Opinion
Case No. 99-4184-DES
May 24, 2001
MEMORANDUM AND ORDER
This matter is before the court on defendant's Motion for Summary Judgment (Doc. 63) brought pursuant to Rule 56(c) of the Federal Rules of Civil Procedure and defendant's Motion in Limine (Doc. 34). Plaintiff presents claims of sexual harassment, disparate treatment, discriminatory discharge, and retaliatory discharge. Defendant seeks summary judgment on each of plaintiff's claims. Defendant also seeks to exclude evidence offered in support of plaintiff's retaliatory discharge claim. For the following reasons, defendant's motion for summary judgment is granted in part and denied in part and defendant's motion in limine is denied.
I. BACKGROUND
The following facts concerning plaintiff's claims are either uncontroverted or, if controverted, are construed in a light most favorable to the plaintiff.
On August 15, 1996, plaintiff began her employment with the Kansas Department of Corrections ("KDOC") as a part-time secretary in the Lawrence Parole Office. Plaintiff worked with two other females, Parole Officer I, Jeannie Wark ("Wark"), and Parole Officer II, Navonne Easter ("Easter"). Plaintiff's first two years at KDOC passed without incident. On November 19, 1996, Easter conducted a ninety-day evaluation of plaintiff's work performance. Easter rated plaintiff's performance as satisfactory, suggesting plaintiff could improve disseminating office paperwork and utilizing the computer. In February 1997, plaintiff received her first annual evaluation. Easter rated plaintiff's overall performance as satisfactory and suggested plaintiff could improve her computer skills. In February 1998, plaintiff received her second annual evaluation. Easter rated plaintiff's overall performance as satisfactory and commented that her computer skills had improved and she had grown more comfortable making decisions.
In late October 1998, plaintiff endured an incident which forms the basis for her sexual harassment claim. Plaintiff's desk was located in the reception area of the parole office, where offenders wait to speak with a parole officer. On the day in question, Wark came out of her office laughing loudly. She asked Easter to come and hear a sex offender's answering machine message in which he appeared to offer oral sex. Wark requested that plaintiff play the message. When plaintiff refused, Wark proceeded to play the message on plaintiff's speaker phone so those present in the reception area could listen, including the sex offender. Wark and Easter laughed at the message. Wark then proceeded to discuss the content of the message and the fact it was inappropriate with the offender in plaintiff's presence. On December 3, 1998, plaintiff mailed an incident report describing the situation to Parole Office Supervisor Robert Hainline ("Hainline"). Plaintiff stated "[t]his incident is disappointing to me though not a total shock due to other comments made in the past that I considered unprofessional. I am in the office a great deal of the time alone when offenders come in for various reasons. Since this incident, I am not comfortable with [this sex offender]." (Def. Ex. 27.) Hainline verbally reprimanded Wark and directed her to write a letter of apology. On January 4, 1999, plaintiff received a formal letter of apology from Wark.
It is disputed whether the sex offender was sitting in the office at the start of the message or whether he entered the office toward the end of the message.
After the incident report and subsequent apology, plaintiff claims she was subjected to retaliation. In February 1999, plaintiff received her third annual evaluation, in which Easter stated plaintiff had difficulty demonstrating trust and mutual respect in a cooperative work environment and had difficulty with teamwork. At the evaluation, Easter raised the issue of plaintiff's incident report. Plaintiff became upset and told Easter to stick the evaluation "up her ass." Plaintiff claims the evaluation was retaliatory and she describes other incidents of retaliation, which are discussed below.
On April 29, 1999, plaintiff received a letter from Parole Director John Lamb ("Lamb"), notifying plaintiff that she would be officially terminated on May 6, 1999. The stated basis for plaintiff's termination are two incidents, which occurred on April 28, 1999, and April 27, 1999. On April 16, 1999, Wark requested that plaintiff return two plants that Wark had asked plaintiff to take home to revive over two years earlier. According to plaintiff, Easter joined the conversation and both women began yelling and screaming at plaintiff, demanding that she return the flower pots or pay forty dollars. Plaintiff described the situation as physically intimidating. As a result of this incident, plaintiff refused to attend an office meeting between the three women on April 28, 1999, without a neutral third party present. However, neither Wark nor Easter informed supervisor Hainline that plaintiff requested to have a neutral party present. On April 27, 1999, plaintiff's assignment was to complete VOITUS forms. Plaintiff claims she completed the forms on four separate occasions, but Easter returned the forms claiming there were minor deficiencies. A few minutes before plaintiff's shift expired, Easter told plaintiff she had to work overtime to complete the forms. Because Easter had recently told plaintiff she could only work from 10:00 a.m. to 2:00 p.m. with no exceptions and plaintiff had a second part-time job starting after her job at the parole office, plaintiff refused to stay late to complete the forms. Plaintiff claims both these incidents are retaliatory.
