Hopkins v. Baltimore Gas and Elec. Co.

• Decision Date: 05 March 1996
• Docket Number: No. 95-1209,95-1209
• Citation: 77 F.3d 745
• Parties: 70 Fair Empl.Prac.Cas. (BNA) 184, 67 Empl. Prac. Dec. P 43,923, 64 USLW 2570 George E. HOPKINS, Jr., Plaintiff-Appellant, v. BALTIMORE GAS AND ELECTRIC COMPANY, Defendant-Appellee. American Civil Liberties Union Foundation; American Civil Liberties Union of Maryland, Inc.; Women's Legal Defense Fund; National Women's Law Center; Equal Employment Opportunity Commission, Amici Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 745

77 F.3d 745

70 Fair Empl.Prac.Cas. (BNA) 184,

67 Empl. Prac. Dec. P 43,923, 64 USLW 2570

George E. HOPKINS, Jr., Plaintiff-Appellant, v. BALTIMORE GAS AND ELECTRIC COMPANY, Defendant-Appellee American Civil Liberties Union Foundation; American Civil Liberties Union of Maryland, Inc.; Women's Legal Defense Fund; National Women's Law Center; Equal Employment Opportunity Commission, Amici Curiae.

No. 95-1209.

United States Court of Appeals Fourth Circuit.

Argued Sept. 28, 1995.

Decided March 5, 1996.

Appeal from the United States District Court for the District of Maryland, at Baltimore, No. CA-93-4167-H; Alexander Harvey, II, Senior District Judge.

ARGUED: Lee David Hoshall, Baltimore, Maryland, for Appellant. Mary Lee Clark, Office of the General Counsel, Equal Employment Opportunity Commission, Washington, D.C., for Amicus Curiae EEOC. Sara Louise Mandelbaum, Women's Rights Project, American Civil Liberties Union Foundation, New York, New York, for Amici Curiae Women's Rights Project, et al. Joseph Michael McGuire, Shawe & Rosenthal, Baltimore, Maryland, for Appellee. ON BRIEF: John P. Rowe, Acting General Counsel, Gwendolyn Young Reams, Associate General Counsel, Carolyn L. Wheeler, Assistant General Counsel, Office of the General Counsel, Equal Employment Opportunity Commission, Washington, D.C., for Amicus Curiae EEOC. Susan Goering, American Civil Liberties Union Foundation Of Maryland, Baltimore, Maryland, for Amici Curiae Women's Rights Project, et al. Robert H. Ingle, III, Shawe & Rosenthal, Baltimore, Maryland; L. Ellis Justis, Jr., Baltimore Gas & Electric Company, Baltimore, Maryland, for Appellee.

Before WILKINSON, Chief Judge, and NIEMEYER and HAMILTON, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion for the court only in parts I, III, and IV and wrote separately in part II. Chief Judge WILKINSON and Judge HAMILTON join in parts I, III, and IV of the opinion. Chief Judge WILKINSON wrote a concurring opinion in which Judge HAMILTON joins.

OPINION

NIEMEYER, Circuit Judge, writing for the court only in parts I, III, and IV:

George E. Hopkins, Jr., alleges in his complaint in this case that his male supervisor's comments and actions created a sexually hostile work environment in violation of Title VII of the Civil Rights Act of 1964. In granting the motion for summary judgment of Hopkins' employer, the district court held that Title VII does not provide a cause of action for an employee who has been subjected to sexual harassment by a supervisor of the same gender. We affirm the district court's judgment, but for the reason that Hopkins failed to make out a prima facie case of a hostile work environment.

I

From 1985 until 1993, Hopkins worked in the Photographic Services Unit of Baltimore Gas & Electric Company (BG & E) as a color photographic technician. His immediate supervisor was Ira Swadow. In October 1993, as part of a reduction in force and a company-wide reorganization, BG & E eliminated the Photographic Services Unit and its 13 positions, including those held by Hopkins and Swadow.

Hopkins contends that throughout his term of employment at BG & E, Swadow subjected him to discriminatory sexual harassment, creating a hostile work environment. Hopkins bases his claim on the following incidents:

1. Swadow frequently entered the men's bathroom when Hopkins was there alone. On one occasion in 1986, while Hopkins was at the urinal, Swadow pretended to lock the door and said, "Ah, alone at last." He walked towards Hopkins, making Hopkins feel "very uncomfortable."

2. In 1987, Swadow wrote "S.W.A.K., kiss, kiss," and drew small hearts on internal mail Hopkins received from his fiancee, a BG & E employee. On another occasion, Swadow added the word "Alternative" in front of the company name "Lifestyles" on a piece of mail addressed to Hopkins.

3. In February 1988, during a party given by Hopkins, Swadow suggested to a BG & E employee that Hopkins and his fiancee were getting married because she was pregnant. Upon Hopkins' engagement, Swadow told him that he would be "counting the months" to see when the baby arrives. Before Hopkins' marriage, Swadow occasionally asked him if he had gone on dates over the weekend and whether he had sex with anyone. Swadow also mentioned repeatedly that his children called him "Daddy," that it took a special person to be called "Daddy," and that he was sure Hopkins' son would never call Hopkins "Daddy."

