Plain v. McDonald's Corporation et al

Filing 85

MEMORANDUM AND ORDER granting in part and denying in part 63 Motion for Summary Judgment; the motion is GRANTED as to Plaintiff's claims under the Kansas Act Against Discrimination and DENIED as to all other claims. Plaintiff's motion for sanctions (Doc. 65 ) is DENIED without prejudice to refiling. Signed by District Judge John W. Broomes on 5/10/2022. (ca)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CRISTLE PLAIN,
Plaintiff,
v.

Case No. 19-2748-JWB

NICHOLS MANAGEMENT, INC.,
Defendant.
MEMORANDUM AND ORDER
This matter is before the court on Defendant’s motion for summary judgment (Doc. 63)
and Plaintiff’s motion for sanctions (Doc. 65). The motions are fully briefed and ripe for decision.
(Docs. 64, 70, 70, 77, 80, and 83.) For the reasons stated herein, Defendant’s motion for summary
judgment (Doc. 63) is GRANTED IN PART AND DENIED IN PART; the motion is GRANTED
as to Plaintiff’s claims under the Kansas Act Against Discrimination and DENIED as to all other
claims. Plaintiff’s motion for sanctions (Doc. 65) is DENIED without prejudice to refiling.
I. Background
Plaintiff was formerly employed at a McDonald’s franchise restaurant in Pittsburg, Kansas
owned by Defendant. Plaintiff contends Defendant subjected her to employment discrimination
on account of sex, including harassment in the form of a hostile work environment, and unlawful
retaliation, all in violation of the Kansas Act Against Discrimination (KAAD), K.S.A. 44-1001 et
seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Doc. 59 at 7-8.)
Defendant moves for summary judgment on all claims. It first argues that Plaintiff failed to timely
exhaust administrative remedies on her KAAD claims such that the court lacks jurisdiction over

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those claims. It contends Plaintiff’s hostile work environment claim fails because the alleged
harassment was not severe or pervasive, and because Defendant is entitled to an affirmative
defense for employers that take appropriate remedial action in response to reported harassment.
Defendant argues it is entitled to judgment on claims of disparate treatment and retaliation because
Plaintiff did not suffer adverse employment action and the evidence does not give rise to a
reasonable inference of discrimination or retaliation. Finally, Defendant argues it is entitled to
summary judgment because the evidence shows Defendant had a legitimate, non-discriminatory
reason for its actions. (Doc. 64 at 1-2.)
II. Motion for Summary Judgment (Doc. 63.)
A. Uncontroverted facts
In keeping with the standards governing summary judgment, the following statement views
the evidence in the light most favorable to Plaintiff. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986) (evidence is viewed in the light most favorable to the non-moving party because
credibility determinations, weighing conflicting evidence, and drawing appropriate inferences are
jury, rather than judge, functions).
Defendant is a franchisee of several McDonald’s restaurants including two in Pittsburg,
Kansas – one in the north part of town and one in the south, a few miles apart from each other.
From 2000 to 2002, Plaintiff worked as a crew member at both the north and south stores. Plaintiff
then left Defendant’s employment until 2015, when she was rehired as a crew member. She then
worked primarily at the south store. (Doc. 64 at 2.)
Plaintiff was promoted to shift manager within a few months of returning in 2015 and was
later promoted to department manager (“DM”) of two departments. Shift managers oversee the
placement of employees at workstations during their shifts, can send employees home, and can

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write them up for discipline. DMs don’t oversee employee placement but run one of three
specified restaurant departments – Kitchen, Guest Services, or People. DMs have overlapping
authority to write up employees, but DMs cannot otherwise discipline employees. Plaintiff’s pay
was based upon her position as a DM, although she sometimes performed the duties of a shift
manager. DMs are directly supervised by store managers (also referred to as general managers).
(Id. at 3.)
Defendant had a policy during Plaintiff’s tenure prohibiting harassment, discrimination,
and retaliation for engaging in protected conduct. Plaintiff signed an acknowledgement on June
8, 2015, that she had received and read the policy. Plaintiff understood that the policy required
employees to bring incidents of discrimination to the attention of their immediate supervisor. From
December 2017 to the end of her employment, Kelsey McClure, the store manager of the south
store, was Plaintiff’s immediate supervisor. (Id. at 4.)
Prior to May 2018, David Hadley1 had been a crew member and was training to become a
shift manager. Hadley became a shift manager only a few days before the end of Plaintiff’s
employment. Plaintiff testified that Hadley frequently commented on her weight and appearance,
said that women shouldn’t work on the grill because they can’t work fast enough, and called
Plaintiff a “she-male” and “thick.” Hadley made comments to the effect that women can’t do their
jobs like men can. On multiple occasions Plaintiff verbally complained about Hadley’s behavior
to McClure, her immediate supervisor, and to McClure’s supervisor, Vanessa Ketcham, the area
supervisor for the south store. After she did so, the behavior would briefly stop, but it would start
up again and Plaintiff would have to complain again. (Doc. 64-1 at 5; Doc. 80 at 11.)

