Opinion
8:99CV52
February 16, 2000.
April 2000.
MEMORANDUM AND ORDER
I. Introduction
Before me is the defendant Vicker's motion for summary judgment (Filing No. 26). The plaintiff brought this Title VII employment discrimination claim pursuant to 42 U.S.C. § 2000 et seq., against the defendant Vickers, her former employer, alleging hostile work environment and constructive discharge and against defendant Pace Local 50171, her union, alleging breach of contract and gross negligence (Filing No. 14, Amended Complaint). I have reviewed the record, the defendant's motion, the parties' briefs and indexes of evidence (Filing Nos. 27 and 33), and applicable law, and I find that the defendant's motion for summary judgment should be granted.
II. Standard of Review
Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court must view the evidence and the inferences which may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996). Furthermore, the court's function is not to weigh the evidence, but merely to determine whether there is sufficient evidence favoring the nonmovant for a finder of fact to return a verdict in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Id. at 250.
If the nonmoving party meets the initial burden of establishing the nonexistence of a genuine issue, then the burden shifts to the opposing party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256; Krenik v. County of LaSueur, 47 F.3d 953, 957 (8th Cir. 1995). Generally, a genuine issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Anderson, 477 U.S. at 248.
III. Statement of Facts
According to the complaint plaintiff Peggy DeSantiago was employed by defendant Vickers, Inc., from October 3, 1996, until she was discharged (or until she resigned) on or about April 21, 1997. In addition, she was a member of the Pace Local 50171 Union. Sometime in March 1997, DeSantiago alleges that a fellow employee and union steward, Wes Hoffman, began asking her sexually explicit questions about his body; discussing his penis, discussing its size and offering to show it to her; and showing her pictures of his penis, some with explicit sexual scenes. In addition, plaintiff contends that Mr. Hoffman pinched her rear-end on at least two occasions. Plaintiff admits that she knew Vickers had a sexual harassment policy and that she was aware of her rights under the policy. She chose not to pursue her rights under the policy, as she did not think it would do her any good.
DeSantiago contends that she asked Hoffman to cease these harassing practices. She further reported the behavior to Vickers management and to the Pace Local Union officials. She states that Vickers and Pace Local took no action.
She was then forced to undergo counseling as a result of Hoffman's alleged behavior. Her therapist recommended that she take a week off work from April 14 to April 20. When she returned to work on April 21, she states that Vicker's management sent her home. Although her evidence is contradictory, DeSantiago now contends that Vickers fired her the following day.
DeSantiago filed a complaint with the EEOC. After receiving a right-to-sue letter, she brought this lawsuit against Vickers. She later named Pace Local as a defendant in the lawsuit, although no allegations against Pace were filed with the EEOC.
Defendant Vickers answered and denied each of these allegations. Vickers filed this motion for summary judgment. Vickers claims that: (1) plaintiff has failed to establish a claim of a hostile work environment based on her sex; (2) Vickers took prompt, remedial action to end the alleged harassment; and (3) there was no constructive discharge of the plaintiff.
IV. Sexual Harassment: Hostile Work Environment
The plaintiff asserts that during her employment with the defendant she was subjected to sexual harassment by Wes Hoffman in violation of Title VII. Plaintiff states that she told a supervisor, Ebba O'Day, of the harassment during early April 1997. She further states that she informed Michael VanDervort, the Labor Relations Manager, on or about April 9, 1997, that she was being sexually harassed. She contends that management refused to take any action regarding the sexual harassment, and as a result she was forced to resign, or she was terminated.
The defendant contends that summary judgment is appropriate for the plaintiff's claim of hostile work environment for two reasons. First, the defendant argues that management exercised reasonable care to prevent and correct the allegedly offensive conduct as soon as the allegations were conveyed to them. Second, plaintiff fails to show that there was discrimination to support her hostile work environment claim that affected her terms and conditions of employment.
In order to state a claim for sex discrimination based on a hostile environment, the plaintiff must show that: (1) she belongs to a protected group; (2) she was subject to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take proper remedial action. Kopp v. Samaritan Health System, Inc., 13 F.3d 264, 269 (8th Cir. 1993).
The first factor, membership in a protected group, is satisfied by showing that the plaintiff employee is a man or a woman. Meritor Savings Bank v. Vinson, 477 U.S. 57, 66-67 (1986). The term "sex" as used in Title VII has accordingly been interpreted to mean either "man" or "woman," and to bar workplace sexual harassment against women because they are women and against men because they are men. Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1377 (8th Cir. 1996). The plaintiff satisfies this element through her status as a female.
