Bedenfield v United Parcel Service, Inc.
MEMORANDUM AND ORDER granting 34 Motion for Summary Judgment. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 3/31/21. (msb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 19-2658-SAC
UNITED PARCEL SERVICE, INC.,
MEMORANDUM AND ORDER
This employment discrimination case comes before the court on
defendant United Parcel Service, Inc,’s (“UPS’s”) motion for summary judgment (ECF#
34) on the plaintiff Taneisha Bedenfield’s (“Bedenfield’s”) remaining claims under
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title
VII”) for hostile work environment (sexual harassment), retaliation, and sex
discrimination (constructive discharge). UPS hired Bedenfield on October 31, 2017,
and when she resigned on December 5, 2018, she worked as a “part-time preloader.”
ECF# 33, Pretrial Order, Stipulations 2-4. Her claims are based on two separate
incidents of alleged sexual harassment. The first happened in January of 2018 when a
co-worker repeatedly placed his hands on her waist and then touched her backside.
The second incident happened at an employee meeting on June 29, 2018, when a
female co-worker came up from behind and sexually assaulted her in the presence of
others. Bedenfield claims that both co-workers had histories which were known to
UPS and that UPS failed to respond and take prompt corrective action addressing
these situations and reducing risk of recurrence. UPS seeks summary judgment
arguing it promptly investigated each incident and promptly took effective actions
that prevented both co-workers from sexually harassing Bedenfield again.
SUMMARY JUDGMENT STANDARDS
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
deciding the motion, the court’s role is “is not . . . to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Id. at 249. The court may grant summary judgment for lack of a genuine
issue when the evidence is insufficient “for a jury to return a verdict,” when “the
evidence is merely colorable,” or when the evidence “is not significantly probative.”
Id. It follows then that a genuine issue for trial exists when “there is sufficient
evidence on each side so that a rational trier of fact could resolve the issue either
way.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).
The moving party bears the initial burden of showing the absence of any
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The burden is met “by pointing out to the court a lack of evidence for the nonmovant
on an essential element of the nonmovant’s claim.” Adler, 144 F.3d at 671. The
burden then shifts to the nonmovant to “go beyond the pleadings and set forth
specific facts that would be admissible in evidence in the event of trial from which a
rational fact finder could find for the nonmovant.” Id. (internal quotation marks and
citations omitted). Such facts “must be identified by reference to affidavits,
deposition transcripts, or specific exhibits incorporated therein.” Id.
The court applies this standard drawing all inferences arising from the
record in the nonmovant’s favor. Stinnett v. Safeway, Inc., 337 F.3d 1213, 1216 (10th
Cir. 2003). The court does not make credibility determinations or weigh the evidence;
these are jury functions. Id. at 1216. The Tenth Circuit has counseled the following
for summary judgment proceedings in employment discrimination cases:
[I]n the context of employment discrimination, “[i]t is not the purpose of a
motion for summary judgment to force the judge to conduct a ‘mini trial’ to
determine the defendant's true state of mind.” Randle v. City of Aurora, 69
F.3d 441, 453 (10th Cir. 1995). Many of the highly fact-sensitive determinations
involved in these cases “are best left for trial and are within the province of
the jury.” Id.; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“[T]he inquiry [at summary judgment is]
whether the evidence presents a sufficient disagreement to require submission
to a jury....”). Consequently, “in this Circuit . . . an employment
discrimination suit will always go to the jury so long as the evidence is
sufficient to allow the jury to disbelieve the employer's [explanation for the
alleged misconduct].” Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1177 (10th
Cir. 1998) (Tacha, J., concurring in part); see Randle, 69 F.3d at 452 (“[I]f . . .
inferential evidence is sufficient to allow a plaintiff to prevail at trial, it is
surely sufficient to permit a plaintiff to avoid summary judgment so that the
plaintiff can get to trial.”).
Lounds v. Lincare, Inc., 812 F.3d 1208, 1220-21 (10th Cir. 2015).
In the pretrial order, under the title of “Sex Discrimination &
Harassment & Hostile Environment,” the plaintiff seeks relief under Title VII claiming
that she “was subjected to unfavorable terms, conditions, and privileges of
employment . . . because of” her sex, and that defendant “failed to respond to
Plaintiff’s requests to address and remedy this.” ECF# 33, p. 9. She also claims that
“[t]his discriminatory treatment was ongoing, continuous, repeated, severe, and
pervasive and thereby created a hostile environment.” Id. She further claims that the
“discriminatory treatment and hostile environment interfered with Plaintiff’s ability
to effectively do her job and was intended to force Plaintiff to resign and she
reasonably felt compelled to do so.” Id. Also in the pretrial order, but under the title
of “Retaliation,” the plaintiff seeks relief under Title VII claiming that because of her
protected conduct of making internal complaints and reports to UPS, she “has been
subjected to repeated and ongoing acts, conduct, and practices UPS which were
intended to and would easily dissuade an individual from engaging in this protected
conduct.” Id. at p. 10. In sum, the plaintiff appears to be alleging Title VII claims for
general discrimination based on sex, hostile work environment based on sexual
harassment, constructive discharge, and retaliation. As will be discussed later, the
plaintiff is less than clear as to what constitutes her general discrimination claim.