1

On March 13, 2022, Defendant filed a supplemental Rule 26 disclosure stating that Mr. Hadley has passed away and
is no longer available as a witness. (Doc. 84.)

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In February of 2018, Plaintiff’s boyfriend, who also worked for Defendant, left Plaintiff a
Valentine’s Day present in the office at the south store. As Plaintiff walked in the office, Hadley
grabbed her and kissed her, saying he was sure her boyfriend “wanted me to give that to you also.”
(Doc. 64-1 at 28.) Hadley tried to kiss her fully on the lips but Plaintiff pulled away so that Hadley
kissed her half on the lips and half on the cheek. (Id. at 28-29.) Plaintiff verbally informed
Ketcham and McClure of Hadley’s actions. Although Defendant’s policy requires that violations
or discipline be included in personnel files, Hadley’s personnel file contains no record of
complaints or discipline.
On May 17, 2018, Plaintiff was not scheduled to work and was home sick with strep throat.
She had called in sick and provided a doctor’s note to Hadley. Hadley nevertheless called her and
asked her to come in, telling her the store was short-staffed and he had been unable to get in touch
with other managers, and that Plaintiff was his last resort even though she was sick. (Doc. 80-2 at
33.2) Plaintiff went in to work. Plaintiff testified that on prior occasions when a DM was out,
whether it was because of sickness or a day off, if the store was short-handed Ketcham had “made
it very clear that it was our jobs as the DMs … to go in,” and they “got yelled at … for not going
in.” (Doc. 80-2 at 36.) Plaintiff testified that after she began work that morning, Hadley
disappeared for an extended period, leaving her to cover both the drive-thru and the kitchen. When
McClure arrived at the store, Plaintiff informed her she could not locate Hadley. When Hadley
finally showed up, McClure told him he needed to move Plaintiff from the drive-through to another
position because she was not feeling well. Hadley refused, prompting McClure to say she was
going to look at the security camera video to see where Hadley had been for the last hour. (Doc.
80-2 at 35-37.) Hadley turned and confronted Plaintiff, yelling at her and calling her a “stupid

2

McClure testified she may also have asked Plaintiff to come in the morning of May 17 despite the fact that Plaintiff
was not feeling well. (See Doc. 80-9 at 26.)

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crybaby bitch.” (Doc. 80-2 at 36.) Plaintiff responded that she was sick and was not even supposed
to be there or handle food, and said it was even harder doing it all by herself. (Id.) Hadley
continued yelling at Plaintiff, called her a “stupid fucking bitch,” a “cunt,” and threatened to kick
both her ass and her boyfriend’s ass. (Doc. 64-1 at 37; Doc. 83-2 at 7; Doc. 64-8 at 3.) Hadley
was standing over Plaintiff, screaming, and pointing his finger in her face.

Plaintiff is

approximately 5 feet 1 inches tall and weighs about 100 pounds. Hadley is over 6 feet tall and
weighs 250 pounds or more. (Doc. 80-2 at 37.) The incident took place in front of customers,
crew members, and McClure. McClure said and did nothing as Hadley confronted Plaintiff. (Id.
at 38.) Megan Fordyce (another shift manager and DM) was also present at the store that morning.
Plaintiff was crying and shaking profusely. (Doc. 80 at 1-2.) Fordyce asked Hadley to
leave the store; he refused to leave. (Doc. 80-5 at 125.) Hadley violated a number of Defendant’s
policies on May 17, 2018, including policies on harassment, social media, insubordination, and
professionalism. (Doc. 80 at 2.)
Plaintiff left the store without obtaining advance permission from her supervisor
(McClure), which was contrary to Defendant’s policies. Plaintiff called Ketcham on the phone.
Ketcham, who had taken the day off, asked Plaintiff, “What the fuck do you want?” (Doc. 80-2 at
39.) Plaintiff explained what happened and told Ketcham she had left the store. Ketcham said “if
you want to keep your job, you better get your ass back to work.” (Id.) Ketcham said she would
call Plaintiff back and hung up. (Id.)
Plaintiff texted McClure a screenshot of a Facebook public post Hadley made shortly after
the incident, while he was still at work, that said “Lol better get ur lies straight bitch I’m not the
one to back down so let’s play.” (Doc. 64 at 8; Doc. 80 at 2.) McClure also saw a screenshot of
a post by Hadley about the same time that said, “Sick of these woman thinking their shit don’t

