Davis v. Coastal International Security

• Citation: 275 F.3d 1119,348 U.S. App DC 375
• Decision Date: 11 January 2002
• Docket Number: No. 00-7293,00-7293
• Parties: (D.C. Cir. 2002) Wallace LoWarren Davis, Appellant v. Coastal International Security, Inc. and Securiguard, Inc., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1119

275 F.3d 1119 (D.C. Cir. 2002)

Wallace LoWarren Davis, Appellant v. Coastal International Security, Inc. and Securiguard, Inc., Appellees

No. 00-7293

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 30, 2001

Decided January 11, 2002

[Copyrighted Material Omitted] Appeal from the United States District Court for the District of Columbia (No. 00cv00074)

Thomas Ruffin, Jr. argued the cause and filed the briefs for appellant.

Nancy M. O'Connor argued the cause for appellee Coastal International Security, Inc. With her on the brief were J. Tullos Wells, Julia M. Rendon and James F. Parker III.

Eric Paltell argued the cause for appellee Securiguard, Inc. With him on the brief was Lynn A. Clements.

Before: Ginsburg, Chief Judge, and Randolph and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge:

A male employee of a security company alleges that two co-workers, also male, sexually harassed him in violation of Title VII of the Civil Rights Act of 1964. Finding the three employees engaged in only a "workplace grudge match," the district court granted summary judgment for the employers. We affirm. Not one of the alleged acts of sexual harassment, ranging from vulgar comments and gestures to tire slashing, constitutes discrimination because of sex, as required by Title VII.

I.

The extended and rancorous workplace dispute giving rise to this action began in 1996 after appellee, Coastal International Security, through its subcontractor and co-appellee Securiguard, hired appellant Wallace Davis to work as a security guard at the Environmental Protection Agency. While serving as a supervisor early in his tenure, Davis disciplined two other Coastal security guards, Aaron Smith and Everett Allen, for various on-the-job infractions. Viewed through the lens we use at summary judgment, see Abraham v. Graphic Arts Int'l Union, 660 F.2d 811, 814 (D.C. Cir. 1981) (noting that at summary judgment, "facts asserted by the non-movant, if adequately buttressed by evidentiary material, are to be taken as true" (citations omitted)), record evidence indicates that Smith and Allen, apparently infuriated by their discipline, launched a retaliatory campaign against Davis, which they began by repeatedly slashing his tires.

After Davis complained to his supervisor, Coastal required the three men to sign a memorandum of understanding in which they agreed to set aside their differences. This agreement accomplished nothing. When Davis was demoted, in part for his failure to abide by the memorandum of understanding, Smith and Allen visited his work station and taunted him about the demotion. On other occasions, Allen told Davis that he "ma[de] him sick," and that he found Davis "aggravat[ing]." Davis again found his tires slashed.

Approximately six months into their campaign against Davis, Smith and Allen expanded their repertoire. Smith approached Davis at his work station and grabbed his (Smith's) crotch, made kissing gestures, and used a phrase describing oral sex. (Readers interested in additional description of this behavior may consult the briefs and record, which spare no detail, however vulgar.) After Smith twice repeated this performance, Davis complained to his supervisor, who convened a meeting with Davis, Smith, and Coastal's project manager for the EPA facility. Because Smith denied Davis's accusations, and because Davis failed to provide corroborating evidence, the project manager took no formal action, but admonished both Davis and Smith to "act like grown men."

Undeterred, Smith continued his vulgar comments and gestures, and Davis again complained to his supervisor. This time the supervisor warned Smith that he would be fired if his behavior continued. This seems to have gotten Smith's attention, for his lewd conduct ceased (although Davis alleges that Smith threatened his life on several subsequent occasions). Allen, however, picked up the cudgel, twice approaching Davis and making precisely the same lewd gestures and comments that Smith had.

When Davis complained for a third time, Coastal conducted a full-scale investigation. Although the investigator interviewed ten employees, he concluded that the inquiry had been "hampered by the lack of a reliable witness to substantiate even one allegation of sexual harassment by ... Davis." Notwithstanding this lack of corroborating evidence, the investigator recommended that Davis and Allen be reassigned (Coastal had terminated Smith for unrelated reasons). Shortly thereafter, Davis filed one final complaint, claiming again that Allen, despite his reassignment, had repeated the by-now-familiar lewd gestures and comments.

