Deavenport v. Mci Telecommunications Corp.

973 F.Supp. 1221

Kathleen G. DEAVENPORT, Plaintiff, v. MCI TELECOMMUNICATIONS CORPORATION, Defendant.

Civil Action No. 96-B-002.

United States District Court, D. Colorado.

August 13, 1997.

Richard P. Ranson, Colorado Springs, CO, Frank N. Dubofsky, Frank N. Dubofsky, P.C., Boulder, CO, for Plaintiff.

Edwin P. Aro, Holme, Roberts & Owen, L.L.C., Denver, CO, for Defendant.

MEMORANDUM OPINION & ORDER

BABCOCK, District Judge.

Defendant, MCI Telecommunications Corporation (MCI), moves for partial summary judgment on plaintiff's claim that MCI retaliated against her for complaining of sexual harassment and on her claim for back pay damages. MCI argues that plaintiff, Kathleen G. Deavenport (Deavenport), cannot maintain a retaliation claim because none of the allegedly retaliatory acts of which she complains constitute an "ultimate employment decision." MCI further argues that Deavenport cannot recover back pay for any of her claims because she has been on disability leave and unable to work for the past two and one-half years. The motion is adequately briefed, and oral argument would not aid me materially in deciding it. For the following reasons, I will deny defendant's motion.

I.

The following facts are undisputed or, if disputed, are viewed in a light most favorable to Deavenport. Deavenport began working for MCI as a Senior Engineer in 1992. She was promoted to Senior Engineer II in 1993, and she received high performance ratings from MCI in 1993 and 1994. Her last official evaluation in May 1994 was described by her manager as the highest performance evaluation he had ever made. Pltf. Exh. 2. Deavenport was treated as a manager and included in management-level discussions and meetings even though she was not a manager.

Early in her career at MCI, Deavenport was assigned to work for a manager named Rick Pierson. Soon thereafter, she was approached by Pierson and asked to go out with him and to discuss intimate details of his sex life. She objected to his conduct, and MCI reassigned Deavenport to work for another manager, Dick Stephens. Stephens criticized Deavenport for making complaints about Pierson and told her to be more supportive of him. Pltf. Exh. 9, p. 63. Stephens also made occasionally crude remarks and told off-color jokes. In addition, Stephens had several postcards of nude and nearly nude women he kept in his desk. He showed these postcards to Deavenport in the context of questioning how women with large breasts could engage in athletic activities and whether all the men watching would have erections. Pltf. Exh. 1, ¶ 12.

Deavenport complained to Stephens about his conduct, and he told her she was a business and sexual prude. Id. at ¶ 13. Beginning in the spring and summer of 1993 and thereafter, Stephens referred to Deavenport in front of her coworkers as a "cold hearted bitch," "bitch," "the wicked witch of the west," and a "black widow spider that would eat her mate." Id. at ¶ 16.

After a departmental reorganization, Steve Hanley became Deavenport's supervisor. After July 1, 1994, Hanley repeatedly spoke to Deavenport about his sex life and arousal by female co-workers. Other women observed Hanley howling at women and commenting on their physical appearance after they walked past him. Pltf. Exh. 10 pp. 19,85-86. Deavenport complained about Hanley's conduct to Michael McShane, the director of Deavenport's department and Hanley's superior. Hanley's conduct continued after Deavenport's complaints. Id. at ¶ 19. After speaking with McShane on August 12, 1994, Hanley began to keep a log of events he titled "Notes related to Sexual Harassment Claims and Genelle Deavenport." Pltf. Exh. 14.

On August 22, 1994, Deavenport participated in a management planning meeting with senior managers in her department, including Stephens, McShane, and Hanley. She was the only female in attendance. In response to her request for additional staffing and equipment to complete her project, at least two male managers told her in the open meeting that she should go stand on the corner and use her feminine wiles. Pltf. Exh. 14, 8/22 entry.

At an "open door" meeting on September 6, 1994, attended by Deavenport, Don Clow, Randy Buck, McShane, and Hanley, Deavenport expressed her dissatisfaction with Hanley and told him that she would rather transfer her team back to Stephens than continue to work for him. Pltf. Exh. 14, 9/6 entry. Stephens later told Hanley that he would never take Deavenport back. Id., 9/7 entry.

