Lasher v. Day & Zimmerman Intern., Inc.
| Citation | 516 F.Supp.2d 565 |
| Decision Date | 24 September 2007 |
| Docket Number | No. C/A6:06-1681-GRA-BHH.,C/A6:06-1681-GRA-BHH. |
| Court | U.S. District Court — District of South Carolina |
| Parties | Pauline E. LASHER, Plaintiff, v. DAY & ZIMMERMAN INTERNATIONAL, INC., Defendant. |
John Michael Brown, John Michael Brown Law Office, Augusta, GA, Beattie B. Ashmore, Price Paschal and Ashmore, Greenville, SC, for Plaintiff.
Penny Correll Wofford, Wade Edward Ballard, Ford and Harrison, Spartanburg, SC, for Defendant.
This matter is before the Court for a review of the magistrate's Report and Recommendation made in accordance with 28 U.S.C. § 636(b)(1)(A) and Local Rule 73.02(B)(2)(g), D.S.C., and filed on June 15, 2007. Plaintiff filed this action on September 8, 2005, claiming that Defendant employer was liable for sexual harassment, gender discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964, and state law claims of intentional infliction of emotional distress, negligent hiring, and negligent retention.
Defendant filed a Motion for Summary Judgment on December 4, 2006. Plaintiff filed a response to Defendant's motion on January 5, 2007. Defendant filed a reply brief on January 12, 2007. The magistrate recommends granting Defendant's Motion for Summary Judgment as to Plaintiff's state law claims and hostile work environment claims related to the conduct of Tom Sims. The magistrate, however, recommends that Defendant's Motion for Summary Judgment be denied as to Plaintiff's hostile work environment claim and retaliation claim related to the conduct of Guy Starr. For the reasons stated herein, the magistrate's Report and Recommendation is hereby adopted.
The magistrate makes only a recommendation to this Court. The recommendation has no presumptive weight, and responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270-71, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). This Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and this Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). This Court may also "receive further evidence or recommit the matter to the magistrate with instructions." Id. In the absence of specific objections to the Report and Recommendation, this Court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198 (4th Cir.1983). Defendant filed objections to the Report and Recommendation on June 29, 2007. Plaintiff filed a response that urged adoption of the Report and Recommendation as written.
Defendant objects that the record does not support the magistrate's conclusions that: (1) Plaintiff presented a prima facie case for her hostile work environment claim related to the conduct of Guy Starr; (2) Plaintiff presented a prima facie case for her retaliation claim; and (3) Defendant's proffered reasons for Plaintiff's lay-off were pretextual. The Court will address each objection separately.
As the magistrate correctly noted, to state a claim for hostile work environment, "a female plaintiff must prove that the offending conduct (1) was unwelcome, (2) was based on her sex, (3) was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment, and (4) was imputable to her employer." Ocheltree v. Scollon Prod., Inc., 335 F.3d 325, 331 (4th Cir.2003). The defendant argues that the magistrate erred by finding a genuine issue of material fact for each of the latter three elements.
Defendant argues that Guy Starr's alleged conduct was not based on Plaintiff's sex. First, Defendant addresses Guy Starr's alleged comment that Plaintiff was a "token interview, a minority interview." Defendant argues that this comment is inadmissible hearsay because "Plaintiff is clearly quoting statements made outside her presence and to a third party." Objections 4. Hearsay evidence may not be considered on a motion for summary judgment. Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921 (6th Cir.1999); Macuba v. Deboer, 193 F.3d 1316 (11th Cir.1999). However, the Court disagrees with Defendant's characterization of Plaintiff's deposition testimony as inadmissible hearsay.
Q. So, now, he calls you and mentions a job.
A. Yes.
Q. Pick up the narrative there and tell me how you came to work for Day and Zimmerman.
A. He asked — he said there was a position open and that they had a new president and he needed to — Guy Starr actually said that he needed to have a token interview, female interview with this president because they had government contracts.
