Dick v. Phone Directories Company, Inc
| Decision Date | 04 June 2003 |
| Docket Number | No. 2:01-CV-785TC.,2:01-CV-785TC. |
| Parties | Diane D. DICK, Plaintiff, v. PHONE DIRECTORIES COMPANY, INC., Defendant. |
| Court | U.S. District Court — District of Utah |
Mark C. McLachlan, Salt Lake City, UT, for Plaintiff.
Matthew M. Durham, Justin B. Palmer, Stoel Rives LLP, Steven K. Gordon, Gabriel S. Clark, Durham Jones & Pinegar, Salt Lake City, UT, for Defendant.
Plaintiff Diane Dick brings this employment discrimination action against Defendant Phone Directories Company, Inc. ("PDC"), alleging (1) same-sex hostile work environment harassment in violation of Title VII, (2) retaliation, and (3) negligent failure to train, instruct, supervise, and implement policy and procedure.
For the reasons set forth below, the court concludes that the harassment Ms. Dick complains of was not because of her sex. The court also concludes that Ms. Dick was not subject to an adverse employment action. Accordingly, PDC is granted summary judgment on Ms. Dick's Title VII claims, and the court declines to exercise supplemental jurisdiction over her remaining negligence claim pursuant to 28 U.S.C. § 1367 (2003).
Ms. Dick was hired as an inside sales consultant in PDC's Vernal, Utah office in June of 1997. Her job involved selling Yellow Pages over the phone and explaining different advertising programs to customers. A new Vernal office supervisor, Laura Bills ("Ms.Bills") was hired around September 2000. The conduct Ms. Dick complains of began approximately a month after Ms. Bills was hired, and persisted for four or five months.
Ms. Dick's factual allegations describe a working environment permeated by sexually explicit banter, insults, lewd jokes, gestures, games, and devices. There were four central participants in the conduct, all female co-workers (collectively, "co-workers") who were not in supervisory or managerial positions. One woman, Camie Hinkle, is central to Ms. Dick's claims of harassment.1 The parties' pleadings provide an extensive, painstaking inventory of the conduct forming the basis of this action much of which is irrelevant to the analysis here. Accordingly, the particular details of Ms. Dick's factual allegations will be described only generally and to the extent necessary to decide the issues before the court, "in the interest of both brevity and dignity." Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 76, 118 S.Ct. 998,140 L.Ed.2d 201 (1998).
PDC does not dispute that the office environment giving rise to this case was unusually raucous and vulgar. But PDC argues that the conduct, although offensive, is not actionable under the legal theories Ms. Dick advances. For the reasons that follow, the court agrees.
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 a judgment as a matter of law.'" Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 411 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Adler v. Walr-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998).
The party moving for summary judgment bears the initial burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Adler, 144 F.3d at 670-71. A movant "may make its prima facie demonstration simply by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Adler, 144 F.3d at 671. In applying this standard, the court views the factual record and construes all facts and reasonable inferences from it in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Adler, 144 F.3d at 670; Aramburu v. Boeing Co., 112 F.3d 1398, 1402 (10th Cir.1997).
