Summary
holding that the combination of sex-specific derogatory terms such as "fucking bitch" and "regular instances of hostility directed at Plaintiff by her co-workers creates an inference of a hostile work environment sufficient to survive summary judgment"
Summary of this case from Vollmar v. SPS Techs., LLCOpinion
CIVIL ACTION NO. 03-CV-2508
January 13, 2004
MEMORANDUM ORDER
Presently before the Court is Defendant Aurora Equipment Company, Inc. d/b/a Equipto's Motion for Summary Judgment (Doc. No. 12) and Defendant's Motion for Permission to File Reply Brief in Response to Plaintiff's Memorandum of Law (Doc. No. 18). Defendant's Motion for Permission to File Reply Brief is granted. For the following reasons, Defendant's Motion for Summary Judgment will be denied.
Our review resolves all factual doubts and draws all reasonable inferences in favor of Plaintiff, the party opposing summary judgment. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1077 n. 1 (3d Cir. 1996).
Plaintiff began employment with Defendant on February 3, 1997. (Doc. No. 14, Ex. 1,
¶ 7.) At first, Plaintiff worked as a paint line unloader on the first shift. ( Id.) In May 1997, Plaintiff was transferred to the second shift to accommodate an employee who returned from sick leave. ( Id.;) Doc. No. 12, Ex. A at 28-29, "Flick Dep.") Plaintiff was the only female employee on the second shift. (Flick Dep. at 52.) Plaintiff alleges that several of her co-workers on the second shift acted in such a manner as to subject her to a sexually hostile work environment. Plaintiff complained to her supervisors about the sexual harassment, but the supervisors largely failed to take any corrective action. Eventually, Plaintiff resigned. She claims that she was constructively discharged. Plaintiff also alleges that Defendant retaliated against her for complaining about the sexual harassment she suffered. Plaintiff seeks relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") and the Pennsylvania Human Relations Act, 43 PA. CONS. STAT. § 951, et seq. ("PHRA").
The analysis required for adjudicating Plaintiff's claim under the PHRA is identical to a Title VII inquiry. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410-11 (3d Cir. 1999). We therefore do not need to separately address her claims under the PHRA.
Plaintiff suffered harassment that was both sexual and non-sexual in nature. With respect to the non-sexual harassment, Plaintiff described a variety of "nasty" conduct allegedly directed at her because of her sex. For example, on a number of occasions Plaintiff asked her male co-workers for assistance in unloading heavy items and they either ignored her or refused to help. (Flick Dep. at 33-35.) Other workers did not have a problem getting assistance. Plaintiff was told she needed to prove herself because she was a woman. ( Id. at 58.) On one occasion Plaintiff asked Dale Heckman, one of her co-workers, for help and in front of a group of male employees he called her a "fucking bitch." ( Id. at 39.) Other co-workers said that they were going to get Plaintiff to quit one way or another. ( Id. at 38.) Some co-workers refused to train Plaintiff as they were supposed to do. ( Id. at 61.) On one occasion Jim Miller, one of Plaintiff's supervisors, reprimanded Plaintiff for speaking with a female human relations manager when Plaintiff was supposed to be working. Miller did not reprimand male workers for similar conduct. ( Id. at 47-51.) Another one of Plaintiff's supervisors, Will Shaffer, conducted meetings with Plaintiff and her male co-workers and addressed the group as "gentlemen," seemingly excluding Plaintiff. ( Id. at 52.) Finally, one of Plaintiff's co-workers, Willie Drummer, would often tell Plaintiff to "screw" herself. ( Id. at 69.)
After the incident when Heckman cursed at Plaintiff, Plaintiff complained to Miller. ( Id. at 39.) Miller laughed and told Plaintiff not to worry about it and that nothing would be done. Plaintiff then told Miller that she was going to complain to Lee Parks, the next level supervisor. Miller told Plaintiff to keep her mouth shut and not to butt heads with him. ( Id. at 39-40, 100-101.) The next morning, Plaintiff called Tom Madyas, the owner of the company, in Texas and told him about the incident. Madyas was upset and said he was going to call Parks at once. ( Id. at 102.) The next day, Plaintiff met with Parks. Parks was upset that Plaintiff had gone over his head by complaining to Madyas, but he understood why Plaintiff had done so. He told her not to do it again. ( Id. at 103.) Later Plaintiff met with Parks and Heckman. At this meeting, Heckman apologized to Plaintiff. ( Id. at 43.) Although Plaintiff did not know it at the time, Heckman was issued a written warning in connection with this incident. ( Id. at 107.) Nevertheless, Heckman continued to use foul language with Plaintiff and Plaintiff continued to report this conduct to her supervisors. ( Id. at 44.)
