Opinion
1:01CV00939
March 19, 2003
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on a motion for summary judgment (Pleading No. 13) and a motion to strike (Pleading No. 19) filed by Defendant Anthony J. Principi, Secretary of Veterans Affairs. Plaintiff Phillip Dean Gilliam has responded in opposition to Defendant's summary judgment motion, and Defendant has filed a reply. Plaintiff Gilliam has not responded to Defendant's motion to strike, and the time for response has expired. The motions are ready for a ruling.
I. Procedural History
Plaintiff Gilliam filed a Complaint in this Court on October 12, 2001 alleging gender discrimination, sexual harassment and retaliation by Defendant in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). In his Complaint, Plaintiff sought compensatory and punitive damages, back pay and benefits, and attorney's fees and costs. On February 26, 2002, Defendant filed an Answer denying the material allegations in Plaintiffs Complaint and asserting various affirmative defenses. On November 27, 2002, after the close of discovery, Defendant filed the instant motion for summary judgment, along with a supporting memorandum and affidavits.
II. Statement of Facts
Plaintiff Gilliam began working for the Department of Veterans Affairs as a reception and scheduling clerk in the Winston-Salem Outpatient Clinic ("WSOPC") in March or April of 1994. (Pleading No. 1, Compl. ¶ 10; Pleading No. 17, Pl.'s Br., Exh. D, Gilliam Dep. at 16.) Delois ("Dee") Cochrane (female) was Plaintiffs immediate supervisor. (Gilliam Dep. at 30.) Plaintiffs job duties included checking patients in for appointments, checking patients out when they left the clinic, paying patients for their travel costs, and moving patient records among the doctors. (Pl.'s Br., Exh. B, Adams 1997 Aff. at 4.) On April 5, 1995, Cochrane gave Plaintiff a "Fully Successful" annual performance evaluation. (Gilliam Dep. at 122-23; Pleading No. 14, Def.'s Br., Exh. A, Gilliam Dep. (Abridged), Exh. 6.) Plaintiff refused to sign the evaluation and attempted to appeal the "Fully Successful" rating to Jim Nelson, Cochrane's supervisor. (Gilliam Dep. at 123-24.) Nelson apparently did not agree to change Plaintiffs rating. Id. at 124.
As there are three different affidavits signed by Lori Adams in the record, the Court will designate the affidavit signed by Adams on May 15, 1997 as the "Adams 1997 Aff.," the one signed by Adams on an unspecified date in 1999 the "Adams 1999 Aff.," and the one signed by Adams on November 21, 2002 as the "Adams 2002 Aff."
The possible rating categories included "Unacceptable," "Minimally Successful," "Fully Successful," "Highly Successful," and "Outstanding." See Gilliam Dep. (Abridged), Exhs. 6-8.
Plaintiff and Defendant have attached Gilliam's deposition to their summary judgment briefs. Plaintiffs Exhibit D contains the entire 187-page deposition without its exhibits and will be designated as "Gilliam Dep." Defendant's Exhibit A contains only portions of the deposition and deposition exhibits 1 through 8 and will be designated as "Gilliam Dep. (Abridged)."
In April 1995, Plaintiff was reassigned to the Fee Basis Department under the supervision of Lori Adams (formerly Weatherly) (female). (Compl. ¶¶ 10, 12; Gilliam Dep. at 29-30.) In the Fee Basis Department, Plaintiff held the position of Program Clerk and was responsible for entering authorizations for patient medical care into the computer and notifying patients and medical providers of such authorizations. (Adams 1997 Aff. at 3.) of Plaintiffs approximately 12 to 15 coworkers, only one was male. (Compl. ¶ 12.)
Beginning in October 1995, Plaintiff alleges that he observed a "pattern of preferential treatment being given to female employees under Ms. Adams['] supervision." Id. ¶ 13. Plaintiff contends that all of his female coworkers received better performance evaluations than he did, which entitled them to receive individual awards that he was ineligible to receive. Id. ¶¶ 16, 17; Gilliam Dep. at 110-11, 114, 119. In addition, Plaintiff alleges that several female coworkers received group awards for service beyond the scope of their job, while he did not receive such an award despite frequently working at the front desk, which was outside of his job duties. Id. ¶ 18. In fact, Plaintiff alleges that he was asked to cover the front desk more than anyone else in the Fee Basis Department. (Gilliam Dep. at 106-08.) Plaintiff further alleges that many of his female coworkers formed a "clique" which included Adams, and that the members of this clique were permitted to come and go without accountability. (Compl. ¶ 20; Gilliam Dep. at 105-06.) In addition, Plaintiff alleges that two females were wrongfully selected over him for a promotion, and that his requests for overtime were denied by Adams while she approved the requests of female employees. Id. ¶ 15, 19; Gilliam Dep. at 114-18, 134.
