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United States District Court, D. Delaware
Aug 8, 2000
C.A. No. 98-669-SLR (D. Del. Aug. 8, 2000)


holding summary judgment is appropriate where there is no evidence that "facially gender-neutral conduct was based on perceptions about womanhood or gendered stereotypes of appropriate female behavior rather than factors individual to plaintiff"

Summary of this case from Lamacchia v. Rumsfeld


C.A. No. 98-669-SLR

August 8, 2000

Catherine L. Calloway, pro se.

Esquire, of Potter Anderson Corroon LLP, Wilmington, Delaware. Counsel for defendant.



Plaintiff, Catherine L. Calloway, filed this action on December 2, 1998 against defendant E.I. DuPont de Nemours and Company ("DuPont"), asserting a claim under the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., for hostile work environment and retaliation. (D.I. 1) Plaintiff alleges that her co-workers' and supervisors' actions were willful and intentional, were based on discriminatory animus, and resulted in emotional and psychological stress that disabled her from work. (D.I. 1) Plaintiff further alleges that she was subject to retaliation because of her complaints to supervisors about harassment. (D.I. 1) Plaintiff began her employment with DuPont on March 26, 1990 and, on November 18, 1993, was assigned to the Textile Department in DuPont's nylon plant in Seaford, Delaware, where she became a qualified spinning machine operator ("SMO") (D.I. 99 at A19) Her employment with DuPont was terminated on July 31, 1997, when her health care provider refused to release her to return to work after six months of disability leave. (D.I. 90 at A10) The court has jurisdiction over this action pursuant to 28 U.S.C. § 1331.

The spinning machines at the Seaford Nylon Plant turn nylon thread into nylon yarn. Each spinning machine has a variety of positions, and the SMOs are assigned a series of positions along a particular spinning machine. (D.I. 90 at A151-52) The SMOs are responsible for the operation of their assigned spinning machine. Their job duties include performing routime preventive maintenance work, performing quality checks, packing the completed yarn, and keeping required records of break delay time. (D.I. 90 at A89-92, A145)

Currently before the court is defendant's motion for summary judgment. (D.I. 88) For the reasons that follow, the court shall grant defendant's motion.


A court shall grant summary judgment only 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." Fed.R.Civ.P. 56(c). The moving party bears the burden of proving that no genuine issue of material fact exists. See Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10 (1986). "Facts that could alter the outcome are "material,' and disputes are "genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n. 1 (3d Cir. 1995) (internal citations omitted). If the moving party has demonstrated an absence of material fact, the nonmoving party then "must come forward with "specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e)). The court will "view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion."Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). The mere existence of some evidence in support of the nonmoving party, however, will not be sufficient for denial of a motion for summary judgment; there must be enough evidence to enable a jury reasonably to find for the nonmoving party on that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). With respect to summary judgment in discrimination cases, the court's role is ""to determine whether, upon reviewing all the facts and inferences to be drawn therefrom in the light most favorable to the plaintiff, there exists sufficient evidence to create a genuine issue of material fact as to whether the employer intentionally discriminated against the plaintiff.'" Revis v. Slocomb Indus., 814 F. Supp. 1209, 1215 (D. Del. 1993) (quoting Hankins v. Temple Univ., 829 F.2d 437, 440 (3d Cir. 1987))


A. Plaintiff's Allegations of Harassment and Retaliation

On December 29, 1997, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") against her former employer, defendant. In her complaint, plaintiff asserted the following:

I. After complaining of sexual harassment in November of 1996, I was continuously harassed by supervision up until my discharge. On July 31, 1997, I was discharged from E.I. DuPont.
II. I was informed by the personnel office that I was discharged because my six months of disability had run out. III. I believe I have been discriminated against based upon my race (white), sex (female), age (44), disability, and retaliated against, because:
1. I was verbally harassed by my supervisors after making a sexual harassment complaint against a co-worker in 1996.
2. In January of 1997, I was taken out of work by my physician and placed on disability for one year. On July 31, 1997, I was discharged. I believe my disability time was cut short due to my sex (female), race (white), age (44), the type of disability I have, and because I placed a sexual harassment complaint against a co-worker.

