Opinion
Case No. 02-3676 ADM/AJB
September 23, 2003
John Fabian, III, Esq., Nichols, Kaster Anderson, PLLP, Minneapolis, MN, on behalf of Plaintiff.
Thomas Marshall, Esq., and Paul Egtvedt, Esq., Jackson Lewis, L.L.P., Minneapolis, MN, on behalf of Defendants.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
On August 8, 2003, oral argument before the undersigned United States District Judge was heard on the Motion for Summary Judgment [Docket No. 14] of Defendants Merrill Corporation, a Minnesota corporation, and Merrill Communications, L.L.C., a Delaware corporation (collectively, "Defendants" or "Merrill"). Plaintiff Robyne Lissick's ("Plaintiff") Motion for partial Summary Judgment [Docket No. 24] was also argued. Plaintiff alleges sex discrimination in violation of Title VTJ and Section 363.03 Subd.1(2) of the Minnesota Human Rights Act ("MHRA"). For the reasons set forth below, Defendants' Summary Judgment Motion is denied and Plaintiffs Motion for Summary Judgment on Defendants' Fifth and Sixth Affirmative Defenses is granted.
II. BACKGROUND
For purposes of the instant Motions, the facts are viewed in the light most favorable to Plaintiff, the nonmovant on the issue of discrimination. See Ludwig v. Anderson. 54 F.3d 465, 470 (8th Cir. 1995).
In or near early October 2001, as Plaintiff Robyne Lissick walked past Conrad he said to her, "Well hello Robin Yellow Breast." Lissick Dep. at 99-100 (Fabian Aff. Ex. 1). Plaintiff was wearing a yellow shirt at the time. Id.: Stephens Dep. at 29 (Fabian Aff. Ex. 2). Plaintiff alleges Conrad was staring at her chest when he made the comment. Lissick Dep. at 100-01.
Subsequently, in mid-October, Plaintiff was bending over a table to arrange folders in the "job racks" when Conrad approached her from behind, pressed his groin against her buttocks and whispered into her ear, "anything interesting going on?" Lissick Dep. at 117-18. Plaintiff then stood up, telling Conrad to back away from her.Id. Conrad admits standing behind Plaintiff but denies touching or pressing his body against her. Conrad Dep. at 32 (Marshall Aff. Ex. C).
Plaintiffs email to Pamela O'Neill, Merrill's Human Resources Manager, describing this incident did not go into such detail, but stated that she felt Conrad's presence behind her, and as she straightened up, his chest touched her back. See Fabian Aff. Ex. 9 (email from Lissick to O'Neill of 11/03/01).
On November 2, 2001, Plaintiff related these incidents to her supervisor Marilyn Flesland ("Flesland"), who informed Plaintiff that she would email Human Resources Manager Pamela O'Neill ("O'Neill") and advised Plaintiff to do the same. Lissick Dep. at 98-99; Flesland Dep. at 10, 12 (Fabian Aff. Ex. 5). Plaintiff then sent an email to O'Neill describing the events. When O'Neill telephoned Plaintiff to discuss the complaints, Plaintiff identified other employees with relevant information about Conrad's work behavior. Lissick Dep. at 134; O'Neill Dep. at 64 (Marshall Aff. Ex. B). Two of these employees, Cheryl Hunt and Esmerelda Guzman, had complained previously of inappropriate and unwelcome behavior by Conrad. O'Neill Dep. at 64; Hunt Dep. at 14-16; Guzman Aff. ¶¶ 10-15. After speaking with Plaintiff, O'Neill undertook an investigation, during which she obtained information from at least four other female employees that Conrad made them uncomfortable. O'Neill Dep. at 78-79. On November 16, 2001, at the conclusion of O'Neill's investigation, Conrad signed a statement that he violated the company's sexual harassment policy. Fabian Aff. Ex. 10. The document warned Conrad that further problems could result in increased discipline. Id.
Hunt complained of irritating staring and touching by Conrad, but stated she never felt threatened or sexually harassed, and Guzman submits that Conrad made continuous harassing comments of a sexual nature to her, in addition to touching her unnecessarily. Hunt Dep. at 14-16; Guzman Aff. ¶¶ 7-10, 16. When Guzman reported this conduct to her supervisor, Brian Alphin, she asserts that he stated he was aware of the behavior, but rather than discipline Conrad, Alphin expressed amusement when they were assigned as partners for training exercises. Guzman Aff. ¶¶ 13-14, 18.
