Opinion
Case No. 98-4073-SAC.
July 10, 2001.
MEMORANDUM AND ORDER
This employment discrimination case comes before the court on defendants' motion for summary judgment. Defendants have moved for summary judgment on plaintiff's claims of sexual harassment, retaliation, and constructive discharge, in addition to other matters.
Summary Judgment Standards
The standards and procedures for summary judgment are well established and will not be fully repeated here. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). In essence, summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id.
Summary judgments "`should seldom be used in employment discrimination cases.'" O'Shea v. Yellow Technology Services, Inc., 185 F.3d 1093, 1098 (10th Cir. 1999) ( quoting Smith v. St. Louis University, 109 F.3d 1261, 1264 (8th Cir. 1997)). Because discrimination claims often turn on the employer's intent, courts ordinarily consider summary judgment inappropriate. Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 530 (10th Cir. 1994); see Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir. 1994) ("[T]he summary judgment standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues." (quotation and citation omitted)). Even so, summary judgment is not "per se improper," Washington v. Lake County, Ill., 969 F.2d 250, 253 (7th Cir. 1992), and may be useful in weeding out claims and cases obviously lacking merit, Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700, 709 (10th Cir. 1988), overruled on other grounds, McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995).
Undisputed Facts
Some facts relevant to the motions are set forth herein as background. Others are included as necessary in the analysis which follows. Although controverted facts have been construed in the light most favorable to plaintiff as the non-moving party, plaintiff's brief is replete with factual averments which are not supported by the record cited, and which have accordingly been omitted.
The court's burden in determining the undisputed facts has been increased by the apparent animosity between counsel for the parties, as evident in the documents before the court and the history of the case.
See, e.g., Dk. 96, p. 4, No. 20, stating "Pat Rastok was assigned by Superintendent Trast to handle Plaintiff's sexual harassment complaints (Lira Depo., p. 17)." Lira's deposition does not support this allegedly undisputed fact at page 17 or elsewhere.
Plaintiff began working as a Youth Service Specialist ("YSS") at the Topeka Juvenile Justice Authority ("TJJA") in July of 1992. Plaintiff's job required her to provide direct care for male juvenile offenders housed in Comanche Cottage, a locked facility. This was admittedly a stressful job, because the juvenile offenders (JO's) housed there had committed violent crimes.
In November of 1995, most of the YSS's then working in Comanche were transferred elsewhere. Plaintiff and one male employee remained. Soon thereafter, Al Johnson and others were transferred to Comanche, where, in November of 1995, plaintiff first began working with Johnson. Plaintiff and Johnson were co-employees, neither having any supervisory authority over the other. Levi Lee, the Cottage Director of Comanche, was plaintiff's and Johnson's immediate supervisor during all times relevant to this case.
Plaintiff and Johnson never got along while they worked at Comanche, and Johnson rarely spoke to plaintiff. Plaintiff perceived Johnson as a man who intimidated and/or controlled both males and females, including staff and administration. Johnson perceived plaintiff as fearful of and/or intimidated by the offenders and unwilling to get into the physical aspect of the job. Plaintiff had a general reputation as one who refrained from confrontations with the JO's.
In March or April of 1996, plaintiff complained to Dick Kline, the Director of Operations and Security, and Richard Lira, the EEO Director, of her poor working relationship with Johnson. During that conversation, plaintiff stated that she would like a transfer, but was advised to talk to supervisor Lee about the situation.
In July of 1996, Johnson had an altercation with supervisor Lee in the parking lot, and, among other matters, cussed at him. Lee asked plaintiff to write up the incident. Plaintiff complied and Johnson was formally disciplined for that and, subsequently, other incidents. Johnson received written reprimands regarding his tardiness, his use of unprofessional language to his male supervisor, his refusal to assist in supervision of JO's, his insubordination, and his failure to support a coworker. Thereafter, Johnson believed that plaintiff had lied about him to administration, and could not be trusted. On July 15, 1996, plaintiff complained to Pat Rastok, the Personnel Director, that she was tired of working with Johnson, and requested a transfer, but made no reference to sexual harassment.
According to plaintiff, Johnson called her "her," "she," "stupid," a "troublemaker," or a "liar" and would not use her name, instructed the juvenile offenders not to follow plaintiff's directives, failed to clean up their restroom, and told others many times in her presence that he was going to have to hurt her in the future if she reported him again to administration.
Sometime that summer, EEO Director Lira was assigned to facilitate better communication in Comanche cottage, which administration perceived as dysfunctional. He found that a conflict had been created by a divergence in philosophy between newly combined Comanche staff. The teacher, Brad Taylor, and the psychologist, Lillian Rexford, believed in a treatment approach to dealing with the JO's, while Johnson and Lee used a safety and security approach. Essentially, Taylor and Rexford found Johnson and Lee's approach to the JO's to be too harsh, while the latter found Taylor and Rexford's approach too lax. Despite the fact that he was the EEO Director, Lira was not assigned to address, and was not aware of, any alleged sexual harassment of plaintiff at that time.
Plaintiff admits that she had been trained by TJJA in EEO procedures, that she knew that she was supposed to go to Lira if she felt she had been discriminated against, that she was aware of her right to file a formal complaint of discrimination, and that she knew doing so would trigger an investigation. Plaintiff nonetheless admits that she did not relay any problems of discrimination to Lira. Instead, plaintiff chose to complain to Rastok. Plaintiff knew at the time, however, that Rastok was not conducting a discrimination or other investigation, and saw no need for Rastok to do so. Plaintiff never filed any written complaint of harassment with anyone at TJJA.