(D.I. 90 at A149) She further asserted that the alleged discrimination took place, at the "earliest," in November 1996 and, at the "latest," on July 31, 1997. (D.I. 90 at A149)

Taking her EEOC complaint as the framework for this litigation, the record assembled for these summary judgment proceedings, taken in a light most favorable to plaintiff, demonstrates that the following incidents took place during the time period November 1, 1996 through July 31, 1997:

On a number of occasions, individuals, both male and female, used plaintiff's payroll number without apparent authorization when making entries into the Textile Spinning Information System ("TSIS") and when operating plaintiff's assigned spinning machine. (D.I. 99 at A104-08)
Plaintiff's supervisor reprimanded her on a number of occasions for "writing notes" in the spinning machine aisles despite the fact that she had been instructed to do so by another supervisor. (D.I. 90 at A21, A39-40; D.I. 99 at A162)
Plaintiff's supervisors were unresponsive to her complaints of harassment and misuse of her payroll number. (D.I. 90 at All, A22, A43)
A co-worker, whose employment with DuPont was terminated as a result of his actions, used plaintiff's payroll number to enter an offensive comment into TSIS. (D.I. 99 at A43, A49, A92)
On approximately six (6) different occasions, derogatory remarks (calling out her name followed by either "boo hoo" or "cry baby") directed at plaintiff were announced over the intercom system. (D.I. 90 at A53-56)
On December 14, 1996, plaintiff and her husband were placed on probation for falsification of records. (D.I. 90 at A13; D.I. 99 at A122, A124, A126, A129)
On or about December 18, 1996, a female co-worker hit plaintiff's back with her fist. (D.I. 90 at A19, A36-37, A47, A61-62; D.I. 99 at A63, A159)
One of the co-workers plaintiff had identified as harassing her kept wandering around the spinning machine aisles near her machine although he was not assigned to the area. (D.I. 90 at A47, A58-61)
A card bearing the image of a crying baby and the words "Cry Baby" was left on plaintiff's tool belt. (D.I. 90 at A28, A52, A63; D.I. 99 at A52)
On one occasion, plaintiff's waste tub was moved out of position, requiring her to leave her assignment unattended while she realigned the tub. (D.I. 90 at A49, A62)
A co-worker plaintiff had identified as harassing her was assigned to a nearby work station. (D.I. 90 at A20; D.I. 99 at A160)
When plaintiff's supervisor directed her to return a copy of the job assignment chart, which she had removed "to study," two of her co-workers laughed at her. (D.I. 90 at A46-47, A57; D.I. 99 at A55-56)
Plaintiff returned from lunch one day and discovered a hole in the palm of her leather work glove; she suspects the glove was cut by a co-worker. (D.I. 90 at A20, A50-51; D.I. 99 at A160)
Plaintiff received an unsatisfactory performance rating on January 14, 1997. (D.I. 90 at A38; D.I. 99 at A123, A125)
In contravention of her counselor's alleged instructions, plaintiff's supervisors attempted to contact her to inquire when she would be returning to work approximately four or five times between January 14, 1997 and July 31, 1997 (while she was out on disability leave). (D.I. 90 at A14, A25; D.I. 99 at A59, A153)

See the court's December 1, 1999 order. (D.I. 56)

The court notes that plaintiff filed discovery requests and received responses from defendant. Although not satisfied with said responses, the court has reviewed the discovery material and denies plaintiff's motions to compel (D.I. 85, 91), given her refusal to discuss with defendant and the court the entry of a protective order in this case, as well as the parameters of the case established by her EEOC complaint and the court's December 1, 1999 order. The court notes as well that plaintiff's hostile work environment and retaliation claims are based particularly on her observations and experiences, as she has related them on the record.

