Opinion
CIVIL ACTION No. 03-2075-CM
April 14, 2004
MEMORANDUM AND ORDER
Plaintiff Donna Hayes filed this lawsuit on February 18, 2003, alleging that she was sexually harassed by her manager, David Martin, during her employment with defendant Cosentino's Price Chopper Food Stores, Inc., and that defendant retaliated against her for making complaints about the sexual harassment, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. (Title VII). This matter comes before the court on defendant's Motion for Summary Judgment (Doc. 43). As set forth below, defendant's Motion is granted in part and denied in part.
The court construes the facts in the light most favorable to plaintiff as the nonmoving party pursuant to Fed.R.Civ.P. 56.
A. Plaintiff's Employment at the Gardner Price Chopper
Plaintiff Donna Hayes is a former employee of defendant. Plaintiff was hired as a doughnut fryer in the bakery at defendant's Gardner, Kansas, Price Chopper grocery store (Gardner Price Chopper) on August 9, 1999. Plaintiff met David Martin (Martin) on her first day of work. Martin was a baker in the bakery at the Gardner Price Chopper at that time and trained plaintiff. Plaintiff worked the 11 p.m. to 6 a.m. shift for approximately a six-month period following the beginning of her employment with defendant. Martin's scheduled hours were the same as plaintiff's for that first six months. After this, Martin always worked the same hours as plaintiff even when it was contrary to the written work schedule. Martin became the acting manager of the bakery at the Gardner Price Chopper in December 1999, and became the bakery manager on February 1, 2000.
On about plaintiff's third day of work, plaintiff figured out that she and Martin lived across the street from each other. Plaintiff states that Martin frequently went to plaintiff's house and sometimes discussed the bakery. Plaintiff claims that Martin's first visit to plaintiff's house was in February 2000, to tell plaintiff and her husband, Michael Hayes (Hayes), that Martin had falsely told his wife, Lisa Martin, that he had slept with plaintiff. The following day at work, Martin told plaintiff he was sorry for what he had done. Martin tried to tell his wife the truth, but she refused to believe him.
Lisa Martin subsequently called the Gardner Price Chopper and told people, including Jeff Quigley (Quigley), the store director, that plaintiff was sleeping with her husband. Lisa Martin also called and harassed plaintiff while she was working. Plaintiff spoke to Quigley in February 2000 about Lisa Martin calling the store. Quigley told Plaintiff he would have all calls to the bakery screened by the night crew. Plaintiff then stopped getting calls from Lisa Martin. Quigley also spoke to Martin to find out what was happening. Quigley told Martin he needed to have his wife stop calling. Mark Keck (Keck), the bakery supervisor for defendant, and Joyce Norris (Norris), the assistant bakery director for defendant, came to the Gardner Price Chopper and spoke to both plaintiff and Martin to see if there was a relationship between the two of them. Quigley, Keck and Norris warned Martin "not to let this go any further." Plaintiff spoke to Quigley about the rumors Lisa Martin had spread about her. At about the same time, Martin also told other employees that he would like to begin a sexual relationship with plaintiff.
After the first visit to plaintiff's home to explain his wife's behavior, Martin never came over to plaintiff's house when Hayes was home. Martin eventually "disregarded" plaintiff's numerous requests that he no longer visit her home. Plaintiff admits that she was friends with Martin at the beginning of her employment, but not after she found out he was lying about her to others at the store.
During the summer of 2000, plaintiff complained to Quigley about Martin coming in during her shift to sit and talk about the bakery. Quigley then spoke to Martin about sitting and talking with plaintiff. Martin stopped for about two days.
Martin promoted plaintiff to assistant bakery manager on September 25, 2000. Plaintiff's pay increased with this promotion. Martin also permitted plaintiff to work a special schedule based on her child care needs.
Plaintiff also asked Martin to schedule a "split-shift" so there would always be a manager in the bakery. Martin never implemented plaintiff's split-shift suggestion. Plaintiff says she actually requested the split-shift as part of her efforts to stay away from Martin. Plaintiff claims that Quigley was aware that plaintiff's request for a split-shift was made as part of her efforts to avoid Martin's constant attention.
Martin invited plaintiff to attend the Grand National Drag Races in Topeka, Kansas. Martin told plaintiff that the invitation to the races was a result of plaintiff's hard work and recent promotion to assistant manager. Martin also told plaintiff that others from the store were going to attend, but no one else ended up at the races. Plaintiff claims that Martin invited only plaintiff to attend the races and lied to plaintiff about others in the store attending as part of his efforts to get her alone with him. Martin also invited plaintiff to go to the Renaissance Festival with him during this same time period, and plaintiff declined.
1. Josh Hayes' Employment at the Gardner Price Chopper
Plaintiff's son, Josh Hayes, worked at the Gardner Price Chopper from April 2000 to December 2000. In December 2000, while at work, Josh wrote a threatening note to a co-worker who was also his former girlfriend. Defendant terminated Josh's employment at the Gardner Price Chopper as a result of the threatening note. Plaintiff felt Quigley did not appropriately handle the problems with Josh. Plaintiff gave defendant her three weeks' notice as a result of the termination of Josh's employment. Keck and Norris talked plaintiff into staying employed with defendant.
