Sarff v. Continental Express

• Decision Date: 11 August 1995
• Docket Number: Civ. A. No. G-94-731.
• Citation: 894 F. Supp. 1076
• Parties: Mark David SARFF v. CONTINENTAL EXPRESS.
• Court: U.S. District Court — Southern District of Texas

894 F. Supp. 1076

Mark David SARFF v. CONTINENTAL EXPRESS.

Civ. A. No. G-94-731.

United States District Court, S.D. Texas, Galveston Division.

August 11, 1995.

COPYRIGHT MATERIAL OMITTED

Darah Sue Headley, Houston, TX, for plaintiff.

Vicki A. Birenbaum, Sewell & Riggs, Houston, TX, for defendant.

ORDER ON MOTION FOR SUMMARY JUDGMENT

KENT, District Judge.

This is an employment discrimination and wrongful termination suit in which Plaintiff Mark David Sarff ("Sarff") has filed suit against Defendant Continental Express ("Continental") pursuant to Title VII, 42 U.S.C. § 2000e et seq. Sarff alleges that his firing by Continental was in retaliation for complaints he made about alleged sexual harassment in the workplace and that he was discriminated against by Defendant because he is a man. Before the Court now is Defendant's Motion for Summary Judgment. For the reasons stated below, the Court finds that Plaintiff's case fails as a matter of law and that Defendant's Motion for Summary Judgement should be GRANTED.

1. Facts

The facts of this sad farce suggest to the Court that the friendly skies may indeed be considerably friendlier — and certainly more bizarre — on the ground than in the sky. Plaintiff Sarff began work for the predecessor of Continental as a customer service agent in Springfield, Illinois in 1986, and he transferred to Continental's operations at Ellington Field in Texas in 1990. It is clear that almost from the beginning of his employment by Continental, Sarff received written customer complaints about his on-job behavior and attitude towards Continental's customers. During Sarff's first two years at Ellington Field, Lisa Kunkel was General Manager. On several occasions, Kunkel warned Sarff orally and in writing about customer complaints and that his conduct toward customers had to improve, or his job would be at risk.

Throughout the 1992-93 time frame, the record clearly indicates that Sarff's job performance seriously deteriorated. On November 5, 1992, a customer wrote Continental and complained of Sarff's "surly and condescending attitude," which "created much ill will" among a group travelling to Mexico that Sarff was in charge of handling. (See Defendant's Motion, at 5). On November 11, 1992, Continental received similar written complaints from another customer travelling to Mexico with a group. That customer remarked that Sarff's conduct was "unprofessional" and "embarrassing for everyone involved."

Such complaints continued throughout 1993. In January, 1993, a customer wrote that Sarff's lack of "professionalism and maturity" had created an extremely poor public relations problem for Continental. On April 27, 1993, Continental received yet another letter from a customer complaining about Sarff's "very rude" and "condescending" treatment of her 78-year old father. The writer observed that the incident was not the first time Sarff had been rude to her. A similar letter was received by Continental around June 30, 1993.

These repeated customer complaints led Diane Duffy, Defendant's Regional Director of Customer Service, to advise Sarff that if his behavior did not improve, appropriate steps would have to be taken against him. By all accounts, however, the problems continued to occur, and on July 22, 1993, Sarff met with Ellington Field's General Manager — Robert Segari — to review his performance appraisal, which was very negative. The appraisal contained warnings that Plaintiff "was very antagonistic/provokes customers & coworkers," that he "receives too many customer complaints," (emphasis in original), and that he shows "no respect, compassion, caring for customers." (Defendant's Motion, at 6). Apparently undeterred by such a review, however, Sarff's behavior received yet another complaint from a Continental customer on August 26, 1993.¹

Sarff's continued rudeness and inappropriate behavior on the job culminated in a written termination warning notice on September 1, 1993. In the notice, Segari advised Sarff that "any further infraction of the company's policies or procedures will result in immediate dismissal from employment by Continental Express." Eight days later, on September 9, 1993, Sarff first reported to Sigari that he had been subject to incidents that he interpreted as sexual harassment on the job. Sarff told Segari that he had found a pair of earrings placed in a coffee mug in his mailbox at work. In Sarff's view, whoever placed the earrings in his coffee mug "was impugning me as a man in general." (Sarff Deposition, at 185). Sarff claims that prior to the earring event, he had found Calvin Klien ads clipped from Cosmopolitan and Vogue magazines in his mailbox, one a week for seven weeks. (Id. at 191). He claims that the ads began appearing in his mailbox in early August, 1993, and were also intended to "impugn his manhood."

