Beam v. Concord Hospitality, Inc.

• Decision Date: 15 November 1994
• Docket Number: No. 93-4188-SAC.,93-4188-SAC.
• Parties: Carol BEAM, Plaintiff, v. CONCORD HOSPITALITY, INC., a corporation d/b/a Village Inn Restaurant, Defendant.
• Court: U.S. District Court — District of Kansas

873 F. Supp. 491

Carol BEAM, Plaintiff, v. CONCORD HOSPITALITY, INC., a corporation d/b/a Village Inn Restaurant, Defendant.

No. 93-4188-SAC.

United States District Court, D. Kansas.

November 15, 1994.

William G. Haynes, Frieden, Haynes & Forbes and J. Patrick Walters, Harris & Walters, Topeka, KS, for plaintiff.

John N. Badgerow, Spencer, Fane, Britt & Browne, Overland Park, KS and Jerry L. Pigsley, Lincoln, NE, for defendant.

MEMORANDUM AND ORDER

CROW, District Judge.

On August 26, 1993, Carol Beam commenced this action against Concord Hospitality, Inc., a corporation d/b/a Village Inn Restaurant. Beam's fifteen page complaint alleges, inter alia, that while she was employed by the defendant, a co-worker named Elliott Thurmond made repeated and unwanted sexual advances. Thurmond's conduct was not limited to verbal comments, but also included touching and rubbing against her in an "extremely sexual and offensive manner." Despite numerous complaints to Beam's supervisors, Thurmond's conduct of sexual harassment continued unabated. Beam claims that she was ultimately discharged by the defendant in retaliation for her complaints of sexual harassment by Thurmond. Beam seeks both compensatory and punitive damages.

On March 29, 1994, this court entered a twenty-two page memorandum and order granting in part and denying in part Concord Hospitality's motion to dismiss Counts III, IV, V, VI, VII and VII of Beam's complaint under Fed.R.Civ.P. 12(b)(6). See Beam v. Concord Hospitality, Inc., No. 93-4188-SAC, 1994 WL 129979, 1994 U.S.Dist. LEXIS 4615 (D.Kan. March 29, 1994).

On September 13, 1994, this court entered a seven-page memorandum and order denying Beam's motion to reconsider (Dk. 61). The court also denied Concord Hospitality's motion to dismiss (Dk. 65), but stated:

At the time the court considers the defendant's motion for partial summary judgment, the court will consider all of the arguments advanced by the parties concerning the legal and factual viability of Counts III, IV, V, VI and VII.

By so ruling, the court in no way expresses any opinion upon the merits of the defendant's motion to dismiss. The court believes that consideration of the parties' briefs and arguments advanced in regard to the defendant's motion to dismiss and the defendant's motion for partial summary judgment will afford the court a better opportunity to evaluate the respective positions of the parties.

Beam v. Concord Hospitality, Inc., Case No. 93-4188-SAC, 1994 WL 568871, at *3, 1994 U.S.Dist. LEXIS 14960, at *8 (D.Kan. Sept. 13, 1994).

This case comes before the court upon the Concord Hospitality's motion for partial summary judgment (Dk. 91). Specifically, Concord Hospitality seeks summary judgment on Beam's state law claims of negligence (Counts III, IV, V and VII), failure to provide a harassment-free workplace (Count VI) and outrage (all Counts). Beam has filed a response, and Concord Hospitality has filed a reply.

The court, having considered all of the briefs and arguments of counsel, and the applicable law, is now prepared to rule.

Standards for Summary Judgment

A court grants a motion for summary judgment if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The substantive law governing the suit dictates which facts are material or not. Id. at 248, 106 S.Ct. at 2510. "Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "There are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988).

The movant's burden under Rule 56 of the Federal Rules of Civil Procedure is to lay out the basis of its motion and to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). "A movant is not required to provide evidence negating an opponent's claim." Committee for First Amendment v. Campbell, 962 F.2d 1517, 1521 (10th Cir.1992) (citation omitted).