2. Plaintiff's Ongoing Interactions with Martin and Request for Transfer
Martin continued to call and go over to plaintiff's house. Martin followed plaintiff around the store when she was shopping. Martin was always talking about the bakery, his kids and problems with his wife. In his discussions with plaintiff, Martin continually tried to make plaintiff believe that her husband, Hayes, was being unfaithful to her. Throughout plaintiff's employment with defendant, Martin frequently and falsely told plaintiff that her husband was not at home, and that her husband was seen speaking in a friendly manner to unidentified women, sometimes in the driveway of plaintiff's home.
In May 2001, a bakery employee reported that plaintiff and Martin were involved and that it made the employee uncomfortable. Quigley and Keck asked Martin if he and plaintiff were involved. Martin denied this and explained that he and plaintiff were very close friends and that they had helped each other through a lot of personal problems. Keck told Martin that he needed to treat everyone equally, and that if his bakery people felt plaintiff was getting better treatment, they would make accusations. Keck reminded Martin that plaintiff was married and nothing good could come from them being involved. Keck also told Martin that if sometime in the future the two of them became involved, he should let Keck know so he could transfer Martin or plaintiff out of the store. Martin went to plaintiff after this conversation and told her what was discussed. Plaintiff told Quigley she was upset about what was being implied. Plaintiff also spoke to Quigley in May 2001 about how plaintiff felt she was doing all the work and Martin was getting all the credit. Plaintiff told Quigley that Martin was bragging about his bonus.
Plaintiff received a pay increase on October 10, 2001, and remained at that rate throughout the remainder of her employment with defendant. Near the end of 2001, plaintiff asked Martin for a transfer to a different bakery or department. Norris consistently said plaintiff was too valuable to lose. Martin said he could not manage the bakery without plaintiff. Martin said he would quit if plaintiff left. Plaintiff discussed this issue with Martin about 15 to 20 times. About four to six months before plaintiff's employment ended, plaintiff again asked about a transfer to a different bakery or a move to a different department at the Gardner Price Chopper. Plaintiff did not have a specific bakery in mind. Plaintiff thought she could move to the salad bar or to the night shift.
Martin lost his temper one night when plaintiff and Martin were trying to put cakes away in the freezer. Some crates were in the way, and Martin started yelling and throwing the crates. The crates did not hit plaintiff. Plaintiff told her husband about Martin throwing the crates. Hayes confronted Martin, and Martin apologized. A few weeks later, Martin became angry because the dairy manager had the ice cream freezer so disorganized that plaintiff and Martin could not get back to the cakes, and Martin kicked a tub of ice cream.
Plaintiff and Martin had some arguments during this time that caused plaintiff to cry. These arguments were about the bakery and plaintiff's consistent requests to transfer. Plaintiff admits that her requests for transfer precipitated numerous arguments with Martin, but denies that the arguments were about plaintiff's request for transfer. Plaintiff claims the arguments and incidents were a result of Martin's frustration and anger over plaintiff's expressed desire get away from Martin's nearly constant pursuit of plaintiff.
On Monday, January 28, 2002, Martin was putting away a load while plaintiff was frying doughnuts. Plaintiff was complaining to Martin that she had to do everyone's jobs. Plaintiff asked Martin again for a transfer. Martin threw some cases of product across the bakery toward the freezer, where they needed to go. Plaintiff was standing next to the fryer. Plaintiff did not get hit by the boxes, but they came within a foot or so of her. Plaintiff asked Bob Mora (Mora), the night manager, if she could get transferred. Shortly after this event, Martin asked plaintiff why she had wasted his time. He said he had been training her to be a "mini-me." Martin told plaintiff that she knew Martin could not manage the bakery without her.
In February 2002, plaintiff had been off work when a new pre-fried doughnuts program began. Plaintiff did not have training on the pre-fried doughnuts so it took her a little longer to get the doughnut case opened on Saturday, February 9, 2002. Martin "got on" plaintiff for not having the case open by 6:00 a.m., and claimed he had done it all by himself the day before without any problems. Norris was in the store that day because a new cake decorator had just been hired. Plaintiff was confused about what she was supposed to be doing with this pre-fried doughnut program and a new employee taking over the cakes. Martin and Norris instructed plaintiff to do certain doughnut and other tasks at certain times. Plaintiff disagreed with their instructions because she believed Naomi Milroy (Milroy), the baker, would have the ovens full during the times they were suggesting plaintiff do her work. After this discussion, plaintiff went to get a cup of coffee. When plaintiff returned, Martin told her Norris was upset and planned to come to the Gardner Price Chopper every day that week to check on things.
3. February 10, 2002
On February 10, 2002, plaintiff created a work list for herself. Martin also created a goals list for plaintiff. Plaintiff felt there was no reason for Martin to give her his list when she already had a list prepared. Plaintiff was offended Martin signed his list "Your Bud." While Martin was in the store, he argued with plaintiff in the break room. During the argument, Martin threw a pack of cigarettes at plaintiff's back when plaintiff started to leave the break room and told plaintiff to "kiss my ass." Plaintiff did not see the pack of cigarettes coming, and they hit her in the back. Plaintiff told Martin to "kiss my ass." Martin followed plaintiff out of the break room and yelled, "Don't ever turn your back on me again!" Plaintiff did not feel threatened by the pack of cigarettes Martin threw; she did feel threatened by Martin's attitude. The next day, Martin apologized to plaintiff for throwing the cigarettes.
The incident prompted plaintiff to write three documents for Quigley detailing her complaints about Martin. Plaintiff went to the store later on February 10, 2002, with her husband to talk with Quigley. Plaintiff also delivered her three documents to Quigley at that time. Plaintiff told Quigley she did not want Martin fired. Plaintiff said she wanted to transfer out of the bakery because she could no longer work with Martin.
