Debord v. Mercy Health Sys. of Kan., Inc.

• Decision Date: 20 March 2012
• Docket Number: Case No. 10–4055–SAC.
• Citation: 860 F.Supp.2d 1263
• Parties: Sara C. DEBORD, Plaintiff, v. MERCY HEALTH SYSTEM OF KANSAS, INC., and Leonard Weaver, Defendants.
• Court: U.S. District Court — District of Kansas

860 F.Supp.2d 1263

Sara C. DEBORD, Plaintiff,

v.MERCY HEALTH SYSTEM OF KANSAS, INC., and Leonard Weaver, Defendants.

Case No. 10–4055–SAC.

United States District Court,

D. Kansas.

March 20, 2012.

Bradley D. Serafine, Foulston Siefkin LLP, Wichita, KS, Mark A. Buchanan, Popham Law Firm, Kansas City, MO, Mary T. Malicoat, Law Office of Mary T. Malicoat, LLC, Wichita, KS, for Plaintiff.

Sharon A. Coberly, Monika D. Jenkins, Seigfreid, Bingham, Levy, Selzer & Gee, P.C., Kansas City, MO, for Defendants.

MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.

This case comes before the Court on the following motions for summary judgment: defendant Mercy Health System of Kansas' (Mercy) motion for summary judgment on Plaintiff Sara DeBord's sexual harassment and retaliation claims; defendant Leonard Weaver's motion for summary judgment on Plaintiff's assault and battery claim; and Plaintiff's motion for summary judgment on Weaver's counterclaim for defamation.

I. Summary Judgment Standard

On summary judgment, the initial burden is with the movant to point out the portions of the record which show that the movant is entitled to judgment as a matter of law. Thomas v. Wichita Coca–Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.1992), cert. denied,506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If this burden is met, the non-movant must set forth specific facts which would be admissible as evidence from which a rational fact finder could find in the non-movant's favor. Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998). The non-movant must show more than some “metaphysical doubt” based on “evidence” and not “speculation, conjecture or surmise.” Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bones v. Honeywell Intern., 366 F.3d 869, 875 (10th Cir.2004). The essential inquiry is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether the evidence is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In applying this standard, all inferences arising from the record must be drawn in favor of the nonmovant. Stinnett v. Safeway, Inc., 337 F.3d 1213, 1216 (10th Cir.2003). Credibility determinations and the weighing of the evidence are jury functions, not those of a judge. Id. at 1216. Nevertheless, “the nonmovant must establish, at a minimum, ‘an inference of the existence of each element essential to [her] case.’ ” Croy v. COBE Laboratories, Inc., 345 F.3d 1199, 1201 (10th Cir.2003) (quoting Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir.1994)).

II. Facts

The relevant and admissible facts, construed in the light most favorable to the Plaintiff follow. Additional facts are set forth in the Court's analysis of the arguments.

Plaintiff worked in Mercy's radiology department in Independence, Kansas from March 19, 2004 to July 13, 2009, when she was terminated. She reported directly to Weaver, who was the director of radiology from 1996 until October 2010, when he chose to step down from that position.

Weaver has unusually cold hands and would often say to Plaintiff and her co-workers “feel my cold hands,” then touch the employees' upper arms or the back of their necks. Responses to this practice varied. One employee told Weaver “don't touch me.” Another asked him to keep rubbing, while several said, “your hands are cold, get them off me.” Plaintiff's response was to pull away. Weaver would sometimes rub Plaintiff's back, and she would tell him “Stop, that hurts,” although it didn't hurt. Weaver touched Plaintiff approximately three times a week. Plaintiff never contacted administration to report Weaver's touching, and Plaintiff knows of no co-employee who did so during her employment.

On July 6, 2009, Weaver made negative comments to Plaintiff about her work productivity, which upset Plaintiff. Later that day, Weaver went to the room where Plaintiff was working, put his arm around her and said, “You know I didn't mean it.” Plaintiff spun away, saying, “You just don't talk to people like that.” This event, which the Court refers to as a hug for purposes of convenience, is the sole basis for plaintiff's assault and battery claims.

Later that day, because Plaintiff was upset with Weaver, she posted statements about him on her Facebook account. She did so three separate times, during work hours, via her cell phone, stating:

1. Sara DeBord loves it when my boss adds an extra $600.00 on my paycheck for hours I didn't even work ... awesome!!

2. SB is sooo disappointed ... can't believe what a snake my boss is ... I know, I know everyone warned me.

3. ... he adds money on peoples checks if he likes them (I've been one of them) ... and he needs to keep his creapy (sic) hands to himself ... just an all around d-bag!!

