Opinion
Civil Case No. 01-B-871 (BNB).
March 6, 2003.
ORDER
Plaintiff Robin K. Gunoe-Reape ("Reape") brings a Title VII gender discrimination claim under the theories of hostile environment, sex discrimination, retaliation, and constructive discharge against Defendant Joe M. Allbaugh, Director of the Federal Emergency Management Agency Mobile Operations Division in Denver, Colorado (hereinafter "FEMA"). FEMA moves for summary judgment. The motion is adequately briefed and oral argument would not materially aid its resolution. For the reasons set forth below, I GRANT the motion.
I. Facts
The following facts are undisputed unless otherwise noted. On September 14, 1998, Robin Reape began working for the Federal Emergency Management Agency ("FEMA"). FEMA hired her to be the Assistant Chief of the Mobile Operations Center ("MOC") of the Denver Mobile Emergency Response Team ("MERS"). She was hired as a GS-13 level, step 4 employee. David Six, who was Chief of Operations, was her direct supervisor. Her second level supervisor was Norm Winterowd, the MERS Chief.
On September 18, 1998, Jack Siegert, a GS-13 level supervisor, told Ms. Reape that he had seen more of her in a week than he had seen of her predecessor in the last couple of years. Mr. Siegert then told her that the MERS was a "good old boys network" and she should not "make waves." He admitted that he had "made waves" before and consequently received two letters of reprimand.
In November 1998, Bernie Nichter, a MERS employee assigned to the Logistics Section, made a series of sexist comments to Ms. Reape. Upon seeing her making coffee in the break room, he asked her if she was making coffee for the "boys in the MOC." He repeated the question on two other occasions within the next week. The first time Mr. Nichter made the comment, Ms. Reape responded that she would put Mr. Nichter in a headlock if he said that again. The second time, Ms. Reape responded by stating, "I'm married to a big guy and I can take care of him, so I can take care of you." On the third occasion, Ms. Reape responded by asking Mr. Nichter if he had a bad sense of humor or was "just a sexist." Mr. Nichter replied that he just had a bad sense of humor.
Ms. Reape reported Mr. Nichter's comments to Mr. Winterowd. Mr. Winterowd advised Ms. Reape to contact an Equal Employment Opportunity ("EEO") counselor. Ms. Reape followed that advice. She told the EEO counselor that she was unsure of what to do, and ultimately decided to forego filing an EEO complaint. Ted Stretmoyer, Mr. Nichter's supervisor, later learned of the comments and verbally reprimanded Mr. Nichter. Mr. Nichter did not make offensive comments to Ms. Reape again.
Shortly after reporting Mr. Nichter's comments to Mr. Winterowd, Ms. Reape approached Mr. Winterowd about Mr. Nichter's office. Though he was not a supervisor, Mr. Nichter's office was located in the management section of the building. That management section was thought to be nicer than the section in which Ms. Reape's office was located. Mr. Nichter also enjoyed nicer furniture that Ms. Reape.
Ms. Reape asked Mr. Winterowd to give her Mr. Nichter's office or furniture to send the message that Mr. Nichter and others should show her the appropriate level of respect. Mr. Winterowd agreed to give Mr. Nichter's furniture and office to Ms. Reape. In January 1999. Ms. Reape moved into Mr. Nichter's office and Mr. Nichter moved to a different floor of the building. Mr. Nichter testified at deposition that he understood his move to be unrelated to his interaction with Ms. Reape.
On December 5, 1998, Ms. Reape issued Ron Klass a letter of reprimand for refusing to pay attention at an orientation seminar. Mr. Klass then filed an Equal Employment Opportunity complaint alleging that Ms. Reape had discriminated against him because of his gender. He also filed a formal grievance. Three days later, Mr. Winterowd advised Ms. Reape that someone had referred to her as the "pushy little woman in the MOC who wants to be the MERS Chief." He refused to disclose the source of the comment to her.
By that time, Mr. Winterowd and Ms. Reape would go to lunch together approximately every other week. On January 25, 1999, Mr. Winterowd told Ms. Reape that they could no longer be seen leaving and returning to the FEMA building together. Mr. Winterowd was concerned that Ms. Reape's subordinates might call his wife and suggest that he and Ms. Reape were having an affair.
