Opinion
Civil Action No.: 99-1067-CB-S
January 30, 2001
ORDER
This matter comes before this Court on "Defendant's Motion For Summary Judgment" (Docs. 24, 25, and 26), "Plaintiff's Opposition To Defendant's Determination of Undisputed Fact" (Doc. 33), "Plaintiffs Response To Defendant's Motion For Summary of Judgment" (Doc. 34), "Plaintiffs Motion To Strike The Affidavit of Leroy Hill" (Doc. 35), "Plaintiff's Submission of Evidence In Opposition To Defendant's Motion For Summary Judgment" (Doc. 36), "Defendant Leroy Hill Coffee Company, Inc.'s Reply Brief In Support of Motion For Summary Judgment" (Doc. 37), and "Plaintiffs Supplement To Plaintiffs Response To Defendant's Motion For Summary Judgment" (Doc. 38). This Court finds and it is hereby ORDERED that "Plaintiffs Motion To Strike The Affidavit of Leroy Hill" is due to be DENIED and the "Defendant's Motion For Summary Judgment" is due to be DENIED in part as to Counts One and Two and GRANTED in part as to Counts Three and Four.
I. Factual Findings
Plaintiff, Ruby D. Henderson, ("Plaintiff"), was employed by the Defendant, Leroy Hill Coffee Company, ("Defendant" and "LHHC") Inc., from 1982 until 1999. As the owner of LHHC, Leroy Hill conducted the hiring of the Defendant's employees and supervised the Plaintiffs employment. At the time of her departure from the Defendant's employ, the Plaintiff held the position of Office Manager and earned $1,350 bi-weekly.
In January of 1999, several of the Plaintiffs relatives were either injured or killed in an automobile accident. See Henderson Dep. at 92-104. Plaintiff took time off from work to attend to funeral arrangements and other family responsibilities. Plaintiff claims that when she returned to work, Mr. Hill's attitude toward her had changed in that he was blunt, abrupt, bitter, and that he made some uncalled-for remarks i.e. "[h]e would snap at me at drop of a hat." See Henderson Dep. at 56, 104-06.
In the first week of February of 1999, the Plaintiff was again away from the office to tend to family matters. (Doc. 11 ¶¶ 13-14). When she returned to the office and contacted Mr. Hill "to make sure everything was running smoothly," he told her that her priorities were in the wrong place. Id. ¶ 15. Plaintiff contends that from that point on, Mr. Hill began treating her in a "hateful and rude manner" and that he would make comments to her regarding her "sorry-ness." Id. ¶ 16. Moreover, during a meeting that same month, the Plaintiff asserts that Mr. Hill "bombarded" her with criticism about splitting one week of vacation over multiple weeks and occasionally returning to work late during her lunch hour — accusing her of "abusing [her] authority."See Henderson Dep. at 56-58. However, the Plaintiff herself, admitted that there were times when she returned late from lunch, and although she stated that she knows of no other males who were counseled about taking long lunches, Mr. Hill counseled Beisel and Buckley for the same reason.See Hill Dep. at 159-62.
Plaintiff alleges that "[u]pon information and belief, similarly situated male employees were allowed to take time off from work to handle family emergencies and were not treated in this manner." Id. ¶ 17.
As such, the Plaintiffs claims are founded upon Mr. Hill's alleged treatment towards her, in that after her absence from work, he treated her differently because she was a woman. (Doc. 25 at 17). Plaintiff argues that "I felt like that in a way if I hadn't been a woman I wouldn't have been called on to help with my family. If it had been a man in my job, he probably wouldn't have been called on to go to Florida and help with two funerals." See Henderson Dep. at 73-74, 115. Due to these types of alleged incidents, the Plaintiff contends that the Defendant discriminated against her in regard to pay, because certain male employees, who supervised fewer employees and had less responsibilities, were paid between $1,400 and $2,500, while her final pay was only $1,350 bi-weekly Plaintiff thus claims that she was both treated differently as well as subject to pay disparity as compared to male employees with similar job responsibilities, due to her gender.
For example, the Plaintiff contends that the Defendant hired Travis Goodloe, Jr., as the "Chief Financial Officer," a position which although not previously titled as such, involved the Plaintiffs financial responsibilities, and was paid at least $80,000 a year. (Doc. 25 ¶ 21). Plaintiff also alleges that after the Plaintiff left, the Defendant hired John Lindsey, who after only four (4) months with the company, was promoted to office manager and assigned the Plaintiffs clerical duties and paid him $1,500 bi-weekly. Id. ¶ 22. Plaintiff further contends that after the Plaintiff left the Defendant's employ, Tim Wyers, a part-time computer programmer and technician who was paid $1,000 bi-weekly, was subsequently paid $2,000 bi-weekly and hired full time to work on the Defendant's computers. Id. ¶ 23.
On March 8, 1999, the Plaintiff resigned and worked out an eight (8) week notice with her resignation becoming effective on April 30, 1999.See Hill Dep. at 92-93 and Henderson Dep. at 122 and at Def.'s Ex. 1. On April 30, 1999, her resignation became effective, and now, she contends that she was constructively discharged due to a hostile working environment. Id. ¶ 18.