VOITUS forms are substance abuse testing forms used by the parole office.
II. STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The rule provides that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The substantive law identifies which facts are material. Id. at 248. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the nonmovant. Id. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.
The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993). The movant may discharge its burden "by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The movant need not negate the nonmovant's claim. Id. at 323. Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmovant must go beyond the pleadings and, by affidavits or depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324 (interpreting Fed.R.Civ.P. 56(e)). Rule 56(c) requires the court to enter summary judgment against a nonmovant who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof. Id. at 322. Such a complete failure of proof on an essential element of the nonmovant's case renders all other facts immaterial. Id. at 323.
A court must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence. See, e.g., United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir. 1986) ("The court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues."). The court's function is not to weigh the evidence, but merely to determine whether there is sufficient evidence favoring the nonmovant for a finder of fact to return a verdict in that party's favor. Anderson, 477 U.S. at 249. Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Id. at 250.
III. DISCUSSION
Plaintiff presents claims of sexual harassment, disparate treatment, discriminatory discharge, and retaliatory discharge. Plaintiff admits the evidence does not support her claims of disparate treatment and discriminatory discharge. Therefore, the court grants defendant's motion for summary judgment on plaintiff's disparate treatment and discriminatory discharge claims. Plaintiff's claims of sexual harassment and retaliatory discharge and defendant's motion in limine are discussed below.
A. Sexual Harassment
Plaintiff may establish sexual harassment under Title VII if she demonstrates she was subjected to a hostile work environment. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Penry v. Federal Home Loan Bank, 155 F.3d 1257, 1261 (10th Cir. 1998). To establish a prima facie case of hostile work environment, plaintiff must show that: (1) she is a member of a protected group; (2) the conduct in question was unwelcome; (3) the harassment was based on sex; (4) the harassment was sufficiently severe or pervasive to create an abusive working environment; and (5) that some basis exists for imputing liability to the employer. See Seymore v. Shawver Sons, Inc., 111 F.3d 794, 797 (10th Cir. 1997); Schweitzer-Reschke v. Avnet, Inc., 874 F. Supp. 1187, 1192 (D.Kan. 1995). Defendant argues plaintiff can not demonstrate that the harassment was sufficiently severe or pervasive or based on plaintiff's sex.
To prevail on a hostile work environment claim, plaintiff must show that the sexual conduct was sufficiently severe or pervasive that it unreasonably interfered with her work performance or created an intimidating, hostile or offensive working environment. Schweitzer-Reschke, 874 F. Supp. at 1192. Title VII does not provide redress for a working environment "merely tinged with offensive sexual connotations." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The court is charged with the duty of filtering "out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing." Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citations ommitted). To determine whether the harassment was sufficiently severe or pervasive, the court must examine the totality of the circumstances, including such things as the "frequency of the discriminating conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). In order to be actionable, a sexually objectionable environment "must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Faragher, 524 U.S. at 787 (citing Harris, 510 U.S. at 21-22).
Plaintiff claims one incident of sexual harassment was severe enough to alter the terms, conditions and privileges of her employment. Plaintiff described the incident as follows:
On the date in question, Parole officer Jeannie Wark called her client, Frankie Baier (an individual convicted of 2 counts of indecent liberties with a child under the age of 14), and heard a recorded message at his home. The message was unclear, due in part to a heavy Australian accent on the recorded message, but Ms. Wark thought the content made reference to giving "blow jobs." After hearing the message, Ms. Wark left her office, laughing so loudly that she drew the attention of fellow parole officer Navonne Easter. To share in the humor, Jeannie suggested that plaintiff call the convicted sex offender's home number so she, Navonne, and plaintiff could hear the message. When plaintiff refused, Jeannie proceeded to place the call on plaintiff's speaker-phone so all parties would be subjected to the content of the recording. Officer Wark made the call even though she "understood that the possibility existed that Barbara Nelson could have been offended by the content of the recorded message and the surrounding conversation, and in spite of the fact that Officer Wark had knowledge that Ms. Nelson had been a victim of rape. To compound matters, plaintiff alleges that Frankie Baier was actually present while the Parole officers played the recorded message. Officers Wark and Easter admit that Baier was present as the message ended, but claim he was not present when the message was playing. After the message concluded, Jeannie discussed the content of the message with Frankie Baier in the presence of plaintiff.