Plaintiff was away from work on medical leave from November 13, 2001 until December 26, 2001. During this period, she called O'Neill to inquire about the outcome of the investigation. When Plaintiff expressed her dissatisfaction with the reprimand, O'Neill said she would make a seating change so that Conrad would not be near Plaintiff when she returned from her medical leave. Lissick Dep. at
155. Plaintiff expressed her belief that Conrad should be terminated and discussed her continued discomfort in his presence. Id. at 150, 153. She additionally informed O'Neill that on November 11, Conrad had swung his arm at her as she passed him and that after the October incidents, he had regularly walked in the vicinity of Plaintiff s work area to harass her. Lissick Aff. v 9.
When Plaintiff returned to work after her leave of absence, Conrad had not been moved away from her, but rather was seated closer to her location, and she immediately conveyed her displeasure with the situation to Flesland. Lissick Dep. at 165; Flesland Dep. at 20. On January 4, 2002, Plaintiff left a message for O'Neill regarding the problem with the seating arrangement. When the two spoke five days later, O'Neill stated that she would move Conrad's start time to 11 p.m. so as to avoid adjacent schedules. Lissick Dep. at 174. On January 11, 2002, Flesland called Plaintiff to tell her Flesland, O'Neill and Brian Alphin ("Alphin"), Conrad's supervisor, had conferred and instituted a policy whereby Conrad was to begin his shifts at 11 p.m. and the two were to have no contact with one another.
Plaintiff alleges that despite these measures, Conrad continued to stare at and walk past her in an intimidating manner. Lissick Dep. at 184-89. She also claims he would park near her vehicle and sit in his car watching Plaintiff as she would leave work. Id. at 194-95; O'Neill Dep. at 219-20. In February 2002, Plaintiff filed a charge of discrimination. When O'Neill met with Plaintiff on March 7, 2002, to follow up regarding Conrad, Plaintiff states that she described his continued violations of the start time and no contact policies and reiterated her desire to see Conrad terminated. Id. at 194-96. O'Neill replied that he would not be fired, but would be prohibited from parking in the same lot as Plaintiff and from entering the premises more than five minutes prior to the commencement of his shift. Id. at 195. The following day, O'Neill informed Plaintiff that Conrad had offered to alter his shift to begin work at 2 a.m. Plaintiff served Defendants with a copy of the Complaint on approximately April 10, 2002.
Defendants claim Plaintiff was responsible for encounters with Conrad after this schedule reassignment, arguing that she changed her work hours to overlap with Conrad and remained in the building after completion of her shifts to converse with co-workers. Defs.' Mem. in Supp. at 8-9. Plaintiff denies lingering unnecessarily and states any overlap on her part was due to mandatory overtime or accommodating her children's school schedule, and that she left work as early as possible whenever Conrad was present. Lissick Aff. ¶¶ 46-47.
Plaintiff avers Conrad continued to park next to her and disregard the restrictions imposed upon him. She alleges several incidents of continued harassment in January and February of 2003, though it does not appear she reported these occurrences to management. See PL's Mem. at 17-18; Lissick Aff. ¶¶ 37-39. On March 21, 2003 at 10:45 p.m., Plaintiff asserts that she looked up and found Conrad glaring at her. Lissick Aff. ¶ 41. She reported this to her core lead, inquiring why Conrad was in the office that evening. The core lead, K.J. Stephens, asked Alphin, Conrad's supervisor, the reason for Conrad's presence.Id. Plaintiff asserts Alphin stated he had called Conrad in and expressed that he was happy to see he had arrived early. Id. Plaintiff sent email complaints to Flesland and O'Neill describing the situation and then left work prior to completing her shift. Id. When she received no response, Plaintiff went to Flesland on March 27, 2003, who informed Plaintiff that she had spoken to O'Neill and O'Neill had presented a schedule permitting Conrad to work overtime on Fridays beginning at 11 p.m. Id. Flesland stated she, like Plaintiff, had been unaware of this schedule. Id. As a result of this arrangement, Plaintiff departed from work three and a half hours early the following Friday. Id. Both Plaintiff and Conrad remain employed with Merrill.
