Gordon v. CompResults, LLC et al
Filing
51
MEMORANDUM AND ORDER granting 49 Motion to Strike ; granting 15 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 33 Motion for Summary Judgment. See Order for details. Signed by District Judge Eric F. Melgren on 2/22/2013. (cm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BARBARA GORDON,
Plaintiff,
vs.
Case No. 11-2547
COMPRESULTS, LLC, and
JAMES B. WEIR,
Defendants.
MEMORANDUM AND ORDER
This matter involves Plaintiff Barbara Gordon’s claims for sexual harassment and
retaliation under Title VII of the Civil Rights Act of 19641 and the Kansas Act Against
Discrimination (“KAAD”).2 Before the Court are Defendant James B. Weir’s Motion to Dismiss
(Doc. 15) and the Motion for Summary Judgment (Doc. 33) jointly filed by Defendants James B.
Weir (“Weir”) and CompResults, LLC (“CompResults”). Also before the Court is Defendants’
motion to strike Plaintiff’s expert witness designation (Doc. 49). For the reasons stated herein,
the Court grants Weir’s motion for dismissal and Defendants’ motion to strike Plaintiff’s expert
designation. Defendants’ motion for summary judgment is granted in part and denied in part.
1
42 U.S.C. § 2000e, et. seq.
2
K.S.A. § 44-1001, et. seq.
I.
Factual and Procedural Background3
Plaintiff Barbara Gordon is a fifty-seven year old female who worked for Defendant
CompResults from 1998 until her termination on August 14, 2009. Defendant CompResults is a
Missouri limited liability company in the business of providing case management for workers’
compensation claims. Defendant Weir is a male resident of Kansas who began working with
CompResults in 1992 as a liaison for St. Luke’s Shawnee Mission Health Systems (“St.
Luke’s”).4 The parties’ relationship began in 1998, when Weir hired Plaintiff to work for
CompResults as a receptionist and administrative coordinator. At that time, Plaintiff had not
earned any degree above a high school diploma, and she lacked prior experience or training in
the healthcare and insurance industries. As Plaintiff became more familiar with the business,
Weir gradually gave Plaintiff more administrative duties, including aspects of office
management, payroll, healthcare and retirement benefits, and administration of accounts
receivable and accounts payable. Plaintiff eventually held the unofficial title of second in
command behind Weir.
A. Growth and Changes Following Weir’s Acquisition of CompResults
In August 2007, Weir purchased CompResults from St. Luke’s and became its President
and owner. At that time, Plaintiff and Weir began to express differing visions for the company’s
management and future. Plaintiff repeatedly voiced her preference that CompResults remain
small, but Weir believed that the company’s success required significant growth in its work
force, including the addition of nurses, billing analysts, sales professionals, customer service
representatives, and executive-level managers. Plaintiff also preferred that CompResults retain a
3
In accordance with the procedures for dismissal and summary judgment, the facts set forth herein are
uncontroverted for the purposes of the present motions before the Court. If controverted, the facts are related in the
light most favorable to the Plaintiff, who opposes Defendants’ dispositive motions.
4
St. Luke’s owned CompResults from 1998 until Weir purchased the company in August 2007.
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casual and informal culture, while Weir believed that the company’s success required a more
professional business environment. Weir was concerned that Plaintiff would oppose many of the
changes he intended to make after acquiring CompResults, but he maintained Plaintiff’s
employment in hopes that she would adapt as the changes were implemented.
Business disagreements continued to develop between the parties as Weir began to hire
additional employees. Weir immediately engaged a third-party human resources organization,
People Wise, to provide human resource functions through its president, Kevin Robinson
(“Robinson”).
In July 2008, Weir hired Mike McTeer (“McTeer”) to serve as the Chief
Operating Officer, and McTeer now serves as the company’s Vice President of Business
Development. Because McTeer had earned a graduate degree in business and had significant
experience in the healthcare and insurance industries, Weir wanted McTeer to have substantial
involvement in the company’s development and day-to-day operations. Weir was concerned that
Plaintiff would become resistant to a reduced role as McTeer and others assumed additional
responsibility within company.
In December 2008, Weir and McTeer discussed hiring an additional executive-level
employee to perform many of the financial-management functions for which Plaintiff was then
responsible. Weir ultimately decided that CompResults needed to add a new executive position
titled “Vice President of Finance” to be filled by someone with a graduate degree in finance and
significant practical experience. Weir later directed McTeer to create a job description for the
position, and McTeer reported that most of Plaintiff’s responsibilities could be assumed by a
Vice President of Finance. Because the job description created for Plaintiff’s position required
general financial management of the company and called for college or graduate education, Weir
questioned whether Plaintiff was qualified to perform the full scope of her obligations. As
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additional positions were created within the company, CompResults implemented organizational
charts. Plaintiff was upset that she was not consulted to approve of the organizational chart, and
she felt that her exclusion signaled that things were changing within CompResults.
