Stovall v. Brykan Legends, LLC

          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 ...