Opinion
Civ. No. 03-2331 (DRD).
December 17, 2004
Peter Cresci, Esq., CRESCI BLACK LLC, Bayonne, New Jersey, Attorney for Plaintiff.
William P. McLane, Esq., LITTLER MENDELSON, P.C., Newark, New Jersey, Attorney for Defendant.
OPINION
This matter is before the court on a motion for summary judgment filed by defendant Maersk Data U.S.A., Inc. ("Maersk"). Plaintiff, Helen Loniewski ("Plaintiff") alleges violations under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq. and New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1,et seq. for gender and retaliation discrimination; and under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101,et seq. For the reasons set forth below, the Defendant's motion will be granted.
Plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC") on September 9, 2002. The EEOC sent Plaintiff a Notice of Right to Sue within 90 days of the filing of the charge. 42 U.S.C. § 2000e(f)(1). A concurrent complaint was filed with the New Jersey Division of Civil Rights. The Complaint was filed in this court on May 20, 2003.
I. Background
Plaintiff and Defendant agree upon most of the underlying facts. Plaintiff began working at Maersk on April 10, 2000 as an at-will employee holding an administrative assistant position at Maersk's corporate offices in Morristown, New Jersey. At the time of Plaintiff's employment with Maersk, Maersk was an information technology service provider. As an administrative assistant, Plaintiff was responsible for, inter alia, making various arrangements for her supervisors, completing expense reports and maintaining various databases. There was no formal written job description outlining Plaintiff's duties.
Over the course of her employment with Maersk, Plaintiff worked with many individuals. Initially she worked for Peter Lynch ("Lynch") and Ib Skaaning ("Skaaning"), both of whom gave her glowing recommendations. In early 2001, Plaintiff was the administrative assistant for Bill Corcoran ("Corcoran"), who worked on the technical side of Maersk. Corcoran left in about April 2001 when he transferred out of New Jersey. After Corcoran's departure, Plaintiff was transferred to the executive offices where she was assigned as administrative assistant for Richard Stolz ("Stolz"), the director of sales and marketing. Those who worked in the executive office area included Maersk's President Aksel Nielsen ("Nielsen") and his administrative assistant Jennifer Lalor ("Lalor"), Janice Colangelo ("Colangelo"), John O'Brien ("O'Brien"), director of marine terminal products, and Jag Sririam ("Sririam").
There is some dispute between the parties as to the title Colangelo held. Maersk represents that Colangelo was director of human resources and technical recruiter, while Plaintiff says that there was no director of human resources at Maersk.
Details regarding Plaintiff's workplace environment and her assignment to Stolz include, inter alia, that she preferred working for Corcoran than for Stolz; Stolz engaged in workplace gossip and would discuss office politics with Plaintiff; Stolz would assign names to office employees based on television characters; Stolz had an aura she didn't like; and Stolz often met with Colangelo in his office with the door closed.
Plaintiff describes a series of events (summarized below) that occurred in the workplace that she uses to support her claims.
A. The Workplace
In late spring or summer of 2001, after she began working for Stolz, Plaintiff witnessed him discipline two male subordinates in the office. Stolz's disciplinary actions upset Plaintiff so much that she immediately left work and did not return until the following day. Either the day of the incident or the day following the incident, Plaintiff told Stolz that she felt very uncomfortable with what had happened.
Months later, in October or November of 2001, Plaintiff complained to Nielsen about Stolz's management style, his closed-door meetings and his reprimand of the two male subordinates. Nielsen acknowledged that he knew Stolz's management style was difficult and said he would discuss Plaintiff's concern with Stolz. After Nielsen approached Stolz about Plaintiff's concerns, Stolz did not speak to Plaintiff for several days. Plaintiff also noticed that her work duties were reduced after complaining, possibly leading to her diminished role within the company.
In December 2001, Stolz hosted a holiday luncheon for his work team. The luncheon was held at a New Jersey restaurant not far from the Maersk office. Approximately five or six team members were in attendance (Plaintiff was the only woman in attendance). Plaintiff, probably with others, accepted a ride to the restaurant from Stolz. Plaintiff sat between Stolz and O'Brien at the restaurant. At the luncheon, Stolz pulled out Plaintiff's chair, poured a glass of wine for Plaintiff and other attendees, and helped Plaintiff put on her coat before leaving. Stolz did not offer Plaintiff a ride back to the office in his car. Plaintiff rode back to the office in O'Brien's car.
In February 2002, Plaintiff began searching for new employment. Plaintiff believed she had been constructively discharged prior to her termination in March 2002. Plaintiff's search entailed sending out a number of resumes to prospective employers. Plaintiff filled out an application for a job with Infosys. On the application, Plaintiff indicated that she could begin working for Infosys on April 2, 2002. Plaintiff received an offer of employment from Infosys on March 29, 2002.
On March 20, 2002, Ted Marzynski ("Marzynski"), a general manager reporting to Stolz, asked Plaintiff to place his files in boxes in preparation for his move to a new cubicle. Plaintiff did not adhere to Marzynski's request and verbally expressed her concern that there were confidential or personal files in Marzynski's office and that she did not want to be accused of viewing confidential materials as she had been in the past. Stolz assured Plaintiff that there were no confidential files in Marzynski's office and asked Plaintiff for her assistance in placing Marzynski's files into boxes.
