Whitmore v. O'Connor Management, Inc.

• Decision Date: 05 October 1995
• Docket Number: No. 94-0785-CV-W-EBH.,94-0785-CV-W-EBH.
• Citation: 899 F. Supp. 425
• Parties: Bettie Jean WHITMORE, Plaintiff, v. O'CONNOR MANAGEMENT, INC., et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

899 F. Supp. 425

Bettie Jean WHITMORE, Plaintiff, v. O'CONNOR MANAGEMENT, INC., et al., Defendants.

No. 94-0785-CV-W-EBH.

United States District Court, W.D. Missouri, Western Division.

October 5, 1995.

Maria North-Harris, North & Associates, Basil L. North, Jr., Kansas City, MO, for plaintiff.

Larry M. Schumaker, Shook, Hardy & Bacon, Kansas City, MO, David P. Madden, Fisher, Patterson, Sayler & Smith, Overland Park, KS, for O'Connor Management, Inc.

John R. Phillips, Mary E. Metz, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, MO, for General Growth Management, Inc.

G. Gordon Atcheson, Blake & Uhlig, P.A., Kansas City, MO, for Local 96 Service Employees International Union.

ORDER

ELMO B. HUNTER, Senior District Judge.

Pending before this Court is Defendant O'Connor Management, Inc.'s ("O'Connor") "MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT WITH RESPECT TO EACH OF PLAINTIFF'S CLAIMS." Plaintiff's Complaint sets forth essentially four separate causes of action against this Defendant: (1) "SEXUAL HARASSMENT UNDER TITLE VII¹ AND R.S.MO. CHAPTER 213;" (2) "RETALIATION BY O'CONNOR;" (3) "EMPLOYER NEGLIGENCE—NEGLIGENT SUPERVISION/RETENTION;" and (4) "NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS." In an attempt at clarity, the Court will address each of these separate causes of action in order and individually.

I. Summary Judgment Standard²

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be rendered 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." In ruling a summary judgment motion, the Court views the facts in the light most favorable to the non-moving party and allows that party the benefit of all reasonable inferences to be drawn from the evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).

When there is no genuine issue about any material fact, summary judgment is proper because it avoids needless and costly litigation and promotes judicial efficiency. Roberts v. Browning, 610 F.2d 528, 531 (8th Cir.1979). Summary judgment is not a "disfavored procedural shortcut," but is "an integral part of the Federal Rules." Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); City of Mt. Pleasant v. Associated Elec. Coop. Inc., 838 F.2d 268, 273 (8th Cir.1988). When a party fails to make a showing sufficient to establish that there is a genuine issue for trial about an element essential to that party's case, and on which that party will bear the burden of proof at trial, summary judgment is appropriate.

A genuine issue of material fact exists if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence favoring the non-moving party must be more than "merely colorable." Id. When the moving party has carried its burden under the rule, its opponent must do more than simply show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Essentially, the question in ruling a motion for summary judgment 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.

II. The Relevant Facts

On April 17, 1991, Plaintiff was employed by O'Connor to work at the Ward Parkway Shopping Center ("the mall"). (Pl.'s & Def.'s Stip. of Facts at 1.) Plaintiff worked for O'Connor from that date until January 31, 1993, when O'Connor was replaced by another management company. Id.; (Def.'s Mot. Summ.J. at 3-4.)

On or about January 3, 1994, Plaintiff filed a "charge of discrimination and supporting Affidavit with the EEOC and MHRC." That charge alleged that

between about May and August 1993 Plaintiff was required to scrub the hallways behind the stores in the mall. Prior to this the work had always been done by someone in maintenance.

No reasons were given for assigning this work to me.

I believe that I have been discriminated against by being assigned this duty. During August 1992 I reported a sexual assault by a male co-worker and I believe that I was assigned this duty in retaliation for my having filed this complaint, in violation of Title VII of the Civil Rights Act of 1964, as amended.³

(Bing Aff.Ex. 1.)

