Payne v. Great Plains Coca-Cola Bottling Company
Filing
76
OPINION AND ORDER by Judge Claire V Eagan ; granting 53 Motion for Summary Judgment (Re: 21 Amended Complaint, 61 Response in Opposition to Motion ) (djh, Dpty Clk)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
SAMANTHA PAYNE,
Plaintiff,
v.
GREAT PLAINS COCA-COLA BOTTLING
COMPANY, an Oklahoma for profit business,
Defendant.
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Case No. 17-CV-0578-CVE-JFJ
OPINION AND ORDER
Now before the Court is defendant Great Plains Coca-Cola Bottling Company (GPCCBC)’s
motion for summary judgment and brief in support (Dkt. # 53). On January 12, 2018, plaintiff
Samantha Payne filed an amended complaint (Dkt. # 21), asserting four claims against GPCCBC
only under Title VII of the Civil Rights Act of 1964. On March 13, 2018, the Court granted
defendant’s motion to dismiss the claims for sex discrimination based on the plant manager’s
conduct (count one) and retaliation (count three), but denied the motion as to the claims for hostile
work environment (count two) and sex discrimination in plaintiff’s termination (count four). Dkt.
# 26, at 8. Thereafter, defendant moved for summary judgment on the two remaining claims (Dkt.
# 53). In response, plaintiff voluntarily dismissed her claim for sex discrimination in her termination
(count four). Dkt. # 61, at 6. Accordingly, plaintiff’s claim for hostile work environment (count
two) is the only claim remaining in this case.1 Plaintiff alleges in count two that her GPCCBC plant
1
In her response to defendant’s motion for summary judgment (Dkt. # 61), plaintiff alleges
for the first time a claim of quid pro quo sexual harassment based on the plant manager’s
conduct. Id. at 17-21. However, neither plaintiff’s initial complaint nor her amended
complaint asserts a claim for quo pro quo sexual harassment. See Dkt. ## 2-1, 21.
Moreover, plaintiff has neither requested leave of Court nor obtained defendant’s written
supervisor, Rick Randleman, subjected to her to inappropriate comments and touching that were
unwelcome and were severe and pervasive enough to alter the conditions of her employment.
I.
In its motion for summary judgment, defendant lists twenty-six allegedly undisputed material
facts for purposes of summary judgment on plaintiff’s claim for hostile work environment.2 Dkt.
# 53, at 5-11, ¶¶ 1-26. In her response to defendant’s motion, plaintiff disputes only one of
defendant’s twenty-six allegedly undisputed material facts. Dkt. # 61, at 2-8, ¶¶ 1-26. Therefore,
the following material facts are undisputed for purposes of summary judgment on plaintiff’s claim
for hostile work environment:
Plaintiff began working for GPCCBC at its Okmulgee, Oklahoma plant in August 2012.
When plaintiff started with GPCCBC she was a warehouse tech 2. In January 2015, plaintiff became
an inventory control supervisor. Plaintiff reported to Brian Caldwell during the last three years of
her employment with GPCCBC. Throughout plaintiff’s employment with GPCCBC until August
2016, Randleman was the plant manager of the Okmulgee GPCCBC plant.
consent to amend her complaint for a second time. See FED. R. CIV. P. 15(a)(2). Therefore,
the Court rejects plaintiff’s attempt to assert a new claim through her response to the motion
for summary judgment. Accordingly, the Court does not address the factual allegations and
legal arguments raised in plaintiff’s response to the extent they relate exclusively to a claim
for quid pro quo sexual harassment.
2
Defendant also lists twenty-one allegedly undisputed material facts for purposes of summary
judgment on plaintiff’s claim for sex discrimination in her termination (count four). Dkt. #
53, at 11-14, ¶¶ 27-47. Because plaintiff has voluntarily dismissed her claim for sex
discrimination in her termination, the Court does not address those twenty-one allegedly
undisputed facts, as they are immaterial for purposes of summary judgment on plaintiff’s
claim for hostile work environment.