When Plaintiff refused Stolz's request for assistance, Stolz fired Plaintiff. Colangelo tried to ascertain what had happened and Plaintiff told Colangelo that Stolz terminated her because she refused to pack Marzynski's files. Plaintiff also told Colangelo that she refused to pack the files because she was menstruating and her back was aching.
Nielsen, who was traveling, received a message from Plaintiff when he returned the day following Plaintiff's termination. Nielsen spoke with Plaintiff, Stolz, O'Brien, Lalor and Colangelo and discussed the March 20, 2002 occurrence with the HR department at Maersk, Inc. Nielsen ratified Stolz's termination based on Plaintiff's insubordination and notified Plaintiff of his decision on March 25, 2002. Nielsen had never terminated any employee for insubordination. A week following her termination, Plaintiff commenced her employment with Infosys.
B. Plaintiff's Complaint and Claims
Plaintiff's Complaint contains two counts. In count one, Plaintiff alleges Maersk's employees discriminated against her by subjecting her to a hostile work environment, quid pro quo sexual harassment, and sexual harassment in violation of Title VII and the NJLAD. In count two, Plaintiff alleges Maersk violated the ADA.
Stolz's conduct is the basis for Plaintiff's sexual harassment, retaliation and ADA claims. Plaintiff cites the following incidents as characteristic of Stolz's behavior: (1) Stolz invited Plaintiff out on a date and Plaintiff refused, (2) Stolz characterized women employees in the office as unsightly television characters, (3) Stolz was aware that pornographic material was pervasive in the workplace (in the form of magazines and on the internet accessed by work computers) and took no action to remove the material, (4) Stolz ostracized and ridiculed Plaintiff after she complained to Nielsen about Stolz's actions, (5) Stolz threw documentation of Plaintiff's medical condition affecting her right foot at Plaintiff and advised her to get a second opinion, and (6) Stolz concocted a pretextual reason to terminate Plaintiff.
II. Discussion
A. Standard for Summary Judgment
A motion for summary judgment will be granted if after drawing all inferences in favor of the moving party, "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 a judgment as a matter of law". Fed.R.Civ.P. 56(c). Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir. 1989); Davis v. Portline Transportes Maritime Internacional, 16 F.3d 532, 536 n. 3 (3d Cir. 1994).
At the summary judgment stage, the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. at 247.
A genuine issue may exist if the record taken as a whole could lead a rational trier of fact to find for the party opposing summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Material facts are those that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Under Fed.R.Civ.P. 56(c), the moving party bears the burden of pointing out to the district court an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets its burden, the opposition bears the burden of "set[ting] forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In deciding this motion, the facts and inferences drawn from them will be viewed in the light most favorable to the nonmoving party. Pollock v. Am. Tel. Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The court will take the nonmoving party's allegations of fact as true. Goodman v. Mead Johnson Co., 534 F.2d 566, 573 (3d Cir. 1976). The court will also resolve all doubts and make all reasonable inferences in the nonmoving party's favor. Apalucci v. Agora Syndicate, Inc., 145 F.3d 630, 631 (3d Cir. 1998).
B. Title VII — Sexual Harassment
Title VII prohibits an employer from discharging any individual, or otherwise discriminating 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); West v. Philadelphia Elec. Co., 45 F.3d 744, 752 (3d Cir. 1995).
The United States Supreme Court has held that Title VII may be violated where an employer tolerates a work environment abusive to employees because of their gender. Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). Violations may occur not only by engaging in discrete discriminatory employment acts, but also by requiring employees to work in a discriminatorily hostile or abusive environment. The Court stated, that a workplace permeated with "discriminatory intimidation, ridicule, and insult . . . sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," violates Title VII. Id. at 21, quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-67 (1986).
In Title VII claims, Complainant bears the initial burden of establishing a prima facie case of unlawful discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). It is at this first stage of a three-step process, that a plaintiff must show that he or she is a member of a protected class, that he or she was qualified for the position in question, and that an adverse employment action was taken. Id.; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Bray v. Marriott Hotels, 110 F.3d 986, 990 n. 5 (3d Cir. 1997); Sheridan v. E.I. DuPont de Nemours Co., 100 F.3d 1061, 1066 n. 5 (3d Cir. 1996); Anderson v. Consol. Rail Corp., 297 F.3d 242, 249 (3d Cir. 2002); Sarullo v. United States Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003). Once a plaintiff establishes a prima facie case of discrimination, at the second step, the burden shifts to the employer who is required to articulate some legitimate, nondiscriminatory reason for the adverse action taken against the employee. McDonnell Douglas Corp. v. Green, 411 U.S. at 802; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 254. At the final step, the burden shifts back to the Plaintiff to "establish by a preponderance of the evidence that the employer's proffered reasons were merely a pretext for discrimination, and not the real motivation for the unfavorable job action". Sarullo v. United States Postal Serv., 352 F.3d at 797 (citations omitted).
"On a motion for summary judgment, the district court determines whether the Plaintiff has cast sufficient doubt upon the employer's proffered reasons to permit a reasonable fact-finder to conclude that the reasons are incredible." Sheridan v. E.I. DuPont de Nemours Co., 100 F.3d at 1072. A plaintiff is charged with demonstrating weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer's proffered legitimate reasons for its action such that a reasonable fact-finder could find them unworthy of credence. Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994).