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stink. Fact check produce with Ur body not ur mouth and you will get more respect.” [sic] (Id.)
McClure feared for Plaintiff’s safety and told her not to return to work that day until Hadley was
gone. McClure sent Hadley home an hour early from his shift and notified Plaintiff. Plaintiff then
returned to the store and worked additional hours that day. McClure shared Hadley’s Facebook
posts with Ketcham. (Doc. 80-9 at 15.)
The next day, Friday May 18, 2018, Plaintiff and Hadley had been scheduled to work
overlapping shifts, but McClure altered Plaintiff’s schedule so they would not be working at the
same time. Plaintiff attempted to call Ketcham, but she did not answer. Plaintiff texted Ketcham
and McClure at 10:10 a.m. stating that she decided not to come in that day because of the hostile
situation the day before and because her schedule “has been rearranged to suit the bully….” (Doc.
80-7.) She complained about Hadley’s derogatory statements about women, indicated she did not
feel safe when Hadley “could explode [at] any moment,” said McClure (Plaintiff’s supervisor)
admitted the day before that she was scared to talk to Hadley alone, and asserted that Hadley
“smoke[s] weed on the property while clocked in” and it “makes him very unstable.”

(Id.)

Ketcham’s text response was, “You need to call me unless this is you quitting, then there’s no
need.” (Id.) Plaintiff responded that “I absolutely don’t want to quit my job [as] I have kids to
take care of,” but asserted that she should not have to lose hours or have her schedule rearranged
“to accommodate a bully.” (Id.) Ketcham responded, “Then you call me as stated above.” (Id.)
Plaintiff met in person with Ketcham and McClure on May 18th. At the meeting, Ketcham
told Plaintiff she was being placed on probation because, according to Defendant, Plaintiff “yelled
and argued with Hadley in front of customers and crew members.” (Doc. 64 at 9.) Plaintiff
protested that she had not started the argument with Hadley. (Doc. 64-1 at 46.) Plaintiff also cites
evidence, including her own testimony, from which a reasonable jury could find that she did not

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yell at Hadley during the incident. (See Doc. 80 at 14.) For purposes of summary judgment, the
court accepts Plaintiff’s version of the facts as true. Plaintiff, who feared losing her job, signed an
acknowledgment of being placed on probation even though she thought it was unfair.
Defendant asserts that Hadley “was similarly placed on probation” and Plaintiff was
informed at the May 18 meeting that Hadley had been placed on probation. ((Doc. 64 at 9; Doc.
80-2 at 42.) But Plaintiff cites evidence that Hadley’s personnel file contains no documentation
of any discipline, despite a policy that such discipline should be documented in the file. (Doc. 80
at 14.)
Ketcham had decided to discipline Plaintiff prior to meeting with her on May 18. Ketcham
did not speak with anyone about the May 17 incident other than Plaintiff, Hadley, and McClure.
Ketcham did not review the surveillance video from the store although she was aware that the
incident would have been on video. (Doc. 80 at 3-4.)
Plaintiff had previously worked at the north McDonald’s store. Plaintiff was a single
mother of six children and, in addition to her job at the south McDonald’s, she was also working
a second job in the evenings at a shoe store that was close to the north store. At some point,
Ketcham raised the possibility of moving Plaintiff from the south McDonald’s store to the north
store.
On Monday, May 21, 2018, Ketcham texted Plaintiff asking, “So, why are you not here at
work today?” (Doc. 80-8 at 1.) Plaintiff responded that she had been told her shift was covered
by another employee. (Doc. 80-8 at 1.) When Ketcham said that wasn’t the case, Plaintiff
complained about the lack of a plan to keep her safe from Hadley. She said nobody understood
the stress she was under and that she was having anxiety attacks. She complained about Hadley’s
behavior, saying he “blows up all the time and treats me like crap,” and said McClure had been

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scared to confront him. (Id. at 2.) Plaintiff said, “I just don’t think [you] understand how many
female managers are scared of him when he gets in his moods.” (Id.) Plaintiff had been “told I
could move stores but I shouldn’t have to.” (Id.)
Ketcham and/or Thomas Nichols, Defendant’s owner, decided to transfer Plaintiff to the
north McDonald’s store.

Nichols phoned Mark Young, the manager of Defendant’s north

McDonald’s store, on Monday May 21 and told him Plaintiff was being transferred. (Doc. 80-17
at 3.) On the afternoon of Tuesday, May 22, Young texted Plaintiff. Plaintiff, who did not
recognize the number, asked who it was. Young responded that, “It’s mark,” and said, “I have a
Shift available tomorrow if you want it.” (Doc. 80-17 at 1.) Plaintiff did not respond. The next
morning, May 23, Young texted Plaintiff, “We are assuming you don’t wanna work here and quit.”
(Id.) Plaintiff responded that she was a DM and asked if he had a DM position available and
indicated that she needed a schedule so she could coordinate with her second job. Young
responded that Nichols had “said no DM.” (Id. at 2.) After some back and forth, Young said he
would add Plaintiff to the next schedule. Plaintiff said “ok” but indicated she was going to find
out “why I am being demoted and no one even asked me if I wanted to go to [your] store.” (Id. at
2.) Young indicated he had some “random” shifts available that week. Plaintiff asked Young to
send the schedule and said she would let him know after talking to Nichols. (Id. at 3.)
Young sent Plaintiff information on available shifts. Plaintiff indicated she could do parts
of them that were not in the late afternoon or evening, noting that her schedule at the south store
allowed her to work a second evening job. She volunteered to come in at 6 a.m. and work from 6
a.m.to 2 p.m., which would cover peak hours, but Young responded that “[a]ll we have are late
afternoons and evening,” adding that he already had four managers working days. (Doc. 80-17 at

