Dahdal v. Thorn Americas, Inc.

998 F. Supp. 1196, 1998 U.S. Dist. LEXIS 4387, 77 Fair Empl. Prac. Cas. (BNA) 1879, 1998 WL 154593
CourtDistrict Court, D. Kansas
DecidedMarch 19, 1998
DocketCivil Action No. 97-2119-GTV
StatusPublished

This text of 998 F. Supp. 1196 (Dahdal v. Thorn Americas, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dahdal v. Thorn Americas, Inc., 998 F. Supp. 1196, 1998 U.S. Dist. LEXIS 4387, 77 Fair Empl. Prac. Cas. (BNA) 1879, 1998 WL 154593 (D. Kan. 1998).

Opinion

MEMORANDUM AND ORDER

VAN BEBBER, Chief Judge.

In this action, plaintiff claims that defendant subjected her to hostile work environment sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The case is before the court on defendant’s motion for summary judgment (Doc. 89). For the reasons set forth below, defendant’s motion is granted in part and denied in part, as follows:

(1) summary' judgment is granted as to plaintiffs sexual harassment claims based on a theory of negligent or reckless response to co-worker harassment;
(2) summary judgment is denied as to plaintiffs sexual harassment claims based on theories of misuse of supervisory authority; and
(3) summary judgment is denied as to plaintiffs retaliation claims.

I. Factual Background

The following facts are either uneontroverted or based on evidence viewed in a light most favorable to the plaintiff. Immaterial facts and facts not properly supported in the record are omitted.

Defendant owns' and operates Rent-A-Center stores across the United States. Rent-A-Center is in the business of renting furniture, electronics, appliances,, and jewelry to the public. Each Rent-A-Center store has five levels of workers: delivery driver, customer service representative, account representative, assistant manager, and store manager. A store manager reports to a market manager and has supervisory responsibilities over all the employees in his or her store. Assistant managers have responsibility for the store when the store manager is absent, but do not have the authority to hire or fire other employees or adjust their compensation. Account representatives have no supervisory responsibilities.

Defendant maintains an Open Door Policy and grievance procedure policy that encourages employees to speak to management or human resources personnel about any problems they incur in the workplace. Defendant also has a policy against sexual harassment [1200]*1200in its policy manual and posts a sexual harassment poster in each of its stores. The poster explains the meaning of sexual harassment and provides guidance for reporting and remedying such behavior. Moreover, in September 1994, all Kansas City, Kansas store managers were trained on the subject of sexual harassment.

A. Facts Concerning Hostile Work Environment Claim

On May 23, 1994, defendant hired plaintiff as a customer service representative at its Independence Avenue store in Kansas City, Missouri. After completing a training period, plaintiff was transferred to defendant’s Minnesota Avenue store in Kansas City, Kansas. Shortly before and after her transfer, plaintiff was sexually harassed by an employee known as Cortez. When defendant found out about this harassment, an investigation ensued and Cortez was suspended for three days. According to the pretrial order, the alleged harassment by Cortez is no longer a part of plaintiffs claims.

On August 12,1994, plaintiff was promoted to an account representative position. Sometime after this date, fellow account representative Marion Martinez allegedly began to sexually harass plaintiff. According to plaintiffs deposition téstimony, the following events occurred between August 13,1994 and October 17,1994:

1. Martinez told plaintiff that he would like to “feel [her] tits.”
2. A few days later, when plaintiff and Martinez were driving, Martinez asked if she “would1 like to stop at the hotel and fück.”
3. On one occasion, as plaintiff arose from bending down, her head was near Martinez’ “private parts.” Martinez rubbed himself and said “hum, hum, hum.” 1

Plaintiff did not complain about this behavior to management until April 1995. . At this time, plaintiff complained to Mike Larson, the new Minnesota Avenue store manager, that Martinez was sexually harassing her and her co-worker, Heather Marsh. Plaintiff, however, did not relate any specific instances of sexual harassment to Larson. On the same day that he received the complaint; Larson spoke with Marsh and Martinez regarding plaintiffs allegations. Martinez denied harassing either woman, and Marsh denied that Martinez had ever harassed her. Marsh also stated that plaintiff had approached her and asked her to join with plaintiff in concocting sexual harassment allegations against Martinez in an effort to get him fired.

In the course of his investigation, Larson informed Jim Turner, his Market Manager and direct supervisor, about plaintiffs allegations. Turner subsequently met with both Marsh and Martinez. Again, both individuals stated that plaintiffs allegations were false. Based on their investigations, both Larson and Turner concluded that Martinez had not acted inappropriately and, therefore, did not take any specific action against him.

In her deposition, plaintiff testified that Martinez again harassed her during the week of April 29 to May 5, 1995. During this time period, Martinez allegedly told plaintiff “how he would like to fuck [her] and if he can cheat on his wife [she] would be the one!” The court is unable to determine if this alleged conduct occurred before or after plaintiff complained to Larson. After this incident, the plaintiff alleges no discrimination until August 1995. The following incidents occurred after that date:

1. Martinez, who had been promoted to Assistant Store Manager in June 1995, approached plaintiff when she was sitting on a bed in the store, sat next to her, put his head on her stomach, and told her that he “would like to fuck her right now.”1
2. Martinez told plaintiff that he would pay her for vacation that she had not earned if she “fucked him.” Although plaintiff did not have sex with Martinez, plaintiff claims that he paid her [1201]*1201for the unearned “vacation” time anyway.
3. Martinez rubbed his chest on plaintiffs chest as he passed her and made remarks like “Your tits look good, I would like to sample it” and “When can we do it?” This behavior occurred on an everyday basis for about four months.
4. Plaintiff was sitting in the account representative’s office when Martinez grabbed her chair, pulled it toward him, and tried to kiss her. Plaintiff immediately called Vicki Ferguson in Human Resources to report this harassment.

This final incident and the phone call to Vicki Ferguson occurred on November 27, 1995; no harassment occurred after this date. Ferguson began investigating plaintiffs allegation by contacting Brian Pinga, the market manager for the Minnesota Avenue store. At a meeting on November 28, 1995, plaintiff told Pinga about Martinez’ conduct. When Pinga asked plaintiff why she had not reported the harassment sooner, she told him that she had no proof and that it would have been her word against Martinez’ word. The day after this meeting — November 29, 1995 — plaintiff filed an 'EEOC charge alleging sexual harassment and retaliation.

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998 F. Supp. 1196, 1998 U.S. Dist. LEXIS 4387, 77 Fair Empl. Prac. Cas. (BNA) 1879, 1998 WL 154593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dahdal-v-thorn-americas-inc-ksd-1998.