United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
DAVID L. BUNNING, District Judge.
This matter is before the Court upon Plaintiff Melinda Grizzell's Motion for Partial Summary Judgment (Doc. # 25) and a Motion for Summary Judgment (Doc. # 26) filed by Defendants City of Alexandria, Alexandria Police Department, Mayor William Rachford and Chief Michael Ward (collectively, "the Alexandria Defendants"). Both Motions focus on whether Grizzell has established a prima facie case of the following claims: (1) Title VII hostile work environment; (2) Title VII retaliation; (3) disability discrimination; (4) defamation; and (5) intentional infliction of emotional distress. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1367.
II. Factual and Procedural Background
The Alexandria Police Department ("APD") hired Grizzell as a police clerk in 1997. (Doc. # 31 at 28, 34-35). Her duties included distributing mail, answering phone calls, assisting visitors, filing documents, typing police reports and making arrest jackets. ( Id. at 36). Although APD hired her to work part-time, she became a full-time employee within a year. ( Id. at 30, 34).
In 1998, Gary Farmer became the APD Chief. ( Id. at 34-35). He often directed sexual comments at Grizzell, compared her physical appearance to that of women on television and purposely tried to upset her. ( Id. at 146-48). Lieutenant Dan Wittrock and Officer Mike Welch engaged in similar antics and passed gas in Grizzell's face. ( Id. ).
Grizzell filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") in 2000. ( Id. at 148-49). After filing the Charge, Grizzell received a phone call from an unidentified woman, who stated "Mike is going to hurt you, " and hung up. ( Id. at 201-02). Grizzell thought she recognized the voice as that of Officer Welch's wife. ( Id. ). The EEOC ultimately found that "there is reasonable cause to believe that Respondent [APD] has violated Title VII by subjecting the Charging Party [Grizzell] to sexual harassment, discipline, and different terms and conditions of employment because of her sex." (Doc. # 33-1 at 7). Although Chief Farmer left APD shortly thereafter, some of the other alleged harassers continued to work there. (Doc. # 31 at 148).
Michael Ward became the APD Chief in 2001. (Doc. # 33 at 17). Lieutenant Colonel Joe Alexander became Assistant Chief. (Doc. # 31 at 46). Early in his tenure, Chief Ward hired Mary Morscher and Lisa Childers as part-time police clerks. ( Id. at 36-39). Grizzell became their supervisor. ( Id. ). Although Ltc. Alexander was Grizzell's immediate supervisor, she worked directly with Chief Ward far more regularly. ( Id. at 46). Grizzell and Chief Ward enjoyed a positive working relationship for almost ten years. (Docs. # 31 at 44-45; 33 at 30-33). Professional disagreements occasionally developed between the two, but they were always able to resolve their differences. ( Id. ).
On several occasions, Grizzell felt uncomfortable as the only female supervisor in APD. (Doc. # 31 at 86-88). Her male counterparts allegedly told her to "hold her ears" before supervisor meetings, then proceeded to make inappropriate comments. ( Id. ). For example, Grizzell testified that Chief Ward and Lieutenant George Schreiner once had a detailed conversation about feminine hygiene products, which made her uncomfortable enough that she asked them to stop. ( Id. at 80). Chief Ward denied that such a conversation took place. (Doc. # 33 at 58).
According to Grizzell, Chief Ward commented on a monthly basis that men were better than women because they would take things behind the woodshed, while women just wanted to talk things out. (Doc. # 31 at 72-76). Sometimes he made this observation at the supervisor meetings, where Grizzell was the only female present. ( Id. ). Although she often "cringed" at these comments, she did not complain about them because they "did not cause measurable harm." ( Id. ). Instead, she tried to work around them. ( Id. ). Chief Ward insisted that his statement was taken out of context and that he was simply seeking parental advice from Morscher and Childers about how to cope with his daughters' frequent bickering. (Doc. # 33 at 51-54).
Grizzell also alleged that Chief Ward told the female clerks about getting a "woody" when he saw a boat full of topless women. ( Id. at 92-93). Chief Ward admitted that he told a story about seeing topless women in Europe, but denied describing his physical reaction to the sight. (Doc. # 33 at 56-58). He explained that it was part of a conversation he had with Morscher about the culture shock that comes with overseas military service. ( Id. ). Morscher testified that she did not find the story to be inappropriate in context, adding that "[i]t was a conversation we were having about being in the military, and my son was in the military, and you know, we're 50 years old and we talk as friends." (Doc. # 32 at 10-11).