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5.) In response to Plaintiff’s indication that she would like to talk to Nichols about it, Young said
Nichols was “already aware of the situation and told me to give the hours I have.” (Id.)
On May 23, 2018, Plaintiff had a text exchange with Nichols. Plaintiff asked why she was
being demoted, saying she had earned her spot as a DM. Nichols said “we don’t have any spots
open there [at the north store] on DMs.” (Doc. 80-13 at 1.) He said her pay would not change but
she “[j]ust won’t get a bonus check” because she was on probation. (Id.) Plaintiff responded that
she had not been told anything about a demotion and would not have signed the paper
acknowledging probation if she had, because she felt she was in the right leaving the store when
Hadley was screaming at her and threatening her. Nichols said the probation paperwork didn’t say
anything about a DM spot because such spots were “at my discretion.” (Id. at 2.) When Plaintiff
complained that taking away her bonus was taking away her pay, Nichols responded, “it’s just
that, a bonus” which “we can pay out or not at our discretion.” (Id.) Plaintiff asked why she was
being moved instead of Hadley when she had been working at the south store for three years.
Nichols said he had discussed it with both stores and that since she was more experienced, she was
better suited to move to the north store, plus Ketcham had told him Plaintiff lived up north in
Frontenac. Plaintiff responded that her boyfriend lived in Frontenac but she lived five blocks from
the south store. Nichols replied, “well either way, it’s all Mcds at the end of the day, no matter if
it’s North or South,” and said she would do well at the north store. (Id.)
On Thursday morning May 24, Plaintiff texted Nichols complaining that Nichols had told
her nothing would change, but Young said the north store did not have days available, and so “I
am not sure what I am supposed to do” about her evening job. (Id. at 3.) Nichols said Young “has
a meeting with you Friday to work out all that kind of stuff” about scheduling. (Id.)

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Plaintiff then texted Young asking, “So we have a meeting tomorrow to discuss [hours]?”
(Doc. 80-17 at 8.) Young replied yes although he had not yet set one up. (Id.) Plaintiff noted she
was scheduled to be out of town on certain dates including June 6, when she had a lawyer’s meeting
set up in Kansas City. (Id.)
Kim Southern, the supervisor of the north store, texted Plaintiff and Nichols (in a group
text) the morning of May 24. She pointed out that Young had sent Plaintiff a schedule of available
shifts at the north store and said they had to work Plaintiff in where they could. Southern said they
would try to work around Plaintiff’s second job but could not guarantee hours. Southern said she
and Young would like to sit down with her “to clarify our expectations for you as a new manager
on his team,” adding that Friday (the following day) was available, and “[w]e can set this meeting
for 2 pm.” (Doc. 80-19 at 2.) Southern added that “[a]t this point, you need to decide and let us
know if you want to work the available hours.” (Id.) Plaintiff indicated she thought it was unfair
that she was demoted from DM to shift manager, was offered random shifts in place of a set
schedule, and was being deprived of a bonus, despite Nichols’ representation to her that “nothing
would change” with the transfer. She indicated all of this made it extremely difficult to keep her
second job, make house and car payments, and take care of her kids. Plaintiff said “it’s all stressing
me out,” but said she would see Southern at 2:00 p.m. the next day. She added that “[i]f this is
[your] guys way to make me quit it’s absolutely horrible” and “I didn’t do anything to be treated
this way!” (Id.)
Plaintiff did not show up for the 2:00 meeting on May 25. Southern texted Plaintiff at
2:06 p.m. asking if she was running behind and, if so, to let her know. After receiving no response,
Southern emailed another manager at 2:14 stating that Plaintiff did not show up for the 2:00

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meeting and “I assume she’s quit.” (Doc. 64-5 at 1.) Defendant did not thereafter attempt to
contact Plaintiff or schedule hours for her.
B. Summary Judgment Standards
Summary judgment is appropriate if the moving party demonstrates 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). A fact is “material” when it is essential to the claim, and the issues of fact are
“genuine” if the proffered evidence permits a reasonable jury to decide the issue in either party's
favor. Sotunde v. Safeway, Inc., 716 F. App'x 758, 761 (10th Cir. 2017). The movant bears the
initial burden of proof and must show the lack of evidence on an essential element of the claim.
Thom v. Bristol—Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2004) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986)). The nonmovant must then bring forth specific facts
showing a genuine issue for trial. Id. Any statement of fact that has not been controverted by
affidavit or an exhibit is deemed to be admitted. D. Kan. Rule 7.4. Also, the court will only consider
facts based on personal knowledge or supported by exhibits. Conclusory allegations are not
sufficient to create a dispute as to an issue of material fact. See Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). The court views all evidence and reasonable inferences in the light most
favorable to the nonmoving party. LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th
Cir. 2004).
C. Analysis
1. Exhaustion of KAAD claims. In response to Defendant’s argument that Plaintiff did
not timely and properly exhaust administrative remedies on her claims under the KAAD, “Plaintiff
withdraws her KAAD claims.” (Doc. 80 at 19 n. 6.) Accordingly, Plaintiff’s KAAD claims are
DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies.

