Summary
granting summary judgment for the defendant where it promptly investigated plaintiff's allegations but only issued a warning to defendant because it concluded there was no corroborating evidence
Summary of this case from Blackwell v. Heatec, Inc.Opinion
Case No. C2-97-956
October 31, 2002
OPINION AND ORDER
Plaintiff asserts that she was subjected to sexual harassment in her employment in violation of Title VII of the Civil Rights Act of 1964. At plaintiffs request, the Court temporarily stayed further proceedings in this case in April 2001. The Court now reopens this case to rule on defendant's renewed motion for summary judgment (Doc. 79). For the reasons that follow the Court grants defendant's summary judgment motion.
I. Facts
Plaintiff is an individual citizen of the State of Ohio. She is a female. Defendant is a corporation licenced to do business in Ohio. Defendant operates enormous retail stores.
In July and August 1996, plaintiff worked as an hourly employee for defendant in one of defendant's stores in Columbus, Ohio. Plaintiff asserts that during that time, she was sexually harassed while at work by a male co-worker, Brad Smith. Plaintiff alleges that Smith made a series of sexually explicit and offensive remarks to her when the two were at defendant's store.
In her memorandum in opposition to defendant's summary judgment motion, plaintiff refers to the following testimony from plaintiffs deposition as evidence of harassment:
A: I was at the service desk, and he [Brad Smith] came in. I remember it was about 3.40. He said hi, and winked at me, and I blew it off.
Nelson Dep. at 68.
Q: Did Brad come out alone?
A: Yes.
Q: Did the two of you have a conversation?
A: No. I was smoking and he was eating. I remember he was telling me about his kids, then we were quiet for a moment, and he asked me a question. He said, may I ask you a question? And I said, sure. And he just looked at me in a weird way, and he said, do you like being eaten out?
Nelson Dep. at 70.
A: It was when he returned to work at his scheduled time, I believe 2:00, 2:30. I was at the service desk, and he walked by and said, hi baby, and then I seen him at lunch.
Nelson Dep. at 72.
Q: Airight. Did you see Brad again on Saturday at any point?
A: Yes. Rita went back to work. I went to go — I was parked right by where he was sitting on the side — to get another pack of cigarettes — I was walking back, he was getting up to leave, so I sat on the bench.
Q: Is that the same bench he had been on?
A: I was going to smoke a cigarette, and he turned and looked around and looked at me. He says, I bet you that your pussy is shaved, that, you look like a girl — that you have it like that.
Nelson Dep. at 79.
Q: Facing you?
A: Yes, I ignored him. And I was finishing my cigarette. He asked me what position I liked — liked best, missionary or doggy style. I told him to leave me alone.
Nelson Dep. at 89.
Q: When he came by the service desk?
A: Yes.
Q: Did he say anything to you at that time.
A: He said, Hi, baby.
Nelson Dep. at 101.
Q: Did he say anything to you, make any comments to you, or touch you in any way, gesture to you, in any way that you felt was offensive or harassing?
A: He was making jokes. Sexually explicit jokes.
Q: Just to you?
A: I was the only one there.
Q: I want you to tell me exactly what he said.
A: I don't remember the exact jokes. I mean, it involved positions. And I told him I don't want to hear about that anymore.
Nelson Dep. at 102-03.
Q: What did he say or do?
A: I bent over to get the bin to hand it to him and I was wearing black blue jeans. He said I had a nice ass when I bent over.
Nelson Dep. at 106.
Q: Is Hardware a different phone line from Lawn Garden?
A: Yes.
Q: Alright, the guy told you, "Yeah, baby, you can service me and my big dick." Right?
A: Yes.
Nelson Dep. at 117.
It is undisputed that plaintiff did not report these alleged incidents to any manager or supervisor at the store. Rather, the matter came to light when Brad Smith approached management at the store, fearing he was about to be accused of harassment.
