Walker v. Sedgwick County Board of Commissioners et al
Filing
193
MEMORANDUM AND ORDER granting in part and denying in part 168 Motion for Summary Judgment. See order for details. Signed by District Judge Monti L. Belot on 4/09/2012. (aa)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN WALKER,
Plaintiff,
v.
THE BOARD OF COUNTY COMMISSIONERS
OF SEDGWICK COUNTY, et al.,
Defendants.
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CIVIL ACTION
No.
09-1316-MLB
MEMORANDUM AND ORDER
This case comes before the court on defendants’ motion for
summary judgment.
(Doc. 168).
is ripe for decision.
The motion has been fully briefed and
(Docs. 169, 184, 192).
Defendants’ motion is
granted in part and denied in part for the reasons herein.
I.
Facts1
Plaintiff John Walker was employed by defendant Comcare, a mental
health center operated by defendant Sedgwick County, Kansas, from
April 2005 until September 9, 2009.
master’s
level
senior
counseling to clients.
Advanced
Registered
social
Walker worked as a licensed
worker
(therapist)
and
provided
Patricia Harris, Walker’s co-worker, was an
Nurse
Practitioner
(ARNP)
who
prescribed
medications to clients under the supervision of Comcare psychiatrists.
Walker met Harris in November 2006 to discuss a client who was
in crisis.
At this time, Walker’s office was on the second floor and
Harris’ office was on the first floor of the OPS building, Comcare’s
1
Facts which are controverted are viewed in a light most
favorable to plaintiff as the non-moving party. Additional facts are
discussed throughout the analysis section.
facility where employees provided outpatient services to clients.
After the initial conversation between Harris and Walker, Harris began
calling and emailing Walker.
On December 22, 2006, Harris went to Walker’s office and began
discussing Christmas.
Walker wanted to leave work so that he could
purchase a gift at Walgreen’s.
Harris informed Walker that her
partner worked at Walgreen’s and suggested that they could go to that
store together.
agreed.
Harris wanted Walker to meet her partner.
Walker
They first stopped at a coffee house for about an hour and
ordered drinks.
Walker and Harris then drove to Walgreen’s and spoke
with Jennifer Clowers, Harris’ partner.
After purchasing an item,
they left the Walgreen’s store and Walker intended to drive Harris
back to her car.
Harris, however, asked if they could stop by
Walker’s home so that she could see his dog.
Walker agreed.
At
Walker’s home, Harris met the dog and Walker gave her a tour of his
home.
Harris wanted to remain at Walker’s home to watch television
but Walker told her that he plans that evening.
Walker then drove
Harris back to her vehicle.
In January 2007, Harris increased her visits to Walker’s office,
emails and phone calls.
Harris sent four to five emails to Walker
everyday and multiple phone calls.
visits to his office.
Harris also made multiple daily
Harris would also stand by the front door at
the office and wait for Walker to arrive. Towards the end of January,
Harris’ emails contained the following: “Hey, come smoke.
you.
Why aren’t you answering your phone.
Please give me a call.”
Where are
Are you avoiding me.
(Doc. 169, exh. 1 at 21).
Walker would
frequently be interrupted during his counseling sessions with calls
-2-
from Harris.
Walker also received three to four calls every evening
on his home phone. At the end of January, Walker told Harris that the
phone calls needed to remain professional and that she must stop
calling him at home.
He also asked her to refrain from sending him
personal emails.
During the first week of February 2007, Harris relocated to an
office across the hall from Walker due to an allergic reaction to a
chemical on the first floor.
Harris made repeated visits to Walker’s
office and her actions were observed by several employees.
Walker
spoke with Danielle Underwood about Harris’ frequent visits and asked
Underwood to come into his office when she observed Harris enter his
office.
At this time, Dr. Lawrence Withrow, Walker’s supervisor, was
out of the office due to an illness.
After his return, Walker
informed Withrow of Harris’ repeated visits to his office. Harris was
also sending numerous emails and repeatedly calling Walker at the
office and at home.
The emails sent by Harris include the following:
February 13: “Roberto, is everything ok?”2
February 13: “Roberto, I am going out in the cold to smoke in
about 5 minutes.”
February 13: “Roberto, are you avoiding me today?”
February 13: “John, is everything all right?”
February 14: “Roberto, how are you doing?”
February 21: “Are you in your office”
February 23: “Roberto, all I can ask is that you forgive me.
2
Robert is Walker’s middle name.
-3-
I
wish I had not told you how I felt and never caused all this mess.”
February 23: “I have to take another Xanax.”
February 25: “John, I’m setting [sic] in here wishing I was
someone that you would want me to be but I don’t [sic] who that person
would be.
I call you because I’m so scared of losing you and I don’t
know what to do about that either. . . I will always care about you
and nothing or no one will ever change that for me.
I love you . .
. I never thought I would say that to anyone. . . .”
March 5: “Hope you are doing well.
I have been worried about
you.”
March 23: “Are you talking to me today?”
March 23: “John, are you not going to smoke with me anymore?”
March 27: “John, I really need a friend to talk to (male point
of view) about something that happened and was wondering if you would
be willing to give me a few minutes and offer me some advice?”
(Doc. 169, exh. 12).
Walker also received flowers and chocolates from Harris on
Valentine’s day.
to date him.
On February 23, Harris told Walker that she wanted
Walker informed Harris that she needed to abide by the
boundaries he set and that they keep their relationship professional.
Harris became agitated and raised her voice to Walker.
Later that
day, Harris emailed Walker and told him that she was going to take
another Xanax.
Walker and other employees observed that Harris was
stumbling in the hallways and did not appear to be sober.
Judy
Addison, the program director, and Dr. Rex Lear, the medical director,
spoke with Harris and told her to take medical leave for a few days
-4-
until she was stable on her medications.3
On February 26, a Sunday, Walker was working in the evening.
Harris was on medical leave but came into the building at 6:30 p.m.
to speak with Walker about his failure to respond to her repeated
emails. Walker informed Harris that he did not want to talk about it.
Harris again confronted Walker about his refusal to enter into a
relationship with her.
