White v. Midwest Office Technology, Inc.

• Decision Date: 28 April 1998
• Docket Number: Civil Action No. 96-4116-DES.
• Citation: 5 F.Supp.2d 936
• Parties: Sara Pauline WHITE, Plaintiff, v. MIDWEST OFFICE TECHNOLOGY, INC., and its representatives, Metro-Plex Information Systems, a Division of Midwest Office Technology Inc., and its representatives; David Egly in his representative capacity and in his individual capacity; and Kenneth Illig in his representative capacity and in his individual capacity, Defendants.
• Court: U.S. District Court — District of Kansas

5 F.Supp.2d 936

Sara Pauline WHITE, Plaintiff, v. MIDWEST OFFICE TECHNOLOGY, INC., and its representatives, Metro-Plex Information Systems, a Division of Midwest Office Technology Inc., and its representatives; David Egly in his representative capacity and in his individual capacity; and Kenneth Illig in his representative capacity and in his individual capacity, Defendants.

Civil Action No. 96-4116-DES.

United States District Court, D. Kansas.

April 28, 1998.

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Michael B. Myers, Myers & Myers, Topeka, KS, for Plaintiff.

Julia Riggle McKee, C. Brooks Wood, Cheryl Bloethe Linder, Hillix, Brewer, Hoffhaus, Whittaker & Wright, L.L.C., Kansas City, MO, for Defendants.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This employment discrimination action comes before the court on defendants' Motion for Summary Judgment (Doc. 34). Plaintiff has filed a Memorandum in Opposition to defendants' Motion (Doc. 39). Defendants have filed a Reply (Doc. 53). This case arises out of following claims: (1) sexual harassment and retaliation in violation of the Kansas Act Against Discrimination, Kan. Stat.Ann. § 44-1009 ("KAAD"), and Title VII of the Civil rights Act of 1964, as amended, 42 U.S.C. § 2000e ("Title VII"); (2) employment discrimination on the basis of sex in violation of the KAAD and Title VII; (3) retaliation for filing discrimination complaints in violation of the KAAD and Title VII; (4) state common-law tort of outrage; (5) state common-law tort of retaliation for filing a workers' compensation claim; and (6) breach of implied employment contract. The court has considered the briefs of counsel, the uncontroverted facts and applicable law, and is now prepared to rule.

I. FACTS

The following facts are either uncontroverted or, if controverted, construed in a light most favorable to plaintiff as the non-moving party. Immaterial facts and factual averments not properly supported by the record are omitted.

Plaintiff Sarah Pauline White began working at Metro-Plex Information Systems ("Metro-Plex") in Lenexa, Kansas, on or about September 14, 1987. Metro-Plex is in the business of selling and servicing copy machines and is wholly owned by Kenneth Illig ("Illig") Ms. White had a close working relationship with Mr. Illig while he actively managed Metro-Plex.

Mr. Illig actively managed Metro-Plex until David Egly ("Egly") took over as General Manager in November 1993. Mr. Illig hired Mr. Egly to "grow" the company, primarily by expanding sales. Business began to boom after Mr. Egly became general manager.

Soon after Mr. Egly became general manager, Ms. White's employment responsibilities increased. The working environment also began to deteriorate, in Ms. White's view, as a result of Mr. Egly's offensive conduct. Ms. White kept contemporaneous notes of any work-related event which she considered to be significant. She resigned her employment with Metro-Plex on December 18, 1995, effective December 29, 1995.

These and other relevant material facts are set forth in more detail throughout the court's discussion.

II. SUMMARY JUDGMENT STANDARD

A court shall render summary judgment upon a showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The rule provides that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1985). The substantive law identifies which facts are material. Id. at 248, 106 S.Ct. 2505. A dispute over a material act is genuine when the evidence is such that a reasonable jury could find for the nonmovant. id. "Only disputes over facts that might properly affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.

