Glover v. Heart of America Management Co.

• Decision Date: 12 January 1999
• Docket Number: No. 98-2125-KHV.,98-2125-KHV.
• Citation: 38 F.Supp.2d 881
• Parties: Sondra L. GLOVER, Plaintiff, v. HEART OF AMERICA MANAGEMENT COMPANY, Iowa Machine Shed Company, Kansas Cooking, Inc., Tom Lehmann, Defendant.
• Court: U.S. District Court — District of Kansas

38 F.Supp.2d 881

Sondra L. GLOVER, Plaintiff, v. HEART OF AMERICA MANAGEMENT COMPANY, Iowa Machine Shed Company, Kansas Cooking, Inc., Tom Lehmann, Defendant.

No. 98-2125-KHV.

United States District Court, D. Kansas.

January 12, 1999.

Rachelle M. Eichenwald, Overland Park, KS, David M. Bryan, Overland Park, KS, for Plaintiff.

Justin J. Johl, Kevin J. Karpin, Margann M. Bennett, Shook, Hardy & Bacon L.L.P., Overland Park, KS, for Defendants.

MEMORANDUM AND ORDER

VRATIL, District Judge.

This matter comes before the Court on the Motion For Summary Judgment Of All Defendants Except Tom Lehmann (Doc. # 99) which Heart of America Management, Iowa Machine Shed Company, and Kansas Cooking, Inc. filed November 16, 1998 and plaintiff's Motion To Amend And Include Claim For Punitive Damages (Doc. # 78) filed October 28, 1998. For the reasons stated below, defendants' motion is sustained in part and denied in part. Plaintiff's motion is denied.

Summary Judgment Standard

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. 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 that there is an 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 it carries the burden of proof." Applied Genetics Int'l. Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co., Ltd. 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 its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"[W]e must view the record in the 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 rest 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, 793 (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.

Undisputed Facts

Defendants argue that the Court should disregard many of plaintiff's factual allegations because she has failed to comply with Fed.R.Civ.P. 56 and D.Kan.Rule 56.1. The Court uses its discretion in its application of the local rules. See Amro v. Boeing Co., 153 F.3d 726, 1998 WL 380510 (10th Cir.1998) (Table, text available on Westlaw at 1998 WL 380510). Plaintiff only makes one factual allegation in her statement of facts, but she provides numerous factual allegations in the argument section of her brief. While the Court does not look with favor on plaintiff's failure to comply with D.Kan.Rule 56.1, she does cite record evidence for most of the factual allegations in the argument section of her brief. Plaintiff has not failed to support her factual allegations; she simply has failed to place these factual allegations in her statement of facts. The Court finds that plaintiff's failure has not prejudiced defendants or prevented the Court from ascertaining plaintiff's relevant factual allegations. The Court therefore accepts plaintiff's properly-supported allegations, despite her failure to comply with D.Kan. Rule 56.1.¹

The following facts are uncontroverted or, where controverted, viewed in the light most favorable to plaintiff:

From May 12 to September 8, 1997, plaintiff worked at the Kansas Machine Shed Restaurant in Olathe, Kansas. Plaintiff alleges that Tom Lehmann, a co-worker who lacked supervisory authority over plaintiff, began harassing her on May 14, 1997, her third day on the job. Over the course of plaintiff's employment, Lehmann asked plaintiff if she "liked it up the butt" and whether her crotch was "soft and wet," and told her that he "liked it bald" while referring to her crotch. Lehmann dressed down to his underwear and stated to plaintiff, "I'll show you mine if you show me yours." Lehmann told plaintiff that he would give her money to see her naked and if she "sucked [him] right now." Lehmann asked plaintiff the color of her undergarments, attempted to guess the color, and on a few occasions correctly did so. Lehmann told another employee that he was able to spy into the restroom. Lehmann told plaintiff that he masturbated while thinking of her. He baked two loaves of bread in the shape of breasts and used them to tease plaintiff. Lehmann pulled plaintiff's hair on over ten occasions and stated, "I bet you look good on your knees." Despite plaintiff's allegations of hair-pulling, she never yelled for help, struck at Lehmann, sought a restraining order against Lehmann, or saw a doctor.