In August of 1996, Johnson sent a written request for a transfer from Comanche cottage, stating he was afraid to work with the plaintiff.
On or about Sept. 17, 1996, Johnson made a drawing, showed it to some juvenile offenders who were present, then crumpled it up and threw it in the trash can. Plaintiff retrieved the drawing from the trash can that same day, (Pl. depo., p. 112), and interpreted it as a death threat to her. Johnson testified that he "doodles a lot," and on the day in question drew a picture of the movie character John Rambo, who had become old but was still looking for a war. (Johnson depo., p. 120, 124-125). According to Johnson, the drawing had nothing to do with plaintiff, was only for himself, and was a joke about marines who live the rest of their lives looking for a battle. (Id.)
Despite defendant's representation to the contrary, see Dk. 81, p. 6, No. 24, no copy of the drawing is included in the exhibits submitted to this court.
On Sept. 18, 1996, plaintiff, upset about Johnson's drawing, met with Superintendent Trast, Director of Operations and Security Kline, and James Patrick, the Director of Youth Services, to complain about Johnson and the drawing, and to tell them she could no longer work there. The following day, TJJA determined that it was too understaffed to place plaintiff on administrative leave, but at Rastok's urging, decided to transfer her to another cottage to separate her from Johnson.
On Sept. 19, 1996, plaintiff was notified that she would be transferred to Pawnee cottage, where Johnson did not work. Plaintiff was told at the time that she would be returning to Comanche on Oct. 1, 1996, and that Johnson may or may not be there when she returned. Plaintiff then took medical or sick leave and did not work at TJJA after Sept. 22, 1996. Johnson received a thirty day suspension from his duties at YCAT because of his drawing.
Plaintiff's brief asserts that plaintiff was told "she would return to Comanche cottage with co-worker Johnson within a short period of time. (McGuire Depo., p. 143-144)." (Dk. 96, p. 5, No. 26.) This is another example of the liberties counsel takes with the record, as the cited record is plaintiff's unconditional statement that she was told Johnson "may or may not" be there when she returned to Comanche.
On June 23, 1998, the Social Security Administration found plaintiff to be disabled due to post traumatic stress disorder and severe major depression as of Sept. 21, 1996. (Dk. 82, Exh. N).
Thereafter, plaintiff was placed on administrative leave with pay, exhausted her accrued personal leave with pay, and was then placed on leave without pay. On February 25, 1997, plaintiff's social worker wrote at plaintiff's request that plaintiff was planning on returning to work at TJJA during the night shift only, that plaintiff expected "adequate protection" during work hours, and that she anticipated plaintiff's continuing in therapy. Superintendent Trast responded by letter to plaintiff that he had insufficient information to allow plaintiff to return to work, and posed additional questions.
Plaintiff subsequently filed a complaint of sex discrimination and retaliation with the Kansas Human Rights Commission, (Dk. 82, Exh. K), in which she alleged that she was transferred, placed on leave, and not permitted to return to work because of her sex. On July 30, 1997, plaintiff wrote a letter of resignation, effective that day. (Dk. 82, Exh. L).
Additional facts are set forth in the sections which follow, but the court has relied on the totality of the facts set forth in this memorandum in making its separate rulings.
I. Hostile Work Environment Sexual Harassment
Section 703(a) of Title VII forbids an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's sex." 42 U.S.C. § 2000e-2(a)(1). Although Title VII does not explicitly mention hostile work environment, a victim of a sexually hostile work environment may nevertheless bring a cause of action under Title VII. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). To survive an employer's motion for summary judgment under Title VII, the record must support an inference of a sexually hostile work environment and a basis for employer liability. Hirschfeld v. New Mexico Corrections Dep't, 916 F.2d 572, 576-79 (10th Cir. 1990). Where a court disposes of a claim based on the absence of employer liability, it need not resolve, apart from the question of employer liability, the issue of the presence of a hostile work environment. See Ford v. West, 222 F.3d 767, 775 (10th Cir. 2000); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998).
A. Employer Liability
In this case, plaintiff alleges sexual harassment by a co-worker. The Tenth Circuit has affirmed that an employer is liable for a hostile work environment based on a co-workers' harassment where the employer knew or should have known about the violation and failed to respond in a reasonable manner. See Ford, 222 F.3d at 775; Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1269 (10th Cir. 1998); Adler, 144 F.3d at 673. This is not derivative liability according to the doctrine of respondeat superior, but direct liability for negligence. See Hirschfeld, 916 F.2d at 577 n. 5. Thus TJJA's liability, if any, is direct. Accordingly, the employer defenses provided in Faragher v. Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), both of which deal with an employer's vicarious liability for harassment by a supervisor, are inapplicable.
Where, as here, a plaintiff claims that the employer negligently allowed a fellow employee to engage in sexual harassment, the plaintiff must establish that her employer "had actual or constructive knowledge of the hostile work environment but did not adequately respond to notice of the harassment." Adler, 144 F.3d at 673 (internal quotations omitted). A plaintiff demonstrates actual employer knowledge where the plaintiff has reported sexual harassment to management-level employees. Id. 1. Constructive Knowledge
An employer may be deemed to have constructive knowledge of harassment where the pervasiveness of the harassment supports an inference of employer knowledge. Id. Only when the acts of harassment are "`so egregious, numerous, and concentrated as to add up to a campaign of harassment'" will the employer be liable for failure to discover the harassment. Id. at 675 (quoting Baker v. Weyerhaeuser Co., 903 F.2d 1342, 1346 (10th Cir. 1990)). To infer employer knowledge from only the level of pervasiveness essential to make out a hostile environment claim would be illogical because if that were the rule, knowledge would be attributed to employers in all cases of hostile work environment founded on pervasiveness. Adler, 144 F.3d at 673. Here, the plaintiff does not proceed on a constructive knowledge theory, and the court finds that the alleged acts of harassment are not so egregious, numerous, and concentrated as to add up to a campaign of harassment. Defendant's liability, if any, thus rests on its actual knowledge.
