United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
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.
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
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,
Motion to Supplement her Summary Judgment Motion and
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).
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.
Effect of the Pretrial Order
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.
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.
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).
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.
Exhaustion of Remedies
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)).
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.”).
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.
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.
Materiality of New Incident
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.
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
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.
Motion to Amend Defendant's Reply
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. Plaintiff does not contest this motion.
The court thus grants it.
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).
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 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.
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.
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.
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.
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.
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.
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
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. But he never touched or made any
more inappropriate comments to plaintiff until September 8,
2017, when he rubbed her shoulders without her
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.
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.
February 2, 2016, defendant gave plaintiff a Level 2 warning
for failing to use the correct cardstock.
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 ...