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In the United States District Court for the District of Kansas

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In the United States District Court for the District of Kansas Case 5:09-cv-04133-SAC -JPO Document 7 Filed 05/26/11 Page 1 of 24 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS MICHELLE D. RICE, Plaintiff, V. No. 08-4132-SAC and No. 09-4133-SAC STATE OF KANSAS, Defendant. MEMORANDUM AND ORDER These consolidated Title VII cases come before the court on defendant’s motion for summary judgment and plaintiff’s motion for partial summary judgment. Plaintiff seeks summary judgment on her claim of hostile work environment sexual harassment, but not on her claim of retaliation. Summary Judgment Standard On summary judgment, the initial burden is with the movant to point out the portions of the record which show entitlement to judgment as a matter of law. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.1992), cert. denied, 506 U.S. 1013 (1992). In applying this standard, the court views the evidence and all reasonable inferences drawn from the evidence in the light most favorable to the nonmoving party. Adler v. WalMart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). If this burden is met, the non-movant must set forth specific facts which would be admissible as evidence from which a rational fact finder could find in the non-movant's favor. Id., at 671. The non-movant must show more than some “metaphysical doubt” Case 5:09-cv-04133-SAC -JPO Document 7 Filed 05/26/11 Page 2 of 24 based on “evidence” and not “speculation, conjecture or surmise.” Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Bones v. Honeywell Intern., 366 F.3d 869, 875 (10th Cir. 2004). The essential inquiry is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether the evidence is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986). However, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ “ Matsushita, 475 U.S. at 587. See Pinkerton v. Colorado Dept. of Transp., 563 F.3d 1052, 1058 (10th Cir. 2009). Facts In March of 2007, plaintiff was hired by defendant as a Corrections Officer I. On April 2, 2008, plaintiff timely reported to work for her 2 p.m. shift, wearing her work uniform which consisted of pants, a shirt, boots, and belt. To plaintiff’s surprise, she and other employees were required to pass through a newly installed and highly sensitive metal detector. Defendant’s policy requiring employees to pass through the new metal detector was not supposed to be implemented until April 21st. Corrections Supervisor I Johnstone, and Corrections Officer II Thompson were working the metal detector at the time. The first time plaintiff walked through the metal detector, it alerted. Plaintiff was told to remove the metal stays on her pants, her boots, and her belt, and did so. On her second try, plaintiff was scanned with a handheld detector, which alerted in her upper torso area. Plaintiff explained her belief that the underwire in her bra had caused the alert. After plaintiff’s third unsuccessful try, Officer Johnstone notified Captain Mathias of 2 Case 5:09-cv-04133-SAC -JPO Document 7 Filed 05/26/11 Page 3 of 24 the facts and was told that plaintiff would have to remove her bra and walk to her post before replacing it. Officer Johnstone was aware that the relevant order (TCF Post Order #24) said nothing about employees having to remove undergarments. Nor did that order provide for a strip search if an employee failed to clear the metal detector a third time. The most intrusive measure it allowed was a pat down, unless there was reasonable suspicion that the employee was in possession of contraband. When Officer Johnstone notified Captain Mathias of the facts and was told plaintiff would have to remove her bra and walk to her post before replacing it, he protested that requiring employees to remove undergarments was not in the written policy, but was told it was a direct order and to do as he was told. Officer Johnstone was disturbed by this order, and got express confirmation of it from his Lieutenant and then from his Captain, and reconfirmed it each time a woman failed to clear the metal detector. Each time he was told that they had to step through the metal detector without any alert, even if it meant they had to remove their undergarments and walk to their post before replacing them. Officer Johnstone told plaintiff she would have to remove her bra, pass through the metal detector, and walk to her post braless. She became upset, felt humiliated, and started to cry. Three of plaintiff’s superior officers came down from Captain Mathias’s office and told plaintiff that if she did not remove her bra and walk to her post braless, she would not be permitted to work. Co-workers, volunteers, and inmates were present at the time, and plaintiff was visibly upset. Officer Short stated the incident made him feel as though he “had been forced to watch a rape,” and he filed an internal EEO sexual harassment complaint because of the incident. 