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Case Number: 19-CV-2748
Judge: John W. Broomes
Court: United States District Court for the District of Kansas (Wyandotte County)
Plaintiff's Attorney: Aaron McKee
Defendant's Attorney: Nicole A. Eichberger and Sara E. Welch
Description: Kansas City, Kansas civil rights lawyer represented Plaintiff who sued Defendant on a job discrimination theory (sexual harassment).
Plaintiff was formerly employed at a McDonald's franchise restaurant in Pittsburg, Kansas owned by Defendant. Plaintiff contends Defendant subjected her to employment discrimination on account of sex, including harassment in the form of a hostile work environment, and unlawful retaliation, all in violation of the Kansas Act Against Discrimination (KAAD), K.S.A. 44-1001 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Defendant moved for summary judgment on all claims. It first argues that Plaintiff failed to timely exhaust administrative remedies on her KAAD claims such that the court lacks jurisdiction over those claims. It contends Plaintiff's hostile work environment claim fails because the alleged harassment was not severe or pervasive, and because Defendant is entitled to an affirmative defense for employers that take appropriate remedial action in response to reported harassment. Defendant argues it is entitled to judgment on claims of disparate treatment and retaliation because Plaintiff did not suffer adverse employment action and the evidence does not give rise to a reasonable inference of discrimination or retaliation. Finally, Defendant argues it is entitled to summary judgment because the evidence shows Defendant had a legitimate, non-discriminatory reason for its actions.
Defendant is a franchisee of several McDonald's restaurants including two in Pittsburg, Kansas - one in the north part of town and one in the south, a few miles apart from each other. From 2000 to 2002, Plaintiff worked as a crew member at both the north and south stores. Plaintiff then left Defendant's employment until 2015, when she was rehired as a crew member. She then worked primarily at the south store. (Doc. 64 at 2.)
Plaintiff was promoted to shift manager within a few months of returning in 2015 and was later promoted to department manager (“DM”) of two departments. Shift managers oversee the placement of employees at workstations during their shifts, can send employees home, and can write them up for discipline. DMs don't oversee employee placement but run one of three specified restaurant departments - Kitchen, Guest Services, or People. DMs have overlapping authority to write up employees, but DMs cannot otherwise discipline employees. Plaintiff's pay was based upon her position as a DM, although she sometimes performed the duties of a shift manager. DMs are directly supervised by store managers (also referred to as general managers). (Id. at 3.)
Defendant had a policy during Plaintiff's tenure prohibiting harassment, discrimination, and retaliation for engaging in protected conduct. Plaintiff signed an acknowledgement on June 8, 2015, that she had received and read the policy. Plaintiff understood that the policy required employees to bring incidents of discrimination to the attention of their immediate supervisor. From December 2017 to the end of her employment, Kelsey McClure, the store manager of the south store, was Plaintiff's immediate supervisor. (Id. at 4.)
Prior to May 2018, David Hadley had been a crew member and was training to become a shift manager. Hadley became a shift manager only a few days before the end of Plaintiff's employment. Plaintiff testified that Hadley frequently commented on her weight and appearance, said that women shouldn't work on the grill because they can't work fast enough, and called Plaintiff a “she-male” and “thick.” Hadley made comments to the effect that women can't do their jobs like men can. On multiple occasions Plaintiff verbally complained about Hadley's behavior to McClure, her immediate supervisor, and to McClure's supervisor, Vanessa Ketcham, the area supervisor for the south store. After she did so, the behavior would briefly stop, but it would start up again and Plaintiff would have to complain again. (Doc. 64-1 at 5; Doc. 80 at 11.)
In February of 2018, Plaintiff's boyfriend, who also worked for Defendant, left Plaintiff a Valentine's Day present in the office at the south store. As Plaintiff walked in the office, Hadley grabbed her and kissed her, saying he was sure her boyfriend “wanted me to give that to you also.” (Doc. 64-1 at 28.) Hadley tried to kiss her fully on the lips but Plaintiff pulled away so that Hadley kissed her half on the lips and half on the cheek. (Id. at 28-29.) Plaintiff verbally informed Ketcham and McClure of Hadley's actions. Although Defendant's policy requires that violations or discipline be included in personnel files, Hadley's personnel file contains no record of complaints or discipline.
