Kane v. Honeywell Hommed, LLC et al
ORDER. Defendant Honeywell HomMed, LLC's 53 Motion for Summary Judgment is granted in part. Plaintiff Mary Kane's claims against HomMed for a hostile work environment and retaliatory termination in violation of Title VII are dismissed. The Court declines to exercise supplemental jurisdiction over plaintiff's claim against HomMed for intentional infliction of emotional distress and will therefore not rule on this aspect of the motion. the Court declines to exercise supplemen tal jurisdiction over plaintiff's claims against Mr. Duesterhoeft for intentional infliction of emotional distress and intrusion on seclusion and will therefore not rule on Defendant Duesterhoeft's 52 Motion for Summary Judgment and Brief in Support. This case is remanded to the District Court for the County of Boulder, Colorado, where this case was filed as No. 2011cv941. By Judge Philip A. Brimmer on 7/30/13.(mnfsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-03352-PAB-KLM
MARY KANE, an individual,
HONEYWELL HOMMED, LLC, and
This matter is before the Court on Defendant Honeywell HomMed, LLC’s Motion
for Summary Judgment [Docket No. 53] and Defendant Duesterhoeft’s Motion for
Summary Judgment and Brief in Support [Docket No. 52]. The Court’s jurisdiction is
based on 28 U.S.C. §§ 1331 and 1337. The facts of this case involve a romantic
relationship in the workplace that plaintiff Mary Kane claims led to violations of Title VII
and state law.
The following facts are undisputed unless otherwise indicated. Defendant
Honeywell HomMed, LLC (“HomMed”) is a strategic business group within the Life
Safety Division of Honeywell International (“Honeywell”). Docket No. 53 at 3, ¶ 1;
Docket No. 59 at 2. Ms. Kane was hired by HomMed in February 2006 as a Clinical
Consultant. Docket No. 53 at 3, ¶ 2; Docket No. 59 at 2. Her job duties required
frequent travel. Docket No. 53 at 3, ¶ 4; Docket No. 59 at 2.
In January 2007, Ms. Kane was promoted to Clinical Marketing Manager,
reporting to HomMed’s then-Vice President of Marketing, defendant Terry Duesterhoeft,
who reported to HomMed’s President. Docket No. 53 at 3-4, ¶¶ 5-7; Docket No. 59 at
2. Shortly after her promotion, Ms. Kane filed for divorce from her husband, with whom
she has two children. Docket No. 53 at 4, ¶ 10; Docket No. 59 at 2. Ms. Kane spoke
with Mr. Duesterhoeft and HomMed’s President to request that her business travel be
limited during her divorce and they agreed to eliminate her non-essential business
travel. Docket No. 53 at 4, ¶¶ 11-12; Docket No. 59 at 2.
Over time, Ms. Kane began to discuss personal matters with Mr. Duesterhoeft.
Docket No. 53 at 4, ¶ 13; Docket No. 59 at 2. Mr. Duesterhoeft informed Ms. Kane that
he was living with his girlfriend and her son. Docket No. 53 at 4, ¶ 14; Docket No. 59 at
2, ¶ 14. In January 2008, Mr. Duesterhoeft informed Ms. Kane that he and his girlfriend
were engaged. Docket No. 53 at 4, ¶ 15; Docket No. 59 at 2.
On March 13, 2008, Mr. Duesterhoeft met Ms. Kane while she was on a
business trip in Amsterdam. Docket No. 53 at 4, ¶ 16; Docket No. 59 at 2, ¶ 16.
Following dinner, Ms. Kane and Mr. Duesterhoeft had sex. Docket No. 53 at 5, ¶ 17;
Docket No. 59 at 2. Ms. Kane testified at her deposition that Mr. Duesterhoeft initiated
this encounter by sending her a text message that said “I can’t be your boss anymore,”
after which she called him and he invited her to his hotel room, where he expressed
romantic feelings for her and made physical advances. Docket No. 60-3 at 8 (Kane
dep., at 53, l.1 to 56, l.21). They had sex on at least three occasions during her stay in
Amsterdam.1 Docket No. 53 at 5, ¶ 18; Docket No. 59 at 2, ¶ 18.
