Dunlap v. Spec Pro, Inc.
Filing
64
ORDER. Defendant's Motion for Summary Judgment 21 is GRANTED in part and DENIED in part. Summary Judgment shall enter in favor of defendant Spec Pro, Inc. and against plaintiff Tonya Dunlap on her claim of retaliation. By Judge Philip A. Brimmer on 4/5/13.(pabsec)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-02451-PAB-MJW
TONYA DUNLAP,
Plaintiff,
v.
SPEC PRO, INC., a foreign corporation,
Defendant.
ORDER
This matter is before the Court on the Motion for Summary Judgment [Docket
No. 21] filed by defendant Spec Pro, Inc. The Court has jurisdiction pursuant to 28
U.S.C. § 1331.
I. BACKGROUND
Spec Pro is a corporation that contracts with the United States government to
provide mail services to Peterson Air Force Base in Colorado Springs, Colorado.
Plaintiff Tonya Dunlap worked for Spec Pro as a postal service clerk from June 25,
2005 until her termination on May 1, 2009. As a postal service clerk, Ms. Dunlap’s
duties included processing and distributing incoming and outgoing mail and packages.
When Spec Pro hires a new employee, it gives him or her a copy of its
Employment Manual Policies and Procedures (“employee handbook”). Docket No. 21-1
at 2, ¶ 8; Docket Nos. 21-3, 21-4. Ms. Dunlap testified that she received and read a
copy of the employee handbook when she began working for Spec Pro. Docket No. 21-
2 at 4-5 (Dunlap Dep. 33:21-25, 34:15-17). The employee handbook identifies, among
other things, several policies that employees may utilize to notify Spec Pro of work
related problems. One such policy is the “Issue Resolution Policy.” Docket No. 21-3 at
22 (SPEC 00038). The Issue Resolution Policy recommends that an employee first
contact his or her program manager to raise any work related problem. Id. If the
program manager is part of the problem, then the policy recommends that the
employee seek advice from a director or the Department of Human Resources (“HR”).
Id.; see also id. at 23 (SPEC 00039).
In addition to the issue resolution policy, the employee handbook has a policy
about “Harassment, Including Sexual Harassment.” Docket No. 21-5 at 10-11 (SPEC
00086-00087). The harassment policy provides specific examples of conduct
constituting sexual harassment as it is defined by the Equal Employment Opportunity
Commission (“EEOC”). Id. at 10 (SPEC 00086). The harassment policy prohibits all
forms of harassment and states that Spec Pro will investigate allegations of harassment
as well as take immediate disciplinary action against any employee found to have
harassed a co-worker. Id. In addition, the harassment policy states that all complaints
are kept reasonably confidential and reporting employees will not be subject to reprisal.
Id. The harassment policy identifies the following persons to whom a complaint can be
made: an employee’s immediate supervisor; the next higher level of management; the
program manager or director; and the President/Chief Operating Officer (“CEO”).
The sexual harassment policy states that complaints of harassment will be
handled through the company’s “Open Door Policy.” Id. at 11 (SPEC 00087). The
2
Open Door Policy states that the “employee is required to first seek assistance from his
Program Manager.” Id. at 12 (SPEC 00088). The policy notes that, if an employee’s
complaint involves his supervisor, the employee should discuss the matter with the
Program Manager or Director, or may request an “independent discussion” with
management outside the employee’s area. Id. An employee may also request that an
independent observer be present at a meeting with any level of management. Id. If an
employee is not satisfied with the outcome of a complaint, the Open Door Policy allows
the employee to appeal to a higher level of management. Id. at 13 (SPEC 00089).
In August 2005, shortly after she began working for Spec Pro, Ms. Dunlap
alerted Jim Weis and Robert DeYoung, two of her supervisors, that a co-worker by the
name of Jason had touched her inappropriately. Docket No. 21-2 at 7-8 (Dunlap Dep.
39:22-40:4). Spec Pro investigated her complaint and terminated Jason’s employment.
Id. at 12-13 (Dunlap Dep. 44:21-24, 45:16-19). Ms. Dunlap testified that Spec Pro’s
investigation took approximately two weeks from reporting to conclusion. Id.
Ms. Dunlap said that, immediately after Jason’s termination, she was not subject
to any form of sexual harassment. However, approximately three weeks after Jason’s
termination, the sexual harassment started up again. Ms. Dunlap testified that she was
harassed by Mr. DeYoung, Mr. Weis, Mike Burkey, Al Garcia, and Dave Bidishi.1 Ms.
Dunlap said that Mr. DeYoung repeatedly asked her to sleep with him over the course
of four years, Docket No. 34-1 at 12 (Dunlap Dep. 47:16-18), and Mr. Weis commented
1
Dave Bidishi passed away sometime after the events giving rise to this litigation.
Docket No. 34-1 at 18 (Dunlap Dep. 16:3-4).
3
about her breasts and said that she could not drive a work truck because she was a
female. Id. at 13 (Dunlap Dep. 49:15-19).
