United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE
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.
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).
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. 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.
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
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
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
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.
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.
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. STS permanently closed the
Oklahoma City office by April 30, 2014. It stated the office
was being closed because it was not financially sustainable.
sued STS and Chase in Oklahoma County District Court for
gender discrimination, sexual harassment, hostile work
environment, and retaliation. 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.
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.
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, ...