On September 28, McShane, Hanley, Louis Mosely from Human Resources, and Stephens met to discuss Deavenport's complaints of sexual harassment. Stephens prepared a "Memorandum for the Record" of the meeting, and stated that he wanted all complaints about him by Deavenport stopped. Pltf. Exh. 19. It does not appear, however, that any investigation by Human Resources was ever conducted into Deavenport's complaints of sexual harassment. Pltf. Exh. 17, p. 35; Pltf. Exh. 20, pp. 3944.

On October 5, 1994, Hanley sent Deavenport a memorandum stating, in part, that her complaints of harassment were disruptive and inappropriate and that if they did not stop, she could be terminated. Pltf. Exh. 22. The memorandum did state, however, that if she had any complaints she felt were unresolved, to let the human resources department know so that they could investigate. Id. Later that day, Hanley ordered Deavenport to put all of her complaints in writing by October 6, 1994. She did so in an e-mail sent directly to McShane. She met with McShane that day to discuss her complaints. He told her that her complaints about Stephens and Hanley were "insubordination," and that if she could not work in her existing environment, she should resign. Pltf. Exh. 1, ¶ 33.

Within four days of her meeting with McShane, Hanley told Deavenport that some of her job duties and responsibilities would be reassigned to other people, and another job would be found for her. Pltf. Exh. 24, p. 37. Her job as chief engineer and architect of a security system was immediately taken from her. Ptf. Exh. 26. By the end of October, Deavenport had only administrative duties. Pltf. Exh. 1, ¶ 35. In December, Deavenport was reassigned to work with Stephens, who had transferred to Washington, D.C. The reassignment required extensive travel to Washington, D.C. In addition, Hanley told Deavenport that she was then overpaid for her job duties, and she should expect to be laid off. Pltf. Exh. 1, ¶ 36.

While working in D.C. with Stephens, he told Deavenport that her career at MCI was over because she had complained about him. In late January 1995, while both were staying at the same hotel, Stephens threw ice cubes at Deavenport from several floors above. Pltf. Exh. 1, ¶¶ 37-39. Within two weeks after the ice-throwing incident, Deavenport went on medical leave because of her deteriorating emotional state. She remains on medical leave to present.

II.

The very purpose of a summary judgment motion is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.1995). Fed.R.Civ.P. 56 provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The nonmoving party has the burden of showing that there are issues of material fact to be determined. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). If a reasonable juror could not return a verdict for the nonmoving party, summary judgment is proper and there is no need for a trial. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53.

III.

MCI seeks summary judgment on (1) Deavenport's claim for retaliation and (2) Deavenport's demand for back pay damages. I will address each argument in turn.

A. Retaliation Claim

Plaintiff asserts a claim for retaliatory discrimination under 42 U.S.C. § 2000e-3(a), which provides:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

The three step paradigm set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) applies to retaliation claims under 42 U.S.C. § 2000e-3(a). Love v. RE/MAX of America, Inc., 738 F.2d 383, 385 (10th Cir. 1984). The plaintiff must first establish a prima facie case of retaliation by showing: "(1) protected opposition to Title VII discrimination or participation in a Title VII proceeding; (2) adverse action by the employer subsequent to or contemporaneous with such employee activity; and (3) a causal connection between such activity and the employer's adverse action." Berry v. Stevinson Chevrolet, 74 F.3d 980, 985 (10th Cir.1996). Once the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to articulate a nondiscriminatory reason for the challenged action. If the defendant meets its burden, the burden shifts back to the plaintiff to show that defendant's proffered reason is pretextual.

MCI argues that Deavenport cannot maintain an action for retaliation under Title VII because she cannot establish the second element of her prima facie case: adverse action by MCI subsequent to or contemporaneous with her complaints of sexual harassment. Specifically, MCI argues that Deavenport has not alleged any retaliatory incident comprising an "ultimate employment decision." MCI contends that a Title VII retaliation claim must be based upon adverse action that is an "ultimate employment decision," such as termination or demotion, to be actionable. I disagree.

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