Walker is gay.
Harris stated that a friend believed that
Harris refused to leave Walker’s office.
her that he was leaving because he was uncomfortable.
Walker told
Harris then
told Walker that she would leave, Harris screamed “Fuck you” as she
was walking down the hall and then Harris slammed the office door.
Walker locked his door and waited until he believed Harris had left
the parking lot.
When Walker arrived at the parking lot, Harris was
in her vehicle which was parked next to Walker’s vehicle.
her door open and was crying.
Walker returned to the building and
encountered Dr. Brewer, a staff psychiatrist.
any physicians were in the building.
only one in the building.
Harris had
Walker asked Brewer if
Brewer said that she was the
Walker did not report the incident to
Brewer because she was not a supervisor.
On February 27, Harris made several attempts to speak with Walker
and she left a gift for Walker with another employee. On February 28,
Walker reported the incident that occurred on February 26 to Addison.
Walker informed Addison what occurred on the 26th and that he was
being pursued by Harris and was not reciprocating Harris’ feelings.
Harris continued to call and email Walker during March and April.
3
Harris’ mental health provider had prescribed the Xanax.
-5-
In
late March, Harris told Walker that she was dating someone else and
wanted to regain their prior friendship.
In March and April, Harris began parking her vehicle next to
Walker’s vehicle.
Harris and Walker also had several disagreements
about treatment for their shared clients. With respect to one client,
Harris told Walker that he had misdiagnosed a client and told the
client that Walker was not qualified to review medical charts.
The
emails which occurred in May, July and August focus on client care and
disagreements about their care.
On July 25, there was a staffing at Comcare to address the
disagreements between Walker and Harris concerning the clients.
During the staffing, Harris was upset and raised her voice.
Dr.
Withrow attempted to de-escalate Harris but was not successful.
Harris glared at Walker throughout the staffing.
left the staffing prior to any resolution.
Ultimately, Harris
Walker then filed a
complaint with human resources stating that he had been sexually
harassed and that he feared for his safety.
Harris was immediately
suspended during the investigation which was to be completed by Dorsha
Kirksey, the Diversity and Employee Relations Manager for Sedgwick
County.
On August 1, Walker petitioned for a protection from stalking
order in Sedgwick County District Court upon recommendation from
Addison.
The court issued a temporary ex parte order restraining
Harris from contacting or harassing Walker in any way.
At the conclusion of Sedgwick County’s investigation, Kirksey
issued a report in which she found that Harris’ actions were “grossly
inappropriate [and] completely unprofessional” but that Harris did not
-6-
sexually harass Walker.
Harris received a three day suspension and
ultimately returned to work on September 26.
Upon her return, Walker
requested that Comcare accommodate his protection from stalking order
by allowing him to work in a different building.
Comcare allowed
Walker to move into the CSS building, which was approximately one
block away from his prior location.
All of the clients Harris had
shared with Walker were transferred to other medical staff.
From October 9 to December 21, Walker was on FMLA leave.
December 13, the court held a
On
hearing on the petition from stalking.
After the conclusion of the hearing, at which both Walker and Dr.
Withrow testified, Harris agreed to the entry of the protection from
stalking order which required Harris to not come within 500 feet of
Walker and not attend lunch meetings in Walker’s office building.
Harris was also ordered to refrain from calling, contacting, following
or harassing Walker.
Walker was told that he could return to his
previous office or remain in the CSS building. Walker chose to remain
in the CSS building due to the fact that Harris continued to be
employed in the OPS building, where outpatient services are provided.
The transfer to the CSS clinic resulted in Walker having to work with
clients who needed a “highly slowed down therapy approach” which is
not an easy “task for [those] who do therapy in a rehabilitation
program.”
(Doc. 184, exh. 32 at 9).
Walker’s new office was not equipped with a computer, printer and
phone access until February 2008.
Walker therefore had difficulty
performing his job in the CSS building. In May 2008, Harris was found
in contempt of the protection from stalking order after parking her
vehicle in the CSS parking lot and having lunch in the CSS building
-7-
with her supervisor.
Harris and Walker, however, did not have any
communication during these violations.
On October 3, 2008, Walker’s work performance was evaluated by
his new supervisor, Cheryl Runyan.
Walker’s productivity rate was
determined to be at 45% for billed hours during the period of February
through October. Comcare requires a productivity rate of 84%. During
the period of November 2006 to October 2007, however, Walker’s
productivity was at a level of 99.1%.
The period of October 2007 to
February 2008 was not reviewed due to Walker’s FMLA leave and transfer
to the CSS building.
Walker was placed on a performance improvement plan (PIP) for six
months beginning October 2008.
Walker documented that the reduction
of hours was a result of “therapy referrals of clientele either
inappropriate for therapy services or not wishing to participate in
therapy services, limited clientele access and significant client noshows and cancellations of clientele assigned.”
at 14).
shows
In the 2008 evaluation, the supervisor noted that the no-
and
sessions.
(Doc. 184, exh. 32
cancellations
occurred
in
39%
of
Walker’s
scheduled
Also, the supervisor noted that even if Walker would have
had a 100% attendance rate, his productivity rate would have been 72%.
On April 28, 2009, Walker’s productivity rate declined and his
PIP was extended to the end of August 2009.
Walker’s productivity
rate continued to decline in May (24%), June (19%), July (21%) and
August (12%).
However, Walker had a significantly lower number of
assigned patients than the other therapists.
(Doc. 169, exh. 28).
For example, in July 2009, Walker had only 18 patients assigned to his
caseload.
The other therapists were assigned the following number of
-8-
patients for July 2009: 44, 48, 59, 60, 63, 77.
Those therapists had
the following productivity rates for the same month: 55%, 94%, 88%,
60%, 94%, 60%.
Also, Walker’s scheduled appointments had a 49% rate
of cancellations and no shows.
On September 9, 2009, Walker was terminated by Marilyn Cook,
Comcare’s
executive
termination
was
requirements.
due
director.
to
his
Walker
failure
was
to
informed
meet
the
that
his
productivity
The termination letter states the following:
Mr. Walker was expected to deliver approximately 77 hours
per month for a six month period, for a total of 464 hours.
