Wood v. City of Topeka, Kan., Topeka Housing Auth.
| Decision Date | 04 February 2000 |
| Docket Number | No. Civ.A. 98-4011-DES.,Civ.A. 98-4011-DES. |
| Citation | 90 F.Supp.2d 1173 |
| Parties | Dennis G. WOOD, Plaintiff, v. CITY OF TOPEKA, KANSAS, TOPEKA HOUSING AUTHORITY, Defendant. |
| Court | U.S. District Court — District of Kansas |
Cheryl D. Myers, Michael B. Myers, Myers & Myers, Topeka, KS, for Dennis G. Wood, plaintiff.
Marta Fisher Linenberger, Arthur E. Palmer, Goodell, Stratton, Edmonds & Palmer, Topeka, KS, for City of Topeka, Kansas, defendant.
This matter comes before the court on Defendant's Motion for Summary Judgment (Doc. 46). Plaintiff presents claims of sexual harassment, age discrimination, gender discrimination, retaliatory discharge, § 1983 violations of equal protection, due process, and free speech, breach of expressed and implied contract, wrongful discharge, intentional infliction of emotional distress, negligence and loss of consortium. Defendant seeks summary judgment on each of the claims. For the reasons set forth below, the court hereby grants the motion.
All of the facts stated below are either uncontroverted or, if controverted, are construed in a light most favorable to the plaintiff.
The City of Topeka ("City") hired Dennis Wood as a maintenance worker on July 25, 1972. Wood was fifty-two years old when he was fired by the City on February 7, 1997. The City of Topeka claims it fired Wood because two female employees complained of sexual harassment and Wood had a history of sexual harassment complaints. Wood claims he was fired due to age and gender discrimination, and that the city was in breach of contract when it relied on the past incidents of sexual harassment as a basis to fire him.
Wood had a history of sexual harassment. In 1993, Marilyn Lentz and Danielle White each sued the City of Topeka for sexual harassment allegedly committed by Wood. Each case settled, and a record was made in his personnel file. Wood was suspended without pay for thirty days for each complaint.
The City notified Wood in February 1997 that Lisa Munoz ("Munoz") and Cindy Smith ("Smith") filed complaints against him for sexual harassment. The City appointed Peg Brown, from the Human Resources Department, to investigate the complaints. Ms. Brown interviewed the plaintiff and others involved, and summarized her findings in a report. Rod Armstrong, from the Human Resources Department, also questioned the plaintiff. Around that same time, Larry Coates investigated a tenant complaint against Wood. The tenant requested that Wood not be sent back to her apartment because he brushed up against her and made lewd remarks consisting of her doing sexual favors in exchange for work done to her apartment.
Wood was notified by a letter dated February 7, 1997, that he was fired because two complaints alleging sexual harassment had been filed against him and he had two sexual harassment complaints filed against him in the past. Wood filed a claim with the Kansas Human Rights Commission and the Equal Employment Opportunity Commission. Wood also filed a grievance with the union. The union chose not to pursue Wood's claim to arbitration, as provided in the collective bargaining agreement governing Wood's employment. Wood did not pursue arbitration of his claim because he could not afford an attorney. Upon finding an attorney, Wood requested that the City arbitrate his claims, but the City refused because the time to request arbitration had expired. Wood then brought the present action in federal court.
Other facts relevant to plaintiff's claims will be addressed under the appropriate discussion headings below.
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 (1986). The substantive law identifies which facts are material. Id. at 248, 106 S.Ct. 2505. The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos National 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 (1986).
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., Ltd. v. Zenith Radio Corp., 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 ( 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. Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir.1998). The court's function is not to weigh the evidence or determine whether the claims have merit, 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.
Title VII prohibits sexual harassment in the workplace. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 63, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). The plaintiff claims that the sexual harassment he experienced created a hostile work environment. The City argues that the conduct complained of is not sufficiently pervasive or severe to create an objectively hostile work environment.
In order to survive summary judgment, the plaintiff must provide evidence which shows that the harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment, and create an abusive working environment. Meritor, 477 U.S. at 67, 106 S.Ct. 2399. To determine whether the harassment was sufficiently pervasive or severe, the court must consider all the circumstances, including such things as the "frequency of the discriminating conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).
The facts provided by the plaintiff in support of his hostile work environment claim include:
(1) Cindy Smith made a comment to plaintiff concerning a radio announcers remark of how male body parts could determine the size of a man's penis;
(2) the women in the office used vulgar language;
(3) the women in the office flipped people off;
(4) Cindy Smith kissed and hugged Gerald Baldwin, whom she was dating, and rubbed her body against a co-worker; and
(5) Lisa Munoz hugged a co-worker.
The plaintiff has provided no other examples of conduct which contribute to his hostile work environment claim.
"In order to be actionable, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Faragher, 524 U.S. at 787, 118 S.Ct. 2275. The plaintiff has not shown that the actions complained of seriously impacted his work environment, and the court does not believe these actions would impact the work environment of a reasonable person. Casual or isolated manifestations of a discriminatory environment are not sufficient to demonstrate a hostile working environment. Hicks v. Gates Rubber Co., 833 F.2d 1406, 1414 (10th Cir.1987). The isolated incidents and general use of vulgar language complained of are insufficient to show that the harassment was pervasive or severe enough to alter the terms, conditions, or privilege of Wood's employment.
There is simply not sufficient evidence before the court for the plaintiff to meet his burden. Therefore, the court finds summary judgment is proper on plaintiff's claim of hostile work environment.
Wood claims that age was a motivating factor in the City's decision to discharge him, thereby violating the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. and the Kansas Age Discrimination in Employment Act ("KADEA"), Kan.Stat.Ann. § 44-1111, et seq.
Plaintiff argues there is direct evidence of age discrimination. According to Wood, his supervisor, Gerald Baldwin continually made comments during the lunch hour that he would get rid of the older employees. He stated that if he had anything to do with it "the old farts would go first." The plaintiff contends that these comments provide direct evidence that age was a...
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