Finally, many of Plaintiff’s complaints concerned the hiring and conduct of CompResults
employee, Julie Watkins (“Watkins”).5
Watkins began working with St. Luke’s and
CompResults in 2005, and she had nearly twenty years of experience as a nurse and executive
manager in workers’ compensation cases. In January 2009, Weir decided to hire Watkins as a
consultant to manage the company’s Case Management Division.6 At this time, Weir was
having an extramarital affair with Watkins. Weir was very satisfied with Watkins’ management
of the Case Management Division as she substantially increased the number of nurses working
for CompResults. On several occasions, Plaintiff told Weir and other CompResults employees
that she questioned Weir’s judgment after he decided to hire Watkins. Plaintiff also felt that
Watkins was taking too much power, and that Watkins’ work began to overlap with Plaintiff’s
work.
B. Weir’s Concerns Regarding Plaintiff’s Performance and Compensation
Weir alleged several deficiencies in Plaintiff’s performance. First, Plaintiff failed to
make an estimated quarterly tax payment in 2008. Plaintiff’s responsibilities included ensuring
that CompResults timely and properly pay its taxes. Though paying quarterly taxes was a new
procedure for the company, Weir felt that this error showed that Plaintiff was not qualified to
manage the company’s finances.
5
Watkins changed her name to Julie Weir when she and Defendant Weir married in 2009.
Memorandum and Order will refer to Julie Weir as “Watkins” to avoid confusion with Defendant Weir.
6
Watkins currently serves as the Vice President of Nurse Case Management for CompResults.
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This
Second, Weir’s concerns grew in May 2009, when Plaintiff worked with
Robinson to revise CompResults’ employee handbook, including the job description for her
position. When Weir reviewed the educational requirements and responsibilities articulated for
Plaintiff’s job description, Weir determined that Plaintiff’s education and experience did not
qualify her to perform many of functions necessary to successfully manage the financial
condition of the company.
Third, Weir received complaints about Plaintiff’s hostility from other CompResults
employees, including McTeer, Watkins, and administrative employees, Crystal Berry, Sarah
Plott, and Rhonda Ramirez. Early in 2009, McTeer advised Weir that Plaintiff refused to share
certain operational information and that she created unnecessary conflict with Watkins and other
administrative staff. McTeer also informed Weir that numerous employees complained about
Plaintiff’s repeated comments questioning Weir’s business judgment and his decision to employ
Watkins. In February 2009, Rhonda Ramirez sent Weir an email resignation, citing Plaintiff’s
behavior as the reason that she was leaving CompResults. Weir believed that the email from
Ramirez corroborated McTeer’s report that employees had complained about Plaintiff’s conduct.
Fourth, Defendants allege that CompResults clients also complained about Plaintiff’s
conduct of questioning Weir’s judgment. In April or May 2009, Weir was approached by Brad
Patten (“Patten”), an Executive Director of an important client of CompResults. Patten informed
Weir that Plaintiff had complained to Patten on several occasions about the general changes
taking place at CompResults, questioning Weir’s judgment in hiring Watkins and McTeer. Weir
became troubled that Plaintiff would discuss internal business affairs with an important client.
Fifth, Defendants allege that Plaintiff exhibited a negative and uncooperative attitude at
various leadership classes.
In June 2009, Weir directed that Plaintiff and several other
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CompResults employees attend classes at LeaderPoint, an organization that provides executive
training. While the training cost several hundred dollars, Weir hoped that the classes would
enhance cooperation among employees, and that Plaintiff would develop a more positive attitude
about working with Watkins. During these classes, Plaintiff became upset with Watkins, who
had apparently instructed an employee in Plaintiff’s department to train a new hire. Plaintiff sent
an email to Watkins about the training issue, and Weir found the email to be rude, abrasive, and
unprofessional. The President of LeaderPoint, Kirk Hardcastle (“Hardcastle”), told Weir that he
had serious concerns about Plaintiff’s angry and unprofessional attitude at the training classes.
Finally, as the company continued to grow, Weir became concerned about Plaintiff’s
compensation expectations. Plaintiff’s compensation began at $12.00 per hour.
By 2008,
CompResults paid Plaintiff a base salary of $75,000.00 and a bonus of $100,000.00, making
Plaintiff the highest-paid CompResults employee that year. In 2009, Plaintiff asked Weir to
increase her base salary from $75,000.00 to $125,000.00 to reflect that her position in the
company was superior to other employees. Although Weir agreed to raise Plaintiff’s base salary
to $125,000, he was troubled by Plaintiff’s concern that other employees may receive higher
compensation. Weir felt that Plaintiff’s performance did not warrant such a large salary due to
her failure to make a tax payment and her lack of cooperation with other employees. Although
Weir had numerous concerns regarding Plaintiff’s performance, attitude, and expectations, the
record reflects that he did not notify Plaintiff of any problems with her performance.
