Opinion
Case No. 01-1135-JAR
March 17, 2003
MEMORANDUM ORDER AND OPINION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This employment discrimination action comes before the Court on defendant Cessna Aircraft Company's (Cessna) Motion for Summary Judgment (Doc. 26). Related to this motion, is Plaintiff's Amended Motion to File Brief Response to Cessna's Reply in Support of Its Motion for Summary Judgment (Doc. 34). Plaintiffs allege violations of Title VII of the Civil Rights Act of 1964 and of the public policy of the State of Kansas.
Plaintiffs seek leave to file a brief in response to Cessna's reply, wanting to clarify that Plaintiffs have not admitted that they fabricated allegations of sexual harassment or breached the trust, the reasons Cessna states for their termination. Plaintiffs have merely admitted that that is Cessna's stated reason for terminating them. The Court understands the distinction, and does not need additional briefing. Whether Plaintiffs fabricated allegations of sexual harassment or breached the trust, is an issue of fact. Therefore, the Court denies Plaintiffs' Amended Motion to File a Brief Response to Cessna's Reply (Doc. 34).
Plaintiffs withdrew their claim under the Kansas Act Against Discrimination, Kan. Stat. Ann. 44-1000 et seq. See Memorandum in Opposition to Motion of Defendant for Summary Judgment (Doc. 31) at p. 16.
Plaintiff Kimberly S. Renner-Wallace (Renner-Wallace) claims that she was subjected to sexual harassment and a hostile working environment. Renner-Wallace told her union steward, Plaintiff Michelle S. McCabe (McCabe) about the sexual harassment and they both complained to Cessna management. Cessna's investigation was inconclusive; it was unable to determine whether Renner-Wallace had been sexually harassed. A few days after Cessna had concluded its investigation, an employee reported to Cessna that Renner-Wallace and McCabe had fabricated the allegations of sexual harassment because they disliked and wanted to cause the termination of the alleged harasser. Cessna investigated this complaint. Based on its investigation, Cessna terminated Renner-Wallace and McCabe for breach of trust in falsifying allegations of sexual harassment. Plaintiffs deny fabricating the allegations and both claim that Cessna terminated them in retaliation for their complaint about Renner-Wallace being sexually harassed.
Because Renner-Wallace fails to make a prima facie showing of hostile work environment by sexual harassment, the Court grants Cessna summary judgment on that claim. And, considering evidence in the light most favorable to Plaintiffs, Cessna has demonstrated a legitimate reason for its termination of Plaintiffs; and Plaintiffs have failed to show any evidence that Cessna's conduct was a pretext for unlawful retaliation. Thus, the Court grants Cessna summary judgment on the retaliation claim as well.
I. Standards for Summary Judgment.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. The court must consider the record in the light most favorable to the nonmoving party.
See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
See Anderson, 477 U.S. at 256.
Id.
See id.
See Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984), cert. denied 469 U.S. 1214 (1985).
Summary judgments "should seldom be used in employment discrimination cases." Because discrimination claims often turn on the employer's intent, courts ordinarily consider summary judgment inappropriate to settle an issue like intent. Even so, summary judgment is not "per se improper," and may be useful in weeding out claims and cases obviously lacking in merit.
O'Shea v. Yellow Technology Services, Inc., 185 F.3d 1093, 1098 (10th Cir. 1999) (quoting Smith v. St. Louis University, 109 F.3d 1261, 1264 (8th Cir. 1997)).
Cone v. Longmont United Hosp. Ass'n., 14 F.3d 526, 530 (10th Cir. 1994); see Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir. 1994) (stating that "the summary judgment standard is applied `with added rigor in employment discrimination cases, where intent and credibility are crucial issues.'") (citation omitted).
Washington v. Lake County, Ill., 969 F.2d 250, 254 (7th Cir. 1992), overruled on other grounds, McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995).
Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700, 709 (10th Cir. 1988), overruled on other grounds, McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995).