Plaintiff claims she was "forced" to resign because of constant harassment that she "could do no right" in that Mr. Hill snapped at her and would cut her off a lot. See Henderson Dep. at 55-56; and, Doc. 25 at 18.
II. Discussion A. Motion To Strike Affidavit Testimony of Leroy Hill
RULE 56(e) of the FEDERAL RULES OF CIVIL PROCEDURE requires that affidavits offered in support or opposition to summary judgment must be made on the basis of personal knowledge and set forth facts that would be admissible in evidence. See RULE 56(e). It is well settled that self-serving or conclusory affidavits, submitted by a nonmoving party in opposition to a motion for summary judgment, will not create an issue of fact for trial. See e.g., Earley v. Champion International Corp., 907 F.2d 1077, 1081 (11th Cir. 1990) (finding that conclusory, self-serving, or uncorroborated allegations in an affidavit could not create issue of fact sufficient to defeat well supported summary judgment); and The Lovable Co. v. Honeywell, Inc., 431 F.2d 668, 674 (5th Cir. 1970) (noting that an affidavit setting forth legal conclusions cannot be treated as factual support for a party's position on pending motion).
Additionally, a plaintiff cannot rely on suspicion or conjecture to prove that discrimination motivated an adverse employment action. See Walker v. NationsBank of Florida N.A., 53 F.3d 1548, 1558 (11th Cir. 1995).
Here, the Plaintiff avers that the Affidavit of Leroy Hill, her former employer, is due to be stricken under FEDERAL RULES OF EVIDENCE RULE 701. (Doc. 35). Plaintiff argues that Hill stated that he paid the position of Office Manger less than other positions because it did not require the same degree of specific skill as other department head positions and the market of eligible and qualified candidates are greater for this position. Id. Plaintiff contends that however, "[a]t no time does Mr. Hill state or describe the information he relies upon to base these opinions and [so,] as a result[,] those assertions should be struck" under RULE 701. Id.
RULE 701 governs opinion testimony by lay witnesses and provides that if a witness is not testifying as an expert, as is the case here for Mr. Hill, that:
the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.
Mr. Hill's Affidavit testimony is founded upon his inherent ability to give his opinion as the owner and employer of LHCC, about the range and levels of duties, skills, and various responsibilities required for the employee positions at issue in this case. As the former employer of the Plaintiff, Mr. Hill is also in the best position to disclose to this Court his thought processes used when making various hiring decisions, including those relating to the Plaintiff. Accordingly, his opinions, as to the respective qualifications of his employees for certain job positions, are based on his knowledge gained through the experience of being the Defendant's chief employer.
Thus, Mr. Hill's Affidavit survives a RULE 701 assessment because his testimony is rationally based on his perception of the hiring criteria that he himself applied to select his very own employees. It is this particularized knowledge which he has gleaned through years of selecting and hiring employees, by virtue of his position in LHCC, which is helpful to a clear understanding of determining the facts at issue in this action. See e.g., Tidwell-Williams v. Northwest Georgia Health System, Inc., 1998 WL 1674745 (N.D. Ga. 1998). As such, this Court finds and it is hereby ORDERED that Plaintiffs motion to strike is due to be DENIED.
B. Motion For Summary Judgment 1. Standard of Review
The standard of review on a motion for summary judgment, under RULE 56(c) of the FEDERAL RULES OF CIVIL PROCEDURE, provides that summary judgment should be granted only if "there is no issue as to any material fact and the moving party is entitled to judgment as a matter of law." The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file that there are no genuine issues of material fact that should be decided at trial." See Clark v. Coats Clark, Inc. 929 F.2d 604, 608 (11th Cir. 1991). However, once the moving party has satisfied its burden, then the burden shifts to the non-moving party to show the existence of a genuine issue of material fact. Id. Notably, the evidence must be viewed in a light most favorable to the non-moving party and all inferences will be drawn in the non-moving party's favor. See Matsushita Electric Industrial Co. v, Zenith Radio Corp., 475 U.S. 574, 587 (1986); and, Adickes v. S.H. Kress Co. 398 U.S. 144, 157-59 (1970).
In so doing, the non-moving party may not rest on the pleadings alone. See Celotex at 324. Rather, the non-moving party must designate "specific facts" and employ affidavits, or by the "depositions, answers to interrogatories, and admissions on file," show that there is a genuine issue for trial. See id; Hoffman v. Allied Corp., 912 F.2d 1379, 1382 (11th Cir. 1990); and, Weiss v. School Board of Hillsborough County, 141 F.3d 990, 994 (11th Cir. 1998).
If the non-moving party fails to make "a sufficient showing on an essential element of its case with respect to which she has the burden of proof," the moving party is entitled to summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Otherwise stated, the non-movant must "demonstrate that there is indeed a material issue of fact that precludes summary judgment." See Clark v. Coats Clark, 929 F.2d at 608. "A mere `scintilla' of evidence supporting the [non-moving] party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." See Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). Still, the function of the court is not to "weigh the evidence and determine the truth of the matter but to determine whether there is an issue for trial." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
2. Application
Plaintiff brings this action under the Fair Labor Standards Act ("Equal Pay Act"), 29 U.S.C. § 201 et seq., and Title VII, for disparate pay violations as well as for hostile environment harassment and constructive discharge under Title VII. Federal question jurisdiction exists under 28 U.S.C. § 1331 and 1434(4).
