Haehn v. City of Hoisington

• Decision Date: 01 December 1988
• Docket Number: No. 86-1280-C.,86-1280-C.
• Parties: Sherry L. HAEHN, Plaintiff, v. CITY OF HOISINGTON; Tom De Arman, Individually and as City Manager of the City of Hoisington; Wes Teel, individually and as Chief of Police of the City of Hoisington, Defendants.
• Court: U.S. District Court — District of Kansas

702 F. Supp. 1526

Sherry L. HAEHN, Plaintiff, v. CITY OF HOISINGTON; Tom De Arman, Individually and as City Manager of the City of Hoisington; Wes Teel, individually and as Chief of Police of the City of Hoisington, Defendants.

No. 86-1280-C.

United States District Court, D. Kansas.

December 1, 1988.

Karlin Lawing, Jack Focht, Wichita, Kan., for plaintiff.

Casey R. Law, Turner & Boisseau, Joel B. Jackson, Great Bend, Kan., for defendants.

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on several motions of the defendants. Plaintiff asserts claims of civil rights violations and pendent state tort actions from her termination on June 18, 1985, as a police officer and part-time employee of the ambulance service with the City of Hoisington. Plaintiff was the first woman police officer employed by the City of Hoisington, and her employment continued from January of 1985 until her termination in June of the same year.

Plaintiff's husband, Curtis Haehn, brought a related action based on similar facts and allegations on his termination on June 28, 1985, from the position as supervisor of the power plant of the City of Hoisington. Defendants advanced many of the same motions and argument in that case which were addressed by the court in an order filed November 18, 1988. When relevant, appropriate and expeditious, the court will refer to discussion and holdings in that earlier order.

Defendants Tom De Arman and Wes Teel move to dismiss the Title VII claim making the identical argument that they made in Curtis Haehn v. City of Hoisington, No. 86-1279-C 1988 WL 131644 that they were not named parties in EEOC complaints. The court denies the motion for the same reasons stated in the order filed on November 18, 1988.

The City of Hoisington also moves to dismiss any claim of punitive damages against it. Plaintiff again responds that no claim for punitive damages is made against the City of Hoisington. The next matter is defendants' motion for summary judgment.

In ruling on a motion for summary judgment, the trial court conducts a threshold inquiry of the need for a trial and grants summary judgment where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The court is to be concerned with the sufficiency of the evidence, not its weight. Casper v. C.I.R., 805 F.2d 902, 904 (10th Cir.1986.) Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512. There is no genuine issue for trial unless there is sufficient evidence — significantly probative or more than merely colorable — favoring the nonmoving party for a jury to return a verdict for that party. 477 U.S. at 249, 106 S.Ct. at 2510. Where there is but one reasonable conclusion as to the verdict and reasonable minds would not differ as to the import of the evidence, summary judgment is appropriate. 477 U.S. at 250, 106 S.Ct. at 2511.

The movant's burden under Fed.R.Civ.P. 56 is to make an initial showing of the absence of evidence to support the nonmoving party's case. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 345 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987). To show an absence of material fact, the movant must specify those portions of "the pleadings, deposition, answers to interrogatories and admissions on file, together with affidavits if any." Fed.R.Civ.P. 56(c). "Conclusory assertions to aver the absence of evidence remain insufficient to meet this burden." Windon, 805 F.2d at 345 n. 7. The opposing party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts supported by the kinds of evidentiary materials listed in 56(c), which demonstrate a genuine issue remaining for trial. Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. The evidence of the nonmoving party is deemed true and all reasonable inferences are drawn in his favor. Windon, 805 F.2d at 346. "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." (citation omitted.) Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed. 2d 265 (1986).

Defendants' statement of uncontroverted facts is identical to those filed in the husband's case. The wife controverts many facts in the same fashion as her husband did. The court adopts the position enunciated in the earlier order filed in the husband's case.