Plaintiff maintains the store manager, Rhonda Roberts, expressed disbelief when she became aware of the alleged harassment:
A. Yes. She continued to say, are you sure you weren't asking for it? I can't believe he did anything like that.
Nelson Dep. at 136.
Defendant has a written policy prohibiting sexual harassment. It is undisputed that defendant's management immediately undertook an investigation upon being informed of plaintiffs allegations. Brad Smith was sent home, and plaintiff was interviewed. Plaintiff's co-workers were interviewed and written statements were taken. These statements indicate in general that Smith was known to talk and joke about sex, but that co-workers did not find it particularly offensive and did not corroborate plaintiff's contention that Smith's remarks were focused on her. Smith was also eventually interviewed. Smith was informed of the seriousness of the allegations and the potential consequences. Smith had not been accused of harassment before. It is undisputed that Smith did not touch or threaten plaintiff physically. Based on the investigation, defendant's management concluded that there was insufficient evidence to support plaintiff's allegations of harassment to warrant disciplinary action against Smith.
Having made this determination, defendant's management directed plaintiff to return to work. Plaintiff alleges that her supervisor, Chris Menapace, said the following in response to plaintiffs concerns about returning to work with Smith:
A: . . . And he said, tough shit, you're going to come to you're — you're going to come to work what you're scheduled. And I said, no, I don't feel safe. All I'm asking you is, if I can switch hours or go to a different Wal-Mart. And he said no, if I did not show up for work that I was going to be brought down to a cashier and my pay would drop. But he would not guarantee my safety and that he was not going to change my schedule. That was it.
Nelson Dep. at 140-41. Plaintiff did not return to work at defendant's store. Brad Smith was later fired for sexual harassment that took place after plaintiff left defendant's employment.
II. Summary Judgment
The standard governing summary judgment is set forth in Fed.R.Civ.P. 56(c), which provides:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Summary judgment will not lie if the dispute about a material fact is genuine; "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is appropriate, however, if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. Catrett, 477 U.S. 317, 322 (1986) see also Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).
When reviewing a summary judgment motion, the Court must draw all reasonable inferences in favor of the nonmoving party, and must refrain from making credibility determinations or weighing the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000). The Court disregards all evidence favorable to the moving party that the jury would not be not required to believe. Id. Stated otherwise, the Court must credit evidence favoring the nonmoving party as well as evidence favorable to the moving party that is uncontroverted or unimpeached, if it comes from disinterested witnesses. Id.
Reeves involved a motion judgment as a matter of law under Fed. R Civ. p. 50 rather than summary judgment under Fed.R.Civ.P. 56. Nonetheless standards applied to both kinds of motions are substantially the same. One notable difference is that in ruling on a motion for judgment as a matter of law, the Court, having heard the evidence at trial, views the entire record, Reeves, 530 U.S. at 150, whereas in ruling on a summary judgment motion, the non-moving party has the duty to point out those portions of the record upon which it relies in asserting a genuine issue of material fact, and the court need not comb the paper record for the benefit of the nonmoving party. In re Morris, 260 F.3d 654, 665 (6th Cir. 2001).
The Sixth Circuit Court of Appeals has recognized that Liberty Lobby, Celotex, and Matsushita have effected "a decided change in summary judgment practice." ushering in a "new era" in summary judgments. Street v. J.C. Bradford Co., 886 F.2d 1472, 1476 (6th Cir. 1989). The court in Street identified a number of important principles applicable in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479.
Additionally, in responding to a summary judgment motion, the nonmoving party "cannot rely on the hope that the trier of fact will disbelieve the movant' s denial of a disputed fact, but must `present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Id. (quoting Liberty Lobby, 477 U.S. at 257). The nonmoving party must adduce more than a scintilla of evidence to overcome the summary judgment motion. Id. It is not sufficient for the nonmoving party to merely "`show that there is some metaphysical doubt as to the material facts.'" Id. (quoting Matsushita, 475 U.S. at 586).
Moreover, "[t]he trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Id. at 1479-80. That is, the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact. In re Morris, 260 F.3d 654, 665 (6th Cir. 2001).