The court finds the following statement of facts to be uncontroverted
after considering the parties’ objections and citations and after reviewing the actual
exhibits submitted. The court’s reasons for its findings and rulings on any objections
will only be explained when the facts are central to the summary judgment decision.
Otherwise, the court regards its reasons and rulings on all matters to be evident from
whether and how the facts are stated herein and from the actual contents of the
Throughout her employment with UPS, Bedenfield worked at UPS’s
James Street Center in Kansas City, Kansas, as a preloader, sorting packages to be
loaded onto UPS vehicles for customer delivery. Her typical work shift started at
midnight and ended between 6 and 10 am. Preloaders work in one of five different
areas at the James Street facility moving between areas based on the kind of
packages to be sorted on a given day. Thus, preloaders are not typically assigned to a
single sorting area but move to different areas as needed on that day.
January 2018 Incident with Coworker Anthony
During one shift, Bedenfield’s supervisor sent her over to another area
needing help. This work required her to sort packages coming down a slide into the
correct cages. She was standing at the end of the slide, and there were other coworkers standing there also sorting packages in the area. One of them was Anthony.
Bedenfield did not know Anthony and had not seen him before. This was the first and
only time she would work with him.
In her deposition, Bedenfield describes Anthony as crowding into her
space. He shuffled from one side to her other side brushing up against her as he did.
This happened two or three times. When he placed his hands on her hips at one point,
she asked Anthony if he wanted to switch positions and told him not to touch her as
he moved around her. Bedenfield testified she did not know why Anthony was
touching her hips as he moved around to reach for packages. A short time later,
Bedenfield felt Anthony “hand palm” her “ass.” ECF# 35-2, p. 22. Bedenfield said she
became visibly upset by this, and Anthony began apologizing and saying, “I’m sorry.”
Id. at pp. 24-25. About that same time, a supervisor walked up asking if anyone
wanted to go home early, and Bedenfield said that she did. So, she left work without
telling anyone what had happened. Bedenfield testified that Anthony never asked her
out or appeared to want a romantic or personal relationship with her. When asked if
she thought that Anthony had touched her for sexual gratification or something like
that, Bedenfield answered, “Why else would he touch me.” Id. at p. 26. Bedenfield
also testified that Anthony never said anything to her about this incident.
When asked if she was aware of any other complaints against Anthony
for inappropriate touching or harassing conduct, Bedenfield related a conversation
shortly after the incident with a coworker Shauna who said Anthony had “been doing
that for a while now.” ECF# 35-2, p. 28. This testimony is inadmissible hearsay if
offered to prove the fact that Anthony did have prior incidents. This ruling is
confirmed by Bedenfield also testifying that she had no personal knowledge of any
“prior incidents in which [Anthony] harassed or mistreated any other employees.” Id.
at p. 51-52.
Bidenfield eventually reported Anthony’s behavior several days later
during a conversation with her part-time supervisor Tom Stolte. When Stolte asked
her to change assigned areas and help in the same area as Anthony, Bedenfield for the
first time told Stolte about Anthony touching her “ass.” ECF# 35-2, pp. 31-33.
Bedenfield described the incident but did not tell Stolte that she felt harassed by
Anthony’s conduct. Id. at 33. Bedenfield said that Stolte seemed to be shocked by the
news and told her to go back to her original work area and did not require her to work
in Anthony’s area. Not long after that, a full-time supervisor, Alex Case, asked
Bedenfield to work in Anthony’s area. She told Case what had happened with Anthony
and that she did not want to work in his area. Case also did not require Bedenfield to
work in that area, but Case did report her complaint to the Human Resources (“HR”)
manager Eric Day.
Day directed Case to get written statements from Stolte and Bedenfield.
In her signed statement dated February 16, 2018, Bedenfield wrote:
Last week I was working on charge 1 and I had a very uncomfortable
experience with one of the guys who was also working on that charge. I believe
his name is Barry. It was my first time meeting him. He spoke to me a lot even
though I didn’t respond much. While we worked he seemed to always be very
close to me no matter how much space I tried to put between us, if I moved to
the right, he moved right, if I went to the left, he moved left. He was so close I
could practically smell his breath. On several occasions he moved around me,
touching me, as if it were not much room for him to get around me. On one of
the times he went around me he touched my butt then apologized saying it was
a mistake. I wasn’t sure if believed him and it made me very uncomfortable. I
would prefer not to have to work with him going forward.
ECF# 35-8. After getting this statement, HR staff interviewed Bedenfield about the
incident, and Bedenfield testified to being able to tell her side of the story during this
interview. Bedenfield acknowledged that she did not know who else was interviewed
during the investigation of her allegation, whether the investigation’s outcome
corroborated her allegation, and what discipline, if any, was imposed on Anthony as a
result of the investigation.
