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Thompson v. Tyson Foods, Inc.

United States District Court, D. Kansas

February 5, 2018

TYSON FOODS, INC., Defendant.


          Daniel D. Crabtree United States District Judge.

         Title VII aims, in part, to end sexual harassment in the workplace by imposing liability on employers who fail to respond to sexual harassment complaints or retaliate against those who report harassment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63 (1986); 42 U.S.C. § 2000e-3(a). But when considering whether to impose liability on an employer, the court must be mindful of “the victim's rights, the employer's rights, and the alleged harasser's rights.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 677 (10th Cir. 1998). Here, plaintiff Tonia Thompson claims defendant Tyson Foods, Inc. has failed to respond to her complaints about sexual harassment and has retaliated against her for complaining about harassment.

         This matter comes before the court on four motions. Defendant moves for summary judgment against both plaintiff's hostile work environment claim (Count I) and her retaliation claim (Count II) (Doc. 37). Plaintiff moves for partial summary judgment on her hostile work environment claim (Doc. 39). Plaintiff also moves to supplement her motion and Opposition to defendant's Motion for Summary Judgment to include an additional episode of alleged harassment on September 8, 2017 (Doc. 51). And last, defendant moves to correct its Reply brief to its Motion for Summary Judgment (Doc. 53).

         The court grants plaintiff's Motion to Supplement and defendant's Motion to Amend. As for the parties' motions for summary judgment, the court grants them in part and denies them in part. The court holds that a jury should decide the outcome of plaintiff's hostile work environment claim. The court also holds that a jury should decide the outcome of plaintiff's retaliation claim, except for plaintiff's reliance on defendant's warning to plaintiff for taking an unauthorized extended lunch break. And last, the court holds that plaintiff is a member of a legally recognized protected class because she is a woman. The court explains the rationale for its rulings, below.

         I. Motion to Supplement her Summary Judgment Motion and Opposition

         As part of the pending summary judgment motions, plaintiff asks the court to consider a new incident between Anthony Richardson, the alleged sexual harasser, and plaintiff that purportedly occurred on September 8, 2017. This episode allegedly occurred after plaintiff filed her Motion for Summary Judgment and her Opposition to defendant's Motion for Summary Judgment. On September 8, plaintiff alleges that Mr. Richardson walked up behind her and started rubbing her shoulders without her consent. Plaintiff asks the court to consider this new incident as evidence supporting her hostile work environment claim, which alleges that defendant failed to respond adequately to an earlier complaint of harassment that plaintiff made in September 2015. See Adler, 144 F.3d at 673 (explaining that plaintiff, to impute liability on an employer under Title VII for a hostile work environment claim, must establish that defendant responded inadequately to a report of harassment by a co-worker).

         Defendant argues that the court should disregard the new evidence. It gives three reasons why the court should do so: (1) the September 8 incident was not included in the Pretrial Order; (2) plaintiff has failed to exhaust her administrative remedies for the September 8 incident; and (3) the incident has no relevance to defendant's or plaintiff's Motions for Summary Judgment. The court addresses these arguments, in turn, below.

         A. Effect of the Pretrial Order

         “Claims or theories that are not included in the pretrial order usually are waived.” Leathers v. Leathers, 856 F.3d 729, 760 (10th Cir. 2017) (citation omitted). But “'a pretrial order should be liberally construed to cover any of the legal or factual theories that might be embraced by its language.'” Id. (quoting Koch v. Koch Indus., Inc., 203 F.3d 1202, 1220 (10th Cir. 2000)). Courts should follow this rule particularly when the Pretrial Order states the parties' allegations in general terms. Id. at 760-61.

         Defendant asserts that Sunderman v. Westar Energy, Inc., 520 F.Supp.2d 1269 (D. Kan. 2007), addressed a similar situation. In Sunderman, plaintiff asserted a Title VII retaliation claim, which requires plaintiff to show that defendant retaliated against him because he reported or opposed discrimination. Id. at 1277. Plaintiff had alleged in the Pretrial Order that he had reported discrimination just once-when he filed a complaint with the Kansas Human Rights Commission in November 2002. Id. at 1278. After the court entered the Pretrial Order, plaintiff attempted to assert that he also reported discrimination another time-when he complained to defendant's human resource department as early as March 11, 2002. Id. Judge Robinson refused to consider the new allegation because plaintiff had not asserted it in the Pretrial Order where he specifically had identified the occasion he had reported discrimination. Id.

