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Lovelace v. Levy Oklahoma Inc.

United States District Court, W.D. Oklahoma

April 19, 2019

ERIC W. LOVELACE, Plaintiff,



         Before the Court is Defendant's Motion for Summary Judgment [Doc. No. 38], filed pursuant to Fed.R.Civ.P. 56. Defendant Levy Oklahoma, Inc. seeks a judgment in its favor on all claims asserted in the Amended Complaint: hostile work environment and retaliation under Title VII of the Civil Rights Act of 1964 as amended (“Title VII”), 42 U.S.C. § 2000e et seq.; parallel claims under the Oklahoma Anti-Discrimination Act, Okla. Stat. tit. 25, § 1301 et seq.; and intentional infliction of emotional distress. The Motion is fully briefed and ripe for decision.[1]

         Standard of Decision

         Summary judgment is proper “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.” Fed.R.Civ.P. 56(a). A material fact is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for either party. Id. at 255. All facts and reasonable inferences must be viewed in the light most favorable to the nonmoving party. Id. If a party who would bear the burden of proof at trial lacks sufficient evidence on an essential element of a claim, all other factual issues concerning the claim become immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         The movant bears the initial burden of demonstrating the absence of a dispute of material fact warranting summary judgment. Celotex, 477 U.S. at 322-23. If the movant carries this burden, the nonmovant must go beyond the pleadings and “set forth specific facts” that would be admissible in evidence and that show a genuine issue for trial. See Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 324; Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). “To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at 671; see Fed. R. Civ. P. 56(c)(1)(A). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3). The Court's inquiry is whether the facts and evidence identified by the parties present “a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” See Anderson, 477 U.S. at 251-52.

         Statement of Undisputed Facts [2]

         Defendant holds a contract to provide food and beverage services at the Chesapeake Energy Arena in Oklahoma City, Oklahoma. The arena provides the home court for the Oklahoma City Thunder, which is a member of the National Basketball Association (NBA). Plaintiff began working for Defendant in October 2015 as a part-time cook, and he still holds that position. Plaintiff's common-law wife, Charity Scarlett, was also hired by Defendant in October 2015 to work in the sanitation department. During the relevant time period, one of Plaintiff's supervisors was Katie Aberson, who was assistant director of operations. The director of operations was Joseph Guthrie, whose responsibilities included investigating employee complaints with assistance from the human resources (HR) department.

         Plaintiff was first assigned in October 2015 as a line cook in the 216 food stand, which sold items such as hot dogs, corn dogs, and French fries. After the NBA season concluded in May 2016, Plaintiff continued as a line cook but was reassigned to the Gastropub, which sold “strip steaks” and “higher grade food.” Lovelace Dep. 23:2-24:17, 25:1-6. In October 2017, Plaintiff was again reassigned as a line cook at the Saucy Chicken, which sold items such as chicken strips, popcorn chicken, and chicken salad. All three restaurants are on the club level of the arena, and Plaintiff's hourly rate of pay did not depend on where he worked. On May 28, 2016, his wage rate increased from $10.00 per hour to $10.25 per hour, and on October 1, 2017, it increased to $10.50 per hour. This increase happened to coincide with his reassignment from Gastropub to Saucy Chicken.

         On about March 6, 2016, according to Plaintiff, Ms. Aberson asked him during a work shift while she was wearing a tight skirt whether he thought her butt looked jiggly. Plaintiff also says he overheard Ms. Aberson make a double entendre comment to his wife about knowing “how to handle that wiener, because [Ms. Scarlett] had a foot-long hot dog in her hand.” See Lovelace Dep. 43:23-44:8. Plaintiff reported the “jiggly butt” comment to Mr. Guthrie, and provided a written statement on March 14, 2016. Plaintiff did not report the “hot dog” comment, but Ms. Scarlett included it in a complaint she made about Ms. Aberson's conduct. Ms. Scarlett also reported that she overheard Ms. Aberson say to a co-worker about Plaintiff that he was “hot, ” but Plaintiff did not hear this comment.