During the time period November 2008 to April 2009, Mr.
Walker delivered 174.75 hours of service. At the end of
April, Mr. Walker was notified that he had not met the
expectations of his PIP for the six month period. In an
effort to assist Mr. Walker in being successful, he was
notified that his PIP was being extended through August
2009 again with the expectation that he deliver a minimum
of approximately 77 hours per month. During the five month
period between April and August, Mr. Walker delivered 97.50
hours while the expectation was to deliver at least 387
hours. During both of the PIP periods Mr. Walker routinely
failed to schedule 18 hours of appointments and often
scheduled less than 12 hours per week.
(Doc. 184, exh. 22).
Walker filed this action against defendants on October 13, 2009,
alleging claims of sexual harassment and retaliation.
In May 2010,
Cook filed a complaint with the BSRB against Walker.
Cook believed
that
certain
Walker
had
violated
HIPAA
after
disclosing
recordings of client sessions to his retained counsel.
tape
The complaint
was dismissed by the BSRB in February 2011.
Walker amended his complaint on December 14, to include a claim
of gender discrimination. Defendants move for summary judgment on all
claims.
II.
Summary Judgment Standards
-9-
The rules applicable to the resolution of this case, now at the
summary judgment stage, are well-known and are only briefly outlined
here.
Federal Rule of Civil Procedure 56(c) directs the entry of
summary judgment in favor of a party who "show[s] that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c).
An issue is “genuine” if sufficient evidence exists so that a rational
trier of fact could resolve the issue either way and an issue is
“material” if under the substantive law it is essential to the proper
disposition of the claim.
Adamson v. Multi Community Diversified
Svcs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008).
When confronted
with a fully briefed motion for summary judgment, the court must
ultimately determine "whether there is the need for a trial–whether,
in other words, there are any genuine factual issues that properly can
be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party."
477 U.S. 242, 250 (1986).
judgment.
Anderson v. Liberty Lobby, Inc.,
If so, the court cannot grant summary
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
III. Analysis
A.
Gender Discrimination
Walker contends Comcare failed to accommodate his requests to be
moved to a different location, placed him in a less desirable
position, placed him on probation and terminated his employment
because of his gender in violation of Title VII.4 A traditional prima
4
Under 42 U.S.C. § 2000e–2(a)(1), it is unlawful for an employer
“to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because
-10-
facie case of gender discrimination requires sufficient circumstantial
evidence to show: “(1) [plaintiff] is a member of a protected class,
(2) [plaintiff] suffered an adverse employment action, (3) [plaintiff]
was qualified for [his job], and (4) [plaintiff] was treated less
favorably than others not in the protected class.”
Turner v. Pub.
Serv. Co. of Colo., 563 F.3d 1136, 1142 (10th Cir. 2009). As a member
of a historically favored group, however, Walker may not rely on the
traditional factors to establish a prima facie case by way of
circumstantial evidence, unless, “in lieu of showing that he belongs
to a protected group, [he] establish[es] background circumstances that
support an inference that the defendant is one of those unusual
employers who discriminates against the majority.”
Notari v. Denver
Water Dep't., 971 F.2d 585, 589 (10th Cir. 1992). In the alternative,
Walker may rely on direct evidence of discrimination. Id. at 590.
Walker argues he presented both circumstantial evidence and direct
evidence.
Direct Evidence
“Direct evidence is evidence, which if believed, proves the
existence of a fact in issue without inference or presumption.”
Hall
v. U.S. Dep't of Labor, 476 F.3d 847, 855 (10th Cir. 2007). Stated
differently, “[d]irect evidence demonstrates on its face that the
employment decision was reached for discriminatory reasons.” Danville
v. Regional Lab Corp., 292 F.3d 1246, 1249 (10th Cir. 2002). In
contrast, “[s]tatements of personal opinion, even when reflecting
personal bias or prejudice, do not constitute direct evidence of
of such individual's race, color, religion, sex, or national origin.”
-11-
discrimination, but at most, are only circumstantial evidence of
discrimination because the trier of fact must infer discriminatory
intent from such statements.” Hall, 476 F.3d at 855.
Walker asserts the following constitute direct evidence of gender
discrimination: 1) Comcare provides disparate support for female
employees in protection from stalking proceedings and complaints; 2)
Comcare provides disparate support for sexual harassment complaints
against males; 3) positions at Comcare which are vacated by males are
filled
with
females;
4)
accommodations
were
made
for
a
female
therapist practicing offsite; and, 5) male co-workers were terminated
after testifying on behalf of Walker and a female co-worker was only
disciplined.
(Doc. 184 at 29).
Walker’s claims of disparate treatment do not amount to direct
evidence of gender discrimination.
Agency LLP,
See Mathews v. Denver Newspaper
649 F.3d 1199, 1208 (10th Cir. 2011)(evidence that
plaintiff was treated more harshly than similarly situated peers is
indirect evidence). To prevail in a direct evidence case “a plaintiff
must introduce direct or circumstantial evidence that the alleged
[discriminatory or] retaliatory motive actually relate[s] to the
question of discrimination in the particular employment decision, not
to the mere existence of other, potentially unrelated forms of
discrimination in the workplace.” Medlock v. Ortho Biotech, Inc., 164
F.3d 545, 549–50 (10th Cir. 1999)(internal citation omitted).
Walker has not established a direct link between the treatment
of female co-workers and his adverse employment decisions. Moreover,
Walker has not produced any evidence of context in these situations
in order to determine if there is temporal proximity to his adverse
-12-
employment decisions.
Riggs v. AirTran Airways, Inc., 497 F.3d 1108,
1117-18 (10th Cir. 2007).
Because Walker has not offered a context
of the similarly situated individuals and the time period in which
these events occurred, the finder of fact must draw an inference in
order to determine that the adverse employment actions were motivated
by Walker’s gender.
“[E]vidence is not ‘direct’ if an inference of
discrimination is required.”
Id.
Therefore, Walker has not produced sufficient direct evidence of
discrimination to withstand summary judgment.