II. Facts.
The following facts are either uncontroverted or, if controverted, construed in the light most favorable to the nonmovant Plaintiffs. Immaterial facts and factual averments not properly supported by the record are omitted. Interpretations of the testimony or averments of witnesses are disregarded and not considered as raising genuine issues of fact, when such interpretations expressly contradict the deposition testimony of the witness and/or the averments of the affiant. However, when the witness' or affiant's statements are not express or clear and are therefore subject to interpretation, such testimony or statements are construed in the light most favorable to the nonmovant Plaintiffs.
Renner-Wallace worked around keotone, a highly flammable chemical. On April 13, 2000, Renner-Wallace's crew chief, Brennan Buhrman, warned her that she could not wear nylon sweat pants to work because of safety concerns. Cessna's policy did not preclude wearing all nylon sweat pants; those with a liner that could serve as a protective layer were permissible attire when working around keotone. Buhrman did not ask Renner-Wallace whether her pants had such a liner. When Renner-Wallace wore nylon sweat pants on April 18, 2000, Buhrman again warned her to not wear that type of clothing, adding that he liked her better with her pants off. Buhrman testified that he told Renner-Wallace to take off the pants, and just wear her shorts underneath. Buhrman testified that Renner-Wallace had on the type of uniform shorts that Cessna required if the employee was going to wear shorts to work. He denied telling her that he liked her better without pants.
Renner-Wallace, along with McCabe, acting as her union steward, reported Buhrman's comment to Chris Heimerman, the department foreman. Plaintiffs did not ask that Buhrman be fired or removed as crew chief; they asked that he be made to stop the harassing conduct.
Heimerman met with Renner-Wallace, McCabe and Buhrman to discuss the allegations. Heimerman had not investigated the allegations before the meeting, and did not participate in Cessna's investigation thereafter. Heimerman did not make any findings or conclusions about what was or was not in fact said. Nevertheless, Heimerman verbally warned Buhrman not to make inappropriate comments in the workplace; and he warned Renner-Wallace not to wear nylon sweat pants because they were a safety hazard. At McCabe's request that the meeting be documented, Heimerman prepared written statements based on his interviews of Renner-Wallace and Buhrman. Buhrman refused to sign his written statement.
After this meeting, Cessna conducted an investigation into the allegations. Cessna's EEO Specialist, Dana Koehler, interviewed Renner-Wallace and Buhrman. Renner-Wallace identified a number of witnesses who could corroborate her allegations. Koehler interviewed these witnesses along with other employees who worked with or near Renner-Wallace and Buhrman, to wit: Heimerman, McCabe, Neil Booher, Kevin Selvage, Ella Brownlee, Joleen Bloom, and Chad Killinger. None of these witnesses could corroborate Renner-Wallace's version of the conversation she had with Buhrman.
One such witness, Neil Booher, had heard Buhrman warn Renner-Wallace that the keotone would melt her nylon pants and burn her skin. Booher did not hear Buhrman make the alleged inappropriate comment. It is unclear whether Booher overheard the conversation in which the alleged inappropriate comment was made, since Buhrman had verbally warned Renner-Wallace about wearing nylon pants, on both April 13 and April 18. Another witness, Kevin Selvage, heard Buhrman adamantly tell Renner-Wallace that she could not wear sweat pants. Selvage further witnessed Renner-Wallace tell Buhrman to leave her alone, as she walked off. When Selvage asked Renner-Wallace what her conversation with Buhrman was about, she told Selvage that Buhrman had warned her to take her pants off; and that she guessed that Buhrman liked her better in shorts. But Selvage did not personally hear Buhrman make these alleged statements. After these interviews, Koehler concluded that Cessna could neither prove whether the alleged comment was made, nor whether Renner-Wallace had been sexually harassed.
