Cunningham v. Skilled Trade Services Inc et al

Filing 49

ORDER granting in part and denying in part 42 Defendant's Motion for Summary Judgment. Signed by Honorable Timothy D. DeGiusti on 9/29/2017. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ANNEE CUNNINGHAM,
Plaintiff,
v.
GLOBALSOURCE, INC.,
d/b/a SKILLED TRADE
SERVICES, INC., and
HOWARD CHASE,
Defendants.

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Case No. CIV-15-803-D

ORDER
The present case arises from Plaintiff Annee Cunningham’s (Cunningham)
employment as an administrative assistant with Defendant Globalsource, Inc., d/b/a
Skilled Trade Services (STS), where she alleges she was subjected to a hostile work
environment due to sexual harassment by her immediate supervisor, Defendant
Howard Chase (Chase). Before the Court is STS’s Motion for Summary Judgment
[Doc. No. 42]. Cunningham has filed her response in opposition [Doc. No. 45] and
STS replied [Doc. No. 48]. The matter is fully briefed and at issue.
BACKGROUND
The following material facts are either uncontroverted, or deemed admitted,
and are viewed in the light most favorable to Cunningham. Lounds v. Lincare, Inc.,
812 F.3d 1208, 1220 (10th Cir. 2015). Immaterial facts, facts not properly supported

by the record, and legal arguments or conclusions were not considered. See, e.g.,
Chavez v. County of Bernalillo, 3 F. Supp. 3d 936, 949 n. 4 (D.N.M. 2014).
STS is a skilled labor staffing company based out of Delafield, Wisconsin. At
the time its Motion was filed, STS employed less than twenty permanent, in-house
employees. STS had an Oklahoma City office from approximately December 2013
through approximately April 25, 2014. Chase was hired as an “at-will” employee in
or around mid-December 2013.1 Chase was employed as the Regional Vice
President and fulfilled roles of both Branch Manager and Account Manager.
Cunningham was hired as an at-will employee on around March 24, 2014 as a
recruiter/administrative assistant to Chase.
At the time of Cunningham’s employment, STS had an Employee Handbook
that outlined the company’s policy against sexual harassment. It instructed
employees to “immediately report the harassment to the immediate supervisor, the
Controller or any Company officer.” See Employee Handbook at 4 [Doc. No. 42-7].
The handbook stated it was the employee’s duty to report harassment in order to help
create a safe workplace for all employees. Id. It also stated STS would “promptly
and thoroughly investigate complaints and take all necessary and appropriate

1

Under Oklahoma law, “employers are free to discharge at-will employees in good
or bad faith, with or without cause,” unless the termination violates public policy.
Trant v. Oklahoma, 874 F. Supp. 2d 1294, 1303 (W.D. Okla. 2012) (quoting Darrow
v. Integris Health, Inc., 2008 OK 1, ¶ 3, 176 P.3d 1204, 1210).
2

corrective action to prevent such conduct from occurring or reoccurring in the
workplace.” Id. On or around December 18, 2013, Stephanie Gramling, STS’s
President and Chief Executive Officer, provided Chase with copies of STS’s antidiscrimination and anti-harassment policies, including policies prohibiting sexual
harassment and retaliation. Although the handbook stated “[employees] will be
asked to sign and return a duplicate copy of the last page of the Handbook,
confirming that [they] have read the Handbook, understood the content and have
received a copy,” Employee Handbook at 2, STS did not have a signed
acknowledgement from Cunningham indicating receipt and/or review of the
document. Although she did not have a copy of the handbook, Cunningham
nonetheless believed she could bring any complaints of harassment to either
Gramling or Maribel Rodriguez, who Cunningham thought worked in the human
resources department.
Cunningham and Chase were the only two employees at STS’s Oklahoma
City office throughout the duration of her employment. Approximately two weeks
after her first day at work, Chase told Cunningham that he and his wife had not had
sex in the past two years. After that incident, for over two weeks, Chase made
comments about his wife to Cunningham every day.2 After Chase made another