3 Case 5:09-cv-04133-SAC -JPO Document 7 Filed 05/26/11 Page 4 of 24 At some point, plaintiff went into the restroom where she removed her bra, placed it in a bucket, and replaced her shirt. The bucket was run through the scanner and was then returned to plaintiff. Plaintiff was crying and felt humiliated and wanted to go home, so called the Captain to see if she could do so. The Captain told her that if she left, her absence would be unauthorized. Plaintiff responded that she was ill and mentally overwrought by the incident, and could not face the inmates, at which point the Captain asked plaintiff to come to his office. It is disputed whether plaintiff went to the Captain’s office before or after she removed her bra. Officer Johnstone testified that the plaintiff went to the captain’s office before she removed her bra. Plaintiff testified that she went to the Captain’s office after she removed her bra, while braless, but also testified that she went there wearing her bra.1 When plaintiff told the Captain she wanted to go home to change into another bra, she was noticeably upset and choking on her words. He responded that if she went home instead of walking to her post braless, her absence would be considered unauthorized and she could face disciplinary action including termination. Plaintiff was told that it was necessary for her to keep her bra off until she got to her post because if she put it back on in the closest restroom, she “would have to go through the metal detector again” and it “would set off again.” Id, p. 41. Defendant believed that there was no suitable place between the area of the metal detector and 1Plaintiff also testified, however, that she went to the captain’s office because she was debating going home to get a bra without wire “so she wouldn’t have to remove” it. Rice depo. p. 38. Plaintiff subsequently testified that they told her she “would have to take off my bra – or – my bra was already off. They said I would have to leave my bra off until I got to my post. Id., p. 40. 4 Case 5:09-cv-04133-SAC -JPO Document 7 Filed 05/26/11 Page 5 of 24 the plaintiff’s duty station for plaintiff to use to replace her bra. Afraid of losing her job, plaintiff eventually walked crying and braless to her post , then went into a restroom and replaced her bra. Because it was time for shift change, there was lots of foot “traffic,” so an unspecified number employees and inmates witnessed plaintiff walking from the SAC building where the metal detector was, to the captain’s office, then to her post. Plaintiff later sought counseling because of this metal detector incident. That day, plaintiff overheard lots of inmates and employees talking about the incident. Plaintiff does not recall their names, and does not recall what they said because she just heard “little bits and pieces” of the conversations. The next day, plaintiff heard a female officer ask a male, Officer Hester, what he thought of the incident, and he replied: “I kind of liked it. I just wish I could pick and choose who I wanted to remove their bras.” Rice depo., p. 49-50. Plaintiff believes that for days afterwards, people in the whole facility were talking about the incident. Plaintiff complained to Captain Garvin about Officer Hester’s comment, and he told her to write it down so he could discipline the employees. She did not do so because she didn’t want to single out only those two individuals. On April 2nd or 3rd, plaintiff met with Deb Mayo, an EEO officer for defendant, who told plaintiff to fill out a grievance form. Plaintiff did so soon thereafter. On April 4th, Deputy Warden Cummings met with plaintiff and verbally apologized to her regarding the metal detector incident. He also met with her on April 11, 2008, and assured her that permanent changes were being made to the new screening procedures. On April 14th, Deputy Warden Cummings, in his written response to plaintiff’s grievance, concluded: Security personnel that were conducting the metal detector screening on 5 Case 5:09-cv-04133-SAC -JPO Document 7 Filed 05/26/11 Page 6 of 24 April 2, 2008 appear to have followed the procedures set out in IMPP 12-121 and post order # 24, except that the opportunity to remove the article of clothing, as an alternative to a strip search, was given.
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