Plaintiff also maintains that he endured a sexually hostile working environment during his time under Adams' supervision in the Fee Basis Department. Compl. ¶ 21. Plaintiff claims that soon after he began his employment in the Fee Basis Department in April 1995, Adams told him that she had "finally got her a man to work in her department." (Gilliam Dep. at 31.) Plaintiff maintains that Adams and female coworkers Eve King, Marilyn Leagans and Tammy Beard had pictures of shirtless men posted in their work stations. (Compl. ¶ 22; Gilliam Dep. at 39-42, 47, 54-55, 57-58; Gilliam Dep. (Abridged), Exhs. 1, 2 4.) In addition, Plaintiff alleges that several female coworkers, including Adams, teased him about his nipples, unbuttoned his shirt to try to pull his chest hair and snapped his suspenders. Id. ¶ 25; Gilliam Dep. at 32, 33, 45-46. On one occasion, Plaintiff contends that a male coworker was given a pair of g-string underwear by several female coworkers as a birthday gift. Another male coworker put on the g-string over his work pants and "modeled" them in the Fee Basis Department. Id. ¶ 23; Gilliam Dep. at 84-85.
Plaintiff maintains that Adams frequently told sexually vulgar jokes in his presence. (Gilliam Dep. at 34-35, 87-89.) Plaintiff alleges that during a thunderstorm, Adams told him to move away from the window because "lightning would make his dick grow." (Compl. ¶ 24; Gilliam Dep. at 32.) Coworker Eve King allegedly witnessed this statement. (Gilliam Dep. at 75.) On another occasion, Plaintiff alleges that Adams saw him boxing an item and stated, "I didn't know dildos came in boxes that big." (Compl. ¶ 26; Gilliam Dep. at 36.) Coworker Bruce Bryant purportedly witnessed this statement. (Gilliam Dep. at 76.) Another coworker, Jo Winslow, allegedly said to Plaintiff that "all you people with balls are . . . sorry-ass mother flickers." Id. at 53. Marilyn Leagans allegedly witnessed this statement. Id. at 53-54. In October or November 1996, Winslow allegedly showed Plaintiff a "Peter Meter," a ruler-like object containing comments regarding a man's sexual ability based on the length of his genitalia. Winslow apparently asked both Plaintiff and Bryant how they measured up. (Compl. ¶ 27; Gilliam Dep. at 77-78, 82; Gilliam Dep. (Abridged), Exh. 5.) Another coworker, Cheryl Cook, had a sign posted in her work station that read, "Do you want to speak to the man in charge or the woman who knows what's going on?" (Gilliam Dep. at 48, 50; Gilliam Dep. (Abridged), Exh. 3.)
While Plaintiff maintains that he did tell Adams, Leagans and King that he found the pictures of shirtless men objectionable, he did not complain about the other conduct as it occurred. (Gilliam Dep. at 39, 41, 50, 65-66, 76, 78.) Plaintiff claims that at some point in 1996, he contacted an EEO counselor, Patrice Watson, about how to file an EEO complaint, but he did not give her any details regarding the conduct he was experiencing. Id. at 51-54, 137-38. In November 1996, Plaintiff verbally complained about the conduct in question to a union manager at the Salisbury, North Carolina Veterans Administration Medical Center ("VAMC") and submitted photographs of the objectionable materials he had encountered in the Fee Basis Department. (Compl. ¶ 28; Gilliam Dep. at 50-54, 137-39.)
Adams denies that Plaintiff ever complained to her about the picture of the shirtless man in her office. (Adams 1999 Aff. at 3-5.) Leagans and King apparently admit that Plaintiff did complain about their pictures at some time prior to filing his EEO complaint, but that they both immediately removed the pictures when he complained. (Def.'s Br., Exh. D-4 at 18.)
