Equal Employment Opportunity Comm'n v. R&R

Decision Date23 January 2001
Docket NumberNo. 00-1702,00-1702
Citation244 F.3d 334
Parties(4th Cir. 2001) EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. R&R; VENTURES, d/b/a Taco Bell, Defendant-Appellee. Argued:
CourtU.S. Court of Appeals — Fourth Circuit

Appeal from the United States District Court for the District of Maryland, at Baltimore. Frederic N. Smalkin, District Judge.

(CA-99-877-S)

[Copyrighted Material Omitted] COUNSEL: ARGUED: Julie Loraine Gantz, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. Paul Joseph Weber, HYATT, PETERS & WEBER, L.L.P., Annapolis, Maryland, for Appellee. ON BRIEF: C. Gregory Stewart, General Counsel, Philip B. Sklover, Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. Christopher D. Buck, BUCK, MIGDAL & MEYERS, CHARTERED, Annapolis, Maryland, for Appellee.

Before WILKINSON, Chief Judge, and WILKINS and KING, Circuit Judges.

Reversed and remanded by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Wilkins and Judge King joined.

OPINION

WILKINSON, Chief Judge:

The Equal Employment Opportunity Commission (EEOC) brought this suit against R&R Ventures, owner of the Severna Park, Maryland Taco Bell. The EEOC alleges that Edwin Wheeler, a former manager of the restaurant, sexually harassed various female employees. The district court held that Wheeler's conduct was not severe enough to create a triable issue of sexual harassment. We reverse.

I.

Edwin Wheeler used to manage the Severna Park Taco Bell for R&R Ventures. Shelby Scott and Brandyn Potter worked as entrylevel employees under Wheeler. R&R claims that Wheeler was a difficult manager who abused male and female employees alike. The EEOC claims, however, that Wheeler singled out his female subordinates for especially cruel treatment and that this constituted sexual harassment. For purposes of summary judgment, we shall address the facts in the light most favorable to the EEOC as the non-prevailing party.

Shelby Scott was one of Wheeler's victims. She was only fifteen when she started work at the Severna Park Taco Bell. Scott claims that Wheeler made sexual jokes on a daily basis and that he frequently discussed sexual positions and experiences. When Scott bent over, Wheeler told her she was giving him a "cheap thrill." He commented regularly about the size of her buttocks and breasts. He repeatedly asked Scott if she liked to be spanked. He also frequently said that women were stupid as compared to men. Wheeler made these comments every time he worked with Scott, often in front of other employees. Because of Wheeler's comments, Scott suffered an eating disorder and lost a significant amount of weight in an effort to avoid attracting attention to her body.

Although Scott repeatedly asked Wheeler to stop making sexual comments, he persisted. He did so even though Scott became visibly upset. Ultimately, Scott buckled under the pressure and resigned in June of 1996. When she resumed working at Taco Bell in August of 1996, Wheeler began harassing her again. Scott complained about Wheeler's conduct to three other managers at her store, none of whom took any action. This prompted Scott's mother to lodge several complaints with Mike Lee, then R&R's Area Manager. Lee did not return any of her calls. Another R&R employee, however, investigated the claims by interviewing five or six female employees who worked for Wheeler. Neither Scott nor Wheeler were interviewed as a part of this investigation and no disciplinary action resulted.

On October 27, 1996, after Scott and her mother had complained to Lee, Scott arrived early to work. Wheeler screamed at Scott, reducing her to tears, because of her early arrival. As Scott was leaving, one of the other managers told her to take the rest of the day off. When she did, Wheeler suspended her for two weeks. Scott was never returned to the work schedule. Scott filed a charge of discrimination with the EEOC on February 10, 1997. On February 18, the EEOC served notice of the charge on R&R ventures.

About the same time Scott filed her charge with the EEOC, Brandyn Potter began working at the store. Potter was twenty when she started working with Wheeler. Wheeler flirted with Potter and repeatedly made sexual comments in her presence. For example, Wheeler inquired about the size of Potter's pants and complained to her about how long it had been since he had engaged in sex. Wheeler also belittled Potter in front of others, telling her she was stupid. Wheeler behaved this way every time the two worked together. Potter cried every morning at the thought of having to work with Wheeler and frequently left in tears on account of his verbal assaults.

