 19 Kan. App. 2d 95, Syl. ¶ 5, 864 P.2d 744 (1993)).
For purposes of summary judgment, defendant concedes that plaintiff presents sufficient evidence that it communicated false and defamatory words to a third person.
Plaintiff asserts that she suffered damage to her profession as a result of defendant's statements. Specifically, she points to Starkey's comment that she could not work in management due to Cracker Barrel's stated reason for her termination. As an initial matter, plaintiff does not provide affidavit or deposition testimony by Starkey, but rather her own testimony that Starkey made the statement to her. Because plaintiff presents her testimony to prove the truth of the matter of asserted — that she cannot work in management due to Cracker Barrel's stated reason for her termination — the evidence is inadmissible hearsay. See Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1555 (10th Cir. 1995). Moreover, the record contains no evidence that anyone at Cracker Barrel spoke to Starkey. Plaintiff testified that she gave telephone phone numbers for Starkey to call Cracker Barrel, but she does not know whether he did so.
Plaintiff maintains that based on her experience in the restaurant industry, she believes that she could not obtain a management position because of defendant's statements. She presents no evidence, however, that (1) she has applied for such a position; (2) potential employers are aware of defendant's statements; or (3) she has been denied a management position. On this record, plaintiff has not presented sufficient evidence that defendant's statements harmed her reputation. See, e.g., McCauley v. Raytheon Travel Air Co., 152 F. Supp.2d 1267, 1277 (D. Kan. 2001) (plaintiff must provide evidence which links false statement to inability to gain employment). Defendant is therefore entitled to summary judgment on the defamation claim.
C. Intentional Infliction Of Emotional Distress
Defendant contends that plaintiff cannot show that its conduct was "extreme and outrageous" or that she suffered severe emotional distress. In order to establish a prima facie case of intentional infliction of emotional distress, plaintiff must prove that (1) defendant acted intentionally or in reckless disregard of plaintiff; (2) defendant's conduct was extreme and outrageous; (3) a causal connection exists between defendant's conduct and plaintiff's mental distress; and (4) plaintiff suffered extreme and severe mental distress. Roberts v. Savior, 230 Kan. 289, 292, 637 P.2d 1175, 1179 (1981).
In determining what conduct may be regarded as "extreme and outrageous," the Kansas Supreme Court has set forth the following standard:
[l]iability may be found only in those cases where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond the bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. It was further said that liability may be found to exist generally in a case when the recitation of facts to an average citizen would arouse resentment against the actor, and lead that citizen to spontaneously exclaim, "Outrageous!"
It should be understood that liability does not arise from mere insults, indignities, threats, annoyances, petty expression, or other trivialities. Members of the public are necessarily expected and required to be hardened to a certain amount of criticism, rough language and to occasional acts and words that are definitely inconsiderate and unkind. The law should not intervene where someone's feelings merely are hurt. . . . Conduct to be a sufficient basis for an action to recover for emotional distress must be outrageous to the point that it goes beyond the bounds of decency and is utterly intolerable in a civilized society.Id. at 293, 637 P.2d at 1179. If defendant's conduct rises to this level, the Court must determine whether plaintiff suffered emotional distress that was so severe that no reasonable person should be expected to endure it. If plaintiff s claim fails either of these threshold requirements, the claim cannot survive.
In its prior ruling on defendant's motion to dismiss, the Court examined plaintiffs allegations "that for over a year defendant intentionally spread false rumors that plaintiff stole money, used drugs and had a gambling problem, and that defendant's actions harmed plaintiff's career and reputation and caused plaintiff to suffer extreme emotional distress," and held that they might be considered "extreme and outrageous."Memorandum And Order (Doc. #27) filed November 15, 2002 at 6. After reviewing the evidence, however, as opposed to the mere pleadings, the Court concludes that plaintiff has not shown "extreme and outrageous" conduct. At most, the evidence shows that defendant spread false rumors to plaintiff's former co-workers and customers that plaintiff stole money, used drugs, had a drinking and/or gambling problem and was lesbian. Plaintiff presents no evidence that she heard the comments or that they harmed her career or reputation. While such conduct is not commendable, it is not "outrageous to the point that it goes beyond the bounds of decency and is utterly intolerable in a civilized society." Roberts, 230 Kan. at 293, 637 P.2d at 1179.