After the meeting with Plaintiff, Parks and Miller decided to move Plaintiff to a different position with the company — one that did not require her to work with Heckman — in order to allow things to cool off. ( Id. at 40-41.) Plaintiff was assigned to the shipping department. ( Id.) at 41.) Plaintiff was not happy with her new Xassignment. In her new position, Plaintiff was forced to work behind file boxes and anyone who attempted to talk to her was chased away by Miller. ( Id. at 45-47.) In addition, all of Plaintiff s co-workers worked overtime, but Plaintiff was not permitted to do so. ( Id. at 45.) After approximately three months Plaintiff was transferred back to the paint line department and was forced to work along side her husband because no one else wanted to work with her. (Am. Compl. ¶ 14.) Working along side her husband contributed to marital problems between Plaintiff and her husband. (Flick Dep. at 93-96.) In June, 2000, Plaintiff's husband quit his job because he was unhappy about being forced to work along side his wife. ( Id. at 97.)
In September, 2001, one of Plaintiff's co-workers told her that when their supervisor left for vacation, "all hell was going to break loose," and Plaintiff's co-workers were going to get Plaintiff to quit "one way or another." ( Id. at 151.) The same co-worker advised Plaintiff to take a week of vacation to avoid trouble. ( Id. at 156.) The next morning, Plaintiff called Grace Smith, a human relations manager, and told her about the co-workers' plan. Smith told Plaintiff to "ignore it, just come in and be a better woman — to be a better person and just do [your] job." ( Id. at 154.) Later, however, Smith held two meetings to address Plaintiff's allegations. ( Id. at 157.) During the second meeting Plaintiff decided she was fed up with her working conditions and quit. ( Id. at 160.)
At times, the harassment directed at Plaintiff was of a sexual nature. For example, Mike Witkowski, one of Plaintiff's co-workers, repeatedly made motions simulating masturbation in front of Plaintiff. ( Id. at 53, 72-75, 77.) Witkowski would make these motions directly in front of Plaintiff when no one else was around. ( Id. at 77.) Plaintiff reported Witkowski's conduct to her supervisors, Miller and Greg Stocker. Miller replied that he would not do anything about the conduct because it "was a man's world." ( Id. at 75.) Witkowski continued to engage in this conduct in front of Plaintiff daily until the day that she resigned. ( Id. at 76.) Another of Plaintiff's co-workers would moon Plaintiff and pull up his shirt to show Plaintiff his "hairy chest." ( Id. at 81.) The same employee followed Plaintiff into the women's restroom several times. ( Id. at 139.) This conduct continued even after Plaintiff complained to her supervisor. ( Id. at 142.) Finally, several of Plaintiffs male co-workers would urinate outside a door near where Plaintiff worked. ( Id. at 33.)
Standard of Review
Defendant has moved for summary judgment on three separate grounds. First, Defendant claims that there is not sufficient evidence that the alleged harassment Plaintiff suffered was so severe and pervasive as to create a hostile work environment. Second, Defendant claims that there is not sufficient evidence that the alleged harassment Plaintiff suffered was based on her sex. Third, Defendant claims that there is not sufficient evidence that Defendant failed to take remedial action reasonably designed to resolve Plaintiff's complaints. For all three reasons, Defendant claims that Plaintiff has failed to demonstrate genuine issues of material fact that would entitle Plaintiff to relief on any of her discrimination claims.
Summary judgment is appropriate "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 a judgment as a matter of law." FED. R. CIV. P. 56(c). Defendant, the moving party, bears the burden of proving that no genuine issue of material fact is in dispute. Adickes v. S. H. Kress Co., 398 U.S. 144, 157 (1970). Once Defendant carries this initial burden, Plaintiff may not rest upon the mere allegations her pleading, but must set forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e). However, in considering Defendant's motion, we will not resolve factual disputes or make credibility determinations, and we must view facts and inferences in the light most favorable to Plaintiff. Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127(3d Cir. 1995).