C. CompResults’s Sexual Harassment Policy
CompResults’s Employee Handbook, revised May 2009, states that the company will
take all steps reasonably required to prevent, investigate, and promptly correct any harassment or
other improper conduct in the workplace. The Employee Handbook prohibits the following
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conduct: unwelcome advances or propositions; sexually oriented, suggestive, obscene, or
insulting comments, language, jokes, written or oral references to sexual conduct; comments
about an individual’s body, sexual activities, experiences or preferences; and displaying or
possessing in the workplace sexually suggestive, revealing, or pornographic pictures.
The
Employee Handbook also prohibits disparaging remarks, epithets, or other offensive and
inflammatory conduct based upon an individual’s gender.
Under the Employee Handbook, employees are directed to promptly report inappropriate
conduct to a supervisor, a member of senior management, or to the Human Resources
Department. If an employee believes that a complaint has not received prompt or adequate
attention, the Employee Handbook directs the employee to immediately contact a supervisor or
the Human Resources Department to inquire into the status of the investigation. In the event that
these reporting measures are inadequate or unsuccessful, the Employee Handbook directs
employees to meet directly with the company President, Weir.
Finally, the handbook provides that CompResults may initiate a policy of progressive
discipline, stating that the company will generally terminate an employee only after a warning by
their supervisor and after an opportunity to improve and to meet the requirements of their
position. However, the policy provides that it is not intended to alter an employee’s status as an
at-will employee who may be terminated at any time for unsatisfactory performance.
D.
Plaintiff’s Allegations of Hostile Working Environment
Plaintiff points to several events in her attempt to demonstrate a sexually hostile work
environment. Primarily, Plaintiff claims that a hostile work environment resulted from the
romantic relationship between Weir and Watkins. Plaintiff told Weir that if he hired Watkins,
Plaintiff did not want Weir and Watkins having sexual relations in the office and that she would
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not tolerate having to tiptoe around a sexually-active workplace. However, in January 2009,
Plaintiff walked into Weir’s office and found Weir and Watkins clothed, but in what she believed
to be a romantic position. At other times, Weir and Watkins would emerge from closed door
meetings in his office, straightening out their clothing.
During a seminar in Chicago, Weir and two other gentlemen made jokes about the North
American Man/Boy Love Association, an advocacy group for pedophiles. When a woman
emerged from a taxi cab at the same conference, Weir threw his arms around Plaintiff and said,
“Pretend like we’re together. I don’t want her hitting on me tonight.”7 In November 2008,
Plaintiff attended a similar conference in Las Vegas with Weir, Watkins, and Karen Kono
(“Kono”), who worked for a CompResults client. Weir told Plaintiff that he was sharing a
bedroom with Watkins, which made Plaintiff uncomfortable. During this conference, Weir
became inebriated and was touching Kono under the table. Kono became upset and departed for
the bathroom, where she told Plaintiff that she had engaged in an affair with Weir. Watkins
stormed into the bathroom shortly thereafter and told Kono and Plaintiff, “I’m going to kick your
ass.”8 Plaintiff describes this event as the most uncomfortable situation that she had to endure
during her employment at CompResults.
During a meeting in January 2009, Weir told Plaintiff about his sexual history, naming
some of the women with whom he had engaged in affairs. Weir told Plaintiff that having sex
with women had made them better, lifelong friends. Plaintiff disagreed, commenting that she
had a close friendship with Weir without having had sex. Weir responded, “Yes, but we could
be . . . think how much closer we would be if we had sex.”9
7
8
Pl. Dep., Doc. 44, at 49-50.
Id. at 151.
-8-
After Weir bought CompResults in 2007, he would often display provocative
photographs of women on his computer and describe to Plaintiff what he liked about each
woman’s picture, including his preference for dark hair and large breasts. Weir also had a habit
of “adjusting himself” in front of employees and clients by grabbing his crotch outside of his
clothing, which conduct Plaintiff asked him to stop. On several occasions, Plaintiff became
offended when Weir referred to homosexual behavior by using the phrase, “sex in the Viking
way.”10
When the parties discussed Plaintiff’s compensation in 2008, Weir demanded that
Plaintiff “kick her son to the curb”11 before he would give her a raise. Plaintiff responded that
Weir should not dictate how she spent her money because he did not similarly tell male
employees how to spend their income. Weir replied, “Are you going to pull a Killinger on me?”
Weir’s comment referred to a prior sexual harassment claim asserted against Weir by a former
female employee. Before joining CompResults, Plaintiff worked in a police department for over
fifteen years, so she was accustomed to foul language and banter between men. Because of this
experience, Plaintiff was not bothered by Weir’s comments or conduct prior to his acquisition of
CompResults in August 2007.
E. Plaintiff’s Allegations of Retaliation
On multiple occasions after January 2009, Plaintiff spoke with CompResults’s human
resources director, Robinson, about her difficulty working with Watkins.
