Opinion
Civil Action No. 01-3565.
June 30, 2004
MEMORANDUM AND ORDER
MEMORANDUM
Presently before this Court is the Motion for Summary Judgment filed by Boeing Helicopters ("Defendant") on December 29, 2004 (Doc. No. 23), the Answer in Opposition to the Motion for Summary Judgment filed by Patricia Baker ("Plaintiff") on January 16, 2004 (Doc. No. 27) and related submissions and exhibits. For the reasons that follow, it is hereby ORDERED that the Motion (Doc. No. 23) is GRANTED.
I. FACTUAL AND PROCEDURAL HISTORY
In 1980, Patricia Baker commenced her employment with Defendant as a bench assembler in the Wire Shop until it closed; in early 1999, she obtained a new position as an aircraft assembler; as such, she had to work in close quarters with other employees. Pl's. Opp. at 8; D's Fact. Stmt. at ¶ 3. Plaintiff's was supervised either directly or indirectly by Scott Vieweg and Richard Latella with whom she had good relationships. Id. at 9. Jack Moser, a fellow assembler and union member, had no authority, supervisory power, or opportunity to evaluate Plaintiff. Baker Dep. at 125; Vieweg Dep. at 14-15, 21-23. All of Defendant's employees, including Plaintiff and Moser, received an employee benefit manual, a handbook with written policies against sexual harassment and discrimination, and explicit instructions that complaints of this nature should be directed to the Human Resources or Equal Employment Opportunity offices ("EEO"); in addition, posters reiterating these procedures and listing the toll-free hotline maintained for this purpose were scattered throughout the facility. Baker Dep. at 41, 79, 118-121 (admitting that she failed to read handbook but knew of the posters, and hotline).
In May 1999, following allegedly continuous harassing and threatening comments made to Plaintiff by Moser, Plaintiff reported the conduct to Brian Concannon, the union steward. Pl's Opp. at 10. Mr. Concannon reprimanded Moser, but shortly thereafter, Plaintiff informed Mr. Latella, the senior manager, that her co-worker continued to harass her and, on one occasion, touched her breast. Baker Dep. at 145; Latella Dep at 29. Latella conferred with Vieweg who had not witnessed or been made aware of any harassment or unprofessional conduct. D.'s Fact. Stmt. at ¶ 26 citing Vieweg Dec. at ¶ 7, Latella Dep. at 36. The two supervisors met with the alleged offender, interrogated, and reprimanded him such that the conduct stopped. Baker Dep. at 153 ("The physical harassment stopped. He didn't touch me after that.").
Even though they instructed Plaintiff to report the incident and any further offenses to the EEO office, she did not. D.'s Fact. Stmt. at ¶ 30; Baker Dep. at 150 (admitting that though the supervisors instructed her to report it, she chose not to). At no point did Plaintiff alert a supervisor or EEO representative that further remedial action was required. Baker Dep. at 167 (conceding that she did not tell either Latella or Vieweg that their actions had failed to stop the harassment). On July 12, 1999, after a personal struggle with drug use, Plaintiff resigned for personal reasons via letter. Baker Dep. at 103; Vieweg Dep. at 38; D's Mem. at Ex. N; Latella Dep. at 46-48; Buxton Dec. at ¶ 16-18. On July 16, 2001, Plaintiff filed a Complaint alleging hostile work environment and constructive discharge in violation of Title VII. (Doc. No. 1) On December 29, 2003, Defendant filed a Motion for Summary Judgment, claiming that Plaintiff fails to establish a prima facie case under Title VII. Plaintiff responded on January 16, 2004. (Doc. No. 27)
Defendant recounts the ongoing problem with drug abuse in detail. D's. Mem. 10-13. In response, Plaintiff argues that these personal issues add nothing to the relevant legal issues presented to the Court, but rather that the humiliation and emotional distress only exacerbated her addiction. Pl's. Opp. at 22 citing Celebre Dep at 43. The Court addresses this point only in so far as it explains the sole material change in Plaintiff's employment status. As a result of the ongoing drug addiction and rehabilitation, in 1999 Plaintiff agreed to return to work pursuant to a "last chance agreement" that required Plaintiff's sobriety for a three year period as determined by random drug testing. D.'s Mem. at 12 citing Baker Dep. 87-88. She agreed to the terms of this agreement on July 6, 1999. D's Mem. at Ex. M. However, on July 12, 1999 she admitted to continued drug use and submitted a resignation letter. Id. citing Baker Dep. at 101-102, 105-109.