2. Actual Knowledge
For purposes of Title VII, an employer is deemed to be on notice of a hostile work environment if management level employees know about the alleged harassment. See Hirschfeld, 916 F.2d at 577; Adler, 144 F.3d at 673. "General harassment if not . . . sexual is not actionable." Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994). Sexual harassment is behavior "that would not occur but for the sex of the employee." Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1000 (10th Cir. 1996).
If the nature of an employee's environment, however unpleasant, is not due to her gender, she has not been the victim of sex discrimination. Id. In determining whether questionable conduct is a result of the employee's sex, the key issue is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. Plakio v. Congregational Home, Inc., 902 F. Supp. 1383, 1389 (Kan. 1995).
When asked in her deposition: "Why do you feel that you were treated differently than similarly situated male employees?" plaintiff responded: "I didn't hear any male employees being threatened or ignored by administration, the superintendent." (Pl. depo. p. 163). Plaintiff subsequently added that she believed that she was being treated differently than similarly situated male employees because to her knowledge, nothing had been done to Johnson when she left. (Id., p. 164).
The record is void of the kind of facts which typically give rise to a sexual harassment case. Johnson is not alleged to have engaged in acts sexual in nature to have told sexual jokes or used sexually charged language, to have inappropriately touched the plaintiff or to have directed other behavior of a sexual nature toward the plaintiff or others in plaintiff s presence. Plaintiff did not complain while employed and does not complain now of acts which are explicitly sexual in nature, but of generic harassment that she alleges was motivated by gender bias.
In support of this claim, plaintiff testified that Johnson did the following: called her "her," "she," "stupid," a "troublemaker," or a "liar" and would not use her name (Pl depo. p. 160-161); instructed the juvenile offenders not to follow plaintiff's directives, (Pl. depo., p. 169-170); failed to clean up their restroom, (Id., p. 168-169); told others many times in her presence that he was going to hurt her, (Pl. depo. p. 68-69, 73-77, 94-95); and drew a picture which the plaintiff interpreted as a death threat directed to her. These facts comprise the sum and substance of plaintiff's entire case.
Plaintiff additionally states that Johnson refused to speak to her for a lengthy period of time, but admits that this is not part of her harassment claim. (Pl. depo. p. 160).
Content of plaintiff's complaints
The content of a plaintiff's complaints to an employer is relevant in determining whether the employer was put on notice of illegal harassment. Meritor, 477 U.S. at 68-69. A plaintiff "cannot withstand summary judgment without presenting evidence that she gave the employer enough information to make a reasonable employer think there was some probability that she was being sexually harassed." Zimmerman, 96 F.3d at 1019 (affirming summary judgment where "the implication [of the employee's complaint to the employer] was that it was a personality conflict with someone else, an unnamed someone else, and a personality conflict [which] is not a form of sexual harassment"). The court thus reviews the record to see whether plaintiff's complaints to TJJA's management included complaints that plaintiff was exposed to disadvantageous terms or conditions of employment to which men were not exposed, or were otherwise sufficient to cause a reasonable employer to think it probable that Johnson's acts toward plaintiff were motivated by her gender.
Plaintiff's complaints to Kline, Lira, and Lee.
In March or April of 1996, plaintiff ran into Richard Kline, the Director of Operations and Security, in a hall, asked if he had a minute to talk, then told him that she was having some problems working with Johnson. Mr. Lira, the EEO director, walked by and joined them soon after the conversation began. When Kline asked about the nature of the problem, plaintiff responded that it was just communication issues, specifically that she and Johnson didn't seem to be talking together when they were working in the unit. (Dk. 97, Kline depo., p. 31-33.)
Plaintiff admits that she did not relay to Lira any problems with discrimination at that time, and spoke only of the poor working relationship she and Johnson had, i.e., that Johnson would not refer to her by name, but instead used the pronouns "she" or "her." (Pl. depo., p. 92-93).
Plaintiff states that she talked to her supervisor Lee about "these issues" several times. Plaintiff further alleges that on one occasion between July and September of 1996, Lee was present when Johnson said to other staff that he was going to hurt her. (Id., p. 94-95). Plaintiff was ending her shift and left, so was unaware of what occurred thereafter. (Id., p. 97).
Although these incidents, viewed in the light most favorable to the plaintiff, may show TJJA's awareness of a communication problem between the plaintiff and Johnson or of Johnson's inappropriate threat to plaintiff's safety, none of these complaints would have given TJJA any reason to believe that Johnson was sexually harassing the plaintiff.
Plaintiff's complaints to Rastok
Plaintiff centers her notice to KJJA on her conversations with Pat Rastok, the Personnel Director. In and after July of 1996, plaintiff complained to Rastok on several occasions about the "poor working relationship" she and Johnson had. (Pl. depo., p. 94-95). Plaintiff never used the term sexual harassment when she complained to Rastok, but told her that she feared for her life and that Johnson was harassing her. (Rastok depo. p. 43).