On February 2, 1999, Ron Haskell, a MERS diesel mechanic greeted Ms. Reape by stating "Hey Sunshine." The next day, Ms. Reape wrote a memorandum to Mr. Haskell's supervisor, Ted Stretmoyer, advising him of the inappropriate greeting. In the memorandum, Ms. Reape also stated that she had second-hand information that Mr. Haskell might be "handsy" with other female personnel.
After receiving the memorandum from Ms. Reape, Mr. Stretmoyer verbally counseled Mr. Haskell on the inappropriate nature of his remark. Mr. Haskell and Mr. Stretmoyer confronted Ms. Reape. Mr. Haskell wanted Ms. Reape to tell him who made the "handsy" remark, but Ms. Reape did not disclose that information. Mr. Haskell then apologized to Ms. Reape. He did not refer to Ms. Reape as "Sunshine" or another inappropriate name again.
Mr. Winterowd subsequently asked Ms. Reape to remove the "handsy" reference from her memorandum to Mr. Stretmoyer. He explained that the allegation was unsubstantiated and he was concerned that Mr. Haskell would file a grievance in retaliation. Mr. Winterowd, meanwhile, had approached the woman who allegedly confided in Ms. Reape. The alleged complainant refused to acknowledge the incident or acknowledge that she had said anything to Ms. Reape about it.
On February 25, 1999, MERS electronics technician Felton Green began addressing Ms. Reape as "Mrs. Reape." Previously Mr. Green had addressed Ms. Reape by her first name, as was the custom at the MERS. After being called "Mrs. Reape" several times, Ms. Reape responded, "Mrs. Reape is my mother-in-law." She later advised Mr. Winterowd of the problem. Mr. Winterowd talked to Mr. Green about calling Ms. Reape by her first name.
In response to his discussion with Mr. Winterowd, Mr. Green sent Ms. Reape an e-mail explaining his reasons for addressing her as "Mrs. Reape." He explained that he would "address people . . . who are intolerant of others . . . by their given name." Ms. Reape responded, stating that she was sorry he felt that way and that he was authorized to call her Robin. The e-mail discussion was forwarded to Mr. Winterowd.
Mr. Winterowd again discussed the situation with Mr. Green. Mr. Green then approached Ms. Reape to discuss the situation with her, but she was unavailable to speak with him. Ms. Reape sent Mr. Green a final e-mail in which she stated that she considered the matter resolved.
In late March 1999, Jack Siegert sent Ms. Reape an e-mail asking what shifts she would be working because his Telecommunications employees did not want to work with her. Ms. Reape reported the e-mail to Mr. Winterowd. Mr. Winterowd recommended to FEMA Headquarters that Mr. Siegert be suspended for fifteen days. FEMA Headquarters reduced the suspension to five days. FEMA did not impose that suspension, however, because Mr. Siegert was subsequently terminated for possession of computer pornography.
In April 1999, Dave Six — Ms. Reape's direct supervisor — retired. Ms. Reape assumed Mr. Six's duties of the Chief of the MOC. Months later, Ms. Reape advised Pauline Campbell, head of the FEMA EEO Office in Washington D.C., that she intended to resign from work at the Denver MERS because of the office atmosphere. After further discussions with Ms. Campbell, however, Ms. Reape accepted a temporary assignment to the FEMA facility at Mount Weather, Virginia. That assignment gave the FEMA EEO Office an opportunity to investigate the Denver MERS office.
While Ms. Reape was at Mount Weather, some of the Denver unit's employees called the Mount Weather office to warn the employees there to "watch their backs" around Ms. Reape. Then in July 1999, Steve Levinsohn, Director of the Mobile Operations Division in Washington, D.C., conducted a management review of the Denver office. In August, Ms. Reape sent Mr. Levinsohn an e-mail indicating that she wanted to end her Virginia assignment and return to Denver. In the e-mail, Ms. Reape stated she would no longer work for Norm Winterowd. Nor was she willing to work in the Denver MERS if current management remained there. She wrote, "Unless someone can think of a Denver local non-MERS employment opportunity or promise my harassers will no longer be around to harass me, I must assume that August 12, 1999, will also be my last day with the agency."