2

Such comments included: (1) Chase saying his wife had quit cooking for him; (2)
Chase saying his wife would not call him at work and refused to take calls from him
3

comment about his sex life, Cunningham told him that it was not any of her concern
and asked him to stop telling her such things, and Chase agreed to stop. Cunningham
did not report Chase or make any complaint about his comments. However, Chase
began to make comments about Cunningham’s appearance, saying such things like
“You look very gorgeous today,” and “You’re such a tight little thing.” Chase also
asked Cunningham if she had a boyfriend. When she said that she did, Chase
responded, “Well, he sure is a lucky guy to have a – a woman as beautiful as you.”
These comments occurred over the course of two to three days. Cunningham did not
report Chase or make a complaint about his comments.3
On April 23, 2014, Cunningham alleges that after being called to his office,
Chase tried to force himself upon her. She describes the incident as follows:
When I went around the corner into his office he was laying on the
floor. He had his shirt off and his socks and shoes off, and he asked me
to – I can’t remember, either walk on his back or use my fist and push
on his back around his shoulder blades. … As he’s grabbing my left
ankle, he’s also coming – bringing his body up. And he turns and grabs
my other one, and pulls me down. And I – when I went down, I went
down stomach – like face first. And he flipped me over, and he was on
his knees over me. And he was saying, “It’s okay. We’re going to have
fun. It’s okay.” And I said, “No. No, this is not okay. Get off of me.”
And then he stopped saying anything. And his hand went up my shirt,
while he was working; (3) Chase telling Cunningham that he and his wife had gone
out for dinner the previous night; and (4) Chase referring to his wife as a “bitch.”
3

The record also indicates that at one point during her employment, Chase gave five
to six karate lessons to Cunningham. Although her family members thought it was
strange, Cunningham testified that she “didn’t think anything of it” and she neither
reported Chase nor asked him to give another lesson.
4

and he started to pull my pants down. … He got my pants down just
enough to where he could see – before I got up and ran. I don’t – I don’t
know how I got up. I don’t know if I kicked him, or if he let me up, I
don’t know. But I got up, and I grabbed my purse, … [a]nd I ran out of
the building. He proceeded to chase me out of the building. … And as
soon as I got in the car, I threw my stuff in the seat and I hit the lock
button. Right as I hit the lock button he was trying to open my car door.
He went to every single door and tried to open it.
Cunningham filed a police report and later called Gramling to make a
complaint of sexual harassment. Cunningham told Gramling that Chase had sexually
assaulted her, chased her out of the building, and had been arrested. Pursuant to
advice from the police, Cunningham did not provide any additional details to
Gramling about the incident. This was the first time Cunningham reported to
Gramling or anyone else at STS that Chase had harassed her.
Although she expressed hesitation about returning to the office, Cunningham
expressed her desire to keep her job. In response, Gramling said, “I don’t know what
to do about that, so you might as well just settle for unemployment.” Cunningham
then asked, “So that means you’re letting me go?” to which Gramling said
“Basically. File for unemployment.” Following the advice of counsel, Chase refused
to answer Gramling’s questions regarding the incident.4 STS permanently closed the
Oklahoma City office by April 30, 2014. It stated the office was being closed
because it was not financially sustainable.

4

Chase has also invoked his Fifth Amendment right against self-incrimination in
these proceedings. See Joint Status Report and Discovery Plan at 3, 6 [Doc. No. 19].
5

Cunningham sued STS and Chase in Oklahoma County District Court for
gender discrimination, sexual harassment, hostile work environment, and
retaliation.5 STS timely removed the action to this Court. STS contends it is entitled
to summary judgment on Cunningham’s claims for three reasons: (1) under the
undisputed facts, Cunningham cannot establish a prima facie case for hostile work
environment against STS; (2) under the undisputed facts, Cunningham cannot
establish a prima facie case for retaliation; and (3) under the undisputed facts,
Cunningham cannot establish gender discrimination.
STANDARD OF REVIEW
Rule 56(a), Federal Rules of Civil Procedure, provides that “[t]he court shall
grant 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.” The
Court’s function at the summary judgment stage is not to weigh the evidence and
determine the truth of the matter asserted, but to determine whether there is a genuine
issue for trial. Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014). 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.

5

Cunningham stated her claims arose under “the Fourteenth Amendment of the
United States Constitution, Title VII and Oklahoma Public Policy.” Petition, ¶ 4
[Doc. No. 1-1].
6

1998). An issue of fact is “material” if under the substantive law it is essential to the
proper disposition of the claim. Id.
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, that 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). Unsupported conclusory allegations do not create an issue of fact. Finstuen
v. Crutcher, 496 F.3d 1139, 1144 (10th Cir. 2007).
DISCUSSION
I.