Grizzell then testified that Chief Ward once told her and Childers about the sexual appetites of his former co-worker, who only allowed his wife three days off from sex during menstruation. (Doc. # 31 at 91). When asked about this conversation, Chief Ward explained that Childers had also worked with the man in question, and they were simply recalling the time that he voluntarily shared such intimate details. (Doc. # 33 at 59).
Tensions between Grizzell and Chief Ward mounted in late 2012. Grizzell began working on the City's new community event called Christmas in Alexandria ("CIA"), which she characterized as "a joyful stress." (Docs. # 30 at 86-87; 31 at 43, 142-43; 33 at 201). Her mother also testified that Grizzell "enjoyed the project thoroughly." (Doc. # 34 at 8). However, Chief Ward and Mayor Rachford remember her being very stressed about the event, to the point of preparing a resignation letter. (Doc. # 33 at 200-01). Mayor Rachford "knew she was under a lot of stress, " but he "essentially talked her out of resigning." (Doc. # 30 at 126-27).
Meanwhile, Chief Ward considered possible improvements to APD's software scheme. (Doc. # 33 at 114-15). On December 4, 2012, Chief Ward, Ltc. Alexander, Lt. Schreiner and a patrol officer met with the Kentucky Data Interoperability ("KDI") system software developers. (Docs. # 31 at 48-50; 33 at 114, 117-18). Chief Ward invited Grizzell to this meeting because she managed the office records well and had once worked on a program called e-CallResponse. ( Id. at 120).
When Chief Ward began describing his vision for the software update, Grizzell suggested that they model the software after a system used by her former corporate employer. (Docs. # 31 at 52; 33 at 121-22). According to Grizzell, Chief Ward became combative in front of their guests, telling her that he did not want police officers to become "data entry people" and blaming her for deficiencies in the e-CallResponse program. (Doc. # 31 at 53-55). She testified that she was "met with hostility the whole time, and [ ] couldn't understand it" because she was only trying to offer suggestions, as Chief Ward had instructed. ( Id. ). Chief Ward asked Ltc. Alexander if he was not being clear, but when Ltc. Alexander tried to respond, Grizzell commented that he would say whatever Chief Ward wanted to hear. ( Id. at 60). She left the room in tears and did not return to the meeting. ( Id. at 54, 57-58).
However, Chief Ward testified that Grizzell interrupted him as soon as he began speaking. (Doc. # 33 at 100, 122). He felt that her behavior "elevated to the point of almost conduct unbecoming [because s]he was arguing with the chief of the organization that she didn't agree with the direction that I was going and she was arguing that in front of everybody." ( Id. ). When Chief Ward asked Ltc. Alexander if he was being unclear, Grizzell "verbally attacked him." ( Id. at 123).
Grizzell and Chief Ward discussed the incident the next day. (Doc. # 31 at 70; 33 at 193). When he asked her what had happened at the meetings, she first explained that she felt disrespected. ( Id. at 71). Grizzell then confronted him about his inappropriate comments, explaining in her deposition that the December 4th meeting was "the straw that broke the camel's back" and she had "the perfect opportunity to tell him that this type of behavior needs to stop." ( Id. ). Their heated discussion lasted "maybe an hour or less." ( Id. ). Grizzell testified that they calmed down, then spent another hour discussing the proposed KDI improvements, as well as possible gender difference communications/organizational effectiveness training. ( Id. ). Grizzell was "exhausted" when she left Chief Ward's office, but felt like they would be able to put this disagreement behind them. ( Id. ).
According to Chief Ward, Grizzell began yelling at him after he asked her what had happened at the meeting. (Doc. # 33 at 97-98). He estimated that he spent the first hour and a half of the meeting "letting her vent" because he could not get a sentence in without her interrupting and other employees in the office were able to hear her. ( Id. ). He described her behavior as akin to that of a victim, in that "she was very upset and he could not get information from her because she was rambling." ( Id. at 136). For example, Grizzell allegedly accused him of treating her the same way the City had during the previous EEOC Charge, which pre-dated Chief Ward's tenure with the City. ( Id. at 99).