Ms. Dunlap said that Mr. Burkey sent her inappropriate text messages and
emails, which included comments about Ms. Dunlap’s sexual orientation. Id. at 15
(Dunlap Dep. 65:11-14). Mr. Garcia, on the other hand, commented about Ms.
Dunlap’s weight and made misogynistic statements such as, she needed to sweep and
mop the office floor because that was “women’s work.” Id. at 14 (Dunlap Dep. 61:1822, 62:6-10); id. at 18 (Dunlap Dep. 16:13-22). As for Mr. Bidishi, Ms. Dunlap claims
that he would call her a “fucking bitch,” walk in the bathroom when Ms. Dunlap was
using it, “grab [her] ass, and think it was funny,” and repeatedly told her that he wanted
to sleep with her. Id. at 14 (Dunlap Dep. 64:12-21). Furthermore, Ms. Dunlap testified
that the men at the company traded sexual jokes, had graphic discussions about their
sexual liaisons, and rated women passing by the company based on their “fuckability.”
Id. at 15 (Dunlap Dep. 65:25-66:8). Ms. Dunlap said that this conduct was “almost an
everyday occurrence.” Id. at 14 (Dunlap Dep. 64:20-21).
Ms. Dunlap testified that she reported these events to several Spec Pro
employees. First, she told Mary Christine Vargas about Mr. DeYoung’s sexual
harassment.2 Id. at 12 (Dunlap Dep. 47:21-25). At the time, Ms. Vargas was the
Administrative Manager. Docket No. 21-6 at 1. Ms. Dunlap also testified that she
2
Ms. Vargas testified that Ms. Dunlap first told her of sexual harassment during a
phone call on April 8, 2009. Docket No. 21-6 at 2, ¶¶ 6-7.
4
discussed the sexual harassment with Debbie Carrick, an employee at Glacier
Technologies, one of Spec Pro’s sister companies.3 Docket No. 21-1 at 4, ¶ 24.
In addition, Ms. Dunlap claims that she told Scott Albertson, a Spec Pro program
manager, about the sexual harassment between 2006 and 2008. Ms. Dunlap testified
that, sometime in 2006, she spoke with Mr. Albertson over the phone about the sexual
harassment. Docket No. 34-1 at 13 (Dunlap Dep. 49:20-25). During this conversation,
Mr. Albertson had Ms. Dunlap on speaker phone even though Mr. Weis was in Mr.
Albertson’s office. Id. She also testified that, sometime in 2007, she spoke with Mr.
Albertson about the harassment in the presence of Don Patterson and Regina Clayton,
two of her co-workers. Docket No. 21-2 at 19 (Dunlap Dep. 58:19-22). Ms. Dunlap
states that she raised the issue of sexual harassment with Mr. Albertson again in
October 2008. Docket No. 34-1 at 5 (Dunlap Dep. 74:11-14 (amended deposition
testimony)). Ms. Dunlap claims that she had a book in which she kept track of the
sexual harassment incidents, but that she gave this book to Mr. Albertson because he
told her he would investigate her claims. Id. at 16 (Dunlap Dep. 48:5-8). Mr. Albertson
denies ever receiving such a book from Ms. Dunlap. Docket No. 35-2 at 1. Ms. Dunlap
states that, despite all of her complaints to Mr. Albertson, Spec Pro took no corrective
action to prevent or correct the harassing conduct.
Ms. Dunlap did not complain about the sexual harassment to a program
manager other than Mr. Albertson and did not report the incidents to a Spec Pro
director or CEO. Docket No. 21-2 at 23 (Dunlap Dep. 77:5-14). In addition, Ms. Dunlap
3
Ms. Carrick is responsible for quality control and quality assurance issues and is
not a program manager, director, or an executive. Docket No. 21-1 at 4, ¶ 24.
5
did not request a meeting with a manager from an area outside of her division. Id. at 24
(Dunlap Dep. 78:1-10).
On December 3, 2008, Ms. Dunlap was injured in a non work-related car
accident. Docket No. 21-2 at 25 (Dunlap Dep. 79:10-19). As a result of the car
accident, she sustained injuries and had to take extended leave from work. Id. Spec
Pro maintains an insurance policy that provides employees with short-term and longterm disability benefits. Docket No. 21-1 at 5-12. Spec Pro’s short-term benefits allow
an employee to take up to twelve weeks of job-protected leave. Id. at 2, ¶ 12. An
employee may also qualify for long-term disability benefits, but taking long-term
disability benefits results in an employee being placed on “inactive” status. Id. at 3,
¶ 17. An employee may return to active status once he or she is no longer on long-term
disability benefits, but must re-apply for an available position. Id.; Docket No. 21-5 at 2
(SPEC 00078).
