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Lounds v. Lincare, Inc.

United States District Court, D. Kansas

July 9, 2014

LINCARE, INC., Defendant.


RICHARD D. ROGERS, District Judge.

In this case, plaintiff makes claims alleging a hostile work environment in violation of 42 U.S.C. § 1981 and retaliation in violation Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Defendant has filed a motion for summary judgment arguing that the evidence is not sufficient for a reasonable jury to rule in plaintiff's favor on either claim. After careful review, the court agrees with defendant.


Summary judgment is warranted if the materials on record show that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.CIV.P. 56(a). The court considers "all of the facts in the light most favorable to the non-movant and reasonable inferences from the record must be drawn in favor of the non-moving party." Piercy v. Maketa , 480 F.3d 1192, 1197 (10th Cir. 2007). From this viewpoint, the court attempts to determine whether a reasonable jury could return a verdict in favor of the non-moving party. Bones v. Honeywell Int'l, Inc. , 366 F.3d 869, 875 (10th Cir. 2004). "While we view the record in the light most favorable to the non-moving party, that party must still identify sufficient evidence requiring submission to the jury to survive summary judgment." Piercy , 480 F.3d at 1197. In other words, the court may consider evidence produced by the moving party as well as the absence of admissible evidence in favor of an essential element of the non-moving party's claim. Adams v. Am. Guar. & Liab. Ins. Co. , 233 F.3d 1242, 1246 (10th Cir. 2000). "If the evidence [in support of a claim] is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249-250 (1986)(interior citations omitted). "[P]urely conclusory allegations of discrimination" which are devoid of "concrete particulars" are not sufficient to avoid summary judgment. Pucino v. Verizon Wireless Communications, Inc. , 618 F.3d 112, 119 (2d Cir. 2010)(interior quotations omitted); see also, Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 671 (10th Cir. 1998)(non-moving party must set forth specific facts admissible in evidence from which a rational jury could find for non-movant). "Unsubstantiated allegations carry no probative weight... evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise." Bones , 366 F.3d at 875.


Plaintiff is an African-American woman who worked for almost a year as a customer service representative (CSR) for defendant in Wichita, Kansas. Plaintiff was the only African-American who worked at the Wichita facility during her employment with defendant.

Defendant is a company providing respiratory services. Defendant has locations across the nation. Its corporate headquarters is in Clearwater, Florida. Defendant's Wichita facility had 17 or 18 employees, about four of whom were CSRs. Defendant had smaller offices in Winfield and Hutchinson, Kansas.

The duties of a CSR are to answer phones, take and process orders, maintain files, verify insurance and respond to patient requests. Attendance and punctuality are important. Facility managers have the discretion to determine whether the number of work absences has been excessive. Company policy does not dictate that a certain number of absences shall be considered excessive.

Plaintiff was hired by Suzanne Kraft, defendant's facility manager in Wichita, on September 27, 2011. Kraft was plaintiff's direct supervisor.

Plaintiff received an employee handbook when she started. The handbook contains defendant's anti-discrimination and anti-retaliation policies, reporting procedures and disciplinary policies.

Approximately four months after plaintiff began her employment, Greg McCarthy, a vice-president for defendant, visited the Wichita facility. While he was there an employee named Amber Renard, a Caucasian woman, complained during a staff meeting that there had been inappropriate racial statements in the workplace that made plaintiff uncomfortable. McCarthy met with plaintiff one-on-one to discuss what happened. Immediately after the meeting, McCarthy spoke with defendant's employee relations director (Paula Adams) and with a district manager for the Wichita office (Jeremy Felts) regarding a follow-up investigation. The same day Adams spoke with plaintiff regarding her complaints.

During the January 27, 2012 conversation between plaintiff and Adams, plaintiff complained of the following comments:

• That a co-worker named Laynee Kempke, a healthcare specialist, said "Boom nigga" and "peace out my nigga" in the workplace;
• That a co-worker named Kevin Kunz, a salesman, made a comment about lynching;
• That Kunz also made a comment that Hitler would be proud of him because of his blue eyes, but not his black hair;
• That Kraft had told plaintiff to address McCarthy as "yes massa;"
• That Kraft had asked her if she knew why black people give their children names like "Roshonda." Plaintiff replied "no" and said that she could not speak for every black person. Kraft said that she asked because plaintiff was black;
• That a co-worker named Nathan Van Dever asked plaintiff if she smoked "Newports" and asked "Why do black people always smoke Newports."

