Opinion
Civil Action No. 1:04-CV-3698-WSD-ECS.
June 19, 2006
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I. Introduction
Plaintiff, Stephanie Meece, ("Plaintiff") filed the instant action on December 17, 2004. [Doc. 1]. In her complaint, Plaintiff charges Defendant Atlantic Southeast Airlines, Inc. ("Defendant" or "ASA") with sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Id. On January 20, 2006 Defendant filed a motion for summary judgment. [Doc. 46]. The Parties filed two consent motions to extend time for Plaintiff to respond to Defendant's motion for summary judgment, in February 2006. [Docs. 48, 50]. On March 9, 2006, Plaintiff's attorney filed a motion to withdraw as attorney for Plaintiff. [Doc. 51]. Also on March 9, 2006, this Court entered an Order denying the Parties' two consent motions and provided that "[s]hould the district judge grant Plaintiff's attorney's motion to withdraw prior to the response due date, this Court will grant Plaintiff thirty days, from the entry of the order granting the motion to withdraw, to obtain counsel and/or file a response to Defendant's motion for summary judgment." [Id.]. On March 14, 2006, the district judge granted Plaintiff's attorney's motion to withdraw. [Doc. 53]. As a result, Plaintiff's response to Defendant's motion for summary judgment was due on April 13, 2006.
On April 5, 2006, Plaintiff filed another motion to extend the time to respond to Defendant's motion for summary judgment, due to the withdrawal of her attorney and her intent to proceed pro se. [Docs. 51, 53, 56]. Prior to the Court's ruling on Plaintiff's motion, however, Plaintiff filed a forty-four page declaration with corresponding exhibits, entitled "Declaration of Stephanie Meece [for substantive response]", on April 11, 2006. [Doc. 58]. On April 12, 2006, this Court entered an Order permitting Plaintiff until May 2, 2006 to file a response to Defendant's motion for summary judgment. [Doc. 60]. Despite these multiple extensions, the only submission Plaintiff has filed in response to Defendant's motion for summary judgment to date is her April 11, 2006 declaration. Defendant's motion for summary judgment is, accordingly, presently ripe for review. For the reasons expressed herein, the undersigned RECOMMENDS that Defendant's motion for summary judgment be GRANTED.
II. Plaintiff's Failure to Comply with the Local Rules of This Court
As an initial matter, the Court notes that Plaintiff's filing of a declaration as the sole response to Defendant's motion for summary judgment does not comply with the requirements of a response to a motion for summary judgment under the Local Rules of this Court. See LR 56.1(B)(2). Specifically, Plaintiff did not file a statement of undisputed facts "supported by specific citations to evidence", nor did she file a statement of material disputed facts as required by the local rules. (Id.). In this district, the process for separating disputed from undisputed material facts is governed by Local Rule 56.1(B). Local Rule 56.1(B)(2)(a) requires the opposing party to submit a response to a movant's statement of undisputed material facts; otherwise, the Court will deem each of movant's facts as admitted. Local Rule 56(B)(2)(a)(2). Plaintiff, however, did not respond to Defendant's Statement of Material Facts As To Which There Is No Genuine Issue as required by the local rules. [Doc. 46]. Therefore, the Court must deem each of movant's statements of undisputed, material facts to be admitted. Digioia v. H. Koch Sons, Div. of Wickes Mfg. Co., 944 F.2d 809, 811 n. 6 (11th Cir. 1991) (stating that "the facts as set out in [defendant's] concise statement of facts not at issue are deemed admitted" by operation of the Local Rules because they were not controverted); Jones v. Gerwens, 874 F.2d 1534, 1537 n. 3 (11th Cir. 1989) (stating that "[f]acts set forth in the Defendants' Statement of Undisputed Facts which are not controverted, are deemed admitted" pursuant to the Local Rules); Barnett v. Leiserv, Inc., 968 F.Supp. 690, 692 n. 1 (N.D. Ga. 1997) (stating that "[t]he court . . . deemed as admitted all of the material facts that were contained in Defendant's Statement [of Undisputed, Material Facts] that Plaintiff has failed to address or traverse."); but see United States of America v. 5800 SW 74th Avenue, Miami Florida, 363 F.3d 1099, 1103 n6 (11th Cir. 2004) ("to the extent that [the local rules] permit the district court to grant summary judgment without a review of the record, that rule is inconsistent with Federal Rule of Civil Procedure 56, and, therefore, void"). Accordingly, Defendant's statement of undisputed material facts is deemed admitted and the Court will consider the undisputed material facts in conjunction with the pertinent parts of the record to determine whether the entry of summary judgment is appropriate in this case.III. Factual Background
When evaluating the merits of a motion for summary judgment, the Court must view the evidence and factual inferences in a light most favorable to the non-moving party. Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1309 (11th Cir. 2001); Hairston v. Gainesville Sun Publ'g. Co., 9 F.3d 913, 920 (11th Cir. 1993). Applying this legal standard, unless otherwise noted, the Court derives the following factual background from Defendant's statement of undisputed material facts ("Def. SUMF").On or about February 3, 2004, Defendant Atlantic Southeast Airlines hired Plaintiff for a flight attendant position. (Def. SUMF ¶ 1). During the first six months of Plaintiff's employment, she was a probationary employee. (Def. SUMF ¶ 2).
