Huddleston v. Lumbermens Mut. Cas. Co.

942 F.Supp. 504

Carol Ann HUDDLESTON, Plaintiff, v. LUMBERMENS MUTUAL CASUALTY COMPANY d/b/a Kemper National Insurance Companies, Defendant.

Civil Action No. 95-2483-GTV.

United States District Court, D. Kansas.

September 28, 1996.

COPYRIGHT MATERIAL OMITTED

William S. Robbins, Jr., Kurlbaum, Stoll, Seaman, Reefer, Suter & Mustoe, P.C., Kansas City, MO, for Carol Ann Huddleston.

Louis A. Huber, III, Bryan Cave, LLP, Kansas City, MO, Paul R. Garry, Robin I. Edelstein, Bates, Meckler, Bulger & Tilson, Chicago, IL, for Lumbermens Mutual Casualty Company dba Kemper National Insurance Companies.

MEMORANDUM AND ORDER

VAN BEBBER, Chief Judge.

This matter is before the court on defendant's motion (Doc. 6) for partial summary judgment as to Count I of plaintiff's complaint pursuant to Fed.R.Civ.P. 56, and its motion to dismiss Count II pursuant to Fed. R.Civ.P. 12(b)(6). Plaintiff has responded (Doc. 18), and opposes the motions. For the reasons set forth below, defendant's motion for partial summary judgment is granted and its motion to dismiss is denied.

In this employment discrimination action, plaintiff claims that defendant discriminated against her in the terms, conditions, and privileges of her employment on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In Count I of her complaint, plaintiff alleges that her supervisor's conduct towards her constituted sexual harassment. Plaintiff also makes a retaliation claim in Count II that defendant fired her after she reported the sexual harassment to defendant's Human Resource Department. Although not at issue in defendant's current motions, plaintiff claims in Count III that defendant wrongfully discharged her in retaliation for filing a workers' compensation claim.

I. FACTUAL BACKGROUND

The court has reviewed plaintiff's complaint and accepts the following facts as true.¹

Plaintiff is a female. Defendant employed plaintiff from December 1979 through March 1995. At the time of her discharge, plaintiff's job title was Collections Manager.

From September 1992 until her termination in March 1995, plaintiff's immediate supervisor was a female, Janet Muse. During this time period, plaintiff considered several incidents of Muse's conduct to be inappropriate. On one occasion, Muse entered plaintiff's office with a portion of her blouse unbuttoned. As Muse leaned over plaintiff's desk, a portion of her breast became exposed. Additionally, Muse occasionally would lean on plaintiff while visiting plaintiff in her office. Muse also invited plaintiff to engage in social activities outside the office. Finally, Muse cancelled her participation in a business trip she had planned to take with plaintiff after another co-worker decided to accompany them on the trip.

Following her refusal to participate in social activities with Muse outside the workplace, plaintiff began avoiding contact with Muse in the office. As a result, Muse's attitude towards plaintiff changed. Muse began to verbally harass plaintiff on the job and she treated plaintiff differently than the other employees under her supervision.

Plaintiff complained to defendant's Human Resource Department that Muse treated her differently than other similarly situated employees. Representatives of defendant's Human Resource Department failed to respond to plaintiff's complaint, and the differential treatment towards plaintiff continued.

On March 16, 1995, plaintiff began experiencing pain in her right wrist. She met with Tim Donovan, a representative of defendant's Human Resource Department, to complain about the pain in her wrist, to request an appointment with a physician that defendant retained, and to inquire into the procedures for filing a workers' compensation claim.

Later that same day, plaintiff had a second meeting with Donovan. Muse also was present at this meeting and she criticized plaintiff for talking to Donovan about her wrist injury without first informing Muse of the injury. Plaintiff responded that she viewed Muse's criticism to be further retaliation for plaintiff having spurned Muse's sexual advances. At that point, Donovan asked Muse to leave the meeting. Donovan then asked plaintiff to explain the various incidents that she perceived to have been sexual harassment. Plaintiff related the incidents noted above.

The following day, Muse informed plaintiff that she was fired. Muse told plaintiff her termination resulted from her inability to communicate with Muse.

Following her discharge, plaintiff filed her charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Kansas Human Rights Commission on August 3, 1995. Plaintiff received her right to sue letter from the EEOC on September 19, 1995. This action ensued on October 23, 1995. Defendant filed the current motion on December 20, 1995, and plaintiff responded on February 15, 1996.

II. SUMMARY JUDGMENT ON COUNT I: SEXUAL HARASSMENT

Summary judgment is appropriate only "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). The court must examine the factual record and reasonable inferences therefrom in a light most favorable to the party who opposes summary judgment. Applied Genetics Int'l Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).

The defendant, as the moving party, has the initial burden to show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the moving party meets this burden, the burden shifts to the plaintiff to identify specific facts that show the existence of a genuine issue of material fact. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986).

Summary judgment is normally inappropriate if an individual's state of mind and intent are implicated. Nonetheless, summary judgment is applicable in Title VII cases in which the appropriate standards are met. Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985).

In accordance with Fed.R.Civ.P. 56(f),² plaintiff submits the affidavit of her counsel and argues that summary judgment on Count I is inappropriate because defendant filed the current motion prior to the commencement of discovery. As a result, plaintiff contends that she has not had sufficient opportunity to discover the facts necessary to oppose defendant's motion for summary judgment. The court disagrees.

Pursuant to the court's scheduling order in this matter, the parties were to complete discovery by August 30, 1996. Consequently, the court considers discovery closed in this action. Subsequent to defendant filing its motion for partial summary judgment, plaintiff has had ample opportunity to conduct discovery in this matter. Notwithstanding this opportunity, plaintiff has not sought leave of court to supplement her response in opposition to defendant's request for summary judgment. If plaintiff had uncovered additional information during discovery that would aid her in opposing the current motion, it appears to the court that she is sitting on her hands by not providing that information to the court.

The court finds that plaintiff's proffered affidavit lacks merit. See Jensen v. Redevelopment Agency of Sandy City, 998 F.2d 1550, 1554 (10th Cir.1993) (court must construe plaintiff's Rule 56(f) affidavit liberally unless it is dilatory or lacks merit); Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir.1992). Plaintiff has had sufficient opportunity to conduct the discovery necessary to further substantiate her claims of sexual harassment. Thus, there is no need for the court to delay a determination of defendant's motion for partial summary judgment.

Defendant contends that it is entitled to summary judgment on Count I of plaintiff's complaint because Title VII does not proscribe sexual harassment between persons of the same sex. Defendant also argues that even if same-sex harassment is covered under Title VII, the conduct that plaintiff alleged in her complaint is insufficient to establish a claim of sexual harassment.

Neither the Tenth Circuit Court of Appeals nor this court has addressed the issue of whether Title VII prohibits same-sex harassment in the workplace. However, the court need not reach that issue in the instant action. Even if Title VII should be construed to prohibit same-sex harassment, defendant is entitled to summary judgment on Count I because plaintiff has failed to establish her prima facie case of harassment.

Plaintiff's sexual harassment claim is based on Title VII's prohibition that "[i]t shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to his ... terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has held that "when a supervisor sexually harasses a subordinate because of a subordinate's sex, that supervisor `discriminate[s]' on the basis of sex." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986).

The Tenth Circuit Court of Appeals has recognized two distinct categories of sexual harassment: quid pro quo harassment and hostile work environment harassment. See Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir.1987). In her response to the current motions, plaintiff argues that she has stated a claim for...