Gillum v. Federal Home Loan Bank of Topeka

• Decision Date: 17 June 1997
• Docket Number: Civil Action No. 94-4197-DES.
• Citation: 970 F.Supp. 843
• Parties: Debra Ann GILLUM, Plaintiff, v. FEDERAL HOME LOAN BANK OF TOPEKA and its representatives; and Charles R. Waggoner as defendants' representative and individually, Defendants.
• Court: U.S. District Court — District of Kansas

970 F.Supp. 843

Debra Ann GILLUM, Plaintiff, v. FEDERAL HOME LOAN BANK OF TOPEKA and its representatives; and Charles R. Waggoner as defendants' representative and individually, Defendants.

Civil Action No. 94-4197-DES.

United States District Court, D. Kansas.

June 17, 1997.

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Cheryl D. Myers, Michael B. Myers, Myers & Myers, Topeka, KS, for Debra Ann Gillum.

D. Brad Bailey, Office of U.S. Atty., Topeka, KS, Paul F. Figley, Jeffrey L. Karlin, Frank W. Hunger, U.S. Dept. of Justice, Civil Division, Washington, D.C., for defendants.

Patricia E. Riley, Weathers & Riley, Topeka, KS, Wesley A. Weathers, Weathers & Riley, Topeka, KS, for Federal Home Loan Bank, Charles R. Waggoner.

MEMORANDUM AND ORDER

SAFFELS, Senior District Judge.

This matter is before the court on defendants' Motion for Summary Judgment (Doc. 26). Plaintiff has filed a Memorandum in Opposition to defendants' Motion (Doc. 29). Defendants have filed a Reply (Doc. 46). This case arises out of plaintiff's claim of hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, constructive discharge, and intentional infliction of emotional distress. For the reasons set forth below, defendants' motion is granted.

I. FACTS

The following facts are either uncontroverted or, if controverted, construed in a light most favorable to the plaintiff as the non-moving party. Immaterial facts and factual averments not properly supported by the record are omitted.

Federal Home Loan Bank of Topeka ("FHLB") employed Debra Gillum ("Gillum") as a clerk in its collateral department from June 1989 to June 1993, first under the supervision of Sonia Betsworth ("Betsworth") and then, beginning in November of 1992, under the supervision of Charles Waggoner ("Waggoner"). In June 1993, Gillum resigned from her position at FHLB.

FHLB hired Waggoner in November of 1989 as the collateral review manager. As part of his duties, Waggoner conducted on-site inspections of collateral at the borrowing financial institutions. The collateral assistants, including Gillum, Michele Penry ("Penry"), and Sherri Bailey ("Bailey"), and the collateral review assistant, Sally Zeigler ("Zeigler"), took turns accompanying Waggoner on these inspection trips. As the collateral review manager, Waggoner supervised only the collateral review assistant, Zeigler. He did not supervise any of the collateral assistants until he was named collateral officer in November 1992. On trips, however, Waggoner was clearly in charge and was responsible for evaluating the collateral assistants that accompanied him.

During the time Waggoner worked with Gillum, first as co-worker and then as her supervisor, he engaged in conduct which Gillum claims created a hostile work environment within the meaning of Title VII. Gillum presents evidence of numerous instances of Waggoner's alleged misconduct. These and other relevant material facts are set forth in more detail throughout the court's discussion.

II. SUMMARY JUDGMENT STANDARD

A court shall render summary judgment upon a showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The rule provides that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The substantive law identifies which facts are material. Id. at 248, 106 S.Ct. at 2510. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the nonmovant. Id. "Only disputes over facts that might properly affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.

The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir.1993). The movant may discharge its burden "by showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1985). The movant need not negate the nonmovant's claim. Id. at 323, 106 S.Ct. at 2552-53.

Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The nonmovant must go beyond the pleadings and, by affidavits or depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (interpreting Fed. R.Civ.P. 56(e)). Rule 56(c) requires the court to enter summary judgment against a nonmovant who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof. Id. at 322, 106 S.Ct. at 2552. Such a complete failure of proof on an essential element of the nonmovant's case renders all other facts immaterial. Id. at 323, 106 S.Ct. at 2552-53.

A court must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence. See, e.g., United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir.1986) (stating that "[t] he court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues"). The court's function is not to weigh the evidence, but merely to determine whether there is sufficient evidence favoring the nonmovant for a finder of fact to return a verdict in that party's favor. Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Id. at 250, 106 S.Ct. at 2511.

III. DISCUSSION

A. Sexual Harassment — Hostile Work Environment

Title VII prohibits sexual harassment in the workplace. Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Sexual harassment under Title VII may be shown under either of two principal theories: quid pro quo discrimination or hostile work environment. Id. at 65-66, 106 S.Ct. at 2405. Plaintiff has made no quid pro quo claim that sexual favors were coerced in exchange for employment benefits. See Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir.1987). Rather, she charges that discrimination based on sex created a hostile or abusive work environment.

A hostile work environment exists when a plaintiff is subjected to sexual harassment "sufficiently severe or pervasive `to alter the conditions of the victim's employment and create an abusive working environment.'" Meritor, 477 U.S. at 67, 106 S.Ct. at 2405 (citation omitted). Sexual harassment is behavior "`that would not occur but for the sex of the employee'.... `If the nature of an employee's environment, however unpleasant, is not due to her gender, she has not been the victim of sex discrimination.'" Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1537 (10th Cir.1995) (citations omitted)

In Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), the Supreme Court stated:

Conduct that is not severe or pervasive enough to create an objectively hostile environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation.

This court, therefore, must determine whether a reasonable jury, considering the admissible evidence as presented by plaintiff in opposition to defendants' motion for summary judgment, could find that the alleged conduct was: 1) gender based or stemmed from sexual animus; and 2) pervasive or severe enough to objectively alter the terms, conditions or privilege of employment. Gross, 53 F.3d at 1539 (citations omitted). This determination must be made "in light of the record as a whole' and `the totality of [the] circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred.'" Id. at 1537 (quoting Meritor, 477 U.S. at 69, 106 S.Ct. at 2406).

In opposition to defendants' summary judgment motion, Gillum presents evidence, in the form of deposition testimony, of numerous instances of Waggoner's conduct which she contends establishes the existence of a hostile work environment. The court will first examine each of these situations for the purpose of determining whether they were gender based or stemmed from sexual animus. The court will then determine whether Waggoner's conduct was pervasive or severe enough to alter the terms, conditions or privilege of employment.

Gillum presents evidence showing that Waggoner criticized the quality and quantity of her work. For example, on one occasion Waggoner complained to Gillum's supervisor about alleged errors in her work. On another occasion he complained that she spent too much time making personal telephone calls. He also told others that he could not trust Gillum to do her work. The Tenth Circuit has held that criticism of an employee's work, without some type of gender-specific reference, is not gender-based conduct. Gross, 53 F.3d at 1545-46. Gillum presents no evidence that Waggoner's criticism contained any gender-specific references. Accordingly, a reasonable juror could not properly find that Waggoner's criticism of Gillum's work was...