Wasek v. Arrow Energy Servs., Inc.

• Citation: 682 F.3d 463,115 Fair Empl.Prac.Cas. (BNA) 384
• Decision Date: 20 June 2012
• Docket Number: No. 10–2418.,10–2418.
• Parties: Harold WASEK, Plaintiff–Appellant, v. ARROW ENERGY SERVICES, INC., Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

682 F.3d 463

115 Fair Empl.Prac.Cas. (BNA) 384

Harold WASEK, Plaintiff–Appellant,

v.ARROW ENERGY SERVICES, INC., Defendant–Appellee.

No. 10–2418.

United States Court of Appeals,Sixth Circuit.

Argued: March 8, 2012.

Decided and Filed: June 20, 2012.

ARGUED:Mandel I. Allweil, Hurlburt, Tsiros & Allweil P.C., Saginaw, Michigan, for Appellant. Deanna Swisher, Foster, Swift, Collins & Smith, P.C., Lansing, Michigan, for Appellee. ON BRIEF:Mandel I. Allweil, Hurlburt, Tsiros & AllweilP.C., Saginaw, Michigan, for Appellant. Deanna Swisher, Foster, Swift, Collins & Smith, P.C., Lansing, Michigan, for Appellee.

Before: GRIFFIN and KETHLEDGE, Circuit Judges; and THAPAR, District Judge.^*

OPINION

AMUL R. THAPAR, District Judge.

Harold Wasek claims that he was harassed and bullied while working for his employer, Arrow Energy Services, Inc. He cannot show, however, that the bullying and harassment occurred because of his gender. As such, Wasek cannot maintain an action under either Title VII or Michigan's Elliot–Larsen Civil Rights Act (“ELCRA”). Thus, we affirm the district court's grant of summary judgment to Arrow Energy.

I.

Arrow Energy is in the business of servicing oil wells and has approximately thirteen active rigs and eighty hourly employees throughout Michigan, Pennsylvania, New York, and West Virginia. In April 2008, Arrow Energy hired Wasek as a derrick hand, an individual that works in the tower of an oil rig.

Arrow Energy assigned Wasek to work on a four-man crew in Pennsylvania. Here he met his eventual tormenter, Paul Ottobre. In order to save money, Wasek and Ottobre initially shared a hotel room, but this arrangement did not last long. Ottobre discovered that he could rile Wasek with sexually explicit stories when he told Wasek of one of his purported conquests—having sex with his wife's sister. The two stopped rooming together the next day because, according to Wasek, Ottobre sensed they would not get along.

On the rig, Ottobre began touching Wasek in a sexual manner: grabbing his buttocks, poking him in the rear with a hammer handle, and poking him in the rear with a long sucker rod. On each occasion, Wasek reacted by cursing and demanding that he not be touched. Ottobre further inflamed the situation with comments such as “you've got a pretty mouth,” “boy you have pretty lips,” and “you know you like it sweetheart.” Ottobre did not relent: he told sexually explicit jokes, stories, fantasies, and called Wasek names. Wasek believed that Ottobre acted like this because he was bisexual.

Wasek found no help from his rig boss, Pat Tripp. Tripp observed some of these incidents and laughed instead of intervening. When Wasek complained to Tripp directly, he advised Wasek not to report to Dick Smillie, the Director of Operations in Michigan, or Tripp would put Wasek on a “starvation schedule” and run him off the job. Tripp advised Wasek repeatedly not to “make waves” with superiors by “whining.” Eventually Tripp advised Wasek that he would “handle” the problem, but Ottobre's behavior continued.

The situation came to a head over the course of two days of events. First, on September 10, 2008, Wasek struggled with heavy equipment on the rig and Ottobre began making fun of him. Frustrated, Wasek shoved Ottobre and threatened a physical altercation if Ottobre continued teasing him. Tripp observed this and told both men to get back to work. Wasek and Ottobre did not speak to each other for the rest of the day.

On September 11, 2008, Wasek found his styrofoam cooler, normally located in the crew's truck, in the hotel dumpster. Later in the day, Wasek also discovered that he was missing a one-hundred dollar bill and cigarettes that he had left in a personal storage area. Wasek believed Ottobre was responsible for all of this, but did not report the incidents. When the crew returned to the hotel that night, Wasek entered Ottobre's hotel room to ask him for the keys to the crew's shared truck so that Wasek could get dinner. Ottobre refused, saying he had just put gas in the truck and if Wasek wanted to use it he would have to put fuel in the truck too. Wasek reminded Ottobre that Smillie put Wasek in charge of the truck and said he was only traveling half a mile down the road. Ottobre still refused.

