Henry v. Gehl Corp.

867 F. Supp. 960

Pamella A. HENRY, Plaintiff, v. The GEHL CORPORATION, and Mike Duryea, Defendants.

No. 93-4168-SAC.

United States District Court, D. Kansas.

October 19, 1994.

COPYRIGHT MATERIAL OMITTED

K. Gary Sebelius, Catherine A. Walter, Wright, Henson, Somers, Sebelius, Clark & Baker, Topeka, KS, for plaintiff.

Carol B. Bonebrake, Cosgrove, Webb & Oman, Topeka, KS, Daphne E. Jones, Tripp, Scott, Conklin & Smith, Fort Lauderdale, FL, Cleo G. Murphy, Murphy & Freund, Topeka, KS, for defendants.

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on the motions for summary judgment (Dks. 84, 89) filed by the defendant The Gehl Corporation ("Gehl") and the defendant Mike Duryea. The plaintiff brings this employment discrimination action under Title VII, 42 U.S.C. § 2000e, as amended by 42 U.S.C. § 1981a. Her claims are (1) disparate treatment in terms and conditions of employment, (2) hostile work environment, and (3) discriminatory termination on the basis of sex and in retaliation for protesting sexual harassment at work. Both defendants seek summary judgment on all claims arguing the plaintiff is unable to present a prima facie case of disparate treatment, hostile work environment, and retaliatory termination. The defendant Gehl also denies liability for Duryea's actions under the plaintiff's hostile work environment claim. The court denies the defendants' motions on the following analysis.

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). 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, ___ U.S. ___, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If this burden is met, the non-moving party must "come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the non-moving party's case." Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) (citations omitted). The court views the evidence and draws any possible inferences in the light most favorable to the non-moving party. MacDonald v. Eastern Wyoming Mental Health Center, 941 F.2d 1115, 1117 (10th Cir.1991). 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).

The plaintiff, Pamella Henry, had worked as a telemarketer and had heard from Scott Clark, a telemarketer with Gehl, that the Gehl office in Topeka was a "good phone room." Based on that information, Pamella applied for a job with Gehl. The defendant, Michael Duryea, was the Topeka office manager for Gehl. He hired the plaintiff on December 12, 1991, and terminated her approximately six weeks later. The plaintiff filed a charge with the Kansas Human Rights Commission in February of 1992 alleging discrimination on the basis of sex and retaliation.

Disparate Treatment in the Terms and Conditions

During the hiring interview, Duryea told the plaintiff it was his general rule not to hire women but that Scott Clark had highly recommended her. On other occasions, Duryea had explained that women generally didn't "work out" as they lacked a "strong voice" and could not bring in "the kind of money" needed. The plaintiff alleges that throughout her six weeks of employment Duryea did not treat her the same as the male telemarketers on the critical issues of attendance and production. In the pretrial order, the plaintiff specifically alleges that Duryea unfairly reprimanded her on January 21, 1992, and told her the reprimand was because "women don't work out."

It is an unlawful employment practice for an employer to discriminate against an employee with respect to terms and conditions of employment because of the employee's sex. 42 U.S.C. § 2000e-2(a). When the claim is disparate treatment on the basis of sex, the plaintiff must prove the defendant acted with a discriminatory motive or intent. Sorensen v. City of Aurora, 984 F.2d 349, 351 (10th Cir.1993). Absent the unusual instance where there is direct evidence of the employer's discriminatory intent, the Title VII plaintiff may turn to the burden of proof scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

Under the McDonnell Douglas three-step scheme, the plaintiff must first establish, by a preponderance of the evidence, a prima facie case of sexual discrimination. St. Mary's Honor Center v. Hicks, ___ U.S. ___, ___, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407, 415 (1993). If proved, a prima facie case gives rise to a presumption of discrimination and shifts the burden of production to the defendant to rebut the presumption. St. Mary's, ___ U.S. at ___, 113 S.Ct. at 2747, 125 L.Ed.2d at 416. In short, it becomes the defendant's burden to produce evidence that the challenged actions were taken for a legitimate, nondiscriminatory reason. Id. To carry this burden, the defendant "`must clearly set forth, through the introduction of admissible evidence,' reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." Id. (quoting Burdine, 450 U.S. at 254-55, 101 S.Ct. at 1094).

If the defendant carries the burden of production, then the presumption drops from the case. St. Mary's, ___ U.S. at ___, 113 S.Ct. at 2747, 125 L.Ed.2d at 416. The plaintiff retains the ultimate burden of persuading the factfinder of intentional discrimination. Id. To prevail, the plaintiff must directly prove the employer acted on a discriminatory motive or indirectly prove the employer's reasons were a pretext for discrimination, that is, the stated reasons were false and discrimination was the real reason. Martin v. Nannie and the Newborns, Inc., 3 F.3d at 1417; see St. Mary's, ___ U.S. at ___, 113 S.Ct. at 2752, 125 L.Ed.2d at 422. "Although a prima facie case combined with disproof of the employer's explanation does not prove intentional discrimination as a matter of law, it may permit the factfinder to infer intentional discrimination, and thus preclude summary judgment for the employer." Durham v. Xerox Corp., 18 F.3d 836, 840 (10th Cir. 1994) (citations omitted), cert. denied, ___ U.S. ___, 115 S.Ct. 80, 130 L.Ed.2d 33 (1994).

To establish a prima facie case of employment discrimination in the terms, conditions or privileges of employment, the plaintiff must show that similarly situated male employees were treated differently. Torre v. Federated Mut. Ins. Co., 854 F.Supp. 790, 804 (D.Kan.1994); see Sorensen v. City of Aurora, 984 F.2d at 352-53. The defendants argue the plaintiff is unable to show she was subjected to standards or treatment any different from those imposed on male co-workers. According to the defendants, the plaintiff was paid the same hourly wage, was required to meet the same production quota, and was subjected to the same disciplinary measures and motivational techniques used on all the Topeka sales staff. As for the unfair reprimand on January 21, 1992, the plaintiff testified that Duryea yelled at everybody for low production and put everyone on part-time employment, but that she was the only employee to whom Duryea specifically discussed other reasons for the part-time employment. In her deposition, the plaintiff admits that she, not Duryea, initiated the conversation between them about the part-time employment reprimand. The defendants contend the plaintiff complains not about receiving unequal treatment but about not receiving preferential treatment.

In response, the plaintiff points to the fact that most of the sales staff was put on part-time but that her personnel file is the only one having a formal written reprimand regarding this event. Melanie Bearden, Duryea's secretary, testified that Duryea prepared this reprimand after he terminated the plaintiff. The plaintiff complains that Duryea abruptly terminated her while on part-time status without giving her at least a week to meet the goal. There was a male employee with production totals lower than the plaintiff who was not terminated or even counseled. The plaintiff further notes that her file shows she was counseled for absences when her attendance was better than other male employees.

In reply, the defendant Gehl argues that the male employees to whom the plaintiff compares herself were either working under different circumstances or receiving similar disciplinary treatment. Though Gehl's arguments seem facially meritorious in many respects, the court will not consider them. The defendant Gehl filed a forty-page reply brief. The court's scheduling order (Dk. 11) and pretrial order (Dk. 90) provide that "reply memoranda shall not exceed 20 pages." Gehl did not file a motion for leave to submit a memorandum in excess of the court's page limitation. Gehl's apparent disregard for the page limitations requires an appropriate sanction. The court shall not consider any part of Gehl's reply brief or the materials attached thereto.

It is essential to any...