Opinion
02-CV-3653(JMR/FLN)
March 18, 2004
ORDER
People do not always get along. And people occasionally overreact. And sometimes people who do not get along overreact in the workplace. This can be a toxic condition. But toxicity is not equivalent to discrimination, nor is it actionable in federal court. This is one such case.
Plaintiff brings this action under Title VII claiming gender-based disparate treatment, sexual harassment, and retaliatory discharge while employed at Avis Rent A Car, her former employer. This matter is before the Court on the parties' cross-motions for summary judgment.
After reviewing the submissions of the parties and arguments of counsel, the Court finds plaintiff has failed to demonstrate a triable case of sexual harassment, gender discrimination, or retaliatory discrimination. For the reasons set forth below, defendant's motion is granted, and plaintiff's motion is denied.
I. Background
The following facts are either undisputed or viewed in the light most favorable to plaintiff. Sharon Hesse began working for Avis Rent A Car ("Avis") in April, 1995, at the Minneapolis/St. Paul International Airport first as a customer service representative, and then as a rental agent. In August, 1998, she was promoted to a newly-created clerical position where she provided support to Theresa Braaten, the Maintenance Damage Turnback Manager. Several months later, the City Manager, Theresa Wallner, made the clerical position permanent, and Ms. Hesse assumed the title of Maintenance Damage Clerk.
Among other clerical duties, she documented vehicle repairs, communicated with vendors, and prepared vendor invoices for delivery to Avis's corporate offices. In the summer of 1999, she was given additional clerical duties under the supervision of Rodney Johnson, Avis's Maintenance and Damage Manager, who also supervised Avis's mechanics. Both Braaten and Johnson reported to Theresa Wallner.
A. Plaintiff's Complaint of Sexual Harassment
Plaintiff's complaints against Rodney Johnson date from an incident which occurred on November 17, 1999. Johnson asked plaintiff two or three times to make a telephone call to the City of Richfield regarding vehicle registrations. She declined to do so, and told Johnson to make the call himself. Johnson went to Braaten's office, and when he returned to the common area, he kicked the corner of plaintiff's desk and shoved the back of her chair. When plaintiff told him to stop, he responded, "What are you going to do about it." Plaintiff told Johnson she would "get [him] for harassment," and he pushed her chair again. (Hesse Deposition, February 21, 2003, at 70-77.)
Plaintiff and Johnson then agreed to speak to Theresa Wallner. After plaintiff related her version of the incident, Wallner indicated she wanted to speak to each of them individually. Plaintiff returned to her desk, and Wallner then met with Johnson. Afterward, plaintiff observed Wallner and Johnson in the hallway "talking and laughing" and concluded Wallner "wasn't going to respond to [her] plea." (Hesse Dep. at 78-81.)
Although plaintiff was aware of Avis's anti-harassment policy and several other avenues for reporting harassment within the company, she made no attempt to use these options. Instead, after leaving work, she made a "911" call to the Bloomington Police Department to report the incident with Johnson, saying she was afraid to return to work.
Plaintiff reported for work the following morning. The police complaint was dismissed as unfounded the next day. Wallner immediately met with plaintiff to discuss the situation and asked her to report the incident to Denise Jacobson, the Human Resources Manager.
At her meetings with Wallner and Jacobson, plaintiff was asked to identify Johnson's disturbing conduct. Plaintiff claimed that Johnson frequently "clapped his hands together really loud," knocked on the glass that separated her office from the garage area, and deliberately squeaked his tennis shoes to create a loud noise. Plaintiff believed he intended to intimidate and harass her with the noise, and stated that he sometimes laughed when she asked him to stop. Plaintiff also stated she felt offended and harassed by his supervision because he "badger[ed]" her by "repeating a question over and over." She acknowledged she disliked his criticism and would sometimes refuse to answer him. (Hesse Dep. 89-93, 96.)
Wallner counseled Johnson the next day, and within a week of the incident, Wallner and Jacobson met with plaintiff again to assure her that the noisemaking would stop. Jacobson followed up periodically with plaintiff to ensure that there were no further problems with Johnson. Based on plaintiff's complaints, Johnson was required to attend a management class in the winter of 1999.
The hand-clapping and shoe-squeaking subsided, and nearly a year passed, during which time plaintiff made no complaints about Johnson. However, in October, 2000, Johnson and plaintiff had a second conflict when Johnson shouted a question to plaintiff from his office and she refused to answer. Johnson emerged from his office, visibly angry, and yelled at plaintiff, who threatened to call the police if he did not leave her alone. Johnson immediately reported plaintiff's response to Wallner, who advised plaintiff to leave the work area if she felt threatened.