On this motion, Plaintiff must show that the reasonable fact finder could view the evidence submitted as showing that her treatment was attributable to her sex.
As a woman, Plaintiff is a member of a protected class. 42 U.S.C. § 2000e(b). She was qualified for her position and she was terminated due to insubordination. Maersk terminated Plaintiff after she committed an act they classified as insubordination.
1. Quid Pro Quo Sexual Harassment and Hostile Work Environment
Plaintiff's NJLAD claim will not be discussed separately, rather it will be considered along with her Title VII claim. New Jersey Courts have relied on federal court decisions construing Title VII hostile work environment claims when reviewing those claims under the NJLAD. Abramson v. William Patterson College of New Jersey, 260 F.3d 265, 277 (3d Cir. 2001) (citation omitted). A Plaintiff who has established a prima facie case for hostile work environment under Title VII "will have also shown the elements required by the NJLAD", as the New Jersey Courts omit the fifth prong of the requirements to establish a Title VII claim. Abramson v. William Paterson College of New Jersey, 260 F.3d at 277 n. 7; Thomas v. Town of Hammonton, 351 F.3d 108, 116 (3d Cir. 2003).
The terms " quid pro quo" and "hostile work environment" were used in the United States Supreme Court's decision in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998).
The United States Supreme Court stated that "cases based on threats which are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment. The terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility." Id. at 751.
However, the Court of Appeals for the Third Circuit has stated that the distinction between hostile work environment claims and quid pro quo claims has largely been eliminated, and a greater emphasis has been placed on the presence or absence of tangible adverse employment actions. Hurley v. Atlantic City Police Department, 174 F.3d 95, 120 (3d Cir. 1999).
Quid pro quo sexual harassment is marked by "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute [quid pro quo] sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment [or] (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual. . . ." Bonenberger v. Plymouth Township, 132 F.3d 20, 27 (3d Cir. 1997); Robinson v. City of Pittsburgh, 120 F.3d 1286, 1296 (3d Cir. 1997); see 29 C.F.R. § 1604.11(a)(1) and (a)(2).
The Court of Appeals has held that, "to prove a claim of quid pro quo sexual harassment, a plaintiff must demonstrate either that she submitted to the sexual advances of her alleged harasser or suffered a tangible employment action as a result of her refusal to submit to those sexual advances," Hurley v. Atl. City Police Dept., 174 F.3d at 133 (3d Cir. 1999) (citations omitted), or that her response to unwelcome advances was subsequently used as a basis for a decision about compensation, terms, conditions, privileges or employment. Robinson v. City of Pittsburgh, 120 F.3d at 1297. A tangible employment action "constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." Pennsylvania State Police v. Suders, 124 S. Ct. 2342, 2353 (2004) (citation omitted).
Plaintiff argues that if her quid pro quo claim does not survive, her hostile work environment claim may still be valid. The Supreme Court held in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) that cases involving only unfulfilled threats and no tangible employment action should be categorized as hostile work environment claims, not quid pro quo claims.
To establish a prima facie case of gender-based hostile work environment under Title VII, Plaintiff must show: (1) that she suffered intentional discrimination because of gender; (2) that the discrimination was pervasive and regular; (3) that the discrimination detrimentally affected her; (4) that the discrimination would detrimentally affect a reasonable person of the same sex in her position; and (5) the existence of respondeat superior liability. Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir. 2001); Suders v. Easton, 325 F.3d 432, 441 (3d Cir. 2003) (overturned on different grounds); Pennsylvania State Police v. Suders, 124 S.Ct. at 2347. The Supreme Court has held that establishing hostile work environment requires a showing of harassing behavior that is "sufficiently severe or pervasive". Pennsylvania State Police v. Suders, 124 S. Ct. at 2347; Meritor Savings Bank, FSB v. Vinson, 477 U.S. at 67; Harris v. Forklift Sys., Inc., 510 U.S. at 22.
The Supreme Court has stated that "standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a `general civility code'." Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
To determine whether discriminatory animus motivated the conduct (the first element of a prima facie case), the court considers not only actions and comments that explicitly reference gender, but also those that do not because the advent of more sophisticated and subtle forms of discrimination requires that [courts] analyze the aggregate effect of all evidence and reasonable inferences therefrom, including those concerning incidents of facially neutral mistreatment, in evaluating a hostile work environment claim. Cardenas v. Massey, 269 F.3d at 261-62 (citing Durham Life Insurance Company v. Evans, 166 F.3d 139, 148-49 (3d Cir. 1999) and Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081-84 (3d Cir. 1996)).
To determine if the discrimination was sufficiently pervasive or severe(the second element of a prima facie case) courts must look at "all the circumstances . . . includ[ing] 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." Faragher v. City of Boca Raton, 524 U.S. at 787-788 (citation omitted). In Harris v. Forklift Sys., Inc., 510 U.S. at 21, the Court stated that, conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment is beyond Title VII's purview.
The facts viewed in the light most favorable to the Plaintiff on both claims are contained in the discussion below.
