Villamar v. Lincare, Inc.

Filing 50

MEMORANDUM AND ORDER granting 40 Motion for Summary Judgment; granting 49 Motion for Leave to File. Signed by District Judge Julie A. Robinson on 8/14/14. (hw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JACQUELINE VILLAMAR,

)
)
Plaintiff,
)
)
)
vs.
)
)
LINCARE, INC.,
)
)
Defendant.
)
____________________________________)

Case No. 13-2220-JAR

MEMORANDUM AND ORDER
Plaintiff filed this action alleging claims against Lincare, Inc. for race discrimination,
hostile work environment, and retaliation in violation of 42 U.S.C. § 1981. This matter is before
the Court on Defendant Lincare, Inc.’s Motion for Summary Judgment (Doc. 40) and on
Plaintiff’s Motion for Leave to File a Surreply Memorandum in Opposition to Defendant’s
Motion for Summary Judgment (Doc. 49). The motions are fully briefed and the Court is
prepared to rule. As described more fully below, Defendant’s motion for summary judgment is
granted. The Court also grants Plaintiff’s motion for leave to file a surreply.
I.

Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is “no

genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.”1
In applying this standard, the court views the evidence and all reasonable inferences therefrom in
the light most favorable to the nonmoving party.2 “There is no genuine issue of material fact
unless the evidence, construed in the light most favorable to the nonmoving party, is such that a
1

Fed. R. Civ. P. 56(a).

2

City of Harriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).

reasonable jury could return a verdict for the nonmoving party.”3 A fact is “material” if, under
the applicable substantive law, it is “essential to the proper disposition of the claim.”4 An issue
of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of fact
could resolve the issue either way.”5
The moving party initially must show the absence of a genuine issue of material fact and
entitlement to judgment as a matter of law.6 In attempting to meet this standard, a movant that
does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim;
rather, the movant need simply point out to the court a lack of evidence for the other party on an
essential element of that party’s claim.7
Once the movant has met this initial burden, the burden shifts to the nonmoving party to
“set forth specific facts showing that there is a genuine issue for trial.”8 The nonmoving party
may not simply rest upon its pleadings to satisfy its burden.9 Rather, the nonmoving party must
“set forth specific facts that would be admissible in evidence in the event of trial from which a

3

Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

4

Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001) (citing
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
5

Adler, 144 F.3d at 670 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

6

Spaulding v. United Trasp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986)).
7

Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at
671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).
8

Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324; Spaulding, 279 F.3d at 904 (citing Matsushita Elec.
Indus. Co., 475 U.S. at 587).
9

Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).

2

rational trier of fact could find for the nonmovant.”10
Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it
is an important procedure “designed to secure the just, speedy and inexpensive determination of
every action.”11 In responding to a motion for summary judgment, “a party cannot rest on
ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the
mere hope that something will turn up at trial.”12 When examining the underlying facts of the
case, the Court is cognizant that it may not make credibility determinations or weigh the
evidence.13
II.

Uncontroverted Facts
The following facts are either uncontroverted, stipulated to, or viewed in the light most

favorable to plaintiff.
In 2011, Plaintiff Jacqueline Villamar was employed by Kelly Services, Inc. Plaintiff is
Hispanic, and her family is from Mexico, where she lived for a time as a child. Kelly Services,
Inc. assigned Plaintiff to work at Defendant Lincare Inc. on November 22, 2011, as a temporary
worker. Lincare employees are responsible for processing certain Medicare claims. In
November 2011, due to an influx of Medicare audits, Lincare’s Lawrence, Kansas office began
using temporary employees through Kelly Services. Kelly assigned three temporary workers to
Lincare, including Plaintiff; she was temporarily assigned to work at Lincare from November 22,

10

Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197–98 (10th Cir. 2000) (quoting Adler, 144 F.3d at
671); see Kannady, 590 F.3d at 1169.
11

Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).

12

Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).