TSIS is a computer system that tracks the efficiency of each spinning machine and SMO. (D.I. 90 at A151) It identifies each spinning machine by number and each SMO by his or her payroll number. (D.I. 90 at A1S1-52) TSIS can be used to generate reports that detail spinning machine downtime by machine number, position number, and payroll number of the SMO credited with the downtime as well as reports that provide the total downtime, average break delay time, and total number and types of breaks for each identified SMO. (D.I. 90 at A152)

Plaintiff contends that on approximately six (6) different occasions her supervisor told her she was the "problem" and instructed her to be "more social." (D.I. 90 at A16-17, A22-24; D.I. 99 at A50-51, A155-58)

The comment at issue read: "Can't operate without my old man ! ! ! ! !

Although other profane comments were entered into TSIS during the relevant time period, these comments were neither directed at plaintiff nor entered using her payroll number.

B. Hostile Work Environment

In her complaint, plaintiff contends that the aforementioned conduct created a hostile and abusive work environment. Title VII of the Civil Rights Act of 1964 provides, in relevant part, that "[[i]t shall be 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." 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has construed Title VII as covering more than ""terms' and "conditions' in the narrow contractual sense,Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998), finding the statute "evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment," Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (citations and internal quotation marks omitted). Consequently, a plaintiff may establish a violation of Title VII by proving that gender-based discrimination was so pervasive it created a hostile or abusive work environment. See id. at 66. Consistent with this standard, in order for a plaintiff to succeed in a hostile work environment claim, the Court of Appeals for the Third Circuit requires a plaintiff to prove five elements:

(1) the employee suffered intentional discrimination because of [her] sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability.
Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990) (footnote omitted); accord Kunin v. Sears Roebuck Co., 175 F.3d 289, 293 (3d Cir. 1999)

1. Gender-Based Discrimination

In the instant action, defendant contends that plaintiff's allegations do not amount to sexual harassment within the purview of Title VII. In so arguing, defendant focuses on the non-sexual nature of the conduct in question, contending that plaintiff's allegations are "not the types of claims that Title VII was enacted to address." (D.I. 89 at 20)

The Supreme Court has interpreted Title VII as affording "employees the right to work in an environment free from discriminatory intimidation, ridicule and insult." Meritor 477 U.S. at 65. Contrary to defendant's argument, prevailing case law does not limit this right to freedom from ridicule or intimidation of only an explicitly sexual nature. See, e.g., Andrews, 895 F.2d at 1485 ("To constitute impermissible discrimination, the offensive conduct is not necessarily required to include sexual overtones in every instance or that each incident be sufficiently severe to detrimentally affect a female employee."); Hall v. Gus Constr. Co., 842 F.2d 1010, 1014 (8th Cir. 1988) ("Intimidation and hostility toward women because they are women can obviously result from conduct other than explicit sexual advances."). As the Supreme Court recently recognized,

[t]he real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing. and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive.

Id. at 81-82. The Third Circuit has noted that "[i]ntimidation and hostility toward women because they are women can obviously result from conduct other than explicit sexual advances.Andrews, 895 F.2d at 1485 (internal citations and quotations omitted). According to the Third Circuit, "[t]here are no talismanic expressions which must be invoked as a conditionprecedent to the application of laws designed to protect against discrimination. The words themselves are only relevant for what they reveal — the intent of the speaker." Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1083 (3d Cir. 1996).