Although plaintiff testified that she created all three documents at the same time and that she gave Quigley a copy of all three documents, one of the documents actually refers to the meeting plaintiff had with Quigley on February 10, 2002. It also appears this is the document plaintiff later gave the police, as the document is signed as received by a police officer.
Quigley also said he would talk to Mora about the possibility of transferring plaintiff to the night shift. Quigley told plaintiff he did not know about the problems, that she did the right thing, and that it was her responsibility to bring issues like this to his attention. While plaintiff and her husband were at the store, Lisa Martin called plaintiff's home and spoke to plaintiff's son. When plaintiff learned about Lisa Martin's telephone call, she and her husband returned to the store and spoke to Quigley again about pressing charges against Martin and his wife. Quigley said he thought that would be a good idea. Plaintiff filed a police report and gave the police some specific documentation about the cigarette-throwing incident. Plaintiff did not give defendant a copy of the documentation she gave to the police.
In a note attached to the documents plaintiff gave Quigley on February 10, 2002, plaintiff explained that: 1) Norris had just hired a new person with more experience than plaintiff and Martin combined; 2) because the new person was present, plaintiff felt better asking for a transfer; 3) plaintiff's family was tired of plaintiff coming home at night crying or in a bad mood because she and Martin "had it out"; 4) plaintiff believes she gives 110% and knows every aspect of the bakery; 5) plaintiff knows how to run the bakery and how to fix the problems, but Martin won't take her suggestions; 6) plaintiff wants a transfer to another department or she will have to look outside Price Chopper for work. In the documents plaintiff gave to Quigley, plaintiff explained the cigarette throwing incident and also gave Quigley a list of the complaints plaintiff had about Martin.
4. February 11, 2002
Norris came to work at the Gardner Price Chopper on Monday, February 11, 2002. When Norris arrived, she caught plaintiff and Martin smoking and talking together behind the doughnut case. The same day, plaintiff spoke with Norris about her request for a transfer and about wanting her hours cut. Plaintiff said she wanted to spend less time with Martin. Norris assured plaintiff the situation was going to be handled soon. Norris was not upset with plaintiff about her request. Norris did not want plaintiff to leave the bakery as plaintiff was valuable. Martin also spent some time with plaintiff that day, trying to talk her out of leaving the Gardner Price Chopper.
5. plaintiff's Complaints to Management and February 12, 2002 Meeting
On February 12, 2002, plaintiff met with Mike Johnson (Johnson), defendant's human resources director, Quigley, and Norris to discuss plaintiff's complaints about Martin. Johnson explained that the purpose of the meeting was to discuss the memos plaintiff gave Quigley on February 10, 2002. Johnson explained that there were several issues that were cause for concern. Plaintiff had listed and subsequently explained to Quigley, Johnson, and Norris the following issues/problems:
• Martin not handling problems in the bakery department, specifically problems with closers and packagers not doing their jobs.
• Martin setting up the schedule so plaintiff was "shift-jumping," which was hard on her sleep-wise.
• Martin telling his wife he had slept with plaintiff to try and get his wife to leave, which caused problems for plaintiff at home.
• Martin telling plaintiff when her husband, Hayes, was gone when Martin came into work, and that Martin saw plaintiff's husband talking to a woman.
• Martin calling and/or coming to her house to talk about work, and various other issues, such as problems with his wife and kids or racing, while plaintiff was sleeping.
• Martin yelling at her for other people's mistakes and complaining about aspects of how plaintiff did her job, especially after plaintiff told Martin she wanted a transfer out of the bakery.
• Arguments with Martin about Martin putting "everything off on me," decorating, doing other people's jobs, ordering, putting loads away, and plaintiff "doing everything."
• Martin getting mad and kicking and throwing product across the bakery near plaintiff twice in late 2001 or early 2002.
• Martin frequently expressing that no one could do anything in the bakery as well as Martin.
• Martin letting Milroy take any day off she wanted, but then griping about her to everyone.
• Martin telling everyone about every problem he had with someone or their work.
• Martin coming into work during plaintiff's shift, even on his days off.
• Martin expecting her to know how to do the pre-fried doughnuts when she had no training and had been gone for 2 days.
• Martin kicking or throwing crates in front of the freezer when he was mad.
• Martin causing plaintiff to have problems with "Sharon," a co-worker.
• Martin refusing to set up a split-shift schedule. Martin telling her that upper-management thought plaintiff was a troublemaker and they were afraid plaintiff would sue the store.
• Martin refusing to grant plaintiff a transfer to another bakery or department in the store.
• Martin telling her Norris was upset with her after she asked for an adjustment to her work hours.
However, plaintiff has agreed that she was always allowed to go home for 1 to 1 1/2 hours in the morning to handle her child care issues.
However, plaintiff testified that Martin threw things in front of other employees, including at least one male employee. Moreover, when Keck and Norris interviewed one of plaintiff and Martin's co-workers, Naomi Milroy, about Martin's management style, Milroy said she liked working for Martin, but that they argued about things sometimes.
Plaintiff claims that her February 10, 2002, memo is a complaint of sexual harassment by Martin, and there can be no doubt that Johnson was aware that plaintiff was complaining of sexual harassment in the memo. Defendant contends that Johnson's notes of the meeting indicate that the issue of "harassment," but not "sexual harassment" comes up in only three bullets of plaintiff's memo. Johnson stated that defendant has a policy which states that it will provide a harassment free environment.
