Summary
holding that a fine deducted from plaintiff's pay was an adverse employment action
Summary of this case from Enjoi Transp., LLC v. City of DetroitOpinion
No. 1:01-cv-305
April 15, 2003
MEMORANDUM
Plaintiffs Katherine and Joseph Vernarsky ("Katherine," "Joseph," and collectively "the Vernarskys") bring this action alleging sexual harassment, sex discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964. The Vernarskys assert that these claims arose during their employment as "over-the-road" truck drivers with the defendant, Covenant Transport, Inc., ("Covenant"). The case is before the Court on Covenant's motion for summary judgment regarding the Vernarsky's claims of sexual harassment and retaliation. [Court File No. 79]. The Vernarskys oppose this motion. [Court File No. 87].
The defendant's motion [Court File No. 79] will be GRANTED IN PART and DENIED IN PART. I. Standard of Review
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the nonmoving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907.
II. Facts
The record suggests the following findings of fact if viewed in the light most favorable to the Vernarskys.
In April 2000, the Vernarskys began their employment as "over-the-road" truck drivers for Covenant. The Vernarskys attended Covenant's orientation program from April 13 through April 19. At some point during this orientation, the Vernarskys received a copy of Covenant's manual entitled "Rules and Regulations for Drivers," which contains a statement of Covenant's sexual harassment policy.
Following the completion of the orientation program, all drivers without over-the-road experience were paired with trainers who instructed the new hires while driving for a period of weeks. Upon completion of the training period, the new drivers must pass a driving test before they are assigned their own deliveries. From April 20, 2000, through April 24, 2000, the Vernarskys were paired with James Key ("Key"). Katherine alleges that the Key's actions during these four days constitute disparate treatment and sexual harassment.
Specifically, Katherine asserts that the following alleged actions give rise to her claims against Covenant:
1. Key presented Katherine with a bucket containing urine and said "we don't make stops for potty breaks, you're gonna go in the bucket." [Court File No. 87 Ex. A at 74].
2. Key inquired regarding what Katherine would wear to bed at night by asking; "You don't have any of that sexy lingerie, do you?"[Court File No. 87 Ex. A at 74]. Later Key saw her sleeping and said "I'm disappointed you're not wearing lingerie."[Court File No. 87 Ex. A 76].
3. Key told the Vernarskys that on his truck it was "a three-way marriage."[Court File No. 87 Ex. A at 85].
4. Key commented on Katherine's figure telling her that she looked good in comparison to another woman. [Court File No. 87 Ex. A at 77].
5. Key would look at Katherine when she was in the back of the truck for several seconds at a time. [Court File No. 87 Ex. A at 91].
6. Once, Key touched Katherine on the buttocks while standing below her as she descended from the truck cab. [Court File No. 87 Ex. A at 83].
7. Key put his hand on Katherine's hand and told her "You are doing very — you handle this truck really well" and "I want you to know that your shifting is real good." [Court File No. 87 Ex. A at 105].
8. While driving Key said to the Vernarskys: "I can bury you both out there and no one would ever even know that it happened, and no one would ever find your bodies." [Court File No. 87 Ex. A at 110-111].
9. Katherine states that she overheard Mr. Key on the telephone saying that "he had raped and beat a girl who got off his truck." [Court File No. 87 Ex. A at 127].
The Vernarskys contacted Covenant after several days on the road with Key. Covenant told them to stay on the truck with Key until they reached Illinois where they would be assigned a new trainer. When they contacted Covenant once in Illinois, the Vernarskys assert that their dispatcher Mickey Pressnell, did not plan to let them off the truck, and Covenant did not agree to separate them from Key until they threatened to quit. The Vernarskys then assert that Covenant prevented them from getting a promised bus ticket until the next day.
Following their separation from Key, the Vernarskys were assigned to be trained by Harold Menge ("Menge"). The Vernarskys drove with Menge from April 27, 2000 through May 5, 2000. Katherine also alleges, during this time, that Menge's actions constitute disparate treatment and sexual harassment.