A plaintiff, therefore, need not allege overt sexual harassment in order to establish a hostile work environment claim under Title VII. However, a plaintiff does need to ""show that gender is a substantial factor in the discrimination, and that if the plaintiff had been a man she would not have been treated in the same manner." Andrews, 895 F.2d at 1485 (internal citations and quotations omitted) (emphasis added). Thus, harassing behavior that is not sexually explicit but is directed at women and motivated by discriminatory animus against women may serve as evidence of a hostile or abusive work environment. See, e.g., Andrews, 895 F.2d at 1485 (holding that "the pervasive use of derogatory and insulting terms relating to women generally and addressed to female employees personally may serve as evidence of a hostile environment"); See also Williams v. General Motors Corp. 187 F.3d 553, 564-65 (6th Cir. 1999) (holding that "[any unequal treatment of an employee that would not occur but for the employee's gender may, if sufficiently severe or pervasive under the Harris standard, constitute a hostile environment in violation of Title VII"); Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 441 (1st Cir. 1997) (stating that "many forms of offensive behavior may be included within the definition of hostile environment sexual harassment. . . . However, the overtones of such behavior must be, at the very least, sex-based so as to be a recognizable form of sex discrimination."); Lipsett v. University of Puerto Rico, 864 F.2d 881, 905 (1st Cir. 1988) (stating that a "[verbal] attack, although not explicitly sexual, was nonetheless charged with anti-female animus, and therefore could be found to have contributed significantly to the hostile environment"); McKinney v. Dole, 765 F.2d 1129, 1138 (D.C. Cir. 1985) (holding "that any harassment or other unequal treatment of an employee or group of employees that would not occur but for the sex of the employee or employees may, if sufficiently patterned or pervasive, comprise an illegal condition of employment under Title VII"). The Supreme Court has cautioned, however, that

Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at "discriminat[ion]. because of . . . sex." We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. "The critical issue, Title VII's test indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed."
Oncale, 523 U.S. at 80 (quoting Harris, 510 U.S. at 25)

In the instant action, plaintiff has failed to demonstrate that gender was a substantial factor in the alleged discrimination. The Third Circuit has directed that discrimination on the basis of sex "is implicit, and thus should be recognized as a matter of course," where a case involves sexual propositions, innuendo, pornographic materials, or sexual derogatory language, but that "[a] more fact intensive analysis [is] necessary where the actions are not sexual by their very nature." Andrews, 895 F.2d at 1482 n. 3. It is apparent from the allegations at bar that plaintiff did not get along with coworkers or supervision and that she was the target of unwelcome attention. There is no evidence in the record, however, indicating that the facially gender-neutral conduct plaintiff alleges was based on perceptions about womanhood or gendered stereotypes of appropriate female behavior rather than factors individual to plaintiff. Although plaintiff alleges instances of unprofessional and spiteful behavior on the part of her coworkers and supervisors, her allegations are devoid of any incidents wherein she was confronted with negative, gender-related comments. Nor does she complain of the use of insulting or derogatory language relating to women generally or herself as a women specifically. Evaluating the record as a whole and in a light most favorable to plaintiff, the court finds no evidence from which a reasonable jury could infer that the harassment plaintiff suffered was motivated by gender-based animus.

None of the conduct plaintiff has identified concerned overtly offensive, sexually-oriented behavior. The only conduct plaintiff considered to be sexual in nature was her supervisor's admonishment that she be "more social." Although she interpreted this comment as implying she should "flirt" with her male coworkers, plaintiff concedes that her supervisor never explicitly said such.

2. Pervasive and Regular

Even if the court were to assume that the alleged conduct was motivated by gender-based animus, that conduct is not sufficiently "pervasive and regular" to constitute a hostile work environment. To be actionable under Title VII, "the workplace [must be] 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) (citations and internal quotation marks omitted). In considering whether a work environment is hostile or abusive, courts are directed not to examine the scenario on an incident-by-incident basis but to consider "all the circumstances," including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."Harris, 510 U.S. at 23; see also Andrews, 895 F.2d at 1485;Williams, 187 F.3d at 563 ("[T]he totality-of-the-circumstances test must be construed to mean that even where individual instances of sexual harassment do not on their own create a hostile environment, the accumulated effect of such incidents may result in a Title VII violation."). The Supreme Court has cautioned, however, that Title VII is not meant to be a "general civility code for the workplace." Oncale, 118 S.Ct. at 1002. The statute, therefore, provides no redress for ""genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.'"Faragher, 118 S.Ct. at 2283 (quoting Oncale, 118 S.Ct. at 1003) Nor does it protect an individual from occasional teasing, sporadic use of abusive language or gender-related jokes, offhand comments, or isolated or single incidents of harassment (unless "extremely serious"). Id. at 2283-84. As the Supreme Court has "made . . . clear[,] . . . conduct must be extreme to amount to a change in the terms and conditions of employment." Id. at 2284.

