Abeita v. TransAmerica Mailings, Inc.

• Decision Date: 23 December 1998
• Docket Number: No. 97-3264,97-3264
• Citation: 159 F.3d 246
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 364, 74 Empl. Prac. Dec. P 45,587 Gail E. ABEITA, Plaintiff-Appellant, v. TRANSAMERICA MAILINGS, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 246

159 F.3d 246

78 Fair Empl.Prac.Cas. (BNA) 364,

74 Empl. Prac. Dec. P 45,587

Gail E. ABEITA, Plaintiff-Appellant, v. TRANSAMERICA MAILINGS, INC., et al., Defendants-Appellees.

No. 97-3264.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 21, 1998.

Decided Oct. 30, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Dec. 23, 1998.

Frank A. Chenette (argued and briefed), Cleveland, OH, for Plaintiff-Appellant.

Robert J. Valerian (argued and briefed), Kahn, Kleinman, Yanowitz & Arnson, Cleveland, OH, for Defendants-Appellees.

Before: KENNEDY and COLE, Circuit Judges; RUSSELL, District Judge. ^*

OPINION

KENNEDY, Circuit Judge.

Plaintiff Gail E. Abeita brought sex-based hostile environment harassment, gender-based disparate treatment, and retaliation claims against defendants TransAmerica Mailings, Inc. ("TransAmerica") and Avrum S. Katz, President of TransAmerica. The District Court granted summary judgment to the defendants on all of plaintiff's claims. We affirm the District Court's grant of summary judgment on plaintiff's disparate treatment claim because plaintiff fails to establish either a McDonnell Douglas prima facie case or enough evidence to permit an inference of discrimination. We affirm the grant of summary judgment on her retaliation claim because plaintiff failed to present the retaliation claim to the Equal Employment Opportunity Commission ("EEOC"). We reverse the grant of summary judgment on plaintiff's hostile environment claim because the facts viewed in the light most favorable to the plaintiff would permit a jury to find objectively severe and pervasive harassment.

I. Facts and Procedural History

As this appeal reviews the grant of summary judgment for the defendants, we view the facts in the light most favorable to Abeita. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

TransAmerica sells women's apparel, cosmetics, and jewelry by catalog and mail order. ¹ Abeita worked at TransAmerica from September 2, 1986 until she was fired on June 3, 1993. Katz served as President of TransAmerica throughout the period of Abeita's employment and as Abeita's immediate supervisor from August 1990 until about 1992.

To support her hostile environment claim, plaintiff provided evidence of specific sexual and derogatory gender-based remarks by Katz and that Katz made sexual comments throughout her entire term of employment at TransAmerica. Only one of the specific remarks by Katz was made about Abeita, that is, Abeita was the subject of the remark. Katz stated to Abeita sometime before 1990: "oh, yellow dress and yellow shoes, yellow underwear too?"

Abeita, in an interrogatory response, also describes a number of statements by Katz concerning his sexual interest in other women:

I was conversing with defendant Katz in the hallway when a young, attractive employee from defendant company walked by. After she went around the corner, defendant Katz stated to me something along the lines of "I'd really like to lay the pipe to her," or "I'd really like to lay her." Defendant Katz made comments of a sexual nature on a number of occasions indicating his attraction to her. ²

On another occasion, defendant Katz brought an attractive black-haired model through the defendant company facility on a tour. Defendant Katz had "discovered" her and was hoping some of us might be able to use her in our catalogs. Defendant Katz came back later and asked me if she would work for my catalog. I said something to the effect of "I don't know. What do you want me to do with her?" His response was something along the lines of: "Well, that doesn't matter. It's what I'd like to do with her that's important." One of the clothing catalogs had her photographed knowing that defendant Katz wanted her to be used. Only two photos might have been usable. Remarks were made about defendant Katz, and eyes were rolled and heads were shaking in disbelief. ³

Over a period of two or three days approximately in 1991, Katz, in the presence of Abeita, made sexual comments about a model found in a Frederick's of Hollywood catalog. The comments included statements that the model had a terrific, sexy body and the model looked "hot;" how Katz would like the model's slippers under his bed; and how Katz would like to "warm her oven." Katz also expressed that he knew he was too old for the model and that unfortunately he was attracted to her. He stated that someone like her would not want someone like him. During these interactions between Katz and Abeita, Katz showed the Frederick's catalog to Abeita and pointed out the model, who was wearing "practically nothing" in the photos. Katz also expressed an intent to meet this model to Abeita. To achieve this, he arranged and attended a photography session. When Katz returned from the photo shoot, he expressed to Abeita his disappointment that the model had recently married. To the plaintiff's knowledge, the photos from that session were not used in any catalog produced or issued by TransAmerica.