(Pl. Mem. Opp'n. Summ. J. at 17-18.) Wark testified that during her discussion with Baier, she informed him that the message was inappropriate and needed to be removed from the answering machine.
After considering the totality of the circumstances, the court finds no reasonable juror could determine this single incident of harassment was sufficiently severe to alter the terms, conditions and privileges of plaintiff's employment. Claims of sexual harassment must be evaluated in light of the work environment. See Rabidue v. Osceola Refining Co., 584 F. Supp. 419, 430 (E.D.Mich. 1984), aff'd, 805 F.2d 611 (6th Cir. 1986). Sexual jokes and sexual conversations acceptable in one work environment may not be acceptable in another. Id. In this case, plaintiff was employed as a secretary in a parole office where she encountered sex offenders and other criminals. Plaintiff worked for parole officers, who monitored and discussed the offenders' conduct. It is unrealistic for plaintiff to believe she would not be exposed to the crude and vulgar speech and antics of sex offenders, even if the speech and antics are thrust upon her in the form of an office joke by the parole officers. It is natural for those who work around offenders to become desensitized to the speech and antics used by the offenders and to make jokes regarding that behavior. Contrary to plaintiff's argument, the fact that plaintiff was a secretary rather than a parole officer is irrelevant. Likewise, the fact that the sexual joke/conversation was in front of the offender whose conduct formed the basis for the joke is irrelevant. The evidence presented demonstrates nothing more than an offensive and inappropriate sexual joke made in the presence of an offender.
Plaintiff argues the lewd remarks "were being ratified and forced upon her by the very individuals who are compelled to protect and defend against this kind of sexual offender." (Pl. Mem. Opp'n. Summ. J. at 18.) The only evidence of ratification of the message was the parole officers' laughter. After listening and laughing at the message, Wark told the offender that it was inappropriate and must not be used as the message on the answering machine. The evidence presented does not suggest that the message itself suggested criminal activity from which the public needed protecting, such as offering oral sex to minors or those of the same sex. See Kan. Stat. Ann. § 21-3505 (1995). The message simply contained a lewd comment about oral sex, to which the parole officer commented was inappropriate and needed to be removed. The sexual content of the message was not ratified by the officers nor was it criminal in nature.
Considering the nature of the message, plaintiff's work environment, and the circumstances surrounding the playing of the message, the court finds the single incident is not sufficiently severe to state a claim of hostile work environment. The insufficiency of plaintiff's case is highlighted when compared to those cases found by courts to be sufficiently severe to constitute sexual harassment. See Barna v. City of Cleveland, No. 96-3971, 1998 WL 939884 (6th Cir. 1998) (finding the following evidence sufficient to support a hostile work environment claim: plaintiff's harasser requested oral sex and grabbed plaintiff so hard that her chest was crushed, while stating "We're friends, aren't we honey, I could take care of you," the harasser bragged about his sexual encounters, and plaintiff was subjected to a daily stream of sexual propositions, comments, advances, characterizations and gestures); Smith v. Northwest Fin. Acceptance Inc., 129 F.3d 1408, 1412-15 (10th Cir. 1997) (holding plaintiff stated a claim for sexual harassment when plaintiff endured six severe sexual remarks within two years, such as plaintiff "would be the worst piece of ass that I ever had," she should "get a little this weekend" so she would "come back in a better mood," and she "must be a sad piece of ass" "who can't keep a man"); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995) (holding single incident of sexual harassment sufficient to sustain hostile work environment claim when plaintiff was sexually assaulted by two of her supervisors). Plaintiff's isolated incident pales in comparison to those incidents which courts have found sufficiently severe to state a claim of sexual harassment. Plaintiff has not established that the incident was severe enough to create an abusive working environment.