According to
Robinson’s sworn affidavit, these discussions generally involved Plaintiff’s complaints that she
9
Id. at 157-58, 165-66.
10
11
Id. at 65-67.
Id. at 59.
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no longer felt appreciated at CompResults because Watkins was beginning to take over her
supervisory responsibilities in the company.12 Each time Plaintiff discussed her concerns about
Watkins, Plaintiff told Robinson not to mention her complaints to Weir.
On May 7, 2009, Plaintiff and Robinson were present at a company meeting when Weir
and Watkins had an argument and Weir said, “Fucking women. Fucking women and their
hormones. Stupid women.”13 Because Plaintiff was visibly upset by the argument, Robinson
followed Plaintiff to her office. Plaintiff told Robinson that she felt Weir was changing and that
Watkins was taking too much power. Plaintiff also told Robinson that she had accidentally
walked in on Weir and Watkins embracing in a romantic position earlier that year. During this
meeting, Plaintiff did not tell Robinson that walking in on Weir and Watkins made her
uncomfortable, and Plaintiff did not tell Robinson that she felt she was being sexually harassed
by Weir. Because Plaintiff mentioned walking in on Watkins and Weir in the context of her
numerous discussions regarding concerns about Watkins assuming too much power at
CompResults, Robinson did not interpret Plaintiff’s statement as a complaint of sexual
harassment or discrimination.
The parties dispute whether Plaintiff asked Robinson to confront Weir about this conduct.
Plaintiff testified that during their conversation on May 7, 2009, she told Robinson, “I need you
to go talk to Jim [Weir]. We need to fix this.” In fact, Plaintiff testified, “I begged [Robinson] to
go talk to Jim [Weir].”14
However, Robinson alleges that after inquiring multiple times,
Plaintiff repeatedly told him not to disclose her concerns to Weir.15 After Plaintiff spoke with
12
13
Pl. Dep., Doc. 44, at 181-83.
14
Id. at 192.
15
Aff. of Kevin Robinson, Doc. 45-4, at 2.
Aff. of Kevin Robinson, Doc. 45-4, at 3.
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Robinson on May 7, 2009, she attempted to speak with Weir directly. However, Plaintiff was
unable to communicate her complaints because Weir said, “I don’t want to hear it, I’m not
talking about it.”16 Accordingly, Plaintiff felt that she was left with no choice but to rely upon
Robinson to address her concerns. While Plaintiff alleges that she had spoken with Weir many
times about inappropriate things that were said or done in the office, she does not specify the
content or the time of these alleged discussions.
Several weeks later, in June 2009, Plaintiff asked if Robinson had spoken to Weir about
the concerns she expressed on May 7, 2009. At that time, Robinson decided to inform Weir of
Plaintiff’s unhappiness at work. Robinson only told Weir that he had a power struggle on his
hands between Plaintiff and Watkins, to which Weir responded, “I know.”17 Robinson did not
tell Weir that Plaintiff reported walking in on Weir and Watkins or that she was upset about
Weir’s statements about women on May 7, 2009. Further, because Robinson did interpret the
concerns that Plaintiff communicated as allegations of sexual harassment, he did not inform Weir
or anyone else that Plaintiff made any complaint of sexual harassment or discrimination.
However, Plaintiff alleges that in June 2009, Robinson told her, “You don’t have a harassment
complaint until you’ve been retaliated against”18 and, “[u]ntil Jim [Weir] fires you, you don’t
have a harassment complaint.”19
Plaintiff was terminated by letter dated August 14, 2009, which advised that
CompResults was eliminating Plaintiff’s position of Vice President of Operations. Plaintiff
believes that she was terminated because she complained about the relationship between Weir
16
17
Aff. of Kevin Robinson, Doc. 45-4, at 4.
18
Pl. Dep., Doc. 44, at 201.
19
Pl. Dep., Doc. 44, at 192.
Id.
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and Watkins, and because she didn’t succumb to Weir’s attempt to have power over her. Though
Plaintiff’s former position was eliminated, many of her responsibilities have been assumed by
Mike Callahan (“Callahan”), who has served as CompResults’ Vice President of Finance since
August 2009. Callahan earned a graduate degree in business and has significant work experience
but was compensated at less than one-half of Plaintiff’s former compensation.
On December 28, 2009, Plaintiff filed her charges of discrimination with both the Equal
Employment Opportunity Commission (“EEOC”) and the Kansas Human Rights Commission
(“KHRC”). On May 2, 2011, the KHRC issued its Case Summary Report, finding probable
cause for claims concerning retaliation and sexual harassment related to a hostile work
environment. On August 17, 2011, the KHRC terminated its proceeding and advised Plaintiff to
seek her right to sue letter from the EEOC.
