Sharp v. Owens Corning Corporation
Filing
38
MEMORANDUM AND ORDER granting in part and denying in part 30 Defendant's Motion for Summary Judgment. It is denied as to plaintiff's claim of gender harassment and is otherwise granted. Signed by District Judge John W. Lungstrum on 08/13/2018. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (ses)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Jill Sharp,
Plaintiff,
v.
Case No. 17-cv-2463-JWL
Owens Corning Insulating Systems, LLC,
Defendant.
MEMORANDUM & ORDER
Plaintiff Jill Sharp filed this lawsuit against her former employer asserting claims of gender
discrimination and harassment in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
42 U.S.C. § 2000e et seq., and disability discrimination in violation of the Americans with
Disabilities Act (“ADA”), as amended by ADA Amendments Act of 2008 (“ADAAA”), Pub. L.
No. 110-325, 122 Stat. 3553, 42 U.S.C. § 12101 et seq. 1 This matter is presently before the court
on defendant’s motion for summary judgment on all claims (doc. 30). As explained below, the
motion is denied as to plaintiff’s claim of gender harassment and is otherwise granted.
I.
Facts
The following facts are uncontroverted, stipulated in the pretrial order, or related in the
light most favorable to plaintiff as the nonmoving party. Defendant Owens Corning Insulating
Systems, LLC operates a fiberglass insulation production facility in Kansas City, Kansas. Plaintiff
In the pretrial order, plaintiff asserted a claim of retaliation under the ADA. She has expressly
withdrawn that claim in her response to the motion for summary judgment.
1
Jill Sharp began her employment as a production employee with defendant in May 1998. Plaintiff
was employed by defendant for many years without incident. In March 2014, plaintiff began
training as an Unbonded Technician (“UBT”) on C shift at the production facility. In June 2014,
plaintiff was certified as a UBT Operator on defendant’s U3 production line, after which she was
transferred to B shift as a UBT Operator. In March 2015, plaintiff was transferred back to C shift
as a UBT Operator on the U3 production line and, at that time, she began working with fellow
UBT Operators Gary Barrier and Bill Cockrum.
Plaintiff worked with Mssrs. Barrier and
Cockrum for approximately one year, during which time she was the only woman working in that
area of the production line on that shift. Plaintiff contends that Mssrs. Barrier and Cockrum
subjected her to gender-based harassment during the year that she worked with them, including
refusing to provide training to her; refusing to help plaintiff on the job, refusing to answer any
work-related questions that she had; and essentially giving plaintiff the “silent treatment” on the
job. Plaintiff testified that Mssrs. Barrier and Cockrum intentionally altered the settings on her
machine to create problems for plaintiff during her shift. When Mssrs. Barrier and Cockrum
talked about plaintiff to others in the workplace, they referred to her only as “that girl” or “that
woman.”
In late November 2015, plaintiff called off work for two days by requesting FMLA leave.
Plaintiff, however, had already exhausted her available FMLA leave such that her two days off
work were unexcused absences. Pursuant to the attendance provision set forth in the Labor
Agreement governing plaintiff’s employment with defendant, defendant could have terminated
plaintiff’s employment on November 24, 2015 for excessive unexcused absences from work. On
the recommendation of Greg Edwards, defendant’s Human Resource manager for the production
2
facility, defendant decided to place plaintiff on a Continued Employment Agreement (“CEA”) in
lieu of terminating her employment. Plaintiff executed the CEA on December 8, 2015. One of
the conditions of the CEA was that plaintiff had to comply with all company policies and maintain
satisfactory performance in all job-related activities. She further agreed that if she failed to meet
any of the conditions of the CEA for a period of three years, her employment would be terminated.
The next morning, on December 9, 2015, plaintiff reported to work at 7:00am. Shortly
thereafter, an employee reported to Operations Leader Josh Ballinger that plaintiff was stumbling,
slurring her words, and smelled of alcohol. Mr. Ballinger went to plaintiff’s work station and
observed that plaintiff’s eyes looked glassy and that she was slurring her words. Mr. Ballinger
asked Alan Crafton, the on-duty Shift Leader, to conduct an independent observation of plaintiff
pursuant to defendant’s reasonable suspicion protocol, which Mr. Crafton did. Mr. Edwards, at
Mr. Ballinger’s request, also conducted an observation of plaintiff for approximately 10 minutes.
