Budenz v. Sprint Spectrum, L.P., 01-2355-JAR.

• Decision Date: 25 October 2002
• Docket Number: No. 01-2355-JAR.,01-2355-JAR.
• Citation: 230 F.Supp.2d 1261
• Parties: Larry F. BUDENZ, Plaintiff, v. SPRINT SPECTRUM, L.P., a Foreign Limited Partnership d/b/a Sprint PCS, Defendant.
• Court: U.S. District Court — District of Kansas

Page 1261

230 F.Supp.2d 1261

Larry F. BUDENZ, Plaintiff, v. SPRINT SPECTRUM, L.P., a Foreign Limited Partnership d/b/a Sprint PCS, Defendant.

No. 01-2355-JAR.

United States District Court, D. Kansas.

October 25, 2002.

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Donald E. Bucher, Gould, Thompson & Bucher, P.C., Kansas City, MO, for Plaintiff.

Karen R. Glickstein, Robert A. Henderson, Monica M. Fanning, Shughart Thomson & Kilroy, PC, Kansas City, MO, for Defendant.

MEMORANDUM AND ORDER PARTIALLY GRANTING SUMMARY JUDGMENT

ROBINSON, District Judge.

Plaintiff Larry Budenz brought this action pursuant to Title VII of the Civil Rights Act of 1964, as amended,¹ and the Kansas Act Against Discrimination (KAAD),² alleging quid pro quo same sex harassment and retaliation. This matter is before the Court on Defendant Sprint Spectrum, L.P.'s Motion for Summary Judgment (Doc. 26).

UNCONTROVERTED FACTS

The following facts are either uncontroverted or, if controverted, construed in the light most favorable to Plaintiff as the non-moving party.

Plaintiff was hired as a Program Manager in the Vendor and Contract Management Group at Sprint by Jim Fletcher on January 29, 1999 to assist Fletcher with the management of the Lucent contract. Plaintiff initially reported to Fletcher. In May or June of 1999 Fletcher left the group and Plaintiff began reporting to Roger McNeill. McNeill and Plaintiff were the only two individuals who made up the Lucent Team and Plaintiff was the only individual McNeill supervised. Both Fletcher and McNeill reported to Jim Ramsey.

Plaintiff complains of sexual harassment in the form of inappropriate verbal and physical conduct by McNeill. Plaintiff's primary complaint is that McNeill repeatedly massaged Plaintiff's shoulders. These shoulder massages would generally last between one and five seconds and would occur while Plaintiff was working on his computer in his cubicle. McNeill would stand behind him, put both hands on Plaintiff's shoulders and squeeze and rub his thumbs in a circular motion. While doing this, McNeill said nothing, or made small talk. According to Plaintiff, McNeill massaged his shoulders about thirty times between June 1999 and December 10, 1999. McNeill admits that he touched Plaintiff's shoulders on approximately three occasions. Plaintiff testified that he first asked McNeill to stop touching him on July 13, 1999. McNeill denies that Plaintiff ever asked him to stop touching his shoulders.

Plaintiff thought McNeill was massaging his shoulders for sexual reasons. Plaintiff alleges that on one occasion McNeill asked him "Are you trying to get sexy on me?" McNeill denies making the "getting sexy" comment. It is unclear whether Plaintiff believes that McNeill made this comment while massaging his shoulders; or whether Plaintiff believes McNeill was commenting on Plaintiff's attire one day, when his shirt was unbuttoned at the top and his sleeves rolled up. Plaintiff testified that the "getting sexy" comment was the only comment he could recall McNeill making, that was sexual in nature. However, Plaintiff testified that McNeill also made reference to an "alternative life style magazine."

Plaintiff believes that by massaging his shoulders, McNeill intended to solicit sexual favors from Plaintiff, because "it did not appear to be normal for a guy to massage another guy's back" and because McNeill would tell him that Ramsey, the boss, was not pleased with the team's performance and McNeill could help Plaintiff look better in Ramsey's eyes.

Plaintiff "is not sure" about McNeill's sexual orientation, although he knows that McNeill is married. Plaintiff believes that McNeill "might" desire a homosexual experience because McNeill continued to rub Plaintiff's shoulders after Plaintiff asked McNeill to stop doing so. Plaintiff also believes that McNeill might desire homosexual experiences because McNeill told him he had friends with "alternative life-styles," although he admits that this fact "does not necessarily mean that he desires that," but it "would be an indicator." Plaintiff understands that in a work environment people will sometimes touch others on the shoulders and say "good job." He does not believe that such conduct is inappropriate. McNeill denies that he is homosexual or that he has ever desired a homosexual experience.

