Vanskyock v. Saint-Gobain Containers, Inc.

Filing 48

OPINION AND ORDER by Judge Claire V Eagan ; denying 34 Motion for Summary Judgment (Re: 2 Complaint ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

DEBRA D. VANSKYOCK,

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Plaintiff,
v.
SAINT-GOBAIN CONTAINERS, INC.,
Defendant.

Case No. 11-CV-0388-CVE-TLW

OPINION AND ORDER

Now before the Court is Defendant Saint-Gobain Containers, Inc.’s Motion for Summary
Judgment (Dkt. # 34). Defendant Saint-Gobain Containers, Inc. (SGCI) seeks summary judgment
on plaintiff’s claim for sexual harassment in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000 et seq., (Title VII) and plaintiff’s state law claim for negligent supervision.
Plaintiff responds that there are factual disputes that preclude summary judgment.
I.
Plaintiff has been an employee of SGCI since May 2001. In May 2008, plaintiff transferred
from an SGCI plant in Indiana to a plant in Sapulpa, Oklahoma, where she still works today.
Plaintiff is a journeyman machine operator, and she runs a machine that makes beer bottles. Due
to the high temperatures needed to melt the glass for the beer bottles, the area where plaintiff works
is extremely hot and loud. The employees have access to a break room that is approximately 8 feet
by 8 feet and contains one table, some chairs, and a bulletin board. Since she transferred to the
Sapulpa plant in 2008, plaintiff’s supervisors have included Luke Nelson (Nelson), Richard
Anderson, Larry Andrews (Andrews), Don Smith (Smith), Tony Roe, and Robert Thompson. The

production manager during the relevant time period was Jeff Balthis (Balthis) and the plant manager
was Steve Cedoz. The human resources manager was Charles Richardson (Richardson) until
January 2010, at which point the position was held by J.T. Charron (Charron).
Plaintiff states that, since shortly after she started working at the Sapulpa plant, she has been
subjected to a series of lewd and sexist comments from her co-workers, and was the target of
sexually explicit comments written on materials and photographs in the break room. Plaintiff kept
a log of these comments and incidents in a notebook. However, she states that the notebook was
stolen from her bag while she was working sometime in July 2010. Before plaintiff recorded
incidents in the notebook, she often wrote notes of their occurrence on scraps of paper. Plaintiff was
able to locate many of these scraps and has submitted them as part of the summary judgment record.
Plaintiff also saved several of the sexually explicit notes and photographs that were left in the break
room and has submitted those as part of the summary judgment record.
Plaintiff states that, in 2008, a co-worker told her she “had a nice ass” and asked whether her
breasts were real. She also states that Balthis told her that her job was not a job for a woman and
that she was a distraction to his men, while other co-workers stated that a woman’s place was in the
kitchen. Plaintiff states that she was subjected to a series of other lewd and suggestive comments
in late 2008 and early 2009, and at some point during this period she wrote herself a note that she
was “humiliated in Break room [by] smart alec [sic] sexual comments.” Dkt. # 42-2 at 2. Plaintiff
testified that she informed supervisor Nelson that her co-workers were “being really rude” and
requested that he speak to them about it. Dkt. # 42-1 at 14. Plaintiff is unaware of whether Nelson
followed up on her complaint.

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Plaintiff testified that, on February 23, 2009, she found a lewd cartoon in the break room
with her name written on it. Plaintiff stated that she threw the cartoon away and did not tell anyone
about it. Plaintiff’s calendar for February 2009 shows a note written under “February 23”, which
states “cartoon on table woman sucking man’s dick says Deb swallows too.” Dkt. # 34-3 at 3.
Plaintiff’s calendar for March 2009 shows a note written under “March 12” that says “more rude
comments on magazine.” Id. at 4. Plaintiff also submitted a note she wrote to herself that states
“Aug 09 cartoon drawed [sic] in break room Larry Andrews me Jerry Smith. All having sex.” In
his deposition, Andrews admitted that plaintiff told him about this cartoon a few weeks or days after
she found it. Dkt. # 34-14 at 10.
In September 2009, plaintiff states that co-worker Elton Dillon told her “I know why you like
Jerry . . . so well, because his bald head and curly hair remind you of when you are sucking Larry’s
dick.” Dkt. # 34-6 at 15. Plaintiff states that this comment was then made to other co-workers, and
many of them, including union vice president Tim Millgate, continued to tease her about it for a few
weeks. Andrews stated in his deposition that plaintiff told him about this incident. Dkt. # 34-14 at
11. Plaintiff testified that she also told Smith, her supervisor at the time, about Dillon’s comment
and the continuing teasing. Plaintiff states that she “was very upset and crying . . . and [Smith] told
me he would talk to the guys.” Dkt. # 34-1 at 13. Plaintiff does not believe Smith took any action.
Smith testified that he did not remember plaintiff complaining to him at this time. Dkt. # 34-13 at
18; Dkt. # 42-3 at 14. Plaintiff also testified that she complained to human resources manager
Richardson about Dillon’s comment soon after it was made. Dkt. # 34-1 at 13. Richardson denies
that plaintiff ever complained to him about sexual harassment. Dkt. # 34-19 at 2. Plaintiff
additionally testified that she filed a grievance with the union in the fall of 2009 regarding the

