United States District Court, D. Kansas
CLARK A. INGRAM, Plaintiff,
IT'S GREEK TO ME, INC., d/b/a GTM Sportswear, Defendant.
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, District Judge.
Clark Ingram brings suit against It's Greek To Me, Inc. d/b/a GTM Sportswear ("GTM") for age discrimination and retaliation in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and retaliation in violation of the Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. This matter is before the Court on Defendant's Motion For Summary Judgment (Doc. #52) filed June 2, 2014. For reasons stated below, the Court sustains the motion in part.
I. 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 he 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 his burden, the nonmoving party may not rest on his 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); Olympic Club v. Those Interested Underwriters at Lloyd's London , 991 F.2d 497, 503 (9th Cir. 1993). 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.
In 1989, David Dreiling and David Barnes started GTM, a Kansas corporation with its principal place of business in Manhattan, Kansas. The business designs and manufactures sportswear for athletic teams, cheer and gymnastics squads and related markets. Currently, Dreiling is the sole owner of GTM.
In 2006, John Strawn became president of GTM. At the time, Strawn was about 33 years old. Strawn served as GTM president until 2013.
In April of 2008, GTM hired plaintiff to work as director of human resources. At the time, plaintiff was 50 years old. GTM later promoted plaintiff to vice president of human resources. Strawn supervised plaintiff.
In 2008, plaintiff expressed concern to Dreiling regarding comments which Dreiling made at the 2008 summit which plaintiff thought were inappropriate or offensive. Plaintiff cannot recall specific examples of the comments which Dreiling made.
In 2010, GTM promoted Dreiling's personal friend, Dave Darling, to a director position. Before the promotion, in a meeting with Dreiling, Schneider and Strawn, plaintiff opposed the promotion and warned that Darling would likely violate GTM's sexual harassment policy.
During relevant times, Brenda Schneider managed two thirds of GTM's work force. She held various GTM executive and management positions including vice-president of operations, vice-president of sales and chief operations officer.
Plaintiff and Schneider experienced friction on various issues. Others observed the conflict. Schneider did not trust plaintiff. GTM considered Schneider to be a more valuable employee than plaintiff. In particular, Strawn believed that Schneider had the ability to work within GTM's growth plan.
In May of 2010, Strawn sent plaintiff an e-mail which stated that plaintiff and Schneider needed to learn to trust each other. At one point, plaintiff and Schneider came into Strawn's office very upset with each other and arguing back and forth. Strawn said that if they did not "figure out how to work together and trust each other one of you is going to be gone."
From 2008 to 2011, plaintiff successfully increased the number of GTM employees from 451 to 820.
Sometime in 2011, in a meeting with plaintiff and Strawn, Dreiling described a female employee as having "a great ass." Plaintiff opposed the comment by refusing to condone it and asking what the comment had to do with what was being discussed.
On an unspecified date, during a discussion about promoting GTM employees Molly Smith and Miranda Hardenburger, Dreiling broke into a huge grin, moved his eyebrows up and down several times and said, "Well we all know what they have in common." Ingram Depo. at 156:17 to 157:3. Dreiling insinuated that both women shared a physical attribute in common, but he did not specifically state what it was that he thought they had in common. Id . Plaintiff left Dreiling's office, but did not say that he opposed Dreiling's statement or facial expression. Others who were present said things like, "Oh Dave, " and "I can't believe you said that" and scattered. Id . at 157:8-19.
Over the course of plaintiff's employment with GTM, dozens of employees complained about inappropriate behavior and comments by Dreiling. While waiting for a female vice president to arrive to a meeting, Dreiling once said, "We have to wait for the boobs." Ingram Depo. at 163:9-11. On several occasions, plaintiff spoke to Strawn about Dreiling's constant inappropriate behavior.
On numerous occasions, Dreiling and Strawn made comments to employees to the effect of, "You don't have to have any experience. You just have to be smart. If you are smart enough you will be able to figure it out."
Duane Cantrell served as chairman of the GTM board, consultant to senior management and mentor and coach to Strawn.
In May of 2011, plaintiff sent Dreiling an email which discussed plaintiff's use of hearing aids. The email states as follows:
You mentioned my hearing loss in the budget meeting the other day. Yes, I have a profound hearing loss and I wear hearing aids. (yes, most people don't notice them and yes I am self conscious about them) My entire family contracted scarlet fever when I was an infant and my dad was pulling duty in Japan. Part of the problem might be congenital.... Even with the hearing aids - I have a problem hearing....
I am sorry if it is annoying to you or embarrassing in front of visitors when I have to ask you to repeat what you have said. This is the main reason why I try to always ...