Schweitzer-Reschke v. Avnet, Inc.

• Decision Date: 06 January 1995
• Docket Number: No. 93-2519-JWL.,93-2519-JWL.
• Citation: 874 F. Supp. 1187
• Parties: Leann M. SCHWEITZER-RESCHKE, Plaintiff, v. AVNET, INC., d/b/a Hamilton-Hall-Mark, formerly Hall-Mark Electronics Corporation, and Steve Lasswell, Defendants.
• Court: U.S. District Court — District of Kansas

874 F. Supp. 1187

Leann M. SCHWEITZER-RESCHKE, Plaintiff, v. AVNET, INC., d/b/a Hamilton-Hall-Mark, formerly Hall-Mark Electronics Corporation, and Steve Lasswell, Defendants.

No. 93-2519-JWL.

United States District Court, D. Kansas.

January 6, 1995.

COPYRIGHT MATERIAL OMITTED

Pantaleon Florez, Jr., Florez & Frost, P.A., Topeka, KS, for Leann M. Schweitzer-Reschke.

Steven G. Piland, Law Offices of Daniel P. Hanson, Overland Park, KS, Ronald M. Gaswirth, T. Michele Baird, Gardere & Wynn, L.L.P., Dallas, TX, Sheryl C. Nelson, Mark W. Untersee & Associates, P.C., Kansas City, MO, for Avnet, Inc. and Steve Lasswell.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

This is a discrimination action in which the plaintiff, Leann M. Schweitzer-Reschke, seeks relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Kansas Acts Against Discrimination, K.S.A. § 44-1001 et seq. ("KAAD"), against the defendants Avnet Inc., d/b/a Hamilton Hall-Mark, formerly known as Hall-Mark Electronics Corp. ("Hall-Mark"), and defendant Steve Lasswell for alleged sexual harassment and constructive discharge. She also brings a claim of negligent infliction of emotional distress under Kansas law against these defendants. Defendants have moved for summary judgment on all of plaintiff's claims (Doc. # 25). For the reasons set forth fully below, defendants' motion is granted.¹

I. Factual Background

The following is a brief summary of uncontroverted facts or facts considered in the light most favorable to plaintiff. Plaintiff, Leann Schweitzer-Reschke, worked for defendant Hall-Mark from 1989 to 1992. For most of that time she was a Product Manager, a position which required her to maintain a good business relationship with representatives of the companies or vendors which supplied products to Hall-Mark. Throughout the entire term of her employment, plaintiff received at least average and acceptable ratings for her work.

In the late spring of 1992, defendant Lasswell, plaintiff's supervisor and the Branch Manager, reassigned one of plaintiff's product lines to another product manager, hampering plaintiff's ability to make money in her position. Plaintiff testified that she was told that the line was taken away from her because she was too young and not knowledgeable enough to deal with this particular representative and that another female employee with more experience who "knew how to suck up and schmooze and kiss ass to this rep" would get the line. Plaintiff further testified that with respect to this same representative, Mr. Lasswell told her that she did not have what it took to "get the special pricing from him, to flirt with him, to build better relationships with him, to do whatever it takes."

Plaintiff stated that Mr. Lasswell had previously told her with regard to this representative to "wear shorter skirts, bat my eyes, flirt with him any way I could to get special pricing and to make him feel good." She interpreted him to mean that she should make this vendor think that she "liked him and liked him a lot." She believed it inappropriate to make a representative think she "wanted him" in order to improve her working relationship with him. She also complained that Mr. Lasswell would periodically tell her she needed to be a "hard ass" or more of a "bitch" to get quotes on time and to get the product on time and that she needed to be more like the previous product manager who "had a way with men." Plaintiff testified that every week for about a year, Mr. Lasswell would ask her about the man who is now her husband (Mr. Lasswell called him "Slinky") and would make unwanted comments or inquiries about whether or not she had had sex the previous weekend. She also testified that Mr. Lasswell would routinely make comments to at least one other female employee referring to that employee's weekends and whether "she was going to do crazy things as far as sexually with other people."