Defendant provided Plaintiff with approximately four weeks of training in Atlanta, Georgia, prior to beginning her duties as a flight attendant. (Def. SUMF ¶ 3). As part of her training and orientation, Plaintiff signed an acknowledgment that Defendant's Standard Practice Manual was available to her at any time. (Def. SUMF ¶ 4). Also as part of her training and orientation, Defendant provided Plaintiff with extensive harassment prevention training, including verbal instruction and an explanatory videotape, as well as a copy of Defendant's Professional Conduct Policy and Prohibition Against Harassment ("the Policy"). (Def. SUMF ¶ 5). Plaintiff signed an acknowledgment that she received a copy of the Policy, viewed the videotape, and read, understood, and agreed to abide by the Policy. (Id.).
The Policy prohibits all forms of harassment and intimidation in the work environment, warns of disciplinary action for violation of the Policy, contains a clearly outlined reporting procedure, and protects those that report harassment or intimidation in good faith from retaliation. (Def. SUMF ¶ 8). Plaintiff was aware of and understood the Policy and knew of the harassment reporting procedures and those persons she could contact to report suspected harassment. (Def. SUMF ¶ 9). In addition, the Policy requires that all employees who believe they are being subjected to objectionable conduct report it immediately to a Human Resources representative. (Def. SUMF ¶ 11). Also, Defendant's Standard Practice 224 sets forth guidelines for actions that the company considers to be unacceptable team member conduct. (Def. SUMF ¶ 13).
On or about February 20, 2004, Plaintiff completed her training with Defendant and began performing the duties of her position. (Def. SUMF ¶ 6). Plaintiff bid for and was awarded a domicile in Dallas/Fort Worth and, thus, moved at that time from Atlanta, Georgia to Texas. (Def. SUMF ¶ 7). Plaintiff chose to share an apartment ("crash pad") in Euless, Texas utilized by several of her co-workers, including First Officer James McCoy ("McCoy"), the alleged harasser, who was employed by Defendant as a pilot at all times relevant to this case. (Def. SUMF ¶¶ 14, 15). The apartment was not on Defendant's premises and was not owned, operated, controlled, or selected by Defendant. (Def. SUMF ¶ 16). Defendant paid no portion of the rent for the apartment. (Def. SUMF ¶ 17). Although Plaintiff testified that Defendant encouraged their employees to rent a "crash pad" with other flight personnel, she acknowledged that getting a crash pad was not a requirement of her job. (Deposition of Stephanie Meece ("Pl. Dep.") at 89-90). In addition, Plaintiff testified that she and Mr. McCoy worked in different departments at ASA and that they never worked or flew together. (Def. SUMF ¶ 18).
According to Plaintiff, shortly after she entered the arrangement to rent the apartment with Mr. McCoy and the others, Mr. McCoy began sexually harassing her. (Pl. Dep. at 90-92, 94; Declaration of Stephanie Meece ("Pl. Dec.") at 5). Specifically, Plaintiff testified that Mr. McCoy sexually harassed her by "[h]olding my hand, asking me to go out with him, saying I don't understand why you won't go out with me. Telling me how good he would be to me, how good he would be to my kids, which really upsets me." (Pl. Dep. at 95; see also Pl. Dec. at 13). Plaintiff stated that on one occasion, while on reserve, she went to the mall and then to the movies with Mr. McCoy and her two other roommates, also ASA employees. (Pl. Dep. at 96; Pl. Dec. at 6). While at the mall, Plaintiff alleges that Mr. McCoy held her hand and she kept pulling away from him. (Pl. Dep. at 96). Plaintiff alleges that, when they went to the movies, Mr. McCoy "started holding my hand again in the movie theater." (Pl. Dep. at 96). This incident upset Plaintiff and she spent the entire time during the movie "thinking how I was going to get out of there." (Id.).
Plaintiff testified that while on reserve, Defendant allows the flight attendants approximately one hour of notice before they have to show up for a job. (Pl. Dep. at 97). According to Plaintiff, the definition of reserve includes paid time not at the airport "waiting within a specific amount of time depicted by the company usually 12-24 hours, have restricted movements and activities (ie: not allowed to drink alcohol), to be available with in one hour notice to be at the airport, in uniform ready to fly. Paid for 2.5 or 3 hours when sitting reserve/home reserve, if scheduling calls and you get a trip you are paid the greater as far as hours." (Pl. Dec. at 5-6).