F. Plaintiff’s Expert Witness Designation
On February 8, 2012, Plaintiff made her initial disclosures under Rule 26(a)(2), which
indicated that she intended to retain an unidentified expert witness to offer testimony supporting
plaintiff’s claims for front pay and back pay. On February 16, 2012, the Court entered its
Scheduling Order (Doc. 10), which required that Plaintiff disclose expert witnesses by March 30,
2012. However, Plaintiff failed to formally disclose an expert witness until January 22, 2013,
when Plaintiff identified economist Barbara Leonard Voight, C.P.A.
Plaintiff argues that
Defendants are not prejudiced by this delay because her proposed expert’s opinion regarding
front pay and back pay is substantially the same a detailed calculation of damages that Plaintiff
articulated to Defendants in a settlement proposal dated February 21, 2012. Discovery in this
case closed on May 7, 2012. While the original trial date was rescheduled for April 1, 2013, the
Court has not modified any other case deadlines.
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II.
A.
Standards
Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’”20 “[T]he mere
metaphysical possibility that some plaintiff could prove some set of facts in support of the
pleaded claims is insufficient; the complaint must give the court reason to believe that this
plaintiff has a reasonable likelihood of mustering factual support for these claims.”21 “The
court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties
might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to
state a claim for which relief may be granted.”22 In determining whether a claim is facially
plausible, the court must draw on its judicial experience and common sense.23 All well-pleaded
facts in the complaint are assumed to be true and are viewed in the light most favorable to the
plaintiff.24 Allegations that merely state legal conclusions, however, need not be accepted as
true.25
B. Summary Judgment
The Court is familiar with the standards governing the consideration of summary
judgment.
Summary judgment is appropriate “if the pleadings, depositions, answers to
20
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
21
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
22
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003).
23
Iqbal, 556 U.S. at 678.
24
See Zinermon v. Burch, 494 U.S. 113, 118 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.
25
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
(2007)).
1984).
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interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.”26 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.”27 A fact is “material” if, under the applicable
substantive law, it is “essential to the proper disposition of the claim.”28 In considering a motion
for summary judgment, the Court must examine the evidence in a light most favorable to the
nonmoving party.29
The moving party bears the initial burden of demonstrating the absence of a genuine issue
of material fact and entitlement to judgment as a matter of law.30 The moving party need not
disprove the nonmoving party’s claim, but must only establish that the factual allegations have
no legal significance.31 If this initial burden is met, the nonmovant must then set forth specific
facts showing that there is a genuine issue for trial.32 In doing so, the opposing party may not
rely on mere allegations or denials in its pleadings, but must present significant admissible
probative evidence supporting its allegations.33 Finally, the Court notes that summary judgment
26
27
Thom v. Bristol–Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003).
28
Id.
29
Harrison v. Wahatoyas, LLC, 253 F.3d 552, 557 (10th Cir. 2001).
30
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
31
Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
32
Celotex, 477 U.S. at 323.
33
Fed. R. Civ. P. 56(c).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
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is not a “disfavored procedural shortcut;” rather, it is an important procedure “designed to secure
the just, speedy and inexpensive determination of every action.”34
III.
Analysis
A. Defendant Weir’s Motion to Dismiss
In Count III of her Complaint, Plaintiff asserts a claim against Defendant Weir in his
individual capacity for violation of the Kansas Act Against Discrimination (“KAAD”).35 That
Act provides that “[i]t shall be an unlawful employment practice . . . [f]or any person, whether an
employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts
forbidden under this act, or attempt to do so.”36 Weir argues that Count III must be dismissed
pursuant to Fed. R. Civ. P. 12(b)(6) because individual-capacity suits are inappropriate under the
KAAD as a matter of law.
Alternatively, Weir contends that dismissal is proper because
Plaintiff failed to exhaust her administrative remedies by omitting any allegation regarding
violation of the KAAD in her proceedings before the Equal Employment Opportunity
Commission (“EEOC”).
Courts in this district have consistently held that claims arising under the KAAD may not
be brought against an employer or supervisor in his individual capacity.37 Count III of Plaintiff’s
Complaint refers to the singular “Defendant, Weir,” and alleges that he “personally” engaged in
activity forbidden by the KAAD.38 The Court finds that Defendant Weir is not subject to
34
Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).
35
K.S.A. § 44-1001, et seq.
36
K.S.A. § 44-1009(a)(7).
37
Davidson v. MAC Equip., Inc., 878 F. Supp. 186, 187-88 (D. Kan. 1995); McCue v. State of Kan., Dept.
of Human Res., 938 F. Supp. 718, 726 (D. Kan. 1996); Johnson v. Van Tuyl, 1994 WL 373884, *1 (D. Kan. June 9,
1994).
38
Complaint, Doc. 1, at 10.
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personal liability under the KAAD. Accordingly, the Court grants Weir’s motion to dismiss
Count III of Plaintiff’s Complaint as it relates to Weir. Accordingly, the Court need not reach
the parties’ arguments regarding whether Plaintiff preserved that claim by exhausting her
administrative remedies.