In addition to failing to show the necessary severity, plaintiff has failed to demonstrate that the incident was motivated by her gender. A female parole officer played the recorded message on the speaker phone. While the content of the recorded message was clearly sexual, the message and joke about the message were not directed toward plaintiff. It is highly likely that the message would have been played regardless of whether or not plaintiff was present in the room. Courts may consider whether a sexual joke/conversation is directed at the plaintiff when determining whether plaintiff has established a hostile work environment. See Morris v. Oldham County Fiscal Court, 201 F.3d 784, 790 (6th Cir. 2000). While it is unfortunate that the message was played, laughed at and discussed with the offender in plaintiff's presence, there is no evidence that the message was played or discussed in plaintiff's presence because she was a female. The two female parole officers' behavior was clearly unprofessional, but it did not rise to the level of sexual harassment.
Plaintiff has not demonstrated that the incident was severe or motivated by her gender. Accordingly, the court grants summary judgment as to plaintiff's sexual harassment claim.
B. Retaliatory Discharge and Motion in Limine
Title VII makes it unlawful to retaliate against an employee for participating in certain protected activity, including opposing discrimination. See 42 U.S.C. § 2000e-3(a). Plaintiff claims she was discharged in retaliation for opposing sexual harassment. Title VII retaliation claims proceed under the familiar McDonnell Douglas burden shifting analysis. See McGarry v. Board of County Comm'rs, 175 F.3d 1193, 1201 (10th Cir. 1999). Under the McDonnell Douglas framework, the plaintiff must first present a prima facie case of retaliation. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Then, the burden of production shifts to the defendant to produce a legitimate, non-discriminatory justification for taking the action in question. Id. Finally, the burden is redirected at the plaintiff to show the defendant's reason for its action was merely a pretext for discrimination. Id. at 804. Defendant argues the plaintiff can not establish a prima facie case or that the defendant's proffered reason for termination was pretextual.
1. Prima Facie Case
To establish a prima facie case of retaliation, plaintiff must show: (1) she engaged in protected opposition to discrimination or participated in a proceeding arising out of discrimination; (2) she was subjected to adverse employment action; and (3) a causal connection existed between the protected activity and the adverse employment action. Kendrick v. Penske Trans. Servs., Inc., 220 F.3d 1220, 1234 (10th Cir. 2000); Anderson v. Phillips Petroleum Co., 861 F.2d 631, 634 (10th Cir. 1988). It is uncontested that plaintiff demonstrated the second element, that she suffered adverse employment action, i.e. termination. Defendant argues the plaintiff can not establish the first or third elements.
a) Protected Opposition
To establish the first element of the prima facie case, plaintiff must demonstrate that she engaged in protected opposition to discrimination or participated in a proceeding arising out of discrimination. Plaintiff argues she engaged in protected opposition by sending an "Incident Report," describing what she believed to be sexual harassment, to parole supervisor Hainline. In the report, plaintiff describes the circumstances surrounding the playing of the answering machine message and states: "This incident is disappointing to me though not a total shock due to other comments made in the past that I considered unprofessional. I am in the office a great deal of time alone when offenders come in for various reasons. Since this incident, I am not comfortable with [the sex offender]." (Def. Mot. Summ. J. Ex. 27.) The fact that the incident described was not sufficiently severe to establish a sexual harassment claim does not affect the determination of whether plaintiff engaged in protected opposition. A plaintiff's opposition is protected provided it was based upon a good faith belief that a Title VII violation occurred, even if, as in this case, no violation occurred. Plakio v. Congregational Home, Inc., 902 F. Supp. 1383, 1392 (D.Kan. 1995).
To qualify as protected opposing activity, an employee need not participate in the formal process of filing a charge. "It is well-established that an employee's express complaints to supervisors about perceived discriminatory practices constitutes protected activity." Garcia-Paz v. Swift Textiles, Inc., 873 F. Supp. 547, 559-60 (D.Kan. 1995). See also Johnson v. University of Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000) (citing EEOC Compliance Manual section 8006 and defining protected opposing conduct as complaints to management, unions, other employees, and newspapers). There is no clear standard to apply when determining whether a communication by an employee is sufficiently specific to constitute protected opposing activity. Garcia-Paz, 873 F. Supp. at 560. An employee need not use legal terms or buzzwords when opposing discrimination. The court will find opposing activity provided the employee's comment, when read in its totality, opposes discrimination. Id. (citing Truskoski v. ESPN, Inc., 823 F. Supp. 1007, 1012 (D.Conn. 1993) (holding complaints about disparate impact of staffing policy having "overtones of gender bias and discrimination" constituted protected opposition)). However, protected activity must oppose Title VII discrimination, and not merely recite complaints regarding personal grievances. Garcia-Paz, 873 F. Supp. at 560.