In January of 1992, plaintiff was required to participate in an advertising campaign involving the Motorola Company in which the slogan was "Kiss those babies and win those votes." A picture of plaintiff was taken with her face over the body of a baby doll. Plaintiff made it known that she did not wish to appear in the picture. The lead representative for Motorola and Mr. Lasswell also appeared in the picture, but they posed as "politicians" and not as babies.

Plaintiff testified to a few incidents in which she had disagreements or confrontations with Mr. Lasswell with regard to her job and her job performance. She testified that at times his behavior was "harassing," although not necessarily sexually harassing, and demeaning or humiliating.

Hall-Mark had a formal policy and procedure for reporting claims of sexual harassment in the workplace. Plaintiff was fully aware of this procedure but did not make a formal complaint.

Plaintiff tendered a notice of resignation on July 22, 1992. The day before she had been about two hours late for work and was called to Mr. Lasswell's office. Her husband's car had broken down early that morning and she had felt it necessary to drive her husband to work. Plaintiff testified that:

About 3:30, he called me in to his office — first, he came by my desk and he said, "Slinky" — as he referred to him, had cost him money, and I said "How," and he said, "Come into my office and I'll tell you." I went in his office, and he said, again, that he cost him money because I was gone for two hours that morning where I could have used that two hours booking business or getting better pricing or schmoozing or whatever it was that I was to be doing, and he said that he owned me from 8 to 5, and I said, "Can I leave at 5, then, because I'm always there late and there's never a problem," and he said, "You can leave right now if you want." The conversation started getting rather heated....

Plaintiff contends that while Mr. Lasswell never requested sexual favors from her, he did create a hostile work environment that amounted to sexual harassment under Title VII.² She further contends that Mr. Lasswell's "inappropriate sex based conduct" created intolerable working conditions such that a reasonable person in plaintiff's position would have felt compelled to resign. Finally, plaintiff contends that the defendants have negligently inflicted emotional distress upon her and that she is entitled to relief on this basis as well. Defendants deny plaintiff's allegations and move for summary judgment on all three remaining claims: sexual harassment, constructive discharge and negligent infliction of emotional distress.

II. DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c); Anthony v. United States, 987 F.2d 670, 672 (10th Cir.1993). The court views the evidence and draws any inferences in a light most favorable to the party opposing summary judgment, but that party must identify sufficient evidence which would require submission of the case to a jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-52, 106 S.Ct. 2505, 2510-12, 91 L.Ed.2d 202 (1986); Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir.1991). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 533 (10th Cir.1994) (citing Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11). The relevant 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 251-52, 106 S.Ct. at 2511-12.

B. Sexual Harassment

Two principal theories of sexual harassment may be shown under Title VII³: quid pro quo discrimination and hostile work environment. Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir. 1993) (citing Meritor Sav. Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). Plaintiff's claim here is based on the latter theory. To make a prima facie case of hostile work environment under Title VII, plaintiff must show that: (1) she is a member of a protected group; (2) the conduct in question was unwelcome; (3) the harassment was based on sex; (4) the harassment was sufficiently severe or pervasive to create an abusive working environment; and (5) that some basis exists for imputing liability to the employer. See Schindler v. Larry's IGA, Inc., No. 92-1033-PFK, 1994 WL 324563, at *2 (D.Kan. June 16, 1994); Ball v. City of Cheyenne, 845 F.Supp. 803, 809 (D.Wyo.1993) (citing Paroline v. Unisys Corp., 879 F.2d 100, 105 (4th Cir.1989)).

To prevail under a hostile work environment theory, plaintiff must show that sexual conduct had the "purpose or effect of unreasonably interfering" with her work performance or created an "intimidating, hostile, or offensive working environment." Martin, 3 F.3d at 1414. Sexual harassment is actionable where the "workplace is permeated with `discriminatory intimidation, ridicule, and insult, ... that is sufficiently severe and pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., ___ U.S. ___, ___, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993). Casual or isolated manifestations of a discriminatory environment are not sufficient to demonstrate a hostile working environment under the law. Hicks v. Gates Rubber Co., 833 F.2d 1406, 1414 (10th Cir.1987). "Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances." Sauers v. Salt Lake County, 1 F.3d 1122, 1126 (10th Cir.1993). These may include:

... the frequency of the discriminatory conduct; its severity; whether it is physically threatening

...