Tilghman v. Kirby et al
Filing
144
ORDER denying 95 Motion for Partial Summary Judgment; granting 103 Motion for Summary Judgment; granting 106 Motion for Summary Judgment. Signed by Honorable Timothy D. DeGiusti on 9/16/2015. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MISTY TILGHMAN,
Plaintiff,
vs.
RON KIRBY and COMANCHE
COUNTY COMMISSIONERS,
Defendants.
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Case No. CIV-13-73-D
ORDER
Before the Court are cross-motions for summary judgment by Plaintiff Misty
Tilghman (“Tilghman”) [Doc. No. 95], Defendant Comanche County Commissioners
(“Commissioners”) [Doc. No. 103], and Defendant Ron Kirby (“Kirby”) [Doc. No.
106]. The matter is fully briefed and at issue.
INTRODUCTION
This case arises from Tilghman’s employment in the Comanche County
Commissioners’ office, where she alleges she was subjected to a hostile work
environment due to sexual harassment by Kirby, who was her supervisor and, at the
time, a county commissioner himself. Tilghman’s Motion requests this Court find, as
a matter of law, that Kirby’s actions constituted sexual harassment (thereby creating
a hostile work environment), Kirby was Plaintiff’s “supervisor” for purposes of her
harassment claim, and the Commissioners are liable for Kirby’s actions. Tilghman’s
claims arise under 42 U.S.C. § 1983, Oklahoma’s Anti-Discrimination Act
(“OADA”), 25 OKLA. STAT. §§ 1101 et seq., and the common law.
Defendants contend the facts, even when viewed favorably to Tilghman, fail
to establish a hostile work environment due to sexual harassment. Commissioners
also contend they exercised reasonable care to prevent and correct any sexually
harassing behavior, Tilghman failed to take advantage of remedial opportunities made
available to her, and Tilghman can point to no policy, custom, or practice by the
Commissioners which operated as the “moving force” behind any constitutional
violations. Defendants move for summary judgment on Tilghman’s harassment
claims, as well as her tort claim for intentional infliction of emotional distress.1
BACKGROUND
The Comanche County Board of Commissioners is the administrative and
managing body of Comanche County, Oklahoma (the “County”). The County’s
political and corporate powers are exercised by the Commissioners. The County is
1
Tilghman previously dismissed her intentional infliction of emotional
distress claim against the Commissioners [Doc. No. 117], thus, the
Commissioners’ Motion in that respect is moot. Tilghman’s Complaint also
included a claim for retaliation and an allegation that she was denied other
employment opportunities due to the Commissioners’ failure to post job openings.
See First Amend. Compl. at 5 [Doc. No. 4]. None of the parties seek summary
judgment on these claims, and thus the Court declines to address them in this
order.
2
divided into three districts–one commissioner is elected from each district. For
several years, Kirby served as a commissioner representing District 2. On December
23, 2008, Tilghman was hired to be Kirby’s receptionist and he acted as her
supervisor. Tilghman worked in the Commissioners’ office for approximately three
and a half years until her resignation in June 2012.
Beginning in February 2009, Tilghman alleges that Kirby subjected her to a
hostile work environment–by means of sexual harassment–in the following ways:
1.
Kirby invited her to his office to view “inappropriate”
images on his computer;
2.
Once, when Tilghman was having her desk chair fixed for
squeaking, Kirby commented, “Well, Misty, if you needed
a lube job, I’d have lubed you up”;
3.
She saw nude photos on Kirby’s phone;
4.
Kirby used the names “Sugar” and “Babe” in casual
conversation and often used vulgar language around her;
5.
At times, Kirby would get close to her and expect a kiss,
which led to Tilghman kissing Kirby on the cheek
one time;
6.
Kirby touched her hair three to five times;
7.
Kirby touched her inappropriately and clasped the side of
her rib cage;
8.
Kirby threw a condom at her “maybe a couple” of times;
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9.