Plaintiff has exhausted her administrative remedies by filing a timely charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), charging sex discrimination and violations of the Equal Pay Act and in turn, received her Right To Sue letter, for which Plaintiff brings the present case alleging the four (4) counts discussed herein.
a. Counts One And Two: Disparate Pay Under The Equal Pay Act And Title VII
Plaintiff, in Count One, claims that since 1982, the Defendant has repeatedly and willfully violated Section 6(d) of the Equal Pay Act by discriminating between employees on the basis of sex, by paying wages and benefits to the Plaintiff at a rate less than those at which it pays wages to male employees for equal work, on jobs the performance of which require equal skill, effort, and responsibility, and which are performed under similar working conditions. (Doc. 11 ¶ 27). Moreover, in Count Two, the Plaintiff argues that the Defendant's actions violate Title VII for disparate pay because the Defendant paid her less wages than male employees, with the intent to discriminate against her because she is female, and that the Defendant's actions were done with reckless indifference to the Plaintiffs federally protected rights. (Doc. 11 ¶¶ 28-33). Plaintiff claims that the Defendant has a policy and practice of paying all its female employees less than male employees.
Plaintiff contends that as Office Manager, she should have been paid as much or more than every male employee in the Defendant's employ, other than Mr. Hill and Beisel (Internal Auditor). (Doc. 25 at 3). In contrast, the Defendant contends that each of the Plaintiffs claims should be dismissed because there are no genuine issues of material fact as the Plaintiff cannot make out a prima facie case of disparate pay discrimination under either Title VII or the Equal Pay Act. Defendant adds that even if the Plaintiff could establish a prima facie case, the challenged pay differentials had nothing to do with gender as they were based on legitimate, non-discriminatory business concerns, there is no evidence that Mr. Hill's harassment of the Plaintiff was based on her gender, and that his alleged conduct was also not so extreme, severe, or pervasive to reach the level of a Title VII violation.
In support of its motion, Defendant relies on pleadings in the file, the Defendant's Response and Objections to Plaintiffs First Discovery Request (Ex. A), the Affidavit of Leroy Hill (Ex. B), excerpts from the Deposition of Ruby Diane Henderson (Ex. C), excerpts from the Deposition of Leroy Hill (Ex. D), and excerpts from Vols. I and III of the Deposition of Travis Goodloe (Exs. E and F). (Doc. 24 at 1).
To establish a prima facie case under the Equal Pay Act, the Plaintiff must show that her employer pays different wages to employees of opposite sexes for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. See Arrington v. Cobb County, 139 F.3d 865, 876 (11th Cir. 1998) (internal quotations omitted). Plaintiff must show that the Defendant paid her lower wages than male employees for equal work on jobs, the performance of which requires equal skill, effort, and responsibility and which are performed under similar working conditions.See Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974).
To establish a prima facie Title VII case, the Plaintiff must show she is a female and her job was substantially similar to higher paying jobs occupied by males. When claiming a Title VII violation, the plaintiff bears the burden of providing that her gender was a determining factors in the employer's decision to take action against her. See Walker v. NationsBank of Florida, N.A., 53 F.3d 1548, 1555 (11th Cir. 1995). The Eleventh Circuit recognizes three evidentiary routes the Plaintiff may travel to satisfy, the burden of proof under Title VII: I) direct evidence of intentional discrimination; 2) statistical evidence of discrimination; or, 3) by satisfying the four-part test of McDonnell v. Douglas Corp. v. Green, 411 U.S. 792 (1973). See Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989).
Under McDonnell Douglas and Burdine, the plaintiff bears the burden of establishing a prima facie case of sex/gender discrimination. See McDonnell Douglas, 411 U.S. at 802. Once the plaintiff establishes this, the burden shifts to the defendant who is then required to show a "legitimate nondiscriminatory reason" for the alleged discriminatory action. See Burdine v. Texas Dep't of Community Affairs, 450 U.S. 248, 254 (1981). The shifted burden to the defendant is "exceedingly light" as the defendant is only required to produce a nondiscriminatory reason for the alleged discriminatory actions and is not required to bear the burden of proof. Id. Once the defendant satisfies this burden of production, the plaintiff is then required to prove by a preponderance of evidence that the defendant employer possessed a discriminatory intent. See Burdine, 450 U.S. at 256.
Additionally, the Plaintiff bears the burden to establish a prima facie case of discrimination and then and only then, does the burden shift to the respondent to produce evidence the plaintiff was rejected, or someone else was preferred for legitimate non-discriminatory reasons.See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). The ultimate burden of showing intentional discrimination remains with the Plaintiff at all times, but the Plaintiff may do this by providing "by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but were a pretext for discrimination." See Burdine at 253. Additionally, the Eleventh Circuit has established the rule of law that, "a plaintiff can survive a motion for summary judgment . . . simply by presenting evidence sufficient to demonstrate a genuine issue of material fact as to the truth or falsity of the employer's legitimate, non-discriminatory reasons." See Combs v. Plantation Patterns, 106 F.3d 1519, 1530-32 (11th Cir. 1997); and, Evans v. McLain of Georgia, Inc., 131 F.3d 957, 965 (11th Cir. 1997).