Following this complaint, EEO Manager Maria Hall contacted Ken Collins, the WSOPC Director, regarding Plaintiff's allegations. (Def.'s Br., Exh. C, Collins Aff. ¶ 5.) Pursuant to the instructions of Dr. B.H. Story, Director of the Salisbury VAMC, Collins took immediate action which included removing Plaintiff from his position in the Fee Basis Department under Adams' supervision and relocating him to the Stenography Department under Jackie Chambers. Id.; Gilliam Dep. at 90. All pictures and other materials alleged by Plaintiff to be objectionable were removed, and Adams was instructed to have no further contact with Plaintiff. (Collins Aff. ¶¶ 6, 7.)
Plaintiff alleges that on his first day of work in the Stenography Department, he was scheduled to work the front desk. Chambers was allegedly disrespectful to him and told him that he was not supposed to be working at the front desk any longer. (Gilliam Dep. at 90.) Due to the confrontation between Chambers and Plaintiff, Collins decided to move Plaintiff to another floor in the Prosthetics Department under Nelson's supervision. Id. at 91. Plaintiffs pay, title, and job duties did not change in this new location. id. at 95-96.
Plaintiff alleges that immediately after his move to the Prosthetics Department, he was subjected to retaliation for filing an EEO complaint. (Gilliam Dep. at 91-103, 142-43.) Plaintiff contends that this retaliation took the form of isolation and "sabotage." Id. Plaintiff alleges that several employees told him that management had instructed them not to communicate or associate with him. Id. at 91-92. Plaintiff maintains that his former coworkers spoke with him about business-related matters "only bluntly" and often hung up on him when he called them for business-related information. Id. at 93-94. Plaintiff further alleges that veterans' calls to his former telephone extension in the Fee Basis Department were not forwarded to him in the Prosthetics Department, resulting in long delays in his ability to respond to the veterans' needs. Id. at 96-97. In addition, when veterans' calls were not returned and they complained, negative information about Plaintiffs non-responsiveness was entered into the veterans' computer files. Id. at 97-98. Plaintiff also contends that the procedure for authorizing veterans' medical care was changed, making Jo Winslow as Patient Advocate primarily involved. Id. at 100. Plaintiff maintains that Winslow often sent him files requesting authorization for medical care for which the veterans were not qualified. Winslow had apparently already told the veterans that they would be receiving the medical care in question, so that Plaintiffs denial of the requested care subjected him to blame and criticism from the veterans involved. Id. at 101.
In November and December 1996, the Administrative Board of Investigation ("ABI") conducted an investigation of Plaintiff's allegations, which included interviewing 20 witnesses including Plaintiff. (Collins Aff. ¶ 8; Def.'s Br., Exh. D-1.) At the end of the investigation on December 5, 1996, the ABI issued a report which concluded that nearly all of the employees in the Fee Basis Department had been exposed to sexually inappropriate conduct, that management was not effectively addressing these problems, and that more sexual harassment training was needed. The ABI further recommended that several of the employees involved, including Plaintiff, Adams, Nelson and Collins, should receive disciplinary action. (Def.'s Br., Exh. D-1 at 8-10.) In accordance with the ABI's recommendations, Adams, Nelson and Collins received written reprimands and several employees, including Plaintiff, were verbally counseled for their participation in inappropriate sexual conduct. (Gilliam Dep. at 140-42; Collins Aff. ¶ 9; Adams 1997 Aff. at 10.) Sexual harassment training was provided for all supervisors and employees. (Collins Aff. ¶¶ 10. 11.)
Plaintiff submitted a formal, written EEO complaint to EEO counselor Julious Scott on December 20, 1996. (Def.'s Br., Exh. D-2.) The Office of Resolution Management ("ORM") of the Department of Veterans Affairs conducted a second on-site investigation from May 12 to May 16, 1997. The ORM issued a decision on May 21, 1997 finding insufficient evidence to support Plaintiffs claims that he had been the victim of gender discrimination, sexual harassment and retaliation. Id., Exit D-3. Plaintiff appealed this decision to the Office of Employment Discrimination Complaint Adjudication ("OEDCA"). Id., Exh. D-4.
Late in 1997, Nelson gave Plaintiff a "Fully Successful" performance evaluation which Plaintiff refused to sign and with which Plaintiff bitterly disagreed. (Gilliam Dep. at 126-28; Gilliam Dep. (Abridged), Exh. 8.) Shortly thereafter, on November 5, 1997, Plaintiff submitted a letter of resignation to be effective approximately eight weeks later on December 31, 1997. Id. at 143-44. Plaintiff actually resigned on January 4 or 5, 1998, to coincide with the end of the pay period. Id. at 150-51.