The second element, "unwelcome sexual harassment," according to EEOC Guidelines on Discrimination Because of Sex, includes sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. 29 C.F.R. § 1604.11(a). The harassment need not be explicitly sexual in nature, though, nor have explicit sexual overtones. Hall v. Gus Const. Co., 842 F.2d 1010, 1014 (8th Cir. 1988). Since sexual harassment can occur in many forms, it may be evidenced by acts of physical aggression or violence and incidents of verbal abuse. Id. Moreover, harassing conduct is considered unwelcome if it was "uninvited and offensive." Burns v. McGregor Electronic Industries, Inc., 989 F.2d 959, 964-5 (8th Cir. 1993). The question of whether particular conduct was unwelcome will turn largely on credibility determinations by the trier of fact. Meritor, 477 U.S. at 68.
In this case the conduct complained of by the plaintiff was unwelcome. According to the plaintiff, over a period of several weeks Mr. Hoffman showed her sexually explicit pictures, made sexually suggestive comments, and pinched her buttock twice. Mr. VanDervort stated that Mr. Hoffman denied these allegations. However, because credibility determinations are not an appropriate basis for summary judgment, the Court must proceed in its analysis of the prima facie case.
The third required element is that the harassment complained of was based upon sex. The key inquiry 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." Stack v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316, 1326 (8th Cir. 1994). Evidence that members of one sex were the primary targets of the harassment is sufficient to show that the conduct was gender-based for purposes of summary judgment. Kopp, 13 F.3d at 269-70. Having carefully reviewed the evidence, the Court finds that women, and particularly the plaintiff, were the recipients of Mr. Hoffman's offensive conduct. It is arguable that a material fact exists on this element.
The fourth element is that the harassment must have also affected a term, condition, or privilege of employment. 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." Quick, 90 F.3d at 1378 ( citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)). Whether an environment is hostile or abusive cannot be determined by a "mathematically precise test"; it entails consideration of the entire record and all the circumstances. Id. There is no particular factor that must be present, but conduct that is merely offensive is insufficient to implicate Title VII. Id. Simple teasing, offhand comments, and isolated incidents, unless extremely serious, will not amount to discriminatory changes in the "terms or conditions of employment." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).
The plaintiff cites several separate occasions where she was subjected to harassment. However, the harassing behavior was conducted by one employee, not a supervisor, lasted for a few weeks at best, and was not reported to management until April, several weeks after the harassment had begun. No evidence has been submitted to show that (1) the workplace had significant discrimination or (2) that any condition of employment was affected. The possible exception to this conclusion is plaintiff's claim for constructive discharge. The Court addresses the constructive discharge claim in Section V and concludes that there is no basis for that claim. Therefore, the plaintiff fails to satisfy this element of the prima facie case.
The final element in a hostile work environment claim is that the employer failed properly to remedy the harassment it knew or should have known about. Sexual harassment by a co-employee is a violation of Title VII if the employer knew or should have known of the harassment and failed to take immediate and appropriate action. Burns, 989 F.2d at 966. In this case, Vickers contends that it took prompt, remedial action to end the alleged harassment by Hoffman. The employer is liable if it knew or should have known of the conduct and failed to take proper remedial action. Dhyne v. Meiners Thriftway, Inc., 184 F.3d 983, 988 (8th Cir. 1999); Callanan v. Runyun, 75 F.3d 1293, 1296 (8th Cir. 1996).
Plaintiff told O'Day of her complaint in early April and VanDervort of her complaints on April 9. After plaintiff complained to VanDervort, an investigation was conducted. VanDervort met with plaintiff on April 9 and with Hoffman on April 10 and met with departmental employees within a week. At those meetings investigations were undertaken and the sexual harassment policy reiterated. In this case, although Hoffman denied the behavior, he was given a verbal warning. He was further told that if this kind of behavior persisted, he would be severely disciplined (Affidavit of VanDervort). Where an employer's response to allegations of sexual harassment are prompt, the employer may be shielded from liability. Zirpel v. Toshiba America Information Systems, Inc., 111 F.3d 80, 81 (8th Cir. 1997). Further, plaintiff admits that the harassment ended after management intervention (DeSantiago Depo. 60:16-20, 61-2-14).