The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos Nat'l Laboratory, 992 F.2d 1033, 1036 (10th Cir.1993). The movant may discharge its burden "by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1985). The movant need not negate the nonmovant's claim. Id. at 323, 106 S.Ct. 2548.

Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmovant must go beyond the pleadings and, by affidavits or depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (interpreting Fed. R.Civ.P. 56(e)). Rule 56(c) requires the court to enter summary judgment against a nonmovant who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof. Id. at 322, 106 S.Ct. 2548. Such a complete failure of proof on an essential element of the nonmovant's case renders all other facts immaterial. Id. at 323, 106 S.Ct. 2548.

A court must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence. See, e.g., United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir.1986) (stating that "[t]he court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues"). The court's function is not to weigh the evidence, but merely to determine whether there is sufficient evidence favoring the nonmovant for a finder of fact to return a verdict in that party's favor. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Id. at 250, 106 S.Ct. 2505.

III. DISCUSSION¹

A. Application of Statutory Time Limit

42 U.S.C. § 2000e-5(e) provides that a discrimination charge must be filed within 300 days after the alleged unlawful conduct occurs. This filing is a prerequisite to a civil suit under Title VII. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). Defendants contend that many of plaintiff's allegations are time-barred because they occurred more than 300 days before plaintiff filed her EEOC and KAAD charges on June 21, 1995. Plaintiff concedes that many of the alleged acts of harassment occurred outside the time limit imposed by Title VII. She also alleges, however, many incidents which clearly occurred within the 300 day time frame. Plaintiff contends that these incidents, when viewed together with those incidents that occurred outside the time limitation, represent a continuing pattern of discrimination.

The Tenth Circuit recognized the continuing course of conduct doctrine in the context of a gender discrimination claim in Allen v. Denver Pub. Sch. Bd., 928 F.2d 978, 984 (10th Cir.1991). That doctrine provides that a discrimination claim may include challenges to conduct which occurred outside the applicable limitations period of Title VII if the various acts constitute a "continuing pattern of discrimination." Furr v. AT & T Technologies, Inc., 824 F.2d 1537, 1543 (10th Cir.1987). This requires that there "be at least one instance of the discriminatory practice within the filing period for the doctrine to apply, and the earlier acts must be part of a continuing policy or practice that includes the act or acts within the statutory period." Martin v. Nannie and Newborns, Inc., 3 F.3d 1410, 1415 (10th Cir.1993) (quoting Furr, 824 F.2d at 1543). "It is not sufficient merely that acts outside the required time limit had a continuing effect within the statutory time allowed for suit." Martin, 3 F.3d at 1415.

For determining whether specific and related discriminatory acts amount to a discriminatory practice, the Tenth Circuit has adopted the approach taken by the Fifth Circuit in Berry v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971, 981 (5th Cir.1983). Martin, 3 F.3d at 1415. That approach requires the court to consider several nonexclusive factors relevant to the continuing violation question. The first factor is subject matter. Do the alleged violations constitute the same type of discrimination? The second factor is frequency. Were the alleged violations isolated and infrequent or recurring? The third factor is permanence. Was the nature of the alleged violations such that it should trigger an employee's awareness of the need to assert her rights and would the consequences of the act continue in the absence of a continuing intent to discriminate? Id.

Here, plaintiff claims that David Egly repeatedly, throughout her employment with Metro-Plex, made sexually explicit remarks and gestures in her presence, which she objected to and reported to Kenneth Illig. Assuming for purposes of the statute of limitations issue only, that Egly's conduct constitutes sexual harassment, plaintiff's allegations would suffice to establish a continuing pattern of discrimination by Egly and awareness of that harassment by Illig to render that harassment chargeable to Metro-Plex. Defendants argue that plaintiff admitted she considered filing a charge in August 1994, and that if her work environment was, in fact, hostile or abusive, she was fully aware of that fact before September of 1994. Since plaintiff claims she recognized the discriminatory nature of her work environment before September 1994, defendants contend, she...