On numerous occasions plaintiff told Brian Fink, her immediate supervisor, about Lehmann's hair pulling. Plaintiff alleges that she complained to management on each day that any alleged inappropriate conduct occurred. Fink referred to plaintiff as "Mrs. Lehmann" on more than one occasion, and he attempted to set up plaintiff on a date with Lehmann. After plaintiff refused, Fink gave plaintiff a poor evaluation. Plaintiff threatened to discuss Lehmann's conduct with Fink's superior, Chris Bernat, who was chief operating executive at the restaurant. In response, Fink placed his hand on plaintiff's shoulder and stated, "You will not go to Chris Bernat. Tom could lose his, job." Plaintiff felt threatened by this incident.

On August 15, 1997, plaintiff first contacted her attorney by telephone. On the same day, defendants became aware that plaintiff was in contact with an attorney. Bernat met with plaintiff to discuss her allegations of sexual harassment. After that discussion, Lehmann stopped harassing plaintiff. On August 16, 1997, plaintiff first met in person with her attorney. Plaintiff alleges that defendants retaliated against her after they learned of her telephone conversation and her plans to meet in person with an attorney.

Plaintiff worked the following hours during her weeks of employment at the restaurant:

May 12-15, 1997-4 days, 31.24 hours total, 7.81 hours per day worked;

May 16-31, 1997-10 days, 83.73 hours total, 8.37 hours per day worked;

June 1-15, 1997-12 days, 91.09 hours total, 7.59 hours per day worked June 16-30, 1997-10 days, 75.95 hours total, 7.59 hours per day worked;

July 1-15, 1997-10 days; 78.90 hours total, 7.89 hours per day worked;

July 16-31, 1997-14 days, 110.96 hours total, 7.92 hours per day worked;

August 1-15, 1997-12 days, 105.44 hours total, 8.78 hours per day worked;

August 16-31, 1997-8 days, 53.18 hours total, 6.64 hours per day worked;

September 1-8, 1997-6 days, 30.56 hours total, 6.59 hours per day worked.

From August 16 through 31, defendants did not schedule plaintiff to work on three days, and plaintiff failed to report on five days because she was sick. From September 1 through 8, plaintiff did not report to work two days because she was sick.² Plaintiff left her employment at the restaurant on September 8. She now works as a letter carrier for the U.S. Postal Service.

Plaintiff alleges that as a result of Lehmann's sexual harassment, she cannot get close to people, trust people, or touch her children or anything intimate. She is afraid to go outside her home and clams up in sexual situations. Plaintiff also alleges that she continues to suffer headaches from Lehmann's hair pulling. Plaintiff has not consulted a physician or sought professional help regarding her emotional distress or headaches. Plaintiff and her former husband sought counseling from a clergy member. Plaintiff has used over-the-counter medications for her headaches. Plaintiff's health insurance benefits would cover X-rays or other treatment for her headaches.³

All of the relevant events occurred at the Kansas Machine Shed Restaurant in Olathe, Kansas. Kansas Cooking, Inc. ("KCI") owns and operates the restaurant. The corporate defendants own and operate a total of 12 restaurants and hotels under the umbrella name Heart of America Restaurants and Inns. Iowa Machine Shed Company ("IMS") owns and operates eight restaurants and hotels under this umbrella. All employees who work at restaurants and hotels under the Heart of America umbrella follow the same policies and procedures, as set forth in an information packet labeled "Heart of America Restaurants and Inns Staff Member Information Packet." The packet states that Mike Whalen is president and owner of the entire Heart of America "company," and lists IMS-owned restaurants as part of this "company." The packet includes a sexual harassment policy that covers the entire "company" and all...