Kidwell v. Sheetz, Inc.

• Decision Date: 15 September 1997
• Docket Number: Civil Action No. 95-0083-H.
• Court: U.S. District Court — Western District of Virginia
• Parties: Darlene M. KIDWELL, Plaintiff, v. SHEETZ, INC., Fox Mountain, Inc., Michael Rinker, Robert Campbell, Defendants.

Page 1177

982 F.Supp. 1177

Darlene M. KIDWELL, Plaintiff, v. SHEETZ, INC., Fox Mountain, Inc., Michael Rinker, Robert Campbell, Defendants.

Civil Action No. 95-0083-H.

United States District Court, W.D. Virginia, Harrisonburg Division.

September 15, 1997.

James A. Klenkar, Hall, Monahan, Engle, Mahan & Mitchell, Winchester, VA, for Darlene M. Kidwell.

Glenn Milburn Hodge, Cathleen P. Welsh, Thomas E. Ullrich, Wharton, Aldhizer & Weaver, PLC, Harrisonburg, VA, for Michael Rinker.

Thomas J. Flaherty, Elizabeth A. Lalik, Hunton & Williams, McLean, VA, for Robert Campbell, Sheetz, Inc., Fox Mountain, Inc.

MEMORANDUM OPINION

MICHAEL, Senior District Judge.

Pursuant to 28 U.S.C. § 636(b)(1)(B), this court referred this Title VII, 42 U.S.C § 2000e et seq., action with supplemental State law claims to the Honorable B. Waugh Crigler, United States Magistrate Judge, for proposed findings of fact and a recommended disposition, subject to review by this court. On May 9, 1997, the Magistrate Judge filed his Report and Recommendation, which recommends granting defendants' motion for summary judgment in favor of all individual and corporate defendants on Count V (sexual assault and battery) and Count XII (defamation), and in favor of defendants Sheetz, Inc. ("Sheetz") and Fox Mountain, Inc. ("Fox Mountain") on Count VI (assault and battery) and Count XI (breach of contract). The Report also recommends denying summary judgment to defendants on Count I (quid pro quo sexual harassment), Count II (hostile work environment sexual harassment), Count III (retaliation), and Count VI (assault and battery) as to defendant Campbell. Defendant Rinker does not seek summary judgment on plaintiff's assault and battery claim against him.

Kidwell, Rinker and the remaining defendants filed Objections to the Report and Recommendation on June 6, June 4 and June 6, 1997, respectively. Said objections having been timely and appropriately lodged, this court has undertaken a de novo review of the case. Orpiano v. Johnson, 687 F.2d 44, 48 (4th Cir.1982).

After a thorough examination of the parties' objections, the supporting memoranda, the applicable law, the documented record, and the Report and Recommendation itself, this court partially adopts the Report and Recommendation but, because it considers certain of the parties objections well-taken, it declines to adopt the Magistrate Judge's recommended disposition of COUNTS I and VI for the reasons stated herein.

I. Factual Background

The Report and Recommendation thoroughly recounts the facts of this case, as stated by this court in a memorandum opinion of September 13, 1996 granting, in part, and denying, in part, defendants' motions to dismiss. Briefly stated, the plaintiff, Darlene M. Kidwell, formerly worked as a cashier for Sheetz and Fox Mountain. Kidwell claims that throughout her employment, she was subjected to unwelcome sexual harassment by defendants, Rinker and Campbell, the store manager and district manager, respectively.

According to plaintiff, Mr. Rinker regularly touched his genitals in her presence and in the presence of other female employees; he made repeated sexual remarks, such as "Ooh, look at what she's got," "It sure would be nice to be with her," and "It doesn't matter where I get my appetite as long as I eat at home,"; Mr. Rinker frequently read and commented upon pornography during work hours; Mr. Rinker intentionally pressed his genitals against plaintiff on one occasion; and Mr. Campbell engaged in unwelcome physical contact with plaintiff. When plaintiff protested or requested Messrs. Rinker and Campbell to stop touching her, she claims they retaliated against her: she was falsely accused of violating company policy and, allegedly on this pretext, terminated by Rinker and Campbell. Following her discharge, Ms. Kidwell filed a timely charge with the EEOC and thereafter commenced this multi-count Title VII action, with pendent State law claims.

II. Title VII Claims

Title VII provides, in relevant part, that "[i]t shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1). Sexual harassment is actionable, then, because it affects conditions of an individual's employment and it occurs because of the individual's sex. Sexual harassment can take two distinct forms. First, when a supervisor demands sexual consideration in exchange for job benefits Katz v. Dole, 709 F.2d 251 (4th Cir.1983) actionable "quid pro quo" harassment will lie. Spencer v. General Electric, Co., 894 F.2d 651 (4th Cir.1990). The second type of sexual harassment is that which creates an offensive or hostile work environment ("conditions of work"). Katz, 709 F.2d 251. Finally, retaliation for complaining of or seeking redress of Title VII violations is also actionable. Ross v. Communications Satellite Corp. 759 F.2d 355, 365 (4th Cir.1985).