2
GPCCBC has a harassment/discrimination policy contained in the associate information
handbook, which plaintiff acknowledged receiving on August 12, 2012. Dkt. ## 53, at 14, 61, at 8.
The harassment/discrimination policy specifies:
GPCC[BC] is committed to providing a work environment free of harassment. . . . In
keeping with this commitment, the company maintains a strict policy prohibiting harassment
in any form . . . . Harassing behaviors may include, but are not limited to: . . . derogatory
comments, unwelcome jokes, teasing, sexual advances or similar verbal or physical conduct.
Dkt. ## 53, at 14, 61, at 8-9. The policy states that: “Any associate who believes they [sic] have
been harassed . . . by another associate, [or] supervisor . . . should promptly report the facts of the
incident(s) and the name(s) of the individual(s) involved to a member of management or the Human
Resources representative in [the] area.” Dkt. ## 53, at 14, 61, at 9. The policy states that: “All
associates are OBLIGATED to bring issues of harassment to the attention of management
immediately.” Dkt. ## 53, at 14, 61, at 9. In the policy, discharge of the offending party is one
potential sanction:
“The Company will promptly investigate all such claims and make a
recommendation . . . for appropriate corrective action up to and including discharge of the offending
party.” Dkt. ## 53, at 15, 61, at 9.
Also contained in the associate information handbook is the policy entitled “Equal
Employment Opportunity, Harassment, Sexual Harassment and Retaliation Policy,” which states
that: “The Coca-Cola Company prohibits sexual harassment.” Dkt. ## 53, at 15, 61, at 9. In that
policy, sexual harassment is defined to include: “unwelcome conduct directed towards an employee
because of his/her gender, which has the purpose or effect of unreasonably interfering with the
employee’s work performance or creating an intimidating, hostile, or offensive work environment.”
Dkt. ## 53, at 15, 61, at 9. That policy gives examples of conduct that can be found to be
harassment: “unwelcome flirtations, advances, or requests for sexual favors; . . . sexually suggestive
3
comments or jokes; . . . comments regarding sexual behavior or the body of another employee; . .
. obscene letters, emails, notes, invitations, photographs, cartoons, articles, or other written or
pictorial materials of a sexual nature; . . . [and] continuing to express sexual or romantic interest
after being informed that interest is unwelcome.” Dkt. ## 53, at 15, 61, at 9-10. That policy
provides that: “[a]ny employee who is found to have sexually harassed another individual will be
subject to disciplinary action, up to and including termination.” Dkt. ## 53, at 15, 61, at 10. That
policy requires employees to report conduct that would or could be harassment: “All employees are
required to immediately report incidents of prohibited conduct of which they become aware.” Dkt.
## 53, at 16, 61, at 10.
Plaintiff acknowledged receiving “sexual harassment training” and that she understood the
content, requirements, and expectations of the GPCCBC harassment and discrimination policies.
Dkt. ## 53, at 16, 61, at 10. In addition to the policies, plaintiff was part of annual training that
GPCCBC provided to its employees on sexual harassment and what to do if there was harassing or
unwelcome conduct in the workplace. Dkt. ## 53, at 16, 61, at 10-11. In these training sessions,
plaintiff was given a handout containing the definition of and types of conduct that can be sexual
harassment, consistent with the policies in the associate information handbook. Dkt. ## 53, at 16,
61, at 11. Each year during her employment at GPCCBC, plaintiff affirmatively represented to
GPCCBC that: (1) she had completed the yearly sensitivity and diversity training, and (2) she had
“not been subjected to, witnessed, or been made aware of any incident(s) or act(s) which have not
been reported or addressed through the GPCC[BC] complaint resolution procedure that . . . were in
violation of . . . policies that prohibit sexual harassment, harassment, or unlawful discrimination.”
Dkt. ## 53, at 16-17, 61, at 11.
