123 F.3d 868 (6th Cir. 1997), 96-3084, Blankenship v. Parke Care Centers, Inc.

Docket Nº:96-3084.
Citation:123 F.3d 868
Party Name:Leanna C. BLANKENSHIP, Plaintiff-Appellant, Amy E. Helton, formerly known as Amy E. Marshall, Plaintiff, v. PARKE CARE CENTERS, INC., doing business as Barbara Parke Convalescent Center, Defendant-Appellee, Walter Malcom, Defendant, Westchester Management Company, Defendant-Appellee.
Case Date:August 22, 1997
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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123 F.3d 868 (6th Cir. 1997)

Leanna C. BLANKENSHIP, Plaintiff-Appellant,

Amy E. Helton, formerly known as Amy E. Marshall, Plaintiff,

v.

PARKE CARE CENTERS, INC., doing business as Barbara Parke

Convalescent Center, Defendant-Appellee,

Walter Malcom, Defendant,

Westchester Management Company, Defendant-Appellee.

No. 96-3084.

United States Court of Appeals, Sixth Circuit

August 22, 1997

Argued Dec. 5, 1996.

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[Copyrighted Material Omitted]

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Katharine C. Weber (argued and briefed), Curtis L. Cornett (briefed), Cors & Bassett, Cincinnati, OH, for Plaintiffs-Appellants.

Mark J. Stepaniak (argued and briefed), Gregory P. Rogers (briefed), Taft, Stettinius & Hollister, Cincinnati, OH, for Defendants-Appellees.

Before: ENGEL, MERRITT, and RYAN, Circuit Judges.

ENGEL, J., delivered the opinion of the court. MERRITT (p. 875), and RYAN (pp. 875-77), JJ., delivered separate concurring opinions.

OPINION

ENGEL, Circuit Judge.

Plaintiff Leanna Blankenship appeals the district court's grant of summary judgment to defendants Parke Care Centers, Inc., and Westchester Management Company (collectively "Parke") in her suit based on claims of sexual harassment, assault and battery, and intentional infliction of emotional distress. Blankenship alleged that the conduct of a fellow Parke employee created a hostile work environment. The district court held that regardless of the severity of that employee's conduct, Blankenship failed to establish the element of "respondeat superior" necessary to hold Parke liable. We affirm.

I.

Blankenship, then 17, was employed as a dietary aide at one of Parke's nursing homes as part of a work-study program through her high school. She started work on September 13, 1993, six weeks after Parke hired Walter Malcom, 37, as a janitor for the same nursing home. Parke knew that Malcom had a history of substance abuse and that he had once been convicted of carrying a concealed weapon. Soon after Blankenship started working, she experienced several unwanted sexual advances by Malcom. On October 3, she complained to her immediate supervisor, Jacquelyn Sullivan. At Sullivan's request, Blankenship prepared a written statement on October 4 that noted, in five separate incidents, a total of four kisses on the cheek, a tickle, three hugs, and a declaration by Malcom that he was "falling in love."

In response, Sullivan asked all the members of the dietary department if they had witnessed any of this behavior; they all said no. She met with Judith Fadden, the director of nursing, and Mamie Lee, Malcom's immediate supervisor. This group formulated an "observation network" designed to separate Malcom and Blankenship and to keep

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an eye out for trouble: Malcom's work area was moved to minimize his interaction with Blankenship. Lee was instructed to check on Malcom's whereabouts and behavior every so often and Sullivan was to keep Blankenship as close to the kitchen as possible, so that she would not be alone. As a result of Blankenship's complaint, Sullivan also began to walk her to her car after work. She also asked Blankenship at the end of every day if she had had any problems with Malcom. None of the administrators confronted Malcom in any way.

Within a week or so, Blankenship suffered a further incident in which Malcom grabbed her breasts from behind. She mentioned this to Sullivan, who said she would see what could be done. 1 Then, apparently at a separate time, Malcom asked Blankenship if he could take her out; she declined.

On October 17, when she returned to work after a few days off, Blankenship filed another written complaint with Sullivan, in which she mentioned only that Malcom had asked her out--not the breast-grabbing incident. On the same day, Sullivan received a complaint from another dietary aide, Amy Marshall. Marshall complained of lewd touching, gestures, and language on the part of Malcom. Responding to these complaints, Alice Kalota, the chief administrator of the nursing home, along with Fadden and Lee, met with Malcom, who denied any wrongdoing. The administrators issued him the following warning on October 18:

We have had two written complaint[s] against you for harassment by females. This is your one & only warning. Harassment of any kind by an employee to another employee absolutely will not be tolerated. Any further occurr[e]nce will result in your immediate termination.