On September 17, 2001, the OEDCA issued a Final Agency Decision, again finding insufficient evidence to support Plaintiffs claims. (Def.'s Br., Exh. D-4.) Plaintiff filed this action within 30 days of receipt of the Final Agency Decision.
III. Discussion
A. Defendant's Motion for Summary Judgment
1. Summary Judgment Standard of Review
The summary judgment standard of review under Rule 56 is well established. A party is entitled to judgment as a matter of law upon a showing that "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The material facts are those identified by controlling law as essential elements of claims asserted by the parties. A genuine issue as to such facts exists if the evidence forecast is sufficient for a reasonable trier of fact to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue of material fact exists if the nonmoving party fails to make a sufficient showing on an essential element of its case as to which it would have the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In evaluating a forecast of evidence on summary judgment review, the court must view the facts and inferences reasonably to be drawn from them in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255.
When the moving party has carried its burden, the nonmoving party must come forward with evidence showing more than some "metaphysical doubt" that genuine and material factual issues exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), cert. denied, 481 U.S. 1029 (1987). A mere scintilla of evidence is insufficient to circumvent summary judgment. Anderson, 477 U.S. at 252. Instead, the nonmoving party must convince the court that, upon the record taken as a whole, a rational trier of fact could find for the nonmoving party. Id. at 248-49. Trial is unnecessary if "the facts are undisputed, or if disputed, the dispute is of no consequence to the dispositive question." Mitchell v. Data General Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993).
2. Plaintiff's Gender Discrimination Claims
Plaintiff alleges that Defendant discriminated against him because of his gender in several respects: (1) by failing to promote him to the Health Technician position in October 1996; (2) by giving him only a "Fully Successful" performance evaluation in April 1996 which rendered him ineligible for certain awards; (3) by denying his requests for overtime in 1996; and (4) by scheduling him to work at the front desk more than female coworkers in 1996. In response, Defendant argues that (1) the females selected for the Health Technician position were better qualified than Plaintiff; (2) an unsatisfactory performance evaluation is not an "adverse employment action" that may give rise to a Title VII claim; (3) Plaintiffs own evidence shows that overtime was granted not because of gender but because of financial need; and (4) males and females were equally required to work at the front desk. The Court will address each of these arguments in turn.
Plaintiffs summary judgment response focuses on his claims of hostile environment and retaliation, but appears to contain no argument on his gender discrimination claims.
a. Failure to Promote
Plaintiff alleges that Adams discriminated against him in October 1996 when she rejected Plaintiffs application and selected two females, Eve King and Debbie Stone, for a promotion to the position of Health Technician. (Gilliam Dep. at 114-18.) To establish a prima facie case of gender discrimination in a failure-to-promote claim, Plaintiff must demonstrate that (1) he was a member of a protected class; (2) he applied for an open position; (3) he was qualified for the position; and (4) he was denied the promotion under circumstances that created an inference of unlawful discrimination. See Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994). Defendant argues that Plaintiff cannot establish the fourth element of the prima facie case, because the female employees actually selected were better qualified than Plaintiff for the position in question.
While the Court agrees that Plaintiff cannot show a prima facie case, the Court does not agree that the evidence shows beyond dispute that the females selected were better qualified than Plaintiff. The record does not establish the job requirements for the Health Technician position, nor does it establish Plaintiffs credentials or those of King and Stone. A bare allegation that Stone and King were better qualified in a defense affidavit does not establish that Stone and King were better qualified than Plaintiff. See Adams 2002 Aff. ¶ 8.
However, it is clear from Plaintiffs deposition testimony that he does not know what King and Stone's credentials were at the time they were chosen for the Health Technician position. (Gilliam Dep. at 116, 117.) It is equally clear that Plaintiff has not offered any corroborative evidence that he was better qualified. Plaintiff has not submitted depositions from either Stone or King as to their experience and qualifications, nor has he submitted any documents such as their performance evaluations which would tend to show their achievements while at the WSOPC. Nor has plaintiff submitted any generalized evidence of a pattern or practice in the WSOPC of advancing females over males. Plaintiffs cannot survive summary judgment review on this claim by relying solely on his own unsupported and subjective belief that he was better qualified than Stone and King. See Vaughan v. Metrahealth Cos., Inc., 145 F.3d 197, 202 (4th Cir. 1998) ("Standing alone, self-serving claims of superiority do not suffice.") Because Plaintiff has not shown that his promotion was denied "under circumstances [that create] an inference of unlawful discrimination," see Carter, 33 F.3d at 458, the Court finds that Plaintiff has failed to make a sufficient factual showing to support a prima facie case of gender discrimination based on his failure to be promoted to Health Technician.