III. DISCUSSION
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c);see Matsushita Elec. Indus. Co., Ltd, v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett. 477 U.S. 317, 323 (1986). On a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party. Ludwig v. Anderson 54 F.3d 465, 470 (8th Cir. 1995). The nonmoving party may not "rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial." Krenik v. County of Le Sueur. 47 F.3d 953, 957 (8th Cir. 1995).A. Defendants' Motion for Summary Judgment
Defendants argue they are entitled to summary judgment because Plaintiff cannot establish a prima facie case of discrimination. To succeed in her claim of hostile work environment sexual harassment under Title VII and the MHRA, Plaintiff must prove: 1) she is a member of a protected group, 2) she was subject to unwelcome harassment, 3) a causal relationship between the harassment and her membership in a protected group, 4) the harassment affected a term or condition of her employment, and 5) "the employer knew or should have known of the harassment and failed to take prompt remedial action." Meriwether v. Caraustar Packaging Co., 326 F.3d 990, 993 (8th Cir. 2003) (quoting Jacob-Mua v. Veneman. 289 F.3d 517, 522 (8th Cir. 2002)). Defendants contest only elements four and five in their present Motion.
The same standards are utilized in analyzing sexual harassment under both Title VII and the MHRA. See Fletcher v. St. Paul Pioneer Press. 589 N.W.2d 96, 101 (Minn. 1999).
To fulfill her burden of proof that the alleged harassment affected a term or condition of her employment, Plaintiff must show that the circumstances of her employment rose to the level of a hostile work environment, as viewed from both an objective and a subjective perspective. Harris v. Forklift Sys., 510 U.S. 17, 21-22 (1993). A hostile work environment is one that "is 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.'" Id. at 21. Defendants argue that Plaintiffs allegations fail as a matter of law to establish severe or pervasive harassing conduct.
The existence of a hostile work environment is determined by the totality of the circumstances, which "may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it interferes with an employee's work performance." Id at 23; seeHoward v. Burns Bros., 149 F.3d 835, 840 (8th Cir. 1998). Because Title VII is not intended to impose a "general civility code" in the workplace, isolated incidents are usually not actionable.Faragher v. City of Boca Raton. 524 U.S. 775, 788 (1998) (internal quotation omitted); see also Meriwether. 326 F.3d at 993. However, if sufficiently severe and extreme, individual occurrences can amount to harassment. See Hathaway v. Runyon 132 F.3d 1214, 1223 (8th Cir. 1997).
Whether the proffered testimony evidences a hostile environment is a close question. There is some significant variation in the descriptions of events and of the nature of Conrad's behavior.
However, viewing the present facts in the light most favorable to Plaintiff, she has averred conduct by Conrad sufficient to create a material dispute as to whether or not her "working conditions [were] `discriminatorily altered.'" Id. She submits that Conrad commented on her breasts, pressed his groin into her buttocks, and behaved in an intimidating manner by leering at her, swinging his arm toward her, and parking next to her car and watching her as she left the building and walked to her vehicle, in violation of his schedule restrictions. Lissick Dep. at 100-01, 117-18, 122-24; Lissick Aff. ¶¶ 4, 7, 8, 30. Viewed objectively, a reasonable jury could find that this behavior, allegedly occurring over an extended period of time, was sufficiently frequent, severe and intimidating to affect the conditions of Plaintiffs work environment. See Hathaway. 132 F.3d at 1221.
The specific allegations presented in opposition to summary judgment but never before related to Defendants will not be considered at this juncture since Defendants had no prior knowledge of these occurrences. See Lissick Aff. ¶¶ 37-39.
Additionally, Plaintiff testified to her subjective perception of the alleged harassment, stating that Conrad made her uncomfortable and frightened and caused her to leave work early on occasion to avoid interaction with him. Lissick Aff. ¶¶ 9, 11, 13. Following the physical contact at the job rack, she told Conrad to back off, she expressed several times to O'Neill her desire to see him terminated, and she requested her male shift leader escort her to her car because of Conrad. Lissick Dep. at 117-18, 153, 194-95, 196; cf Woodland v. Joseph T. Rverson Son., Inc., 302 F.3d 839, 843-44 (8th Cir. 2002) (finding insufficient subjective offense where plaintiff refused supervisor's offer to fire offending employee, stating he would rather forget about it). Plaintiff has also produced evidence of improper, sexually offensive conduct by Conrad directed at other female employees, and her awareness of these incidents, which may "be relevant to show the pervasiveness of the hostile environment." Howard. 149 F.3d at 838. As noted above, Plaintiffs somewhat varying allegations present a close question on this issue. However, whether the averred conduct was severe or pervasive is best resolved by the fact finder. "Once there is evidence of improper conduct and subjective offense, the determination of whether the conduct rose to the level of abuse is largely in the hands of the jury." Id at 840.