A. Quid Pro Quo Sexual Harassment

Defendants' objections to the Magistrate's recommendation that summary judgment be denied on this claim are meritorious. Plaintiff fails to meet one crucial prong of the five-element prima facie test of Spencer v. General Electric, Co., 894 F.2d 651, 658 (4th Cir.1990) required to establish a presumption of quid pro quo sexual harassment. To be sure, Ms. Kidwell, a woman, (1) belongs to a protected group under Title VII; she alleges, at least, (2) that she was subjected to unwelcome sexual harassment; (3) that the harassment complained of was based upon sex; (4) that her reaction to the harassment affected tangible aspects of the compensation, terms, conditions, or privileges of her employment and that the acceptance or rejection of the sexual harassment was an express or implied condition to the receipt of a job benefit or cause of a tangible job detriment; and (5) that the employer knew or should have known of the harassment but took no effective remedial action.¹

Once a plaintiff makes out the prima facie case, "an inference that quid pro quo sexual harassment has occurred arises and the burden of production shifts to the defendant to rebut the presumption with legitimate, nondiscriminatory reasons for the employment decision in question." Id. at 659 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668(1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981)).

"If the presumption is rebutted, the burden of production returns to the plaintiff to show that the defendant's proffered nondiscriminatory reasons are pretextual and that the employment decision was based on a sexually-discriminatory criterion." Id. (citing Burdine, 450 U.S. at 256, 101 S.Ct. at 1095).

Defendants, Sheetz, Fox Mountain, and Mr. Campbell, argue in their instant objections that the plaintiff has failed to state a prima facie claim of quid pro quo sexual harassment under Katz and Spencer because she has offered no evidence that defendants demanded sexual favors from Ms. Kidwell in exchange for or in consideration of job benefits. Defendants premise this argument on Spencer's reasoning that quid pro quo harassment occurs only when "sexual consideration is demanded in exchange for job benefits." 894 F.2d at 658; see also, Katz, 709 F.2d at 254 (quid pro quo sexual harassment is "harassment in which a supervisor demands sexual consideration in exchange for job benefits....") Implicit in Spencer's and Katz' analyses is the very definition of the term quid pro quo, namely, "[w]hat for what; something for something. Used in law for the giving one valuable thing for another...." Black's Law Dictionary (Sixth Ed.) (West 1990) (A loose translation of "quid pro quo" as "this before that" gives a clearer understanding of the phrase.)

Taking all inferences in favor of the plaintiff, Ms. Kidwell has adduced evidence tending to indicate some connection between the alleged quid pro quo "`sexual conduct and some economic benefit or detriment'" Hott v. VDO Yazaki Corp., 922 F.Supp. 1114 (W.D.Va.1996) (quoting Walker v. Sullair Corp., 736 F.Supp. 94, 100 (W.D.N.C.1990) (citing Spencer, 894 F.2d at 658)). She has presented evidence of several job detriments she allegedly suffered when she rejected what she interpreted as defendants' sexual overtures: a heavier workload, less favorable scheduling, unfair performance evaluations which affected bonuses, and termination. Pl's Mem. at p. 23 (citing Kidwell deposition testimony); Pl's Mem. at p. 14 (citing Kidwell Dep. at p. 51-53). Missing from the record, however, is any evidence that Rinker or Campbell ever actually demanded sexual favors or asked Kidwell out for dates; the plaintiff concedes as much. (Kidwell Dep. at 51-53) While evidence of alleged job detriments may be relevant to the fourth prong of Spencer's prima facie test, it does not satisfy the second such prong.

To be sure, under Hott, the court at summary judgment is invited to look to "a broad spectrum of circumstances," 922 F.Supp. at 1123, in finding that a plaintiff has suffered to a job detriment. As well, Canada v. Boyd Group, Inc., 809 F.Supp. 771 (D.Nev.1992) contains language supporting the notion that evidence of hostile work environment sexual harassment also might support a simultaneous claim of quid pro quo sexual harassment. Id. at 777 ("[I]t is certainly feasible that the factual basis for a quid pro quo allegation and a hostile environment allegation may overlap.").

This court is of the opinion, however, that plaintiffs claim and supporting evidence appear to concern purely hostile work environment sexual harassment. The court is persuaded by other language in Canada to the effect that:

In the case at bar, [p]laintiff has presented no evidence to support a claim that any supervisor used his authority to extort sexual favors from her. Pl...