4
Plaintiff knew how to use GPCCBC’s harassment policies because she did so when she
reported another employee, Bobby Sadler, in late 2013 for making passes at her and trying to date
her. Dkt. ## 53, at 17, 61, at 11. Plaintiff did not report to anyone at GPCCBC that she considered
Randleman’s conduct with her to be offensive or unwelcome. Dkt. ## 53, at 17, 61, at 12. Plaintiff
knew she was supposed to report any such conduct if it was unwelcome to her. Dkt. ## 53, at 17,
61, at 12. After Randleman transferred to Oklahoma City, he called plaintiff a couple of times but
plaintiff did not report those calls to Heather Johnson, the new Okmulgee plant manager. Dkt. ##
53, at 17, 61, at 12.
On January 19, 2017, plaintiff was terminated by GPCCBC. Dkt. # 61, at 21. Plaintiff
contacted Steve Shields, the group director for labor, employment practices, and employee relations
at The Coca-Cola Company, listing her complaints about her termination in a five-page email. Dkt.
## 53, at 18, 61, at 12. Nowhere in that email, which discusses alleged discrimination and sexual
harassment, does plaintiff mention anything about Randleman subjecting her to a hostile work
environment. Dkt. ## 53, at 18, 61, at 12. In another post-termination email to Shields, and in her
National Labor Relations Board confidential witness affidavit, plaintiff does not mention any alleged
harassment by Randleman. Dkt. ## 53, at 18, 61, at 12-13. Plaintiff contacted Millie Bennett with
corporate human resources in Atlanta asking her to investigate her termination, but when Bennett
asked plaintiff about Randleman and any relationship between the two, plaintiff completely denied
it. Dkt. ## 63, at 7-8, 70, at 6.
5
Plaintiff admits to sending all of the text messages that appear to be sent from her phone to
Randleman, and that no one told her what to send. Dkt. ## 53, at 13, 61, at 8.3 No text messages
were exchanged between plaintiff and Randleman after Randleman transferred to Oklahoma City
in August 2016. Dkt. ## 53, at 14, 61, at 8.
In her response to the motion, plaintiff disputes defendant’s statement that the sexual
harassment policy provides that reporting of sexual harassment can be made to the employee’s
immediate supervisor or manager or human resources, or to a national phone line if the employee
feels that his or her concerns are not being investigated promptly or reasonably. Dkt. ## 53, at 16,
61, at 10. In disputing this statement, plaintiff argues that the “policy only directs employees to their
immediate supervisor, manager or Human Resources. The national Ethics phone line goes directly
to Nancy Cummings [the local Human Resources Manager] . . . . Every Human Resources problem
3
Although not explicitly stated in any undisputed fact, the crux of plaintiff’s claim is more
than 5,000 text messages received from Randleman over the course of almost two years.
Dkt. # 21, at 3, ¶ 17. Defendant requested plaintiff to produce those text messages in
discovery. Dkt. # 53, at 11. The forensic company hired by the parties was not able to
recover the actual text messages between plaintiff and Randleman, because they had been
deleted from plaintiff’s three cell phones; however, it did recover 13,688 screenshots of text
messages exchanged between plaintiff and Randleman that plaintiff had saved to an app on
her iPhone entitled Private Photo Vault. Id. According to Kelly Hardinger, plaintiff’s
former co-worker at GPCCBC, plaintiff had told her that she was saving the screenshots of
their text message conversations in case anything ever happened to her employment so she
could use them against Randleman. Id. at 11-12; Dkt. # 53-3. Defendant asserts that the
forensic analysis shows that plaintiff sent sexually-suggestive text messages and images to
Randleman at least on a weekly basis from July 2014 through April 2016. Defendant alleges
that the vast majority of these screenshots of text messages sent from plaintiff to Randleman
are vulgar, obscene, and graphic, and it quotes several examples of text messages sent by
plaintiff. Dkt. # 53, at 12. Plaintiff does not dispute sending those text messages; rather, she
argues that defendant intentionally quoted those text messages “for the explicit purpose of
shocking and dismaying this Court.” Dkt. # 61, at 8.