HOSTILE WORK ENVIRONMENT
Title VII prohibits an employer from “discriminat[ing] against any individual

with respect to [her] compensation, terms, conditions, or privileges of employment,
because of such individual’s ... sex.” See 42 U.S.C. § 2000e–2(a)(1). This statutory
provision prohibits subjecting an employee to a hostile work environment. Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986); Harsco Corp. v. Renner, 475 F.3d
1179, 1186 (10th Cir. 2007). 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
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workplace, such as the sporadic use of abusive language, gender-related jokes, and
occasional teasing.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)
(citation omitted); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81
(1998) (“Whatever evidentiary route the plaintiff chooses to follow, he or she must
always prove that the conduct at issue was not merely tinged with offensive sexual
connotations, but actually constituted “discrimina[tion] ... because of ... sex.”)
(emphasis and paraphrasing in original); Hernandez v. Valley View Hosp. Ass’n, 684
F.3d 950, 957 (10th Cir. 2012).
To establish a prima facie case of a sexually hostile work environment, a
plaintiff must prove: (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., 475 F.3d at 1186. “[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 v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993)); 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 actionable level, the Court must
examine the totality of circumstances, which may include “the frequency of the
8

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 23.6 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.
See id. at 21-22.
STS is not vicariously liable for Chase’s harassment if it can establish the
affirmative defense announced in Faragher v. City of Boca Raton, 524 U.S. 775
(1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). See Kramer
v. Wasatch Cty. Sheriff’s Office, 743 F.3d 726, 745 (10th Cir. 2014). When the

6

In fact, a court is required to consider unreported incidents in determining whether
a hostile work environment existed. DiStasio v. Perkin Elmer Corp., 157 F.3d 55,
62-63 (2d Cir. 1998) (“[U]nreported incidents of harassment alleged by the plaintiff
regarding the issue of hostile work environment, whether or not an explanation for
the failure to report is proffered, stand on the same footing as reported incidents;
both must be taken as true at the summary judgment stage.”).
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employee is not subject to a “tangible employment action,”7 the employer may
establish the defense by proving two elements: (1) the employer exercised
reasonable care to prevent and correct promptly any sexually harassing behavior,
and (2) the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to avoid harm
otherwise. Kramer, 743 F.3d at 745. STS “bears the burden to prove both prongs of
the defense by a preponderance of the evidence.” Id. at 746.8 This requires STS to
“prove both that it acted reasonably in preventing and correcting harassment and that
[Cunningham] unreasonably failed to act by not utilizing complaint opportunities.
[STS] will lose this defense if it fails either prong.” Id. (quotation omitted).
Viewing the evidence in its totality, the Court is persuaded that a reasonable
trier of fact could conclude the conduct at issue was severe enough to create a hostile
work environment. As noted above, the Court does not weigh the evidence at the
summary judgment stage and must construe all facts and inferences in the light most

7

Examples of tangible employment actions include “hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits.” Ellerth, 524 U.S. at 761.
8

“To ‘establish by a preponderance of the evidence’ means to prove that something
is more likely so than not so. In other words, a preponderance of the evidence means
such evidence as, when considered and compared with that opposed to it, has more
convincing force, and produces in this Court’s mind the belief that what is sought to
be proved is more likely true than not true.” Merzon v. County of Suffolk, 767 F.Supp.
432, 444-45 (E.D.N.Y. 1991) (internal citations omitted); see also Metropolitan
Stevedore Co. v. Rambo, 521 U.S. 121, 137 n. 9 (1997).
10

favorable to Cunningham. Here, Chase’s actions of pinning Cunningham to the
ground, putting his hand up her shirt and pulling her pants down, rises to the same
level of severity as sexual assault, and carried patent levels of sexual overtones. Even
putting Chase’s comments aside, the Supreme Court has repeatedly noted that a
claim of discrimination based on the infliction of a hostile working environment
exists if the conduct is severe or pervasive. See Ellerth, 524 U.S. at 752; Faragher,
524 U.S. at 786; Harris, 510 U.S. at 21; Meritor Sav. Bank, FSB v. Vinson, 477 U.S.
57, 67 (1986).
As the Seventh Circuit Court of Appeals observed: “[a]lthough less severe
acts of harassment must be frequent or part of a pervasive pattern of objectionable
behavior in order to rise to an actionable level, ‘extremely serious’ acts of
harassment do not.” Smith v. Sheahan, 189 F.3d 529, 534 (7th Cir. 1999). This
statement is in accord with the Supreme Court’s instruction that an isolated incident
will not amount to discriminatory changes in the terms and conditions of
employment “unless extremely serious.” Faragher, 524 U.S. at 788. Indeed, a
number of federal courts, including the Tenth Circuit, have either allowed for or
acknowledged the viability of sexual harassment claims based on conduct similar in
its severity. See, e.g., Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir.
1998) (finding a “single incident” in which a customer pulled a waitress by the hair,
grabbed her breast, and placed his mouth on it severe enough to create an actionable
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hostile work environment); Turnbull v. Topeka State Hosp., 255 F.3d 1238, 124344 (10th Cir. 2001) (holding that “[w]hile there was only one incident, it was
objectively abusive, dangerous, and humiliating, and [plaintiff] was so traumatized
she was unable to return to work thereafter.”); Gerald v. Locksley, 849 F. Supp. 2d
1190, 1232 (D.N.M. 2011) (“Rape and other forms of severe sexual assault are the
archetypical examples of single incidents which can establish a hostile work
environment.”).9
The Court also finds that the Faragher/Ellerth defense does not shield STS
from liability for two reasons. First, the evidence supports a finding that
Cunningham suffered a tangible employment action. When she expressed interest in
keeping her job, Cunningham was told instead to seek unemployment and was later