HR Manager Day interviewed Stolte and other possible witnesses to the
incident, but none were able to corroborate Bedenfield’s allegation that Anthony had
touched her inappropriately, crowded her personal space, or harassed her in violation
of UPS policy. This statement appears in Day’s declaration under penalty of perjury
ECF# 35-1, ¶ 10, and the plaintiff does not effectively dispute it with any citation to
evidence of record. Day had other HR staff interview Anthony who denied improperly
touching or harassing coworkers. Day also avers being unaware of any prior allegations
of harassment being made against Anthony while at UPS. The plaintiff’s deposition
testimony does not controvert Day’s averment. Even though no other evidence was
found to substantiate Bedenfield’s allegations against Anthony, Day directed the
management team to not assign Bedenfield again to work in Anthony’s area. During
each of the employee interviews conducted during the investigation, Day reminded
the employee of the company’s anti-harassment, anti-discrimination, and antiretaliation policies. The plaintiff has not effectively disputed Day’s averments.
Anthony was specifically warned that any harassing conduct in violation of UPS policy
would be disciplined with possible termination.
After this incident, Bedenfield said she was never again asked to work in
Anthony’s area. Bedenfield testified that her negative opinion about any investigation
into her allegation is because she was not told what, if anything, was done.
Bedenfield, however, testified that following this incident HR personnel contacted her
three different times to check in on how things were going. Bedenfield related that
she told HR that Anthony had come to her area a couple times, once to pick up
irregular packages when Bedenfield’s supervisor stepped in front of her and the other
time Anthony asked the supervisor for the time. Bedenfield did not describe either
time as involving harassment or any verbal or physical contact between her and
June 2018 Incident with Coworker Parker
Before this incident, Bedenfield had interacted with her female
coworker Ms. Parker several times, but Parker had never improperly touched or
harassed her. Bedenfield also testified that she never associated with Parker outside
of work. On June 29, 2018, the preloaders and some supervisors from the five areas
were having their pre-shift meeting or huddle during which assignments were given
and safety issues were discussed. Along with the others, Bedenfield was completing a
form when she felt a hand slide between her legs and grab at her “vagina.” ECF# 352, p. 104. Bedenfield turned around and seeing Parker pushed her away. Parker
forced herself back onto Bedenfield and “grabbed her ass.” ECF# 40-1, p. 4
(Plaintiff’s Declaration under Penalty of Perjury and EEOC Charge). Bedenfield took
hold of Parker’s wrists and yelled at Parker to stop while keeping her back. Parker
tried to get closer while puckering her lips into a kissing motion and repeating “booty
. . . in a child-like voice.” Id. Despite Bedenfield and a supervisor Cheyenne yelling at
Parker to stop, she continued but then stopped suddenly and walked away. Id. Other
coworkers and supervisors were present at the meeting when this incident occurred,
and one supervisor came up afterwards and said, “what the fuck was that?” Id. This
incident and the reactions of others was disturbing to Bedenfield. Id.
Several minutes later, the plaintiff ran into Alex Case, a manager, and
told him what had happened. He instructed her to proceed to her assigned work area.
Shortly thereafter, Case came to Bedenfield and asked, “Now what happened again.”
ECF# 40-1, p. 4. Bedenfield gave Case another verbal report and then gave a written
complaint to HR before leaving work for the day. The HR staff said to Bedenfield,
“not again.” Her written complaint reads:
On today, June 29th 2018 (Friday) I was approached from behind by Porsha
Parker. Upon her approach she slid her hand between my thighs in a “wiping
motion” that prompted me to immediately turn around in defense mode. I
turned abruptly and pushed her away as she continued her advances. She
pushed her way back into my personal space and grabbed my behind. During
the entire altercation she repeatedly said the word “Booty.” After she touched
my butt I grabbed both of her wrists and continued to try pushing her away as
well as asking her to stop. I worked in the mental/behavioral health field for 14
years as a Rehabilitation Assistant and because of the extensive training and
experience I could tell that she was not mentally stable. Although I was upset I
stayed as calm as I could as not to provoke any other (violent) behaviors. She
started trying to kiss . . . after I grabbed her wrists putting distance between
us. She did not stop until Cheyenne had called her name at least five times.
Seemingly in a more normal state of mind, Porsha apologized to me about 20
minutes after the incident ended. I just nodded.
Bedenfield testified that during the incident she noticed Parker’s pupils
were dilated and that from experience she knew this indicated someone could be
under the influence of alcohol or drugs. Bedenfield believed Parker was under “the
influence of something” based on her behavior. ECF# 35-2, p. 59-60. Bedenfield also
testified she does not believe that Parker targeted her for a particular reason but that
it just happened she was the “target that day. It could have been anybody.” Id. at p.
In the days following the incident, Bedenfield did not see Parker at work
and asked Case a couple times about what was happening. Case said there would be
meeting with HR about this. Bedenfield then met with HR manager Day and learned
that Parker would not be at work for some time but that they would be giving her the
option of completing treatment or being terminated. Day indicated they did not have
Parker’s decision. When Bedenfield expressed personal concerns about not feeling
safe, Day told her that Parker would not be allowed on premises until completing
Shortly after the incident, Parker told the management team that she
would seek treatment through the Employee Assistance Program (“EAP”) under the
collective bargaining agreement. Parker was sent home immediately. She was notified
later that she could not return to work until she had satisfactorily completed
treatment through the EAP program. From Parker’s healthcare provider, UPS’s HR
received reports that Parker had completed both inpatient and outpatient treatment,
had been discharged from the program after successfully completing it, and was fit to
return to work. Bedenfield testified to having no personal knowledge about UPS’s
investigation and outcome of this employment matter other than what Day had told
her earlier about the condition requiring Parker’s treatment before returning to work.