6
went to Nancy Cummings.” Dkt. # 61, at 10. It is undisputed, however, that the associate
information handbook states the following:
In the event an employee becomes aware of prohibited conduct in the workplace, the
employee is required to immediately take the following actions: 1. Notify the employee’s
immediate supervisor or manager of the situation; or 2. Notify the following Company
representatives: . . . Great Plains employees contact Human Resources by calling: East Area
HR: 1- 918-519-8131, or West Area HR: 1-405-280-2716 . . . . If an employee has reason
to believe that appropriate action is not being taken by such individuals within a reasonable
period of time, the employee should contact 877-676-7656 to report his or her concern. If
an employee needs to report the prohibited conduct of his or her supervisor or manager, the
employee must report such conduct to one of [the] reporting channels listed above. Such an
employee is not required to report such conduct to the individual(s) responsible for the
conduct. Upon receipt of a report of prohibited conduct, the Company will take prompt
action including conducting a thorough investigation. The Company will take reasonable
measures to respect the confidentiality and privacy of all individuals involved in the
investigation. However, the company cannot guarantee complete confidentiality. The
investigative process may require the Company to contact the individual(s) who may have
engaged in prohibited conduct as well as witnesses to such conduct.
...
You can seek guidance from, or raise concerns to: . . . The Ethics & Compliance Office[:]
Phone: +1-404-676-5579
...
You also can ask a question about the Code, or raise a concern, through EthicsLine: . . . .
By phone, toll-free at +1-866-790-5579.
Dkt. # 53-7, at 29-31 (emphasis in original).
II.
Summary judgment pursuant to Fed. R. Civ. P. 56 is appropriate where there is no genuine
dispute as to any 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(c) mandates the entry of summary judgment, after adequate time for discovery and upon
7
motion, against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at trial.
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(c), 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).
III.
An employer may be vicariously or directly liable for a hostile workplace. Faragher v. City
of Boca Raton, 524 U.S. 775, 806-07 (1998). The applicable theory of liability for such harassment
depends on the status of the harasser. Vance v. Ball State Univ., 570 U.S. 421, 424 (2013).
Generally, an employer is directly liable when the harasser is a co-worker of the plaintiff and the
employer was negligent with respect to the offensive behavior. Id. at 427. However, “different rules
8
apply where the harassing employee is the plaintiff’s ‘supervisor.’ In those instances, an employer
may be vicariously liable for its employees’ creation of a hostile work environment.” Id. at 428
(emphasis in original). “[A]n employee is a ‘supervisor’ for purposes of vicarious liability under
Title VII if he or she is empowered by the employer to take tangible employment actions against the
victim.” Id. at 424. “A tangible employment action constitutes 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.” Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 761 (1998). Although plaintiff’s amended complaint does not state the theory
of liability on which she relies, it is undisputed that Randleman, as GPCCBC’s Okmulgee plant
manager, “had the power to hire and fire Plaintiff, and otherwise affect the terms and conditions of
her employment.” Dkt. ## 21, at 2, ¶ 15; 27, at 2, ¶ 15. Therefore, Randleman was plaintiff’s
“supervisor” at the time of the alleged harassment. Accordingly, the appropriate theory of
GPCCBC’s liability, if any, is vicarious liability.
