Williams v. Aeroflex Wichita, Inc. et al

Filing 94

MEMORANDUM AND ORDER granting 69 Motion for Summary Judgment. Signed by District Judge Eric F. Melgren on 10/15/2020. (sz)

Case 6:18-cv-01252-EFM Document 94 Filed 10/15/20 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LINDA WILLIAMS,
Plaintiff,

vs.

Case No. 18-1252-EFM

AEROFLEX WICHITA, INC. and LORI
CROMWELL,
Defendants.

MEMORANDUM AND ORDER
Before the Court is Defendants Aeroflex Wichita, Inc. and Lori Cromwell’s Motion for
Summary Judgment (Doc. 69). Plaintiff Linda Williams alleges various violations of Title VII of
the Civil Rights Act of 1964,1 as well as intentional infliction of emotional distress under Kansas
law. For the following reasons, the Court grants Defendants’ motion for summary judgment.
I.

Factual and Procedural Background2

Williams has worked at Aeroflex in Wichita since 1999 as a Customer Service Support
Representative. Cromwell was Williams’ supervisor from 2000 to 2017. Williams alleges that

1
2

42 U.S.C. § 2000e, et seq.

In accordance with summary judgment procedures, the Court has set forth the uncontroverted facts in the
light most favorable to the non-moving party.

Case 6:18-cv-01252-EFM Document 94 Filed 10/15/20 Page 2 of 21

during that time, Cromwell created a hostile work environment and discriminated and retaliated
against her based on her race.3 Williams also alleges that Cromwell’s actions negligently inflicted
emotional distress, causing her to experience depression and fluctuating body weight.
A.

Defendants’ Actions
Cromwell issued Williams multiple disciplinary actions over the course of their 17-year

working relationship. From 2000 to 2003, Williams received several disciplinary actions for
attendance violations and a few for personal conduct. Cromwell issued no disciplinary actions to
Williams from 2004 to 2011.

Between 2011 and the end of 2012, Cromwell issued two

disciplinary actions for Williams’ attendance and three for the quality of her work. From 2012 to
2016, Cromwell issued Williams no disciplinary actions. Finally, in September 2016, Cromwell
issued Williams a disciplinary action for abusing her break time.
Williams alleges that Cromwell exhibited various actions over the course of their 17-year
working relationship indicative of her discrimination and harassment.4 For example, Cromwell
was slow to reply to Williams’ emails. She would tell Williams to stop humming while at other
times permitting Williams’ coworkers to whistle. Cromwell made rude comments to Williams
several times. She once told Williams “this is the first time you made sense” and then laughed at
her. On other occasions, Cromwell asked about Williams’ wig and commented on the smell of
her hair. Cromwell asked Williams to stop entering the office through a specific door but then
used the door herself. At one point, Cromwell approached Williams’ desk and said, “I’m watching
you.” At another time, Cromwell threw some of Williams’ papers to the floor. Williams did not

3

Williams is African-American.

4

Williams’ allegations are only thinly supported by the record. She gives wide time ranges and is unable to
pinpoint dates where Cromwell specifically acted rudely or in a discriminatory manner. However, the Court sets forth
the following paragraph in the light most favorable to Williams.

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report those specific actions and comments to human resources (“HR”), but rather reported that
Cromwell was generally rude to her and micromanaged her work.
Unrelated to her allegations of Cromwell’s behavior, Williams’ alleges that Aeroflex
discriminated against her by denying her tuition reimbursement.

Aeroflex had a tuition

reimbursement policy to encourage employees to take continuing education classes to develop
skills within the scope of the employee’s job duties. Aeroflex rejected Williams’ request for tuition
reimbursement for sociology and English courses, stating that neither course had a direct impact
on Williams’ job duties. On another occasion, however, Aeroflex granted a black employee’s
tuition reimbursement request for a course in line with the employee’s job duties.
B.

