Kyser v. D.J.F. Services, Inc.

Filing 43

OPINION AND ORDER by Magistrate Judge Kimberly E. West granting in part and denying in part 30 Motion for Summary Judgment. Accordingly, Defendant's Motion for Summary Judgment is hereby GRANTED, in part, in that Plaintiff's claim for retaliation is DISMISSED. However, the remainder of the Motion is hereby DENIED. (ndd, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
EDWON KYSER,

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Plaintiff,
v.
D.J.F. SERVICES, INC.,
a foreign for profit
corporation,
Defendant.

Case No. CIV-16-542-KEW

OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion for
Summary

Judgment

(Docket

Entry

#30).

Plaintiff

began

his

employment with Defendant in October of 2014 as a Floor Hand in an
oilfield crew.

Earl Poole (“Poole”) became Plaintiff’s supervisor

on the crew in approximately July of 2015.

Plaintiff alleges that

Poole began to sexually harass him about three weeks after Poole
became his supervisor.

Plaintiff testified in his deposition that

daily “filthy comments” were made by Poole directed to him.
comments

Plaintiff

recalled

consisted

of

Poole

(1)

The

telling

Plaintiff to “suck on Poole’s penis”; (2) identifying Plaintiff as
gay; (3) asking Plaintiff to hold his penis every time Poole went
to the bathroom; (4) walking up behind Plaintiff and putting his
hand between the back side of his legs, “pretty much [his] butt
crack”, and squeezed and said “Oh, baby”; (5) pulling down his
pants to his underwear, talking to Plaintiff and looking at him;
(6) grabbing Plaintiff’s derrick belt and pulling him to Poole; and

(7) texting Plaintiff on his cell phone and asking Plaintiff if he
was playing with himself and if he stayed home and masturbated on
a day Plaintiff had stayed home sick.
Plaintiff stated that he repeatedly told Poole to stop or quit
making the comments which he found offensive. Plaintiff recognized
in his testimony that “it’s the oilfield.
there, but I mean, in a joking way.”

They talk dirty out

But that “it was never like

that towards me. It was more aggressive towards me, like being the
butt of it and – you know, every time I turned around, I was
getting touched, and then him dropping his pants . . . .”
Plaintiff

told

the

owner

of

Defendant,

(“Flint”), that Poole was “riding him”.

Donald

J.

Flint

Plaintiff testified Flint

“cut me off and basically told me to start showing up to work more
on time and coming to work more.

But that was the problem, was I

didn’t want to be around Earl, you know.” Plaintiff also stated he
approached Flint about transferring to another job with Defendant
in the yard, but that Flint told him that Poole was thinking about
getting rid of Plaintiff anyway.

Plaintiff took this statement to

mean that his job was in Poole’s hands, and he “kind of felt like
I had nowhere to go.”
On September 15, 2015, Plaintiff arrived at work two hours
late and told Flint and Flint’s wife that Poole had been harassing
him and

that

he

was

going

to

try

and

get a

Plaintiff testified Flint responded, “Okay.”

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different

job.

Plaintiff alleges he

was constructively discharged as a result of the hostile work
environment created by Poole.
Flint

testified

that

his

company

did not

have

a formal

handbook or a policy to address sexual harassment of an employee.
On December 8, 2016, Plaintiff initiated this action against
Defendant asserting claims for (1) sexual harassment under Title
VII; (2) sexual harassment under the Oklahoma Anti-Discrimination
Act (“OADA”); (3) retaliation under Title VII; and (4) negligent
supervision.

Defendant filed the subject Motion contending that

(1) Plaintiff cannot prove discrimination occurred on the basis of
sex as required by Title VII; (2) the alleged conduct by Poole
constituted “male-on-male horseplay” making it not actionable under
Title VII; (3) the allegations fall short of creating a hostile
work environment arising out of same sex sexual harassment; and (4)
Plaintiff cannot establish a prima facie case for retaliatory
discharge.
Under Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment
as a matter of law."

Universal Money Centers v. A.T. & T., 22 F.3d

1527, 1529 (10th Cir.), cert. denied, 513 U.S. 1052, 115 S.Ct. 655,
130 L.Ed.2d 558 (1994).

The moving party bears the initial burden

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of showing that there is an absence of any issues of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 255354, 91 L.Ed.2d 265 (1986).

A genuine issue of material fact exists

when "there is sufficient evidence favoring the nonmoving party for
a jury to return a verdict for that party."

Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed 2d
202 (1986).

In determining whether a genuine issue of a material

fact exists, the evidence is to be taken in the light most
favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398
U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).

Once

the moving party has met its burden, the opposing party must come
forward with specific evidence, not mere allegations or denials of
the pleadings, which demonstrates that there is a genuine issue for
trial.

Applied Genetics v. Fist Affiliated Securities, 912 F.2d

1238, 1241 (10th Cir. 1990); Posey v. Skyline Corp., 702 F.2d 102,
105 (7th Cir. 1983).
Sexual

harassment

in

the

workplace

discrimination prohibited by Title VII.

is

a

form

of

sex

Adler v. Wal–Mart Stores,

Inc., 144 F.3d 664, 672 (10th Cir. 1998).

Direct liability for

harassment can be demonstrated “if the employer was negligent with
respect to the offensive behavior.” Vance v. Ball State Univ., –––
U.S. ––––, 133 S.Ct. 2434, 2441, 186 L.Ed.2d 565 (2013).

If the

harasser is a supervisor rather than merely a co-worker, however,
the employer may be vicariously liable for the conduct, depending

4

on

the

circumstances.

