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Wilkerson v. Kellogg Co.

United States District Court, D. Kansas

March 13, 2014

KELLOGG COMPANY, et al., Defendants.


KATHRYN H. VRATIL, District Judge.

Monique L. Wilkerson brings claims against her former employer, Kellogg Company; Kellogg Human Resources Manager, David Fiftal; and Kellogg Line Supervisor, Bill Ellifrits. Plaintiff alleges that defendants violated Title VII, 42 U.S.C § 2000e et seq. and the Kansas Act Against Discrimination ("KAAD"), K.S.A. § 44-1001 et seq. Specifically, plaintiff alleges that defendants discriminated against her based on sex, created a sexually hostile work environment, retaliated against her for engaging in protected activity and constructively discharged her. Finally, plaintiff brings state law claims against defendants for emotional distress. This matter comes before the Court on Defendants' Motion For Summary Judgment (Doc. #40) filed October 9, 2013. For reasons set forth below, the Court finds that defendants' motion should be sustained.

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); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986); Hill v. Allstate Ins. Co. , 479 F.3d 735, 740 (10th Cir. 2007). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Liberty Lobby , 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence in support of a party's position. Id. at 252.

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 (1986); Nahno-Lopez v. Houser , 625 F.3d 1279, 1283 (10th Cir. 2010). 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 dispositive matters for which she 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 (1986). To carry her burden, the nonmoving party may not rest on her pleadings but must instead set forth specific facts supported by competent evidence. Nahno-Lopez , 625 F.3d at 1283.

The Court views the record in the light most favorable to the nonmoving party. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp. , 938 F.2d 1105, 1110 (10th Cir. 1991). It may grant summary judgment if the nonmoving party's evidence is merely colorable or is not significantly probative. Liberty Lobby , 477 U.S. at 250-51. In 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). The heart of 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." Liberty Lobby , 477 U.S. at 251-52.


The following facts are either uncontroverted, deemed admitted or construed in the light most favorable to plaintiff, the nonmovant.[1]

Kellogg owns and operates the Kansas City Bakery in Kansas City, Kansas which produces snack foods, including Cheez-It crackers. On October 7, 2004, Kellogg hired defendant to work in the Kansas City Bakery.[2]

In 2006 or 2007, plaintiff complained to Kellogg that a co-worker, Calvin Pierce, had sexually harassed her. In particular, she complained that Pierce (1) licked his lips at her perhaps five times, (2) picked her up from behind once, (3) touched her forearm once for about a second and (4) once told her, "I'm going to always feel on you." See Doc. #41-2 at 25-27. Kellogg investigated her complaint and disciplined Pierce.[3] Fiftal Decl. ¶ 31.

In November of 2011, plaintiff complained to Kellogg that in 2010 or early 2011, shift supervisor Bill Ellifrits once told her, "You're going to love me;" once grabbed her hands briefly; and once tried to touch her behind as he sped by on an electric scooter.[4] Doc. #41-2 at 36-39. Kellogg suspended Ellifrits pending an investigation. During the investigation, Ellifrits admitted to grabbing plaintiff's hands on one occasion, but stated that he only did so to get her attention and that he did not grab her hands in a sexual or romantic gesture. In a meeting with Kellogg officials, Ellifrits agreed to refrain from using words that could be interpreted as romantic.

After plaintiff complained about Ellifrits' behavior, she reported primarily to John Shipley as her new supervisor. See Shipley Decl. ¶ 4-5. Shipley did not know about plaintiff's complaints of sexual harassment by Pierce or Ellifrits until March of 2012, when plaintiff filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC").

While plaintiff was at work on February 10, 2012, she believed that she was having a heart attack. Plaintiff did not report to work from February 13 through March 4, 2012. Plaintiff submitted applications for leave under the Family And Medical Leave Act and short-term disability leave ("STD) to CIGNA, Kellogg's disability insurance carrier. CIGNA denied plaintiff's request for FMLA leave from February 13 through March 4, 2012 because she did not return the Certification of Health Care Provider for Employee's Serious Health Condition. CIGNA also denied plaintiff's request for STD from February 13 ...

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