Dulaney v. Packaging Corp. of America

• Citation: 114 Fair Empl.Prac.Cas. (BNA) 980,95 Empl. Prac. Dec. P 44443,673 F.3d 323
• Decision Date: 12 March 2012
• Docket Number: No. 10–2316.,10–2316.
• Parties: Carla M. DULANEY, Plaintiff–Appellant, v. PACKAGING CORPORATION OF AMERICA; Bobby Mills, Defendants–Appellees.Equal Employment Opportunity Commission, Amicus Supporting Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

114 Fair Empl.Prac.Cas. (BNA) 980

673 F.3d 323

95 Empl. Prac. Dec. P 44,443

Carla M. DULANEY, Plaintiff–Appellant,

v.PACKAGING CORPORATION OF AMERICA; Bobby Mills, Defendants–Appellees.Equal Employment Opportunity Commission, Amicus Supporting Appellant.

No. 10–2316.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 25, 2012.Decided: March 12, 2012.

ARGUED: Terry Neill Grimes, Grimes & Williams, P.C., Roanoke, Virginia, for Appellant. Anne Noel Occhialino, Equal Employment Opportunity Commission, Washington, D.C., for Amicus Supporting Appellant. Lawrence Philip Postol, Seyfarth Shaw, LLP, Washington, D.C., for Appellees. ON BRIEF: Kevin D. Holden, Jackson Lewis LLP, Richmond, Virginia, for Appellee Bobby Mills. P. David Lopez, General Counsel, Lorraine C. Davis, Acting Associate General Counsel, Equal Employment Opportunity Commission, Washington, D.C., for Amicus Supporting Appellant.

Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.

Vacated and remanded by published opinion. Judge DUNCAN wrote the opinion, in which Judge DAVIS and Judge KEENAN joined.

OPINION

DUNCAN, Circuit Judge:

This appeal arises out of the district court's grant of summary judgment in favor of Packaging Corporation of America (“PCA”) on appellant Carla Dulaney's claims of sexual harassment in violation of Title VII. Finding genuine questions of material fact in dispute, we vacate and remand.

I.

A.

In considering the grant of a motion for summary judgment, we view facts and inferences drawn from them in the light most favorable to the non-moving party. Pueschel v. Peters, 577 F.3d 558, 563 (4th Cir.2009). We therefore recite the facts here as Dulaney alleges them and note areas of disagreement only where essential to our analysis.¹

PCA is a manufacturer of cardboard boxes headquartered near Chicago. Dulaney worked as a “Class ‘B’ Glue Helper” on the second shift at PCA's Roanoke, Virginia facility. In that capacity, she was one component of a production line that depended on the efficiency of all to assemble boxes.

Approximately 50 hourly and 15 to 20 salaried employees, most of them male, worked at the Roanoke plant. These employees worked in multiple shifts. After the close of regular business hours, which occurred during the middle of Dulaney's shift, there was no employee on duty with the title of “manager” or “supervisor.” Instead, Bobby Mills was designated as a “lead production worker.” Appellee's Br. 6. Although lacking a supervisory title, Mills nevertheless exercised certain responsibilities with respect to other workers. For instance, he had the authority to assign work, send employees home early without pay, and assess them points pursuant to PCA's progressive discipline system—under which any employee earning 12 points was subject to automatic termination. Mills was also responsible for reporting employee complaints and misconduct to management. He had a key to the office area, which allowed him sole access to that part of the plant after the close of business.

Dulaney began working for PCA as a temporary hourly employee in June 2006. PCA's customary practice was to offer temporary employees permanent employment after they had worked a certain number of hours. Dulaney, however, was not offered permanent employment on this schedule. Rather, she had discussions with Mills throughout the fall of 2006 as to when she might be promoted. Mills, although nominally only lead production worker, ultimately wrote a memorandum extending her an offer of permanent employment on November 20, 2006.

Shortly thereafter, in December 2006, Mills approached Dulaney about “taking care of him” by performing sexual acts. J.A. 26. She initially refused, at which point, she claims, Mills followed through on threats to make her life “hell” by screaming at her, spreading rumors, and otherwise interfering with her work if she continued to refuse. Appellant's Br. 6. She eventually acceded to his demands.

These encounters typically occurred in the men's restroom or the office area, where Mills knew he would not be disturbed because he alone had the key. Mills often interrupted Dulaney's work by calling her away from her station to report to the office for the purpose of engaging in sexual relations with him. At other times, he would rub himself against her while she was working at her machine to signal that he wanted her to engage in sex. Dulaney claims that Mills would often scream at her when she refused him.² Mills also sent Dulaney home early, with a corresponding loss of pay, on more than one occasion.