Id.

If

the

supervisor's

harassment

culminates in a “tangible employment action,” the employer is
strictly

liable

for

sex

discrimination,

with

no

defense.

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762–63, 118 S.Ct.
2257, 141 L.Ed.2d 633 (1998).

If no tangible employment action

occurs, the employer may still be vicariously liable for the
supervisor's harassment if the plaintiff proves the harassment was
severe or pervasive or that it altered the terms or conditions of
employment and created an abusive working environment.

Morris v.

City of Colorado Springs, 666 F.3d 654, 663 (10th Cir. 2012).

An

employer may also avoid liability by establishing the affirmative
defense espoused in Faragher v. City of Boca Raton, 524 U.S. 775,
807 (1998) and Ellerth, 524 U.S. at 765.
A “supervisor” under Title VII is an employee whom “the
employer has empowered . . . to take tangible employment actions
against the victim, i.e., to effect a ‘significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.’”
S.Ct. at 2443 (quoting Ellerth, 524 U.S. at 761).

Vance, 133
An employee,

however, need not be empowered to take such tangible employment
actions directly to qualify as a supervisor.

A manager who works

closely with his or her subordinates and who has the power to
recommend or otherwise substantially influence tangible employment

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actions,

and

who

can

thus

indirectly

effectuate

qualifies as a “supervisor” under Title VII.

them,

also

Id. at 2452.

While Flint appears to call into question whether Poole acted
as Plaintiff’s supervisor, Plaintiff testified that Flint told him
that Poole wanted to get rid of Plaintiff which indicated to
Plaintiff

that

Poole

could

affect

his

employment.

Clearly,

Plaintiff took his lead from Poole while working on the oilfield
crew

and

Flint

testified

Poole

was

unhappy

with

Plaintiff’s

attendance which would indicate that Poole was in communication
with Flint and could apparently affect his employment terms by his
report.

As a result, for the purpose of this Motion, Poole is

considered Plaintiff’s supervisor.
Defendant first considers the issue of same-sex harassment and
whether it is actionable under Title VII.

The United States

Supreme Court clearly found that Title VII did not distinguish
between

opposite

sex

and

same-sex

actions

in

defining

discrimination “because of . . . sex” as illegal, making harassment
under either scenario actionable under Title VII.

Oncale v.

Sundowner Offshore Services, Inc., 523 U.S. 75, 79-80 (1998).
Defendant contends the Oncale court required a showing of
“explicit or implicit proposals of sexual activity”, that the
harasser is homosexual, that the harasser is motivated by a general
hostility
workplace,

toward
or

the

presence

evidence

the

of

a

harasser

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specific
treats

gender
men

and

in

the

women

differently in the workplace.
statements too narrowly.

Defendant reads the Supreme Court’s

The court merely provided examples of

avenues for proving “discrimination because of . . . sex.”

In the

end, the conduct “need not be motivated by sexual desire” to
constitute sex discrimination.

Id. at 80.

Rather, Title VII

“forbids only behavior so objectively offensive as to alter the
‘conditions’ of the victim’s employment.”

The conduct must be

sufficiently severe or pervasive so as to create an environment
that a reasonable person would find hostile or abusive.

Id. at 81.

Under the facts presented by this case in a light most
favorable to Plaintiff, Poole created an objectively offensive
atmosphere in the workplace which was so severe, as evidenced by
sexual touching,

and

so

pervasive,

as

it

occurred

every

day

repeatedly, so as to constitute actionable sexual harassment under
Title VII. Defendant is unable to avail itself of the Faragher and
Ellerth defense because it did not have a policy for addressing
sexual harassment.
Moreover, no reasonably objective person could find Poole’s
conduct

to

represent

“ordinary

horseplay.”

Instead,

Poole

intimidation

against

Plaintiff

intolerable workplace.

socializing”

appears

to

which

have

or

“male-on-male

employed

created

an

sexual

arguable

Defendant also contends the allegations in

this case are not as severe as in other case authority to which it
cites.

This Court would be remiss to fail to recognize a flexible

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societal standard on the acceptability of sexual harassment of
employees by persons of power - whether they be of the same or
different gender as the victim - and the level of tolerance for
such conduct.

The viewpoint of the “reasonable person” is not

static with time and Poole’s conduct in this case is certainly
sufficiently severe to warrant consideration by a jury. Even in an
arguably more rough environment such as the oilfield, conduct can
become so offensive so as to be considered objectively unreasonable
- especially when the conduct includes sexual touching such as
alleged in this case.
Defendant also seeks summary judgment on Plaintiff’s claim for
retaliatory

discharge.

To

establish

a

prima

facie

case

of

retaliation, a plaintiff must demonstrate (1) that he engaged in
protected opposition to discrimination, (2) that a reasonable
employee would have found the challenged action materially adverse,
and (3) that a causal connection existed between the protected
activity and the materially adverse action.

Argo v. Blue Cross &

Blue Shield of Kansas, Inc., 452 F.3d 1193, 1202 (10th Cir. 2006)
The evidence indicates Plaintiff never informed Flint of the
specific or even general allegations of sexual harassment by Poole.
As a result, the required causal link between Plaintiff’s activity
and his constructive discharge has not been established to maintain
a claim for retaliation under Title VII.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary

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Judgment (Docket Entry #30) is hereby GRANTED, in part, in that
Plaintiff’s claim for retaliation is DISMISSED.

However, the

remainder of the Motion is hereby DENIED.
IT IS SO ORDERED this 27th day of November, 2017.

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