Rastok's notes
Rastok was admittedly a note-taker, and her notes to the file, made contemporaneously with the events reflected therein, are revealing in what they do not say, as well as in what they do say. Those notes reflect that the problems at Comanche cottage involving Johnson were not limited to plaintiff in particular, or to females in general.
Instead, Rastok's notes document that Johnson "cussed out" his male supervisor, Lee, (Oct. 11, 1996 memo to Trast from Rastok); that Johnson refused to support teacher Brad Taylor and told the JO's that if they talked to Taylor he would fine them, but that if they told Johnson about Taylor they would be rewarded (July 15, 1996); that a meeting was held to discuss problems between Taylor and Johnson (July 19, 1996); that Johnson did not speak one word to Taylor between February 1996 to July 15, 1996 (July 19, 1996, p. 2); that Taylor said that "people are afraid of Al Johnson" (Id.); that similar problems existed in Kiowa, where Johnson worked before being transferred to Comanche (Id.); that Johnson and Taylor did not get along (Aug. 6, 1996, p. 2); and that Johnson was reprimanded for being divisive, independent, not supportive, uncommunicative, and not a team player (Id.).
On July 24, 1996, a meeting was held regarding the dysfunctional Comanche unit in which plaintiff and Johnson worked. At that time, although issues such as respect, trust, safety and communication among employees were discussed, the issue of sexual harassment was not discussed. (Rastok depo., p. 134-135.) Again, the primary discussion centered on performance issues unrelated to sexual harassment.
The court finds that plaintiff's complaints to Rastok prior to September 19, 1996, as contemporaneously noted by Rastok at the time, were insufficient in kind and in degree to make a reasonable employer think it probable that Johnson was sexually harassing the plaintiff. Plaintiff's complaints did not assert that Johnson treated plaintiff differently because she is a female, and gave TJJA no reason to believe that was the case. Instead, plaintiff's complaints were that Johnson treated her badly in not communicating with her and in not working with her or supporting her, and threatened her.
Rastok's statements to others
Ms. Rastok states that on some unspecified date, she told Trast, Kline and Patrick that there was a potential sexual harassment situation between plaintiff and Johnson. Ms. Rastok testified that she believed in July, because of her knowledge of prior complaints against Johnson by other females, that Johnson's acts toward the plaintiff may or may not have been because of her gender. (Rastok depo., p. 67-68). At best, this testimony is a retrospective characterization of one manager's belief that gender might or might not have been a motivation for Johnson's acts toward the plaintiff. It fails to constitute sufficient information conveyed by the plaintiff to the employer to make a reasonable employer think there was some probability that the plaintiff was being sexually harassed. See Zimmerman, 96 F.3d at 1019.
Ms. Rastok states that she discussed "the problems plaintiff was having" with Mr. Lira, the EEO director, among others, (Id., p. 100), but the record does not reflect that she told Lira that she believed Johnson's acts were in any way related to plaintiff's gender or that she thought plaintiff might be subject to a hostile work environment due to her gender.
TJJA's written sexual harassment policy
If Rastok had believed during plaintiff's employment that plaintiff's complaints about Johnson may have been sexual harassment, she was required to report that to Lira, per TJJA's written sexual harassment policy. According to TJJA's written policy, anyone who receives a complaint of sexual harassment or has knowledge of it has a duty to report it to the EEO director. (Lira depo. p. 41-42). That policy, which relates specifically to sexual harassment, provides that employees have several options for reporting. It states:
employees with concerns of sexual harassment may contact one of the following: 1) immediate supervisor; 2) department head; 3) EEO representative; 4) EEO Director; or 5) Personnel representative.
Dk. 97, Exh. 15, p. 2). As applied to the plaintiff, the policy permitted her to contact her immediate supervisor, Levi Lee; her department head, Mr. Patrick, the director of youth services; an EEO representative or Mr. Lira, the EEO Director; or Ms. Rastok, (assuming she, as Personnel Director, could be considered a "personnel representative" for purposes of this reporting policy.)
The same policy unambiguously requires all management and supervisory personnel who receive reports of sexual harassment to report all incidents of sexual harassment to the EEO Director, in stating:
C. Management and supervisory personnel are responsible for ensuring that employees are not subjected to sexual harassment or intimidation. In carrying out this responsibility they shall:
8. Report all incidents of sexual harassment to the Equal Employment Opportunity Director.
(Id., at p. 1). Management and staff are trained that it is their responsibility to adhere to the written policy and to report all incidents of sexual harassment to the EEO Director. (Lira depo., p. 42-43).
The EEO Director, Lira, specifically denies that Rastok ever reported any sexual harassment of plaintiff to him, despite their good working relationship. (Lira depo., p. 37-40). Lira was surprised that Rastok would not have reported Johnson's behavior to him if she had believed at the time that it may have involved some sort of sexual harassment. (Lira depo., p. 39-40). Lira did not know that plaintiff had spoken to Rastok about any problems until long after the fact. (Id., p. 17-18).
Lira never met with plaintiff concerning any harassment by Johnson. Although he did participate in one informal, brief and impromptu meeting in April or May of 1996 with Kline and plaintiff about some performance issues with staff, he does not recall any specifics, including who plaintiff complained about. (Lira depo., p. 11-12). Lira did not hear from anyone during plaintiff's employment about any alleged sexual harassment of the plaintiff.
Once an employer has promulgated an effective anti-harassment policy and disseminated that policy and associated procedures to its employees, then "it is incumbent upon the employees to utilize the procedural mechanisms established by the company specifically to address problems a grievances." Madray v. Publix Supermarkets, Inc., 208 F.3d 1290 (11th C 2000), quoting Farley v. American Cast Iron Pipe, 115 F.3d 1548, 1554 (11th Cir. 1997). See also Young v. Bayer Corp., 123 F.3d 672, 674 (7th Cir. 1997).
