Opinion
8:98CV374
February 2000.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant's motion for summary judgment (filing 34). After carefully considering the pleadings, briefs Werner's motion was filed on November 30, 1999, and a copy of the motion and the brief in support thereof were mailed to Ms. Walker on that date. Under this Court's local procedural rules, "[a]n opposing brief may be delivered and served no later than twenty days after service of the motion and supporting brief." NELR 56.1(b). When a party is permitted or required to do something within a prescribed period after service of a document upon that party, and the document is served by mail, three days are added to the prescribed period. Fed.R.Civ.P. 6(e). This is known colloquially as the "mailbox rule." As a result, Ms. Walker had until December 23, 1999, to submit her opposition brief to the Court. The "received" stamp on her brief indicates it was delivered to the Clerk's Office on December 23, and it therefore is timely., evidence, and case law, the Court finds that the motion should be granted.
I. BACKGROUND
In her complaint, Ms. Walker alleges a number of violations of Title VII of the Civil Rights Act of 1964 as amended ( 42 U.S.C. § 2000e,et seq.), 42 U.S.C. § 1981, and the Nebraska Fair Employment Practice Act (Neb. Rev. Stat. § 48-1101, et seq.) by her former employer, Werner Enterprises. Specifically, she claims she was subjected to sexual harassment and discrimination, a hostile working environment, and retaliation for complaining about her treatment.
Werner Enterprises is a large truckload carrier of general commodities, headquartered in Omaha, Nebraska. The company employs more than 7,000 drivers and 1,300 office support personnel nationwide. In September 1996, Ms. Walker was hired as a receptionist in the company's executive suite. She worked for the company slightly less than three months, and claims she was constructively discharged because of the sexual harassment and hostile working environment created by her supervisor and other employees.
Ms. Walker's immediate supervisor was executive assistant Donna Ingram. Ms. Walker, Ms. Ingram, and other employees socialized once or twice a week after work, and discussed their personal lives during these outings. At some point during the first four to six weeks of her employment at the company, Ms. Walker confided to Ms. Ingram that she had worked as an exotic dancer in clubs in the Omaha area before joining Werner. Thereafter, Ms. Ingram asked Ms. Walker on three consecutive days in late October, 1996, if she would dance at a male co-worker's birthday party. Ms. Walker declined. Upon Ms. Walker's refusal to perform at the party, Ms. Ingram allegedly commented that if certain Werner executives were to learn about Ms. Walker's past as an exotic dancer, it could have an adverse effect on her employment with Werner.
Soon after Ms. Walker denied her request to perform, Ms. Ingram informed the company's human resources director of Ms. Walker's prior employment as a dancer, ostensibly to alert him to potential problems with male employees perhaps recognizing Ms. Walker from her club performances. Ms. Walker believes Ms. Ingram told other employees as well of Ms. Walker's exotic dancing, despite Ms. Walker's request that the information be held in confidence.
One day after work in early November, Ms. Walker, Ms. Ingram, and several other Werner employees visited the Pheasant Run tavern in Millard. Ms. Walker admits that she overindulged and became intoxicated. She saw, at the tavern, a former patron of her dance performances, and recalls greeting him with a hug. She does not remember if she told others in her group about her work as a dancer or how she knew this gentleman. Over the course of the evening, one of the male employees in the group allegedly attempted to kiss her twice, but she rebuffed his advances.
On the afternoon of November 11, this male employee sent Ms. Walker an e-mail message which reportedly informed her that his birthday was approaching and inquired as to what she planned to do for him. The message allegedly contained lewd suggestions of potential celebratory activities. The sender telephoned Ms. Walker three times that afternoon to ask if she had read his message and to learn her response. The company has a record of those calls, and used that information when confronting the employee after Ms. Walker complained about the e-mail message. See Def.'s Evid. in Supp. of Mot. for Summ. J., Dep. of Laura Walker, Ex. N, Att. E (filing 36).
Werner Enterprises has a policy prohibiting sexual harassment which is contained in the handbook given to all employees upon hiring:
Sexual Harassment
Complaint Procedure
With respect to sexual harassment, Werner Enterprises prohibits:
1) Unwelcome sexual advances; requests for sexual favors; and all other verbal or physical conduct of a sexual or otherwise offensive nature, especially where:
• Submission to such conduct is made, either explicitly or implicitly, a term or condition of employment;
• Submission to or rejection of such conduct is used as the basis for decisions affecting an individual's employment; or
• Such conduct has the purpose or effect of creating an intimidating, hostile, or offensive working environment.