II. STANDARD OF REVIEW
Summary judgment is appropriate when "there is no genuine issue of material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In reviewing the record, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). The moving party bears the burden of showing that the record discloses no genuine issues as to any material fact and that he or she is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings to set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e);see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). There is a genuine issue for trial "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson, 477 U.S. at 249. "Such affirmative evidence — regardless of whether it is direct or circumstantial — must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance." Williams v. Borough of W. Chester, 891 F.2d 458, 460-61 (3d Cir. 1989).
III. DISCUSSION
Title VII makes it unlawful for an employer "to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). While the text of the statute generally makes reference to "specific employment decisions with immediate consequences, the scope of its prohibition [against discrimination in the workplace] is not limited to economic or tangible discrimination" and "covers more than terms and conditions in the narrow contractual sense." National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115-16 (2002) (internal quotations and citations omitted); see also Harris v. Forklift Sys., 510 U.S. 17, 21 (1993) (observing that "[t]he phrase `terms, conditions, or privileges of employment' evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment."). A plaintiff can demonstrate a violation of Title VII through proof that harassment, unwelcome sexual conduct, or comments have unreasonably interfered with his or her job performance or led to the creation of an intimidating, hostile, or abusive work environment. See Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 67 (1986); Weston v. Commonwealth of Pennsylvania, 251 F.3d 420, 425-26 (3d Cir. 2001); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir. 1996).
A. Hostile Work Environment and Constructive Discharge
Specifically, in order for a Plaintiff to establish a compound hostile work environment constructive discharge claim, Plaintiff must show harassing behavior "sufficiently severe or pervasive to alter the conditions of [her] employment." Pennsylvania State Police v. Suders, 124 S.Ct. 2342, 2347 citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). Whether an employee was constructively discharged from employment is based on whether "the conduct complained of would have the foreseeable result that working conditions would be so unpleasant or difficult that a reasonable person in the employee's shoes would resign." Gray v. York Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir 1992). Plaintiff must prove five elements: "(1) the employee suffered intentional discrimination because of gender; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same gender in the same position; and (5) the existence of respondeat superior liability." Shramban v. Aetna, 262 F. Supp.2d 531, 535 (E.D. Pa. 2003) (quoting Kunin v. Sears Roebuck Co., 175 F.3d 289, 295 (3d Cir. 1999)). In determining whether an environment is sufficiently hostile or abusive, courts must look to the totality of the circumstances, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998). The conduct "must be extreme to amount to a change in the terms and conditions of employment."Id.
Commonly, plaintiffs claiming constructive discharge rely on factors such as threatened discharge, demotion, involuntary transfer, alteration of responsibilities, or unsatisfactory evaluations. See e.g., Shealy v. Winston, 929 F.2d 1009 (4th Cir. 1991); Berger v. Edewater Steel Co., 911 F.2d 911, 923 (3d Cir. 1990), cert. denied, 499 U.S. 920 (1991); Buckley v. Hospital Corp. of America, 758 F.2d 1525, 1530-31 (11th Cir. 1985); Meyer v. Brown Root Construction Co., 661 F.2d 369 (5th Cir. 1981). "The law does not permit an employee's subjective perceptions to govern a claim of constructive discharge." Clowes v. Allegheny Valley Hospital, 991 F.2d 1159 (3d Cir 1993)citing Gray, 957 F.2d at 1083 quoting Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985).
For this Court to conclude that Plaintiff had been constructive discharged as a result of the hostile work environment, she bears the burden of establishing that the allegedly harassing conduct created working conditions so unpleasant that a reasonable person in her position would have resigned. Gray v. York Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir 1992). But, even if we assume Plaintiff's allegations and resignation were reasonable in satisfaction of the first four elements, in addition to proving that she suffered intentional discrimination that detrimentally affected her, Plaintiff must also establish that respondeat superior liability exists in order for her claim of sexual harassment to survive summary judgment.
Defendant argues that Plaintiff made no reasonable efforts to resolve the situation such that her choice to resign could be objectively perceived as the only possible option. However, Plaintiff does not bear the burden of alleging facts relevant to mitigation, but need do so only in anticipation of the employer's affirmative defense. "The plaintiff who alleges no tangible employment action has the duty to mitigate harm, but the defendant bears the burden to allege and prove that plaintiff failed in that regard." Suders, 124 S.Ct. at 2357.