After her car accident, Ms. Dunlap took short-term disability leave between
December 3, 2008 and March 3, 2009. Docket No. 21-1 at 2, ¶ 12. Once Ms. Dunlap
exhausted the twelve weeks available under Spec Pro’s short-term disability policy,
Spec Pro allowed her to take a leave of absence beginning on March 3, 2009. See
Docket No. 21-5 at 2-3. On April 2, 2009, Ms. Dunlap presented Spec Pro with a
release from her doctor, which enabled her to return to work on April 13, 2009 with a
two month 10-pound lifting restriction. Docket No. 21-5 at 22; Docket No. 21-2 at 26
(Dunlap Dep. 138:17-22). To perform the essential duties of a postal service clerk, an
employee must have the ability to lift and carry between 70 and 75 pounds. Docket No.
6
21-2 at 24-25 (Dunlap Dep. 78:25-79:9); Docket No. 21-1 at 2, ¶ 7. On April 8, 2009,
Ms. Dunlap called Ms. Vargas and told her that she was concerned about losing her job
because of the 10-pound lifting restriction. Docket No. 21-6 at 1, ¶ 4. Ms. Vargas told
Ms. Dunlap that her employment status was dependent on the terms of the work
release. Id. at ¶ 5. During this phone conversation, Ms. Dunlap also raised allegations
of sexual harassment she experienced on the job. Id. at 2, ¶¶ 6-7.
On April 10, 2009, Spec Pro sent Ms. Dunlap a letter informing her that, because
of her doctor’s restrictions, she could not perform the essential functions of her position.
Docket No. 21-5 at 23. The letter indicated that she would be eligible for long-term
disability. Id. On May 1, 2009, Spec Pro changed Ms. Dunlap’s status to inactive longterm disability retroactive to March 3, 2009. Docket No. 21-1 at 3, ¶¶ 16, 18. Ms.
Dunlap received long-term disability benefits from March 3, 2009 until June 10, 2010.
Id. at ¶ 22. On May 28, 2009, Spec Pro sent Ms. Dunlap a letter advising her that, once
her restrictions were removed, she could re-apply to the company assuming she
qualified for an available position. Docket No. 21-5 at 24; Docket No. 21-2 at 29
(Docket No. 142:21-24). Ms. Dunlap, however, did not re-apply. Docket No. 21-3 at 4
(Dunlap Dep. 147:15-17).
As a result of Ms. Dunlap’s April 2009 allegations of sexual harassment, Spec
Pro sent an investigative team to Peterson Air Force Base. Docket No. 21-6 at 2, ¶ 8.
Spec Pro’s investigative team found that employees and managers at Peterson Air
Force Base, including Ms. Dunlap, used inappropriate sexual language. Id. Following
the investigation, Mr. Weis and Mr. DeYoung received letters of reprimand. Docket No.
21-1 at 4, ¶ 25; Docket No. 21-6 at 2, ¶ 9. In addition, on June 10, 2009, Jim Oakes,
7
director of HR, conducted sexual harassment training for Spec Pro employees and
managers at Peterson Air Force Base. Docket No. 21-1 at 1, ¶¶ 4-5.
Ms. Dunlap filed a charge of discrimination with the Colorado Civil Rights
Division and the EEOC. Docket No. 1 at 2, ¶ 9. On June 22, 2011, Ms. Dunlap
received a Notice of Right to Sue from the EEOC. Id. On September 16, 2011, she
filed this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
alleging (1) discrimination on the basis of sex, (2) retaliation for participating in
protected activity, and (3) reckless and wanton gender discrimination in violation of 42
U.S.C. § 1981a. Docket No. 1 at 2-3.
II. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
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.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if
under the relevant substantive law it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
1997).
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III. ANALYSIS
A. Hostile Work Environment
Under Title VII, it is unlawful for an employer to “discriminate against any
individual with respect to [her] compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).4
Sexual harassment that is sufficiently serious qualifies as unlawful sex discrimination
under Title VII. Meritor Savs. Bank v. Vinson, 477 U.S. 57, 67 (1986). Ms. Dunlap can
establish a claim of a hostile work environment based on unlawful sex discrimination by
showing (1) that she was discriminated against because of her sex, and (2) that the
discrimination was sufficiently severe or pervasive so as to alter her conditions of
employment. Morris v. City of Colo. Springs, 666 F.3d 654, 664 (10th Cir. 2012). To
establish a hostile work environment claim, Ms. Dunlap must show that the environment
was both “objectively and subjectively hostile or abusive.” Id. (citation omitted).
Ms. Dunlap identifies multiple incidents to show that she was discriminated
against because of her sex. For example, Mr. Weis discussed her weight, breasts, and
said that she could not drive the work truck because of her gender. Id. at 13 (Dunlap
Dep. 49:15-19). Mr. DeYoung propositioned Ms. Dunlap for sex throughout the course
of her four year employment at the company. Id. at 12 (Dunlap Dep. 47:16-18). Mr.
Garcia made several comments about her need to “clean” and “mop” the office because
4
Spec Pro argues that Ms. Dunlap raises claims based on her sexual orientation,
which are not actionable under Title VII. Docket No. 21 at 9-10. Although some of Ms.
