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Le v. Spirit Aerosystems, Inc.

United States District Court, D. Kansas

August 11, 2014

NHUNG N. LE, Plaintiff,
v.
SPIRIT AEROSYSTEMS, INC., Defendant.

MEMORANDUM AND ORDER

MONTI L. BELOT, District Judge.

Before the court are the following: Spirit's motion for summary judgment and memorandum in support (Docs. 35, 36, 38); Le's response (Docs. 43, 46); and Spirit's reply (Doc. 50). The court commends counsel on their well-written submissions.

I. Introduction

Nhung Le began employment with Spirit in 2007. In 2011, she complained to Spirit's Equal Employment Opportunity (EEO) office that her supervisor was sexually harassing her. Spirit investigated and issued a warning to the supervisor for making inappropriate comments. Le thereafter had a different supervisor. Between August 2012 and January 2013, Le received five disciplinary actions and her employment was terminated.

Le claims she was subjected to a hostile work environment, sexual harassment, disparate treatment, and retaliatory discharge in violation of Title VII and the Kansas Act Against Discrimination. She further asserts common law claims for intentional infliction of emotional distress and wrongful termination in violation of public policy. Spirit moves for summary judgment on all of Le's claims.

II. Uncontroverted facts.

Spirit designs and builds aircraft parts. Le began her employment with Spirit on January 12, 2007, as a composite mechanic. Her job involved fabrication of composite parts for aircraft.

Spirit has a written policy against discrimination and workplace harassment on the basis of sex. The policy also prohibits retaliation against anyone for filing a complaint of discrimination or harassment. Employees are responsible for reporting workplace discrimination to either a manager, Human Resources, Ethics Point (an online reporting system), or the HR Compliance-EEO office. The policy allows an employee to report a concern outside their reporting chain of command and to bypass individuals whom they believe have caused discrimination or harassment. When Spirit receives a complaint, its EEO office conducts an investigation. Employees are responsible for cooperating with the investigations. If a complaint is substantiated, Spirit's policy is to take prompt and effective remedial action to deter any future misconduct.

Spirit's discrimination policy is published on the company's intranet. Employees typically receive training on the policy upon their hire and periodically thereafter. Le received training on the policy on May 6, 2008, October 15, 2009, November 15, 2010, September 14, 2011 and September 15, 2012.

Spirit's Disciplinary Guidelines.

Spirit's disciplinary guidelines set forth Spirit's policies and procedures for imposing discipline. According to the guidelines, Spirit may handle less serious misconduct under the concept of progressive disciplinary action, meaning increasingly severe disciplinary actions for subsequent work rule violations, including possible termination after multiple infractions. Under the policy Spirit reserves the right to omit or repeat a disciplinary step, or issue discipline out of sequence, depending on the circumstances.

Employees may be terminated for "generally unacceptable conduct" when the employee accumulates four disciplinary actions within a year and then receives a fifth disciplinary action for any reason in the following year.

Le received a documented verbal warning from manager Jose Sanchez on July 26, 2010, for misuse of company time and failure to follow instructions. The discipline memo states that Le was missing from her work area on two separate occasions and that when she was asked about it she said she was "walking around."

On September 11, 2010, Le received a written warning from manager Pamela Brown for misuse of company time and failure to follow instructions. The discipline memo states that from August 16 through August 27, Le was consistently out of her work area during work hours and that then when she was asked about it, Le said she was walking around. This disciplinary memo was later removed by Brown. According to Le, it was removed because Brown realized she had ordered Le to go to another area of the plant or because Le's work required her to look for a part in another area of the plant.[1]

Le received a documented verbal warning on March 23, 2011, for an unauthorized mid-shift departure. The discipline memo states that Le clocked out prior to the end of her shift without notifying management. The discipline memo was issued and signed by Le's first-level manager at the time, "JG, "[2] although it had been initiated by another manager who was filling in for JG. JG was not at work on the night in question and first-level manager Eric McCosh had been overseeing the crew in his absence. McCosh initiated the discipline. JG never initiated any discipline against Le.

In the area where Le worked, first-level managers typically rotated among the different shifts. It was also common for first and second-level managers to transfer among the different areas within the plant.

From January 2011 through June 2011, Le worked on second shift reporting to manager JG. During that time, first-level manager Ron Capps supervised a first-shift crew. Capps received feedback from employees that Le's work performance on second shift was deficient in several respects. Capps documented the performance problems in a March 28, 2011 email to JG. In the email, Capps stated that Le "just isn't getting the job done (on several different fronts)." JG verbally coached Le regarding the performance issues identified by Capps but did not issue formal discipline.

Le's 2011 EEO Complaint.

Le contacted Spirit's EEO office on July 15, 2011, via certified mail, with a complaint regarding JG. At the time Le reported these allegations JG was no longer her direct manager. Le had previously mentioned JG's inappropriate comments to the union business representative and the shop steward. She had unsuccessfully tried to contact the EEO office a couple of weeks prior to sending the certified letter.

EEO investigator Lucretia Taylor opened an investigation after receiving the letter. Taylor interviewed Le on July 18, 2011. In her statement, Le said that JG had made three inappropriate comments to her during the six months be supervised her in 2011. First, she said that in approximately January 2011, JG made a comment about the length of time since Le had had sex with a man. Second, in about early February 2011, JG asked Le if she would marry him, to which she responded that he was too old. JG allegedly said Le would be "satisfied" and took off his wedding ring and gave it to her. Third, in June 2011, JG made comments regarding Le's breast implants, including asking her if her nipple sensitivity had returned and to let him know when it returned and he would "help her out."

Le also stated that she heard JG make inappropriate comments to a female coworker at some point in the past when JG was on first-shift. That coworker was interviewed by an EEO investigator, but she denied that JG ever harassed her.

After interviewing Le, Taylor interviewed eight other employees, including JG. JG admitted that he engaged in a conversation with Le regarding her breast implants and that he had an inappropriate conversation with another female employee. None of the other witnesses interviewed confirmed Le's other allegations.

Because the investigation substantiated that JG had engaged in inappropriate conduct, Spirit took disciplinary action in the form of issuing a verbal and written warning to JG on October 3, 2011. In addition, Taylor spoke with JG's supervisor to direct that JG should not be assigned to supervise Le's crew in the future when first-level managers rotated among the shifts.

After June 2011, JG was never Le's direct manager. There were occasions, however, when Le's direct manager was absent and JG filled in as the crew manager. Le admits that on those occasions JG never said anything inappropriate to her, did not take any disciplinary action against her, and did not treat her differently from other employees. Le said that when JG was her substitute supervisor she would take sick leave and go home.

Subsequent to Le's 2011 EEO complaint, no other employee has complained about JG engaging in discriminatory or harassing behavior. Le confirmed to EEO that JG did ...


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