b. Unsatisfactory Performance Evaluation
Plaintiff argues that Adams discriminated against him by giving him a lower performance evaluation in April 1996 than the female employees in the Fee Basis Department. Plaintiff argues that his lower rating prohibited him from getting awards which the female employees received. (Gilliam Dep. at 110-11, 114, 119.) To establish a prima facie case of gender discrimination, Plaintiff must show that (1) he is a member of a protected class; (2) he was performing satisfactorily; (3) he suffered an adverse employment action; and (4) similarly situated employees outside the protected class received more favorable treatment. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Defendant argues that Plaintiff cannot show a prima facie case of gender discrimination based upon his April 1996 performance evaluation because unsatisfactory performance evaluations do not constitute "adverse employment actions" under Title VII jurisprudence, citing Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981), Moody v. Pinehurst Nursing Center, Inc., No. 1:97CV01354, 1999 WL 1939251, *5 (M.D.N.C. Mar. 18, 1999) (Beaty, J.) (unpublished opinion), and Vester v. Henderson, 178 F. Supp.2d 594, 596-97 (M.D.N.C. 2001) (Osteen, J.), aff'd No. 02-1154, 2002 WL 31476914 (4th Cir. Nov. 6, 2002) (unpublished opinion).
Defendant's argument has merit. The Fourth Circuit has defined "adverse employment actions" as "ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating." Page, 645 F.2d at 233. Title VII does not reach "interlocutory or mediate decisions having no immediate effect upon employment conditions." Id. Nor was Title VII intended to remedy "trivial discomforts endemic to employment." Boone v. Goldin, 178 F.3d 253, 256 (4th Cir. 1999).
In light of the foregoing authority, it is clear that the performance evaluation in question does not constitute an "adverse employment action" under Title Vii. Adams rated Plaintiff as "Fully Successful" and noted that Plaintiff "has the potential to become a very good employee within the fee basis unit and has demonstrated his willingness to learn." (Gilliam Dep. (Abridged), Exh. 7.) Plaintiff has not shown that this rating resulted in any adverse financial consequence to him. Plaintiff admits that his rating did not prevent him from getting a raise in pay from Adams on April 14, 1996. (Gilliam Dep. at 130.) Plaintiff further admits that despite only a "Fully Successful" rating, he won several awards during the time that he worked at the front desk under Cochrane's supervision. Id. at 108-09, 122.
The Court also notes that statistical evidence compiled by the ABI indicates that the other male employee in the Fee Basis Department was rated "Highly Successful," and at least five female employees in that department were, like Plaintiff, rated "Fully Successful." (Def.'s Br., Exh. D-3 at 3.) In that regard, it appears that Plaintiff cannot show element four of the prima facie case, that similarly situated female employees were treated more favorably.
The Court also notes that this claim is untimely. Plaintiff received this performance evaluation on April 15, 1996 but he did not file his EEO complaint until November 12, 1996. Plaintiff was required under 29 C.F.R. § 1614.105 (a)(1) to file an EEO complaint within 45 days of receiving the evaluation.
For all the foregoing reasons, the Court finds that Plaintiff has not made a sufficient factual showing to support a prima facie case of gender discrimination based on his 1996 performance evaluation.
c. Denial of Overtime Opportunities
Plaintiff alleges that Adams discriminated against him by denying his requests for overtime while granting similar requests from his female coworkers. (Gilliam Dep. at 134.) At the outset, the Court notes that Plaintiffs allegation that Adams denied him overtime opportunities would probably constitute an "adverse employment action" under Title VII.Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir. 2002) (denials of overtime held to be "adverse employment actions" where they "`deprived [the employee] of compensation which he otherwise would have earned. . . .'"); Harris v. General Motors Powertrain, No. 98-1394, 1999 WL 7865, *3 (4th Cir. Jan. 11, 1999) (unpublished opinion) (assuming without discussion that employer's denial of overtime opportunities constituted "adverse employment action").
