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McCord v. BNSF Railway Co.

United States District Court, D. Kansas

September 24, 2014

REGINA McCORD, Plaintiff,
v.
BNSF RAILWAY COMPANY, Defendant.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, Chief District Judge.

Plaintiff Regina McCord ("plaintiff") seeks monetary damages from her past employer, defendant BNSF Railway Company ("defendant") for alleged discrimination, harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. ("ADA"). This matter is before the court on defendant's Motion for Summary Judgment (Dkt. 37). For the reasons stated below, defendant's motion is granted.

I. Factual and Procedural Background

Plaintiff began her working relationship with defendant on November 18, 2010, as a contract employee assigned as a training coordinator for defendant's National Academy of Railroad Sciences ("NARS"). NARS provides training to students and individuals in the railroad industry and is located in defendant's Technical Training Center ("TTC") on the campus of Johnson County Community College ("JCCC"). Plaintiff became a regular at-will employee on July 18, 2011. She performed administrative duties, including answering the phone and taking messages, filing, setting up training sessions for individuals in the railroad industry, and handling registrations.

Housed in plaintiff's office in the TTC were also her supervisor, senior manager John Irons ("Irons"), another training coordinator, Nicole Plute ("Plute"), and a female JCCC employee, Terry Murphy-Latta ("Murphy-Latta").[1] Plaintiff's claims of sexual harassment and gender discrimination involve several incidents with an adjunct JCCC professor, Steve Priest ("Priest"). Plaintiff alleges that, in March 2012, Priest entered the TTC office and requested some class materials. Plaintiff allegedly told Priest that she did not have the authority to give him the materials at which point, according to plaintiff, Priest became "extremely confrontational, " "raised his voice and was yelling, " and moved towards plaintiff, causing her to back up. Dkt. 37-1, at 22. Plaintiff alleges that Murphy-Latta witnessed the incident and, while slamming her fist into her hand, told plaintiff that she needed to give Priest the materials so he could do his job. Plaintiff reported this incident (along with others not relevant to this litigation) to one of defendant's human resources representatives, Tamala Cleaver ("Cleaver"), who in turn drafted a memo to a JCCC human resources representative. In May 2012, the JCCC human resources representative responded, stating that "while several of the incidents did occur, the context in which the allegations were outlined were somewhat misleading and taken out of context." Dkt. 37-1, at 25. The representative went on to say, however, that "many of the concerns raised, regardless of the context, were inappropriate for the workplace and the JCCC employees involved [had] been coached with respect to workplace professionalism." Dkt. 37-1, at 25.

In another incident, plaintiff alleges that, while she and Plute were walking back from lunch one day, Priest crossed a sidewalk and stood directly in front of plaintiff and asked a question. Plaintiff claims that she answered the question and that the pair then stepped around Priest and went back to their office. In a third incident, plaintiff alleges that she observed Priest standing in a hallway outside of her work area, prompting plaintiff to leave her office.

At some point, defendant relocated plaintiff, Plute, and Irons into an office across the hall, approximately ten to twelve steps from the previous location. According to Irons, one of the reasons for the move was to separate defendant's employees from the JCCC employees in an effort to eliminate workplace conflict. The move was also accompanied by a change in plaintiff's duties. She no longer conducted classroom scheduling or answered telephone questions about NARS. However, her compensation, benefits, and working hours did not change and she continued to report to Irons.

In August 2012, the General Director of the TTC, Scott Schafer ("Schafer"), announced a series of organizational changes within the TTC. These changes affected the reporting relationships of a large number of employees, including plaintiff, who was assigned as a training coordinator in the Learning Solutions Office ("LSO"). This reorganization also meant that plaintiff reported to a new supervisor. Plaintiff's office location remained the same, as did her compensation, benefits, and job title. Her previous position with the NARS program was not filled.

Plaintiff was to begin working for the LSO on October 15, 2012. However, on the evening of October 14, 2012, plaintiff sent an e-mail to defendant requesting a sick day. On October 15th defendant received an e-mail from plaintiff's attorney containing plaintiff's request for an eight-week leave of absence allegedly due to her recent diagnosis of stress, anxiety, and depression. Human resources representative Kelli Courreges ("Courreges") responded to plaintiff's counsel and offered plaintiff multiple options for requesting a leave of absence. Plaintiff thereafter began a leave of absence pursuant to defendant's short-term disability program, during which she received at least some portion of her salary and health insurance benefits.

