Ferguson v. Associated Wholesale Grocers, Inc.
| Decision Date | 10 January 2007 |
| Docket Number | No. 05-2388-KHV.,05-2388-KHV. |
| Citation | 469 F.Supp.2d 961 |
| Parties | Michelle FERGUSON, Plaintiff, v. ASSOCIATED WHOLESALE GROCERS, INC., Defendant. |
| Court | U.S. District Court — District of Kansas |
Ronald E. Sandhaus, Leawood, KS, for Plaintiff.
Brian J. Zickefoose, Karen R. Glickstein, Monica M. Fanning, Shughart Thomson & Kilroy, PC, Kansas City, MO, for Defendant.
Plaintiff Michelle Ferguson brings suit against her employer, Associated Wholesale. Grocers, Inc. ("AWG"). Plaintiff alleges sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.
This matter comes before the Court on Defendant's Motion For Summary Judgment (Doc. # 29) filed October 18, 2006. For reasons stated below, the Court sustains the motion in part.
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 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, 477 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, 477 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 she carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co. 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 her 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, 477 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, 477 U.S. at 251-52, 106 S.Ct. 2505.
The following facts are either uncontroverted or, where controverted, construed in the light most favorable to plaintiff:
In February of 2002, Elite Logistics ("Elite") hired plaintiff to work as a receiving clerk in the AWG warehouse in Kansas City, Kansas. On October 24, 2004, AWG took over operations at the warehouse, and hired substantially all of the Elite employees who had been working there. Plaintiff continues to work for AWG.
When plaintiff began working for Elite in February of 2002, she received a copy of Elite's anti-harassment policy.1 She read and understood the policy, which provided that Elite could terminate without notice an employee who subjected other employees to "unsolicited and unwelcome sexual overtures or sexual conduct, either verbal or physical." On June 11, 2003, plaintiff received an updated anti-harassment policy from Elite. The updated policy stated that an employee had a responsibility to tell the harasser to stop and to report the harassment to his or her superior. If the harassment was by a superior, the employee was to complain to human resources. Further, if the employee was not satisfied with the initial handling of the report, the employee was to complain to Elite's human resources manager.
In April of 2004, shift supervisor Rhett Strader began to make inappropriate sexual comments to plaintiff. Strader's initial comments included statements about the way plaintiff was dressed, such as, "I like the way your shirt sticks out."2 Ferguson Depo. at 73 to 74. Plaintiff asked Strader to stop making such comments but he laughed. Plaintiff also overheard Strader make similar comments to other women employees. Plaintiff believed that Strader sexually harassed her "to a certain extent" while she worked for Elite. Plaintiff kept contemporaneous notes concerning Strader's conduct, but she never complained about it to any supervisor or human resources employee.
On September 28, 2004, plaintiff approached Strader to discuss concerns about her supervisor, Cassandra Taylor. During that meeting Strader told plaintiff that he would help her, "but first [plaintiff] had to let him fuck [her]." When plaintiff asked Strader to "be serious" he replied that he was serious. Ferguson Depo. at 69 to 72. As the conversation continued, Strader pulled out money and asked plaintiff to go get a hotel room. Plaintiff did not report this conduct to anyone in a supervisory or human resources position at Elite.
On October 24, 2004, AWG took over all of Elite's operations and employees at the AWG warehouse. The next day, plaintiff received AWG's anti-harassment policy and employee handbook.3 The handbook contained an equal employment opportunity policy which provided that AWG would not discriminate on the basis of sex, race, color, religion, age, national origin, disability or veteran status. It also stated that if an employee had a question about a human resources issue or employment policy, the employee should contact the human resources department.4 The "Harassment Complaint Procedure" provided that an employee who believed that she was the subject of harassment (or who had witnessed harassment) should "immediately" notify the employee's supervisor, the human resources director, the general counsel, the division manager or any officer of AWG. The handbook also stated that if an employee did not believe that the human resources department had adequately resolved an issue, the employee should take the complaint to the next level of management. AWG's anti-harassment policy also prohibited retaliation.
On the first or second day that plaintiff worked for AWG, all warehouse employees — including plaintiff — viewed a sexual harassment training video and received copies of the anti-harassment policy.5 The video included information on what types of behavior might constitute sexual harassment and explained how to report harassment. That day, when Strader made a harassing remark to plaintiff, she reminded him about the video and he replied, "I don't pay attention to that bullshit." When plaintiff watched the training video she believed that Strader had sexually harassed her "to, a certain extent" while the two had worked for. Elite.6
On October 27, 2004 — a few days after plaintiff and Strader started to work for AWG — Strader stuck his hand down plaintiff's pants and touched her vagina. Shortly after this incident, plaintiff discussed the situation with a friend who was a detective with the Police Department in Kansas City, Kansas. At her friend's suggestion, plaintiff secretly tape-recorded two conversations with Strader on November 9, 2004. During the first conversation, Strader asked plaintiff if she would like to be his secretary. She said "no" because of what the job would entail. Strader stated that if plaintiff was his secretary she would have to "come at work and fuck and have fun." In the second conversation, Strader mentioned that he taught Sunday school. Plaintiff expressed surprise because Strader was "the biggest sinner around." He asked what she meant, and plaintiff referred to his groping her. Strader stated that he thought plaintiff liked it and that she "stuck out [her] behind for him to grab." She said that she did not enjoy it. Strader again stated that he thought she enjoyed it. Strader stated that he was a "womanizer."
The next day, on November 10, 2004, plaintiff wrote a letter to AWG complaining that Strader was sexually harassing her. Plaintiff gave the letter to Courtney Sweat, an AWG human resources manager.7 The letter stated as follows:
My name is Michelle Ferguson. I have worked in the AWG warehouse for the past three year[s]. During September and October 2004 I, along with other co-workers, began to have issues and problems with our immediate supervisor over workplace policies, her management practices and professionalism, etc. As a result, I went to the Warehouse Manager, Rhett Strader, to seek his input, advice and help. Since that time, I have been subjected to ongoing inappropriate sexual contact by Mr. Strader including not only verbal harassment by [sic] actual physical contact. I am attaching to this letter my notes documenting each instance that has occurred so far. Given his response to my past rejections I have no reason to believe it will stop. The last physical occurrence so upset me I was luckily able to take my scheduled vacation to avoid contact with him. I am now out of vacation days and have to return to the workplace. I fear for the loss of my job and to be in the same area with him. There is no shift Monday-Thursday, when I work, that he is not physically present.
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