Thompson v. Tyson Foods, Inc.

TONIA THOMPSON, Plaintiff, v. TYSON FOODS, INC., Defendant.

Case No. 16-2496-DDC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

February 5, 2018

MEMORANDUM AND ORDER

Title VII aims, in part, to end sexual harassment in the workplace by imposing liability on employers who fail to respond to sexual harassment complaints or retaliate against those who report harassment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63 (1986); 42 U.S.C. § 2000e-3(a). But when considering whether to impose liability on an employer, the court must be mindful of "the victim's rights, the employer's rights, and the alleged harasser's rights." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 677 (10th Cir. 1998). Here, plaintiff Tonia Thompson claims defendant Tyson Foods, Inc. has failed to respond to her complaints about sexual harassment and has retaliated against her for complaining about harassment.

This matter comes before the court on four motions. Defendant moves for summary judgment against both plaintiff's hostile work environment claim (Count I) and her retaliation claim (Count II) (Doc. 37). Plaintiff moves for partial summary judgment on her hostile work environment claim (Doc. 39). Plaintiff also moves to supplement her motion and Opposition to defendant's Motion for Summary Judgment to include an additional episode of alleged harassment on September 8, 2017 (Doc. 51). And last, defendant moves to correct its Reply brief to its Motion for Summary Judgment (Doc. 53).

The court grants plaintiff's Motion to Supplement and defendant's Motion to Amend. As for the parties' motions for summary judgment, the court grants them in part and denies them in part. The court holds that a jury should decide the outcome of plaintiff's hostile work environment claim. The court also holds that a jury should decide the outcome of plaintiff's retaliation claim, except for plaintiff's reliance on defendant's warning to plaintiff for taking an unauthorized extended lunch break. And last, the court holds that plaintiff is a member of a legally recognized protected class because she is a woman. The court explains the rationale for its rulings, below.

I. Motion to Supplement her Summary Judgment Motion and Opposition

As part of the pending summary judgment motions, plaintiff asks the court to consider a new incident between Anthony Richardson, the alleged sexual harasser, and plaintiff that purportedly occurred on September 8, 2017. This episode allegedly occurred after plaintiff filed her Motion for Summary Judgment and her Opposition to defendant's Motion for Summary Judgment. On September 8, plaintiff alleges that Mr. Richardson walked up behind her and started rubbing her shoulders without her consent. Plaintiff asks the court to consider this new incident as evidence supporting her hostile work environment claim, which alleges that defendant failed to respond adequately to an earlier complaint of harassment that plaintiff made in September 2015. See Adler, 144 F.3d at 673 (explaining that plaintiff, to impute liability on an employer under Title VII for a hostile work environment claim, must establish that defendant responded inadequately to a report of harassment by a co-worker).

Defendant argues that the court should disregard the new evidence. It gives three reasons why the court should do so: (1) the September 8 incident was not included in the Pretrial Order; (2) plaintiff has failed to exhaust her administrative remedies for the September 8 incident; and (3) the incident has no relevance to defendant's or plaintiff's Motions for Summary Judgment. The court addresses these arguments, in turn, below.

A. Effect of the Pretrial Order

"Claims or theories that are not included in the pretrial order usually are waived." Leathers v. Leathers, 856 F.3d 729, 760 (10th Cir. 2017) (citation omitted). But "'a pretrial order should be liberally construed to cover any of the legal or factual theories that might be embraced by its language.'" Id. (quoting Koch v. Koch Indus., Inc., 203 F.3d 1202, 1220 (10th Cir. 2000)). Courts should follow this rule particularly when the Pretrial Order states the parties' allegations in general terms. Id. at 760-61.

Defendant asserts that Sunderman v. Westar Energy, Inc., 520 F. Supp. 2d 1269 (D. Kan. 2007), addressed a similar situation. In Sunderman, plaintiff asserted a Title VII retaliation claim, which requires plaintiff to show that defendant retaliated against him because he reported or opposed discrimination. Id. at 1277. Plaintiff had alleged in the Pretrial Order that he had reported discrimination just once—when he filed a complaint with the Kansas Human Rights Commission in November 2002. Id. at 1278. After the court entered the Pretrial Order, plaintiff attempted to assert that he also reported discrimination another time—when he complained to defendant's human resource department as early as March 11, 2002. Id. Judge Robinson refused to consider the new allegation because plaintiff had not asserted it in the Pretrial Order where he specifically had identified the occasion he had reported discrimination. Id.