Plaintiff claims that Stolz engaged in quid pro quo sexual harassment. In this case, the alleged statements and actions would not allow a jury to find that Plaintiff was required to give sexual favors in order to retain her job or that Stolz made sexual advances towards Plaintiff. It is important to note that although Stolz told Plaintiff that she was fired, Nielsen is the one who made the actual and final decision to terminate Plaintiff. Plaintiff alleges that because of her "refusal to submit" she was subjected to adverse employment conditions. The court sees no evidence of Plaintiff's "refusal to submit", indeed there is only evidence that Plaintiff refused to pack Marzynski's office files.
Plaintiff alleges that Stolz made sexual advances towards her by inviting her to his house to go sailing in May of 2001, when the two were in his office (Pl. Dep. 143:22-23; 151). In this instance, Plaintiff did not verbally respond to Stolz's invitation, rather she just smiled. However, Plaintiff reports that Stolz never again asked her to go sailing on his boat (Pl. Dep. 151:24-25; 152:1). A reasonable fact finder could not find that Stolz's invitation amounts to quid pro quo sexual harassment, as Plaintiff's response or lack thereof resulted in no adverse action against her. In fact, Plaintiff was not terminated until almost one year later.
Plaintiff also claims that Stolz created a "date-like" environment at a luncheon attended by his team of employees (Pl. Brief at 11). Plaintiff cites four events to support her claim. She notes that prior to the luncheon, Stolz tried to get her in his car alone and at the luncheon he held her coat, poured her wine, and pulled out her chair. Stolz told Plaintiff that she could ride to the restaurant in his car and the offer made Plaintiff uncomfortable (Pl. Dep. 144:9-11). However, based on her actions, Plaintiff, probably along with others, accepted Stolz's offer of transportation. Plaintiff gives no concrete reasons for feeling uneasy and does not cite any conversation or actions made by Stolz prior to, during, or after the ride that are indicative of anything other than common courtesy. If Plaintiff is alleging that she would have been subjected to adverse employment action had she declined Stolz's offer of transportation, she proffers no evidence of such. If Plaintiff is alleging that she was subject to adverse employment action because she did not ride back with Stolz, there is no evidence of such. In fact, Stolz never suggested Plaintiff ride back to the office with him and Plaintiff rode back to the office with her co-worker O'Brien (Pl. Dep. 147:1-3). At the luncheon, Plaintiff was disturbed because Stolz pulled out her chair, helped her put on her coat and poured her wine (Pl. Dep. 146:11-13; 165:13-17). A mere suggestion that acts of kindness and assistance performed by a man for a woman, such as opening a door, pouring wine, helping put on a coat and pulling out a chair, necessarily equates to sexual harassment is absurd. Stolz would not be required, as Plaintiff suggests (Pl. Brief at 11), to perform the same acts for the male co-workers present at the luncheon to show that he is not engaging in sexual harassment. Nevertheless, the court has noted Plaintiff's subjective feeling of discomfort and it reiterates the fact that Plaintiff has concluded she was subjected to quid pro quo harassment without the support of any evidence submitted.
In her EEOC complaint, Plaintiff said "she was given demeaning tasks to perform as a result of rejecting Mr. Stolz's sexual advances" (Pl. Dep. 225:24-25; 226:1-2). Plaintiff goes on to say that the sexual advances "had to do with his innuendos and conversations that we had in his office with the door closed" and that the demeaning tasks included doing personal research for Stolz and going to the store to get diet Cokes for Stolz (Pl. Dep. 226; 251). Plaintiff does not outline any discussions that she had with Stolz that are indicative of quid pro quo or any type of sexual harassment. There is no indication of any evidence that if Plaintiff complained about or did not adhere to Stolz's "requests" or offers, she would have been subjected to adverse employment action.
When asked whether Stolz ever made sexual advances towards her, Plaintiff only stated that Stolz made her feel very uncomfortable (Pl. Dep. 226:20-24). Further, Stolz never directly or indirectly asked Plaintiff to have sex with him and never directly asked Plaintiff to sleep with him (Pl. Dep. 227). Both men and women occasionally feel uncomfortable when with different people and when in different situations. However, it cannot be concluded that this discomfort constitutes harassment as a result of gender or sex. No reasonable fact-finder could conclude that Plaintiff has been subjected to quid pro quo or indeed any type of sexual harassment because Plaintiff stated that Stolz made her feel uncomfortable or uneasy.
Plaintiff says that Stolz said derogatory things about her. She specifically notes that Stolz made reference to her "getting the receptionist's desk" and that he also watched her deliver mail and once commented to her that delivering mail suited her well (Pl. Dep. 226:12-15; 173:20-23). When Plaintiff was covering the receptionist's desk, Stolz "would pass by and kind of like smirk and say something to the effect, you know, you look perfect sitting there" (Pl. Dep. 173:16-18). Despite these comments, no adverse employment action was ever taken against Plaintiff and a hostile work environment was not created. These incidents do not allow the inference to be drawn that Plaintiff was discriminated against because of her sex.
Plaintiff asserts that Stolz made direct comments about her body and compared her body to those of older women (Pl. Brief at 11). No evidence has been submitted to support that allegation. Plaintiff only mentions that Stolz referred to women in the office as television characters. Stolz admitted to referring to Souza as Mimi from the Drew Carey Show:
Q Did you ever refer to Linda Souza as Mimi from the Drew Carey Show?
A Yes.
Q Why did you refer to her as Mimi?