With the foregoing criteria in mind, this Court finds that the Plaintiff has presented sufficient evidence to demonstrate a genuine issue of material fact for trial as to her pay disparity claims. In support of demonstrating a prima facie case under both Title VII and the Equal Pay Act, the Plaintiff has shown that sufficient questions exist between the responsibilities, skills, and duties entailed in her job and those of "comparable" male employees, to raise an issue for trial. Here, the Plaintiffs duties as Office Manager reveal similar duties to those of several other male employees, who were paid more than she was for the same work. Specifically, when viewing the facts in the light most favorable to the Plaintiff on a summary judgment review, Plaintiffs duties included: supervising the office staff; assisting in the preparation of the general ledger, profit, and loss statements; and other financial documents; assisting in the preparation of payroll and tax reports; supervising the checks and balances of company journals; supervising accounts payable functions; gathering materials for auditors; assisting in creating and maintaining 401k files; supervising and maintaining computer transmissions from twenty (20) branches to the extent a skilled technician was not necessary; assisting in vehicle record-keeping; assisting in computer installations and upgrades; some computer training; assisting in troubleshooting equipment problems; administering drug tests; and supervising and assisting with worker's compensation administration, insurance administration, garnishments, check processing, and office supply maintenance. (Doc. 25 at 4). These duties cover a wide spectrum of skills and responsibilities which could be similar to those performed by some "comparables" male employees with whom she was employed as department heads, as well as other current male supervisors with less responsibilities than herself. Plaintiff's duties do not appear instantly vastly different from the duties of any alleged comparator who is paid more that she was as Office Manager, as the Defendant claims. As such, because the contentions of the above-styled parties represent the pay disparity claims and grounds for assessing "comparables" so distinctly, these claims reveal a matter of significant factual dispute which merit further assessment at trial.
For example, first, as to CFO Goodloe, both the Plaintiff and Goodloe were considered their "department heads" and both reported directly to the president — reflecting similar responsibility. (Doc. 34 at 10). Testimony of other individuals show that the Plaintiff was responsible for all of the job duties listed by the Defendant for Goodloe. II (referencing testimony of Christime Carlisle, Kenneth E. Mathis, and Tim Wyers). Additionally, concerning the comparison with Coordinator for Branch Operations Kevin Callaghan, Callaghan, Plaintiff argues that "[t]o me Kevin and I had a lot of the same skills . . ." See Henderson Dep. at 195-99. Moreover, regarding a comparison with branch managers, Plaintiff also cites testimony by others claiming that the Plaintiffs duties required greater skill and ability than that of the branch managers. (Doc. 34 at 17). Also, in a comparison with Plant and Distribution Center Manager Dan Buckley, Callaghan testified that the Plaintiffs skills, responsibilities and duties were equal to those of Dan Buckley's. (Doc. 34 at 16). Further, the Plaintiff alleges that her replacement, John Lindsey, the current Office Manager, holds her identical job responsibilities and duties and yet was paid more. Plaintiff argues that it is also an error to compare her final salary after eighteen (18) years with the Defendant and the use of a company car, to that of Lindsey's — an employee who had just joined the company. (Doc. 34 at 6.) In light of the foregoing, there exists an extensive degree of factual dispute regarding the similarities and/or differences in job responsibilities between the Plaintiff and various male employees in "similar" or "comparable" positions and their respective pay, so that when viewing the facts in a light most favorable to the Plaintiff; the Plaintiff has presented evidence to demonstrate that genuine issues of material fact remain.
b. Counts Three And Four: Title VII Hostile Work Environment Sexual Harassment And Constructive Discharge
In Counts Three and Four, the Plaintiff contends that the Defendant violated Title VII, 42 U.S.C. § 2000e et seq., by engaging in actions that constitute hostile work environment sexual harassment and constructive discharge. Plaintiff bases her Title VII claims entirely upon Mr. Hill's change in attitude after the Plaintiffs leave of absence and subsequent return to work in February of 1999.
Neither of these claims are supported by competent evidence. Plaintiff has presented no supportive evidence for hostile environment or constructive discharge. Instead, the Plaintiff has only provided this Court with her own subjective speculation as to the rationale for Mr. Hill's critical treatment of her. Thus, even when viewing the evidence provided to this Court in the light most favorable to the Plaintiff; both claims are due to be dismissed and summary judgment granted.
1) Title VII Hostile Work Environment Sexual Harassment
Title VII prohibits discrimination based on gender. Sexual harassment is a form of sex discrimination prohibited by Title VII. There are two distinct actionable forms of sexual harassment: hostile work environment and quid pro quo. See Steele v. Offshore Shipbuilding Inc., 867 F.2d 1311 (11th Cir. 1989). In this case, the Plaintiff only asserts hostile work environment sexual harassment.
Harassment in the work place is proscribed by Title VII of the Civil Rights Act of 1964 which makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." See 42 U.S.C. § 2000e-2(a)(1). Plaintiff cannot prevail on her constructive discharge claim without first demonstrating that the Defendant's underlying actions violated Title VII and created a hostile work environment. See e.g, Blevins v. Heiling-Meyers Corp., 52 F. Supp.2d 1337, 1351 (M.D. Ala. 1998).
