TIMOTHY D. DEGIUSTI, District Judge.
The present case arises from Plaintiff Annee Cunningham's (Cunningham) employment as an administrative assistant with Defendant Globalsource, Inc., d/b/a Skilled Trade Services (STS), where she alleges she was subjected to a hostile work environment due to sexual harassment by her immediate supervisor, Defendant Howard Chase (Chase). Before the Court is STS's Motion for Summary Judgment [Doc. No. 42]. Cunningham has filed her response in opposition [Doc. No. 45] and STS replied [Doc. No. 48]. The matter is fully briefed and at issue.
The following material facts are either uncontroverted, or deemed admitted, and are viewed in the light most favorable to Cunningham. Lounds v. Lincare, Inc., 812 F.3d 1208, 1220 (10th Cir. 2015). Immaterial facts, facts not properly supported by the record, and legal arguments or conclusions were not considered. See, e.g., Chavez v. County of Bernalillo, 3 F.Supp.3d 936, 949 n. 4 (D.N.M. 2014).
STS is a skilled labor staffing company based out of Delafield, Wisconsin. At the time its Motion was filed, STS employed less than twenty permanent, in-house employees. STS had an Oklahoma City office from approximately December 2013 through approximately April 25, 2014. Chase was hired as an "at-will" employee in or around mid-December 2013.
At the time of Cunningham's employment, STS had an Employee Handbook that outlined the company's policy against sexual harassment. It instructed employees to "immediately report the harassment to the immediate supervisor, the Controller or any Company officer." See Employee Handbook at 4 [Doc. No. 42-7]. The handbook stated it was the employee's duty to report harassment in order to help create a safe workplace for all employees. Id. It also stated STS would "promptly and thoroughly investigate complaints and take all necessary and appropriate corrective action to prevent such conduct from occurring or reoccurring in the workplace." Id. On or around December 18, 2013, Stephanie Gramling, STS's President and Chief Executive Officer, provided Chase with copies of STS's anti-discrimination and anti-harassment policies, including policies prohibiting sexual harassment and retaliation. Although the handbook stated "[employees] will be asked to sign and return a duplicate copy of the last page of the Handbook, confirming that [they] have read the Handbook, understood the content and have received a copy," Employee Handbook at 2, STS did not have a signed acknowledgement from Cunningham indicating receipt and/or review of the document. Although she did not have a copy of the handbook, Cunningham nonetheless believed she could bring any complaints of harassment to either Gramling or Maribel Rodriguez, who Cunningham thought worked in the human resources department.
Cunningham and Chase were the only two employees at STS's Oklahoma City office throughout the duration of her employment. Approximately two weeks after her first day at work, Chase told Cunningham that he and his wife had not had sex in the past two years. After that incident, for over two weeks, Chase made comments about his wife to Cunningham every day.
On April 23, 2014, Cunningham alleges that after being called to his office, Chase tried to force himself upon her. She describes the incident as follows:
Cunningham filed a police report and later called Gramling to make a complaint of sexual harassment. Cunningham told Gramling that Chase had sexually assaulted her, chased her out of the building, and had been arrested. Pursuant to advice from the police, Cunningham did not provide any additional details to Gramling about the incident. This was the first time Cunningham reported to Gramling or anyone else at STS that Chase had harassed her.
Although she expressed hesitation about returning to the office, Cunningham expressed her desire to keep her job. In response, Gramling said, "I don't know what to do about that, so you might as well just settle for unemployment." Cunningham then asked, "So that means you're letting me go?" to which Gramling said "Basically. File for unemployment." Following the advice of counsel, Chase refused to answer Gramling's questions regarding the incident.
Cunningham sued STS and Chase in Oklahoma County District Court for gender discrimination, sexual harassment, hostile work environment, and retaliation.
Rule 56(a), Federal Rules of Civil Procedure, provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The Court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter asserted, but to determine whether there is a genuine issue for trial. Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014). An issue is "genuine" if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). An issue of fact is "material" if under the substantive law it is essential to the proper disposition of the claim. Id.
Once the moving party has met its burden, the burden shifts to the nonmoving party to present sufficient evidence in specific, factual form to establish a genuine factual dispute. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest upon the mere allegations or denials of its pleadings. Rather, it must go beyond the pleadings and establish, through admissible evidence, that there is a genuine issue of material fact that must be resolved by the trier of fact. Salehpoor v. Shahinpoor, 358 F.3d 782, 786 (10th Cir. 2004). Unsupported conclusory allegations do not create an issue of fact. Finstuen v. Crutcher, 496 F.3d 1139, 1144 (10th Cir. 2007).