As did Scott, Potter complained to Wheeler and asked him to stop. She also complained to another manager, Tammy Hartley, who told Potter that she was overreacting. When she decided to complain to R&R's higher management, none of the managers would give her Mike Lee's phone number. After two weeks, however, Potter obtained the number and called Lee to complain.

Lee responded by offering to move Potter to the Crofton Taco Bell while he worked out the details of transferring Wheeler. Since the Crofton assignment could not take place immediately, Lee told Potter to take a week off so she would not have to work with Wheeler. During her week off, however, Hartley called Potter and told her she would be fired if she did not come to work. When Potter arrived at the store, Wheeler confronted her. He screamed at Potter, saying that she "had no [expletive deleted] right to go to my boss and complain" and that she was a bitch. Potter left immediately and did not return until Wheeler had been transferred. When she returned, however, R&R management reduced her hours so much that she quit and found another job.

On March 30, 1999, the EEOC filed this suit. The complaint alleged that R&R was liable for a hostile working environment. The complaint also alleged that R&R retaliated against Scott and Potter for objecting to Wheeler's behavior. After discovery, the district court granted R&R's motion for summary judgment. It ruled that the alleged misconduct was not sufficiently severe or pervasive to create a hostile work environment. According to the district court, this case was "about a crude supervisor who made the life of his subordinates miserable," but whose conduct failed to rise to the level of a Title VII violation. The district court also held that there was insufficient evidence to establish a prima facie case of retaliation. The EEOC now appeals.

II.

Title VII prohibits employers from, inter alia , discriminating against an employee based on sex with respect to the terms, conditions, or privileges of employment. 42 U.S.C. S 2000e-2(a)(1). Since an employee's work environment is a term or condition of employment, Title VII creates a hostile working environment cause of action. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 73 (1986). In order to succeed on a claim of hostile workplace harassment, the EEOC must prove the following: (1) the harassment was because of sex; (2) the harassment was unwelcome; (3) the harassment was sufficiently severe or pervasive to create an abusive working environment; and (4) some basis exists for imputing liability to the employer. Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 772 (4th Cir. 1997). Since the EEOC seeks here to reverse a grant of summary judgment, it must establish a material dispute of fact with respect to each of the four requirements.*

A.

R&R first claims that Wheeler's harassment of his female employees was not because of sex. Rather, R&R claims that Wheeler was an "equal-opportunity" harasser who abused men and women alike. However, the allegations contained in the depositions of Scott and Potter, if proven at trial, would rebut this argument fully. While Wheeler may sometimes have been abusive toward male employees, the allegations indicate that Wheeler directed his sexually pointed comments exclusively to the young women who worked for him. For example, Pedro McKee, a male who worked under Wheeler, testified that only female employees complained about Wheeler's inappropriate sexual comments. Further, Wheeler's repeated close examination of female employees' bodies, his inquiries about pant size, and his repeated references to the size of Scott's buttocks and breasts demonstrates that Wheeler behaved differently towards his female employees. Thus, the evidence indicates Wheeler did more than engage in generally abusive, though non-actionable, behavior. His curiosity and derision were reserved for the young women whom he supervised.

B.

The second element of a hostile workplace claim is whether the harassment was unwelcome. R&R does not and cannot claim that Wheeler's behavior was welcome.

C.

The third element focuses on whether the harassment was sufficiently severe or pervasive to create an abusive working environment. As the Supreme Court has explained, "not all workplace conduct that may be described as `harassment' affects a `term, condition, or privilege' of employment within the meaning of Title VII." Meritor, 477 U.S. at 67. Boorish behavior may exist apart from any propensity to discriminate. Title VII, however, "affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult." Id. at 65.

In order to clear the high threshold of actionable harm, the conduct in question must (1) be "severe or pervasive enough to create an objectively hostile or abusive work environment," and (2) be subjectively perceived by the victim to be abusive. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). In conducting the objective inquiry, courts should examine "all the circumstances," including (1) the frequency of the discriminatory conduct; (2) its...

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