The policy defendant has had since 1993 with regard to harassment is the written policy contained in the employee handbook. The "harassment" prohibited by the written policy contained in defendant's employee handbook is illegal harassment, i.e. sexual or racial harassment in violation of "federal, state and local laws." The policy requires an investigation when a complaint of sexual or racial harassment is made. Johnson ordered an investigation to take place after receiving plaintiff's February 10, 2002, memos.
Johnson asked plaintiff to address the issues of harassment described in the 3rd, 4th, and 5th bullets of plaintiff's February 10, 2002, memo. Plaintiff said that it was many months ago, that those incidents occurred a long time ago and were not an issue now. Johnson asked plaintiff about Martin and plaintiff being observed leaving the Gardner Price Chopper together on February 11, 2002. Plaintiff explained she had been shopping and Martin had followed her, telling her what she needed to do the next day.
Plaintiff told Johnson, Norris, and Quigley that she had never directly told Martin to leave her alone or that she did not want him to be part of her life. Plaintiff contends, however, that Martin "disregarded" plaintiff's numerous requests that he no longer visit her home, and that Martin continued to telephone and e-mail plaintiff after he had been told not to.
Plaintiff described Martin's temper and said that she either wanted another position in the store or a transfer to a different store. Plaintiff discussed that she would be willing to go to another store or stay in the bakery department. Johnson explained that plaintiff's wage was based on her being an assistant manager and, while they might be able to find another position at the Gardner store, plaintiff would not be qualified to be an assistant manager in another department. He explained that might impact her rate of pay. Johnson told plaintiff they would also check on opportunities in other stores. Defendant claims that plaintiff said either option would be fine. Plaintiff claims she stated that a transfer would be fine only if she could still have the hours she needed to take care of her special needs child.
Plaintiff told Johnson, Quigley, and Norris she really liked the bakery, and that she was not looking at getting Martin's job. Johnson told plaintiff that Martin's behavior was unacceptable. Johnson, Keck, Quigley, and Norris all agreed to do different things to try and follow-up on the discussion held with plaintiff. Plaintiff contends that the agreement "to do different things" is the company policy-mandated investigation that was conducted in response to plaintiff's February 10, 2002, complaints.
6. February 13, 2002
Plaintiff talked with Quigley and Keck on February 13, 2002. They told plaintiff she could transfer to the bakery at defendant's 119th Street Price Chopper, and that she would continue to be an hourly employee and would have the same rate of pay. Keck told plaintiff she would need to be flexible with regard to the schedule. Plaintiff told Quigley and Keck that she would have to let them know about her decision regarding the transfer and her child care arrangements.
Quigley and Keck also had a talk with Martin on February 13, 2002. Quigley and Keck told Martin they were going to transfer plaintiff and they did not want Martin to have any further contact with plaintiff.
7. Plaintiff's Termination/Resignation
Plaintiff was put on the schedule to start at the 119th Street Price Chopper, at the same pay. Norris anticipated plaintiff would be the assistant manager, but they did not want to start plaintiff at that level without first talking to the bakery manager. The morning of February 14, 2002, plaintiff called Keck to tell him she would not be able to accept the transfer to the 119th Street Price Chopper. Keck told plaintiff he did not know if there were any openings available in any other departments. Keck told plaintiff that if she decided to resign, he would allow plaintiff to resign without two weeks' notice and still consider her eligible for rehire.
Keck testified that he believed plaintiff resigned her position in the bakery as of February 14, 2002. Keck gave plaintiff what he believed were her only two options: transfer to the 119th Street Price Chopper or continue to work in the bakery at the Gardner Price Chopper. Plaintiff told Keck that she was unwilling to accept either option. As a result, Keck concluded that plaintiff was choosing to resign.
Plaintiff admits that she was given only two options following her February 10, 2002, complaints. However, she claims that the first option was to transfer to another store at a lower rate of pay and position, and the second option was to end her employment. Plaintiff denies that she told anyone that she wanted to resign. Plaintiff claims that she was unable to take any transfer because she couldn't work out the daycare arrangements for her special needs son, and that Martin had been instructed to no longer schedule plaintiff for any work hours at the Gardner Price Chopper. Plaintiff claims that on February 14, 2002, Keck told her that Quigley would call her the next day, but that no call from Quigley ever came. Plaintiff claims she began telephoning Quigley in an effort to determine her work schedule, but for some reason, Quigley was ordered by Johnson not to return any of plaintiff's telephone calls. Plaintiff contends that Keck knew plaintiff had not resigned, because Keck was present when plaintiff telephoned Quigley about her job. Plaintiff claims she realized that she had been terminated when she finally spoke with Quigley, who told her she had to call Johnson.
On February 14, 2002, plaintiff wrote a letter to John Cosentino (Cosentino) who was the perishable director, and sent it to Cosentino by certified mail on February 15, 2002. Defendant contends that, in this letter, plaintiff for the first time identified her complaints as possibly being sexual harassment. In the letter, plaintiff demanded that Cosentino return plaintiff to her position as assistant manager, including her safety coordinator position.
Plaintiff went to the Gardner Price Chopper on or about February 15, 2002. Plaintiff attempted to personally deliver a copy of her letter to Quigley, but he was not in the store.
On about February 18, 2002, Martin told Quigley, Keck, and Johnson that he had had an intimate relationship with plaintiff for about two years, and that he had love letters from plaintiff and a joint bank account with plaintiff under her maiden name. Martin also told them he had not told the truth when, on prior occasions, management had asked him if he was having a relationship with plaintiff. Plaintiff claims that, additionally, Quigley told Martin that Martin should come up with something to protect himself from plaintiff's sexual harassment claim.