In addition, Plaintiff further testified that Mr. McCoy harassed her while they were occupying the shared apartment by constantly asking her out, by "glaring" at her while in their apartment, and by going out of his way to make her uncomfortable. (Pl. Dep. at 97-98). For instance, one morning Mr. McCoy came out to the area where Plaintiff was eating breakfast and said "why don't you come sit on my lap." (Pl. Dep. at 98; see also Pl. Dec. at 12-13). On another occasion, while Plaintiff was sleeping on a futon in the den, Mr. McCoy, wearing boxer shorts and a t-shirt or possibly doctor's scrub top, climbed into bed with Plaintiff and "put his hand around [her]." (Pl. Dep. at 103-104; see also Pl. Dec. at 8). Plaintiff got up and left the room. (Id.). Plaintiff testified that "[h]is hand didn't go between my legs; but if I hadn't woke up and stopped him, it probably would have." (Id.). On another occasion, Plaintiff claims that Mr. McCoy stated to Anthony Krone, another roommate and ASA employee, in her presence "that if he had sex with me, he would tear my a____ up". (Pl. Dec. at 17; see also Pl. Dep. at 111). Plaintiff also contends that Mr. McCoy harassed her by throwing things, getting in her face as though to hit her, and threatening to kill her., (Pl. Dep. at 108; Pl. Dec. at 11).
Plaintiff contends that she was on reserve on this day. (Pl. Dec. at 12).
Plaintiff contends that she was on reserve during one of these outbursts. (Pl. Dec. at 11).
Plaintiff also found it offensive that Mr. McCoy kept pornography and information pertaining to mail order brides in the apartment they shared. (Pl. Dep. at 139-40).
The final incident occurred on May 30, 2004 — the day Mr. McCoy moved out of the apartment. (Pl. Dep. at 126-27, 131). Plaintiff stated that after returning to the apartment with her roommates, she discovered that Mr. McCoy had moved out leaving only a few pieces of furniture. (Pl. Dep. at 115-16; Pl. Dec. at 19). Shortly thereafter, Mr. McCoy arrived at the apartment and began "punching and kicking the door as well as yelling and cursing for someone to let him in", because the dead bolt had been locked. (Pl. Dep. at 116; Pl. Dec. at 19-20). After allowing him in, Plaintiff claims that Mr. McCoy called her a "f____ing c____ and a f____ing b____". (Pl. Dec. at 20). The following day, after Plaintiff made arrangements to rent a truck so Mr. McCoy could collect his remaining items, Mr. McCoy allegedly became angry and told Mr. Krone that he was going to come over before Plaintiff went to work. (Pl. Dep. at 118; Pl. Dec. at 21). Mr. McCoy's comment prompted Plaintiff to call the police. (Pl. Dep. at 119; Pl. Dec. at 21). Plaintiff testified that the police officer who responded to her call told Mr. McCoy to leave and to "call for service" when he was going to come and collect his remaining possessions. (Pl. Dep. at 119; Pl. Dec. at 21).
According to Plaintiff, all of the incidents of harassment took place three to four times a week for approximately three to four months. (Pl. Dep. at 100-102). Plaintiff further testified that these incidents with Mr. McCoy did not affect her job performance. (Def. SUMF ¶ 21).
On May 31, 2004, the same day that the final incident took place and the day after Mr. McCoy moved out of the apartment, Plaintiff reported these incidents to her supervisor, Nancy Riegel, for the first time, approximately three months after Mr. McCoy allegedly began harassing Plaintiff. (Pl. Dep. at 121, 131; Pl. Dec. at 22). Specifically, Plaintiff reported this dispute to her supervisors, Nancy Riegel ("Riegel") and Mariah Cade ("Cade"), but she never reported Mr. McCoy's conduct to a Human Resources Representative. (Def. SUMF ¶ 24). Ms. Riegel testified that, in response to Plaintiff's complaint, she informed Plaintiff that, "because it was considered a personal dispute and nothing had taken place on company premises, that I could not do anything to assist her." (Deposition of Nancy Riegel "Riegel Dep." at 14). Ms. Riegel further testified that "[i]f anything takes place on company premises, then we have an obligation to report it. If it's a personal dispute that does not take place on company property, then the company will not get involved." (Riegel Dep. at 21).
Plaintiff testified that she had spoken with Mariah Cade sometime in May about Mr. McCoy's conduct. (Pl. Dep. at 131; Pl. Dec. at 18). It is unclear from the record when in May that conversation took place.
After speaking with Ms. Riegel and Ms. Cade, Plaintiff then spoke with the Chief Pilot, Bruce Gillen ("Gillen"), and reported her problems with Mr. McCoy. (Def. SUMF ¶ 26; Pl. Dec. at 24, 26). Plaintiff's chain of command began with her direct supervisors, Ms. Riegel and Ms. Cade and Bill Ward ("Ward"); then progressed to the Manager of Inflight Operations, Cory Cooper ("Cooper"); then to the Director of Inflight Operations, Brandee Reynolds ("Reynolds"); and finally to the Vice President of Inflight Operations, Eva Durham ("Durham"). (Def. SUMF ¶ 27). The Chief Pilot was not in her chain of command.