Analysis
I. Pervasive and Regular Requirement
To survive a motion for summary judgment on a claim of sexual harassment based on a sexually hostile work environment, a plaintiff must raise a genuine issue of material fact as to the following five elements: (1) the plaintiff suffered intentional discrimination because of his or 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 Phila, 895 F.2d 1469, 1482 (3d Cir. 1990). With respect to the second element, the Third Circuit has held that "[h]arassment is pervasive when `incidents of harassment occur in concert or with regularity.'" Andrews, 895 F.2d at 1484 (quoting Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1189 (2d Cir. 1987)). The Supreme Court has emphasized that the harassment "must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986) (quotation omitted). Whether an environment is hostile and therefore actionable can be determined only by looking at 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 v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
The Court of Appeals for the Third Circuit has repeatedly recognized that its formulation of this prong differs from the Supreme Court's, which requires that the harassment be "severe or pervasive." See, e.g., Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 277 n. 6 (3d Cir. 2001). As discussed herein, a reasonable jury could conclude from the evidence in this case that Plaintiff suffered harassment that was pervasive, severe, and regular. Any difference in the two formulations is therefore not relevant to our decision on Defendant's motion.
Defendant claims that even when the evidence is viewed in the light most favorable to Plaintiff, no reasonable jury could conclude that Plaintiff experienced pervasive and regular harassment. According to Defendant, the record in this case, at best, depicts Plaintiff's co-workers as immature and unmotivated, but fails to demonstrate a hostile work environment required for liability under Title VII. Defendant argues that the facts alleged in this case compare favorably to those alleged Barbosa v. Tribune Co., No. 01-cv-1262, 2003 WL 22238984 (E.D. Pa. Sept. 25, 2003), wherein the district court granted summary judgment in favor of the defendant because the evidence did not support pervasive or severe harassment. In Barbosa, the plaintiff was employed for eighteen months, but could only point to seven specific incidents of harassment to support his claim of a hostile work environment. 2003 WL 22238984, at *4. The court could not conclude from so few instances that the plaintiff experienced pervasive or severe harassment. Id.
The facts in this case are clearly distinguishable from Barbosa, While the plaintiff in Barbosa could only point to seven instances of harassment over eighteen months, Plaintiff points to daily harassment over a period of many months. That harassment included one of her co-workers simulating masturbation directly in front of her on a daily basis, and another co-worker mooning Plaintiff and pulling up his shirt to show his "hairy chest." (Id. at 81.) Plaintiff further states that when she complained about the harassment to her supervisor she was told he would do nothing about it because it "was a man's world." The harassment alleged in this case is more like the harassment alleged in Suders v. Easton, 325 F.3d 432 (3d Cir. 2003), where the plaintiff, a female, began work as a police communications operator. Every day during the five months she was employed one of her supervisors performed a simulated professional wrestling move in front of her that involved his grabbing his crotch and yelling "suck it." Suders, 325 F.3d at 437. The supervisor would perform this move as many as five to ten times a shift. Another one of the plaintiff's supervisors regularly engaged plaintiff in sexually explicit conversations, though not on a daily basis. The Third Circuit found that this conduct constituted pervasive and regular harassment. Most persuasive to the court was the plaintiffs testimony regarding the wrestling move that her supervisor allegedly performed. Id. at 442. Similarly, Plaintiff here was subjected to daily harassment of a sexual nature. Moreover, Plaintiff alleges that her co-workers harassed her in a variety of other sexual and non-sexual ways, both on a regular and irregular basis. The combined effect of these acts is sufficient, in our view, to create a jury question as to whether Plaintiff worked in a hostile environment for purposes of Title VII.
This conclusion is reinforced by the fact that the harassment alleged by Plaintiff has many of the same characteristics of pervasive and regular harassment described in Andrews and Harris, For example, in Andrews the Third Circuit held that "[h]arassment is pervasive when `incidents of harassment occur in concert or with regularity.'" 895 F.2d at 1484. Here, there is evidence that Plaintiff's co-workers were acting in concert to harass Plaintiff. The threats that "all hell was going to break loose," and that Plaintiff's co-workers were going to get Plaintiff to quit "one way or another," are evidence that Plaintiff's co-workers were acting in concert to harass her. Considering all of the conduct alleged by Plaintiff, and considering the fact that Plaintiff was the only woman working with a group of men and was the only target of hostility, a reasonable inference can be drawn that Plaintiff's co-workers were harassing her because she was a woman.