In January 2000, over three years after these events began, Davis filed suit in the United States District Court for the District of Columbia, alleging that Smith's and Allen's behavior amounted to sexual harassment and that Coastal and Securiguard "permitted ... Allen ... and ... Smith to make sexually vulgar gestures and statements." The companies' actions, the complaint alleges, violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and section 1-2512(a) of the District of Columbia Human Rights Act, D.C. Code Ann. 1-2512(a). In an oral ruling, later confirmed in a memorandum opinion, the district court granted summary judgment for Coastal and Securiguard on both claims. While Davis, Smith, and Allen "obviously hated each other" and "were fighting like scorpions in a bottle," the district court found, Smith's and Allen's behavior "ha[d] nothing to do with sexual harassment." Tr. of Mots. Hr'g at 36, Davis v. Coastal Int'l Security, Inc., No. CA 00-0074 (D.D.C. Oct. 20, 2000). "[T]he fact that [Smith and Allen] used references to their anatomies or used their anatomies as part of their harassment does not make it sexual harassment unless they were harassing because of gender ... , and there is simply no evidence that they were harassing Mr. Davis because of their gender or because of his gender." Id.

Davis now appeals. Our review is de novo. See Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998).

II.

Title VII, which prohibits employers from discriminating "against any individual ... because of such individual's ... sex," 42 U.S.C. 2000e-2(a)(1), protects both men and women, see, e.g., Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 675-76 & n.11, 103 S.Ct. 2622, 2627 & n.11, 77 L.Ed.2d 89 (1983). Sex discrimination includes creating a hostile or abusive work environment if the harassment is sufficiently abusive to affect a "term, condition, or privilege" of employment. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405-06, 91 L.Ed.2d 49 (1986). To make a prima facie Title VII hostile environment claim, the plaintiff employee must show:

(1) the employee was a member of a protected class; (2) the employee was subjected to unwelcome[ ] sexual harassment ...; (3) the harassment complained of was based upon sex; (4) the charged sexual harassment had the effect of unreasonably interfering with the plaintiff's work performance and creating an intimidating, hostile, or offensive working environment ...; and (5) the existence of respondeat superior liability.

Yeary v. Goodwill Industries-Knoxville, Inc., 107 F.3d 443, 445 (6th Cir. 1997).

Like the district court, we begin and end with Davis's failure to satisfy the third element of a prima facie case: that the alleged harassment amounts to discrimination because of sex. As the Supreme Court observed in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), this element of a hostile-environment claim presents a plaintiff with serious obstacles where, as here, the perpetrators and plaintiff are of the same sex. Although when "the challenged conduct ... involves explicit or implicit proposals of sexual activity" between members of the opposite sex "it is reasonable to assume those proposals would not have been made to someone of the same sex," the same assumption of disparate treatment, the Court explained, may not as readily be made in the same-sex harassment context. 523 U.S. at 80, 118 S.Ct. at 1002. To address this problem, the Court suggested three ways to prove that samesex sexual behavior rises to the level of illegal sexual harassment: The plaintiff may show that the sexual behavior is motivated by actual homosexual desire; that the harassment is framed in "such sex-specific and derogatory terms ... as to make it clear that the harasser is motivated by general hostility" toward members of the same gender in the workplace; or that there is "direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace." Id. at 80-81, 118 S.Ct. at 1002.

Davis's effort to mold his allegations into a plausible Title VII claim rests on the first and third methods of proof. He begins by claiming that Smith's and Allen's behavior amounted to sexual propositions. No reasonable jury could believe this. For one thing, Davis's own testimony conclusively shows that Smith and Allen were motivated by a workplace grudge, not sexual attraction. In his deposition, Davis testified that he is not homosexual, that he had no reason (other than the behavior of which he complains) to believe that either Smith or Allen is homosexual, that Smith and Allen were motivated by their resentment of Davis's disciplinary action, and that Smith and Allen both repeatedly made clear that they despised Davis. Most damaging to Davis, although he claimed early in his deposition that he understood "without a shadow of a doubt" that Smith's and Allen's comments and gestures amounted to a serious sexual proposition, Davis later stated "I don't know if they were asking me to have sexual relations with them. I don't really know what they were saying...."

Davis's assertion that Smith's and Allen's behavior...