Defendant contends that over the course of her relatively short tenure with ASA, while still a probationary employee, Plaintiff exhibited substandard performance and was subsequently terminated for this reason. (Def.'s Br. at 1, 15)[Doc. 46]. Specifically, Defendant notes that in April 2004, ASA received a complaint from a passenger claiming that he had received poor and rude service on a flight worked by Plaintiff. (Def. SUMF ¶ 28). Plaintiff acknowledged that she attended to this passenger and that "he may have had an issue with me". (Pl. Dep. at 154-156). The following month, on May 20, 2004, Delta Air Lines (at that time ASA's parent company) received negative reports from Plaintiff's fellow team members concerning her attitude and rudeness to an agent and a flight attendant while flying as a "non-revenue" passenger. (Def. SUMF ¶ 29; see also Declaration of Brandee Reynolds ("Reynolds Dec.", Ex. 1 [Doc. 46]). On May 31, 2004, ASA received a write-up of Plaintiff from Mr. McCoy, alleging, among other things, that Plaintiff was attempting to influence the Crew Scheduling Department by providing them baked goods in exchange for favorable work schedules. (Def. SUMF ¶ 30; Reynolds Dec., Ex. 1). On June 9, 2004, Defendant also received write-ups from fellow team members stating that she had left several pre-boarding, special-needs passengers on the ramp in Texas on a hot summer day for 10-15 minutes, and complaining about her rudeness with them. (Def. SUMF ¶ 31; Reynolds Dec., Ex. 1). Finally, on June 15, 2004, Defendant states that Plaintiff failed to respond in a timely manner to a supervisor's telephone call, while on reserve duty, in violation of ASA Inflight policy. (Def. SUMF ¶ 32; Pl. Dec. at 29).
On June 16, 2004, Plaintiff's supervisors, Ms. Riegel, Ms. Cade, and Mr. Ward met with her to discuss her performance issues. (Def. SUMF ¶ 33). During this June 16, 2004, incident review meeting, Plaintiff's supervisors discussed the passenger's complaint and write-ups by her fellow team members with her. (Def. SUMF ¶ 34; Pl. Dec. at 31). Plaintiff's supervisors believed that she acted disrespectfully during these meetings by interrupting them and loudly raising her voice. (Def. SUMF ¶ 35). After this meeting, Defendant decided to terminate Plaintiff's employment because of the passenger complaint, her behavior as a non-revenue passenger, her treatment of co-workers, her treatment of the special-needs passengers, her failure to return a supervisor's call in a timely manner while on reserve, her conduct during the meeting with her supervisor, and her violation of her chain of command. (Def. SUMF ¶ 36). The decision to terminate Plaintiff's employment was made by Inflight Supervisors Ms. Riegel, Ms. Cade, and Mr. Ward, and Manager of Inflight Operations, Mr. Cooper. (Def. SUMF ¶ 37).
Plaintiff states that Anthony Krone was also in attendance. (Pl. Dec. at 31).
On June 17, 2004, Inflight Supervisors Ms. Riegel and Ms. Cade advised Plaintiff that she was terminated. (Def. SUMF ¶ 38). During that meeting, Plaintiff's supervisors read Plaintiff her termination letter and told her that she was being terminated because she had gone outside her chain of command by contacting the Chief Pilot, because she had received numerous write-ups, because she was rude to passengers, and because she had received a write-up from Mr. McCoy. (Def. SUMF ¶ 39; Pl. Dec. at 35-36). Plaintiff refused to sign the termination letter because she did not agree with the reasons presented in the letter for her termination. (Pl. Dep. at 205; Pl. Dec. at 36)
Plaintiff testified that Ms. Beth Matthews, one of Plaintiff's co-employees and roommate, was also in attendance. (Pl. Dep. at 202).
That same day, on June 17, 2004, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that she had been subject to constant sexual harassment and a hostile work environment by a management official, namely Mr. McCoy. (Pl. Dep. at 130, Dep. Ex. 8; Pl. Dec. at 34). Plaintiff also alleged in her EEOC Charge, that, in retaliation for making the May 31, 2004, complaint to her Inflight Supervisor, she received two write-ups and was discharged. (Pl. Dep. at 131-132; 208-211, Pl. Dep. Ex. 8).
Plaintiff testified that she filed the EEOC Charge on June 17, 2004, before attending her termination meeting on that same day. Plaintiff does not know whether Defendant was aware that she contacted the EEOC before the meeting. (Pl. Dep. at 209).
IV. Summary Judgment Standard
Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998). A factual dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The substantive law applicable to the case determines which facts are material. Anderson, 477 U.S. at 248.
The moving party bears the initial burden of showing the court "the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Four Parcels, 941 F.2d at 1437 (quotingCelotex Corp. v. Catrett, 477 U.S. at 323). If the moving party fails to discharge this initial burden, then the motion must be denied. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) (citing Clark v. Coats Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991)). Once this burden is met, however, the non-moving party must then "go beyond the pleadings and . . . designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324 (citing Fed.R.Civ.P. 56(e)).
V. Discussion
A. Plaintiff's Hostile Environment Sexual Harassment ClaimTitle VII makes it unlawful for an employer "to discriminate against any individual with respect to her compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). The prohibition is not limited to "economic" or "tangible" employment actions, but also "includes requiring people to work in a discriminatorily hostile or abusive environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); see also Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998). However, not all workplace conduct that may be viewed as "harassment" affects a term, condition, or privilege of employment within the meaning of Title VII." Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 67 (quotation marks and citations omitted). A hostile work environment is created only when "the workplace 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.'" Harris, 510 U.S. at 21 (quotingMeritor, 477 U.S. 57, 65 (1986)).