On May 17, 2018, Plaintiff was not scheduled to work and was home sick with strep throat. She had called in sick and provided a doctor's note to Hadley. Hadley nevertheless called her and asked her to come in, telling her the store was short-staffed and he had been unable to get in touch with other managers, and that Plaintiff was his last resort even though she was sick. (Doc. 80-2 at 33.) Plaintiff went in to work. Plaintiff testified that on prior occasions when a DM was out, whether it was because of sickness or a day off, if the store was short-handed Ketcham had “made it very clear that it was our jobs as the DMs ... to go in, ” and they “got yelled at ... for not going in.” (Doc. 80-2 at 36.) Plaintiff testified that after she began work that morning, Hadley disappeared for an extended period, leaving her to cover both the drive-thru and the kitchen. When McClure arrived at the store, Plaintiff informed her she could not locate Hadley. When Hadley finally showed up, McClure told him he needed to move Plaintiff from the drive-through to another position because she was not feeling well. Hadley refused, prompting McClure to say she was going to look at the security camera video to see where Hadley had been for the last hour. (Doc. 80-2 at 35-37.) Hadley turned and confronted Plaintiff, yelling at her and calling her a “stupid crybaby bitch.” (Doc. 80-2 at 36.) Plaintiff responded that she was sick and was not even supposed to be there or handle food, and said it was even harder doing it all by herself. (Id.) Hadley continued yelling at Plaintiff, called her a “stupid fucking bitch, ” a “cunt, ” and threatened to kick both her ass and her boyfriend's ass. (Doc. 64-1 at 37; Doc. 83-2 at 7; Doc. 64-8 at 3.) Hadley was standing over Plaintiff, screaming, and pointing his finger in her face. Plaintiff is approximately 5 feet 1 inches tall and weighs about 100 pounds. Hadley is over 6 feet tall and weighs 250 pounds or more. (Doc. 80-2 at 37.) The incident took place in front of customers, crew members, and McClure. McClure said and did nothing as Hadley confronted Plaintiff. (Id. at 38.) Megan Fordyce (another shift manager and DM) was also present at the store that morning.
Plaintiff was crying and shaking profusely. (Doc. 80 at 1-2.) Fordyce asked Hadley to leave the store; he refused to leave. (Doc. 80-5 at 125.) Hadley violated a number of Defendant's policies on May 17, 2018, including policies on harassment, social media, insubordination, and professionalism. (Doc. 80 at 2.)
Plaintiff left the store without obtaining advance permission from her supervisor (McClure), which was contrary to Defendant's policies. Plaintiff called Ketcham on the phone. Ketcham, who had taken the day off, asked Plaintiff, “What the fuck do you want?” (Doc. 80-2 at 39.) Plaintiff explained what happened and told Ketcham she had left the store. Ketcham said “if you want to keep your job, you better get your ass back to work.” (Id.) Ketcham said she would call Plaintiff back and hung up. (Id.)
Plaintiff texted McClure a screenshot of a Facebook public post Hadley made shortly after the incident, while he was still at work, that said “Lol better get ur lies straight bitch I'm not the one to back down so let's play.” (Doc. 64 at 8; Doc. 80 at 2.) McClure also saw a screenshot of a post by Hadley about the same time that said, “Sick of these woman thinking their shit don't stink. Fact check produce with Ur body not ur mouth and you will get more respect.” [sic] (Id.) McClure feared for Plaintiff's safety and told her not to return to work that day until Hadley was gone. McClure sent Hadley home an hour early from his shift and notified Plaintiff. Plaintiff then returned to the store and worked additional hours that day. McClure shared Hadley's Facebook posts with Ketcham. (Doc. 80-9 at 15.)
The next day, Friday May 18, 2018, Plaintiff and Hadley had been scheduled to work overlapping shifts, but McClure altered Plaintiff's schedule so they would not be working at the same time. Plaintiff attempted to call Ketcham, but she did not answer. Plaintiff texted Ketcham and McClure at 10:10 a.m. stating that she decided not to come in that day because of the hostile situation the day before and because her schedule “has been rearranged to suit the bully...” (Doc. 80-7.) She complained about Hadley's derogatory statements about women, indicated she did not feel safe when Hadley “could explode [at] any moment, ” said McClure (Plaintiff's supervisor) admitted the day before that she was scared to talk to Hadley alone, and asserted that Hadley “smoke[s] weed on the property while clocked in” and it “makes him very unstable.” (Id.) Ketcham's text response was, “You need to call me unless this is you quitting, then there's no need.” (Id.) Plaintiff responded that “I absolutely don't want to quit my job [as] I have kids to take care of, ” but asserted that she should not have to lose hours or have her schedule rearranged “to accommodate a bully.” (Id.) Ketcham responded, “Then you call me as stated above.” (Id.)