I. TITLE VII CLAIM—SEXUAL HARASSMENT

Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. §§ 2000e et seq., prohibits employment discrimination on account of race, color, religion, sex and national origin. Sexual harassment is a recognized form of employment discrimination proscribed by Title VII. Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir.1987). Courts have categorized sexual harassment cases into two groups: quid pro quo and hostile work environment. When submission to sexual conduct is made a condition of employment benefits, the case is termed quid pro quo sexual harassment. Henson v. City of Dundee, 682 F.2d 897, 908 (11th Cir.1982). A hostile work environment occurs when "`such sexual conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.'" Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986) quoting 29 C.F.R. § 1604.11(a)(3).

In a claim of a hostile work environment because of sexual harassment, the employee must prove the following for a prima facie case: (1) that the employee belongs to a protected group; (2) that the employee was subject to "unwelcome" sexual harassment; (3) that the harassment complained of affected a "term, condition, or privilege" of employment. Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1557 (11th Cir.1987); see also Hall v. Gus Const. Co., Inc., 842 F.2d 1010, 1013 (8th Cir.1988). To show that the harassment was due to her sex, plaintiff must prove that "but for the fact of her sex, she would not have been the object of harassment." Henson v. City of Dundee, 682 F.2d at 904. Element three is satisfied when plaintiff shows a nexus between the alleged conduct and the existing employment situation. In other words, the sexual harassment "must be sufficiently severe or persuasive `to alter the conditions of the victim's employment and create an abusive working environment.'" Vinson, 477 U.S. at 67, 106 S.Ct. at 2406 quoting Henson, 682 F.2d at 904). Whether the sexual conduct meets this threshold is determined from the totality of the circumstances. Hicks, 833 F.2d at 1414 quoting Bundy v. Jackson, 641 F.2d 934, 943 n. 9 (D.C.Cir.1981). To be actionable, the alleged sexual conduct must be sustained, repeated or persistent. Downes v. F.A.A., 775 F.2d 288, 293 (Fed. Cir.1985). In some instances, the severity of the offensive conduct may reduce the need for sustained exposure. Vermett v. Hough, 627 F.Supp. 587, 606 (W.D.Mich. 1986).

Defendants begin their argument by sifting out of plaintiff's evidence of sexual misconduct those incidents which are not potentially relevant and admissible. Defendants' screen is much finer than the recognized law of the Tenth Circuit as recently enunciated in Hicks v. Gates Rubber Co., 833 F.2d at 1414-1417. In Hicks, the court agreed with the holding of McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C.Cir. 1985), that acts which are not overtly sexual may still constitute sexual acts under Title VII if they would not have occurred but for the sex of the employee. 833 F.2d 1414-1415. The Tenth Circuit also held that incidents of sexual harassment directed at employees other than plaintiff is admissible evidence of a hostile work environment. 833 F.2d at 1415-1416.

For purposes of summary judgment motions, the court cannot exclude from its consideration those allegations of sexual conduct which occurred after work hours. Plaintiff has raised a sufficient question of fact that this conduct has an evidentiary nexus to the work environment.

Plaintiff has adequately controverted defendants' statement of facts as to the incidents of sexual conduct. Plaintiff has brought forward evidence of at least eight such incidents. The alleged incidents are sufficiently pervasive and severe as to alter a condition of her employment. Defendants' motion for summary judgment on this claim is denied.

II. TITLE VII — RETALIATORY ACTION CLAIM

Defendants contend "there is simply no evidence of `retaliatory action'" by them as a result of the content of plaintiff's alleged complaints about sexual harassment. Defendants argue the plaintiff's form of protest is not necessarily protected if it violates legitimate disciplinary rules. In his affidavit, defendant Tom De Arman, the former city manager of the City of Hoisington, states that plaintiff was terminated because her conversations with other city employees interfered with the management of the police department and the city and because of her insubordinate and abusive public remarks about the city administration. Plaintiff controverts the substance of defendants' statement of facts.

A prima facie case of retaliation is shown where (1) plaintiff engaged in protected opposition to Title VII discrimination or participated in a Title VII proceeding; (2) employer took adverse action subsequent to or contemporaneous with such employee activity, and (3) a causal connection exists between the protected...