Debord v. Mercy Health System of Kansas, Inc. et al
Filing
168
MEMORANDUM AND ORDER. Defendant Mercy Health System of Kansas (Mercy) motion for summary judgment on Plaintiffs sexual harassment and retaliation claims (Dk. 146) is granted; Defendant Leonard Weavers motion for summary judgment on Plaintiffs assaul t and battery claim (Dk. 146) is granted; and Plaintiffs motion for summary judgment on Weavers counterclaim for defamation (Dk. 144) is granted. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 3/20/2012. (bmw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SARA C. DEBORD,
Plaintiff,
v.
Case No. 10-4055-SAC
MERCY HEALTH SYSTEM OF KANSAS, INC.,
and LEONARD WEAVER,
Defendants.
MEMORANDUM AND ORDER
This case comes before the Court on the following motions for
summary judgment: defendant Mercy Health System of Kansas’ (Mercy)
motion for summary judgment on Plaintiff Sara DeBord’s sexual harassment
and retaliation claims; defendant Leonard Weaver’s motion for summary
judgment on Plaintiff’s assault and battery claim; and Plaintiff’s motion for
summary judgment on Weaver’s counterclaim for defamation.
I. Summary Judgment Standard
On summary judgment, the initial burden is with the movant to point
out the portions of the record which show that the movant is entitled to
judgment as a matter of law. Thomas v. Wichita Coca-Cola Bottling Co., 968
F.2d 1022, 1024 (10th Cir. 1992), cert. denied, 506 U.S. 1013 (1992). If
this burden is met, the non-movant must set forth specific facts which would
be admissible as evidence from which a rational fact finder could find in the
non-movant's favor. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th
Cir. 1998). The non-movant must show more than some “metaphysical
doubt” based on “evidence” and not “speculation, conjecture or surmise.”
Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Bones v. Honeywell Intern., 366 F.3d 869, 875 (10th Cir. 2004).
The essential inquiry is “whether the evidence presents a sufficient
disagreement to require submission to the jury or whether the evidence is so
one-sided that one party must prevail as a matter of law.” Anderson v.
Liberty Lobby, 477 U.S. 242, 251-52 (1986).
In applying this standard, all inferences arising from the record must
be drawn in favor of the nonmovant. Stinnett v. Safeway, Inc., 337 F.3d
1213, 1216 (10th Cir. 2003). Credibility determinations and the weighing of
the evidence are jury functions, not those of a judge. Id. at 1216.
Nevertheless, “the nonmovant must establish, at a minimum, ‘an inference
of the existence of each element essential to [her] case.’ “ Croy v. COBE
Laboratories, Inc., 345 F.3d 1199, 1201 (10th Cir. 2003) (quoting Hulsey v.
Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994)).
II. Facts
The relevant and admissible facts, construed in the light most
favorable to the Plaintiff follow. Additional facts are set forth in the Court’s
analysis of the arguments.
Plaintiff worked in Mercy’s radiology department in Independence,
Kansas from March 19, 2004 to July 13, 2009, when she was terminated.
2
She reported directly to Weaver, who was the director of radiology from
1996 until October 2010, when he chose to step down from that position.
Weaver has unusually cold hands and would often say to Plaintiff and
her co-workers “feel my cold hands,” then touch the employees’ upper arms
or the back of their necks. Responses to this practice varied. One employee
told Weaver “don’t touch me.” Another asked him to keep rubbing, while
several said, “your hands are cold, get them off me.” Plaintiff’s response was
to pull away. Weaver would sometimes rub Plaintiff’s back, and she would
tell him “Stop, that hurts,” although it didn’t hurt. Weaver touched Plaintiff
approximately three times a week. Plaintiff never contacted administration
to report Weaver’s touching, and Plaintiff knows of no co-employee who did
so during her employment.
On July 6, 2009, Weaver made negative comments to Plaintiff about
her work productivity, which upset Plaintiff. Later that day, Weaver went to
the room where Plaintiff was working, put his arm around her and said, “You
know I didn’t mean it.” Plaintiff spun away, saying, “You just don’t talk to
people like that.” This event, which the Court refers to as a hug for purposes
of convenience, is the sole basis for plaintiff’s assault and battery claims.
Later that day, because Plaintiff was upset with Weaver, she posted
statements about him on her Facebook account. She did so three separate
times, during work hours, via her cell phone, stating:
1. Sara DeBord loves it when my boss adds an extra $600.00 on my
paycheck for hours I didn’t even work…awesome!!
3
2. SB is sooo disappointed…can’t believe what a snake my boss is…I
know, I know everyone warned me.
3. …he adds money on peoples checks if he likes them (I’ve been one
of them)…and he needs to keep his creapy (sic) hands to himself…just
an all around d-bag!!
(Ellipses in original).
Plaintiff and other employees testified that Mr. Weaver had a habit
of putting his unusually cold hands on their bare arms or on the back of their
necks. When was asked what she meant by her “creepy hands” Facebook
comment, Plaintiff stated that it referred to Mr. Weaver’s cold hands:
Q. And in your Facebook posts when you said “creepy hands,” were
you intending to describe something other than cold hands?
A. No. Just that it just gave me the creeps. I mean, it was such an
everyday thing that it got to where I could be sitting somewhere and
he could come into the area and I wouldn’t even have to look, my skin
would crawl. I just knew he was there.
Plaintiff’s depo., p. 198-94.
Some radiology department employees, including Weaver, became
aware of Plaintiff’s Facebook posts that same day. That afternoon Weaver
took the posts to Eric Ammons, the Director of Human Resources, who was
meeting with Plaintiff about an unrelated matter. Ammons asked Plaintiff if
she had made the posts, and she denied it. Weaver then brought in his
laptop and showed the posts to them. Ammons asked Plaintiff a second time
if she had made the posts. Again Plaintiff denied having made them. After
Weaver left, Ammons told Plaintiff that he would investigate who made the
Facebook posts, as well as her Facebook allegations about Weaver.
