Ammon v. Baron Automotive Group

• Decision Date: 10 July 2003
• Docket Number: No. CIV.A. 02-2242-KHV.,CIV.A. 02-2242-KHV.
• Citation: 270 F.Supp.2d 1293
• Parties: Loretta AMMON, Plaintiff, v. The BARON AUTOMOTIVE GROUP d/b/a Baron BMW, Defendant.
• Court: U.S. District Court — District of Kansas

270 F.Supp.2d 1293

Loretta AMMON, Plaintiff, v. The BARON AUTOMOTIVE GROUP d/b/a Baron BMW, Defendant.

No. CIV.A. 02-2242-KHV.

United States District Court, D. Kansas.

July 10, 2003.

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Joseph J. Roper, Patricia A. Mullins, Foland Wickens Eisfelder Roper & Hofer PC, Kansas City, MO, for Plaintiff.

David J. Roberts, Kevin D. Case, Case & Roberts, Case & Roberts, PC, Kansas City, MO, for Defendant.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Loretta Ammon filed suit against her former employer, The Baron Automotive Group d/b/a Baron BMW, for sexual harassment and discrimination in violation of Title VII, 42 U.S.C. § 2000e et seq., and intentional and negligent infliction of emotional distress under Kansas state law. This matter comes before the Court on the Motion For Summary Judgment Of The Defendant The Baron Automotive Group (Doc. # 96) filed April 4, 2003. For reasons stated below, the Court sustains defendant's motion in part.

Summary Judgment Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F,3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, All U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, All U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int% Inc. v. First Affiliated Sec, Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Anderson, All U.S. at 250-51, 106 S.Ct. 2505. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, All U.S. at 251-52,106 S.Ct. 2505.

Factual Background

For purposes of defendant's motion for summary judgment, the following facts are uncontroverted, deemed admitted or, where disputed, viewed in the light most favorable to plaintiff.¹

The Baron Automotive Group, Inc. does business as Baron BMW, an automobile dealership in Merriam, Kansas. Bart Cohen, Marion Battaglia and Baron Cass own Baron BMW ("Baron"). In August of 2000, Baron hired plaintiff, a female, to answer telephone calls. Shortly after plaintiff started, she attended training and Baron transferred her to new car sales. She worked as a new car salesperson until she left the dealership in April of 2001.² Although Baron had previously employed a female salesperson, plaintiff was the only female new car salesperson from August of 2000 through April of 2001. During plaintiffs tenure, Battaglia was the general manager at Baron and Scott Miller, the new car sales manager, was her supervisor.

Plaintiffs Affair With Battaglia

From the first week she worked at Baron through January of 2001, plaintiff had a consensual affair with Battaglia. Plaintiff and Battaglia had sex a "couple of times." In the workplace, Battaglia frequently referred to plaintiff as "dolly" or "honey." On one occasion near Battaglia's office, plaintiff and Battaglia discussed a story about oral sex. Plaintiff and Battaglia ended the affair in January of 2001. According to Battaglia, plaintiff became very unstable, would make inappropriate comments and became very mean. On one occasion, Battaglia thought that plaintiff had threatened him by saying "wouldn't it be a scandal if everybody found out about you and I." After the affair was over, she offered him money for sex in a joking fashion.

Baron's Sexual Harassment Policy And Complaints Thereunder

In response to an EEOC questionnaire, plaintiff stated that Baron had a well-publicized policy regarding harassment and a procedure for asserting complaints, and that she complained to Battaglia about sexual harassment. During its annual reviews, Baron requires each new car salesperson to acknowledge the anti-harassment policy which is part of the employee manual. Baron states that it has an open door policy which allows employees to discuss their concerns with any manager. Employees could report sexual harassment to their immediate supervisor or if their supervisor was the harasser, to Battaglia, Cohen, or Eileen Alsbrooks (the human resources manager).

From 1994 through 2001, Reva Weathered was Baron's office manager. During Weathered's tenure, no one made a formal complaint of harassment and she can recall no informal complaints. Except on one occasion where Battaglia told Weathered that plaintiff needed to be instructed not to wear short skirts, Weathered cannot recall any conversations with Battaglia about plaintiff.

From January through April of 2001, Baron employed Gail Fuller as a human resources employee. No employee complained to Fuller about sexual harassment or gender discrimination. During her tenure, Fuller left messages daily for Battaglia about gender discrimination and sexual harassment. She also told Battaglia that she thought that employees were afraid to talk to her about sexual harassment or discrimination.

Fuller also recommended that Wynn Fielder, a new car salesperson, be terminated because she felt that he harassed her.³ Fuller never witnessed any harassment of plaintiff. Fuller testified that employees did not follow Baron's sexual harassment policy. Fuller and Terry Sommerset, a new car salesperson, felt that Baron did not have anyone for employees to complain to regarding sexual harassment and discrimination because management would not take any action. Fuller also testified that she did not have upper management's cooperation in enforcing Baron's sexual harassment and discrimination policies.

In January of 2001, Tim Suarez, who had worked at Baron before plaintiff was hired, returned to the dealership as finance director. Baron trained Suarez that if he received a complaint, he should report it to Battaglia or the office manager and take corrective action. Suarez testified that if someone informed upper management of unwelcome sexual comments, a manager should write up the individual and report the incident. Suarez stated that unwelcome sexual comments were not tolerated. Suarez recalls reporting one incident of sexual harassment when a female salesperson reported that she received calls late at night from her boss. The salesperson had taped the phone call which included inappropriate language. The salesperson reported the incident to Suarez and played a tape recording of the phone call. Although Suarez believed that the female salesperson and her boss might have had a consensual relationship, Suarez reported the incident to Alsbrooks.

Workplace Environment And Sexual Comments

At Baron, new car salespeople often had free time when few or no customers were in the showroom. During those times, salespeople generally talked with each other. Plaintiff often sat near the front door with two other salespeople: Fielder and Marty Levine. Plaintiff spent most of her time at the dealership with Fielder, Levine, Joe Lasker and Battaglia.

Many employees believed that Battaglia and plaintiff were having an affair.

On one occasion when plaintiff arrived to work carrying a Fairmont Hotel coffee cup, Miller asked her whether she had a good night at the Fairmont and then sneered and laughed. On another occasion, Miller asked plaintiff whether she had spent the night with a male customer who had been in the dealership the previous day. Miller and Battaglia once told Fuller that plaintiff wanted to use them as sexual toys. Battaglia maintains that he made the comment because plaintiff referred to him and Miller as "boy toys."⁴

Sommerset frequently made comments to plaintiff such as "God, you look hot today" and "I'd love to lick those pants off of you." Plaintiffs Depo. at 174-75; see Plaintiffs Responses To Defendant's First Interrogatories at 12, attached as Exhibit 24 to Exhibits In Support Of Defendant The Baron Automotive Group's Reply In Support Of Its Motion For Summary Judgement (Doc. # 104) filed May 14, 2003. Plaintiff did not complain to Miller or Battaglia about the comments. Plaintiff testified that she ignored the comments and tried to do her work.

Sommerset heard Fielder make sexual comments in plaintiffs presence or about plaintiff about 20 times. Plaintiff never...