On January 25, 2013, more than twelve weeks after plaintiff began her leave, she received a letter from defendant advising her that, pursuant to its short-term disability program, defendant was going to move forward with filling her LSO training coordinator role. The letter further stated that, in the event plaintiff was released from short-term disability and her position had already been filled, she would have sixty days to place herself in another of defendant's open positions for which she was qualified. If plaintiff was unable to obtain a position with defendant during that time frame, she was advised that her employment may be terminated.

On February 7, 2013, Courreges e-mailed plaintiff's counsel to discuss a statement that she had received from plaintiff's health care provider indicating that plaintiff could return to work if she were placed in a different department. On February 14, 2013, plaintiff's counsel replied and stated that plaintiff was unable to return to work at the TTC but "that any available position that the company would wish to offer her [would] be given very careful consideration" as long as it provided a reasonable accommodation of plaintiff's limitations. Dkt. 37-1, at 73. On February 25, 2013, Courreges notified plaintiff's counsel that the only position available in the greater Kansas City area for which plaintiff was qualified was her LSO training coordinator position, which had not yet been filled. Counsel advised Courreges that plaintiff would give the offer careful consideration as long as defendant complied with the accommodations requested by plaintiff's treating therapist, Bryan Vignery ("Vignery"). These accommodations required plaintiff: (1) be allowed time off to attend counseling sessions one hour per week; (2) be allowed to remove herself from situations that she found to be too stressful; (3) be allowed to contact campus security any time she felt discomfort or was, in her opinion, threatened either verbally or emotionally; and (4) not be required to interact with Schafer, Priest, or Murphy-Latta.

In a response dated March 6, 2013, Courreges explained that: (1) Schafer was the director of the TTC and therefore interaction with him would be a required part of plaintiff's job; (2) while plaintiff would not be required to interact with Priest or Murphy-Latta, she could not guarantee that plaintiff would never run into either individual; and (3) defendant could not "reasonably be expected to provide [plaintiff] a workplace that is free of stress, " and that it "can't reasonably be expected to permit [plaintiff] to unilaterally determine when and for how long she [would] be at or away from work" in the event that she found a particular situation to be too stressful. Dkt. 37-1, at 79.

In reply, plaintiff's counsel stated that plaintiff's key accommodations could be accomplished by allowing plaintiff to work exclusively from home. Courreges responded by sending plaintiff's counsel an overview of the LSO training coordinator position, which stated that the job "requires a minimum of an eight-hour working day on site, and requires daily interactions with various instructors and employees of JCCC, including the NARS staff." Dkt. 37-1, at 84. The overview further detailed that the position "interacts with the various BNSF employees inside and outside of the TTC, both in person and sometimes over the phone, when assisting field personnel." Dkt. 37-1, at 84 (emphasis added). Courreges also stated that plaintiff would be required to undergo seven weeks of on-site training before defendant would explore the possibility of an exclusive remote-work option.

On April 18, 2013, counsel wrote to Courreges asking whether defendant would even consider a remote working relationship for plaintiff and, if so, what conditions would be placed on plaintiff. Courreges responded four days later, stating that given the fact that plaintiff had "not yet even trained on the position, " defendant was "unable to say... what conditions might be placed on remote work." Dkt. 37-1, at 86. Courreges noted, however, that defendant was "open to discussing whether and what circumstances working remotely may [be] feasible after [plaintiff had] completed the initial training period." Dkt. 37-1, at 86. Counsel responded on April 29, 2013, stating that plaintiff either wanted defendant to provide her with the accommodations issued by Vignery or allow her to work exclusively from home. On May 6, 2013, Courreges e-mailed plaintiff's counsel to confirm that, based on the April 29th email, plaintiff was in fact declining to come on-site for even the seven-week training course. Courreges further stated that given the fact that plaintiff had "never actually worked in" the new position, Courreges did "not believe her request to work from home [was] reasonable, even assuming [plaintiff was] entitled to a reasonable accommodation." Dkt. 37-1, at 89. Courreges also noted that, since the sixty-day period had expired, defendant considered plaintiff's refusal to participate in the training program her official resignation from employment. Plaintiff denied ever resigning her employment.