Ms. Kane alleges that, following the trip to Amsterdam, Mr. Duesterhoeft told her
that he had called off his engagement. Docket No. 53 at 5, ¶ 19; Docket No. 59 at 2. In
May 2008, Mr. Duesterhoeft married his girlfriend. Docket No. 60-12. In spring 2008,
Ms. Kane and Mr. Duesterhoeft began a romantic relationship, which continued until the
end of July 2010. Docket No. 53 at 5, ¶¶ 20-21; Docket No. 59 at 2. Over the course
of their relationship, they introduced one another to their respective children and
friends, exchanged gifts, and traveled together. Docket No. 53 at 5, ¶¶ 22-25; Docket
No. 59 at 2. By mid-summer 2008, Ms. Kane was in love with Mr. Duesterhoeft and
believed that he loved her. Docket No. 53 at 6, ¶ 27; Docket No. 59 at 2; Docket No.
53-2 at 54 (Kane dep., at 237, ll.11-16).
During the eighteen months when Ms. Kane was both employed by HomMed
and in a relationship with Mr. Duesterhoeft, she received a total salary increase of
$64,000–four times her increase in pay during her first two years with the company.
Docket No. 60 at 8, ¶ 13-14; Docket No. 60-3 at 5 (Kane dep., at 31, l.1 to 32, l.10).
She also received positive evaluations and several promotions. Id. at 12 (Kane dep., at
73, ll.13-19); Docket No. 53 at 8, ¶ 47; Docket No. 59 at 2.
HomMed’s sexual harassment policy provides that, if an employee “believes that
he or she is being harassed . . ., the employee should report the violation immediately
Ms. Kane testified that, on the trip to Amsterdam, she told Mr. Duesterhoeft that
she was uncomfortable engaging in sexual relations with him. Docket No. 60-3 at 36
(Kane dep., at 230, ll.1-16). Ms. Kane further testified that, on a subsequent business
trip to Chicago, Mr. Duesterhoeft put “tremendous pressure” on her to engage in sexual
relations, but she declined. Docket No. 60-3 at 36 (Kane dep., at 232 ll.18-24).
to a Company supervisor; or if the employee prefer for any reason, to the Human
Resources Department or to the Company’s confidential U.S. ACCESS line.” Docket
No. 53-3 at 40, § 5.4.1. It also provides that
Any supervisory employee involved in a consensual, romantic and/or sexual
relationship with an employee over whom the supervisor has supervisory
authority will report the relationship to his or her supervisor and to the local
human resources generalist. The supervisor and human resources
generalist will determine the appropriate action that will be taken.
Appropriate action may include a change in the responsibilities of the
individuals involved, a transfer, or a termination.
Docket No. 53-3 at 40, § 5.3.1.
Ms. Kane contends that she was uncomfortable reporting to someone with whom
she was romantically involved; she wanted to inform human resources of the
relationship to find a way to resolve the situation. Docket No. 53 at 6, ¶¶ 28, 29; Docket
No. 59 at 2. She further contends that Mr. Duesterhoeft discouraged her from reporting
the relationship by stating that it would put both their jobs at risk given HomMed’s policy
on relationships between supervisors and subordinates. Docket No. 53 at 6, ¶ 30;
Docket No. 59 at 2; Docket No. 60-3 at 13 (Kane dep., at 79, ll.12-20). In fall 2008, Ms.
Kane agreed to let Mr. Duesterhoeft try to find a solution to their situation other than
reporting their relationship to human resources. Docket No. 53 at 6, ¶¶ 33, 35; Docket
No. 59 at 2-3, ¶¶ 33, 35. She simultaneously searched for employment outside of
HomMed. Docket No. 53 at 7, ¶ 38; Docket No. 59 at 3, ¶ 35. In September 2008,
McKesson Corporation offered her a job, but she turned it down because it was only a
temporary position. Docket No. 53 at 7, ¶¶ 39-40; Docket No. 59 at 2, 3, ¶ 40.
In October 2008, Honeywell offered Ms. Kane a retention bonus if she remained
through Honeywell’s efforts to sell HomMed. Docket No. 53 at 7, ¶ 41; Docket No. 59
at 2. Ms. Kane accepted the offer, agreeing to work until October 2009 in exchange for
a bonus of $70,000. Docket No. 53 at 7, ¶ 42; Docket No. 59 at 2. In March 2009, Mr.
Duesterhoeft was promoted to President of HomMed, reporting to the President of
Honeywell’s Fire Systems Division. Docket No. 53 at 7, ¶¶ 43-44; Docket No. 59 at 2.
On November 2, 2009, Ms. Kane submitted her resignation letter to HomMed,
effective November 20, 2009. Docket No. 53 at 8, ¶ 48; Docket No. 59 at 2. Several
Honeywell executives attempted to dissuade Ms. Kane from resigning. Docket No. 53
at 8, ¶¶ 51-52; Docket No. 59 at 2. Ms. Kane did not report harassing conduct by Mr.