Katherine asserts that the following alleged actions give rise to her claims against Covenant:
1. Menge told the Vernarskys that women should not be truck drivers and were only fit for paperwork. [Court File No. 87 Ex. A at 146-149]
2. Menge would not allow Katherine to "shift" or practice backing up. [Court File No. 87 Ex. A at 150]
3. Menge viewed pornographic magazines and videos and masturbated on the bottom bunk while the Vernarskys were in the truck. [Court File No. 87 Ex. A at 156, 163]
4. Menge told the Vernarskys that they would be fired if they reported him. [Court File No. 87 Ex. A at 161-162].
Joseph asserts that he contacted Covenant initially regarding Menge's behavior from a truck stop. [Court File No. 87 Ex. B at 193]. He states that they were told to get back on the truck with Menge to keep their jobs. [Court File No. 87 Ex. B at 198]. The Vernarskys got off of Menge's truck in Colorado and contacted Covenant.
Following their separation from Menge, the Vernarskys were trained by a third trainer and successfully "tested out" of the training program. Katherine does not assert any further instances of disparate treatment or sexual harassment. However, both Katherine and Joseph assert that Covenant retaliated against them following their reports of sexual harassment and disparate treatment resulting in their constructive discharge.
The Vernarskys' claim of retaliation are based on the following alleged actions by Covenant:
1. Covenant failed to provide a promised bus ticket the same day the Vernarskys separated from Key.
2. Covenant incorrectly entered Joseph's address in the employee database resulting in misdirection of benefits information and payment of state income tax to the wrong state.
3. Covenant falsely charged Joseph with a "filthy truck"charge.
4. The plaintiffs' miles were miscalculated.
5. Katherine's student bonus was not paid.
6. Joseph repeatedly was selected to take "random" drug tests.
6. Covenant turned off the plaintiffs "ComCards".
7. When Joseph and Katherine were not on the same truck together and were trying to meet up to resume driving as a team, Covenant did not help them find each other.
"ComCards" are issued to the drivers and used by drivers to pay for gas and to obtain paycheck advances when necessary.
Covenant's employee documentation shows that the Vernarskys terminated their employment in December 2000; however, Katherine states that the Vernarskys last drove for Covenant on October 28, 2000. [Court File No. 87 Ex. A at 67].
III. Analysis
A. Sexual Harassment
Title VII of the Civil Rights Act of 1964 prohibits discrimination by an employer "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 phrase "`terms, conditions or privileges of employment,' includes a prohibition against requiring people to work in a discriminatorily hostile or abusive environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). However, "[c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would not find hostile or abusive — is beyond Title Vii's purview." Id. The victim must also subjectively find the environment to be abusive for a Title VII violation to exist. Id. The overarching principle in such cases is to examine the plaintiffs claims considering the "totality of the circumstances." Williams v. General Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999), citing Harris, 510 U.S. at 23.
1. Classifications of Trainers as Supervisors or Co-workers.
The first issue that must be resolved regarding Katherine Vernarsky's claim of sexual harassment based on a hostile work environment is whether the two trainers allegedly engaging in harassing behavior were Katherine's supervisors or co-workers. The Court concludes that Key and Menge were Katherine's co-workers.
Title VII defines an employer as "a person engaged in a industry affecting commerce . . . and any agent of such person." 42 U.S.C. § 2000e(b). However, Title VII does not define the term "agent." The Sixth Circuit has joined the Fourth and Tenth Circuits by defining an "agent" as "an individual who `serves in a supervisory position and exercises significant control over the plaintiffs hiring, firing or conditions of employment.'" Pierce v. Commonweath Life Ins. Co., 40 F.3d 796, 803 (6th Cir. 1994) (citations omitted). The Seventh Circuit has noted that "the fact that an employer authorizes one employee to oversee aspects of another employee's job performance does not establish a Title VII supervisory relationship." Hall v. Bodine Electric Co., 276 F.3d 345, 355 (7th Cir. 2002). The Sixth Circuit recognized a similar distinction by holding that an alleged harasser was not a supervisor for the purposes of Title VII because, although he had informal supervisory duties, he did not have the formal title of supervisor nor did he have the power to hire or fire . . . Stevens v. United States Postal Service, 2001 WL 1298955 at *2 (6th Cir. August 7, 2001).
