Drinkwater v. Union Carbide Corp.

• Citation: 904 F.2d 853
• Decision Date: 06 June 1990
• Docket Number: No. 89-5418,89-5418
• Parties: 56 Fair Empl.Prac.Cas. 483, 53 Empl. Prac. Dec. P 40,002 Dorothy DRINKWATER, Appellant, v. UNION CARBIDE CORPORATION, Henry Kahwaty, National Marketing Services Manager, in his individual and representative capacity; and H.V. Pratt, Jr., Director-Distributor Marketing, in his individual and representative capacities.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 853

904 F.2d 853

56 Fair Empl.Prac.Cas. 483,

53 Empl. Prac. Dec. P 40,002

Dorothy DRINKWATER, Appellant, v. UNION CARBIDE CORPORATION, Henry Kahwaty, National Marketing Services Manager, in his individual and representative capacity; and H.V. Pratt, Jr., Director-Distributor Marketing, in his individual and representative capacities.

No. 89-5418.

United States Court of Appeals Third Circuit.

Argued Oct. 18, 1989.

Decided June 6, 1990.

Philip Rosenbach (argued), Rosenbach and Rosenbach, Livingston, N.J., for appellant.

Robert J. Hrebek (argued), Sea Girt, N.J., for appellee, Henry Kahwaty.

Theresa Donahue Egler (argued), Edward P. Lynch, Pitney, Hardin, Kipp and Szuch, Morristown, N.J. (John B. Day, Union Carbide Corp., of counsel), for appellees, Union Carbide Corp. and H.V. Pratt, Jr.

Before BECKER, COWEN and SEITZ, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

This is an appeal by plaintiff Dorothy Drinkwater from the grant of summary judgment in favor of the defendants, Union Carbide Corporation (UC), and its employees, Henry Kahwaty and H.V. Pratt, Jr., in a diversity case based on New Jersey law. Plaintiff charges gender-based employment discrimination and retaliatory discharge. Plaintiff's discrimination claim alleges that her conditions of employment were impermissibly harmed by the open sexual relationship, between her supervisor and one of her co-workers, which created a hostile and sexually-charged work environment from which she suffered because of her sex. Plaintiff's retaliation claim alleges that whether or not her discrimination claim survives, she had a reasonable belief that UC had created a discriminatory hostile work environment, and that UC retaliated against her for complaining about that environment.

For the reasons that follow, we will affirm the grant of summary judgment on the sex discrimination claim, but will reverse on the retaliation claim and remand for further proceedings.

I. THE RELEVANT FACTS OF RECORD ¹

Plaintiff first went to work for UC after graduating from Smith College in 1974. During the course of her employment, she worked in Alabama, Louisiana, South Plainfield, New Jersey, and again in Alabama, where she managed a market analysis group for UC's Southern Region. In 1984, she was offered a research planning position with a UC market research group in Somerset, New Jersey. The Somerset group was organized by and operated under the supervision of defendant, Henry Kahwaty. The manager of the group was Hank Robinson, to whom plaintiff reported. Plaintiff herself supervised a number of marketing specialists, including Donna Schembri, who was hired at Kahwaty's suggestion, over the objection of Robinson. Kahwaty himself reported to Sam Bramande.

When Kahwaty offered plaintiff the Somerset job, he promised her several benefits. Among other things, plaintiff was told that she could hire a market researcher and that she would not receive a job performance evaluation of "5," which denotes that there is too little information to evaluate the employee. ² In accepting the position, plaintiff also relied on the UC policy that provided transferring employees with differential mortgage adjustment payments and cost-of-living reimbursements.

Shortly after she arrived in Somerset, plaintiff encountered difficulties with the mortgage differential payment. ³ She also encountered a problem with her interim hotel arrangements. ⁴ However, the crux of plaintiff's claim involves the effect of the sexual relationship between Kahwaty, plaintiff's supervisor, and Schembri, plaintiff's subordinate and Kahwaty's protege, upon the work environment (and hence upon plaintiff).

Both Kahwaty and Schembri demonstrated frequent unprofessional behavior. Schembri disregarded office hours, plagiarized the work of other employees, attended staff meetings outside of her area of employment, and tried to enlist plaintiff and fellow telemarketing specialist Yvonne Noyes in an attempt to have Robinson removed as head of the Somerset group. Kahwaty reassigned work from Schembri to plaintiff and never allowed plaintiff to hire the assistant that he had promised her. Moreover, Kahwaty called Schembri frequently and often fraternized with her in an unprofessional manner.