Williams’ Complaints
In 2003, Williams complained to Marjie Hale—Aeroflex’s Director of HR at the time—

about Cromwell’s behavior. Williams testified that when speaking to Hale, she did not “jump on
it and say, oh [Cromwell]’s a racist.”5

Correspondingly, Hale’s notes reflect that “Linda

commented that she did not believe that Lori is discriminating against her.”6 At the time of her
meeting with Hale, Williams did not indicate that she believed Cromwell’s actions were motivated
by racial animus. Hale investigated the complaint, meeting with Cromwell’s supervisors and
interviewing Williams’ coworkers. The investigation concluded without any indication that
Cromwell’s harsh behavior was targeted towards racial minorities.
In 2012, Williams again complained to HR about Cromwell, alleging that Cromwell did
not like her and that she inconsistently applied company policies to Williams’ detriment. She

5

Williams Dep. (Pl.’s Ex. K), Doc. 85-12, at 11.

6

Hale Notes (Defs.’ Ex. 7), Doc. 72-12, at 3.

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made no mention that she believed those actions were based on racial animus. In response, Connie
Tindal—an HR manager—attempted to set up a meeting with Williams and Cromwell to address
the tension. Williams failed to follow up on her complaint and a meeting was not set up. However,
later in 2012, Aeroflex investigated another complaint from Williams regarding Cromwell’s
disciplinary write-ups. After consulting an expert within the company who possessed knowledge
of the appropriate performance metrics for Williams’ position, Aeroflex concluded that Cromwell
had reasonable grounds to discipline Williams for various reporting errors.
On October 6, 2016, Williams emailed Martin Burgess—Executive Vice President of HR
and Communications—to complain about Cromwell’s behavior, specifically alleging that she was
“harassed, belittled, humiliated on more than one occasion” as well as describing it as an “abusive
relationship.”7 Williams titled the email “My Cry for Help.”8 Williams did not mention race or
racial discrimination in this email. Williams noted that she sent the email because she finally
reached a tipping point as a result of Cromwell’s September 2016 disciplinary action resulting
from Williams’ alleged violations of Aeroflex’s break policy. Burgess opened an investigation
which resulted in HR interviewing Williams multiple times about Cromwell’s behavior. During
those interviews, Williams continued to allege that Cromwell harassed her, but she never alleged
it was based on her race or that she suffered racial discrimination. After the investigation, HR
concluded that Cromwell’s managerial behavior—which was admittedly harsh and at times rude—
did not vary amongst her subordinates. In response to Williams’ complaint, Aeroflex coached and

7

Williams’ Oct. 6, 2016 Compl. (Defs.’ Ex. 3-E), Doc. 72-7, at 6.

8

Doc. 72-7, at 6.

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counseled Cromwell about her management and communication style. Aeroflex concluded that
Cromwell treated everyone the same, albeit harshly.
Cromwell’s department experienced significant turnover during the 17-year period she
supervised Williams. Several of Williams’ former coworkers indicated in exit interviews that they
disliked Cromwell’s harsh management style. Those former coworkers were both white and black.
None of them indicated that they felt discriminated against by Cromwell. Aside from the following
two, none of them indicated or testified that Cromwell exhibited racial prejudice towards Williams.
Two of Williams’ former coworkers—Erin Craig and Emily Trimpe—testified that they
felt Cromwell was “prejudiced.”9 However, they could not identify specific events to support their
perception. Notably, Craig stated “I don’t have evidence” before listing general, intangible
changes in Cromwell’s attitude—such as her tone of voice—when Williams was present.10
Likewise, Trimpe cited only “nonverbal cues,” admitting that she “wish[ed she] could come up
with something more specific.”11
After Williams’ multiple complaints, in 2017 Aeroflex offered to transfer Williams’ to a
different department or supervisor. Williams chose to remain in the customer service department
but accepted the transfer to another supervisor. This was not a demotion and the general nature of
Williams’ job duties remained the same. She did not lose any of her benefits, nor was her salary
lowered.

9

Craig Dep. (Pl.’s Ex. G), Doc. 85-8, at 10.

10

Id.

11

Trimpe Dep. (Pl.’s Ex. I), Doc. 85-10, at 13, 19.

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C.

Procedural History
Williams filed a complaint to the Kansas Human Rights Commission (“KHRC”) on

October 29, 2016.12 She concedes that she did not suffer any retaliation from filing this complaint,
rather contending that she suffered retaliation for her October 6, 2016, email to Burgess. In her
KHRC complaint, Williams alleged the following three factual bases:
A.