None of the plaintiff’s citations controvert these facts.
When Parker returned to work about a month later, HR directed that
Bedenfield would not be required again to work in the same area as Parker.
Bedenfield learned from a supervisor about this restriction. Bedenfield, however,
testified that she witnessed Parker come into her work area on almost a daily basis
and that she saw Parker waiting in the parking lot for a ride from another coworker.
Bedenfield said that it made her uncomfortable and feel unsafe when Parker came
into her work area and that she said something to her supervisor about that. Not only
during these instances, but at all other times too, Parker did not work in Bedenfield’s
area, did not say anything to her, and did not touch her. Bedenfield was not aware of
any other incident when Porter touched her or touched any other UPS employee
inappropriately except for the June 29th incident. Nor was Bedenfield aware of any
other incidents when Parker harassed other UPS employees.
Bedenfield feels like UPS should have “done more” and “done better”
than what it did in addressing this situation after the assault and Parker’s return to
work. ECF# 40-2, pp. 40-41. Bedenfield faults UPS for not keeping her informed with
what was going on and what they were doing to handle the situation and protect her.
Who wouldn’t feel attacked if somebody had just assaulted them? All of a
sudden, a month and half pops up later and is hanging out in the parking lot?
For all I know, she could be upset because she couldn’t work for a while or, you
know, whatever. So I think it could have been done better.
Id. at 41-42. Bedenfield said that Anthony and Parker were the only UPS employees to
sexually harass her.
When asked why her UPS employment ended, Bedenfield answered
because she “wanted to end it” and agreed it was her “voluntary intent” to end her
employment. ECF# 35-2, p. 75. Bedenfield explained that she wanted to end her
employment, because she “couldn’t take the uncertainty . . . [she] was feeling as to
how things would play out with the Portia [Parker] situation.” Id. Bedenfield also
went to HR right after Parker returned to work and discussed how Parker was coming
into her area and could be seen lingering in the parking lot. This would have been in
July or early August. Bedenfield felt unsafe at work. It bothered her that Tammy, the
HR representative with whom she spoke, did know about her situation and the earlier
reported assault. This was the last time that Bedenfield spoke with HR about what
was happening with Parker. Tammy gave Bedenfield some information about the EAP
program. After that meeting, Bedenfield did not raise any further complaints with HR,
through the helpline, or with her supervisors, and she did not file any union
grievance. Bedenfield stopped coming to work November 28, 29, and 30 of 2018 and
told her supervisor Cheyenne that she “didn’t know if . . . [she] could handle the way
things were going.” ECF# 35-2, p. 79.
Bedenfield testified to being aware of a prior unusual workplace incident
involving Parker that happened a month before the June assault. Bedenfield was
working when it happened, but she only saw Parker being taken out by the ambulance
crew and did not see anything before that. Bedenfield heard from coworkers that
Parker had been naked in one of the cages. Bedenfield was shocked that UPS had
allowed Parker to return to work after this.
In its motion, UPS seeks summary judgment first on the plaintiff’s sex
discrimination, constructive discharge, and retaliation claims arguing the plaintiff
cannot establish prima facie cases and cannot create a genuine issue of material fact
of pretext over UPS’s legitimate non-discriminatory reasons for its actions. UPS then
addresses the plaintiff’s sexual harassment allegations under her hostile work claim.
In response, the plaintiff believes sufficient evidence exists for a jury to find that she
was subjected to severe sexual harassment, that UPS failed to respond properly, and
that its failure to respond to her reports and complaints of harassment constitutes
retaliation. The plaintiff further argues she has created genuine pretextual issues over
the UPS’s articulated business reasons based on inconsistencies and implausible
Under Title VII, it is unlawful “to discharge any individual, or otherwise
to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). A Title VII plaintiff “can
prove discrimination in several different ways, including proof of a hostile work
environment or disparate treatment.” Throupe v. U. of Denver, 988 F.3d 1243, 1251
(10th Cir. 2021).
At summary judgment, the plaintiff must “present either direct evidence
of discrimination or indirect evidence that satisfies the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973).” Bekkem v. Wilkie, 915 F.3d 1258, 1267 (10th Cir. 2019). The plaintiff argues
her claims under the McDonnell Douglas framework. This means the “plaintiff must
first raise a genuine issue of material fact on each element of the prima facie case, as
modified to relate to differing factual situations.” Bekkem, 915 F.3d at 1267 (internal
quotation marks and citation omitted). “The burden then shifts to the employer to
offer a legitimate nondiscriminatory reason for its employment decision.” Id. “If the
employer does so, the burden then reverts to the plaintiff to show that there is a
genuine dispute of material fact as to whether the employer's proffered reason for
the challenged action is pretextual—i.e., unworthy of belief.” Id. At this last stage,
the court is to “consider the evidence of pretext in its totality.” Fassbender v.
Correct Care Solutions, LLC, 890 F.3d 875, 884 (10th Cir. 2018).