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2. Hostile work environment claim. Defendant next contends that Plaintiff fails to cite
evidence of conduct sufficiently severe or pervasive to support a hostile work environment claim.
Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for an
employer to discriminate against any individual with respect to her compensation, terms,
conditions, or privileges of employment, because of such individual's sex. Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993) (citing 42 U.S.C. § 2000e–2(a)(1)). The phrase “terms, conditions,
or privileges of employment” goes beyond economic discrimination; it evinces a congressional
intent to address the entire spectrum of disparate treatment of men and women in employment,
including conditions that require a person to work in a discriminatorily hostile or abusive
environment. Id. (citations omitted.) “When the workplace is permeated with ‘discriminatory
intimidation, ridicule, and insult,’ … that is ‘sufficiently severe or pervasive to alter the conditions
of the victim’s employment and create an abusive working environment,’ … Title VII is violated.”
Id. This standard “takes a middle path between making actionable any conduct that is merely
offensive and requiring the conduct to cause a tangible psychological injury.” Id. Whether an
environment is “hostile” or “abusive” can be determined only by looking at the circumstances,
including 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. Id. at 23.
The court finds Plaintiff has cited evidence from which a reasonable jury could find that
Plaintiff was subjected to conditions sufficiently severe and pervasive to support a claim of sex
discrimination. Plaintiff cites evidence that Hadley frequently made offensive comments in the
workplace about the inferiority of women generally. She also cites evidence that he frequently
directed derogatory comments specifically at her based on her sex (e.g., “she-male”). Such

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comments alone might be unlikely to support a hostile work environment claim, but Plaintiff cites
substantial additional evidence. She cites evidence that Hadley engaged in offensive and unwanted
physical touching by grabbing her and kissing her against her will. Plaintiff also cites evidence
that Hadley engaged in a physically intimidating encounter at work in which he screamed at her
and threatened to assault both her and her boyfriend. Hadley, who was far bigger than Plaintiff,
confronted Plaintiff in an essentially out-of-control manner – towering over Plaintiff, threatening
her, pointing in her face, and screaming derogatory slurs based on her sex, including “bitch” and
“cunt.” Plaintiff cites evidence that her manager witnessed the encounter but was afraid to
intervene or speak up because she was physically intimidated by Hadley. Shortly after the
encounter, Hadley only increased the threatening nature of it by refusing a manager’s directive to
leave the premises. Hadley then confirmed a continuing animus against Plaintiff on account of
her sex, posting messages on Facebook (which a jury could find were clearly directed at Plaintiff)
again calling her “bitch” and vowing he would not “back down,” and telling her she would get
more respect if you “produce with Ur body not ur mouth.” (Doc. 64 at 8.) These apparent attempts
to humiliate or threaten Plaintiff could reasonably be construed by a jury as representations by
Hadley that he intended to continue, if not escalate, his harassment of Plaintiff in the workplace.
When the combination of factors supported by evidence is considered here, including frequent
derogatory remarks about female workers, frequent comments directed at Plaintiff based on her
gender, unwanted and forced physical touching in the form of an attempt to kiss Plaintiff against
her will, a serious physical threat and out-of-control workplace confrontation accompanied by
vulgar comments based on Plaintiff’s gender, and an indication by the alleged harasser that such
conduct would continue, a reasonable jury could find that Plaintiff’s workplace was “permeated
with ‘discriminatory intimidation, ridicule, and insult,’ … that is ‘sufficiently severe or pervasive

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to alter the conditions of the victim’s employment and create an abusive working environment.’”
Harris, 510 U.S. at 21.
3. Ellerth/Faragher defense. Defendant contends it is entitled to summary judgment
under the Ellerth/Faragher affirmative defense, which provides that where “no tangible
employment action is taken, a defending employer may raise an affirmative defense to liability or
damages” by showing “(a) that the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed
to take advantage of any preventive or corrective opportunities provided by the employer or to
avoid harm otherwise.” Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
Defendant has not shown it is entitled to summary judgment by virtue of this defense.
Plaintiff has cited evidence from which a jury could reasonably conclude that, regardless of the
other elements of the defense, Defendant did not exercise reasonable care to prevent and promptly
correct sexually harassing behavior. Plaintiff cites evidence from which a jury could find that
Defendant did little or nothing in response to Plaintiff’s frequent reports of Hadley’s derogatory
comments about women or in response to Plaintiff’s report that Hadley forcibly grabbed and kissed
her. Defendant argues that the appropriateness of its response is shown by the fact that after
Plaintiff complained, “Hadley would stop his behavior,” and after she reported the kiss, Hadley
“did not ever attempt to kiss or touch her again.” (Doc. 64 at 18.) But this ignores Plaintiff’s
evidence that she had to repeatedly complain about Hadley’s behavior, and at any rate it fails to
show that Defendant took any significant disciplinary action against Hadley as a result of
Plaintiff’s complaints.

