Wilkerson v. PIA Topeka, Inc., 94-4054-SAC.

900 F. Supp. 1418

Bobbi Jean WILKERSON, Plaintiff, v. P.I.A. TOPEKA, INC., aka Psychiatric Institutes of America dba Parkview Hospital, Ty A. Hill, an individual, Defendants.

No. 94-4054-SAC.

United States District Court, D. Kansas.

July 28, 1995.

Stephen W. Cavanaugh, Fisher, Cavanaugh & Smith, P.A., Topeka, KS, Joyce E. Haile Selassie, Lawrence, KS, for Bobbi Jean Wilkerson.

Toni H. Blackwood, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, MO, for N.M.E. Psychiatric Hospitals, Inc. and Ty A. Hill.

Toni H. Blackwood, Brian J. McGrath, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, MO, for P.I.A. Topeka, Inc.

MEMORANDUM AND ORDER

CROW, District Judge.

Bobbi Jean Wilkerson was hired as a housekeeper by P.I.A. Topeka, Inc., aka Psychiatric Institutes of America, dba Parkview Hospital ("Parkview Hospital"). Wilkerson claims that throughout her employment at Parkview Hospital, she was constantly sexually harassed by her supervisor, Ty Hill. Wilkerson asserts claims under Title VII as well as a supplemental claim for intentional infliction of emotional distress. Wilkerson seeks damages in the amount of $302,704.78, representing the sum of back and future pay, medical expenses, loss of consortium on behalf of her husband, and compensatory damages for pain, suffering, mental anguish and punitive damages.

This case comes before the court upon Parkview Hospital's motion for partial summary judgment on the following claims asserted by the plaintiff:

1. Intentional infliction of emotional distress;

2. Quid pro quo sexual harassment.

Wilkerson responds, arguing that genuine issues of material fact preclude summary judgment. Parkview Hospital filed a reply.

Summary Judgment Standards

A defending party may move for summary judgment on any or all of the adverse party's claims. See Fed.R.Civ.P. 56(b). A court grants a motion for summary judgment if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The substantive law governing the suit dictates which facts are material or not. Id. at 248, 106 S.Ct. at 2510. "Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "There are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988).

The movant's burden under Rule 56 of the Federal Rules of Civil Procedure is to lay out the basis of its motion and 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). "A movant is not required to provide evidence negating an opponent's claim." Committee for First Amendment v. Campbell, 962 F.2d 1517, 1521 (10th Cir.1992) (citation omitted).

If the moving party meets its burden, then it becomes the nonmoving party's burden to show the existence of a genuine issue of material fact. Bacchus Industries, Inc. v. Arvin Industries, Inc., 939 F.2d 887, 891 (10th Cir.1991); see Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) ("If the moving party meets this burden, the non-moving party then has the burden to come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the nonmoving party's case."). When the nonmoving party will have the burden of proof at trial, "`Rule 56(e) ... then requires the nonmoving party to go beyond the pleadings and by her own affidavits or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). "Unsubstantiated allegations carry no probative weight in summary judgment proceedings." Phillips v. Calhoun, 956 F.2d 949, 951 (10th Cir.1992) (citations omitted); see Martin, 3 F.3d at 1414 (non-moving party cannot rest on the mere allegations in the pleadings). "Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment." Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928, 929 (7th Cir.1995); see Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir.1993) ("Optimistic conjecture, unbridled speculation, or hopeful surmise will not suffice."). The court views the evidence of record and draws inferences from it in the light most favorable to the nonmoving party. Burnette v. Dow Chemical Co., 849 F.2d at 1273.

More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). At the same time, a summary judgment motion is not the chance for a court to act as the jury and determine witness credibility, weigh the evidence, or decide upon 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).

Summary of Facts

The following is a summary of the essential facts, viewing the evidence in the light most favorable to Wilkerson. On January 3, 1991, Wilkerson was hired as a housekeeper by Parkview Hospital. On February 17, 1991, Wilkerson was promoted to Housekeeping Supervisor. Wilkerson's duties as housekeeping supervisor involved many tasks including scheduling, maintaining of records, interviewing and hiring new personnel and assisting in the preparation of the budget. Wilkerson was a very hard worker. Wilkerson received an employee of the month and the employee of the year award for 1992.

Ty Hill was the Director of Facility Operations throughout Wilkerson's employment at Parkview Hospital. The Director of Facility Operations has supervisory responsibility over the housekeeping department. Steve Weir became the Assistant Director of Facility Operations in November 1991. The Assistant Director of Facility Operations has supervisory duties over the Housekeeping Supervisor and reports directly to the Director of Facility Operations. Teresa Markowitz was promoted from Assistant Administrator to Administrator/CEO of Parkview Hospital in early June 1992. Brian Lutz was the Human Resource Director at Parkview Hospital throughout Wilkerson's employment.

Wilkerson contends that Hill made statements and committed acts which she considered to be sexually harassing. The following comprises a summary of the conduct which Wilkerson contends occurred:

(1) While in the cleaning closet with Wilkerson to review the housekeeping work schedule, Hill came up from behind and pressed his body into hers; Wilkerson could feel the grinding of his penis on her buttocks.

(2) Hill required Wilkerson to remove a spot on his pants near his crotch;

(3) On several occasions, Hill made sexually harassing comments to her including:

"Does your husband satisfy you in bed?";

"I'm a Texas boy, I got big hands and I got a big dick.";

(4) On one occasion, Hill showed her a photograph of a nude man with an erection;

(5) On one occasion, Hill, who was walking down a hallway with some paperwork in his hand, slapped Wilkerson on the buttocks with the paper and then "hit down over her breast." Hill laughed as he walked on down the hall.

Wilkerson was afraid that she would lose her job if she did anything in response to these actions. Wilkerson's fear was based upon statements Hill made on repeated occasions which included: "I'm the hatchet man."; "I love to chop people up and throw them away."; "If he lost his job, everyone was going with him."; and "I did you a favor when I hired you."

Apparently after Wilkerson rejected Hill's sexual advances, her supervisory duties over the housekeeping staff were taken away. In her deposition, Wilkerson stated that Hill undermined her authority over other employees "by telling them that they didn't have to do the job or they didn't have to report to me. And then when the job wouldn't get done Hill would come to me and ask me why it wasn't done when he knew why it was not done." Hill changed Wilkerson's work hours, rearranged her work schedule, and told her that her duties would no longer include checking the hospital or assigning work to other employees.¹

On July 27, 1992, Wilkerson met with Lutz to discuss her concerns about Ty Hill and the diminution of her job duties.² Specifically, Wilkerson claims that she informed Lutz that Hill was sexually harassing her and that Hill was systematically demoting her. On July 29, 1992, Wilkerson met with Lutz and Markowitz to again express her concerns about Hill and her job. On July 30, 1992, Wilkerson met with Hill, Lutz and Weir about her concerns about her job. As a result of that meeting, Wilkerson claims that Markowitz simply told Wilkerson and Hill that they were to have no contact together.

The last day that Wilkerson worked in the Parkview Hospital building was August 25, 1992. Wilkerson remained employed by Parkview Hospital but was apparently on leave until she resigned, effective June 1, 1993.

On October 13, 1992, Lutz interviewed Hill about Wilkerson's allegations of sexual harassment. Hill denied any wrongdoing. Lutz...