III. Title VII Liability
In support of its summary judgment motion, defendant argues that plaintiff cannot rely on a theory of quid pro quo sexual harassment to establish Title VII liability in the circumstances this case presents. Defendant also contends that plaintiff is unable to adduce evidence to satisfy two essential elements of her claim: (1) that the work environment was objectively and subjectively hostile and (2) that defendant failed to take prompt and appropriate corrective action. Before it addresses these arguments, the Court will first examine the law pertaining to claims of sexual harassment.
To establish a claim under Title VII for hostile work environment sexual harassment based on the conduct of a coworker, the plaintiff must demonstrate that (1) she is a member of a protected class, (2) she was subjected to unwelcome sexual harassment, (3) the harassment was based on her sex, (4) the harassment unreasonably interfered with plaintiff's work performance and created a hostile or offensive work environment that was severe and pervasive, and (5) the employer knew or should have known of the charged harassment and unreasonably failed to take prompt and appropriate corrective action. Fenton v. HiSAN, Inc., 174 F.3d 827, 829-30 (6th Cir. 1999); Blankenship v. Parke Care Ctrs., Inc., 123 F.3d 868, 872 (6th Cir. 1997). A hostile work environment occurs "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotations and citations omitted). Both an objective and a subjective test must be applied: the conduct must have been severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must subjectively regard that environment as having been abusive. Id. at 21-22. Isolated incidents, unless extremely serious, will not amount to discriminatory changes in the terms or conditions of employment. Morris v. Oldham County Fiscal Court, 201 F.3d 784, 790 (6th Cir. 2000). Appropriate factors for the court to consider when determining whether conduct is severe or pervasive enough to constitute a hostile work environment include:
1. the frequency of the discriminatory conduct;
2. the severity of the discriminatory conduct;
3. whether the discriminatory conduct is physically threatening or humiliating, or a mere offensive utterance;
4. whether the discriminatory conduct interferes with an employee's work performance; and
5. whether the plaintiff actually found the environment abusive.Id. at 21-22: see also Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000) (reciting factors from Harris). The Court has explained:
Title VII does not prohibit "genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex." Oncale, 523 U.S., at 81. A recurring point in these opinions is that "simple teasing," id., at 82, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the "terms and conditions of employment." These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a "general civility code." Id. . . . at 80. Properly applied, they will filter out complaints attacking "the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing." B. Lindemann D. Kaduc, Sexual Harassment in Employment Law, 175 (1992) (hereinafter Lindemann Kadue) (footnotes omitted). We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment, and the Courts of Appeals have heeded this view. See, e.g., Carrero v. New York City Housing Auth., 890 F.2d 569, 577-578 (C.A.2 1989); Moylan v. Manes County, 792 F.2d 746, 749-750 (C.A.8 1986); See also 1 Lindemann Grossman 805-807, n. 290 (collecting cases granting summary judgment for employers because the alleged harassment was not actionably severe or pervasive).Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
A. Quid Pro Quo
Defendant contends that the facts of this case fit within the quid pro quo theory of sexual harassment. In Title VII parlance, the term quid pro quo describes a case in which the employer may be held vicariously liable for the conduct of a supervisor who requests sexual favors from a subordinate employee in return for a beneficial employment action, or for refraining from an adverse employment action. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752-54 (1998) (examining the development of the quid pro quo theory in Title VII law). Defendant posits that because Brad Smith was not plaintiff's supervisor, the concept of quid pro quo does not apply.
Plaintiff argues that under Burlington, quid pro quo liability is established in this case. In essence, plaintiff's suggests that the quid pro quo harassment in this case occurred when plaintiffs supervisor demanded that she return to work with Brad Smith, and thereby subject herself to further harassment. Thus, she contends she faced further sexual harassment or the loss of her job.