Circumstantial Evidence
Without direct evidence of gender discrimination, Walker’s claim
must rely on circumstantial evidence and proceed under the McDonnell
Douglas5 burden-shifting framework. Pursuant to the McDonnell Douglas
decision, the following three steps are required for evaluating Title
VII disparate treatment claims:
First, plaintiff has the burden of proving by the preponderance
of the evidence a prima facie case of discrimination. Second, if
plaintiff succeeds in proving the prima facie case, the burden shifts
to defendants “to articulate some legitimate, nondiscriminatory reason
for the employee's rejection.”
burden,
plaintiff
must
then
Third, should defendant carry this
have
an
opportunity
to
prove
by
preponderance of the evidence that the legitimate reasons offered by
the defendant were not its true reasons, but were a pretext for
discrimination.
As discussed previously, Walker must meet his prima facie burden
5
411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.2d 668 (1973).
-13-
and also show that defendants are “unusual employers who discriminate
against
the
majority.”
Notari,
971
F.2d
at
589.
Walker’s
circumstantial evidence includes 1) disparate support for female
employees in protection from stalking proceedings and complaints; 2)
disparate support for sexual harassment; 3) positions vacated by males
being filled with females; 4) accommodations provided to a female
therapist practicing offsite; and, 5) male co-workers were terminated
after testifying on behalf of Walker and a female co-worker was not.
First, Walker cites to the testimony of Bridget Siedler who
sought a protection from stalking order from one of her clients at
Comcare.
Siedler explains that she was offered a safety plan from
Comcare and support in the form of male workers walking her to her
vehicle after work.
However, unlike Walker’s allegations against
Harris, Siedler’s experiences with her stalker were vastly different.
Siedler’s stalker was a client, not a co-worker.
threatened her over a period of several years.
Siedler’s stalker
Moreover, the stalker
threatened her daughter and broke into her home.
Because Walker has
not established that Siedler was similarly situated to him, the
differential treatment by Comcare is not evidence that defendants are
the unusual employer who discriminate against the majority.
Durant
v. MillerCoors, LLC, No. 10-1246, 2011 WL 892783 (10th Cir. Mar. 16,
2011)(citing McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir.
2006)).
Second, Walker asserts that Comcare handles sexual harassment
complaints differently when a male asserts a sexual harassment claim
against a female. As evidence of this allegation, Walker cites to the
-14-
sexual harassment complaint against Dr. Withrow.6
however, was made by Walker against Withrow.
made by a female against a male.
This complaint,
It was not a complaint
Moreover, the complaint dealt with
one statement which was contained in an email and was investigated by
the same individual who handled Walker’s complaint.
Walker has not
established that this investigation was handled differently than his
investigation.
Third, Walker cites to various male employees who separated from
employment with Comcare and were replaced by females. After reviewing
the exhibits, however, the court cannot conclude that this is evidence
of preferential treatment.
The exhibits show that several males and
females separated from employment with Comcare.
both males and females were hired by Comcare.
They also show that
In the absence of any
background evidence of the hiring process, the court cannot conclude
that this evidence supports a finding that defendants are the unusual
employer that discriminates against males.
Fourth, Walker asserts that Sarah Harkness was granted dualprogram practice accommodations but that he was denied those same
requests.
However, Walker provides no additional evidence regarding
the similarities between him and Harkness. The court has no knowledge
of her supervisors, caseload, clientele, or any other information
which would establish that Walker and Harkness are similarly situated.
“Work histories, company policies applicable to the plaintiff and the
6
Walker also cites to testimony by Joan Tammany. (Doc. 184 at
29).
Walker, however, does not specify the content of Tammany’s
testimony.
The court has reviewed the testimony and it does not
support a finding that sexual harassment claims by females are treated
differently at Comcare.
-15-
comparator[s], and other relevant employment circumstances should be
considered when determining whether employees are similarly situated.”
Green v. New Mexico, 420 F.3d 1189, 1194 (10th Cir. 2005).
Without
information to establish that Walker and Harkness were similarly
situated, the court cannot determine that Harkness’ ability to see
both types of patients is evidence that defendants are discriminating
on the basis of gender.
See Durant, 2011 WL 892783 (citing McGowan,
472 F.3d at 745).
Finally, Walker contends that two male co-workers, Withrow and
Camarena, were fired after providing favorable deposition testimony
in
this
case
disciplined.
because
of
and
the
one
female
witness,
Harkness,
was
only
Withrow and Camarena, however, have been terminated
their
alleged
inability
to
meet
the
productivity
requirements and not due to their involvement in this case.
This
court would have to make inference on inference in order to find that
their terminations were the result of their involvement in this case.
Stacking inferences cannot be the basis of a finding that defendants
are the unusual employer who discriminates against the majority.
Because Walker cannot provide background evidence, his only other
method of establishing a prima facie case of discrimination is by
offering evidence that shows it is reasonably likely he would not have
been fired or suffered adverse employment actions “but for” the
defendant's discrimination.
Notari, 971 F.2d 585, 590 (10th Cir.
1992). It is not enough for Walker to show he was treated differently
than another similarly situated employee, but Walker “must allege and
produce evidence to support specific facts that are sufficient to
support a reasonable inference that but for plaintiff's status the
-16-
challenged decision would not have occurred.” Id.
Walker has not attempted to satisfy the but for standard in his
motion nor does the evidence submitted by Walker establish that the
adverse
actions
were
taken
because
of
his
gender.
Therefore,
defendants’ motion for summary judgment on Walker’s claim of gender
discrimination is granted.
B.
Sexual Harassment
Walker may establish a violation of Title VII by proving that
discrimination based on sex created a “hostile or abusive work
environment.”
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66,
106 S. Ct. 2399, 91 L. Ed.2d 49 (1986). To establish a prima facie
claim for hostile work environment under Title VII, Walker must show
(1) that he is a member of a protected class; (2) that the conduct in
question was unwelcome; (3) that the harassment was based on sex; (4)
that the harassment was sufficiently severe or pervasive to create an
abusive working environment; and (5) a basis for imputing liability
to the employer.
Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th
Cir. 2007). To prevail under a hostile work environment theory, Walker
must show that sexually-oriented conduct had the purpose or effect of
unreasonably interfering with his work performance or created an
intimidating, hostile or offensive working environment. Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 126 L. Ed.2d 295
(1993), abrogated on other grounds by Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 753, 118 S. Ct. 2257, 141 L. Ed.2d 633 (1998).
To establish this claim, Walker must show both that the conduct to
which he was subjected was “severe or pervasive enough to create ...
an
environment
that
a
reasonable
-17-
person
would
find
hostile
or
abusive,” and that he “subjectively perceive[d] the environment to be
abusive.”
Harris,
510
U.S.
at
21.
The
existence
of
such
an
environment can only be determined by looking at the totality of the
circumstances present in the workplace, 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.
Walker asserts that Harris sexually harassed him by (1) calling
and emailing him several times a day; (2) visiting his office on
several occasions; (3) buying him gifts; (4) stalking him at the
office; (5) expressing her feelings for him and seeking out a personal
relationship; (6) parking her car next to his car; and (7) making
complaints about his treatment of patients.
Defendants first argue that because Walker is a male he must
establish that defendants are the unusual employer who discriminate
against the majority.
The court disagrees.
In Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 75 (1998), the Supreme Court held
that “Title VII's prohibition of discrimination ‘because of ... sex’
protects men as well as women.”
Therefore, Walker has met the first
element as he is in a protected group.
The second element, that the
conduct was unwelcome, is not in dispute.
To meet the third element of his claim, Walker must show that he
was the object of harassment because of gender.
Penry v. Fed. Home
Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998).
The
Supreme Court has set forth three evidentiary routes a plaintiff may
utilize to prove that discrimination was based on sex: (1) explicit
or implicit proposals of sexual activity motivated by sexual desire,
-18-
(2) harassment motivated by a general hostility toward members of one
gender in the workplace or (3) comparative evidence about how Harris
treated members of each sex in a mixed-sex workplace.
Oncale v.
Sundowner Offshore Servs., Inc., supra, 523 U.S. at 80-81.
route that can be used in this case is the first route.
The only
There is no
evidence that Harris was motivated by a general hostility toward males
in the workplace or that Harris treated male co-workers at Comcare
different than female co-workers.
The majority of the incidents Walker complains about are gender
neutral.
However,
the
evidence
establishes
that
the
incidents
occurred because of Harris’ desire to be in an intimate relationship
with Walker.
There is sufficient evidence to establish that Harris
repeatedly asked Walker to enter into a romantic relationship with
her. Harris also professed her love to Walker and numerous co-workers
testified that Harris was romantically interested in Walker.
Conduct
motivated by sexual desire is sufficient to establish that the actions
took place because of Walker’s sex.
Dick v. Phone Directories Co.,
Inc., 397 F.3d 1256, 1264-65 (10th Cir. 2005).
Therefore, the court
finds that Walker has established a genuine dispute of material fact
as to whether Harris’ conduct was motivated by Walker’s sex.
Turning to the fourth element, Walker must establish that Harris’
conduct was sufficiently severe or pervasive to create an abusive
working
environment.
Some
factors
to
be
weighed
include
“the
frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance;
and
whether
performance.”
it
unreasonably
interferes
with
an
employee's
work
Harris, 510 U.S. at 21. “Because frequency is merely
-19-
one factor in the analysis, an isolated incident may suffice if the
conduct is severe and threatening.”
Turnbull v. Topeka State Hosp.,
255 F.3d 1238, 1243 (10th Cir. 2001).
The evidence in this case demonstrates that Harris was constant
in her attempts to interact with Walker.
Harris emailed and called
Walker several times a day, including calls to his home phone in the
evening.
Harris repeatedly sought an intimate relationship with
Walker even though he continued to tell her that he desired a
professional relationship only. Harris frequently interrupted Walker
while he was with his clients, entered his office and would not
willingly leave, parked next to his car and waited for him to arrive
at the office.
As a result of Harris’ actions, Walker sought out a therapist,
was diagnosed with depression, and could not work late in the day
because he was fearful of Harris catching him in the office by
himself. Walker also could not concentrate on his work because of the
constant interruptions.
Other co-workers have also testified about
Harris’ repeated calls and visits to Walker’s office during the
workday.
Moreover, Walker sought out assistance from his co-workers
and supervisors.
Ultimately, Walker’s therapist determined that
Walker could not work in the same building as Harris because of
Walker’s mental health condition.
Therefore, Walker has raised a
genuine dispute as to whether Harris’ conduct unreasonably interfered
with his work performance.
Harsco Corp. v. Renner, 475 F.3d 1179,
1187 (10th Cir. 2007); see also Roberts v. Air Capitol Plating, Inc.,
No. 95-1348,
1997 WL 446266, *15 (D. Kan. July 22, 1997)(material
question of fact as to whether the conduct was so pervasive as to
-20-
alter the conditions of her employment and create an abusive working
environment when harasser followed the plaintiff around work, made
continuous calls, and went into the plaintiff’s office two to three
times a day).
Turning to the final element, Walker must show that Comcare had
“actual or constructive knowledge of the hostile work environment but
did not adequately respond to notice of the harassment.”
Holmes v.
Utah, Dept. of Workforce Servs., 483 F.3d 1057, 1064 (10th Cir. 2007).
There is evidence that Comcare was aware of previous complaints
against Harris and thus should have been on notice of her harassing
behavior.
Walker complained to Dr. Withrow and also complained to
Addison in February 2007.
Comcare did not take any action, however,
until after Walker made an additional complaint to Addison in July.
Defendants assert that the delayed response by Comcare should not be
dispositive because Harris’ actions decreased in March. This argument
is not persuasive, however, in light of Walker’s testimony of his
continued fear and inability to accomplish his work and Harris’
continued stalking in the months after February 2007.
Therefore,
Walker has established that a genuine dispute of material fact exists
as to whether Comcare had notice of the harassment.
Defendants’ motion for summary judgment on Walker’s sexual
harassment claim is denied.
C.