"The burden of proof to show that [the harasser] was the plaintiffs supervisor lies with the plaintiff." Sicalieds v. Pathmark Stores, Inc., 2000 WL 760439 (E.D. Pa. June 12, 2000) (citation omitted see also, McCormick v. Kmart Distribution Center, 163 F. Supp.2d 807 (N.D. Ohio 2001). The Vernarskys insist both Key and Menge qualify as supervisors because (1) a trainer's approval was necessary to graduate from the training program, (2) the Covenant Drivers Manual provides that students will be subject to termination if they get off a trainer's truck without the fleet manager's permission, (3) Key told Katherine he was her boss while she was on his truck, (5) Menge was a "master trainer," and (4) notes from the investigation of an unrelated allegation of sexual harassment suggest that Jon Huston, Covenants's director of human resources, warned a trainer that "as a supervisor, you can get sued." [Court File No. 88 at 8].
The record suggests that Covenant's trainers were actually co-workers of their students. Covenant's "Trainer-Student Program Rules and Regulations" manual provides that "a student may upgrade to a regular Driver with the Trainer's and the Fleet Manager's approval and successful completion of an upgrade evaluation that will include a practical skills test and road test." [Court File No. 87 Ex. T]. As only one of three factors, the trainer's role in "approving" the upgrade of a student does not constitute an exercise of "significant control over the plaintiffs hiring, firing or conditions of employment." Pierce, 40 F.3d at 803. Further, the "Rules and Regulations for Drivers" instructs students that a trainer "is not allowed to put you off the truck for any reason with out the authorization of your Fleet Manager." [Court File No. 87 Ex. U]. This instruction along with other instructions in the manual reinforce the conclusion that a trainer lacks authority to take actions that can be said to alter the conditions of the student's employment. Notably, the Vernarskys' own experience of training with three different trainers and graduating from the training program suggests that the approval of Key and Menge was not actually necessary to graduate from the program.
The Vernarskys also assert that the manual provided that they could be terminated for leaving the truck without the Fleet Manager's permission, and that this supports the claim that Key and Menge were supervisors. [Court File No. 87 Ex. U]. Instead, this provision demonstrates the authority of the Fleet Manager and points out that the trainers lacked the authority to independently authorize students to leave the truck.
In support of their claim that the trainers were supervisors, the Vernarskys also allege that Key told Katherine that he was her boss and that Menge was a "master trainer." [Court File No. 87 Ex. A at 65, Ex. J at 87]. Employer liability for sexual harassment may arise from apparent authority. "If, in the unusual case, it is alleged there is a false impression that the actor was a supervisor, when he in fact was not, the victim's mistaken conclusion must be a reasonable one." Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 759 (1998). To establish apparent authority, the Vernarskys must show that they reasonably believed that Key and Menge possessed "significant control over the plaintiffis' hiring, firing or conditions of employment." Pierce, 40 F.3d at 803. The Vernarskys access to the above-mentioned Covenant manuals suggest that neither Key's assertion to Katherine that he was her boss nor Menge's designation as a master trainer could create a reasonable belief that Key or Menge exercised the control that is required to establish supervisory authority. Additionally, the deposition testimony of Joseph demonstrates his recognition that Key routinely exaggerated his own importance. [Court File No. 95 Ex. B at 85, 141]. Although not argued by the plaintiffs, the depositions suggest that both Key and Menge stated that they could have the plaintiffs fired. [Court File No. 79 Ex. A at 63-65]. However, rather than implying that either had actual authority within the company, these statements suggest that Key and Menge were referring to informal authority due to personal relationships with those who possessed the authority. Katherine's deposition testimony recognizes that neither Key nor Menge ever discharged or disciplined the Vernarskys. [Court File No. 79 Ex. A at 55, 56].