Renner-Wallace claims that she was subjected to sexual harassment from the time she began working at Cessna in 1998, including Buhrman throwing rivets at her, and inappropriately touching her leg on several occasions. Buhrman admits throwing rivets at Renner-Wallace and other employees. He characterized this as horseplay, the kind of conduct everyone in his department, both males and females, occasionally engaged in. Buhrman admits touching Renner-Wallace and other employees on their ankles, as they stood on a riser above him, in order to get their attention in the noisy work environment. McCabe acknowledged that Buhrman touched employees in this manner and that McCabe was not offended by such.
Cessna has a written sexual harassment policy, which it disseminates to new employees during orientation. Both Renner-Wallace and McCabe admit having received a copy of the policy and having been aware of the policy. Both Plaintiffs admit that they had filed grievances and complaints regarding issues other than sexual harassment. Both Plaintiffs admit that they had known other employees who filed sexual harassment complaints that were then addressed by Cessna.
Yet, until Renner-Wallace, along with McCabe, complained to Heimerman about Buhrman's alleged comment, Renner-Wallace had never complained to anyone in Cessna management about earlier instances of her being sexually harassed. Nor has anyone in Cessna's management ever witnessed any of these earlier incidents Renner-Wallace now complains about.
On or about April 28, 2000, after Cessna's investigation was completed, an employee reported to Cessna that Plaintiffs had fabricated their allegations of sexual harassment against Buhrman in an effort to get him fired or removed from his position as crew chief. Cessna conducted another investigation; employees were interviewed by Lindsey Rupiper, Cessna's manager of employee relations. Rupiper interviewed three employees who accused Plaintiffs of fabricating their allegations that Buhrman had sexually harassed Renner-Wallace. Ann Erickson, a shipping records clerk reported:
I was in the restroom under the department 152/156 offices and witnessed a blond and brunette from department 130 sitting on the floor out in the open area plotting to get rid of someone. The two women were saying they needed to figure out how to do it. I did not hear any specifics. After learning they had filed a sexual harassment complaint against Mr. Buhrman, I believe this is the person they were plotting to get rid of.
The quotations are from the witnesses' affidavits, which are substantially what they reported to Rupiper during her interviews of them. Paragraph numbers have been omitted.
Wanda L. Cole, a fuel cells assembler/seater reported:
Approximately during the week of April 17, 2000, I was in a bathroom stall and Ms. Michelle McCabe and Ms. Kimberly Renner-Wallace were sitting on the floor outside of the bathroom stalls. They were unaware of my presence during this time. Ms. Renner-Wallace and Ms. McCabe were reading books on sexual harassment and discussing what constitutes sexual harassment. Ms. Renner-Wallace and Ms. McCabe constantly discuss in our work area how they can get `rid of' Mr. Brennan Buhrman. . . . I never witnessed Mr. Buhrman say anything inappropriate or touch either Ms. Renner-Wallace or Ms. McCabe. Therefore, when the complaint was filed I know they were just trying to set Mr. Buhrman up.
Susan Ring, who was an inspector at the relevant time, reported:
I overheard Ms. Michelle McCabe and Ms. Kimberly Renner-Wallace discuss how much they disliked their crew chief, Mr. Brennan Buhrman, and how they wanted to get rid of him. These conversations were held in the work area. They wanted to `just come up with one way to get rid of him' because this `would make their lives easier.' Ms. McCabe challenged individuals who had authority over her job, such as Mr. Buhrman. I never witnessed any inappropriate comments or touching by Mr. Buhrman to Ms. Renner-Wallace or Ms. McCabe.
Rupiper did not interview Renner-Wallace and McCabe. McCabe now admits that she and Renner-Wallace were in the restroom looking at a book on sexual harassment and discussing it; but she denies it was for the purpose of fabricating a complaint. After Rupiper's interviews, Cessna management decided to discuss these allegations with Renner-Wallace and McCabe, and to terminate them unless they had additional information that Cessna should consider. On May 4, Rupiper, Heimerman, and other management and union personnel met separately with Renner-Wallace and McCabe, neither of whom provided any additional information. Therefore, on that same day, May 4, Cessna terminated Renner-Wallace and McCabe for breach of trust in falsifying allegations. Based on the statements of the three witnesses, Cessna concluded that Renner-Wallace and McCabe had conspired to get rid of Buhrman by bringing false claims of sexual harassment against him.
