Opinion
Case No. 4:01CV1424 CDP
January 21, 2003
MEMORANDUM AND ORDER
Easter McCaine brought this suit against her former employer, PX Stores, Inc., under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Missouri Human Rights Act, Mo. Rev. Stat. § 213.010, et seq., for discriminating against her on the basis of sex by maintaining a hostile work environment and for constructively discharging her. PX Stores has moved for summary judgment. Because I find there are genuine issues of material fact remaining in this case, I will deny PX Stores' motion.
FACTS
The parties have set forth the following facts in this case. On March 7, 1998, Easter B. McCaine was hired by PX Stores, Inc., to work as a cashier and store clerk at its Natural Bridge Road store. Motee Eddington was the store manager at the time. McCaine testified that from almost the beginning she was subjected to sexual harassment. Eddington propositioned her for sex and repeatedly asked for her house key. McCaine reported this conduct to George Weese, the owner of PX Stores, and John Downs, the comptroller. In the hope that she would get a fresh start at a new location, McCaine was subsequently transferred to the Page Avenue store in April of 1998.
These facts are set forth for summary judgment purposes only, and draw all inferences in favor of McCaine. This opinion does not relieve either party from proving all facts necessary to the presentation of their claims or defenses at trial.
After the transfer, Eddington began calling the Page Avenue store on a daily basis to speak with John Reeves, the store manager, and Tim Banks, the assistant manager. After these conversations, Reeves and Banks teased McCaine about her relationship with Eddington and joked that Eddington was just "trying to get some." In December of 1998, McCaine claims that Banks raped her when she blacked out on her bed after a night of drinking. She awoke with him on top of her. After speaking one evening with co-worker Theresa Davis, McCaine realized that Banks had raped her. However, she did not tell PX Stores' management about the rape out of fear of losing her job.
After she accused him of raping her, Banks lashed out at McCaine. He made comments in front of Reeves such as, "She can't handle me because I'm too big," and "I am man dingo." Reeves did nothing to stop this conduct. Banks grabbed McCaine's buttock about six times, and he would often stand behind her and breathe on the back of her back. She told him to stop. Banks would also brag about having sex with McCaine and convey to others that they were still "messing around." He would ask her when she was going to invite him over to her house again. She responded that he could never come back after what he did.
On September 21, 1999, Banks replaced Reeves as the Page Avenue store manager. Banks continued to harass McCaine in both sexual and non-sexual ways. For example, he did not help with customers as required, even when McCaine had long lines. Instead, he would purposely get on the phone. Banks also stole money from McCaine's cash register, and he cussed her out, cut her breaks, and made her do his work. McCaine complained to Downs, who was responsible for handling complaints of sexual harassment, that Banks was harassing her and stealing money. Although Downs stated that he would investigate these accusations, Banks was never disciplined.
After McCaine repeatedly turned down his advancements, Banks told Downs that he could not work with McCaine anymore. On January 19, 2001, Downs told McCaine that she was being transferred back to the Natural Bridge Road store. She became upset and felt that she was being disciplined for reporting the discriminatory conduct. Because McCaine believed that she had no chance for fair treatment from PX Stores after being harassed for years by two store managers, she resigned her position that day. On April 2, 2001, McCaine filed a charge of discrimination with the Equal Employment Opportunity Commission and subsequently brought this suit.
SUMMARY JUDGMENT STANDARDS
To determine whether to grant summary judgment, I must view the facts and inferences from the facts in the light most favorable to the plaintiff. Matsushita Elec. Indus. Co. Ltd, v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The defendant has the burden to establish both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the defendant has met this burden, the plaintiff may not rest on the allegations in her pleadings but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists.
At the summary judgment stage, I will not weigh the evidence and decide the truth of the matter, but rather must only determine if there is a genuine issue for trial. Liberty Lobby, 477 U.S. at 249. Rule 56(c) of the Federal Rules of Civil Procedure mandates entry of summary judgment against a party, if after adequate time for discovery, that party fails to make a showing sufficient to establish the existence of an essential element of the case that the party will have the burden of proving at trial. Celotex, 477 U.S. at 322-23.