The plaintiff points to deposition testimony of Mike Pressnell, a fleet manager, who explained that the designation of "master trainer" is given to trainers who have trained either thirteen or fourteen students [Court File No. 87 Ex. J at 87].
Joseph explained that Keys also told him that he owned a "five million dollar house, and Arabian horse ranch in Missouri," that his wife "works for Disney Corporation and she was the head accountant," and that he had "driven Porsches and Lamborghinis." [Court File No. 95 Ex. B at 141]. Mr. Key states that he discounted each of the statements because "he wouldn't be driving a truck" if they were true. [Court File No. 95 Ex. B at 85, 141].
The Vernarskys' reference to unauthenticated notes, described in the plaintiffs' response only as "Huston Memo," does not aid their attempt to create a genuine issue of material fact as to the status of Key and Menge. [Court File 87 Ex. W]. This document appears to be an interview with a trainer regarding an allegation of sexual harassment unrelated to this case. Neither the identity of the author nor the context for creation of the document is provided. Furthermore, the statement attributed to Mr. Huston and directed at a trainer, that "as a supervisor, you can get sued" does not suggest that Mr. Huston was referring to a definition of supervisor similar to the one applied by the Sixth Circuit for the evaluation of claims under Title VII. Therefore, applying the Sixth Circuit definition of a supervisor to the facts viewed in the light most favorable to the plaintiff, the Court finds that Key and Menge were the Vernarskys' co-workers.
2. Prima Facie case for Co-worker Sexual Harassment.
There are five elements essential to establish a prima facie case of a hostile work environment claim based on the actions of a co-worker. Williams v. General Motors Corp., 187 F.3d 553, 561 (6th Cir. 1999). The first four are identical to those necessary to establish harassment by a supervisor; the fifth is unique to situations involving harassment by a co-worker. A plaintiff must show that "(1) she was a member of a protected class; (2) she was subject to unwelcomed sexual harassment; (3) the harassment was based on her sex; (4) the harassment unreasonably interfered with her work performance and created a hostile work environment; and (5) [the employer] knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action." Blankenship v. Parke Care Ctrs., Inc., 123 F.3d 868, 872 (6th Cir. 1997) (internal quotation marks and citations omitted). It is important to note that if an employer is found to be liable due to co-worker harassment, "the employer is liable . . . directly, not derivatively." Id.
Covenant asserts that the plaintiffs have failed to establish their prima facie case regarding the third, fourth, and fifth elements. With regard to the third element, the defendant is correct in asserting that some of the most offensive allegations regarding the actions of Key and Menge likely do not contribute to establishing the Katherine's prima facie case of sexual harassment because they were not "based on sex" and were offensive to both Joseph and Katherine Vernarsky. See EEOC v. Turngreen Ltd. P'ship, 122 F. Supp.2d 986, 989, 992 (W.D. Wis. 1999) (noting that "it is important to remember that the term `sex' from Title VII is a reference to the victim's gender, not to carnal matters" and that the alleged harasser may have acted without regard to the plaintiffs gender simply because he was "a crude individual."). However, the complaint also includes allegations which appear to specifically address Katherine.
With regard to the fourth element, the test of hostile work environment requires the Court to ask whether the conduct is "severe or pervasive enough to create an objectively hostile or abusive work environment" Harris, 510 U.S. at 21. This standard must be applied to claims while considering the "totality of the circumstances." Williams v. General Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999), citing Harris, 510 U.S. at 23. Katherine's claims regarding the actions of Key and Menge, such as commenting on the clothing she wore to bed, telling her that women should not drive trucks, and preventing her from gaining truck driving experience, must be considered in light of all the circumstances including the alleged behavior such as viewing pornography and masturbating in the truck while both the Vernarskys were present. The plaintiffs, therefore, have created an issue of material fact regarding the existence of an hostile work environment.