B. Defendants’ Motion to Strike Plaintiff’s Expert Designation
Defendants ask the Court to strike Plaintiff’s expert designation as untimely. Federal
Rule of Civil Procedure 37(c)(1) governs sanctions for insufficient or improper disclosure.
Before imposing sanctions pursuant to that Rule, the Court must first find a failure to disclose
information required under Federal Rule of Civil Procedure 26 and must conclude whether the
insufficient disclosure was harmless.39
The Court finds that Plaintiff’s expert disclosures were insufficient and untimely.
Federal Rule of Civil Procedure 26 provides that “a party must disclose to the other parties the
identity of any witness it may use at trial to present evidence at trial . . . .”40 Further, the Court’s
Scheduling Order required that Plaintiff identify and designate any expert witnesses on or before
March 30, 2012. The Court finds that, while Plaintiff’s initial disclosures contemplated the
potential that she may engage an expert in the future, Plaintiff did not affirmatively identify or
designate an expert witness until January 22, 2013, long after the disclosure deadline set forth in
the Court’s Scheduling Order. The Court also finds that Plaintiff’s failure was not harmless.
Although Plaintiff’s settlement proposals may have included estimates of front pay and back pay
that are similar to those calculated by Plaintiff’s proposed expert, the lack of disclosure
precluded Defendants from obtaining discovery regarding the witness’s credibility, credentials,
39
40
Nguyen v. IBP, Inc., 162 F.R.D. 675, 679-80 (D. Kan. 1995).
Fed. R. Civ. P. 26(a)(2)(A) (emphasis added).
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or the content and scope of testimony that the expert would offer at trial. Because Plaintiff
disclosed her proposed expert witness nearly ten months after the close of discovery, and only
two months before trial, the Court finds that Defendants would be prejudiced by the untimely
disclosure.
“If a party fails to provide information or identify a witness as required by Rule 26(a) or
(e), the party is not allowed to use that information or witness to supply evidence on a motion, at
a hearing, or at a trial, unless the failure was substantially justified or is harmless.”41 Because
Plaintiff failed to timely disclose her expert witness pursuant to Rule 26(a) and the Court’s
Scheduling Order, and because such failure is not harmless, the Court concludes that Plaintiff
may not use Barbara Leonard Voight, CPA, to supply evidence or expert testimony.
Accordingly, Defendant’s motion to strike Plaintiff’s expert witness must be granted.
C. Defendants’ Motion for Summary Judgment
1.
Sexual Harassment and Hostile Working Environment
a.
Timely Exhaustion of Administrative Remedies
Count I of Plaintiff’s complaint states a claim for sexual harassment giving rise to a
hostile work environment. Defendants first argue that summary judgment is proper because
Plaintiff failed to file an EEOC charge within 180 days of the alleged harassment. The Court
disagrees. Indeed, “[e]xhaustion of administrative remedies is a jurisdictional prerequisite under
Title VII in the Tenth Circuit.”42 To exhaust administrative remedies, a plaintiff generally must
present his claim to the Equal Employment Opportunity Commission (“EEOC”) or the
41
Fed. R. Civ. P. 37(c)(1).
42
Fulcher v. City of Wichita, 2009 WL 6832587, *2 (D. Kan. Sept. 11, 2009) (citing Shikles v.
Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005)).
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authorized state agency, the Kansas Human Rights Commission (“KHRC”), and receive a rightto-sue letter based on that charge.43
42 U.S.C. § 2000e-5(e)(1) states that a charge must be filed “within one hundred and
eighty days after the alleged unlawful employment practice occurred . . . .”44 However, that
statute also provides that “with respect to which the person aggrieved has initially instituted
proceedings with a State or local agency . . . such charge shall be filed by or on behalf of the
person aggrieved within three hundred days after the alleged unlawful employment practice
occurred . . . .”45 Therefore, “[i]n a deferral state such as Kansas, a Title VII claimant must file
his discrimination charge within 300 days of the alleged unlawful act.”46
Here, Plaintiff filed her administrative charges with the EEOC and the KHRC on
December 28, 2009. Accordingly, the alleged misconduct must have occurred on or after March
3, 2009, 300 days prior to Plaintiff’s administrative charges. Plaintiff alleges numerous discrete
events that occurred within that time, including Weir’s statements about women on May 7, 2009,
Plaintiff’s complaints to Robinson and attempted complaint to Weir on that same day, and
Plaintiff’s termination on August 14, 2009.
Unlike traditional claims of sexual harassment, hostile work environment claims “do not
consist primarily of discrete acts, but often involve a series of incidents that span a period longer
than 300 days.47 “The continuing violations doctrine is available for hostile work environment
43
44
42 U.S.C. § 2000e-5(e)(1).
45
Id.
46
Fulcher, 2009 WL 6832587 at *2.