The court recognizes that the "pervasive and regular" requirement of Andrews differs slightly from that set forth in Mentor, wherein the Supreme Court stated that alleged sexual harassment must be "severe or pervasive." Meritor, 477 U.S. at 67 (emphasis added). In light of the fact that the Third Circuit has recently cited Andrews with approval in Kunin and Bonenberger v. Plymouth Township, 132 F.3d 20, 25 (3d Cir. 1997), the court will assume that the Andrews "pervasive and regular" test is the governing standard for Title VII cases in this Circuit. In the case at bar, the distinction is not significant, however, as plaintiff has failed to meet the standards of either Andrews orMeritor.

While the comments and conduct of plaintiff's co-workers and supervisors may have been unprofessional and offensive, they collectively do not rise to the level of unlawfulness within the purview of Title VII. Unlike other cases involving hostile work environments, there is no evidence here that plaintiff was subjected to inquiries into her sex life, unwanted sexual propositioning, the display of sexual or pornographic material, significantly intrusive obscene language or gestures, improper touching, unreasonable criticism, pervasive antifemale commentary, or misogynist epithets. Compare Andrews, 895 at 1486 (holding that the court on remand should view name calling, pornography, displaying sexual objects on desks, recurrent disappearance of plaintiffs' work product, anonymous phone calls, and destruction of property when considering whether the work environment was hostile); Gares v. Willingborough Township, 90 F.3d 720, 723-24 (3d Cir. 1996) (upholding jury verdict for plaintiff where supervisor referred to her as "Township slut" and "tramp," touched her in a degrading manner, referred to her breasts as "bazooka-size," and laughed when her co-worker joked about plaintiff's "dildo"); Spain v. Gallegos, 26 F.3d 439, 449-50 (3d Cir. 1994) (holding Andrews requirements were satisfied where plaintiff alleged she was the subject of pervasive rumors that she was involved in a sexual relationship with her superior which arose due to the superior s conduct); Glickstein v. Neshaminy Sch. Dist., No. Civ. A. 96-6236, 1999 WL 58578, at *8 (E.D. Pa. Jan. 26, 1999) (finding that evidence was sufficient to raise genuine issue of material fact as to whether conduct was pervasive and regular where plaintiff alleged that she was subjected to a nearly daily routine of harassment, including inappropriate sexual advances, being kissed against her will, having her buttocks grabbed and threatening behavior that interfered with her ability to perform her job); Konstantopoulos v. Westvaco Corp., 893 F. Supp. 1263, 1277 (D. Del. 1994) (upholding jury verdict for plaintiff where plaintiff offered evidence that her locker was vandalized, that she endured crude gestures and remarks, and that she received sexually demeaning letters from co-workers) with Konstantonoulos v. Westvaco Corp., 112 F.3d 710, 715-18 (3d Cir. 1997) (finding that a hostile or abusive working environment did not exist where plaintiff was required to work in the proximity of employees who had previously harassed her and was subjected to mute gestures, squinting stares, and shaking fists); Gautney v. Armerigas Propane, Inc., No. Civ. A. 99-197, 2000 WL 1053563 (E.D. Pa. July 28, 2000) (allegations that plaintiff was subjected to "unprofessional, offensive, and callow" conduct and comments, including discussions concerning the size of a male co-worker's "sex organs and his escapades with other women" and comments "that men did not like aggressive women, that [plaintiff] was only using 1/3 of her assets and that she should dress in a skirt and heels, did not amount to severe and pervasive harassment); Bishop v. National R.R. Passenger Corp., 66 F. Supp.2d 650, 664 (E.D. Pa. 1999) (finding inactionable under Title VII conduct "consisting merely of staring, leering and "stud muffin' comments, with no physical touching or threats and no sexual overtones"); Pittman v. Continental Airlines, Inc., 35 F. Supp.2d 434, 442 (E.D. Pa. 1999) (allegations that plaintiff occasionally encountered individuals who inquired about her personal life and extended conversations about relationships to a "graphic" level did not rise to the level of sexual hostility proscribed by Title VII);LaRose v. Philadelphia Newspapers, Inc., 21 F. Supp.2d 492, 500 (E.D. Pa. 1998) (allegations that supervisor raised hand at plaintiff, followed her into an office, denied her overtime and computer training, and stood too close to her were insufficient to establish hostile work environment); McGraw v. Wyeth-Ayerst Labs., Inc., No. Civ. A. 96-5780, 1997 WL 799437, at *6 (E.D. Pa. Dec. 30, 1997) (allegation that supervisor repeatedly asked plaintiff out on dates and kissed her against her will insufficient to establish hostile work environment); Cooper-Nicholas v. City of Chester, No. Civ. A. 95-6493, 1997 WL 799443 (E.D. Pa. Dec. 30, 1997) (finding plaintiff's work environment not severely hostile although plaintiff's supervisor consistently made disparaging, vulgar, and offensive comments in public). At most, the evidence shows that over a two-month period plaintiff was subjected to sporadic, unwelcome conduct and disparaging utterances. In sum, a rational factfinder could not reasonably conclude that the conduct complained of amounts to the "pervasive and regular" harassment that Title VII was enacted to redress.