4
On the morning of July 8th, Ammons met with Plaintiff. He told her
if she had made the Facebook posts, it would be better for her to admit it.
Plaintiff then admitted that she had made the posts, and Ammons responded
that he had already discovered that. Ammons then told Plaintiff she was
suspended for one day without pay. Plaintiff’s suspension form states:
Work related conduct needing improvement: Failure to conduct
yourself in a manner consistent with a high degree of personal
integrity and professionalism, which is expected of Mercy coworkers.
Engaged in behavior deemed harmful to a fellow co-worker.
Supporting details: See attached Facebook documents. During
counseling Sara admitted to posting information on Facebook.
Ammons depo., p. 5, Exh. C.
After Ammons informed Plaintiff of her suspension, he asked
Plaintiff about the “creepy hands” comment, and Plaintiff replied that Weaver
was a “perv.” Ammons asked what she meant by that, and Plaintiff replied
that Weaver had made comments about her body and would run his hands
up inside the arm of her scrubs and down inside the back neck of the scrubs.
Ammons asked Plaintiff if she considered that to be sexual harassment, and
Plaintiff denied that it was, saying, “No, he is just a pervert.” Ammons told
Plaintiff that because the hospital takes such matters seriously, he would
refer the matter to Lana Brewster, the risk manager.
Ammons also told Plaintiff that he had the call-back papers. Those
papers contained the information which would reveal whether Plaintiff’s
paychecks were incorrect, as she had alleged on Facebook. Later that
afternoon, Plaintiff sent five text messages while at work to co-employee
5
Tena Walsh, including the statements: “Leonard emptied out the drawer
where all the call back papers were kept at work. Guilty as charged. To get
rid of them.” Ammons became aware that Plaintiff was talking about the
matter in the department during working hours, and specifically instructed
Plaintiff to keep the matter confidential.
The next day, July 9th, Brewster met with Plaintiff at Ammons’
request. Brewster thought that Plaintiff’s comment about “creepy hands”
might indicate sexual harassment. Plaintiff denied having made and wanting
to make a formal report of sexual harassment, but said she had made a
verbal report to Ammons. Brewster asked Plaintiff to describe Weaver’s
conduct, beginning with the most recent to the most remote, and Plaintiff
did so. Plaintiff told Brewster of other statements of a sexual nature that
Weaver had made to her throughout the years. Brewster told Plaintiff to let
her know if she had any more problems. Brewster interviewed Weaver and
Kim Harris, a long-time radiology department employee, before concluding
that Weaver had not violated Mercy’s sexual harassment policy.
Four days later, Plaintiff was terminated. Ammons decided to
terminate Plaintiff’s employment, and John Woodridge, CEO, and Reta
Baker, COO, concurred. Ammons believed that Plaintiff had been dishonest
in denying that she had made the Facebook posts, in denying that she had
made the Facebook posts while at work, in making unfounded accusations
against Weaver about her paycheck, and in breaching confidentiality.
6
Ammons believed that Plaintiff had been disruptive in openly discussing the
investigation and in texting on the 8th, after he instructed her to keep the
matter confidential. Ammons told Plaintiff she was terminated for disruption,
continued texting, and dishonesty. Plaintiff’s termination form states that
she was terminated for “work related conduct needing improvement:
Inappropriate and disruptive Behavior. Dishonest.” Dk. 147, Exh. M.
Discovery in this case revealed that in 2007, Plaintiff had in fact
been overpaid approximately $475 (not $600) for overtime that she had not
worked. This mistake was due to Plaintiff’s clock-in error which Weaver failed
to catch in his routine review of the records. Ammons had looked at records
from 2006, but not from 2007, when investigating Plaintiff’s Facebook
comments about Weaver, but had found no overpayment. So at the time of
Plaintiff’s termination, Ammons disbelieved Plaintiff’s comment about having
been overpaid.
After her termination, Plaintiff sued Mercy for retaliatory
termination, and for sexual harassment. Plaintiff sued Weaver for civil
assault and battery based on the alleged July 6th hug. Weaver
counterclaimed for defamation, based on some statements Plaintiff made on
Facebook and in her text messages, and similar statements Plaintiff made
orally. The Court first addresses the Plaintiff’s Title VII claims against Mercy
for retaliation and sexual harassment, then addresses the individual’s tort
claims.
7
III. Retaliation
Plaintiff lacks direct evidence of retaliation, so must meet the threepart test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), to prove retaliation indirectly.
Under the McDonnell Douglas/indirect approach, the plaintiff must first
make out a prima facie case of retaliation by showing (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. If the plaintiff
establishes a prima facie case, the employer must then offer a
legitimate, nonretaliatory reason for its decision. Finally, once the
employer has satisfied this burden of production, the plaintiff must
show that the employer’s reason is merely a pretext for retaliation.
Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011)
(citations and quotations omitted).
Defendant challenges the first and third elements of the prima facie
case, contending that plaintiff has not shown protected opposition1 or a
causal connection. The Court assumes, without deciding, that Plaintiff has
made a prima facie case of retaliation. Mercy has offered a legitimate,
nonretaliatory reason for its decision – namely, that Plaintiff was terminated
for her inappropriate and disruptive behavior and her dishonesty. This shifts
the burden to the plaintiff to show that the employer’s reasons are merely a
pretext for retaliation. Bryant v. Farmers Insurance Exchange, in which this
Plaintiff relies, in part, on cases under Title VII’s participation clause, rather
than the opposition clause. But the pretrial order includes no claim under the
participation clause, and alleges only protected opposition. See Dk. 141, p.
10, § 6.1 para. 2; id, p. 11, § 6.2 para. 2.
1
8
court held that, “As a general rule, an employee must proffer evidence that
shows each of the employer's justifications is pretextual.” Bryant v. Farmers
Ins. Exchange, 432 F.3d 1114 (10th Cir. 2005); Luster v. Vilsack, 667 F.3d
1089, 1093 (10th Cir. 2011).