Based on the evidence presented, I find a jury could not return a verdict for the plaintiff on the claim of hostile environment. Anderson, 477 U.S. at 248. Plaintiff has made very little showing that this harassment affected a term or condition of her employment. She failed to report any of the alleged incidents to her supervisor. It appears that she told another supervisor of the inappropriate conduct. Once that occurred, remedial action was immediately taken by Mr. VanDervort. The harassment then stopped. Accordingly, the Court will deny the defendant's motion for summary judgment on the claim of hostile work environment.
V. Constructive Discharge Claim
Plaintiff also argues that she was constructively discharged from her employment. She contends that the work environment was so intolerable that she was forced to leave. Defendant argues that plaintiff voluntarily quit her position, and, therefore, summary judgment should be granted on this claim.
The Eighth Circuit has held that to constitute a constructive discharge, the employer's actions must be conducted with the intention of causing the employee to resign. Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir. 1981). Further, it is not sufficient that she simply shows a violation of Title VII. Hutchins v. International Brotherhood of Teamsters, 177 F.3d 1076, 1082 (8th Cir. 1999); Phillips v. Taco Bell Corp., 156 F.3d 884, 890 (8th Cir. 1998). "Constructive discharge occurs when an employer deliberately renders the employee's working conditions intolerable and thus forces him to quit his job." Klein v. McGowan, 198 F.3d 705, 709 (8th Cir. 1999); Kimzey v. Wal-mart Stores, Inc., 107 F.3d 568, 574 (8th Cir. 1997). "The intent element is satisfied by a demonstration that quitting was a "reasonably foreseeable consequence of the employers discriminatory actions."" Breeding v. Arthur J. Gallagher Co., 164 F.3d 1151, 1159 (8th Cir. 1999) ( quoting Summit v. S-B Power Tool, 121 F.3d 416, 421 (8th Cir. 1997)). Further, an employee has an obligation to not assume the worst and act too quickly for purposes of determining whether she has been constructively discharged. Tork v. St. Luke's Hospital, 181 F.3d 918, 920 (8th Cir. 1999). Minor changes in duties or working conditions do not constitute grounds for a constructive discharge claim. Kerns, 178 F.3d 1011, 1016-17 (8th Cir. 1999); Harleston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994). However, actions amounting to a constructive discharge constitute adverse employment actions for purposes of Title VII. Kerns v. Capital Graphics, Inc., 178 F.3d at 1016 ( citing Parrish v. Immanuel Med. Ctr., 92 F.3d 727, 732 (8th Cir. 1996)).
The plaintiff has, in her Amended Complaint, pleaded that she was discharged.
However, her EEOC charge states that plaintiff resigned. Plaintiff contends that the NEOC made a mistake when it typed "resigned" on her claim form. Plaintiff states that she told the NEOC officer that she had been terminated. Further, following her departure from Vickers, plaintiff filed for unemployment benefits. During her testimony, she stated on the record that she had voluntarily resigned.
Plaintiff has presented no evidence to show she was constructively discharged or that the employer created such a hostile environment to force the plaintiff to quit. She states that she received a letter indicating that she was being discharged for not returning to work after a one-week medical leave of absence. Defendant contends that such a letter was in fact written, but the letter was never mailed. Whether it was or was not mailed is not crucial to my decision. The facts as presented show that plaintiff did not return to work following her leave of absence. Vickers would have been justified in mailing the letter, if it had chosen to do so. Plaintiff has offered no evidence that she did in fact return to work or that this letter was a pretext for discrimination.
Plaintiff did request transfer to another position. VanDevort denied that request as he believed the collective bargaining agreement might not permit such a transfer. Whether VanDevort was correct or incorrect, I find that this denial is not sufficient to rise to the level needed in a constructive discharge case. This is especially true given the other remedial measures taken by VanDevort.
Plaintiff asks us to "infer" that something occurred during the April 22 meeting that caused plaintiff to resign. However, plaintiff offers the Court no evidence in this regard, and the burden is clearly on the plaintiff to offer evidence as to why and how plaintiff was forced to resign. Simple allegations at this stage are insufficient.
