Hindman v. Thompson

• Decision Date: 04 March 2008
• Docket Number: No. 05-CV-306-TCK-PJC.,05-CV-306-TCK-PJC.
• Citation: 557 F.Supp.2d 1293
• Parties: Zelma HINDMAN, Plaintiff, v. Donald THOMPSON, Creek County, and The State of Oklahoma, Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

557 F.Supp.2d 1293

Zelma HINDMAN, Plaintiff, v. Donald THOMPSON, Creek County, and The State of Oklahoma, Defendants.

No. 05-CV-306-TCK-PJC.

United States District Court, N.D. Oklahoma.

March 4, 2008.

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D. Kevin Ikenberry, Renee Williams, Stephen Lawrence Andrew, Andrew Williams & Ikenberry, Tulsa, OK, for Plaintiff.

Clark Otto Brewster, Robert Russell Nigh, Jr., Guy Anthony Fortney, Mark Byron Jennings, Brewster & De Angelis PLLC, Tulsa, OK, Sherry Abbott Todd, Office of the Attorney General, Litigation Section, Oklahoma City, OK, for Defendants.

OPINION AND ORDER

TERENCE KERN, District Judge.

Before the Court is the State of Oklahoma's ("State") Motion for Summary Judgment (Doc. 37), Supplemental Motion for Summary Judgment (Doc. 83),¹ and Defendant Donald Thompson's Amended Motion for Partial Summary Judgment (Doc. 45).

I. Background

In March 1999, Plaintiff Zelma Hindman ("Plaintiff) was hired by then-Creek County District Judge Donald Thompson ("Thompson" or "Defendant Thompson") as his secretary/bailiff. During 2001, Plaintiff viewed a "tube with a cylinder" under Judge Thompson's bench (later identified as a "penis pump") on various occasions. (Trial Tr. at 150, State of Oklahoma v. Donald D. Thompson, CF-2005-16, June 21, 2006, Ex. 2 to State's Mot. for Summ. J.)² Thereafter, in 2003, Plaintiff heard "unusual" sounds in Judge Thompson's courtroom on two or three occasions, which she thought were caused by the air conditioning. (Id. at 151-52.) In August 2003, during a jury trial before Defendant Thompson, Plaintiff returned from an errand and opened the door to the courtroom from the Clerk's office. She observed Thompson with a plastic tube on his penis ("pump" or "penis pump") and "what appeared to be his penis in his left hand." (Id. at 140.)³⁴ After this encounter, Plaintiff testified that she decided to look for another job. (Id. at 155.) She told Lisa Foster ("Foster"), Thompson's court reporter, that she was going to look for another job, although she did not tell Foster what she had seen. (Id. at 152-53.) Plaintiff testified that Thompson fired her on September 26, 2003. Specifically, Thompson first asked Plaintiff if she had found another job, to which she responded "no." (Id. at 154.) Thompson then said "you're fired," and instructed Plaintiff to leave her keys on her desk, (Id.)⁵

Plaintiff was fired immediately after Thompson fired Foster.⁶ The previous day, on September 25, 2003, Foster had testified before the Council on Judicial Complaints ("Council") regarding her observations of Thompson using a penis pump on multiple occasions, putting lotion on his penis, shaving his scrotum, and urinating in a trash can. According to Foster's testimony, Defendant Thompson called Foster into his office on September 26, 2003 and asked her if she was looking for another job. Thompson also asked Foster if she had something she "need[ed] to tell the police about [him]." (Trial Tr. at 121, State of Oklahoma v. Donald D. Thompson, CF-2005-16, June 26, 2006, Ex. 1 to Pl.'s Resp. to State's Mot. for Summ. J.) Foster told Thompson that she "already told someone in Oklahoma City," and Thompson then asked her to tell him what she said in Oklahoma City. (Id. at 122.) Foster asked Thompson if he was firing her, and, according to Foster's testimony, he said "yes, I think that would be the best." (Id.) Finally, Foster also testified that Thompson told her that he was going to fire Plaintiff as well. (Id.)

It was not until after Plaintiff was terminated that she discussed what she had observed — namely, Thompson's use of a penis pump during the August 2003 trial — with another individual. Specifically, the evening after she was fired, she was called by Duke Logan, an investigator for the Council. Logan asked Plaintiff to meet him the next morning at the police station. Subsequent to her interview with Logan, Plaintiff testified before the Council.

Plaintiff thereafter filed suit, asserting claims against the State for violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., wrongful discharge and intentional infliction of emotional distress. Plaintiff further asserted claims against Defendant Thompson for violation of 42 U.S.C. § 1983, tortious interference with employment, and intentional infliction of emotional distress.