Retaliation
Title VII makes it an unlawful employment practice for an
employer “to discriminate against any of his employees ... because he
has opposed any practice made an unlawful employment practice by this
subchapter [.]” 42 U.S.C. § 2000e-3(a). In order to establish a prima
-21-
facie case of retaliation, Walker must show (1) he engaged in
protected opposition to discrimination; (2) defendants took an adverse
employment action against him; and (3) a causal connection between the
protected activity and the adverse action.
F.3d 1220, 1231 (10th Cir. 1998).
retaliation
even
though
the
Jeffries v. Kansas, 147
Walker may maintain an action for
conduct
forming
the
basis
of
his
underlying complaint was not adjudged to have violated Title VII. Id.
“Once the employee establishes a prima facie case, the burden shifts
to the employer to articulate a legitimate, nondiscriminatory reason
for the adverse action.
If the employer does so, the burden shifts
back to the plaintiff to show that the employer’s reasons are
pretextual.”
McGowan v. City of Eufala, 472 F.3d 736, 741 (10th Cir.
2006).
It is undisputed that Walker has satisfied the first prong of his
prima facie case.
See Hertz v. Luzenac America, Inc., 370 F.3d 1014,
1015 (10th Cir. 2004) (“Protected opposition can range from filing
formal charges to voicing informal complaints to superiors.”). The
parties
dispute,
however,
whether
the
alleged
retaliatory
acts
constitute adverse employment actions and whether they are the result
of Walker’s complaints.7
“A challenged employment action is adverse
7
Defendants also assert that certain retaliation claims were
waived because they were not preserved in the pretrial order. (Doc.
169 at 23).
Presumably, defendants are asserting the claims are
waived because the contentions in the pretrial order are not
structured to identify which allegations refer specifically to which
claim.
This does not waive Walker’s retaliation claims, however.
Walker’s contentions in the pretrial order adequately describe
defendants’ actions in changing his employment conditions, giving him
negative evaluations and his allegedly illegal termination.
Defendants have been on notice that these claims were part of Walker’s
retaliation claim.
-22-
for the purposes of a claim for retaliation under Title VII if a
reasonable employee would have found it materially adverse. . . . [A]n
employer’s action is adverse under Title VII if it well might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.”
McGowan, 472 F.3d at 742 (internal quotations and
citations omitted).
Specific Retaliation Allegations
Walker’s response cites more than twenty fact paragraphs in
summary form which are alleged to constitute retaliation acts.
The
court “will not manufacture arguments [for Walker], and a bare
assertion does not preserve a claim, particularly when, as here, a
host of other issues are presented.”
Craven v. Univ. of Colo. Hosp.
Auth., 260 F.3d 1218, 1226 (10th Cir. 2001).
The court will address
the adverse actions discussed by defendants and then turn to the
allegations in the pretrial order.
1.
Harris’ Actions
Defendants assert that the retaliation allegations by Harris are
not actionable because Harris was not Walker’s supervisor.
“An
employer may not be held liable for the retaliatory acts of co-workers
if none of its supervisory or management-level personnel orchestrated,
condoned,
management
or
encouraged
participation
the
co-workers'
could
occur
if
actions,
the
and
no
supervisory
such
or
management-level personnel did not actually know of the co-workers'
retaliation.”
Gunnell v. Utah Valley State College, 152 F.3d 1253,
1265 (10th Cir. 1998).
Walker has not established that Harris’
actions in disagreeing with client treatment and Harris’ improper
discussions of Walker’s competency with clients were orchestrated,
-23-
condoned
or
encouraged
by
a
supervisory
employee
at
Comcare.
Therefore, Walker’s allegations pertaining to Harris’ retaliation
through clients cannot survive summary judgment.
2.
BSRB Complaint
Next, Walker contends that Marilyn Cook filed a complaint with
the Behavioral Sciences Regulatory Board (BSRB) in retaliation of
Walker’s ongoing lawsuit.
On January 27, 2010, Walker filed a fourth
EEOC charge which alleged sexual harassment and retaliation against
defendants. During the discovery phase of this case, Walker disclosed
recordings to his attorney which were allegedly done during therapy
sessions.
Defendants learned about these recordings and Marilyn Cook
filed an ethical complaint with the BSRB against Walker for disclosing
the recordings of therapy sessions in May 2010.
Defendants
contend
that
the
second
element
of
Walker’s
retaliation claim is not met because the ethics complaint was not an
adverse action.
The Tenth Circuit has instructed that the phrase
adverse action is to be liberally defined and include acts “that carry
a significant risk of humiliation, damage to reputation, and a
concomitant harm to future employment prospects.”
Kansas, 371 F.3d 1233, 1239 (10th Cir. 2004).
Annett v. Univ. of
While Walker’s ethics
investigation resulted in a dismissal, the court finds that an ethics
investigation for a licensed individual may result in damage to
reputation
and
potentially
harm
future
employment
prospects.
Therefore, there is a genuine dispute of material fact as to whether
the ethics complaint was an adverse action.
Next, Walker must show that a casual connection exists between
his
protected
activity,
filing
an
-24-
EEOC
charge,
and
the
ethics
complaint.
Walker cannot establish causation, however, on temporal
proximity alone because the Tenth Circuit has held that four months
is too large a time gap to establish a causal connection.
United Parcel Serv.,
Proctor v.
502 F.3d 1200, 1208 (10th Cir. 2007).
Because
the adverse action was not closely connected, Walker must rely on
additional evidence to establish causation. E.E.O.C. v. C.R. England,
Inc., 644 F.3d 1028, 1052 (10th Cir. 2011).
Walker has not offered
any additional evidence to show that the filing of the ethics
complaint was in retaliation of Walker’s EEOC charge.
Moreover, defendants have offered a legitimate nondiscriminatory
reason for filing the complaint.
Cook
testified that she was
instructed to file the complaint after speaking with an individual
from the BSRB.
The burden now shifts to Walker who must show that
defendants’ proffered reason was mere pretext.
Proctor, 502 F.3d at
1208. Walker can meet this burden “by demonstrating ‘such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions
in the employer's proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them unworthy of credence
and hence infer that the employer did not act for the asserted
non-discriminatory reasons.”
