United States District Court, D. Kansas
Gladys M. Stovall, Plaintiff,
v.
Brykan Legends, LLC, Defendant.
MEMORANDUM & ORDER
John
W. Lungstrum United States District Judge
Plaintiff
Gladys M. Stovall filed this lawsuit against her former
employer alleging sexual harassment and retaliation in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. and the Kansas Act Against
Discrimination, K.S.A. § 44-1001 et seq.
(“KAAD”); disability discrimination and
retaliation in violation of the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12112 et seq., as
amended by the ADA Amendments Act of 2008
(“ADAAA”) and the KAAD; workers' compensation
retaliation; and negligent hiring and retention. This matter
is presently before the court on the parties'
cross-motions for summary judgment (docs. 81, 85). As will be
explained, defendant's motion is granted in part and
denied in part and plaintiff's motion is denied in its
entirety. Specifically, the court grants summary judgment in
favor of defendant on plaintiff's negligent hiring and
retention claim and plaintiff's claim that defendant
failed to reasonably accommodate her disability when it
refused to permit her to transfer to defendant's Kansas
City, Missouri location. All other claims must be resolved by
a jury.
I.
Facts
The
following facts are uncontroverted, related in the light most
favorable to the nonmoving party, or stipulated by the
parties. Plaintiff was employed by defendant at
defendant's restaurant in Kansas City, Kansas as a
dishwasher and busser from March 2016 through June 2016. At
some point after plaintiff began her employment, Vincent
Martin became a shift manager at the restaurant and,
according to plaintiff, began making sexually harassing
comments and gestures to plaintiff. Mr. Martin denies that he
sexually harassed plaintiff and asserts that he and plaintiff
began a consensual, sexual relationship before plaintiff
started working for defendant and that the relationship
continued after plaintiff started working for
defendant.[1] The record reflects that on May 15, 2016,
plaintiff and Mr. Martin were involved in a physical
altercation at work. Plaintiff asserts that while she was
outside at the back of the restaurant taking out the trash
and having a cigarette break, she began talking to a frequent
customer and provided her telephone number to that customer.
She asserts that Mr. Martin became jealous and violently
pushed her to the ground, causing injuries to plaintiff's
head, back and neck. Plaintiff testified that after the May
15, 2016 incident, she reported “everything”
about Mr. Martin to Jerry Rauschelbach, defendant's
general manager. Defendant immediately transferred Mr. Martin
to its Kansas City, Missouri restaurant
location.[2]
Plaintiff
filed a workers' compensation claim and sought benefits
arising out of the injuries she sustained as a result of the
May 15, 2016 incident. Over the next several weeks, plaintiff
was treated by doctors at Concentra, defendant's
workers' compensation provider. During this same time,
she was treated by Dr. Donald Peghee, her gynecologist, for
follow up visits relating to a hysterectomy that Dr. Peghee
had performed on plaintiff in early March 2016. According to
plaintiff, she visited Dr. Peghee on June 10, 2016 because
the injuries she sustained on May 15, 2016, coupled with the
treatment exercises required by her Concentra doctors,
complicated and delayed her recovery from the hysterectomy.
Plaintiff specifically asserts that she was experiencing
urinary incontinence. Dr. Peghee provided a note to plaintiff
indicating that she could not return to work until June 17,
2016; that her injury on May 15, 2016 had delayed her ability
to return to work earlier; and that one week of leave was
required for recovery. Plaintiff presented Dr. Peghee's
note to Mr. Rauschelbach on June 10, 2016. Mr. Rauschelbach
refused to accept the note and advised plaintiff that she
needed to submit a note from a treating physician at
Concentra or be prepared to return to work for her shift
later that day. Mr. Rauschelbach advised plaintiff that if
she did not return to work her shift or with a note from a
Concentra doctor, she would be deemed to have quit her
employment. Plaintiff did not return to work her shift or
with a note from Concentra. Plaintiff settled her
workers' compensation claim in January 2017.
Additional
facts will be provided as they relate to the specific
arguments raised by the parties in their submissions.
II.
Summary Judgment Standard
“Summary
judgment is appropriate if the pleadings, depositions, other
discovery materials, and affidavits demonstrate the absence
of a genuine issue of material fact and that the moving party
is entitled to judgment as a matter of law.” Water
Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1143
(10th Cir. 2013) (quotation omitted); see Fed. R.
Civ. P. 56(a). A factual issue is genuine “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Water Pik,
Inc., 726 F.3d at 1143 (quotation omitted). “The
nonmoving party is entitled to all reasonable inferences from
the record; but if the nonmovant bears the burden of
persuasion on a claim at trial, summary judgment may be
warranted if the movant points out a lack of evidence to
support an essential element of that claim and the nonmovant
cannot identify specific facts that would create a genuine
issue.” Id. at 1143-44.
The
legal standard does not change if the parties file
cross-motions for summary judgment. Each party has the burden
of establishing the lack of a genuine issue of material fact
and entitlement to judgment as a matter of law. Atlantic
Richfield Co. v. Farm Cr. Bank, 226 F.3d 1138, 1148
(10th Cir. 2000).
III.
