201 F.3d 784 (6th Cir. 2000), 98-6117, Morris v Oldham County Fiscal Court

Docket Nº:98-6117
Citation:201 F.3d 784
Party Name:Judy G. Morris, Plaintiff-Appellant, v. Oldham County Fiscal Court; John W. Black, County Judge/Executive; Brent Likins, Defendants-Appellees.
Case Date:January 20, 2000
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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201 F.3d 784 (6th Cir. 2000)

Judy G. Morris, Plaintiff-Appellant,

v.

Oldham County Fiscal Court; John W. Black, County Judge/Executive; Brent Likins, Defendants-Appellees.

No. 98-6117

United States Court of Appeals, Sixth Circuit

January 20, 2000

Argued: August 10, 1999

Rehearing and Suggestion for Rehearing En Banc Denied March 3, 2000

Appeal from the United States District Court

for the Western District of Kentucky at Louisville, No. 96-00128--Charles R. Simpson, III, Chief District Judge.

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Kenneth S. Handmaker, MIDDLETON & REUTLINGER, Louisville, Kentucky, Kyle P. Williams, WILDER, LEWIS & WILLIAMS, Jefferson, Indiana, for Appellant.

R. Thaddeus Keal, David Whalin, LANDRUM & SHOUSE, Louisville, Kentucky, Stuart E. Alexander, III, TILFORD, DOBBINS, ALEXANDER, BUCKAWAY & BLACK, Louisville, Kentucky, for Appellees.

Before: KRUPANSKY, BOGGS, and CLAY, Circuit Judges.

BOGGS, J., delivered the opinion of the court, in which KRUPANSKY, J., joined. CLAY, J. (pp. 795-800), delivered a separate opinion concurring in part and dissenting in part.

OPINION

BOGGS, Circuit Judge.

Judy Morris appeals the district court's grant of summary judgment for defendants, who include the Oldham County (KY) Fiscal Court and Brent Likins, her former supervisor at the Oldham County Road Department. Morris claims that she was subjected to sexual harassment and retaliatory harassment by her supervisor, with the assistance or acquiescence of the county officials . Morris sued the defendants under Title VII, 42 U.S.C. § 1983, and the Kentucky Civil Rights Act ("KCRA"). We hold that the district court properly granted summary judgment on Morris's Title VII and KCRA sexual harassment claims, as well as all her § 1983 claims. However, we reverse and remand the district court's grant of summary judgment on Morris's Title VII retaliation claims against the County and her KCRA retaliation claims against the County and Likins.

I

Plaintiff-appellant Judy Morris has been employed by the Oldham County (KY) Road Department since 1984, essentially providing clerical and secretarial duties to

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the Department. In October 1994, defendant-appellee Brent Likins was appointed the new County Road Engineer, and had supervisory authority over plaintiff. According to Morris, Likins frequently told jokes with sexual overtones, once referred to plaintiff as "Hot Lips," and several times made comments about Morris's state of dress.

Likins's first evaluation of Morris's work performance occurred in November 1994; he gave Morris a rating of "excellent." In March 1995, Likins rated Morris's performance as "very good," stating that she was a "very efficient and courteous employee." Upon receiving her evaluation, Morris asked Likins, in front of another one of her supervisors, Jim Lentz, why her rating had declined from "excellent" to "very good." According to Morris, Likins responded by telling her

that I could come into his office and then after we were finished he would mark me excellents [sic] and then we would go from there. And I told him if that is what it took, that he could take his paper and he could have the job because I was not going to tolerate it.

Morris and Lentz both construed this remark as meaning that if Morris performed sexual favors for Likins, Likins would improve her evaluation rating.

Morris complained about these incidents to defendant-appellee County Judge John Black. Black wrote a letter to Likins concerning Likins's alleged behavior, telling Likins that he hoped the two would "work out any problems and differences in which you have [sic]." After receiving this letter, Likins allegedly began giving Morris the "cold shoulder" and became overly critical of her work. After further complaints by Morris, Black transferred Likins's office location from the Road Department to the County Courthouse, out of concern "about everyone's working environment." Black also ordered Likins not to communicate directly with Morris, and not to be around her without a third person present.

Despite Black's directive, Likins allegedly visited the Road Department unaccompanied a total of fifteen times, and called Morris on the telephone over thirty times. Morris believes these calls were made solely for the purpose of harassing her. Additionally, Likins allegedly drove to the Road Department on several occasions, and simply sat in his truck outside the Department building, looking in Morris's window and making faces at her. He also allegedly followed Morris home from work one day, pulled his vehicle up beside her mailbox, and gave her "the finger." Morris also claims that Likins destroyed the television Morris occasionally watched at the Road Department, and threw roofing nails onto her home driveway on several occasions. This behavior by Likins allegedly caused plaintiff to start having anxiety attacks; she left work on sick leave. Morris later briefly returned to work, but left work again in May 1996. At the time the district court rendered its decision on defendants' motions for summary judgment, the county was continuing to hold her job open for her.

On February 14, 1996, Morris sued the County, Black, and Likins, alleging (1) unlawful employment discrimination by reason of sex (quid pro quo and hostile environment sexual harassment) and retaliation, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Civil Rights Act of 1991, 42 U.S.C. § 1981A et seq., and the Kentucky Civil Rights Act, Ky. Rev. Stat. 344.010 et seq.; and (2) intentional infliction of emotional distress. On September 9, 1997, Morris amended her complaint by further alleging that defendants Black and Likins had denied Morris her right to equal protection, in violation of 42 U.S.C. § 1983.

Defendants moved for summary judgment. On November 13, 1997, the district court granted defendant's motion for summary judgment on all claims except Morris's § 1983 claims against Black and Likins. The court held, inter alia, that because Morris had not been subjected to

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any adverse employment action by defendants, her retaliation claim was without merit. It also held that Black and Likins could not be held individually liable under the Kentucky Civil Rights Act. Black and Likins each then moved for summary judgment with respect to the outstanding § 1983 claims, and the court granted summary judgment on these claims for Black on April 30, 1998, and for Likins on July 21, 1998.

Morris now appeals.

II

The district court granted summary judgment to defendants. Summary

judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In this respect, the moving party need not support its motion with affidavits or other similar materials "negating" the opponent's claim, but need only show that "there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Once the moving party has met its burden of production, the nonmoving party must by deposition, answers to interrogatories, and admissions on file show specific facts that reveal a genuine issue for trial. Id. at 324. "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 jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Thus, we must consider "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 251-52.

A. Title VII claims against the County1

After the district court rendered its opinion in the instant action, the Supreme Court decided Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998), which substantially altered the principles to be applied in sexual harassment cases in which a supervisor is alleged to be the guilty party. The holding of the companion cases is the same:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. R. Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm otherwise. While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when

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litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the...

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