A prima facie case of discrimination “must consist of evidence that (1)
the victim belongs to a protected class; (2) the victim suffered an adverse
employment action; and (3) the challenged action took place under circumstances
giving rise to an inference of discrimination.” E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790,
800 (10th Cir. 2007). This burden of making a prima facie case “is not onerous,” “is
one of production, not persuasion,” and “involve[s] no credibility assessment.” Plotke
v. White, 405 F.3d 1092, 1099 (10th Cir. 2005) (internal quotation marks and citations
omitted). This burden serves primarily to eliminate “the most common
nondiscriminatory reasons” for the adverse employment action, but it still must
function as a critical inquiry into “whether the plaintiff has demonstrated that the
adverse employment action occurred under circumstances which give rise to an
inference of unlawful discrimination.” Id. at 1099-1100 (internal quotation marks and
citations omitted). To make a prima facie case of retaliation, a plaintiff must show:
“(1) that [s]he engaged in protected opposition to discrimination, (2) that a
reasonable employee would have found the challenged action materially adverse, and
(3) that a causal connection existed between the protected activity and the
materially adverse action.” Tabor v. Hilti, Inc., 703 F.3d 1206, 1219 (10th Cir. 2013).
Adverse Employment Actions
UPS takes issue with the plaintiff’s ability to show adverse employment
action for her discrimination and retaliation claims. In considering this issue, the
court is mindful of the following:
“Although the Tenth Circuit liberally defines an ‘adverse employment action,’
its existence is determined on a case by case basis and does not extend to a
mere inconvenience or an alteration of job responsibilities.” Heno v.
Sprint/United Mgmt. Co., 208 F.3d 847, 857 (10th Cir.2000) (internal quotation
marks omitted). To be an adverse action, the employer's conduct must be
“materially adverse” to the employee's job status. Sanchez v. Denver Pub.
Schs., 164 F.3d 527, 533 (10th Cir.1998); see Aquilino v. Univ. of Kansas, 268
F.3d 930, 934 (10th Cir.2001) (indicating that adverse action must be “a
significant change in employment status, such as ... firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing
a significant change in benefits” (quoting Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998))).
Wells v. Colorado Dept. of Transp., 325 F.3d 1205, 1212–13 (10th Cir. 2003). In
retaliation cases, adverse action is liberally construed. Tabor, 703 F.3d at 1219-20;
see Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1264 (10th Cir.1998) (adverse
employment action is “liberally interpreted” and courts are to follow “a case-by-case
approach to determining whether a given employment action is adverse.”).
UPS first argues that the plaintiff cannot show an adverse employment
action for either her discrimination or retaliation claims. Of the three general
categories for adverse employment actions, the plaintiff’s claims are focused on
“unbearable changes in job conditions such as hostile work environment or conditions
amounting to constructive discharge.” Clancy v. Esper, 2020 WL 618584, at *6 (D. Kan.
Feb. 10, 2020) (citing Barton v. Zimmer, Inc., 662 F.3d 448, 453-54 (7th Cir. 2011)),
aff’d, 837 Fed. Appx. 630 (10th Cir. Dec. 8, 2020), petition for certiorari filed (No.
20-7399, Mar. 4, 2021). “Coworker hostility or retaliatory harassment constitutes an
adverse employment action only if it is sufficiently severe.” Medina v. Income Support
Div., New Mexico, 413 F.3d 1131, 1136 (10th Cir. 2005). It appears then that the
plaintiff’s discrimination claim is actually the same as her hostile work environment
claim based on coworkers’ sexual harassment which requires her to prove that “’the
harassment altered a term, condition, or privilege of the plaintiff’s employment and
created an abusive working environment.” Lounds v. Lincare, Inc., 812 F.3d at 1222
(quoting Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007)). The court will
address the plaintiff’s hostile work environment claim later and, in particular,
whether “the alleged harassment was sufficiently pervasive or severe to alter the
terms, conditions, or privileges of her employment.” Id. The plaintiff does assert
constructive discharge claim which also will be addressed later separately. The
plaintiff has not come forward with any other discrimination claims for adverse
For her retaliation claim, the plaintiff must show a reasonable employee
would have found the employer’s challenged action was materially adverse. Using the
Supreme Court’s words, the plaintiff must show that the employer’s action “well
might have dissuaded a reasonable work from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(internal quotation marks omitted). The plaintiff asserts the retaliatory adverse
actions were “UPS failing to properly respond to her complaints and the unlawful
conduct she was subject to.” ECF# 40, p. 28. More specifically, the plaintiff regards
UPS’s alleged failure to investigate her complaints and to communicate with her
about any investigation were adverse employment actions. The plaintiff has failed to
create any genuine issue of material fact over what the defendant has shown as its
reasonable investigation and handling of her complaints. Other than the plaintiff
preferring that the defendant would have terminated Anthony and Parker, the
plaintiff does not show how the defendant’s handling of either incident would
dissuade a reasonable employee from complaining about sexual harassment. The
plaintiff points to no authority recognizing that an employer’s failure to disclose the
results of its investigation and discipline taken against another employee could
constitute a materially adverse employment action under any circumstances
resembling this case. The plaintiff’s speculation is not enough to create a genuine
issue of material fact over whether a reasonable employee in her position would be
dissuaded from filing a harassment complaint against a coworker because the
employer will not disclose the results of its investigation into the coworker or because
the employer may decide not to terminate the coworker.