In order to establish a hostile environment claim under Title VII, a plaintiff must show that: (1) she is a member of a protected group; (2) she was subjected to unwelcome conduct; (3) the conduct was based upon sex; (4) the conduct was sufficiently severe or pervasive to alter the terms and conditions of her working environment; and (5) there is a basis for holding the employer liable. Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (citing Henson v. City of Dundee, 682 F.2d 897, 903-905 (11th Cir. 1982)). Here, Defendant does not suggest that Plaintiff was not a member of a protected group or that the alleged conduct was not unwelcome. (Def.'s Br. at 4)[Doc. 46]. Rather, Defendant argues that Plaintiff cannot meet her burden with respect to the other three elements of her claim. (Id.) In other words, Defendant contends that Plaintiff cannot demonstrate that Mr. McCoy's conduct was based upon Plaintiff's sex; that the alleged harassment was sufficiently severe or pervasive to alter the terms and conditions of her employment and create a discriminatorily abusive working environment; or that there is a basis for holding Defendant liable. (Id.).
As an initial matter, the Court rejects Defendant's contention that Mr. McCoy's alleged misconduct was not based upon sex. In order to establish this element of her case, Plaintiff must show that the conduct complained of was of a gender-related or sexual nature. Gupta v. Fl. Bd. of Regents, 212 F.3d 571, 583-84 (11th Cir. 2000); see also Spence v. Panasonic Copier Co., 46 F.Supp.2d 1340, 1350 (N.D. Ga. 1999). This requires Plaintiff to show only that "but for the fact of her sex, she would not have been the object of harassment." Mendoza, 195 F.3d at 1238 n. 5 (quotingHenson, 682 F.2d at 904); see also Weinsheimer v. Rockwell Int'l Corp., 754 F.Supp. 1559, 1564 (M.D. Fla. 1990), aff'd, 949 F.2d 1162 (11th Cir. 1991) (noting that conduct does not have to be "salacious" to constitute sexual harassment). At least some of the conduct here — Mr. McCoy's repeated requests to date Plaintiff, attempting to hold her hand, asking her to sit in his lap, climbing into the futon bed with her, and graphic comments to Mr. Krone in Plaintiff's presence about what he would do to her if he had sex with her — was of a sexual nature and would not have occurred but for the fact of Plaintiff's sex. Henson, 682 F.2d at 904; Gupta, 212 F.3d at 584-85. In fact, Plaintiff testified that "there was always a sexual undertone" attached to Mr. McCoy's actions. (Pl. Dep. at 112).
With respect to the fourth element of Plaintiff's sexual harassment claim — whether the conduct was sufficiently severe and pervasive to alter the terms or conditions of Plaintiff's employment and create an abusive working environment — Defendant argues that Plaintiff cannot establish this element of her claim because the purported harassment occurred while Plaintiff and Mr. McCoy were off-duty and outside the work place and, thus, did not alter the terms and conditions of her employment or create a discriminatorily abusive work environment. (Def.'s Br. at 6-9)[Doc. 46]. This Court agrees. "[T]he clear intent of Title VII is to combat discrimination in the workplace." Succar v. Dade County School Board, 60 F.Supp.2d 1309, 1314 n. 8 (S.D. Fla. 1999) (citation omitted). "As a general proposition, employers are not responsible under Title VII for hostile sexual acts resulting from nonwork-related, off-duty interactions between co-employees." P. v. Delta Air Lines, Inc., 102 F.Supp.2d 132, 138 (E.D.N.Y. 2000), vacated on other grounds by Ferris v. Delta Air Lines, Inc., 277 F.3d 128 (2d Cir. 2001); see also Succar, 60 F.Supp.2d at 1314 n. 8 ("[T]he Court finds that, to the extent Plaintiff is seeking relief for the harassing phone calls at home and for `stalking' behavior outside the workplace, summary judgment in favor of the employer is warranted"); Greer v. Marco Warehousing, Inc., 179 F.Supp.2d 1332, 1340 (M.D. Ala. 2001) (citing P. 102 F.Supp at 138). The fact that the harassment occurs outside the workplace environment, however, does not, by itself, necessarily insulate an employer from liability under Title VII. Dowd v. United Steel Workers of America, Local No. 286, 253 F.3d 1093, 1102 (8th Cir. 2001) (stating that "[t]he offensive conduct does not necessarily have to transpire at the workplace in order for a juror reasonably to conclude that it created a hostile working environment);Ferris, 277 F.3d at 135 (finding that under particular circumstances, hostile conduct occurring outside the workplace can be found to have occurred in a work environment within the meaning of Title VII); Dehotman v. New Hampshire Dep't of Corrections, No. Civ. 04-cv-114, 2005 WL 3801470 at * 5 (D.N.H. June 3, 2005) (stating that "courts have not drawn a bright line between harassment that occurs in the workplace and harassment that continues outside of the workplace for purposes of considering a Title VII claim) (citations omitted). Instead, "[w]hen the sexual acts occur outside the work place, the plaintiff must identify sufficient facts from which to infer a nexus between the hostile sexual conduct and the employment." P. 102 F.Supp.2d at 138; Ferris, 277 F.3d 135;Alvey v. Rayovac Corp., 922 F.Supp. 1315, 1330 (W.D. WI. 1996).
