Plaintiff Tiffany Reneae Norris sued defendant Frito-Lay, Inc. in the United States District Court for the District of Kansas raising claims of sexual harassment/hostile work environment and retaliation under Title VII and the Kansas Act Against Discrimination. Before the court is Defendant Frito-Lay’s motion for summary judgment.
Statement of Undisputed Facts
Defendant operates a facility in Topeka, Kansas where plaintiff worked as a temporary employee through CorTech staffing agency from November 2021 to January 2022, and then as a regular employee from January 25, 2022. Plaintiff had previously worked as an exotic dancer at three different clubs, including one named Baby Dolls. As both a temporary and regular employee, plaintiff worked in the GES Department as a picker loader, loading and unloading boxes from trucks.
In March 2022, another female employee, Loriann Funk, reported to a supply chain leader that coworker Andre Jones showed her a picture of his penis during a smoke break and told her “I just wanna make sure it’s good enough.” Human Resources suspended Jones pending investigation, and HR Associate Manager Nathan Muniz determined it was a “he said, she said” situation but stated Jones would undergo coaching when he returned from suspension. On March 12, 2022, defendant issued Jones a Documented Discussion stating that future policy violations would result in disciplinary action up to termination. The record does not reflect that Jones actually received coaching upon his return to work.
On May 22, 2022, defendant assigned plaintiff and Jones to unload a trailer together. During their work, Jones asked plaintiff personal questions including whether she was married, had children, where she was from, and where she had previously worked. When plaintiff responded that she had worked at Baby Dolls, Jones deduced she had been a dancer and asked her inappropriate sexual questions including where was the craziest place she had ever had sex, her favorite sex position, whether she was bisexual, and whether she gave private dances or worked parties. Plaintiff felt uncomfortable and scared, trying to steer the conversation to non-sexual topics.
Near the end of the workday, while loading boxes onto a skid that required them to be on opposite sides of the trailer, Jones walked to plaintiff’s side and placed his hand on her mid-thigh, moving it all the way up to her backside. Plaintiff immediately dropped her tool and left the trailer, going to coworker Eric Soto to ask him to give Jones a ride home instead of her. Plaintiff could not find any supervisors or HR employees at the end of her shift to report the incident, and she took a sick day the following day.
On May 24, 2022, plaintiff reported the trailer incident to her resource officer Isamar Alhakeem, who instructed her to report it to HR. Plaintiff went directly to the HR office and reported the incident to HR employees Muniz and Heather Young, who did not take notes or ask questions but told plaintiff they would investigate. Defendant had scheduled plaintiff to work with Jones that day, so plaintiff asked her leads to be reassigned, to which they responded “Is it really that big of a deal?” A coworker ultimately agreed to switch positions so plaintiff did not have to work with Jones.
Defendant suspended Jones for five days based on plaintiff’s complaint pending HR investigation. Muniz investigated by reviewing available surveillance footage and interviewing Jones and other employees in the vicinity, though surveillance cameras were not present inside the trailers. Jones denied touching plaintiff. On June 7, 2022, Muniz notified plaintiff that he was unable to substantiate her claim and HR was closing the matter.
Before Jones returned from suspension, Muniz informed plaintiff that Jones would be returning and asked if she was okay. Plaintiff responded “No, I’m not okay. You continue to keep me in a hazardous work environment.” During that conversation, plaintiff asked to be placed on another shift or moved to another area, but Muniz explained that other positions were bid-based under the Collective Bargaining Agreement and he could not move her outside that process.
Once Jones returned to work, plaintiff did not work with him again but saw him in the hallway where he looked at her, smiled and laughed. After seeing him in the hallway, plaintiff took a few days off work using her accrued points because she felt uncomfortable and was having difficulty with everything that had happened. While plaintiff was off work, Muniz called plaintiff’s home and spoke to her husband, asking if plaintiff was coming back to work. On June 17, 2022, plaintiff called Muniz asking to be moved to work in a different department from Jones. Muniz told her that to transfer, she would have to be the successful bidder under the union contract. Plaintiff then resigned, and Muniz told her he would be “more than happy” to accept her resignation. Plaintiff’s last day of work was June 11, 2022.
Legal Analysis
Sexual Harassment/Hostile Work Environment Claims
Defendant argued that plaintiff could not establish severe or pervasive harassment and that defendant was not liable because it did not know of the harassment until plaintiff reported it, after which defendant promptly took corrective action. The court analyzed plaintiff’s claims under both pre-Muldrow and post-Muldrow standards, given that the Tenth Circuit has not yet analyzed the scope of Muldrow’s impact on hostile work environment claims.
Severe or Pervasive Harassment: The court found that while plaintiff could not establish pervasive harassment based on isolated incidents over her four-month employment, a reasonable jury could find that she suffered severe harassment. The court determined that Jones’s inappropriate sexual questioning combined with his physical touching of plaintiff’s mid-thigh and backside created particularly threatening and humiliating circumstances sufficient to constitute severe harassment.
Muldrow Standard Application: Under Muldrow’s requirement that plaintiff show only “some harm” or “some disadvantageous change” to a term or condition of employment, the court found plaintiff had demonstrated a genuine issue of material fact. The court noted that plaintiff presented evidence that Jones’s harassment impacted her job schedule and performance, caused her to avoid one-on-one contact with a fellow employee, and made her feel scared and uncomfortable in her workplace.
Employer Liability: The court found genuine issues of material fact on both whether defendant had actual knowledge of Jones’s propensity for harassment and whether defendant took appropriate remedial action. Regarding actual knowledge, the court determined that Funk’s March 2022 report about Jones showing her a picture of his penis, occurring just two months before the trailer incident, created a genuine issue whether defendant had notice of Jones’s pattern of unwelcome sexual conduct. On remedial action, the court found that defendant’s response to both incidents was identical suspension without evidence of coaching or progressive discipline, and defendant made no effort to separate the employees despite having previously moved plaintiff to different work areas.
Retaliation Claims
Defendant argued that plaintiff could not establish adverse employment action causally connected to her sexual harassment complaint. The court found genuine issues of material fact on both elements of plaintiff’s retaliation claim.
Adverse Employment Action: The court determined that defendant’s conduct would dissuade a reasonable employee from making discrimination charges, noting that when plaintiff asked to be reassigned away from Jones, her supervisors initially refused and asked “Is it really that big of a deal?”, Muniz repeatedly refused to move plaintiff despite having previously done so outside the collective bargaining process, and defendant’s failure to act required plaintiff to work with a serial harasser, exacerbating the hostile work environment.
Causation: The court found temporal proximity supported an inference of retaliatory motive, as the relevant events spanned less than four weeks from plaintiff’s May 24 report to her June 17 resignation, well within the three-month period that justifies an inference of causation.
Constructive Discharge
Defendant argued that plaintiff could not prove her working conditions were so intolerable that she had no choice but to quit. The court applied an objective totality of circumstances standard and found that a reasonable jury could conclude working conditions were so intolerable that plaintiff had no choice but to resign. The court emphasized that plaintiff repeatedly asked to be moved to no avail, defendant refused to take action to separate her from Jones despite having previously moved her to different areas, and while Jones made no further advances, defendant provided ample opportunity for interaction and refused to take prompt and effective remedial action.
The court overruled defendant’s motion for summary judgment on all claims, finding that genuine issues of material fact remained for jury determination on plaintiff’s sexual harassment/hostile work environment, retaliation, and constructive discharge claims under both Title VII and the Kansas Act Against Discrimination.
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