With both incidents, she submitted written complaints against coworkers
to HR, and she was interviewed about her complaints. She also learned subsequently
that her supervisors were told not to have her work in the same areas as these
coworkers. She observed her supervisors follow through on these orders. After both
incidents, she never worked with those coworkers and never had verbal or physical
contact with them. The defendant’s HR staff had contact with the plaintiff after both
incidents, and there is no evidence or claim that she was deterred from raising any
personal concerns. The plaintiff points to a single conversation in August of 2018 with
Tammy in HR who claimed to know nothing about the plaintiff’s situation. The
plaintiff, however, offers no evidence that she reasonably requested the defendant to
take additional measures to allay her safety concerns and that the defendant denied
her requests. Additionally, from the evidence concerning what the plaintiff told the
defendant, there is not a reasonable inference that the defendant knew the plaintiff
believed she was being harassed and chose to ignore her complaints. Nor does the
plaintiff show that management orchestrated any harassment or knew about the
harassment and acquiesced in it as to condone and encourage it. Gunnell v. Utah
Valley State Coll., 152 F.3d 1253, 1265 (10th Cir. 1998). The court finds nothing in
these circumstances that rises to a material adverse employment action.
Even if the plaintiff had shown an adverse employment action, UPS has
shown it took remedial actions on both incidents based on the circumstances known
to it. The plaintiff has not shown she could meet her burden of showing pretext with
proof that UPS’s reasons are false or unworthy of credence. Garrett v. Hewlett–
Packard Co., 305 F.3d 1210, 1217 (10th Cir. 2002). The inquiry at this stage is not
whether the employer's stated reasons were “wise, fair or correct,” but whether the
employer “honestly believed those reasons and acted in good faith upon those
beliefs.” DePaula v. Easter Seals El Mirador, 859 F.3d 957, 971 (10th Cir. 2017)
(internal quotation marks and citation omitted). The evidence of record stands
uncontroverted that UPS believed and acted in good faith on what it knew about both
incidents at the time. The plaintiff’s speculative opinions and citation of unrelated
cases involving UPS are inadmissible evidence. Her conclusory arguments and
references to UPS policy do not show how UPS failed to follow any of its policies
regarding discipline or the disclosure of confidential information on employees. “Mere
conjecture that the employer's explanation is a pretext for intentional discrimination
is an insufficient basis for denial of summary judgment.” Bekkem, 915 F.3d at 1268
(internal quotation marks and citation omitted). The defendant is entitled to
summary judgment on this retaliation claim.
UPS seeks summary judgment as the plaintiff cannot meet her
substantial burden of showing her resignation was the result of a constructive
discharge. UPS points out that the plaintiff admitted in her deposition that she
voluntarily resigned because she could not take the “uncertainty.” ECF# 35-2, p. 75.
UPS specifically emphasizes that Bedenfield admitted she ended her employment
because she “wanted to” and because it was her “voluntary intent” to do so. ECF# 352, p. 75. UPS also challenges the plaintiff’s evidence as failing to show a jury issue
over whether a reasonable person in her position would feel compelled to resign due
to any alleged discriminatory actions by UPS.
The Tenth Circuit recently summarized the basic principles governing a
claim of constructive discharge:
“Constructive discharge is an adverse employment action.” Strickland v. United
Parcel Serv., 555 F.3d 1224, 1230 n.4 (10th Cir. 2009); see Fischer v.
Forestwood Co., Inc., 525 F.3d 972, 980 (10th Cir. 2008) (“Even if an employee
resigns, the plaintiff may still satisfy the adverse employment action
requirement by demonstrating that he was constructively discharged.”). “A
claim of constructive discharge ... has two basic elements[:] [F]irst that [the
plaintiff] was discriminated against by his employer to the point where a
reasonable person in his position would have felt compelled to resign. ...
[Second,] that he actually resigned.” Green v. Brennan, ––– U.S. ––––, 136 S. Ct.
1769, 1777, 195 L.Ed.2d 44 (2016). “Essentially, a plaintiff must show that she
had no other choice but to quit. The conditions of employment must be
objectively intolerable[.]” Sanchez v. Denver Pub. Sch., 164 F.3d 527, 534
(10th Cir. 1998) (citation and internal quotation marks omitted). “If an
employee resigns of her own free will, even as a result of the employer's
actions, that employee will not be held to have been constructively
discharged.” Baca v. Sklar, 398 F.3d 1210, 1216 (10th Cir. 2005).
Rivero v. Bd. of Regents of U. of New Mexico, 950 F.3d 754, 761 (10th Cir. 2020). It is
for Bedenfield to prove that UPS so discriminated against her that a reasonable person
in her place would have felt compelled to resign. She has not come forward with
evidence showing she could carry this burden. Moreover, the court cannot find in her
summary judgment memorandum anything that meaningfully responds directly to
UPS’s arguments. Bedenfield’s own testimony confirms that she had dealt with these
vague feelings of uncertainty and fear for some time which did not otherwise affect
her work routine and environment other than complaining one time immediately after
Parker returned to work. As Bedenfield said, she voluntarily decided to leave because
she no longer wanted to deal with the situation. A constructive discharge claim does
not arise simply from the employee feeling dissatisfied with the employer’s
disciplinary decision. Without evidence to sustain a constructive discharge claim, the
plaintiff cannot avoid summary judgment.