Duesterhoeft to anyone at HomMed during or after her resignation. Docket No. 53 at 8,
¶ 53; Docket No. 59 at 2.
Ms. Kane and Mr. Duesterhoeft continued their romantic relationship for nine
months after Mr. Kane resigned from HomMed. Docket No. 53 at 9, ¶ 59; Docket No.
59 at 2. In April 2010, Ms. Kane and Mr. Duesterhoeft became engaged; they set a
wedding date of August 14, 2010. Docket No. 53 at 9, ¶ 63; Docket No. 59 at 2. Mr.
Duesterhoeft encouraged Ms. Kane not to return to work and agreed to support her
financially, at least until the wedding. Docket No. 53 at 9, ¶¶ 60-61; Docket No. 59 at 2.
Between April 2010 and July 2010, Mr. Duesterhoeft deposited approximately $60,000
in a bank account he held jointly with Ms. Kane towards Ms. Kane’s living expenses.
Docket No. 53 at 9, ¶ 62; Docket No. 59 at 4, ¶ 62.
In late July 2010, Ms. Kane learned that Mr. Duesterhoeft was already married
and broke off her engagement with him. Docket No. 53 at 9, ¶¶ 64-65; Docket No. 59
at 2. Ms. Kane then sought Mr. Duesterhoeft’s assistance in returning to HomMed.
Docket No. 53 at 10, ¶ 68; Docket No. 59 at 2. In August 2010, they exchanged a
number of emails regarding Mr. Duesterhoeft’s attempt to create a position for Ms.
Kane at HomMed. Docket No. 53 at 10, ¶ 69; Docket No. 59 at 2.
On September 10, 2010, Ms. Kane filed a charge of discrimination against
HomMed with the Equal Employment Opportunity Commission (“EEOC”) alleging that
she was subject to a hostile work environment while employed there. Docket No. 60-1
at 1. HomMed did not receive formal notice of Ms. Kane’s EEOC charge until
September 28, 2010. Docket No. 53 at 12, ¶ 85; Docket No. 59 at 2. On September
20, 2010, the human resources manager at HomMed offered Ms. Kane the position of
Strategic Clinical Accounts Director, which would have reported to Mr. Duesterhoeft.
Docket No. 53 at 10, ¶¶ 71-72; Docket No. 59 at 2. Ms. Kane stated that she did not
want to accept a position reporting to Mr. Duesterhoeft and that she had filed a charge
of discrimination with the EEOC, but did not provide any further details about her claim.
Docket No. 53 at 10-11, ¶¶ 73-75; Docket No. 59 at 2. This was the first informal notice
HomMed received of Ms. Kane’s EEOC charge. Docket No. 53 at 11, ¶ 76; Docket No.
59 at 2. On September 23, 2010, the human resources manager contacted Ms. Kane
and asked her why she would not accept the position, but Ms. Kane declined to provide
additional information. Docket No. 53 at 11, ¶ 77; Docket No. 59 at 2. HomMed
proceeded to withdraw the job offer. Docket No. 53 at 11, ¶ 78; Docket No. 59 at 2.
Prior to withdrawing the job offer, the human resources manager was not aware of Ms.
Kane’s relationship with Mr. Duesterhoeft. Docket No. 53 at 12, ¶ 83; Docket No. 59 at
2. HomMed did not consider or hire anyone for the position it had offered Ms. Kane.
Docket No. 59 at 12, ¶ 82; Docket No. 59 at 2.
On August 31, 2011, Ms. Kane filed this case against HomMed and Mr.
Duesterhoeft in the District Court for Boulder County, Colorado; on December 22, 2011,
defendants removed the case to this Court. Docket Nos. 1, 2. Ms. Kane asserts that
HomMed violated Title VII of the 1964 Civil Rights Act (“Title VII”) by subjecting her to a
hostile work environment and by failing to rehire her in retaliation for filing a charge of
discrimination with the EEOC. Docket No. 70 at 6. She also asserts a state law claim
against HomMed for intentional infliction of emotional distress. Id. She asserts state
law claims against Mr. Duesterhoeft for intentional infliction of emotional distress and
intrusion on seclusion. Docket No. 70 at 8. Ms. Kane seeks to recover compensatory,
liquidated, and punitive damages, including back pay and front pay, future pecuniary
loss, attorney’s fees, costs, and interest. Docket No. 2 at 15. Defendants have moved
for summary judgment on all claims. Docket Nos. 52 and 53.