B.
C.

From August 2016 to October 26, 2016, my work was more closely
scrutinized than other similarly situated employees and I was subjected to
written and verbal harassment. During this same timeframe, I made
multiple complaints to Human Resources and to Respondent’s Corporate
office.
In September 2016, I was treated less favorably than other similarly situated
employees.
On September 20, 2016, I was given a written reprimand. On this same
date, I complained about the reprimand to Human Resources.13

She did not mention Cromwell by name and besides checking the appropriate boxes, cited no
specific instances of racial discrimination or retaliation. She mentioned no incidents before August
2016. The EEOC issued a notice of dismissal and right-to-sue letter on June 20, 2018.
Williams brought this action on September 7, 2018. The Court granted Defendants’ partial
motion for judgment on the pleadings, eliminating four of Williams’ original claims.14 Williams
proceeds with her four remaining claims: Title VII hostile work environment, discrimination, and
retaliation, as well as negligent infliction of emotional distress.

12

This complaint was dually filed with the Equal Employment Opportunity Commission (“EEOC”).

13

Kansas Human Rights Comm’n Compl. (Defs.’ Ex. 9), Doc. 70-18, at 1–2.

14

The Court dismissed claims against Aeroflex for negligent retention/hiring, training, and supervision, and
against Cromwell for intentional infliction of emotional distress.

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II.

Legal Standard

Summary judgment is appropriate if the moving party demonstrates that there is no
genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.15
A fact is “material” when it is essential to the claim, and issues of fact are “genuine” if the proffered
evidence permits a reasonable jury to decide the issue in either party’s favor.16 The movant bears
the initial burden of proof and must show the lack of evidence on an essential element of the
claim.17 The nonmovant must then bring forth specific facts showing a genuine issue for trial.18
These facts must be clearly identified through affidavits, deposition transcripts, or incorporated
exhibits—conclusory allegations alone cannot survive a motion for summary judgment.19 The
court views all evidence and reasonable inferences in the light most favorable to the non-moving
party.20
III.

Analysis

Williams claims that Defendants’ violated Title VII by creating a hostile work environment
and by discriminating and retaliating against her based on her race. Williams further asserts a
negligent infliction of emotional distress claim against Cromwell. Defendants move for summary
judgment on all four of Williams’ claims. After first addressing Defendants’ affirmative defense

15

Fed. R. Civ. P. 56(a).

16

Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006) (citing Bennett v. Quark, Inc.,
258 F.3d 1220, 1224 (10th Cir. 2001)).
17

Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986)).
18

Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005) (citation omitted).

19

Mitchell v. City of Moore, 218 F.3d 1190, 1197 (10th Cir. 2000) (citing Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 670–71 (10th Cir. 1998)).
20

LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004) (citation omitted).

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of failure to exhaust administrative remedies, the Court will separately address each of Williams’
claims.
A.

Failure to Exhaust Administrative Remedies
Employees alleging Title VII discrimination or retaliation must comply with specific

administrative complaint procedures to exhaust their administrative remedies.21 In Kansas, this
means that employees must first file complaints with either the EEOC or the KHRC before
bringing suit in court.22 “This regulatory exhaustion requirement is not a jurisdictional prerequisite
for suit but is a claims-processing rule that the employer may raise as an affirmative defense.”23
“Because it is a mandatory rule, however, the court must enforce this exhaustion requirement if
the employer properly raises it.”24 In this case, Defendants properly raised the affirmative defense.
The twofold purpose of requiring aggrieved parties to file administrative charges is to give
employers notice of the “claims being brought against them” and to give “the EEOC with an
opportunity to conciliate the claims.”25 Therefore, “the charge must contain facts concerning the
discriminatory and retaliatory actions underlying each claim.”26 Courts must then determine
“whether the conduct alleged in the lawsuit would fall within the scope of an EEOC investigation
which would reasonably grow out of the charges actually made.”27 Thus, the administrative

21

See Hickey v. Brennan, 969 F.3d 1113, 1118 (10th Cir. 2020).

22

Azzun v. Kansas Dep’t of Health & Env’t, 2011 WL 903901, at *3 (D. Kan. 2011).

23

See Hickey, 969 F.3d at 1118.

24

See Id. (emphasis added).