Pretext
To determine whether a proffered reason for a decision is
pretextual, the court examines the facts as they appear to the person
making the decision, not as they appear to the plaintiff in her subjective
evaluation of the situation. Luster v. Vilsack, 667 F.3d 1089, 1093-94 (10th
Cir. 2011). “The relevant inquiry is not whether the employer's proffered
reasons were wise, fair or correct, but whether it honestly believed those
reasons and acted in good faith upon those beliefs.” Id.
Plaintiff contends that her statements on Facebook and her texts were
true. She thus contends that she was not dishonest, and that Mercy’s finding
that Weaver had not added money to her paycheck was false. The Court
recognizes that falsity evidence is useful in retaliation cases as one means of
establishing pretext. Twigg, 659 F.3d at 1001. But here, the circumstances
cannot lead the trier of fact to reasonably infer from the falsity of the
explanation that the employer was dissembling to cover up a retaliatory
purpose.
The facts show that Ammons believed at the time of Plaintiff’s
termination that her paychecks were accurate. It was not discovered until
9
discovery during this lawsuit that Plaintiff had, in fact, been overpaid
approximately $475 due to Plaintiff’s clock-in error, which Weaver failed to
discover in his routine review of the records. At the time of Plaintiff’s
termination, Ammons had reviewed the call-back logs from 2006, had
determined that those paychecks were in the correct amounts, and therefore
believed that Plaintiff’s statements about her boss having added money to
her paycheck were false. Ammons’ failure to review the records for 2007
which would have revealed the overpayment, although perhaps erroneous,
raises no inference of pretext.
Plaintiff attacks Ammons’ belief that Plaintiff had been disruptive in
openly discussing the investigation and in texting on the 8th, after Ammons
instructed Plaintiff to keep the matter confidential. Plaintiff contends that
Ammons did not tell her to keep the matter confidential until after she had
sent the texts, making Ammons’ statement false. But even assuming that
Plaintiff is correct, Plaintiff has not cast any doubt upon the independent
reason of given for her termination - dishonesty.
The facts show that Plaintiff made the Facebook posts via her cell
phone during work hours; that employees saw and discussed the Facebook
posts at work; that Ammons asked Plaintiff about them; and that Plaintiff
denied having made those posts. Plaintiff lied to Ammons about that fact
twice. Further, it is uncontested that after Ammons told Plaintiff that he had
the call-back logs, Plaintiff told other employees that Weaver had taken and
10
destroyed them. No facts suggest that Ammons did not reasonably or
sincerely believe that Plaintiff’s acts were inappropriate, disruptive, or
dishonest. These acts provided an independent and good faith basis for
Plaintiff’s termination, even assuming the truth of her Facebook statements
about her paycheck and the truth of her version of when Ammons told her to
keep the matter confidential.
Plaintiff’s excuses for her dishonest acts are immaterial because in this
inquiry, her state of mind is irrelevant. Nothing in the record suggests that
Ammons did not believe the reasons stated for Plaintiff’s termination. No
facts suggest that retaliation for Plaintiff’s complaints of gender
discrimination played a part in the employment decision. Fye v. Okla. Corp.
Comm'n, 516 F.3d 1217, 1224 (10th Cir. 2008). Instead, Ammons, the
primary decisionmaker in Plaintiff’s termination, was the very person who
had initiated the sexual harassment investigation by referring Plaintiff’s
vague complaints to the risk manager just the week before. Ammons
thought Weaver’s conduct was inappropriate, despite Plaintiff’s repeated
denials to Ammons that she perceived Weaver’s acts as sexual harassment.
Because no facts justify an inference that Ammons harbored any retaliatory
motive, summary judgment is warranted on Plaintiff’s claim of retaliation.
IV. Sexual Harassment – Employer Liability
Plaintiff contends that Weaver sexually harassed her at work over the
course of her employment with Mercy. In support of her hostile work
11
environment claim, she offers evidence, some of which Mercy contends
should be excluded. Mercy additionally contends that Weaver’s acts were not
sufficiently severe or pervasive to constitute sexual harassment, and that in
any event, Mercy cannot be held liable for them. Plaintiff argues that
defendant is liable both vicariously and directly, but raises no alter ego
theory. The Court addresses the issue of employer liability first, without
resolving whether Weaver’sA. Vicarious Liability Plaintiff was actionable.
alleged harassment of
Plaintiff does not contend that Weaver’s harassment culminated in her
termination, or in any other tangible employment action.2 Accordingly, the
Faragher/Ellerth defense may be available. The Faragher/Ellerth framework
is designed “to accommodate the principle of vicarious liability for harm
caused by misuse of supervisory authority,” and to accommodate “Title VII's
equally basic policies of encouraging forethought by employers and saving
action by objecting employees.” Helm v. Kansas, 656 F.3d 1277, 1285 (10th
Cir. 2011); quoting Faragher v. City of Boca Raton, 524 U.S. 775, 807
(1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 764 (1998).
Under the Faragher/Ellerth framework, the defendant bears the burden
to show two elements:
“The defense comprises two necessary elements: (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
The pretrial order and plaintiff’s memo (Dk. 155) contend that harassment
affected the terms and conditions of her employment only, and that
retaliation caused her termination.
2
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opportunities provided by the employer or to avoid harm otherwise.”
Faragher, 524 U.S. at 807, 118 S.Ct. 2275; Ellerth, 524 U.S. at 765,
118 S.Ct. 2257.
Helm, 656 F.3d at 1285. These elements are addressed below.
1. Employer’s Reasonable Care to Prevent
The record reveals that Mercy implemented a sexual harassment policy
that strictly prohibits sexual harassment, contains a complaint procedure
listing multiple persons to whom harassment may be reported, and includes
an anti-retaliation provision. Mercy distributed the policy to all of its
employees via its employee handbook. Mercy trained its employees on that
policy during employment orientation and during its annual corporate
compliance education program, which it required all employees to attend.