After this conversation, Adams concluded that Kempke, Kraft and Kunz should be disciplined because of the alleged statements. On January 30, 2012, each one received a "final written warning" that their actions violated defendant's policies and that any further violations would result in immediate termination. They were also told to report any additional harassment if they observed it and they were reminded of defendant's policy against retaliation and told that, if they appeared to retaliate against plaintiff, they would be terminated. Also on January 30, 2012, Felts held a 10-minute in-service training at the Wichita facility with the goal of reminding employees of the company's anti-discrimination policies. Kraft and Kunz were not present at the training session.

When McCarthy met with plaintiff on January 27, 2012, he asked her to put everything in writing so that defendant could address her allegations properly. Plaintiff sent a letter labelled a "Memorandum for Record" to the human resources department on February 3, 2012. The "memorandum" contained the following allegations:

• Around January 14, 2012, Kempke returned from seeing a patient and loudly said, "I just came back from the Hood'" then chanted "Boom" and "Boom Nigga." One of plaintiff's co-workers then told her that before plaintiff began employment for defendant, Kempke said, "peace out my nigga."
• Kraft made comments about plaintiff's name ("Shawron") or asked about other African-Americans' names.
• On January 17, 2012, Kraft was speaking at a staff meeting that Nathan Van Dever ("Van Dever") was attending along with five women. Kraft said to Van Dever, "Nate do you feel like a minority[?]"
• At the same staff meeting on January 17, 2012, Kraft told everyone they did not want to make McCarthy mad, and to say yes to his every word. Kraft then told them to say, "Yes Massa" to him. • A patient called in late October 2011, and after plaintiff answered the phone, he threatened to kill everyone in the office. When plaintiff reported this to Kraft, Kraft said, "I'm sure you can give him attitude." • Other employees witnessed Kraft referring to this patient as a black man. Later, when the patient came to the facility, Kraft said, "I thought he was a big black man, no offense... he sounded mean and his name sounded black" and "I can't believe he was a white guy." • On November 14, 2011, Kunz and Van Dever were discussing a black man who had murdered his wife. Kunz said, "we need to bring back lynching, because we have enough trees." Kunz then spoke about Vietnamese people offensively and said they have bad teeth. Kunz then disagreed with a co-worker that his comments were racist, saying, "I'm not racist, and there was nothing wrong with lynching." Kunz then approached plaintiff and said, "I'm not trying to offend you, it's not like I said lets go down [to] 9th and Grove (the Black neighborhood) and drag every black person with a noose, tie them to a truck, and drag them after hanging them."
• On January 26, 2012, Kunz said, "I never go in the ghetto, the hood has gangsters, " then approached plaintiff and said, "you know... the Hood."
• Several workers (unidentified by plaintiff) approached plaintiff by saying, "Yo! Yo whats up?" in a black accent dialect.
• A patient made a remark about a picture of a garden saying "I wonder how many slaves it took to keep that garden pretty, and I wonder how many wetbacks it took to pour water on them." Felts had said he would remove the picture, but had not done so yet, and plaintiff claimed the picture was a constant reminder of the patient's comments.

In a later "Memorandum for Record" dated February 6, 2012, plaintiff included allegations that:

• Kempke had "a habit of returning from seeing a black patient and stating how she thought she would be raped.
• Plaintiff's co-workers had been giving her the cold shoulder since she reported discrimination and that there was extreme tension in the workplace.

Adams decided after reading plaintiff's "memorandums" that the same three employees who received warning letters were involved in plaintiff's new allegations and that the issues had been addressed with those employees so that no further corrective action was needed. Adams also attempted to arrange a telephone conference with plaintiff.

Before such a phone conference was arranged, Karen Schanbacher, a divisional manager and Felts' direct supervisor, had a mid-February 2012 meeting with plaintiff and Felts during which plaintiff expressed her belief that she had not received adequate training. During the meeting Schanbacher asked plaintiff several times whether she had any other concerns that Schanbacher could address. Plaintiff did not report any new racial comments in the workplace, but she did state that she felt like the "big pink elephant in the room" and how she was uncomfortable in the workplace. Plaintiff also said that she felt like her "spirit was gone." Schanbacher responded that "you just need to go find it" and that plaintiff should not worry when Kraft shut the door to her office while speaking with plaintiff's co-workers.

Adams spoke with plaintiff on March 6, 2012. Plaintiff did not report any new racial comments in the workplace, did not allege that she had been subjected to retaliation, and did not complain of a hostile work environment.