Wasek left the room and called Smillie. Wasek complained about the truck, but also told Smillie about Ottobre's sexual touching and sexual comments. Additionally, Wasek informed Smillie that he had reported it all to Tripp who had done nothing. Smillie responded, “Why don't you just kick [Ottobre's] ass?” R. 26–1 at 56. Wasek implored Smillie to do something, and Smillie agreed to call Ottobre. A short time later, Smillie called Wasek back and told him to get the keys from Ottobre. When Wasek returned to the room, Ottobre's roommate informed him that Ottobre had just left with the truck.

Frustrated, Wasek called Smillie once more. This time, Smillie told Wasek that he needed to call Bill Strong, the Director of Operations in Pennsylvania, because “[h]e's in charge down there.” Id. Wasek called Strong and unloaded all of his problems with Ottobre, including the truck keys and sexual touching. Strong's initial reaction was to chastise Wasek for “whining.” Id. at 57. Strong then suggested that Wasek and Ottobre should just “duke it out” to “get it out of [their] systems.” Id. Wasek demanded that Strong do something about Ottobre that evening or else Wasek would “be gone by morning.” Id. at 58. Strong said he would not do anything that night but would see Wasek in the morning. Wasek responded “No, you won't” and hung up the phone. Id. Frustrated that no one would help, Wasek called his wife to pick him up from the job site. She arrived the next day, and Wasek left after taping a sign to his hotel door stating, “I'm not here. I went home.”

On the way home, Ottobre called Wasek on his cell phone. In one voicemail, Ottobre stated, “I miss holding you. I miss spooning with you. I love you. Please call me back.” Erica Comei, a human resources representative for Arrow Energy, also called Wasek, asking why he quit his job. Wasek stated that he did not intend to quit, but that he did not want to work with Ottobre any longer and described to her all of Ottobre's antics. In response, Comei stated she would arrange for Wasek to meet with Smillie and Rob Short, the regional supervisor.

The meeting occurred a few days later. Short was extremely upset that Wasek had left his crew “high and dry.” R. 26–1 at 72. The crew had always been a four-man team, id. at 21, but with Wasek gone, Short could not “just send somebody out” to replace Wasek “in a couple of hours” because the crew was “600 miles away” from the Michigan office. Id. Wasek then described Ottobre's behavior and stated that he left because he was fed up. Short responded that this is “the way the oil field is” and that if Wasek could not handle it he “should find another line of work.” Id. at 73. Wasek demanded that the matter be resolved and that he be put back on a crew. Short responded that Wasek could “rest assure[d]” he would not “be going back to Pennsylvania ever” because the staff was upset that Wasek had left them “high and dry.” Id. at 72–74. But Short assured Wasek that “we're not going to terminate you.” Id. at 74. Smillie ended the meeting by telling Wasek that he was “digging into what we've got for you.” Id.

On October 3, 2008, Arrow Energy provided a training session for Wasek and assigned him to work on a rig in Michigan beginning October 21, 2008. Wasek asserts that he called Arrow Energy on a regular basis throughout this time asking for immediate work. He soon became frustrated with the financial burden placed on his family from not working. Wasek decided to apply to other jobs and started work with Stone Well Service in West Virginia on October 12, 2008. Arrow Energy did not know that Wasek took on new employment until October 21, 2008, when Wasek did not show up as assigned.

On September 9, 2009, Wasek filed suit against Arrow Energy alleging violations of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e–5(g), and ELCRA, Mich. Comp. Laws § 37.2201 et seq. Wasek made hostile work environment and retaliation claims under both statutes. The district court granted Arrow Energy's motion for summary judgment on all claims. Wasek appealed.

II.

We review the district court's grant of summary judgment de novo. Thom v. Am. Std., Inc., 666 F.3d 968, 972 (6th Cir.2012). We must view evidence in the record in the light most favorable to the nonmoving party and draw all reasonable inferences to that party's benefit. Int'l Union v. Cummins, Inc., 434 F.3d 478, 483 (6th Cir.2006). Summary judgment is appropriate only when there is no genuine issue of material fact “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A. Hostile Work Environment—Title VII

Title VII prohibits discrimination “because of ... sex” in the “terms” or “conditions” of employment. 42 U.S.C. § 2000e–2(a)(1). Sexual harassment is a form of discriminatory treatment and is actionable whether it involves members of the same gender or different genders. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). But Title VII is not “a general civility code for the American workplace.” Id. at 80, 118 S.Ct. 998. Instead, the focus in a sexual harassment claim is “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (Ginsburg, J., concurring)). In other words, the conduct of jerks, bullies, and persecutors is simply not actionable under Title VII unless they are acting because of the victim's gender.

This focus on discrimination creates key evidentiary...