         Mr. Guthrie investigated Plaintiff's complaint and learned that a few days prior to Ms. Aberson's alleged “jiggly butt” comment, Ms. Scarlett had made an unsolicited remark to Ms. Aberson that her pants were tight and she was “jiggling.” See Scarlett Dep. 24:9-15. Ms. Aberson admits Ms. Scarlett made this remark, but denies asking Plaintiff a few days later whether her butt was jiggly. As a result of the investigation, Mr. Guthrie verbally counseled Ms. Aberson to maintain a professional demeanor in the workplace, although he was not convinced the allegations against her were true. Plaintiff was not subjected to any further harassment from Ms. Aberson.[3] Plaintiff was never physically touched by Ms. Aberson or any other employee of Defendant in the workplace.

         Dissatisfied with Mr. Guthrie's handling of the matter, Plaintiff filed an EEOC charge of discrimination in September 2016, alleging that he was subjected to verbal sexual harassment by Ms. Aberson and he was retaliated against after he complained. Plaintiff alleged, and has testified in this case, that after he complained of sexual harassment by Ms. Aberson, he was accused by supervisors of stealing food and was alienated by managers. No. disciplinary action was taken. Ms. Aberson has testified that Plaintiff was neither accused of stealing food nor treated differently than other employees after he complained of harassment.

         Plaintiff also alleged in his EEOC complaint, and argues in this case, that another retaliatory act was Defendant's termination of Ms. Scarlett's employment in July 2016. It is unclear why Plaintiff believes the termination was directed at him, but he lacks any evidence that the termination was retaliatory.[4] Thus, this unsubstantiated allegation is disregarded.

         Plaintiff also alleges in this case that his work hours were reduced in retaliation for his complaints. As support, Plaintiff presents evidence that his gross pay for 2016 was $3, 548.42, but dropped to $2, 376.74 for 2017. Plaintiff has testified in his deposition that his work hours decreased after he was transferred from the Gastropub to the Saucy Chicken in October 2017 for the 2017-18 NBA season. This decrease is reflected in the 2017 wage statement. Plaintiff believes the reduction in his work hours was retaliatory, but was simply delayed by understaffing in 2016.

         Throughout Plaintiff's employment by Defendant, he has worked a separate, fulltime day job for the City of Spencer.[5] As a result, Plaintiff's work schedule has differed from other employees of Defendant in that his shift generally starts at 6:00 p.m. (or later on certain days), but most employees are scheduled to arrive at the arena around 4:00 p.m. on game days. Ms. Aberson has testified by affidavit that Plaintiff was transferred to the Saucy Chicken to better accommodate his unique schedule because less preparation time was involved in making the food items sold there. Plaintiff agrees that the Saucy Chicken requires less preparation and cleaning time than Gastropub (and thus results in shorter work shifts), but he denies that his outside work schedule was the real reason for his transfer. Also, Plaintiff views working at the Saucy Chicken as less desirable than Gastropub. He admits, however, that a person working at Gastropub was not more likely to receive a promotion than an employee working at any other restaurant or food stand in the arena, and that his job position and hourly rate of pay were not affected.

         Plaintiff has testified that after he was transferred to the Saucy Chicken, the City of Spencer changed his job duties to the position of meter reader in February 2018, making it harder to get to work shifts at the arena and harder to work weekends. See Lovelace Dep. 29:23-30:25. Plaintiff has testified that there were a total of about three times throughout his employment when he missed work for Defendant due to a conflict with his municipal job. Also, although his work conflicts did not increase after he became a meter reader, his availability for weekend work assignments decreased. Id. 106:16-107:10. Plaintiff did not complain of any reduction in his work hours.


         A. Hostile Work Environment

         A hostile work environment that violates Title VII is one involving harassment based on a prohibited factor, such as gender, that is “sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). “Severity and pervasiveness are evaluated according to the totality of circumstances, Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), considering such factors as 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.” Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir. 2005). “[T]he environment must be both subjectively and objectively hostile or abusive.” MacKenzie v. City of Denver, 414 F.3d 1266, 1280 (10th Cir. 2005). The fact-finder must “judge the objective severity of the harassment from ...

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