In this case, the alleged harassment could not be found to have occurred in the work environment within the meaning of Title VII. First, it is undisputed that virtually all of the complained-of conduct occurred while Plaintiff and Mr. McCoy were off-duty and off Defendant's work premises. Rather, the alleged harassing conduct occurred primarily in the apartment shared by Plaintiff and Mr. McCoy, at the mall, or at the movies. (Pl. Dep. at 95-97, 99, 103-104, 131). None of these facts establish the necessary nexus between the alleged hostile environment and Plaintiff's employment.
Literally speaking, the workplace would be the aircraft and the close environs around it, perhaps including certain other areas of the airport.
Plaintiff testified that one incident took place on an airplane. (Pl. Dep. at 92, 112, 135). While not entirely clear from the deposition testimony, it appears that Plaintiff and Mr. McCoy were off duty at that time. In her declaration, however, Plaintiff contends that this incident occurred while "on company time." (Pl. Dec. at 3-4).
In her declaration Plaintiff attempts to create a genuine issue of material fact by asserting that a number of the harassing incidents occurred while she was on reserve. (Pl. Dec. at 5-7, 11-12, 26-27, 42-43). Accepting Plaintiff's contention as true, as the Court must at this stage in the summary judgment process, the Court nevertheless finds that the fact that Plaintiff was on reserve does not alter the Court's determination that Plaintiff has not provided sufficient evidence to create the necessary nexus. While Plaintiff may have been paid for some of the time spent on reserve, there is no evidence to suggest that Plaintiff was not free to socialize with whomever she wanted while on reserve or to reside where she pleased, so long as she remained in close enough proximity to get to the airport within the allotted time. (Pl. Dec. at 5-6). Here, Plaintiff chose to share the apartment with Mr. McCoy and to go to the movies and to the mall with him and to socialize with him and with other co-employees. There is nothing in the record to suggest that the activities that led up to the harassment while Plaintiff was on reserve were in any way work-related or that the Court should be persuaded to expand the "work environment" to include her personal home and public places like a mall or movie theater. Anderson v. Adam's Mark Hotels and Resorts, No. 99-1100, 2000 WL 390107 at * 2 (10th Cir. April 18, 2000) (finding no liability where harassment occurred away from work where events leading up to assault were not work-related).
In her deposition, Plaintiff testified that she was on reserve on the occasion that she went to the movies and to the mall with Mr. McCoy. (Pl. Dep. at 96).
Second, it is further undisputed that Plaintiff voluntarily chose to share the Texas apartment with Mr. McCoy and others. (Pl. Dep. at 85-87, 90-91). The apartment was not on Defendant's premises and was not owned, operated, controlled, or selected by Defendant. (Id.). Nor did Defendant pay any portion of the rent for the apartment. (Pl. Dep. at 129). These latter facts distinguish Ferris, in which the court found a hostile work environment when the alleged assault occurred in a hotel room paid for by the airline flight crew to use during layovers.Ferris, 277 F.3d at 135 ("The circumstances that surround the lodging of an airlines's flight crew during a brief layover in a foreign country in a block of hotel rooms booked and paid for by the employer are very different from those that arise when stationary employees go home at the close of their normal workday"). Although Plaintiff testified that Defendant encouraged its employees to get an apartment with other flight personnel, Plaintiff conceded that sharing an apartment was not a requirement of her job. (Pl. Dep. at 89-90). Furthermore, Dallas/Fort Worth was Plaintiff's domicile, not a place for lodging during a layover, as inFerris.
Finally, Plaintiff testified that her job performance was not affected by Mr. McCoy's conduct. (Pl. Dep. at 136). She further testified that she and Mr. McCoy worked in different departments at ASA and never flew together and that Mr. McCoy was not her supervisor. (Pl. Dep. at 95, 128-29). Because Plaintiff and Mr. McCoy never worked or flew together and because as a co-worker, not a supervisor, he had no authority over any decisions related to her employment with ASA, the Court cannot conclude that the alleged harassment, although offensive and clearly upsetting to Plaintiff, altered a term or condition of her employment or created a discriminatorily abusive work environment under Title VII in this case. See Anderson, No. 99-1100, 2000 WL 390107 at * 2. Therefore, under the facts of this case, Plaintiff has failed to identify sufficient facts from which to infer a nexus between Mr. McCoy's conduct and her employment. Accordingly, since Plaintiff has failed to make out her prima facie case of sexual harassment, Defendant's motion for summary judgment on that claim should be GRANTED.
The Court also notes that about the time Plaintiff reported Mr. McCoy's harassment to her supervisor, Mr. McCoy had moved out and Plaintiff testified that they no longer had any contact with one another. (Pl. Dep. at 126-27).
Because the Court finds that Plaintiff failed to establish the fourth prong of her prima facie case, it will not address Defendant's argument that Plaintiff has also not established the fifth prong of her prima facie case — that there was a basis for holding Defendant liable.