Covenant also asserts that Katherine fails to meet the fifth element which requires that she must show that the employer "knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action." Blankenship, 123 F.3d. at 872. The Sixth Circuit Court of Appeals has explained that "when an employer responds to charges of co-worker sexual harassment, the employer can be liable only if its response manifests indifference or unreasonableness in light of the facts the employer knew or should have known." Id. at 873. In both the case of Key and Menge, the Vernarskys' testimony suggests that their initial report of sexual harassment went unheeded by Covenant. [Court File 79, Ex. A at 115, Ex. B at 198]. Thus, leaving a genuine issue of material fact regarding the reasonableness of Covenant's response which must be resolved by the jury.
B. Sex Discrimination
Katherine alleges "sex discrimination" in addition to sexual harassment and retaliation in her complaint. As discussed above, both Key and Menge were Katherine's co-workers. Katherine has not alleged any discrimination based on sex other than the events giving rise to her claim for sexual harassment based on the conduct of Key and Menge. As co-workers of Katherine's, neither Key nor Menge were in a position to cause an a adverse employment action. Katherine's allegation of constructive discharge is not sufficiently close in time to the actions of either of these men to serve as the requisite employment action for a claim of sex discrimination under a theory other than sexual harassment.
C. Retaliation
The prima facie case of retaliation requires the plaintiff to prove that: "(1) she engaged in activity protected by Title VII; (2) this exercise of protected rights was known to defendant; (3) defendant thereafter took adverse employment action against the plaintiff, or the plaintiff was subjected to severe or pervasive retaliatory harassment by a supervisor; and (4) there was a causal connection between the protected activity and the adverse employment action or harassment." Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000) (emphasis removed). Once the plaintiff establishes the prima facie case of retaliation, the burden shifts to the defendant to establish a legitimate, nondiscriminatory reason for its actions. Id. The plaintiff may then rebut the defendant's articulated reason by proving that these reasons were mere pretext. Id.
If they reported sexual harassment, both Katherine and Joseph engaged in an activity protected by Title VII. See 42 U.S.C. § 2000e-3. This reporting would necessarily make Covenant aware of the exercise of this right. Thus, the first two elements of the plaintiffs prima facie case are met.
On the third element, the Vernarskys must show that the alleged acts of retaliation meet the definition of adverse employment action. "To constitute an adverse employment action, an act must result in a loss in pay or benefits, a detrimental change in responsibilities, a negative change in the terms and conditions of employment, or some such actual and unfavorable change in job status." Birone v. Indian River School, 1998 WL 199791, at *4 (6th Cir. April 15, 1998). Some of the plaintiffs' allegations do constitute adverse employment actions; however, the following three allegations of retaliation do not meet this definition.
First, Joseph asserts that Covenant made him repeatedly take drug tests as a form of retaliation. Covenant responds that Joseph took an initial drug test prior to employment and took only one random drug test. [Court File No. 79 Ex. D at C]. Joseph acknowledges that the only other drug test was requested by Covenant and that he did not take this test. [Court File No. 87 Ex. B at 251]. Joseph does not identify any adverse action that came from refusal to take the third drug test requested by Covenant. It appears that no action other than a verbal request to take a drug test occurred. Absent any action, this occurrence cannot be said to meet the definition of an adverse employment action.
Joseph refers to a fourth drug test, however, he acknowledges that test was required by the truck driving school he attended and that "it had nothing to do with Covenant." [Court File No. 87 Ex. B at 251].
Second, the plaintiffs allege Covenant prevented them from returning to Chattanooga on the day of their separation from Key by failing to provide a promised Greyhound bus ticket after they verbally reported Key's alleged harassment. Covenant responds that although the ticket was not ready when they arrived at the Greyhound station, the depositions of both Katherine and Joseph reveal that they spoke with an individual at Covenant who confirmed that the ticket should be waiting at the station and did not know why it was not there. [Court File No. 87 Ex. A at 134-135, Ex. B at 126]. The Vernarskys received the promised tickets at the Greyhound station the next day. [Court File No. 87 Ex. B at 131]. The Vernarskys note that they did receive extra money on their CoinCards, but that it was not enough so they had to walk to an undesirable hotel. [Court File No. 87 Ex. B at 124, 128]. The Vernarskys have failed to demonstrate that this action resulted "in a loss in pay or benefits, a detrimental change in responsibilities, a negative change in the terms and conditions of employment, or some such actual and unfavorable change in job status" as required to meet the definition of an adverse employment action. See Birone, 1998 WL 199791 at *4.