At some point, Mills began making sexually explicit comments about Dulaney to her co-workers. For example, he spread a rumor that Dulaney had a sexually transmitted infection. Dulaney contended that this and other rumors caused other employees to treat her poorly.³

Dulaney complained about Mills's derogatory remarks to his direct supervisor, Mike Bourne. Bourne responded to this complaint by reminding Dulaney that she was “replaceable.” J.A. 48. Dulaney complained to Bourne on one other occasion. In early 2007, she had a dispute with Jane Vars, another employee at the plant. Vars had called Dulaney a “nigger lover” and spread rumors similar to the one just described. J.A. 248. Bourne “laughed it off.” J.A. 247. When Dulaney and Vars expressed their intent to take their dispute to a more senior supervisor, Donnie Woodward, Bourne threatened to fire them if they went over his head.

Matters reached a crisis point on September 26, 2007. An African American employee, Tim Divers, whose work Dulaney assisted, complained to Woodward about Mills's treatment of Dulaney. Earlier that day, Mills had been screaming at Dulaney, saying that she was a “whore” and “replaceable,” and demanding to know whether she was “fucking these niggers here.” J.A. 250. Dulaney was one of the few white employees at the plant. Divers complained that he was unable to perform his work efficiently when Dulaney was away from her station or crying, as was often the case. Following up, Dulaney went to Woodward's office to report Mills's conduct. Because Woodward was unavailable, Dulaney spoke to his secretary.

Woodward called Dulaney into his office to discuss Mills on September 28, 2007. Dulaney, Woodward, and Mills disagree about what happened next. Dulaney testified that Woodward initially sent her to finish her shift with Mills and that Bourne approached her and said “can't you two just get along.” J.A. 269. According to Dulaney, Woodward sent her home with pay once he realized that she would have to finish her shift alongside Mills. Woodward, on the other hand, testified that Dulaney was allowed to go home because she was upset, that Bourne escorted her off the premises, and that he planned to schedule her for the first shift so that she could avoid Mills. Woodward further testified that Mills finished his shift on September 28 but resigned on the next business day, October 1.

Mills tells a still different version. He claims that he finished his shift on September 28, after Woodward told him that Dulaney reported him, and came back to work on October 1. Mills maintains that he took a vacation day on October 2, returned to work for a meeting on October 3, and then continued to use his vacation time until PCA fired him on October 7.

Woodward contacted Greg Bright in PCA's Human Resources department on October 1, 2007 to arrange for Dulaney to submit a written complaint. Bright interviewed Dulaney on October 3 and sent her home early with pay after she became upset.

Dulaney's relationship with her co-workers and Bourne deteriorated after this point. She had two further disputes with Vars, the first of which involved Vars passing messages from Mills to Dulaney, and the second of which involved Vars calling Dulaney a “whore” and accusing her of being promiscuous. Although Vars was reprimanded in connection with these disputes, Dulaney testified that when she complained about these disputes to Bourne, he and Vars laughed at her, saying “[t]here goes Carla again.” J.A. 51. PCA did not reprimand Dulaney for these disputes.

Dulaney approached Bright on November 2, 2007 to discuss her desire to find a new job because her co-workers continued to ostracize her. She found it difficult to search for a new job while working full-time for PCA. Bright proposed a severance agreement and arranged for one to be prepared for her to review. Critical to this appeal, an internal PCA memorandum about Dulaney explains “[w]hen the separation agreement is prepared ... payroll automatically stops the employee's pay as of the termination date stated in the agreement ... Payroll coding is as follows: Employment status is ‘terminated’ ... Termination Reason should be completed as Quit with Notice.” J.A. 187. The agreement stated that Dulaney's “employment with [PCA] shall be terminated effective November 2, 2007.” J.A. 181. Consistent with the internal memorandum and the severance agreement, we presume that PCA ceased paying Dulaney on November 2. Dulaney did not meet with Bourne and Bright to receive a copy of the severance agreement until November 5.

The letter accompanying the severance agreement that PCA presented to Dulaney on November 5 explained that she had 21 days to sign the severance agreement and seven days after signing to revoke it. The letter also informed her that she had the right to consult with an attorney to review the document prior to signing. The severance agreement itself proposed an extensive waiver of rights in exchange for weekly payments and benefits until December 31, 2007.

Dulaney testified that at the November 5 meeting, Bright told her that she was required to sign the severance agreement before she left the office that day or she would be fired. When she refused to sign, Bourne escorted her out of the office and told her to take her belongings and lock from her locker. Bourne then took her key to the facility and asked her when she would be able to...