DISCUSSION
PX Stores advances four arguments in its memorandum in support of its motion for summary judgment: (1) McCaine has failed to demonstrate that she suffered unwelcome sexual harassment; (2) the harassment did not affect a term, condition, or privilege of her employment; (3) PX Stores did not know, and had no reason to know, of the alleged harassment; and (4) PX Stores did not fail to take appropriate remedial action, and McCaine has failed to demonstrate the existence of disputed facts to show constructive discharge.
Supervisor Issue
PX Stores' last two arguments are premised upon the notion that Banks was McCaine's co-worker and not her supervisor. This determination is particularly important because, under the Supreme Court's decisions inFaragher v. City of Boca Raton, 524 U.S. 775 (1998) andBurlington Indus, v. Ellerth, 524 U.S. 742 (1998), if Banks was McCaine's supervisor, then PX Stores would be vicariously liable for his discriminatory conduct. Furthermore, the co-worker versus supervisor inquiry affects McCaine's burden of proof in establishing her prima facie case of hostile work environment sexual harassment.
If Banks was her supervisor, McCaine would need to show that: (1) she is a member of a protected group; (2) she was subjected to unwelcome sexual harassment; (3) the harassment was based on sex; and (4) the harassment affected a term, condition, or privilege of her employment.Beard v. Flying J. Inc., 266 F.3d 792, 797-98 (8th Cir. 2001). If Banks was a co-worker, then McCaine would also need to prove that PX Stores knew or should have known of the harassment and failed to take proper remedial action. Scusa v. Nestle U.S.A. Co. Inc., 181 F.3d 958, 965 (8th Cir. 1999).
Although neither Title VII nor the Supreme Court provides a definition of the term "supervisor," PX Stores attempts to frame the "supervisor" position as one requiring the power to promote and discipline. The Supreme Court in Faragher, however, took a more expansive view of the term. The Court noted that a low-level supervisor, who manages the daily assignments of subordinates and supervises their work, could be considered a supervisor under Title VII. Addressing this issue in detail, the court in Grozdanich v. Leisure Hills Health Ctr., 25 F. Supp.2d 953 (D. Minn. 1998), stated:
The disutility of drawing any distinction between supervisors who manage their subordinates' daily activities, but who can only recommend significant personnel decisions, and supervisors who have plenary authority over all such matters, underscores the Supreme Court's holdings in Faragher and Ellerth. A supervisor who sexually harasses an employee, even though he holds no dispositive say over that employee's employment status, is furthered in his capacity to harass by the power that he wields over the employee, and the employer can and should guard against the supervisor's abuse of the very authority that the employer vested in its managers. To draw the distinction, that is urged by [the employer], would facilitate an employer to effectively insulate itself from the application of Faragher, and Ellerth, simply by directing all critical personnel decisions to be effected by a personnel department, which may have no direct, and only infrequent contact with the employee subject to the harassment.Id. at 973 (citations omitted).
On the record as it now stands, I find that a genuine issue of material fact remains regarding whether Banks was McCaine's supervisor. It is altogether unclear what authority he had over her daily activities. Moreover, I note there is conflicting case law on whether this determination is a question of fact or a question of law. Compare Grozdanich, 25 F. Supp.2d at 970-73 with Weyers v. Lear Operations Corp., 2002 WL 31455751, *13 (W.D. Mo. Aug. 14, 2002). Accordingly, this issue should be fully briefed and incorporated into the parties' pre-trial compliance, which must include proposed jury instructions framing the issue, if either party believes it is a question for the jury.
Hostile Work Environment
PX Stores maintains that McCaine was not subjected to sexual harassment because she failed to demonstrate that Banks' actions were unwelcome or based upon her sex. Viewing the evidence in the light most favorable to McCaine, a jury could reasonably find that Banks' conduct was unwelcome,see Beard, 266 F.3d at 798 (noting that a plaintiff must indicate by her conduct that the harassment was unwelcome), and that the discrimination was based upon her sex. See Duncan v. General Motors Corp., 300 F.3d 928, 933 (8th Cir. 2002) (noting that the fundamental issue is whether members of one sex are treated differently than the members of the opposite sex). There is sufficient evidence to preclude summary judgment on these grounds.