By stating "terms, conditions, or privileges of employment" the U.S. Supreme Court has noted that Congress intended "to strike at the entire spectrum of disparate treatment of men and women in employment" which includes requiring people to work in a hostile or abusive environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
Specifically, in order to establish a prima facie case for hostile work environment, the Plaintiff must show the following requisite elements: 1) she is a member of a protected class; 2) she was subjected to unwelcome harassment; 3) the harassment complained of must be based upon her gender; and, 4) the harassment complained of must have affected a condition, term or privilege of her employment in that it was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. See Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999); Cross v. State of Alabama, 49 F.3d 1490, 1504 (11th Cir. 1995); Robertson v. Alabama Dep't of Econ. And Comm. Affairs, 902 F. Supp. 1473 (M.D. Ala. 1995); and,Henson v. City of Dundee, 682 F.2d 897, 903-04 (11th Cir. 1982).
Moreover, where the Plaintiff seeks to hold the employer liable for the harassment, a fifth element is respondent superior — that the employer knew or should have known of the harassment in question and failed to take prompt remedial action. See Sparks v. Pilot Freight Carriers Inc., 830 F.2d 1554, 1557 (11th Cir. 1987).
In laying the foundation for her prima facie case, the Plaintiff readily establishes the first element because she is a member of the protected class of women. Additionally, regarding the second element of being subjected to unwelcome harassment, because this Court must view the facts in the light most favorable to the Plaintiff on a motion for summary judgment, it is presumed that the alleged harassment, statements, and conduct by Mr. Hill did occur. As such, the Plaintiff meets the second requisite element. However, the Plaintiff has failed to demonstrate the third and fourth required elements to establish a prima facie case — namely that the purported harassment was based on her gender and that said harassment affected the terms and conditions of her employment because it was so severe and pervasive as to create an abusive environment.
Regarding the third element, at the outset, gender harassment does not need to have clear sexual overtones and instead, any harassment or other unequal treatment of an employee or group of employees that would not have occurred but for the gender of the employee or employees may be a violation of the law. See e.g., Cross 49 F.3d at 1504. However, the Plaintiff must still demonstrate that the harassment complained of was based upon her gender. Here, the Plaintiff has failed to do so as the evidence provided regarding Mr. Hill's comments and/or criticism do not show any relation to her protected status as a woman. In fact, Mr. Hill's comments never directly refer to her status as a woman and the Plaintiff provides no examples of harassment which show that he made harassing comments to her, based on her gender.
Additionally, in Cronin v. United States Service Stations, Inc., 809 F. Supp. 922, 929 (M.D. Ala. 1992), the court relied upon Bell, to hold that a male supervisor's attempts to undermine the plaintiffs acts to institute new measures as manager and his threatening and bellicose comments to the plaintiff contributed to the hostile work environment created on the basis of sex. Also, Sims v. Montgomery County Comm'n, 766 F. Supp. 1052, 1073 (M.D. Ala. 1991) noted that "conduct of a nonsexual nature which, for example, ridicules women or treats them as inferior, can constitute prohibited sexual harassment."
Mr. Hill's comments, when taken as a whole, would not, according to a reasonable person, rise to the level of a hostile work environment for sexual harassment. Mr. Hill's criticism and comments appear to be focused on the Plaintiffs job performance only. Notably, the Plaintiff offers no evidence in support of her gender harassment claim, but instead, relies upon only her subjective interpretation of Mr. Hill's behavior and her personal speculation as to why he acted differently towards her. There is no evidence before this Court of any comments by Mr. Hill as to the Plaintiffs abilities as an employee, being affected or influenced, by her status as a woman. Plaintiff provides no statements or comments by Mr. Hill which contain any reference to her gender. It seems more likely to this Court, based on the facts presented by the Plaintiff, that any criticism or hostility, directed at the Plaintiff; was due to the employer's belief that she was abusing her employee position and company privileges — not due to her status as a woman. Thus, even when viewing the material facts in the light most favorable to Plaintiff; Mr. Hill's alleged harassment of the Plaintiff is not shown to be the result of the Plaintiffs gender and the Plaintiff has provided no evidence to suggest otherwise. See Henson, 682 F.2d at 904.
Also, the record does not indicate that male workers were not subject to similar incidents i.e., reprimands for late lunches or missing work. As a result, the Plaintiff was not subject to disadvantageous conditions which male workers were not. As there is no evidence before this Court which reveals any gender bias or comments which even mention anything about the Plaintiff's gender, the alleged facts could not lead a rationale trier of fact to conclude that the Plaintiff's harassment was related to her gender.
Moreover, as noted by the Eleventh Circuit, Title VII "`is not a shield against harsh treatment at the work place.' Personal animosity is not the equivalent of sex discrimination and is not proscribed by Title VII. The plaintiff cannot turn a personal feud into a sex discrimination case by accusation." See McCollum v. Bolger, 794 F.2d 602, 610 (11th Cir. 1986). The facts alleged by the Plaintiff, even when construed in a light most favorable to her, fail to establish gender harassment which was so severe and pervasive that it altered a term or condition of her employment. As such, the Plaintiff is unable to establish a prima facie case of hostile work environment sexual harassment under Title VII. Thus, Plaintiffs claim fails, as the totality of the circumstances do not indicate that the incidents were based upon the Plaintiff's gender as her claims for hostile work environment based on her gender are unsupported in the record.