Defendant later confirmed that there was a bank account in both Martin's and plaintiff's maiden name (Donna Brown).
The same day, plaintiff was shopping at the Gardner Price Chopper, and Martin informed plaintiff that he had told management he had an affair with plaintiff. Martin informed plaintiff that he told management he had letters to prove it. Plaintiff told Martin he was crazy, and Martin apologized.
On the evening of February 19, Martin took a document over to plaintiff's house. Martin told plaintiff he had felt the need to lie about having an affair with her to try to keep his job. In the document, Martin recanted his statement to defendant that he had an affair with plaintiff. Plaintiff told Martin the document did not mean anything unless it was notarized. Plaintiff drove to a notary's house, and Martin followed. Martin got his handwritten memo notarized for plaintiff. Plaintiff never sent the notarized document to defendant. Instead, she sent it only to the Equal Employment Opportunity Commission (EEOC) and the Kansas Human Rights Commission. Neither plaintiff nor Martin ever gave a copy of the document to defendant.
Plaintiff spoke to Johnson on February 21, 2002. Plaintiff asked Johnson when she should return to work and to which department. Johnson explained that plaintiff had abandoned her job and he had been told that plaintiff had threatened Martin. Plaintiff denied threatening anyone. Johnson also told plaintiff that he understood she had given Keck her two weeks' notice. Plaintiff claims that only when Johnson told plaintiff that she had abandoned her job did plaintiff realize she was no longer employed by defendant. Plaintiff denies having any conversation about rehire with Keck.
B. Martin's Termination
Defendant terminated Martin's employment on February 20, 2002. Defendant claims it terminated Martin's employment because he lied over a two-year period about his relationship with plaintiff. During that time, Martin consistently said there was no relationship. A couple of days before his employment was terminated was the first time Martin said he was having an affair with plaintiff. Plaintiff disputes the reasons set forth for Martin's termination, but does not dispute that defendant terminated Martin's employment.
Defendant claims it did not know Martin had lied in February 2002 about having an affair with plaintiff until May 2002 at the earliest. Plaintiff contends, however, that the false story of an affair between Martin and plaintiff was defendant's idea to defeat plaintiff's sexual harassment claim.
C. Plaintiff's Employment Following Cosentino's
Plaintiff worked at McKeever's Price Chopper from September to December 2002 as the bakery manager. On plaintiff's application for McKeever's, she stated that she had no restrictions on the hours she was available to work. Rhonda Emery (Emery) was the cake decorator at McKeever's. Norma King (King) was the bakery supervisor for all of McKeever's stores. Martin visited plaintiff at the McKeever's store three or four times.
McKeever's is not owned by or related to defendant.
McKeever's hired Martin to work in the bakery about 3 to 4 weeks before plaintiff quit. Martin believes plaintiff recommended him for his job at McKeever's. When Martin was working at McKeever's, he called plaintiff to ask her about how to do things at the store. Plaintiff handed in her two weeks' notice from McKeever's on December 9, 2002. Plaintiff claims she quit working at McKeever's because of Emery and King.
D. Unconditional Offer of Reinstatement
On May 24, 2002, Tammy Kephart, from defendant's human resources department, called plaintiff and offered her the assistant manager position in the bakery at the Gardner Price Chopper. Plaintiff sent Kephart and Keck a letter dated May 26, 2002, rejecting the offer. Plaintiff testified that she did not accept the unconditional offer of reinstatement because: 1) plaintiff heard things were being said about her; 2) Martin told plaintiff he felt he had to lie to management about having an affair with plaintiff to try to keep his job; 3) plaintiff felt she was ignored by management for two years and treated poorly by management; 4) plaintiff felt she did not have the respect of the bakery employees or Quigley; and 5) plaintiff felt she was having self-esteem problems. Defendant contends that most, if not all, of these issues existed when plaintiff wrote her February 14, 2002, letter to Cosentino demanding that he return her to her position as assistant bakery manager.
II. Summary Judgment Standard
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). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut," rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
III. Analysis
A. Sexual Harassment
To establish a claim of sexual harassment, plaintiff must prove that she was harassed on account of her sex and that the harassment was pervasive or severe enough that it affected a term, condition, or privilege of her employment. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir. 1994). In determining whether a work environment is so pervasively hosfile that it amounts to sexual harassment, the court must look at the totality of the circumstances confronting the affected worker, including the "frequency of the discriminatory 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 Sys., Inc., 510 U.S. 17, 23 (1993); Meritor Sav. Bank v. Vinson, 477 U.S. 57, 69 (1986); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1414 (10th Cir. 1987). To be actionable, conduct must be extreme and not merely rude or unpleasant to affect the terms and conditions of employment. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). "[G]eneral harassment if not sexual is not actionable." Unrein v. Payless Shoesource, Inc., 51 F. Supp.2d 1195, 1205 (D. Kan. 1999). Defendant claims it is entitled to summary judgment on this claim because plaintiff cannot prove that the alleged harassment was based on her sex or that the alleged harassment was sufficiently severe or pervasive to create an abusive working environment. Rather, defendant claims that Martin's actions were gender-neutral conduct that no reasonable jury would conclude was based on plaintiff's sex.