Mr. Edwards observed that plaintiff was slumped in her chair, appeared very sweaty and glassyeyed and was slurring her words. Mr. Edwards then asked plaintiff to accompany him to the
medical center to submit to a “reasonable suspicion” alcohol test. Plaintiff complied and the test
indicated a Blood Alcohol Content (“BAC”) of .041% at 10:20am. Under defendant’s Substance
Abuse Policy, plaintiff’s BAC in excess of .04% made her “unfit for duty” and constituted a
violation of plaintiff’s CEA.
Rather than terminating plaintiff’s employment for violating her CEA, defendant offered
plaintiff a second CEA. On December 18, 2015, plaintiff executed her second CEA. A condition
of plaintiff’s second CEA was that she had to comply with all company policies and maintain
satisfactory performance in all job-related activities. Another condition was plaintiff’s mandatory
3
participation in defendant’s Employee Assistance Program (“EAP”) and her agreement to comply
with any recommendations made by the EAP. Mandatory participation in the EAP program is a
standard condition at defendant for any employee who tests positive for drugs or alcohol and
whose employment is not terminated. Plaintiff agreed that if she failed to meet any of the
conditions of the second CEA for a period of three years, her employment would be terminated.
In March 2016, Union Steward Tom Sumpter reported to Alana Szkatulski, defendant’s
Human Resource generalist, that plaintiff was being harassed by Mssrs. Cockrum and Barrier, her
coworkers on C shift. According to Mr. Sumpter, plaintiff had informed him that Mssrs. Cockrum
and Barrier were harassing her and were reluctant to provide her with adequate training to perform
her job duties as a UBT. Ms. Szkatulski began an investigation into plaintiff’s concerns in which
she interviewed plaintiff as well as several other employees. During her interview with Ms.
Szkatulski, plaintiff requested to move shifts. On March 24, 2016, Ms. Szkatulski reported back
to Mr. Sumpter that her investigation revealed potential issues with plaintiff’s performance as a
UBT, but that Ms. Szkatulski was recommending that plaintiff’s request to be moved to a different
shift be granted. Plaintiff and her coworkers were on furlough from April 4, 2016 through April
17, 2016. When plaintiff returned from furlough on April 18, 2016, plaintiff was transferred from
C shift to A shift, where she remained until the termination of her employment in June 2016.
On April 26, 2016, defendant conducted a second investigation into plaintiff’s concerns,
stemming from a March 30, 2016 complaint that plaintiff had made on defendant’s Business Code
of Conduct (“BBC”) hotline. In her complaint to the hotline, plaintiff alleged that Mssrs. Cockrum
and Barrier were treating her differently and had a problem with her because she is a woman. This
second investigation was conducted by Patrick Mills from defendant’s corporate offices in Toledo,
4
Ohio. During the course of his on-site investigation, Mr. Mills interviewed numerous employees
in the facility. Mr. Mills found no evidence of any violation of any policy and concluded that
plaintiff was creating friction on the work team by asking others to do her work for her and
refusing or failing to learn the skills required to perform the role of a UBT. Plaintiff testified that,
when defendant moved her to A shift on April 18, 2016, she obtained the result she desired to
obtain when she filed the BCC report in March 30, 2016.
On June 17, 2016, plaintiff reported to work for her shift beginning at 11:00pm. Midway
through her shift, the U3 and U4 lines began experiencing significant mechanical issues and
numerous employees were working frantically to keep up production while attempting to remedy
the issues. In the midst of the mechanical issues, union steward Dirk Bower pointed out to
plaintiff’s supervisor, Daniel Riggs, that plaintiff was sitting in a chair rather than assisting with
the ongoing issues. Mr. Riggs testified that he observed plaintiff slumped over in a chair on the
production floor, attempted to rouse her verbally, and concluded that plaintiff was asleep. Mr.