Mr. Levinsohn advised Ms. Reape that she could return to the Denver MERS and assume her previous position as Assistant Chief of the MOC. He advised her that he temporarily assigned J.D. Rooker, from Denton, Texas, to be the Acting MOC Chief in Denver in replacement of Mr. Six. Mr. Levinsohn expressed his desire for Mr. Rooker to act as a "buffer" between Ms. Reape and the other supervisors.
Ms. Reape declined the arrangement, and indicated that she would only return to Denver if the other MERS supervisors were fired. If that was not possible, Ms. Reape wanted to work at home or be assigned to another region. Mr. Levinsohn advised Ms. Reape that the options she desired were not available. Ms. Reape resigned on August 12, 1999.
II. Summary Judgment Standard
The purpose of a summary judgment motion is to assess whether trial is necessary. See White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Rule 56(c) provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, that it believes demonstrate the absence of genuine issues for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1984); Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir. 1992). Once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in the complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried. Rule 56(e); see also Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980). These facts may be shown "by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Celotex, 477 U.S. at 324.
III. Title VII Gender Discrimination Claim
Ms. Reape asserts that FEMA discriminated against her based on her gender during the course of her employment. The allegations are supported by no direct evidence of gender discrimination. Therefore, I apply the McDonnel Douglas burden-shifting analysis. See McDonnel Douglas v. Green, 411 U.S. 792 (1973); Thomas v. Denny's, Inc., 111 F.3d 1506, 1509 (10th Cir. 1997):
The framework for assessing discrimination claims that are not based solely on direct evidence is well known. The plaintiff has the initial burden of establishing a prima facie case. If the plaintiff does so, the defendant then has the burden of articulating a "legitimate, nondiscriminatory reason for the employee's rejection." The plaintiff must then be afforded a full and fair opportunity to show that the employer's proffered reason was in fact a pretext for unlawful discrimination.Thomas, 111 F.3d at 1509 (internal citations to McDonnel omitted).
FEMA moves for summary judgment on each of Ms. Reape's Title VII gender discrimination theories. She premises her claim on the theories of hostile work environment, gender discrimination, retaliation, and constructive discharge.
A. Prima Facie Case
FEMA challenges Ms. Reape's prima facie case with respect to each of her theories of recovery.
1. Hostile Work Environment
FEMA first moves for summary judgment against Ms. Reape's hostile work environment theory. FEMA contends that summary judgment is appropriate because the instances of which Ms. Reape complains do not create an objectively hostile or abusive work environment. FEMA also contends that summary judgment is appropriate because it took prompt remedial action in response to Ms. Reape's complaints. I agree with both assertions.
a) Severity of the Conduct
FEMA first contends that the conduct of which Ms. Reape complains is not severe or pervasive enough to support a hostile work environment theory.
Title VII is violated when discrimination based on gender creates a hostile or abusive work environment. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 66 (1986). A hostile work environment is present where conduct in the workplace has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment. See Sauers v. Salt Lake County, I F.3d 1122, 1126 (10th Cir. 1993); see also Meritor Savings Bank, 477 U.S. at 65. A hostile environment is one which would reasonably be perceived, and is perceived, as hostile or abusive. See Meritor, 477 U.S. at 67. Ms. Reape must show that under the totality of the circumstances (1) the harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment, and (2) the harassment was based on her gender. See Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994), Meritor, 477 U.S. at 67.
In evaluating the first prong of a hostile work environment claim, I look 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." See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). A few isolated incidents of gender enmity are insufficient to survive summary judgment. See Bolden, 43 F.3d at 551.
Upon her arrival, Ms. Reape was informed that the MERS was a "good old boys network" and warned not to make waves. Then, on three separate occasions, Mr. Nichter asked her if she was making coffee for the "boys in the MOC." Later, Mr. Winterowd told Ms. Reape that she and he could not be seen leaving and returning together because other employees might suggest that they were having an affair. In the coming year, Ms. Reape was greeted by "Hey Sunshine"; addressed as "Mrs. Reape" against her wishes; asked when she would be working so that another supervisor could avoid assigning his employees at the same time; and advised that someone referred to her as a "pushy little woman in the MOC who wants to be the MERS Chief."
