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HERMAN v. WESTERN FINANCIAL CORP.3/4/1994
The opinion of the court was delivered by
This is an appeal by Debra G. Herman from the order of the district court granting summary judgment in favor of the defendants, Columbia Savings Association, F.A., (Columbia Savings) and various individuals, on her cause of action for hostile work environment, sexual harassment in violation of 42 U.S.C. § 2000e-2(a)(1) (1988), and retaliatory discharge. This case was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c).
Debra Herman was employed by Columbia Savings and its predecessor from April 1986 until she was fired on April 5, 1990. She was the regional mortgage loan operations manager, and her supervisor was the regional mortgage loan vice-president, Dan Welch.
Welch started working at Columbia Savings in the fall of 1987. Herman described Welch as "a real social person." She testified that during the first six months to one year of his employment there, Welch "was constantly touching, rubbing my neck, very intimate as far as physical contact, in the office, in front of other people," which made her feel uncomfortable and embarrassed. She denied that Welch ever touched any part of her body other than her neck, back, and shoulders. She testified that he conducted himself in the same way toward "several others also."
She also testified that " he dirty jokes, the innuendos spoken, were daily." She explained what she meant by "innuendos" in the following way: "Rude gestures, different phrases that he would say that would — calling one of the employees, well, she's really stacked, the rude comments, the jokes."
On one occasion when Columbia Savings employees had gone out socially, Herman and Welch went to their cars, which were parked side-by-side. According to Herman, Welch "started to lean me back up against my car. He started to kiss me. I laughed at him at the time, because he was very drunk." She testified that she also had been drinking and that she " idn't think a whole lot of it at the time."
It appears that this incident occurred in June 1988. Herman testified that Welch never again touched her neck or back or put his arm around her or tried to kiss her. Nor did he make "sexual comments" to her, although he continued to tell jokes and use sexual innuendos when in a group.
Herman testified that as a result of the attempted kiss, she stopped going out socially with the other Columbia Savings employees. Welch commented to her that she had become antisocial. Herman testified:
"After that point when things started becoming uncomfortable — I prior to that spent a lot of time with Dan. We worked very closely together on problems in business, day-to-day activities. Again, I tried to avoid any situation where I might be alone with him, including in his office."
Herman testified that from the time Welch started at Columbia Savings, he drank "quite heavily," but at first it did not affect his work. By March or April 1988, however, he was coming into the office inebriated and missing appointments. Herman testified that the employees in the loan department "were covering for him." She stated:
"Communication virtually stopped with everyone. We just were kind of in limbo. We didn't know — he was responsible for the department and making certain decisions, but we couldn't get decisions made or get them — get him to answer or get him to tell us." Herman testified that the morale of the employees in the loan department was affected and that she "was very frustrated."
Herman also complained about Welch's conducting a sexual relationship with Sheryl Heitman, another Col
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