In summary, I find that the harassment complained of was conducted by one employee who was not in a supervisory capacity. I further find that the plaintiff failed to present her claims to the management until at least early April. I then find that management began to immediately take actions to address the plaintiff's allegations. Plaintiff then took a leave of absence until April 21. She did not return to work on the duly appointed return date. She did not call nor did she ask for additional leave. Following her meetings with management, she then resigned her position. I do not find sufficient evidence to submit to the jury with regard to whether plaintiff was constructively discharged. If the above facts as alleged are taken as true, they are not sufficient to force a reasonable person to leave her job. Breeding v. Arthur J. Gallagher Co., 164 F.3d at 1160. I find no convincing evidence that a reasonable person would have left under these circumstances without first giving the employer an opportunity to correct the inappropriate behavior.
THEREFORE, IT IS ORDERED ADJUDGED AND DECREED, that
1. Defendant Vickers' motion for summary judgment (Filing No. 26) should be and hereby is granted;
2. Defendant Vickers is dismissed from the case.
3. Plaintiff and defendant Pace Local Union 50171 shall each have Pace Local Union given the ruling today against the plaintiff and in favor of the defendant Vickers.
This matter is before the Court on defendant Pace Local 50171's (hereinafter Pace Local) motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (Filing No. 16). Pace Local contends that the Title VII claim, 42 U.S.C. § 2000e-2(a)(1), against it is time barred as no Equal Employment Opportunity Commission (EEOC) charge was made against Pace Local within the 300 days of any alleged discrimination. Pace Local further claims that subject matter jurisdiction does not exist with regard to Counts II and III as the amount in controversy does not exceed $75,000 and no federal question exists. Pace Local also alleges that the breach of contract claim is barred by the six-month statute of limitations applicable to § 301 of the Labor Management Relations Act. Last, Pace Local contends that plaintiff has failed to exhaust her administrative remedies pursuant to the collective bargaining agreement. Plaintiff disagrees with these contentions and urges the Court to deny Pace Local's motion to dismiss.
I. Factual Background
According to the complaint plaintiff Peggy DeSantiago was employed by defendant Vickers, Inc., from October 3, 1996, until she was discharged on or about April 21, 1997. In addition, she was a member of the Pace Local 50171 Union. Shortly after she began working for Vickers, DeSantiago alleges that a fellow employee and union steward, Wes Hoffman, began asking her sexually explicit questions about his body; discussing his penis, discussing its size and offering to show it to her; and showing her pictures of his penis, some with explicit sexual scenes.
DeSantiago contends that she asked Hoffman to cease these harassing practices. She further reported the behavior to Vickers management and to the Pace Local Union officials. She states that Vickers and Pace Local took no action.
She was then forced to undergo counseling as a result of Hoffman's alleged behavior. Her therapist recommended that she take a week off work from April 14 to April 20. When she returned to work on April 21, Vicker's management sent her home. She was subsequently fired the following day.
DeSantiago filed a complaint with the EEOC. After receiving a right-to-sue letter, she brought this lawsuit against Vickers. She later named Pace Local as a defendant in the lawsuit.
Defendant Vickers answered and denied each of these allegations. Defendant Pace Local filed this motion to dismiss.
II. Standard of Review
A complaint may not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts sufficient to support the claim. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); McCormack v. Citibank, 979 F.2d 643, 646 (8th Cir. 1992); Ronwin v. Smith Barney, 807 F. Supp. 87, 89 (D.Neb. 1992). A complaint in federal court need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir. 1999). The Court must take the allegations as true and allow all reasonable inferences arising therefrom in favor of DeSantiago. Schmedding, at 864; Doe v. Norwest Bank, 107 F.3d 1297, 1303-04 (8th Cir. 1997). We construe the complaint liberally in the light most favorable to the plaintiff. Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994). We must accept the allegations set forth in the complaint as true. Hishon v. King Spalding, 467 U.S. 69, 73 (1984). The Court will only grant a dismissal of a complaint where it is clear that there is a bar to relief. Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995).
III. Discussion
A. Title VII Claims
Pace Local first argues that the Title VII claims set forth in the amended complaint (Filing No. 14) are time barred. According to Pace Local, DeSantiago failed to file an EEOC claim within 300 days of the alleged acts of discrimination. Pace Local contends that the last possible date for alleging an EEOC charge would have been April 21, 1997. No Title VII claim was filed against Pace Local prior to February 14, 1998. DeSantiago does not address this issue in her brief in opposition to Pace Local's motion to dismiss.
The Court has reviewed the amended complaint (Filing No. 14) and finds that the first cause of action for Title VII discrimination is alleged only against the defendant Vickers. Further, it would appear from the right-to-sue letter (Filing No. 12) issued by the EEOC that only Vickers was copied on the letter. There has been no evidence submitted to the Court to substantiate that DeSantiago filed an administrative claim with the EEOC that named Pace Local as a defendant.