Following this incident, Johnson wrote to Wallner and Jacobson complaining about Hesse's response and asking for guidance. His letter referred to plaintiff's "911" call, indicating that he had not forgotten the incident. In November, Wallner met with Braaten, Johnson, Jacobson, and plaintiff to "ventilate" the issues. Plaintiff advised Johnson that she did not like him to yell or repeatedly ask her questions. Johnson raised concerns that plaintiff was spreading unfounded rumors about him. Wallner told both of them how she expected them to behave at work, and directed Braaten to act as an intermediary between them as needed.
At plaintiff's request, Johnson and Braaten met with her periodically to review her performance and hear her concerns. Although she does not dispute making mistakes, plaintiff felt Johnson unfairly criticized her work, and characterized his comments as "nitpicking." Plaintiff nonetheless admitted falling behind in her work. (Hesse Dep. 175, 178-180.)
Following plaintiff's complaint, Johnson's noisemaking grew less frequent, but never quite ceased. In September, 2001, Johnson was involved in an incident observed by plaintiff's husband, Gary Hesse, also an Avis employee. Mr. Hesse was working with another employee, Sheila Sexauer, when Johnson appeared and pounded loudly on the window shouting, "Hey, Sheila." When Johnson saw Mr. Hesse standing there, he said, "Not you, Gary, I'm talking — that was meant for Sheila." Johnson then asked Sexauer a question, which she answered, and then he left. Neither Johnson nor Sexauer recall this incident.
In her deposition, plaintiff asserted she was also sexually harassed by Braaten and a female co-worker, Kristi DeRop, and that throughout her employment, she felt harassed by what she perceived as Braaten's inappropriate flirtation with Johnson. Plaintiff felt similarly harassed by DeRop's attention to Gary Hesse. She recalled a single incident in the summer of 2001 when DeRop made a joke with sexual overtones about plaintiff's husband.
B. Hesse's Termination
After the terrorist attacks of September 11, 2001, Avis experienced a significant drop in rental business. In response to its revenue loss, Avis made efforts to cut costs, including reducing the size of the vehicle fleet. In November, 2001, Avis headquarters directed Wallner to reduce the size of her payroll. Wallner eliminated plaintiff's job and reassigned her duties to Braaten and Johnson. Plaintiff and thirteen male employees were laid off. Because plaintiff's position was eliminated, she was never called back to work. She learned, however, through her husband of other open positions, including that of rental clerk. She never contacted Avis to inquire about or apply for another job. Four months after being laid off, she found a job with another company.
Plaintiff brings no claims against Johnson; her claims are directed solely against Avis.
II. Analysis
A. Summary Judgment
Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact. Rule 56 of the Federal Rules of Civil Procedure (" Fed.R.Civ.P."); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246 (1986). The party opposing summary judgment may not rest upon the allegations set forth in its pleadings, but must produce significant probative evidence demonstrating a genuine issue for trial. See Anderson, 477 U.S. at 248-49; see also Hartnagel v. Norman. 953 F.2d 394, 395-96 (8th Cir. 1992). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis omitted). If the opposing party fails to carry that burden, or fails to establish the existence of an essential element of its case on which that party will bear the burden of proof at trial, summary judgment should be granted. See Celotex, 477 U.S. at 322.
Here, plaintiff seeks to recover under Title VII of the Civil Rights Act of 1964, which prohibits an employer from "discriminat[ing] against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's . . . sex [.]" 42 U.S.C. § 2000e-2 (a)(1). Plaintiff claims defendant's conduct created a hosfile work environment, and that she received disparate treatment because of her gender. She also alleges Avis terminated her employment in retaliation for her complaints of sexual harassment. 42 U.S.C. § 2000e-3(a).
To survive defendant's motion for summary judgment, plaintiff must demonstrate a genuine issue of material fact for trial on one of these three claims.
B. Sexual Harassment/Hosfile Work Environment
1. Prima Facie Case?
To prove a hosfile work environment, plaintiff's prima facie case must show that (1) she belongs to a protected group; (2) she was subjected to unwelcome harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition or privilege of her employment; and (5) the employer knew or should have known of the harassment and failed to take proper remedial action. Phillips v. Taco. Bell Corp., 156 F.3d 884, 888 n. 4 (8th Cir. 1998). Under this standard, the Eighth Circuit Court of Appeals has found vicarious liability for an employer when the harasser was an owner, manager, or supervisor. Id.
