United States District Court, D. Kansas
MEMORANDUM & ORDER
JOHN W. LUNGSTRUM, District Judge.
Plaintiff Karleen Hollis filed this lawsuit against her former employer Acoustic Sounds, Inc. asserting claims of sexual harassment and retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and a Kansas common law whistleblower claim. This matter is presently before the court on defendant's motion for summary judgment on all claims (doc. 44). As explained below, the motion is granted in part and denied in part. It is granted on plaintiff's sexual harassment and state law whistleblower claims and is denied on plaintiff's retaliation claim.
The following facts are uncontroverted or related in the light most favorable to plaintiff as the nonmoving party. Defendant Acoustic Sounds, Inc. is a music-related business located in Salina, Kansas that specializes in the sale of LPs, CDs, digital downloads and stereo equipment. Plaintiff Karleen Hollis began her employment with defendant in December 2007. In January 2010, plaintiff was promoted from the warehouse to inventory control manager. At all times relevant to this lawsuit, plaintiff was supervised by Steve Decker, whom she viewed as a "father figure" and with whom she felt comfortable talking about personal issues. Chad Kassem serves as president and CEO of defendant.
In November 2010, plaintiff began a sexual relationship with Brett Hensley, a co-worker. It is undisputed that Mr. Hensley had no supervisory authority over plaintiff. The relationship lasted until early January 2011. During their relationship, plaintiff and Mr. Hensley engaged in consensual sexual intercourse in the workplace on at least 10 occasions; engaged in consensual displays of affection in the workplace including kissing and hand-holding; and sent each other suggestive test messages, including pictures of plaintiff's breasts and vagina sent by plaintiff to Mr. Hensley. During this time, plaintiff spoke openly to Mr. Decker about her relationship with Mr. Hensley. Mr. Decker did not encourage the relationship and he advised both plaintiff and Mr. Hensley against dating "somebody within the company." He also expressed his concern to both plaintiff and Mr. Hensley that both of them had a history of relationship problems.
In early January 2011, plaintiff ended her relationship with Mr. Hensley. According to plaintiff, Mr. Hensley sexually harassed her from that time until March 2011. Plaintiff testified that Mr. Hensley sent her frequent text messages asking to resume the relationship (or asking her to meet him someplace at work for sex) and threatening to have her fired if she did not resume the relationship; came up behind her on one occasion when she was standing on a ladder and placed his hands between her legs; frequently licked his lips while looking at her or walking past her; and accused her of giving him herpes and asking her on one occasion to look at his penis to see whether it "looked like herpes." Plaintiff also testified that she had sexual intercourse with Mr. Hensley in the workplace on two or three occasions during this time frame because Mr. Hensley threatened to have her fired if she did not have sex with him. Again, the parties do not dispute that Mr. Hensley had no authority to fire plaintiff.
In March 2011, plaintiff complained to Mr. Decker about Mr. Hensley. She testified that she complained about the ladder incident and about Mr. Hensley asking her for sex on one occasion but she concedes that she did not complain to Mr. Decker about any other conduct on the part of Mr. Hensley. According to plaintiff, Mr. Decker responded that he would speak with Mr. Hensley but that she and Mr. Hensley "would basically have to learn how to work together if [they] wanted to keep employment there." It is uncontroverted that plaintiff did not complain to Mr. Decker or anyone else with defendant about Mr. Hensley's behavior at any time after March 2011.
Plaintiff testified that after she complained to Mr. Decker in March 2011, there was a significant change in Mr. Hensley's conduct toward her. According to plaintiff, Mr. Hensley on one occasion in June or July 2011 asked her whether they could resume their relationship (which she declined) but made no more sexual advances toward her and that on one occasion in October or November 2011 Mr. Hensley accused plaintiff of having sex "with an old man" when he learned she had gone to lunch with another male coworker. Other than isolated incidents during which Mr. Hensley "gave her the eyes" or licked his lips, plaintiff experienced no more harassment from Mr. Hensley during the course of her employment. Plaintiff testified that Mr. Decker, every time he saw Mr. Hensley come close to plaintiff in the workplace, would remind Mr. Hensley "what I told you, " which plaintiff interpreted as Mr. Decker reminding Mr. Hensley not to talk to plaintiff in the workplace.