The undisputed facts before the court demonstrate a history of interaction between plaintiff and Martin since 1999, both at work and outside of work. In articulating her complaints, plaintiff focuses on the incidents and issues she previously listed in her February 10, 2002, memo, as well as the following:
• Martin throwing the pack of cigarettes at plaintiff's back and telling her to "kiss my ass."
• Martin continuing to call and visit plaintiff, at least weekly and sometimes daily, after plaintiff and Martin were no longer working for defendant. Martin talked to plaintiff about losing his house and his wife, about his job at a restaurant on 119th Street, and about problems he had with his kids.
Notably, most of the interaction about which plaintiff complains centers on plaintiff and Martin's relationship as co-workers, and then as supervisor and subordinate in defendant's bakery. Plaintiff also made several complaints about Martin's management style and the way he handled issues in the bakery. The court agrees with defendant that most of the complaints plaintiff described are devoid of any indication that they were due to plaintiff's gender. While Martin was generally temperamental and prone to have outbursts toward plaintiff, the record reflects that Martin also acted that way towards other employees — both male and female. Martin, who lived across the street from plaintiff and her family, frequently stopped by plaintiff's home to discuss various work matters and personal issues with her, and spent large amounts of time at work talking with plaintiff. However, the record also reflects that plaintiff, at least at some point, considered Martin a friend and thought the conversations with Martin were "normal" and not offensive to her.
The court notes that Martin permitted plaintiff to work a schedule that allowed her to coordinate child care arrangements for her special needs child. Martin also promoted plaintiff to the assistant manager position. Martin did not make any sexual comments, references or innuendos to plaintiff, other than the one incident when he told his wife he was sleeping with plaintiff, after which he immediately told plaintiff and her husband and apologized for doing so. Plaintiff claims that Martin told plaintiff's husband that he loved plaintiff. However, as defendant points out, Martin's statement was in direct response to a question from plaintiff's husband regarding whether Martin could love plaintiff if Hayes was "out of the picture." Martin continued to visit plaintiff when she started working at the bakery in McKeever's Price Chopper, and eventually started working there with plaintiff. Although plaintiff resigned her position with McKeever's, she admits that it was due to problems with two female co-workers, and makes no mention of Martin as a reason for her resignation.
The record reflects that, during her employment with defendant, plaintiff frequently communicated with Quigley about issues in the bakery and with Martin, and that both Quigley and Norris consistently told plaintiff that she was a valued employee, followed up with Martin regarding plaintiff's complaints, and tried to get plaintiff to keep working in the bakery. Keck and Quigley warned Martin against engaging in a sexual relationship with plaintiff, and told Martin that if he and plaintiff chose to pursue a romantic relationship, that defendant would transfer or otherwise re-assign either Martin or plaintiff to remove any conflict that might arise since Martin was plaintiff's supervisor. Moreover, it is uncontroverted that when plaintiff discussed her complaints with Johnson, Norris and Quigley on February 12, 2002, Johnson asked plaintiff to address the issues regarding Martin telling his wife he slept with plaintiff, Martin "telling on" plaintiff's husband, and calling or coming to her house. Plaintiff said that those instances occurred a long time ago and were no longer an issue.
The court is somewhat puzzled at the actual relationship between plaintiff and Martin. Defendant has submitted evidence of a joint bank account in Martin and plaintiff's maiden name. During his employment with defendant, Martin consistently told management that he was not having a sexual relationship with plaintiff. Shortly before his employment was terminated, Martin told management that he had lied and that he was having an affair with plaintiff. In his statement submitted to the EEOC on plaintiff's behalf, and during his deposition in this case, Martin denied having any sexual relationship with plaintiff. Martin's most current affidavit, submitted in opposition to defendant's summary judgment motion, states that, while Martin wanted to have a sexual relationship with plaintiff, he never did.
Taking all of these factors into consideration, even if the court were to include the three complaints that plaintiff told Johnson were no longer an issue, the court finds that plaintiff has failed to create a genuine issue of material fact regarding whether Martin's conduct was because of her sex. See Stahl v. Sun Microsys., Inc., 19 F.3d 533, 538 (10th Cir. 1994) ("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 as a result of that environment.") Further, the court finds that, even if plaintiff had established that Martin's conduct was because of her sex, she has failed to demonstrate that his conduct constituted sexual harassment. Although Martin's conduct may have been inappropriate, overbearing, annoying, at times intimidating, and arguably motivated by his desire to have a sexual relationship with plaintiff, there is no evidence that Martin's conduct was sufficiently severe or pervasive to constitute sexual harassment within the meaning of Title VII.
