Carney v. City of Shawnee

38 F.Supp.2d 905

Thomas F. CARNEY, Delbert D. Nicholas, and John D. Wells, Plaintiffs, v. The CITY OF SHAWNEE, Defendant.

No. 98-2019-KHV.

United States District Court, D. Kansas.

February 19, 1999.

Harold S. Youngentob, Goodell, Stratton, Edmonds & Palmer, Topeka, KS, for plaintiffs.

Lori R. Schultz, Julia Riggle McKee, Morrison & Hecker L.L.P., Kansas City, MO, M. Ellis Rainey, II, Shawnee, KS, for defendant.

MEMORANDUM AND ORDER

VRATIL, District Judge.

This matter is before the Court on Defendant's Motion for Summary Judgment (Doc. # 64) filed September 30, 1998. Having carefully considered the parties' arguments and the applicable law, the Court finds that defendant's motion for summary judgment should be sustained as to plaintiffs' claims of intentional infliction of emotional distress and otherwise denied.

A. 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 as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on his pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"[W]e must view the record in the light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson at 251-52, 106 S.Ct. 2505.

B. Analysis

At all times material to this suit, plaintiffs were police officers for the City of Shawnee, Kansas. Plaintiffs — Thomas F. Carney, Delbert D. Nicholas and John D. Wells — allege that their supervisor, Lieutenant Walter McDaniel, subjected them to sexual harassment by making unwelcome homosexual advances. Plaintiffs allege both hostile work environment and quid pro quo harassment. They seek relief pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991; the Civil Rights Act of 1866, 42 U.S.C. § 1983; and the Kansas Act Against Discrimination, K.S.A. § 44-1001 et seq. Plaintiffs also allege a supplemental state law claim of intentional infliction of emotional distress. Nicholas also asserts a Title VII claim for retaliation and constructive discharge. By order dated October 9, 1998, the Court ruled that the City of Shawnee was entitled to summary judgment on the Title VII retaliation and failure to promote claim of Carney and Wells, as well as the First Amendment claims of all three plaintiffs under § 1983. See Carney v. City of Shawnee, 24 F.Supp.2d 1185, 1190, 1191 (D.Kan.1998).

1. Plaintiffs' Title VII Sexual Harassment claims

The City of Shawnee first contends that it is entitled to summary judgment because the alleged harassment did not affect a term, condition or privilege of plaintiffs' employment. It argues that "no term or condition of employment for any of the three plaintiffs was ever made contingent upon compliance with a perceived sexual request." Defendant's Memorandum in Support of Summary Judgment (Doc. # 65) at 31. Plaintiffs respond that implied threats of job insecurity constitute adverse job consequences which can be sufficient to establish quid pro quo harassment. The Court agrees. See Aldridge v. State of Kansas, 1997 WL 614323, No. 96-2382-JWL (D.Kan. Sept. 10, 1997) (citing Robinson v. City of Pittsburgh, 120 F.3d 1286, 1297 (3rd Cir.1997) ("[t]he threat [itself] is sufficient to constitute discrimination with respect to compensation, terms, conditions, or privileges of employment")).

Plaintiffs have presented evidence that when they did not comply with McDaniel's sexual requests, he threatened them with transfer from the detective unit to the patrol unit on account of their failure to satisfy his sexual requests. Plaintiffs have presented evidence that a transfer to the patrol unit constituted reassignment with significantly different responsibilities and benefits, and that this type of transfer had been used as a form of discipline in the past. Although the City denies that McDaniel had the ability to carry out his threats, the Court finds that plaintiffs have submitted sufficient evidence to create a question of fact on this issue. In additional, Carney and Wells have presented evidence that the department denied them training and equipment, and that such denial was related to unsatisfied requests for sexual favors by McDaniel. The Court concludes that plaintiffs have presented sufficient evidence from which a reasonable jury could find that the alleged harassment did affect a term, condition, or privilege of plaintiffs' employment, thus precluding summary judgment on this issue.¹

The City next argues that summary judgment is warranted because McDaniel's alleged conduct was not discriminatory or based on sex. The City cites Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), for the proposition that a plaintiff "must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimina[tion] ... because of sex," id. at 1002, and contends that the alleged conduct of McDaniel was "merely tinged with offensive sexual connotations." Defendant's Memorandum in Support of Summary Judgment (Doc. # 65) at 33. The Court disagrees.

The Supreme Court in Oncale stated:

"The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Harris, supra, at 25, 114 S.Ct., at 372 (GINSBURG, J., concurring).

Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted "discrimina[tion] ... because of ... sex."

118 S.Ct. at 1002. The Court finds that Oncale, when read in its full context, militates against entry of summary judgment on this issue in this case. Plaintiffs have presented evidence that McDaniel limited his insults, unwanted sexual touching, and threats to males. Indeed, by McDaniel's own admission, his conduct was directed only at males.

The City next contends that plaintiffs have not produced sufficient evidence of a hostile work environment to withstand summary judgment. Hostile environment harassment occurs where the conduct of a supervisor or co-worker unreasonably interferes with an individual's work performance or creates an intimidating, hostile, or offensive work environment. See Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1269 (10th Cir.1998) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). To establish this claim, plaintiffs must show both that the conduct to which they were subject was "severe or pervasive enough to create ... an environment that a reasonable person would find hostile or abusive," and that they "subjectively...