United States District Court, D. Kansas
MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
Plaintiff filed this action alleging claims against Lincare, Inc. for race discrimination, hostile work environment, and retaliation in violation of 42 U.S.C. § 1981. This matter is before the Court on Defendant Lincare, Inc.'s Motion for Summary Judgment (Doc. 40) and on Plaintiff's Motion for Leave to File a Surreply Memorandum in Opposition to Defendant's Motion for Summary Judgment (Doc. 49). The motions are fully briefed and the Court is prepared to rule. As described more fully below, Defendant's motion for summary judgment is granted. The Court also grants Plaintiff's motion for leave to file a surreply.
I. Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. "There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party." A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way."
The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."
Finally, summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." In responding to a motion for summary judgment, "a party cannot rest 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." When examining the underlying facts of the case, the Court is cognizant that it may not make credibility determinations or weigh the evidence.
II. Uncontroverted Facts
The following facts are either uncontroverted, stipulated to, or viewed in the light most favorable to plaintiff.
In 2011, Plaintiff Jacqueline Villamar was employed by Kelly Services, Inc. Plaintiff is Hispanic, and her family is from Mexico, where she lived for a time as a child. Kelly Services, Inc. assigned Plaintiff to work at Defendant Lincare Inc. on November 22, 2011, as a temporary worker. Lincare employees are responsible for processing certain Medicare claims. In November 2011, due to an influx of Medicare audits, Lincare's Lawrence, Kansas office began using temporary employees through Kelly Services. Kelly assigned three temporary workers to Lincare, including Plaintiff; she was temporarily assigned to work at Lincare from November 22, 2011, until the date of her termination on May 31, 2012. Plaintiff was never employed by Defendant.
While she was assigned to Lincare, Plaintiff was supervised by Carol Wiley. Wiley was the supervisor of the Medicare department and her duties were to manage the staff members assigned to the department. Lea Ann Cooper was the manager of Lincare's Regional Billing and Collection Office ("RBCO") in Lawrence, Kansas. She is at the top of the organizational chart for the Lawrence office. In order to terminate an employee, Cooper must have the approval of Lincare's corporate office in Clearwater, Florida. Phil Phenis was Cooper's boss in the corporate office.
Lincare permanent employee Stacey Herschell, who began working at Lincare in 2008, was also supervised by Carol Wiley during Plaintiff's tenure at Lincare. Like Plaintiff, Herschell worked in the Medicare department. When Plaintiff began working at Lincare, Herschell seemed eager to be Plaintiff's friend outside of work. They exchanged phone numbers. But Plaintiff eventually felt that Herschell was trying to "copy her style, " and that Herschell was immature and awkward. On one occasion, the two socialized outside of work. In December of 2011, Plaintiff and her boyfriend were together with Herschell and several others at a pool hall in Lawrence. As Plaintiff and her boyfriend tried to leave the pool hall, Herschell pushed Plaintiff out of the way and attempted to kiss Plaintiff's boyfriend. Later, at work, Herschell told Plaintiff that she would like to go out with Plaintiff's boyfriend herself. At this point, Plaintiff became hesitant to socialize with Herschell outside of work and kept her distance.
At the end of February 2012, Plaintiff had a birthday party and did not invite Herschell. Herschell found out about the party and began acting out toward Plaintiff. She shoved Plaintiff as the workers were gathering files for the day's work, she stared at Plaintiff angrily, she stepped into Plaintiff's path as Plaintiff was walking around the building, and she would mutter words under her breath while looking at Plaintiff such as "stupid bitch, " "dumb bitch, " "what a moron, " and "idiot." On one occasion around the time of her birthday, Plaintiff recalls that Cooper had purchased ice cream for all of the employees. When Plaintiff asked whether temporary workers were included, Herschell pushed Plaintiff in the face and said, "Not you."
Plaintiff complained to Wiley that Herschell was mean to her and that Plaintiff could not work with her because the conduct made it hard for her to focus on her work. She told Wiley:
I wanted to file harassment, like hostile work environment, because it was just-it would bother me to where sometimes I couldn't even finish my work because she would do things like throw away the papers I printed or turn off the copier if I was printing something just because she knew it was my stuff that was being printed and thought that was funny, things like that.
Cooper understood that Herschell also complained to Wiley about Plaintiff. Cooper did not believe that the situation was covered by Lincare's anti-harassment policy because the complaints seemed to her to be merely a personality conflict. Cooper and Wiley met separately with Plaintiff and Herschell. They told both Plaintiff and Herschell that they needed to get along; Cooper instructed Herschell to treat Plaintiff in a professional and respectful manner. Cooper told Plaintiff that if the conflict continued, Cooper would more than likely have to let Plaintiff go from the assignment because Plaintiff was a temporary worker and Herschell was a regular employee. During this meeting ...