Discussion
In the
pretrial order, plaintiff asserts numerous claims against
defendant-sexual harassment in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.;
disability discrimination in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12112
et seq., as amended by the ADA Amendments Act of 2008
(“ADAAA”); retaliation in violation of Title VII
and the ADA; workers' compensation retaliation; and
negligent hiring and retention.[3] Briefly summarized, plaintiff
asserts that she was subjected to unlawful sexual harassment
by Mr. Martin; that she reported that unlawful harassment to
defendant and that defendant terminated her employment based
on that report; that plaintiff sustained an on-the-job injury
when Mr. Martin pushed her down in May 2016 for which she
filed and pursued a claim for workers' compensation
benefits; that the May 15, 2016 incident exacerbated a
pre-existing injury resulting in a disability; that defendant
failed to accommodate plaintiff's disability by refusing
to transfer her to defendant's Kansas City, Missouri
location and refusing to permit her to take additional leave
time to recover; and that defendant terminated
plaintiff's employment based on her disability, based on
her workers' compensation claim and/or based on her
requests for accommodations. Finally, plaintiff asserts that
defendant was negligent in hiring and retaining Mr. Martin as
an employee.
A.
Exclusive Remedy Provision
As a
threshold matter, defendant contends that summary judgment is
appropriate on all claims based on the exclusive remedy
provision of the Kansas Workers' Compensation Act (KWCA).
The exclusivity provision provides:
Except as provided in the workers compensation act, no
employer, or other employee of such employer, shall be liable
for any injury . . . for which compensation is recoverable
under the workers compensation act nor shall an employer be
liable to any third party for any injury or death of an
employee which was caused under circumstances creating a
legal liability against a third party and for which workers
compensation is payable by such employer.
Kan. Stat. Ann. § 44-501b(d). The exclusive remedy
provision precludes workers who can recover under the KWCA
from bringing a common law negligence action against an
employer or fellow employee. See Herrell v. National Beef
Packing Co., 259 P.3d 663, 674 (Kan. 2011) (quoting
Hollingsworth v. Fehrs Equip. Co., 729 P.2d 1214
(Kan. 1986)). To bar a claim pursuant to the KWCA's
exclusivity clause, defendant must show the existence of an
employer-employee relationship between plaintiff and
defendant and show that the injury sustained by plaintiff is
“recoverable” under the KWCA-that is, the injured
worker could have recovered workers' compensation
benefits from the employer. See Logue v. Layne Inliner,
LLC, 2018 WL 2971746, at *2 (D. Kan. June 12, 2018)
(citations omitted).
According
to defendant, the exclusive remedy for the physical injuries
that plaintiff allegedly sustained as a result of the May 15,
2016 incident (and any emotional distress injuries directly
stemming from that incident) lies in the workers'
compensation system. The court agrees that plaintiff's
negligent hiring and retention claim is barred by the
exclusive remedy doctrine to the extent that claim is based
on any physical injury that plaintiff suffered as result of
the May 15, 2016 incident and any emotional distress stemming
from that incident. Summary judgment on that aspect of
plaintiff's negligent hiring and retention claim is
warranted. See Beam v. Concord Hospitality,
Inc., 873 F.Supp. 491, 500 (D. Kan. 1994) (granting
summary judgment on state law tort claims for damages
resulting from physical injury and emotional distress
directly stemming from that physical injury). But to the
extent that plaintiff's negligent hiring and retention
claim goes beyond the physical and emotional injuries alleged
by plaintiff as a result of the incident, the exclusive
remedy doctrine does not apply. See Tabares v. Gates
Corp., 2009 WL 151571, *2 (D. Kan. Jan. 21, 2009)
(emotional damages not flowing directly from one's
physical injury are not precluded by the exclusive remedy of
the KWCA); see also Gonzales v. Ultra-Chem, Inc.,
2011 WL 5142755, at *4-5 (D. Kan. Oct. 28, 2011) (KWCA
exclusivity provision concerns itself primarily with physical
injury; in the context of alleged sexually harassing conduct,
damages for mental anguish caused by offensive nature of
contact falls outside scope of exclusivity provision).
Defendant
also contends that plaintiff's sexual harassment,
retaliation, and discrimination claims are subject to summary
judgment by virtue of the exclusive remedy provision of the
KWCA. This argument is premised on defendant's somewhat
incredible assertion that all of plaintiff's emotional
distress damages are directly traceable to the May 15, 2016
incident with Mr. Martin. While defendant has addressed
emotional distress allegedly suffered by plaintiff as a
result of Mr. Martin's conduct, it has not addressed
emotional distress allegedly suffered by plaintiff as a
result of defendant's allegedly discriminatory and
retaliatory conduct. Defendant has not satisfied its burden
of showing that the exclusive remedy doctrine bars these
claims and the court denies this aspect of defendant's
motion for summary judgment. See Shepherd v. Precision
Drilling Company, L.P., 2013 WL 11865970, at *3 (D.N.M.
Apr. 9, 2013) (workers' compensation exclusivity
provision “cannot bar claims that are not contemplated
by the scope of the [Workers' Compensation Act], such as
claims of discrimination . . . and retaliatory
discharge.”) (applying analogous New Mexico
law).[4]
B.
Failure to Exhaust Administrative Remedies
The
second threshold issue is whether plaintiff has exhausted her
administration remedies. Defendant asserts that summary
judgment is required on plaintiff's sexual harassment,
disability discrimination and retaliation claims because
plaintiff has not exhausted her administrative remedies with
respect to those claims. In her charge of discrimination,
plaintiff marked the “sex, ” “disability,
” and “retaliation” boxes and ...