Title VII prohibits an employer from "discriminat[ing] against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." See 42 U.S.C. § 2000e-2(a)(1). This statutory provision prohibits subjecting an employee to a hostile work environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986); Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007). It is well settled that Title VII does not serve as a "general civility code" and is not meant to remedy "the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing." Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citation omitted); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) ("Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted "discrimina[tion] . . . because of . . . sex.") (emphasis and paraphrasing in original); Hernandez v. Valley View Hosp. Ass'n, 684 F.3d 950, 957 (10th Cir. 2012).
To establish a prima facie case of a sexually hostile work environment, a plaintiff must prove: (1) she is a member of a protected group; (2) she was subjected to unwelcome harassment; (3) the harassment was based on sex; and (4) due to the harassment's severity or pervasiveness, the harassment altered a term, condition, or privilege of the plaintiff's employment and created an abusive working environment. Harsco Corp., 475 F.3d at 1186. "[There] is not, and by its nature cannot be, a mathematically precise test" for a hostile work environment claim. Hernandez, 684 F.3d at 957 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993)); Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808 (7th Cir. 2000) ("[t]here is no `magic number' of incidents required to establish a hostile environment."). In determining whether the alleged sexual harassment rises to an actionable level, the Court must examine the totality of circumstances, which may include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance such as the nature of the sexual advances and the context in which the alleged incidents occurred." Harris, 510 U.S. at 23.
See id. at 21-22.
STS is not vicariously liable for Chase's harassment if it can establish the affirmative defense announced in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). See Kramer v. Wasatch Cty. Sheriff's Office, 743 F.3d 726, 745 (10th Cir. 2014). When the employee is not subject to a "tangible employment action,"
Viewing the evidence in its totality, the Court is persuaded that a reasonable trier of fact could conclude the conduct at issue was severe enough to create a hostile work environment. As noted above, the Court does not weigh the evidence at the summary judgment stage and must construe all facts and inferences in the light most favorable to Cunningham. Here, Chase's actions of pinning Cunningham to the ground, putting his hand up her shirt and pulling her pants down, rises to the same level of severity as sexual assault, and carried patent levels of sexual overtones. Even putting Chase's comments aside, the Supreme Court has repeatedly noted that a claim of discrimination based on the infliction of a hostile working environment exists if the conduct is severe
As the Seventh Circuit Court of Appeals observed: "[a]lthough less severe acts of harassment must be frequent or part of a pervasive pattern of objectionable behavior in order to rise to an actionable level, `extremely serious' acts of harassment do not." Smith v. Sheahan, 189 F.3d 529, 534 (7th Cir. 1999). This statement is in accord with the Supreme Court's instruction that an isolated incident will not amount to discriminatory changes in the terms and conditions of employment "unless extremely serious." Faragher, 524 U.S. at 788. Indeed, a number of federal courts, including the Tenth Circuit, have either allowed for or acknowledged the viability of sexual harassment claims based on conduct similar in its severity. See, e.g., Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir. 1998) (finding a "single incident" in which a customer pulled a waitress by the hair, grabbed her breast, and placed his mouth on it severe enough to create an actionable hostile work environment); Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1243-44 (10th Cir. 2001) (holding that "[w]hile there was only one incident, it was objectively abusive, dangerous, and humiliating, and [plaintiff] was so traumatized she was unable to return to work thereafter."); Gerald v. Locksley, 849 F.Supp.2d 1190, 1232 (D.N.M. 2011) ("Rape and other forms of severe sexual assault are the archetypical examples of single incidents which can establish a hostile work environment.").
The Court also finds that the Faragher/Ellerth defense does not shield STS from liability for two reasons. First, the evidence supports a finding that Cunningham suffered a tangible employment action. When she expressed interest in keeping her job, Cunningham was told instead to seek unemployment and was later terminated. Second, because Cunningham complained within a short time period, the evidence supports a finding that she did not "unreasonably fail" to take advantage of STS's complaint procedures. Subsequent decisions construing the Faragher/Ellerth defense, however, suggest that it may be available to a defendant even when a plaintiff promptly lodges a complaint. In McCurdy v. Arkansas State Police, which is cited by STS, the Eighth Circuit dealt with the problem of applying the Faragher/Ellerth defense in a case involving a single incident of harassment and where the employee promptly complained. 357 F.3d 762 (8th Cir. 2004), cert. denied, 543 U.S. 1121 (2005). The court first distinguished the facts of Faragher and Ellerth on the ground that, when "craft[ing] the two-prong affirmative defense to strict liability, [the Supreme Court] was not addressing an employer who takes swift and effective action the minute it learns of a single incident of supervisor sexual harassment." Id. at 771. Rather, both cases dealt with harassment that persisted without complaint over a long period of time.