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inappropriate comments and drawings. Specifically, plaintiff stated that she told her union
representative about the comments, but that the union representative left the company and the new
union vice president told her that they never received the grievance. Dkt. # 34-2 at 1. Union
representative Wayne Wilson (Wilson) testified that “there is a good possibility” that plaintiff filed
a union grievance regarding sexual harassment around this time and that it “sounds familiar.” Dkt.
# 34-21 at 10; Dkt. # 42-11 at 10. Wilson stated that he believes he would have taken the grievance
directly to Richardson in human resources. Dkt. # 42-11 at 8, 10. Wilson also testified that plaintiff
had come to him multiple times to complain “of the issues that have been going on.” Id. at 15.
Plaintiff testified that, during this time period, she was regularly called a “fucking bitch” by
two of her co-workers and was repeatedly shoved and/or slapped by one of them. Plaintiff states
that she complained to Smith about this behavior “several times,” but she does not know if Smith
took any action. Dkt. # 34-1 at 18.
Plaintiff states that, between the fall of 2009 and the summer of 2010, she found at least eight
magazines or cartoons depicting sexually explicit material, many of which included handwritten
comments. Plaintiff’s calendar shows a note under October 5, 2009 that states “drawing in B.R.”
Dkt. # 34-3 at 11. Plaintiff does not recall what the drawing depicted but stated that “there have
been many, many drawings” and that she did not write herself a note every time she saw a drawing.
Dkt. # 34-1 at 12. Plaintiff has a specific memory and/or record of seven inappropriate pictures or
photographs being left in the break room between May 2010 and July 2010, including: a magazine
photograph found on May 31, 2010; the cover of a Maxim magazine depicting a woman in
underwear with handwritten comments such as “I want to lick you Larry” and “Deb” written
between the breasts; a copy of an advertisement depicting a woman in a sports bra and shorts riding

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a bike with the comment “wanna be my bike” handwritten on it; a picture from a Maxim magazine
of a woman in her underwear with “Debbie” handwritten on one arm, “I want to suck you”
handwritten on the other arm, “Lick here Larry Joe” written on one thigh, and “This side too” on the
other thigh with an arrow pointing towards the vagina; an article from a magazine called
“ToplessTech” depicting six photographs of a topless woman; and a cartoon from a magazine
showing a couple engaged in a sex act. Plaintiff removed and saved five of these items, copies of
which were submitted as part of the summary judgment record. Dkt. # 42-12 through Dkt. # 42-20.
Plaintiff states that, on June 3, 2010, she found a drawing of three stick figures having sex, one of
which was identified as her. Plaintiff wrote a note to herself recounting the drawing with the
notation “these people are sick!!!” Dkt. # 34-5 at 17.
On June 10, 2010, plaintiff filed a grievance with the union, which stated that she had been
discriminated against “numerous times” on the basis of “sex, handicap, and disability.” Dkt. # 34-3
at 20. The grievance form states that plaintiff has complaints of “other discrimination” that she
would like to discuss. Id. at 18. Smith acknowledged that he saw the grievance and signed it, but
that he did not follow up on plaintiff’s claim of sexual discrimination. Dkt. # 42-3 at 23. Balthis
also acknowledged that he signed the grievance and stated that he did not follow up with plaintiff
on her sexual discrimination claim. Dkt. # 42-4 at 24.
On June 22, 2010, plaintiff wrote herself a note that, when she returned from vacation, she
found a picture from Maxim magazine with the handwritten note “Damn the Bitch is gone now who
can I Fuck.” Dkt. # 34-6 at 10. On June 30, 2010, plaintiff wrote a note that she found another
picture of a girl with the handwritten notation “Larry Joe’s dick sucking bitch.” Dkt. # 34-5 at 19.