Plaintiff met in person with Ketcham and McClure on May 18th. At the meeting, Ketcham told Plaintiff she was being placed on probation because, according to Defendant, Plaintiff “yelled and argued with Hadley in front of customers and crew members.” (Doc. 64 at 9.) Plaintiff protested that she had not started the argument with Hadley. (Doc. 64-1 at 46.) Plaintiff also cites evidence, including her own testimony, from which a reasonable jury could find that she did not yell at Hadley during the incident. (See Doc. 80 at 14.) For purposes of summary judgment, the court accepts Plaintiff's version of the facts as true. Plaintiff, who feared losing her job, signed an acknowledgment of being placed on probation even though she thought it was unfair.
Defendant asserts that Hadley “was similarly placed on probation” and Plaintiff was informed at the May 18 meeting that Hadley had been placed on probation. ((Doc. 64 at 9; Doc. 80-2 at 42.) But Plaintiff cites evidence that Hadley's personnel file contains no documentation of any discipline, despite a policy that such discipline should be documented in the file. (Doc. 80 at 14.)
Ketcham had decided to discipline Plaintiff prior to meeting with her on May 18. Ketcham did not speak with anyone about the May 17 incident other than Plaintiff, Hadley, and McClure. Ketcham did not review the surveillance video from the store although she was aware that the incident would have been on video. (Doc. 80 at 3-4.)
Plaintiff had previously worked at the north McDonald's store. Plaintiff was a single mother of six children and, in addition to her job at the south McDonald's, she was also working a second job in the evenings at a shoe store that was close to the north store. At some point, Ketcham raised the possibility of moving Plaintiff from the south McDonald's store to the north store.
On Monday, May 21, 2018, Ketcham texted Plaintiff asking, “So, why are you not here at work today?” (Doc. 80-8 at 1.) Plaintiff responded that she had been told her shift was covered by another employee. (Doc. 80-8 at 1.) When Ketcham said that wasn't the case, Plaintiff complained about the lack of a plan to keep her safe from Hadley. She said nobody understood the stress she was under and that she was having anxiety attacks. She complained about Hadley's behavior, saying he “blows up all the time and treats me like crap, ” and said McClure had been scared to confront him. (Id. at 2.) Plaintiff said, “I just don't think [you] understand how many female managers are scared of him when he gets in his moods.” (Id.) Plaintiff had been “told I could move stores but I shouldn't have to.” (Id.)
Ketcham and/or Thomas Nichols, Defendant's owner, decided to transfer Plaintiff to the north McDonald's store. Nichols phoned Mark Young, the manager of Defendant's north McDonald's store, on Monday May 21 and told him Plaintiff was being transferred. (Doc. 80-17 at 3.) On the afternoon of Tuesday, May 22, Young texted Plaintiff. Plaintiff, who did not recognize the number, asked who it was. Young responded that, “It's mark, ” and said, “I have a Shift available tomorrow if you want it.” (Doc. 80-17 at 1.) Plaintiff did not respond. The next morning, May 23, Young texted Plaintiff, “We are assuming you don't wanna work here and quit.” (Id.) Plaintiff responded that she was a DM and asked if he had a DM position available and indicated that she needed a schedule so she could coordinate with her second job. Young responded that Nichols had “said no DM.” (Id. at 2.) After some back and forth, Young said he would add Plaintiff to the next schedule. Plaintiff said “ok” but indicated she was going to find out “why I am being demoted and no one even asked me if I wanted to go to [your] store.” (Id. at 2.) Young indicated he had some “random” shifts available that week. Plaintiff asked Young to send the schedule and said she would let him know after talking to Nichols. (Id. at 3.)
Young sent Plaintiff information on available shifts. Plaintiff indicated she could do parts of them that were not in the late afternoon or evening, noting that her schedule at the south store allowed her to work a second evening job. She volunteered to come in at 6 a.m. and work from 6 a.m.to 2 p.m., which would cover peak hours, but Young responded that “[a]ll we have are late afternoons and evening, ” adding that he already had four managers working days. (Doc. 80-17 at 5.) In response to Plaintiff's indication that she would like to talk to Nichols about it, Young said Nichols was “already aware of the situation and told me to give the hours I have.” (Id.)