Other than her one complaint to Mr. Decker about Mr. Hensley in March 2011, plaintiff complained to Mr. Decker about two other incidents in the workplace concerning sexual harassment. Plaintiff testified that she also made these complaints in March 2011. The first concerned an incident in which two co-workers allegedly invited plaintiff to participate in an orgy. Plaintiff complained to Mr. Decker about the conversation and it is uncontroverted that Mr. Decker addressed the situation and it did not happen again. The second concerned an incident in which plaintiff complained about inappropriate music being played in the warehouse and it is uncontroverted that Mr. Decker told the warehouse employees to change the music, to keep their music selections "clean" and that the issue was resolved to plaintiff's satisfaction.
On December 14, 2011, Mr. Decker held a meeting with plaintiff during which he intended to warn plaintiff about the quality of her work and her failure to complete a project. Mr. Decker and plaintiff agree that their discussion became heated and it is uncontroverted that plaintiff became very belligerent during the meeting and would not permit Mr. Decker to speak despite the fact that Mr. Decker asked her at least once to permit him to do so. Plaintiff testified that she discussed with Mr. Decker the fact that a rumor had been circulating in the workplace that a "sex tape" existed depicting her and an unidentified male having sex in a vehicle in defendant's parking lot. She testified that she was upset by this rumor, that she discussed the rumor with Mr. Decker and that she did not believe that Mr. Decker did enough to stop the rumor about the sex tape. Mr. Decker testified that Mr. Hensley brought a video to him at some point, that Mr. Decker watched that video and that the video depicted only "two people getting into a van, and a little bit later, two people getting out." He testified that he assured plaintiff that there was no video "floating around" the workplace concerning plaintiff but that he did not discuss the video with employees or otherwise ask employees to stop talking about the video because, in his perception, plaintiff was the only person talking about the video in that she kept asking employees whether they had seen the video. Plaintiff also testified that she told Mr. Decker that she had heard a comment he made to Mr. Hensley about another female employee and how that employee was dressed and that she felt it was "wrong" of Mr. Decker to talk to an hourly associate about another employee in that manner.
At the conclusion of the meeting with plaintiff, Mr. Decker met with Mr. Kassem, defendant's president and CEO, to discuss the meeting with plaintiff. Mr. Kassem told Mr. Decker that "we probably ought to let her go" in light of her insubordination as well as job performance issues. In the meantime, plaintiff, immediately after her meeting with Mr. Decker, sent a lengthy email to Susan Scott, who served as defendant's bookkeeper and also had limited responsibilities in human resources. In her email, plaintiff relayed to Ms. Scott that she had had a meeting with Mr. Decker that morning and that she advised Mr. Decker that she felt like she was being "pushed out" of employment but that Mr. Decker "became very upset" and assured her that he was "not pushing [her] out." Plaintiff also advised Ms. Scott that she had raised with Mr. Decker the "sex tape" rumor. Toward the end of the e-mail, plaintiff wrote:
There were several times the conversation with Steve became heated with him telling me 5 times to "shut up." I feel there is too much going on for me to handle this by myself. I do not have anybody here at Acoustic Sounds I can go to and receive help with situations at hand. I have filled [ sic ] a formal grievance with the EEOC and the Department of Labor.
Two days later, Mr. Decker terminated plaintiff's employment in a very brief meeting in which Mr. Decker simply told plaintiff that defendant "no longer needed her services." Mr. Decker testified that he had no knowledge that plaintiff was contemplating a lawsuit or grievance against defendant for any reason at the time he terminated her employment.
Ms. Scott testified that she discussed with Mr. Decker the substance of plaintiff's email on the day prior to plaintiff's termination but she did not recall forwarding the email to him. According to Ms. Scott, she "mostly" told Mr. Decker that plaintiff was "going to file a grievance." Ms. Scott testified that she explained to Mr. Decker that she believed that plaintiff was going to file a grievance about the "heated" discussion he had with plaintiff in which Mr. Decker allegedly told plaintiff to "shut up" on five occasions. Although Ms. Scott testified that she believed that plaintiff wanted to file a grievance concerning "a hostile work environment, " Ms. Scott also testified that ...