Defendants next contend that Plaintiff cannot succeed in her claim because they took prompt action calculated to end the harassment. Plaintiff asserts that Defendants' efforts were insignificant and ineffectual, as evidenced by a history of complaints against Conrad and his continued harassment of Plaintiff
In assessing this element of a prima facie case of sex discrimination, the Court considers the time between the notice of the harassment and the employer's response, "the disciplinary or preventative measures taken, and whether the measures ended the harassment." Meriwether. 326 F.3d at 994. Here, O'Neill did initiate an investigation after Plaintiff reported the "Robin Yellow Breast" comment and the physical contact at the job racks, which concluded with a warning letter and, eventually, after further encounters and a resultant complaint by Plaintiff, a seating adjustment. After Plaintiffs third complaint to management, in early January 2002, O'Neill altered Conrad's shift to avoid overlap with Plaintiff and instituted a no-contact policy. Lissick Dep. at 171-72, 178. Plaintiff next notified O'Neill of her continuing concerns on March 7, 2002, after she had filed a charge of discrimination. Lissick Dep. at 194-95. She states that she informed O'Neill at this time of Conrad's violations of the no-contact and separate shift policies, including her fear of his lingering in the parking lot when she left work. Lissick Dep. at 194. On March 8, 2002, O'Neill told Plaintiff that Conrad had accepted a 2 a.m. start time and that he was not to park in the same lot as Plaintiff or arrive for work more than five minutes before his scheduled shift. Lissick Dep. at 194-96; O'Neill Dep. at 233. Plaintiff asserts Conrad flouted these restrictions and repeatedly parked right beside Plaintiff in the parking lot. However, evidently Plaintiff did not inform her employer of these violations until after she filed the instant action and served Defendants with the Complaint in early April 2002. See Lissick A ¶¶. ¶¶ 27-33. On May 8, 2002, Plaintiffs attorney sent a letter to Merrill advising it of Conrad's repeated rule violations. Lissick Aff. ¶ 34. She alleges menacing behavior by Conrad has continued to the present time.
In each of these reported occasions, with the exception of the post-lawsuit complaint letter and the delay in resolving the seating adjustment, Defendants responded relatively promptly upon receiving notice from Plaintiff of the persistent problems with Conrad. However, the pattern of complaints and increasing restrictions imposed on Conrad indicate that the chosen measures apparently were not effective. Yet at the same time, the successive remedial actions taken demonstrate escalating efforts by Defendants to alleviate Plaintiffs concerns without taking the more drastic step of terminating Conrad. Were this the full picture, summary judgment for Merrill may be appropriate based on its responses to the reports of harassment.
Plaintiff has proffered evidence, however, that Alphin, Conrad's supervisor, was aware of Conrad's continued approaching and staring at Plaintiff after imposition of the no-contact rule, and called Conrad in on certain evenings despite knowing Plaintiff was at work at those times and there was a no-overlap policy. See Lissick Aff. ¶¶ 19, 20, 41. After one such occasion on March 21, 2003, Plaintiff avers that after Conrad approached her and glared at her, she related the episode to her core lead, sent email messages to both Flesland and O'Neill, and then departed early due to Conrad's presence. Id. When she later inquired why she had received no response to these communications, she asserts Flesland showed her a copy of Conrad's schedule, which permitted him to work overtime at hours when Plaintiff was scheduled. A supervisor's encouragement and facilitation of violations of remedial measures cannot be seen as reasonably calculated to avoid future harassment. The specific allegations in Plaintiff's Affidavit of continuing harassment by Conrad present a dispute of material fact regarding Merrill's remedial actions that is best left for resolution by the jury. Defendants' Motion for Summary Judgment is denied.
Alphin had also received complaints in the past from other female employees of Conrad's "weird" behavior. Alphin Dep. at 8, 12. Additionally, one of Conrad's former co-workers testified that on one occasion he heard Alphin say to Conrad that "if [Human Resources] knew about one-fourth of what I know, you'd be fired." Rollie Aff. ¶ 14. Such knowledge of improper conduct, even when directed at employees other than the plaintiff, may bear on the adequacy of the employer's preventative measures or remedial response. See Johns v. Harborage I. Ltd., 585 N.W.2d 853, 862 (Minn.Ct.App. 1998), rev'd on other grounds. 664 N.W.2d (Minn. 2003), (quoting federal decisions stating "[a]n employer's knowledge that a male worker has previously harassed female employees other than the plaintiff will often prove highly relevant in deciding whether the employer should have anticipated that the plaintiff too would become a victim").