9

See also Fall v. Indiana Univ. Bd. of Trustees, 12 F. Supp. 2d 870, 879 (N.D. Ind.
1998) (single incident where supervisor “forcibly grabbed and kissed the Plaintiff
while forcing his hand inside her blouse to grope her breasts, a very private and
intimate part of a woman’s body” could constitute hostile work environment; noting
that “while the fact remains that the Plaintiff has alleged only a single, isolated
incident of sexual harassment, the Seventh Circuit has clearly indicated that a single
incident of harassment may support an actionable hostile environment claim.”);
Redman v. Lima City Sch. Dist. Bd. of Educ., 889 F.Supp. 288, 293 (N.D. Ohio 1995)
(finding incident where defendant forced plaintiff against wall and fondled and
rubbed her in a sexual manner was “an example of extremely severe sexual
harassment. … In addition, plaintiff was subjected to lesser forms of sexual
harassment. … Although these other incidences in themselves may not rise to an
actionable level when they occur over a period of short duration, in combination
with the physical assault, I conclude that a rational fact-finder could conclude that
plaintiff was subjected to sex-based conduct that was so severe and pervasive that
she could prevail on her hostile environment claim.”).
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terminated. Second, because Cunningham complained within a short time period,
the evidence supports a finding that she did not “unreasonably fail” to take advantage
of

STS’s

complaint

procedures.

Subsequent

decisions

construing

the

Faragher/Ellerth defense, however, suggest that it may be available to a defendant
even when a plaintiff promptly lodges a complaint. In McCurdy v. Arkansas State
Police, which is cited by STS, the Eighth Circuit dealt with the problem of applying
the Faragher/Ellerth defense in a case involving a single incident of harassment and
where the employee promptly complained. 357 F.3d 762 (8th Cir. 2004), cert.
denied, 543 U.S. 1121 (2005). The court first distinguished the facts of Faragher
and Ellerth on the ground that, when “craft[ing] the two-prong affirmative defense
to strict liability, [the Supreme Court] was not addressing an employer who takes
swift and effective action the minute it learns of a single incident of supervisor sexual
harassment.” Id. at 771. Rather, both cases dealt with harassment that persisted
without complaint over a long period of time.
The Eighth Circuit then held that, in light of the Supreme Court’s earlier ruling
in Meritor Savings Bank FSB v. Vinson, cited supra, an employer is not strictly liable
for supervisor harassment absent a tangible employment action, the defendant was
“entitled to a modified [Faragher/Ellerth] affirmative defense, despite the
[defendant’s] inability to prove the second element.” McCurdy, 357 F.3d at 771-72.

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The Court reasoned that to deny the defendant the availability of the
Faragher/Ellerth defense would be essentially to impose strict liability. Id. at 774.
However, in Harrison v. Eddy Potash, Inc., 248 F.3d 1014 (10th Cir. 2001),
the Tenth Circuit noted it had rejected the “modified [Faragher/Ellerth] defense”
and held that “there is no reason to believe that the ‘remarkably straightforward’
framework outlined in Faragher and [Ellerth] does not control all cases in which a
plaintiff employee seeks to hold his or her employer vicariously liable for a
supervisor’s sexual harassment”). See id. at 1025-26. Also, in Chapman v. Carmike
Cinemas, 307 F. App’x 164 (10th Cir. 2009) (unpublished), cited by STS, the circuit
court acknowledged McCurdy but noted its continued requirement that the employer
prove the employee did not promptly report the single-incident offense before the
employer may avail itself of the Faragher/Ellerth defense. See id. at 170.
Accordingly, although the facts support a finding that STS exercised
reasonable care to prevent and correct any sexually harassing behavior, it has not
shown by a preponderance of the evidence that Cunningham unreasonably failed to
take advantage of any preventive or corrective opportunities to avoid harm
otherwise. Viewing the evidence in the light most favorable to Cunningham, the
Court finds the Faragher/Ellerth defense inapplicable under the circumstances.
STS’s Motion is denied on this issue.

