Opinion
CIVIL NO. CCB-07-2738.
September 11, 2008
MEMORANDUM
Now pending before this court is a motion for summary judgment filed by defendants Maryland Environmental Service, the State of Maryland (collectively "MES"), and Diane Bauer ("Ms. Bauer) against plaintiff Christine Smith ("Ms. Smith"). Ms. Smith asserts several claims related to her employment with MES under Title VII of the Civil Rights Act of 1964 ("Title VII") and 42 U.S.C. § 1983. The issues in this case have been fully briefed and no hearing is necessary. For the reasons stated below, the motion for summary judgment will be granted.
The remaining defendant, Robert McIntyre, has been served but has not filed an answer in this case.
BACKGROUND
Ms. Smith began her employment with MES in July 2005, as an apprentice operator. Her immediate supervisor at MES was Ms. Bauer. The regional supervisor was Robert McIntyre ("Mr. McIntyre").
Ms. Smith reports the following incidents occurred during the course of her employment at MES. At some point in July 2005, Mr. McIntyre and Ms. Smith were working together at Elk Neck State Park when Mr. McIntyre rubbed Ms. Smith's shoulders, tried to kiss her neck, and suggested they engage in sexual relations. Ms. Smith reported this incident to Ms. Bauer later that day. (Pl.'s Opp. Mem. Attach. 1 at 44-46.) Also in July 2005, Mr. McIntyre went to a restaurant where he knew Ms. Smith would be dining, followed her out of the restaurant when she left, and later told her he was jealous after seeing her there with another man. ( Id. at 51-53.) In September 2005, Ms. Smith reported an incident to Ms. Bauer in which Mr. McIntyre arrived at her home uninvited. ( Id. at 54.) In November 2005, Ms. Smith was showing Ms. Bauer her scars from a gallbladder operation. Mr. McIntyre, who was present in the office, repeatedly asked Ms. Smith to show him her scars, at which time Ms. Bauer told Mr. McIntyre to stop, reminding him he was Ms. Smith's supervisor. ( Id. at 55-56.) In December 2005, Ms. Smith attended an MES holiday party at Ms. Bauer's residence. As Ms. Smith was leaving the party, and in view of Ms. Bauer, Mr. McIntyre tried to hug her and asked her to kiss him. ( Id. at 57-58.) Additionally, during the period July 2005 through February 2006, Mr. McIntyre repeatedly asked Ms. Smith to engage in sexual relations with him. Ms. Smith did not report these incidents to Ms. Bauer because she believed continuing to report Mr. McIntyre would be futile. ( Id. at 58-59.)
On February 7, 2006, Mr. McIntyre physically touched Ms. Smith, suggested that they engage in sexual relations, and exposed himself to her while at work. ( Id. at 66.) Ms. Smith reported the incident to Ms. Bauer two days later on February 9, 2006, at which time Ms. Bauer told her to report the incident to another supervisor, Jack Twigg ("Mr. Twigg"). ( Id. at 69-70.) Mr. Twigg met with Mr. McIntyre later that day to discuss the incident. ( Id. at 71.) The next day, February 10, 2006, Ms. Smith reported the incident to MES human resources personnel. ( Id. at 74-75.) MES terminated Mr. McIntyre's employment the following Monday, February 13, 2006. (Defs'. Mot. Dismiss Ex. A.) Following the February 7, 2006 incident, no further incidents of sexual harassment occurred. (Pl.'s Opp. Mem. Attach. 1 at 75.)
Ms. Smith returned to work during the week of February 13-17, 2006; however, following that week, she did not return to MES based in part on her doctor's orders. ( Id. at 75, 78-79.) Ms. Smith believed that MES was an unsafe working environment because she often worked alone, Mr. McIntyre knew the entry codes to the work sites, he lived with an MES employee who had access to work sites, and he remained friends with Ms. Bauer. (Pl.'s Opp. Mem. at 9.) After being on leave without pay for several months, Ms. Smith resigned from MES on May 26, 2006, after realizing MES still had not changed the entry codes to the work sites. ( Id. at 10.)