25

Dunmars v. Ford Cty., Kan. Bd. of Comm’rs, 2019 WL 3817958, at *3 (D. Kan. 2019).

26

Jones v. U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007).

27

Smith v. Cheyenne Ret. Inv’rs L.P., 904 F.3d 1159, 1164 (10th Cir. 2018) (quotation, citation, and alteration

omitted).

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complaint must include “[e]ach discrete instance of discriminatory treatment.”28 The court
liberally construes administrative complaints in the interest of justice.29
In this case, Williams limited her KHRC complaint to actions after August 2016. Her three
factual allegations only encompass August to October 2016. Williams did not have to provide
extensive detail about the discrete incidents, but at a minimum she must have identified them. She
failed to do so. It is unreasonable to assume that Aeroflex was put on notice for claims outside of
Williams’ alleged dates; it is certainly unreasonable to expect them to anticipate Williams’ claims
stretching back to 2000, 2003, or 2012.

Therefore, since Williams failed to exhaust her

administrative remedies, the Court will not consider allegations of discriminatory or retaliatory
conduct occurring before August 2016.30
B.

Title VII Hostile Work Environment
Under Title VII, it is unlawful for an employer:
[T]o discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin . . . or [ ]
to limit, segregate, or classify his employees or applicants for employment in any
way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because of
such individual’s race, color, religion, sex, or national origin.31

“Although Title VII does not explicitly mention hostile work environment, a victim of a racially
hostile work environment may nevertheless bring a cause of action under Title VII.”32

28

Dunmars, 2019 WL 3817958, at *3.

29

Id.

30
Although not impacting the Court’s reasoning here, Title VII also requires employees to bring
administrative complaints within 300 days of the alleged incident of discrimination or retaliation. 42 U.S.C.
§ 2000e-5(e).
31

42 U.S.C. § 2000e-2.

32

Ford v. West, 222 F.3d 767, 775 (10th Cir. 2000) (citations omitted).

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1.

There is Insufficient Evidence of Pervasive or Severe Conduct

To survive a summary judgment motion on a hostile work environment claim, “a plaintiff
must show that a rational jury could find that the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working environment.”33

“Severity and

pervasiveness are evaluated according to the totality of the circumstances.”34 Furthermore, the
evidence must demonstrate that Plaintiff was targeted because of her race.35 The Court must view
the environment both objectively and subjectively.36 “[A]bsent evidence that because of her race
Plaintiff . . . was subjected to a hostile work environment, evidence of general mistreatment of an
employee does not present an actionable claim under Title VII.”37 “Facially neutral abusive
conduct can support a finding of [racial] animus sufficient to sustain a hostile work environment
claim when that conduct is viewed in the context of other, overtly [racially]-discriminatory
conduct.”38
The Court concludes that the record contains insufficient evidence that Aeroflex’s
workplace was permeated with racial animus “severe or pervasive” enough to “alter the conditions
of [Williams’] employment and create an abusive working environment.”39 Williams points to no
specific action that directly reveals racial animus.

Rather, Williams subjectively interprets

33

Sandoval v. City of Boulder, 388 F.3d 1312, 1327 (10th Cir. 2004) (citation omitted).

34

Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir. 2005) (citations omitted).

35

Sandoval, 388 F.3d at 1327.

36

Morris v. City of Colo. Springs, 666 F.3d 654, 664 (10th Cir. 2012)

37

Palmer v. Kaiser Found. Hosps. Tech. Risk Off., 753 F. App’x 590, 594 (10th Cir. 2018).

38

Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 960 (10th Cir. 2012) (quoting O’Shea v. Yellow
Tech. Servs., Inc., 185 F.3d 1093, 1097 (10th Cir. 1999)) (some alterations omitted).
39

Sandoval, 388 F.3d at 1327 (citation omitted).