Regarding the fourth element, the general standard for determining whether the alleged conduct creates a hostile or an abusive work environment is based upon the objective perspective of a reasonable person in the plaintiffs position, considering the totality of the circumstances. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). Several factors are considered in determining whether the harassment is objectively "hostile" or "abusive:" 1) the frequency of the discriminatory conduct; 2) the severity of the conduct; 3) whether the conduct is physically threatening or humiliation or merely offensive utterance; and, 4) whether it unreasonably interferes with the employees work performance. See e.g., Allen v. Tyson Foods, 121 F.3d 642, 647 (11th Cir. 1997); and, Scott v. Pizza Hut of America, 92 F. Supp.2d 1320, 1324 (M.D. Fla. 2000). The Plaintiff must come forward with evidence of gender abuse and harassment that is so "severe or pervasive" as to "alter the conditions of employment and create an abusive working environment" and "must be extreme to amount to a change in the terms and conditions of employment." See Henson, 682 F.2d at 904; and Edwards v. Wallace Community College, 49F.3d 1517, 1521 (11th Cir. 1995).
Here, the Plaintiffs evidence includes an enumeration of various comments made to her by Mr. Hill, which include caustic remarks and general hostile treatment by Mr. Hill, after she returned from emergency leave from work to attend to family matters in 1999. Plaintiff argues that she was subjected to harassment of a "pervasive nature" from Mr. Hill about her work, in that she was subjected to persistent remarks and conduct which were humiliating, offensive, and unfair. Plaintiff also claims that she had never seen Mr. Hill talk to any male as "hateful and hurtful." See Henderson Dep. at 73-74, 115. Plaintiffs claim focuses on the following incidents: Mr. Hill told her to "get her priorities straight" after returning from leave; he suggested she resign; he commented that her presence in Florida made no difference because her sister-in-law and niece died anyway; and, in response to apologies from the Plaintiff he would say "I accept your sorriness." See Plaintiff's Opp'n at 11. Moreover, the Plaintiff contends that other employees such as Ken Mathis, noticed the effects of this hostility as did other employees because they saw her leave a meeting with him or get off the phone with him in tears. See Plaintiffs Opp'n at 10-12. Plaintiff alleges that male employees were not treated this way when they had to take emergency leave. See Plaintiffs Opp'n at 12. These aforementioned statements and incidents consist of the sum total of the hostile acts that the Plaintiff can reference and provide to this Court to establish a hostile work environment claim for sexual harassment. The totality of these alleged acts and circumstances however, do not support such a claim.
Specifically, the totality of the harassment and evidence provided by the Plaintiff does not support a finding of an environment which is so hostile as to be so "severe or pervasive" as to "alter the conditions of employment and create an abusive working environment" to constitute a hostile work environment sexual harassment claim under Title VII. See Henson, 682 F.2d at 904. Even when viewing the facts in the light most favorable to the Plaintiff, at worst, Mr. Hill's alleged attitude and comments toward her, could constitute only those of an employer who, in the Plaintiffs mind, had unreasonable expectations. Simply because the Plaintiff may have been subjectively upset at the unusual and uncharacteristic criticism and commentary by Mr. Hill, this does not equate with a finding of conduct or behavior that is so severe or pervasive to alter the conditions of the Plaintiff's employment, because Mr. Hill's conduct would not be considered abusive by an objective reasonable person as required under Title VII. See Harris, 510 U.S. at 21. As noted by the U.S. Supreme Court, Title VII will not to be interpreted to become a "general civility code for the American workplace," and that "simple teasing, offhand comments, and isolated incidents" will not satisfy the severe and pervasive harassment requirement. See Oncale, 523 U.S. at 80. There is little or no evidence that Mr. Hill's behavior affected the Plaintiffs job performance. In fact, the reprimands the Plaintiff received appear to be due to her own actions.
Moreover, there is no evidence that Mr. Hill ever threatened the plaintiff's physical safety and Mr. Hill's behavior was not particularly humiliating. Mr. Hill's comments, even when viewed in the most scrutinized light possible for summary judgment, reflect comments more of a frustrated employer dissatisfied with an employee's job performance than those of an employer engaging in discrimination based upon the Plaintiff's gender.
For example, the Plaintiff was reprimanded for taking late lunches on repeated occasions because she took late lunches. Mr. Hill's behavior, however inconsiderate or abrupt, could not have affected the Plaintiff's punctuality.
Notably, under the totality of the circumstances, the comments and/or criticism from Mr. Hill do not appear to have been frequent (based on the few provided by the Plaintiff as the only comments he made); do not appear severe in content and/or nature; and, represent, at most, offensive criticism for abusing company privileges which do not seem to be able to unreasonably interfere with the Plaintiff's work performance. Indeed, the complained-of-comments are insufficiently severe to amount to a Title VII violation because the Plaintiffs complaints — of abrupt behavior, critical comments to get over her "sorriness," and to get her "priorities straight"--when viewed in the light most favorable to the Plaintiff; although boorish, stupid, critical, and inconsiderate, do not rise to the level required for a Title VII claim. Simply because the Plaintiff had her feelings hurt and felt that Mr. Hill treated her rudely, does not establish unreasonable interference with her employment. Thus, the Plaintiff's evidence amounts to more of an allegation that Mr. Hill treated her unfairly and unkindly. Title VII, however, is "not a federal `civility code.'" See Mendoza, 195 F.3d at 1245 (11th Cir. 1999). Plaintiffs evidence falls well short of that type of evidence needed to establish a hostile working environment. See generally id., at 1246-47.