Riggs brought union steward Dennis Young over to observe plaintiff sleeping so that he would
have a witness to the incident. After approximately 20 or 30 minutes, Mr. Riggs woke plaintiff
up, asked whether she was okay and told her that she needed to get back to work. The following
day, defendant notified plaintiff that she had been suspended pending an investigation into her
conduct during the previous night’s shift.
Greg Edwards investigated plaintiff’s conduct and concluded that plaintiff had been
sleeping during her shift on June 17, 2016. Sleeping on duty is a violation of company policy and
an employee can be terminated for it. Following his investigation, Mr. Edwards recommended
the termination of plaintiff’s employment for violating the conditions of her second CEA. Todd
5
Yoho, defendant’s Plant Manager, approved that recommendation. Plaintiff’s employment was
terminated effective July 7, 2016. Plaintiff grieved the termination of her employment pursuant
to the labor agreement governing her employment with defendant and the grievance was denied.
On January 13, 2017, an arbitration hearing was held on plaintiff’s grievance. On March 3, 2017,
a neutral arbitrator concluded that plaintiff had been sleeping on the job and that there was just
cause for the termination of plaintiff’s employment.
Additional facts will be provided as they relate to the specific arguments raised by the
parties in their submissions.
II.
Summary Judgment Standard
“Summary judgment is appropriate if the pleadings, depositions, other discovery materials,
and affidavits demonstrate the absence of a genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law.” Water Pik, Inc. v. Med–Systems, Inc., 726 F.3d
1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed. R. Civ. P. 56(a). A factual issue is
genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). “The nonmoving party is entitled
to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion
on a claim at trial, summary judgment may be warranted if the movant points out a lack of
evidence to support an essential element of that claim and the nonmovant cannot identify specific
facts that would create a genuine issue.” Id. at 1143-44.
III.
Gender-Based Discriminatory Discharge Claim
6
In the pretrial order, plaintiff contends that defendant terminated her employment based on
her gender in violation of Title VII. As plaintiff has no direct evidence of discrimination, her
claim is analyzed using the burden-shifting framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 627 (10th
Cir. 2012). Under McDonnell Douglas, plaintiff has the initial burden of establishing a prima
facie case of discrimination. Id. To set forth a prima facie case of discrimination, plaintiff must
establish “(1) membership in a protected class and (2) an adverse employment action (3) that took
place under circumstances giving rise to an inference of discrimination.” Id. (citing EEOC v.
PVNF, LLC, 487 F.3d 790, 800 (10th Cir. 2007)). If she establishes a prima facie case, the burden
shifts to defendant to assert a legitimate, nondiscriminatory reason for the adverse employment
action. Id. If defendant meets this burden, summary judgment against plaintiff is warranted unless
she introduces evidence “that the stated nondiscriminatory reason is merely a pretext for
discriminatory intent.” Id. (citing Simmons v. Sykes Enters., 647 F.3d 943, 947 (10th Cir. 2011)).
As an initial matter, defendant asserts that plaintiff cannot establish a prima facie case of
discrimination because she cannot show that she was treated less favorably than similarly situated
male employees. Because plaintiff is not required to show differential treatment of similarly
situated employees to satisfy her prima facie burden, see Sorbo v. United Parcel Serv., 432 F.3d
1169, 1173 (10th Cir. 2005) (comparison to similarly situated employees is not required as part
of a plaintiff’s prima facie case; the relevant prima facie element may be framed more broadly,
requiring only a “showing of circumstances giving rise to an inference of discrimination”), the
court rejects this argument. Moreover, because plaintiff’s “similarly situated” evidence is the only
evidence that plaintiff offers to establish pretext, the court believes that the correct approach is to
7
analyze that evidence at the pretext stage. See Hannah v. Sandia Corp., 2017 WL 6375605, at *7
(D.N.M. Dec. 13, 2017) (deciding motion on pretext issue where plaintiff relied on same evidence
to support pretext and third element of prima facie case); Davis v. Dillon Companies, Inc., 2014
WL 4980430, at *6 (D. Kan. Oct. 6, 2014) (to avoid a duplication of analysis at the prima facie
and pretext stages where plaintiff relied on same evidence at both stages, court moved directly to
pretext analysis); see also Sorbo, 432 F.3d at 1173-74 (10th Cir. 2005) (where comparison to
others similarly situated is the method chosen by the plaintiff to raise an inference of
discrimination, evidence may be analyzed at the pretext stage).