One week later, Sarff called Dan Casey, Associate General Counsel for Continental Airlines, a separate corporation from Continental Express, and reported that a brush was left in his coffee mug. Defendant admits that such a call was entirely appropriate in the circumstance, but the event apparently triggered a negative reaction from Sarff's immediate supervisor, Dave Rescino, who questioned why he had called the legal department to report a problem.

By all accounts, the problems at Continental Express quickly escalated to the point that Plaintiff was fired by Defendant. On September 22, 1993, Segari conducted an investigation of the earring allegation and then held a mandatory station meeting, at which he reviewed with the employees the company's written policy regarding sexual harassment. Almost incredibly, on the very day following this seminar, Sarff made a gesture of unzipping his pants to Barbara Fondry, a female employee and supervisor. More importantly, six weeks following this incident, Plaintiff Sarff's conduct entered a new realm that this court can only describe as bizarre. On November 6, 1993, Sarff and Fondry — who both appear to have behaved throughout in an exceptionally inappropriate and highly immature manner — were witnessed "rubbing" against one another, as Ms. Fondry was observed to sit on Plaintiff's lap and "wiggle." Apparently in response to this suggestive behavior, Sarff invited Ms. Fondry to "lick my scrotum," to which Ms. Fondry replied that he should grow one. (Defendant's Motion, at 11). This sexual horseplay culminated later that day when, in the context of a discussion about tatoos, Sarff offered that if Ms. Fondry would shave her vagina and obtain a tatoo there, he would lick the scabs that formed in her sexual areas as the tatoos healed. (Id.). This behavior was reported to Segari, and Sarff was terminated on November 12, 1993, following an investigation.

2. Standard of Review

Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A fact is material if its resolution in favor of one party might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists if there is a genuine issue for trial that must be decided by the trier of fact. In other words, summary judgment should not be granted if the evidence indicates that a reasonable fact-finder could find in favor of the nonmoving party. Id. See also Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

In ruling on a Motion for Summary Judgment, the Court must accept the evidence of the nonmoving party and draw all justifiable inferences in his favor. Credibility determinations, weighing of the evidence, and the drawing of reasonable inferences are left to the trier of fact. Anderson v. Liberty Lobby, supra, 477 U.S. at 255, 106 S.Ct. at 2513.

Under Fed.R.Civ.P. 56(c), the moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once this burden is met, the burden shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita, supra, 475 U.S. at 585-87, 106 S.Ct. at 1355-56; Leonard v. Dixie Well Serv. & Supply, Inc., 828 F.2d 291, 294 (5th Cir.1987).

Where the moving party has met its Rule 56(c) burden, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts.... The nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.' Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita, supra, 475 U.S. at 586-87, 106 S.Ct. at 1356 (quoting Fed.R.Civ.P. 56(e)) (emphasis in original). As stated before, the nonmovant in this case did not timely file a response to the Defendants' motions for summary judgment.

3. Analysis

As extreme as the facts of this case are, the Court finds that this case presents a difficult and close question for summary judgment that the Court has carefully and thoroughly considered. The Court has been aided in this regard by the outstanding efforts of Plaintiff's counsel, whose tireless and able efforts on behalf of her client are admirable and greatly appreciated by the Court. The Court is particularly appreciative in this case because the facts present an employment situation that deeply troubles this Court. Although Plaintiff's Complaint is framed exclusively in terms of discrimination against him because he is male, it is indisputable that running throughout the pleadings, and certainly throughout the treatment Sarff encountered in his work environment in the alleged...