Fortner v. State of Kansas

934 F. Supp. 1252

Nancy E. FORTNER, Plaintiff, v. STATE OF KANSAS, Defendant.

No. 94-4208-SAC.

United States District Court, D. Kansas.

June 10, 1996.

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Alan V. Johnson, Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, KS, W. Thomas Stratton, Topeka, KS, for Nancy E. Fortner.

John J. Knoll, Office of the Attorney General, Topeka, KS, John R. Mettner, Jr., Kansas Air National Guard, Topeka, KS, Betty J. Mick, Lawrence, KS, for State of Kansas.

MEMORANDUM AND ORDER

CROW, District Judge.

This employment discrimination case comes before the court on the defendant's motion for summary judgment. (Dk. 59). Ms. Fortner worked as security officer at Forbes Field in Topeka, Kansas, from September of 1990 until the fall of 1994. She brings this action alleging: (1) disparate treatment on the basis of sex in ordering her to wear her hair in a bun rather than a pony tail; (2) retaliation for filing and pursuing her administrative charges in which she had alleged discriminatory enforcement of hair style regulations; (3) hostile work environment; and (4) constructive discharge. The defendant moves for summary judgment on all of the plaintiff's claims.

SUMMARY JUDGMENT STANDARDS

A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "There are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988).

The initial burden is with the movant to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If this burden is met, the nonmovant must "come forward with specific facts showing that there is a genuine issue for trial as to elements essential to" the nonmovant's claim or position. Martin v. Nannie and Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) (citations omitted). The nonmovant's burden is more than a simple showing of "some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; it requires "`presenting sufficient evidence in specific, factual form for a jury to return a verdict in that party's favor.'" Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir.1995) (quoting Bacchus Industries, Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). The court views the evidence of record and draws all reasonable inferences in the light most favorable to the nonmovant. Id. A party relying on only conclusory allegations cannot defeat a properly supported motion for summary judgment. White v. York Intern. Corp., 45 F.3d 357, 363 (10th Cir.1995).

More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). At the same time, a summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir. 1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987).

Summary judgments are "used sparingly in employment discrimination cases." Hardin v. Hussmann Corp., 45 F.3d 262, 264 (8th Cir.1995). This is because discrimination claims often turn on the employer's intent, McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 370-71 (7th Cir.1992), and courts ordinarily consider summary judgment inappropriate to settle an issue like intent, Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 530 (10th Cir.1994). Even so, summary judgment is not "per se improper," Washington v. Lake County, Ill., 969 F.2d 250, 253 (7th Cir.1992), and may be useful in weeding out claims and cases obviously lacking merit, 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., ___ U.S. ___, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995). Thus, if the plaintiff's evidence fails to create any reasonable doubts about the employer's expressed lawful motive for taking the adverse employment action, summary judgment is proper. Cone, 14 F.3d at 530.

The defendant's statement of facts consists of eighty-six paragraphs, and the plaintiff adds another thirty-six paragraphs. The plaintiff does not controvert many of the defendant's facts, and the defendant has not filed a reply brief controverting the plaintiff's facts. The court has selected the pertinent uncontroverted facts and states them in chronological order.

Hired in September of 1990, the plaintiff, Nancy Fortner, worked as a State Resource Protection Officer ("SRPO") at Forbes Field until she went on leave in September of 1994 followed by her resignation in March of 1995. Ms. Fortner served under Major Arthur E. Schaaf, Jr. ("Major Schaaf"), who was the Commander of the Security Police Squadron and Director of Personnel for the 190th Air Refueling Group. Ms. Fortner's first line supervisors included Master Sergeant Edward L. Holm ("Sergeant Holm"). The plaintiff was the only female SRPO at Forbes Field, but there was another woman who worked full-time with similar duties at Forbes. The position description for SRPO listed such hazards and risks as confrontation with persons denied entry, abusive language, criticism, confrontation with force, and the possible need to use deadly force.

In April of 1993, Major Schaaf called the plaintiff into his office and ordered her to put her hair up. He explained to her that by wearing her hair in a ponytail she was a security risk and was in violation of the regulatory prohibition of exaggerated hair styles.¹ When he called her into his office, Major Schaaf understood that the plaintiff recently started wearing her hair in a ponytail and that the plaintiff had not stopped wearing it in ponytail even though two sergeants had discussed it with her.²

On or about June 23, 1993, the plaintiff filed a complaint with the Kansas Human Rights Commission ("KHRC") alleging that she was the victim of discrimination on the basis of sex as she had been asked to wear her hair up while male SRPOs were not required to comply with the same Security Policy Operations Instruction ("SPOI") 125-1. The plaintiff testified that males were not told to cut their hair when it reached their collars or otherwise failed to comply with the SPOI 125-1. The plaintiff, however, also testified that none of the males wore a ponytail or had hair long enough to wear in a ponytail.

In June of 1993, the plaintiff and her husband, who also was a SRPO at Forbes Field, bought a house and moved, and this proved to be a difficult experience for the plaintiff. On June 10, 1993, the plaintiff called Master Sergeant John Wright and asked if her husband could have the day off to work around the house. Master Sergeant Wright advised the plaintiff that leave requests were to be made five days in advance, that she and her husband needed to discuss their priorities, that he would give her husband the day off, and that in the future Mr. Fortner should make his own requests for leave. After that telephone call, the plaintiff deliberately avoided Master Sergeant Wright, but she denied that workplace had become uncomfortable as a result.

In August of 1993, the plaintiff filed a complaint that a male co-worker, Harvey Harrison, had made comments that she should not lead the union because she was female. The plaintiff presented the complaint as a grievance to Major Schaaf who investigated her allegations. In a memorandum prepared after the event, Major Schaaf recounts that he spoke with Harrison who denied any sexist comments and ordered Harrison to cease any comments about the plaintiff's gender, that he spoke with the plaintiff who appeared quite upset and distressed by the situation, and that he wanted an "expert on EEO issues for state employees to become immediately involved in the resolution of this critically important issue." (Dk. 59, Ex. C). In August of 1993, the plaintiff signed a memorandum saying that she was satisfied with the corrective action taken by Major Schaaf and that she would report any future incidents of discrimination to him. The plaintiff testified that Harrison committed no additional discriminatory acts.³

In October of 1993, the plaintiff visited a clinical social worker/marriage and family therapist, Bernard Nobo, in October and November of 1993. Nobo assessed that the plaintiff was overextended with National Guard, full-time employment, six hours of school, a part-time job, marriage, and two children. Nobo advised her to slow down.

On December 16, 1993, the plaintiff was working security at the main...