Kirby would frequently comment on her clothing;
10.
While cleaning Kirby’s desk, she found photos of Kirby
partially clothed and others of nude people;
11.
Kirby forwarded sexual jokes to her from his phone;
12.
Kirby asked for hugs from female employees and touched
them, in her opinion, “inappropriately”;2
13.
Kirby once told a co-worker that she had “something on
[her] pants” and reached for her; and
14.
Kirby would ask Tilghman to help get blood off his
clothing after checking his blood/sugar level.
During this same time, however, Tilghman went on to socialize with Kirby on
several occasions: (1) she went on fishing trips with Kirby and his wife; (2) she
attended “one or two” fish fries at Kirby’s house; (3) while dining out with her
husband, they ran into Kirby and joined him at his table; (4) she and a female
companion joined Kirby for drinks at a bar; (5) she attended one of Kirby’s
fundraisers and contributed to his campaign; (6) she participated in buying gifts for
2
The Court may consider any gender-based harassment when determining
the existence of a hostile work environment, including allegations of sexual
harassment directed toward Tilghman’s co-workers. Hicks v. Gates Rubber Co.,
833 F.2d 1406, 1415-16 (10th Cir.1987); see also Daemi v. Church’s Fried
Chicken, Inc., 931 F.2d 1379, 1385 (10th Cir.1991) (stating in dicta that Hicks
“held even a woman who was never herself the object of sexual harassment might
have a Title VII claim if she were forced to work in an atmosphere where such
harassment was pervasive.”).
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Kirby’s birthday and Boss’ Day; (7) during a Christmas party, she hugged and
thanked him for a gift; (8) she laughed at some of the jokes on Kirby’s phone and
would forward her own jokes to him; and (9) she attended Kirby’s office farewell
gathering. Nothing in the record indicates Tilghman did these things out of fear or
compulsion.
Tilghman complained about Kirby to Carrie Tubbs (“Tubbs”), who, at the time,
was First Deputy Commissioner and had her own issues with Kirby.3 Tubbs became
aware Kirby had a photo of her head superimposed upon a nude body. Tubbs’
complaints led to an investigation by the Oklahoma State Bureau of Investigation
(“OSBI”). The OSBI’s inquiry precipitated Kirby’s resignation on February 13, 2012.
Two months after Kirby resigned, Tilghman filed a tort claim notice alleging she was
subjected to sexual harassment and gender discrimination. After receiving what she
felt was unjustified criticism of her job performance, Tilghman took medical leave
and eventually resigned.
3
Tilghman and Tubbs were friends and often shared personal conversations
with each other. Tilghman believed Tubbs was her supervisor and felt she could
go to her with any complaint. Tilghman did not express her concerns to the other
commissioners, the district attorney or assistant district attorneys as provided in
the grievance procedures of the County’s Employee Personnel Policy Handbook.
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STANDARD
“Summary judgment is proper if, viewing the evidence in the light most
favorable to the non-moving party, there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Bonidy v. U.S. Postal
Service, 790 F.3d 1121, 1124 (10th Cir. 2015) (citing Peterson v. Martinez, 707 F.3d
1197, 1207 (10th Cir. 2013)). When reviewing cross-motions for summary judgment,
the Court must evaluate each motion on its own merits, with all inferences construed
in favor of the party against whom the motion under consideration is made. Pirkheim
v. First Unum Life Ins., 229 F.3d 1008, 1010 (10th Cir. 2000). When the parties file
cross motions for summary judgment, the Court is entitled to assume no evidence
needs to be considered other than that filed by the parties. Atlantic Richfield Co. v.
Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000).