Plaintiff is female, and as such, is a member of a protected group. The Court assumes she found Johnson's conduct unwelcome, and that he was plaintiff's supervisor. For the reasons set forth below, however, the Court concludes plaintiff has failed to demonstrate a triable question of whether Johnson's alleged conduct — making noise, "badgering" her, and pushing her chair — was based on sex, or sufficiently severe and pervasive to affect her employment. Plaintiff therefore cannot establish a prima facie case of sexual harassment. Beyond this, Avis has produced overwhelming evidence showing it took proper remedial action regardless of the nature of the individuals' disagreements,
a. Was the conduct "based on sex"?
To establish that a hosfile work environment was gender-based, plaintiff must show a causal nexus between any harassment and her protected group status indicating she was "singled out because of her gender." Palesch v. Missouri Comm'n on Human Rights, 233 F.3d 560, 566-567 (8th Cir. 2000). "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.'" Quick v. Donaldson Co., 90 F.3d 1372, 1378 (8th Cir. 1996), quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring). The conduct "need not be motivated by sexual desire" to support an inference of discrimination. Oncale v. Sundowner Offshore Services. Inc., 523 U.S. 75, 80 (1998).
Abusive behavior is not "based on sex" if the harasser subjects both men and women to similar abuse. See Schoffstall v. Henderson, 223 F.3d 818, 826 (8th Cir. 2000) (conduct not sex-based when supervisor yelled and swore in presence of both male and female employees); Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 965 (8th Cir. 1999) (same); Montandon v. Farmland Indus. Inc., 116 F.3d 355, 358 (8th Cir. 1997) (same). Similarly, a supervisor's legitimate criticism of a female employee's mistake — however harsh or insensitive — is not harassment based on sex if the supervisor would have reacted the same way to a male employee's mistake. See Scusa. 181 F.3d at 965.
Plaintiff concedes that everyone at the Avis office was subjected to Johnson's hand-clapping, shoe-squeaking, window-rapping and general noisiness. Compare Montandon, 116 F.3d at 357-358 (harassment not based on sex where supervisor "used vulgar, profane language, slammed things, stomped around, loudly reprimanded employees and used intimidation" on men and women alike). Plaintiff acknowledges observing Johnson clapping his hands to get the attention of male garage technicians, and attempts to link noisemaking and gender by pointing to a single incident where Johnson rapped on a window in front of her husband and a female employee, and later claimed the noise was directed only at the female employee.
The Court determines, as a matter of law, that this isolated incident does not permit an inference that Johnson's noisemaking occurred "because of" sex, especially in the face of abundant testimony — including plaintiff's — that Johnson was equally loud toward male and female employees. The Eighth Circuit recently affirmed a grant of summary judgment for the employer where the plaintiff, like Hesse, acknowledged that an alleged harasser treated men and women alike. See Dattoli v. Principi, 332 F.3d 505, 506 (8th Cir. 2003) (conduct not sex-based when plaintiff admitted coworker harassed "everyone").
b. Was the conduct sufficiently severe or pervasive?
Plaintiff bears the burden of showing the conduct was "`sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Phillips, 156 F.3d at 888, quoting Harris. 510 U.S. at 21 (1993). The conduct must create an environment that would reasonably be perceived — and actually was perceived — to be hosfile or abusive.Harris, 510 U.S. at 22. A court looks to 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" in making this determination. Id. at 23. These considerations are designed to "`filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.'"Duncan v. General Motors Corp., 300 F.3d 928, 934 (8th Cir. 2002), quoting Faraaher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
This is a case where the Court recognizes that Title VII does not oblige courts to impose a "`general civility code'" in the workplace. To be actionable, conduct must be "extreme and not merely rude or unpleasant" in order to materially affect the terms or conditions of employment. Alagna v. Smithville R-II School Dist., 324 F.3d 975, 980 (8th Cir. 2003), quoting Faraaher, 524 U.S. at 788. As a rule, "`isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms or conditions of employment.'"Meriwether v. Caraustar Packaging Co., 326 F.3d 990, 993 (8th Cir. 2003), quoting Faragher, 524 U.S. at 788.
It is at this point that the parties appear to have overreacted. No one disputes plaintiff and Johnson had a difficult working relationship; he bumped her chair, and she made a "911" emergency call and filed a police complaint about it. The Court hasn't the slightest doubt this was unpleasant, and it was certainly uncongenial on both sides.