Hostile Work Environment
A hostile work environment claim is “composed of a series of separate
acts that collectively constitute one unlawful employment practice.” Nat. R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
To sustain such a claim, the plaintiff must show “(1) she was discriminated against
because of her sex, and (2) that the discrimination was sufficiently severe or
pervasive such that it altered the terms or conditions of her employment and created
an abusive working environment.” Delsa Brooke Sanderson v. Wyoming Highway
Patrol, 976 F.3d 1164, 1174 (10th Cir. 2020). To show the first element that the
defendant was motivated by the plaintiff's sex, “a plaintiff may point to acts of
harassment that are ‘facially sex based.’” Throupe v. University of Denver, 988 F.3d
at 1251 (quoting Sanderson, 976 F.3d at 1174). And, “[i]f a jury could reasonably infer
the conduct was related to the plaintiff's sex, ‘then it is for the fact finder to decide
whether such an inference should be drawn.’” Id. For the second element, the
plaintiff cannot just rely on her perception of the conduct being severe or pervasive,
and instead, “must ‘show that a rational jury could find that the workplace is
permeated with discriminatory intimidation, ridicule, or insult.’” Id. quoting
Sanderson, 976 F.3d at 1176). “So, ‘the run-of-the mill boorish, juvenile, or annoying
behavior that is not uncommon in American workplaces is not the stuff of a Title VII
hostile work environment claim.’” Id. (quoting Morris v. City of Colo. Springs, 666
F.3d 654, 664 (10th Cir. 2012)). “And ‘a few isolated incidents” of discriminatory
conduct does not make the harassment pervasive.” Id. (quoting Morris, 666 F.3d at
666). Finally, “An employer can be held liable if its employees create a hostile work
environment and ‘it knew or should have known about the conduct but failed to stop
it.’” Throupe, 988 F.3d 1243, 1251 (10th Cir. 2021) (quoting Bertsch v.
Overstock.com, 684 F.3d 1023, 1027 (10th Cir. 2012), abrogated on other grounds by
Lincoln v. BNSF Ry. Co., 900 F.3d 1166 (10th Cir. 2018)).
Bedenfield claims that she was sexually harassed both by Anthony and
Parker and that Parker’s conduct was even a sexual assault all of which affected a
term or condition of her employment due to its severity. Bedenfield stresses that the
single incident of Parker’s conduct was sufficiently severe to create a hostile work
environment in that it was objectively threatening and abusive. She also argues her
deposition testimony shows Anthony and Parker “had a history of and propensity of
and for unlawful and dangerous behavior.” ECF# 40, p. 32. She contends UPS was
“grossly negligent and failed to take prompt corrective action in response” to her
complaints and in not terminating Parker or Anthony but allowing them back to work
and not keeping them from having contact with her. Id.
“If a sexually hostile work environment claim is based on the employer’s
alleged negligence or recklessness in addressing a non-supervisory co-worker’s
harassment, the plaintiff must also prove that the employer ‘had actual or
constructive knowledge of the hostile work environment but did not adequately
respond to notice of the harassment.’” Jackson v. Kansas City Kansas Public Schools
Unified School District No. 500, 799 Fed. Appx. 586, 590-91 (10th Cir. Jan. 7, 2020)
(unpub.) (quoting Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007)), cert.
denied, 140 S. Ct. 2834 (2020). The Tenth Circuit has explained:
To survive summary judgment, the plaintiff has the burden of presenting
evidence establishing a genuine issue of fact that her employer knew about the
sexual harassment and that its response was unreasonable. See Ford v. West,
222 F.3d 767, 776 (10th Cir. 2000). A plaintiff can show actual knowledge by
showing she “reported harassment to management-level employees” and can
show constructive knowledge if “the pervasiveness of sexual harassment can
properly lead to an inference of knowledge.” Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 673 (10th Cir. 1998). To show that the employer’s response was
inadequate, the plaintiff must show that it was not “reasonably calculated to
end the harassment.” Id. at 676 (quotation omitted).
Jackson, 799 Fed. Appx. at 591. The reasonableness of an employer’s response to a
complaint of harassment is judged by “whether the remedial and preventative action
was reasonably calculated to end the harassment.” Adler, 144 F.3d at 676 (quotation
omitted). It is the plaintiff’s “burden of presenting evidence establishing a genuine
issue of fact that the employer’s response was unreasonable.” Ford, 222 F.3d at 776.
If the harassment stops immediately, this evidences that the employer’s response was
reasonably calculated. Jackson, 799 Fed. Appx at 591.
UPS seeks summary judgment as the plaintiff lacks any admissible
evidence that UPS’s response to her complaints was unreasonable. That the plaintiff
believes both Anthony and Parker should have been terminated is her opinion, but she
lacks personal knowledge about UPS’s findings, conclusions and corrective actions
taken as a result of its investigations. The plaintiff did not depose any UPS witness
about these matters leaving her with no evidence that UPS’s response was
unreasonable under the circumstances. As UPS points out, Bedenfield’s written
complaints did not directly refer to either incident as sexual harassment.