13

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

3

2011, until the date of her termination on May 31, 2012. Plaintiff was never employed by
Defendant.14
While she was assigned to Lincare, Plaintiff was supervised by Carol Wiley. Wiley was
the supervisor of the Medicare department and her duties were to manage the staff members
assigned to the department. Lea Ann Cooper was the manager of Lincare’s Regional Billing and
Collection Office (“RBCO”) in Lawrence, Kansas. She is at the top of the organizational chart
for the Lawrence office. In order to terminate an employee, Cooper must have the approval of
Lincare’s corporate office in Clearwater, Florida. Phil Phenis was Cooper’s boss in the
corporate office.
Lincare permanent employee Stacey Herschell, who began working at Lincare in 2008,
was also supervised by Carol Wiley during Plaintiff’s tenure at Lincare. Like Plaintiff, Herschell
worked in the Medicare department. When Plaintiff began working at Lincare, Herschell
seemed eager to be Plaintiff’s friend outside of work. They exchanged phone numbers. But
Plaintiff eventually felt that Herschell was trying to “copy her style,” and that Herschell was
immature and awkward. On one occasion, the two socialized outside of work. In December of
2011, Plaintiff and her boyfriend were together with Herschell and several others at a pool hall in
Lawrence. As Plaintiff and her boyfriend tried to leave the pool hall, Herschell pushed Plaintiff
out of the way and attempted to kiss Plaintiff’s boyfriend. Later, at work, Herschell told Plaintiff
that she would like to go out with Plaintiff’s boyfriend herself. At this point, Plaintiff became
hesitant to socialize with Herschell outside of work and kept her distance.
At the end of February 2012, Plaintiff had a birthday party and did not invite Herschell.
14
For purposes of summary judgment, Defendant assumes that 42 U.S.C. § 1981 applies to Plaintiff as
though she were an employee of Lincare.

4

Herschell found out about the party and began acting out toward Plaintiff. She shoved Plaintiff
as the workers were gathering files for the day’s work, she stared at Plaintiff angrily, she stepped
into Plaintiff’s path as Plaintiff was walking around the building, and she would mutter words
under her breath while looking at Plaintiff such as “stupid bitch,” “dumb bitch,” “what a moron,”
and “idiot.” On one occasion around the time of her birthday, Plaintiff recalls that Cooper had
purchased ice cream for all of the employees. When Plaintiff asked whether temporary workers
were included, Herschell pushed Plaintiff in the face and said, “Not you.”
Plaintiff complained to Wiley that Herschell was mean to her and that Plaintiff could not
work with her because the conduct made it hard for her to focus on her work. She told Wiley:
I wanted to file harassment, like hostile work environment,
because it was just—it would bother me to where sometimes I
couldn’t even finish my work because she would do things like
throw away the papers I printed or turn off the copier if I was
printing something just because she knew it was my stuff that was
being printed and thought that was funny, things like that.15
Cooper understood that Herschell also complained to Wiley about Plaintiff. Cooper did
not believe that the situation was covered by Lincare’s anti-harassment policy because the
complaints seemed to her to be merely a personality conflict. Cooper and Wiley met separately
with Plaintiff and Herschell. They told both Plaintiff and Herschell that they needed to get
along; Cooper instructed Herschell to treat Plaintiff in a professional and respectful manner.
Cooper told Plaintiff that if the conflict continued, Cooper would more than likely have to let
Plaintiff go from the assignment because Plaintiff was a temporary worker and Herschell was a
regular employee. During this meeting Plaintiff never reported any race-related comment to Lea

15

Doc. 41-3 at 62:14–23.