An issue is “genuine” if there is sufficient evidence on each side so that a
rational trier of fact could resolve the issue either way. Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670 (10th Cir. 1998). An issue of fact is “material” if under the
substantive law it is essential to the proper disposition of the claim. Id. Unsupported
conclusory allegations do not create an issue of fact. Finstuen v. Crutcher, 496 F.3d
1139, 1144 (10th Cir. 2007). “If a party that would bear the burden of persuasion at
trial does not come forward with sufficient evidence on an essential element of its
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prima facie case, all issues concerning all other elements of the claim and any
defenses become immaterial.” Adler, 144 F.3d at 670 (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Once the moving party has met its burden, the burden shifts to the nonmoving
party to present sufficient evidence in specific, factual form to establish a genuine
factual dispute. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th
Cir.1991). The nonmoving party may not rest upon the mere allegations or denials of
its pleadings. Rather, it must go beyond the pleadings and establish, through
admissible evidence, there is a genuine issue of material fact that must be resolved
by the trier of fact. Salehpoor v. Shahinpoor, 358 F.3d 782, 786 (10th Cir. 2004).
DISCUSSION
Though courts generally caution against granting summary judgment in sexual
harassment cases, summary judgment remains appropriate in those situations where
“it is clear to ... [the] court that after assessing the frequency of the behavior measured
in light of its seriousness, the facts cannot, as a matter of law, be the basis of a hostile
work environment claim.” Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 608
(2d Cir. 2006); Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1366 (10th Cir.
1997) (granting defendant’s motion for summary judgment where plaintiff did not
proffer evidence of sexual harassment sufficiently severe or pervasive to alter the
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conditions of her employment and create an abusive work environment).
I.
TILGHMAN’S SEXUAL HARASSMENT CLAIMS UNDER THE OKLAHOMA ANTIDISCRIMINATION ACT AND 42 U.S.C. § 1983
A.
The OADA
The OADA prohibits sexual harassment in the workplace. It states “[i]t is a
discriminatory practice for an employer ... to discriminate against an individual with
respect to ... sex[.]” 25 OKLA. STAT. § 1302(A)(emphasis added). This Court has
noted, and the parties agree, that claims under the OADA are evaluated using the
same standards as claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., and a claim that fails under Title VII will also fail under the OADA.
See Hamilton v. Okla. City Univ., 911 F. Supp. 2d 1199, 1206 (W.D. Okla. 2012)
(citing McCully v. American Airlines, Inc., 695 F. Supp. 2d 1225, 1246 (N.D. Okla.
2010) (further citations omitted)); see also Barzellone v. City of Tulsa, 210 F.3d 389,
2000 WL 339213 at *5 (10th Cir. Mar. 31, 2000) (unpublished); Myers v. Knight
Protective Service, Inc., No. CIV–10–866–C, 2011 WL 3585404 at *1 (W.D. Okla.
Aug. 16, 2011) (purpose of OADA is to implement policies embodied in several
federal statutes, including Title VII).
It is well settled that Title VII does not serve as a “general civility code” and
is not meant to remedy “the ordinary tribulations of the workplace, such as the
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sporadic use of abusive language, gender-related jokes, and occasional teasing.”
Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662
(1998)(citation omitted); Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 957
(10th Cir. 2012). To establish a sexually hostile work environment existed, a plaintiff
must prove the following elements: (1) she is a member of a protected group; (2) she
was subjected 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. Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007); see also
Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1537 (10th Cir. 1995). To survive
summary judgment, Tilghman “must show that a rational jury could find that the
workplace is permeated with discriminatory intimidation, ridicule, and insult.” Davis
v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th Cir.1998) (quoting Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993)).
“[There] is not, and by its nature cannot be, a mathematically precise test” for
a hostile work environment claim. Hernandez, 684 F.3d at 957 (quoting Harris, 510
U.S. at 22); Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808 (7th Cir. 2000)
(“[t]here is no ‘magic number’ of incidents required to establish a hostile
environment.”). In determining whether the alleged sexual harassment rises to an
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actionable level, the Court must examine the totality of circumstances, which may
include “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 such as the nature of
the sexual advances and the context in which the alleged incidents occurred.” Harris,
510 U.S. at 23. There is also both an objective and subjective component to a hostile
work environment claim:
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.
