Pritchett v. Western Resources, Inc.

313 F.Supp.2d 1120

Janice K. PRITCHETT, Plaintiff, v. WESTERN RESOURCES, INC., Defendant.

No. 00-4191-JAR.

United States District Court, D. Kansas.

April 12, 2004.

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Tommy L. Green, Topeka, KS, for Plaintiff.

David P. Mudrick, Thomas E. Wright, Wright, Henson, Clark & Baker LLP, Topeka, KS, for Defendant.

MEMORANDUM & ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

ROBINSON, District Judge.

This matter comes before the Court on defendant Western Resources, Inc.'s Motion for Summary Judgment (Doc. 79) on plaintiff's claims of hostile work environment and sex discrimination. Plaintiff has not filed a response.¹ For the reasons set forth below, defendant's motion is granted.

I. Summary Judgment Standard

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 of material fact and that the moving party is entitled to judgment as a matter of law."² The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party.³ Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."⁴

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case.⁵ Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial.⁶ "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of [her] pleading, but must set forth specific facts showing that there is a genuine issue for trial."⁷ Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.⁸ The court must consider the record in the light most favorable to the nonmoving party.⁹

Although plaintiff has not responded to defendant's motion, this alone does not make summary judgment proper, for plaintiff's burden to respond arises only if the motion is properly supported in the first instance.¹⁰ "Accordingly, summary judgment is appropriate under Rule 56(e) only when the moving party has met its initial burden of production under Rule 56(c)."¹¹ If the evidence presented by the moving party does not satisfy this burden, "summary judgment must be denied even if no opposing evidentiary matter is presented."¹² Thus, if a nonmoving party fails to respond to a motion for summary judgment, the court must first examine the moving party's submission to determine if it has met its initial burden of demonstrating that no material issues of fact remain for trial and that the moving party is entitled to judgment as a matter of law.¹³

II. Uncontroverted Facts¹⁴

Plaintiff has been employed by defendant since March 1990 as an Auxiliary Equipment Operator (AEO) at the Jeffrey Energy Center. In 1995 or 1996, plaintiff bid for a position as a Control Room Officer (CRO). CRO positions are available upon bidding by an employee on a seniority basis. Because plaintiff did not have enough seniority when she bid for the CRO position, her bid was unsuccessful. Plaintiff did not bid for vacant CRO positions posted July 15, 1996, December 25, 1996, or February 1997, but rather remained employed as an AEO.

In 1996, Harold Stowers, plaintiff's supervisor, said that he might be considered a male chauvinist because he did not think women were as physically strong as men. Plaintiff agreed with his opinion about the relative strength of men and women. Later, in 1997, plaintiff inadvertently heard Stowers making fun of her over the phone about her performance when a yard belt stopped. Based on Stowers' comments, plaintiff filed an internal complaint. Defendant investigated plaintiff's complaint and at the conclusion of the investigation, excluded Stowers from performing evaluations of plaintiff. While plaintiff was upset by Stowers' conduct, she admits that neither Stowers nor any other supervisor ever made a sexually derogatory comment to her.

Following a generator explosion at Jeffrey and a boiler explosion at defendant's Lawrence plant in 1996, defendant announced an employee performance and skills evaluation program. Under the program, employees in defendant's Generation Services Group were to be evaluated annually. The program, which applied to over 250 male and female employees at Jeffrey alone, sought to raise operators' skill levels. Under the program if a performance evaluation showed that an employee was deficient in certain critical skill areas, a formal retraining plan was created. Employees with uncompleted formal training plans were not qualified to bid for CRO positions.

On November 27, 1997, plaintiff received a number of "2s" on the skills portion of her evaluation. Because "2s" were considered marginal, plaintiff was required to participate in retraining. Plaintiff was notified in April 1998 that she was being placed in retraining. Although some employees, including females, successfully sought reconsideration of their evaluations, plaintiff chose not to make such a request. Plaintiff failed to complete her retraining within the allotted six-month time period when she scored a 73% on a retraining test, 7% below the required 80% passing score.

On July 1, 1999, plaintiff completed her retraining, albeit four months outside the allotted time frame. Plaintiff admits she is not aware of anyone else who failed to timely complete their training who was treated differently than she was. While plaintiff was not allowed to bid for a CRO position posted on February 24, 1999, because she was participating in retraining, other male and female employees were similarly disqualified. During the period plaintiff participated in retraining, she was never decertified from her position or demoted, never lost her job, and never lost any pay or benefits. Moreover, plaintiff was allowed to work the same amount of overtime in retraining that she would have otherwise worked as an AEO.

While plaintiff was required to participate in retraining, Jim Scroggins, a male AEO employee was also subjected to retraining. Scroggins had been employed as an AEO longer than plaintiff had been. Similar to plaintiff, Scroggins was given two chances to pass his retraining tests. And, the same 80% pass rate that applied to plaintiff applied to the male employees at Jeffrey, including Scroggins and Steve Vetsch, who both failed retraining tests. Scroggins was also disqualified to bid on the vacant CRO position posted February 24, 1999, just as plaintiff was, because both plaintiff and Scroggins were participating in retraining. Unlike plaintiff who successfully completed retraining, however, Scroggins was decertified from his AEO position after he ultimately failed in his retraining.

In April 1999 while she was participating in retraining, plaintiff was assigned to work on the dumper and stacker, a portion of her regular duties. Plaintiff was assigned to work solely on the dumper and stacker, which were less critical to Jeffrey, because she had twice rated low on key skill areas associated with some of her duties. Defendant did not feel comfortable assigning plaintiff to more critical duties due to her two poor evaluations. Scroggins was also limited to dumper and stacker duties while he participated in retraining. Plaintiff was never subjected to oral or written warnings as a result of being placed only on dumper and stacker duties during part of her retraining, lost no pay or benefits and was not demoted. Nor did plaintiff file an internal complaint with defendant, complain to management or lodge a grievance with her union regarding being limited to dumper and stacker duties.

When plaintiff successfully completed retraining, she became "fully certified" and could perform her regular duties again; she also became eligible to apply for vacant CRO positions. Although plaintiff was qualified to bid for a CRO position by July 1, 1999 when she was fully certified, she did not apply for a CRO position posted on July 6, 1999. Nor did plaintiff bid on any other openings until April 2003. A CRO position was posted at Jeffery in fall or winter of 1999 during the period plaintiff was off work due to an off-the-job foot injury. Defendant did not personally notify plaintiff of this opening because the labor agreement does not require such notification, nor is it the standard policy of defendant. In fact, plaintiff concedes, "[t]hey don't have to notify you at home." When plaintiff finally bid for a vacant CRO slot in April 2003, she was selected to enter training for a position based on her bid and in accordance with her seniority. Plaintiff is currently progressing through training.

On October 27, 1999, plaintiff filed a charge with the Kansas Human Rights Commission (KHRC) claiming discrimination on the basis of sex and age.¹⁵ Although an attorney assisted plaintiff draft her charge, no hostile work environment claim appears in her charge. Plaintiff's complaint of a hostile work environment in this case is based in part upon her encounters with Stowers in 1996 and 1997. Additionally, plaintiff notes that a supervisor once yelled at her for not walking the upper belts during an ice storm and that a non-management Union steward cussed at her once. She complained to management about the cussing and never had any other problems with the individual. Plaintiff also claims to have seen an offensive, doctored picture of two women at Jeffrey, but she never complained about the picture, nor was the picture brought to the...