5

Ann Cooper. Cooper asked Wiley to make sure to keep her updated about the situation to make
sure that it did not escalate.
After the meeting, Cooper moved Plaintiff to a different area of the Medicare department
which handled redeterminations—Cooper decided to move Plaintiff based on the personality
conflict and based on an increased workload in that area of the department. Plaintiff welcomed
the move because it meant she had no reason to work with Herschell on a daily basis anymore.
Nonetheless, Herschell came to the redeterminations area to chat with Michelle Fry, another
employee there. Herschell continued to act out toward Plaintiff: she rolled her eyes at Plaintiff
and ignored her if she was standing by her, Herschell turned off the printer when Plaintiff was
using it on three separate occasions, and Herschell threw documents that Plaintiff had printed
into the shred bin.
After Plaintiff moved to the redeterminations area, she read the Lincare employee
manual, including Lincare’s anti-harassment and anti-discrimination policies. The Policy for
reporting concerns of harassment provides that employees should report such concerns to: (1) the
National Reimbursement Manager, (2) the Employee Relations Director, or (3) the Human
Resources Manager. Lincare also has a Problem Resolution Procedure, which provides four
steps which a Lincare employee should use to resolve a problem in the workplace: (1) discuss
the problem with his or her immediate supervisor, (2) request a meeting, in writing, with the
Area Manager, (3) refer the problem to the Regional Vice President or other appropriate
manager, and (4) present a written request to the Employee Relations Director.
After Plaintiff’s meeting with Cooper and Wiley, but sometime before May 17, 2012,
Plaintiff heard Herschell say, “the brown bitch.” Herschell was not talking directly to Plaintiff;

6

she was muttering it under her breath. Plaintiff understood that it was directed to her because
Plaintiff was walking in Herschell’s way. Plaintiff also overheard Herschell talking to another
employee about a babysitter or housekeeper. She said “these people should stick to gardening
and housework.” Plaintiff was not certain, but believed Herschell was talking about Hispanics,
and assumed it was directed at her. Plaintiff never reported either of these comments to anyone
at Lincare. She believed that if she complained, she would be terminated based on Cooper’s
statements to her at their previous meeting.
On May 17, 2012, Plaintiff overheard Herschell tell another employee, Ashley Benson,
“Well, I’m going to call you Mexico because you just love going to Mexico City.” Plaintiff
believes that this comment referred to Plaintiff because she was the only Hispanic person in the
building and because she knew Herschell disliked her. Herschell and Benson were on the other
side of a cubicle wall from Plaintiff when the comment was made. Benson later apologized to
Plaintiff for Herschell’s comment, telling her that “she didn’t feel that way, she wasn’t a racist
person, pretty much.”16
On May 18, 2012, Plaintiff met with Wiley and reported what Herschell said to Benson;
she never reported the race-related comments to Cooper, nor any other claim of discrimination or
harassment. Plaintiff was angry and cried. She told Wiley that she was going to tell Kelly
Services about the incident, and expressed her concern that if Wiley talked to Cooper, Cooper
would terminate her based on her statements at the last meeting. Plaintiff told Wiley that she
wanted to “file a complaint of hostile work environment.” She believed that under Lincare’s

16

Doc. 41-3, Ex. B at 42:15–19. Defendant’s hearsay objection to this statement is overruled and denied.
The Court agrees with Plaintiff’s argument in the surreply that this is a statement by a party opponent since Benson
is an agent of Lincare.

7

anti-harassment policy, she was taking the first step in the problem resolution procedure by
telling her immediate supervisor. Neither Wiley nor Brian Thomas, the assistant manager, ever
told Cooper that Plaintiff had complained about Herschell harassing her because she was
Hispanic.
On May 31, 2012, Herschell sent an email to Sheila Dilley in human resources,
complaining about Plaintiff and reporting that Plaintiff had created a hostile environment for
Herschell. Dilley forwarded this email to Cooper, who responded, copying Phenis. Cooper
stated in the email:
I first became aware of this situation about 3 months ago. Stacey
had expressed to her direct Supervisor, Carol Wiley, that she was
having issues with Jacky. Carol brought the issue to my attention
so I got each of them together individually with Carol to see what
exactly was going on. I, was [sic] well as Carol, felt it was clearly
a personality conflict and had nothing to do with work. Jacky had
been working directly with Stacey on the front end audit process
and we were in the process of moving Jacky over to work with a
different staff member to work on getting our denials sent into
redeterminations.
I specifically asked Stacey during the time that Jacky was working
directly with her was she or was she not doing the job that we
brought her in to do, Stacey confirmed that Jacky was doing what
was assigned to her. I believe the outcome that Stacey was looking
for was for me to have the temp service not send Jacky back. I felt
I could not do that due to the time we had spent training this
individual and also due to the fact that she was doing/performing
her assigned duties.
I told both of them this issue had nothing to do with work and that
both of them needed to be professional to each other and stop
talking about each other. Since that meeting I have heard nothing
further from either one of them that the issue was still going on. I
just spoke with their direct supervisor, Carol Wiley, to see if they
had continued to bring this issue up with her and she said no, that
for the most part each of them pretty much ignore each other.
I am at a little bit of a loss as what to do about this situation and would
8