2) Offensive comments, jokes, innuendoes, posters, calendars, photos, computer screens, or other sexually-oriented statements.
Each member of management is responsible for creating an atmosphere free of discrimination and harassment, sexual or otherwise. Furthermore, employees are responsible for respecting the rights of their co-workers.
If you experience any job-related harassment based on your sex, or another factor, or believe you have been treated in an unlawful, discriminatory manner, promptly report the incident to your supervisor, who will report the incident to the Director of Human Resources. An investigation will be conducted under the direction of the Director of Human Resources and appropriate action will be taken. If you believe it would be inappropriate to discuss the matter with your supervisor, report it directly to the Human Resources Department, which will undertake an investigation. Your complaint will be kept confidential to the maximum extent possible.
If the Company determines that an employee has been harassing another employee, appropriate disciplinary action will be taken against the offending employee.
Werner Enterprises prohibits any form of retaliation against any employee for filing a bona fide complaint under this policy or for assisting in a complaint investigation. However, if, after investigating any complaint of harassment or unlawful discrimination, it is determined that an employee has provided false information regarding the complaint, disciplinary action may be taken against the individual who provided the false information.
Walker Dep., Ex. G, at 20.
On November 18, the male employee admitted having sent an improper message to Ms. Walker. He was warned in writing to immediately cease all contact with Ms. Walker, as the company would not tolerate harassing conduct. He abided by that directive for the rest of Ms. Walker's tenure with Werner, and Ms. Walker agrees that the company's handling of the matter was appropriate.
Ms. Walker also alleges that in addition to the three requests to dance for a birthday party, Ms. Ingram made other harassing comments alluding to her past as a dancer. One was an unsolicited statement along the lines of "[w]ith your talent and my connections, we could make a lot of money." Walker Dep. 99:8-100:3. Another was in response to Ms. Walker's expression of interest in a marketing position with the company, to which Ms. Ingram replied, "You need a degree for that. You can't just flirt with the customers, sleep with them, and expect them to use us as their carrier." Walker Dep. 93:21-94:11. These comments, combined with Ms. Walker's belief that Ms. Ingram told other employees about the exotic dancing and her perception that other employees gossiped about her and went out of their way to "check her out" after learning of her past, created what Ms. Walker characterizes as a hostile work environment.
She complained to a supervisor on November 13, 1996, about all of these instances of alleged sexual harassment. As noted above, the company resolved the e-mail matter first, and then turned its attention to the allegations regarding Ms. Ingram. The human resources director met with Ms. Ingram on November 18 to discuss Ms. Walker's claims. Ms. Walker, aware that the company was conducting its investigation into her complaint that day, took the day off. In the meeting about Ms. Walker's allegations, Ms. Ingram concurred with Ms. Walker's assessment that she was a demanding supervisor, in part because Ms. Walker had been with the company only two months and was still learning the job. However, she denied having told other employees about Ms. Walker's dancing. She indicated that her sole reason for having earlier informed the human resources director of Ms. Walker's previous employment as a dancer was to avert problems that might arise as a result of male employees paying undue attention to Ms. Walker. She further stated that Ms. Walker herself had spoken openly of her past and the fact that she recognized certain Werner employees from her days as a dancer. Walker Dep., Ex. N, Att. F.
The following day, Ms. Ingram, the human resources director, and the supervisor to whom Ms. Walker had initially submitted her harassment complaint met with Ms. Walker and her husband. The company officials agreed that Ms. Ingram and Ms. Walker should return to their respective jobs and put this issue behind them. Ms. Walker took the rest of the day off. At either this meeting or a subsequent one, Ms. Walker expressed her opinion that Ms. Ingram should receive the same punishment for her actions that the male employee received for sending the inappropriate e-mail. She suggested, in the alternative, that Ms. Ingram be required to attend training in either management or sexual harassment. The company dismissed her suggestions and indicated that it considered the matter resolved.