Plaintiff testified that her co-workers refused to help her with certain tasks and no one else had that problem. (Flick Dep. at 57-58.)
The Harris court held that whether or not harassment is actionable can be determined only by looking at 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." 510 U.S. at 23. Here, the discriminatory conduct occurred frequently, and was physically threatening and/or humiliating as opposed to merely offensive. Clearly, a man mooning a woman or simulating masturbation in front of a woman on a regular basis could be considered threatening and/or humiliating to that woman. In addition, the harassment interfered with Plaintiff's performance of her job. As a result of the harassment she failed to get proper training, failed to receive assistance on certain jobs, was transferred to another position, and ultimately, was forced to resign. We are satisfied that, construing the facts in the light most favorable to Plaintiff, as we must, a reasonable jury could find that Plaintiff suffered harassment that was pervasive, severe, and regular.
II. Requirement of Intentional Discrimination Based on Sex
Title VII makes it unlawful for an employer "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." 42 U.S.C. § 2000e-2(a)(1). "To make out a case under Title VII it is `only necessary 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 (quoting Tomkins v. Public Serv. Elec. Gas Co., 568 F.2d 1044, 1047 n. 4 (3d Cir. 1977)). A valid claim of sex discrimination based on a hostile work environment may, but need not include allegations of harassing conduct with sexual overtones. Instead, "[i]ntimidation and hostility toward women because they are women can obviously result from conduct other than explicit sexual advances." Id. (quoting Hall v. Gus Constr. Co., 842 F.2d 1010, 1014 (8th Cir. 1988)). See also Anderson v. Deluxe Homes of Pa., Inc., 131 F. Supp.2d 637, 644 (M.D. Pa. 2001) ("Sexual harassment can take different forms, both sexual and non-sexual.").
In this case, Plaintiff has pointed to evidence that at least two of her co-workers regularly engaged in offensive conduct towards her with sexual overtones. This evidence, if believed, is by itself sufficient to show an intent to discriminate on the basis of sex. See Andrews, 895 F.2d at 1482 n. 3 ("The intent to discriminate on the basis of sex in cases involving sexual propositions, innuendo, pornographic materials, or sexual derogatory language is implicit, and thus should be recognized as a matter of course."). Defendant claims that we should discount the evidence that one of Plaintiff's co-workers made daily masturbation motions in front of her because he also made these motions in front of her husband and other men (Pl.'s Mot., Ex. F at 93-94), and he once told Plaintiff that his conduct showed "how [he] fe[lt] about this place" (Flick Dep. at 74). However, Plaintiff testified that Witkowski made these motions directly in front of her when no one else was around. ( Id. at 77.) She told him she thought his conduct was "sick," but he refused to stop. When she complained to a supervisor, she was told that nothing would be done because it "was a man's world." One could reasonably conclude that Witkowski's conduct was directed at Plaintiff because of her sex. In any event, there is also evidence that one of Plaintiff's co-workers would moon Plaintiff and pull up his shirt to show Plaintiff his "hairy chest." This can also be considered harassing conduct directed at Plaintiff because of her sex.
In addition to the sexual conduct directed at Plaintiff, Plaintiff has pointed to evidence of non-sexual but hostile conduct directed at her by her co-workers. For example, Plaintiff states that one of her co-workers called her a "fucking bitch," and thereafter regularly used foul language towards her. (Id. at 39, 44.) Another co-worker told Plaintiff that she needed to prove herself because she was a woman and her supervisor once refused to address Plaintiff's complaints, saying it was "a man's world." (Id. at 38, 75.) The combination of these sex-specific comments and the regular instances of hostility directed at Plaintiff by her co-workers creates an inference of a hostile work environment sufficient to survive summary judgment. See Andrews, 895 F.2d at 1485 ("[W]e hold 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."); Williams v. Gen. Motors Corp., 187 F.3d 553, 565-66 (6th Cir. 1999) ("The myriad instances in which [the plaintiff] was ostracized, when others were not, combined with the gender-specific epithets used, such as `slut' and `fucking women,' create an inference, sufficient to survive summary judgment, that her gender was the motivating impulse for her co-workers' behavior.").