Plaintiff attended the orientation training which included a discussion of the
sexual harassment policy, and received a Power Point presentation each year
from Human Resources. She also completed the corporate compliance
program annually, which provided continuing education on Mercy’s sexual
harassment policy. These facts establish, as a matter of law, that Mercy
exercised reasonable care to prevent sexual harassment. See Helm, 656
F.3d at 1288-89.
2. Employer’s Reasonable Care to Correct
The Court next asks whether the employer acted reasonably to remedy
any harassment that occurred, despite the reasonable preventative
measures.
13
… in order “to establish that it took proper action to correct
harassment, [the defendant] was required to show that it acted
reasonably promptly on [plaintiff’s] complaint when it was given
proper notice of her allegations as required under its complaint
procedures.” Frederick, 246 F.3d at 1314. “The most significant
immediate measure an employer can take in response to a sexual
harassment complaint is to launch a prompt investigation to determine
whether the complaint is justified.” Swenson v. Potter, 271 F.3d 1184,
1192 (9th Cir. 2001); see also Cerros, 398 F.3d at 954 (“Our cases
recognize prompt investigation of the alleged misconduct as a hallmark
of reasonable corrective action.”).
Helm, 656 F.3d at 1290. Plaintiff contends that this requirement is not met
because Brewster failed to investigate Plaintiff’s allegations of harassment,
and Weaver was not disciplined as a result of Plaintiff’s complaint.3
Plaintiff’s Facebook comments did not constitute “proper notice”
sufficient to trigger defendant’s duty to take corrective action. See Helm,
656 F.3d at 1290-91, and cases cited therein. But even assuming the
contrary, an adequate investigation was timely begun. Plaintiff’s Facebook
posts were made on July 6th, and Brewster’s investigation began on July
9th.
Plaintiff’s conversation with Ammons on July 6th, viewed in the light
most favorable to the Plaintiff, arguably provided such notice. Three days
later, Mercy’s risk manager, whose responsibility it was to investigate
reports of sexual harassment, initiated a meeting with Plaintiff to ask about
sexual harassment. Ammons had asked Brewster to look at the matter, and
Plaintiff also contends that this element is not met because Weaver had
harassed many employees since 2001. Plaintiff’s argument confounds the
analysis of vicarious and direct liability. See Dk. 155, p. 59-61.
3
14
because of the “creepy hands” comment, Brewster thought she was looking
at a sexual harassment complaint. When Brewster met with Plaintiff, Plaintiff
said she had verbalized a complaint to H.R. against Weaver, but did not
want to file a formal complaint. Brewster asked Plaintiff to describe Weaver’s
conduct, beginning with the most recent to the most remote, and Plaintiff
did so. Brewster told Plaintiff to let her know if she had any more problems.
Brewster also interviewed Weaver, who denied the bulk of Plaintiff’s
allegations but admitted putting his cold hands on employees. Brewster told
Weaver “if anything was going on, to cease.” Brewster depo. p. 36-37. After
speaking with Plaintiff, Brewster interviewed a long-time radiology
department employee, Kim Harris, who did not confirm any hostility or
sexual tension in the department. Brewster concluded that Weaver had not
violated company policy.
Because the investigation was adequate and did not reveal that
Weaver was sexually harassing Plaintiff or other employees, Mercy’s failure
to discipline Weaver or terminate his employment does not show lack of
reasonable care. The Court finds that Mercy acted reasonably and timely to
remedy any harassment of which it was aware.
3. Plaintiff’s Failure to Use Preventive or Corrective Opportunities
The Court next examines whether Mercy has met its burden to show
that the plaintiff unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid harm
15
otherwise. “[T]he law against sexual harassment is not self-enforcing and an
employer cannot be expected to correct harassment unless the employee
makes a concerted effort to inform the employer that a problem exists.”
Shaw v. AutoZone, Inc., 180 F.3d 806, 813 (7th Cir. 1999) (internal
quotations omitted). Plaintiff contends that Weaver’s sexual harassment of
her began in 2004 and continued throughout her employment, but she
concedes that she never reported Weaver’s acts before July 6, 2009. This
delay, if unexplained, is unreasonable, given Plaintiff’s awareness of her
ability to report harassing conduct.
Plaintiff first argues that her failure to report earlier was reasonable
because she had “objective fears of significant retaliation for complaining.”
Dk. 155, p. 62. But the record fails to show any objective basis for such a
fear. Mercy had an anti-retaliation policy, and Plaintiff shows no facts
suggesting that this policy was not enforced. For purposes of this affirmative
defense, a generalized fear of retaliation simply is not sufficient to explain
even “long delays” of two to four months in reporting sexual harassment.
Pinkerton v. Colorado Dept. of Transp., 563 F.3d 1052, 1063 (10th Cir.
2009). Here, Plaintiff delayed for approximately five years before she
arguably reported Weaver’s acts.
Plaintiff also contends that she believed any report would be futile
because Mercy “also employs Weaver’s wife … who is one of only two
surgeons at this small-town hospital.” Id. But this fact is not part of the
16
record, since it is not included in either party’s uncontroverted statement of
fact.4 Even considering that evidence, however, and viewing it in the light
most favorable to the Plaintiff, the testimony establishes only that Weaver’s
wife was employed as one of Mercy’s two general surgeons on the date of
Plaintiff’s deposition. Without showing that Dr. Herrin was employed by
Mercy from 2004 through 2009, Plaintiff’s futility argument lacks an
essential link.
Plaintiff believes that reporting Weaver’s conduct would have been
useless because if Weaver were terminated, his wife, Dr. Herrin, would leave
the hospital, and Mercy would not want to lose her. Depo. Vol. 1, p. 195. But
Plaintiff shows no factual basis for speculating that Mercy would ignore a
sexual harassment complaint against Weaver, or that Dr. Herring would
leave Mercy if Weaver left. Plaintiff admits no one ever told her this would
happen, and she provides no factual basis for her belief. “An employee's
subjective belief in the futility of reporting a harasser's behavior is not a
reasonable basis for failing to take advantage of any preventive or corrective
opportunities provided by the employer. See Lissau, 159 F.3d at 182.”