Nonetheless, UPS investigated the Anthony incident and was unable to corroborate
her complaint. As for Parker, she pursued EAP treatment and was not allowed back to
the workplace until a physician found her fit to return. UPS took remedial measures:
reminded Anthony of the anti-harassment policies and warned him of disciplinary
consequences for any such conduct in the future; placed a restriction on Anthony and
Parker ever being assigned to work in the same area as Bedenfield; and kept open
channels for reporting any future or ongoing problems. In her deposition, the plaintiff
admitted that neither employee ever again spoke to her or touched her
inappropriately. At most, the plaintiff observed both employees occasionally walk into
her work area without saying anything to her. UPS reiterates that the evidence
establishes its remedial actions were reasonably calculated to end any future
harassing conduct as evidenced by Bedenfield never again experiencing anything that
The record fully confirms UPS’s position on taking a reasonable response
actions based on what it knew, on what Bedenfield reported, and on what it should
have known under the circumstances. UPS investigated the Anthony incident as a
first-time harassment complaint which Anthony denied during the investigation but
which UPS further investigated and found no corroborating evidence. The plaintiff’s
arguments and evidence are not such that a reasonable jury could return a verdict
other than that the UPS’s warning, work assignment restriction, and follow-up with
Bedenfield were proportional and reasonably calculated to end the harassing conduct
and to prevent future harassing behavior. See Scarberry v. ExxonMobil Oil Corp., 328
F.3d 1255, 1259-60 (10th Cir. 2003).
With the Parker incident, UPS immediately acted on the plaintiff’s
complaint sending Parker home to complete EAP treatment and not allowing her back
unless treatment was successfully completed. As confirmed in her own written
complaint and her testimony about the matter, Bedenfield believed Parker’s very
behavior evidenced being under the influence of something in assaulting Bedenfield
during a pre-shift meeting attended by other employees and supervisors. After the
incident, the plaintiff met with HR and was told that Parker would not be back to
work for some time and would only return if treatment was successfully completed.
Parker was off work for a month successfully completing the treatment and returned
to work only after submitting a fitness report from her healthcare provider. UPS
allowed Parker to return to work but directed that she would never be assigned to
work in the same area as Bedenfield. While there may have been a prior incident of
Parker acting strangely at work, the plaintiff has no admissible evidence this prior
incident involved sexually harassing conduct. There is no evidence of record that
Parker ever harassed or inappropriately touched another UPS employee except this
one event, when Parker was obviously under the influence of something. Thus, the
plaintiff fails to show that the UPS acted unreasonably in handling this situation
principally as an employee with a substance abuse problem. The removal from work,
the successful EAP treatment condition, and the work assignment restriction were
proportional and reasonably calculated to end the harassing conduct and to prevent
future harassing behavior.
Bedenfield testified seeing Parker come into her area and seeing Parker
wait outside in the parking lot for her ride home. There is no evidence to suggest this
is harassing conduct. Instead, the evidence is uncontroverted that Parker never said
anything to the plaintiff and never touched her after this incident. The plaintiff offers
no evidence that Parker confronted, threatened, or engaged in other conduct
constituting harassment of Bedenfield. The plaintiff expresses her opinion that UPS
should have terminated Parker or should have kept her more informed about its
handling of Parker’s situation. The plaintiff’s opinion by itself is not enough to carry
her burden of showing that a reasonable jury could find UPS’s response here was
unreasonable. Instead, UPS’s response addressed an employee with an apparent
substance abuse problem who, when under the influence, engaged in behavior that
had never been displayed at work. The UPS also worked to protect the plaintiff by
restricting work assignments to limit interaction. Nor is there any evidence suggesting
that the HR department was not ready to address any further ongoing complaints from
Bedenfield if she had made them. The plaintiff has failed to present evidence from
which a jury could reasonably find that in dealing with Parker UPS had acted
unreasonable prior to and after Bedenfield’s complaint of sexual harassment. UPS is
entitled to summary judgment on the plaintiff’s hostile work environment claim.
In the alternative, the court would grant summary judgment in that the
evidence of record shows the plaintiff cannot prove these isolated events are
pervasive or severe enough to alter the terms and conditions of her employment.
Notwithstanding the severity of Parker’s assault, the evidence shows the incident was
largely a substance abuse problem which UPS addressed. There is no evidence of any
contacts between the plaintiff and Parker after the single incident. The plaintiff kept
working more than three months after Parker’s return to work, and she presents no
evidence that Parker’s presence otherwise interfered with her work. The plaintiff’s
subjective and vague feelings of uncertainty and insecurity from occasionally seeing
Anthony and Parker in or near her work area are not enough. See Throupe, 988 F.3d
at 1252 (”It is not enough that the plaintiff perceived the conduct to be severe or
pervasive.”) Under the totality of the circumstances, a reasonable jury could not find
severe or pervasive conduct here because the incidents were isolated, were
immediately addressed and remediated, and did not unreasonably interfere with the
plaintiff’s work performance.
IT IS THEREFORE ORDERED that the defendant UPS’s motion for summary
judgment (ECF# 34) is granted.
Dated this 31st day of March, 2021, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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