III. Analysis.
A. Title VII Sexual Harassment — Hostile Environment Claim.
To survive summary judgment under Title VII for abusive conduct allegedly undertaken by a supervisor or a co-worker, plaintiff must establish an inference of a sexually hostile work environment and a basis for employer liability. Where a court disposes of a claim based on the absence of employer liability, it need not resolve, apart from the question of employer liability, the issue of the presence of a hostile work environment.
Ford v. West, 222 F.3d 767, 775 (10th Cir. 2000) (citation omitted).
Id. (citing Adler v. Wal-mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998)).
In this case, Renner-Wallace alleges that in the two years she worked at Cessna, on several occasions, Buhrman touched her inappropriately on the leg, in addition to making the inappropriate comment in April 2000 about her taking her pants off. A hostile work environment exists when a plaintiff is subject to sexual harassment "sufficiently severe or pervasive `to alter the conditions of [the victim's] employment and create an abusive working environment.'" Sexual harassment is behavior "that would not occur but for the sex of the employee . . . [i]f the nature of an employee's environment, however unpleasant, is not due to her gender, she has not been the victim of sex discrimination." McCabe admits that Buhrman touched both male and female employees in order to gain their attention in a noisy workplace. Plaintiff fails to show that Buhrman's conduct was because of her sex.
Meritor Saving Bank v. Vinson, 477 U.S. 57, 67 (1986) (citation omitted).
Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1537 (10th Cir. 1995) (citations omitted).
Even if Buhrman's touching of Renner-Wallace was due to her sex, the nature and infrequency of the conduct she complains of hardly satisfies the requirement of "severe or pervasive." In Harris v. Forklift Sys., Inc., the Supreme Court stated:
510 U.S. 17 (1993).
Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation.
Id. at 21-22.
This determination must be made "in light of `the record as a whole' and `the totality of [the] circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred.'"
Meritor, 477 U.S. at 69 (citation omitted).
In determining whether the conduct was severe or pervasive enough to alter the terms, conditions or privilege of a plaintiff's employment, the Court considers a number of factors, including: the frequency of the 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. This consideration of the totality of the circumstances is warranted, "because the very term `environment' indicates that allegedly discriminatory incidents should not be examined in isolation," but should be examined in the context in which they occurred. These factors must be evaluated from both a subjective and objective perspective. Actionable conduct is that which a reasonable person in the victim's position would find hostile or abusive, and that which the victim subjectively perceives as hostile or abusive. Plaintiff has failed to show a sexually hostile work environment.
Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993)).
McCowan v. All Star Maintenance, Inc. 273 F.3d 917, 925 (10th Cir. 2001) (citations omitted).
Nieto v. Kapoor, 268 F.3d 1208, 1220 (10th Cir. 2001) (citations omitted).
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-23, 114 S.Ct. 367 (1993); Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1243 (10th Cir. 2001), cert. denied, 535 U.S. 970 (2002).
Even if Renner-Wallace could make a prima facie showing of a hostile work environment, she fails to show any basis for Cessna's liability. Employers may be liable for sexual harassment by a co-worker for "failing to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known." The Court must inquire into "the employer's actual or constructive knowledge of the harassment, and second, into the adequacy of the employer's remedial and preventative responses to any actually or constructively known harassment."
Dunegan v. City of Council Grove, Kansas Water Dept., 77 F. Supp.2d 1192, 1200 (D.Kan. 1999) (citation omitted).
Id. (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673 (10th Cir. 1998)).
