United States District Court, D. Kansas
MEMORANDUM AND ORDER
RICHARD D. ROGERS, District Judge.
This is an employment discrimination action in which plaintiff alleges that she suffered from a hostile work environment because she is a woman and that she was terminated from her employment because she complained about the hostile work environment. Plaintiff claims that defendant's actions violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Plaintiff has also alleged a supplemental state law claim asserting that her termination violated Kansas public policy.
This case is before the court upon defendant's motion for summary judgment. Defendant alleges that plaintiff is incapable of proving the necessary elements of her Title VII claims. Defendant also argues, and plaintiff has conceded in response, that there is no legal basis for the supplemental Kansas law claim. Therefore, in this order the court shall focus only upon the Title VII claims.
I. SUMMARY JUDGMENT STANDARDS
Summary judgment is warranted if the materials on record show that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.CIV.P. 56(a). The court views "all of the facts in the light most favorable to the non-movant and reasonable inferences from the record must be drawn in favor of the non-moving party." Piercy v. Maketa, 480 F.3d 1192, 1197 (10th Cir. 2007). From this viewpoint, the court attempts to determine whether a reasonable jury could return a verdict in favor of the non-moving party. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). Although the court examines the record "in the light most favorable to the non-moving party, that party must still identify sufficient evidence requiring submission to the jury to survive summary judgment." Piercy, 480 F.3d at 1197. In other words, the court may consider evidence produced by the moving party as well as the absence of admissible evidence in favor of an essential element of the non-moving party's claim. Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000). "If the evidence [in support of a claim] is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250 (1986)(interior citations omitted). "[P]urely conclusory allegations of discrimination" which are devoid of "concrete particulars" are not sufficient to avoid summary judgment. Pucino v. Verizon Wireless Communications, Inc., 618 F.3d 112, 119 (2d Cir. 2010)(interior quotations omitted); see also, Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998)(non-moving party must set forth specific facts admissible in evidence from which a rational jury could find for non-movant). Unsubstantiated allegations also carry no probative weight; "evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise." Bones, 366 F.3d at 875. Therefore, plaintiff's belief that she was discriminated against is not sufficient to rebut evidence that plaintiff was terminated for nondiscriminatory reasons. Sharon v. Yellow Freight Sys., Inc., 872 F.Supp. 839, 847 (D.Kan. 1994).
II. UNCONTROVERTED FACTS
During the time relevant to this lawsuit, plaintiff worked as a computerized tomography technician (a "CT Tech") for a hospital owned by defendant. Plaintiff started her employment on August 29, 2005. She was terminated on or around August 24, 2012.
On February 19, 2012, plaintiff emailed Anna Johnson and Wilma Jenkins, her supervisors, stating:
Called Moses Kinyanjui, asked him to help with getting the patient down, he stated "I will tell Dr. Muhammaed (sic) you are too busy to scan patient". I explained the ER was busy, therefore I needed help, he stated the same thing. His anger from this time and prior times has frightened me, I do not feel comfortable working or speaking to him. Notified Bernadette, she said she would call Moses, called her back 45 minutes later, she said just make a report.
Prior to writing this email, plaintiff had complained about the incident with Kinyanjui to Bernadette Sims, her shift supervisor.
Kinyanjui was a registered nurse at the hospital. He did not work in plaintiff's department.
Jenkins, the Director of Imaging, and Connie Miller, the Director of Human Resources, met with plaintiff on February 20, 2012 to discuss her complaint of the previous day. Miller also discussed the complaint with Debbie Galant, the director of Kinyanjui's department, and with Kinyanjui. Galant said that Kinyanjui was quiet, had good patient skills, and got along with other staff. Kinyanjui said he merely explained to plaintiff during their phone call that his unit was very busy and he would call the doctor to see if the needed scan could be performed at a different time.
As a result of her investigation, Miller concluded that she could not substantiate plaintiff's complaint. But, she advised Kinyanjui that any further concerns with his behavior would be addressed and could lead to disciplinary action if substantiated.
Plaintiff has testified that Kinyanjui harassed plaintiff by yelling angrily at her and by staring at her - not in a sexual way but in a hostile way. She testified that he had yelled at plaintiff prior to the February 19, 2012 phone call and that that Kinyanjui interacted with her unpleasantly about "a half dozen times" before the February 19th incident. Each time, plaintiff alleges, Kinyanjui yelled angrily and threateningly at plaintiff. His "threats" involved telling a doctor if plaintiff did not do what Kinyanjui wanted done. But, he never yelled at her after the February 19th incident. He did, however, stand and stare at her when he saw her after February 19th until June 2012. The record is not clear as to how often this happened. Plaintiff has stated that Kinyanjui was physically intimidating, but she has not ...