In Ellerth and Faragher, the U.S. Supreme Court identified two situations in which an
employer may be vicariously liable for a hostile work environment. First, an employer is vicariously
liable “when a supervisor takes a tangible employment action.” Ellerth, 524 U.S. at 762; Faragher,
524 U.S. at 790. In those circumstances, it is appropriate to hold the employer strictly liable.
Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. Second, even when a supervisor’s harassment
does not culminate in a tangible employment action, the employer can be vicariously liable for the
supervisor’s creation of a hostile work environment if the employer is unable to establish an
affirmative defense (“the Faragher-Ellerth defense”). Ellerth, 524 U.S. at 763-65; Faragher, 524
U.S. at 803-07. To establish the Faragher-Ellerth defense, the defendant bears the burden to show:
9
(1) “that the employer exercised reasonable care to prevent and correct promptly any sexually
harassing behavior,” and (2) “that the plaintiff employee unreasonably failed to take advantage of
any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”
Debord v. Mercy Health Sys. of Kan., Inc., 737 F.3d 642, 653 (10th Cir. 2013). Plaintiff does not
allege, and the record does not suggest, that Randleman’s alleged harassment culminated in any
tangible employment action to plaintiff.4 Accordingly, the Court turns to whether defendant is
entitled to summary judgment based on the Faragher-Ellerth defense.
A. First Element
The first element of the Faragher-Ellerth defense requires an employer to exercise reasonable
care: (a) to prevent harassment and (b) to correct promptly any harassment that does occur.
Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1062 (10th Cir. 2009).
1. Prevention
An employer acts reasonably as a matter of law to prevent harassment if it has “adopted valid
sexual harassment policies [and] distributed those policies to employees via employee handbooks.”
Helm v. Kansas, 656 F.3d 1277, 1288-90 (10th Cir. 2011). It is undisputed that GPCCBC has
implemented and distributed a harassment/discrimination policy and a sexual harassment policy
through its associate information handbook, and that plaintiff received this handbook. It is also
undisputed that these policies prohibit sexual harassment, obligate employees to report harassing
conduct, contain complaint procedures listing multiple telephone numbers through which harassment
may be reported, and sanction discharge as a disciplinary action for the offending party. Further,
4
The Court notes that, although plaintiff was terminated, she does not allege and the record
does not suggest that Randleman’s alleged harassment culminated in her termination.
10
there is no dispute that defendant provides annual sexual harassment training to its employees, and
that plaintiff attended the annual training and received a handout containing information on sexual
harassment.
Nonetheless, plaintiff suggests that defendant failed to act reasonably to prevent harassment
because its policies are defective or dysfunctional. As support, plaintiff cites to a Sixth Circuit case
affirming denial of summary judgment because the policy did not “expressly instruct the employees
on any particular mechanism to bypass a harassing supervisor when making a complaint of
harassment.” Dkt. # 61, at 30 (quoting Shields v. Fed. Exp. Customer Info. Servs., Inc., No. 104494, 2012 WL 3899033 (6th Cir. 2012)). However, there is no dispute in this case that GPCCBC’s
associate information handbook expressly provides that an employee who needs to report the
conduct of a supervisor or manager “is not required to report such conduct to the individual(s)
responsible for the conduct;” in fact, it lists at least two channels to report harassment that would
allow plaintiff to bypass Randleman.
Plaintiff also argues that the policies are defective or dysfunctional because she personally
believed any and all complaints would have come back to Randleman. There is no dispute that the
sexual harassment policy states that “[t]he investigative process may require the Company to contact
the individual(s) who may have engaged in prohibited conduct.”
Understandably, most
complainants would prefer for their alleged harasser not to be informed that the complainant
reported his or her conduct; however, the fact that the employer might need to contact the alleged
11
harasser to adequately investigate the allegations of sexual harassment against him or her does not,
as a matter of law, make the policy defective or dysfunctional.5
Accordingly, defendant has shown that there is no genuine dispute of material fact that it has
adopted and distributed valid sexual harassment policies, and “[t]he prevention component of the
Faragher defense does not require more.” Debord, 737 F.3d at 654. Thus, the Court finds, as a
matter of law, that defendant exercised reasonable care to prevent sexual harassment.