Dunlap’s testimony may relate to comments by her co-workers about her sexual
orientation, Docket No. 21-3 at 8-10, the Court finds that the majority of her allegations
are related to sexual harassment based on her sex.
9
this constituted “women’s work.” Docket No. 34-1 at 14 (Dunlap Dep. 62:5-10); id. at 18
(Dunlap Dep. 16:13-17). Based on this evidence, the Court finds that Ms. Dunlap has
sufficiently shown that the sexually oriented comments directed at her occurred
primarily because of her sex. Bertsch v. Overstock.com, 684 F.3d 1023, 1027 (10th
Cir. 2012) (to state a prima facie case, plaintiff must show that she was “targeted for
harassment” because of her sex).
To establish that her work place was hostile, Ms. Dunlap must provide evidence
showing that the workplace was “permeated with discriminatory intimidation, ridicule,
and insult, that [was] sufficiently severe or pervasive to alter the conditions of [her]
employment and create an abusive working environment.” Herrera v. Lufkin Indus.,
Inc., 474 F.3d 675, 680 (10th Cir. 2007). To satisfy this prong, Ms. Dunlap presents
evidence that her male co-workers and supervisors routinely engaged in conduct that
was degrading to women. She states that her male co-workers and supervisors rated
women based on their “fuckability,” Docket No. 34-1 at 15 (Dunlap Dep. 65:25), sent
sexually explicit emails, id. (Dunlap Dep. 66:13-15), referred to female customers as
“bitches and whores,” id. at 17 (Dunlap Dep. 157:1-6), and traded sexual jokes,
fantasies, and pictures in her presence on a daily basis. Docket No. 21-3 at 6 (Dunlap
Dep. 160:1-9). In addition, Ms. Dunlap testified that the sexual harassment was
sometimes physical as Mr. Bidishi would “grab [her] ass” and try to enter the bathroom
while she was using it. Docket No. 34-1 at 14 (Dunlap Dep. 64:18-20). Based on this
evidence, the Court finds that Ms. Dunlap has presented sufficient evidence to show
that she was subject to objectively severe harassment because the complained of
10
conduct was humiliating, degrading, and sometimes physically threatening. Bertsch,
684 F.3d at 1028. Moreover, Ms. Dunlap established that the harassment was
pervasive because she claims that it was directed towards her every day. Id. Although
Ms. Dunlap does not state with particularity on which dates the harassment occurred,
the Court finds that her testimony about its frequency is sufficient to raise a triable issue
of fact about whether her co-workers’ conduct created an objectively hostile work
environment. Id.
With regard to the subjective element, there is evidence that Ms. Dunlap
participated in some of the sexual jokes with her co-workers. Docket No. 21-3 at 5-6
(Dunlap Dep. 157:19-160:5). However, the record shows that Ms. Dunlap objected to
her co-workers’ sexually explicit pictures, commentary, and unwanted touching. In
addition, Ms. Dunlap’s subjective repulsion to her co-workers’ conduct is further
evidenced by the fact that she raised three separate complaints with Mr. Albertson.
Considering Ms. Dunlap’s description of the offensive conduct to which she was
exposed and her complaints about her co-workers’ behavior, it is not unreasonable she
believed that her co-workers’ conduct made her job more difficult. Bertsch, 684 F.3d at
1028. Moreover, although there is no evidence about her work performance, Ms.
Dunlap is not required “to show that the discriminatorily abusive work environment
seriously affected her psychological well-being or that it tangibly impaired her work
performance.” Morris, 666 F.3d at 665 (citation omitted).
Accordingly, the Court finds that Ms. Dunlap has provided enough evidence to
raise a triable issue of fact as to whether the behavior of her co-workers created a
sexually hostile work environment that interfered with her work performance. The Court
11
next addresses whether Ms. Dunlap can hold Spec Pro liable for the sexually harassing
conduct of its employees.
B. Employer Liability
The Supreme Court has ruled that employers are not automatically liable for
sexual harassment perpetrated by their employees. Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
The Court, however, held that employers may be liable for the conduct of their
employees under two theories: (1) negligence and (2) vicarious liability. Helm v. Kan.,
656 F.3d 1277, 1285 (10th Cir. 2011).
Under the negligence theory, an employer is liable only “if it knew or should have
known” about the sexually harassing conduct of a non-supervisory employee and failed
to stop it. Ellerth, 524 U.S. at 759; Bertsch, 684 F.3d at 1027. By contrast, where the
harassment is attributed to a supervisor with immediate authority over the employee, an
employer is shielded from vicarious liability if the supervisor’s sexual harassment does
not culminate in a tangible employment action and the employer can prove the twoprongs of what is known as the Faragher/Ellerth defense. Ellerth, 524 U.S. at 765;
Helm, 656 F.3d at 1285. Ms. Dunlap does not specify under which theory she brings
her claim. Because her claim involves both non-supervisory and supervisory coworkers, the Court will address both theories of liability.