The Eighth Circuit then held that, in light of the Supreme Court's earlier ruling in Meritor Savings Bank FSB v. Vinson, cited supra, an employer is not strictly liable for supervisor harassment absent a tangible employment action, the defendant was "entitled to a modified [Faragher/Ellerth] affirmative defense, despite the [defendant's] inability to prove the second element." McCurdy, 357 F.3d at 771-72. The Court reasoned that to deny the defendant the availability of the Faragher/Ellerth defense would be essentially to impose strict liability. Id. at 774.
However, in Harrison v. Eddy Potash, Inc., 248 F.3d 1014 (10th Cir. 2001), the Tenth Circuit noted it had rejected the "modified [Faragher/Ellerth] defense" and held that "there is no reason to believe that the `remarkably straightforward' framework outlined in Faragher and [Ellerth] does not control all cases in which a plaintiff employee seeks to hold his or her employer vicariously liable for a supervisor's sexual harassment"). See id. at 1025-26. Also, in Chapman v. Carmike Cinemas, 307 F. App'x 164 (10th Cir. 2009) (unpublished), cited by STS, the circuit court acknowledged McCurdy but noted its continued requirement that the employer prove the employee did not promptly report the single-incident offense before the employer may avail itself of the Faragher/Ellerth defense. See id. at 170.
Accordingly, although the facts support a finding that STS exercised reasonable care to prevent and correct any sexually harassing behavior, it has not shown by a preponderance of the evidence that Cunningham unreasonably failed to take advantage of any preventive or corrective opportunities to avoid harm otherwise. Viewing the evidence in the light most favorable to Cunningham, the Court finds the Faragher/Ellerth defense inapplicable under the circumstances. STS's Motion is denied on this issue.
In the Tenth Circuit, a plaintiff bringing a retaliation claim "must establish that retaliation played a part in the employment decision and may choose to satisfy this burden in two ways." Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011) (citing Fye v. Okla. Corp. Comm'n, 516 F.3d 1217, 1224-25 (10th Cir. 2008)). Under the "direct/mixed motives" approach, "the plaintiff may directly show that retaliatory animus played a `motivating part' in the employment decision." See id. If the plaintiff can prove that retaliatory animus was a motivating factor, the burden shifts to the employer to demonstrate that it would have taken the same action irrespective of the retaliatory motive. See id.
If the plaintiff cannot directly establish that retaliation played a motivating part in the employment decision, she may instead rely on the three-part framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to prove retaliation indirectly. Twigg, 659 F.3d at 998. Under the McDonnell Douglas/indirect approach, to establish a prima facie case of retaliation, a plaintiff must show (1) she engaged in protected opposition to discrimination, (2) a reasonable employee would have considered the challenged employment action materially adverse, and (3) a causal connection existed between the protected activity and the materially adverse action. See id.; Daniels v. United Parcel Service, Inc., 701 F.3d 620, 638 (10th Cir. 2012). "To be materially adverse, an action must be sufficient to dissuade a reasonable worker from making or supporting a charge of discrimination. This requires injury rising to a level of seriousness. While the employer's conduct need not affect the terms and conditions of employment, the inquiry is an objective one, and not based on a plaintiff's personal feelings." See id. (internal citations, quotations and paraphrasing omitted). If the plaintiff establishes a prima facie case, the employer must then offer a legitimate, nonretaliatory reason for its decision. Twigg, 659 F.3d at 998. Finally, once the employer has satisfied this burden of production, the plaintiff must show that the employer's reason is merely a pretext for retaliation. Id.
STS contends that Cunningham cannot make a prima facie case under McDonnell Douglas in that she cannot rebut STS's legimitate, non-retaliatory reasons for terminating her position, namely, that the Oklahoma City office was struggling financially and was suffering substantial losses.
To this end, Cunningham has not carried her burden of showing the proferred reasons for the termination of her position were mere pretext. STS's Motion on this issue is therefore granted.
To establish a prima facie case of gender discrimination, a plaintiff must show: (1) she is a member of a protected category; (2) she was otherwise qualified for the position at issue and was performing her job in a satisfactory manner; (3) an adverse action was taken against her; and (4) a similarly situated person outside the protected class was treated differently than she was treated. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Absent direct evidence of discrimination, claims of gender discrimination are analyzed under the McDonnell Douglas framework. Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 (10th Cir. 2013) (noting that "the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.") (citation omitted).
For the reasons stated above, the Court finds summary judgment should be granted on this issue. Cunningham makes no serious effort to contend that a similarly situated male (here, Chase) was treated differently than she was treated. To the extent Cunningham's response can be construed to make such an argument, such attempt is perfunctory at best and not sufficiently developed to warrant consideration.
Accordingly, Defendant's Motion for Summary Judgment is