Having rejected defendant’s argument concerning plaintiff’s prima facie case, the court
turns to whether defendant has met its burden to articulate a legitimate, nondiscriminatory reason
for plaintiff’s discharge. “This burden is one of production, not persuasion; it can involve no
credibility assessment.” Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1149 (10th Cir.
2011) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)). The Tenth
Circuit has characterized this burden as “exceedingly light,” and the court finds that defendant has
carried it here. See id. According to defendant, plaintiff’s employment was terminated after
plaintiff violated her second CEA by sleeping while on duty. The burden of proof, then, shifts
back to plaintiff to show that defendant’s proffered reason is pretextual.
Evidence of pretext “may take a variety of forms,” including evidence tending to show
“that the defendant’s stated reason for the adverse employment action was false” and evidence
tending to show “that the defendant acted contrary to a written company policy prescribing the
action to be taken by the defendant under the circumstances.” Id. at 1150 (quoting Kendrick v.
Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000)). A plaintiff may also show
8
pretext with evidence that the defendant had “shifted rationales” or that it had treated similarly
situated employees differently. Crowe v. ADT Servs., Inc., 649 F.3d 1189, 1197 (10th Cir. 2011).
In essence, a plaintiff shows pretext by presenting evidence of “weakness, implausibility,
inconsistency, incoherency, or contradiction in the employer’s stated reasons, such that a
reasonable jury could find them unconvincing.” Debord v. Mercy Health System of Kansas, Inc.,
737 F.3d 642, 655 (10th Cir. 2013). In determining whether the proffered reason is pretextual,
the court examines “the facts as they appear to the person making the decision, not as they appear
to the plaintiff.” Id. The court does not “ask whether the employer’s proffered reasons were wise,
fair or correct” but only whether “the employer honestly believed those reasons and acted in good
faith upon those beliefs.” Id.
Plaintiff contends that a reasonable jury can find pretext in this case by comparing
defendant’s treatment of her with its treatment of male employees who, like plaintiff, violated
company policy by sleeping on the job. To be sure, evidence that a similarly situated employee
received better treatment can suggest that the employer’s alleged nondiscriminatory reason is
pretextual. Roberts v. International Business Machines Corp., 733 F.3d 1306, 1310 (10th Cir.
2013). As the Circuit has explained, however, “to provide a basis for reliable comparison, the
other employee must, in fact, be similarly situated—that is, reporting to the same supervisor, held
to the same standards, and afoul of those standards to at least the same degree. And it falls on the
employee alleging discrimination to rule out alternative explanations for the differential
treatment.” Id. (citing Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1120-21 (10th Cir. 2007)).
Plaintiff contends that numerous male employees were caught sleeping on the job and that
defendant did not terminate the employment of those employees. The undisputed evidence
9
demonstrates that, to the extent other employees were caught sleeping on duty, none of those
employees was working pursuant to a second CEA at the time of the violation. According to
defendant, then, plaintiff cannot demonstrate that any employees were similarly situated to her
because, unlike plaintiff, no other employee was working under a second CEA. Plaintiff contends
that defendant’s argument puts too fine a point on the “similarly situated” requirement. The court
believes that the Circuit would conclude that plaintiff, to establish pretext, must compare herself
to other employees who, like her, were working under a second CEA. See Lobato v. New Mexico
Environment Dept., 733 F.3d 1283, 1292 (10th Cir. 2013) (plaintiff could not establish pretext by
comparing defendant’s treatment of another employee who, unlike plaintiff, was not a
probationary employee). But even putting aside the fact that no other employee had a second
CEA, the evidence is insufficient to establish that any other employees were similarly situated to
plaintiff. The most analogous employee is a male employee who was working under his first CEA
when he was caught sleeping on the job. But plaintiff does not dispute that his employment was
effectively terminated for that violation and, thus, the comparison cannot establish pretext. See
Smith v. Global Staffing, 621 Fed. Appx. 899, 903 (10th Cir. June 17, 2015) (no pretext where
undisputed evidence demonstrated that plaintiff’s treatment was the same as employees who were
similarly situated to him).2
The male employees to whom plaintiff seeks to compare herself are not similarly situated
to her under the Circuit’s standard. In making her argument, plaintiff relies almost entirely on the
The record reflects that management informed this employee that his employment would be
terminated as a result of the violation of his CEA. Because that employee was eligible for
retirement, however, defendant offered him the opportunity to retire in lieu of termination.