1. Negligence Liability
As noted above, an employer can be liable for a non-supervisory employee’s
harassing conduct if the employer “knew or should have known about the conduct and
12
failed to stop it.” Bertsch, 684 F.3d at 1027. To prove this liability, Ms. Dunlap must
establish that (1) the employer had actual knowledge or constructive knowledge of the
harassment and (2) the employer’s remedial and preventative responses to the
harassment were inadequate. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673 (10th
Cir. 1998).
With regard to the first element, actual knowledge is established where the
plaintiff has reported harassment to a management-level employee. Adler, 144 F.3d at
673. Constructive knowledge may be inferred when the harassment is “highly
pervasive” and should, in the exercise of reasonable care, have been discovered by
management-level employees. Id. Here, it is undisputed that Ms. Dunlap reported the
sexual harassment by Mr. Garcia, Mr. Bidishi, and Mr. Burkey to Mr. Albertson, a
program manager. Docket No. 34-1 at 14 (Dunlap Dep. 64:9-20); id. (Dunlap Dep.
61:15-22). Pursuant to the employee handbook, Mr. Albertson is an employee
authorized to receive and respond to complaints of sexual harassment. Adler, 144 F.3d
at 673. Because Mr. Albertson is a designated person who can handle claims of
harassment, the Court finds that Spec Pro knew or should have known about Ms.
Dunlap’s complaints of sexual harassment.
With regard to the second element, an employer’s response is adequate if it
takes remedial and preventative measures that are “reasonably calculated to end the
harassment.” Adler, 144 F.3d at 676. Reasonably calculated responses include a
prompt investigation, proactive solicitation of complaints, employee transfers, or
warnings to offending employees. Id. Here, it is undisputed that Mr. Albertson took no
13
action to investigate Ms. Dunlap’s claims of harassment. Because Mr. Albertson knew
of the alleged sexual harassment and responded indifferently, Ms. Dunlap has satisfied
the second prong of this test. Id.
The Court finds that Ms. Dunlap has sufficiently raised a genuine issue of fact
about whether Spec Pro can be held liable for the conduct of its employees under a
negligence theory. Accordingly, Spec Pro is not entitled to summary judgment on
plaintiff’s negligence claim.
2. Vicarious Liability
An employer may be vicariously liable “for actionable sexual harassment
perpetrated by a supervisor with immediate (or successively higher) authority over the
victimized employee in two situations.” Helm, 656 F.3d at 1285; Ellerth, 524 U.S. at
765; Faragher, 524 U.S. at 807. First, an employer may be liable if a supervisor’s
sexually harassing conduct culminates in a tangible adverse employment action for the
employee. Id. In this situation, the employer is strictly liable and it does not have an
affirmative defense to vicarious liability. Pinkerton v. Colo. Dep’t of Transp., 563 F.3d
1052, 1059 (10th Cir. 2009). Second, in the absence of a direct tangible adverse
employment action, the employer is liable for a severe and pervasive hostile work
environment unless it can prove what is known as the Faragher/Ellerth defense by a
preponderance of the evidence. Helm, 656 F.3d at 1285. To establish the
Faragher/Ellerth defense, an employer must come forward with evidence: (1) that it
exercised reasonable care to prevent and promptly correct any sexually harassing
14
behavior, and (2) that the plaintiff employee unreasonably failed to take advantage of
any preventive or corrective opportunities provided by the employer. Id.
Ms. Dunlap argues that Spec Pro is strictly liable because the actions of Mr.
Weis and Mr. DeYoung culminated in her termination. Docket No. 34 at 11. In
addition, Ms. Dunlap contends that Spec Pro is not entitled to the Faragher/Ellerth
defense because its policies are not effective. Id. at 10-12.
a. Whether Mr. Weis and Mr. DeYoung’s Harassment
Culminated in Ms. Dunlap’s Termination
Ms. Dunlap argues that strict liability applies because Spec Pro terminated her
employment as a result of Mr. Weis and Mr. DeYoung’s sexual harassment. Docket
No. 34 at 11.
In order to show that her supervisors’ actions culminated in her termination, Ms.
Dunlap must “establish a strong causal nexus between the supervisor’s harassment
and the tangible employment action.” Helm, 656 F.3d at 1287. Here, Ms. Dunlap offers
no evidence that connects the actions of Mr. Weis and Mr. DeYoung to her termination.
The evidence on summary judgment is that Ms. Dunlap’s non work-related automobile
accident prevented her from performing her job functions. She was placed on shortterm disability leave until March 2009, when those benefits were exhausted. In April
2009, Ms. Dunlap’s doctor conditioned her return to work upon a weight bearing
restriction. The restriction prevented Ms. Dunlap from performing the essential
functions of her position. As a result of the restriction, Spec Pro transitioned her to
long-term disability status and transferred her to inactive status effective May 1, 2009.
Docket No. 21-1 at 3, ¶¶ 16, 18. Ms. Dunlap presents no evidence to rebut Spec Pro’s
15
claim that it “handled Ms. Dunlap’s . . . benefits consistently with its employees in
similar situations.” Id. at ¶ 21. Without evidence of a strong causal connection
between her termination and the conduct of Mr. Weis and Mr. DeYoung, no reasonable
jury could conclude that her supervisors’ conduct culminated in her termination.