Chief Ward felt that Grizzell's behavior was "out of character for her." ( Id. at 102). He suspected that stress over CIA caused this outburst, but wanted to find out for sure what was going on. ( Id. at 102, 130). Chief Ward drafted a Record of Counseling ("ROC"), in which he referred her to counseling through the Employee Assistance Program ("EAP"):
9. SUMMARY OF COUNSELING:
On Tuesday, December 4th during a meeting an exchange between Melinda and myself occurred. Although this exchange appeared to be a simple disagreement on work related issues, Melinda left the room shortly afterwards and did not return to the meeting.
On Wednesday, December 5th I asked Melinda to come into my office to discuss our exchange and difference of opinion from the previous day. I had hoped that a 24 hour cooling off period was in order prior to meeting with her. Melinda expressed deep concern over the fact that I (Chief) disrespected her in front of the other officers and civilians who were present. She stated I purposely accused her of being the cause of a complicated program report called e-CallResponse and continued to not listen to her. During our conversation that lasted more than 2 hours, Melinda expressed "victim" type feelings with respect to the way other officers treat her and went back years ago citing incidents that I (Chief) have no knowledge of.
10. RECOMMENDATIONS AND ADVICE OF COUNSELOR:
My inquiries of other officers present confirmed my impression of the exchange on December 4th to have been nothing more than a difference of opinion and I in no way accused Melinda of anything.
Melinda has been under extreme stress these past months working on Christmas in Alexandria and I have witnessed other such outbursts with members of our business community on the phone with her. It is my opinion that Melinda needs to seek help through our Employee Assistance Program (EAP) for stress management.
I have no reason to believe Melinda would lie to me or otherwise make up a story. Thus, the drastic difference in perceptions between what she believes happened and what others and I perceived, is why EAP is a good option.
(Docs. # 31 at 139-40; 31-1 at 29).
In the "Command Officer's Comments" section, Chief Ward incorporated the following language from APD's policy manual:
Under the Policy & Procedures of the Police Department, Chapter 12, page 12-10 "Referral to Employee Assistance Program" I am making a Supervisory Referral to EAP. I am concerned about Melinda and as not to cause her any loss of work time or out of pocket expense, she is authorized to attend any and all sessions as required by the counselor on work time and all co-pays will be covered by the Police Department.
Although Melinda has the right to choose not to seek counseling, failure to comply with this request may indicate she is unwilling to see available avenues to improve her job-related performance, further disciplinary action may result.
All information discussed with the EAP counselor shall be confidential as required by law. This agency shall not receive or attempt to receive confidential information from EAP. However, the department's appropriate supervisor may confirm the member's attendance as appropriate.
(Doc. # 33 at 144-45).
Chief Ward "wanted to make sure that, in making the referral to EAP, that I was lockstep with the way the - we should do it, " so he consulted city clerk and de facto human resources manager Karen Barto ("Barto"). ( Id. at 140). On December 7, 2012, Chief Ward invited Grizzell and Barto into his office, then presented her with the ROC. (Doc. # 33 at 144-45). Chief Ward testified that he told Grizzell the ROC would not remain in her file once she completed EAP. ( Id. at 155-56). He left Barto with Grizzell when she allegedly began "screaming and yelling at me" and "accus[ing] me of things that I had no idea what she was talking about." ( Id. ). Grizzell then signed the ROC to indicate that she had received it, but noted that she was too upset to read it. (Doc. # 31-1 at 30). Per Chief Ward's instructions, Barto authorized Grizzell to go home early. ( Id. at 155).
While ROCs are sometimes issued for positive reasons, Grizzell believed it was a punitive measure because ROCs are listed under "Disciplinary Measures" in the APD policy manual. (Doc. # 31 at 113, 117). She felt that she was being singled out as a problem employee because the ROC "is leading to something else. It's not the end of it. They could keep it and hold it against you." ( Id. ). According to Grizzell, Chief Ward threatened to further investigate and reprimand her for non-compliance with EAP. ( Id. at 120). She further explained that Chief Ward can "use this as retaliation, and he knows he has the authority to do this. And he made the remark he's taking steps to cover himself... So th[ese are] the steps he's taking to get me fired." ( Id. at 117).