On May 14, 2013, plaintiff filed suit against defendant in the District Court of Johnson County, Kansas, case number 13CV03557. She filed an Amended Petition on June 27, 2013. On July 19, 2013, defendant removed plaintiff's action to the United States District Court, District of Kansas citing jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. § 1332. Defendant now seeks summary judgment on all of plaintiff's claims.

II. Legal Standard for Summary Judgment

Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). A fact is "material" when it is essential to the claim, and the issues of fact are "genuine" if the proffered evidence permits a reasonable jury to decide the issue in either party's favor. Haynes v. Level 3 Communs., 456 F.3d 1215, 1219 (10th Cir. 2006). The movant bears the initial burden of proof and must show the lack of evidence on an essential element of the claim. Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). The nonmovant must then bring forth specific facts showing a genuine issue for trial. Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). These facts must be clearly identified through affidavits, deposition transcripts, or incorporated exhibits - conclusory allegations alone cannot survive a motion for summary judgment. Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197 (10th Cir. 2000) (citing Adler v. Wal-Mart Stores, 144 F.3d 664, 670 (10th Cir. 1998)). The court views all evidence and reasonable inferences in the light most favorable to the non-moving party. LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).

III. Analysis

Gender Discrimination/Harassment

Plaintiff alleges that she was subjected to gender discrimination in the form of sexual harassment and/or a hostile working environment due solely to the actions of Priest, namely: (1) the "request for materials incident" in March 2012, (2) the "sidewalk incident, " and (3) the "hallway incident."[2]

Under Title VII, it is "an unlawful employment practice for an employer... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). A plaintiff may establish a Title VII violation by proving that discrimination based on sex created a "hostile or abusive work environment." Meritor Savings Banks, FSB v. Vinson, 477 U.S. 57, 66 (1986). To establish a prima facie case of hostile work environment under Title VII, a plaintiff must show that: "(1) she is a member of a protected class; (2) the conduct in question was unwelcome; (3) the harassment was based on sex; (4) the harassment was sufficiently severe or pervasive to create an abusive working environment; and

(5) some basis exists for imputing liability to the employer." Meis v. Myron's Dental Labs, Inc., 2005 U.S. Dist. LEXIS 15318, at *21-22 (D. Kan. July 14, 2005) (citing Brandau v. State of Kansas, 968 F.Supp. 1416 (D. Kan. 1997)).

For purposes of summary judgment, defendant appears to concede that plaintiff was a member of a protected class and that the conduct in question was unwelcome. Therefore, the only elements at issue are whether: (1) Priest's alleged harassment was based on plaintiff's sex, (2) the alleged harassment was sufficiently severe or pervasive to create an abusive working environment, and (3) assuming these elements are met, there is sufficient evidence to impute liability to defendant. Defendant argues that plaintiff fails to establish her prima facie case. The court agrees.

With regard to the "request for materials" incident in March 2012, plaintiff alleges that Priest entered the NARS office and requested some class materials. When plaintiff refused to give Priest these materials, allegedly because she did not have the authority to do so, plaintiff alleges that Priest became "extremely confrontational... [and] raised his voice and was yelling." Dkt. 37-1, at 22. She further claims that Priest kept approaching her until she had backed up such that there was nowhere else to go. Dkt. 37-1, at 22. In the "sidewalk" incident, plaintiff alleges that she was walking back from lunch with Plute when she saw Priest approaching from the opposite direction. Dkt. 37-1, at 23. She claims that she suggested to Plute that they move to the other side of the sidewalk to avoid any interaction, but alleges that when Priest got closer, he too crossed the sidewalk and "came to stand directly in front of [her], which impeded [her] forward progress." Dkt. 37-1, at 23. Plaintiff alleges that Priest asked the two women a question, plaintiff answered, and then the two women stepped around Priest and went back to their office. Dkt. 37-1, at 24. Finally, during the "hallway" incident, ...


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