Barrett v. Applied Radiant Energy Corp., 240 F.3d 262 (4th Cir. 2001).
Because Mercy has presented undisputed evidence establishing that it
acted reasonably to prevent and to respond to sexual harassment, and that
See D. Kan. R. 56.1(b)(2). Plaintiff cites this record in improperly
attempting to controvert Defendant’s facts, but does not include it in her
own statement of material facts.
4
17
Plaintiff unreasonably failed to take advantage of its preventive
opportunities, Mercy is not vicariously liable for Weaver’s acts.
B. Direct Liability
Plaintiff additionally contends that Mercy is directly liable for its own
negligence. An employer may be directly liable if it fails to remedy or
prevent a hostile work environment of which management-level employees5
knew or should have known. See Adler v. Wal-Mart Stores, Inc., 144 F.3d
664, 673 (10th Cir. 1998). To determine whether an employer is liable for
negligence in allowing employees to engage in sexual harassment, this court
makes two inquiries: “first, into the employer's actual or constructive
knowledge of harassment, and second, into the adequacy of the employer's
remedial and preventative responses to any actually or constructively known
harassment.” Adler, 144 F.3d at 673.
1. Actual Knowledge
Actual knowledge will be demonstrable in most cases where the
plaintiff has reported harassment to management-level employees. Adler,
144 F.3d at 673. Plaintiff admits that she did not report the alleged sexual
harassment to administration any time before 2009, when Ammons spoke to
her about her Facebook posts.
Plaintiff does not attempt to show that Weaver was a management-level
employee for purposes of direct liability.
5
18
In contending that Mercy had actual knowledge of Weaver’s acts,
Plaintiff points to one event in 2001, before she was hired.6 Plaintiff believes
that a female employee resigned in 2001 because Weaver had touched her
with his cold hands, had made negative comments about the Catholic
religion, and had asked her if she’d considered artificial insemination.
Although evidence of a perpetrator’s bad acts toward other employees may
sometimes be useful in imputing knowledge to the employer, this is not such
an occasion.
The Tenth Circuit requires that such evidence be similar in nature and
near in time. A plaintiff may rely on the employer’s
notice of any evidence of sexual harassment by [the harasser] that is
similar in nature and near in time to his sexual harassment of [the
Plaintiff] in order to raise a genuine issue of material fact as to
whether [the employer] knew or should have known of [the
harasser’s] conduct.
Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 784 (10th Cir.
1995), abrogated on other grounds as recognized in Zisumbo v. McCleodUSA
Telecommunications Services, Inc., 154 Fed.Appx. 715 (10th Cir. 2005). In
determining whether to consider acts alleged by other employees, the Court
looks to “[t]he extent and seriousness of the earlier harassment and the
similarity and nearness in time to the later harassment....” Tademy v. Union
Pacific Corp., 614 F.3d 1132, 1147 (10th Cir. 2008), quoting Hirase-Doi. But
Weaver’s harassment of Plaintiff, which allegedly began in 2004, even if
The Court assumes, for purposes of this discussion, that evidence of this
event is admissible.
6
19
similar in nature, is not sufficiently near in time to the 2001 event to raise a
triable issue regarding Mercy’s actual knowledge of any hostile work
environment to which Plaintiff may have been subjected, given the lack of
intervening complaints.
2. Constructive Knowledge
Plaintiff relies on a constructive knowledge theory in contending that
Mercy had notice of the sexually hostile environment “[b]ased solely on the
large number of women who were sexually harassed by Weaver...” Dk. 155,
p. 59. By this, Plaintiff refers mostly to Weaver’s putting his cold hands on
co-workers, who never reported that conduct. But only when the acts of
harassment are “ ‘so egregious, numerous, and concentrated as to add up to
a campaign of harassment’ “ will the employer be liable for failure to
discover the harassment. Adler, 144 F.3d at 675 (quoting Baker v.
Weyerhaeuser Co., 903 F.2d 1342, 1346 (10th Cir. 1990)). The Court cannot
find constructive knowledge of sexual harassment based solely on the
frequency with which Weaver put his cold hands on employees. “[T]o infer
employer knowledge from only the level of pervasiveness essential to make
out a hostile environment claim would be illogical because if that were the
rule, knowledge would be attributed to employers in all cases of hostile work
environment founded on pervasiveness.” Ford v. West, 222 F.3d 767,
776 (10th Cir. 2000). The facts in this case fall short of the egregious
20
conduct or campaign of harassment necessary to impose constructive
knowledge on an employer.
Because no question of material fact has been shown regarding any
basis for employer liability, summary judgment is warranted on Plaintiff’s
sexual harassment claim against Mercy. Where a court disposes of a claim
based on the absence of employer liability, it need not resolve, apart from
the question of employer liability, the issue of the presence of a hostile work
environment. See Ford, 222 F.3d 767; Adler, 144 F.3d at 672.
V. Civil Assault and Battery
Defendant Weaver moves for summary judgment on Plaintiff’s claim of
assault and battery, which is based solely on the hug defendant Weaver
allegedly attempted to give plaintiff at work on July 6th, 2009.
A. Facts
Defendant denies that he ever attempted to hug Plaintiff, but admits
that the facts, viewed in the light most favorable to the Plaintiff, show the
following:
On July 6, 2009, plaintiff commented to defendant Weaver that
she would be doing mammograms all day and that no one would see
her. Defendant Weaver responded, “How’s that different from any
other day? All you do is sit on your butt in your room.” Plaintiff
responded, “I have the highest productivity the department.” When
defendant Weaver disagreed, plaintiff replied, ”Are you trying to tell
me I’m worthless?” Defendant Weaver responded, “If that’s how you
want to put it.” Plaintiff went to her work area and started crying. A
little later, defendant Weaver entered the nuclear medicine room, put
his arm around plaintiff, and said, “You know I didn’t mean it.” Plaintiff
21
spun away, saying, “You just don’t talk to people like that.” Plaintiff
admits that defendant Weaver “didn’t fully complete the hug” due to
her evasive actions.