         Judge Robinson explained that the Sunderman facts differed from other Tenth Circuit cases holding that a court should “liberally construe[]” a pretrial order “to cover any of the legal and factual theories that might be embraced by its language.” Id. In contrast, Judge Robinson explained, the Sunderman Pretrial Order required a “'more strict[] constru[ction]'” because the Order “'ha[d] been refined over time, properly drawn, and drafted with substantial specificity.'” Id. (quoting Koch, 203 F.3d at 1220-21).

         In contrast, the Pretrial Order here generally describes why defendant has failed to respond adequately to plaintiff's complaints of harassment. Plaintiff's factual contentions provide, in relevant part, “Plaintiff has continued to be exposed to [Mr.] Richardson through her employment with Tyson . . . . [Mr. Richardson] has engaged in conduct [after defendant transferred him] that is intimidating to Plaintiff, which Plaintiff has reported to management.” Doc. 41 at 11. This allegation does not specifically reference the occasions when Mr. Richardson had intimidated plaintiff. Now, plaintiff alleges Mr. Richardson came into her work area, rubbed her shoulders, and made plaintiff uncomfortable. This interaction allegedly occurred after the court entered the Pretrial Order, after plaintiff filed her Motion for Summary Judgment, and after she filed her Opposition to defendant's motion. Under these circumstances and liberally construing plaintiff's allegations in the Pretrial Order, Leathers, 856 F.3d at 760, the court concludes that the Pretrial Order encompasses the September 8 incident that plaintiff alleges here.

         B. Exhaustion of Remedies

         Defendant next argues that the court cannot consider the September 8 incident because plaintiff has not complained about the incident to the Equal Employment Opportunity Commission (“EEOC”). “Federal courts lack jurisdiction over Title VII claims that were not previously covered in a claim presented to the [EEOC].” Eisenhour v. Weber Cty., 744 F.3d 1220, 1226 (10th Cir. 2014) (citing Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005)).[1]

         Plaintiff argues that she need not present this new incident to the EEOC because she merely intends to use it as evidence to support her hostile work environment claim. Incidents of earlier harassment that plaintiff did not exhaust administratively “may constitute relevant background evidence” in a suit for a later act of harassment. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977) (“A discriminatory act which is not made the basis for a timely [EEOC] charge is the legal equivalent of a discriminatory act which occurred before [Congress passed Title VII]. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history with no legal consequences.”).

         The Tenth Circuit has explained that acts of harassment occurring after harassment complained of in a Title VII suit may constitute relevant background evidence even though plaintiff never brought the subsequent harassing act to the EEOC's attention. See Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir. 2003) (recognizing that subsequent, unexhausted acts of retaliation may provide evidence that an earlier, administratively exhausted act was retaliatory). While plaintiff here argues that the new episode is germane to her hostile work environment claim-and not her retaliation claim-the court finds Potter persuasive. Based on it, the court concludes that the Tenth Circuit also would find unexhausted episodes of later harassment can constitute background evidence of a hostile work environment.

         Importantly, later acts of harassment can show that an employer's response was not reasonable, thus making this evidence relevant. See Adler, 144 F.3d at 676 (“Repeat[ed] [harassing] conduct may show the unreasonableness of prior responses.”). And considering this unexhausted episode to decide the pending summary judgment motions will not offend the policy justifications that require exhaustion as a predicate to suit in federal court, i.e.: (1) to give notice to the employer that a violation may have occurred so that it can address the incident voluntarily; and (2) to allow the EEOC to defuse the situation. Jones v. Needham, 856 F.3d 1284, 1290 (10th Cir. 2017) (citation omitted). Here, plaintiff does not intend to litigate the reasonableness of defendant's response to the September 8 incident. That is, plaintiff does not contend in this lawsuit that defendant failed to respond adequately to plaintiff's complaint about the September 8 incident. So, notice is not an issue because, at least in this suit, defendant need not show that it addressed this incident reasonably, or even at all. Instead, plaintiff merely asks the court to consider the September 8 incident as evidence that defendant's response to the original episodes of harassment in 2015 was inadequate. This means, in turn, that there is no situation for the EEOC to defuse because no current dispute exists about defendant's response to the September 8 episode. The court thus finds that plaintiff need not exhaust this claim to utilize it as evidence about the effectiveness of defendant's response to her reported harassment.

         C. Materiality of New Incident

         Last, defendant contends that the court should refuse to consider the September 8 incident because it is legally immaterial. It cites Atkins v. Southwestern Bell Telephone Co., 137 F. App'x 115 (10th Cir. 2005), for support.