In fact, according to plaintiff, the majority of the alleged incidents occurred during a one week period in December.

Having determined that plaintiff has failed to present a triable issue of fact with respect to two essential elements of the prima facie case for her hostile work environment claim, summary judgment as to this claim is appropriate.

Having so decided, the court need not address defendant's argument that plaintiff has failed to establish the fifth element of the prima facie case, respondeat superior liability.

B. Retaliation

Plaintiff further alleges that after she complained to supervision of harassment by a co-worker she suffered reprisals at work. Title VII prohibits discrimination against an employee who has exercised her rights under the Act:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [s]he [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because [s]he has made a charge, testified, assisted, or participated, in any manner in an investigation, proceeding, or hearing under this title.
42 U.S.C. § 2000e-3(a). Claims of retaliation brought pursuant to the Act are analyzed under a burden-shifting framework, the particulars of which vary depending on whether the suit is characterized as a "pretext" suit or a "mixed motives" suit. Since review of the record does not reveal any direct evidence of retaliation and plaintiff does not purport to assert such, the court will analyze plaintiff's retaliation claim using the burden-shifting framework for "pretext" suits set forth inMcDonnell Douglas Corn. v. Green, 411 U.S. 792 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981). See Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997).

Under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case for retaliation under Title VII. In order to do so, a plaintiff must demonstrate by a preponderance of the evidence that: (1) she engaged in protected activity; (2) that defendant took adverse employment action against her; and (3) that a causal link exists between the protected activity and the adverse action. See Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1999). Once plaintiff has established a prima facie case, the burden shifts to defendant to "clearly set forth through the introduction of admissible evidence" reasons for its actions that, if believed by the trier of fact, would support a finding that unlawful discrimination was not the motivating force behind the adverse employment action. See Burdine, 450 U.S. at 254-55. If defendant rebuts the prima facie showing by demonstrating a legitimate, nondiscriminatory reason for the adverse employment action, the presumption of discrimination drops from the case, and plaintiff must present sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); Reeves v. Sanderson Plumbing Prods., Inc., — U.S. — 120 S.Ct. 2097, 2106 (2000). To successfully rebut the defendant's proffered explanation, "the plaintiff must produce evidence from which a reasonable factfinder could conclude either that the defendant's proffered justifications are not worthy of credence or that the true reason for the employer's act was discrimination." Bray v. Marriott Hotels, 110 F.3d 986, 990 (3d Cir. 1997) (citations omitted); see also Sheridan v. E.I. DuPont de Nemours Co., 100 F.3d 1061, 1072 (3d Cir. 1996) (in banc) ("The district court must determine whether the plaintiff has cast sufficient doubt upon the employer's proffered reasons to permit a reasonable factfinder to conclude that the reasons are incredible.")

