McD Sexual Harassment - Law - Case Study, Study Guides, Projects, Research of Law

Download McD Sexual Harassment - Law - Case Study and more Study Guides, Projects, Research Law in PDF only on Docsity! BRANDON HOSEY, Plaintiff-Appellant, v. MCDONALD'S CORPORATION, Defendant-Appellee. No. 96-1891 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 1997 U.S. App. LEXIS 10713 May 1, 1997, Submitted May 12, 1997, Decided NOTICE: [*1] RULES OF THE FOURTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT. SUBSEQUENT HISTORY: Counsel Amended June 3, 1997. Reported in Table Case Format at: 113 F.3d 1232; 1997 U.S. App. LEXIS 17126. PRIOR HISTORY: Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (CA-95-196-AW). DISPOSITION: AFFIRMED. COUNSEL: Joseph M. Sellers, Avis L. Sanders, WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS, Washington, D.C.; Richard Semsker, Solamon G. Lippman, LIPPMAN & ASSOCIATES, Washington, D.C. for Appellant. Bruce S. Harrison, Eric Hemmendinger, SHAWE & ROSENTHAL, Baltimore, Maryland, for Appellee. Richard Semsker, Solaman G. Lippman, LIPPMAN & ASSOCIATES, Washington, D.C., for Appellee. JUDGES: Before WIDENER and MURNAGHAN, Circuit Judges, and PHILLIPS, Senior Circuit Judge. OPINION: PER CURIAM: Brandon Hosey appeals from the district court's order granting summary judgment to his former employer on his Title VII action alleging sexual harassment, disparate treatment, and constructive discharge. 42 U.S.C. § 2000e (1994). Hosey began working for McDonald's in February 1993 as a part-time "crew person." Hosey worked approximately twelve hours per week and his duties included cooking french fries, washing dishes, and sweeping floors. Laria Cornell was Hosey's "crew trainer" and, as such, was responsible for training [*2] new employees. Although she was promoted to "floor supervisor" in November 1993, Cornell had no direct supervisory authority over Hosey. Hosey alleged in his complaint that, beginning in November 1993, Cornell made unwanted sexual advances toward him--asking him out on numerous occasions, touching him in a sexually offensive manner, and making explicit sexual comments to him. After the first touching incident, Hosey spoke with the "certified swing manager" Katedra Taylor whose response was "Why don't you just date her?" Approximately two weeks later, Hosey approached the assistant manager, Terry Richards, and told her that "[Cornell] was asking me out and stuff," to which Richards replied, "I know." According to Hosey, Richards did nothing. Hosey resigned on March 31, 1994, citing Cornell's behavior toward him. This court reviews the district court's granting of summary judgment de novo. Farwell v. Un, 902 F.2d 282, 287 (4th Cir. 1990). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party [*3] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). We construe all facts and draw all reasonable inferences in the favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). With this standard in mind, we find that the district court properly granted summary judgment in favor of McDonald's. To prove a hostile work environment claim under Title VII, a plaintiff must show that the conduct in question was unwelcome, that the harassment was based on sex, that the harassment was sufficiently severe or pervasive to create an abusive working environment, and that some basis exists for imputing liability to the employer. Paroline v. Unisys Corp., 879 F.2d 100, 105 (4th Cir. 1989); Swentek v. USAIR, Inc., 830 F.2d 552, 557 (4th Cir. 1987). For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). We agree with the district court's conclusion that the facts as alleged by Hosey were not sufficiently severe or pervasive to create an abusive working environment. In any event, Hosey [*4] has failed to establish a basis for imputing liability to McDonald's. An employer is liable for an employee's sexual harassment of another worker if the employer had actual or constructive knowledge of the existence of a sexually hostile working environment and took no prompt and adequate remedial action. Paroline, 879 F.2d at 106. Hosey's statement to the assistant manager that Cornell was "asking me out and stuff" was insufficient to impute liability to McDonald's. Nor did Hosey's statement to Taylor impute liability to McDonald's because Taylor had no direct supervisory authority. Moreover, the incidents complained of by Hosey were not so pervasive or obvious as to give McDonald's constructive knowledge of the alleged harassment. In order to establish that he was constructively discharged, Hosey must show that McDonald's "deliberately" made his working conditions "intolerable," thus forcing him to quit his job. See Amirmokri v. Baltimore Gas and Elect. Co., 60 F.3d 1126, 1132 (4th Cir. 1995); Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1350 (4th Cir. 1995). Hosey has failed to make such a showing. Finally, Hosey's disparate treatment claim fails because he could [*5] not show that McDonald's treated sexual harassment complaints by women more seriously than those by men. See Carter v. Ball, 33 F.3d 450, 456 n.7 (4th Cir. 1994). For the foregoing reasons, we affirm the district court's order granting summary judgment in favor of McDonald's. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED MAHJABIN KIDWAI, Plaintiff-Appellant, v. MCDONALD'S CORPORATION; BILL LOWERY; PAUL VAN SICKLE; LONNIE TAYLOR; CHRIS SEARLES; KEN EVENSON, Defendants-Appellees, and DAVID NATLYSON; JIM ROHLS, Defendants. No. 93-1720 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 1994 U.S. App. LEXIS 7799 February 9, 1994, Argued April 18, 1994, Decided NOTICE: [*1] RULES OF THE FOURTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT. SUBSEQUENT HISTORY: Reported in Table Case Format at: 21 F.3d 423, 1994 U.S. App. LEXIS 15878. PRIOR HISTORY: Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CA-93-28-A). DISPOSITION: AFFIRMED. COUNSEL: Argued: Maxine Bethel Cade, CADE & VAUGH-CARRINGTON, Washington, D.C., for Appellant. Jack L. Gould, Fairfax, Virginia, for Appellees. individual's race, color, religion, sex, or national [*8] origin." 42 U.S.C. § 2000e-2(a)(1). Title VII is violated "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 [to] create an abusive working environment." Harris v. Forklift Sys., Inc., 126 L. Ed. 2d 295, 114 S. Ct. 367, 370 (1993) (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 67, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986)) (citations and internal brackets and quotation marks omitted). n2 Conduct that is "merely offensive" cannot violate Title VII. "Mere utterance of an . . . epithet which engenders offensive feelings in an employee" . . . does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's purview. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Sexual misconduct directly linked to the grant or denial of an economic quid pro quo also violates Title VII. See Meritor, 477 U.S. at 65. Kidwai, however, has alleged "hostile work environment" harassment, but not quid pro quo harassment. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*9] Harris, 114 S. Ct. at 370 (quoting Meritor, 477 U.S. at 67). Writing for a unanimous Court in Harris, Justice O'Connor went on to provide a nonexhaustive list of factors to consider when determining whether a work environment is hostile or abusive: Whether an environment is "hostile" or"abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; [its effect on the employee's psychological wellbeing;] whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. 114 S. Ct. at 371. Although Justice Ruth Bader Ginsburg, in her first opinion as an Associate Justice, urged her colleagues to focus the lower courts' inquiries "on whether the discriminatory conduct has unreasonably interfered with the plaintiff's work performance," Harris, 114 S. Ct. at 372 (Ginsburg, J., concurring), the Court has refused to privilege that factor over all others. See [*10] Harris, 114 S. Ct. at 371 (stating that any "relevant factor . . . may be taken into account, [but] no single factor is required"); id. at 372 (Scalia, J., concurring) (finding "no basis" in the statutory language for making unreasonable interference with the plaintiff's work performance "an absolute test"). B Most of Evenson's allegedly discriminatory conduct -- noticing Kidwai's new boyfriend, telephoning her at home, wanting her to meet his mother, discussing vacation and leisure activities, asking her if she would cook dinner at her new home, driving rapidly while acting like a boor, and using profanity on at least one occasion -- simply lacks the severity necessary to make out a Title VII sexual harassment claim. Even in combination, Evenson's alleged acts cannot be said to have altered the conditions of Kidwai's employment or to have created an objectively abusive work environment. See Harris, 114 S. Ct. at 370. As the district judge noted at the summary judgment hearing, Kidwai's most disturbing allegation was that Evenson asked her, during [*11] a late evening phone call, whether she was in bed with someone. Taken in isolation, the allegation cannot rise to the requisite level of pervasiveness under Harris and Meritor . Even when all of Evenson's allegedly harassing conduct is viewed in its totality and in the light most favorable to the nonmoving party, we have concluded that, while Evenson's conduct