Doc. 155, p. 64.
B. Intent to Harm
“The gravamen of a civil assault and battery is grounded upon the
actor's intention to inflict injury.” Baska v. Scherzer, 283 Kan. 750, (2007).
Defendant Weaver contends that Plaintiff has failed to raise a material
question of fact on the element of intent to harm.
Under Kansas law, the tort of assault is defined as “an intentional
threat or attempt, coupled with apparent ability, to do bodily harm to
another, resulting in immediate apprehension of bodily harm.” Taiwo v. Vu,
249 Kan. 585, 596 (1991). See PIK Civ.4th 127.01. The tort of battery is
defined as “the unprivileged touching or striking of one person by another,
done with the intent of bringing about either a contact or an apprehension of
contact, that is harmful or offensive.” PIK Civ. 4th 127.02.
Both parties rely on the following testimony by Plaintiff, relative to the
issue of intent to harm.
“Q. Do you believe he intended to harm you?
A. No. I believe he intended to hug me.
Q. Did you – do you allege that you sustained any damage as a result
of the alleged hug?
A. Humiliation.
Q. How long did you feel humiliated?
A. I still feel humiliated.
Plaintiff’s depo., Vol. 2, p. 36.
22
To the extent that Plaintiff suggests that humiliation is sufficient harm
for purposes of these torts, the Court disagrees. Emotional distress, such as
humiliation, does not constitute bodily harm, either under the plain meaning
of those terms, or under Kansas law. Instead, Kansas cases consistently
distinguish between bodily harm, and emotional and psychological injuries.
See e.g., State v. Reitz, 239 P.3d 114 (2010); Lovitt ex rel. Bahr v. Board of
County Com'rs of Shawnee County, 43 Kan.App.2d 4 (2009).
The facts, viewed in the light most favorable to the Plaintiff, do not
tend to show that defendant Weaver threatened or attempted to do bodily
harm to Plaintiff. See PIK 127.01 comment (describing an assault as “an
apparently violent attempt, or a willful offer with force or violence, to do
corporal injury to another, without the actual doing of the injury threatened,
as by lifting the fist or a cane in a threatening manner”); Taiwo, 249 Kan.
585. Thus summary judgment in defendant’s favor is warranted on the
assault claim.
As for the battery claim, Plaintiff contends that no showing of intent to
do bodily harm is necessary, since battery includes an unprivileged,
intentional touching, which the recipient finds to be offensive. Plaintiff
contends that because of Weaver’s past acts and comments to her, she
considered the hug to be hostile, offensive, and sexual in nature. But it is
the actor’s intent to harm or offend, not merely the recipient’s offense, that
must be shown. In order to establish a battery under Kansas law, plaintiff
23
must show “an unprivileged touching or striking, done with the intent of
bringing about either a contact or an apprehension of a contact that is
harmful or offensive.” Marten v. Yellow Freight System, Inc., 993 F.Supp.
822, 830 (D.Kan. 1998). Plaintiff’s tortured construction of the elements of
battery ignores that the gravamen of a civil assault and battery, unlike a
negligence claim, is grounded upon the actor's intention to inflict injury. See
Stricklin v. Parsons Stockyard Co., 192 Kan. 360, 366 (1964); Murray v.
Modoc State Bank, 181 Kan. 642 (1957); Hackenberger v. Travelers Mutual
Cas. Co., 144 Kan. 607, 610, 611 (1936); Hershey v. Peake, 115 Kan. 562
(1924). Battery is an intentional tort, and the term “intent,” as it is used in
the law of torts, denotes that the actor desires to cause the consequences of
his act, or that he believes that the consequences are substantially certain to
result from it. Baska, 283 Kan. at 757, citing Restatement (Second) of Torts
§ 8A (1964).
Nothing in the facts tends to show that Weaver intended to offend or
harm Plaintiff by hugging her. When asked whether she believed that
defendant Weaver intended to harm her, Plaintiff replied: “No. I believe he
intended to hug me.” Weaver did not testify about his intent because he
denied that the event occurred. No other circumstances of record suggest
that defendant Weaver harbored any intent either to harm or to offend
Plaintiff by hugging her. Under Plaintiff’s version of the facts, it is reasonable
to infer that Weaver intended only to console her. Summary judgment in
24
favor of the defendant is therefore appropriate. See Stricklin, 192 Kan. at
366 (1964); Holdren v. General Motors Corp., 31 F.Supp.2d 1279 (D.Kan.
1998).
VI. Defamation
Plaintiff seeks summary judgment on Weaver’s counterclaim against
her for defamation, contending that all statements she made were true and
that none of them harmed Weaver’s reputation.
A. Facts
Defendant Weaver claims that the following four statements by
Plaintiff were false and defamatory:
1. Facebook Post on July 6, 2009: “Sara DeBord loves it when my boss
adds an extra $600.00 on my paycheck for hours I didn’t even
work…awesome!”
2. Cellular Phone Text Message to co-worker Tena Walsh on July 8,
2009: “Leonard emptied out the drawer where all the call back papers
were kept at work…Guilty as charged!” “To get rid of them.”
3. Oral Statement to former co-worker Heather Boss on July 8, 2009:
“Weaver had destroyed and in fact shredded the callback logs.”
4. Oral Statement to former co-worker Melissa Stewart in 20097:
“Weaver took the callback logs from the Radiology Department.”
Dk. 141, p. 9; Dk. 139. Weaver believes that these statements falsely
accuse him of two matters: 1) falsifying Plaintiff’s time records and
intentionally paying her for time she did not work; and 2) removing the callback papers, which would have accurately reflected the time Plaintiff
worked, to hide his guilt.
Ms. Stewart testified that plaintiff made this statement in 2010, then
corrected the date to 2009 on her errata sheet.