A She looked like her.
Q How often did you refer to her as Mimi?
A It was a joke, a passing reference (Stolz Dep. 120:5-11).
Plaintiff makes a number of claims about being the victim of sexual harassment when in fact, much of the evidence she provides does not show that the incidents were directed at or towards her. It cannot be inferred that Stolz was sexually harassing Plaintiff because he referred to Souza as "Mimi" from the Drew Carey Show, Colangelo as "Aunt Millie" from Green Acres or even the receptionist as "a bimbo". Likewise, Plaintiff cannot rely on the fact that some of her co-workers (both male and female) did not like Stolz's management style as evidence that she was sexually harassed. Plaintiff asserts in her brief that the following testimony from depositions is evidence that Stolz was chauvinistic and condescending towards women and that women were uncomfortable being around him (Pl. Brief at 11):
Q Can you describe Mr. Stolz's management style?
A It was sorbic (phonetic).
Q Can you expound upon that?
A Yeah. He would treat people with lack of respect, I always thought (O'Brien Dep. 15:5-8);
. . .
A . . . Rich could be very opinionated and sometimes they [Stolz and Nielsen] would just not see eye to eye on business issues and I was aware of that because I would attend the management meetings and things like that (Lalor Dep. 50:19).
The above references are in no way an indication of or example of Stolz's negative treatment of or attitude towards women. In fact, in the first instance, O'Brien, a male employee is describing Stolz's management style as he perceives it and in the second instance, a female employee is describing Stolz's relationship with Nielsen, a male in charge at the Maersk office.
Plaintiff's allegations simply do not establish a hostile work environment. A hostile work environment is one in which the totality of the circumstances demonstrates that an employer has tolerated a work environment filled with pervasive bias-motivated harassment, offensive speech, and/or conduct. West v. Philadelphia Elec. Co., 45 F.3d at 753. Focus must be on the totality of the circumstances surrounding the alleged discrimination, rather than individual incidents that have occurred. Cardenas v. Massey, 269 F.3d at 261.
Calling a secretary "bimbo" may be viewed as a derogatory term, but here it was not used to describe Plaintiff and a jury cannot conclude that Stolz referring to a secretary as a "bimbo" (in the presence of Plaintiff) was indicative of sex-based hostility against Plaintiff. Similarly, being called into Stolz's office almost every day and having to listen to him talk about her friends and about how bureaucratic the company was in no way supports Plaintiff's claim that she was discriminated against because of her sex (Pl. Dep. 97-99). Finally, Stolz sending emails to Plaintiff that referred to John and Jag as "blind mice" does not qualify as sexual harassment against Plaintiff or anyone else (161:24-25; 162:1-2).
Plaintiff is alleging harassment based on instances of statements being made in her presence to or about other employees of both genders, rather than statements directed toward or at her. Plaintiff complains about the fact that Stolz disciplined two male employees in the form of yelling at them in the office, in her presence. Plaintiff was so upset by this, she took a day off work. This is one of many incidents that Plaintiff uses to describe a hostile work environment, yet Plaintiff was not yelled at, nor was she the one who was disciplined at the time.
Plaintiff asserts that Stolz knew that pornography was pervasive in the workplace. She asserts that she was subjected to viewing pornography in the workplace on a computer screen when O'Brien opened his email and in a magazine that was mailed to Nielsen at Maersk (Pl. Dep. 202-204). It was a policy at Maersk to have fire walls in place to guard against internet pornography (O'Brien Dep. 31; Nielsen Dep. 48:12-15). Furthermore, upon receiving the magazine, it was suggested that Nielsen's name and Maersk be removed from the mailing list (Lalor Dep. 71-72; Stolz Dep. 106:2).
Plaintiff only presents conclusory allegations rather than evidence necessary to allow the reasonable fact-finder to infer that the incidents of harassment she complains of were motivated by gender-based animus. Plaintiff avers that her submissions to this Court are replete with evidence that she was subject to a discriminatory and hostile work environment. Upon examination of the documents, which contain excerpts of deposition testimony, Plaintiff's performance evaluation, there is no indication of sexual discrimination whatsoever. None of the incidents that Plaintiff refers to are severe or pervasive. Evidence of any offensive utterance based on Plaintiff's gender does not exist. Instead, the submissions are indicative of whimsical conclusions being drawn by Plaintiff which are not supported by the evidence that has been submitted. These facts necessarily defeat Plaintiff's quid pro quo claim. Defendant's motion for summary judgment on Plaintiff's quid pro quo claim must be granted for this reason.
Plaintiff alleges she was constructively discharged before she was terminated. In Pennsylvania State Police v. Suders, 124 S. Ct. 2342 (2004), the Court states that in addition to showing a hostile work environment, "to establish `constructive discharge,' the Plaintiff must . . . show that the abusive working environment became so intolerable that her resignation qualified as a fitting response." Id. at 2347. The Court notes "the inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign?" Id. at 2351. (citations omitted).
No reasonable jury would find that Plaintiff has overcome the first hurdle by making a showing of hostile work environment, a requisite to making a showing of constructive discharge. The court also notes that Plaintiff did not resign from her position with Maersk and that a reasonable person in Plaintiff's position would not have felt compelled to resign because of any of the events that occurred while Plaintiff was employed at Maersk.