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Plaintiff states that, in early July 2010, she found pornographic magazines in the break room,
at which point she put the magazines into a plastic bag along with a note and left them on Balthis’
desk. Dkt. # 34-2 at 13. The note, a copy of which was submitted with the summary judgment
record, states:
This is the last time I will be embarrassed, humilated [sic] or
threatened by verbal harassment, sexual drawings, cartoons and
explicit magazines with and without clothes and with and without my
name plastered on them. I have gone home for the last time - upset crying - frustrated. I have tried to correct this problem thru the chain
of command. But it only continues and keeps getting worse. . . . I
will be taking this issue outside the plant. I cannot work under these
conditions any longer.
Dkt. # 42-28 at 1. Balthis testified that he remembers finding the bag of magazines, opening it, and
throwing it away, but he states that he did not see the note from plaintiff. Dkt. # 34-10 at 9-10.
Charron testified that plaintiff also brought the magazines to his attention in early July 2010. Dkt.
# 34-8 at 8. Plaintiff testified that she repeatedly informed Andrews about the inappropriate
comments and pictures. Dkt. # 42-1 at 13. Andrews testified that he knew about the magazines, but
did not remember whether plaintiff had personally brought them to his attention. Dkt. # 42-5 at 1013. Andrews further testified that he heard about various inappropriate incidents involving plaintiff,
but that he never took any action or reported anything to the human resources manager. Dkt. # 42-5
at 16, 21.
On July 15, 2010, plaintiff filled out an intake questionnaire with the Oklahoma Human
Rights Commission, in which she stated that she was being discriminated against based on race and
sex and that, since May 2008, she had been subject to “sexual comments/harass [sic] rude sexual
cartoons with my name on them, vulgar pornography magazines spread out in the break room.” Dkt.
# 34-4 at 17, Dkt. # 34-5 at 1-2.

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Smith testified that he was shown one of the inappropriate magazine pictures by Charron in
mid-July 2010, and that Smith promptly held a sexual harassment training for many of the
employees on his shift using materials he downloaded from the Equal Employment Opportunity
Commission (EEOC) website. Dkt. # 42-3 at 19-21. Smith did not confer with defendant or human
resources before doing the training and he does not recall if defendant ever conducted an official
training. Id.
On October 6, 2010, plaintiff filed a charge of discrimination with the Oklahoma Human
Rights Commission and with the EEOC, which stated that she had been subject to sexual harassment
since 2008. Dkt. # 34-4 at 14. On December 15, 2010, plaintiff again brought the harassment to the
attention of Cedoz and Charron. Dkt. # 34-2 at 10. According to his notes, Charron asked plaintiff
if the harassment had continued after she had brought it to his attention in July and filed the EEOC
complaint, and plaintiff stated that it had stopped. Dkt. # 34-16 at 8. According to his notes and
testimony, Charron conducted an investigation of the harassment during which he interviewed three
people out of the sixteen people on plaintiff’s shift.
Plaintiff filed her complaint on June 21, 2011 alleging claims of sexual harassment, gender
discrimination, retaliation, and negligent supervision.

Dkt. # 2.

The claims for gender

discrimination and retaliation were voluntarily dismissed on March 14, 2012. Dkt. # 33. Plaintiff
states that the alleged harassment has caused her to suffer from stomach problems, insomnia,
migraines, chest pains, and acid reflux. Dkt. # 42 at 19. Plaintiff has also stated that the alleged
harassment has caused her a large amount of stress and nervousness, resulting in vomiting and
crying on an almost daily basis. Id. Defendant has moved for summary judgment on plaintiff’s
sexual harassment and negligent supervision claims.

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II.
Summary judgment pursuant to Fed. R. Civ. P. 56 is appropriate where there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp.
v. Catrett, 477 U.S. 317, 322–23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986);
Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). The plain language of Rule 56(a) mandates
the entry of summary judgment “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
also Celotex, 477 U.S. at 317. “Summary judgment procedure is properly regarded not as a
disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which
are designed ‘to secure the just, speedy and inexpensive determination of every action.’” Id. at 327.
“When the moving party has carried its burden under Rule 56[a], its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts. . . . Where the
record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there
is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986) (citations omitted). “The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the [trier of fact] could
reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the Court
is “whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Id. at 250. In its review,
the Court construes the record in the light most favorable to the party opposing summary judgment.
Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998).

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III.
A.