         In Atkins, plaintiff brought a hostile work environment claim under Title VII. Id. at 117. Defendant moved for summary judgment, arguing that its response was reasonable because the summary judgment facts showed that it reasonably responded to the first reported instance of harassment and plaintiff never complained of any other problems during the ensuing two years. Id. at 117-18. The district court and Tenth Circuit agreed that defendant's response to plaintiff's complaint was reasonable as a matter of law because defendant had received no other complaints about the alleged harasser, the harasser denied the allegations, and defendant, nevertheless, counseled the harasser about the employer's sexual harassment policy, instructed him to follow it, and told plaintiff to report any further problems. Id. Because plaintiff never complained of harassment again for two years, defendant had no knowledge of any further harassment that would have warranted harsher action against the alleged harasser. Id. at 118; see also Adler, 144 F.3d at 676 (“The employer is, of course, obliged to respond to any repeat [harassing] conduct; and whether the next employer response is reasonable may very well depend upon whether the employer progressively stiffens its discipline, or vainly hopes that no response, or the same response as before, will be effective.”). So, defendant had no way of knowing that its original response had failed to stop the harasser. Atkins, 137 F. App'x at 118.

         Here, defendant argues that plaintiff's new allegation similarly cannot help plaintiff survive its Motion for Summary Judgment. But Atkins does not stand for the proposition that a court cannot consider at summary judgment a reported instance of sexual harassment two years after the original incident. In fact, it holds the opposite. The Circuit considered the later episode of sexual harassment when it affirmed the district court's decision granting summary judgment to defendant. Id. at 118. Indeed, the court must take all of the circumstances into account to determine if a response is reasonable. See Adler, 144 F.3d at 676 (explaining that the “reasonableness” of an employer's response turns on many factors). The court thus rejects defendant's argument that the September 8 incident is legally immaterial. The court will consider plaintiff's evidence about the events on September 8 when deciding the pending summary judgement motions.

         II. Motion to Amend Defendant's Reply

         Defendant asks the court for leave to amend its Reply supporting its Motion for Summary Judgment. In its Reply, defendant argues that the court should not consider Mr. Richardson's alleged harassment of another female employee and an episode on June 23, 2017 when Mr. Richardson allegedly intimidated plaintiff. Doc. 52 at 42-44. It argues that the court should not consider this evidence because, among other reasons, plaintiff failed to disclose it to defendant before the close of discovery. Id. at 44. But, defendant explains, its current counsel recently learned that plaintiff had disclosed this evidence to defendant's previous counsel. So, defendant asks the court to allow it to amend its reply to withdraw this argument.[2] Plaintiff does not contest this motion. The court thus grants it.

         III. Undisputed Facts

         The following facts are uncontroverted or, where controverted, are stated in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

         The Parties

         Defendant Tyson Foods, Inc. is a producer of fresh and cooked chicken, beef, and pork products. Plaintiff Tonia Thompson became defendant's employee in 2014 when defendant bought Hillshire Brands Company-the company who originally employed plaintiff. Plaintiff currently works for defendant as a Production Packer at its Kansas City, Kansas plant. Through her job duties, plaintiff checks packaging, identifies material quality defects, and fixes those defects.

         Defendant's Employment Practices

         Two of defendant's employment practices are involved here. First, defendant employs Team Leads. Team Leads are hourly employees who assist supervisors with running the production line. While Team Leads have no power to hire, fire, or discipline employees, they tell production line employees where to work, help fix broken machines, keep track of schedules, help resolve employee disputes, handle paperwork, recommend discipline, and coach other employees.

         The second practice is defendant's discipline system. Defendant divides its discipline system into different tiers. The first tier is a verbal warning where a supervisor and an employee discuss an issue the employee is having. No adverse consequences arise from a verbal warning. The next tier is a Level 1 warning. This is a “documented reminder” that remains “active” in an employee's file for three months. This means an employee cannot request a transfer during the three months the warning is active. The next tier is a Level 2 warning, which is a written warning that remains active for six months. Above Level 2-predictably-is a Level 3 warning. A Level 3 warning remains active for nine months and also produces a one-day suspension. The last tier is termination.

         The Alleged Harassment

         On June 10, 2015, defendant hired Anthony Richardson. He began training on plaintiff's production line on September 9, 2015. That day, Mr. Richardson made sexually explicit comments to plaintiff and rubbed the side of her breast. Plaintiff reported this conduct to Dejuana Stallings, a Team Lead, but Ms. Stallings did not inform anyone else of the concern that plaintiff had expressed to her.