Even if plaintiff met the threshold requirement of showing "extreme and outrageous" conduct, she has not established that she suffered severe emotional distress. The Kansas Supreme Court has adopted Restatement (Second) of Torts § 46(1) (1963), and comments j and k to that section are instructive on this issue:
The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity. Severe distress must be proved; but in many cases the extreme and outrageous character of the defendant's conduct is in itself important evidence that the distress has existed. * * *
The distress must be reasonable and justified under the circumstances, and there is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress, unless it results from a peculiar susceptibility to such distress of which the actor has knowledge. * * *
It is for the court to determine whether on the evidence severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed. * * *
Normally, severe emotional distress is accompanied or followed by shock, illness, or other bodily harm, which in itself affords evidence that the distress is genuine and severe. The rule stated is not, however, limited to cases where there has been bodily harm; and if the conduct is sufficiently extreme and outrageous there may be liability for the emotional distress alone, without such harm. In such cases the court may perhaps tend to look for more in the way of outrage as a guarantee that the claim is genuine; but if the enormity of the outrage carries conviction that there has in fact been severe emotional distress, bodily harm is not required.Taiwo v. Vu, 249 Kan. 585, 594-95, 822 P.2d 1024, 1030-31 (1991). Plaintiff contends that as a result of defendant's actions, she suffered hair loss, extreme weight fluctuation and difficulty sleeping, and that Dr. Lock told her that she needed to take Prozac to calm her nerves and allow her to sleep. See Plaintiffs Memorandum at 55. This evidence does not support an inference that plaintiff suffered emotional distress "so severe that no reasonable person should be expected to endure it."Roberts, 230 Kan. at 293, 637 P.2d at 1179. Defendant is entitled to summary judgment on plaintiffs claim for intentional infliction of emotional distress.
D. Negligence
Plaintiff claims that defendant negligently failed to provide a safe working environment. Defendant asserts that the Kansas Workers Compensation Act, K. S.A. § 501 et seq., bars such claim. Plaintiff agrees that the Act precludes a negligence claim for physical injuries, but contends that her claim is for mental distress. Kansas law, however, does not permit recovery in tort for emotional distress unless it is accompanied by physical injury. See Maddy v. Vulcan Materials Co., 737 F. Supp. 1528, 1534 (D. Kan. 1990) (citing Anderson v. Scheffler, 242 Kan. 857, 752 P.2d 667 (1988)). Plaintiff states that her claim is based wholly on mental distress and that she does not claim physical injury. See Plaintiff's Memorandum at 56. Defendant is therefore entitled to summary judgment on plaintiffs negligence claim.
Kansas law provides exceptions to the general rule in cases involving (1) intentional tort; (2) negligent mishandling of a corpse of a close relative; and (3) accidental ingestion of repellant or nauseating substances. Maddy, 737 F. Supp. at 1536. None of the exceptions applies here.
Plaintiff apparently does not claim that her hair loss and weight fluctuations constitute physical injuries. In any event, such evidence would not constitute sufficient physical injury to support a claim for negligent infliction of emotional distress. See Hopkins v. State, 237 Kan. 601, 612, 702 P.2d 311, 319-20 (1985) (insomnia, headaches, weight gain and general physical upset insufficient); Weathers v. Am. Family Mut. Ins. Co., 1990 WL 254975, No. 87-2557-O (D. Kan. Dec. 11, 1990) (weight gain, skin rashes and hair loss insufficient).
IT IS THEREFORE ORDERED that Defendant's Motion For Summary Judgment (Doc. #48) filed April 11, 2003 be and hereby is SUSTAINED. The Clerk is directed to enter judgment in favor of defendant on all of plaintiffs claims.