If the moving party meets its burden, then it becomes the nonmoving party's burden to show the existence of a genuine issue of material fact. Bacchus Industries, Inc. v. Arvin Industries, Inc., 939 F.2d 887, 891 (10th Cir.1991); see Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) ("If the moving party meets this burden, the non-moving party then has the burden to come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the nonmoving party's case."). When the nonmoving party will have the burden of proof at trial, "Rule 56(e) ... then requires the nonmoving party to go beyond the pleadings and by her own affidavits or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). "Unsubstantiated allegations carry no probative weight in summary judgment proceedings." Phillips v. Calhoun, 956 F.2d 949, 951 (10th Cir.1992) (citations omitted); see Martin, 3 F.3d at 1414 (non-moving party cannot rest on the mere allegations in the pleadings); see also Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir.1993) ("Optimistic conjecture, unbridled speculation, or hopeful surmise will not suffice."). The court views the evidence of record and draws inferences from it in the light most favorable to the nonmoving party. Burnette v. Dow Chemical Co., 849 F.2d at 1273.

More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). At the same time, a summary judgment motion is not the chance for a court to act as the jury and determine witness credibility, weigh the evidence, or decide upon competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987).

Uncontroverted Facts

Concord Hospitality sets forth twenty statements of uncontroverted facts. Beam responds to most of the statements as uncontroverted or uncontroverted with the addition of some other facts. On one occasion, Beam merely indicates that a statement of fact is controverted, but fails to cite to any portion of the record supporting her contention. Beam controverts some of the other facts. Beam also sets forth seventy-five additional statements of her own uncontroverted facts. In its reply brief, Concord Hospitality makes no attempt to directly respond to Beam's additional statement of facts.

The court refers Beam to the provisions of D.Kan. Rule 206(c). First, a movant's statement of fact is deemed admitted unless specifically controverted. Second, a memorandum in opposition to a motion for summary judgment "shall begin with ... a concise statement of material facts as to which the party contends a genuine issue exists." Because Beam is not moving for summary judgment, the court sees no reason for the plaintiff to have her own statement of "uncontroverted facts."

In setting forth the uncontroverted facts, the court has endeavored to limit its discussion to those facts necessary to decide the pending motions.

Carol Beam began her employment with Concord Hospitality, d/b/a Village Inn, at 1033 S.W. Gage, Topeka, Kansas in August 1992. Beam was hired by manager Rick Gibbs and started at a rate of pay of $5.50 per hour. Beam's initial supervisors were Gibbs, Brian Bets, Donna Paulsen, and Mike Luman, who replaced Gibbs for a short period. Beam's last supervisors were manager Rexann Adams and assistant manager Peggie Zirger. Beam's job title was Hostess/Key Person. In general, Beam was not interested in working as part of management with Concord Hospitality, although she did consider applying for such a position during one point of her tenure with Concord Hospitality.

Beam was disciplined by Gibbs in September or October 1992 for the restaurant coming up $95 short. On another occasion, Beam was also disciplined by Adams for leaving the safe unlocked and that the safe was $10 short. Beam's job performance was evaluated in November or December 1992 by Adams and Stan Ziemba. Beam was informed that she was doing well and was given a small raise.

In November of 1992, Beam, for the first time, heard sexually harassing remarks from Thurmond in the kitchen area of the restaurant. Beam was running a shift at that particular time. Thurmond told Beam that he "wanted to experience an older woman." Beam walked away from Thurmond after he made this statement. Beam did not complain to anyone about this statement. Beam recalls Thurmond repeating this first comment several times and then Thurmond began "talking about Beam's legs," indicating that "they were big and they would feel good around a man and they could probably do a lot of things." Beam cannot recall when Thurmond said this to her. Beam does recall that it was said in the kitchen and was witnessed by a waitress named Kathy Groves and by a waiter, Ashley Belini. Thurmond also told Beam that her "husband was old...