Once the moving party has carried its initial burden, Rule 56(e) requires the nonmovant to "go beyond the pleadings and `set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671 (quoting Fed.R.Civ.P. 56(e)). The specific and pertinent facts put forth by the nonmovant "must be identified by reference to an affidavit, a deposition transcript or a specific exhibit incorporated therein." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.1992). Mere allegations and references to the pleadings will not suffice. Anderson v. Liberty Lobby, Inc., All U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A. Title VII Same-Sex Sexual Harassment Claim
In its Motion for Summary Judgment, PDC argues that Ms. Dick's Title VII claim cannot survive because there is no evidence to show that Ms. Dick was discriminated against because of sex. Under Title VII, discrimination against "any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's ... sex" is an unlawful employment practice. 42 U.S.C. § 2000e-2(a)(1). Accordingly, to be actionable, the Title VII claim must be supported by evidence that (1) the harassment constitutes discrimination "because of sex,"2 and (2) the conduct is sufficiently "severe or pervasive ... to create an objectively hostile or abusive work environment." Oncale, 523 U.S. at 81, 118 S.Ct. 998 (). Because the court concludes that the harassment Ms. Dick endured was not "because of sex," the Mentor/Harris "sufficiently severe or pervasive" test need not be reached. Discrimination "Because of Sex"
The Tenth Circuit Court of Appeals has explained that "[a]ny harassment of an employee `that would not occur but for the sex of the employee ... may, if sufficiently patterned or pervasive, comprise an illegal condition of employment under Title VII.'" Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1537 (10th Cir.1995) (internal quotation omitted). However, "`[i]f the nature of an employee's environment, however unpleasant, is not due to her gender, she has not been the victim of sex discrimination as a result of that environment." Id. (quoting Stahl v. Sun Microsystems, Inc., 19 F.3d 533, 538 (10th Cir. 1994) (emphasis omitted)). The United States Supreme Court has emphasized that workplace harassment is not "automatically discrimination because of sex merely because the words used have sexual content or connotations." Oncale, 523 U.S. at 80, 118 S.Ct. 998. "There is a significant distinction between harassment that is sexual in content and harassment that is sexually motivated, and Title VII is only concerned with the latter." English v. Pohanka of Chantilly, Inc., 190 F.Supp.2d 833, 840 (E.D.Va.2002). Furthermore, Title VII was not intended to be "a general civility code for the American workplace." Oncale, 523 U.S. at 80, 118 S.Ct. 998. The critical issue is "whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Id. (quoting Harris, 510 U.S. at 25, 114 S.Ct. 367 (Ginsberg, J., concurring)).
In the past, the Tenth Circuit has applied what has been called a "sex per se" rule,3 holding that when harassing conduct is overtly sexual in nature, it may be presumed to be because of sex. Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir.1998); O'Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1099 (10th Cir.1999). But, unlike the allegations made by Ms. Dick, neither Penry, 155 F.3d at 1261, nor O'Shea 185 F.3d at 1099. concerned a same-sex hostile work environment claim. As Oncale and cases following Oncale have pointed out, inferences that are available when a person of one sex uses sexually explicit language or gestures toward a person of the opposite sex are not necessarily available when both persons are of the same sex. Oncale, 523 U.S. at 80, 118 S.Ct. 998; Lack v. WalMart Stores, Inc., 240 F.3d 255, 260 (4th Cir.2001). Indeed, "the causation element poses an especially formidable obstacle in same-sex harassment cases." Lack, 240 F.3d at 260.
The Oncale Court provided three evidentiary routes by which a plaintiff can prove that "the [same-sex harassing] conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted `discrimination] ... because of ... sex.'" Oncale, 523 U.S. at 80, 118 S.Ct. 998 (emphasis added). The first of these consists of "evidence that the samesex harasser was homosexual and the harassment [was] motivated by sexual desire." Ciccotto v. LCOR, Inc., No. 99 CIV. 11646(RMB), 2001 WL 514304, at *4 (S.D.N.Y. Jan.31, 2001) (citing Oncale, 523 U.S. at 80, 118 S.Ct. 998); see also Moran v. Fashion Inst, of Tech., No. 00 CIV 1275(KMW), 2002 WL 31288272, at *5 (S.D.N.Y. Oct.7, 2002) (citing Ciccotto, 2001 WL 514304, at *4). The second is evidence that the harasser was "motivated by a [general] hostility to the presence of [members of the plaintiffs sex] in the workplace." Ciccotto, 2001 WL 514304, at *4 (citing Oncale, 523 U.S. at 80, 118 S.Ct. 998) Finally, the third is direct, comparative evidence "that the harasser treated males and females differently in a mixedsex work environment." Id. (citing Oncale, 523 U.S. at 81, 118 S.Ct. 998). It is apparent from Ms. Dick's pleadings and her attorney's argument during the hearing on this motion that she relies on the first evidentiary route, arguing that several of her alleged harassers were lesbians and that the Vernal office itself was known as "the lesbian factory." (See, e.g., Pl.'s Mem. Opp. Mot. Summ. J. at 4, 6, 8, 55-56, 58-61.)
To survive summary judgment, then, Ms. Dick must provide evidence...
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