Defendant argues that any hostility directed at Plaintiff was not on account of her sex. Rather, Defendant argues that Plaintiff was treated differently by her co-workers because they belonged to a clique, and Plaintiff was not a member of their clique. In fact, Plaintiffs husband testified that "[m]y understanding of the problems was — from my observation and stuff, was the guys that was up unloading had a little clique together, and they kind of like — as soon as anything that involved work would come down, they would take a hike and leave [Plaintiff] holding the bag." (PL's Mot, Ex. F at 46.) We are not convinced. Even if the hostility directed at Plaintiff by her co-workers was a result of her not belonging to their clique, it is a reasonable inference, based on the evidence, that the reason Plaintiff was not a member of their all-male clique was because she was a woman. Construing the evidence in the light most favorable to Plaintiff, we conclude that a reasonable jury could find that Plaintiff's co-workers had an intent to discriminate against Plaintiff based upon sex.
III. Requirement of Respondeat Superior Liability
Employers are not strictly liable for hostile work environments created by their employees. Vimon, 477 U.S. at 72. Rather, in the context of a hostile work environment claim under Title VII, employers are liable for their employees' sexual harassment only if a plaintiff can prove that management-level employees had actual or constructive knowledge of the existence of the hostile environment and failed to take prompt and adequate remedial action. Andrews, 895 F.2d at 1486 (citing Katz v. Dole, 709 F.2d 251, 255 (4th Cir. 1983)). Adequate remedial action is action "reasonably calculated to prevent further harassment." Knabe v. Boury Corp., 114 F.3d 407, 412-13 (3d Cir. 1997) (quoting Saxton v. ATT Co., 10 F.3d 526, 535 (7th Cir. 1993)). In other words, an employer is only liable for a hostile work environment under Title VII if the employer is negligent in responding to incidents of sexual harassment. See Bouton v. BMW of N. Am., Inc., 29 F.3d 103, 107 (3d Cir. 1994).
Defendant does not dispute that it had knowledge of the hostile work environment about which Plaintiff repeatedly complained. However, Defendant claims that it should not be liable for the actions of its employees because it took prompt and adequate remedial action in response to Plaintiffs complaints. We agree that the evidence in this case suggests that at times Defendant acted reasonably when responding to Plaintiffs complaints. However, other times Defendant did not act reasonably. For example, when Plaintiff complained to Miller about the incident with Heckman, Miller laughed and told Plaintiff he would not do anything about it. Clearly, this was not a reasonable response. On the other hand, after Plaintiff complained to Madyas, a meeting was held with Plaintiff and Parks and Heckman. At this meeting Heckman apologized to Plaintiff, and Heckman was issued a written warning. (Flick Dep. at 43, 107.) In addition, Plaintiff was temporarily transferred to another position — away from Heckman — in order to allow the situation to cool off. ( Id. at 40-41.) This response appears to have been reasonable. However, Plaintiff indicates that Heckman continued to use inappropriate language with her after this meeting and this conduct continued even though Plaintiff complained to three different supervisors. ( Id. at 44.) Construing the evidence in a light most favorable to Plaintiff, we conclude that a reasonable inference can be drawn that Defendant stopped responding to Plaintiff's complaints about Heckman. In sum, we conclude that a jury question exists as to whether Defendant acted reasonably in responding to Plaintiff's continuing complaints.
A jury question also exists concerning whether Defendant acted reasonably in responding to Plaintiff's other complaints of sexual harassment. When Plaintiff reported Witkowski's conduct to her supervisors, she was told nothing would be done because it "was a man's world." Apparently nothing was done because Witkowski continued to engage in this conduct in front of Plaintiff on a daily basis until the day that Plaintiff resigned. In addition, another employee continued to follow Plaintiff into the women's restroom even after Plaintiff complained to her supervisor. This certainly raises a jury question as to whether Defendant acted reasonably in responding to Plaintiffs complaints.
Under the circumstances, we are compelled to conclude that Plaintiff has raised genuine issues of material fact that preclude us from granting Defendant's motion for summaryjudgment.
An appropriate order follows.
ORDER
AND NOW, this __ day of January, 2004, upon consideration of Defendant Aurora Equipment Company, Inc. d/b/a Equipto's Motion for Summary Judgment (Doc. No. 12) and Defendant's Motion for Permission to File Reply Brief in Response to Plaintiff's Memorandum of Law (Doc. No. 18), and all papers filed in support thereof and opposition thereto, it is ORDERED that Defendant's Motion for Permission to File Reply Brief (Doc. No. 18) is GRANTED and Defendant's Motion for Summary Judgment (Doc. No. 12) is DENIED.
IT IS SO ORDERED.