In this case, the incident report details the circumstances of a sexual joke/conversation and makes it clear that plaintiff was offended by the incident. The report is not merely a vague reference to unspecified discrimination, which courts have determined does not constituted protected activity. Id. The fact that plaintiff used the word "unprofessional" and "disappointing" rather than "discrimination" or "sexual harassment" does not alter the fact that the incident report sufficiently conveyed plaintiff's reasonable concern that defendant engaged in sexual harassment. The court finds plaintiff engaged in protected opposing activity, therefore, the first element of the prima facie case is satisfied.
b) Causal Connection
To establish the third element of the prima facie case, plaintiff must show a causal connection existed between the protected activity (sending the incident report) and the adverse employment action (plaintiff's termination). Protected activity closely followed by adverse action may justify an inference of retaliatory motive. Marx v. Schnuck Mkts., Inc., 76 F.3d 324, 329 (10th Cir. 1996). Plaintiff was terminated approximately five months after sending the incident report. While a close temporal proximity may support an inference of retaliatory motive, a five month delay is insufficient. See Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) (holding a four-month period standing alone is insufficient to establish causation); Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (holding a three-month delay without more is insufficient to establish causation). Therefore, plaintiff must produce additional evidence beyond mere temporal proximity in order to sustain her retaliation claim.
Plaintiff first argues a causal connection has been established because defendant had a reason for waiting five months. Defendant knew that if plaintiff was terminated, the office would lose funding for the part-time secretary position and the parole officers would have to assume the secretarial duties. Plaintiff contends that it was the dilemma created by the desire to terminate plaintiff in retaliation and the fear of losing the secretary position which caused the five month delay between the filing of plaintiff's incident report and her termination.
In addition, plaintiff argues a causal connection has been established because she was subjected to a pattern of retaliatory conduct after she engaged in protected activity. The Tenth Circuit has cautioned courts that the close temporal proximity requirement must not be read too restrictively where there is a pattern of retaliatory acts that begin shortly after engaging in protected activity and only culminates later in actual discharge. Marx, 76 F.3d at 329 (finding a pattern where defendant began citing plaintiff for job deficiencies within one month of plaintiff's reporting of violation and continued for three months culminating in a demotion eleven months later). Plaintiff claims the following events, occurring within the five month period, establish a retaliatory pattern sufficient to show a causal connection:
(1) In February 1999, plaintiff's third annual evaluation reflected that plaintiff had difficulty demonstrating trust and mutual respect in a cooperative work environment and had difficulty with teamwork, areas which had not been marked on plaintiff's evaluations prior to engaging in protected activity.
(2) Plaintiff was given additional tasks, such as taking pictures of the parolees;
(3) The parole officers became overly critical of plaintiff's work, asking her to re-type forms with minor deficiencies. For example, on April 27, 1999, plaintiff was asked to correct minor deficiencies on VOITUS forms four times, and the work was returned to her too late for her to make the changes without missing her second job;
(4) On March 3, 2000, plaintiff received an official reprimand for language she used in an argument with her superiors during her annual evaluation in February 1999. At the evaluation, Easter confronted plaintiff about the incident report, and plaintiff told Easter she could shove the evaluation "up her ass."
(5) On February 17, 1999, Easter told plaintiff she had been informed of Wark's absence and handed plaintiff an e-mail printed off plaintiff's computer, which plaintiff had never seen;
(6) On April 16, 1999, plaintiff was suddenly asked to return two plants belonging to Wark, which plaintiff had taken home to nurse to health two years earlier. When plaintiff explained the flowers had died and she threw the pots away, Easter and Wark began yelling at plaintiff, demanding that she pay forty dollars for the flower pots.
(7) As a result of the flower pot incident, plaintiff refused to attend an April 28, 1999, office meeting between the three women without a neutral person present, however, her request for a neutral person was not relayed to the parole officer supervisor;
(8) Plaintiff's computer printer was disconnected and her chair taken apart; and
(9) Plaintiff was subject to daily rule and policy changes, including:
a) On January 6, 1999, Wark told plaintiff she must keep track of her work hours at all times and write down the hours;
b) Wark told plaintiff she must file reports immediately and in her presence;
c) Plaintiff suddenly had to get special permission to work her existing second job; and
d) Plaintiff was told she could no longer take breaks because she only worked four hours.