Title VII Sexual Harassment Claim
Defendant argues that it is entitled to summary judgment on plaintiff’s Title VII claim for

sexual harassment because plaintiff has failed to establish that the alleged harassment was
sufficiently severe or pervasive. Defendant also argues that it is not liable for any alleged
harassment because the undisputed facts show that it did not have knowledge of the co-workers’
behavior. Plaintiff responds that the alleged harassment was sufficiently severe or pervasive to
support a claim under Title VII and that there are disputed issues of fact as to when defendant had
knowledge of the alleged harassment.
Title VII prohibits an employer from discriminating against an individual because of an
individual’s sex, and unlawful discrimination may take the form of a hostile work environment. 42
U.S.C. § 2000e-2(a)(1); Meritor Savings Bank, FSM v. Vinson, 477 U.S. 57, 65 (1986). To prevail
on a sexual harassment claim under a hostile work environment theory, a plaintiff must prove four
elements: “(1) she is a member of a protected group; (2) she was subject to unwelcome harassment;
(3) the harassment was based on sex; and (4) [due to the harassment’s severity or pervasiveness],
the harassment altered a term, condition, or privilege of the plaintiff’s employment and created an
abusive working environment.” Dick v. Phone Directories Co., Inc., 397 F.3d 1256, 1263 (10th Cir.
2005) (quoting Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 797-98 (10th Cir. 1997)).
Defendant does not contest, for purposes of summary judgment, that plaintiff is a member of a
protected group, that she was subject to unwelcome harassment, or that the harassment was based

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on sex. Defendant argues that plaintiff cannot satisfy the fourth element of a sexual harassment
claim because the harassment was not severe or pervasive.1
The Tenth Circuit has established that the severe and pervasive nature of alleged sexual
harassment must be established under objective and subjective standards. Harrison v. Eddy Potash,
Inc., 248 F.3d 1014, 1023 (10th Cir. 2001). Concerning the subjective aspect of a hostile work
environment, the victim must show that she “subjectively perceive[d] th[at] environment to be
abusive.” Id. The objective component of a hostile work environment claim requires a plaintiff to
present evidence that a “reasonable person” would find the same harassment so severe and pervasive
that the workplace is objectively hostile or abusive. The Tenth Circuit has stated:
Title VII’s prohibition of harassment on the basis of sex forbids only
behavior “so objectively offensive as to alter the ‘conditions’ of the
victim's employment.” [Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 81 (1998)]. Put otherwise, “conduct that is not severe
or pervasive enough to create an objectively hostile or abusive work
environment-an environment that a reasonable person would find
hostile or abusive-is beyond Title VII’s purview.” Id. Thus, the
Supreme Court made clear that juries ought not find prohibited
harassment merely based on ordinary socializing, such as intersexual
flirtation. Id. Instead, the jury is to judge the objective severity of
the harassment from the perspective of a reasonable person in the
plaintiff’s position, considering all the circumstances.
Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007). The Supreme Court has provided
several non-exclusive factors that district courts should consider to determine if alleged sexual

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Defendant also argues that the two comments made to plaintiff by Balthis in 2008 regarding
women in the workforce are time barred. However, “[r]ecovery on a Title VII hostile work
environment claim includes acts taken outside the statutory time period because the entire
hostile work environment encompasses a single unlawful employment practice.” Ford v.
Donley, No. CIV-10-181-C, 2011 WL 3177014, at *7 (W.D. Okla. July 27, 2011); see also
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117-18 (2002); Boyer v. Cordant
Techs., Inc., 316 F.3d 1137, 1140 (10th Cir. 2003).
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harassment is severe and pervasive: “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.” Harris v. Forklift Systems, Inc.,
510 U.S. 17, 23 (1993). Any psychological harm suffered by the victim is also relevant, but this is
simply another non-dispositive factor for a court to consider. Id. Finally, the Tenth Circuit has
noted that “the severity and pervasiveness evaluation is particularly unsuited for summary judgment
because it is quintessentially a question of fact.” O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d
1093, 1098 (10th Cir. 1999) (internal quotations omitted).
The evidence and inferences viewed in favor of plaintiff show that between approximately
May 2008 and October 2010, she was subject to a series of lewd and sexist comments and was
exposed to more than a dozen sexually suggestive or explicit cartoons or magazines, many of which
had her name written on them and alluded to her having sex with other employees. Defendant does
not dispute that plaintiff has alleged that she subjectively believed the work environment to be
abusive. Dkt. # 41 at 23. Instead, defendant argues that a reasonable person would not find the
conduct described by plaintiff to be severe and pervasive. Defendant relies heavily on the concept
that plaintiff “works in a blue collar, predominately male, factory setting, and the conduct in
question should be evaluated in that context.” Id. at 23. Defendant is correct that the Tenth Circuit
has stated that a court must examine the work environment of the particular plaintiff and be aware
that “profanity and vulgarity are not perceived as hostile or abusive” in certain workplaces, but
rather that in certain settings “indelicate forms of expression are accepted or endured as normal
human behavior.” Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1537 (10th Cir. 1995). However,
this does not give an individual working in a factory carte blanche to make repeated deliberate

