Levendos v. Stern Entertainment, Inc.

• Decision Date: 09 November 1988
• Docket Number: No. 88-3079,88-3079
• Citation: 860 F.2d 1227
• Parties: 48 Fair Empl.Prac.Cas. 443, 48 Empl. Prac. Dec. P 38,420 Elizabeth LEVENDOS, Appellant, v. STERN ENTERTAINMENT, INC. and Stern Entertainment System, Inc.
• Court: U.S. Court of Appeals — Third Circuit

Page 1227

860 F.2d 1227

48 Fair Empl.Prac.Cas. 443,

48 Empl. Prac. Dec. P 38,420

Elizabeth LEVENDOS, Appellant, v. STERN ENTERTAINMENT, INC. and Stern Entertainment System, Inc.

No. 88-3079.

United States Court of Appeals Third Circuit.

Argued June 22, 1988.

Decided Nov. 9, 1988.

Ken Gormley (argued), Mansmann, Cindrich and Titus, Pittsburgh, Pa., for appellant.

Ronald L. Hicks, Jr. (argued), Dennis Unkovic, Joseph A. Vater, Jr., Meyer, Unkovic and Scott, Pittsburgh, Pa., for appellee.

Before GIBBONS, Chief Judge, and HIGGINBOTHAM, Circuit Judge, and ROTH, District Judge. ^*

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

Elizabeth Levendos appeals the summary judgment entered by the district court in favor of Appellees Stern Entertainment, Inc. and Stern Entertainment Systems, Inc., in an action alleging discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Secs. 2000e-2000h-6 (1982).

We hold that appellant raised a genuine issue of material fact regarding whether she was constructively discharged from her job. Accordingly, we will vacate the district court's order granting summary judgment in favor of Appellees, and remand the case to the district court for further proceedings.

I.

Beginning in 1979, Elizabeth Levendos ("Levendos") worked as a waitress at Les Nuages, a Pittsburgh restaurant owned by Stern Entertainment, Inc. and Stern Entertainment Systems, Inc. ("Stern"). Stern promoted Levendos to the positions of maitre'd and pastry chef in or about September, 1981. Joint Appendix ("App.") at 9-10.

According to an affidavit filed by Levendos, she "was the only female in a management position," and that "[a]lthough males who had previously held th[e] position of maitre'd were included in management meetings, [she] was not [so] included...." App. at 46 (affidavit of Elizabeth Levendos). She further stated that the general manager of the restaurant "boasted that [Levendos] would not be there long," id. at 47, that "management ... told other employees that [she] did not fit the 'mold' for maitre'd because [she] was a woman," id., that the chef "was asked ... by [the owner] to find a male to replace [her]," id., that "management ... falsely accusing [her] of stealing, drinking and fraternizing with employees," id., and that "[o]ne evening [she] discovered wine bottles placed in [her] locker ... to make it appear as if [she] were stealing." Id.

An affidavit filed by Robert Roth, one of Levendos's co-workers, stated that Levendos "had an excellent reputation at the restaurant[, that c]ustomers frequently came in and asked for her specifically," App. at 51 (affidavit of Robert Roth), and that "she was written up in the Pittsburgh Press for her excellent work." Id. at 52. He stated, moreover, his belief that the owner "liked the image of a male staff," id., that the chef "acknowledged that [there] was a plan to get rid of her, and replace her with a male friend of [the chef]," id., and that the owner refused to meet with her. Id.

Both the affidavits included the affiants' view that Stern management disliked women in general and viewed them as inferior. App. at 47, 54. Moreover, in the complaint that Levendos filed with the Equal Employment Opportunity Commission ("EEOC"), she alleged that she was not allowed to order supplies although a male manager was able to order them, id. at 13, and that she was replaced by a male friend of the chef. Id.

On April 22, 1982, Levendos resigned her position by letter to the owner, explaining that her action was precipitated because he suspected her of stealing. App. at 44. ¹ She filed the instant action on December 21, 1984. Id. at 6. Upon defendants' motion for summary judgment, the district court found that even if the facts Levendos alleged were true, they did not establish, as a matter of law, that she was constructively discharged from her position. The court therefore granted summary judgment in favor of Stern. Levendos v. Stern Entertainment Inc., et al., Nos. 84-3051 and 84-3053, slip op. at 2 (W.D.Pa. Sept. 9 1987), reprinted in App. at 61. ²

II.