In sum, based upon the evidence provided, it appears instead that Mr. Hill became critical of the Plaintiff because he believed, rightly or wrongly, that she was missing too much work and abusing her position. Even the Plaintiff herself testified that Mr. Hill probably believed she was abusing her privileges. See Henderson Dep. at 70. If anything, Mr. Hill's alleged comments to the Plaintiff reveal a frustrated employer trying to supervise an employee who is abusing her position in the company to the detriment of others. Plaintiffs claim that Mr. Hill harassed her because of her gender is mere speculation based solely upon her own subjective belief that she was treated differently because she was a woman, and thus, Mr. Hill's treatment towards her does not meet the threshold to establish a hostile work environment claim for sexual harassment.
Plaintiff has failed to establish that her gender was the underlying reason for the harassment she allegedly suffered. This Court's analysis focuses only on whether the Plaintiff; as the complaining employee, was targeted because of her gender and the Plaintiff has failed to demonstrate that she was. See Oncale, 523 U.S. at 80 (stating that "Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at `discriminat[ion] . . . because of . . . sex.'").
2) Count Four: Title VII Constructive Discharge
Defendant seeks summary judgment on Count Four, which asserts a claim for constructive discharge based on hostile work environment sexual harassment due to the Plaintiff's gender. "[W]hen an employee involuntarily resigns in order to escape intolerable and illegal employment requirements to which he or she is subjected to because of . . . sex . . . the employer has committed a constructive discharge in violation of Title VII." See Morgan v. Ford, 6 F.3d 750 (11th Cir. 1993). In order to demonstrate constructive discharge, the Plaintiff must show that her working conditions were so intolerable that a reasonable person in the same position would be compelled to resign. See Kilgore v. Thompson Brock Mgmt., 93 F.3d 752, 754 (11th Cir. 1996). Here, the Plaintiff has failed to meet that standard for the following reasons.
Although Title VII sexual harassment and constructive discharge are separate issues to be addressed separately, where a plaintiff is unable to support a hostile work environment claim, she is also unable to support a claim of constructive discharge. See ERNEST C. HADLEY GEORGE M. CHUZI, SEXUAL HARASSMENT: FEDERAL LAW Ch. 3, I.A. 8 (1997 ed.); and,Matthews v. City of Gulfport, 72 F. Supp.2d 1328, 1338 (M.D. Fla. 1999). Indeed, to prevail on her claim of constructive discharge, the Plaintiff must first show that the Defendant's underlying actions violated Title VII. See e.g., Blevins, 52 F. Supp. at 1351. A constructive discharge plaintiff "must demonstrate a greater severity or pervasiveness of harassment than the minimum required to prove a hostile working environment." See Landgraf v. USI Film Products, 968 F.2d 427, 430 (5th Cir. 1992), cert. granted in part, 507 U.S. 908 (1993), aff'd 511 U.S. 244 (1994). To succeed on this claim, the Plaintiff must prove that her working conditions "were so intolerable that a reasonable person in [her] position would be compelled to resign." See Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1317 (11th Cir. 1989); and Wardwell v. School Board of Palm Beach County Florida, 786 F.2d 1554, 1557 (11th Cir. 1986). Plaintiff must allege that the employer intentionally rendered the working conditions so intolerable, difficult or unpleasant that she was compelled to quit involuntarily because a reasonable person in her shoes would have felt compelled to resign. See Buckley v. Hospital Corp. of America, Inc., 758 F.2d 1525, 1530 (11th Cir. 1985);Garner v, Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. 1987); and, Poole v. Country Club of Columbus, Inc., 129 F.3d 551, 553 (11th Cir. 1997) (finding intolerable conditions where the employer displaced the plaintiff from her desk and computer, took away meaningful duties, et cetera). Additionally, the fact that an employee who claims constructive discharge, gives her employer several week's notice before resigning "strongly suggest that the conditions to which she allegedly [was] subjected were not intolerable." See Johnson v. Wal-Mart Stores, Inc., 987 F. Supp. 1376, 1394 (M.D. Ala. 1997).
However, discrimination in the form of unequal pay cannot, by itself; be sufficient to support a finding of constructive discharge. See Bourgue v. Powell Electrical Manufacturing Co., 617 F.2d 61, 65 (5th Cir. 1980).
Plaintiff argues that "[t]he conduct complained of in Poole was no more severe than the conduct complained of in the case at bar[;]" however, this Court cannot agree as here, the conduct never reached the same level as that in Poole where the plaintiff was stripped of her responsibilities, given a chair and no desk and isolated from other employees. (Doc. 34 at 28).