II. STANDARD OF REVIEW
According to Federal Rule of Civil Procedure 56, a 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.” FED . R. CIV. P. 56(a); see
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). In pursuing summary
judgment, the moving party generally bears the initial burden of showing the absence of
a genuine dispute concerning a material fact in the case. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). However, “[w]hen, as in this case, the moving party does not
bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary
judgment stage by identifying a lack of evidence for the nonmovant on an essential
element of the nonmovant's claim.” Bausman v. Interstate Brands Corp., 252 F.3d
1111, 1115 (10th Cir. 2001).
“Once the moving party meets this burden, the burden shifts to the nonmoving
party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of
Colorado, Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing
Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations
in the pleadings, but instead must designate “specific facts showing that there is a
genuine issue for trial.” Celotex, 477 U.S. at 324; see FED . R. CIV. P. 56(e). “To avoid
summary judgment, the nonmovant must establish, at a minimum, an inference of the
presence of each element essential to the case.” Bausman, 252 F.3d at 1115.
However, to be clear, “it is not the party opposing summary judgment that has the
burden of justifying its claim; the movant must establish the lack of merit.” Alpine Bank
v. Hubbell, 555 F.3d 1097, 1110 (10th Cir. 2009).
Only disputes over material facts can create a genuine issue for trial and
preclude summary judgment. Faustin v. City & County of Denver, 423 F.3d 1192, 1198
(10th Cir. 2005). A 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). 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) (citing Anderson, 477 U.S. at 248).
A. Hostile Work Environment
“[A] plaintiff may establish a violation of Title VII by proving that discrimination
based on sex has created a hostile or abusive work environment.” Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). Actionable harassment “has the purpose
or effect of unreasonably interfering with an individual’s work performance or creating
an intimidating, hostile, or offensive working environment.” Id. at 65. To survive
summary judgment on a hostile work environment claim, “a plaintiff must show that
under the totality of the circumstances (1) the harassment was pervasive or severe
enough to alter the terms, conditions, or privilege of employment” and (2) the
harassment stemmed from animus. Chavez v. New Mexico, 397 F.3d 826, 831-32
(10th Cir. 2005) (quoting Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir.1994) (citation
omitted)). In determining whether conduct is sufficiently severe or pervasive, courts
consider: “(1) the frequency of the discriminatory conduct; (2) the severity of the
conduct; (3) whether the conduct is physically threatening or humiliating, or a mere
offensive utterance; and (4) whether the conduct unreasonably interferes with the
employee’s work performance.” Holmes v. Regents of Univ. of Colo., 176 F.3d 488,
1999 WL 285826, at *7 (10th Cir. May 7, 1999) (citing Harris v. Forklift Sys., Inc., 510
U.S. 17, 23 (1993)). “Based on the totality of the circumstances, the environment must
be perceived both subjectively and objectively as abusive.” Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 672 (10th Cir. 1998).
It is well-accepted that a “person’s private and consensual sexual activities do
not constitute a waiver of his or her legal protections against unwelcome and unsolicited
sexual harassment.” Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1001 (10th Cir.
1996). Accordingly, a plaintiff’s voluntary engagement in sexual conduct is not a
defense to a hostile work environment claim, which turns on whether the alleged
advances were “unwelcome.” Meritor, 477 U.S. at 68. “[T]he question whether
particular conduct was indeed unwelcome presents difficult problems of proof and turns
largely on credibility determinations committed to the trier of fact.” Id.
In Williams v. Herron, 687 F.3d 971, 975 (8th Cir. 2012), the court held that a
sexual harassment claim survived summary judgment where the plaintiff presented
evidence that, one month after she told her boss that she did not wish to remain in a
relationship with him, he began to harass her by grabbing and hugging her while she
was clocking out, making “pouty faces at her all day,” and initiating a sexual encounter
with her in his office. In addition, the plaintiff was concerned that her job would be at
risk if she stopped engaging in sexual relations with her boss because he had
previously pursued three other employees, all of whom were terminated after ending
their relationships with him. Id. at 976. The former employees testified that he had
“established a pervasive system of sexual coercion . . ., enticing women to enter it with
workplace benefits and securing their continued participation with the threat of negative
employment consequences.” Id. The plaintiff in Williams testified that her boss’
conduct “made her very distressed, resulting in depression, anxiety, missed work,
crying while on the job, and an undesired shift change.” Id.
In contrast, evidence that the romantic relationship persisted after the plaintiff left
the allegedly hostile work environment tends to undermine the plaintiff’s claim. The
court in Mosher v. Dollar Tree Stores, Inc., 240 F.3d 662 (7th Cir. 2001), affirmed a
grant of summary judgment in favor of the defendant on a hostile work environment
claim where the plaintiff alleged that, on her third day of work, her supervisor pulled her
onto his lap and fondled her, after which the two entered into a consensual relationship
that continued five months following the plaintiff’s resignation. Over the course of their
relationship, the plaintiff accepted gifts from her supervisor, permitted him to pay her
rent for a period of nine months, met his parents, and referred to him as her boyfriend.