Similarly, it is incumbent upon management to follow the procedural mechanisms established by the company specifically to address sexual harassment. Had Rastok considered plaintiff's complaints to have raised the probability of sexual harassment, Rastok was required to and would have reported the matter to Lira for investigation.
Context of plaintiff's complaints
The context of a plaintiff's complaints to an employer is also relevant in determining whether the employer was put on notice of illegal harassment. Even if the court considered plaintiff's complaints to have placed TJJA on notice of Johnson's behavior, the context surrounding the plaintiff's comments to the above individuals compels the conclusion that these persons could not reasonably have been expected to act to address the plaintiff's complaints as sexual harassment. See Madray, 208 F.2d at 1300. Cf. Coates, 164 F.3d at 1365 (concluding that an employer has not been given adequate notice of sexual harassment to require action when an employee provided to an appropriate company representative a harassing note she received from her supervisor, but did not indicate that the note "represented a problem about which she was concerned or that required [the manager's] immediate attention," or "that the note was only the latest in an on-going pattern of sexually harassing behavior," and "the primary purpose for seeking out [the manager] was to discuss not the harassment," but other matters).
Plaintiff's complaints to Kline and Lira were spontaneous in nature, were generic in content, admittedly did not relate to sexual harassment, and reasonably led them to believe that no further action was required on their part. Plaintiff's complaints to Lee related to performance issues. Although plaintiff complained on more than one occasion to Rastok, plaintiff approached her in her capacity as Personnel Director, and Rastok failed to refer the matter to Lira as she was required to do for any sexual harassment matter. Plaintiff never requested and Rastok never initiated any investigation of plaintiff's complaints.
Plaintiff's complaints to Trast and Patrick were only after, and related primarily if not solely to, Johnson's drawing, which is not alleged to be sexual in nature, and has not been shown to be related in any way to plaintiff's gender.
Reports by other females about Johnson
Plaintiff claims that TJJA should have known that Johnson was sexually harassing her because TJJA had prior knowledge of Johnson's sexual harassment of other females. The court recognizes that in some circumstances, a plaintiff can rely on an employer's notice of an employee's sexual harassment of other employees in order to raise a genuine issue of material fact as to whether the employer knew or should have known of the harasser's conduct toward the plaintiff. See Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 784 (10th Cir. 1995), citing Paroline v. Unisys Corp., 879 F.2d 100, 107 (4th Cir. 1989), rev'd on other grounds, 900 F.2d 27 (4th Cir. 1990) (imputing liability to employer who reasonably should have anticipated that the plaintiff would be the victim of sexual harassment by a particular male employee).
However, application of that rule is appropriate only where the offender's sexual harassment of other employees is similar in nature and near in time to the offender's sexual harassment of the plaintiff. Hirase-Doi, 61 F.3d at 784. The record does show that some other females lodged some complaints about Johnson. It fails to specify, however, the dates that the complaints from others were received, the dates that Johnson's acts were allegedly taken, who had knowledge of them, and what the majority of those complaints were.
Although plaintiff's counsel characterizes all such complaints as complaints of sexual harassment, the record is insufficient to support that conclusion. See e.g., Dk. 97, Rastok depo., p. 28 (one female complained that Johnson had asked her if she were married.) Complaints from at least two other females were handled by Lira, and not by Rastok. In short, the record fails to reflect that Johnson's treatment of other females was similar enough in nature or close enough in time to Johnson's acts about which plaintiff complained to warrant an imputation of knowledge to TJJA from complaints TJJA received from others.
The evidence in the record simply does not support plaintiff's claim that her employer had actual or constructive knowledge of the alleged sexually hostile work environment caused by Johnson at any date prior to Sept. 19, 1996.
Employer's Response
Where, as here, a plaintiff claims that the employer negligently allowed a fellow employee to engage in sexual harassment, the plaintiff must establish not only that her employer had actual or constructive knowledge of the hostile work environment, but also that her employer did not adequately respond to notice of the harassment. Adler, 144 F.3d at 673. To constitute a reasonable response, the employer's remedial and preventative action must be reasonably calculated to end the harassment. Ford, 222 F.3d at 776. "Plaintiff bears the burden of presenting evidence establishing a genuine issue of fact that the employer's response was un reasonable. Wilson v. Tulsa Junior College, 164 F.3d 534, 541 n. 4 (10th Cir. 1998)." Id. The fact that an employer's response actually stops the harassment shows the effectiveness of that response, which in turn evidences reasonableness of response. Adler, 144 F.3d at 676.
As to the alleged death threat, the court finds that plaintiff has not met her burden to establish a genuine issue of fact that TJJA's response was unreasonable. The record reveals no significant shortcoming in TJJA's response to plaintiff's complaint, as is necessary in order to hold the company liable under Title VII. The facts, viewed in the light most favorable to the plaintiff, fail to support a basis for employer liability.
B. Sexual Harassment
Further, assuming arguendo a genuine issue of material fact regarding the basis for employer liability, there is no indication that Johnson's actions were taken because of plaintiff's gender. Contrary to plaintiff's apparent belief, the mere fact that plaintiff is female does not make Johnson's conduct gender based.