However, on November 21, the human resources director again met with Ms. Walker and offered her the opportunity to transfer within the company to a job that would perhaps be more acceptable to her. Ms. Walker reviewed various job postings, but did not express interest in any of them. She stated that she enjoyed all aspects of her receptionist position except for working for Ms. Ingram.
The next incident occurred on December 2, 1996. Ms. Walker's son had suffered an asthma attack the previous night, and she made a medical appointment for him that afternoon. She was told that she could leave work early to take him to that appointment only if she could arrange for someone to cover her duties at the front desk in her absence. Ms. Walker was unable to find a substitute, and became upset. She telephoned her husband, who took the position that her family should come before her work, and advised her to quit her job if Ms. Ingram refused to permit her to take time off for the doctor's appointment.
Ms. Walker then returned her office keys to Ms. Ingram and announced her intention to end her employment with the company at that time. Ms. Ingram immediately arranged a meeting for the two of them with the human resources director, who suggested that Ms. Ingram be flexible, if possible, about permitting Ms. Walker to attend to her family's needs, but also suggested that Ms. Walker think about her priorities and whether she was in fact able to work an 8:00 to 5:00 job. Ms. Ingram then allowed Ms. Walker to leave work for the medical appointment, with the understanding that Ms. Walker would consider whether she wanted to continue her employment with the company and advise them of her decision the following day. On December 3, however, Ms. Walker did not return to work and did not call, so she was deemed to have resigned effective December 2, 1996.
She filed a charge of sex discrimination, retaliation, and constructive discharge with federal and state officials in February 1997. The Nebraska Equal Opportunity Commission found insufficient evidence to support her allegations, and the U.S. Equal Employment Opportunity Commission issued a right-to-sue letter on April 30, 1998. Ms. Walker filed this lawsuit on July 29, 1998. Her attorney subsequently withdrew from the case, so Ms. Walker has proceeded pro se since May 1999. Werner Enterprises has moved for summary judgment on the grounds that Ms. Walker cannot establish a prima facie hostile working environment or retaliation claim, and that even if she could, the company took prompt remedial action upon becoming aware of her complaint.
II. SUMMARY JUDGMENT STANDARD
The question before the district court is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Morgan v. Rabun, 128 F.3d 694, 696 (8th Cir. 1997), cert. denied, 523 U.S. 1124 (1998); Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992); St. Paul Fire Marine Ins. Co. v. FDIC, 968 F.2d 695, 699 (8th Cir. 1992).
Summary judgment is an extreme and treacherous device, which should not be granted unless the moving party has established a right to a judgment with such clarity as to leave no room for controversy, and unless the other party is not entitled to recover under any discernible circumstances. Vette Co. v. Aetna Cas. Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980). In ruling on a motion for summary judgment, the district court must view the facts in the light most favorable to the party opposing the motion and give that party the benefit of all reasonable inferences to be drawn from the record. Id.; Widoe v. District No. 111 Otoe County Sch., 147 F.3d 726, 728 (8th Cir. 1998); Ghane v. West, 148 F.3d 979, 981 (8th Cir. 1998). Even if the district court is convinced that the moving party is entitled to judgment, the exercise of sound judicial discretion may dictate that the motion should be denied, so the case may be fully developed at trial. McLain v. Meier, 612 F.2d 349, 356 (8th Cir. 1979); Franklin v. Lockhart, 769 F.2d 509, 510 (8th Cir. 1985).
Essentially, the test is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-52. Moreover, although under Federal Rule of Civil Procedure 56 due deference must be given to the rights of litigants to have their claims adjudicated by the appropriate finder of fact, equal deference must be given under Rule 56 to the rights of those defending against such claims to have a just, speedy and inexpensive determination of the action where the claims have no factual basis. Celotex Corp. v. Catrett, 477 U.S. at 327.
The court's role is simply to determine whether the evidence in the case presents a sufficient dispute to place before the jury.
At the summary judgment stage, the court should not weigh the evidence, make credibility determinations, or attempt to determine the truth of the matter. Rather, the court's function is to determine whether a dispute about a material fact is genuine. . . . If reasonable minds could differ as to the import of the evidence, summary judgment is inappropriate.
Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir. 1996) (internal citations omitted). See also Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir. 1999) (court's function is not to weigh the evidence to determine truth of any factual issue).
A genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, meaning a reasonable jury could return a verdict for either party. RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995).
The Eighth Circuit Court of Appeals has repeatedly cautioned that summary judgment should seldom be granted in the context of employment actions, as such actions are inherently fact-based.Chock v. Northwest Airlines, Inc., 113 F.3d 861, 862 (8th Cir. 1997); Hardin v. Hussmann Corp., 45 F.3d 262, 264 (8th Cir. 1995). "Summary judgments should be sparingly used and then only in those rare instances where there is no dispute of fact and where there exists only one conclusion." Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir. 1991) (citing Hillebrand v. M-Tron Indus., Inc., 827 F.2d 363, 364 (8th Cir. 1987), cert.denied, 488 U.S. 1004 (1989)). "Because discrimination cases often turn on inferences rather than on direct evidence, [the court must be] particularly deferential to the nonmovant." Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1205 (8th Cir. 1997) (citingCrawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994)). Such deference, however, will not preclude the entry of summary judgment when the facts of the case warrant it.
To withstand a motion for summary judgment, the nonmoving party must submit "sufficient evidence supporting a material factual dispute that would require resolution by a trier of fact."Austin v. Minnesota Mining Mfg. Co., 193 F.3d 992, 994 (8th Cir. 1999) (quoting Hase v. Missouri Div. of Employment Sec., 972 F.2d 893, 895 (8th Cir. 1992), cert. denied, 508 U.S. 906 (1993)). Put another way, the plaintiff must substantiate her allegations with sufficient probative evidence to permit a finding in her favor "on more than mere speculation, conjecture, or fantasy." Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir. 1994) (quotingGregory v. City of Rogers, Ark., 974 F.2d 1006, 1010 (8th Cir. 1992), cert. denied, 507 U.S. 913 (1993)).
III. ANALYSIS Hostile work environment
Title VII of the Civil Rights Act of 1964 provides that "[i]t shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his 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 United States Supreme Court has made clear that the statute covers more than "'terms' and 'conditions' in the narrow contractual sense." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998). Harassing conduct that is so severe or pervasive as to alter the conditions of an individual's employment and create an abusive working environment violates Title VII. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).
In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court shed further light on the scope of hostile work environment claims. In so doing, the Court provided a synopsis of the evolution of its decision-making process on such claims:
In thus holding that environmental claims are covered by [Title VII], we drew upon earlier cases recognizing liability for discriminatory harassment based on race and national origin . . ., just as we have also followed the lead of such cases in attempting to define the severity of the offensive conditions necessary to constitute actionable sex discrimination under the statute. See, e.g., Rogers [v. EEOC, 454 F.2d 234] at 238 [(5th Cir. 1971), cert. denied, 406 U.S. 957 (1972)] ("[M]ere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee" would not sufficiently alter terms and conditions of employment to violate Title VII). See also Daniels v. Essex Group, Inc., 937 F.2d 1264, 1271-1272 (C.A.7 1991); Davis v. Monsanto Chemical Co., 858 F.2d 345, 349 (C.A.6 1988), cert. denied, 490 U.S. 1110, 109 S.Ct. 3166, 104 L.Ed.2d 1028 (1989); Snell v. Suffolk County, 782 F.2d 1094, 1103 (C.A.2 1986); 1 B. Lindemann P. Grossman, Employment Discrimination Law 349, and nn. 36-37 (3d ed. 1996) (hereinafter Lindemann Grossman) (citing cases instructing that "[d]iscourtesy or rudeness should not be confused with racial harassment" and that "a lack of racial sensitivity does not, alone, amount to actionable harassment").Faragher, 524 U.S. at 786-87.
Similarly, Courts of Appeals in sexual harassment cases have properly drawn on standards developed in cases involving racial harassment. See, e.g., Carrero v. New York City Housing Auth., 890 F.2d 569, 577 (C.A.2 1989) (citing Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1189 (C.A.2 1987), a case of racial harassment, for the proposition that incidents of environmental sexual harassment "must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive"). Although racial and sexual harassment will often take different forms, and standards may not be entirely interchangeable, we think there is good sense in seeking generally to harmonize the standards of what amounts to actionable harassment.