Id. at 667. She did not mention or complain about being fondled to any of her other
supervisors or co-workers and did not resign until four months after the incident took
place. Id. at 668 (“While this readily could be considered a severe incident, [the
plaintiff’s] reaction suggests that she did not perceive it as such. At the time, she
reported the incident to no one and within weeks was involved in what can only be
reasonably described as a consensual sexual relationship with [her supervisor] which
continued for many months.”). The court found that “no reasonable jury could conclude
that [the plaintiff] was anything other than a willing participant in a long, consensual
relationship with her boss.” Id. at 668 (“after a longtime sexual relationship like this one
goes sour, it will be only the unusual case that can escape summary judgment.”).
HomMed argues that Ms. Kane cannot show that any of the allegedly harassing
conduct was unwelcome or that it was sufficiently severe or pervasive to qualify as
abusive. Docket No. 59 at 13-15. Ms. Kane contends that she was subject to
unwelcome harassment insofar as Mr. Duesterhoeft (1) demanded sexual interaction
with her; (2) required her to travel on business trips so frequently that it interfered with
her other job responsibilities; (3) made threatening remarks about her job security; and
(4) interfered with her job performance when she expressed a need to change their
situation. Docket No. 59 at 11. She further argues that Mr. Duesterhoeft forced her to
resign from HomMed. Docket No. 59 at 17.
First, Ms. Kane asserts that she “was not an equal participant in the sexual
relationship between her and Mr. Duesterhoeft” because he “approached Ms. Kane at
work with the assumption that they would be engaging in sexual intercourse later that
day and made statements to Ms. Kane indicating that she did not have a choice in the
matter.” Docket No. 59 at 9. The only evidence she offers in support of this assertion
is her testimony that Mr. Duesterhoeft would say “something like to the effect of, when
are you done today? When can we hook up later tonight?” Docket No. 59-3 at 11
(Kane dep., at 71, l.3 to 72, l.11). Ms. Kane testified that they did not engage in any
sexual conduct while at work. Id. at 70, l.21-71, l.3. This evidence is not sufficient to
raise a genuine dispute of fact regarding the unwelcomeness and the severity or
pervasiveness of the alleged harassment. Ms. Kane does not state that she regarded
the alleged comments as insulting, humiliating, or threatening. She provides no
evidence regarding how frequently they were made or how she reacted to them at the
time, for example, that the comments left her feeling distressed, sad, or anxious. See
Williams, 687 F.3d at 975. Thus, there is no basis for concluding that she subjectively
perceived such comments as abusive or that they unreasonably interfered with her job
Next, Ms. Kane argues that Mr. Duesterhoeft “increased the amount and
frequency of Ms. Kane’s business travel so that he could meet her to engage in sexual
acts with her.” Docket No. 59 at 14. Other than the trip to Chicago, Ms. Kane does not
allege that she did not want to have sex with Mr. Duesterhoeft on business trips or that
she was made uncomfortable by his advances, but rather that traveling left her with less
time to fulfill her other job responsibilities, that Mr. Duesterhoeft was not needed on
these trips, and that his decision to accompany her took his attention away from the
office where he was needed. Docket No. 59-3 at 39-40 (Kane dep., at 272, l.22 to 273,
l.7) (“I felt that there was a number of trips that I absolutely had the skill set and the
confidence and the abilities to foster myself, and that I was confused and perplexed
because we–I felt we didn’t have enough resources as it was . . . . I felt that we needed
to divide and conquer in order to get all the work done”). Nor does Ms. Kane allege that
the assigned travel was outside of her job responsibilities. See Docket No. 59-3 at 38
(Kane dep., at 248, ll.3-25).
Ms. Kane’s testimony supports an inference that traveling less would have made
it easier for her to balance her workload, that Mr. Duesterhoeft scheduled business trips
for her more frequently than she wanted, that he traveled with her frequently so that he
could have sex with her, and that his decision to travel with her might not have always
been prudent from a business perspective. See Docket No. 59-3 at 15 (Kane dep., at
86, l.19 to 88, l.6). It does not, however, reasonably support an inference that the travel
was inconsistent with–and therefore altered the terms of–her employment. See
Chavez, 397 F.3d at 831-32. Furthermore, her testimony that her work performance
continued to be “excellent” precludes a finding that the business trips meaningfully
detracted from her ability to perform her job. See Docket No. 59-3 at 15 (Kane dep., at
86, ll.19-22); see also Meritor, 477 U.S. at 66.