Third, the Vernarskys asserts that Covenant failed to tell Katherine and Joseph where the other spouse could be found when they were not driving the same truck. Covenant responds by noting that Joseph admits Covenant may not have known where his wife was at the time. [Court File No. 95 Ex. B at 274]. Covenant also points out that in an effort to reconnect the Vernarskys, Joseph was allowed to drive "off route" and switch trucks with another driver. [Court File No. 79 95, Ex. B at 254-260, 267-268]. Failure to provide information regarding the location of a spouse when Covenant was not responsible for their separation does not meet the definition of an adverse employment action.
The fourth element of the prima facie case requires that the Vernarskys meet the burden of establishing a causal connection between the alleged instances of retaliation and the protected activity of reporting sexual harassment. To show a causal connection, the Vernarskys must produce evidence from which an inference can be drawn that the protected activity of reporting the harassment was the likely reason for the adverse action. See Zanders v. National R.R. Passenger Corp, 898 F.2d 1127, 1135. "Proximity in time between protected activity and an adverse employment action alone may not support an inference of retaliation." Fox v. Certainteed Corp., 1999 WL 1111495 at *6 (6th Cir. 1999) citing Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987) (temporal proximity alone will not support an inference in light of compelling evidence to the contrary); Cooper v. City of North Olmstead, 795 F.2d 1265, 1272 (6th Cir. 1986) (proximity of four months alone not sufficient).
The plaintiffs have failed to meet the burden of producing evidence from which an inference can be drawn to suggest causation as to the following allegations of retaliation. First, the plaintiffs assert that Covenant miscalculated Katherine's miles. This assertion is based on a comparison of the miles attributed to Katherine compared to Joseph's miles. [Court File No. 87 Ex. A at 197]. Katherine acknowledges, however, that she and her husband were not always on the same truck. [Court File No. 87 Ex. A at 223]. The Vernarskys also assert that other drivers were assigned more miles than they were. [Court File No. 87 Ex. A at 200]. However, the plaintiffs do not identify any drivers who received more miles. Covenant points to the Drivers Manual which provides that the miles are based on the Rand McNally Household Movers Guide. [Court File No. 79 Ex. D at B p. 40]. Katherine acknowledges that she does not know how the miles were calculated, who calculated them, or whether that person knew that they had complained about harassment. [Court File No. 79 Ex. A at 198, 199].
The second claim failing to demonstrate causation involves the allegation that Katherine did not receive her student bonus. Katherine asserts that she was denied her student bonus although she admits that she is not certain how the bonus would be paid or if the person in charge of this knew about her complaint of harassment. [Court File No. 87 Ex. A at 220].
Third, the plaintiffs assert that Covenant incorrectly listed an Alabama address for the Vernarskys which resulted in their income tax being paid to the wrong state and problems receiving insurance cards and pay statements. Covenant responds that this mistake was made due to an administrative error in which another new employee's address was substituted for the Vernarskys' address. This error occurred on the first day of orientation, prior to any allegations of harassment. [Court File No. 79, Ex. D at E F]. The Vernarskys provide no evidence to suggest that the incorrect address was not entered during orientation and prior to the beginning of their training with Key or Menge.
Fourth, the Vernarskys assert that Covenant turned off their CoinCards in retaliation. Covenant shows that each of the incidents during which a CoinCard was turned off coincided with one of the following events: an inappropriate use of the card when an attempt is made to withdraw over $500; at all times when the drivers are not on the road; when the Vernarskys stated that they intended to quit; or when the Vernarskys failed to respond to a message from Dispatch. [Court File No. 80 at 7]. The plaintiffs do not produce evidence that these events did not occur for the proffered reason beyond the assertion that the cards were turned off in an effort to retaliate. [Court File No. 87 Ex. A at 221]. The Vernarskys do not know who was responsible for deactivating CoinCards or if this person was aware of their report of sexual harassment. [Court File No. 79 Ex. A. 220, Ex. B 237].