However, Plaintiffs evidence fails to show element four of the prima facie case, that similarly situated females were treated more favorably. Plaintiff concedes that the reason the other male employee in the Fee Basis Department, Mark Wohlberg, did not work overtime is because he needed to pick up his children after work and never requested overtime. (Gilliam Dep. at 135.) Furthermore, Plaintiff admits that Adams gave coworker Debbie Stone overtime preference because Stone was a "single parent" who was not receiving child support and was in financial need of the overtime. Id. at 118, 134. The status of being a "single parent" or "in financial need" is not peculiar to the female gender. Therefore, Adams' preference in granting overtime to Debbie Stone was not gender-based. Accordingly, it cannot be made to appear on this record that similarly situated females were treated more favorably than males in the apportionment of overtime.
d. Assignment to the Front Desk
Plaintiff alleges that he was assigned to work at the front desk more than his female coworkers in the Fee Basis Department because of his gender. Defendant maintains that Plaintiff cannot show element four of the prima facie case, because the evidence shows that all Fee Basis Department employees, both male and female, were assigned to work at the desk.
The Court agrees that Plaintiff cannot show a prima facie case of gender discrimination based on assignment to the front desk, but for a different reason than Defendant advances. Quite simply, assignment to an unwanted job duty without financial repercussions is not an "adverse employment action." Crady v. Liberty Nat'l Bank Trust Co., 993 F.2d 132, 136 (7th Cir. 1993) (the alleged adverse employment actions must be a "materially adverse change in the terms and conditions of employment [and] must be more disruptive than a mere inconvenience or an alteration of job responsibilities.") Plaintiff has failed to show that there were any financial consequences to him from filling in at the front desk, and as such, cannot establish a prima facie case of gender discrimination based on assignment to the front desk.
As Plaintiff has failed to make a factual showing sufficient to establish a prima facie case of gender discrimination, the Court recommends that his gender discrimination claims be dismissed.
3. Plaintiffs Hostile Sexual Working Environment Claim
Plaintiff alleges that throughout his employment in the Fee Basis Department under Adams' supervision, he was "constantly" subjected to a hostile sexual working environment. (Compl. ¶ 21.) Defendant argues that Plaintiffs sexual harassment claim should fail for three reasons: (I) Plaintiff has failed to show that the conduct in question was `because of' Plaintiffs gender; (2) the conduct alleged does not rise to the level of "severe and pervasive" as required by Title VII; and (3) Defendant can successfully assert the " Faragher/Ellerth" affirmative defense. The Court finds merit to Defendant's second argument and therefore does not reach the remaining arguments.
To prevail in a hostile sexual working environment claim under Title VII, Plaintiff must show that (1) the conduct in question was unwelcome; (2) the harassment was based on sex; (3) the harassment was sufficiently severe and pervasive to alter Plaintiffs conditions of employment and to create an abusive working environment; and (4) some basis exists for imputing liability to the employer. Swentek v. USAir, Inc., 830 F.2d 552, 557 (4th Cir. 1987). In evaluating the "severe and pervasive" standard, the Fourth Circuit has emphasized the following:
Not all sexual harassment that is directed at an individual because of his or her sex is actionable. . . . Title VII was not designed to create a federal remedy for all offensive language and conduct in the workplace. . . . The concept of sexual harassment is designed to protect [employees] from the kind of . . . attentions that can make the workplace hehish . . .Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 772-73 (4th Cir. 1997) (internal citations and quotation marks omitted). The Court must examine 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." Harris v. Forklife Sys., Inc., 510 U.S. 17, 23 (1993).
Under the totality of the circumstances, the conduct Plaintiff alleges does not rise to the level of "severe and pervasive" harassment, as those terms are defined under Title VII. The comments and jokes Plaintiff alleges were made by Adams and other female coworkers were undoubtedly tasteless and crude. However, the authorities are clear that Title VII is not designed to "purge the workplace of vulgarity" and that "vulgar banter tinged with sexual innuendo" does not establish an actionable Title VII sexual harassment claim. Hartsell, 123 F.3d at 772; Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430-31 (7th Cir. 1995).
