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Meyer v. McBurney

United States District Court, E.D. Kentucky, Central Division, Lexington

June 4, 2014

SARA ELIZABETH MEYER, Plaintiff,
v.
ROBERT McBURNEY, et al., Defendants.

OPINION AND ORDER

KAREN K. CALDWELL, Chief District Judge.

This matter is before the Court on the motions of Defendants Toyota Motor Manufacturing Kentucky, Inc. ("TMMK") and Kelly Services, Inc. ("Kelly") for summary judgment.[1] For the reasons discussed below, the motions will be granted.

I. BACKGROUND

Plaintiff Sara Meyer ("Meyer") alleged quid pro quo (Count I) and hostile work environment (Count II) against TMMK under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. The same allegations against TMMK were raised under the Kentucky Civil Rights Act ("KCRA"), K.R.S. § 344.040 (Counts III and IV). Meyer also alleged retaliation or conspiracy to retaliate against TMMK and Kelly under Title VII (Count V) and under the KCRA (Count VI). In response to the motions for summary judgment, Meyer agreed that all federal claims and the state-law retaliation claims against TMMK should be dismissed. DE 37 at 1. The only claims remaining against Kelly are federal and state retaliation claims. The only claims remaining against TMMK are state-law claims of quid pro quo and hostile work environment. Id.

Meyer was hired by Kelly on July 29, 2009 and placed in a production position at TMMK as part of the TMMK variable work force [temporary workers]. Meyer Dep. at 23. Kelly has an anti-harassment policy which requires an employee who believes he or she is being subjected to sexual harassment or to offensive conduct of a sexual nature to notify his or her on-site manager immediately. Meyer acknowledged this was the policy. Meyer Dep. 18-20. Kelly maintains on-site supervisors for the variable work force at TMMK to handle their leave, time off, attendance, performance and to conduct investigations. Scott Thompson Dep. at 8-9. Meyer was familiar with Kelly's on-site management personnel. Meyer Dep. at 22. Scott Thompson was Meyer's on-site supervisor in March 2011. Thompson Dep. at 8-9. Thompson's supervisor was Crystal Stewart, who was the person at Kelly authorized to take personnel action in favor of or against Meyer. Stewart Dep. at 40-42.

TMMK has "team leaders" and "group leaders" for its workforce. Team leaders "assist team members with training, daily scheduling and provide coaching on the proper way to perform the various work processes. Team leaders do not assign work or evaluate team members and are not consulted with respect to team member disciplinary issues." DE 35-3 ¶ 6, Affidavit of Cathy Decker. "Group Leaders have authority to assign work, evaluate the team members under their supervision, and are consulted with respect to discipline to be issued to team members they supervise." Id. at ¶ 5. TMMK had an Anti-Harassment Policy which strictly prohibited sexual harassment including:

[U]nwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature where (1) submission to such conduct is made a term or condition of employment; (2) an employment decision (such as promotion or job assignment) is based on acceptance or rejection of such conduct; or (3) such conduct interferes with a team member's work performance or creates an intimidating, hostile or offensive work environment.

DE35-2 at 63; D 557. "Any team member who feels that he/she has been subjected to conduct in violation of this policy or who is aware of any violation, should immediately report it to: Human Resources; Group Leader/Supervisor; Any other member of management; or Call the Ethics and Compliance Helpline...." Id. at 66; D559

Meyer began working at TMMK in the rocker panel area of the plastics department. She was transferred January 11, 2010 to plastics bumper injection and on November 1, 2010 to the plastics bumper three assembly. Meyer Dep. 23-26. On February 7, 2011, Robert McBurney joined Meyer's group as a team leader in plastics bumper three assembly. Id. at 41. On April 4, 2011, Meyer was transferred to the paint two finish department where she remained until her suspension on September 16, 2011 and her termination three days later. Meyer Dep. 25-26.

On March 21, 2011, Meyer went to Errika Bowman, one of Kelly's on-site managers, and complained about issues with various co-workers, including sexual harassment issues with McBurney. Meyer Dep. at 43-45. One of Meyer's complaints was that Randall Steele, a team leader in another department, friended her on Facebook afterward, began showing her maternity photos from Facebook to co-workers. Id. at 53-56. She never actually saw him do this. Rather, she just heard he was. Id. at 60-61. She never confronted Steele about this. Id. at 61-62. She un-friended him and shut down her Facebook page. Id. at 58, 78.

A second complaint was that Rick Saylor, another co-worker, called Meyer a "porn star" on Valentine's Day of 2011. She claims this happened because her hair was in pigtails. That same day, Elizabeth Buffy Bush called her a "whore" because of the pigtails. Meyer did not report any of these incidents to her group leader. Id. at 63-66.

Meyer's primary claim against TMMK is based on alleged sexual comments allegedly made by Robert McBurney, a team leader with TMMK, between January and March 2011. DE 37 at 3; Meyer Dep. 84-85, 174. Meyer and McBurney were just work friends from February 2010 until January 2011. Id. at 89. Meyer alleges that after January 2011, McBurney made several remarks about her personal appearance. DE 1-1, ¶ 19. He told her he stayed at a hotel in the winter and suggested she come to see him. Meyer Dep. 93-95. He also commented on how her "butt looked in jeans." Id. at 95. She did not report this to anyone or tell her husband, who was also a team leader at TMMK. Id. at 96. The first time Meyer complained about McBurney and sexual harassment was March 21, 2011. Id. at 46.

Meyer relies most heavily on a conversation with McBurney that she recorded while in his car. DE 37 at 5. The date was March 9 or 10, 2011. Meyer Dep. at 174-175. While McBurney said he found Meyer attractive, the bottom line of the conversation was that he wanted Meyer to quit texting him on his cell phone on weekends, and he said they were both married and would remain "work acquaintances" and nothing more. Meyer testified as follows regarding that recorded conversation:

Q. During the conversation... it sounds to me like on two occasions he told you to stop sending him the texts to his cell phone?
A. Correct.
* * *
Q. And do you recall at one point saying, you know, he asked you to, quote, unquote, back off on sending the texts?
A. Correct.
Q. And you got the impression from what he was telling you that he wanted you to stop sending the texts?
A. Correct.
Q. I think also in the conversation he mentions that at least he recognizes that you and [he] were married to other people. Right?
A. Correct.
* * *
Q. And I believe he recognized that you were happily married in your marriage?
A. Correct.
Q. And I believe if I'm listening to it correctly he's sharing with you that he's working on ...

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