On May 31, 1994, Plaintiff filed a second charge with the EEOC. That charge alleged that

Since approximately August 1991 and continuing to the present, I was subjected to unwelcome sexual advances by a male co-worker. The harassment includes unwelcome verbal and physical advances, including an attempted rape.

Management is aware of the problems I experienced, yet it is my understanding that the male employee only received a two week suspension with pay.

I believe that I was subjected to unwelcome sexual harassment due to my sex (Female), in violation of Title VII of the Civil Rights Act of 1964, as amended.⁴

(Bing Aff.Ex. 3.)

O'Connor first learned of this matter by virtue of a settlement demand letter from Plaintiff's counsel dated July 31, 1994. (Def.'s Mot.Summ.J. at 17.) The present suit was filed some nineteen (19) days later on August 19, 1994.

III. The Relevant Law & Discussion

1. "SEXUAL HARASSMENT UNDER TITLE VII AND R.S.MO. CHAPTER 213"

Title 42 of the United States Code provides, in relevant part, that "it shall be an unlawful employment practice for an employer —(1) to ... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e—2(a) (1994).⁵ The Supreme Court has stated that "a plaintiff may establish a violation of this statute by proving that discrimination based on sex has created a hostile or abusive work environment." Meritor Savings Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986). Although such claims may be brought against an employer, they must be timely and appropriately filed.

Section 2000e-5(e)(1) provides, in relevant part, that

a charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge ... shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice ... such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier.

42 U.S.C. § 2000e-5(e)(1) (1994) (emphasis added).

Because most plaintiffs alleging hostile-environment sexual-harassment point to a number of different acts which comprised and created the "hostile environment", determining when the limitations period began can be difficult. The Eighth Circuit Court of Appeals has stated that when "Title VII violations are continuing in nature, the limitations period contained in § 2000e-5(e)(1) does not begin to run until the last occurrence of discrimination." Hukkanen v. International Union of Operating Eng'rs, 3 F.3d 281, 285 (8th Cir.1993) (citing Gardner v. Morris, 752 F.2d 1271, 1279 (8th Cir. 1985)). Accordingly, a plaintiff will be accorded, at most, three hundred (300) days from the date of the "last occurrence of discrimination" within which to file his/her claim under Title VII.

In the case at hand, it is uncontested that O'Connor ended its employment relationship with Plaintiff on January 31, 1993. Accordingly, and under the facts of this case, it is impossible for there to have been any acts of discrimination by O'Connor, even potentially violative of Title VII, following that date. Therefore, even assuming O'Connor was discriminating against this Plaintiff in violation of Title VII up to and including the last day it managed the mall, the limitations period began, at the latest, on January 31, 1993— and ended, at the latest, on November 27, 1993.

What Plaintiff's argument fails to recognize is that her continuing violation theory is only plausible if it is possible.⁶ Title VII does not expressly prohibit sexual harassment of any kind. What is does prohibit, inter alia, is discrimination based on sex by an employer. As such, it is only to the alleged acts of discrimination by O'Connor this Court may look to determine when the limitations period began. In other words, because only O'Connor was capable of violating Title VII, and only so long as it was Plaintiff's employer, the last date upon which an illegal discriminatory act, which could toll the limitations period against O'Connor, could have occurred, was January 31, 1993.

It is uncontested that Plaintiff filed her first claim of any kind on January 3, 1994—⁷ approximately 337 days after O'Connor ceased its employment relationship with Plaintiff.⁸ Accordingly, and because there are no genuine issues of material fact regarding the above-mentioned dates which would require submission to a jury, this Court may and does decide that as a matter of law Plaintiff's Title VII claims are procedurally barred due to failure to timely file.

2. "RETALIATION BY O'CONNOR"

This claim, also being based on an alleged violation of Title VII, must be dismissed for the same reasons set forth in the foregoing section of this Order.

3. "EMPLOYER NEGLIGENCE—NEGLIGENT SUPERVISION/RETENTION"

Plaintiff...