This reflects the Court's perception that Title VII is intended to prohibit only the most egregious conduct rather than every offensive slight. Title VII is not "a general civility code," id. at 788, and is not meant to make actionable "the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing." Id. (quoting B. Lindemann D. Kadue, Sexual Harassment in Employment Law 175 (1992)). Rather, courts must look at all the circumstances, keeping in mind that "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Id. (internal citation omitted). Title VII was not designed to create a federal remedy for all offensive language and conduct in the workplace. Scusa v. Nestle U.S.A. Co., Inc., 181 F.3d 958, 967 (8th Cir. 1999). The conduct must be extreme in order to amount to a change in the terms and conditions of one's employment. Faragher, 524 U.S. at 788.
To state a claim of a sexually hostile work environment, the plaintiff must establish five elements: (1) membership in a protected group; (2) the occurrence of unwelcome harassment in the workplace; (3) a causal nexus between the harassment and membership in the protected group, in other words that the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take prompt and effective remedial action. Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir. 1999); Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103, 1106 (8th Cir. 1998).
In this case, there is no dispute that Ms. Walker is a member of a protected class, so the focus turns to the remaining elements of a prima facie case. Behavior that constitutes harassment is unwelcome if it is "uninvited and offensive." Bales, 143 F.3d at 1108 (citing Quick v. Donaldson Co., 90 F.3d at 1378). Here, Ms. Walker contends that Ms. Ingram's behavior and comments were uninvited and offensive. Werner, on the other hand, argues that Ms. Walker's past as a dancer belies her "welcomeness" argument, as demonstrated by her willingness to dance on stage in a bikini for tips and endure suggestive comments and propositions from male customers. While the Supreme Court has held that "a complainant's sexually provocative speech or dress" is relevant to determining whether he or she found particular conduct unwelcome, Meritor Sav. Bank, 477 U.S. at 69, such evidence is simply part of the totality of the circumstances to be considered. See Burns v. McGregor Elec. Ind., Inc., 955 F.2d 559, 565 (8th Cir. 1992). An exotic dance club is a far cry from a professional office environment, and Ms. Walker's assertion Walker Dep. 162:10-19 (filing 36). that she expected to be treated professionally at Werner and comported herself accordingly is also to be considered. For purposes of this motion, I find that Ms. Walker has established this element of the claim.
Whether the harassment was motivated by her gender is the next question to be addressed. Harassment alleged to be because of sex need not be explicitly sexual in nature. Carter v. Chrysler Corp., 173 F.3d at 701. Neither must all instances of harassment be stamped with signs of overt discrimination in order to be relevant under Title VII, as long as they are part of a course of conduct which is tied to evidence of discriminatory animus. Id. The critical issue is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. Oncale v. Sundowner Offshore Servs., 523 U.S. at 80 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993)). As the Supreme Court pointed out in Oncale:
[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace.523 U.S. at 80.
In the present case, no one is alleging that Ms. Ingram's conduct was motivated by sexual desire. Nevertheless, there is no evidence that Ms. Ingram treated any of the male employees as cavalierly as she treated Ms. Walker. Rather, it appears that Ms. Ingram's comments and behavior were motivated by her knowledge of Ms. Walker's previous employment and the assumptions she made about Ms. Walker because of that employment. For purposes of this motion, I find that Ms. Walker has established the third element of her prima facie case.
The fourth element is where Ms. Walker's claim must fail. To survive the challenge to her claim, Ms. Walker must demonstrate that the alleged harassment was so severe or pervasive that it altered a term, condition, or privilege of her employment at Werner Enterprises. Scusa, 181 F.3d at 966. The legal analysis of the severity of the harassment has two prongs, requiring the plaintiff to demonstrate both an objectively hostile environment and a subjective perception of an abusive or hostile environment.Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349, 354 (8th Cir. 1997). "The conduct complained of must have been 'severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive —' if the plaintiff is to succeed." Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. at 21). An "objectively hostile or abusive work environment" occurs "[w]hen 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." White v. Honeywell, Inc., 141 F.3d 1270, 1275 (8th Cir. 1998) (quoting Harris at 21). Also, the employee must subjectively perceive the environment as abusive or the conduct complained of "cannot be said to have 'actually altered the conditions of the victim's employment, and there is no Title VII violation.'" Delph, 130 F.3d at 354 (quoting Harris at 21-22).