1. Vicarious Liability of Employer for Conduct of Non-Supervisory Persons
An employer may defend against a hostile work environment claim by showing that (1) it had installed an accessible and effective policy for reporting and resolving complaints of sexual harassment, and (2) that the plaintiff unreasonably failed to utilize that apparatus. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). The defense is not available "if the plaintiff resigns in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation." Suders, 124 S.Ct. at 2348 citing Ellerth, 524 U.S. 742 (1998).
In Pennsylvnia State Police v. Suders, the Supreme Court held that the Third Circuit erred in declaring that the affirmative defense described in Ellerth and Faragher were not available in constructive discharge cases. Suders, 124 S.Ct. at 2357. Instead, when an official act does not underlie the constructive discharge, the analysis requires an extension of the affirmative defense to the employer.
As noted in both Faragher and Ellerth, an interpretation based on agency principles suggests that Title VII defines "employer" to include its "agents." Id. citing Ellerth, 524 U.S. at 758. "An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee." Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) (emphasis added). An employer is not subject to vicarious liability for all co-worker harassment; more than a mere existence of the employment relation is necessary; a supervisor must take tangible employment action against the subordinate. Ellerth, 524 U.S. 742, 760 (1998). Supervisory liability cannot be based solely upon the doctrine of respondeat superior, but there must be some affirmative conduct by the supervisor that played a role in the discrimination. Rizzo v. Goode, 423 U.S. 362, 561 (1976).
A defending employer may raise an affirmative defense to liability or damages when no tangible employment action is taken.Faragher, 524 U.S. at 807. "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id. Without such an official action, "the extent to which the supervisor's misconduct has been aided by the agency relations . . . is less certain" thereby justifying the opportunity provided to the employer to establish that it should not face vicarious liability through the Ellerth/Faragher affirmative defense. Suders, 124 S. Ct. at 2355.
The employer in this case has a clear established policy against sexual harassment and maintains an active Equal Employment Opportunity office to which employees are instructed to lodge complaints of such behavior. D's Mem. at 28; Ex. K, L. After an initial complaint and investigation after which the allegedly offensive conduct immediately ceased, Plaintiff alleges that further harassment ensued but she never reported the conduct. D.'s Mem. at 29 citing Baker Dep. 167. Despite the dissemination of information alerting all employees to the mechanisms available to address her grievance, at no time did Plaintiff file a complaint, call the toll-free ethics hotline, or address the issue at the time of her resignation. Id.
Defendant correctly argues that it cannot be held vicariously liable for the alleged actions of Moser, Plaintiff's co-worker. In order for the employer to be vicariously liable for the harassment Plaintiff endured, a supervisor must have taken a tangible employment action against her. Despite the fact that as a "lead" assembler who trained less experienced workers, Moser enjoyed no supervisory authority over any employee nor did he have the freedom to affect the terms or conditions of her employment, evaluate her performance, or adjust her pay. D's Mem. at 21. When asked for a list of her supervisors during her deposition, Plaintiff concedes, suggests Defendant, that Moser was not among those to whom she reported. Id. at 21 citing Baker Dep. 23-26. Even if, as Plaintiff suggests, this Court were to hold the employer liable for the hostile environment resulting from the alleged harassment of a co-worker, the employment relationship between the alleged offending co-worker and Plaintiff is insufficient. A more certain change in employment status related to that misconduct is required. Plaintiff points to Moser's threats of adverse employment action, but he had no authority to render it nor did any such tangible consequence result.
2. Respondeat Superior Liability of Employer for Conduct of Co-Workers
Conversely, the standard to establish sexual harassment by a co-worker proceeds under a theory of respondeat superior.Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir 1990). In determining whether an employer is liable for a sexually hostile environment under respondeat superior, this Court again looks to agency principles. Vinson, 477 U.S. at 72. "Liability exists where the defendant knew or should have known of the harassment and failed to take prompt remedial action."Andrews v. City of Philadelphia, 895 F.2d 1469, 1486 (3d Cir. 1990) citing Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir. 1989). If Plaintiff proves that Defendant's management-level employees had actual or constructive knowledge about the sexually hostile environment allegedly created by Moser and failed to take prompt and adequate remedial action, it would be liable. Id.