Similarly, the visual materials about which Plaintiff complains, including the pictures of shirtless men, the sign containing the statement about the "woman who knows what's going on," the g-string underwear and the "Peter Meter," are mildly offensive and inappropriate in a work setting. However, materials significantly more graphic and offensive have been found not actionable. Duncan v. GMC, 300 F.3d 928, 931-36 (8th Cir.), reh'g reh'g en banc denied, No. 02-1411 (Nov. 15, 2002), pet. for cert. filed, No. 02-1201, 71 U.S.L.W. 3552 (Feb. 13, 2003) (finding conduct not actionable where plaintiffs supervisor used a screen saver with a picture of a naked woman, showed plaintiff a child's pacifier shaped like a penis, had a plant pot in his office shaped like a man with a hole in his pants where the cactus protruded, and put up a poster on the office bulletin board portraying plaintiff as the president and CEO of the "Man Hater's Club of America"); Dwyer v. Smith, 867 F.2d 184, 187-88 (4th Cir. 1989) (affirming directed verdict for employer in Title VII case despite evidence that female police officer was subjected to pornographic material in her work mailbox).
The Court further notes that the physical conduct Plaintiff alleges, including teasing about his nipples, attempts to unbutton his shirt to pull his chest hair and snapping of his suspenders, does not rise to the level of overt sexual propositions or sexual touching. Adusumilli v. City of Chicago, 164 F.3d 353, 357, 361-62 (7th Cir. 1998) (holding conduct insufficient to support hostile sexual work environment claim where employee teased plaintiff, made sexual jokes aimed at her, and touched her arm, fingers or buttocks on four occasions); Hopkins v. Baltimore Gas Elec. Co., 77 F.3d 745, 753-54 (4th Cir. 1996) (affirming summary judgment for employer where plaintiff alleged his male supervisor intentionally bumped into him, positioned a magnifying glass over his crotch, flipped his tie over to see its label, gave him a congratulatory kiss at plaintiffs wedding, and stared at him in the restroom); Harris v. Clyburn, No. 94-1009, 1995 WL 56634, *3 (4th Cir. Feb. 3, 1995) (unpublished opinion) (affirming summary judgment for employer where employee's male superior occasionally tickled her in the hallway).
As Plaintiff has failed to make a sufficient factual showing that the alleged harassment was "severe and pervasive," the Court recommends that Plaintiff's sexual harassment claim be dismissed.
4. Plaintiffs Retaliation Claim
Plaintiff alleges that immediately after he filed an EEO complaint against Defendant, he was subjected to retaliation in the form of isolation and "sabotage." (Gilliam Dep. at 91-103, 142-43.) Plaintiff alleges that the following acts constitute retaliation: (1) verbal counseling for participation in the misconduct that forms the basis of his sexual harassment claim; (2) transfer to the Prosthetics Department on the seventh floor; (3) isolation and shunning by his former coworkers in the Fee Basis Department; (4) his former coworkers' failure to forward telephone messages to him; (5) a disagreement with a coworker regarding authorizations for veterans' medical care; (6) a performance evaluation given by his supervisor, Jim Nelson; and (7) intolerable working conditions that lead to a constructive discharge. Defendant argues that Plaintiff cannot show a prima facie case of retaliation, because the first six asserted acts of retaliation do not constitute "adverse employment actions," and Plaintiff cannot establish a constructive discharge under the facts of this case.
The Court finds merit to Defendant's argument. To establish a prima facie case of retaliation under Title VII, Plaintiff must show that (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) there is a causal connection between his protected activity and the adverse employment action. Hopkins, 77 F.3d at 754. In this case, Plaintiff has failed to show that he suffered any "adverse employment actions" in retaliation for filing his EEO complaint. Plaintiffs verbal counseling that he received based on the ABI's conclusion that he actively participated in the sexual misconduct in the Fee Basis Department, is not an "adverse employment action." Plaintiffs terms and conditions of employment did not change as a result of this counseling — in fact, the counseling was not even placed in Plaintiffs employment file. (Gilliam Dep. at 142.) Similarly, Plaintiffs transfer to the Prosthetics Department is not an "adverse employment action," as there was no effect on Plaintiffs pay, title, or job duties. Boone, 178 F.3d at 255-56 (reassignment not an adverse employment action where it had no "`significant detrimental effect'" on plaintiff, such as a "`decrease in pay or benefits, loss of job title or supervisory responsibility, or reduced opportunities for promotion.'") (citations omitted).
For much the same reason, isolation and shunning by coworkers is not an "adverse employment action" where the behavior does not have an impact on Plaintiffs pay, benefits or other terms of employment. There is evidence in record that employees were business-like in their dealings with Plaintiff, but were afraid to have any personal interaction with him and be further accused of perpetuating a sexually hostile working environment. (Adams 1997 Aff. at 14-16.)