Third, Ms. Kane argues that Mr. Duesterhoeft harassed her by threatening her
job. Docket No. 59 at 13. However, she does not cite any statements or actions on his
part that contributed to this fear. See Docket No. 59-3 at 17 (Kane dep., at 95, ll.13-16)
(“Did Mr. Duesterhoeft ever say to you that if you reported the relationship, he would fire
you? A. No.”). Rather, she offers evidence that he cautioned her that both their jobs
could be in danger if she were to report their relationship to human resources. See
Docket No. 59-3 at 13 (Kane dep., at 79, ll.19-20) (“He said that we could both stand to
lose our jobs.”). In addition, she offers her testimony that she was not “comfortable”
that Mr. Duesterhoeft “really could or that he wanted or had any desire to protect” her
job. Docket No. 59-3 at 13 (Kane dep., at 79, ll.2-5). Ms. Kane’s testimony supports an
inference that she was worried about her job because of HomMed’s policy on
relationships between supervisors and subordinates and not because of anything that
Mr. Duesterhoeft said or did. See also Docket No. 59-3 at 16 (Kane dep., at 92, ll.4-7)
(“Q. Okay. But you’re telling us here that the reason you kept the relationship ongoing
during the time you worked at Honeywell was because you thought you would lose your
job if you broke off the relationship? . . . A. I could lose my job. And, in fact, I believe
that if [the relationship] had been reported, that that was–that was an outcome that
could happen as part of the policy.”).
Moreover, Ms. Kane’s testimony that she remained with Mr. Duesterhoeft mainly
out of fear she would lose her job if she left him, see Docket No. 60-3 at 37 (Kane dep.,
at 235, ll.4-18), is undermined by her testimony that she remained with him because
she was in love with him. Docket No. 53-2 at 54 (Kane dep., at 237, ll. 1-10) (“I
obviously fell in love with him during that time. But that is not–it was a very
confusing–what he said and how he said he was going to take care of the reporting
structure and my job and the protections that he would give me were in conflict in my
mind with, also, the fact that I had fallen in love with him.”).
Fourth, Ms. Kane asserts that Mr. Duesterhoeft interfered with her job
performance when she threatened to end their relationship unless the reporting
structure were altered. Docket No. 59 at 11. In support of this assertion, Ms. Kane
offers her testimony that Mr. Duesterhoeft’s reaction to this threat “ranged from the cold
shoulder to doing things at work that I felt undermined my ability.” Docket No. 59-3 at
39 (Kane dep., at 271, ll.13-14). She cites only one specific instance of such conduct,
namely, that he would “allow others to set up” meetings to which she was not invited.
Id. at 41 (Kane dep., at 277, ll.9-15). In other words, Ms. Kane’s assertion that Mr.
Duesterhoeft sought to undermine her is based on occasions when he allegedly
remained passive instead of making an active effort to assist or support her. Even
taking these allegations as true, they are insufficient to establish that Mr. Duesterhoeft
behaved with “the purpose or effect of unreasonably interfering” with Ms. Kane work
performance or “creating an intimidating, hostile, or offensive working environment.”
Meritor, 477 U.S. at 65.
Furthermore, Ms. Kane’s claim that Mr. Duesterhoeft harassed her is
undermined by her testimony that, while at HomMed, she did not want human
resources to discipline Mr. Duesterhoeft, but rather wished to find a way for HomMed to
better accommodate their relationship. See Docket No. 59-3 at 14 (Kane dep., at 81,
ll.2-5) (“Q. You didn’t want Honeywell to discipline Mr. Duesterhoeft, did you? A. I
don’t know that I ever had that in my thoughts.”); id. at 18 (Kane dep., at 99, ll.22-23)
(“to say that I wish that I didn’t or that I wasn’t in the relationship is inaccurate”). In
addition, Ms. Kane testified that she did not perceive Mr. Duesterhoeft’s conduct as
harassment until after she found out that he was already married, a discovery that took
place nine months after her departure from HomMed. Docket No. 60-3 at 27 (Kane
dep., at 137, l.20 to 138, l.9) (“I believe the nature of our relationship after I left the
company, based on the lies he told me, was different. In other words, I didn’t have any
indication that he was married. . . . It became clear to me that there was discrimination
after the truth had come out about what Terry had done.”). Notably, Ms. Kane did not
testify that, during her employment, she wanted to report unwelcome conduct on the
part of Mr. Duesterhoeft, but was dissuaded from doing so. Rather, she invokes only
the provision of the sexual harassment policy pertaining to consensual relationships
between supervisors and their reports. Compare Docket No. 59-6 at 1-2, § 5.1 (“How to
recognize sexual harassment”) with Docket No. 59-6 at 2, § 5.3 (“Consensual
Relationships”). Her claim is likewise undercut by the fact that she voluntarily contacted
Mr. Duesterhoeft in seeking to return to HomMed in fall 2010, after she had broken off
the engagement. Docket No. 53 at 10, ¶ 68; Docket No. 59 at 2.