The statute requires that a charge be filed with the EEOC prior to initiating the lawsuit. 42 U.S.C. § 2000e-5(e). As a consequence, I find that the Title VII claim applies only to defendant Vickers in this case, and in any event it is my belief that after reviewing the complaint that DeSantiago filed it only as to defendant Vickers.
B. Subject Matter Jurisdiction
Defendant Pace Local alleges that no jurisdiction exists with regard to DeSantiago's Second Cause of Action — Breach of Contract and her Third Cause of Action — Gross Negligence as set forth in her amended complaint. Pace Local argues that these are "pendant law claims" that are preempted by § 301 of the Labor Management Relations Act. Additionally, claims Pace Local, no subject matter exists over these claims.
It is asserted that the gross negligence cause of action is (a) preempted by § 301, or even if it is not preempted, (b) that it does not meet the $75,000.00 jurisdictional requirement of 28 U.S.C. § 1332(a). DeSantiago contends that subject matter exists pursuant to the exercise of supplemental jurisdiction and that neither of these claims is subject to preemption.
With regard to the claim by Pace Local that this Court has no subject matter over the breach of contract and gross negligence claims, the Court has the discretion to permit supplemental jurisdiction of related claims when the Court has original jurisdiction over the claim and when the remaining claims are related to and part of the case and controversy of the original claim. 28 U.S.C. § 1367(a). The Title VII claim is legitimately before the Court. Although the claims against Pace Local are of a state court nature, they clearly arise out of the same nucleus of facts as the Title VII claim. The Court finds that it should take jurisdiction of these pendant claims. 28 U.S.C. § 1367(a).
C. Preemption Claim
Pace Local argues that both the second and third causes of action under the amended complaint are governed by the collective bargaining agreement and § 301 of the Labor Management Relations Act. Pace Local characterizes the breach of contract claim as either a breach of duty of fair representation or breach of the collective bargaining agreement. On that basis Pace Local argues that the six-month statute of limitations under § 301 of the Labor Management Relations Act applies to the breach of contract claim, relying on DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151 (1983), and Brown v. Local 701, 996 F. Supp. 781 (N.D.Ill. 1998).
Section 301 preempts those claims that arise out of the collective bargaining agreement. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407 (1988). Claims that are related to interpretation of a particular term of the collective bargaining agreement are preempted by § 301. See Schuver v. Midamerican Energy Co., 154 F.3d 795, 799 (8th Cir. 1998); St. John v. IAMAW, 139 F.3d 1214, 1217 (8th Cir. 1998); Smith v. Houston Oilers, 87 F.3d 717, 719 (5th Cir. 1996). Claims that are independent of the collective bargaining agreement are not preempted by § 301. See Hanks v. General Motors Corp, 906 F.2d 341, 344 (8th Cir. 1990); Meyer v. Schnucks Markets, Inc., 163 F.3d 1048, 1051 (8th Cir. 1998); Owen v. Carpenters' District Council, 161 F.3d 767, 775 (4th Cir. 1998).
Viewing the allegations in the light most favorable to DeSantiago, the Court finds that the second cause of action and the third cause of action can be characterized as claims that are independent of the collective bargaining agreement. DeSantiago is alleging a failure to protect her from sexual harassment of a union steward. This type of allegation falls outside the scope of the collective bargaining agreement.
However, with this said, I wish to note that the preemption claim is being posed at the motion to dismiss stage of this lawsuit. Since this issue was presented to me via a motion to dismiss, no evidence was offered nor was a copy of the collective bargaining agreement submitted. If during future discovery, Pace Local determines that it again wants to raise this issue in terms of a summary judgment motion with accompanying evidentiary support, it is free to do so. I have simply found today that DeSantiago is entitled to all inferences in her favor, and based on what has been presented to me, the allegations stated in causes of action two and three arguably present claims that are separate and distinct from the collective bargaining agreement.
As a result of these findings, it follows that the six-month statute of limitations under § 301 is inapplicable and that DeSantiago was not required to exhaust her administrative remedies under the collective bargaining agreement.
IT IS, THEREFORE, ORDERED that defendant Pace Local's motion to dismiss (Filing No. 16) should be and hereby is denied, with the understanding that the Title VII claim applies only to defendant Vickers.