Pinkerton, 563 F.3d at 1059. Therefore, Spec Pro is entitled to assert the
Faragher/Ellerth affirmative defense to Ms. Dunlap’s claim of sexual harassment.
Helm, 656 F.3d at 1287.
b. Application of the Faragher/Ellerth Defense
As noted above, to establish the Faragher/Ellerth defense, an employer must
come forward with evidence: (1) that it exercised reasonable care to prevent and
promptly correct any sexually harassing behavior, and (2) that the plaintiff employee
unreasonably failed to take advantage of any preventive or corrective opportunities
provided by the employer. Helm, 656 F.3d at 1287.
i. Whether Spec Pro Exercised Reasonable Care to
Prevent and Correct Promptly any Sexually
Harassing Behavior
The first element of the Faragher/Ellerth defense requires that an employer
exercise reasonable care to: (1) prevent sexual harassment and (2) correct promptly
any sexual harassment that has occurred. Pinkerton, 563 F.3d at 1062.
The Tenth Circuit has held that an employer can satisfy the prevention
requirement by showing the existence of a valid sexual harassment policy. Helm, 656
F.3d at 1288. Here, Spec Pro implemented a sexual harassment policy that (1)
provides a clear explanation of prohibited sexually harassing conduct, (2) identifies
16
multiple avenues for employees to raise complaints, (3) protects employees from
retaliation, (4) requires Spec Pro to investigate all reports of sexual harassment, (5)
gives reasonable assurances of confidentiality, and (6) indicates that Spec Pro will take
immediate and appropriate corrective action. Docket No. 21-5 at 10-12 (SPEC 0008600088). Spec Pro distributes this sexual harassment policy to its employees through
the employee handbook, and Ms. Dunlap testified that she read the sexual harassment
policy. Docket No. 21-2 at 22 (Dunlap Dep. 76:1-5). Based on the foregoing, the Court
finds that Spec Pro has a facially effective anti-harassment policy sufficient to satisfy
the prevention requirement.5 See Anderson v. Wintco, Inc., 314 F. App’x 135, 139
(10th Cir. 2009).
The Tenth Circuit has found that an employer can satisfy the correction element
by showing that it acted promptly to investigate or address a complaint of harassment.
Helm, 656 F.3d at 1290. The “most significant immediate measure an employer can
take in response to a sexual harassment complaint is to launch a prompt investigation
to determine whether the complaint is justified.” Id. (citing Swenson v. Potter, 271 F.3d
1184, 1192 (9th Cir. 2001)).
5
The EEOC provides that a facially adequate sexual harassment policy should
contain, at a minimum, the following elements: (1) a clear explanation of prohibited
conduct; (2) assurance that employees who make complaints of harassment will be
protected against retaliation; (3) a clearly described complaint process that provides
accessible avenues of complaint; (4) assurance that the employer will protect the
confidentiality of harassment complaints; (5) a complaint process that provides a
prompt and impartial investigation; and (6) assurance that the employer will take
immediate and appropriate corrective action when it determines that harassment has
occurred. See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful
Harassment by Supervisors, § V.C.1, 1999 WL 33305874, at *9 (June 18, 1999) (listing
elements of an effective anti-harassment policy and complaint procedure).
17
The record shows several instances where Spec Pro took immediate action
when informed of allegations of sexual harassment. For example, in 2005 Spec Pro
terminated an employee who Ms. Dunlap accused of inappropriate physical contact.
The employee’s termination occurred within two weeks of her complaint. Docket No.
21-2 at 12-13 (Dunlap Dep. 44:21-25, 45:16-19). In addition, after Ms. Dunlap informed
Ms. Vargas of sexual harassment in April 2009, Spec Pro sent a team to the mail center
at Peterson Air Force Base in May 2009. Docket No. 21-6 at 2, ¶ 8. The investigation
resulted in Mr. DeYoung and Mr. Weis receiving letters of reprimand. In addition, Mr.
Oakes conducted a sexual harassment training session for Spec Pro employees and
managers at Peterson Air Force Base. Docket No. 21-1 at 4, ¶ 26. Based on the
foregoing, the Court finds that Spec Pro’s prompt action to correct at least two
complaints of sexual harassment satisfies the correction requirement. Helm, 656 F.3d
at 1291.
