Staudinger v. Hoelscher, Inc.

166 F.Supp.2d 1335

Mollie STAUDINGER, Plaintiff, v. HOELSCHER, INC., Darrell Hoelscher, George Hutchens, and The City of Bushton, Kansas, Defendants.

No. 98-4117-SAC.

United States District Court, D. Kansas.

August 29, 2001.

COPYRIGHT MATERIAL OMITTED

Cheryl D. Meyers, Topeka, KS, Michael B. Myers, Victorville, CA, for Plaintiff.

Patrick W. Neustrom, Achterberg & Neustrom, Salina, KS, David R. Cooper, Fisher, Patterson, Sayler & Smith, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

This case comes before the court on separate motions of the defendants for summary judgment. This is a case in which the plaintiff claims sexual harassment, sexual discrimination, deprivation of federally protected rights without due process, negligence, and the intentional infliction of emotional distress. (Pretrial Order, p. 2.) The acts which form the basis of plaintiff's sexual harassment and discrimination charges were allegedly taken by Frank Cruz, plaintiff's co-worker at Hoelscher Inc.

Plaintiff alleges, among other matters, that Hoelscher Inc., had previously fired Cruz for sexual harassment of another female, then rehired Cruz without warning her. Plaintiff claims Cruz sexually harassed her and that Hoelscher Inc. was unresponsive to her complaints about Cruz, leading her to take the matter into her own hands by loudly stating that "if Cruz did not leave her alone, she would handle the matter with a baseball bat." Soon thereafter, Hoelscher Inc., terminated plaintiff's employment for the stated reason that plaintiff had threatened Cruz, in violation of the company's non-violence policy. This suit followed.

Summary Judgment Standards

The standards and procedures for summary judgment are well established and will not be fully repeated here. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In essence, summary judgment is proper 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 judgment as a matter of law. Id.

Summary judgments "`should seldom be used in employment discrimination cases.'" O'Shea v. Yellow Technology Services, Inc., 185 F.3d 1093, 1098 (10th Cir. 1999) (quoting Smith v. St. Louis University, 109 F.3d 1261, 1264 (8th Cir.1997)). Because discrimination claims often turn on the employer's intent, 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); see Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir.1994) ("[T]he summary judgment standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues." (quotation and citation omitted)). 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., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995).

Facts

Controverted facts have been construed in a light most favorable to plaintiff as the non-moving party. Facts immaterial to the issues addressed herein and factual averments not properly supported by the record have been omitted.

1. Darrel Hoelscher is the president and owner of Hoelscher, Inc., a corporation. Defendant George Hutchens is the Hoelscher, Inc. plant manager. Jack Nuss is the Bushton City Marshal and sanitation engineer.

2. Hoelscher, Inc. manufactures farm machinery for stacking hay.

3. Plaintiff was employed by Hoelscher, Inc. as a plasma cutter from January 1997 until her termination on April 29, 1997.

4. Hutchens instructed plaintiff to leave the plant after her termination.

5. Hutchens told plaintiff not to reenter the plant.

6. Nuss had been called, and was in the reception area outside Hutchens office when plaintiff went into Hutchens' office and when she left.

7. After plaintiff was discharged, Hutchens told plaintiff that Marshal Nuss was there to escort her out of the building.

8. Nuss made no move toward plaintiff when she entered Hutchens' office.

9. After her termination, plaintiff used the telephone to call for a ride, left Hutchens' office, got her lunch pail, changed her shoes and left the building through the break room without re-entering the shop area.

10. Plaintiff walked outside the building to Harold Kilgore's truck to wait for a friend to arrive and give her a ride home to Ellinwood.

11. Nuss followed plaintiff out of the building.

12. Hoelscher did not instruct Nuss to stay with plaintiff until her ride came.

13. Plaintiff related the following regarding Marshal Nuss after he followed her out of the building to Kilgore's truck: "He said I was sent out here to make sure you did not try to enter the building again. I said you're kidding. He said what's going on. He had no idea other than they wanted him to come up to make sure I was escorted off of the premises is what he told me, and he stood there until my friend come to make sure I did not go back in the building, I guess. At first I thought he was just being friendly, you know, because he didn't know why they called him up there, but then I thought, well, they really thought I was going to do something."

14. Nuss did not threaten plaintiff.

15. Plaintiff was not detained by Nuss but felt that she would have been detained had she tried to re-enter the building.

16. Plaintiff told Nuss that she would have Harold Kilgore return her personal property she had left in the plant at her work area.

17. Nuss' only instruction to plaintiff was that she could not re-enter the building.

18. Nuss stood by the door to Kilgore's truck, leaning against the open door, while plaintiff sat on the seat smoking a cigarette.

19. Plaintiff did not believe Nuss would arrest her unless she tried to re-enter the building.

20. Darrell Hoelscher said nothing to plaintiff as she left Hutchens' office and left the building following her termination.

21. When plaintiff left Hutchens' office following her termination, Nuss asked if Hoelscher wanted Nuss to follow her. Hoelscher said "I guess."

22. Nuss has never been employed by Hoelscher, Inc. or Hoelscher.

23. Nuss met plaintiff for the first time the day she was terminated.

24. Nuss is employed by the City of Bushton as the City Marshal and sanitation engineer, and assists with street work, reading meters, and trimming trees.

25. Nuss does not know and has never met Franco Cruz.

26. Nuss took no action other than to stand by.

Other facts are included as necessary in the analysis which follows.

Personal Jurisdiction

The court will first address the claim by defendant Darrel Hoelscher, the president and owner of Hoelscher Inc., that this court lacks personal jurisdiction over him. It is undisputed that Hoelscher was not personally served a copy of the Summons and Complaint in this case, and that he was absent from work on the day the process server delivered copies of such to the Hoelscher, Inc. facility. It is further undisputed that the process server left the service papers with plant manager Hutchens, who later gave them to Hoelscher. The issue presented is whether Hutchens was authorized to accept service of process on behalf of Hoelscher.

Recognizing that service pursuant to the federal rules is necessary, plaintiff contends that service was proper pursuant to Fed.R.Civ.P. 4(e)(2). This time-honored rule states that service may be effected upon competent adult individuals as follows:

by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

Plaintiff invokes the latter clause, contending that Hutchens was an agent authorized to receive service of process.

Plaintiff offers no evidence in support of her contention that Hutchens was Hoelscher's agent for purposes of service of process. Instead, plaintiff improperly attempts to shift to defendants the burden of disproving the agency relationship, in stating that "there is no evidence in the record that Hutchens was not Darrell Hoelscher's personal agent." (Dk.64, p. 36). Plaintiff cites no cases which would establish as a matter of law that a plant manager is authorized merely by virtue of that position to accept service of process for the president and owner of the plant.

The party asserting the validity of service bears the burden of proof on that issue. Oltremari by McDaniel v. Kansas Social & Rehabilitative Service, 871 F.Supp. 1331, 1349 (D. Kan.1994).

See 4A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 1083 (1987). In light of plaintiff's failure to sustain this burden, defendants' motion to dismiss all claims against Darrel Hoelscher for lack of personal jurisdiction is granted.

Title VII

Plaintiff has brought sexual discrimination and sexual harassment claims against Hoelscher, Inc., pursuant to Title VII and the Kansas Act Against Discrimination (KAAD). Hoelscher, Inc. contends that during the relevant time, it lacked the requisite number of employees, so that plaintiff's claims under Title VII should be dismissed.

Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), makes it an "unlawful employment practice for an employer to discriminate against any of its employees ... because he has opposed any practice made an unlawful employment practice by this subchapter." The term "employer" is defined as follows:

The term "empl...