On May 23, 2018, Plaintiff had a text exchange with Nichols. Plaintiff asked why she was being demoted, saying she had earned her spot as a DM. Nichols said “we don't have any spots open there [at the north store] on DMs.” (Doc. 80-13 at 1.) He said her pay would not change but she “[j]ust won't get a bonus check” because she was on probation. (Id.) Plaintiff responded that she had not been told anything about a demotion and would not have signed the paper acknowledging probation if she had, because she felt she was in the right leaving the store when Hadley was screaming at her and threatening her. Nichols said the probation paperwork didn't say anything about a DM spot because such spots were “at my discretion.” (Id. at 2.) When Plaintiff complained that taking away her bonus was taking away her pay, Nichols responded, “it's just that, a bonus” which “we can pay out or not at our discretion.” (Id.) Plaintiff asked why she was being moved instead of Hadley when she had been working at the south store for three years. Nichols said he had discussed it with both stores and that since she was more experienced, she was better suited to move to the north store, plus Ketcham had told him Plaintiff lived up north in Frontenac. Plaintiff responded that her boyfriend lived in Frontenac but she lived five blocks from the south store. Nichols replied, “well either way, it's all Mcds at the end of the day, no matter if it's North or South, ” and said she would do well at the north store. (Id.)
On Thursday morning May 24, Plaintiff texted Nichols complaining that Nichols had told her nothing would change, but Young said the north store did not have days available, and so “I am not sure what I am supposed to do” about her evening job. (Id. at 3.) Nichols said Young “has a meeting with you Friday to work out all that kind of stuff” about scheduling. (Id.)
Plaintiff then texted Young asking, “So we have a meeting tomorrow to discuss [hours]?” (Doc. 80-17 at 8.) Young replied yes although he had not yet set one up. (Id.) Plaintiff noted she was scheduled to be out of town on certain dates including June 6, when she had a lawyer's meeting set up in Kansas City. (Id.)
Kim Southern, the supervisor of the north store, texted Plaintiff and Nichols (in a group text) the morning of May 24. She pointed out that Young had sent Plaintiff a schedule of available shifts at the north store and said they had to work Plaintiff in where they could. Southern said they would try to work around Plaintiff's second job but could not guarantee hours. Southern said she and Young would like to sit down with her “to clarify our expectations for you as a new manager on his team, ” adding that Friday (the following day) was available, and “[w]e can set this meeting for 2 pm.” (Doc. 80-19 at 2.) Southern added that “[a]t this point, you need to decide and let us know if you want to work the available hours.” (Id.) Plaintiff indicated she thought it was unfair that she was demoted from DM to shift manager, was offered random shifts in place of a set schedule, and was being deprived of a bonus, despite Nichols' representation to her that “nothing would change” with the transfer. She indicated all of this made it extremely difficult to keep her second job, make house and car payments, and take care of her kids. Plaintiff said “it's all stressing me out, ” but said she would see Southern at 2:00 p.m. the next day. She added that “[i]f this is [your] guys way to make me quit it's absolutely horrible” and “I didn't do anything to be treated this way!” (Id.)
Plaintiff did not show up for the 2:00 meeting on May 25. Southern texted Plaintiff at 2:06 p.m. asking if she was running behind and, if so, to let her know. After receiving no response, Southern emailed another manager at 2:14 stating that Plaintiff did not show up for the 2:00 meeting and “I assume she's quit.” (Doc. 64-5 at 1.) Defendant did not thereafter attempt to contact Plaintiff or schedule hours for her.
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Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for an employer to discriminate against any individual with respect to her compensation, terms, conditions, or privileges of employment, because of such individual's sex. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citing 42 U.S.C. § 2000e-2(a)(1)). The phrase “terms, conditions, or privileges of employment” goes beyond economic discrimination; it evinces a congressional intent to address the entire spectrum of disparate treatment of men and women in employment, including conditions that require a person to work in a discriminatorily hostile or abusive environment. Id. (citations omitted.) “When the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,' ... that is ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated.” Id. This standard “takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury.” Id. Whether an environment is “hostile” or “abusive” can be determined only by looking at the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.
Outcome: Defendant's motion for summary judgment is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to Plaintiff's claims under the KAAD; such claims are DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies. Defendant's motion for summary judgment is DENIED as to all other claims. Plaintiff's motion for sanctions (Doc. 65) is DENIED WITHOUT PREJUDICE to reassertion at a later date.
IT IS ORDERED this 10th day of May, 202...