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Cromwell’s harsh—and sometimes rude—managerial style as being motivated by Williams’ race.
Cromwell frequently pointed out Williams’ mistakes, reprimanded her for violating the dress code,
commented on the smell of her hair, and made other rude statements. One time, Cromwell
compared Williams’ appearance to Richard Simmons—a white man. Notably, however, numerous
Aeroflex employees testified to Cromwell’s universal reputation for being harsh regardless of the
race of her subordinates. Cromwell treated racial minorities equally as bad as she treated whites.
Without further evidence of specific racial animus against Williams or other racial minorities, the
Court can only regard Cromwell’s race-neutral actions as poor managerial tactics.
Williams’ cites two of her past co-workers who testified that, in their opinion, Cromwell’s
actions toward Williams were motivated by race. But those witnesses did not testify as to any
words—written or spoken—or any actions on Cromwell’s part that objectively indicate she
targeted Williams because of her race. Absent an objective factual basis, the Court need not credit
witnesses’ subjective conclusions.40 As such, the Court concludes that Williams has failed to
establish that Defendants created a hostile work environment.
2.

Aeroflex Lacked Notice of Discrimination and Nevertheless Responded Reasonably

Even if Williams could establish a hostile work environment, her claim still fails. “To
survive summary judgment under Title VII, the record must support an inference of a racially
hostile work environment and a basis for employer liability.”41 “[E]mployers are not automatically
liable under Title VII for the conduct of employees that creates a hostile work environment.”42

40

Aramburu v. Boeing Co., 112 F.3d 1398, 1408–09, n.7 (10th Cir. 1997) (citing Panis v. Mission Hills Bank,
N.A., 60 F.3d 1486, 1491 (10th Cir. 1995)).
41

Ford, 222 F.3d at 775 (citation omitted).

42

Tademy v. Union Pac. Corp., 614 F.3d 1132, 1139 (10th Cir. 2008).

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Employers, however, can be found liable under a negligence theory, which means that “the
employer fails to remedy a hostile work environment it knew or should have known about.”43
There are two steps to consider when assessing negligence and a defendant’s response to
the harassment.44 The first step requires an inquiry into the defendant’s actual or constructive
notice of the discrimination.45 The parties disagree about Aeroflex’s notice. Williams argues that
her October 2016 email to Burgess constituted actual notice of Cromwell’s discrimination.
Defendants’ counter that Williams’ email lacked any indication of Title VII violations, only
generally alleging that Cromwell’s behavior was rude and harsh. Williams also points to her other
HR complaints from 2003 and 2012, alleging that those complaints put Aeroflex on either actual
or constructive notice of Cromwell’s discrimination. But once again the record merely reflects
that Aeroflex was aware of Cromwell’s harsh management style, not any allegations of racial
discrimination, retaliation, or prejudice. There is nothing in the record to support Williams’
allegations of Aeroflex’s actual or constructive notice of discrimination. As such, the Court
concludes that the first step in assessing the basis for Aeroflex’s liability for the hostile work
environment claim is not met.
Similarly, the second step of the employer liability analysis is not met. It requires the Court
to consider the adequacy, or reasonableness, of the defendant’s response to the racial hostility.46
The test is “whether the [employer’s] remedial and preventative action is reasonably calculated to

43

Id. (citation omitted).

44

Id. at 1147.

45

Id.

46

Id. at 1148.

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end the harassment.”47 “If the employer’s response ends the harassment by the employee in
question, we presume that the remedial action was sufficient.”48 If the response is ineffective, the
Court must “examine the timing of the employee’s complaint, the speed of the employer’s
response, and the gravity of the punishment relative to the alleged harassment.”49 In addition, if
there is repeat conduct, the Court should consider whether the employer “progressively stiffens its
discipline.”50
Here, the Court concludes that Aeroflex’s response to each of Williams’ complaints was
reasonable. In the instances where Aeroflex lacked specificity as to Cromwell’s behavior, it
opened investigations and sought to interview related parties. Williams failed to attend those
interviews multiple times. In other cases, Aeroflex met with Cromwell to discuss her managerial
style and coached her on gentler communication techniques and active listening skills. Aeroflex
interviewed Williams’ coworkers to corroborate her allegations, concluding that Cromwell treated
everyone in a similarly harsh manner. In particular, Burgess and Aeroflex’s HR department
responded reasonably to Williams’ October 2016 email. The record reflects that they conducted a
thorough investigation and took Williams’ allegations seriously. As a result, they offered Williams
multiple remedial options, and Williams ultimately decided to transfer to another supervisor within
her same department. As previously stated, Williams’ complaints lacked sufficient allegations to
put Aeroflex on notice of racial discrimination, but Aeroflex thoroughly investigated each

47

Id. (citation omitted).