2. Retaliation
Title VII prohibits an employer from retaliating against an employee who has engaged in protected activity. 42 U.S.C. § 2000e-3. "To advance a prima facie case of retaliation under Title VII, a plaintiff must show that: (1) the employee engaged in a protected employee activity; (2) the employer took an adverse employment action after or contemporaneous with the employee's protected activity; and (3) a causal link exists between the employee's protected activity and the employer's adverse action." Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997); Abramson v. William Patterson College of New Jersey, 260 F.3d at 286; Sarullo v. United States Postal Serv., 352 F.3d at 800; Williams v. Philadelphia Hous. Auth. Police Dep't, 380 F.3d 751, 759 (3d Cir. 2004) (citations omitted).
The requirements are the same under NJLAD with one exception — the employer must have known that the employee was engaging in a protected activity. Abramson v. William Patterson College of New Jersey, 260 F.3d at 286, n. 17.
To obtain summary judgment on Plaintiff's retaliation claim, Maersk "must show that the trier of fact could not conclude, as a matter of law, (1) that retaliatory animus played a role in the employer's decision-making process and (2) that it had a determinative effect on the outcome of that process. This may be accomplished by establishing the plaintiff's inability to raise a genuine issue of material fact as to either: (1) one or more elements of the plaintiff's prima facie case or, (2) if the employer offers a legitimate non-retaliatory reason for the adverse employment action, whether the employer's proffered explanation was a pretext for retaliation." Krouse v. Am. Sterilizer Co., 126 F.3d 494, 501 (3d Cir. 1997).
To survive a motion for summary judgment in a pretext case (as Plaintiff brings here), Plaintiff must produce "sufficient evidence to raise a genuine issue of fact as to whether the employer's proffered reasons were not its true reasons for the challenged employment action." Id. at 504; Sheridan v. E.I. DuPont de Nemours Co., 100 F.3d at 1067. As previously stated, demonstration of weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in Maersk's reasons for terminating Plaintiff allowing a reasonable fact-finder to find them incredible will aid the Plaintiff in surviving the summary judgment motion. Fuentes v. Perskie, 32 F.3d at 765 (citations omitted); Krouse v. Am. Sterilizer Co., 126 F.3d at 504. The Court of Appeals has held that, "to avoid summary judgment, the plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a fact-finder reasonably to infer that each of the employer's proffered non-discriminatory reasons was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext)." Abramson v. William Paterson College of New Jersey, 260 F.3d at 283 (citation omitted).
Maersk argues that protection under Title VII requires complaint of an unlawful act under Title VII and that Plaintiff never made such a complaint. Maersk states that because Plaintiff's complaint is not linked to any discriminatory conduct, that the retaliation claim must fail. Maersk also argues that Plaintiff could not show a causal connection between the complaint she made to Nielsen and her termination. Plaintiff complained to Nielsen about Stolz in October or November of 2001. She was terminated on March 25, 2002. A period of between approximately four and six months elapsed between Plaintiff's complaint and her termination — too long a period to establish a causal link. Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1112 (3d Cir. 1997). Finally, Maersk claims that pretext cannot be established by Plaintiff. Under Pollock, Plaintiff must show that Maersk's reason for terminating her amounted to pretext. Pollock v. Am. Tel. and Tel. Long Lines, 794 F.2d.
To establish a prima facie case of retaliation, the Plaintiff must show that she was engaged in protected activity, that she was discharged subsequent to or contemporaneously with such activity and that there was a causal link between the protected activity and the discharge. Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997) (citations omitted).
Plaintiff relies on her fall of 2001 complaint to Nielsen as the protected activity which subjected her to retaliation. Her own testimony, however, demonstrates that her complaints to Nielsen had nothing to do with sexual harassment; rather they concerned Stolz's abusive management style:
Q: Was it that one time where you went into his office to discuss Mr. Stolz's management style? Was that the only complaint you made?
A: Yes (Pl. Dep. 117:17-20).
. . .
Q: When you met with Mr. Nielsen to complain about Mr. Stolz's management style, did you mention the fact that you were uncomfortable when Mr. Stolz asked you to go sailing on his boat?
A: I didn't bring up the situation with sailing, with him asking me to go sailing with him on his boat to Mr. Nielsen.
Q: And why didn't you do that?
A: Because I didn't think it was an issue at the time. I was more concerned with how he was behaving towards me in the office (Pl. Dep. 153:2-12).
. . .
Q: Going back to the Scallini-Fidelli luncheon, did you complain to anybody at Maersk regarding what happened with respect to that luncheon?
A: I think I made — I may have commented to John [co-worker John O'Brien] in the car how I thought Rich was such a slime ball.
Q: Do you recall if Mr. O'Brien said anything to you?
A: He didn't like him either (Pl. Dep. 167:15-24).
. . .
Q: Did you ever complain to anybody about the two occasions you saw John O'Brien open up mail with topless women in it?
A: No. Because I knew that there was no recourse in the company (Pl. Dep. 205:17-21).
. . .
Q: . . . What . . . sexual harassment by anybody at Maersk did you complain to Mr. Nielsen about?
A: I complained to Axle about Rich.
Q: That was about his management style. Right?
A: He had no management style. What management style?
Q: . . . did you complain to Mr. Nielsen and say: Look, Rich Stolz is sexually harassing me?
