Adler v. Wal-Mart Stores, Inc., WAL-MART

Decision Date18 May 1998
Docket NumberNo. 97-1026,WAL-MART,97-1026
Citation144 F.3d 664
Parties76 Fair Empl.Prac.Cas. (BNA) 1667, 73 Empl. Prac. Dec. P 45,379, 98 CJ C.A.R. 2540 Darla ADLER, Plaintiff-Appellant, v.STORES, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Richard P. Brentlinger (Robert J. Thomas and Mary E. Toornman with him on the brief), Inman, Flynn & Biesterfeld, P.C., Denver, CO, for Plaintiff-Appellant.

James J. Murphy (Kirk R. McCormick with him on the brief), McCormick & Murphy, P.C., Colorado Springs, CO, for Defendant-Appellee.

Before KELLY, BARRETT, and BRISCOE, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Plaintiff-Appellant Darla Adler appeals from summary judgment granted in favor of Defendant-Appellee Wal-Mart Stores, Inc. on her Title VII claim for hostile work environment sexual harassment and her state claim for intentional infliction of emotional distress. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.


Plaintiff began her employment at the Wal-Mart Distribution Center in Loveland, Colorado, on July 12, 1993. On October 30, 1993, she was assigned to a position in the battery room of the maintenance department. Much of the work in the Center was performed with forklifts, and Plaintiff's duties in this position were to clean and change forklift batteries. In the fall of 1994, she was promoted to forklift mechanic.

Shortly after Plaintiff was assigned to the maintenance department, male and female employees who were not in maintenance, but on the floor, began harassing her. For instance, various forklift drivers suggested that Plaintiff got the position because she is a woman, and must have performed sexual favors for the maintenance manager, Jesse Kirchmeier, to get the position.

In January 1994, Plaintiff reported this to Mr. Kirchmeier and Earl Larson but would not disclose the names of any harassers. Mr. Larson was her immediate supervisor, an hourly employee without any authority to hire, fire, or formally discipline employees. In response to her complaint, Mr. Kirchmeier notified all other area managers that if their forklift drivers could not act appropriately in the maintenance department, the drivers would have to get their managers to take the forklifts in for maintenance. Harassment from floor employees then stopped, and many employees apologized to Plaintiff. After these events, Mr. Kirchmeier asked Plaintiff weekly whether she was having any problems and, until after the events of August 14 discussed below, Plaintiff told him everything was fine.

In December 1993 or January 1994, a coworker of Plaintiff's, Alan Zalaznik, proposed to do some electrical work in her home in exchange for oral sex. A day or so later, Mr. Zalaznik told Plaintiff that he thought he saw her in Mr. Kirchmeier's office with her head bobbing up and down, and insinuated that she had gotten her job by giving sexual favors to Mr. Kirchmeier. Plaintiff reported these incidents to Mr. Larson, who had Mr. Zalaznik apologize to Plaintiff.

In March 1994, in the parking lot and off the clock, Mr. Zalaznik hesitated to walk in the rain. Plaintiff laughed and told him he wouldn't melt, and if he did she would scoop him up. Mr. Zalaznik responded by grabbing his crotch and making a lewd statement. See Aplt.App. at 82. Plaintiff reported the parking lot incident to Mr. Larson, who informed Mr. Kirchmeier. Mr. Larson gave Mr. Zalaznik a verbal warning, and lodged a document in his file to that effect. Mr. Larson also explained to Mr. Zalaznik Wal-Mart's sexual harassment policy and the seriousness of sexual harassment--that he could be fired for such comments--and required Mr. Zalaznik to apologize again to Plaintiff. Mr. Larson considered more severe discipline inappropriate based on this incident because both employees were off the clock and in the parking lot. Harassment from Mr. Zalaznik then stopped.