2
10
deposition testimony of Kenneth Bolton, an employee who retired from defendant in July 2013
and then became the union’s business manager. Mr. Bolton testified that several male employees
were not terminated despite “sleeping at the plant.”3 But Mr. Bolton worked for defendant for
more than 40 years and his testimony fails to shed any light on whether any of these male
employees was caught sleeping in the plant during the same time frame that Mr. Riggs observed
plaintiff sleeping on the production floor. See Smothers v. Solvay Chemicals, Inc., 740 F.3d 530,
540 (10th Cir. 2014) (similarly situated employees must share the same supervisor, otherwise
differences in disciplinary decisions “may be explained by the fact that the discipline was
administered by different supervisors, or that the events occurred at different times when the
company’s attitudes toward certain infractions were different”). His testimony does not indicate
that Mr. Riggs observed any male employees sleeping on the job (and, in fact, it is undisputed that
Mr. Bolton retired from defendant before Mr. Riggs became employed at the facility). See
Roberts, 733 F.3d at 1310 (employees are similarly situated only if they report to same
supervisor). In fact, his testimony does not reflect that any member of management observed any
male employees sleeping on the production floor. See Smothers, 740 F.3d at 541-42 (similarly
situated employees must have engaged in conduct of comparable seriousness). Thus, while Mr.
Bolton’s testimony reflects that certain male employees at some point over the course of Mr.
Bolton’s lengthy employment with defendant slept during meetings or slept in offices, his
testimony does not permit an inference that any of these male employees were sleeping on the
Plaintiff also asserts that certain supervisors slept in their offices during shifts, but those
individuals are not similarly situated to her. See Jones v. Denver Post Corp., 203 F.3d 748, 752–
53 (10th Cir. 2000) (nonsupervisory employees generally not deemed similarly situated to
supervisory employees with respect to disciplinary matters).
3
11
production floor, were observed by management (let alone Mr. Riggs) while doing so or that any
of these incidents occurred during the pertinent time frame. And, as noted earlier, none of these
employees was working under a CEA at the time they allegedly slept on the job.4
For the foregoing reasons, plaintiff cannot establish pretext by comparing defendant’s
treatment of her with its treatment of male employees. And plaintiff has come forward with no
other evidence or argument on the pretext issue. Thus, plaintiff has failed to meet her burden of
demonstrating pretext and summary judgment is warranted on plaintiff’s claim of gender-based
discriminatory discharge.
IV.
Gender-Based Harassment Claim
Title VII makes it “an unlawful employment practice for an employer . . . to discriminate
against any individual with respect to his [or her] compensation, terms, conditions, or privileges
of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e–2(a)(1). The “Supreme
Court has held that this language is not limited to ‘economic’ or ‘tangible’ discrimination, but
instead is broad enough to protect individuals from working in a discriminatorily hostile or
abusive environment.” Bird v. West Valley City, 832 F.3d 1188, 1205 (10th Cir. 2016) (quoting
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) and Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993)). To prevail on her hostile work environment claim, plaintiff must “show that
Plaintiff asserts that Wayne Bragdon “had as many as 15 sleeping violations during his Continued
Employment Agreement before ultimately sustaining a job termination.” The record does not
support this assertion in any respect. Contrary to plaintiff’s representation, Mr. Bolton testified
that Mr. Bragdon was on a CEA and made “15 or 16 mistakes” before defendant terminated his
employment. There is no evidence that any of these mistakes were related to sleeping on the job
and, in fact, no evidence as to the nature of the mistakes at all.