Here, the Plaintiff alleges that she was constructively discharged in violation of Title VII because Mr. Hill's conduct created a work environment which was so intolerable that a reasonable person could not have continued and so she was forced to quit. (Doc. 11 ¶ 43). Plaintiff contends that "[i]t was like he wanted me out and this was his way of pushing me out[,]" and that his harassment constituted snapping at her and cutting her off a lot and telling her to get her priorities straight in regards to her family. See Henderson Dep. at 107-108. Notably, however, it is uncontested that the Plaintiff also provided some eight (8) weeks' notice before her resignation became effective.
First, as already stated infra, the evidence provided by the Plaintiff does not support a finding of a hostile work environment sexual harassment. Namely, the conduct, criticism, and "hostile" treatment by Mr. Hill does not rise to the requisite level of being so severe or pervasive as to alter the conditions of employment and create an abusive working environment. The evidence cited by the Plaintiff shows conduct which is not pervasive enough to meet the threshold required for a showing of constructive discharge as the Plaintiff does not allege any facts that demonstrate a situation which is severe or pervasive. Indeed, even when viewing the facts in the light most favorable to the Plaintiff, she has neither demonstrated the level of severity or pervasiveness of harassment required to prove a hostile working environment nor proven that her working conditions were so intolerable that a reasonable person in her position would be compelled to resign.
Moreover, the fact that an employee who claims constructive discharge gives her employer many week's notice before resigning "strongly suggest that the conditions to which she allegedly [was] subjected were not intolerable." See Johnson, 987 F. Supp. at 1394. Regarding the Plaintiffs own eight (8) week notice before her resignation became effective, this fact is highly suggestive to demonstrate that the working conditions could not possibly have been so intolerable as the Plaintiff alleges. Indeed, if the conditions were so intolerable, a reasonable person in the Plaintiffs position, would logically not have subjected herself to them for an additional eight (8) weeks.
Further, the Eleventh Circuit has determined that unless an employer is given sufficient time to remedy the situation, a constructive discharge will generally not be found to have occurred. See e.g., Kilgore v. Thompson Brock Management, Inc., 93 F.3d 752, 754 (11th Cir. 1996);Underwood v. Northport Health Services, Inc., 57 F. Supp.2d 1289 (M.D. Ala. 1999); and, Mills v. Wex-Tex Indus., Inc., 991 F. Supp. 1370, 1381 (M.D. Ala. 1997). Plaintiff did not express her reasons for quitting in her letter of resignation — thus providing the Defendant with no opportunity to rectify any alleged discriminatory conduct. "Obviously an employer cannot be given sufficient time to remedy, for example, a hostile environment, if it is not provided notice of it." See Jones v. USA Petroleum Corp., 20 F. Supp.2d 1379, 1382 (S.D. Ga. 1998). An employee has the responsibility to act reasonably before choosing to resign, and then labeling that resignation as a constructive discharge.See Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. 1987). Part of acting reasonably is notifying the employer of improper behavior, and affording the employer the change and opportunity to correct it. Id. When the Plaintiff failed to report these alleged incidents of harassment to those who could remedy any problems, she did not act reasonably. Consequently, the Plaintiff has not shown that her resignation constituted a constructive discharge.
Finally, the Plaintiff has failed to assert anything but opinion, conjecture, and unsupported conclusions to buttress her allegations of constructive discharge. The facts enumerated by the Plaintiff are not so "intolerable" that a reasonable person standing in her shoes would have been compelled to resign. Although the Plaintiff may believe that she has been mistreated, there is little objective evidence of this, and to recover for constructive discharge, an employee plaintiff must claim more than mere disappointment with their job. See e.g., Morgan v. Ford, 6 F.3d 750, 755-56 (11th Cir. 1993).
In sum, the evidence offered by the Plaintiff does not support her hostile environment claim and so as such, her claim for constructive discharge also fails as a matter of law, because it cannot be said that the conditions of her employment were so intolerable that a reasonable person would have resigned. See Steele, 867 F.2d at 1317. As previously stated, the Plaintiff has presented no evidence that Mr. Hill's alleged treatment of her was based upon her gender or that it was so severe as to affect conditions of her employment. See Henson, 682 F.2d at 904. This Court can only draw one conclusion from the evidence presented and when viewing said evidence in the light most favorable to the Plaintiff: Mr. Hill became critical towards the Plaintiff because he believed, rightly or wrongly, that she was not fulfilling her duties as an employee in that she was abusing her position and missing too much work. Indeed, even the Plaintiff herself testified that Mr. Hill probably believed she was abusing her company privileges. See Henderson Dep. at 70. As such, the Plaintiff has merely provided unsupported speculation that Mr. Hill was critical of her because of her gender. Plaintiff may indeed have been subjectively upset at the uncharacteristic criticism by Mr. Hill, but this can not lead to a finding of liability for either hostile work environment sexual harassment or constructive discharge, because his conduct would not be considered so severe, pervasive, or extreme as to alter the conditions of the Plaintiff's employment to meet the Title VII reasonable person standard.
III. Conclusion
Thus, this Court finds and it is hereby ORDERED that "Plaintiffs Motion To Strike The Affidavit of Leroy Hill" is due to be DENIED, and the "Defendant's Motion For Summary Judgment" is due to be GRANTED in part and DENIED in part in that the Defendant's Motion is due to be DENIED as to the Plaintiff's pay disparity claims in Counts One and Two, and GRANTED as to the Plaintiff's hostile work environment sexual harassment and constructive discharge claims in Counts Three and Four.