may have offended Kidwai, and may even have been ungraceful to a "reasonable person," it was not severe or pervasive enough to create a work environment that a reasonable person would find hostile or abusive. Thus, defendants' conduct is beyond Title VII's purview. See Harris, 114 S. Ct. at 370. III Kidwai also has claimed that McDonald's violated Title VII when it took two actions against her in retaliation for her complaining about Evenson's alleged harassment. See 42 U.S.C. § 2000e-3(a). First, McDonald's placed her on administrative leave with pay while it investigated charges brought against her by five managers from the six stores that she supervised. Second, McDonald's suspended her for two weeks without pay for impeding [*12] that investigation by going ahead and contacting at least two of those managers despite repeatedly being told not to do so. Of course, Kidwai's failure to make out a successful sexual harassment claim has not necessarily prevented her from prevailing on a claim of retaliation based on her harassment complaints. See Ross v. Communications Satellite Corp., 759 F.2d 355, 357 n.1 (4th Cir. 1985) ("An underlying discrimination charge need not be meritorious for a plaintiff to prevail on a claim of retaliation for opposition to the perceived discrimination."). The allocation of the burdens of production and the order for the presentation of proof in Title VII retaliation cases are similar to those used in Title VII discriminatory-treatment cases. First, the plaintiff must establish, by a preponderance of the evidence, a prima facie case of retaliatory discrimination by proving that (1) she engaged in protected activity; (2) her employer took adverse employment action against her; and (3) a causal connection existed between the protected activity and the adverse action. See McNairn v. Sullivan, 929 F.2d 974, 980 (4th Cir. 1991); [*13] Ross, 759 F.2d at 365; see also Lawrence v. Mars, Inc., 955 F.2d 902, 906 (4th Cir. 1992). Establishment of the prima facie case would create a presumption that the employer unlawfully discriminated against the employee. Second, that presumption places upon the defendant the burden of producing admissible evidence that the adverse employment action was taken for a legitimate, nondiscriminatory reason which, if believed by the trier of fact, would support a finding that unlawful discrimination did not cause the adverse employment action. If the defendant does not carry that burden of production, the court would have to enter judgment for the plaintiff. If the defendant does carry the burden, the presumption raised by the prima facie case is rebutted and drops from the case. Third and finally, the plaintiff would bear the ultimate burden of persuading the trier of fact that the defendant- employer intentionally retaliated against her because she engaged in a protected activity. See McNairn, 929 F.2d at 980; Ross, 759 F.2d at 365-66; see also St. Mary's Honor Ctr. v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2746-50 (1993). [*14] Assuming (without deciding) that Kidwai has established a prima facie case, she cannot show that her complaints of sexual harassment triggered either of the actions taken by McDonald's. On the record below, it is uncontested that both of McDonald's actions -- placing Kidwai on paid administrative leave while it investigated charges against her, and later suspending her for two weeks without pay because she had impeded the investigation -- were reasonable acts for conducting an appropriate investigation. McDonald's has produced admissible evidence of a legitimate, nondiscriminatory reason for placing Kidwai on paid administrative leave: it sought to investigate charges brought against her by several store managers working under her supervision. Kidwai has produced no evidence in response, and therefore she cannot meet her ultimate burden of proving that her complaints of sexual harassment triggered McDonald's decision to place her on administrative leave. McDonald's also produced admissible evidence that it suspended Kidwai for two weeks without pay because she had attempted to subvert the investigation by telephoning two of her subordinates while McDonald's was still conducting [*15] the inquiry, notwithstanding the fact that three upper-level McDonald's employees had explicitly instructed her at the outset not to attempt such contacts. Again, Kidwai has failed to produce any evidence in response, and therefore she cannot prove that her complaints of sexual harassment triggered the suspension. Hence, we affirm the district court's grant of summary judgment on the retaliation issue. IV Accordingly, the district court's judgment is AFFIRMED.