         The next day, September 10, Mr. Richardson told plaintiff that he gave Kim Cobb, a fellow employee, some nude photographs to show plaintiff. He also made more sexually explicit comments, invaded her personal space, and acted jealous anytime she spoke with another male co-worker. Plaintiff also reported this conduct to Ms. Stallings, who asked another Team Lead, Jun Penn, to speak with plaintiff. When Mr. Penn spoke with plaintiff and offered to speak to Mr. Richardson about her complaints, plaintiff declined. Plaintiff explained that she hoped that Mr. Richardson would “get the hint.” Based on this discussion, Mr. Penn did not speak with Mr. Richardson that day about the harassment.

         On September 11, Mr. Richardson again acted jealous when plaintiff spoke with other male co-workers and made more sexually explicit comments. And, in the locker room after plaintiff's shift, Ms. Cobb showed the nude photographs of Mr. Richardson to several employees, including plaintiff.

         Defendant's Response

         At the beginning of her next shift, on September 12, 2015, plaintiff reported Mr. Richardson's conduct to one of defendant's managers-Marcus Alexander. Mr. Alexander alerted his supervisor, Nathan Pease, who in turn called the facility's Human Resources Manager, Simone Clifford. Mr. Pease interviewed plaintiff and secured a written statement from Mr. Richardson that day. Immediately after Mr. Richardson supplied the written statement, defendant suspended him for one day without pay, pending a full investigation. Defendant's management also interviewed Ms. Stallings, Mr. Penn, and the other employees who saw the nude pictures in the locker room.

         When Mr. Richardson returned to work on September 14, 2015, Ms. Clifford issued a Level 3 warning to him. During the meeting where she informed Mr. Richardson of the Level 3 warning, Ms. Clifford also reviewed defendant's sexual harassment policy. Defendant then temporarily moved Mr. Richardson to a different part of plaintiff's department. And about two weeks later, on October 3, 2015, defendant permanently moved Mr. Richardson to the warehouse-a different department in another part of defendant's Kansas City facility. Defendant also conducted facility-wide training on its harassment policy.

         On September 25, 2015-about one week before defendant moved Mr. Richardson to a different job in the warehouse-Mr. Richardson stared at plaintiff in a way that made her feel uncomfortable. Plaintiff reported this episode to Ms. Clifford. After defendant had transferred Mr. Richardson to the warehouse, Mr. Richardson continued to intimidate plaintiff whenever he took supplies from the warehouse to the production line area. And whenever plaintiff walked in Mr. Richardson's direction, Mr. Richardson made exaggerated, sarcastic gestures to get out of her way. On June 23, 2017, Mr. Richardson came into the production line area and walked in circles around plaintiff.[3] But he never touched or made any more inappropriate comments to plaintiff until September 8, 2017, when he rubbed her shoulders without her consent.[4]

         Alleged Retaliation

         As explained above, plaintiff reported Mr. Richardson's conduct to a manager on September 12, 2015. On September 14, Ms. Clifford spoke to plaintiff about her complaint. Ms. Clifford berated plaintiff for reporting Mr. Richardson's conduct and threatened to write her up or fire her. On October 2, 2015, plaintiff filed a Charge of Discrimination with the EEOC. It alleged that Mr. Richardson sexually harassed plaintiff. And it alleged that defendant had failed to respond to the harassment and, instead, had blamed her for any discomfort Mr. Richardson felt. Defendant received notice of this Charge on October 15, 2015. Eight days later, on October 23, a manager verbally reprimanded plaintiff for a work error she had made. Ms. Clifford and others in defendant's Human Resources department initially thought about issuing plaintiff a written warning or terminating her employment but, in the end, did not impose any formal discipline on plaintiff for her work error.

         Shortly after this incident, Ms. Clifford issued two warnings to plaintiff for conduct that occurred before plaintiff complained about harassment. On May 12, 2015, defendant suspended plaintiff because she lied on company documents by claiming that she had performed metal detection checks on food products the day before. On September 4, 2015, a manager gave plaintiff a verbal reminder about her end of shift responsibilities that she had neglected to complete on September 1. Ms. Clifford did not issue plaintiff any formal warning for either incident until October 26, 2015. On that date, Ms. Clifford issued plaintiff a Level 3 warning for the May 11 incident-when she claimed falsely that she had performed metal detection checks- and a Documented Conversation warning for the September 1 incident.

         On February 2, 2016, defendant gave plaintiff a Level 2 warning for failing to use the correct cardstock.

         On April 18, 2016, a supervisor could not locate plaintiff shortly before lunch was called. Various supervisors looked for her, but could not find her. Henry Smith, one of defendant's supervisors, issued a Level 3 warning to plaintiff for taking an unauthorized extended lunch break. When Mr. Smith discussed the extended lunch break with plaintiff, she protested and explained that she had gone to the locker ...

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