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II.

RETALIATION
In the Tenth Circuit, a plaintiff bringing a retaliation claim “must establish

that retaliation played a part in the employment decision and may choose to satisfy
this burden in two ways.” Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998
(10th Cir. 2011) (citing Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1224-25 (10th
Cir. 2008)). Under the “direct/mixed motives” approach, “the plaintiff may directly
show that retaliatory animus played a ‘motivating part’ in the employment decision.”
See id. If the plaintiff can prove that retaliatory animus was a motivating factor, the
burden shifts to the employer to demonstrate that it would have taken the same action
irrespective of the retaliatory motive. See id.
If the plaintiff cannot directly establish that retaliation played a motivating
part in the employment decision, she may instead rely on the three-part framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to prove
retaliation indirectly. Twigg, 659 F.3d at 998. Under the McDonnell
Douglas/indirect approach, to establish a prima facie case of retaliation, a plaintiff
must show (1) she engaged in protected opposition to discrimination, (2) a
reasonable employee would have considered the challenged employment action
materially adverse, and (3) a causal connection existed between the protected
activity and the materially adverse action. See id.; Daniels v. United Parcel Service,
Inc., 701 F.3d 620, 638 (10th Cir. 2012). “To be materially adverse, an action must
15

be sufficient to dissuade a reasonable worker from making or supporting a charge of
discrimination. This requires injury rising to a level of seriousness. While the
employer’s conduct need not affect the terms and conditions of employment, the
inquiry is an objective one, and not based on a plaintiff’s personal feelings.” See id.
(internal citations, quotations and paraphrasing omitted). If the plaintiff establishes
a prima facie case, the employer must then offer a legitimate, nonretaliatory reason
for its decision. Twigg, 659 F.3d at 998. Finally, once the employer has satisfied this
burden of production, the plaintiff must show that the employer’s reason is merely a
pretext for retaliation. Id.
STS contends that Cunningham cannot make a prima facie case under
McDonnell Douglas in that she cannot rebut STS’s legimitate, non-retaliatory
reasons for terminating her position, namely, that the Oklahoma City office was
struggling financially and was suffering substantial losses.10 In response,
Cunningham, in conclusory fashion, contends STS “terminat[ed] her employment
for reporting the sexual assault committed by [Chase]” and STS has produced no
documents evidencing its reasoning to terminate Cunningham’s position or to close
the Oklahoma City office. See Pl. Resp. Br. at 11, 15. Although the Court
acknowledges Cunningham’s contentions, at this stage, she has the burden to present

10

For purposes of summary judgment only, STS concedes that the first and second
elements have been met.
16

sufficient evidence in specific, factual form to establish a genuine factual dispute, as
noted above. See Bacchus Indus., 939 F.2d at 891. She may not rest upon mere
allegations or denials; rather, she 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, 358 F.3d at 786. Unsupported conclusory
allegations do not create an issue of fact. Finstuen, 496 F.3d at 1144.
To this end, Cunningham has not carried her burden of showing the proferred
reasons for the termination of her position were mere pretext. STS’s Motion on this
issue is therefore granted.
III.

GENDER DISCRIMINATION
To establish a prima facie case of gender discrimination, a plaintiff must

show: (1) she is a member of a protected category; (2) she was otherwise qualified
for the position at issue and was performing her job in a satisfactory manner; (3) an
adverse action was taken against her; and (4) a similarly situated person outside the
protected class was treated differently than she was treated. St. Mary’s Honor Ctr.
v. Hicks, 509 U.S. 502 (1993). Absent direct evidence of discrimination, claims of
gender discrimination are analyzed under the McDonnell Douglas framework. Tabor
v. Hilti, Inc., 703 F.3d 1206, 1216 (10th Cir. 2013) (noting that “the McDonnell
Douglas test is inapplicable where the plaintiff presents direct evidence of
discrimination.”) (citation omitted).
17

For the reasons stated above, the Court finds summary judgment should be
granted on this issue. Cunningham makes no serious effort to contend that a similarly
situated male (here, Chase) was treated differently than she was treated. To the extent
Cunningham’s response can be construed to make such an argument, such attempt
is perfunctory at best and not sufficiently developed to warrant consideration.
CONCLUSION
Accordingly, Defendant’s Motion for Summary Judgment is GRANTED IN
PART and DENIED IN PART as set forth herein. Defendant’s Motion as to
Plaintiff’s claims for retaliation and gender discrimination is GRANTED.
Defendant’s Motion as to Plaintiff’s claim for hostile work environment is
DENIED.
IT IS SO ORDERED this 29th day of September 2017.

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