7
25
Under Kansas law, the elements of defamation are: (1) false and
defamatory words; (2) communication to a third person; and (3) harm to
the reputation of the person defamed. Droge v. Rempel, 39 Kan.App 2d 455,
459 (2008). The Court focuses upon Plaintiff’s claim that Weaver has failed
to show that any of the allegedly defamatory statements caused harm to his
reputation.
B. Harm to Reputation
“[D]amage to one's reputation is the essence and gravamen of an
action for defamation.” Gobin v. Globe Publishing Co, 232 Kan. 1, 6 (1982).
Damages recoverable for defamation cannot be presumed but must be
proven. Hall v. Kansas Farm Bureau, 274 Kan. 263, 276 (2002). “Proof of
such damages typically entails showing that persons were deterred from
associating with the plaintiff, that the plaintiff's reputation had been lowered
in the community, or that the plaintiff's profession suffered.” Ali v. Douglas
Cable Communications, 929 F.Supp. 1362 (D.Kan. 1996). “[T]he plaintiff in
an action for defamation must first offer proof of harm to reputation; any
claim for mental anguish is “parasitic,” and compensable only after damage
to reputation has been established.” Gobin, 232 Kan. at 7. Evidence must
permit the jury to determine what plaintiff’s true reputation was in the
community of his residence, and to determine whether the publication
damaged that reputation. Id. Injury to one’s personal sensitivities is
insufficient to show harm to one’s reputation. Id.
26
In this case, the parties agree that as to the third statement, allegedly
made by Plaintiff to Heather Boss, Boss has no opinion concerning Weaver’s
character, other than that he’s a nice man. Dk. 145, p. 8, Dk. 154, p. 6. No
evidence shows that Plaintiff’s statement to Boss about Weaver’s destruction
and shredding of callback logs damaged Weaver’s reputation. Weaver
appears to concede as much by his failure to address this matter in his
response. Because no evidence provides any basis for a jury to find that this
statement damaged Weaver’s reputation, this statement is not actionable.
Weaver contends that the other three statements damaged his
reputation at work. To meet his burden to show damage to his reputation,
Weaver offers testimony that before the statements were made, certain
employees thought positively of him, but that after the statements were
made, they thought differently. The Court examines this evidence below,
focusing on the requisite causal connection.
Tena Walsh, an employee in defendant’s radiology department, was a
Facebook friend with Plaintiff. She saw Plaintiff’s Facebook Post on July 6th,
which said: “Sara DeBord loves it when my boss adds an extra $600.00 on
my paycheck for hours I didn’t even work…awesome!” She also received the
following text messages from Plaintiff on July 8th: “Leonard emptied out the
drawer where all the call back papers were kept at work…Guilty as charged!”
“To get rid of them.”
27
When asked what her opinion was of Weaver before seeing the
Facebook posts, Walsh testified:
Well, obviously I didn't -- you know, creepy when it comes to
women. I can honestly say there was (sic) times, as far as him being a
boss to me, there was good things that happened too. I mean, he
pushed me to go back and get my schooling and education, so I mean,
I'll give him credit for that, but this has gone -- this whole line of
everything, why we're here today has gone on far too long, and
unfortunately -- I'm allowed to say what I want to say; correct?
Unfortunately, it took this happening to Sara and her finally doing
something to pretty much bring this all out for all of us that have ever
experienced anything that's gone on for all these years, so – and it's
time he -- it's totally unjustifiable, it's hurt a lot of people, and it's
bringing out a lot of pain in the past for a lot of us. Me in particular, I
know.
Walsh depo. p. 45-46.
Walsh was then asked whether her opinion of Weaver had changed
since seeing Plaintiff’s Facebook posts and text messages. She replied:
My opinion for him is -- I assume he just wants this to be done
and over with. He doesn't – he doesn't deserve to still be employed
with Mercy as far as I'm concerned. Maybe I don't either. Maybe none
of us do. But it's really hard to see him now when I do see him, so -… I've known him because I started just a couple months before he
did, and he's got away with this shit for too long. Got away with this
stuff for too long.
Id.
In short, Walsh stated no opinion about Weaver’s reputation. Nothing
in her testimony raises an inference that she believed Weaver was padding
Plaintiff’s paycheck, was a thief, or had destroyed company records. Her
comments about Weaver were based her own experiences with or
observations of him, and on what she believed to be Weaver’s sexual assault
28
of her outside of work. Her cited testimony fails to show that Plaintiff’s
statements may have caused any change in Walsh’s opinion about Weaver,
if there was any such change.
Angie Cessna was also aware of plaintiff’s Facebook posts. Weaver
cites Cessna’s testimony that before the posts, “everybody probably thought
he was a very nice guy,” but now Cessna tries to avoid him when she visits
his department. Cessna depo., pp. 51, 54, 55, 64. But Cessna’s testimony
states that the reason she tries to avoid Weaver is because Weaver’s own
statements make her feel uncomfortable. Id., p. 55. She began avoiding
Weaver when he started making strange comments, which was after
Plaintiff’s termination. Id., p. 64.
Further, when asked whether her opinion of Weaver had changed since
she became aware of the Facebook posts, Cessna replied:
No. I find it very funny that – that his character is in question
based on a post. I would be more concerned that his character would
be in question due to the way he acted and the things he said in the
department. That is – I’m laughing. I mean, that is almost comical to
me.
Cessna depo. p. 50. As above, the causal element is lacking. Nothing in the
cited record provides any basis for a jury to find that plaintiff’s Facebook
posts about Weaver damaged Cessna’s opinion of him.
Eric Ammons, Mercy’s CEO and former head of human resources, saw
the Facebook posts and texts in the course of his internal investigation about
them. He testified that he still considers Weaver to be “a person of honesty,
29
a person of integrity.” Ammons depo. p. 58. Ammons does think differently
of Weaver after July of 2009, but that is because Weaver had difficulty
leading the department and voluntarily stepped down into a staff position.