Whether a hostile environment existed can be determined only by looking at all the circumstances, which "include 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." White, 141 F.3d at 1275 (quotingHarris at 23). Thus, "[e]vidence of a hostile environment must not be compartmentalized, but must instead be based on the totality of circumstances of the entire hostile work environment."Delph, 130 F.3d at 355 (quoting Gillming v. Simmons Indus., 91 F.3d 1168, 1172 (8th Cir. 1996)). "A work environment is shaped by the accumulation of abusive conduct, and the resulting harm cannot be measured by carving it 'into a series of discrete incidents.'"Hathaway v. Runyon, 132 F.3d 1214, 1222 (8th Cir. 1997) (quotingBurns v. McGregor Elec. Indus., Inc., 955 F.2d at 564). "Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing . . . and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive." Oncale, 523 U.S. at 82.
These standards, when properly applied, serve to "filter out complaints attacking 'the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.'" Faragher, 524 U.S. at 788. "We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment[.]" Id.
"Evidence of a general work atmosphere — as well as evidence of specific hostility directed toward the plaintiff — is an important factor in evaluating the claim [of a hostile work environment]." White, 141 F.3d at 1276 (quoting Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir. 1987)). In the present case, there are essentially four instances of allegedly sexually hostile occurrences during the three months Plaintiff was employed with the company, and most of those appear to have occurred in the late October-early November 1996 time frame. Although Ms. Walker concedes the e-mail incident was satisfactorily dealt with, it nevertheless is evidence of the general atmosphere in the workplace. Ms. Walker specifically complains about the three comments or groups of comments made by Ms. Ingram regarding: (1) dancing at a co-worker's birthday party; (2) not being qualified for the marketing position; and (3) using Ms. Walker's dancing talent and Ms. Ingram's contacts to make money. She alleges that these actions, combined with the tension she sensed in the workplace after her history as a dancer became known, rendered her working conditions so intolerable that she had no choice but to quit her job. Klein v. McGowan, 198 F.3d 705, 709 (8th Cir. 1999).
While Ms. Ingram admits to being a tough supervisor, and while her comments, even if intended to be jokes, were in bad taste, they do not, however, rise to the level of the severe and pervasive harassment prohibited by Title VII. As noted above, this Court is not to weigh the evidence or make credibility determinations. Those responsibilities are left to the jury. The Court is, however, expected to make a considered decision as to whether the plaintiff has established a genuine issue of fact entitling her to a trial of her claims.
When Ms. Walker's allegations are studied in light of the case law on hostile environment claims, it becomes clear that Werner is entitled to summary judgment. An issue of fact as to an isolated comment or instance of hostility does not constitute a hostile working environment. Even when combined with the other episodes of alleged sexually motivated hostility, the totality of the circumstances does not lend itself to the conclusion that the Werner Enterprises executive suite is an intolerable place to work. "Even if a plaintiff demonstrates discriminatory harassment, Title VII only reaches such conduct if it is severe or pervasive enough to alter the conditions of employment." Carter v. Chrysler Corp., 173 F.3d at 701. Sporadic or casual comments or acts are unlikely to support a hostile environment claim. Id. at 702. "More than a few isolated incidents of harassment must have occurred" before Title VII's sanctions will be triggered. Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir. 1981).
As the Eighth Circuit Court of Appeals noted recently in finding that a plaintiff who demonstrated three instances of alleged racial harassment had failed to establish the existence of a hostile working environment:
[O]ur cases upholding hostile work environment liability have invariably presented far more hostile or abusive circumstances. See, e.g., Bailey v. Runyon, 167 F.3d 466, 470 (8th Cir. 1999) (repeated unwelcome sexual advances); Hathaway v. Runyon, 132 F.3d 1214, 1222 (8th Cir. 1997) (physical sexual overtures followed by eight months of intimidating snickers); Delph, 130 F.3d at 352 (intimidation plus "a steady barrage of racial name-calling"); Ways v. City of Lincoln, 871 F.2d 750, 755 (8th Cir. 1989) (evidence included fifty examples of racial harassment); Hall v. Gus Constr. Co., 842 F.2d 1010, 1012 (8th Cir. 1988) (incessant verbal abuse and offensive physical touching); Gilbert v. City of Little Rock, 722 F.2d 1390, 1394 (8th Cir. 1983) ("more than a few isolated incidents of harassment must have occurred"), cert. denied, 466 U.S. 972, 104 S.Ct. 2347, 80 L.Ed.2d 820 (1984). [The supervisor's] alleged behavior in December 1990 and January 1991, though undeniably offensive and rude, was not so severe that a reasonable person would find the terms or conditions of [Plaintiff's] work environment had been altered.Gipson v. KAS Snacktime Co., 171 F.3d 574, 579-80 (8th Cir. 1999).