This court recognizes that facially neutral abusive conduct not overtly sexual in nature may nonetheless support a finding of gender animus sufficient to sustain a hostile work environment claim. See Land v. Midwest Office Technology, Inc., 114 F. Supp.2d 1121, 1136 (Kan. 2000). But in order to do so, such acts must be tied to evidence of discriminatory animus. See O'Shea, 185 F.3d at 1097. None of Johnson's acts or statements are overtly sexual in nature, and plaintiff has failed to show evidence that his acts or statements are in any way tied to her gender.
Johnson disliked plaintiff on a personal level and indirectly and conditionally threatened her safety on some occasions, but there is no showing that Johnson's conduct stemmed from gender animus. Neither federal nor state law "mandate[s] congenial relationships between supervisors and employees." Cf. Arzate v. City of Topeka, 884 F. Supp. 1494, 1503 (1995) ("The fact that coworkers do not like the plaintiff, or that he does not like them, is not the basis of a cognizable Title VII racially hostile environment claim.") Plaintiff has failed to show that Johnson's behavior toward her was qualitatively different from his behavior towards males.
The record shows that Johnson's intimidation and control of others with whom he worked was done without regard to their sex. Plaintiff admitted in her deposition that Johnson intimidated and/or controlled male employees and administration, as well as females, (Pl. depo. p. 100-104), and named multiple male staff members or administrators whom Johnson controlled or intimidated. The record further shows that Johnson treated a male employee, Taylor, in much the same manner as he treated the plaintiff, but for the drawing.
The fact that Johnson did not clean up the restroom they both used adds nothing to plaintiff's case. Johnson neither "forced" plaintiff to clean it up, nor made any reference to it whatsoever. Plaintiff admits that she could have chosen not to clean up the restroom, as did Johnson. (Pl. depo. p. 168-170).
Plaintiff's brief asserts that Johnson told plaintiff that he did not believe women should be allowed to work in the cottages. (Dk. 96, p. 6, No. 33, citing McGuire Depo., p. 36.) The referenced citation relates to medication plaintiff was taking, the weight she had gained, and other symptoms she attributed to her experiences at TJJA, but does not in any way support the fact asserted. Thus, plaintiff has not met her burden to raise a genuine issue of material fact that the reasons for Johnson's behavior were illegal ones.
Rastok's deposition at page 36 states that plaintiff or another female told her that Johnson had said that women shouldn't be working in the cottage if they were afraid to be there, but even this testimony fails to support plaintiff's assertion.
Accordingly, summary judgment is warranted on plaintiff's claim of sexual harassment.
II. Gender Discrimination
Plaintiff additionally seeks to establish a gender discrimination claim. The sole basis for such a claim established by plaintiff's response involves TJJA's failure to transfer plaintiff, upon receiving her complaints about Johnson. Plaintiff alleges direct evidence of gender discrimination, based upon the following facts.
When plaintiff retrieved Johnson's drawing from the trash can, she requested and received on Sept. 18, 1996, a meeting with Superintendent Trast, Patrick and Kline. At that meeting, she complained of the drawing and Johnson's past acts, and told them she could no longer work at TJJA. (Pl. depo., p. 125-128). Administration made no decision on the spot, but on the following day spoke to Rastok. Rastok testified that Kline and Trast then stated that plaintiff was a "battered woman" who brought it on herself. (Rastok depo., p. 79-80). After learning that TJJA was shorthanded and could not approve administrative leave, Rastok persuaded them to transfer plaintiff to another cottage. Plaintiff was so notified on Sept. 19, 1996.
Plaintiff alleges that the "battered woman" statements provide direct evidence that gender discrimination played a part in administration's decision not to transfer her to another cottage.
Direct evidence is evidence which if believed by the trier of fact, will prove the particular fact in question without reliance on inference or presumption. If the evidence consists of isolated statements, those statements should be causally related to the . . . decision making process, for direct evidence relate[s] to the motivation of the decisionmaker responsible for the contested decision.Miller v. Borden, Inc., 168 F.3d 308, 312 (7th Cir. 1999) (internal quotation marks and citations omitted).
Here, the evidence consists solely of isolated statements which are not causally related to the adverse decision on which plaintiff's claim is based. Instead, the "battered woman" statements were made immediately before, and in the same conversation in which, Kline and Trast authorized Rastok to transfer plaintiff to another cottage. Because those statements were not made in conjunction with a decision not to transfer the plaintiff, they do not constitute direct evidence.
The court additionally notes that the "battered woman" statements were not necessarily evidence of gender discrimination under the facts of this case. The speakers knew that plaintiff had previously been a victim of battery and had received a temporary restraining order against another employee. Thus a non-discriminatory explanation for the "battered woman" comments is plausible.
Because Trast and Kline's statements fail to provide direct evidence of gender discrimination, the burden shifting analysis from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is applicable. In her failure to transfer claim, plaintiff is obligated to establish a prima facie case of discrimination by showing that (1) she belongs to a protected class; (2) she sought and was qualified for a job for which TJJA was seeking applicants; (3) despite her qualifications, she was not transferred into that position; and (4) after her rejection, the position remained open and TJJA continued to seek applicants from people of her qualifications. See McDonnell Douglas, 411 U.S. at 802.
Plaintiff's prima facie case of failure to transfer fails because she has presented no evidence that there were specific positions open in the unit for which she was qualified, or that TJJA transferred others with the same qualifications as plaintiff into such positions. The policy in effect at the time required employees seeking transfers to apply for transfers when positions were open. (Trast depo., p. 21-22).