On December 6, 2006, Ms. Smith contacted the U.S. Equal Employment Opportunity Commission ("EEOC") to report the aforementioned incidents involving Mr. McIntyre. In response, the EEOC sent Ms. Smith an Intake Questionnaire ("the questionnaire") instructing her to complete it and return it to the Baltimore field office. (Defs.' Mot. Dismiss Ex. B.) The Baltimore office received the questionnaire on December 14, 2006, which Ms. Smith signed and dated December 11, 2006. (Defs.' Mot. Dismiss Ex. C.) On January 31, 2007, Ms Smith filed a complaint under oath with the EEOC and the Maryland Commission on Human Rights alleging sexual harassment, hostile work environment, and constructive discharge. (Defs.' Mot. Dismiss Ex. E.) Ms. Smith filed this action on October 10, 2007, after receiving a Notice of Right to Sue from the EEOC.
ANALYSIS
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment:
should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). The Supreme Court has clarified this does not mean that any factual dispute will defeat the motion:
By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
"A party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must "view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witness' credibility," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002), but the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). A. Title VII Claims against MES
Title VII claims may not be brought against individual supervisors or employees. See Lissau v. Southern Food Service, Inc., 159 F.3d 177, 180-81 (4th Cir. 1998); Arbabi v. Fred Meyers, Inc., 205 F.Supp.2d 462, 464 (D. Md. 2002). Thus, Ms. Bauer is entitled to dismissal on all Title VII counts.
To assert a Title VII claim in federal court, a plaintiff must first exhaust her administrative remedies by filing a timely charge with the EEOC. Chacko v. Patuxent Inst., 429 F.3d 505, 508 (4th Cir. 2005). For cases arising in Maryland, an administrative charge of discrimination must be filed with the EEOC within 300 days. 42 U.S.C. § 2000e-5(e)(1). Title VII further requires that a "charge" of discrimination "shall be in writing under oath or affirmation and shall contain such information and be in such form as the [EEOC] requires." 42 U.S.C. § 2000e-5(b).
The defendants contend that Ms. Smith failed to file a timely charge with the EEOC. It is undisputed that Ms. Smith filed her Intake Questionnaire with the EEOC on December 14, 2006, which lists the people she claims have discriminated against her and provides details of the discrimination. She filed her verified Charge of Discrimination on January 31, 2007. MES maintains that the questionnaire does not satisfy Title VII's filing requirements because Ms. Smith did not sign it under oath. However, an employee can remedy an unverified but otherwise valid charge by filing subsequent verification of the allegations. See Edelman v. Lynchburg College, 535 U.S. 106, 117-18 (2002) (concluding a verified charge filed outside the statutory period can relate back to an unverified but otherwise valid charge filed within the statutory period). Moreover, an Intake Questionnaire may constitute a charge if it fulfills Title VII's filing requirements. See Fed. Exp. Corp. v. Holowecki, 128 S. Ct. 1147, 1159 (2008) (noting there might be instances where an Intake Questionnaire indicates discrimination that is "so clear or pervasive," the EEOC could infer the filer's intent for the agency to take remedial action to protect her rights and thus treat it as a charge); see also Edelman v. Lynchburg College, 300 F.3d 400, 405-06 (4th Cir. 2002) (concluding plaintiff's initial letter to the EEOC relating his allegations of discrimination and indicating he believed the letter to be a charge was sufficient to constitute a filing within Title VII's statutory period). In this case, however, even assuming the questionnaire qualifies as a charge, Ms. Smith's claims cannot survive summary judgment.
i. Constructive Discharge
An employee is entitled to relief under Title VII for constructive discharge "if an employer deliberately makes the working conditions intolerable in an effort to induce the employee to quit." Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1353-54 (4th Cir. 1995) (internal quotation marks omitted). The employee must demonstrate that the working conditions are objectively intolerable, such that "a reasonable person in the employee's position would have felt compelled to resign." Pa. State Police v. Suders, 542 U.S. 129, 141 (2004). If the employee meets this burden, she then must show that the conduct about which she complains was motivated by discriminatory animus. Taylor v. Virginia Union University, 193 F.3d 219, 238 (4th Cir. 1999); see Honor v. Booz-Allen Hamilton, Inc., 383 F.3d 180, 187 (4th Cir. 2004) (requiring employee show employer's deliberateness was "motivated by racial bias").