(J.A. at 406.)

On October 22, Blankenship became upset at work because Malcom "kept coming around" her. She spoke with Sullivan, who gave her permission to leave early. Blankenship's mother came to pick her up and unsuccessfully tried to discuss the situation with Kalota. Kalota ended up meeting with Blankenship, Fadden, and Sullivan. Blankenship said that no specific incident had occurred since Malcom asked to take her out but that he was "around" her and she did not want to be near him. Kalota told Blankenship that she could not guarantee that Blankenship could work without ever coming into contact with Malcom. If she could not accept that, Kalota said, Blankenship would have to resign. Blankenship chose to resign, and she went home for good.

Blankenship sued Parke on federal and state claims of sexual harassment based on a hostile work environment, and on state claims of assault and battery and intentional infliction of emotional distress; she did not sue for wrongful termination or constructive discharge. The district court granted Parke's motion for summary judgment, holding that even if Blankenship could prove the substantive elements of a hostile work environment claim, she could not establish Parke's liability under the respondeat superior doctrine. The district court found no evidence to support the purely state law claims. Blankenship does not contest that finding; she appeals the court's holding only as to sexual harassment.

II.

We review the district court's grant of summary judgment de novo. Kauffman v. Allied Signal, Inc., 970 F.2d 178, 182 (6th Cir.1992). Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying Rule 56(c), we view the evidence in the light most favorable to the nonmoving party and determine "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

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v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986).

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex...." 42 U.S.C. § 2000e-2(a)(1). Courts have recognized two types of workplace sexual harassment as constituting discrimination on the basis of sex: quid pro quo harassment, in which a supervisor requests sexual favors in exchange for job benefits, and "hostile work environment" harassment, in which a pervasive atmosphere of sexual harassment creates an objectively hostile work environment. Rabidue v. Osceola Refining Co., 805 F.2d 611, 618-19 (6th Cir.1986). 2 Blankenship has alleged the hostile work environment strain of sexual harassment. Hostile work environment cases distinguish between harassment by supervisors and harassment by co-workers. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 803-04 (6th Cir.1994). Because Malcom had no supervisory power over Blankenship, we will apply the law of co-worker harassment.

To prevail on her claim against Parke, Blankenship must show that (1) she is a member of a protected class; (2) she was subject to unwelcomed sexual harassment; (3) the harassment was based on her sex; (4) the harassment unreasonably interfered with her work performance and created a hostile work environment; and (5) Parke "knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action." Fleenor v. Hewitt Soap Co., 81 F.3d 48, 50 (6th Cir.) (quoting Rabidue, 805 F.2d at 621), cert. denied, --- U.S.----, 117 S.Ct. 170, 136 L.Ed.2d 112 (1996).

Although the district court strongly suggested that Blankenship's claim might fail on the fourth element, it rested its grant of summary judgment on the fifth element (hereinafter "the Rabidue standard"), which it labeled as "respondeat superior liability." We used to describe an employer's liability in this situation as arising under the respondeat superior doctrine, but now we have noted the inaccuracy of that characterization. Pierce, 40 F.3d at 804 n. 11. In co-worker harassment cases, the employer is liable, if at all, directly, not derivatively. Id.; see also Fleenor, 81 F.3d at 50.

The Rabidue standard has two distinct parts. We need not concern ourselves with whether Parke "knew or should have known" of the alleged harassment. It is undisputed that Parke knew about Blankenship's complaints, with the possible exception of the breast-grabbing incident. We instead focus on whether Parke "failed to implement prompt and appropriate corrective action." The promptness of Parke's various responses to Blankenship's complaints was evident; the dispute centers on their appropriateness.

We find little guidance in Rabidue as to what standard we should use to measure the appropriateness of the corrective action, other than a directive to proceed on a case-by-case basis. 805 F.2d at 621. The origin of the phrase "appropriate corrective action" is an EEOC regulation that does not describe what sort of action is appropriate. 29 C.F.R. § 1604.11(d). Rabidue also relied on decisions from several other circuits. One of...

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