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sexually explicit comments specifically targeted at a particular employee. The harassment alleged
by plaintiff goes far beyond “ordinary socializing,” “intersexual flirtation,” or “indelicate forms of
expression.” Having considered the evidence submitted by the parties, the Court finds that a rational
jury could find that a work environment in which an employee is subject to repeated jeers about her
sexual activity and exposed to multiple sexually explicit pictures or cartoons, many of which refer
to her specifically, is objectively hostile.
Defendant next argues that, even if the conduct were severe and pervasive, defendant cannot
be held liable for the conduct of its employees because it did not have actual knowledge of the
harassment and that, once it had actual knowledge, it took prompt and adequate action to curtail it.
“In addition to establishing the hostile work environment elements, the plaintiff must also identify
a basis for holding the employer liable under Title VII.” Chapman v. Carmike Cinemas, 307 Fed.
Appx. 164, 168 (10th Cir. 2009)(unpublished).2 The Tenth Circuit has recognized three bases for
holding an employer liable for a hostile work environment:
(1) the conduct violating Title VII occurred within the transgressor’s
scope of employment; (2) if the employer knew, or should have
known about, the violation and failed to respond in a reasonable
manner; or (3) if the transgressor acted with apparent authority or
was aided in violating the statute by virtue of their [sic] agency
relationship with the employer.
Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1269-70 (10th Cir. 1998). Plaintiff
relies on the second basis, that defendant failed to remedy a situation about which it knew or should
have known. The focus in this inquiry “is not on whether the employer is liable for the bad acts of
others, but whether the employer itself is responsible for failing to intervene.” Chapman, 307 Fed.

2

Unpublished decisions are not precedential, but may be cited for their persuasive value. See
Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
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Appx. at 171. In this context, “courts must make two inquiries: first, into the employer’s actual or
constructive knowledge of harassment, and second, into the adequacy of the employer’s remedial
and preventative responses to any actually or constructively known harassment.” Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 673 (10th Cir. 1998). An employer is obligated to respond only to
harassment of which it actually knew or, in the exercise of reasonable care, should have known. Id.
Once harassment is reported to a supervisor, the employer’s “obligation to respond adequately and
promptly [is] triggered.” Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1075 (10th Cir. 1998).
Defendant argues that, when the harassment was reported to Charron in July 2010, defendant
acted promptly and adequately in conducting an investigation and holding a sexual harassment
training. However, defendant dismisses plaintiff’s testimony that she informed supervisors and
union representatives of the harassment at least seven times prior to July 2010, the first time in 2008
when she complained to Nelson that her co-workers were making inappropriate comments.
Andrews and Wilson even admit that they were aware of allegations of harassment as early as
September 2009. The Court has reviewed the evidence submitted by the parties and finds that there
is a genuine dispute as to when defendant was sufficiently put on notice of the alleged harassment.
Viewing the evidence in the light most favorable to plaintiff, the Court finds that, at a minimum, the
evidence provides a reasonable basis for the parties to dispute the date when defendant knew of the
harassment, and the finder of fact should decide this issue. Due to the genuine disputes as to
material fact, defendant’s motion for summary judgment on the Title VII claim is denied.
B.

Negligent Supervision
Defendant argues that plaintiff’s state law claim for negligent supervision must fail because

“there is no evidence to support that SGCI knew or should have known that any of its employees

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allegedly had a propensity to allegedly create a hostile working environment.” Dkt. # 41 at 29.
Under Oklahoma law, an employer may be held liable for negligent supervision “if-at the critical
time of the tortious incident-, the employer had reason to believe that the person would create an
undue risk of harm to others. Employers are held liable for their prior knowledge of the servant’s
propensity to commit the very harm for which damages are sought.” Escue v. N. Okla. Coll., 450
F.3d 1146, 1156 (10th Cir. 2006) (internal quotations omitted). As noted above, there is a disputed
issue of fact regarding when defendant was informed of the behavior of plaintiff’s co-workers.
Thus, there is a disputed issue of fact as to when defendant had reason to believe that one of its
employees would create an undue risk of harm to others. Consequently, the Court cannot find as
a matter of law that defendant cannot be liable for the employees’ actions. Summary judgment on
this claim must be denied.
IT IS THEREFORE ORDERED that Defendant Saint-Gobain Containers, Inc.’s Motion
for Summary Judgment (Dkt. # 34) is denied.
DATED this 23rd day of April, 2012.

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