Moreover, as defendant points out, both the Tenth Circuit and this court have found conduct that was much more serious than that alleged by plaintiff not actionable as a matter of law. See, e.g., Kirk v. City of Tulsa, 72 Fed. Appx. 747 (10th Cir. 2003) (holding that supervisor's abrasive management style and alleged inappropriate conduct in (1) referring to a male co-worker as an idiot and likening a meeting with him to "being in a circle jerk"; (2) stating that a female employee had a bad attitude and "just needs to get her hysterectomy and retire"; (3) claiming that he was brought in to straighten a female employee up; (4) blaming a female employee during a staff meeting for a delay attributable to a male colleague and later apologizing for using her to straighten the male employee up; (5) stating to several staff members that "the problem with this job is that god damn [plaintiff]"; (6) mimicking one of plaintiff's manic attacks (caused by her bi-polar disorder) and referring to her as "crazy"; (7) advising plaintiff's staff to report to him instead of her; and (8) blurting out in a meeting with building contractors that the problems they were encountering with a project plaintiff had worked on were because of "that god damn cunt [plaintiff]" were not severe and pervasive enough to support sexual harassment claim); Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257 (10th Cir. 1998) (despite plaintiff's allegations that her manager made inappropriate comments, asked her about wet dreams, told her he liked it that her bra strap was showing, asked what she was wearing under her dress, pointed out that the roof of a mall was shaped like a woman's breasts, followed her around constantly when she got up to go to the bathroom or on breaks, and often snuck up behind her grabbing her shoulders to startle her, no rational jury could find plaintiff's workplace "permeated with discriminatory intimidation"); Campbell v. United States Postal Serv., 151 F. Supp.2d 1284 (D. Kan. 2001) (where plaintiff alleged supervisor patted her inner thigh during training, grabbed and firmly held her wrist while giving work-related instruction, grabbed and held her upper arms while giving work-related instruction, occasionally hit her back or arm "as if he were swatting a fly," and bumped into her or rubbed his shoulder against her back on three or four occasions, conduct insufficiently severe or pervasive to constitute sexual harassment); Metzger v. City of Leawood, 144 F. Supp.2d 1225 (D. Kan. 2001) (where plaintiff alleged her supervisor offered to have an affair with her three times, held her hand several times when he took her to lunch, kissed her on the lips on two occasions, pressured her to allow him to visit her home when her husband was out of town and kissed her good-bye when he left, told her he loved her taste in bras, caused rumors of an affair at work, and caused other employees to dislike her, conduct insufficiently severe or pervasive to constitute sexual harassment); Unrein, 51 F. Supp.2d 1195 (when considering the totality of the circumstances, facially-neutral abusive conduct coupled with two arguably gender-related incidents insufficiently severe or pervasive to support claim).
Accordingly, the court grants defendant's motion for summary judgment on plaintiff's sexual harassment claim.
B. Retaliation
To establish a prima facie case of retaliation, plaintiff must show that: (1) she engaged in protected opposition to discrimination; (2) defendant subjected her to an adverse employment action subsequent to the protected activity; and (3) a causal connection exists between the protected activity and the adverse employment action. Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th Cir. 2000). Once plaintiff establishes a prima facie case, the burden of production shifts to defendant to articulate a legitimate, nondiscriminatory reason for the adverse action. If defendant presents evidence of a legitimate business reason, the plaintiff must then demonstrate that the defendant's offered reasons are a mere pretext for discrimination. Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996).
To engage in protected opposition to discrimination, plaintiff does not have to make a formal complaint; an informal complaint to management is sufficient. Phelps v. Sears Roebuck and Co., No. 90-4133, 1993 WL 523202, at *5 (10th Cir. Dec. 15, 1993). Plaintiff also must have a reasonable good faith belief that she was opposing discrimination. Zinn v. McKune, 143 F.3d 1353, 1362 (10th Cir. 1998). Title VII bars retaliation by an employer only if the retaliation is because the employee has opposed a practice made an unlawful employment practice by Title VII. 42 U.S.C. § 2000e-3(a). However, a plaintiff's opposition could be protected even if she were wrong about whether the alleged conduct in fact violated Title VII; it is enough if plaintiff had a good faith belief that Title VII had been violated. Love v. Re/Max of Am., Inc., 738 F.2d 383, 385 (10th Cir. 1984). Therefore, an employer's action against an employee cannot have been because of that employee's protected opposition unless the employer is aware that the employee has engaged in protected opposition. Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993).
1. Protected Opposition
In her opposition to defendant's summary judgment motion, plaintiff claims she complained about Martin's conduct on five occasions. First, plaintiff alleges she asked Martin not to come over to her house, call or e-mail her. Second, plaintiff claims that she complained to management in February 2000 about Martin stating that he had slept with plaintiff. Third, plaintiff alleges she complained to Quigley in August 2001 that Martin was coming in and bothering her on his days off. Fourth, plaintiff claims she complained about sexual harassment on February 10, 2002, when she gave the handwritten documents to Quigley. Plaintiff alleges that her final complaint was the February 14, 2002, letter to Cosentino.
The parties agree that Martin never kissed plaintiff or attempted to kiss plaintiff. Martin only hugged plaintiff once when he put his arms around both the shoulders of plaintiff and the shoulders of a co-worker. Martin never gave plaintiff any letters, gifts, or cards (other than one card which was signed by all the bakery employees). Martin never told plaintiff he loved her.
On three occasions, Martin walked closely enough to plaintiffs backside that his arm or hand brushed against her buttocks. Martin also stood a little too close for her and other employees at times. Martin said sorry and laughed on the three occasions he bumped plaintiff. Plaintiff never told defendant about these behaviors. Plaintiff admits that she is not complaining about those behaviors in this lawsuit.
The court notes that, with respect to the first, second, third and fifth alleged complaints, there is no evidence that defendant took an adverse action against plaintiff that altered her compensation, terms, conditions or privileges of employment as a result of any of those complaints and thus, even if true, these complaints cannot form the basis for a retaliation claim. See Campbell, 151 F. Supp.2d at 1294-95.
Notably, by the time plaintiff made her fifth complaint, she was no longer employed by defendant.
With regard to plaintiff's fourth complaint, defendant contends that plaintiff cannot show she engaged in a protected activity because plaintiff's fourth complaint was a list of complaints relating to Martin's management style. Defendant claims that, because it is uncontroverted that plaintiff's fourth complaint was limited to the complaints about Martin's management style, plaintiff could not have had a good faith belief that she was opposing discrimination when she made the complaint.