The comments Ms. Reape endured were not frequent, severe, physically threatening, or pervasive. Nor has Ms. Reape shown how that conduct unreasonably interfered with her work performance. Thus, reasonable jurors could not disagree that the incidents upon which Ms. Reape bases her claim are not pervasive or severe enough to sustain a hostile work environment theory.
b) Remedial Action
Ms. Reape's hostile environment theory must also fail because of FEMA's reasonable responses to her complaints. An employer is accountable for the acts of an employee in a Title VII case: "(1) where the conduct occurred within the transgressor's scope of employment, (2) where the employer knew, or should have known, about the violation and failed to respond in a reasonably manner, or (3) where the transgressor acted with apparent authority or was aided by the agency relation." Ford v. West, 222 F.3d 767, 775-76 (10th Cir. 2000) (emphasis in original) (citing Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1269 (10th Cir. 1998)).
Ms. Reape does not contend that the alleged sexual harassing conduct occurred within the scope of employment or that any employee had apparent authority to make such comments. Thus, to assert liability, she must show that her employer "had actual or constructive knowledge of the hostile work environment but did not adequately respond to notice of the harassment." Id. at 776 (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673 (10th Cir. 1998)).
FEMA does not contest that it had notice of the comments Ms. Reape endured. Thus, I look to whether the responses to those comments were reasonable. Ms. Reape first reported inappropriate comments in response to Mr. Nichter's comments that she was making coffee "for the boys." She reported those comments to Mr. Winterowd. Mr. Winterowd advised her to contact an EEO counselor. After meeting with the EEO counselor, Ms. Reape decided not to file a formal complaint. Mr. Nichter was subsequently admonished and his inappropriate comments ceased.
The second incident that Ms. Reape reported was when Mr. Haskell greeted her with "Hey Sunshine." In response to that incident, Ms. Reape wrote a memorandum to Mr. Haskell's supervisor, Ted Stretmoyer. Mr. Stretmoyer counseled Mr. Haskell on the inappropriate nature of his remark. Mr. Haskell subsequently apologized, and did not address Ms. Reape with an inappropriate greeting again.
The third reported incident was of Mr. Green addressing Ms. Reape as "Mrs. Reape" instead of "Robin." In response to her complaint, Mr. Winterowd talked to Mr. Green. Mr. Green and Ms. Reape then sent a series of e-mail to each other. They copied Mr. Winterowd with that e-mail discussion. Mr. Green eventually tried to discuss the situation with Ms. Reape, but Ms. Reape was unavailable. Ms. Reape sent a final e-mail to Mr. Green, stating that she considered the matter resolved.
The final incident Ms. Reape reported was when Mr. Siegert sent her an e-mail asking what shifts she was working so that he could schedule his employees at times when Ms. Reape was not working. In response to that report, Mr. Winterowd proposed a fifteen day suspension for Mr. Siegert. FEMA headquarters reduced the suspension to five days. Before serving the suspension, however, Mr. Siegert was terminated for possession of pornography on his computer.
The undisputed evidence shows that FEMA management promptly responded to each incident that Ms. Reape reported. After each action, the conduct of which Ms. Reape complained ceased. Because "stoppage of the harassment by the disciplined perpetrator evidences effectiveness," Adler, 144 F.3d at 676, I find and conclude that no reasonable jury could differ as to whether FEMA's responses were reasonable. Thus, summary judgment is appropriate on this basis as well. I grant FEMA's motion for summary judgment with regard to Ms. Reape's claim based on a hostile environment theory.
2. Sex Discrimination
To establish a prima facie case of sex discrimination, Ms. Reape must show: 1) she is a member of a class protected by the statute; 2) she suffered an adverse employment action; 3) she was qualified for the position at issue; and 4) she was treated less favorably than others not in the protected class. McDonnell Douglas, 411 U.S. at 802; see also Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1315 (10th Cir. 1999).
FEMA contends that Ms. Reape's sex discrimination theory must fail because she has not shown evidence of an adverse employment action. Again I agree.
"Although the Tenth Circuit liberally defines an `adverse employment action,' its existence is determined on a case by case basis and does not extend to a mere inconvenience or an alteration of job responsibilities." Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 857 (10th Cir. 2000). "An employer's retaliatory conduct other than discharge or refusal to rehire is . . . proscribed by Title VII only if it alters the employee's compensation, terms, conditions, or privileges of employment, or adversely affects his or her status as an employee." Sanchez v. Denver Pub. Sch., 164 F.3d 527, 533 (10th Cir. 1998).