48

Duncan v. Manager, Dep’t of Safety, City & Cty. of Denver, 397 F.3d 1300, 1310 (10th Cir. 2005) (citation

omitted).
49

Id.

50

Adler, 144 F.3d at 676.

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complaint within the scope of the corresponding allegations.

Given the totality of the

circumstances, Aeroflex’s responses to Williams’ complaints were adequate and reasonable.
The Court concludes that Williams has failed to carry her burden to prove that “a rational
jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and
insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment.”51 Because Williams has failed to show that she was
targeted based on her race, and because Aeroflex lacked notice of racial discrimination and
otherwise responded reasonably, the Court grants Defendants’ summary judgment on Williams’
hostile work environment claim.
C.

Title VII Race Discrimination
Williams has not presented direct evidence that Aeroflex discriminated against her based

on her race. When a plaintiff has no direct evidence of race discrimination, her claim is subject to
the McDonnell Douglas burden-shifting analysis.52 As part of the McDonnell Douglas analysis,
the plaintiff must first demonstrate a prima facie case of discrimination.53 Then the burden shifts
to the defendant to articulate a legitimate, nondiscriminatory reason for its decision.54 Finally, the
burden shifts back to the plaintiff to demonstrate that the defendant’s reason is pretextual.55

51

Sandoval, 388 F.3d at 1327 (citation omitted).

52

Timmons v. AGC Flat Glass N. Am., Inc., 2015 WL 6511552, at *6 (D. Kan. 2015) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1972)).
53
Id. (citing McDonnell Douglas, 411 U.S. at 802); see also Roberts v. Roadway Express, Inc., 149 F.3d
1098, 1103, n. 1 (10th Cir. 1998); Thomas v. Denny’s, Inc., 111 F.3d 1506, 1513 (10th Cir. 1997), cert. denied, 522
U.S. 1028 (1997).
54

Timmons, 2015 WL 6511552, at *6 (citing McDonnell Douglas, 411 U.S. at 802).

55

Id. (citing McDonnell Douglas, 411 U.S. at 804).

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1.

Prima Facie Case of Race Discrimination

To establish a prima facie case of race discrimination, a plaintiff must show that (1) she
belongs to a protected class, (2) she suffered an adverse employment action, and (3) the adverse
employment action occurred under circumstances giving rise to an inference of discrimination.56
Williams is African-American and the parties do not dispute that she belongs to a protected class.
The Court will thus consider whether Williams has established the second and third elements of a
prima facie case of discrimination.
An adverse employment action “must be materially adverse to the employee’s job status.”57
Courts focus on the “‘materiality of the challenged action and the perspective of a reasonable
person in the plaintiff’s position’ so as to ‘screen out trivial conduct while effectively capturing
those acts that are likely to dissuade employees from complaining . . . about discrimination.’”58 A
written warning, or reprimand, is an adverse employment action “only if it effects a significant
change in the plaintiff’s employment status.”59 A significant change in employment status
includes “hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.”60 Inconveniences or
annoyances that do not cause more than de minimis harm to a plaintiff’s job status are not

56

Luster v. Vilsack, 667 F.3d 1089, 1095 (10th Cir. 2011) (citation omitted).

57

Duncan, 397 F.3d at 1314.

58

Boese v. Ft. Hays State Univ., 814 F. Supp. 2d 1138, 1145 (D. Kan. 2011), aff’d 462 Fed. App’x 797 (10th
Cir. 2012) (citation omitted).
59

EEOC. v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007) (citation omitted).

60

Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir. 2007) (citation omitted).