As to the remaining alleged retaliatory action, the Vernarskys meet their prima facie case. An inference of causation can be drawn from the temporal proximity of the alleged retaliation and the protected activity coupled with the probability that the persons responsible for the actions were aware of the Vernarsky's report of sexual harassment. The defendant has offered a legitimate reason for the activity, but the plaintiff has provided sufficient evidence to raise a question regarding whether the reason offered was mere pretext. See EEOC v. Avery Dennison Corp., 104 F.3d 858, 862 (6th Cir. 1997); Jackson v. Pepsi-Cola, Dr. Pepper Bottling Co., 783 F.2d 50, 54 (6th Cir. 1996).
Joseph asserts that Covenant retaliated by issuing a $600 "filthy truck" charge against him. Because this fine was deducted from his paycheck and resulted in a loss in pay, this action serves as an adverse employment action for retaliation analysis. Covenant asserts that the truck was actually filthy and that a portion of the charge was later refunded. [Court File No. 79 Ex. D at M]. Joseph asserts that the truck for which the charges were assessed was assigned to Menge's and that the truck was, in fact, "spotless," although acknowledging that half of the charge was later refunded. [Court File No. 87 Ex. B at 219-220]. This charge appears to have been issued eleven days after the Vernarskys' separation from Menge. Because Joseph alleges that the charges were associated with Menge's truck, an issue of material fact exists regarding whether the charge was a form of retaliation based on the Vernarskys' report of harassment by Menge.
The plaintiffs also assert that they were constructively discharged due to the alleged retaliatory actions discussed above. Constructive discharge can be an adverse employment action for the purposes of analyzing a retaliation claim. "To constitute a constructive discharge, the employer must deliberately create intolerable working conditions, as perceived by a reasonable person, with the intention of forcing the employee to quit and the employee must actually quit." Moore v. Kuka Welding Sys. Robot Corp., 171 F.3d 1073, 1080 (6th Cir. 1999); see also Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 887 (6th Cir. 1996) (ADA case stating that plaintiff must show "that working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." (internal citations and quotations omitted)) The only claim of retaliation that survives summary judgment involves the assessment of a fine to Joseph for a filthy truck charge several months prior to the Vernarskys' separation from Covenant. [Court File No. 79 Ex. D at M]. The Vernarskys can point to no other actions taken by Covenant, after May 16, 2000, for which they can maintain a claim. The charging of a "filthy truck" fine, even if shown to be a retaliatory action, does not by itself rise to the level of creating a working condition that would force a reasonable person to quit. Thus, the only claim of retaliation to survive summary judgment is Joseph's claim for a "filthy truck" charge that was deducted from his paycheck.
IV. Conclusion
For the reasons stated above, Covenant's motion for summary judgment will be GRANTED IN PART and DENIED IN PART. The motion is DENIED as to Katherine Vernarsky's claim of sexual harassment due to a hostile work environment and Joseph Vernarsky's claim for retaliation due to the assessment of a "filthy truck" charge. The motion is GRANTED for the Vernarskys' other claims of retaliation including their claim of retaliatory constructive discharge which are DISMISSED. An order will enter.
ORDER
Plaintiffs Katherine and Joseph Vernarsky bring this action alleging sexual harassment, sex discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964. The Vernarskys assert these claims against their former employer, Covenant Transport, Inc. The case is before the Court on Covenant's motion for summary judgment. [Court File No. 79]. Katherine and Joseph Vernarsky oppose this motion. [Court File No. 87].
For the reasons stated in the accompanying memorandum, Covenant's motion for summary judgment [Court File No. 79] is GRANTED IN PART and DENIED IN PART. Katherine Vernarsky's claim of sexual harassment due to a hostile work environment, as well as Joseph Vernarsky's claim of retaliation based on a "filthy truck" charge, remain before the Court. The Vernarskys' other claims of retaliation, including their claim of retaliatory constructive discharge, are DISMISSED WITH PREJUDICE. The parties shall prepare for trial.
SO ORDERED.