In addition to her assertions regarding unwelcome conduct, Ms. Kane argues in
her response brief that Mr. Duesterhoeft forced her to resign from HomMed. Docket
No. 59 at 17. This argument is directly undermined by Ms. Kane’s testimony that she
left HomMed “because we couldn’t–I couldn’t find a solution for the romantic
relationship I was having with Terry and the reporting structure and neither could he, he
said, and the relationship was inappropriate. And so I wanted to–I couldn’t–it was too
much pressure for me to continue.” Docket No. 53-2 at 25 (Kane dep., at 113, ll.9-17);
see also Docket No. 60-3 at 17 (Kane dep., at 93, ll.13-23) (“[After resigning from
HomMed,] I was relieved of the pressure that I felt for the inappropriate relationship,
first and foremost, and so that was my reason for leaving the company”).
Ms. Kane argues that this case is like Williams because Mr. Duesterhoeft
subjected her to harassing conduct, interfered with her ability to do her job, and
persisted in the relationship, even though she told him that she was not comfortable
being with him unless the reporting structure changed. Docket No. 59 at 11. In
Williams, however, the plaintiff testified that she wanted to end the relationship with her
supervisor–and attempted to do so–but that she continued to engage in physical
relations with him against her will for fear of losing her job. See 687 F.3d at 973.
Here, Ms. Kane has not testified that she wanted to end the relationship but was afraid
to do so or that she engaged in any physical activity with Mr. Duesterhoeft against her
will. Rather, she testified that, once she learned of his marriage, it “became clear” to
her that she had been discriminated against while at HomMed. Docket No. 60-3 at 27
(Kane dep., at 137, l.20 to 138, l.9). In addition, the supervisor in Williams had a history
of terminating employees who would not remain in relationships with him. See 687
F.3d at 973-74. There is no evidence that Mr. Duesterhoeft engaged in similar
predatory activity.2 This case is instead akin to Mosher. See 240 F.3d 662. Ms. Kane
did not report or complain of the allegedly unwelcome conduct to anyone except Mr.
Duesterhoeft, has not suggested that she wanted to report him to human resources
Ms. Kane’s testimony that Mr. Duesterhoeft told her that he was involved with
an employee at his previous company, who ultimately left the company because of the
relationship, see Docket No. 59-3 at 35 (Kane dep., at 217, l.19 to 218, l.12), is not
comparable to the pattern of harassment in evidence in Williams. See 687 F.3d at 976
(the defendant “established a pervasive system of sexual coercion . . ., enticing women
to enter it with workplace benefits and securing their continued participation with the
threat of negative employment consequences.”).
based on unwelcome conduct (as opposed to a consensual relationship), remained in a
relationship with him for nine months after leaving HomMed, accepted gifts and
financial support from him, and only asserted a harassment claim once she learned of
his marriage. See id. at 667-68.
Although sexual harassment may well occur within the context of an otherwise
consensual workplace relationship, see Meritor, 477 U.S. at 68, the evidence in this
case is insufficient to permit a factfinder to reasonably infer that Ms. Kane perceived Mr.
Duesterhoeft’s conduct as unwelcome during the course of her employment at
B. Retaliatory Failure to Rehire
Under Title VII, it is unlawful for an employer to discriminate against an employee
because she has opposed “any practice made an unlawful employment practice by
[Title VII].” 42 U.S.C. § 2000e-3(a). To succeed on a claim for retaliation, a plaintiff
must prove that “her protected activity was a but-for cause of the alleged adverse action
by the employer.” University of Texas Southwestern Med. Ctr. v. Nassar, --- U.S. ----,
133 S. Ct. 2517, 2534 (2013). A plaintiff may carry her burden by making either a direct
showing that “retaliatory animus played a ‘motivating part’ in the employment decision”
or an indirect showing consistent with the McDonnell Douglas burden-shifting
framework. Id. at 1225-26 (internal citations omitted). If the plaintiff relies on direct
evidence, then “[o]nce the plaintiff proves that retaliatory animus was a motivating
factor, the burden of persuasion shifts to the defendant to prove that it would have
taken the same action absent the retaliatory motive.” Id. If the plaintiff relies on indirect
evidence, she must first establish a prima facie case by showing that (1) she engaged
in protected opposition to discrimination; (2) she suffered an employment action that a
reasonable employee would find materially adverse; and (3) a causal connection
existed between the protected activity and the adverse action. Id. If the plaintiff can
establish a prima facie case, the burden shifts to defendants to provide a legitimate
reason for their decision and, if they succeed, shifts back to plaintiff to show that the
proffered reason is pretextual. Id.