(Ellipses in original).

Plaintiff and other employees testified that Mr. Weaver had a habit of putting his unusually cold hands on their bare arms or on the back of their necks. When was asked what she meant by her “creepy hands” Facebook comment, Plaintiff stated that it referred to Mr. Weaver's cold hands:

Q. And in your Facebook posts when you said “creepy hands,” were you intending to describe something other than cold hands?

A. No. Just that it just gave me the creeps. I mean, it was such an everyday thing that it got to where I could be sitting somewhere and he could come into the area and I wouldn't even have to look, my skin would crawl. I just knew he was there.

Plaintiff's depo., p. 198–94.

Some radiology department employees, including Weaver, became aware of Plaintiff's Facebook posts that same day. That afternoon Weaver took the posts to Eric Ammons, the Director of Human Resources, who was meeting with Plaintiff about an unrelated matter. Ammons asked Plaintiff if she had made the posts, and she denied it. Weaver then brought in his laptop and showed the posts to them. Ammons asked Plaintiff a second time if she had made the posts. Again Plaintiff denied having made them. After Weaver left, Ammons told Plaintiff that he would investigate who made the Facebook posts, as well as her Facebook allegations about Weaver.

On the morning of July 8th, Ammons met with Plaintiff. He told her if she had made the Facebook posts, it would be better for her to admit it. Plaintiff then admitted that she had made the posts, and Ammons responded that he had already discovered that. Ammons then told Plaintiff she was suspended for one day without pay. Plaintiff's suspension form states:

Work related conduct needing improvement: Failure to conduct yourself in a manner consistent with a high degree of personal integrity and professionalism, which is expected of Mercy coworkers. Engaged in behavior deemed harmful to a fellow co-worker. Supporting details: See attached Facebook documents. During counseling Sara admitted to posting information on Facebook.

Ammons depo., p. 5, Exh. C.

After Ammons informed Plaintiff of her suspension, he asked Plaintiff about the “creepy hands” comment, and Plaintiff replied that Weaver was a “perv.” Ammons asked what she meant by that, and Plaintiff replied that Weaver had made comments about her body and would run his hands up inside the arm of her scrubs and down inside the back neck of the scrubs. Ammons asked Plaintiff if she considered that to be sexual harassment, and Plaintiff denied that it was, saying, “No, he is just a pervert.” Ammons told Plaintiff that because the hospital takes such matters seriously, he would refer the matter to Lana Brewster, the risk manager.

Ammons also told Plaintiff that he had the call-back papers. Those papers contained the information which would reveal whether Plaintiff's paychecks were incorrect, as she had alleged on Facebook. Later that afternoon, Plaintiff sent five text messages while at work to co-employee Tena Walsh, including the statements: “Leonard emptied out the drawer where all the call back papers were kept at work. Guilty as charged. To get rid of them.” Ammons became aware that Plaintiff was talking about the matter in the department during working hours, and specifically instructed Plaintiff to keep the matter confidential.

The next day, July 9th, Brewster met with Plaintiff at Ammons' request. Brewster thought that Plaintiff's comment about “creepy hands” might indicate sexual harassment. Plaintiff denied having made and wanting to make a formal report of sexual harassment, but said she had made a verbal report to Ammons. Brewster asked Plaintiff to describe Weaver's conduct, beginning with the most recent to the most remote, and Plaintiff did so. Plaintiff told Brewster of other statements of a sexual nature that Weaver had made to her throughout the years. Brewster told Plaintiff to let her know if she had any more problems. Brewster interviewed Weaver and Kim Harris, a long-time radiology department employee, before concluding that Weaver had not violated Mercy's sexual harassment policy.

Four days later, Plaintiff was terminated. Ammons decided to terminate Plaintiff's employment, and John Woodridge, CEO, and Reta Baker, COO, concurred. Ammons believed that Plaintiff had been dishonest in denying that she had made the Facebook posts, in denying that she had made the Facebook posts while at work, in making unfounded accusations against Weaver about her paycheck, and in breaching confidentiality. Ammons believed that Plaintiff had been disruptive in openly discussing the investigation and in texting on the 8th, after he instructed her to keep the matter confidential. Ammons told Plaintiff she was terminated for disruption, continued texting, and dishonesty. Plaintiff's termination form states that she was terminated for “work related conduct needing improvement: Inappropriate and disruptive Behavior. Dishonest.” Dk. 147, Exh. M.

Discovery in this case revealed that in 2007, Plaintiff had in fact...