That afternoon, Grizzell prepared to file a grievance. ( Id. at 130-31). Based upon her review of City and APD policies, she concluded that she had to complain to Mayor Rachford or the City Administrator. ( Id. ). Because the City had no City Administrator, Grizzell delivered her Notice of Grievance directly to Mayor Rachford. (Doc. # 30 at 130). She described Chief Ward's inappropriate comments, disrespectful attitude at the December 4th meeting and referral to EAP. (Doc. # 30 at 116, 119, 124-25). Mayor Rachford testified that Chief Ward had told him about these events at a council meeting the previous evening, so he asked Chief Ward to join them upstairs and discuss the conflict further. (Doc. # 30 at 123). Chief Ward declined the invitation. (Doc. # 33 at 156). During their meeting, Mayor Rachford suggested that Grizzell consult her doctor about the effect of recent medication changes on her mood. ( Id. ). She seemed receptive to the idea and indicated that she would attend counseling if Chief Ward agreed to do so as well. ( Id. ).
The next day, a Saturday, Chief Ward called Grizzell's house. (Doc. # 33 at 164). Her mother answered the phone. ( Id. ). According to Chief Ward, he told Grizzell's mother that he was calling to check on her daughter, and she responded that he was the cause of her daughter's stress. ( Id. ). Grizzell's mother testified that Chief Ward told her the stress of CIA was affecting her daughter's mind. (Doc. # 34 at 7).
Grizzell and her brother crossed paths with Chief Ward at CIA that night. (Doc. # 31 at 140). He again asked if she was alright, to which she replied, "What do you think?" ( Id. ). He promised that they would speak later and walked away. ( Id. ). At her deposition, Grizzell explained that her brother accompanied her that night because her family feared that APD personnel would retaliate against her, as they had done during the previous EEOC investigation. ( Id. at 141). She denied being afraid, but admitted that her brother's presence was comforting. ( Id. ).
On December 10, 2012, both Grizzell and Chief Ward informed Mayor Rachford of the phone conversation that took place over the weekend. (Doc. # 30 at 134). Grizzell's letter indicates that she was actually quite apprehensive:
This letter is to notify you of my fears. Due to how [Chief Ward] acted Friday, I am in fear he will use Casey's Law to arrest me. I am in fear of my job, I am in fear of meeting with him one-on-one or any meeting with him, Lt. Col. Alexander and Lt. Schreiner. I am in fear of attending staff meetings. I am in fear of further retaliation. Every time I have had to stand up for my rights against an officer, retaliation occurs to the point of personal threats, sabotage to my desk, visits to my home and following of family members.
(Doc. # 31-1 at 35). She then expressed her intent to file another EEOC Charge. ( Id. ). Grizzell also reported that she had taken Mayor Rachford's advice and made an appointment with her doctor, who was satisfied with her perception and outlook. ( Id. at 133; Doc. # 31 at 140).
On December 14, 2012, Mayor Rachford asked Grizzell and Chief Ward to utilize the Kentucky League of Cities' arbitration process. (144; Doc. # 31-1 at 36). When both parties consented, Barto began arranging the mediation. ( Id.; Doc. # 30 at 235). Just six days later, Grizzell notified Mayor Rachford that she had changed her mind about mediation because she did not want to sign a confidentiality agreement. (Doc. # 31-1 at 37). She demanded that Chief Ward destroy her ROC, schedule an organizational effectiveness and gender communications workshop for APD and restore her credibility with co-workers. ( Id. ). She warned that "anything short of this will result in me going further." ( Id. ). Chief Ward agreed to arrange a training seminar, but explained that the ROC would not be removed from her file until she completed EAP:
In keeping with our years of practice where Records of Counseling (ROC) are concerned, none are made permanent records so long as the issues addressed in the counseling form are corrected. In this particular case, you were directed to go to EAP for stress management counseling. Once that was accomplished-if only for one visit, the ROC would be removed from your file. The ball still remains in our court so to speak.
(Doc. # 31-1 at 39).
On January 2, 2013, Mayor Rachford, Chief Ward, Grizzell and Barto formulated the following conflict resolution plan:
1. Require that both Melinda and Mike attend EAP counseling sessions offered through out employee benefit program for stress management. They are to submit the necessary paperwork to initial these ...