Judge Robinson explained that the Sunderman facts differed from other Tenth Circuit cases holding that a court should "liberally construe[]" a pretrial order "to cover any of the legal and factual theories that might be embraced by its language." Id. In contrast, Judge Robinson explained, the Sunderman Pretrial Order required a "'more strict[] constru[ction]'" because the Order "'ha[d] been refined over time, properly drawn, and drafted with substantial specificity.'" Id. (quoting Koch, 203 F.3d at 1220-21).

In contrast, the Pretrial Order here generally describes why defendant has failed to respond adequately to plaintiff's complaints of harassment. Plaintiff's factual contentions provide, in relevant part, "Plaintiff has continued to be exposed to [Mr.] Richardson through her employment with Tyson . . . . [Mr. Richardson] has engaged in conduct [after defendant transferred him] that is intimidating to Plaintiff, which Plaintiff has reported to management." Doc. 41 at 11. This allegation does not specifically reference the occasions when Mr. Richardson had intimidated plaintiff. Now, plaintiff alleges Mr. Richardson came into her work area, rubbed her shoulders, and made plaintiff uncomfortable. This interaction allegedly occurred after the court entered the Pretrial Order, after plaintiff filed her Motion for Summary Judgment, and after she filed her Opposition to defendant's motion. Under these circumstances and liberally construing plaintiff's allegations in the Pretrial Order, Leathers, 856 F.3d at 760, the court concludes that the Pretrial Order encompasses the September 8 incident that plaintiff alleges here.

B. Exhaustion of Remedies

Defendant next argues that the court cannot consider the September 8 incident because plaintiff has not complained about the incident to the Equal Employment Opportunity Commission ("EEOC"). "Federal courts lack jurisdiction over Title VII claims that were notpreviously covered in a claim presented to the [EEOC]." Eisenhour v. Weber Cty., 744 F.3d 1220, 1226 (10th Cir. 2014) (citing Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005)).¹

Plaintiff argues that she need not present this new incident to the EEOC because she merely intends to use it as evidence to support her hostile work environment claim. Incidents of earlier harassment that plaintiff did not exhaust administratively "may constitute relevant background evidence" in a suit for a later act of harassment. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977) ("A discriminatory act which is not made the basis for a timely [EEOC] charge is the legal equivalent of a discriminatory act which occurred before [Congress passed Title VII]. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history with no legal consequences.").

The Tenth Circuit has explained that acts of harassment occurring after harassment complained of in a Title VII suit may constitute relevant background evidence even though plaintiff never brought the subsequent harassing act to the EEOC's attention. See Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir. 2003) (recognizing that subsequent, unexhausted acts of retaliation may provide evidence that an earlier, administratively exhausted act was retaliatory). While plaintiff here argues that the new episode is germane to her hostile work environment claim—and not her retaliation claim—the court finds Potter persuasive. Based on it, the court concludes that the Tenth Circuit also would find unexhausted episodes of later harassment can constitute background evidence of a hostile work environment.

Importantly, later acts of harassment can show that an employer's response was not reasonable, thus making this evidence relevant. See Adler, 144 F.3d at 676 ("Repeat[ed] [harassing] conduct may show the unreasonableness of prior responses."). And considering this unexhausted episode to decide the pending summary judgment motions will not offend the policy justifications that require exhaustion as a predicate to suit in federal court, i.e.: (1) to give notice to the employer that a violation may have occurred so that it can address the incident voluntarily; and (2) to allow the EEOC to defuse the situation. Jones v. Needham, 856 F.3d 1284, 1290 (10th Cir. 2017) (citation omitted). Here, plaintiff does not intend to litigate the reasonableness of defendant's response to the September 8 incident. That is, plaintiff does not contend in this lawsuit that defendant failed to respond adequately to plaintiff's complaint about the September 8 incident. So, notice is not an issue because, at least in this suit, defendant need not show that it addressed this incident reasonably, or even at all. Instead, plaintiff merely asks the court to consider...