Mink v. Barth Electric Co. Inc

• Decision Date: 02 February 2010
• Docket Number: No. l:08-cv-561-SEB-JMS.,l:08-cv-561-SEB-JMS.
• Citation: 685 F.Supp.2d 914
• Parties: Christina MINK, Plaintiff, v. BARTH ELECTRIC CO., INC., Defendant.
• Court: U.S. District Court — Southern District of Indiana

685 F.Supp.2d 914

Christina MINK, Plaintiff,

v.BARTH ELECTRIC CO., INC., Defendant.

No. l:08-cv-561-SEB-JMS.

United States District Court,

S.D. Indiana,

Indianapolis Division.

Decided: Feb. 2, 2010.

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Donald Francis, Jr., Jeffrey Stuart Ankrom, Thomas Allen Berry, Berry & Domer, Mary M. Runnells, Robert C. Price Price & Runnells, Bloomington, IN, for Plaintiff.

Anne L. Cowgur, Christopher R. Taylor Jeffery M. Mallamad, Bingham McHale LLP, Indianapolis, IN, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

SARAH EVANS BARKER, District Judge.

This cause is before the Court on Defendant's Motion for Summary Judgment [Docket No. 45], filed on July 2, 2009 pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56.1. Plaintiff Christina Mink, asserts this claim against her former employer, Defendant, Barth Electric Co., Inc. ("Barth"), for its allegedly discriminatory actions towards her based on her sex, including subjecting her to a hostile working environment, and for allegedly retaliating against her for engaging in protected activity, all in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. For the reasons detailed below, we GRANT Defendant's Motion for Summary Judgment.¹

Factual Background

Barth is a family-owned and family-operated electrical contractor headquartered in Indianapolis, Indiana, that serves both commercial and residential customers. Ms. Mink entered Barth's electrician's apprenticeship program in June of 1999 and was employed at Barth for approximately six years thereafter as a union electrician. During that time, Ms. Mink worked at more than twelve job sites, and her longest period of employment at any single job site was at the Circle Center Mall ("the Mall") located in downtown Indianapolis. Ms. Mink worked at the Mall for slightly more than two years, from February 2005 to April 2007, her final two years of employment with Barth. Throughout her employment with Barth, Ms. Mink received high marks on each of the progress reports completed by her supervisors. See PL's Exh. 1.

When she worked at the Mall, Ms. Mink's foreman was Steve Carpenter, who reported to Field Superintendent Doug Arthur and Contract Manager Steve Owen. Mr. Arthur met with Mr. Carpenter approximately eight to twelve times per year for oversight and coordination purposes, but they never worked together on a day-to-day basis. Deposition of Douglas Arthur ("Arthur Dep.") at 33-34; Deposition of Steve Carpenter ("Carpenter Dep.") at 26. Mr. Arthur and Mr. Owen both reported directly to Barth's President, Mike Barth III. Def.'s Interog. Ans. No. 3. As a foreman, Mr. Carpenter's job responsibilities included ordering materials, ensuring that the work was executed correctly, and supervising apprentices as well as journeymen. Carpenter Dep. at 28-29. The only other Barth employee who worked directly with Ms. Mink and Mr. Carpenter at the Mall during the time the events occurred which culminated in this litigation transpired was Max Davis.

Background Information on the Apprenticeship Program

The electrician's union apprenticeship program in which Ms. Mink was enrolled included five years of required training. For the first two years, participants were required to perform forty hours of work on the job each week, plus attend a training session every other Saturday. During the second and third year, the schedule changed to one day of classroom work every other week during the work week. Throughout the third year, apprentices were also required to attend classes every Saturday until they completed the required credits to receive an AAS degree. Affidavit of Christina Mink ("Mink Aff.") ¶1.

Ms. Mink states that the training was very intense, both physically and mentally. Although she spent a significant amount of time in the classroom, the vast majority of her training came from on-the-job experience received while working with journeymen electricians at various job sites. Ms. Mink testified by affidavit that it was necessary for her to practice her skills every day so that the procedures involved in performing the required tasks became second nature to her. Working with live electricity requires confidence, which Ms. Mink testified is gained by repetitively performing tasks. According to Ms. Mink, during the five years of training she was supposed to be exposed to a wide variety of situations and have the opportunity to continually practice the techniques she was learning so that she could perfect the procedures. Id. ¶¶ 2-3.