To the extent plaintiff may be arguing that the delay in accomplishing her transfer was actionable discrimination, her claim fails for the simple reason that she cannot demonstrate that the delay amounted to any adverse employment action by TJJA. See Amro v. The Boeing Co., 65 F. Supp.2d 1170, 1188 (Kan. 1999). Although plaintiff alleges that her transfer was delayed by several months, she did ultimately transfer to a job in another cottage. Plaintiff cites no case, and the court is aware of none, which holds that the mere delay in obtaining a desired transfer constitutes an adverse employment action. Additionally, plaintiff fails to demonstrate that her transfer took any longer than any other transfer at TJJA or was in any way different from other lateral transfers. In sum, plaintiff fails to establish a prima facie case of discrimination in connection with her transfer.
When asked for facts supporting her belief that she was singled out for adverse treatment compared to similarly situated males, plaintiff replied solely that she "didn't hear any male employees being threatened or ignored by administration." (Pl. depo. p. 163-164.) This falls far short of raising a genuine issue of material fact that TJJA' acts toward the plaintiff were gender based.
Plaintiff additionally points to the fact that she was unaware of Johnson's discipline, if any, when she left. But the record is undisputed that Johnson's drawing and other acts were timely investigated, and that Johnson was suspended without pay for 30 days. The court finds plaintiff's immediate transfer, coupled with Johnson's suspension to be prompt and effective remedial action on the part of TJJA, fulfilling its duty to respond to plaintiff's complaint about the threat conveyed by the drawing.
III. Retaliation
Title VII prohibits an employer from discharging an employee who opposes any acts of discrimination prohibited by the statute. 42 U.S.C. § 2000e-3(a). A prima facie case of retaliation under these statutes is made by showing "(1) protected employee action; (2) adverse action by an employer either after or contemporaneous with the employee's protected action; and (3) a causal connection between the employee's action and the employer's adverse action." Morgan v. Hilti, Inc., 108 F.3d 1319, 1324 (10th Cir. 1997). Upon such a showing, the burden shifts to the defendant to produce a legitimate, nonretaliatory reason for its employment decision. See Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997).
The burden then shifts back to the plaintiff to demonstrate that the proffered reason was not the true reason for the employer's decision, but instead, that the decision was made for retaliatory reasons. This burden may be met either by direct evidence of the employer's retaliatory motive or by evidence that the proffered reason is pretextual. See id. at 1396.
Plaintiff alleges that her protected conduct consists of her complaints to TJJA administration, rather than the filing of her KCCR charge. (Dk. 96, p. 25-27). Plaintiff alleges that the adverse employment action consists not of her termination, but of TJJA's failure to transfer her away from Johnson at some unspecified date, apparently earlier than it did do so. (Id., p. 27-31). Plaintiff's claim is thus that TJJA retaliated against her in violation of Title VII for her internal complaints about Johnson by not transferring her elsewhere earlier.
The court agrees that informal complaints of activity violating Title VII to superiors or the use of the employer's internal grievance procedures constitute protected activity under Title VII. See Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th Cir. 2000); Robbins v. Jefferson County School Dist. R-I, 186 F.3d 1253, 1258 (10th Cir. 1999). However, the complaints must be of acts protected by Title VII, and not of harassment generally. See Shaw v. Maine School Admin. Dist. # 61, 2001 WL 55404 at *5 (Me. Jan. 22, 2001) (where there was no evidence that the plaintiff complained that the behavior was gender-based, she cannot reasonably be perceived as having complained against conduct proscribed by Title VII), citing Hamner v. St. Vincent Hosp. Health Care Cr., Inc., 224 F.3d 701, 706 (7th Cir. 2000).
For the same reasons discussed above in the court's discussion of notice to TJJA, the court finds that plaintiff did not complain that Johnson's acts were gender based. Plaintiff's complaints to administration were not of acts protected by Title VII, but of personality problems and communication barriers generally, unrelated to plaintiff's gender. Accordingly, plaintiff's retaliation claims fails for lack of protected conduct. The court need not address defendant's additional contentions that plaintiff suffered no adverse action, and that no causal connection exists.
IV. Constructive Discharge
Constructive discharge can be a cognizable claim under Title VII. See Thomas v. Denny's, Inc., 111 F.3d 1506, 1514 (10th Cir.), cert. denied, 522 U.S. 1028 (1997). In order to make out a constructive discharge claim, the plaintiff must allege facts sufficient to demonstrate under an objective test that a reasonable person would have viewed her working conditions as intolerable. Jeffries v. State of Kan., 147 F.3d 1220, 1233 (10th Cir. 1998). "That is to say the working conditions, when viewed objectively, must be so difficult that a reasonable person would feel compelled to resign. . . . Essentially, a plaintiff must show that she had no other choice but to quit." Yearous v. Niobrara County Memorial Hosp., 128 F.3d 1351, 1356 (10th Cir. 1997) (quotation marks and citations omitted), cert. denied, 523 U.S. 1074 (1998).
The plaintiff's own assessment of the working conditions, standing alone, generally "is insufficient to create a factual question for the jury as to whether a constructive discharge occurred. The test for constructive discharge is an objective one." Ulrich v. K-Mart Corp., 858 F. Supp. 1087, 1093 (Kan. 1994), aff'd, 70 F.3d 1282 (10th Cir. 1995) (Table).
To show that she was constructively discharged, plaintiff relies upon the same facts upon which her sexual harassment case is based. Johnson is alleged to have called the plaintiff "her" or "she" or stupid, to have instructed the juvenile offenders not to follow plaintiff's directives, to have failed to clean up the restroom, to have refused to speak to her or work with her, to have said that he was going to hurt her, and to have drawn a picture which the plaintiff interpreted as a death threat to her.