2. Correction
The Court next asks whether the employer acted reasonably to correct any harassment that
occurred, despite the reasonable preventative measures. As the Tenth Circuit has explained,
adequate notice of the sexually harassing conduct is a necessary precursor to trigger an employer’s
duty to take corrective action. Helm, 656 F.3d at 1290; see Debord, 737 F.3d at 654 (an employer
has acted reasonably to correct sexual harassment if it has responded in a prompt manner “when it
was given proper notice” of the alleged harassment). “The law against sexual harassment is not selfenforcing and an employer cannot be expected to correct harassment unless the employee makes a
concerted effort to inform the employer that a problem exists.” Pinkerton, 563 F.3d at 1063. Hence,
if the employee fails to give adequate notice to the employer of the alleged harassment, the employer
cannot be deemed unreasonable for failing to take corrective action. Helm, 656 F.3d at 1290-91.
Here, it is undisputed that plaintiff did not provide any notice whatsoever to GPCCBC about
Randleman’s allegedly harassing behavior. To the contrary, plaintiff affirmatively represented to
5
In fact, any employer whose sexual harassment policy broadly states that it will not contact
the person alleged of sexual harassment in conducting its investigation would likely be
subject to a strong argument that it has failed to act reasonably to “ferret out and put a stop
to any discriminatory activity in their operations.” Crawford v. Metro. Gov’t of Nashville
& Davidson Cty., Tenn., 555 U.S. 271, 278 (2009).
12
GPCCBC, on an annual basis, that: (1) she had completed the yearly sensitivity diversity training,
and (2) she had not been subjected to, witnessed, or been made aware of any incidents or acts which
have not been reported or addressed through the GPCCBC complaint resolution procedure that were
in violation of the policies. Therefore, defendant’s duty to take corrective action was never
triggered. No reasonable jury could find that defendant acted unreasonably in not taking corrective
action where defendant did not have a duty to act.6
Accordingly, the first element of the Faragher-Ellerth defense is satisfied.
B. Second Element
Having determined that defendant acted reasonably to prevent and correct any sexually
harassing behavior, the Court now turns to whether plaintiff unreasonably failed to take advantage
of any preventive or corrective opportunities provided by the employer. A showing that plaintiff
“unreasonabl[y] fail[ed] to use any complaint procedure provided by the employer . . . will normally
suffice to satisfy the employer’s burden under the second element of the defense.” Faragher, 524
6
In her response, plaintiff asserts that when she reported Sadler’s sexual harassment years
earlier, GPCCBC ultimately promoted him as her direct supervisor; therefore, plaintiff
argues, defendant has not proven that its attempts at corrective action were “‘reasonably
calculated to end the harassment’ and deter future harassers.” Dkt. # 61, at 31-32. Such an
argument, however, is irrelevant to the Court’s analysis. The Faragher-Ellerth defense, like
Title VII law generally, focuses on defendant’s response to the alleged harassment at issue.
See Helm, 656 F.3d at 1290 (“[I]n order to establish that it took proper action to correct
harassment, [the defendant is] required to show that it acted reasonably promptly on [the
plaintiff’s] complaint when it was given proper notice of her allegations as required under
its complaint procedures.”). A defendant’s past failure to promptly correct an unrelated
instance of harassment does not forever bar the defendant from shielding itself from liability
with the Faragher-Ellerth defense. If it did, the preventative purpose of the Faragher-Ellerth
defense would be severely undercut. Therefore, whether defendant acted reasonably to
correct any harassment by Sadler upon proper notice of such conduct is irrelevant to the
Court’s determination of whether defendant acted reasonably to correct Randleman’s alleged
harassment.