appreciate any suggestions you can offer.17
Phenis made the decision to terminate Plaintiff’s assignment at Lincare and he directed Cooper
to terminate her.
Plaintiff has never met or talked to Phil Phenis. Plaintiff never reported any race-related
comment to anyone in Lincare’s human relations or employee relations departments. Plaintiff
never reported any race-related comment to Lincare’s National Reimbursement Manager.
Plaintiff never reported any race-related comment to anyone at Lincare’s corporate headquarters
in Clearwater, Florida.
III.

Discussion
A.

McDonnell Douglas Standard

Plaintiff brings three claims of relief in this case under 42 U.S.C. § 1981: (1) disparate
treatment on the basis of race, (2) retaliation, and (3) hostile work environment. The parties
agree that the disparate treatment and retaliation claims must be decided under the familiar
McDonnell Douglas v. Green18 burden-shifting framework because Plaintiff relies on
circumstantial evidence.19 Under McDonnell Douglas, plaintiff initially bears the burden of
production to establish a prima facie case of discrimination or retaliation.20 The burden of
establishing the prima facie case is “not onerous.”21 If plaintiff establishes a prima facie case,

17

Doc. 41-5, Ex. D at 1.

18

411 U.S. 792, 802–05 (1973).

19

See, e.g., Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011).

20

McDonnell Douglas, 411 U.S. at 802.

21

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 238, 253 (1981).

9

the burden shifts to defendant to articulate a facially nondiscriminatory reason for its actions.22
If defendant articulates a legitimate nondiscriminatory reason, the burden shifts back to plaintiff
to present evidence from which a jury might conclude that defendant’s proffered reason is
pretextual, that is, “unworthy of belief.”23
B.

Disparate Treatment on the Basis of Race

To establish a prima facie case of race discrimination, Plaintiff must show that (1) she is
a member of a protected class; (2) she suffered an adverse employment action; and (3) the
challenged action took place under circumstances giving rise to an inference of discrimination.24
The first two elements of plaintiff’s prima facie case are not in dispute. The parties dispute
whether Plaintiff has come forward with evidence to establish a genuine issue of material fact on
the third element of her prima facie case. Plaintiff contends that Lincare gave a false explanation
for terminating Plaintiff’s assignment because Wiley failed to tell Cooper that Plaintiff had
complained about racial harassment and that Plaintiff had told her about Herschell’s “Mexico
City” remark. But assuming, as the Court must, that Wiley misrepresented to Cooper that
Plaintiff had not complained to her about Herschell’s comments, it is not evidence that Lincare’s
explanation for terminating Plaintiff was false, but instead, merely shows that Plaintiff’s

22

Id.; Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1113 (10th Cir. 2007).

23

Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir. 1998) (quoting Randle v. City of Aurora, 69
F.3d 441, 451 (10th Cir. 1995)).
24

EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 & n.5 (10th Cir. 2007) (discussing how elements of prima
facie case in discrimination cases vary depending on context). In the Tenth Circuit, the prima facie case no longer
requires a “similarly-situated person” comparison. See Sorbo v. UPS, 432 F.3d 1169, 1173 (10th Cir. 2005). While
the third element may be shown by evidence that the employer treated similarly-situated employees more favorably,
“such proof is just one sufficient means to do this and should not itself be mistaken as an indispensable element of
the prima facie case.” Id. While the Court acknowledges Plaintiff’s representations in the Pretrial Order that she was
treated less favorably than Herschell, whom she characterized as similarly-situated, it will not require this as an
essential element of the prima facie case.