PX Stores also asserts that the harassment, if any, did not affect a term, condition, or privilege of McCaine's employment. To determine whether conduct is actionable under Title VII, McCaine has to show that "the workplace is permeated with discriminatory intimidation, ridicule, and insult." Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993) (internal quotations omitted). In determining whether the conduct is sufficiently severe or pervasive, a court looks at 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."Duncan, 300 F.3d at 934 (quoting Harris, 510 U.S. at 23).
I find that a reasonable juror could conclude that the environment was sufficiently hostile to affect a term, condition, or privilege of McCaine's employment. McCaine contends that Banks raped her, made sexual comments about fifty times, remarked to others about an ongoing sexual relationship with her, grabbed her buttocks, and breathed on back of her neck. McCaine has proffered evidence showing that she considered PX Stores to be a hostile work environment, since she complained about the harassment to management and eventually left her job as a result of it. Therefore, jury issues remain, and I cannot grant summary judgment on this ground.
Assuming that Banks was a co-worker, PX Stores argues that McCaine has failed to show that PX Stores knew of the alleged harassment and did nothing to remedy it. Again, viewing the evidence in the light most favorable to McCaine, as I must at this stage, I cannot grant summary judgment to PX Stores. McCaine claims that she reported Banks' conduct to Downs and that Downs, who was charged with addressing sexual harassment complaints, did nothing to resolve the situation. She also contends Weese knew and did nothing. Although PX Stores' second transfer of McCaine may be viewed as a proper remedy, the facts indicate that this was done only to appease Banks. This one act, regardless of motive, does not entitle PX Stores to summary judgment.
Finally, PX Stores contends that McCaine cannot recover for the alleged rape because of the statute of limitations. The Supreme Court has recently held, however, that "when an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by the court for purposes of determining liability." National R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061, 2074 (2002). Only the smallest portion of the harassment need to occur within the limitations period for the claim to be timely.Jensen v. Henderson, 2002 WL 31748850, *4 (8th Cir. Dec. 10, 2002). Because McCaine alleges incidents of hostile work environment sexual harassment taking place with the 300-day period, her rape allegation is not barred and can be considered by the jury for purposes of determining liability.
Constructive Discharge
PX Stores argues that McCaine has failed to demonstrate the existence of disputed facts to show constructive discharge. "Constructive discharge occurs when an employer deliberately renders an employee's working conditions intolerable and this forces [her] to quit [her] job."Phillips v. Taco Bell, 156 F.3d 884, 890 (8th Cir. 1998) (internal quotations omitted). To be liable under Title VII, "the employer must have intended to force the employee to quit, or at least have reasonably foreseen the employee's resignation as a consequence of the unlawful working conditions it created." Jackson v. Ark. Dept. of Educ., Voc. Tech. Educ., 272 F.3d 1020, 1027 (8th Cir. 2001). Moreover, "the employee must also show that a reasonable person, from an objective viewpoint, would find the working conditions intolerable." Id.
There are sufficient factual disputes here to preclude the granting of summary judgment on the constructive discharge claim. Assuming that she complained to PX Stores management about Banks' harassment over the years, McCaine's resignation was reasonably foreseeable. There is also evidence supporting the inference that PX Stores' management was glad that to see McCaine go. If McCaine reasonably believed that there was no chance of fair treatment, then she has been constructively discharged.See Ogden v. Wax Works Inc., 214 F.3d 999, 1008 (8th Cir. 2000).
Although recognizing that a transfer to another store where an employee's title, pay, and benefits remain constant does not create an intolerable environment, see LePique v. Hove, 217 F.3d 1012, 1013 (8th Cir. 2000), McCaine's claim does not turn on this one act alone. McCaine contends that she resigned out of frustration over PX Stores' consistent siding with Banks and its repeated failure to address her sexual harassment complaints. A reasonable person could find Banks' conduct created an intolerable work environment at PX Stores.
Accordingly,
IT IS HEREBY ORDERED that defendant's motion for summary judgment [#34] is denied.
This case remains set for a jury trial on the two-week docket beginning February 18, 2003 at 9:00 a.m. in Courtroom 14 South.