However, plaintiff has argued in her opposition to summary judgment that she believed that Martin's allegedly harassing conduct was because of her sex and because he was obsessed with her and wanted to have a sexual relationship with her. In her deposition, plaintiff testified that, when she discussed her complaints with Johnson, Quigley, and Norris on February 12, 2002, Johnson said, "it sounds like sexual harassment." Only then, plaintiff argues, did defendant conduct a formal investigation into plaintiff's complaints under its written policy. Defendant contends that Johnson considered Martin's described behavior to be harassment, but not sexual harassment.
The court believes that plaintiff's arguments, taken in the context of the entire record, create a genuine issue of material fact with regard to whether plaintiff believed that she was in good faith opposing sexual harassment when she made her fourth complaint to management about Martin's behavior — regardless of the fact that the court has found that plaintiff failed to create a genuine issue of material fact regarding whether Martin's conduct was because of her sex. See Love, 738 F.2d at 385. The court further finds that a genuine issue of material fact exists with regard to whether defendant was aware that plaintiff was voicing opposition to discrimination in violation of Title VII when she made her fourth complaint.
2. Adverse Action
Plaintiff alleges that after she made the fourth complaint, she was given two options — transfer to another store at a lower rate of pay, or end her employment. Plaintiff claims that defendant terminated her employment as a result of her fourth complaint.
It is uncontroverted that when plaintiff complained about Martin's behavior in February 2002, defendant offered to transfer plaintiff to the bakery at the 119th Street Price Chopper as an hourly employee, at the same rate of pay, and that Norris anticipated that plaintiff would be the assistant manager but needed to talk to the bakery manager before making that decision. When plaintiff refused the transfer, defendant contends that it had no other positions open at the Gardner Price Chopper, so plaintiff's options were to remain in her current position or resign. Plaintiff contends that the only options available to her were to transfer to another store at a lower rate of pay and position, or to end her employment. Plaintiff claims that she refused both options, and that defendant actually discharged her employment, but tried to make it look like a resignation. Defendant contends that it took plaintiff's refusal to accept the transfer or to remain in her current position as an abandonment of her position.
The court is unclear whether plaintiff actually resigned her position with defendant in February 2002, or whether she was, in effect, terminated. The court finds the issue further muddied by the fact that plaintiff wrote Cosentino a letter on February 14, 2002, demanding that she be reinstated to her position, and that Johnson, when he spoke to plaintiff on February 21, 2002, refused to return plaintiff to her position at the Gardner Price Chopper because he considered her to have "abandoned" her position. Plaintiff contends she was terminated; defendant contends she resigned or abandoned her position but was eligible for re-hire. If defendant's contention is true, the court questions why defendant did not grant plaintiff's request for reinstatement in February 2002, instead of waiting until May 2002 to offer reinstatement, especially in light of the fact that it terminated Martin's employment on February 20, 2002. The court therefore finds that a genuine issue of material fact exists with regard to whether plaintiff suffered an adverse employment action as a result of her fourth complaint.
3. Causal Connection
The undisputed facts before the court are that plaintiff's position with defendant ended on February 14, 2002, which was four days after plaintiff delivered the documents to Quigley detailing her complaints about Martin (her fourth complaint), and two days after plaintiff had the meeting with Quigley, Johnson and Norris to discuss the details of those complaints. The fact that plaintiff's employment ended within one week of her making the fourth complaint is close enough in time to create a causal connection sufficient to support her retaliation claim. See e.g. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (citing Ramirez v. Okla. Dep't of Mental Health, 41 F.3d 584, 596 (10th Cir. 1994) for the proposition that a one and one-half month period between protected activity and adverse action may, by itself, establish causation for retaliation).
Defendant rests its entire basis for summary judgment on plaintiff's retaliation claim on the contention that plaintiff did not engage in a protected activity and did not analyze the remaining elements of plaintiff's retaliation claim. Because the court finds that genuine issues of material fact exist regarding whether plaintiffs fourth complaint was a protected activity and regarding whether defendant took adverse action against plaintiff as a result of the fourth complaint, the court denies defendant's motion for summary judgment on plaintiff's retaliation claim.
C. Damages
Defendant claims that plaintiff failed to mitigate any back pay and/or lost benefits by unreasonably refusing to accept defendant's May 26, 2002, offer of unconditional reinstatement. Plaintiff claims that defendant has engaged in duplicitous acts to orchestrate her termination and defeat her discrimination claims, as well as openly and continually questioned plaintiff's honesty and motives.
"A plaintiff's unreasonable rejection of an unconditional offer of reinstatement will cut off an employer's liability for damages as of the date the offer is rejected or expires." Albert v. Smith's Food Drug Ctrs., Inc., 356 F.3d 1242, 1253 (10th Cir. 2004) (citing Ford Motor Co. v. EEOC, 458 U.S. 219, 230-32 (1982)). The court believes that, because of the parties' positions on this issue, it is more appropriate for a fact finder to determine whether plaintiff's refusal to accept the offer of reinstatement was unreasonable. As such, the court finds it premature to address the waiver issue at this time. Accordingly, the court denies defendant's motion for summary judgment on this issue.
IT IS THEREFORE ORDERED that defendant's Motion for Summary Judgment (Doc. 43) is granted in part and denied in part. Specifically, the court grants defendant's motion with respect to plaintiff's sexual harassment claim, but denies defendant's motion with respect to plaintiff's retaliation claim and the damage issue.
SO ORDERED.