Sholl v. Plattform Advertising, Inc.

• Decision Date: 17 July 2006
• Docket Number: Civil Action No. 05-2290-KHV.
• Citation: 438 F.Supp.2d 1303
• Parties: Jessica SHOLL, Plaintiff, v. PLATTFORM ADVERTISING, INC., Defendant.
• Court: U.S. District Court — District of Kansas

438 F.Supp.2d 1303

Jessica SHOLL, Plaintiff, v. PLATTFORM ADVERTISING, INC., Defendant.

Civil Action No. 05-2290-KHV.

United States District Court, D. Kansas.

July 17, 2006.

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Gregory Leyh, Gregory Leyh, P.C., Gladstone, MO, for Plaintiff.

Steven D. Horak, Law Office of Steven D. Horak, Overland Park, KS, for Defedant.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Jessica Sholl brings suit against Platt-Form Advertising, Inc., alleging sexual harassment and constructive discharge in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. This matter comes before the Court on Defendant's Motion For Summary Judgment (Doc. # 22) filed March 13, 2006. For reasons stated below, the Court overrules defendant's motion.

I. 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 party is entitled to 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 party bears 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 party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those diapositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., 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 its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"[W]e must view the record in a light most favorable to the parties 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 non-moving 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.

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e). Rule 56(e) also requires that "copies of all papers or parts thereof referred to in an affidavit be attached thereto or served therewith." To enforce this rule, the Court ordinarily does not strike affidavits but simply disregards those portions which are not shown to be based upon personal knowledge or otherwise do not comply with Rule 56(e). Maverick Paper Co. v. Omaha Paper Co., Inc., 18 F.Supp.2d 1232, 1234-35 (D.Kan.1998).

II. Facts

The following facts are either uncontroverted or, where controverted, construed in the light most favorable to plaintiff:¹

PlattForm Advertising, Inc. ("Platt-Form") is an advertising agency which employs between 100 and 300 persons in Olathe, Kansas. From May 17 to September 3, 2004, plaintiff worked there as a graphic designer under manager Brian Hubbard. Shortly after plaintiff began working, Hubbard told department employees that in the 1700s, people shaved their pubic hair and wore it around their waists to ward off disease. Hubbard gave each employee a wig and instructed him or her to take it home and decorate it so that he or she could parade around the office the next day wearing a merkin.² Plaintiff who was the only woman in the department, complained to Hubbard and other employees that she was embarrassed to wear the wig.³ Plaintiff nevertheless decorated her wig with cat toys and paraded it around the office with the other employees in her department.

On a daily basis, plaintiff's co-workers played a comedy channel on XM satellite radio which aired sexual language. In addition, plaintiffs co-workers used foul language daily—language which plaintiff found humiliating and degrading toward women. Chris Bundy, a co-worker, daily used the term "bitch" to refer to women. Bundy and another co-worker, Alex Morales, discussed pornographic websites at work. In doing so, they made humiliating statements about female body parts and discussed women in a negative manner.⁴

In front of Hubbard, plaintiff frequently asked her co-workers to refrain from sexually offensive speech and conduct. Hubbard did nothing about the complaints.

On one occasion, Tammy Platt, Hubbard's supervisor, told plaintiff that her work looked like a phallic symbol. Plaintiff had designed a business college logo which depicted two towers separated by a round dome. Platt made fun of plaintiff and encouraged other employees in the department to make fun of her.

On August 23, 2004, Hubbard told plaintiff that they were going to have "Titty Tuesday."⁵ The next day, August 24, 2004, plaintiff complained of sexual harassment to Dory Winn, human resources manager. Specifically, plaintiff complained about the merkin incident, language in her department, Titty Tuesday and the radio station. Plaintiff stated that she did not complain to Platt because she felt that Platt would not sympathize with her since Platt had made fun of her and humiliated her in front of several people. Winn told plaintiff that she would handle the complaint and talk to Steve Booth, Chief Operating Officer, about it. Later that day, plaintiff gave two weeks' notice of her intent to resign.⁶

Winn reported plaintiff's complaint to Booth, who held a meeting with employees in plaintiffs department. Booth related plaintiff's complaints, stating that plaintiff felt uncomfortable because employees used the word "bitch" in her presence. Booth reviewed the harassment policy and instructed employees to act appropriately. Booth stated that he would investigate the matter and take appropriate action. Booth further warned employees that PlattForm would not tolerate inappropriate comments. Booth told the employees to treat each other fairly and that he would not tolerate any reprisal against plaintiff.

After plaintiff complained, she did not hear any foul language at work. Plaintiff contends that her co-workers ignored her and that this humiliated her. On September 3, 2004, plaintiff stopped working at PlattForm.

PlattForm has a policy, against discrimination and harassment in the workplace. The policy provides as follows:

PlattForm is committed to providing a work environment that is free from all forms of discrimination and conduct that can be considered harassing, coercive or disruptive, including sexual harassment. Actions, words, jokes or comments based on an individual's sex, race, color, national origin, age, religion, disability, sexual orientation or any other legally protected characteristic will not be tolerated.

Sexual harassment is defined as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. The following is a partial list of sexual harassment examples:

• Unwanted sexual advances.

• Offering employment benefits in exchange for sexual favors.

• Making or threatening reprisals after a negative response to sexual advances.

• Leering, making sexual gestures or displaying sexually suggestive objects or pictures.

• Verbal conduct that includes making or using derogatory comments, epithets, slurs or jokes.

• Verbal sexual advances or propositions.

• Physical conduct that includes touching, assaulting or impeding or blocking movements.

• Verbal abuse of a sexual nature, graphic verbal commentaries about an individual's body, sexually degrading words used to describe an individual or suggestive or obscene letters, notes or invitations.

Unwelcome sexual advances (either verbal or physical), requests for sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment when: (1) submission to such conduct is made either explicitly or implicitly a term or condition of employment; (2) submission or rejection of the conduct is used as a basis for making employment decisions; or (3) the conduct has the purpose or effect of interfering with work performance or creating an intimidating, hostile or offensive work environment.

If you experience or witness sexual or other unwanted harassment in the workplace, report it immediately to your supervisor. If the supervisor is unavailable or you believe it would be inappropriate to contact that person, you should immediately contact the Human Resources Department or any other member of management. You can raise concerns and make reports without fear of reprisal or retaliation.

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