Other coworkers harassed Plaintiff in various additional incidents, but Plaintiff either did not report them, or cannot recall specifically when or what she may have said to anyone about them. On August 14, 1994, incidents occurred which Plaintiff did report, involving maintenance coworkers Matt Berwick and Ray McFarland. At one point, Mr. Berwick and Mr. McFarland shook a bottle of baby powder at her and said they wanted to powder her bottom. The same day, Plaintiff played a practical joke on Mr. Berwick and Mr. McFarland. She poured water on the foam seats of their cart so that when they sat down their pants were soaked, and they had wet pants the rest of the day. Later that day, Mr. Berwick climbed on the forklift that Plaintiff was operating and wrapped his leg around her. In addition, Mr. McFarland called Plaintiff from a phone at Wal-Mart and told her that he thought she would be fun in bed and that he wanted to meet her in the parts room to have sex. After this call, Plaintiff was frightened and hid under a desk to avoid him.

Plaintiff reported these events to Mr. Larson, who relayed them to Mr. Kirchmeier, who in turn relayed them to the Personnel Director, Bill Clauser. Within a day, Mr. Clauser and Mr. Kirchmeier interviewed Plaintiff, and Mr. Clauser then interviewed about ten individuals, compiling some twenty-seven pages of notes. In his investigation, Mr. Clauser learned of previous unreported incidents of harassment by Mr. Berwick and Mr. McFarland. Mr. Clauser also gained information about Plaintiff's own participation in the joking, including sexually suggestive gestures and comments. In particular, he learned of her apparently joking discussions with coworkers of how she could set up Mr. Kirchmeier on false sexual harassment charges if paid to do so.

As a result of the investigation, Mr. McFarland was given what is called a "Step One" in Wal-Mart's disciplinary scheme. There are four potential verbal warnings short of a Step One. A Step One is a written coaching record. Mr. Berwick was given a Step Three, which is a paid one-day suspension--a "decision day" during which the employee considers whether he or she wants the job, and submits a written corrective plan to return to work. This is the only discipline in Wal-Mart's scheme short of a Step Four, which is termination. Mr. Berwick's discipline was more severe because he initially denied the events. Ms. Adler was given a Step One for her actions. Harassment from Mr. Berwick and Mr. McFarland then stopped.

On November 9, 1994, an employee referred to in the record as Larry (because Plaintiff cannot recall his full name) ran his hand down Plaintiff's back to the tailbone. She cannot recall specifically when; but on November 18, she reported this incident. On November 12, 1994, Steve Runyon ran his fingers through Plaintiff's hair, touching her head and neck, in an attempt to talk her out of taking his forklift. On November 18, Plaintiff reported these events to Mr. Larson and Mr. Kirchmeier. Mr. Clauser interviewed both Mr. Runyon and a Larry Medina, thought to be the Larry harasser. Mr. Runyon admitted his conduct and Mr. Clauser counseled him on Wal-Mart's sexual harassment policy and documented this action in Mr. Runyon's personnel file. Mr. Medina denied any incident, and Mr. Clauser was unable to find anyone who could corroborate Plaintiff's account. Mr. Clauser nevertheless took the opportunity to explain Wal-Mart's sexual harassment policy to Mr. Medina. Plaintiff left work the next day, taking a leave of absence from November 19, 1994 until January 4, 1995, when she resigned.

On appeal, Plaintiff contends the district court erred in granting summary judgment on her Title VII hostile work environment claim by concluding that: (1) Wal-Mart lacked knowledge of unreported incidents of harassment; (2) no perpetrators repeated their harassing conduct; and (3) Wal-Mart's remedial action was adequate, although she later suffered harassment by others. Plaintiff also contends that the district court erred in granting summary judgment on her intentional infliction of emotional distress claim by concluding that the claim is preempted by the Colorado Worker's Compensation statute.

I. Summary Judgment

We review the grant of summary judgment de novo applying the same standard as the district court embodied in Rule 56(c). See Buchanan v. Sherrill, 51 F.3d 227, 229 (10th Cir.1995). Summary judgment is proper if the movant demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, we view the factual record and draw all reasonable inferences therefrom most favorably to the nonmovant. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 781 (10th Cir.1995). 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. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is "material" if under the substantive law it is essential to the proper disposition of the claim. See id. 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 prima facie case, all issues concerning all other elements of the claim and any defenses become immaterial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If there is no genuine issue of material fact, we next determine whether the district court correctly applied the substantive law. See Hirase-Doi, 61 F.3d at 781.

The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In so doing, a movant that will not bear the...

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