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immediate supervisor failed to convey the complaints to Cooper or Phenis.
Defendant argues that Wiley was not untruthful in telling Cooper that these employees
had not raised “this issue” with her, as it is reasonable to infer that Wiley understood “this issue”
to be the personality conflict issue. But the Court views all inferences in the light most favorable
to Plaintiff. Nonetheless, whether or not Wiley lied to Cooper when she told her that Plaintiff
had not continued to “raise this issue” with her, it is uncontroverted that Phenis made the
decision to terminate Plaintiff, and there is no evidence that Phenis’ decision to terminate
Plaintiff was based on Wiley’s misrepresentation to Cooper. Instead, Lincare maintains that it
terminated Plaintiff based on a complaint of harassment by Herschell, a regular employee,
against Plaintiff, a temporary employee, after previously counseling the employees about a
personality conflict. The fact that Plaintiff’s immediate supervisor withheld information from
the decisionmaker in this case does not tend to show that the decisionmaker’s reason for
terminating Plaintiff’s assignment was false, just that it may have been based on incomplete
information. Plaintiff has therefore failed to come forward with evidence in support of the third
element of her prima facie case.
Defendant has articulated a legitimate nondiscriminatory reason for terminating Plaintiffs
temporary employment—that Plaintiff, a temporary employee, had a personality conflict with
one of its permanent employees, Herschell. When Herschell complained to Defendant that
Plaintiff was harassing her, Defendant terminated Plaintiff’s temporary assignment. Plaintiff
argues, as with the prima facie case, that this reason is a pretext for discrimination based on
evidence that Plaintiff’s immediate supervisor falsely represented to the decisionmaker that the
conflict between Plaintiff and Herschell had dissipated after Plaintiff was moved to a different

11

area of the department.
In Reeves v. Sanderson Plumbing Products, Inc.,25 the Supreme Court explained that a
defendant’s false explanation of the proffered reason for the adverse employment action is one
form of circumstantial evidence that may be persuasive.26
In appropriate circumstances, the trier of fact can reasonably infer
from the falsity of the explanation that the employer is dissembling
to cover up a discriminatory purpose. Such an inference is
consistent with the general principle of evidence law that the
factfinder is entitled to consider a party’s dishonesty about a
material fact as “affirmative evidence of guilt.” Moreover, once
the employer’s justification has been eliminated, discrimination
may well be the most likely alternative explanation, especially
since the employer is in the best position to put forth the actual
reason for its decision. Thus, a plaintiff’s prima facie case,
combined with sufficient evidence to find that the employer’s
asserted justification is false, may permit the trier of fact to
conclude that the employer unlawfully discriminated.27
As already discussed, the Court does not find that Plaintiff has come forward with evidence that
shows Lincare’s stated reason for terminating Plaintiff was false—it is uncontroverted that
Phenis made the decision to terminate her assignment and that the decision was made without
knowledge of Plaintiff’s complaint to Wiley about harassment or Herschell’s “Mexico City”
comment. At best, the evidence merely shows that Wiley withheld information that may have
led Cooper and Phenis to make a different decision. It does not show that Phenis and Cooper
were dishonest, triggering a permissible inference that they were covering up a discriminatory
basis for Plaintiff’s termination. “The relevant inquiry is not whether [the defendant’s] proffered

25

530 U.S. 133 (2000).

26

Id. at 147.

27

Id. at 147–48 (citations omitted).

12

reasons were wise, fair or correct, but whether [it] honestly believed those reasons and acted in
good faith upon those beliefs.”28
Recognizing that Phenis, and not Wiley, made the decision to terminate Plaintiff’s
assignment, Plaintiff argues that Wiley’s omission should be imputed to Cooper and/or Phenis in
determining whether there is a permissible inference of discrimination in this matter. In a “cat’s
paw” case, the employee seeks to impose liability “for the animus of a supervisor who was not
charged with making the ultimate employment decision.”29 In a case involving discrimination
based on military service, the United States Supreme Court held in Stab v. Proctor Hospital, that
“if a supervisor performs an act motivated by antimilitary animus that is intended by the
supervisor to cause an adverse employment action, and if that act is a proximate cause of the
ultimate employment action, then the employer is liable.”30 The facts of this case, however, do
not lend themselves to a cat’s paw theory of liability because there is no evidence in the record
that Wiley’s failure to communicate Plaintiff’s harassment complaints to her superiors was an act
motivated by racial animus or done with intent to cause an adverse employment action. All of
the evidence of racial animus points to Plaintiff’s co-worker Herschell. Moreover, there is no
evidence that Wiley’s failure to tell Cooper about Plaintiff’s complaints was intended to cause an
adverse employment action. While the record is not clear about Wiley’s motivations for not
telling Cooper about Plaintiff’s complaints when specifically asked if she continued to have
issues with Herschell or Plaintiff, the record is clear that Plaintiff told Wiley she was afraid that