B. Plaintiffs Motion for Summary Judgment
In her Motion, Plaintiff seeks summary judgment on Defendants' fifth and sixth affirmative defenses. In their Answer, Defendants assert the affirmative defense expounded in Burlington Industries. Inc. v. Ellerth 524 U.S. 742 (1998), and Faragher v. City of Boca Ratoa 524 U.S. 775 (1998). In these cases, the Supreme Court delineated the limit on an employer's liability for the discriminatory acts of a supervising employee "when no tangible employment action is taken" against the plaintiff. Ellerth 524 U.S. at 765. The Court held that in such circumstances "a defending employer may raise an affirmative defense" and avoid vicarious liability by establishing "(a) that the employer exercised reasonable care to prevent and correct any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise." Id.: Faragher. 524 U.S. at 807. In bothEllerth and Faragher. the Court was explicitly dealing with "misuse of supervisory authority," as distinct from co-worker harassment. Ellerth 524 U.S. at 764;Faragher. 524 U.S. at 804.
Defendants' fifth and sixth affirmative defenses are based on the first and second parts, respectively, of the Ellerth/Faragher defense. The fifth affirmative defense asserts Merrill exercised reasonable care to prevent and correct the harassment, and the sixth affirmative defense alleges Plaintiff failed to avail herself of Defendants' protective and remedial measures.
Plaintiff contends this defense is unavailable in the instant case, because she alleges harassment by a co-worker rather than a supervisor. Defendants counter that they should nonetheless be able to raise the Ellerth/Faragher affirmative defense to effectuate the policies of Title VII.
Merrill offers no authority to support its position. Eighth Circuit decisions distinctly reference the Ellerth/Faragher principle in the context of supervisor harassment. See Dyhne v. Meiners Thriftway. Inc., 194 F.3d 983, 987 (8th Cir. 1999) (stating that the case before it was "a different type of case [than Ellerth andFaragher] because it involve[d] harassment by a non-supervisory co-worker"); Todd v. Ortho Biotech. Inc., 175 F.3d 595, 598 (8th Cir. 1999) ("The new Ellerth/Faragher vicarious liability standard is limited to cases of harassment by a supervisor with immediate (or successively higher) authority over the employee."). Though these cases do not expressly prohibit use of the two-part affirmative defense in co-worker actions, they do instruct that the non-supervisory standard for employer liability remains intact, such that "an employer may be liable for [co-worker] harassment if it knew or should have known of the conduct and failed to take proper remedial action." Dyhne. 194 F.3d at 987. Further, lower courts have declined to extend this defense to suits involving actions by a co-worker. See Hanna v. Boys and Girls Home and Family Servs., 212 F. Supp.2d 1049, 1053 n. 2 (N.D. Iowa 2002);Wallace v. Valentine's of Lincoln. Inc., 216 F. Supp.2d 962, 964 (D. Neb. 2002).
While the policies cited by Defendants, namely encouraging employers to prevent violations of the law and obliging employees to take advantage of employers' efforts to avoid harm, are applicable to Title VII as a whole, the Eighth Circuit has not extended use of the affirmative defense to the co-worker context. As noted by various courts in differentiating supervisor and co-worker complaints, the former is subject to a standard of vicarious liability, while the latter requires a showing of negligence. Faragher. 524 U.S. at 799; see also Hanna. 212 F. Supp.2d at 1062. After lengthy discussion in theEllerth and Faragher opinions of the vicarious liability principle, the Supreme Court instituted the employer's affirmative defense so as "to avoid `automatic' employer liability" in supervisor harassment lawsuits. In contrast, "if the [harassing] employee is a co-worker, as is the case here, then an employer is liable for the conduct of that employee only if plaintiff demonstrates that the employer knew or should have known of the harassment and failed to take immediate and appropriate action." Cisewski v. Engineered Polymers Corp., 179 F. Supp.2d 1072, 1097 (D. Minn. 2001).
Thus, to establish her prima facie case, Plaintiff must prove that Defendants knew or should have known of the hostile work environment and failed to remedy it promptly and properly. Merrill may offer proof of its actions and Plaintiffs subsequent behavior to attempt to rebut this element, as well as Plaintiffs subjective perceptions. Following this traditional standard for employer liability for co-worker harassment and the Eighth Circuit's pronouncement that "[t]he new Ellerth/Faragher vicarious liability standard is limited to cases of harassment by a supervisor with immediate (or successively higher) authority over the employee," summary judgment in favor of Plaintiff on Defendants' fifth and sixth affirmative defenses in granted. Todd. 175 F.3d at 598.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendants' Motion for Summary Judgment [Docket No. 14] is DENIED, and
2. Plaintiffs Motion for Summary Judgment on Defendants' Fifth and Sixth Affirmative Defenses [Docket No. 24] is GRANTED.