1052.
C.R. England, Inc., 644 F.3d 1028 at
Walker has not done so.
Walker’s
allegations
of
pretext
consist
of
arbitrary
and
subjective use of productivity numbers and the firing of co-workers.
Those allegations have not been linked to Cook’s ethics complaint.
The productivity numbers concerning Walker occurred while he was
employed by Comcare in 2008 and 2009.
Cook’s complaint was filed in
May 2010. Moreover, the terminations of Walker’s co-workers also fail
-25-
to support a finding of pretext.
Withrow was terminated in January
2008, again prior to Cook’s complaint.
Camarena was terminated in
November 2011, more than 18 months after the ethics complaint was
filed.
Walker has failed to show that defendants’ legitimate reason
for filing the ethics complaint was pretext for discrimination.
Therefore, defendants’ motion for summary judgment on this claim
is granted.
3.
Hours of Supervision Reported
Next, Walker contends that defendants retaliated against him by
Cheryl Runyan’s failure to correct the amount of hours Walker had
worked under Runyan’s supervision.
The facts show that Walker
initially made a mistake calculating the hours for his application to
sit for the licensing exam.
Walker was notified by the BSRB of the
lack of the necessary hours.
Walker realized his mistake and
contacted Runyan to send in a corrected form in mid-June 2010. Runyan
did not do so.
Instead of contacting the BSRB, Runyan contacted Cook
who advised her not to respond to the BSRB and stated that the
attorney would do so.
Ultimately, after several repeated contacts by
Walker and the BSRB, Runyan completed the additional form in early
September.
As a result, Walker could not sit for his licensing exam
for an additional three months.
Because this delay resulted in Walker’s inability to obtain his
license for an additional three months, the court finds that Walker
has established a genuine material fact exists as to whether the
action was adverse. The court now turns to the causation requirement.
On June 1, 2010, Walker had filed his fourth charge with the EEOC
pertaining to Cook’s ethical complaint against him. Therefore, Walker
-26-
has established the causation element because Walker’s EEOC charge was
filed a few short weeks prior to Runyan’s failure to respond to the
requests for the correction form.
Because Walker has met his prima facie case of retaliation with
respect to this adverse action, the court now turns to defendants to
provide
a
legitimate
nondiscriminatory
reason
for
the
action.
Defendants, however, have not provided a reason for Runyan’s failure
to provide the correct hours to the BSRB.
Therefore, defendants’
motion for summary judgment on this claim is denied.
4.
Transfer to CSS
Walker next alleges that his transfer to the CSS building and the
delay in office equipment was an adverse employment action.
In
Burlington N. & Sante Fe Ry. v. White, the Supreme Court found that
an employee involuntarily transferred to a less desirable position had
stated a material adverse employment action under Title VII, even
though the duties of both positions were similar.
2416-18 (2006).
126 S. Ct. 2405,
The Burlington Northern Court noted, however, that
“reassignment of job duties is not automatically actionable.”
Ct. at 2417.
126 S.
The Tenth Circuit, in a case decided after the
Burlington Northern decision, has stated:
After Burlington Northern we have continued to
examine claims of adverse action through a caseby case approach, examining the unique factors
relevant to the situation at hand.
The
materiality of a claimed adverse action is to be
determined objectively; petty slights, minor
annoyances, and simple lack of good manners will
not deter a reasonable worker from making or
supporting a charge of discrimination. . . .
Even prior to Burlington Northern, we found
adverse action if it constitutes a significant
change in employment status, such as hiring,
firing, failing to promote, reassignment with
-27-
significantly different job responsibilities, or
a decision causing a significant change in
benefits.
McGowan, 472 F.3d at 742 (internal quotations and citations omitted).
Taking the facts in the light most favorable to Walker, Walker
has created a genuine issue of material fact with respect to this
element.
Walker alleges the therapy practice in the CSS building is
not as desirable as it is in outpatient services.
Moreover, Walker
lost his outpatient clients in the transfer which resulted in fewer
patients and his inability to meet the productivity requirements.
In
addition, Dr. Withrow testified that the position in CSS is less
favorable and the clients are dealing with significantly different
issues, such as bathing, in contrast to the clients in the outpatient
therapy
who
are
dealing
with
interpersonal
issues.
Walker’s
supervisor also commented that the transition to the CSS services is
“not easy” for a therapist who had previously provided outpatient
services.
Moreover, Walker’s arrival at the new building caused
several difficulties for Walker as he was not supplied with the basic
equipment which was necessary for Walker to perform his job.
That
equipment was not provided for more than two months.
Applying the standards articulated above, an objective view of
Walker’s alleged facts show that Walker has established a genuine
issue of material fact with respect to this element.
See also Wells
v. Colo. Dep’t of Transp., 325 F.3d 1205, 1214-15 (10th Cir. 2003)
(finding a transfer materially adverse when, although the plaintiff
retained the same rate of pay, her job duties and responsibilities
“dramatically” changed).
Walker has also established the causation element because the
-28-
transfer occurred immediately after his internal complaint of sexual
harassment.
O’Neal, 237 F.3d at 1253.
Again, defendants have failed
to offer a legitimate nondiscriminatory reason for this action.
Therefore, defendants’ motion for summary judgment on this claim
is denied.
5.
Performance Reviews and Termination
Finally, Walker contends that Comcare retaliated against him by
issuing negative performance reviews and terminating his employment.
The time sequence of events that led up to Walker’s termination were
as follows:
April
11,
2008:
Walker
filed
an
amended
charge
of
sexual
harassment and retaliation with the EEOC.
May 6, 2008: Walker filed an amended charge of disability
discrimination with the EEOC.
October 3, 2008: Walker received a negative evaluation and was
placed on PIP status.
November 20, 2008: Harris was found guilty of contempt of the
protection from stalking order and sentenced to 48 hours in jail.
December 13, 2008: The final protection from stalking order was
extended for an additional twelve months.
February
20,
2009:
Walker
filed
a
third
charge
of
sexual
harassment and retaliation with the EEOC.