13
U.S. at 807-08. The Tenth Circuit has held that the failure to use the employer’s complaint
procedure is unreasonable where the employee “had received the harassment training and knew that
the incidents should have been reported.” Pinkerton, 563 F.3d at 1063-64; see Debord, 747 F.3d at
654. As discussed, there is no dispute that plaintiff failed to use GPCCBC’s complaint procedure–or
any procedure whatsoever–to report Randleman’s alleged harassment. Further, it is undisputed that
plaintiff understood the content, requirements, and expectations of the harassment policies, and that
she attended sexual harassment training. In fact, the parties agree that plaintiff knew how to use
GPCCBC’s procedure for reporting harassment, because she had used it to report Sadler for sexual
harassment a few years earlier. Based on these undisputed facts, defendant has shown that plaintiff’s
failure to take advantage of GPCCBC’s complaint procedure was unreasonable.
In her response, plaintiff argues that “[i]f an employee’s fear of retaliation is genuine and
reasonable, that may in some cases make it permissible for a plaintiff to delay in reporting.” Dkt.
# 61, at 31. While the Court agrees with this statement as a matter of law, the Court does not find
it applicable in this case because plaintiff has not alleged “concrete reason[s] to apprehend that
complaint would be useless or result in affirmative harm to the complainant.” Kramer v. Wasatch
Cty. Sheriff’s Office, 743 F.3d 726, 751 (10th Cir. 2014). In Kramer, the Tenth Circuit held that the
plaintiff had alleged concrete reasons to fear retaliation for reporting her harasser, because her
harasser repeatedly told her to “be quiet,” to “not say anything” or it would be “a career ender,” and
threatened her with a poor evaluation unless she would “keep [her] mouth shut and not say
anything.” Id. Here, plaintiff has not made any allegation that Randleman or anyone else threatened
to retaliate against her if she were to report Randleman’s alleged harassment. The only basis
plaintiff provides for her alleged fear of retaliation is that after she reported Sadler for sexual
14
harassment a few years earlier, GPCCBC ultimately promoted him as plaintiff’s supervisor.
However, while plaintiff was likely displeased with the outcome of that investigation and
uncomfortable with Sadler’s promotion, plaintiff has not alleged any facts to suggest that Sadler was
promoted as retaliation for plaintiff filing a complaint against him, or that the promotion was in any
way related to plaintiff’s complaint. Therefore, the record does not reveal any reason for plaintiff’s
failure to report Randleman other than a generalized fear of retaliation. “It is undeniable that raising
problems regarding sexual harassment can be uncomfortable for the employee, but if we were to
allow an employee’s subjective, ungrounded fears of unpleasantness or retaliation to alleviate an
employee’s reporting requirement, we would ‘completely undermine Title VII’s basic policy of
encouraging forethought by employers and saving action by objecting employees.’” Pinkerton, 563
F.3d at 1063 (10th Cir. 2009). Therefore, plaintiff failed to raise a material issue of fact as to
whether her failure to use GPCCBC’s complaint procedure to report Randleman was reasonable.7
Based on the undisputed material facts, GPCCBC has shown that it acted reasonably to
prevent and correct any sexual harassment and that plaintiff unreasonably failed to take advantage
of defendant’s preventive or corrective opportunities. Accordingly, defendant is entitled to
7
Plaintiff also argues that where the employer has designated only one person as the
individual to receive and investigate complaints, and it is the very person who has allegedly
harassed the plaintiff, reasonableness becomes a question for the jury. The Court considers
this argument odd in light of the fact that plaintiff has not alleged, and there is no evidence
in the record to suggest, that the only person designated by GPCCBC to receive and
investigate complaints was Randleman. Rather, the undisputed facts show that the policies
provide several channels other than Randleman to whom an employee may report
harassment. Further, plaintiff’s allegation that Randleman might eventually learn of her
complaint does not suggest that Randleman was the only individual designated by GPCCBC
to receive and investigate complaints.
15
judgment as a matter of law on Faragher-Ellerth defense, and defendant’s motion for summary
judgment should be granted as to plaintiff’s claim for hostile work environment (count two).
IT IS THEREFORE ORDERED that defendant’s motion for summary judgment (Dkt. #
53) is granted. A separate judgment is entered herewith.
DATED this 16th day of October, 2018.
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