Here, Ms. Smith claims she was constructively discharged on May 26, 2006 "when she realized that she was not safe from any future attacks by Defendant McIntyre because Defendant MES had not changed the codes to the locks at the work sites." However, MES's prompt firing of Mr. McIntyre demonstrates that MES acted deliberately to improve Ms. Smith's working conditions, not to make them intolerable. Moreover, it is undisputed that Ms. Smith did not suffer any harassment after Mr. McIntyre was fired. In light of these facts, this court concludes that MES's failure to change the locks simply does not rise to the level of an objectively intolerable working condition. See Bryan v. Lucent Technologies, Inc., 307 F.Supp.2d 726, 743 (D. Md. 2004) (concluding working condition was not objectively intolerable where employee was transferred away from harassing supervisor and new supervisors allegedly conspired against her but no adverse employment action was taken); Von Gunten v. Md. Dept. of Env't, 68 F.Supp.2d 654, 661 (D. Md. 1999) (finding no objectively intolerable working condition where employee was dissatisfied with employer's response to her complaints of actionable sexual harassment that had since ceased). Consequently, Ms. Smith's constructive discharge claim cannot survive summary judgment.
ii. Sexual Harassment and Hostile Work Environment
Title VII prohibits an employer from "discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). This prohibition "not only covers `terms' and `conditions' in the narrow contractual sense, but evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (internal quotation marks omitted). Thus, it is a violation of Title VII to engage in quid pro quo sexual harassment or to maintain a sexually hostile work environment, i.e. a "workplace . . . 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 quotation marks and citation omitted).
Quid Pro Quo Sexual Harassment
To establish quid pro quo liability, a plaintiff must prove "that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753-54 (1998). A "tangible employment action" occurs whenever "a significant change in employment status" is effected, "such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id. at 761. When alleging quid pro quo sexual harassment, an employee must demonstrate she suffered a tangible employment action within the statutory period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002) (concluding that a party alleging a discrete act of discrimination "must file a charge within either 180 or 300 days of the date of the act or lose the ability to recover for it").
The only adverse employment action the plaintiff claims to have suffered within the 300-day filing period is a constructive discharge resulting from MES's failure to change the locks after terminating Mr. McIntyre for his inappropriate behavior. As discussed above, Ms. Smith's claim for constructive discharge cannot survive summary judgment. Thus, her quid pro quo sexual harassment claim also fails. Hostile Work Environment
To succeed on a Title VII claim for sexual harassment based on a hostile work environment, the employee must show that the harassment was: 1) unwelcome, 2) based on sex, 3) sufficiently severe or pervasive to alter the conditions of employment, and 4) there was some basis for imposing liability on the employer. Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003). The employee must also demonstrate that at least one of the acts constituting the underlying harassment occurred within the 300-day filing period. See Nat'l R.R., 536 U.S. at 118 ("In order for the charge to be timely, the employee need only file a charge within 180 or 300 days of any act that is part of the hostile work environment.").
