United States District Court, D. Kansas
MEMORANDUM AND ORDER
J. THOMAS MARTEN, District Judge.
Plaintiff Candice Tucker alleges that she was subject to unlawful retaliation when she was disciplined and terminated from her employment with Aramark Corporation after she reported an incident of sexual harassment. Aramark has moved for summary judgment. For the reasons provided herein, the defendant's motion is denied.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita ). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Findings of Fact
Aramark Food Service Director Erin Milek hired Tucker on October 8, 2012, to work as a Kitchen Supervisor at the Benedictine College cafeteria. Although Tucker had worked for Aramark at other locations, this was the first time she had worked in a higher-education setting.
The fact that Tucker had worked for Aramark on and off for ten years was one of the reasons Milek hired her, and why she was paid so well. Within Tucker's personnel file is a document dated October 9, 2012, signed by Tucker, including a certification that she received, read, and understood Aramark's Sexual Harassment Policy.
Aramark's Employee Handbook includes policies on progressive discipline and Aramark's Business Conduct Policy. That policy is not mandatory, and does not state when managers must create documentation of discipline. Aramark's progressive discipline policy states,
It is Aramark's practice generally to advise employees of performance or disciplinary issues and provide them the opportunity to correct the issue. However, Aramark reserves the right to deviate from this general practice at any time and at its sole discretion and with or without advance notice - for example, due to the severity of the offense, the circumstances under which it occurred, and the employee's duties.
A part of the Employee Handbook is the Location Guide for Benedictine College, and sets forth additional policies just for the Benedictine College account. The Location Guide provides:
In most cases, Aramark follows a four step discipline process: verbal counseling; written warning; final written warning; termination. Please keep in mind that Aramark has no obligation to use any one or more of these steps of discipline prior to discharging an employee. Any or all of these steps can be omitted, as Aramark deems appropriate, in its sole discretion.
Tucker was supervised by Chef Manager Yancy Kamine, and by Kamine's supervisor Milek.
Tucker contends that she was not explicitly told "what her supervisory duties were when she was first hired." But this largely reflected the lack of need for such explanations. It is otherwise uncontroverted that Aramark hired Tucker as a Kitchen Supervisor, and Tucker had previously worked as a Kitchen Supervisor.
Further, one of Tucker's co-workers, a former cook for Aramark at Benedictine College, Abel Brayshaw, testified that Tucker was hired as a Kitchen Supervisor and directed his work. Brayshaw testified that Tucker was "the boss." Another one of Tucker's co-workers and former Aramark employee at Benedictine College, Cheryl Sinclair, testified that Tucker was a Kitchen Supervisor who supervised usually eight to ten employees.
Tucker's rate of pay throughout her employment with Aramark was $14.00 per hour. During her employment, Tucker was the highest paid hourly worker for Aramark. The cooks who worked with Tucker were paid approximately $8 to $9.60 per hour. Tucker testified that she believes one of the cooks, Sean Sartain, told her that he earned around $8.00 or $8.50 per hour.
When she was first hired, Tucker typically worked the first (daytime) shift. Tucker testified that she did not have any set hours; it varied based on the needs of the college from week to week. Tucker's work during 2012 was generally satisfactory.
According to Milek, at the time Tucker started she did not have the same job responsibilities as a supervisor who may have been there weeks or months, because "[w]e don't throw them into [it] the first day they start." Milek continued, "they need to get warmed up and they need to get familiar with it."
Cooking was a part of Tucker's duties as a Kitchen Supervisor with Aramark at Benedictine College.
A Kitchen Supervisor must be competent in following Aramark production guidelines. It is essential to follow Aramark's food production guidelines in order for management to maintain reasonable food costs. Production guidelines also ensure a consistent product for the customer.
Tucker testified in her deposition that the
production papers for each shift, for each meal, is a preset menu that describes a forecast of what Aramark may have projected for breakfast students, lunch students that might come in, or dinner students; and the production sheets would tell me as a cook, [sic] the other cooks, approximately how many pieces or portions of food item to prepare for that particular menu.
The production papers would tell the cooks what to make and the approximate quantity.
When Tucker started at the Benedictine position, she was learning the kitchen and becoming acquainted with the employees, but her main focus was on following the production sheets and Kamine's production guidelines. Tucker testified that, when she got to the second shift, she was also responsible for ensuring that others were following the production papers and preparing things according to them.