“A causal connection may be shown by evidence of circumstances that justify an
inference of retaliatory motive, such as protected conduct closely followed by adverse
action.” O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001). Absent
additional evidence of causation, very close temporal proximity is required. Id. For
example, a one and one-half month gap may be sufficient on its own to establish
causation, while a delay of three months will not. Id. (citing Conner v. Schnuck Mkts.,
Inc., 121 F.3d 1390, 1395 (10th Cir. 1997), and Anderson v. Coors Brewing Co., 181
F.3d 1171, 1179 (10th Cir. 1999)).
Here, Ms. Kane asserts two theories of retaliation. The first, based on indirect
evidence, is that the position offered her was initially designed to report to someone
other than Mr. Duesterhoeft and that HomMed restructured the position to report to Mr.
Duesterhoeft in retaliation for Ms. Kane’s having filed a charge of discrimination.
Docket No. 59 at 20. This theory fails as Ms. Kane provides no evidence that HomMed
was aware she had filed a charge of discrimination until the September 20, 2010
telephone call in which Ms. Kane was informed that the position would report to Mr.
Duesterhoeft. Id.; Docket No. 53 at 11, ¶ 76; docket No. 59 at 2. As Ms. Kane cannot
show that HomMed had knowledge of her protected activity prior to its taking adverse
action against her, she cannot meet the causation requirement. See O’Neal, 237 F.3d
Ms. Kane’s second theory is that she “was assigned to be supervised by the man
who had harassed her during her previous tenure at HomMed,” which constitutes
“constructive rejection of Ms. Kane’s application.” Docket No. 59 at 20. To the extent
that this constitutes a retaliation claim, it fails for the same reason discussed above,
namely, that there is no evidence HomMed knew of the charge prior to its decision
regarding the reporting structure for the new position.
In sum, Ms. Kane has not produced sufficient evidence to raise a genuine
dispute of fact that HomMed retaliated against her for filing a charge of discrimination
by offering her a position reporting to Mr. Duesterhoeft or by rescinding its offer to rehire
C. State Law Claims
Ms. Kane asserts a state law claim for intentional infliction of emotional distress
against both defendants and a claim for intrusion on seclusion against Mr.
Duesterhoeft. Docket No. 70 at 2. Having determined that HomMed is entitled to
summary judgment on Ms. Kane’s federal claims, the Court declines to exercise
supplemental jurisdiction over her state law claims. See 28 U.S.C. § 1367(c)(3); Brooks
v. Gaenzle, 614 F.3d 1213, 1229 (10th Cir. 2010) (“pendent jurisdiction over state
claims is exercised on a discretionary basis and . . . if federal claims are dismissed
before trial, leaving only issues of state law, the federal court should decline the
exercise of jurisdiction by dismissing the case without prejudice.”) (internal citations and
alterations omitted); Thompson v. City of Shawnee, 464 F. App’x 720, 726 (10th Cir.
2012) (upon resolving federal claims, the “district court had discretion either to remand”
supplemental state law claims “or to dismiss them”).
For the foregoing reasons, it is
ORDERED that Defendant Honeywell HomMed, LLC’s Motion for Summary
Judgment [Docket No. 53] is GRANTED in part. Plaintiff Mary Kane’s claims against
HomMed for a hostile work environment and retaliatory termination in violation of Title
VII are dismissed. The Court declines to exercise supplemental jurisdiction over
plaintiff’s claim against HomMed for intentional infliction of emotional distress and will
therefore not rule on this aspect of the motion. It is further
ORDERED that the Court declines to exercise supplemental jurisdiction over
plaintiff’s claims against Mr. Duesterhoeft for intentional infliction of emotional distress
and intrusion on seclusion and will therefore not rule on Defendant Duesterhoeft’s
Motion for Summary Judgment and Brief in Support [Docket No. 52]. It is further
ORDERED that this case is remanded to the District Court for the County of
Boulder, Colorado, where this case was filed as No. 2011cv941.
DATED July 30, 2013.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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