First, the Court will consider Cessna's actual or constructive knowledge of the harassment. Although Renner-Wallace now alleges that there were previous instances of harassment, admittedly, she never complained before, although she was well aware of Cessna's policy and procedures for making such complaints. With regard to the alleged comment that Plaintiffs made Cessna aware of, Cessna immediately investigated Plaintiffs' allegations, interviewing a number of employees, including those whom Renner-Wallace said could corroborate her complaint. Even before this investigation, Cessna management met with Buhrman and Renner-Wallace, and despite Buhrman's denials, he was warned to not make any inappropriate comments in the work place. After interviewing a number of witnesses, Cessna determined that none of them had heard the alleged inappropriate comment by Buhrman; at most they heard Renner-Wallace complain about the comment. With this insufficient evidence, Cessna concluded its investigation, unable to determine whether or not the comment had been made and whether or not Renner-Wallace had been sexually harassed.
Cessna's conduct demonstrates that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior. For these reasons, Renner-Wallace has failed to show that Cessna acted negligently, and has thus failed to show that Cessna is liable.
See Ford v. West, 222 F.3d 767, 776 n. 8 (10th Cir. 2000) (noting that employer liability standards are equivalent for race and sex-based discrimination) (citations omitted).
Different standards are applied when the abusive conduct is allegedly undertaken by a supervisor, as opposed to a co-worker. Plaintiffs, in their response, suggest that Buhrman may have been exercising apparent authority in that he "represented himself as speaking on behalf of [Cessna]" and that Renner-Wallace "reli[ed] upon that authority." To the extent that Plaintiffs are arguing that Buhrman was acting with apparent authority, the Court finds that such argument is without merit. In Harrison v. Eddy Potash, Inc., the plaintiff asserted that the defendant employer should be held vicariously liable because her supervisor was acting with apparent authority when he sexually harassed her. Plaintiff asserted that the employer caused her to believe that the supervisor had authority to sexually harass her. The court rejected the theory in light of the Supreme Court's opinions in Faragher and Burlington. The court stated that in Burlington, the Supreme Court noted that, "[i]n the usual case, a supervisor's harassment involves misuse of actual power, not the false impression of its existence," and only in an "unusual case" where "it is alleged there is a false impression that the actor was a supervisor, when he in fact was not, [and] the victim's mistaken conclusion [was] a reasonable one," can a theory of employer liability based upon apparent authority be pursued. In this case, Plaintiff testified that she didn't believe Buhrman was considered management or a supervisor. Thus, it appears as though there was no false impression that Buhrman was a supervisor.
Dunegan v. City of Council Grove, Kansas Water Dep't, 77 F. Supp.2d 1192, 1200 (D.Kan. 1999).
Memorandum in Opposition to Motion of Defendant for Summary Judgment (Doc. 31) at p. 19.
158 F.3d 1371, 1376 (10th Cir. 1998).
Id.
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2364 (1998).
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998).
Harrison, 158 F.3d at 1376 (citing Burlington Indus., Inc., 118 S.Ct. at 2268).
Renner-Wallace Depo. p. 19, ll. 10-21 (testifying that he was a "crew chief" which is the person you go to for questions about what you're suppose to do as far as your job is concerned and that she didn't believe he was considered management or a supervisor).
B. Retaliation
A plaintiff need not prevail on the underlying claim of discrimination in order to pursue a retaliation claim. Title VII retaliation claims proceed under the familiar McDonnell Douglas burden shifting analysis. Under the McDonnell Douglas framework, Plaintiffs must first present a prima facie case of retaliation. Then, the burden of production shifts to Cessna to produce a legitimate, non-discriminatory justification for taking the action in question. Finally, the burden is redirected to Plaintiffs to show that Cessna's reason for its action was merely a pretext for discrimination.
Ingels v. Thiokol Corp., 42 F.3d 616, 625 n. 8 (10th Cir. 1994) (citations omitted); see also Love v. RE/MAX of America, Inc., 738 F.2d 383, 385 (10th Cir. 1984) (applying this principle in a Title VII anti-retaliation claim).