4
12
a rational jury could find that the workplace is permeated with discriminatory intimidation,
ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of [her]
employment and create an abusive working environment.” Id. (quoting Herrera v. Lufkin Indus.,
Inc., 474 F.3d 675, 680 (10th Cir. 2007)). Severity and pervasiveness, however, are not enough;
plaintiff must demonstrate “severe and pervasive harassment based on gender.” Id. (citing Chavez
v. New Mexico, 397 F.3d 826, 833 (10th Cir. 2005)).
Defendant urges that summary judgment is appropriate because the conduct about which
plaintiff complains is not sufficiently severe or pervasive to alter the conditions of plaintiff’s
employment. In determining whether conduct in the workplace is sufficiently severe or pervasive
to create an abusive working environment, the court looks at factors such as 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.” Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 958 (10th Cir. 2012). The
inquiry is particularly unsuited for summary judgment because it is quintessentially a question of
fact.” Tademy v. Union Pac. Corp., 614 F.3d 1132, 1144 (10th Cir. 2008).
Analyzing these factors and viewing the evidence in plaintiff’s favor, there is a genuine
issue of material fact whether the conduct reflected in the record was pervasive enough to find in
plaintiff’s favor. The record demonstrates that plaintiff worked with Mssrs. Barrier and Cockrum
on the C Shift for just over one year and that, during that time, they were the only 3 UBT operators
working on the C Shift. In other words, plaintiff was the only woman working in that area of the
production line. The evidence reflects that Mssrs. Barrier and Cockrum refused to provide
training to plaintiff and refused to help plaintiff on the job, refused to answer any work-related
13
questions that she had, and essentially gave plaintiff the “silent treatment” on the job. Plaintiff
testified that Mssrs. Barrier and Cockrum intentionally altered the settings on her machine to
create problems for plaintiff during her shift. When Mssrs. Barrier and Cockrum talked about
plaintiff to others in the workplace, they referred to her only as “that girl” or “that woman.” There
is also evidence that Mssrs. Barrier and Cockrum told others in the workplace that they “did not
want a woman” working in their area of the production line.5 The evidence is sufficient to permit
a reasonable jury to conclude that Mssrs. Barrier’s and Cockrum’s conduct was based on
plaintiff’s gender and was pervasive enough to alter the conditions of plaintiff’s employment and
create an abusive working environment. See Bertsch v. Overstock.com, 684 F.3d 1023, 1025-26,
1028 (10th Cir. 2012) (factual issue existed on pervasiveness where evidence showed that coworker treated plaintiff “like a servant,” refused to look at her while they talked, and ridiculed her
in meetings).
Defendant contends that summary judgment is nonetheless required because plaintiff has
not established that defendant responded inadequately to harassment by Mssrs. Barrier and
Cockrum of which it knew or should have known. See Vance v. Ball State University, 570 U.S.
421 (2013) (“If the harassing employee is the victim’s co-worker, the employer is liable only if it
was negligent in controlling working conditions.”); Bertsch v. Overstock.com, 684 F.3d 1023,
Defendant objects to this evidence on hearsay grounds but does not elaborate on that objection
other than to suggest the statements are inadmissible because plaintiff never heard Mssrs. Barrier
or Cockrum make those statements. The objection is overruled, as the statements appear to be
offered to show the motivation underlying Mssrs. Barrier’s and Cockrum’s treatment of plaintiff
rather than to prove the truth of the statements themselves. Thus, while the question of the
admissibility of this evidence may arise again at trial, the court deems it appropriate at this stage
to consider such evidence in determining whether plaintiff has created a factual dispute on
pervasive gender harassment.