Plaintiffs theory would require a significant extension of the quid pro quo theory. The tone of the Court's discussion of the concept in Burlington does not suggest such an expansion. If anything, the Court in Burlington disapproved of earlier appellate treatment of the quid pro quo rubric which had come to recognize it as a concrete Title VII rule of vicarious liability. The Court explained that the term was no more than a category or label "not controlling for purposes of establishing employer liability." 524 U.S. at 765 see id. at 754.
Furthermore, in one post- Burlington decision the United States Court of Appeals for the Sixth Circuit reaffirmed that the negligence standard of the Restatement (Second) of Agency § 219(2)(b) governs co-worker harassment cases. Fenton v. HiSAN, Inc., 174 F.3d 827, 829 (1999). Hence, a distinct standard already exists to analyze employer liability in cases of co-worker harassment. It would be incongruous to apply a standard created for supervisor harassment to such a case. In the absence of binding or highly persuasive authority supporting plaintiffs theory, the Court declines to extend the quid pro quo doctrine to apply to the circumstances this case presents, namely, where a supervisor demands that an employee return to work with a co-worker who has been accused of harassment.
Defendant denies that its supervisor made this demand. Its denial is irrelevant to summary judgment, however, as the Court views the facts in the light most favorable to plaintiff, and credits her assertion on this matter.
For these reasons, the Court holds that plaintiff does not state a claim under the quid pro quo doctrine.
B. Hostile Work Environment
Defendant maintains that it is entitled to summary judgment because plaintiff is unable to demonstrate that the work environment was objectively and subjectively hostile. In response, plaintiff provides the excerpts from her deposition quoted above. The Court will examine this evidence applying the factors set forth in Harris, although not in the order they are listed in that decision.
The alleged incidents varied in severity. The Court's examination is tempered by the Supreme Court's admonition that "the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing." Faragher, 524 U.S. at 788 (quoting B. Lindemann D. Kadue, Sexual Harassment in Employment Law, 175 (1992)). The incidents involving Brad Smith winking at plaintiff and saying, "hi" rank low on the scale of severity. The mere telling of sexual jokes, while far from laudatory, is not much more serious. Smith's alleged comment that plaintiff had a "nice ass" may be somewhat more serious, but cannot be fairly characterized as extremely severe.
The remaining incidents, however, entail comments that were sexual in subject matter, directed toward plaintiff specifically, and concerning Brad Smith's prurient curiosity about highly personal aspects of plaintiff's sexuality. As such these incidents cannot be deemed trivial. They are objectively offensive. Nonetheless, plaintiff describes only four such incidents. As such they are, relatively speaking, isolated remarks.
Closely tied to severity is the examination of whether the harassment was purely verbal or was physically threatening or humiliating. Here, Brad Smith's alleged harassment of plaintiff was purely verbal. There was no offensive physical contact or any physical threat. The most severe conduct apparently occurred outside the hearing of other employees, and therefore the circumstances to not suggest a high degree of humiliation.
Plaintiff does not indicate exactly how often the remarks were made. Nonetheless, the frequency can be roughly approximated by examining the number of alleged harassing comments against the duration of plaintiffs employment. Plaintiff worked for defendant for a period of less than two months. Four incidents of harassing remarks over as two-moth period is not so frequent as to render the harassment extreme in nature.
Plaintiff has not drawn the Court's attention to any evidence showing that Brad Smith's conduct interfered significantly with plaintiffs ability to do her job. Lastly, plaintiff testified that the found Brad Smith's conduct offensive. Nelson Dep. at 119. in summary judgment the Court views her testimony on this matter as truthful.
Examining all of the alleged incidents together in the light most favorable to plaintiff, and applying all of the above factors, the Court concludes that as a matter of law Brad Smith's conduct was not so severe as to have created a pervasively hostile work environment changing the terms of plaintiff's employment. The basis for the Court's conclusion includes the fact that most of plaintiff's allegations fall within the category of conduct which Title VII does not prohibit, namely, jokes, teasing and flirtation. Only three, or possibly four, of the alleged incidents were at all serious. These relatively isolated incidents do not give rise to an actionable hostile work environment. Defendant is therefore entitled to summary judgment in its favor on plaintiffs Title VII claim.