As for the May 17 incident, a jury could similarly conclude that

Defendant’s response was not reasonable. A jury viewing the evidence in Plaintiff’s favor could
conclude that Defendant’s response – when it knew that Plaintiff had in fact been physically

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threatened and inappropriately demeaned in its workplace – was first to alter her hours and then to
involuntarily transfer her (rather that the harasser) to another store; to cut her hours and put her on
probation without just cause3; and to offer her a Hobson’s choice of losing her job or taking a
position without the regular bonuses she had previously received, without the DM title she had
previously earned, and without the regular hours she had previously enjoyed that allowed her to
manage her kids’ schedules and work a second job. A jury could easily find Defendant’s response
was not a reasonable effort to prevent and correct sexually harassing behavior. In view of this
conclusion, Defendant is not entitled to summary judgment on the Ellerth/Faragher defense.
4. Disparate treatment claim. Defendant contends Plaintiff’s claim that she suffered
disparate treatment on account of sex fails because Plaintiff did not suffer any adverse employment
action, because no inference of disparate treatment arises from the evidence, and because
Defendant’s actions were supported by legitimate, non-discriminatory reasons. The court finds
these arguments do not entitle Defendant to summary judgment.
“An adverse employment action includes acts that constitute a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.” Harper v. Arrow
Elecs., No. 21-1011, 2021 WL 6071625, at *4 (10th Cir. Dec. 21, 2021) (quoting Dick v. Phone
Directories Co., 397 F.3d 1256, 1268 (10th Cir. 2005) (brackets and internal quotation marks
omitted)). Mere inconvenience or alteration of job responsibilities will not suffice, but adverse
actions are not limited to monetary losses in the form of wages and benefits. See Sanchez v. Denver
Pub. Schs., 164 F.3d 527, 532 (10th Cir. 1998). Plaintiff cites evidence, which if believed by a

3

Defendant contends Plaintiff was put on probation “for getting into an argument [with Hadley] on the front counter.”
(Doc. 83 at 1.) A jury could reasonably find that Plaintiff hardly said anything in response to Hadley’s tirade and that
her participation in the “argument” was forced upon her by Hadley’s physically threatening behavior.

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jury, would show she was offered the option of continuing to work with a male employee who had
threatened and berated her on account of sex, or accept a materially adverse change in her
compensation, working conditions, and benefits. The job Defendant offered Plaintiff at the north
store would have resulted in the loss of a bonus Plaintiff had regularly received in the past, a
demotion in position from DM to shift manager, and the deprivation of a regular daytime schedule
that was critical to Plaintiff’s ability to care for her family. Contrary to Defendant’s suggestion,
these would not be “trivial employment actions” (Doc. 83 at 7) to a reasonable person in Plaintiff’s
circumstances. Plaintiff has cited evidence that could support a finding that she was subjected to
an adverse employment action.
Defendant also contends Plaintiff has failed to cite evidence that she was treated less
favorably than similarly situated employees, asserting that Hadley was “similarly disciplined for
yelling in front of customers.” (Doc. 64 at 22.) But Plaintiff cites evidence that she, unlike Hadley,
did not yell in front of the customers, and that whatever Plaintiff may have said to Hadley during
the May 17 encounter (e.g., Doc. 64-1 at 35, “I told him that he needed to run his shift better”)
paled in comparison to Hadley’s screaming “stupid fucking bitch” and “cunt” at Plaintiff, his use
of physical intimidation, and his threats to do bodily harm to both Plaintiff and her boyfriend. A
jury could reasonably find that Defendant inexplicably treated Plaintiff more harshly than the
instigator of – and the far more culpable party to – the argument. A jury could find that Hadley’s
conduct was egregious while Plaintiff did little more than to attempt to verbally defend herself
against an unjustified attack. Given that Defendant’s proposed employment action was to send
Plaintiff rather than Hadley to another store, while also demoting her and wreaking havoc with her
schedule, a jury could reasonably infer that Plaintiff was treated less favorably by Defendant on
account of her sex. In that regard, a jury could also consider and choose to give weight to evidence