After Mr. Six's retirement, Ms. Reape fulfilled his duties as MOC Chief. Shortly thereafter, Ms. Reape accepted the temporary assignment at Mount Weather, Virginia. Upon her return, FEMA offered Ms. Reape her original position as Assistant Chief of the MOC. The only alteration of Ms. Reape's job responsibilities therefore came during the brief period of time in which she fulfilled Mr. Six's duties after his retirement. She shows no evidence that she was appointed to that position. Nor has she shown evidence that she served as an Interim or Acting Chief Thus, she did not suffer a change in her employment when her position was restored. No reasonable jury could find that Ms. Reape suffered an adverse employment action. I therefore also grant summary judgment to FEMA on Ms. Reape's sex discrimination theory.
3. Retaliation
"To establish a prima facie case of retaliation under Title VII, a plaintiff must show: 1) that he or she engaged in protected opposition to discrimination; 2) that he or she suffered some adverse employment action by the defendant contemporaneous with or subsequent to the protected activity; and 3) that a causal connection existed between the protected opposition and the adverse employment action." Adams v. American Airlines, Inc., 202 F.3d 281 (10th Cir. 2000) (citing McGarry v. Board of County Comm'rs of the County of Pitkin, 175 F.3d 1193, 1201 (10th Cir. 1999)). The Plaintiff must prove that the suffered adverse employment action was "contemporaneous with or subsequent to the filing of her charge with the EEOC." Cisneros v. Wilson, 226 F.3d 1113, 1133 (10th Cir. 2000).
FEMA contends that summary judgment on Ms. Reape's retaliation theory is appropriate because Ms. Reape fails to show adverse employment action. As I noted above, Ms. Reape does not adequately establish that she suffered an adverse employment action. Because that is a required element for this basis of recovery, I grant summary judgment on this theory as well.
4. Constructive Discharge
To prove constructive discharge, a plaintiff must establish that "the employer by its illegal discriminatory acts has made working conditions so difficult that a reasonable person in the employee's position would feel compelled to resign." Derr v. Gulf Oil Corp., 796 F.2d 340, 344 (10th Cir. 1986). "Essentially, a plaintiff must show that she had `no other choice but to quit.'" Yearous v. Niobrara County Mem'l Hosp., 128 F.3d 1351, 1356 (10th Cir. 1997) (quoting Woodward v. City of Worland, 977 F.2d 1392, 1401 (10th Cir. 1992)). The conditions of employment must be objectively intolerable; the "plaintiff's subjective views of the situation are irrelevant." Id.
Here, the undisputed evidence shows that Ms. Reape had a viable alternative to her resignation. Upon her return from Mount Weather, Ms. Reape had the option to continue her employment with Mr. Rooker serving as MOC Chief. Under the conditions FEMA offered, Mr. Rooker would act as a "buffer" between Ms. Reape and other supervisors. Had she accepted it, that solution could have alleviated the allegedly discriminatory atmosphere that was present before Ms. Reape's temporary reassignment to Mount Weather. Instead, Ms. Reape chose to forego that alternative. A reasonable jury could therefore not find that a reasonable person in Ms. Reape's position would feel compelled to resign. I grant summary judgment on this theory as well.
B. FEMA's Proffered Legitimate Reason for Its Action and Ms. Reape's Assertion of Pretext
Even had Ms. Reape established a prima facie case of liability, her claim would still fail. FEMA asserts that Ms. Reape was denied the position of MOC Chief so that Mr. Levinsohn could hire someone to act as a "buffer" between her and the other supervisors. In response, Ms. Reape asserts only that the "asserted reasons for the defendant's actions are unworthy of belief as set forth above." Such a conclusory response is inadequate evidence to rebut FEMA's articulation of its legitimate, non-discriminatory reason for FEMA's refusal to promote Ms. Reape to MOC Chief. See Celotex, 477 U.S. at 324; Thomas, 111 F.3d at 1509.
On this basis as well, I grant FEMA's motion for summary judgment.
Accordingly, IT IS ORDERED that:
(1) Defendants' motion for summary judgment is GRANTED;
(2) The five-day jury trial scheduled to commence Monday, April 7, 2003 is VACATED; and
(3) The final trial preparation conference scheduled for Thursday, March 13, 2003 at 8:00 a.m. is VACATED.