Huffman v. City of Prairie Village, Ks

• Citation: 980 F.Supp. 1192
• Decision Date: 18 September 1997
• Docket Number: No. 95-4121-RDR.,95-4121-RDR.
• Parties: Cindi HUFFMAN, Plaintiff, v. CITY OF PRAIRIE VILLAGE, KANSAS, Defendant.
• Court: U.S. District Court — District of Kansas

980 F.Supp. 1192

Cindi HUFFMAN, Plaintiff, v. CITY OF PRAIRIE VILLAGE, KANSAS, Defendant.

No. 95-4121-RDR.

United States District Court, D. Kansas.

September 18, 1997.

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Harold S. Youngentob, Goodell, Stratton, Edmonds & Palmer, Topeka, KS, for Plaintiff.

Patricia A. Bennett, Bennett, Lytle, Wetzler, Martin & Pishny, L.C., Prairie Village, KS, Rebecca S. Yocum, Sloan, Listrom, Eisenbarth, Sloan & Glassman, Overland Park, KS, Steven D. Steinhilber, Thaddeus J. McDonald, III, Sherman, Taff & Bangert, P.C., Kansas City, MO, for Defendant.

MEMORANDUM AND ORDER

ROGERS, Senior District Judge.

This is an employment discrimination case. Plaintiff brings this action against her former employer, the City of Prairie Village, Kansas, under Title VII and 42 U.S.C. § 1983. She also asserts a state law claim of intentional infliction of emotional distress. Her claims are based upon allegations of a sexually hostile work environment at the Prairie Village Police Department. This matter is presently before the court upon defendant's motion for summary judgment, defendant's motion to exclude testimony of James Bannon, and plaintiff's motion to exclude testimony of defendant's expert witnesses. The court has heard oral argument on these motions and is now prepared to rule.

MOTION FOR SUMMARY JUDGMENT

The defendant seeks summary judgment on all of plaintiff's claims. The defendant contends that the uncontroverted evidence in the record requires the entry of summary judgment on the following claims: (1) Title VII claim based on a sexually hostile work environment, (2) Title VII claim of retaliation, (3) Title VII claim of constructive discharge, (4) § 1983 claim based on a sexually hostile work environment, and (5) claim of intentional infliction of emotional distress. Plaintiff counters that genuine issues of material facts remain in dispute on each of these claims.

The general guidelines for analyzing summary judgment motions were reviewed by the Tenth Circuit in Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993):

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 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, 2509-10, 91 L.Ed.2d 202 (1986); Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991). The moving party bears the initial burden of showing that there is an absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). If the moving party meets this burden, the non-moving party then has the burden to come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the non-moving party's case. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). To sustain this burden, the non-moving party cannot rest on the mere allegations in the pleadings. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Applied Genetics Int'l v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).

On January 1, 1990, plaintiff was employed as records clerk for the Prairie Village Police Department. She was subsequently promoted to records clerk II, then to clerk/dispatcher, and finally to dispatcher. Plaintiff tendered her resignation on March 8, 1994. Her last day of employment was March 18, 1994, and her effective termination date was April 1, 1994.

Plaintiff alleges that during her employment at the police department she was subjected to a sexually hostile work environment. She has identified a number of examples of what she regarded as harassment based on her sex. The defendant has selected a number of incidents identified by plaintiff and argued why they do not provide support for her claim. The court shall consider much of the alleged illegal activity as we address the arguments raised by the defendant.

TITLE VII

The defendant raises five arguments concerning plaintiff's Title VII claims. First, the defendant contends that some of the harassment complained of by plaintiff was not based on sex. Second, the defendant alleges that the harassment complained of did not affect a term, condition or privilege of plaintiff's employment. Third, the defendant argues that the City is not liable under respondeat superior. Fourth, the defendant asserts that it did not retaliate against plaintiff. Finally, defendant argues that plaintiff was not constructively discharged. Sexual harassment is recognized as employment discrimination within the meaning of Title VII. Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405-06, 91 L.Ed.2d 49 (1986). Courts have recognized two distinct categories of sexual harassment claims: quid pro quo harassment and hostile working environment harassment. Hirschfeld v. New Mexico Corrections Dept., 916 F.2d 572, 575 (10th Cir.1990). At the pretrial conference, plaintiff indicated that she was limiting her Title VII claim to a hostile working environment.

In Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1000 (10th Cir.1996), the Tenth Circuit summarized the requirements for a hostile work environment as follows:

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 Savings Bank, FSB v. Vinson, 477 U.S. 57] at 67, 106 S.Ct. [2399] at 2405 [91 L.Ed.2d 49 (1986)] (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).

The existence of sexual harassment must be determined "in light of `the record as a whole' and [courts must examine] `the totality of [the] circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred.'" Meritor Savings, 477 U.S. at 69, 106 S.Ct. at 2406 (citations omitted). The mere utterance of a statement which "`engenders offensive feelings in an employee' would not affect the conditions of employment to [a] sufficiently significant degree to violate Title VII." Id. at 67, 106 S.Ct. at 2405 (citations omitted).

In order to survive summary judgment, plaintiff must show facts that support an inference of a sexually hostile environment and support a basis for liability. See Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir.1994), cert. denied, ___ U.S. ___, 116 S.Ct. 92, 133 L.Ed.2d 48 (1995). Plaintiff must show specifically that under the totality of the circumstances (1) the harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment, and (2) the harassment was sexual or stemmed from sexual animus. Id. "General harassment if not ... sexual is not actionable." Id.

Harassment Complained of Not Based on Sex

The defendant contends that some of the harassment complained of by the plaintiff was not based on sex or was gender neutral. Specifically, the defendant points to the following conduct: (1) rumors that plaintiff was dating Sgt. Dennis Nealey; (2) "lovey, kissey noises" made by Sgt. Joe Ozorkiewicz; (3) cartoons displayed in the department; and (4) actions taken by Lt. Angie Young.

The court shall first consider the matters relating to conduct by Sgt. Ozorkiewicz. Plaintiff contends that the sexually hostile work environment was created in part by the actions of Sgt. Ozorkiewicz. She points specifically to two instances of harassment in her deposition concerning Sgt. Ozorkiewicz. Plaintiff asserts that she heard rumors that she was dating Sgt. Nealey when the two of them were actually just good friends. Plaintiff heard about a remark made by Sgt. Ozorkiewicz to Sgt. Nealey. Sgt. Nealey testified that he recalled on one occasion Sgt. Ozorkiewicz telling Det. Dick Luzier, "You better quit fucking Angie" and then turning around and saying to Sgt. Nealey, "And, Nealey, you better quit fucking [plaintiff]." Sgt. Nealey stated that Sgt. Luzier appeared upset by the remark. Sgt. Nealey was not particularly offended by this remark, but he did make the incident known to a supervisor because Sgt. Luzier appeared to be upset by the comments.

Plaintiff also testified that on other occasions Sgt. Ozorkiewicz made lovey, kissey noises at Sgt. Nealey and her. Sgt. Ozorkiewicz began making these noises in approximately January 1993, and he continued to make them around plaintiff and Sgt. Nealey until the end of plaintiff's employment with the defendant. Plaintiff testified that both she and Sgt. Nealey were offended by this conduct.

Sexual harassment is behavior "that would not occur but for the sex of the employee." Winsor, 79 F.3d at 1000. 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. Id. In determining whether questionable conduct is a result of the employee's sex, the key issue is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. Plakio v. Congregational Home, Inc., 902 F.Supp. 1383, 1389 (D.Kan.1995).

Both the comments concerning plaintiff dating Sgt. Nealey and the noises made by Sgt. Ozorkiewicz were directed at both plaintiff and Sgt. Nealey. These comments...