April 30, 2009: Walker was given a negative evaluation and
continued on PIP status for an additional six months.
September 9, 2009: Walker was terminated for failing to comply
with productivity standards.
Again, the first element of retaliation is not in dispute as
-29-
Walker had undisputedly filed charges with the EEOC prior to the
negative evaluations and termination.
As to the second element, a
termination is an adverse employment action.
v. Ellerth, 524 U.S. 742, 761 (1998).
Burlington Indus., Inc.
A negative evaluation which
results in a termination is also considered an adverse action.
Toth
v. Gates Rubber Co., No. 99-1017, 2000 WL 796068 at *9, (10th Cir.
June 21, 2000).
The
last
element
requires
that
Walker
establish
a
causal
connection between the protected activity and the negative evaluations
and ultimate termination.
Five months elapsed between Walker’s EEOC
charge and the first negative evaluation which is too large a gap to
make a presumption of retaliation.
However, only two months elapsed
between Walker’s third EEOC charge and his second negative evaluation.
This time period is short enough for the court to presume retaliation.
Walker’s termination occurred seven months after his third EEOC charge
which is again too large a gap to presume retaliation.
Walker must
therefore rely on additional evidence to establish causation for his
first negative evaluation and his termination.
E.E.O.C. v. C.R.
England, Inc., 644 F.3d 1028, 1052 (10th Cir. 2011).
As additional evidence, Walker has produced the testimony of
Withrow and Camarena.
Camarena was terminated in November 2011 for
failing to comply with productivity standards.
Camarena testified,
however, that he failed to comply with the standards during 2005,
2006, 2007, 2008, and 2009.
During these years, Camarena was only
placed on a PIP for three years but Camarena’s supervisor used
subjective considerations to support a finding that he had complied
with the PIP.
Withrow testified that a management level employee
-30-
stated during a meeting that the productivity requirement was a tool
that
management
could
use
as
a
basis
to
terminate
employees.
Moreover, Walker repeatedly complained that he did not have enough
clients to meet the productivity standard.
This additional evidence
is sufficient to establish a genuine dispute of material fact as to
whether Walker was issued negative evaluations and terminated in
retaliation for filing charges with the EEOC.
The burden now shifts to defendants to provide a legitimate
nondiscriminatory reason for the adverse actions.
Defendants assert
that Walker’s performance justified the issuance of the negative
performance
reviews
and
that
Walker’s
failure
productivity levels warranted his termination.
to
achieve
the
Defendants have met
their burden in providing a legitimate nondiscriminatory reason for
their actions.
Walker must now show that defendants proffered reason was mere
pretext.
Proctor, 502 F.3d at 1208.
Walker can meet this burden “by
demonstrating such weaknesses, implausibilities, inconsistencies,
incoherencies,
or
contradictions
in
the
employer's
proffered
legitimate reasons for its action that a reasonable factfinder could
rationally find them unworthy of credence and hence infer that the
employer did not act for the asserted non-discriminatory reasons.”
C.R. England, Inc., 644 F.3d 1028 at 1052.
The testimony by Withrow, one of Walker’s supervisors, and
Camarena demonstrate that the productivity levels were very subjective
and arguably used as a tool to terminate employees.
Camarena worked
as a therapist at the CSS building and provided therapy to the same
clientele as Walker during 2008 to 2009.
-31-
Camarena failed to meet the
productivity requirements for five continuous years but he was not
terminated.
Walker was terminated by Cook, the director of Comcare,
after a review of Walker’s PIP by Karen McNally, the program director
at
CSS
during
both
Camarena
and
Walker’s
employment.
McNally
ultimately recommended termination of Camarena to Cook in 2011 even
though Camarena did meet the productivity standards in 2010.
Walker
has submitted sufficient evidence at this time to support a finding
that Walker and Camarena were similarly situated.
See Green v. New
Mexico, 420 F.3d 1189, 1194 (10th Cir. 2005)(a “similarly situated
employee is one who deals with the same supervisor and is subject to
the same standards governing performance evaluation and discipline.”)
Moreover, the productivity levels provided by defendants show
that
the
majority
of
the
therapists
at
Comcare
do
productivity levels over a consistent period of time.
not
meet
In addition,
Comcare was aware that there was no possible way for Walker to meet
his productivity level with the number of clients assigned to his
caseload.
Therefore,
Walker
has
demonstrated
that
there
are
weaknesses and contradictions in defendants’ reasons for Walker’s
termination.
Defendants’
motion
for
summary
judgment
on
this
claim
is
therefore denied.
D.
Comcare
Defendants move for summary judgment on all claims against
Comcare on the basis that it is not a separate entity but only a
department of Sedgwick County.
Walker did not respond to this
argument.
Under Kansas law, subordinate governmental agencies do not
have
capacity
the
to
sue
or
be
-32-
sued
unless
a
specific
statue
authorizes
such
County/Kansas
action.
City,
Fugate
KS.,
161
v.
F.
Unified
Supp.2d
Gov’t
1261,
of
1266
Wyandotte
(D.
Kan.
2001)(citing Mason v. Twenty-Sixth Judicial Dist., 670 F. Supp. 1528,
1535 (D. Kan. 1987) and Hopkins v. State, 237 Kan. 601, 702 P.2d 311,
317 (1985)).
Therefore, Comcare’s motion for summary judgment on all remaining
claims is granted.
IV.
Conclusion
Defendants’ motion for summary judgment on Walker’s claim of
gender discrimination is granted.
judgment
on
Defendants’
Walker’s
motion
for
claim
Defendants’ motion for summary
of
summary
sexual
judgment
harassment
on
is
Walker’s
retaliation is denied in part and granted in part.
denied.
claim
of
(Doc. 168).
Comcare’s motion for summary judgment on all claims is granted.
No motions to reconsider may be filed.
Fed. R. Civ. P. 1.
This case will be tried to a jury on June 19, 2012.
The court
will hold a status conference on June 4, 2012, at 1:30 p.m.
IT IS SO ORDERED.
Dated this
9th
day of April 2012, at Wichita, Kansas.
s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE
-33-
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