This decision is not meant to minimize the effects of the conduct to which Ms. Walker was subjected. She has described the anxiety and stress she experienced as a result of the events at the office, but those allegations simply do not rise to the level of the type of severe and pervasive harassment that a reasonable person would find so abusive and hostile that it actually alters the conditions of her employment.
The final element to be considered on the hostile working environment claim is the remedial action, if any, taken by the employer. In light of my decision on the merits of the motion, I will not reach this issue. However, from the analysis of the remedial action element of the prima facie case, it appears that the same evidence would favor the affirmative defense. Again, the evidence does not support this part of the prima facie case. The evidence establishes that Ms. Walker complained in writing to a supervisor on November 13, 1996, about the e-mail incident and Ms. Ingram's comments, as well as her betrayal of Ms. Walker's confidence regarding the exotic dancing job and her general demeaning attitude toward Ms. Walker. The supervisor reported those incidents to the human resources director, pursuant to the policy stated in Werner's employee handbook. As discussed in Section I above, the company resolved the matter of the lewd e-mail message to Ms. Walker's satisfaction by reprimanding the sender. The human resources director then spoke to Ms. Ingram, five days after the complaint was submitted, about Ms. Walker's allegations. She denied most of the accusations. Without corroboration of the alleged statements, the company was faced with the word of one employee against another. The human resources director spoke to both women and encouraged them to make an effort to develop a better working relationship. Two days later, the human resources director suggested that Ms. Walker consider transferring to other available positions within the company if she felt she could not work with Ms. Ingram. Ms. Walker reviewed some job openings, but declined to pursue them because she liked the position she had and believed she could tolerate Ms. Ingram's supervision. The company considered the matter resolved at that point and took no further action on her complaint.
It seems apparent that there can be no serious dispute that the company's actions on Ms. Walker's complaint were prompt, and remedial to the extent reasonably possible. Werner investigated and acted upon the allegations within eight days of them being made. Everyone agrees that the e-mail matter was handled satisfactorily. The company then attempted to place Ms. Walker in a job of her choice which would remove her from contact with Ms. Ingram, but Ms. Walker refused to transfer.
An employer has many options for exercising its remedial obligations, including: taking disciplinary action to stop the harassment; transferring the alleged harasser to a different area where he or she would not come in contact with the complainant; scheduling the individuals involved on different shifts; putting a signed written warning or reprimand in personnel files; or placing the offending employee on probation pending any further complaints. Hathaway v. Runyon, 132 F.3d 1214, 1224 (8th Cir. 1997). The law does not require an employer to fire the alleged harasser. Id.; Barrett v. Omaha Nat'l Bank, 726 F.2d 424, 427 (8th Cir. 1984). Placing a disciplinary letter in the alleged harasser's file is a prompt remedial action, "reasonably calculated to end the harassment." Id.
Henderson v. Heartland Press, Inc., 65 F. Supp.2d 991, 1000 (N.D.Iowa 1999).
Despite Ms. Walker's feelings of having been wronged, the company is under no legal obligation to give her the satisfaction she seeks. The real issue here appears to be Ms. Walker's desire to punish Ms. Ingram for her behavior and comments. As noted in the cases cited in the previous paragraph, the victim of alleged sexual harassment is not in a position to dictate the employer's personnel decisions. Werner's resolution of the harassment complaint submitted by Ms. Walker, through counseling Ms. Ingram and offering to transfer Ms. Walker, appears to have been prompt and adequate, which is all that it is required. Ms. Walker has submitted no evidence to the contrary, so she has not met the fifth element of the prima facie case.