In the instant action, defendant does not dispute that plaintiff engaged in protected activity within the purview of Title VII when she reported acts of harassment to supervision. Defendant argues, however, that the retaliatory acts alleged by plaintiff do not amount to "adverse employment actions" as that term has been defined by the Third Circuit. In Robinson V. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997), the Third Circuit held that the "adverse employment element" of a retaliation claim requires that the "retaliatory conduct rise to the level of a violation of 42 U.S.C. § 2000e-2(a)(1) or (2)." Id. at 1300-01. That provision makes it "an unlawful employment practice for an employer"

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex . . . (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such individual's . . . sex. . . .
42 U.S.C. § 2000e-2(a). As interpreted in Robinson, this provision proscribes retaliatory conduct other than discharge or refusal to rehire "only if it alters the employee's "compensation, terms, conditions, or privileges of employment,' deprives him or her of "employment opportunities,' or "adversely affect[s] his [or her] status as an employee.'" Robinson, 120 F.3d at 1300; see Burlington Indus. v. Ellerth, ___ U.S. ___, 118 S.Ct. 2257, 2268 (1998) ("A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."). Consistent with this interpretation, the Robinson court found that allegations of "unsubstantiated oral reprimands" and "unnecessary derogatory comments" did not rise to the level of "adverse employment action" required for a retaliation claim because, while such conduct might constitute harassment, it did not affect the "terms, conditions, or privileges of employment" or future employment opportunities. Id. at 1301.

Plaintiff at bar alleges she was retaliated against by her co-workers and supervisors because she complained about harassment at work. (D.I. ¶¶ 9, 12, 14) For the most part, the acts that plaintiff identifies as retaliatory are the same as those she claims constitute harassment. They include: (1) being reprimanded for excessive downtime; (2) being reprimanded for "writing notes" in the machine aisle; (3) being told she was the "problem"; (4) being placed on probation for falsifying records; (5) being forced to work adjacent to a co-worker she felt harassed her; (6) being given an "unsatisfactory" rating on January 14, 1997 while on probation; and (7) being terminated from employment with DuPont. (D.I. 90 at A39-43) She also cites as retaliatory behavior supervision's perceived failure to stop the harassment. (D.I. 90 at A39-43) of these allegations, only those relating to plaintiff's probation and termination could rise to the level of an "adverse employment action" as defined by the Third Circuit. Plaintiff's remaining allegations, although they may constitute harassment, are not sufficient to qualify as retaliation under Title VII. As the Third Circuit has noted, ""not everything that makes an employee unhappy' qualifies as retaliation, for "[o]therwise, minor and even trivial employment actions that an "an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit."" Id. (quoting Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996)). Plaintiff's allegations of oral reprimands and minor employment actions constitute "trivial employment actions not "serious and tangible enough" to cause a significant change in employment status. Id.

Whether plaintiff's placement on probation constitutes a significant change in employment status" is a question the court need not address at this juncture since defendant does not dispute plaintiff's characterization of this act as an "adverse employment action."

To the extent that plaintiff's allegations concerning her probation and termination constitute adverse employment actions, defendant has come forward with evidence which, if taken as true, demonstrates there were legitimate, nonretaliatory reasons for both actions. Specifically, defendant contends that plaintiff and her husband were place on probation for falsifying records. Plaintiff was terminated because she was not released to return to work after six months of disability leave. In reply, plaintiff contends that she has proffered evidence sufficient to create a genuine issue of material fact by demonstrating that defendant's putative justifications are unworthy of credence and that retahation for her complaints of harassment in fact motivated both decisions.