Because Spec Pro provided evidence that it takes prompt action to prevent and
correct claims of sexual harassment of which it is aware, the Court must next determine
whether it was unreasonable for Ms. Dunlap to raise her complaints with Mr. Albertson
even though he was unresponsive.
ii. Whether Ms. Dunlap Failed to take Advantage of
Preventive or Corrective Opportunities or to Avoid
Harm Otherwise
Under this element, Spec Pro must demonstrate that Ms. Dunlap unreasonably
failed to take advantage of its policies. Helm, 656 F.3d at 1291. Spec Pro argues that,
even assuming Ms. Dunlap raised her complaints with Mr. Albertson, she did not
18
reasonably avail herself of its sexual harassment policy because she did not complain
to a director or to HR once it became clear that Mr. Albertson would not take corrective
action. Docket No. 21 at 15-16. Spec Pro contends that, given the availability of
alternative venues to raise her complaints, it was unreasonable for Ms. Dunlap to
continue to raise her concerns with Mr. Albertson. Id. at 16. In response, Ms. Dunlap
claims that it was reasonable for her not to raise her complaints with other program
managers and directors because of Mr. Albertson’s failure to act. Docket No. 34 at 1011. She argues that she was not guaranteed an effective response and her
employment was threatened by Mr. Weis and Mr. DeYoung. Id.
The Court finds that whether it was unreasonable for Ms. Dunlap not to raise her
complaints of sexual harassment with other program managers or directors at Spec Pro
raises a disputed issue of fact. Given that her immediate supervisors participated in the
harassing behavior, Ms. Dunlap notified an alternative management representative
under the Open Door Policy. Moreover, Mr. Albertson allegedly lost Ms. Dunlap’s book
that contained the dates of the sexual harassment incidents, making it uncertain
whether raising the issue with another program manager would lead to tangible results.
Spec Pro cites no cases that obligates an employee to exhaust every option identified
in the employer’s handbook, especially when the handbook does not require
exhaustion. See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 104-05 (2d Cir.
2010) (denying a company’s Faragher/Ellerth defense and noting that victims of sexual
harassment are not required to “go from manager to manager until they find someone
who will address their complaints”). Because the reasonableness of Ms. Dunlap’s
actions raises a disputed issue of fact, the Court finds that Spec Pro is not entitled to
19
summary judgment on its Faragher/Ellerth affirmative defense. Pinkerton, 563 F.3d at
1064.
C. Retaliation
Title VII forbids retaliation against an employee because she has opposed any
practice made unlawful by Title VII or “participated . . . in an investigation, proceeding,
or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Where there is no direct
evidence of retaliation, as is the case here, the burden-shifting analysis established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) applies. See Khalik
v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012) (a plaintiff can prove
retaliation “by relying on the three-part McDonnell Douglas framework”) (internal
quotation marks omitted). Under the McDonnell Douglas framework, the plaintiff bears
the initial burden of establishing a prima facie case of discrimination, whereupon the
burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the
termination, and then plaintiff must show that the employer’s stated reason is
pretextual. Id.
To establish a prima facie case of discrimination, Ms. Dunlap must prove that (1)
she engaged in protected activity, (2) a reasonable employee would have found the
challenged action materially adverse, and (3) there is a causal connection between the
protected activity and the adverse employment action. Argo v. Blue Cross & Blue
Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006). The Court finds that Ms.
Dunlap has established a prima facie case of retaliation. First, she engaged in
protected activity when she told Ms. Vargas about sexual harassment in April 2009.
20
Second, her termination qualifies as an adverse employment action. Id. (noting that
“materially adverse” action is one that would dissuade an employee from making a
complaint). Third, she was terminated less than two months after raising a complaint of
sexual harassment. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th
Cir. 1999) (noting that a period of six weeks gives rise to a rebuttable inference of a
causal connection); Annett v. Univ. of Kansas, 371 F.3d 1233, 1239-40 (10th Cir. 2004)
(holding that a period of up to two to three months demonstrated causation for the
purposes of establishing a prima facie case under Title VII). The burden therefore
shifts to Spec Pro to articulate a legitimate, nondiscriminatory reason for Ms. Dunlap’s
termination.
Spec Pro argues that it terminated Ms. Dunlap’s employment because she
exhausted her short-term disability benefits and could not perform essential work duties
upon her return due to her weight bearing restrictions. Docket No. 21 at 17-18. Spec
Pro further argues that Ms. Dunlap cannot establish causation because she did not reapply for a position once her restrictions were removed. The Court finds that Spec Pro
has identified a legitimate nondiscriminatory reason for termination, namely, Ms.
Dunlap’s inability to perform the essential functions of her position because of the
weight bearing restriction.
To show pretext, Ms. Dunlap must produce evidence of “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could rationally
find them unworthy of credence and hence infer that the employer did not act for the
asserted non-discriminatory reasons.” Argo, 452 F.3d at 1203. Ms. Dunlap claims that
21
Spec Pro’s reason for termination was pretextual because four other Spec Pro
employees who did not complain of sexual harassment were accommodated for their
long-term injuries. Docket No. 34 at 12-13. Specifically, Ms. Dunlap claims that Mr.
Patterson, Mr. Garcia, Ms. Clayton, and Jeff Caraway were not terminated even though
they had long-term injuries and work restrictions. This evidence, however, is
unpersuasive.