C. Prompt and Appropriate Corrective Action
Although the above conclusion is dispositive of plaintiffs Title VII claim, the Court will nevertheless examine defendant's remaining argument as an alternative basis for summary judgment. Defendant argues that plaintiffs Title VII claim fails because defendant took prompt and appropriate corrective action in response to the report of alleged harassment. As the Court indicated above, the standard for examining an employer's conduct in connection with co-worker harassment is that of reasonableness. Fenton v. HiSAN, Inc., 174 F.3d 827, 829 (1999). Thus, "when an employer responds to charges of coworker sexual harassment, the employer can be liable only if its response manifests indifference or unreasonableness in light of the facts the employer knew or should have known." Blankenship v. Parke Care Centers, Inc., 123 F.3d 868, 872-73 (6th Cir. 1997), cert. denied, 522 U.S. 1110 (1998).
Defendant stresses that it was the alleged harasser, Brad Smith, who came forward to management concerning plaintiffs allegations. The Court finds, however, that in the circumstances this case presents, this fact is not in any way dispositive of plaintiffs Title VII claim.
Most of the facts concerning defendant's response are uncontroverted. Defendant's managers immediately took action upon being informed of the alleged harassment. They sent Brad Smith home. They instituted an investigation of plaintiff's allegations. They interviewed plaintiff. Brad Smith and other co-workers. The serious alleged instances of harassment apparently occurred outside the bearing of other employees, and plaintiffs co-workers were therefore unable to corroborate her allegations. It was therefore plaintiffs word against that of Brad Smith. Up to that point, no other employee had accused Brad Smith of harassment.
Given the lack of corroboration, defendant's managers believed there was insufficient evidence to warrant disciplinary action against Brad Smith. Nonetheless, defendant's managers warned Brad Smith of the seriousness of plaintiffs allegations.
Haven taken these steps, defendant then expected plaintiff to return to work on a schedule during which Brad Smith would also be working in the store. Plaintiff declined to return to work.
Even when these facts are viewed in the light most favorable to plaintiff, the Court finds that defendant's actions were immediate and reasonable in light of the totality of the circumstances. in carrying out its investigation, defendant was acting as a fact-finder. Its investigation was reasonably thorough and prompt. Its determination that there was insufficient evidence to support plaintiff's allegations was not unreasonable given the lack of corroborating evidence. Moreover, despite its finding, defendant took the precautionary measure of warning Brad Smith.
That Brad Smith was later fired for sexual harassment does not alter the Court's conclusion, as it would he unfair to judge the reasonableness of an employer's fact-finding with the 20/20 vision of hindsight. Rather, it must be judged in light of the evidence that was available to the employer at the time of its decision.
In sum, the Court finds as a matter of law that defendant's conduct in response to plaintiffs allegations was reasonable given the circumstances. Defendant is entitled to summary judgment in its favor for this additional reason.
IV. State Law Claim
Plaintiff also asserts a state common law claim of intentional infliction of emotional distress.
Plaintiff asserts only federal subject matter as the basis for this Court's jurisdiction. Diversity of citizenship does not appear on the face of the complaint, and the Court will not simply assume facts not appearing in the pleading to support diversity. Having dismissed the claim under which plaintiff asserted federal subject matter jurisdiction, the Court declines to exercise supplemental jurisdiction over plaintiff's state law claim, and will dismiss plaintiffs state law claim without prejudice. 28 U.S.C. § 1367(c)(3).
V. Disposition
Based on the above, the Court GRANTS defendant's renewed motion for summary judgment (Doc. 29).
The Clerk shall REOPEN this case and then enter a final judgment in favor of defendant, and against plaintiff, dismissing plaintiffs Title VII claim with prejudice, and her state law claim of intentional infliction of emotional distress without prejudice.
The Clerk shall remove Doc. 29 from the Court's pending motions list.