We have often stated that in our review of a summary judgment, we must employ the same test that the district court applies. See Jackson v. University of Pittsburgh, 826 F.2d 230, 232 (3d Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (in banc), cert. dismissed, --- U.S. ----, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). Pursuant to the Federal Rules of Civil Procedure, a district court may grant a summary judgment motion only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). As we were reminded in Jackson, " '[m]aterial' facts are those 'that might affect the outcome of the suit under the governing law ...' ", 826 F.2d at 232 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)) and

[i]nferences to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion. The non-movant's allegations must be taken as true and, when these assertions conflict with those of the movant, the former must receive the benefit of the doubt.

Jackson, 826 F.2d at 232 (quoting Goodman, 534 F.2d at 573) (footnote omitted).

In this case, as in Jackson and Chipollini, we examine the legal sufficiency of facts that underlie an employment discrimination action and that are presented to us in the procedural posture of a summary judgment motion. The "governing law", Anderson, 477 U.S. at 248, 106 S.Ct. at 2510, in a Title VII case is well-established and consists of shifting burdens of proof. In the three-part analysis, "the plaintiff has the [initial] burden of proving by the preponderance of the evidence a prima facie case of discrimination." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)). ³ This Court reiterated the elements of a Title VII plaintiff's prima facie case under the Burdine/McDonnell Douglas holdings in Chippolini:

In the absence of direct evidence a plaintiff may establish a prima facie case of discrimination by proving by a preponderance of the evidence that (1) he belongs to a protected class; (2) he was qualified for the position; (3) he was dismissed despite being qualified; and (4) he ultimately was replaced by a person [in a non-protected class so as] to permit an inference of ... discrimination.

814 F.2d at 897.

In Chippolini, however, we further held that in a motion for summary judgment, "[t]he burden to demonstrate the absence of material fact issues remains with the moving party regardless of which party would have the burden of persuasion at trial." 814 F.2d at 896. ⁴ Thus, although Levendos has the ultimate burden of persuasion at trial, Stern, as the moving party on summary judgment, has the burden on this motion of demonstrating that Levendos did not establish the presence of a genuine issue of material fact regarding her prima facie case. In this case, therefore, the precise question that requires resolution is this: did Stern meet its burden of demonstrating that Levendos failed to raise genuine issues of material fact regarding her prima facie case of sex discrimination? ⁵

Levendos's affidavit and the other record evidence leave no doubt that she has established the first, second and fourth elements of her prima facie case. Levendos is female and thus indisputably belongs to a protected class. It is also undisputed that she was replaced by a male. That she was qualified for her position as maitre'd and pastry chef does not appear to be contested, and is, moreover, amply evidenced by the fact of her promotion, and the favorable press and customer comments mentioned in the affidavits.

The third prong of Levendos's prima facie case is the one possible material fact that could be disputed: whether she was dismissed despite being qualified. Levendos does not deny that she submitted a letter of resignation, but contends nevertheless that she was discharged from her position. Relying on the doctrine of "constructive discharge," she argues that her affidavit describes several incidents that create a genuine issue of material fact with respect to whether she was in effect dismissed from her job.

This Court, as well as most of the other courts of appeals, have decided that "acts of discrimination in violation of Title VII can make working conditions so intolerable that a reasonable employee would be forced to resign," Goss v. Exxon Office Systems, Co., 747 F.2d 885, 887 (3d Cir.1984), and therefore entitle the employee to damages for wrongful termination in addition to damages for the pretermination discrimination. See id. at 889. While these courts generally agree that "constructive discharge" is a heavily fact-driven determination, at least two, and possibly three, different legal standards have emerged to aid in determining whether constructive discharge has occurred. Some courts have adopted a test based on an inquiry into the motive of the employer, holding, for example, that "the employer's actions must have been taken with the intention of forcing the employee to quit." Johnson v. Bunny Bread, Co., 646 F.2d 1250, 1256 (8th Cir.1981); see also Martin v. Citibank, N.A., 762 F.2d 212, 221 (2d Cir.1985) (employer must deliberately make employee's working...