Kotcher v. Rosa and Sullivan Appliance Center, Inc.

• Decision Date: 24 February 1992
• Docket Number: D,No. 31,31
• Citation: 957 F.2d 59
• Parties: 58 Fair Empl.Prac.Cas. (BNA) 310, 58 Empl. Prac. Dec. P 41,312, 60 USLW 2619 Pamela KOTCHER and Barbara Davis, Plaintiffs, Pamela Kotcher, Plaintiff-Appellant, v. ROSA AND SULLIVAN APPLIANCE CENTER, INC., and Herbert Trageser, Defendants-Appellees. ocket 91-7284.
• Court: U.S. Court of Appeals — Second Circuit

Page 59

957 F.2d 59

58 Fair Empl.Prac.Cas. (BNA) 310,

58 Empl. Prac. Dec. P 41,312, 60 USLW 2619

Pamela KOTCHER and Barbara Davis, Plaintiffs Pamela Kotcher, Plaintiff-Appellant, v. ROSA AND SULLIVAN APPLIANCE CENTER, INC., and Herbert Trageser, Defendants-Appellees.

No. 31, Docket 91-7284.

United States Court of Appeals Second Circuit.

Argued Oct. 10, 1991.

Decided Feb. 24, 1992.

Faith A. Seidenberg, Syracuse, N.Y. (Seidenberg, Strunk & Goldenberg, of counsel), for plaintiff-appellant.

Mark L. Suher, Rochester, N.Y. (Phillips, Lytle, Hitchcock, Blaine & Huber, and Gerald L. Paley, of counsel), for defendant-appellee.

McGuiness & Williams, Washington, D.C. (Robert E. Williams, Douglas S. McDowell, and Ann Elizabeth Reesman, Counsel of Record), for amicus curiae Equal Employment Advisory Council.

Before OAKES, Chief Judge, NEWMAN and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

Plaintiff-appellant Pamela Kotcher appeals from a judgment entered in the United States District Court for the Northern District of New York, Thomas J. McAvoy, Judge, dismissing her claim under Title VII, 42 U.S.C. § 2000e et seq. This case arises from Kotcher's allegations that defendant-appellee Herbert Trageser, the manager of the Oswego branch store of defendant-appellee Rosa and Sullivan Appliance Center, Inc., sexually harassed her during her employment with Rosa and Sullivan. Although the district court found that Trageser's conduct created a "hostile work environment" sufficient to constitute a viable Title VII claim, it refused to impose liability on Rosa and Sullivan because it found that once Trageser's conduct was reported to Rosa and Sullivan's head office, the company took prompt and effective action to remedy the situation. Thus, the court held, Rosa and Sullivan was not liable for Trageser's actions under Title VII. Kotcher now challenges this ruling on several grounds.

BACKGROUND

Pamela Kotcher was hired by Rosa and Sullivan on November 4, 1986, as a salesperson paid on a commission basis. Co-plaintiff Barbara Davis, who brought suit along with Kotcher in the district court but chose not to appeal, had been hired a few months earlier, in March of 1986, as a general office clerk paid at an hourly wage. Both women worked at the Oswego, New York store, which was managed by Herbert Trageser. Trageser supervised both employees until January of 1987, when Kotcher and Davis made formal complaints to the management of the corporation, alleging that Trageser had been sexually harassing them.

Both Kotcher and Davis accused Trageser of repeated episodes of sexual harassment, manifested by vulgar comments and gestures. This treatment included, but was not limited to, comments to the effect that if Trageser had the same bodily "equipment" as Kotcher, his sales would be more substantial. In addition, Trageser often pretended to masturbate and ejaculate at Kotcher behind her back to express his anger with her. This treatment took place on a regular basis, often in front of others at the store.

Davis was subjected to similar degrading treatment. Testimony at trial established that Trageser made numerous comments about her breasts and other parts of her body. On one occasion, Trageser even grabbed her, leaving bruises on her arms. He also made offensive gestures towards her when her back was turned, similar to the humiliating conduct he directed at Kotcher.

The district court found that neither Kotcher nor Davis welcomed this conduct, that each had immediately made it known to Trageser that his comments and conduct were not appreciated, that Trageser's comments and conduct were of such a degrading nature that "no ordinary person would welcome them", and that the comments and conduct constituted "exactly the sort of demeaning behavior that Title VII was intended to address." The district court further found that these acts were of sufficient pervasiveness to create a hostile environment, meriting protection under Title VII, and concluded that each plaintiff had established a violation of the statute.

