Jones v. Wichita State University

• Decision Date: 20 December 2007
• Docket Number: Civil Action No. 06-2131-KHV.
• Citation: 528 F.Supp.2d 1222
• Parties: Kelli D. JONES, Shala J. Perez-Trumbo, and Cynthia Martinez, Plaintiffs, v. WICHITA STATE UNIVERSITY and Paul Dotson, individually and in his official capacity as Chief of the Wichita State University Police Department, Defendants.
• Court: U.S. District Court — District of Kansas

528 F.Supp.2d 1222

Kelli D. JONES, Shala J. Perez-Trumbo, and Cynthia Martinez, Plaintiffs, v. WICHITA STATE UNIVERSITY and Paul Dotson, individually and in his official capacity as Chief of the Wichita State University Police Department, Defendants.

Civil Action No. 06-2131-KHV.

United States District Court, D. Kansas.

December 20, 2007.

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Lawrence W. Williamson, Jr., Williamson Law Firm, LLC, Kansas City, KS, Uzo L. Ohaebosim, Shores, Williamson & Ohaebosim, LLC, Wichita, KS, for Plaintiffs.

Brooke Bennett Aziere, Jeffrey P. Degraffenreid, Foulston Siefkin LLP, Wichita, KS, for Defendants.

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, District Judge.

Cynthia Martinez brings employment claims against Wichita State University ("WSU") and Paul Dotson, Chief of the WSU Police Department. Specifically, plaintiff claims that WSU committed sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., (Counts I and II) and intentional infliction of emotional distress in violation of Kansas common law (Count V). Plaintiff alleges that Dotson denied her equal protection under the Fourteenth Amendment in violation of 42 U.S.C. § 1983 (Count IV).¹ This matter is before the Court on defendants' Motion For Summary Judgment On Claims Of Cynthia Martinez (Doc. # 107) filed September 7, 2007. For reasons set forth below, the Court finds that defendants' motion should be sustained.

Legal Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving parties are entitled to a judgment as a matter of law. See 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 parties bear the initial burden of showing the 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 parties meet their burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which [she] 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. 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 her pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

The Court must view the record in a light most favorable to the party 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 rely 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, 794 (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.

Facts

The following facts are uncontroverted.

In September of 2000, WSU hired Cynthia Martinez to work as a security officer. Since 2004, she has worked as a police officer for the WSU police department. Her duties include patrolling the campus and assisting students, faculty and others as needed. For example, Martinez takes theft and lost article reports, helps with jump-starts, unlocks cars and buildings and escorts individuals to and from buildings. She normally works the second shift.

The WSU police department assigns officers to patrol specified sectors of campus on each shift. Because the campus is relatively small, officers frequently encounter each other as they perform their job duties.² The shift supervisor oversees all police resources on the shift, and may also patrol specific sectors of campus. When Dotson became Police Chief, he encouraged supervisors to monitor and observe patrol officers in the field and hold them accountable for their conduct. According to Dotson, it is extremely important for new officers to be supervised more closely than experienced officers.³

Gary Bequette is a Sergeant with the WSU police department. From February of 2004 to January 31, 2006 he supervised the second shift. Occasionally he showed up unannounced when an officer was responding to a call. Officers on the second shift (both male and female) complained about Bequette's management style and openly expressed their dislike of him. Second shift officers, including Martinez, had "bitch sessions" in which they complained about Bequette. Officer Brandon Fox; who thought that Bequette should be fired, wrote a document called "The Bequette Chronicles" which documented his perception of Bequette's failures as a supervisor. Fox Depo., attached as Ex. B to Defendants' Memorandum Supporting Summary Judgment On Claims of Cynthia Martinez ("Defendants' Memorandum") (Doc. # 108) filed September 7, 2007 at 165.

Some time before June 15, 2005, Dotson attended a meeting with Bequette and second shift officers. Two male officers expressed their opinion that Bequette was following them and looking over their shoulders. They stated that Bequette was showing favoritism to Martinez by assisting with her calls. Bequette explained that he assisted Martinez because she was the junior officer on shift. During this meeting Martinez did not state that any of Bequette's conduct bothered her.

On May 14, 2002, almost two years after she started work for WSU, Martinez and other police officers attended sexual harassment training which was mandatory. Based on that training, Martinez thought she knew the definition of sexual harassment. She was also aware of avenues to report it. On June 15, 2005, all full-time police staff (including Martinez, Bequette and Dotson) attended another training session on WSU sexual harassment policy.

On June 21, 2005, three female police department employees—Martinez, Kelli Jones and Erin Plett—gave Rhonda Cantrell, Associate Director of Employee Relations and Training, written complaints about the conduct of male co-workers.⁴ Martinez alleged that Bequette invaded her personal space, touched her hand when they passed objects to one another and followed her while she was on duty. Ex. 19, attached to Martinez Depo. (Doc. # 108-3) at 1. Specifically, Martinez stated that Bequette frequently got within a couple of inches of her and "groped" or "molested" her hand when she passed him documents or pens. Id. Plaintiffs complaint did not state how many times Bequette groped or molested her hand. In her deposition, plaintiff testified that it was less than "every other day." Bequette never groped or touched any other part of plaintiffs body. Bequette frequently showed up when plaintiff was performing her job duties, particularly on jump-start or unlock calls. Bequette followed male officers as well, Martinez Depo., attached as Ex. A to Defendants' Memorandum (Doc. # 108) at 102-04, but plaintiff alleges that co-workers noticed Dotson following her more than he followed other officers. Bequette never made sexually suggestive or inappropriate comments. Plaintiff complained that when she went to the station to type a report, Bequette would show up to see what she was doing. Male co-workers also complained that Bequette hovered over their shoulders when they prepared reports.

On June 22, 2005, Martinez sent Cantrell the following e-mail concerning her written complaint about Bequette's conduct:

I think I may have confused you yesterday when I talked about how Bequette follows me around on campus. I don't mind it if he wants to talk to me occasionally—the talking is not the problem. What I do mind and don't like is the following me around all day, always seem to be anywhere I am at, or just happening to show up at my location, whenever that may be. I hope I wasn't confusing anyone when I said he will talk to me about nothing in particular. All I meant is that the talking is not a problem, it is the following me around.

Ex. 20, attached to Martinez Depo. (Doc. # 108-3) at KHRC-M 0243.

Martinez talked to fellow officers about Bequette's tendency to follow and invade the personal space of others. Some time in June of 2005, before Martinez filed her complaint, Dotson asked her if Bequette followed her around while she was on shift. Martinez said yes, but did not claim that Bequette engaged in sexual harassment. Before Martinez made her complaint, she never told Bequette, Human Resources or police department upper management that the conduct which described in her complaint made her uncomfortable.⁵

On June 21, 2005, Cantrell interviewed Martinez, Jones and Plett. Cantrell also contacted Dotson, Ted Ayres, WSU Equal Employment Opportunity Director, and Mike Turner, WSU Director of Human Resources, to tell them about the complaint. On June 22, 2005, Cantrell and Dotson began to investigate. During the next several days, they interviewed...