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Cunningham v. Globalsource, Inc.

United States District Court, W.D. Oklahoma

September 29, 2017




         The present case arises from Plaintiff Annee Cunningham's (Cunningham) employment as an administrative assistant with Defendant Globalsource, Inc., d/b/a Skilled Trade Services (STS), where she alleges she was subjected to a hostile work environment due to sexual harassment by her immediate supervisor, Defendant Howard Chase (Chase). Before the Court is STS's Motion for Summary Judgment [Doc. No. 42]. Cunningham has filed her response in opposition [Doc. No. 45] and STS replied [Doc. No. 48]. The matter is fully briefed and at issue.


         The following material facts are either uncontroverted, or deemed admitted, and are viewed in the light most favorable to Cunningham. Lounds v. Lincare, Inc., 812 F.3d 1208, 1220 (10th Cir. 2015). Immaterial facts, facts not properly supported by the record, and legal arguments or conclusions were not considered. See, e.g., Chavez v. County of Bernalillo, 3 F.Supp.3d 936, 949 n. 4 (D.N.M. 2014).

         STS is a skilled labor staffing company based out of Delafield, Wisconsin. At the time its Motion was filed, STS employed less than twenty permanent, in-house employees. STS had an Oklahoma City office from approximately December 2013 through approximately April 25, 2014. Chase was hired as an “at-will” employee in or around mid-December 2013.[1] Chase was employed as the Regional Vice President and fulfilled roles of both Branch Manager and Account Manager. Cunningham was hired as an at-will employee on around March 24, 2014 as a recruiter/administrative assistant to Chase.

         At the time of Cunningham's employment, STS had an Employee Handbook that outlined the company's policy against sexual harassment. It instructed employees to “immediately report the harassment to the immediate supervisor, the Controller or any Company officer.” See Employee Handbook at 4 [Doc. No. 42-7]. The handbook stated it was the employee's duty to report harassment in order to help create a safe workplace for all employees. Id. It also stated STS would “promptly and thoroughly investigate complaints and take all necessary and appropriate corrective action to prevent such conduct from occurring or reoccurring in the workplace.” Id. On or around December 18, 2013, Stephanie Gramling, STS's President and Chief Executive Officer, provided Chase with copies of STS's antidiscrimination and anti-harassment policies, including policies prohibiting sexual harassment and retaliation. Although the handbook stated “[employees] will be asked to sign and return a duplicate copy of the last page of the Handbook, confirming that [they] have read the Handbook, understood the content and have received a copy, ” Employee Handbook at 2, STS did not have a signed acknowledgement from Cunningham indicating receipt and/or review of the document. Although she did not have a copy of the handbook, Cunningham nonetheless believed she could bring any complaints of harassment to either Gramling or Maribel Rodriguez, who Cunningham thought worked in the human resources department.

         Cunningham and Chase were the only two employees at STS's Oklahoma City office throughout the duration of her employment. Approximately two weeks after her first day at work, Chase told Cunningham that he and his wife had not had sex in the past two years. After that incident, for over two weeks, Chase made comments about his wife to Cunningham every day.[2] After Chase made another comment about his sex life, Cunningham told him that it was not any of her concern and asked him to stop telling her such things, and Chase agreed to stop. Cunningham did not report Chase or make any complaint about his comments. However, Chase began to make comments about Cunningham's appearance, saying such things like “You look very gorgeous today, ” and “You're such a tight little thing.” Chase also asked Cunningham if she had a boyfriend. When she said that she did, Chase responded, “Well, he sure is a lucky guy to have a - a woman as beautiful as you.” These comments occurred over the course of two to three days. Cunningham did not report Chase or make a complaint about his comments.[3]

         On April 23, 2014, Cunningham alleges that after being called to his office, Chase tried to force himself upon her. She describes the incident as follows:

When I went around the corner into his office he was laying on the floor. He had his shirt off and his socks and shoes off, and he asked me to - I can't remember, either walk on his back or use my fist and push on his back around his shoulder blades. … As he's grabbing my left ankle, he's also coming - bringing his body up. And he turns and grabs my other one, and pulls me down. And I - when I went down, I went down stomach - like face first. And he flipped me over, and he was on his knees over me. And he was saying, “It's okay. We're going to have fun. It's okay.” And I said, “No. No, this is not okay. Get off of me.” And then he stopped saying anything. And his hand went up my shirt, and he started to pull my pants down. … He got my pants down just enough to where he could see - before I got up and ran. I don't - I don't know how I got up. I don't know if I kicked him, or if he let me up, I don't know. But I got up, and I grabbed my purse, … [a]nd I ran out of the building. He proceeded to chase me out of the building. … And as soon as I got in the car, I threw my stuff in the seat and I hit the lock button. Right as I hit the lock button he was trying to open my car door. He went to every single door and tried to open it.

         Cunningham filed a police report and later called Gramling to make a complaint of sexual harassment. Cunningham told Gramling that Chase had sexually assaulted her, chased her out of the building, and had been arrested. Pursuant to advice from the police, Cunningham did not provide any additional details to Gramling about the incident. This was the first time Cunningham reported to Gramling or anyone else at STS that Chase had harassed her.

         Although she expressed hesitation about returning to the office, Cunningham expressed her desire to keep her job. In response, Gramling said, “I don't know what to do about that, so you might as well just settle for unemployment.” Cunningham then asked, “So that means you're letting me go?” to which Gramling said “Basically. File for unemployment.” Following the advice of counsel, Chase refused to answer Gramling's questions regarding the incident.[4] STS permanently closed the Oklahoma City office by April 30, 2014. It stated the office was being closed because it was not financially sustainable.

         Cunningham sued STS and Chase in Oklahoma County District Court for gender discrimination, sexual harassment, hostile work environment, and retaliation.[5] STS timely removed the action to this Court. STS contends it is entitled to summary judgment on Cunningham's claims for three reasons: (1) under the undisputed facts, Cunningham cannot establish a prima facie case for hostile work environment against STS; (2) under the undisputed facts, Cunningham cannot establish a prima facie case for retaliation; and (3) under the undisputed facts, Cunningham cannot establish gender discrimination.


         Rule 56(a), Federal Rules of Civil Procedure, provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The Court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter asserted, but to determine whether there is a genuine issue for trial. Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014). An issue is “genuine” if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). An issue of fact is “material” if under the substantive law it is essential to the proper disposition of the claim. Id.

         Once the moving party has met its burden, the burden shifts to the nonmoving party to present sufficient evidence in specific, factual form to establish a genuine factual dispute. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest upon the mere allegations or denials of its pleadings. Rather, it must go beyond the pleadings and establish, through admissible evidence, that there is a genuine issue of material fact that must be resolved by the trier of fact. Salehpoor v. Shahinpoor, 358 F.3d 782, ...

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