Plaintiffs Allegations of Sexual Harassment and Retaliatory Behavior

During the time that Mr. Carpenter was her foreman, Ms. Mink testified by affidavit that in contrast to the expected learning process she "was exposed to the opposite of apprenticeship training," that her "learning stopped" and was instead treated like Mr. Carpenter's "pet, or a mule, and was expected to follow him around, stand behind him and not ask questions." Id. ¶ 4. According to Ms. Mink, this treatment worsened in the fall of 2006 and occurred in retaliation "for fighting him off, or telling him off, or not going along with his games." Id. Ms. Mink contends that Mr Carpenter would "physically wrench" ladders and other heavy objects she was carrying, pinch her "hard enough to leave bruises," and send her off on "gofer" errands back and forth between the material room and the job site, which at times were up to a mile apart. Id.; Mink Dep. at 50. Ms. Mink contends that she began to complain to Mr. Carpenter that she had effectively "stopped being an electrician" because she was unable to practice her skills because he would not give her the work. Mink Aff. ¶ 4. She also expressed her concern to her co-worker, Max Davis, that she would lose all of the electrician's skills she had learned during her apprenticeship, if Mr. Carpenter kept assigning her tasks that were unrelated to her training. Id.; Davis Dep. at 39.

Following her complaints, Ms. Mink claims that Mr. Carpenter began to put her into dangerous situations for which she was neither prepared nor capable of performing, either because of her lack of recent hands-on electrical work or because of her small physical size. For example, in December of 2006, Mr. Carpenter sent Ms. Mink to work on live 277-volt lighting despite allegedly being told by his supervisors not to perform such work with live current. Mink Dep. at 275-76. Ms. Mink asserts that Mr. Carpenter knew she was not equipped to perform such a task because her skills had atrophied due to lack of use and that he was merely punishing her for complaining. Mink Aff. ¶ 5. Ms. Mink ended up receiving a serious cardiac shock. Mr. Carpenter instructed her to go home and put ice on her injured arm, but she chose to seek treatment at the emergency room. Mink Dep. at 276.

As a result of the electrocution, Ms. Mink was required to wear a sling to support her arm. However, she contends that Mr. Carpenter told her that the sling would embarrass Barth and that she should remove the sling and put her hand in her pocket to support her arm. On that same day, Ms. Mink claims that after lunch she was in a secluded stairway in the parking garage and Mr. Carpenter attacked her. Ms. Mink testified by deposition that she ended up down on her knees, yelling, "What the hell are you doing? I'm one-armed," to which Mr. Carpenter allegedly replied, "I know, that's the point." Id. at 46. Ms. Mink further testified that, on another occasion, Mr. Carpenter intentionally shook a twelve-foot ladder on which Ms. Mink was standing that was even more precarious by virtue of being on top of a platform twenty to thirty feet in the air. Id. at 51. In her deposition, Ms. Mink testified that Mr. Carpenter once came up behind her while she was working on an exposed panel with live electricity, grabbed her, and pretended like he was going to push her into the panel. Id. at 71. Ms. Mink alleges that, on a separate occasion, she was on the roof of a building and Mr. Carpenter grabbed her by the shirt and pretended that he was going to throw her off of the roof. Id. at 73.

During the fall of 2006, Ms. Mink contends Mr. Carpenter's sexual harassment increased in quantity and severity.² According to Ms. Mink, since the spring of 2005, Mr. Carpenter had periodically touched or tickled her on the leg, pinched her thighs, or poked her in the ribs with ceiling wire, while she would be working on the upper rungs of a ladder. She had mentioned this behavior to her co-worker, Mr. Davis, who told her that Mr. Carpenter did similar things to him as well. Mink Dep. at 7-11. Ms. Mink alleges that, beginning in the fall of 2006, Mr. Carpenter's harassment became worse. Ms. Mink contends that, at that point, Mr. Carpenter began to pin her to her desk and put his hands inside her bra. Ms. Mink testified that this behavior occurred on approximately fifty occasions during her employment with Barth. Id. at 33-35, 42. She also alleges that Mr. Carpenter wrestled her to the ground on two occasions. Id. at 205. In April 2007, after she had asked him to stop harassing her, he allegedly refused to let her eat lunch or have any break periods. Id. at 244, 290-91. According to Ms. Mink, "If you in any way did what [Mr. Carpenter] didn't want you to do, he made you pay. I mean, you had to answer for it." Id. at 48. Plaintiff's Complaints to Defendant

On Friday, April 13, 2007, according to Ms. Mink approximately two years after Mr. Carpenter first began harassing her Ms. Mink telephoned Barth's EEO Officer, Teresa Fahrbach, and reported that Mr. Carpenter was subjecting her to "outrageous behavior." Affidavit of Teresa Fahrbach ("Fahrbach Aff.") ¶ 4. When Ms. Fahrbach asked what she meant, Ms. Mink responded that she had been missing a lot of work and Mr. Carpenter had been covering for her, but that he told her that he had control over whether she kept her job. Ms. Mink...