Defendant filed a motion in limine to suppress several of the above described events, arguing the court can not consider the evidence because plaintiff failed to exhaust her administrative remedies. Exhaustion of administrative remedies is a prerequisite to bringing suit under Title VII. Aramburu v. Boeing Co., 112 F.3d 1398, 1409 (10th Cir. 1997). To exhaust administrative remedies, the plaintiff must timely present her claims to the Kansas Human Rights Commission ("KHRC") or Equal Employment Opportunity Commission ("EEOC") and receive a right-to-sue letter. The purpose of the exhaustion requirement is two-fold: to give notice of the alleged violation to the charged party and to give the EEOC an opportunity to conciliate the claim. Ingels v. Thiokel Corp., 42 F.3d 616, 625 (10th Cir. 1994).
The court liberally construes an EEOC complaint drafted without the assistance of counsel. See Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 860 (10th Cir. 1983); DeVoe v. Medi-Dyn, Inc., 782 F. Supp. 546, 554 (D.Kan. 1992). The law does not require the plaintiff to state every allegation that supports her claim. Allegations included in a lawsuit under Title VII need only be "reasonably related" to the allegations listed in the administrative complaint. Ingels, 42 F.3d at 625 (citing Brown v. Hartshorne Pub. Sch. Dist. No. 1, 864 F.2d 680, 682 (10th Cir. 1988)). To be "reasonably related," the conduct alleged must fall within the scope of an EEOC investigation which would reasonably grow out of the charges actually made. Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1416 (10th Cir. 1993).
Plaintiff marked the box labeled discrimination on the basis of sex and retaliation on both her KHRC and EEOC complaints. Plaintiff summarized her claims in the KHRC complaint as follows:
I was subjected to sexual harassment, was subjected to an unsafe work environment, was subjected to verbal harassment and my duties as a secretary were impeded and I was terminated because of my sex, female and as acts of retaliation for my having opposed practices forbidden by the Act.
In the KHRC complaint, plaintiff describes the January 6, 1999, rule change that she must write down all hours at all times, the February 17, 1999, e-mail message print-out which plaintiff had not received, and her termination for alleged insubordination. No other specific incidents of retaliation are mentioned.
The court finds the additional retaliatory events described by plaintiff are reasonably related to the retaliation claim presented in the KHRC complaint. The KHRC complaint clearly claims plaintiff was discharged in retaliation for opposing sexual harassment by sending the incident report. The complaint also demonstrates that plaintiff was subjected to multiple "acts of retaliation," beginning soon after defendant received the incident report. These acts include not only the two events specifically listed in the complaint, but also included exposing plaintiff to an unsafe work environment, verbal harassment, and impeding plaintiff's ability to carry out her secretarial duties. Because an EEOC investigation would reveal all the retaliatory conduct listed in plaintiff's lawsuit, the court finds the exhaustion requirement has been met. Therefore, defendant's motion in limine is denied. The court will consider whether plaintiff's evidence establishes a pattern of retaliation.
A pattern of retaliation may be formed by showing heightened scrutiny, negative criticism, adverse evaluation, differential treatment, or violations of standard internal protocol and procedures. Lee v. New Mexico State Univ. Bd. of Regents, 102 F. Supp.2d 1265, 1277 (D.N.M. 2000) (citations omitted). Plaintiff's evidence suggests that she was subjected to heightened scrutiny in her work, as demonstrated by the VOITUS forms incident. Plaintiff received an evaluation with negative remarks in the areas of trust, respect, and teamwork. Plaintiff was subjected to a variety of changes in work rules, such as no breaks, no changes in her work schedule, the requirement that she get permission for her second job, filing reports immediately in the presence of Wark, and writing down her work hours. Plaintiff was also given additional tasks, such as photographing parolees. Plaintiff's remaining evidence simply suggests a hostile environment. The pattern of retaliation, which included heightened scrutiny, adverse evaluation, and divergence from internal procedures, began shortly after engaging in protected activity and ended in termination. The court finds the totality of the evidence, viewed in the light most favorable to the plaintiff, is sufficient to establish a causal connection, particularly when the court considers plaintiff's explanation for the five month delay.
The court finds plaintiff has presented evidence sufficient to state a prima facie case of retaliation.