Milek testified that following production, recipes, and menu are requirements for everyone in the kitchen, including supervisors and cooks.
Tucker testified that, "even though my production sheet forecasted 425 pieces, I would - and I eventually learned that I have to prepare more than what that production sheet told me to prepare so that I would have meat, additional meat ready, that you had out to batch-cook, so that I did not run out of meat." Tucker also testified that she could look at the production sheet, but based on her own personal experience, she may adjust it slightly.
During her employment Kamine coached her about the importance of following the production sheets and recipes for the menu.
Aramark's general practice is to conduct monthly "quality assurance assessments, " or audits, of the Benedictine College account in a variety of areas to ensure that company standards are met.
Milek testified that the Benedictine cafeteria failed assessments in October and November 2012. There was no audit in December 2012 because the cafeteria was open for less than 15 days that month. The January audit became critical, and the staff felt pressure to perform. Milek testified, "I mean our jobs were on the line. We're going to fail - we're going to pass this assessment or there's going to be disciplinary action from up above."
According to Tucker, on December 11, 2012, she heard Sinclair tell Kamine that Andrew Holle had just said something to her that she found offensive. Holle reportedly told Sinclair, "I'll do anything for you at any time, baby, " and offered to give her a back rub.
Kamine did not report this statement to Milek or to anyone else in management. According to Sinclair, Kamine laughed at her complaint.
Tucker testified that Sinclair later told Milek, "I have a piece of paper that Andrew [Holle] had given me a few days prior to December the 11th." Sinclair told Tucker that the note said something to the effect of "call me at any time for a massage, " and had Holle's name and phone number on it.
December 11 was the last day before the 2012 holiday break. Most employees are laid off during the break.
Tucker believed that Kamine was not taking the Holle situation seriously. On December 14, she called Aramark's Human Resources department in Downers Grove, Illinois, and spoke with HR Assistant Teresa Triplett. Tucker did not give her name, but said she was the daytime kitchen supervisor at Benedictine.
Tucker told Triplett that Holle had been sexually harassing Sinclair, and repeated the "I'll do anything for you at any time, baby" comment. Triplett told the plaintiff that she would talk to HR Director Jason Leffel
Triplett contacted Milek over the winter break, and told her there was an anonymous complaint about what happened between Holle to Sinclair. Milek then called Leffel, who told her to talk with Sinclair and find out what happened.
Sinclair was laid off over the break, but went in to pick up her paycheck. Milek spoke her privately. Milek told Sinclair about what she had heard from Triplett, and she wanted Sinclair's side of the story.
Sinclair said that Holle had said things like, "baby, I will do anything for you, even give a back rub." She also said that Holle had given her his phone number. Milek told Sinclair that she was going to talk to Holle, and that she was not going to tolerate harassment.
However, Sinclair does not know if Milek actually spoke to Holle. Shortly afterwards, a family member of Holle's called Aramark to say that Holle had threatened to commit suicide and that he was taken to a hospital. Sinclair later gave Holle's note to Milek.
On January 13, 2013, Milek e-mailed Triplett and Aramark District Manager Shane Cravens, noting her earlier contact with Triplett, and that Holle had not returned to work based on his hospitalization.
Triplett responded two days later, stating that they needed to suspend Holle with pay until they had an opportunity to look into the allegations and talk to him. Triplett asked that Milek take care of that tactfully, understanding that Holle might be rather fragile. 
Tucker testified that the first day back at work for most employees after holiday break was on or around January 11, 2013.
After the holiday break, a co-worker told Tucker that Holle was a registered sex offender, and that Holle had been in a mental hospital over the break after he attempted to kill himself. Between January 11th and 22nd, Tucker and her co-workers spoke about the Sinclair-Holle situation on a daily basis.
After December 11, 2012, Holle did not work for Aramark, although he did come into the cafeteria. Tucker testified that after returning from the holiday break, she saw him "walking through" the kitchen, but she never saw him work in the area. Tucker knew that Holle had some relatives working in the dishroom, an uncle named Keith and a cousin, Rusty. Although she saw Holle come to the kitchen in January, she did not work any shifts with him.
Sinclair testified that she understood Kamine had told Holle not to come back to Aramark, and that they would call him when he could come back to work. Tucker testified that, "myself and others would see Andrew walking through, [and] I might question myself: Has anything been done since I reported ...