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that Defendant knew Hadley had a significant history of making inappropriate comments about
women in the workplace and had forcibly kissed Plaintiff on a prior occasion, yet Defendant
proposed leaving Hadley in place at the south store and moving Plaintiff to the north store under
the unfavorable conditions noted above.
Defendant suggests its decision to transfer Plaintiff to the north store was motivated by the
fact that Plaintiff refused to work at the same store as Hadley, that Hadley did not have a driver’s
license, that Hadley lived close enough to walk to the south store, and that Ketcham “thought
Plaintiff lived by the North store.” (Doc. 64 at 10.) Defendant thus contends moving Hadley to
the north store “was not practical” and argues that Plaintiff has failed cite any evidence that her
transfer to the north store was a pretext for discrimination. (Id. at 24.)
The court rejects this argument and finds Plaintiff has cited sufficient evidence to raise a
genuine issue of fact concerning pretext. “An employee may show pretext based on ‘weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions’ in the employer's claimed
legitimate, non-discriminatory reason such that a rational trier of fact could find the reason
unworthy of belief.” See Stroup v. United Airlines, Inc., 26 F.4th 1147, 1159 (10th Cir. 2022)
(quoting Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1113 (10th Cir. 2007)). Insofar as
Defendant suggests that it considered whether it was practical to move Plaintiff rather than Hadley
to the north store, Plaintiff cites evidence that transferring her would severely impact her ability to
take care of her kids and work a second job – facts she conveyed to Defendant but which Defendant
essentially ignored or dismissed. Moreover, there is no evidence Defendant ever actually took
these factors into account or compared them to the burden on Hadley from being required to find
transportation to the north store a few miles from his home. Plaintiff also cites evidence that
although Nichols may have initially believed Plaintiff lived near the north store, Plaintiff informed

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him she actually lived near the south store, but he then dismissed the fact, saying, “well either way,
it’s all Mcds at the end of the day, no matter if it’s North or South.” (Doc. 8013 at 2.) A jury
weighing all of the evidence could also conclude that Defendant’s placement of Plaintiff on
probation for the May 17 incident was unjustified and unsupported by the facts. It could further
find Defendant treated Plaintiff less favorably than Hadley and now offers an explanation for the
differing treatment that is weak, unsupported by the facts, and unworthy of belief. Defendant’s
motion for summary judgment on Plaintiff’s disparate treatment claim is therefore denied.
5. Retaliation claim. The anti-retaliation provision of Title VII prohibits an employer
from discriminating against an individual who has “opposed any practice made an unlawful
employment practice” by Title VII. Reznik v. inContact, Inc., 18 F.4th 1257, 1260 (10th Cir.
2021). Defendant argues that Plaintiff’s retaliation claim fails because (1) she did not engage in
protected opposition to discrimination; (2) she suffered no adverse employment action; and (3) she
has not shown a causal connection between the protected activity and the adverse action. (Doc.
64 at 25.) Defendant thus argues Plaintiff has failed to show any of the three elements of a prima
facie case of retaliation. See id. (listing the above three elements of a prima facie case under Title
VII’s anti-retaliation provision, 42 U.S.C. § 2000e-3(a)).
Plaintiff has cited evidence sufficient to support all three elements. The first element
requires Plaintiff to cite evidence that she engaged in protected opposition to discrimination.
Plaintiff does not have to show that she reported an actual Title VII violation; she need only show
a reasonable good-faith belief that she was opposing discrimination. Lamb v. Montrose Cty.
Sheriff's Off., No. 19-1275, 2022 WL 487105, at *4 (10th Cir. Feb. 17, 2022) (citing Zokari v.
Gates, 561 F.3d 1076, 1081 (10th Cir. 2009)). Plaintiff has cited evidence to satisfy this
requirement. She repeatedly complained to her supervisors about Hadley’s offensive comments

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about women in the workplace. She also reported Hadley’s attempt to forcibly kiss her. After the
May 17 incident, Plaintiff complained to supervisors McClure and/or Ketcham that Hadley had
made the work environment hostile, intimidating, and unsafe; that Hadley made sexually
inappropriate statements only minutes after the incident to the effect that Plaintiff should (as
phrased by Plaintiff in a text message complaint) “use her body and she would get further in life;”
informed them that Plaintiff “can’t take his he is better cause he’s a man stuff anymore,” and
complained that she had been told she could move stores “but I shouldn’t have [to],” and that “I
just don’t think [you] understand how many female managers are scare[d] of him.” (Doc. 80 at
3.) This evidence is sufficient to show that Plaintiff opposed and complained of unlawful sex
discrimination in the workplace. Fye v. Okla. Corp. Comm'n, 516 F.3d 1217, 1228 (10th Cir.
2008) (quoting Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004) (“protected
opposition can range from filing formal charges to voicing informal complaints to superiors.”)
The second element – an adverse employment action – is satisfied by evidence previously
discussed about the detrimental effect on Plaintiff from a transfer. A plaintiff “must show that a
reasonable employee would have found the challenged action materially adverse, ‘which in this
context means it well might have ‘dissuaded a reasonable worker from making or supporting a
charge of discrimination.’” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(citation omitted.)