While there is evidence that Collins and Adams originally instructed some of Plaintiffs former coworkers not to have any contact with Plaintiff, there is also evidence that Collins and Adams realized that they had made a mistake and clarified that the coworkers were not to discuss Plaintiffs EEO complaint with him. (Def.'s Br., Exh. D-1 at 6.)
The Court also finds that the alleged failure of Plaintiffs coworkers to forward messages from veterans to Plaintiff and Plaintiffs disagreement with coworker Winslow over the proper procedure for authorizing veterans' medical care are not "adverse employment actions," as Plaintiff has not made any showing that these incidents impacted the terms and conditions of his employment in any material way. Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985) ("`An employee may not be unreasonably sensitive to his working environment.' . . . Every job has its frustrations, challenges and disappointments; these inhere in the nature of work. . . . [An employee] is not . . . guaranteed a working environment free of stress.") Finally, as discussed above, a "Fully Successful" performance evaluation given to Plaintiff by Nelson is not an "adverse employment action," even if Nelson was three months late in giving it to Plaintiff, where there was no financial consequence to Plaintiff.
The Court also notes that Nelson was apparently willing to change two scores from "Fully Successful" to "Highly Successful" in an attempt to accommodate Plaintiff, but that Plaintiff still refused to sign the evaluation. (Gilliam Dep. at 127-28; Gilliam Dep. (Abridged), Exh. 8.)
Plaintiff also alleges that all of the above-listed retaliatory conduct created an intolerable work environment, and that he was left with no choice but to resign, i.e., he was "constructively discharged." A constructive discharge occurs when "an employer deliberately makes an employee's working conditions intolerable and thereby forces him to quit his job." Bristow, 770 F.2d at 1255) (internal quotations and citations omitted). The intolerability of these working conditions must be assessed by the "objective standard of whether a reasonable person in the employee's position would have felt compelled to resign." Id. (internal quotations and citations omitted).
Here, Plaintiff has not presented any evidence to establish that his working conditions were objectively so intolerable that a reasonable person would have felt compelled to resign. Plaintiff does not allege that he was demoted or stripped of his job title, benefits or responsibilities. In addition, he received a performance evaluation at the same rating as two prior evaluations. Rather, Plaintiffs allegations reflect merely the "frustrations, challenges and disappointments" inherent in any job. Bristow, 770 F.2d at 1255. Further, the Court notes that Plaintiff submitted a letter of resignation to his supervisor on November 5, 1997 in which he expressly stated his intention to remain an employee for approximately eight more weeks. (Gilliam Dep. at 143-44.) In fact, the evidence shows that Plaintiff even remained an employee for a few extra days beyond his stated resignation date so that his departure would coincide with the end of the pay period. Id. at 150-51. This behavior is fundamentally at odds with someone who finds his working conditions so intolerable that he feels compelled to resign.
As Plaintiff has failed to make a factual showing sufficient to establish a prima facie case of retaliation, the Court recommends that Plaintiffs retaliation claim be dismissed.
B. Defendant's Motion to Strike
Defendant has moved to strike the last four pages of Exhibit A and 166 pages of Exhibit D, both attached to Plaintiffs Brief in Opposition to Defendant's Motion for Summary Judgment. Defendant asserts that the challenged pages of Exhibit A constitute "extraneous matter" attached to the affidavit of Bruce Bryant and contain inadmissible hearsay. In regard to Exhibit D, Defendant argues that Local Rule 7.1(d) prohibits parties from attaching voluminous, non-essential materials to filings with the Court. Defendant asserts that since 166 pages of Exhibit D, a 187-page deposition, are not specifically cited by Plaintiff in his brief in opposition to Defendant's summary judgment motion, these "extraneous" pages are non-essential, violate Rule 7.1(d) and should be stricken.
The Court has reviewed Defendant's motion and both of the challenged exhibits. The Court does not find any authenticity or hearsay problems in the last four pages of Exhibit A, nor does it find that the challenged pages of Exhibit D are so voluminous and non-essential as to violate Local Rule 7.1(d).
IV. Conclusion
For reasons set forth above, IT IS RECOMMENDED that Defendant's motion for summary judgment (Pleading No. 13) be granted as to all claims, and that this case be dismissed with prejudice. IT IS ORDERED that Defendant's motion to strike (Pleading No. 19) is DENIED.
Further, in view of the recommendations herein, which would have the effect of terminating this action, IT IS ORDERED that this action is removed from the April 7, 2003 trial calendar and the parties shall at this time stand down from trial preparation.