McNeill gave Plaintiff a written warning on October 19, 1999 for performance issues, including his failure to keep the BTS Order Log updated, failure to update the BTS order project on a timely basis, and Plaintiff's general inability to follow through with projects, meet deadlines, and manage his time and priorities. Plaintiff characterizes these performance issues as "extremely minor" and insufficient to warrant corrective action. Plaintiff met with Kim Klosak in Sprint's Human Resources department shortly after receiving the written warning to discuss the fact that he believed the issues raised were either untrue or petty.

Jim Ramsey concurred with the issues raised in the October 1999 written warning. Ramsey noted that Plaintiff was often late to meetings, often unable to complete projects in a timely fashion, and sometimes Plaintiff presented incomplete work product to Ramsey. Plaintiff concedes that he was "probably" late getting Jim Ramsey information during 1999 and that he was sometimes late for meetings. Plaintiff agrees that he was late providing the Lucent Optimization Pricing Project, although he believes the deadline was "soft" and of less concern because he ultimately saved the company money and reached a good result. However, Plaintiff attributed his tardiness providing McNeill information for Lucent contract review issues to the inability of other departments to commit to specific dates within the allotted time.

McNeill did not give Plaintiff a verbal warning before issuing this written warning in October, 1999. However, before the written warning in October, 1999, there was a meeting in June 1999 where Ramsey's displeasure with the Lucent team in general, and Plaintiff's performance in particular, was noted. Ramsey was aware of this June meeting, as well as one or two follow-up meetings. McNeill had characterized the June meeting as not a verbal counseling, but as setting the stage for future feedback. Ramsey stated that McNeill told Ramsey that other Sprint employees had complained that Plaintiff was not responsive to their concerns, although these concerns were not documented in the 1999 annual review.

Defendant's corrective action procedure consisted of a verbal warning, a written warning and a final written warning. But Defendant's "Employee Human Resources Policy Guide,"³ which sets forth the same three levels of action, provides that "[t]he level of entry into the Corrective Action Process is dependent on the seriousness of the situation and is determined on a case-by-case basis."

Plaintiff admits that until he made an official complaint to Ramsey on December 10, 1999, Ramsey was unaware that McNeill was massaging Plaintiff's shoulders, and that Plaintiff believed McNeill's conduct was inappropriate. About two months after Plaintiff made this official complaint to Ramsey, on February 16, 2000, Plaintiff received his LINK Performance Review, which evaluated his work for calendar year 1999. In this evaluation, Plaintiff received the lowest possible score, a "5" on a scale from 1 to 5 (1 being the best and 5 being "unacceptable"). Jim Ramsey concurred in this evaluation of Plaintiff.

Notably, McNeill, who performed the evaluation and authored the evaluation report, initially proposed a rating of "4" for Plaintiff, but according to McNeill, Defendant's Human Resources Department recommended that the rating be changed to a "5". McNeill acknowledged that Plaintiff should have received a 4, rather than a 5, because Plaintiff had met some of the objectives in this 1999 LINK.

Plaintiff testified that in addition to raising petty concerns in the October 1999 written warning, McNeill made false statements in his 1999 annual evaluation of Plaintiff. For example, McNeill wrote that "a request by the VCM director for a follow-up study to determine if any true savings had been realized has not yet been accomplished." Yet, Plaintiff had produced the brief for this follow-up study on its due date, February 15, 2000. McNeill signed and dated the 1999 annual evaluation on February 16, 2000, just one day after receiving Plaintiff's brief.

Plaintiff believes that the 1999 annual evaluation contained an inaccurate summary of his performance in retaliation for his filing a complaint of same-sex harassment because "[t]here is no other reason I can think of for somebody to go out of their way to make up lies in an evaluation of an employee" and because the evaluation was allowed to stand. The "5" rating which McNeill acknowledged was not appropriate, was not amended until October 2000, after Plaintiff received a "3" rating for the first quarter of 2000.

Ramsey believed that after January 2000, Plaintiff's work on the BTS log improved, but that other performance issues persisted. Plaintiff's performance in the first quarter of 2000 was rated a "3", but this improvement was not recognized until October 2000, when the first quarter performance evaluation was issued. Plaintiff believes that Jim Ramsey deliberately delayed giving him the First Quarter 2000 evaluation, although he admits that he does not know why he believes this delay was because of the fact that he had made a prior complaint of harassment.

In approximately May 2000 Plaintiff was transferred from Roger McNeill's supervision to Natalie Kohrs supervision. When Plaintiff began working for Ms. Kohrs he switched from working with the Lucent contracts to working with the Samsung contracts. Plaintiff had no issues with the way he was treated by Ms. Kohrs nor does he believe the reviews she provided him were retaliatory. Plaintiff received a "3"...