B. Plaintiff's Retaliation Claim
Title VII makes it unlawful for an employer to discriminate against an employee "because [s]he has opposed any practice made an unlawful employment practice by this subchapter, or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). In order to establish a case of unlawful retaliation, a plaintiff may utilize either direct or circumstantial evidence. Holifield v. Reno, 115 F.3d 1555, 1561-1562 (11th Cir. 1997) (per curiam). In the instant case, Plaintiff has not produced direct evidence of retaliation. Therefore, Plaintiff's case relies upon circumstantial evidence and will proceed in accordance with the framework set forth inMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973).See Holifeld, 115 F.3d at 1562.
Under McDonnell Douglas, a plaintiff relying on circumstantial evidence must first establish a prima facie case. 411 U.S. at 802-804. If she is able to establish a prima facie case, an inference of retaliation arises, and the burden of production then shifts to the defendant to rebut this inference of by articulating a legitimate, non-retaliatory reason for its action. Id. The defendant's burden at this stage is "exceedingly light." Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1060-61 (11th Cir. 1994). If the defendant meets this burden, then the inference of retaliation is erased and the burden then shifts back to the plaintiff to demonstrate that the defendant's articulated reason for the adverse employment action is a mere pretext for retaliation. McDonnell Douglas, 411 U.S. at 802-804.
To prove a prima facie case of retaliation under Title VII, Plaintiff must show that: (1) she engaged in statutorily protected activity; (2) she suffered an adverse employment action; and (3) the protected activity was causally related to the protected activity. Gregory v. Georgia Dept. of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004). Defendant argues that Plaintiff cannot establish a prima facie case of retaliation because she did not engage in statutorily protected activity and because she cannot show that her termination was causally related to her complaint of harassment. (Def.'s Br. at 20)[Doc. 46]. Defendant further argues that, even if Plaintiff could establish a prima facie case of retaliation, her claim nonetheless fails because she has not presented evidence to rebut Defendant's legitimate nonretaliatory reasons for her termination. (Id.).
To establish that she engaged in a statutorily protected activity, Plaintiff must show that she "had a good faith, reasonable belief that [Defendant] was engaged in unlawful employment practices." Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311-12 (11th Cir. 2002) (citation omitted). Plaintiff must establish not only that she subjectively believed her employer was engaged in unlawful employment practices, but also that her belief was objectively reasonable in light of the facts. Id. To determine whether Plaintiff's belief was objectively reasonable, the court must consider the existing substantive law. Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999). The allegedly harassing conduct complained of by Plaintiff need not actually be sexual harassment, "but it must be close enough to support an objectively reasonable belief that it is." Id.;see also Little v. United Technologies, Carrier Transicold Division, 103 F.3d 956, 960 (11th Cir. 1997).
Here, Defendant argues that Plaintiff held neither subjective nor objective belief that Mr. McCoy's conduct violated Title VII, or that Defendant was engaged in unlawful employment practices. (Def.'s Br. at 17)[Doc. 46]. The crux of Defendant's argument is that Plaintiff could not have held a reasonable belief that Mr. McCoy's conduct violated Title VII because the harassment occurred off-duty and outside the work place and, therefore, could not be attributed to ASA and could not constitute actionable harassment. This Court does not agree.
As was stated above, while it is true that, "[a]s a general proposition, employers are not responsible under Title VII for hostile sexual acts resulting from nonwork-related, off-duty interactions between co-employees", the mere fact that the alleged harassment occurred outside the workplace does not, in and of itself, insulate the employer from liability. P., 102 F.Supp. at 138. The fact that Plaintiff was wrong in her assessment in this case that Mr. McCoy's conduct outside of work could constitute actionable harassment is not determinative of whether Plaintiff engaged in a statutorily protected conduct.Little, 103 F.3d at 960 ("A plaintiff . . . need not prove the underlying discriminatory conduct that [s]he opposed was actually unlawful in order to establish a prima facie case and overcome a motion for summary judgment . . ."). Instead, a court must look at the specific facts of the case to make that determination.Id. Although the Court has determined that Plaintiff has not provided sufficient evidence to maintain her sexual harassment claim, it cannot conclude that her belief in that regard was unreasonable. This is particularly true in light of the fact that Plaintiff provided evidence that she was repeatedly subjected to unwelcome sexual advances by Mr. McCoy, a co-employee, and that she complained of Mr. McCoy's conduct to her supervisors, presumably under the belief, albeit mistaken in this case, that, because Mr. McCoy was a co-employee, his conduct was relevant to her employment. Therefore, under the facts of this case, the Court concludes that conduct alleged by Plaintiff is sufficient to support a good faith belief that Mr. McCoy's conduct constituted actionable sex harassment and that Defendant was engaged in unlawful employment practices with regard to which Plaintiff complained.