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See McGarry v. Bd of County Comm'rs, 175 F.3d 1193, 1201 (10th Cir. 1999); Lundien v. United Airlines, 242 F.3d 389 (10th Cir. 2000).
McDonnell Douglas, 411 U.S. at 802.
Id.
Id. at 804.
1. Prima Facie Case
To establish a prima facie case of retaliation, Plaintiffs must show: (1) they engaged in protected opposition to discrimination or participated in a proceeding arising out of discrimination; (2) they were 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).
There is no dispute that Plaintiffs were terminated, clearly an adverse employment action. Causal connection, the third element, requires a showing of knowing or intentional retaliation by someone who knew about the employee engaging in protected activity. Causal connection can be shown by "evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action." The temporal proximity between the protected activity and the retaliatory conduct must be very close or plaintiff must offer additional evidence to establish causation. Under these facts, with Plaintiffs' termination on May 4 occurring only two weeks after they complained about Buhrman, a causal connection can be presumed, without any additional evidence of retaliatory motive.
Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998) (quoting Burlington Indus, Inc. v. Ellerth, 524 U.S. 742, 761 (1998) as defining adverse employment action as "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits").
See Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1263 (10th Cir. 1998) (holding that a retaliatory discharge claim must be predicated on intentional or knowing retaliation).
Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982), cert. denied 459 U.S. 1071 (1982). See also Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (assuming that temporal proximity of two months and one week is sufficient to support a prima facie case of retaliation).
O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001).
See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999).
Plaintiffs complained to Cessna management that Buhrman had engaged in sexual harassment. Generally, such conduct is protected activity under Title VII's opposition clause or participation clause. The opposition clause protects an employee who "has opposed any practice made an unlawful employment practice"; the participation clause protects an employee who "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under [Title VII]."
But, Cessna argues, complainants who falsify their allegations of discrimination, are not engaging in protected activity under Title VII. This is because Title VII only protects opposition activity when it is based on a good faith belief that a Title VII violation has occurred. If the activity qualifies under the "participation clause," it may be entitled to greater protection.
Love v. Re/Max of America, Inc., 738 F.2d 383, 385 (10th Cir. 1984) (citations omitted).
Wilson v. UT Health Ctr., 973 F.2d 1263, 1268 (5th Cir. 1992) (holding that plaintiff's misrepresentations were made outside the context of any EEOC proceedings and therefore were not protected), cert. denied 507 U.S. 1004 (1993); Vasconcelos v. Meese, 907 F.2d 111, 113 (9th Cir. 1990) (expressing no opinion as to whether the participation clause grants a privilege to lie, but stating that "[a]ccusations made in the context of charges before the Commission are protected by statute; charges made outside of that context are made at the accuser's peril"); Metzger v. City of Leawood, 144 F. Supp.2d 1225, 1258 (D.Kan. 2001) (stating that participation clause "protects proceedings and activities which occur in conjunction with or after the filing of a formal charge with the EEOC; it does not include participating in an employer's internal, in-house investigation, conducted apart from a formal charge with the EEOC.") (citations omitted).
Of course, whether or not Plaintiffs falsified their complaint against Buhrman is a genuinely disputed issue of fact. Plaintiffs deny that they fabricated their complaint that Buhrman sexually harassed Renner-Wallace. At least four witnesses have stated otherwise. This is the type of issue that only a jury can decide, weighing and evaluating the testimony of Plaintiffs and other witnesses. Thus, the Court cannot at this juncture determine as a matter of law that Plaintiffs were not engaging in protected activity.
2. Justification and Pretext
Assuming for purposes of this motion only, that Plaintiffs have established a prima facie case of retaliation, Cessna clearly articulates a non-discriminatory reason for terminating them, that they falsified their complaint that Renner-Wallace had been sexually harassed. So, the burden shifts back to Plaintiffs to demonstrate that this reason is pretextual. Plaintiffs can meet this burden by showing "that there is a genuine dispute of material fact as to whether the employer's proffered reason for the challenged action is pretextual — i.e. unworthy of belief."
Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995).
There are three ways to establish pretext: 1) presenting evidence that defendant's stated reason for the adverse action was false; 2) presenting evidence that defendant acted contrary to a company policy; or 3) presenting evidence that defendant acted contrary to an unwritten policy or practice. Plaintiffs do not contend that Cessna acted contrary to its own written or unwritten policies or practices, but argue that Cessna's stated reason was false.
Kendrick v. Penske Trans. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000).
In rejecting Cessna's argument that Plaintiffs were not engaging in protected activity, the Court noted that whether or not Plaintiffs had lied, falsified their complaint or otherwise not acted in good faith, was a disputed issue of fact that could not be determined in the context of a summary judgment. But, that is not the factual issue underlying whether Cessna's stated reason for terminating them was false. Rather, in determining whether the employer's stated reason was false and thus a pretext for discriminatory retaliation, the Court examines the facts "as they appear to the person making the decision" that adversely affected plaintiff.
Id. at 1231.
In this case, Rupiper interviewed three witnesses who independently corroborated one another's reports that Plaintiffs had been heard and seen going over manuals on sexual harassment, discussing what it takes to show sexual harassment, and stating that they had to figure out a way to get rid of Buhrman. One of the witnesses had previously heard Plaintiffs discussing their desire to find a way to get rid of Buhrman, and had heard them express their dislike of him and how their lives would be easier once he was gone. Two of these three witnesses further stated that they worked with Buhrman, Renner-Wallace and McCabe and had never seen or heard Buhrman say or do anything inappropriate or engage in sexual harassment.
Cessna's management decided to terminate Plaintiffs based on its conclusion that they had falsified allegations and breached their employer's trust. This was a reasonable determination, given the facts as known to Cessna. Three of its employees were percipient witnesses to one or more discussions between Plaintiffs about disliking Buhrman, how their lives would be better without him as crew chief, and their need to find a way to get rid of him. Two of these witnesses saw and heard the Plaintiffs discussing these things, while they examined a book on sexual harassment and discussed what constitutes sexual harassment. Plaintiffs suggest that it was unreasonable for Cessna to conclude that they were fabricating allegations; the fact that they were reviewing a book on sexual harassment does not mean that Buhrman did not engage in harassment.
But, Cessna's stated reason for termination must also be evaluated in the light of other facts known to Cessna. First, in this same time frame, Plaintiffs complained to Heimerman that Buhrman had made an inappropriate comment to Renner-Wallace about taking off her pants; and Renner-Wallace also complained about earlier incidents, having never complained about any incidents before. Second, despite interviewing employees who worked with them, including those who Renner-Wallace said could corroborate her allegation, not one employee witnessed Buhrman making the alleged comment or engaging in any conduct that they perceived as sexual harassment. In short, Plaintiffs' complaint of sexual harassment was not corroborated by anyone, even those who Renner-Wallace claimed could corroborate; and shortly thereafter, three employees gave consistent, and corroborating eyewitness accounts of Plaintiffs' discussions about sexual harassment and their plotting to find a way to get rid of Buhrman.
While Plaintiffs controvert the accounts of the three witnesses, and complain about the scope of Cessna's investigation, Plaintiffs simply have not shown evidence that Cessna's decision to fire them was not reasonable based on the information Cessna had gathered in its two investigations. The Court cannot ignore the facts as presented and known to Cessna. The Court may not second guess the business judgment of the employer. And, "`mere conjecture that the employer's explanation is pretext for intentional discrimination is an insufficient basis for denial of summary judgment.'"
Simms v. Okla. ex rel. Dept. of Mental Health Substance Abuse Servs., 165 F.3d 1321, 1330 (10th Cir. 1999), cert. denied 528 U.S. 815 (1999).
Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quoting Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988)).