Lasher Depo. 15. From the context, it is clear that Plaintiff was referring to a conversation between her and Starr. Later in the deposition she was asked about it again.
Q. You had mentioned earlier the word "token." Did he use that word specifically?
A. He used that word. He also used the word "minority."
Id. 54. Therefore, this was not inadmissible hearsay and was properly considered by the magistrate.
Defendant further argues that the "token interview" comment was intended to mean a minority interview, one that is rare or difficult to get. However, another reasonable interpretation is that a "token interview" is one with no chance of being hired. Still another reasonable interpretation is that a "token interview" is one given because of a person's minority status rather than due to merit. The fact that Defendant eventually hired Plaintiff does not render the other interpretations unreasonable as a matter of law.
Defendant argues that the magistrate should not have considered Guy Starr's alleged comments that women could not sell in the construction industry. Defendant points out that Plaintiff did not sell in the construction industry and that the comments were not made in Plaintiff's presence. Therefore, Defendant concludes, the comments could not have established a hostile work environment. The magistrate admitted that comments made outside the Plaintiff's presence do not state a claim for hostile work environment. However, the magistrate properly considered this statement as evidence of whether Guy Starr's conduct toward Plaintiff was motivated by the Plaintiff's sex.
Defendant objects that Plaintiff presented contradictory reasons for Guy Starr sending male co-workers with her on sales calls. In one affidavit, Plaintiff said that the co-workers were trying to help her develop the market place in Augusta, Georgia. Plaintiff and other witnesses claimed that Guy Starr sent male co-workers with her so that they could oversee her work and develop those clients without her. Harry Bouknight stated that this practice was demeaning and did not afford Plaintiff the latitude that male salespeople enjoyed to develop business relationships. Plaintiff's statements are not contradictory. According to Plaintiff, the co-workers wanted to help her develop the Augusta market. This does not call into question Plaintiff's assertion that Guy Starr wanted male co-workers to accompany her for his own reasons, which allegedly did not include helping the Plaintiff.
Defendant argues that because other female salespeople were not required to take male co-workers on sales calls, Guy Starr's sending male co-workers with Plaintiff could not have been based on her sex. This is a plausible argument that goes to the weight of the evidence, but not to its admissibility. At least two witnesses aside from the Plaintiff have testified that this was a demeaning practice intended to allow male co-workers to take over Plaintiff's accounts. A reasonable jury could conclude that even where Guy Starr did not treat other women this way, he treated Plaintiff in this manner because of her sex.
Defendant argues Guy Starr's comments that Plaintiff was "incompetent" and a "female door opener" do not create a hostile work environment. Defendant claims that Plaintiff was, in fact, incompetent and thus cannot complain of being labeled as such. The evidence shows that Starr made these comments in front of other team members. Even if Starr's assessment is correct, the decision to say this in the presence of an audience may have been calculated to create a hostile work environment for Plaintiff.
Defendant argues that "female door opener" was intended as a compliment to Plaintiff because she opened doors to new business opportunities. Witnesses for Plaintiff did not view it as a compliment. Furthermore, the term "female door opener" may be interpreted as describing someone who is simply window dressing or who can only be trusted with simple, menial tasks. The intended meaning is dependent on the context and circumstances in which the comment was made. The jury as fact finder can best make this determination.
Defendant argues that Starr had no input with regard to Plaintiff's salary, therefore, her salary is irrelevant to her claim. Given the plaintiff's admission that Carter, upon approval from Bouknight, not Starr, recommended salary increases, Lasher Dep. at 196-97, no reasonable jury could find that the plaintiff's salary proves that Starr acted improperly on account of the plaintiff's sex. Even if Starr wanted to lower the plaintiff's salary on account of her sex, he could not. Therefore, the defendant's objection is with merit. The plaintiff's salary is irrelevant to demonstrate that Starr acted improperly on account of the plaintiff's sex.
Even without evidence of the plaintiff's salary, there is a genuine issue of whether Starr's conduct was based on the plaintiff's sex.
A plaintiff must show that the harassment was both objectively and...
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