47
Id. (citing Zhu v. Fed. Hous. Fin. Bd., 389 F. Supp. 2d 1253, 1276 (D. Kan. 2005)).
Id.
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claims.”48 Under that doctrine, “as long as ‘an act’ contributing to a hostile work environment
took place no more than 300 days before the plaintiff filed an EEOC charge, a court may
consider the complete history of acts comprising the hostile work environment.”49 For the
continuing violations doctrine to apply, “there must be a relationship between acts alleged after
the beginning of the filing period and the acts alleged before the filing period.”50
Because Plaintiff’s administrative charges expressly allege a hostile work environment
arising from recurring events, the Court finds that the continuing violations doctrine applies to
Plaintiff’s claim. Plaintiff’s complaints to Robinson on May 7, 2009, fell within the 300-day
period. These complaints not only addressed her concern that Watkins was taking too much
power; they also contemplated the incident when Plaintiff walked in on Weir and Watkins in an
intimate position. The Court also notes that Plaintiff’s May 7, 2009, conversation with Robinson
occurred because Plaintiff was visibly upset after Weir made profane statements about women.
Because these allegations concern Plaintiff’s allegations of recurring events creating an
uncomfortable sexual and demeaning workplace, the Court finds that a sufficient relationship
exists between the acts alleged both before and after the administrative filing period.
Accordingly, the Court will consider the complete history of alleged acts in deciding Plaintiff’s
hostile work environment claim.
b.
Plaintiff’s Hostile Work Environment Claim
To establish a sexually hostile work environment claim, a plaintiff must demonstrate that
“(1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the
harassment was based on sex; and (4) due to the harassment’s severity or pervasiveness, the
48
49
Id.
50
Id.
Id.
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harassment altered a term, condition, or privilege of the plaintiff’s employment and created an
abusive working environment.”51 For the purposes of summary judgment, Defendants do not
dispute that Plaintiff is a member of a protected group or that Plaintiff encountered sexual or
gender-based statements and conduct. Instead, Defendants argue that Plaintiff’s allegations fall
short of establishing sufficiently severe and pervasive conduct to support her sexually hostile
work environment claim.
The Tenth Circuit has established that the severe and pervasive nature of alleged sexual
harassment must be established under both objective and subjective standards.52
To establish
the subjective aspect of a hostile work environment, the victim must merely show that she
subjectively perceived the environment to be abusive.53 Defendant argues that because Plaintiff
had worked in a police department for fifteen years prior to her employment with CompResults,
she was accustomed to foul language and was not offended by Weir’s conduct. The Court
disagrees. Plaintiff repeatedly alleges that she was very offended by Weir’s statements and
conduct. For example, several statements of uncontroverted fact reflect that, “[Plaintiff] was
stunned, embarrassed and appalled by the behavior of Weir and Watkins,”54 to the point that she
was visibly shaking. The Court finds that Plaintiff has successfully established the subjective
portion of her hostile work environment claim.
The objective component of a hostile work environment claim requires a plaintiff to
present evidence that a “reasonable person” would find the same harassment so severe and
pervasive that the workplace is objectively hostile or abusive. Under this standard, Plaintiff must
51
52
Harrison v. Eddy Potash, Inc., 248 F.3d 1014, 1023 (10th Cir. 2001).
53
Id.
54
Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007) (quotation and citations omitted).
Pl. Memorandum in Opp. To Defs.’ Mot. for Summary Judgment, Doc. 43, at 48.
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establish behavior “so objectively offensive as to alter the conditions of the victim’s
employment.”55 The United States Supreme Court has provided several non-exclusive factors
that district courts should consider to determine if alleged sexual harassment is severe and
pervasive: “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.”56 Finally, the Tenth Circuit has noted that “the severity
and pervasiveness evaluation is particularly unsuited for summary judgment because it is
quintessentially a question of fact.”57
The evidence before the Court shows that between Weir’s acquisition of CompResults in
August 2007 and Plaintiff’s termination in August 2009, Plaintiff encountered regular sexual and
gender-based comments and conduct. It is uncontroverted that Weir told Plaintiff that they
might have a closer friendship if they had engaged in a sexual relationship. Weir had physical
romantic interactions in the office with Watkins, a CompResults employee, and touched other
women under the table at business conferences. Weir displayed provocative photographs of
women on his computer and told Gordon that he preferred the photos of women with dark hair
and large breasts. Weir repeatedly grabbed his crotch in front of employees and clients even
after Plaintiff told him to stop. On several occasions, Weir made jokes about employees or
clients belonging to an advocacy group for pedophiles. Finally, a business meeting erupted when
Weir made profane statements about women’s hormones. The Court finds that a rational jury
could conclude that these facts describe a hostile work environment that is objectively severe and
pervasive. Because objective severity and pervasiveness constitute quintessential issues of fact,
55
56
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
57
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (internal quotations omitted).
O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1098 (10th Cir.1999) (internal quotations omitted).