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actionable adverse actions.61 Moreover, “increased tension and unpleasant relationships between
employees are not considered actionable adverse actions.”62
The Court concludes that Williams did not suffer an adverse employment action.
Cromwell issued Williams multiple disciplinary actions over the course of their 17-year working
relationship. The record does not reflect that any of those actions were baseless; to be sure, on
multiple occasions Aeroflex either reviewed the disciplinary actions or investigated Williams’
complaints, concluding that Cromwell disciplined Williams per company policy and
commensurate with Williams’ performance. During one investigation, Aeroflex hired a subjectmatter expert to opine on Williams’ performance. The expert—and ultimately the investigation—
concluded that Williams’ job performance was below average, and that Cromwell’s disciplinary
action was therefore justified.
More importantly, however, is that none of Cromwell’s disciplinary actions effected a
significant change in Williams’ employment. Williams was not fired, demoted, or reassigned
without her consent. She did not lose benefits. Williams argues that Cromwell’s attitude and
behavior embarrassed her, harmed her reputation, and caused her coworkers to view her less
favorably. But the law does not consider those effects significant to Williams’ employment. As
a result, Williams has failed to carry her burden to demonstrate a prima facie case of race
discrimination and the Court therefore grants Defendants’ motion for summary judgment as to this
claim.63

61

EEOC. v. C.R. Eng., Inc., 644 F.3d 1028, 1040 (10th Cir. 2011).

62

Henderson v. Int’l Union, 263 F. Supp. 2d 1245, 1284 (D. Kan. 2003) (citations omitted).

63

The Court considers Williams’ allegation of Aeroflex denying her tuition reimbursement because of her
race to be entirely without merit. The record indicates no direct evidence of such discrimination. Nor does it indicate
disparate treatment; employees of all races could receive tuition reimbursement so long as the coursework related to

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D.

Title VII Retaliation
Williams has not presented direct evidence that Aeroflex retaliated against her based on

her engagement in activity protected by Title VII. Just like race discrimination claims, absent
direct evidence of retaliation, Title VII retaliation claims are analyzed under the McDonnell
Douglas framework.64 The plaintiff must first demonstrate a prima facie case of retaliation.65
Then the burden shifts to the defendant to articulate a legitimate, nonretaliatory reason for its
decision.66 Finally, the burden shifts back to the plaintiff to demonstrate that the defendant’s
reason is pretextual.67
1.

Prima Facie Case of Race Retaliation

To establish a prima facie case of race retaliation, the plaintiff must show that (1) she
engaged in protected activity; (2) she suffered an adverse employment action; and (3) there is a
causal connection between her protected activity and the adverse employment action.68
“Opposition to an employer’s conduct is protected . . . only if it is opposition to a practice
made an unlawful employment practice by [Title VII].”69 Importantly, “Title VII does not prohibit
all distasteful practices by employers.”70 An employer can be “unconscionably rude and unfair”

the employee’s job duties. The record reflects that Aeroflex approved white employees’ reimbursement requests for
coursework in business—directly related to the employees’ job duties. Williams’ sociology and English courses, on
the hand, did not relate to her job duties. Without other evidence of discrimination, the Court cannot countenance this
argument.
64

Davis v. Unified Sch. Dist. 500, 750 F.3d 1168, 1170 (10th Cir. 2014) (citations omitted).

65

Id. (citing Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011)); see also Roberts, 149
F.3d at 1103, n. 1; Thomas, 111 F.3d at 1513.
66

Timmons, 2015 WL 6511552, at *6 (citing McDonnell Douglas, 411 U.S. at 802).

67

Id. (citing McDonnell Douglas, 411 U.S. at 804).

68

Estate of Bassatt v. Sch. Dist. No. 1, 775 F.3d 1233, 1238 (10th Cir. 2014) (citations omitted).

69

Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1188 (10th Cir. 2002) (alteration in original).

70

Id.

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to an employee without violating Title VII.71 “Although no magic words are required, to qualify
as protected opposition the employee must convey to the employer his or her concern that the
employer has engaged in a practice made unlawful by [Title VII].”72 Thus, an employee’s
complaints must refer to “race, religion, or national origin, or alleged discrimination or harassment
on any unlawful basis.”73
Williams argues that she engaged in protected activity by emailing Burgess in October
2016 about Cromwell’s rude behavior.74 The Court disagrees. Although Williams used the word
“harassed,” she did not mention race or racial discrimination in the email, nor did she mention any
other practice made unlawful by Title VII. Rather, her complaint reveals that she felt aggrieved
by Cromwell’s rude behavior, harsh management style, and repeated disciplinary actions. In the
ensuing investigation, Williams did not mention race or racial discrimination to anyone in HR.
Therefore, since Williams did not engage in a protected activity, none of Aeroflex’s subsequent
actions could be considered retaliatory.
However, even if the Court were to agree that Williams engaged in protected activity, she
nevertheless fails to carry her burden to show that she suffered an adverse employment action.
Similar to the Court’s analysis under Williams’ race discrimination claim, Williams fails to show
that any of Defendants’ actions rise to the level required by law. By definition, only Defendants’

71

Id.