But the Eighth Circuit has found conduct much more frequent and intrusive than Johnson's insufficiently severe or pervasive as a matter of law. See, e.g., Alagna, 324 F.3d at 377-79 (co-worker "invade[d] [plaintiff's] personal space," touched her arm, looked her up and down, often told her he "loved" her and that she was "very special", called her at home several times); Duncan, 300 F.3d at 931-32 (supervisor propositioned plaintiff, touched her hand several times, displayed pictures of nude women and sexual toys in the workplace, and instructed plaintiff to type up a list of derogatory statements about women); Dattoli, 332 F.3d at 506 (several incidents "plainly based on . . . gender" over several years not sufficiently severe or pervasive); Wallin v. Minnesota Dept. of Corrections, 153 F.3d 681, 688 (8th Cir. 1998) (in ADA case, three incidents over two years not sufficiently severe or pervasive). Single incidents with much more significant physical contact do not meet the standard. See Palesch, 233 F.3d at 567 (female co-worker damaged plaintiff's car, shoved plaintiff against a wall and threatened her with bodily harm);Meriwether, 326 F.3d at 993 (male co-worker grabbed plaintiff's buttock).
Plaintiff was clearly offended by Johnson's behavior but cannot prove that a reasonable person would be similarly offended. The record reflects no other employee complaints about Johnson's noisemaking. Even Sheila Sexauer, who, according to plaintiff's husband, was the "target" of Johnson's noisemaking, did not complain. Indeed, she stated under oath that she had no recollection of the incident at all.
Johnson's only conduct that is arguably "severe" was his frustrated shove of plaintiff's chair and his kicking her desk. In response, plaintiff called the police. Even assuming this incident rose to the level of "severe", it is the only incident of its kind in the record, and is therefore not "pervasive."
By the same analysis, no reasonable jury could consider the alleged harassment by Braaten and DeRop to be severe or pervasive.
Even granting to plaintiff each of her allegations, she has not presented a triable case on the question of whether she was subjected to conduct "based on sex" or sufficiently "severe and pervasive" to establish a prima facie case. Her claim must fail.
c. Avis's Response
An employer may not be vicariously liable for the sexual harassment if it "(a) . . . exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). In assessing the reasonableness of an employer's measures, the Eighth Circuit considers "the temporal proximity between the notice and the remedial action, the disciplinary or preventive measures taken, and whether the measures ended the harassment." Meriweather, 326 F.3d at 994.
All parties agree that the supervisor, Theresa Wallner, met with plaintiff and Johnson immediately after the chair incident, and then again with each party individually to discuss the chair incident the following day. Plaintiff's concerns were addressed at these meetings. Wallner encouraged plaintiff to discuss her concerns, provided an open channel for complaints, directed Johnson to stop making noise, and sent Johnson to management class. The human resources manager contacted plaintiff several times afterward to ensure Johnson's conduct was no longer a problem. Although it appears Johnson's noisemaking never quite stopped, even plaintiff acknowledges it diminished. There is no record of any further incidents of Johnson shoving plaintiff's chair or kicking her desk. Plaintiff made no further complaints about Johnson to any Avis supervisor. These facts strongly suggest the employer's measures were effective.
Under the Meriweather standard, the Court finds Avis's response was prompt and effective as a matter of law, and that Avis cannot be held vicariously liable for Johnson's conduct. Summary judgment for the defendant is therefore appropriate on the sexual harassment claim.
C. Other Gender Discrimination
At the summary judgment stage, in the absence of direct evidence that Avis terminated plaintiff for discriminatory reasons, the Court applies the familiar McDonnell Douglas mu burden-shifting analysis. Cronguist v. City of Minneapolis, 237 F.3d 920, 926 (8th Cir. 2001). To establish this case, plaintiff must make a prima facie showing of discrimination by demonstrating that she (1) is a member of a protected class, (2) was qualified to perform her job, (3) suffered adverse employment action, and (4) was treated differently than similarly-situated men. Schoffstall, 223 F.3d at 825.
In this acknowledged post-September 11 reduction in force context, plaintiff must produce "some additional evidence" that gender was a factor in her termination. Herrero v. St. Louis Univ. HOSP., 109 F.3d 481, 483-484 (8th Cir. 1997). If plaintiff makes this showing, the burden shifts to defendant to produce a legitimate, non-discriminatory reason for plaintiff's termination. Plaintiff then must respond with evidence showing (1) a factual issue as to whether the employer's proffered reasons are pretextual, and (2) a reasonable inference that discrimination was a determinative factor in the adverse employment decision. Cronquist, 237 F.3d at 926, citingRothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1336-37 (8th Cir. 1996).