Various employees complained frequently about Schembri. Plaintiff brought these and her own complaints to Robinson's attention, but Robinson did nothing. By October of 1984, Kahwaty became aware of plaintiff's complaints. At that point, he began expressing concerns about the quality of plaintiff's work. His concerns included placing a note in his files saying that plaintiff was "very tired--almost sleepy" at a staff meeting. In August of 1984, Kahwaty asked plaintiff to sign a non-disclosure statement regarding a sexual harassment complaint filed by a previous employee, Barbara Hageman. The statement threatened any signatory who spoke about the Hageman incident with immediate discharge. Plaintiff was reluctant to sign the statement because she had accepted some of Hageman's duties. The day after the staff meeting at which he noted that plaintiff was "sleepy," Kahwaty telephoned plaintiff and asked her about the non-disclosure statement. Plaintiff expressed her concerns about signing the statement and suggested to Kahwaty that she might go to the employee relations department to talk about it. Kahwaty told her not to go.

Shortly after this incident, plaintiff again spoke with Robinson about her difficulties. Robinson warned plaintiff that her career might be in jeopardy if Kahwaty was starting to put disparaging notes in her file. Plaintiff therefore turned to the Employee Relations Department and on October 16, 1984, she met with Patricia Austin. Prior to the actual meeting, plaintiff expressed to Austin her reservations about talking because she was worried about retaliation by Kahwaty. Austin assured plaintiff that retaliation was not tolerated by the company and was against the law. At their meeting, Austin told plaintiff that the UC management group had had difficulty with female employees and that Kahwaty and Schembri had been investigated previously in connection with the Hageman case.

Austin conducted an investigation and met with plaintiff again on November 13, 1984. At that time, Austin told plaintiff that the refusal to sign the Hageman non-disclosure statement was an act of insubordination, although Austin refused to disclose the contents of the statement. Austin added that plaintiff had made unfounded accusations and that she would be disciplined if she continued to accuse her superiors of improper conduct.

Kahwaty continued to afford Schembri preferential treatment. In early December 1984, plaintiff discovered that Schembri was using an automobile leased by UC's competitor, M.G. Burdette. This was a clear violation of company policy and plaintiff reported it to Robinson. Plaintiff also learned that Kahwaty and Schembri had purchased two condominiums and were planning to live in them together.

At some point in December, Robinson told plaintiff that she would receive a "2" or a "3A" (which is higher than a 3) on her performance evaluation. This was later changed to a "5," contrary to what she had been promised when she accepted the Somerset job. Robinson acknowledged that Kahwaty played a crucial role in amending the performance ratings. Apparently, Kahwaty ordered that everyone in the group should receive a "5" in order to ensure that Schembri would not be evaluated negatively.

In January of 1985, Kahwaty summoned plaintiff to a meeting. Kahwaty started the meeting by remarking about plaintiff's dress, eyeshadow and makeup. He suggested that plaintiff be more willing to correct misperceptions about her performance, which he proceeded to criticize extensively. Kahwaty concluded the meeting by stating that an amicable relationship with Schembri would henceforth be a performance criterion for plaintiff's job.

Shortly after her January meeting with Kahwaty, plaintiff received two notes from Robinson instructing her to reimburse UC for the difference in hotel rates. At this point, plaintiff decided to retain an attorney to help her respond to what she felt was continuing harassment. On January 18, 1985, attorney Shelley Kostrinsky wrote to UC demanding that UC "cease and desist from any further discriminatory practices." App. at 81. The letter also stated that Kostrinsky's firm had reviewed and examined the case and had satisfied itself that, "at a minimum, the facts spell out a case of discriminatory treatment based on Ms. Drinkwater's sex." Id.

Later in January, plaintiff spoke with an investigator for UC's Internal Audit Department ("IAD"). IAD then conducted its own inquiry and discovered several of the improprieties mentioned above. As a result of the official inquiry, Kahwaty was placed on probation and transferred to UC's corporate headquarters in Danbury, Connecticut. Schembri was transferred from Somerset to Moorestown, New Jersey. Defendant Pratt replaced Kahwaty. However, UC did not make known the reason for the personnel change. Bramande (Kahwaty's supervisor) told the Somerset group that Kahwaty's other responsibilities prevented him from continuing to supervise the group. He made no mention of disciplinary proceedings, so that plaintiff had no way of knowing that UC had acted on her complaints. Concerned about how much control Kahwaty might still have, plaintiff related her past problems to her new supervisors. She was assured that Kahwaty would not maintain his supervision of the Somerset group.

Unfortunately for plaintiff, the change in personnel did not bring her much relief. Pratt made disparaging remarks about plaintiff from the start, and he turned a deaf ear to plaintiff's problems with Kahwaty and Schembri. Pratt expressed sympathy for Kahwaty, told plaintiff to stop talking about the past, and instructed plaintiff to prevent Noyes from talking about Kahwaty and Schembri....