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the Court denies Defendants’ motion for summary judgment on Plaintiff’s hostile work
environment claim.
2.
Retaliation
Count II of Plaintiff’s Complaint alleges that she suffered unlawful retaliation. The
relevant portion of Title VII concerning retaliation claims provides, “[i]t shall be an unlawful
employment practice for an employer to discriminate against any of his employees . . . because
he has opposed any practice made an unlawful employment practice.”58 The Court reviews
retaliation claims under the familiar McDonnell Douglas burden-shifting framework.59 “To
establish a prima facie claim for retaliation, a plaintiff must establish that “(1) she was engaged
in opposition to Title VII discrimination; (2) she was subjected to adverse employment action
subsequent to or contemporaneous with the protected activity; and (3) there is a causal
connection between the protected activity and the adverse employment action.”60 If a plaintiff
establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the adverse action.61 If the defendant carries that burden, the
burden shifts back to the plaintiff to show that “the reason given by the employer is mere pretext
for the real, discriminatory reason for the adverse action.”62 Here, Defendants concede that
Plaintiff suffered an adverse employment action when she was terminated on August 14, 2009,
but Defendants dispute that Plaintiff engaged in protected activity or that a causal connection
exists between protected activity and any adverse employment action.
58
59
Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004).
60
Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1262–63 (10th Cir. 1998).
61
Butler v. City of Prairie Village, Kan., 172 F.3d 736, 752 (10th Cir. 1999).
62
42 U.S.C. § 2000e-3(a).
Hennagir v. Utah Dept. of Corrections, 587 F.3d 1255, 1265 (10th Cir. 2009).
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To establish a causal connection necessary for a prima facie case of retaliation, the
plaintiff “must show that the individual who took adverse action against [her] knew of the
employee’s protected activity.”63 When the alleged adverse employment action is termination,
the plaintiff must show that the decision-maker responsible for her termination knew about a
protected action.64 Here, Plaintiff alleges that she engaged in protected activity when she issued
complaints to Robinson on May 7, 2009, and several weeks later, in June 2009. It is undisputed
that Weir was the sole decision-maker with regard to Plaintiff’s termination. Accordingly,
Plaintiff must demonstrate that Weir knew of Plaintiff’s complaint to Robinson concerning his
romantic relationship with Watkins at the time Weir made the termination decision.
In a sworn affidavit,65 Robinson indicates that he only informed Weir that Plaintiff and
Watkins were struggling for power and responsibility in the company. Robinson did not inform
Weir or anyone else that Plaintiff reported walking in on Weir and Watkins, and Robinson did
not inform Weir that Plaintiff made any complaint of sexual harassment or discrimination. Weir
also submitted a sworn affidavit that describes his conversation with Robinson:
At some point in either June or early July 2009, Kevin Robinson came to me and
said he had talked to [Plaintiff] and it was his opinion that he thought I had a
“power struggle” going on. It was obvious to me that he was talking about
[Plaintiff’s] resistance to Julie Watkins and Mike McTeer. I looked at Kevin
Robinson and told him, “I know.” The conversation ended at that point. Kevin
Robinson did not say anything else to me about [Plaintiff] during this
conversation. After this conversation, I cannot recall talking to Kevin Robinson
about [Plaintiff] up through the time her employment was terminated on August
14, 2009.66
63
64
Kendrick v. Penske Transp. Services, Inc., 220 F.3d 1220, 1234 (10th Cir. 2000).
65
Aff. of Kevin Robinson, Doc. 45-4, at 4.
66
Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993).
Aff. of James Weir, Doc. 36, at 12-13.
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Weir’s affidavit indicates that he had no knowledge of Plaintiff’s complaints until after her
termination: “The first time I heard about [Plaintiff] making a complaint or allegations of sexual
harassment or gender discrimination was several weeks after her employment ended through a
letter from her attorney.”67 Plaintiff has not provided any evidence to controvert the sworn
affidavits of Weir and Robinson. Because the evidence before the Court indicates that Weir had
no knowledge of Plaintiff’s alleged protected activity when he terminated Plaintiff, the Court
finds that Plaintiff cannot demonstrate the causal nexus required to establish a prima facie case
of retaliation. Therefore, summary judgment is appropriate on Plaintiff’s retaliation claim, and
the Court need not reach the parties’ arguments regarding whether Plaintiff’s complaints to
Robinson properly constitute protected activity or whether Defendants’ proffered reasons for
terminating Plaintiff were pretextual.
IT IS ACCORDINGLY ORDERED that Defendant Weir’s Motion to Dismiss (Doc.
15) is GRANTED.
IT IS FURTHER ORDERED that Defendants’ Motion to Strike Plaintiff’s Expert
Designation (Doc. 49) is GRANTED.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (Doc.
33) is GRANTED IN PART AND DENIED IN PART.
IT IS SO ORDERED.
Dated this 22nd day of February, 2013.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
67
Id. at 16.
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