The district court also concluded, however, that manager Trageser's actions did not impose liability on Rosa and Sullivan. It found, instead, that Rosa and Sullivan had provided its employees with a reasonable opportunity to complain about discrimination, because it had prominently posted notices and telephone numbers, informing employees that the head office was available to receive any grievances. The court found that neither Kotcher nor Davis promptly availed themselves of this procedure. Furthermore, it found that once the two employees did report Trageser's conduct, Rosa and Sullivan within 24 hours started an investigation into the complaints and then quickly transferred and demoted Trageser. Based on these findings, the district court held that Rosa and Sullivan had taken prompt and effective action to remedy the problem, and that this action established that Rosa and Sullivan did not tolerate or condone a sexually discriminatory work environment. Thus, the court concluded that Rosa and Sullivan was not liable to the plaintiffs.

In reaching this conclusion, the district court also found that Kotcher had been instructed by management to take time off while it conducted the investigation. There was conflicting testimony at trial as to whether Kotcher had been expected to return to work, but refused to do so; or whether she had been fired without explanation. The district court recognized this conflict, but did not determine the issue. Instead, the court simply noted that Kotcher did not work at Rosa and Sullivan following her complaint. It also noted that Kotcher had stated that she was in need of counseling and unable to work and that it was nine months before she was able to seek other employment.

In June of 1987, five months after his transfer, Trageser was returned to the Oswego store and reinstated as manager.

DISCUSSION

Title VII, 42 U.S.C. § 2000e et seq., provides redress against employers who discriminate against individuals in the work place. A plaintiff seeking relief for sex discrimination can proceed under two theories: (1) "quid pro quo" and (2) "hostile work environment". See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 64-65, 106 S.Ct. 2399, 2404-2405, 91 L.Ed.2d 49 (1986). Although Kotcher and Davis proceeded solely on the "hostile work environment" theory, a brief review of both theories helps to illustrate the distinctions between the claims and the proofs they require.

Under a "quid pro quo" theory, the plaintiff-employee must establish that she was denied an economic benefit either because of gender or because a sexual advance was made by a supervisor and rejected by her. Id. If the plaintiff can show that she suffered an economic injury from her supervisor's actions, the employer becomes strictly liable without any further showing of why the employer should be responsible for the supervisor's conduct. The supervisor is deemed to act on behalf of the employer when making decisions that affect the economic status of the employee. From the perspective of the employee, the supervisor and the employer merge into a single entity.

In contrast, a "hostile work environment" theory requires that the plaintiff prove not only actionable sex discrimination, but also that the supervisor's actions should be imputed to the employer. To show actionable sex discrimination, the plaintiff must first prove that discriminatory harassment occurred with respect to "terms, conditions, or privileges" of employment, 42 U.S.C. § 2000e-2(a)(1), though she need not show that she lost any tangible job benefits as a result thereof. A court should consider the offensiveness of the defendant's conduct, its pervasiveness, and its continuous nature. Carrero v. New York City Housing Authority, 890 F.2d 569, 577 (2d Cir.1989). The harassment at issue must be "sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment." Vinson, 477 U.S. at 67, 106 S.Ct. at 2405. The incidents must be repeated and continuous; isolated acts or occasional episodes will not merit relief. Carrero, 890 F.2d at 577 (citing Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1189 (2d Cir.1987)). The conduct complained of must be unwelcome. Vinson, 477 U.S. at 68, 106 S.Ct. at 2406. Ultimately, whether there is a valid claim under Title VII depends on the totality of the circumstances. See Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir.1986).

In addition to establishing that she was subjected to a hostile employment environment, plaintiff must establish that the conduct which created the hostile situation should be imputed to the employer. Vinson, 477 U.S. at 70-71, 106 S.Ct. at 2407. The Supreme Court in Vinson did not specify under what circumstances an employer would become liable, but instead directed the lower courts to draw from traditional agency principles to decide that liability. Id. at 72, 106 S.Ct. at 2408. We have stated that a plaintiff must prove that the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it. Snell, 782 F.2d at 1104.

In this case, the district court found that Trageser's conduct was sufficiently offensive, pervasive, and continuous to create a hostile work environment and to establish the first element of the claim. We agree. Trageser's behavior is certainly one type of egregious conduct that Title VII was enacted to correct.

On the second element, however, the district court refused to find that Rosa and Sullivan should be liable for Trageser's offensive behavior. Applying the Vinson guidelines, it found that Rosa and Sullivan's established procedure for reporting discrimination, as well as its swift response once the plaintiffs had invoked the procedure, demonstrated that the company did not tolerate or condone a sexually discriminatory work environment. Thus, the court held, Rosa and Sullivan...