A: I told Aksel he was giving me a hard time, and he's making my work environment difficult to be in.
Q: And that was after the Jag and John incident? [when Plaintiff complained that Stolz admonished two male subordinates and that Stolz and Janice Colangelo were in "cahoots" against Plaintiff]
A: Yes (Pl. Dep. 219:4-24).
There was no protected activity on Plaintiff's part to be retaliated against, because until she filed her EEOC charge, Plaintiff never complained that she had suffered sexual harassment. Even if Plaintiff's complaints to Nielsen were deemed protected activity, the evidence simply cannot support a finding that those complaints had anything to do with her discharge the following March when she refused to pack files in boxes.
Maersk has presented overwhelming evidence that Stolz, and later Nielsen, discharged Plaintiff because she refused to comply with the request to pack files. Plaintiff asserts that this proffered reason was pretextual.
The Court of Appeals has held that in a pretext case a jury should consider whether "consideration of the impermissible factor was "a determinative factor" in the adverse employment action". Watson v. Southeastern Pennsylvania Transp. Auth., 207 F.3d 207, 215 (3d Cir. 2000). Plaintiff argues that this is a mixed-motives case and that her termination was the result of multiple factors, at least one of which is illegitimate and the illegitimate factor played a motivating part in the adverse decision. The burden shifts to the employer to persuade the jury by a preponderance of the evidence that it would have reached the same decision even if the protected trait had not been considered. Id. at 215; Shellenberger v. Summit Bancorp, 318 F. 3d 183, 187 (3d Cir. 2003).
Maersk put forth a legitimate, non-discriminatory reason for firing Plaintiff — her insubordination. Based on the submissions, no reasonable fact-finder could find that Maersk's adverse employment decisions regarding Plaintiff were motivated by anything other than Plaintiff's insubordination or that Maersk was incredible. The record is devoid of any evidence from which a jury could infer that Maersk's actions were sexually motivated. Plaintiff has not produced sufficient evidence to allow a reasonable fact finder to conclude that the proffered reasons for firing her are a pretext for illegal discrimination or retaliation.
Defendants' motion for summary judgment on Plaintiff's retaliation claim will be granted.
The court's discussion is confined to the ADA, as Plaintiff did not allege violations of the NJLAD in Count II of her Complaint, though the court notes that principles of the ADA would be applied equally to the NJLAD because, "New Jersey courts typically look to federal anti-discrimination law in construing NJLAD." Chisolm v. McManimon, 275 F.3d 315, 325 (3d Cir. 2001).
The second count of Plaintiff's Complaint alleges that she was terminated in part because of her request for an accommodation in violation of the ADA (Complaint at 4). Plaintiff alleges that she was a disabled employee, as defined by the ADA because her podiatric and chiropractic problems limited one or more of her major life activities. 42 U.S.C. § 12102; § 12111(8). She further alleges Maersk violated the ADA by intentionally discriminating against her because of her disability by failing to accommodate her injury and inability to lift certain items (Complaint at 4). Specifically, Plaintiff alleges in her Complaint that she was forced to carry boxes and files in weight in excess of the mandated restrictions by Plaintiff's attending physician and chiropractor. Plaintiff also alleges that her repeated requests for accommodation lead to her termination. Plaintiff alleges that Maersk failed to accommodate her injury and inability to lift and to provide the accommodations requested.
Plaintiff has submitted insufficient evidence to survive this motion for summary judgment on her claim under the ADA.
The ADA provides that, "No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). A "qualified individual with a disability" is a person with a disability who, "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8).
The United States Supreme Court stated:
the ADA requires those "claiming [its] protection . . . to prove a disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience . . . is substantial.". . . That the [ADA] defines "disability" "with respect to an individual," 42 U.S.C. § 12102(2), makes clear that Congress intended the existence of a disability to be determined in such a case-by-case manner.Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002) (citations omitted).
Plaintiff must affirmatively introduce evidence that she is disabled within the meaning of the ADA to survive a motion for summary judgment as a matter of law. Marinelli v. City of Erie, Pennsylvania, 216 F.3d 354, 363 (3d Cir. 2000). Maersk contends that Plaintiff is not a qualified individual with a disability under the statute because she does not have a disability. In fact, Maersk claims Plaintiff only has self-imposed restrictions. A disability is defined by the ADA as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2).
Plaintiff alleges in her Complaint that she was forced to carry boxes and files in weight in excess of the mandated restrictions by Plaintiff's attending physician and chiropractor. It must be noted that the evidence conclusively establishes that no such demands were made upon Plaintiff and that there is no evidence of such restrictions mandated by Plaintiff's doctor and chiropractor. Plaintiff also alleges that her repeated requests for accommodation lead to her termination. Plaintiff alleges that Maersk failed to accommodate her injury and inability to lift and to provide the accommodations requested. It must also be noted that there is no evidence of requests for accommodations, only a refusal to perform an assigned task on the ground confidential documents were involved.
Plaintiff claims that the scar tissue on her right heel from a removed planter's wart substantially limited a major life activity, 42 U.S.C. § 1202(2), a requirement to be classified as disabled.
The ADA does not define major life activities, Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996), though suggestions are made regarding what substantially limited means. Sutton v. United Air Lines, Inc., 527 U.S. 471, (1999). Under the EEOC regulations, major life activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i).