28

Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1137 (10th Cir. 2004) (citations omitted), see also Rivera
v. City & Cnty. of Denver, 365 F.3d 912, 924–25 (10th Cir. 2004).
29

Staub v. Proctor Hosp., 131 S. Ct. 1186, 1190 (2011).

30

Id. at 1194.

13

if Cooper learned of her complaints, she may be terminated. While a reasonable jury may infer
that Wiley withheld the information about Plaintiff’s complaints because Plaintiff had expressed
concern about Cooper’s reaction, there is no evidence or reasonable inference that Wiley
withheld this information out of racial animus, or with intent to cause an adverse employment
action. The cat’s paw theory of liability is inapplicable to the facts of this case.
In sum, the circumstantial evidence relied on by plaintiff does not establish a genuine
issue of material fact with respect to either her prima face case of race discrimination or that
Defendant’s proffered reason for her termination is unworthy of credence.31 Summery judgment
is granted to Defendant on the disparate treatment claim.
C.

Retaliation

The elements of a prima facie claim of retaliation are: (1) the employee engaged in
protected opposition to discrimination; (2) the employee suffered an adverse employment action
during or after his protected opposition that a reasonable employee would have found materially
adverse; and (3) a causal connection exists between the protected activity and the materially
adverse action.32 The Supreme Court has recently clarified that a Title VII plaintiff asserting a
claim of retaliation must show that his protected activity was the but-for cause of the alleged
adverse employment action.33

31

Plaintiff abandons her claim in the Pretrial Order that she was treated less favorably than Herschell, a
similarly situated employee. Plaintiff has therefore waived this argument. Nonetheless, there is no genuine issue of
material fact that these were not similarly situated employees given Plaintiff’s status as a temporary employee.
Moreover, they were not treated differently based on the same conduct: Herschell’s complaint was made in writing
directly to human resources, which communicated the complaint to Cooper. Plaintiff verbally complained to Wiley,
who did not convey the complaint to her superiors.
32

Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1201–02 (10th Cir. 2008); McGowan v. City of Eufala,
472 F.3d 736, 741 (10th Cir. 2006).
33

Univ. of Tex. S.W. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).

14

Defendant argues that Plaintiff is unable to establish a causal connection between the
protected opposition in this case and the adverse employment action. Plaintiff points to two
pieces of circumstantial evidence of causation: (1) close temporal proximity between Plaintiff’s
report to Wiley on May 18, 2012 about Herschell’s racist comment, and her termination on May
31, and (2) the same “false explanation” evidence presented on Plaintiff’s discrimination claim.
The Court has already considered and rejected Plaintiff’s argument that Lincare offered a false
explanation for its decision to terminate Plaintiff’s temporary assignment. For the reasons
explained in detail on the disparate treatment claim, the evidence proffered by Plaintiff does not
support her assertion that Lincare offered such a false explanation that would warrant an
inference of retaliation.
Moreover, the close temporal proximity between the protected activity and the adverse
employment action in this case is insufficient to establish but-for causation. A causal connection
between protected activity and adverse action may be shown by temporal proximity if the
protected activity and the adverse action occurred so closely situated in time as to give rise to the
inference of causation.34 While the Plaintiff’s complaint and her termination were very closely
situated in time, Plaintiff cannot show that the challenged decisions would not have been made
“but for” the retaliatory intent.35 It is uncontroverted that the decisionmaker in this matter,
Phenis, was unaware of Plaintiff’s protected activity on May 18, 2012. Because he was unaware
of her protected activity, there could be no connection between her harassment complaint to
Wiley on May 18, and Phenis’ decision to terminate her on May 31 after Herschell complained

34

Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999).