Likewise, if the victim does not subjectively perceive the environment
to be abusive, the conduct has not actually altered the conditions of the
victim’s employment, and there is no Title VII violation.
Harris, 510 U.S. at 21-22.
The central question facing the Court is whether Kirby’s behavior was so
severe or pervasive so as to alter the conditions of Tilghman’s employment and create
a hostile environment. After carefully weighing the evidence in the record, the Court
finds that, under the controlling law, a rational juror would not conclude that her
workplace was permeated with discriminatory intimidation, ridicule, and insult.
Tilghman began working in the commissioners’ office, under Kirby’s
supervision, in December 2008; she resigned in July 2012. Viewing the record as a
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whole, including the totality of the circumstances surrounding the conduct
complained of, Tilghman’s description of the workplace during those three and a half
years cannot be fairly described as being “permeated with discriminatory
intimidation, ridicule, and insult.” Davis, 142 F.3d at 1341; Lowe v. Angelo’s Italian
Foods, Inc., 87 F.3d 1170, 1175 (10th Cir. 1996). Tilghman’s own testimony is, at
best, vague as to when many of the complained-of actions occurred. Nonetheless,
even when viewing the evidence in the light most favorable to her, most of the
instances involved sporadic offensive utterances and boorish, juvenile conduct.
Moreover, Tilghman does not seriously assert that she felt humiliated,
intimidated or threatened by Kirby’s conduct or otherwise perceived his actions as
being abusive. To the contrary, during the time she alleged Kirby was behaving
improperly, Tilghman willingly socialized with Kirby, both in and out of the office,
on several occasions. Compare Bannon v. Univ. of Chicago, 503 F.3d 623, 629 (7th
Cir. 2007) (plaintiff failed to demonstrate that she considered workplace to be
subjectively offensive where, inter alia, she socialized with supervisor outside of
work several times during same period when she said he was harassing her). Further,
there is no evidence that tends to show Kirby’s behavior unreasonably interfered with
Tilghman’s job performance.
This conclusion is not intended to justify Kirby’s behavior or minimize what
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Tilghman asserts was offensive; Kirby’s actions were certainly in poor taste and
inappropriate. However, the facts, when viewed in their totality, do not constitute
sexual harassment that is severe or pervasive and thus actionable under Tenth Circuit
jurisprudence. Because Tilghman has failed to proffer sufficient evidence showing the
alleged conduct was so extreme as to create an abusive working environment or that
it permeated her job with discriminatory intimidation, ridicule and insult, the Court
finds Defendants are entitled to summary judgment on her hostile work
environment/sexual harassment claim.
B.
Section 1983
Tilghman’s § 1983 claim, which alleges Kirby deprived her of her constitutional
rights to equal protection and due process, is based on the same evidence as her
OADA claim. However, as stated by the Tenth Circuit, more is required under § 1983
to establish a sexual harassment claim than under Title VII, and therefore, the OADA.
Abeyta v. Chama Valley Indep. Schl. Dist., 77 F.3d 1253, 1255 (10th Cir. 1996). In
Miller v. Regents of Univ. of Colo., 188 F.3d 518, 1999 WL 506520 (10th Cir. July 19,
1999) (unpublished), after holding the plaintiff’s Title VII claim failed because she
failed to show she was subject to a hostile work environment, the Tenth Circuit
summarily dismissed her § 1983 claim:
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Ms. Miller’s evidence does not sufficiently demonstrate that Mr.
Corbridge committed actionable harassment under Title VII. Because she
cannot demonstrate that Mr. Corbridge’s conduct violated Title VII, her
constitutional claim based on the same conduct fails as well.