In order for a disability to substantially limit a major life activity, a person must be "(I) unable to perform a major life activity that the average person in the general population can perform; or (ii) significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2.
Plaintiff has scar tissue on her foot from a planter's wart that she had removed in 2000, prior to her employment at Maersk (168:3-4). Plaintiff's scar tissue in the form of an indentation on her right heel which, according to Plaintiff's deposition testimony, affects the way she walks, causing pain to travel up the back of her leg into her lower back (Pl. Dep. 230:4-9; 233:18-20). These latter complaints were not communicated to Maersk. Plaintiff visited with Dr. Lerner, Dr. Frank, Dr. Hyans, and Dr. Singer. Dr. Lerner gave Plaintiff two prescriptions — one to break down the scar tissue, and one was a wart compound (Pl. Dep. 232:21-25). Plaintiff currently stays away from lifting heavy things — her brother-in-law carries her laundry down to the basement and her nephew helps her out with her garbage (Pl. Dep. 234:6-8). No doctor has ever told Plaintiff to avoid lifting heavy things (Pl. Dep. 234:24-25, 235:1).
Plaintiff has not put forth evidence of any major life activity that is substantially limited as a result of the scar tissue on her heel. Plaintiff says that she walked with a limp and also indicates that she was prescribed medication to remedy the problem she had with the wart and to eliminate the scar tissue she had. Plaintiff asserts that she was not able to lift heavy things because of her foot, though no doctor ever told Plaintiff that she should avoid doing such. The evidence could not support a finding that Plaintiff was unable to perform a major life activity.
Plaintiff's allegations that she was forced to carry heavy boxes and files is unsupported by the record. She was asked to place files in boxes; that was all; there was no reason to accommodate her needs. A disability can exist not only when a person has a physical or mental impairment that substantially limits one or more of his or her major life activities; a disability can also exist when he or she is regarded as having such an impairment. 42 U.S.C. § 1202(2).
The Court of Appeals has held that, "the mere fact that an employer is aware of an employee's impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that perception caused the adverse employment action." Salley v. Circuit City Stores, Inc., 160 F.3d 977, 981 (3d Cir. 1998), quoting Kelly v. Drexel Univ., 94 F.3d 102 at 109. In Kelly, Plaintiff claimed that his limp was visible and apparent and that a co-worker was aware of Plaintiff's problem. The Court of Appeals upheld the district court's decision to reject Plaintiff's argument that his employer regarded him as having a disability. Id.
Maersk states it had no knowledge that Plaintiff was disabled. There is no formal requirement that an employee notify an employer of the need for an accommodation. Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 330-331 (3d Cir. 2003), citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999). However, the EEOC's interpretive guidelines provide that: "Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability." 29 C.F.R. pt. § 1630.
In this case, we do not reach the interactive process, because Plaintiff did not request an accommodation. An employer may need to meet the employee half way, because an employee may need an accommodation but not know how to ask for it; however, the Court of Appeals has made clear that an employee must communicate that he or she wants assistance for his or her disability. Conneen v. MBNA Am. Bank, N.A., 334 F.3d at 332, citing Jones v. United Parcel Serv., 214 F.3d 402, 408 (3d Cir. 2000). Plaintiff in this case never communicated the need for an accommodation.
Plaintiff did not inform anyone at Maersk that she was disabled. She also did not provide anyone with a doctor's note regarding her foot. Plaintiff says she informed Stolz about her trip to the podiatrist and that when she handed Stolz the podiatrist's note about having surgery to remove the scar tissue on her foot, Stolz "rolled his eyes and threw the paper at me. And he goes: you cannot afford to be out. Go get yourself a second opinion" (Pl. Dep. 167:5-7, 224:12-22). Plaintiff alleges Stolz knew of her foot condition because he was provided with the doctor's note, and was aware that she was going to the podiatrist on a weekly basis to get her foot cauterized.
It is unreasonable to believe that Maersk would assume that because on occasion Plaintiff used a chair to prop up her foot that she was disabled. The note that Stolz allegedly threw back in Plaintiff's face was about Plaintiff having surgery to remove scar tissue, not about Plaintiff having a disability. Plaintiff never told anyone at Maersk that she could not stand for long periods of time, but she believes, "it was understood when [she] was under [her] podiatrist's care that I couldn't stand for long periods of time because of the wounds underneath [her] foot" (Pl. Dep. 252:12-16). And Plaintiff never presented a doctor's note stating that she couldn't perform certain tasks — she thought there was no need since her job as an administrative assistant did not entail it (Pl. Dep. 228:12-16-25, 229:1-8). There is no evidence to suggest that Maersk regarded Plaintiff as being disabled.
Plaintiff has not offered evidence that would support a jury finding that her foot problem substantially limited her ability to engage in a major life activity or that her employer regarded her as having such an impairment, thereby allowing her to be classified as disabled under the ADA. Assuming Plaintiff was disabled under the ADA, she has not presented evidence upon which a reasonable fact-finder could draw an inference that Maersk violated the ADA by discriminating against her.
Defendants's motion for summary judgment on Plaintiff's ADA claim will be granted.
III. Conclusion
For the reasons set forth above, Defendant's motion for summary judgment on Plaintiff's claims is granted.