Plaintiff is female, was qualified for her position, and was laid off. However, she has utterly failed to show that Avis treated men preferentially when selecting who would be laid off and recalled. Every other employee laid off in the wake of September 11 was male. Plaintiff has presented evidence of no similarly situated men who either survived the layoffs or who were recalled into a different job.
To the contrary, Avis has presented evidence showing legitimate non-discriminatory reasons for her dismissal. Avis has shown that plaintiff's position was eliminated for economic reasons following the downturn in travel business after the terrorist attacks of September 11, 2001. The undisputed evidence shows Avis faced a business necessity to cut payroll costs, and, in turn, Wallner made a business decision to eliminate plaintiff's recently-created job and completely reassigned all of her duties to male and female former supervisors. Thirteen others, all men, were laid off at the same time as plaintiff. Avis also presented evidence that its failure to recall plaintiff arose because her job no longer existed. On this showing, it is for plaintiff to attempt to show Avis's proffered reason was pretextual; plaintiff has failed to carry this burden.
Plaintiff has presented no evidence of pretext. Although she makes vague assertions that some of the men laid off were called back, she does not identify them and provides no evidence that they were called back into positions other than those from which they were laid off. Most tellingly, she has not shown that anyone of any gender was called back into the position of Maintenance and Damage Clerk. That position is gone. The Court notes plaintiff became aware of openings for other positions at Avis for which she was qualified, but chose not to pursue them.
Based on all of the evidence, no reasonable jury could find that Avis laid off or failed to recall plaintiff because of her sex.
D. Retaliation
The McDonnell Douglas analysis also applies to claims of retaliation. To make a prima facie showing of retaliation, plaintiff must establish by a preponderance of the evidence that (1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3) that there was a causal connection between the adverse employment action and the protected activity. Rheineck v. Hutchinson Technology, Inc., 261 F.3d 751, 757 (8th Cir. 2001). If plaintiff establishes her prima facie case, the burden shifts to defendant to produce a legitimate, non-retaliatory reason for the termination.Id., citing Montandon, 116 F.3d at 359. If defendant provides a legitimate, non-retaliatory reason for the termination, the burden shifts back to plaintiff to demonstrate that the articulated reason is pretextual. Rheineck, 261 F.3d at 757.
Here again, the Court assumes plaintiff satisfies elements (1) and (2) of her prima facie case. The Court may even indulge in the supposition that a "911" call could be considered "protected activity" under Title VII. Even with these assumptions, plaintiff cannot establish a causal link.
The courts have been willing to infer a retaliatory motive when a plaintiff's employment is terminated shortly after a complaint, but a significant lapse of time weakens this inference. See Hocevar v. Purdue Frederick Co., 223 F.3d 721, 726 n. 5 (8th Cir. 2000) (one month lapse supported inference); Krough v. Cessford Constr. Co., 336 F.3d 710, 712 (8th Cir. 2003) (nine month lapse weakened inference). Generally, more than a temporal connection is needed to establish an issue of fact on causation. Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir.) (en bane),cert. denied, 528 U.S. 818 (1999).
Here, nearly two full years elapsed between plaintiff's November, 1999, complaints and her November, 2001, termination. Even assuming Johnson remained concerned about the "911" call, he was not the person who terminated her employment; that decision was made by Wallner in the business downturn following the September 11 tragedy. The Court finds as a matter of law that plaintiff cannot establish a prima facie case of retaliation.
Even if she could, she would be obliged to prove that Avis's reason for terminating her was pretextual. She has failed to do so. On the facts presented in this case, the Court determines that no reasonable jury could find plaintiff was laid off in retaliation for her complaint against Johnson two years earlier.
III. Conclusion
It is well-settled in the Eighth Circuit that "employment discrimination laws have not vested in the federal courts the authority to sit as super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination." Kiel, 169 F.3d at 1136, citingHutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995). Absent evidence linking Hesse's termination either to gender or to statutorily protected activity, her claim fails as a matter of law. Hesse has failed to produce evidence showing Avis did not terminate her based on a genuine need to reduce costs in response to a downturn in business. Accordingly,
1. Plaintiff's motion for summary judgment [Docket No. 12] is denied.
2. Defendant's motion for summary judgment [Docket No. 8] is granted.
3. This case is hereby dismissed.
IT IS SO ORDERED.
LET JUDGMENT BE ENTERED ACCORDINGLY.