Thornton v. Federal Express Corp.
| Decision Date | 24 June 2008 |
| Docket Number | No. 07-5116.,07-5116. |
| Citation | 530 F.3d 451 |
| Parties | Deborah THORNTON, Plaintiff-Appellant, v. FEDERAL EXPRESS CORPORATION d/b/a FedEx Express, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ON BRIEF: Karen Vaughan McManus, FedEx Corporation, Memphis, Tennessee, for Appellee. Deborah Thornton, Moscow, Tennessee, pro se.
Before: DAUGHTREY, CLAY, and McKEAGUE, Circuit Judges.
Plaintiff-appellant Deborah Thornton is a former employee of Federal Express Corporation ("FedEx"). She was discharged on August 24, 2004, when, after a 16-month leave of absence, she did not return to work, despite being notified of return-to-work opportunities. Plaintiff had taken the leave of absence due to stress stemming from sexual harassment by her immediate supervisor, David Bragorgos. Plaintiff did not pursue the return-to-work opportunities because she continued to receive treatment for panic disorder and fibromyalgia from health care providers who she says had not released her to return to work.
Plaintiff commenced this action in the Western District of Tennessee on April 1, 2005, charging FedEx with sex discrimination and retaliation, in violation of federal and state civil rights laws, and with discrimination based on her disability, in violation of the Americans with Disabilities Act. Defendant FedEx's motion for summary judgment was granted by the district court in a 19-page opinion and order dated January 22, 2007.1 Proceeding pro se, plaintiff appeals from the district court's judgment, contending the court failed to view the record evidence in the light most favorable to her. For the reasons that follow, we affirm.
Having duly considered the record in light of the parties' appellate arguments, we find the district court's opinion to be clear and well-reasoned in most respects. First, we find no error in the holding that plaintiff's quid pro quo sexual harassment claim under Title VII fails for lack of evidence that plaintiff suffered a tangible job detriment due to her rejection of Bragorgos's sexual advances. As the district court explained, the courier route change that precipitated plaintiff's request for a leave of absence, though personally inconvenient one day of the week, clearly did not entail an increase in responsibilities or a demotion or loss of pay or benefits that would satisfy the "materially adverse change" element of such a claim. Moreover, the courier route change was hardly a fait accompli, but was a change in-progress, subject to continuing negotiation between plaintiff and management at the time she took her leave of absence.
Second, the district court correctly awarded summary judgment to FedEx on plaintiff's claim under the Americans with Disabilities Act ("ADA") for lack of adequate showing that she suffers from a "disability," i.e., an impairment that substantially limits a major life activity. Despite plaintiff's protestations, a disability determination by the Social Security Administration, even if substantiated, would not be controlling. Plaintiff has failed to identify evidence demonstrating that she suffers from an impairment that substantially limits her in a major life activity or that FedEx discharged or otherwise discriminated against her because of such an impairment.
Third, plaintiff's Title VII claim that FedEx retaliated against her because she complained about Bragorgos's harassment also lacks evidentiary support. The mere fact that she was eventually terminated after having filed a complaint with the Equal Employment Opportunity Commission does not justify an inference that there is a causal connection between the two events. We therefore find no error in the award of summary judgment to FedEx on plaintiff's Title VII retaliation claim.
As to plaintiff's Title VII sexual harassment claim based on hostile work environment, however, we find the district court's analysis incomplete. The district court fairly considered the evidence of Bragorgos's harassing conduct, but concluded that it was not sufficiently severe and pervasive to create an actionable hostile work environment. Citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), the court characterized Bragorgos's conduct as more akin to "simple teasing, offhand comments, and isolated incidents," rather than "discriminatory intimidation, ridicule, and insult" sufficiently serious to have altered the conditions of plaintiff's employment.
In order to establish a prima facie case of hostile work environment based on sexual harassment, plaintiff must show by a preponderance of the evidence: (1) that she was a member of a protected class; (2) that she was subjected to unwelcome sexual harassment; (3) that the harassment was based on sex; (4) that the harassment unreasonably interfered with her work performance by creating a hostile, offensive, or intimidating work environment; and (5) that there is a basis for employer liability. Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir.1999).
There is no question that the first three elements of this standard are met on the present record. To assess the fourth element, the court must consider "`all of the circumstances,' including `the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's performance.'" Jackson v. Quanex Corp., 191 F.3d 647, 658 (6th Cir.1999) (quoting Harris v. Forklift Sys., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). The "conduct in question must be judged by both an objective and a subjective standard: the conduct must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must subjectively regard that environment as abusive." Id. at 658 (quoting Black v. Zaring Homes, Inc., 104 F.3d 822, 826 (6th Cir.1997)).
The district court minimized the offensive nature of Bragorgos's comments and behavior. Viewing the record in the light most favorable to plaintiff, however, we are satisfied that it establishes a genuine fact issue on the fourth element of her prima facie case. Although there is little evidence that Bragorgos was physically intimidating, his continuous preoccupation with sex talk and persistent unwelcome advances, often targeted at plaintiff, were degrading, offensive, increasingly intimidating and inexcusable. A reasonable jury could conclude that a reasonable person, directly subordinate to Bragorgos, would find the work environment offensive.
There is support for FedEx's position that, for much of the two years plaintiff was subject to Bragorgos's supervision, she endeavored not to take him too seriously and patiently tolerated his misbehavior. Yet, the impression is inescapable that during the months of February to April 2003, Bragorgos put increasing pressure on plaintiff "to consummate their relationship" before his upcoming wedding. As this pressure coincided with tensions resultant from courier route adjustments being made in the Spring of 2003, tensions that Bragorgos seemed to exploit rather than alleviate, plaintiff clearly began to view the work environment as hostile and abusive. Judging Bragorgos's alleged conduct objectively and subjectively, we find that the facts adduced create a genuine question as to whether the work environment was hostile.
The hostile work environment claim is not brought against Bragorgos, however, but against plaintiff's employer, FedEx. As to the fifth element of plaintiff's prima facie case, FedEx is vicariously liable for sexual harassment by Bragorgos, her supervisor, unless FedEx establishes its affirmative defense by a preponderance of the evidence. FedEx does this by demonstrating (a) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) that plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Faragher, 524 U.S. at 807, 118 S.Ct. 2275; Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Jackson, 191 F.3d at 659.2
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