5
14
1028 (10th Cir. 2012) (defendant’s prompt, remedial action precludes employer liability for
coworker harassment). An “employer’s liability for allowing a sexually hostile work environment
after it is reported to the employer by the employee arises only if the employer fails to take
adequate remedial and preventative responses to any actually or constructively known
harassment.” Id. (quoting Holmes v. Utah, Dep’t. of Workforce Servs., 483 F.3d 1057, 1069 (10th
Cir. 2007)). Defendant highlights that it transferred plaintiff to a different shift after promptly
investigating her claims of harassment. But factual disputes remain concerning defendant’s
liability that must be resolved by a jury. If a jury finds pervasive harassment, then the jury might
also conclude that defendant should have known about the harassment and taken remedial
measures to stop it at some point prior to March 2016. See Harsco Corp. v. Renner, 475 F.3d
1179, 1188 (10th Cir. 2007) (pervasiveness of sexual harassment can properly lead to an inference
of knowledge). Moreover, although defendant contends that the alleged harassment ceased when
plaintiff was transferred to a different shift,6 factual disputes remain about the adequacy of
defendant’s response in light of evidence that Mssrs. Barrier and Cockrum were not counseled in
any way about their alleged conduct. See Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1243-44
(10th Cir. 1999) (defendant’s refusal to discipline its employees for harassment is relevant to
analysis of the adequacy of employer’s response), overruled on other grounds by Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
For the foregoing reasons, a jury trial is required on plaintiff’s gender harassment claim.7
6
Plaintiff testified, however, that she had contact with Mssrs. Barrier and Cockrum during shift
changes and that they continued to treat her differently based on her gender.
7
The parties’ submissions briefly touch on whether and to what extent plaintiff was subjected to
gender-based harassment by one or more members of management, particularly Chris Carlson and
15
V.
Disability Discrimination Claim
The ADAAA prohibits employers from discriminating against “a qualified individual on
the basis of disability.” 42 U.S.C. § 12112(a). In the pretrial order, plaintiff contends that
defendant violated this provision when it terminated her employment. Specifically, plaintiff
alleges that defendant terminated plaintiff’s employment based on a perceived disability—
alcoholism. Because plaintiff concedes that her claim relies on circumstantial evidence, the claim
is analyzed under the framework articulated in McDonnell-Douglas Corp. v. Green, 411 U.S. 792
(1973). Dewitt v. Southwestern Bell Tel. Co., 845 F.3d 1299, 1306 (10th Cir. 2017). Thus, plaintiff
must first establish a prima facie case. Id. at 1307. To establish a prima facie case of disability
discrimination under the ADAAA, plaintiff must present evidence that (1) she is disabled within
the meaning of the ADAAA; (2) she is qualified to perform the essential functions of her job with
or without accommodation; and (3) she was terminated because of her disability. Id. at 1308.
Congress has provided three statutory definitions for “disability” under the ADAAA: A
plaintiff may show (A) a physical or mental impairment that substantially limits one or more major
life activities of such individual; (B) a record of such an impairment; or (C) being regarded as
having such an impairment. Adair v. City of Muskogee, 823 F.3d 1297, 1305 (10th Cir. 2016)
Adam Peacock. Because plaintiff’s claim survives regardless of any additional incidents by
members of management, the court need not address these specific incidents. The court does,
however, reject defendant’s argument that plaintiff cannot rely on allegations concerning these
individuals because she failed to include those specific allegations in her charge of discrimination
or in the pretrial order. Defendant directs the court to no case law suggesting that the Circuit
requires that level of specificity in the charge or in the pretrial order, both of which clearly
articulated a claim of gender harassment.
16
(quoting 42 U.S.C. § 12102(1)).
In the pretrial order, plaintiff contends that defendant
discriminated against her based on a perceived disability under subsection (C). An individual
meets the requirement of “being regarded as having such an impairment” under prong (C) of the
definition of disability if he or she has been subjected to a prohibited action because of a perceived
physical or mental impairment “whether or not the impairment limits or is perceived to limit a
major life activity.” 42 U.S.C.§ 12102(3)(A). In other words,
[u]nlike an impairment as defined in subsections (A) or (B), an impairment under §
12102(1)(C) need not limit or even be perceived as limiting a major life activity—
the employer need only regard the employee as being impaired, whether or not the
employer also believed that the impairment prevented the employee from being able
to perform a major life activity. Under the ADAAA, the only qualification for an
impairment in a “regarded as” claim is that the impairment not be “transitory and
minor.” Id. § 12102(3)(B); see id. (“Paragraph (1)(C) shall not apply to impairments
that are transitory and minor. A transitory impairment is an impairment with an
actual or expected duration of 6 months or less.”).