72

Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008) (quotation omitted).

73
Faragalla v. Douglas Cty. Sch. Dist. RE 1, 411 F. App’x 140, 148 (10th Cir. 2011) (citing Petersen, 301
F.3d at 1188).
74

As stated above, the Court will not consider Williams’ HR complaints for retaliation due to her failure to
exhaust administrative remedies and the otherwise untimely nature of the KHRC filing. Regardless, none of those
complaints included references to “harassment” like Williams’ October 2016 email did, let alone allegations of racial
discrimination or prejudice.

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actions after Williams’ October 6, 2016 email could be considered retaliatory. Williams alleges
that after that date, Cromwell corrected some of Williams’ errors, commented that her attire
violated the company’s dress code, and commented on the smell of her hair. While brusque or
rude, those actions do not rise to the level of adverse employment action under Title VII. To
reiterate, Williams was not demoted or fired, and her pay and benefits were not altered. After the
investigation, Aeroflex offered to change Williams’ department or supervisor, but it did not
mandate this change. Williams’ accepted the offer to transfer supervisors. Overall, none of those
events constitute adverse employment actions under Title VII.
The Court concludes that Williams has failed to carry her burden to establish a prima facie
case of race retaliation. She cannot show that she engaged in a protected activity or that she
suffered an adverse employment action. Therefore, the Court grants Defendants’ motion for
summary judgment on this claim.
E.

Negligent Infliction of Emotional Distress
In addition to her Title VII claims, Williams brings a negligent infliction of emotional

distress claim against Cromwell. In Kansas, “[t]o succeed on a claim for negligent infliction of
emotional distress, a plaintiff must first establish that he or she has a qualifying physical injury
under Kansas law.”75 Additionally, “the qualifying physical injury must (1) directly result from
the emotional distress allegedly caused by the defendant’s negligence and (2) appear within a short
span of time after the emotional disturbance.”76 “Kansas courts have addressed various types of

75

Ware ex rel. Ware v. ANW Special Educ. Co-op. No. 603, 39 Kan. App. 2d 397, 180 P.3d 610, 613 (2008)
(citations omitted).
76

Id.

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symptoms when determining whether they may be characterized as physical injuries for purposes
of negligent infliction of emotional distress claims.”77
The record contains insufficient evidence for a jury to reasonably conclude that Williams
suffered a qualifying physical injury. Williams alleges that she suffered depression and weight
fluctuations as a result of Cromwell’s actions. She alleges no other physical injuries stemming
from Cromwell’s actions. Those symptoms do not meet the threshold for a qualifying physical
injury under Kansas law.78 As such, the Court grants summary judgment on this claim.
IV.

Conclusion

The Court concludes that Williams’ Title VII hostile work environment claim fails because
she has failed to show that she was targeted based on her race, and because Aeroflex lacked notice
of racial discrimination and otherwise responded reasonably. Furthermore, Williams has failed to
establish prima facie cases for her Title VII race discrimination and retaliation claims. Lastly,
Williams’ negligent infliction of emotional distress claim fails because the record does not reflect
that she suffered a qualifying physical injury under Kansas law.
IT IS THEREFORE ORDERED that Defendants Aeroflex Wichita, Inc. and Lori
Cromwell’s Motion for Summary Judgment (Doc. 69) is GRANTED.

77
Id. at 613–14 (citing Anderson v. Scheffler, 242 Kan. 857, 752 P.2d 667, 669 (1988) (holding shock,
emotional pain, nightmares, and depression are not compensable physical injuries when there is no actual physical
injury); Hopkins v. State, 237 Kan. 601, 702 P.2d 311, 319–20 (1985) (holding weight gain is not a compensable
physical injury)).
78

See Anderson, 752 P.2d at 669; see also Hopkins, 702 P.2d at 319–20.

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IT IS SO ORDERED.
Dated this 15th day of October, 2020.
This case is closed.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

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