35

Nassar, 133 S. Ct. at 2533.

15

of harassment.36 Because Plaintiff cannot come forward with evidence in support of her prima
facie case of discrimination, Defendant’s motion for summary judgment is granted on this claim.
D.

Racially Hostile Work Environment

To survive summary judgment on a hostile work environment claim, a plaintiff must
show that “under the totality of the circumstances, the harassment was pervasive or severe
enough to alter the terms, conditions, or privileges of employment, and that the harassment was
based on or stemmed from his race.”37 Plaintiff must establish that the environment would be
“reasonably perceived (objectively), and is perceived (subjectively), as hostile or abusive.”38 In
addition, a plaintiff must be able to point to “more than a few isolated incidents of racial
enmity.”39 While the severity and pervasiveness inquiry “is particularly unsuited for summary
judgment because it is quintessentially a question of fact,”40 the Tenth Circuit has affirmed
several summary judgments granted at least in part on the severity and pervasiveness
requirement.41 “Mere snubs, unjust criticisms, and discourteous conduct are not actionable; to
establish a hostile work environment, plaintiff must show that the alleged harassment is

36

See, e.g., Jones v. Barnhart, 349 F.3d 1260, 1269 (10th Cir. 2003)

37

Stewart v. Bd. of Comm’rs for Shawnee Cnty., Kan., 216 F. Supp. 2d 1265, 1278 (D. Kan. 2002) (citations

omitted).
38

Lewis v. Standard Motor Prods., Inc., 203 F. Supp. 2d 1228, 1235 n.31 (D. Kan. 2002) (citing Nieto v.
Kapoor, 268 F.3d 1208, 1220 (10th Cir. 2001) (citations omitted)).
39

Id. (citations omitted).

40

Hernandez v. Valley View Hosp., 684 F.3d 950, 957 (10th Cir. 2012).

41

See Lounds v. Lincare, No. 13-1091-RDR, 2014 WL 3361751, at *8 (D. Kan. July 9, 2014) (collecting

cases).

16

excessive, opprobrious, and more than casual conversation.”42 This Court has held that:
Harassment must be sufficiently severe or pervasive, and the court
should consider all of the circumstances, including: the frequency
of the discriminating 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.43
Defendant argues that summary judgment is warranted on this claim because (1) Plaintiff
cannot show that the alleged harassment was based on her race, (2) the alleged conduct was not
sufficiently severe or pervasive, and (3) there is no basis for employer liability. Because the
Court finds an absence of evidence of more than a few isolated incidents of racial enmity by a
single coworker, summary judgment is appropriate on this claim.
It is undisputed that the only source of harassment at Lincare was Plaintiff’s co-worker
Herschell. Construing the facts in the light most favorable to Plaintiff, when Plaintiff began her
temporary assignment at Lincare, Herschell was eager to become her friend. They exchanged
phone numbers and Herschell expressed interest in socializing with Plaintiff outside of work.
Although Plaintiff was upset by Herschell’s conduct at the pool hall toward her boyfriend, the
evidence suggests that Herschell continued to seek out Plaintiff’s friendship. The relationship
soured when Herschell discovered that Plaintiff did not invite her to her birthday party in late
February 2012.
Throughout March, April, and May 2012, Herschell exhibited verbal and physical
animosity toward Plaintiff. Herschell shoved Plaintiff as the employees gathered files for the

42

Stewart, 216 F. Supp. 2d at 1280 (citing Garcia-Paz v. Swift Textiles, Inc., 873 F. Supp. 547, 561–62 (D.
Kan. 1995)).
43

Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775 (1998)).