Adair v. City of Muskogee, 823 F.3d 1297, 1305-06 (10th Cir. 2016) (Today, a plaintiff bringing
a “regarded as” claim “needs to plead and prove only that she was regarded as having a physical
or mental impairment.”); accord 29 C.F.R.§ 1630.2(g)(3) & (j)(2).
But the ADA expressly states that employers may prohibit the use of alcohol at the
workplace; may require that employees not be under the influence of alcohol at work; and may
hold employees who use alcohol to the same qualifications standards for employment or job
performance and behavior that the employer holds other employees, even if any unsatisfactory
performance or behavior is related to the use of alcohol. See 42 U.S.C. § 12114(c). In this case,
the undisputed facts demonstrate that defendant’s actions were authorized by the ADA such that
it did not unlawfully regard plaintiff as having an impairment. Plaintiff alleges that defendant
perceived her as an alcoholic (or as having an “alcohol problem”) when it mandated her
17
participation in an EAP program as a condition of her continued employment after she failed a
“reasonable suspicion” alcohol test. But it is undisputed that mandatory participation in the EAP
program was a standard condition for any employee who tested positive for drugs or alcohol at
work and whose employment was not terminated. And because plaintiff does not dispute that the
EAP requirement stemmed directly from the fact that plaintiff had alcohol in her system at work
and tested positive for alcohol at work, the ADA affords her no protection. See Ames v. Home
Depot U.S.A., Inc., 629 F.3d 665 (7th Cir. 2011) (plaintiff’s ADA claim could not survive
summary judgment where record established that termination was based on plaintiff’s testing
positive for alcohol at work) (citing 42 U.S.C. § 12114(c)(4)).
Moreover, the record supports no inference that the termination of plaintiff’s employment
was based on defendant’s perception that plaintiff was an alcoholic or had an alcohol problem.
There is no evidence in the record that defendant’s management ever raised any concerns about
plaintiff’s use of alcohol or suggested that plaintiff had an alcohol problem, aside from requiring
her to participate in the company’s EAP program after she tested positive for having alcohol in
her system at work. No management employee ever told plaintiff that they suspected she had an
alcohol problem. There is no evidence that defendant believed that plaintiff, in June 2016, was
sleeping on the job because of alcohol consumption. There is no evidence that management, aside
from the one positive test that was administered in December 2015, ever asked plaintiff to submit
to an alcohol test or otherwise suggested to plaintiff that she had an alcohol problem.8 Plaintiff’s
Plaintiff asserts that “on multiple occasions, plaintiff was observed and tested, and on several
occasions no evidence was found of her being under the influence.” While such evidence might
tend to show that defendant perceived plaintiff as having an alcohol problem, no such evidence
8
18
evidence does suggest that her coworkers may have complained to management on occasion that
plaintiff was “drunk” at work.9 That evidence, however, reflects that management, in response to
those complaints, observed plaintiff in the workplace and concluded that there was “no grounds”
to test plaintiff for alcohol use. There is simply nothing in the record from which a jury could
conclude that defendant, in June 2016, perceived plaintiff as having an alcohol problem or
remotely considered plaintiff’s past alcohol use in deciding to terminate plaintiff’s employment.
In short, there is simply no evidence in the record from which a reasonable jury could
conclude that defendant regarded plaintiff has having a physical impairment or that defendant
terminated plaintiff’s employment based on a perceived impairment. Summary judgment on this
claim is warranted.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s motion for
summary judgment is granted in part and denied in part. It is denied as to plaintiff’s claim of
gender harassment and is otherwise granted.
IT IS SO ORDERED.
Dated this 13th day of August, 2018, at Kansas City, Kansas.
appears in the record. The citation set forth by plaintiff in support of that assertion does not
remotely support it.
9
To the extent plaintiff’s coworkers may have perceived her as having an alcohol problem that
evidence does not support an inference that management or any decisionmakers perceived her as
having an alcohol problem.
19
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?