A plaintiff may show pretext by providing evidence that she was treated
differently from other similarly situated employees. Kendrick v. Penske Transp. Servs.,
Inc., 220 F.3d 1220, 1232 (10th Cir. 2000). Individuals are considered “similarly
situated” when they deal with the same supervisor and are subjected to the same
standards governing performance. Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th
Cir.1997). To show disparate treatment, a plaintiff must show that she was similarly
situated to her comparators in “all relevant respects,” and courts traditionally “compare
the relevant employment circumstances, such as work history and company policies” to
determine whether employees are similarly situated. McGowan v. City of Eufala, 472
F.3d 736, 745 (10th Cir. 2006) (citation omitted). Here, Ms. Dunlap does not sufficiently
establish that she is similarly situated to Mr. Patterson, Mr. Garcia, Ms. Clayton, and Mr.
Caraway.
First, Ms. Dunlap does not establish whether these employees exhausted their
short-term disability benefits prior to the accommodation. Ms. Dunlap testified that she
did not know of any individuals who were accommodated after they exhausted their sick
leave allotment. Docket No. 34-1 at 10 (Dunlap Dep. 153:2-4). Second, she does not
establish whether these employees were placed on inactive status and later re-applied
22
with Spec Pro. Third, she fails to establish that these employees suffered from non
work-related injuries.6 See McGowan, 472 F.3d at 745. Accordingly, Ms. Dunlap fails
to provide enough evidence to show that she is similarly situated to these employees.
Given that Ms. Dunlap does not establish that Spec Pro treated her any
differently than other similarly situated employees, she does not show that Spec Pro’s
reason for her termination was pretextual. Instead, the undisputed evidence
establishes that she was given the full extent of her short-term disability benefits, Spec
Pro transitioned her to long-term disability because of the weight bearing restrictions,
and she did not re-apply for a position with Spec Pro. Docket No. 21-1 at 3, ¶ 22.
Based on the foregoing, Ms. Dunlap fails to raise any genuine inconsistencies,
incoherencies, or contradictions with Spec Pro’s legitimate non-discriminatory reason
for termination and no reasonable jury could conclude that Ms. Dunlap’s termination
was retaliatory. Argo, 452 F.3d at 1204. Accordingly, Spec Pro is entitled to summary
judgment on Ms. Dunlap’s retaliation claim.
D. Punitive Damages
Punitive damages may be awarded under Title VII. See 42 U.S.C.
§ 1981a(b)(1). To recover punitive damages, a plaintiff must show that the employer
engaged in discriminatory practices with malice or with reckless indifference to the
employee’s federally protected rights. Harsco Corp. v. Renner, 475 F.3d 1179, 1189
(10th Cir. 2007). Malice and reckless indifference can be shown by evidence that the
6
It is undisputed that Mr. Patterson and Ms. Clayton both suffered from workrelated injuries. Docket No. 35-4 at 2-3 (Dunlap Dep. 148:18-20, 149:19-23). She does
not establish whether Mr. Garcia and Mr. Patterson suffered from work-related injuries.
Id. at 3-5 (149:24-151:2).
23
employer “acted in the face of a perceived risk that its actions would violate federal
law.” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535-36 (1999). However, an
employer may not be vicariously liable for punitive damages if a managerial employee’s
actions were contrary to the employer’s good-faith effort to comply with Title VII. Id. at
545-46; see also Deters v. Equifax Credit Information Servs., 202 F.3d 1262, 1271
(10th Cir. 2000). To avail itself of the good-faith compliance standard, an employer
must: (1) adopt anti-discrimination policies; (2) make a good faith effort to educate its
employees about these policies and the statutory prohibitions; and (3) make good faith
efforts to enforce an anti-discrimination policy. McInnis v. Fairfield Communities, Inc.,
458 F.3d 1129, 1138 (10th Cir. 2006); Cadena v. Pacesetter Corp., 224 F.3d 1203,
1210 (10th Cir. 2000). Because the good-faith compliance standard focuses on the
actions of the employer, an employee is not required to follow the employer’s
procedures for reporting harassment or retaliation in order to receive punitive damages.
McInnis, 458 F.3d at 1140. Thus, even if an employer “adduces evidence showing it
maintains on paper a strong non-discrimination policy and makes good faith efforts to
educate its employees about that policy and Title VII, a plaintiff may still recover
punitive damages if she demonstrates the employer failed to adequately address Title
VII violations of which it was aware.” Cadena, 224 F.3d at 1210.
Because there are disputed facts that underlie Ms. Dunlap’s negligence claim,
Spec Pro’s Faragher/Ellerth affirmative defense, and whether Spec Pro satisfied the
good-faith compliance standard, the Court finds that Spec Pro is not entitled to
24
summary judgment on Ms. Dunlap’s request for punitive damages. McInnis, 458 F.3d
at 1139-40.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendant’s Motion for Summary Judgment [Docket No. 21] is
GRANTED in part and DENIED in part. It is further
ORDERED that summary judgment shall enter in favor of defendant Spec Pro,
Inc. and against plaintiff Tonya Dunlap on her claim of retaliation.
DATED April 5, 2013.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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