2. Facially Nondiscriminatory Justification for Discharge
Defendant claims plaintiff was discharged for poor work performance and insubordination. Specifically, defendant points to the following events:
(1) On April 28, 1999, plaintiff did not attend a required office meeting;
(2) On April 27, 1999, plaintiff failed to complete VOITUS forms that had been left on her desk at the beginning of her shift;
(3) Plaintiff failed to comply with an April 7, 1999, request that she provide medical documentation for sick leave;
(4) On March 29, 1999, plaintiff received an official reprimand for calling Wark a "Bitch" on December 23, 1998, telling Easter to stick the performance evaluation "up her ass" on February 23, 1999, and stating, in response to Wark finding a missing file, "I'll be damned, I must be blind as well as ignorant" on March 9, 1999; and
(5) Plaintiff had difficulty prioritizing work assignments, failed to perform simple work assignments, and there was evidence that she hid and tore up work.
The first and second events were the only specific events listed in plaintiff's termination letter. The record before the court is sufficient to demonstrate defendant's sincerity concerning the seriousness of plaintiff's conduct. The court finds that defendant has met its burden of producing a facially nondiscriminatory reason for discharging plaintiff.
3. Pretext
If plaintiff can demonstrate that defendant's proffered justifications for termination are pretextual, i.e., unworthy of belief, then her claim can survive the summary judgment motion. See Kendrick, 220 F.3d at 1230 (citing Randle v. City of Aurora, 60 F.3d 441, 451 (10th Cir. 1995)). Pretext may be established by showing either "that a discriminatory reason more likely motivated the employer or . . . that the employer's proffered explanation is unworthy of credence." Rea v. Martin Marietta Corp., 29 F.3d 1450, 1455 (10th Cir. 1994) (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
Plaintiff has demonstrated that defendant's proffered explanation for termination is pretextual. Defendant's reliance on plaintiff's alleged poor work performance is pretextual. Plaintiff received favorable reviews prior to engaging in protected activity. After sending the incident report, the parole officers criticized plaintiff's work for minor deficiencies. This is evidenced by the April 27, 1999, incident in which the parol officers returned VOITUS forms four times for minor deficiencies. Pretext is also shown by the fact that the forms were not returned in time to allow plaintiff to make the corrections. In addition, Easter requested that plaintiff stay late to make the corrections, despite the fact that plaintiff had a second job and Easter had made it clear that plaintiff was not to work beyond her scheduled hours.
Defendant's reliance on plaintiff's alleged poor attitude and insubordination is also pretextual. It is clear from the testimony of those involved that the relationship between plaintiff and the parole officers deteriorated only after she sent the incident report. Whether plaintiff or the parole officers caused the deterioration and tension is an issue for the jury to determine. After sending the incident report, plaintiff's evaluation reported that she lacked mutual respect and was not a team player. At the evaluation, Easter confronted plaintiff about the incident report, which demonstrates that the negative remarks were related to the filing of the incident report. After being confronted about the incident report and negative remarks on her evaluation, plaintiff responded by telling Easter to shove the evaluation "up her ass," for which plaintiff was written up. After sending the incident report, the parole officers demanded that plaintiff return two flower pots which plaintiff had taken home over two years earlier. The incident was so explosive and intimidating that plaintiff refused to attend the April 28, 1999, office meeting without a third party present. Whether this request was reasonable or unreasonable is for a jury to determine.
Plaintiff has presented evidence, which viewed in the light most favorable to the plaintiff, is sufficient for a jury to find defendant's proffered explanations for plaintiff's termination are unworthy of credence. Therefore, summary judgment is denied as to plaintiff's retaliation claim.
IV. CONCLUSION
The court grants summary judgment on three of plaintiff's claims. Plaintiff concedes that she does not have evidence to support her disparate treatment or discriminatory discharge claims, therefore, summary judgment is granted as to those claims. Summary judgment is granted as to plaintiff's sexual harassment claim because plaintiff has failed to establish that defendant's conduct was severe or that the conduct was motivated by plaintiff's gender. Summary judgment is denied as to plaintiff's retaliation claim. Defendant's motion in limine is also denied.
IT IS THEREFORE BY THE COURT ORDERED that defendant's Motion for Summary Judgment (Doc. 63) is granted in part and denied in part. Summary judgment is granted as to plaintiff's claims of sexual harassment, disparate treatment, and discriminatory discharge. Summary judgment is denied as to plaintiff's claim of retaliatory discharge.
IT IS FURTHER BY THE COURT ORDERED that defendant's Motion in Limine (Doc. 34) is denied.