4. At Hopkins' wedding on June 25, 1988, Swadow was the only man who attempted to greet Hopkins in the receiving line by kissing him.

5. Sometime before 1990, while Hopkins was leaning back on a table and speaking on the telephone, Swadow pivoted an illuminated magnifying lens over Hopkins' crotch, looked through it while pushing the lens down, and asked "Where is it?"

6. Sometime before 1990, Swadow asked Hopkins, "On a scale of one to ten, how much do you like me?" Hopkins felt that the question was inappropriate. He had previously told Swadow that he objected to Swadow's "sexual overtones."

7. Sometime before 1990, Swadow bumped into Hopkins and said, "You only do that so you can touch me."

8. Sometime before 1990, during a conversation with Hopkins and a vendor about a recent airplane crash, Swadow looked at Hopkins and said that in order to survive with burning fuel on the surface of the water, Swadow would "find a dead man and cut off his penis and breathe through that." Hopkins told Swadow that he was offended by such a "sick" statement.

9. In 1989 or 1990, while Hopkins was showing the color darkroom to a supervisor's female guest, Swadow came in and asked "Are you decent?"

10. In 1991, while preparing to leave on a business trip from Hopkins' home, Swadow found an unloaded gun in the house and pointed it at Hopkins.

11. On August 1, 1991, Swadow squeezed into the one-person revolving door to the darkroom with another employee. Upon exiting the door, Swadow looked at Hopkins, who was in the darkroom, and asked, "Was it as good for you as it was for me?" The other employee looked very uncomfortable. Later, Swadow attempted to force himself into the same revolving door with Hopkins. He had made physical contact with Hopkins' back before Hopkins pushed Swadow away and told him that he "objected to it" and did not want to be in the darkroom with him.

12. Throughout 1993, Swadow regularly commented on Hopkins' appearance. For example, Swadow would say, "You look nice today," "You have a really pretty shirt on," or "You look so distinguished." Once he turned over Hopkins' tie and examined it.

13. On July 2, 1993, while Swadow and Hopkins were discussing a photographic negative, Swadow, with a "very peculiar" look on his face, commented that "orientation is subjective."

Late in 1989, Hopkins complained to his supervisors about Swadow's sexual harassment, particularly his inappropriate sexual comments and jokes. He identified the events described above in paragraphs 5 and 7. In response, BG & E conducted an internal investigation, which included interviews of Hopkins, Swadow, and nine other employees in the Photographic Services Unit. A manager's report concluded that "practically all of the Sections's employees engage in joking and comments of one kind or another" but that such comments were "not offensive" and were not "intended to be so." An employee case analyst, who could not conclude that Swadow's behavior was "sexually motivated," felt that Hopkins was trying to "hang" Swadow.

The matter was then referred to higher management, which assured Hopkins that Swadow was "under close scrutiny" and that "none of this would happen in the future." At the time, Hopkins appeared satisfied with BG & E's response. Without ultimately taking a position on whether Hopkins' charges were true, BG & E offered to interview him for a transfer to two different positions in other departments. Hopkins declined the offer out of a concern that his transfer would give his coworkers the impression that he was the one at fault.

Over a year later, Hopkins filed a charge of sexual discrimination with the Equal Employment Opportunity Commission (EEOC), and the EEOC issued a right to sue letter in September 1993. Hopkins filed this action in December 1993, alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964.

Following discovery, the district court granted BG & E's motion for summary judgment on both of Hopkins' claims. Hopkins v. Baltimore Gas & Elec. Co., 871 F.Supp. 822 (D.Md.1994). The court concluded that same-gender sexual harassment is not actionable under Title VII and, alternatively, that the harassment of which Hopkins complained did not occur "because of" Hopkins' gender. Id. at 834-35. With respect to Hopkins' retaliation claim, the court concluded that he had failed to show any "adverse employment action." Id. at 836-37. This appeal followed.

II

Hopkins first argues that the district court erred in holding that same-gender sexual harassment is not actionable under Title VII. In entering summary judgment for BG & E, the district court concluded that Title VII does not provide a cause of action for an employee who has been subjected to sexual harassment by a supervisor or co-worker of the same gender. 871 F.Supp. at 834. The court's reasoning focused on Congress' purpose in enacting Title VII and the statute's language:

Title VII prohibits discriminatory conduct on the basis of gender and "evinces a congressional intent 'to strike at the entire spectrum of disparate treatment of men and women.' " Where, as here, the alleged harasser and the alleged victim are both of the same gender, the language of the statute would be strained beyond its manifest intent were the Court to hold that under these facts there has been discrimination "because of ... sex".

Id. (alteration in original) (citations omitted).

In deciding the question of whether same-gender sexual harassment is...