Defendant's intent in terminating plaintiff's employment and placing her on probation is a factual question. See Walton v. Mental Health Assoc., 169 F.3d 661, 668 (3d Cir. 1999) Therefore, plaintiff can call into question defendant's intent only if she ""raises an issue of material fact which, if genuine, is sufficient to preclude summary judgment.'" Id. (quotingChipollini v. Spencer Gifts, Inc., 814 F.2d 893, 899 (3d Cir. 1987) (in banc)). In the case at bar, however, plaintiff's evidence is insufficient to meet this burden. In her attempt to show that defendant's enunciated reason for placing her on probation was pretextual, plaintiff first questions the accuracy of TSIS, proffering the affidavit of a former colleague at the Seaford Nylon Plant who avers that TSIS "had many problems," was inaccurate, and was not password protected. Regardless of the veracity of these allegations, plaintiff's collateral attack on the reliability of TSIS does not raise a triable issue of fact concerning the issue of retaliation. When questioned by DuPont management, plaintiff's husband admitted that on a number of occasions he had substituted his payroll number for that of his wife's and that these substitutions often occurred with respect to lengthy break delay periods. (D.I. 99 at 201) Therefore, the accuracy of TSIS is not an issue. Nor does plaintiff's assertion that others used her payroll number without reprisal demonstrate that defendant's treatment of plaintiff was inconsistent with its treatment of other spinning machine operators. There is no indication in the record that any of the individuals cited by plaintiff used her payroll number for the purpose of creating a false impression as to her efficiency as a spinning machine operator, the charge levied by DuPont management against plaintiff and her husband and which formed the basis for plaintiff's probation. Consequently, comparison with these alleged instances of misuse does not raise an issue of material fact sufficient to preclude summary judgment.

Similarly, plaintiff has failed to demonstrate that defendant's enunciated reason for terminating her employment was pretextual. Plaintiff does not dispute that DuPont's disability plan provides for a "maximum period [of] six months for any single disability." (D.I. 90 at A119) Nor does she contest that her health care provider refused to release her to return to work after six months of disability leave. (D.I. 90 at Al0; D.I. 99 at A136) Instead, she asserts that there were many instances where employees at the Seaford Nylon Plant "received additional benefits of disability or special treatment." (D.I. 99 at 33-35) The record, however, is devoid of any objective evidence in support of this allegation. Likewise, there is no evidence in the record to support plaintiff's claim that her low performance review in January 1997 was unwarranted. Thus, there is no evidence of record from which a reasonable jury could infer that plaintiff's probationary review and termination were the result of retaliation for her filing complaints of harassment.

In sum, the evidence demonstrates that plaintiff was placed on probation because she falsified records and her employment was terminated because she was not released to return to work after her disability leave. The court concludes that plaintiff has failed to demonstrate directly or circumstantially any "weaknesses, implausibilities, inconsistencies, incoherences, or contradictions" in defendant's enunciated legitimate reasons for plaintiff's probation and termination from which a reasonable factfinder could rationally find the reasons ""unworthy of credence' and hence infer "that the employer did not act for [the asserted] non[retaliatory] reasons.'" Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (internal citations omitted) Consequently, summary judgment in favor of defendant is proper because plaintiff has failed to present evidence raising a triable issue of material fact concerning the issue of retaliation.


For the reasons stated above, the court concludes that there are no genuine issues of material fact relating to plaintiff's claims of hostile work environment and retaliation under Title VII. Therefore, defendant's motion for summary judgment shall be granted. An appropriate order shall issue.

Summaries of


United States District Court, D. Delaware
Aug 8, 2000
C.A. No. 98-669-SLR (D. Del. Aug. 8, 2000)

holding summary judgment is appropriate where there is no evidence that "facially gender-neutral conduct was based on perceptions about womanhood or gendered stereotypes of appropriate female behavior rather than factors individual to plaintiff"

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Case details for


Case Details


Court:United States District Court, D. Delaware

Date published: Aug 8, 2000


C.A. No. 98-669-SLR (D. Del. Aug. 8, 2000)

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