It is true that pretext can be established by temporal proximity and other evidence and inferences used to establish the prima facie case. Although close proximity alone may give rise to a presumption of causal connection, it does not alone give rise to a presumption of pretext. Rather, close proximity between a protected activity and an adverse employment action is a factor in determining whether the defendant's proffered reason is a pretext for retaliation, but it is insufficient, by itself, to raise an issue of fact concerning pretext. Plaintiffs offer no real evidence of pretext, other than conjecture and speculation, and arguments about the truth of Renner-Wallace's allegations of sexual harassment; and the falsity of the witnesses allegations of fabrication and false representations. Plaintiffs simply make no showing that Cessna's stated reasons were false, from Cessna's perspective, or that Cessna terminated them in whole or part because of its retaliatory intent.
Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (2000) ("Although the presumption of discrimination `drops out of the picture' once the defendant meets its burden of production, the trier of fact may still consider the evidence establishing the plaintiff's prima facie case `and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual'") (internal citation omitted and ellipses in original) (quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n. 10 (1981)).
Pastran v. K-Mart Corp., 210 F.3d 1201, 1206 (10th Cir. 2000) (citing Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 551 (10th Cir. 1999)).
Id.
C. Preemption
Cessna cites Polson v. Davis, and argues that Plaintiffs' state law/public policy retaliatory discharge claims are preempted by Title VII and the KAAD. Plaintiffs argue that if the Court finds that Plaintiffs were not engaged in "protected activity," then Title VII does not apply and they are entitled to pursue their complaint based on public policy considerations in the State of Kansas. The Court finds that Plaintiffs arguments are without merit. The Tenth Circuit in Polson held that the Kansas Supreme Court would adopt the view that the KAAD provides an adequate and exclusive state remedy for violations of the public policy enunciated therein. The fact that Plaintiffs are unable to satisfy their burdens of proof under Title VII and the KAAD does not mean that the remedy is inadequate.
895 F.2d 705 (10th Cir. 1990).
Cessna's argument could also be considered as one for preclusion. See Flenker v. Willamette Indus., Inc., 266 Kan. 198, 202, 967 P.2d 295, 299 (1998) (noting the difference between preemption and the alternative remedies doctrine, referenced sometimes as preclusion).
See, e.g., Thomas v. National Ass'n of Letter Carriers, 225 F.3d 1149, 1158 n. 10 (10th Cir. 2000) (noting that because Title VII provides an adequate remedy for religious discrimination in employment, the plaintiff could not assert a claim for wrongful discharge in violation of Kansas public policy on religious discrimination grounds); Lorimar v. Boeing Wichita Employees' Credit Union, 1994 W L 240774, *7 (D.Kan. 1994) (finding that where pretrial order characterized the retaliation claim as "contrary to the public policy of Kansas," the state law claim of retaliation was preempted by the KAAD); Panis v. Mission Hills Bank, N.A., 1993 WL 390300, *4 (D.Kan. 1993) (holding that claims for retaliatory discharge based upon allegations of sexually discriminatory conduct are preempted by Title VII and KAAD); Scherzer v. Midwest Cellular Telephone Co., 797 F. Supp. 914 (D.Kan. 1992); cf. Garcia-Harding v. Bank Midwest, N.A., 964 F. Supp. 1492, 1510 (D.Kan. 1997) (holding that plaintiff's whistleblowing claim did not fall within the ambit of the KAAD because it did not deal with employment discrimination, but rather with discrimination against bank customers).
Polson, 895 F.2d at 709; see also Flenker v. Willamette Indus., Inc., 266 Kan. 198, 209, 967 P.2d 295, 303 (1998) (stating that Polson was correct in surmising the Kansas rule to be that an adequate alternative remedy precludes a common-law retaliatory discharge action).
IT IS THEREFORE ORDERED that defendant Cessna's motion for summary judgment (Doc. 26) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs' Amended Motion to File Brief Response to Cessna's Reply (Doc. 34) is DENIED.