Linda Feller, a human resources manager in defendant's human resources department, met with plaintiff on March 14, 2012. Plaintiff mentioned the same allegations she previously raised, including the "pink elephant" feeling and her complaint about the painting which drew hurtful remarks from a patient. Feller had the painting removed. But, plaintiff asserts via the testimony of another employee that the painting was returned to the same place a week later. Plaintiff also complained that the work environment was "awkward" and that employees would warn of her presence by making such comments as "Watch what you say" and "Shhh, here she comes." And, plaintiff said that when plaintiff first started, Kraft commented that she would not hire a black man who applied for employment because he looked "like a convict."

Plaintiff filed a complaint with the Kansas Human Rights Commission (KHRC) on April 6, 2012. It alleges that plaintiff was subjected to derogatory racial comments, slurs, and innuendoes, and that she was discriminated against on the basis of her race. Plaintiff, however, did not specifically describe any new racial comments or statements in the workplace from those already described in this opinion. She simply alleged that she was treated in a demeaning manner, ridiculed and teased.

Plaintiff received a "documented counseling" on April 26, 2012 which described an excessive number of unscheduled absences. It also reminded plaintiff of the company's policy prohibiting texting to report work absences. Plaintiff had missed a total of 16 days of unscheduled time as of that date. Plaintiff was advised that further corrective action, including termination, could occur if she did not demonstrate immediate and sustained improvement. Kraft and Felts and other corporate officers collaborated in the decision to discipline plaintiff. Doc. No. 55, p. 43. But, Kraft delivered the "documented counseling" and testified that it was her decision to discipline plaintiff. Plaintiff responded by claiming that the disciplinary action was retaliatory and that her supervisors and co-workers were either participating in or failing to stop or investigate disparate treatment and harassing conduct. Plaintiff had received an informal counseling prior to April 26, 2012. The subject of the counseling was not recorded, but there is testimony that it likely concerned absenteeism.

In early May 2012, plaintiff sent Kraft a text stating that she would not be coming to work because of a "hostile workplace." The text describes an incident the day before in which Kevin Kunz slapped the leg of another employee. The text did not describe a racial motivation, but said that plaintiff could not focus. Plaintiff has also stated in her deposition that she was worried that Kevin Kunz would "flip out" on her because he would pound his fist around the workplace and complain about people running their mouths.

Plaintiff filed a second complaint with the KHRC on May 18, 2012. This complaint alleges retaliation, but does not mention any additional racial comments in the workplace.

On June 22, 2012, plaintiff received a "Documented Verbal Warning" regarding her continued unscheduled absences. Again, plaintiff was reminded not to send text messages to report absences. Felts and Kraft met with plaintiff regarding the warning and Feller participated by phone. During the meeting, plaintiff stated that: "There's a lot of things going on with this place. I have doctor's notes." Plaintiff was again warned that she might be terminated if she did not achieve immediate and sustained improvement in her attendance.

On July 16, 2012, plaintiff sent a "Rebuttal" to the human resources department concerning the June 22, 2012 verbal warning. The "Rebuttal" complained that plaintiff was subjected to disparate treatment when she was told that she should not text her supervisor to report absences. It also stated that the warnings were acts of retaliation. Jennifer Llamas was an employee who had texted to report absences and was not disciplined for doing so. She testified in a deposition that she believed other employees also texted to report absences. Llamas left employment with defendant in March 2012.

Plaintiff received a Final Written Warning on July 24, 2012. The warning alleged that plaintiff had too many unscheduled absences and had made inappropriate statements to her manager. A meeting was conducted to go over the warning with plaintiff. Kraft and Felts attended the meeting and Feller participated by phone. Plaintiff mentioned that she felt like the "pink elephant" in the office. She further stated that when somebody said "Boom, " she heard Kempke saying "Boom Nigga." She also mentioned that Amber Renard had said "BON" to her every day and that Kraft had heard Renard using the term but didn't do anything about it. Kraft denied hearing the term and also denied knowing what the term meant. After Feller ended her participation in the meeting, Felts asked plaintiff about Renard's conduct. Plaintiff said that one day Renard asked her if she knew what a "BON" was because Renard's boyfriend, who was African-American, wanted Renard to call him a "Big Ol Nigga."[1] Plaintiff also said that Renard had mentioned that her son's football coach had made a comment to the effect that "all blackies are stupid."

Kraft spoke with Renard about plaintiff's allegations the same day. Renard gave a different version of events. Renard said that plaintiff asked Renard to say what "BON" meant and that Renard did not use the "N" word. Renard also denied relating the alleged statement from her son's football coach. Despite Renard's explanation, Kraft gave Renard a final written warning stating that Renard's action had created an uncomfortable environment for plaintiff and warning of termination if there were any ...

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