Plaintiff admits that Johnson's comments about hurting her occurred after she wrote him up, at Lee's request, for cussing Lee out. Plaintiff concedes that Johnson's comments, directed to others, were that if he got suspended or disciplined, he was going to have to hurt her. Plaintiff believed that Johnson made such comments because he thought she had lied about him to administration and caused him to get into trouble with his supervisor. (Pl. depo., p. 86-87). Johnson's comments were thus intended to deter her from reporting Johnson again, rather than to reflect any then present intent to do her harm.
None of these facts, or others supported by the record, is sufficient to support a reasonable person's view that plaintiff's working conditions were intolerable, with the possible exception of the drawing. Although the Tenth Circuit has not has reason to examine the issue, the Seventh Circuit has held that a credible death threat that signals grave danger to the plaintiff's bodily integrity can constitute grounds for finding constructive discharge.
In Brooms v. Regal Tube Co., 881 F.2d 412, 417, 423 (7th Cir. 1989), the plaintiff established constructive discharge where "repeated instances of grossly offensive conduct and commentary" culminated with an incident during which a co-worker showed the plaintiff a racist pornographic photograph, told her that she was hired to perform the task depicted in the photograph, then grabbed the plaintiff and threatened to kill her. Similarly, in Taylor v. Western Southern Life Ins. Co., 966 F.2d 1188, 1191 (7th Cir. 1992), the Seventh Circuit found constructive discharge when the plaintiffs' boss constantly peppered the plaintiffs with racist comments, then brandished a pistol and held it to a plaintiff's head.
In contrast, the Seventh Circuit has refused to find constructive discharge where a single oblique threat is made which a reasonable person would not interpret as credible. See Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1050, 1051(7th Cir. 2000). In Tutman, a co-worker twice told the plaintiff to get out of the office before he shot him, using gang parlance, then began prancing around, derisively caricaturing African-Americans. The defendant maintained that the co-worker did not intend his remark as a death threat, but the plaintiff interpreted the outburst as a racially-motivated death threat and was quite shaken by it, not unlike the scenario presented in this case.
In granting summary judgment in the employer's favor on Tutman's constructive discharge claim, the Seventh Circuit held that "in cases finding constructive discharge, the plaintiffs suffered from much more severe and sustained harassment," 209 F.3d at 1050, citing Sanchez v. Denver Public Schools, 164 F.3d 527, 534 (10th Cir. 1998). "A credible death threat that signals grave danger to the plaintiff's bodily integrity, as in Taylor and Brooms, can constitute grounds for finding constructive discharge," id., but the harassment suffered by Tutman fell well short of that standard. The court concluded that "a reasonable person would not have feared [the co-employee] as a result of his single oblique threat, even construing all reasonable inferences in favor of [the plaintiff], such that he would feel forced to resign. See, e.g., Drake, 134 F.3d at 887; Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir. 1996); Saxton, 10 F.3d at 537." Id. See Simpson v. Borg-Warner Automotive, Inc., 196 F.3d 873, 877-78 (7th Cir. 1999) (a co-worker's comment that "someone should take a dish and knock [the plaintiff] upside the head" did not establish constructive discharge.)
Although plaintiff subjectively perceived Johnson's drawing as a death threat to her, her own assessment of the drawing, whether standing alone or viewed in conjunction with Johnson's other statements, acts and inactions, is insufficient to create a factual question for the jury. Johnson's drawing was more veiled than the "single oblique threat" found insufficient in Tutman. An ambiguous drawing, wadded up and thrown into a trash can, hardly constitutes a credible death threat that signals grave danger to the plaintiff's bodily integrity.
Even if the drawing itself could reasonably be interpreted as some sort of threat to the plaintiff, Johnson's undisputed act of wadding it up and throwing it away, instead of delivering it to the plaintiff, evidences his intent to abandon, rather than fulfill, any message that may otherwise be conveyed by its contents. Here, as in Tutman, the co-employee's conduct was not so egregious as to compel plaintiff's resignation and establish constructive discharge.
Moreover, plaintiff has not presented evidence that quitting was the only way she could extricate herself from the allegedly intolerable conditions. Plaintiff knew she had been transferred to another cottage, away from Johnson, at the time she chose to resign. The record shows that plaintiff was told that her transfer was only temporary and that it was possible that she may have had to work with Johnson again. Until that possibility became a reality, however, plaintiff's working environment cannot reasonably be deemed intolerable.
Given the court's resolution above, other issues raised by the defendant, including whether the Kansas Juvenile Justice Authority and the Topeka Justice Authority are proper parties defendant, and whether plaintiff can obtain punitive damages against them, need not be addressed.
Plaintiff's Rule 56(f) motion for deferral of ruling (Dk. 95).
The court is well aware that plaintiff has filed a motion seeking to defer any ruling on the summary judgment motion until after she obtains certain discovery defendant has refused to produce. This discovery consists largely, if not exclusively, of an SRS internal investigation report regarding the events that gave rise to plaintiff's claims. The court finds that such information is not essential to plaintiff's opposition to this motion, and thus denies the motion.
Defendant's Rule 72(a) objection to the magistrate judge's order to produce certain documents (Dk. 109)
Given the court's findings above, this motion is moot.
IT IS THEREFORE ORDERED that defendant's amended motion for summary judgment (Dk. 80) is granted.
IT IS FURTHER ORDERED that plaintiff's Rule 56(f) motion for deferral of ruling (Dk. 95) is denied; and that defendant's Rule 72(a) objection to the magistrate judge's order to produce certain documents (Dk. 109) is denied as moot.