In this vein, Ms. Walker has not established that she was constructively discharged. A constructive discharge occurs when an employer deliberately renders an employee's working conditions intolerable, thereby causing her to end her employment. The employer's actions must have been intended to force the employee to quit; in other words, the employee's resignation must be a reasonably foreseeable consequence of the employer's discriminatory actions. Phillips v. Taco Bell Corp., 156 F.3d 884, 890 (8th Cir. 1998). Moreover, the intolerability of the working conditions is judged by an objective standard, requiring the plaintiff to demonstrate that a reasonable person would have been unable to tolerate the working conditions. Id. (citing Allen v. Bridgestone/Firestone, Inc., 81 F.3d 793, 796 (8th Cir. 1996)). Finally, the employee "has an obligation not to assume the worst and not to jump to conclusions too quickly. An employee who quits without giving [her] employer a reasonable chance to work out a problem has not been constructively discharged." Id. (quotingSummit v. S-B Power Tool, 121 F.3d 416, 421 (8th Cir. 1997)).
Nothing in the evidence would support the charge that working conditions in the Werner executive suite were intolerable. As discussed above, these were isolated incidents that were quickly addressed by management. Moreover, the working conditions are to be viewed from the perspective of a reasonable person. Ms. Walker, however, admits she is sensitive and tends to "take everything personally." Walker Dep. 81:8-11; 115:24-116:4. Hypersensitivity to difficult working conditions is not the same as intolerable working conditions, and will not validate a claim of constructive discharge.
Retaliation
Title VII also prohibits an employer from retaliating against an employee because that individual "has opposed any practice made an unlawful employment practice by this subchapter, or because 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). The analytical framework ofMcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is applied to retaliation claims under Title VII. First, the plaintiff must establish a prima facie case of retaliation. The defendant then must rebut the prima facie case by demonstrating that it had a legitimate, non-discriminatory reason for its actions. Finally, the plaintiff is entitled to show that the employer's articulated reason is actually a pretext for discrimination.
To establish a prima facie case of retaliation, the plaintiff must show that (1) she filed a charge of harassment or engaged in other protected activity; (2) her employer subsequently took an adverse employment action against her; and (3) the adverse action was causally linked to the protected activity. Scusa, 181 F.3d at 968. In the present case, Ms. Walker alleges that after she complained to Werner's human resources department about the sexual harassment she was experiencing, the company failed to pay her for two hours of overtime, someone tampered with her computer in the course of attempting to retrieve the lewd e-mail message, Ms. Ingram refused to give her information necessary to perform her job, and one of the executives ignored her when she reminded him of an appointment and he asked another receptionist at the front desk to place a telephone call for him.
Ms. Walker's adherence to the complaint procedure set out in Werner's employee handbook constitutes protected activity, so she has met the first prong of the test. However, she is unable to demonstrate that she suffered an adverse employment action. "The employment action must have had a materially adverse impact on the terms or conditions of employment." Sims v. Health Midwest Physician Serv. Corp., 196 F.3d 915, 921 (8th Cir. 1999). There is little in the record to support Ms. Walker's allegations in this regard. If these four instances of alleged retaliatory conduct are true, they may constitute inconvenience, or a minor disruption in her job conditions, but they do not rise to the level of an adverse employment action because Ms. Walker suffered no decrease in her title, salary, or benefits. See Scusa, 181 F.3d at 968-69. As discussed above, Ms. Walker's resignation was by choice rather than by force, so it is not a materially adverse employment action. Moreover, the Eighth Circuit Court of Appeals has held that ostracism and disrespect by supervisors does not rise to the level of the adverse employment action intended to be actionable under Title VII. Manning v. Metropolitan Life Ins. Co., Inc., 127 F.3d 686, 692 (8th Cir. 1997). "Although actions short of termination may constitute an adverse employment action within the meaning of the statute, 'not everything that makes an employee unhappy is an actionable adverse action.'" Id. (quoting Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997)).
Because Ms. Walker's retaliation claim falters at this step of the analysis, I need not consider the remaining elements of the prima facie case, or the issue of pretext.
CONCLUSION
As the plaintiff is unable to demonstrate a genuine dispute as to any material fact that would require submission to a jury, the defendant's motion for summary judgment will be granted on each of her claims.
IT IS ORDERED:
Defendant's motion for summary judgment (filing 34) is granted; and
Separate judgment will be entered.