In addition to these specific instances recounted by Abeita, she testified that Katz's sexual comments that "went beyond business and into the personal" about models and other female employees were "ongoing," "commonplace," "continuing," and too numerous to recall in detail beyond the detail described above.

Katz, in Abeita's presence, also made comments about women that were not sexual in nature but arguably reflect degrading gender stereotyping. Katz remarked that a female employee's weight was extreme and that the overweight female employee could iron clothes the company sent to customers by just sitting on the full boxes. Abeita asserts that Katz did not make statements about the weight of male employees. ⁴

Abeita asserts that she complained to Katz about his statements many times, but Katz did not change his behavior. Abeita also complained to Alan Rosen, Executive Vice President at TransAmerica from October 1985 until August 1990, about the sexual comment Katz made to her when the attractive female employee passed Katz and Abeita standing in the hall. Rosen stated that he told Katz that "such remarks and behavior were inappropriate and unprofessional and yet Mr. Katz' behavior continued." Katz, at his deposition, conceded that TransAmerica does not have and never has had an anti-discrimination or harassment policy. Katz testified that "[w]e employ about almost ninety percent women, and I think the implication that we even had a need of it is ill taken."

In support of her disparate treatment claim, Abeita points to the testimony of Susan Coverdale, director of MIS at TransAmerica, that the pay scale for women at TransAmerica was "low." Ms. Coverdale expressed her belief that the defendant employed predominantly women because "it was easier to keep women at a lower pay." Alan Rosen reported that Katz stated that he employed predominantly women because women could be paid less than men.

Additionally, in an interrogatory response, Abeita stated that:

In other instances, I complained and accused defendant Katz of discriminating when he refused to consider someone for a promotion. I complained and accused defendant Katz of discriminating when he discouraged me from hiring a male as my assistant. I complained and accused defendant Katz of discriminating when I challenged the fact that throughout his history with defendant company he did not seriously consider hiring females for executive positions. I complained and accused defendant Katz of discriminating by encouraging the hiring of females so that he could pay them less and control them more.

Abeita also states that Katz did not follow and discounted her advice because she was a woman. According to Abeita, Katz also said that the plaintiff was "sick" because she worked so hard, but did not apply such a characterization to hard-working males. Abeita also asserts that Katz kept his salary promises to similarly situated males but did not keep his promise to Abeita.

TransAmerica fired Abeita on June 3, 1993. At the time of the firing, according to Abeita, Katz cited only "continuity of management" as the reason. Her firing followed negotiations between Abeita and Katz about her salary. Abeita claims that Katz reneged on salary promises throughout her tenure at TransAmerica and she requested payment for what she believed TransAmerica owed to her.

TransAmerica suffered a business downturn starting in 1991. TransAmerica's gross sales decreased from $75 million to $40 million in 1993. TransAmerica's workforce declined from 330 full and part-time personnel in 1991 to 214 full and part-time personnel by October of 1993. In March of 1993, TransAmerica fired Richard E. Culp, a Vice President at TransAmerica, in order to reduce overhead costs.

After her termination, Abeita filed a discrimination charge with the EEOC. Abeita checked the box covering sex discrimination, but did not check the box indicating that she had a retaliation claim. She did not mention retaliation in her description of her claim. She filed suit in the District Court, and after discovery, the defendants moved for summary judgment. The District Court granted summary judgment on all three of Abeita's claims discussed in turn below, and dismissed without prejudice plaintiff's state law claims.

II. Discussion

We review a district court's grant of summary judgment de novo. See Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 683, 136 L.Ed.2d 608 (1997). Summary judgment is appropriate "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 judgment as a matter of law." FED. R. CIV. P. 56(c). We must view the facts and all inferences drawn from the facts in the light most favorable to the nonmoving pa...