259 F.3d 261 (4th Cir. 2001), 00-1650, Matvia v. Bald Head Island Management

Docket Nº:00-1650
Citation:259 F.3d 261
Party Name:CHRISTINA MATVIA, Plaintiff-Appellant, v. BALD HEAD ISLAND MANAGEMENT, INCORPORATED, Defendant-Appellee, and RICHARD TERBUSH, Defendant.
Case Date:July 31, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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259 F.3d 261 (4th Cir. 2001)

CHRISTINA MATVIA, Plaintiff-Appellant,

v.

BALD HEAD ISLAND MANAGEMENT, INCORPORATED, Defendant-Appellee,

and

RICHARD TERBUSH, Defendant.

No. 00-1650

United States Court of Appeals, Fourth Circuit

July 31, 2001

Argued: May 10, 2001

Amended August 8, 2001

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (CA-98-147-7-F)

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COUNSEL ARGUED: John Edward Stember, Pittsburgh, Pennsylvania, for Appellant. Kathleen DeLacy Head Pawlowski, Wilmington, North Carolina, for Appellee. ON BRIEF: M. Travis Payne, EDELSTEIN & PAYNE, Raleigh, North Carolina, for Appellant.

Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.

Affirmed by published opinion. Judge Traxler wrote the opinion, in which Judge Luttig and Judge Motz joined.

OPINION

TRAXLER, Circuit Judge:

Christina Matvia appeals from the grant of summary judgment in favor of Bald Head Island Management ("BHIM") on her claims of sexual harassment, retaliation, and constructive discharge. We affirm.

I.

On June 16, 1997, BHIM hired Matvia as a housekeeper. One month later, BHIM transferred Matvia to the position of Maintenance Worker I in the Contractor Service Village ("CSV"). Her supervisor at the CSV was Richard Terbush. Beginning in September 1997, Matvia became the recipient of unwanted attentions from Terbush:

* Terbush approached Matvia, said he needed a hug, and proceeded to hug her;

* Terbush told Matvia, who had just dyed her hair brown, that he would have to fantasize about a brunette rather than a blond;

* Terbush informed Matvia that he no longer had sexual relations with his wife;

* Terbush placed a pornographic picture on Matvia's desk;

* Terbush told Matvia she looked good enough to eat;

* Terbush frequently placed his arm around Matvia when they were riding in a golf cart and massaged her shoulder;

* Terbush repeatedly told Matvia that he loved her and had a crush on her;

* Terbush, on December 10, 1997, told Matvia that he had a dream that she sued him for sexual harassment and warned her that if she did bring suit she would be in big trouble; and

* Terbush, five days after recounting his dream, pulled Matvia close to him in the golf cart, tried to kiss her, and struggled with Matvia until she was able to escape.

Matvia became physically ill after the attempted kiss and went home early. The next day Terbush told BHIM officials what had happened in the cart and was suspended pending an investigation. Matvia participated in the investigation and also pressed criminal charges against Terbush. On December 31, BHIM fired Terbush for sexually harassing Matvia.

While the harassment was ongoing, BHIM had in place a policy against sexual harassment. The policy is printed in the employee handbook which Matvia signed for at her orientation. The policy defines sexual harassment as "unwelcome or unwanted conduct of a sexual nature, whether verbal or physical." J.A. 565. Examples of sexual harassment are given, and employees are encouraged to report improper

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behavior to their supervisor, the personnel department, or the chief operating officer.

According to Matvia, after Terbush's termination co-workers and managers at BHIM altered their behavior towards her. Co-workers would move away if she sat near them on BHIM's buses or ferries; the bus drivers, who were often at the CSV, would stop talking among themselves when Matvia entered the room; the bus drivers traduced Matvia while on their routes; and members of management stopped saying "hello" to Matvia while waiting for the ferry.

Co-worker behavior aside, two other incidents caused Matvia stress after Terbush's termination. First, she applied for Terbush's supervisory position, was interviewed, but did not receive the job. Second, Matvia was disciplined for claiming an hour on her time sheet which she had not worked. The resulting stress caused Matvia to break out in a rash, and on February 26, 1998, Matvia took six weeks of medical leave but never returned to the job. In August 1998, Matvia filed suit against BHIM and Terbush, alleging a hostile work environment, intentional infliction of emotional distress, assault and battery, retaliation, and constructive discharge. The district court dismissed the assault and battery claim and later entered an order dismissing Terbush from the suit. The court then granted summary judgment in favor of BHIM on the remaining claims. Matvia appeals the grant of summary judgment on the hostile work environment claim, the retaliation claim, and constructive discharge claim.

II.

A motion for summary judgment should be granted only if there is no genuine dispute as to an issue of material fact and the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The court must consider the evidence in the light most favorable to the non-moving party and draw all reasonable inferences from the facts in the non-movant's favor. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

To prevail on a Title VII hostile work environment claim, Matvia must establish four elements: (1) unwelcome conduct, (2) based on Matvia's gender, (3) sufficiently pervasive or severe to alter the conditions of employment and to create a hostile work environment, and (4) some basis for imputing liability to BHIM. See Smith v. First Union Nat'l Bank, 202 F.3d 234, 241 (4th Cir. 2000). The district court assumed the first three elements had been established, but granted summary judgment on the fourth element in light of the affirmative defense outlined in Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 765 (1998).

The affirmative defense of Faragher and Ellerth allows an employer to avoid strict liability for a supervisor's sexual harassment of an employee if no tangible employment action was taken against the employee. See Faragher, 524 U.S. at 808; Ellerth, 524 U.S. at 765. Examples of tangible employment action include"discharge, demotion, or undesirable reassignment." Faragher, 524 U.S. at 808; Ellerth, 524 U.S. at 765. If entitled to raise the affirmative defense, the employer must establish: "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually

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harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S. at 807; Ellerth, 524 U.S. 765.

A. Tangible Employment Action

Matvia contends that the affirmative defense is not available because there was...

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