Depo. p. 61-62. Ammons believed that Plaintiff’s lawsuit made Weaver an
ineffective leader because Weaver is afraid to counsel employees or take
action relating to performance issues. Id., p. 62. Nothing in the cited
testimony suggests that Ammons’ opinion of Weaver changed because of
Plaintiff’s Facebook posts or texts.
Additionally, Plaintiff’s statements would not have lowered Ammons
opinion of Weaver unless Ammons believed those statements to be true. But
Ammons investigated Plaintiff’s Facebook posts about receiving extra
money, and concluded they were not true. He also knew that Plaintiff’s texts
were false in alleging that Weaver had destroyed the call-back logs, since he
had those call-back logs in his possession at the time.
Melissa Stewart, a former co-worker of plaintiff’s, was a Facebook
friend with Plaintiff, but never saw or heard about Plaintiff’s post that
Weaver had added money to plaintiff’s paycheck. She did hear about
Plaintiff’s Facebook post saying “at least now he’ll keep his creepy hands off
me.” Stewart depo., p. 12-14. Additionally, Plaintiff told her sometime in
2009 that “Weaver took the callback logs from the Radiology Department.”
But Ms. Stewart was not asked if her opinion of Weaver had changed
30
because of those statements. Instead, Weaver cites the following testimony
as support for claiming damages to his reputation.
Q. Do you consider Weaver a person of integrity or honesty or
morality?
A. No.
Stewart depo., p. 33. No causal connection is made, however, between this
opinion and Plaintiff’s allegedly defamatory comments. Instead, the
immediately preceding testimony clarifies that Stewart’s opinion was based
Weaver’s own acts, not on Plaintiff’s comments:
Q. Okay. What is your opinion of Weaver as a supervisor?
A. I don’t think that he should be in a position to supervise
employees the way that he – the way that he is now because I feel like
if you’re a supervisor that there’s – you should be concerned with
managing your employees and not trying to be friends with them. I
think he crosses the line a lot with his employees. He’s too worried
about their personal lives and being friends with them instead of the
job that he’s supposed to be doing.
Id., p. 33.
Weaver also points to the testimony of Kari Dunham, another Mercy
employee. But Dunham testified that she has no idea what Plaintiff
posted on Facebook, has never seen any text messages about Weaver, and
was not aware that Plaintiff sent text messages to Tena Walsh. Although
Dunham stated that her opinion of Weaver had changed, that change was
caused by rumors relating to Plaintiff’s accusations of assault. Depo., p.1213. Her testimony does not suggest any causal connection between Plaintiff’s
allegedly defamatory statements, which do not allege assault, and damage
to Weaver’s reputation.
31
Testimony from Dr. Herrin, Weaver’s wife, does not assist his damages
claim. She testified that she was aware of her husband’s reputation
generally at the hospital. She believes he had a good reputation, is
respected and well-liked, and that his reputation had not changed since
Plaintiff made her Facebook posts or sent her text messages to Tena. Herrin
depo. p. 29-32. Weaver told her that he didn’t feel like he could be effective
as a manager because of the threat from the Plaintiff’s lawsuit, and because
of Terri’s allegations. Herrin depo. p. 34.
The sole remaining admissible testimony8 offered to show damage to
Weaver’s reputation is his own testimony. He stated that he felt like he had
lost control of his department partly because of Plaintiff’s statements, but
mostly because of another incident.9 Weaver depo. p.165. He believes that
the following occurred as a result of Plaintiff’s Facebook posts: people at
work lost respect for him and no longer talked to him as much as they did
before; he felt he could no longer effectively manage the radiology
department so he chose to step down as its director over a year later; and
Terri Wilson was contemptuous to him in September of 2009. Id., p. 168173, 187-191.
The Court disregards all hearsay not shown to be justified by an exception.
Allegedly, when employee Terri Wilson refused Weaver’s instruction to do a
task, Weaver grabbed her arm and told her to do it. But the citation is to
pages of Wilson’s deposition (9-10) that are not included in the record. See
Dk. 155, Wilson depo., including pages 1-4 and 45-48 only.
8
9
32
No facts show that Terri Wilson’s acts were due even in part to
Plaintiff’s statements. In fact, Wilson testified that she has never used
Facebook, and no facts show she was aware of Plaintiff’s statements about
Weaver. Wilson’s contemptuousness to Weaver, if any, has not been shown
to have been related to the challenged statements made by Plaintiff.
This leaves the sole proof of damage as Weaver’s belief that people at
work lost respect for him and no longer talk to him as much as they did
before. A victim’s own observations may be suitable as proof of harm to his
reputation for defamation cases in Kansas, see Moran v. State, 267 Kan. 583
(1999), but they must raise a reasonable inference that the damage was
caused by the plaintiff’s statements. Yet Weaver fails to name any person
who was aware of Plaintiff’s derogatory comments and who talked to him
less, and fails to identify any other way in which employees demonstrated
any loss of respect for him. “Broad and factually unsupported allegations …
do not support a claim for damages for alleged defamation.” Davis v.
Hildyard, 34 Kan.App.2d 22, 30 (2005) (finding insufficient proof of damages
for defamation where physician testified that patients had canceled their
appointments).
Summary judgment is warranted on Weaver’s claim of defamation for
his failure to prove that any of Plaintiff’s four statements damaged his
reputation. The Court finds it unnecessary to reach other questions,
including whether those statements were substantially true.
33
IT IS THEREFORE ORDERED that defendant Mercy Health System of
Kansas’ (Mercy) motion for summary judgment on Plaintiff’s sexual
harassment and retaliation claims (Dk. 146) is granted.
IT IS FURTHER ORDERED that defendant Leonard Weaver’s motion for
summary judgment on Plaintiff’s assault and battery claim (Dk. 146) is
granted; and that Plaintiff’s motion for summary judgment on Weaver’s
counterclaim for defamation (Dk. 144) is granted.
Dated this 20th day of March, 2012 at Topeka, Kansas.
s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
34
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