Here, the last reported incident of harassment occurred on February 7, 2006, more than 300 days before Ms. Smith filed her Intake Questionnaire on December 14, 2006. Ms. Smith acknowledged that subsequent to that incident with Mr. McIntyre there was no further conduct by any MES employee that constituted harassment. She contends, however, that a hostile work environment persisted at MES because "Defendant McIntyre lived with an MES coworker who had access to all of the keys and work sites; Defendant McIntyre continued to remain close friends with Defendant Bauer; Plaintiff frequently worked alone; and Defendant MES failed to change the codes to the locks to the work sites." (Pl.'s Opp. Mem. at 9.) By promptly terminating Mr. McIntyre after learning of his harassing behavior, MES took appropriate action to correct any hostile work environment that may have existed prior to the 300-day filing period. The remaining alleged conditions simply do not rise to the level of severe and pervasive conduct that the Fourth Circuit has found sufficient to establish a hostile work environment. See, e.g., Ocheltree, 335 F.3d at 328-29, 333 (finding severe and pervasive conduct where female employee's male colleagues simulated sexual acts on mannequins, showed her graphic pornography, and sang vulgar lyrics to her). Thus, Ms. Smith's hostile work environment claim cannot survive summary judgment.
The total number of days is 310. Even if this court were to conclude a hostile work environment persisted until MES fired Mr. McIntyre on February 13, 2006, the resulting lapse in time until filing would still be 304 days. Ms. Smith urges this court to use either May 26, 2006, the day she resigned, or February 22, 2006, the last day she was physically present at MES, as the tolling date. Because Ms. Smith suffered no harassing conduct or intolerable working conditions after the February 7, 2006 incident with Mr. McIntyre, these dates are not applicable.
B. Section 1983 Claim against Ms. Bauer
Ms. Smith maintains that Ms. Bauer is liable for depriving her of her civil rights in violation of 42 U.S.C. § 1983, based on a theory of supervisory liability, because she failed to remedy Mr. McIntyre's harassing conduct. To state a claim for supervisory liability under § 1983, a plaintiff must demonstrate that: (1) "that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed `a pervasive and unreasonable risk' of constitutional injury to citizens like the plaintiff"; (2) "that the supervisor's response to that knowledge was so inadequate as to show `deliberate indifference to or tacit authorization of the alleged offensive practices'"; and (3) "that there was an `affirmative causal link' between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff." Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).
Looking merely at the language of Shaw, it is clear that Ms. Smith cannot make the required showing to survive summary judgment. While Ms. Smith contends that she informed Ms. Bauer of Mr. McIntyre's injurious conduct on several occasions, Ms. Smith offers no evidence that Ms. Bauer had any supervisory authority over Mr. McIntyre to remedy his conduct. In fact, Ms. Smith acknowledged that Ms. Bauer was a subordinate of Mr. McIntyre's. See id. (requiring plaintiff demonstrate that "the supervisor had . . . knowledge that [her] subordinate" was engaged in the injurious conduct to be liable in a supervisory capacity) (emphasis added).
Ms. Smith points to Ms. Bauer's supervisory capacity over her as evidence that she had the power to report Mr. McIntyre's conduct to the proper personnel. However, to establish a claim for supervisory liability, Ms. Smith must demonstrate significantly more than Ms. Bauer's ability to report Mr. McIntyre's conduct to his superiors. She must establish that Ms. Bauer had the authority to prevent Mr. McIntyre's injurious conduct from continuing. See id. at 798 (noting that supervisory liability extends to "persons in the decisionmaking chain whose deliberate indifference permitted the constitutional abuses to continue unchecked") (quoting Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984)). That is just not the case here. Ms. Bauer was Mr. McIntyre's known subordinate. Moreover, it is undisputed that Ms. Bauer told Mr. McIntyre on at least one occasion to stop harassing Ms. Smith, apparently to no avail. While the court does not fault Ms. Smith for reporting these incidents to her immediate supervisor, that does not establish that Ms. Bauer may be charged with supervisory liability for Mr. McIntyre's conduct. Thus, the plaintiff's claim for supervisory liability cannot survive summary judgment.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment will be granted. A separate Order follows.ORDER
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:
1. The defendants' motion for summary judgment (docket entry no. 13) is GRANTED; and
2. Plaintiff's counsel should advise the court by September 26, 2008, whether she wishes to proceed against Defendant Robert McIntyre.