Id. at *10; accord Beattie v. Farnsworth Middle School, 143 F. Supp. 2d 220, 232
(N.D.N.Y. 1998) (“Not all conduct, however, that constitutes sexual harassment under
Title VII is sufficient to establish a constitutional violation.”) (citing Annis v. County
of Westchester, N.Y., 36 F.3d 251, 254 (2d Cir. 1994)); Keenan v. Allan, 889 F.Supp.
1320, 1362 (E.D. Wash. 1995) (“Harassment claims based on § 1983 share with Title
VII ... the requirement that plaintiff prove a sexually hostile work environment....
However, a Fourteenth Amendment claimant has an additional and higher burden.”).
In light of this Court’s determination that Tilghman has presented insufficient
evidence to support a claim under the OADA of hostile work environment based on
sexual harassment, it also grants summary judgment to Defendants as to Tilghman’s
§ 1983 claim.
II.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Under Oklahoma law, there are four elements to an intentional infliction of
emotional distress claim: (1) the tortfeasor acted intentionally or recklessly; (2) the
tortfeasor’s conduct was extreme and outrageous; (3) the plaintiff actually experienced
emotional distress; and (4) the emotional distress was severe. Starr v. Pearle Vision,
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Inc., 54 F.3d 1548, 1558 (10th Cir. 1995) (citing Daemi v. Church’s Fried Chicken,
Inc., 931 F.2d 1379, 1387 (10th Cir.1991)). The tort does not extend to “mere insults,
indignities, threats, or occasional acts that are inconsiderate and unkind.” Id. at 1558
(citing Eddy v. Brown, 1986 OK 3, ¶ 7, 715 P.2d 74, 76) (internal quotations and
paraphrasing omitted). Instead, the tortfeasor’s conduct must be “beyond all possible
bounds of decency” or “utterly intolerable in a civilized community.” Id. (quoting
Eddy, 715 P.2d at 77). In fact, “[n]othing short of ‘[e]xtraordinary transgressions of
the bounds of civility’ will give rise to liability for intentional infliction of emotional
distress.” Id. (quoting Merrick v. Northern Natural Gas Co., 911 F.2d 426, 432 (10th
Cir. 1990) (emphasis in original).
In this case, there is no evidentiary support for a finding of intentional infliction
of emotional distress. For the reasons already stated, the Court is not persuaded that
Kirby’s actions constituted pervasive harassment, let alone “outrageous” conduct.
Even if Tilghman had demonstrated Kirby could be found liable for sexual
harassment, such a conclusion would not be enough here, for even if conduct
constituted “harassment,” it does not necessarily become “outrageous.” See Herrera
v. Lufkin Industries, Inc., 474 F.3d 675, 688 (10th Cir. 2007) (conduct actionable
under Title VII does not necessarily rise to the level of outrageousness required for
intentional infliction of emotional distress).
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The Court emphasizes that its determination that Tilghman cannot maintain a
sexual harassment hostile work environment claim based on the present factual record
is not to be interpreted that this was at all an ideal or professional work environment.
Clearly, Kirby’s actions were at times rude, inappropriate, and unprofessional.
Nonetheless, for the reasons stated, the Court finds that, as a matter of law, summary
judgment in favor of Defendants is required on the present record and under the
applicable law.
CONCLUSION
Plaintiff’s Motion for Partial Summary Judgment [Doc. No. 95] is DENIED.
Defendant Comanche County Commissioners’s Motion for Summary Judgment [Doc.
No. 103] and Ron Kirby’s Motion for Summary Judgment [Doc. No. 106] are
GRANTED as to the issues raised therein.4
IT IS SO ORDERED this 16th day of September, 2015.
4
As a result of this order, Defendants’ Joint Daubert Motion to Exclude
Testimony of Douglas Brady, Ph.D [Doc. No. 107] is moot. Further, the parties are
directed to file, within twenty-one (21) days of the date of this Order, a Joint
Status Report addressing the claims that remain for determination in this case.
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