II. Summary Judgment Standard

Summary judgment is proper only if "there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). The moving party bears the burden of showing that no genuine issue of material fact exists. See Zamora v. Elite Logistics, Inc., 449 F.3d 1106, 1112 (10th Cir.2006) (citation omitted). The Court resolves all factual disputes and draws all reasonable inferences in favor of the non-moving party. Id. (citation omitted). However, the party seeking to overcome a motion for summary judgment may not "rest on mere allegations" in its complaint but must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The party seeking to overcome a motion for summary judgment must also make a showing sufficient to establish the existence of those elements essential to that party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-33, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

III. State of Oklahoma's Motion for Summary Judgment

The State's Motion for Summary Judgment asserts that summary judgment is proper as to Plaintiffs Title VII and wrongful discharge claims. (See State's Mot. for Summ J. 13-16.)⁷ At the outset, the Court notes that although the State's Motion for Summary Judgment was sixteen pages in length, only three and a half of those pages provide any argument as to why summary judgment should be granted in favor of the State. Further, with regard to certain claims, there is absolutely no legal citation or analysis provided. The Court simply finds this unacceptable. Such a paltry job by the Office of the Attorney General, in addition to demonstrating a complete lack of effort and diligence, does a disservice to the citizens of the State it purports to represent. The State seems to believe that it is the Court's job to create, imply, or research arguments on its behalf. Such is not the case, however, and the State should be more thorough in its argument and legal research in future briefs before this Court.⁸

A. Title VII

Plaintiff has alleged two claims against the State pursuant to Title VII. Specifically, Plaintiff claims that the State, by and through Judge Thompson: (1) subjected her to a sexually hostile work environment; and (2) terminated her employment in retaliation for opposing that environment.⁹ The State argues that summary judgment is appropriate because: (1) Plaintiff is prevented from asserting any claim under Title VII pursuant to the personal staff exemption; (2) the State is protected by the Faragher/Ellerth defense; (3) Plaintiff cannot demonstrate that Defendant Thompson discriminated against her on the basis of her sex; and (4) Plaintiff did not report Thompson's misconduct before she was terminated.

1. Personal Staff Exemption

In its Supplemental Motion for Summary Judgment, the State argues for the first time that Plaintiff does not fall within the classification of individuals to which Title VII applies. Title VII exempts from its definition of "employee" "any person chosen by [an elected] officer to be on such officer's personal staff ("personal staff exemption"). 42 U.S.C. § 2000e(f).¹⁰ According to the State, because Plaintiff was a member of the "personal staff of Thompson, a person "elected to public office," she is not an "employee" who enjoys the protections offered by Title VII. Plaintiff responds by arguing that the State has waived its ability to now assert this argument because it did not previously plead the personal staff exemption as an affirmative defense.

As stated by the Fifth Circuit in Oden v. Oktibbeha County, Mississippi 246 F.3d 458, 467 (5th Cir.2001), "the personal staff [exemption] is an affirmative defense that must be pleaded under [Federal Rule of Civil Procedure] 8(c)" (citing Donovan v. Hamm's Drive Inn, 661 F.2d 316, 317 (5th Cir.1981) (concluding that an exemption under the Fair Labor Standards Act is an affirmative defense that is waived if not pleaded); Brennan v. Valley Towing Co., 515 F.2d 100, 104 (9th Cir. 1975) (holding that an exception under the Fair Labor Standards Act must be pleaded as an affirmative defense); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1271 (3d. ed.2004)). The State therefore waived the personal staff exemption, as it failed to include such defense in both its original and Amended Answer (See Docs. 7 & 77). See Oden, 246 F.3d at 467 (stating "Appellants waived the personal staff exception by failing to raise it in a responsive pleading").¹¹

2. Faragher/Ellerth defense

The State asserts the Faragher/Ellerth defense, arguing that it cannot be held liable for the actions of Thompson, its employee. See Burlington Indus., Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Pursuant to said defense, employers are not automatically liable for hostile work environment sexual harassment perpetrated by their employees. However, if the perpetrator of the hostile work environment sexual harassment is a supervisor with immediate or successively higher authority over the plaintiff, a plaintiff can establish vicarious liability on the part of the employer in one of two ways. First, a plaintiff can demonstrate that the supervisor's behavior "culminate[d] in a tangible employment action" against the plaintiff (e.g., discharge, demotion, or undesirable reassignment). Ellerth, 524 U.S. at 765, 118 S.Ct. 2257....