A reasonable worker in Plaintiff’s position would have considered the

deprivation of bonuses, demotion in position, and change in hours resulting from the transfer to be
materially adverse. Cf. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006) (“A
schedule change in an employee's work schedule may make little difference to many workers, but
may matter enormously to a young mother with school-age children.”) With respect to the third
element of a prima facie case – a causal connection between the complaint and the adverse action

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– Plaintiff has likewise cited evidence from which a reasonable jury could infer such a connection.
The timing between her complaint and the transfer alone creates a strong inference that the adverse
action resulted from her complaint of sexual harassment. See e.g., Ward v. Jewell, 772 F.3d 1199,
1203 (10th Cir. 2014) (“If the protected conduct is closely followed by the adverse action, courts
have often inferred a causal connection.”)

At any rate, Defendant essentially concedes a

connection, asserting that it transferred Plaintiff in part because “she did not want to work with
Hadley.” (Doc. 64 at 24.) That can only refer to Plaintiff’s complaints described above concerning
Hadley’s harassment. Plaintiff has accordingly shown a genuine issue of fact as to whether
Defendant unlawfully retaliated against her in violation of Title VII.4
III. Motion for Sanctions for Spoliation of Evidence (Doc. 65.)
Plaintiff asserts that Defendant “has been unable to produce any documents or other
evidence regarding the [May 17] incident or subsequent acts” with the exception of a single email
from May 25, 2018. (Doc. 65 at 2.) Plaintiff argues that Defendant’s “loss or destruction of
contemporaneous records … makes it difficult, if not impossible, to show the reasons Defendant
had for taking disciplinary action on May 18….” (Id. at 3-4.) Plaintiff argues Defendant “should
be prevented from asserting any affirmative defenses that could have been contradicted by
evidence that was lost and/or destroyed,” and that the court “should give an adverse instruction at
trial.” (Id. at 4, 23.) Plaintiff further moves for “appropriate sanctions, her attorney’s fees and
costs, and for such other relief that the Court deems proper.” (Id. at 23.)
In response, Defendant asserts that “most of the documents [Plaintiff] claims [Defendant]
failed to preserve simply never existed.” (Doc. 70 at 3.) Defendant contends that an Equal
Employment Opportunity Commission (EEOC) letter it received on July 2, 2019, was the first

4

In view of this finding, the court need not address Plaintiff’s additional assertion that Defendant engaged in
“retaliatory harassment,” a contention that appears to be based on the same evidence noted above. (See Doc. 80 at 28.)

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notice it received of an obligation to preserve relevant records, and that it searched all records it
had in response to the letter. (Id. at 3.) It concedes that a video of the May 17 incident existed but
says it was deleted as part of a routine deletion procedure that occurs every month. (Id. at 4.) It
also contends that Ketcham wrote up both Plaintiff and Hadley for the May 17 incident but
“Ketcham does not recall” if she ever placed these documents in the files. (Id.) Defendant notes
that its employees searched records in connection with their depositions but the searches produced
no additional information, and it argues Plaintiff did not diligently pursue these materials by
moving to compel their production. Defendant argues it did not violate a duty to preserve
documents, that it did not act in bad faith, and that Plaintiff has not shown prejudice.
As a general rule, “[s]poliation sanctions are proper when (1) a party has a duty to preserve
evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse
party was prejudiced by the destruction of the evidence.” Equal Emp. Opportunity Comm'n v.
JetStream Ground Servs., Inc., 878 F.3d 960, 964 (10th Cir. 2017) (quoting Turner v. Pub. Serv.
Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009) (internal quotation marks omitted)).
The materials cited by Plaintiff indicate an almost complete absence of records on
Defendant’s part with respect to the incidents central to this litigation. At this point, Plaintiff has
raised spoliation issues that may merit further scrutiny. But a number of circumstances remain
unclear, including Defendant’s practices concerning record-keeping, when Defendant had reason
to know litigation was imminent, and how Plaintiff might be prejudiced by the violation of any
duty to preserve evidence. Under the circumstances, the court will deny the motion for sanctions
without prejudice to reassertion. Depending upon the evidence introduced at trial, Plaintiff may
renew its motion for sanctions and its request for a jury instruction on spoliation at trial, and the
court will consider at that time whether such an instruction, or any other sanction, is appropriate.

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IV. Conclusion
Defendant’s motion for summary judgment is GRANTED IN PART and DENIED IN
PART. The motion is GRANTED as to Plaintiff’s claims under the KAAD; such claims are
DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies.
Defendant’s motion for summary judgment is DENIED as to all other claims. Plaintiff’s motion
for sanctions (Doc. 65) is DENIED WITHOUT PREJUDICE to reassertion at a later date. IT IS
SO ORDERED this 10th day of May, 2022.

_____s/ John W. Broomes__________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

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