As explained in detail above, in response to Plaintiff's initial complaint of sexual harassment, an investigation ensued and remedial measures were taken such that the offending conduct stopped. D.'s Mem. at 22 citing Baker Dep. at 153. See Kunin v. Sears Roebuck and Co., 175 F.3d 289 (3d Cir. 1999) (providing notice to supervisor of harassment by co-worker did not establish respondeat superior liability on part of employer, since supervisor took effective action as he instructed co-worker to stay away from plaintiff, who experienced no further harassment from co-worker.). Despite this, Plaintiff claims that Defendant did nothing in response to her second complaint. Pl's. Opp. at 15-17. However, because Plaintiff never filed a subsequent complaint with the EEO office or notified her supervisors and because no other employees witnessed the conduct such that its pervasiveness would suggest Defendant should have known independent of being altered, the employer cannot be held liable under respondeat superior. D's Mem. at 23 citing Baker Dep. at 132. Plaintiff disputes this, arguing instead that she made all those in supervisory capacities acutely aware of the ongoing harassment. Pl's Opp. at 15. Lastly, Plaintiff claims that at the time of her resignation, she identified harassing conditions as the cause without reaction or remedial efforts by any management personnel. Id.
Plaintiff offers the corroborative testimony of a co-worker, Eileen Lanno, who recalled seeing Ms. Baker in the bathroom after the incident. Pl's Opp. at 24-26. Ms. Lanno testified to Mr. Moser's aggressive tendencies and unwelcome comments towards women. Id. However, Ms. Lanno did not witness the attack, alert managerial personnel, or indicate that his conduct was so pervasive that Defendant should have independent knowledge of it.
In this case, the evidence presented by Plaintiff is insufficient to prove that managementlevel employees had actual or constructive knowledge about the existence of a sexually hostile environment and failed to take prompt and adequate remedial action. Andrews, 895 F.2d at 1469. In contrast, the Defendant satisfies its high burden to show that they took adequate remedial measures. Id.; D's Mem. at 22 citing Baker Dep. at 153, 167 (conceding that the harassment stopped after the initial intervention); Vieweg Dep. at 38 (testifying that when asked, Ms. Baker said she was resigning for personal reasons); D's Mem. at Ex. N (fax transmittal sheet signed by Ms. Baker indicating that she was "resigning from [her] job at Boeing Helicopters due to personal reasons" and thanking Mr. Vieweg and Latella for their assistance).
3. Quid Pro Quo Sexual Harassment
Lastly, Plaintiff argues that the threats to affect the terms of her employment made by Moser are sufficient to render the defense of tangible employment action inapplicable. In so doing, she points to Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997). In Robinson, the Third Circuit adopted the elements of a quid pro quo claim as set out in 29 C.F.R. § 1604.11(a)(1) and (2), namely that "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment [or] (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual" Robinson, 120 F.3d at 1296 citing 29 C.F.R. § 1604.11(a)(1) and (2); Heyne v. Caruso, 69 F.3d 1475, 1478 (9th Cir. 1995); Cram v. Lamson Sessions, 49 F.3d 466, 473 (8th Cir. 1995); Karibian v. Columbia University, 14 F.3d 773, 777 (2d Cir. 1994); Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1416 (10th Cir. 1993); Lipsett v. University of Puerto Rico, 864 F.2d 881, 898 (1st Cir. 1988).
However, the Court in Robinson went on to note that quid pro quo harassment requires that the supervisor making the threat has actual or apparent authority to carry it out. Id. (citations omitted). Specifically, "the consequences attached to an employee's response to the sexual advances must be sufficiently severe as to alter the employee's compensation, terms, conditions, or privileges of employment. or to "deprive or tend to deprive [him or her] of employment opportunities or otherwise adversely affect his [or her] status as an employee." Id. quoting 42 U.S.C. § 2000e-2(a)(2). The allegation of quid pro quo sexual harassment in this case is insufficient to render the objectionable conduct attributable to the employer because Plaintiff's co-worker lacked the potential to alter Plaintiff's employment.
IV. CONCLUSION
For all these reasons, it is hereby ORDERED that the Motion for Summary Judgment is GRANTED.
ORDER
AND NOW, this 30th day of June 2004, upon consideration of the Motion for Summary Judgment filed by Defendant on December 29, 2004 (Doc. No. 23), it is hereby ORDERED that the Motion is GRANTED. Plaintiff's Complaint is DISMISSED with prejudice and JUDGMENT is entered in the above action for Boeing Helicopters. The Clerk of Court is instructed to statistically close this matter.