17

day’s work, she stared at Plaintiff angrily, she stepped into Plaintiff’s path as Plaintiff was
walking around the building, and she would mutter words under her breath while looking at
Plaintiff such as “stupid bitch,” “dumb bitch,” “what a moron,” and “idiot.” On one occasion
around the time of Plaintiff’s birthday, Herschell pushed Plaintiff in the face when Plaintiff
asked if the ice cream provided by Cooper for the employees included the temporary employees.
After this physical incident, Plaintiff complained to Wiley and Cooper and Cooper
decided to move Plaintiff to a different department. Yet Herschell continued to act out toward
Plaintiff: she rolled her eyes at Plaintiff and ignored her, she turned off the printer when Plaintiff
was using it on three separate occasions, and she threw documents that Plaintiff had printed into
the shred bin.
It is undisputed that this conduct, with the exception of three comments discussed below,
was racially neutral. When considering whether there was a hostile work environment at
Lincare, the Court must consider the work environment as a whole, including racially-neutral
conduct.44 While Defendant is correct that hostile work environment harassment must be based
on race, “facially neutral abusive conduct can support a finding of racial animus sufficient to
sustain a hostile work environment claim when that conduct is viewed in the context of other,
overtly [racially]-discriminatory conduct.”45 The Court considers all of the conduct directed
toward Plaintiff in determining whether Plaintiff was subjected to an objectively hostile work
environment. However, as described below, even taking all of this conduct into account, the
Court cannot find that a rational jury would determine that the alleged harassment was so severe

44

Hernandez, 684 F.3d at 960.

45

Id.

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and pervasive that it amounted to an objectively hostile work environment.
Construing the facts in the light most favorable to Plaintiff, Herschell made three
comments based on Plaintiff’s race: the comment about Mexico City, the comment about
housekeepers and babysitters, and the muttered “brown bitch” comment. Plaintiff was
subjectively offended by these comments and felt that they were directed to her, even though
they were not spoken directly to her. While these comments are surely offensive, the Court
cannot find that they rise to the level of severity and pervasiveness required to support a hostile
work environment claim. The comments about Mexico City and about housekeepers and
gardeners were made to others; Plaintiff overheard them and believed they were directed to her
because she was the only Hispanic person employed at Lincare. The “brown bitch” comment
was muttered under Herschell’s breath as she walked by Plaintiff. While the Court recognizes
that the comments need not be expressly directed at Plaintiff to be actionable,46 the fact that they
were not directed to her makes them less indicative of a hostile work environment.47 None of
the comments were made in a threatening manner or with menacing words. The three comments
occurred during the span of less than three months—after the first meeting with Wiley and
Cooper.
The Court finds that the derogatory comments fall far short of the “steady barrage” of
racial acts or epithets required for the conduct to be considered severe and pervasive.48 The
comments instead amount to sporadic racial slurs. While the Court recognizes that these

46

See id. at 959.

47

See Carpenter v. S.W. Bell Tele. Co., – F. Supp. 2d –, 2014 WL 2707869, at *2 (D. Kan. June 13, 2014)
(citing Harris v. Wackenhut Servs., Inc., 590 F. Supp. 2d 54, 76 (D.D.C. 2008)).
48

See Carpenter, 2014 WL 2707869, at *2.

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comments were made after a series of “rude and boorish” racially-neutral acts by Herschell,
those racially neutral acts are not enough to transform three isolated comments into the severe
and pervasive conduct required to sustain Plaintiff’s claim. Given the frequency, content, and
context of these comments, a reasonable jury could not find under the totality of the
circumstances that all of Herschell’s behavior was the product of racial hostility. Instead, the
Court finds that this is a case involving “mere snubs, unjust criticisms, and discourteous
conduct”49 that falls short of an objectively hostile work environment. Only after Plaintiff made
the initial complaint about Herschell to her supervisors, did Herschell’s behavior elevate to
include the three racially offensive comments. The evidence suggests that Herschell was
retaliating against Plaintiff for not inviting her to her birthday party. While Herschell’s conduct
was inappropriate and rude, the entire series of conduct, when viewed in the light most favorable
to Plaintiff, does not create a genuine issue of material fact about whether Plaintiff was subjected
to a racially hostile work environment. Summary judgment is therefore granted on this claim.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion for
Summary Judgment (Doc. 40) is granted.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File a Surreply
Memorandum in Opposition to Defendant’s Motion for Summary Judgment (Doc. 49) is
granted.
IT IS SO ORDERED.
Dated: August 14, 2014

49

Id. (quotation omitted); see also Garcia-Paz v. Swift Textiles, Inc., 873 F. Supp. 547, 561–62 (D. Kan.

1995).

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S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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