In so far as the second prong of Plaintiff's prima facie case of retaliatory discharge in concerned, the Court concludes that Plaintiff has presented sufficient evidence to create a genuine issue of fact of a causal connection between Plaintiff's termination and her complaint. As stated above, Plaintiff complained about Mr. McCoy's conduct to Ms. Riegel, Plaintiff's supervisor, on May 31, 2004. On June 17, 2004, approximately two weeks after Plaintiff complained to Ms. Riegel, Defendant terminated Plaintiff's employment. Viewing the evidence in the light most favorable to Plaintiff, a jury could find that Plaintiff was terminated as a result of her complaint based on the close temporal proximity between the two events. Hurlbert v. St. Mary's Health Care System, Inc., 439 F.3d 1286, 1298 (11th Cir. 2006) ("Close temporal proximity between protected conduct and an adverse employment action is generally `sufficient circumstantial evidence to create a genuine issue of material fact of a causal connection.'") (citation omitted); see also See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 745 (11th Cir. 1996) ("Where termination closely follows protected activity, it is usually reasonable to infer that the activity was the cause of the adverse employment decision."). Therefore, there is sufficient evidence to support her prima facie case of retaliation and to shift the burden to Defendant to articulate a legitimate, non-retaliatory reason for terminating her. Shannon v. BellSouth Telecomms., Inc., 292 F.3d 712, 715 (11th Cir. 2002) (stating that if "a plaintiff makes out a prima facie case of retaliation, the burden shifts to the defendant to produce a legitimate reason for the adverse employment action").
Because Plaintiff has established a prima facie case of retaliation, an inference of discrimination arises, and the burden of production shifts to the Defendant to rebut this inference by articulating a legitimate, non-discriminatory reason for its actions. McDonnell Douglas Corp., 411 U.S. at 802-804. The Defendant's burden at this stage is "exceedingly light."Holifield, 115 F.3d at 1564. Here, the Court concludes that Defendant has articulated a legitimate nondiscriminatory reason for terminating Plaintiff — namely that she was terminated for substandard performance and for failing to comply with Defendant's policies. Specifically, Defendant shows that Plaintiff was terminated because of the passenger's complaint, her behavior as a non-revenue passenger, her treatment of co-workers, her treatment of the special-needs passengers, her failure to return a supervisor's call in a timely manner while on reserve, her conduct during the meeting with her supervisor, and her violation of her chain of command while reporting the alleged harassment with Mr. McCoy.
Because Defendant has articulated legitimate, non-discriminatory reasons for terminating Plaintiff, the inference of discrimination is erased and the burden of production shifts back to Plaintiff to demonstrate that Defendant's articulated reason for her termination is a mere pretext for discrimination. McDonnell Douglas Corp., 411 U.S. at 802-804; Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997). In determining whether there is evidence of pretext, "the district court must evaluate whether the plaintiff has demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence." Combs, 106 F.3d at 1538.
The Court concludes that Plaintiff has not put forth sufficient evidence to demonstrate that Defendant's articulated reasons are pretext for discrimination or are unworthy of belief. First, the Court notes that the April 2004 passenger's complaint and the May 20, 2004, complaint about Plaintiff's job performance and conduct occurred before Plaintiff complained to Ms. Riegel about Mr. McCoy's conduct. (Pl. Dep., Ex. 9; Pl. Dep. at 154-156; Reynolds Dec., Ex. 1). Second, with the exception of the complaint by Mr. McMcoy, all of the complaints were made by either a passenger or other airline personnel with no connection to the underlying claims against Mr. McCoy. Finally, Plaintiff, who was still a probationary employee at all times material to this lawsuit, does not deny that Defendant received certain of the complaints about her job performance. Instead, Plaintiff appears to dispute that the content of the complaints were justified. (see e.g., Pl. Dep. at 152-58, 180-87). Whether or not the complaints were, in fact, justified is not a matter for this Court to decide. E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176 (11th Cir. 2000) (finding that "in making business decisions (including personnel decisions), the employer can lawfully act on a level of certainty that might not be enough in a court of law."). Consequently, in the absence of any evidence giving rise to an issue of fact as to pretext, the Court RECOMMENDS that Defendant's motion for summary judgment with respect to Plaintiff's retaliation claim be GRANTED.
While not entirely clear, Plaintiff appears to contend that the fact that Defendant did not present these complaints and write-ups to Plaintiff until after she complained to Ms. Riegel about Mr. McCoy's conduct is evidence of unlawful retaliation and is suspect. (Pl. Dec. at 29, 43). When questioned about the timing, however, Ms. Riegel testified that it takes time for a complaint or a write-up to work its way through the system because they are initially reviewed by "Delta mainline" who then determines whether the complaints pertain to a Delta or an ASA crew member; at which point the complaint and/or write-up will be sent to the appropriate entity. (Riegel Dep. at 40, 42). Based on this evidence, the Court concludes that Plaintiff has not "demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence." Leadbetter v. Goodyear Tire and Rubber Co., Inc., 421 F.3d 1169, 1185 (11th Cir. 2005) (internal citation and quotations omitted).
VI. Conclusion
Accordingly, for the reasons expressed herein, the Court RECOMMENDS that Defendant's motion for summary judgment [Doc. 46] be GRANTED. The Clerk is DIRECTED to terminate the referral of this case to the undersigned magistrate judge.It is SO REPORTED, AND RECOMMENDED.