Breda v. Wolf Camera, Inc.

148 F.Supp.2d 1371

Gabrielle BREDA, Plaintiff, v. WOLF CAMERA, INC. Defendants.

No. 4:97CV366.

United States District Court, S.D. Georgia, Savannah Division.

June 25, 2001.

Charles R. Ashman, Ashman, Lasky & Cooper, Savannah, GA, Ralph E. Lamar, IV, Doylestown, PA, for Plaintiff.

John F. Wymer, III, Jona J. Miller, King & Spalding, Atlanta, GA, Scott M. Porter, Powell, Goldstein, Frazer & Murphy, LLP, Atlanta, GA, John E. Bumgartner, Whelchel, Brown, Readdick & Bumgartner, Brunswick, GA, for Defendants.

ORDER

EDENFIELD, District Judge.

I. INTRODUCTION

Plaintiff Gabrielle Breda brought this action against Wolf Camera, Inc. (WCI), her former employer, after resigning from her position as a sales associate at its Savannah, Georgia, store. She alleged she was subjected to a hostile work environment based on sex and disability, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and Title I of the Americans with Disabilities Act of 1990(ADA), 42 U.S.C. § 12101.

This Court granted WCI's motion for summary judgment on all of her claims. Doc. ## 120-21. The Eleventh Circuit affirmed the dismissal of her "disability harassment" claim, Breda v. Wolf Camera & Video, 222 F.3d 886, 888 n. 1 (11th Cir.2000), but reversed and remanded on her sex-based, hostile work environment claim. Id. at 890-91.

On remand, WCI renews, over Breda's opposition, its summary judgment motion. Doc. # 132. The parties have extensively briefed their respective positions. See doc. # 137 (Breda's 55-page response brief); # 141 (WCI's Reply Brief); # 143 (Breda's Reply brief); # 144 (WCI's Supplemental Reply brief); # 146 (Breda's response to same); # 148 (Breda's Supplemental Brief); ## 149-150.

II. BACKGROUND

As the Eleventh Circuit summarized,

[WCI] is an Atlanta-based corporation that sells cameras, film, and camera accessories, and provides photo-finishing and imaging services. [It hired Breda on 10/10/95] as a sales associate at [its Savannah, Georgia store]. The ... store is open every day during the same hours as the shopping mall. [Sharpley, the] store manager directly supervises all employees, and [Audie Baez, the] district manager visits the store once every five or six weeks to oversee the store manager.

The [store] employees ... work in either sales or the photo-processing lab. After she was hired, [Breda] became one of three full-time sales associates at the store, and, like the other sales associates, she worked approximately 40 hours per week with 2 days off each week.

[Breda] alleges she was subjected to sexual harassment throughout her employment with [WCI]. On [12/20/96, Breda] resigned from her employment with [WCI] because of this alleged harassment. She subsequently instituted this action, claiming she was subjected to a hostile work environment in violation of Title VII. [This] [C]ourt granted summary judgment to [WCI] on [Breda's] claim after concluding Breda had not established a prima facie case of hostile work environment sexual harassment because she had not demonstrated a basis for holding [WCI] liable for the harassment.

Breda, 222 F.3d at 888; doc. ## 120-21.

Breda alleges that, from her first day on the job onward, co-workers Robert Morris and Darryl Reynolds subjected her to a continuous pattern of sexual harassment. Id. She says she repeatedly complained of Morris' conduct to Sharpley, but Sharpley disputes the number and timing of her complaints. Sharpley also contends that Breda's "complaints reflected not sexual harassment, but only general animosity between co-workers." Id.

This Court noted WCI's policy against sexual harassment, that Breda had read it, and that it required her to contact WCI's Personnel Department if Sharpley failed to "immediately resolve" harassment complaints. Doc. # 120 at 2-3. Because Breda failed to do so, or even complain to an otherwise accessible district manager (Baez), id. at 4-5, she failed to provide WCI with adequate notice and thus give it a reasonable opportunity to resolve the problem. Id. at 5-8.

The Court thus granted WCI summary judgment. Id. at 11. But under WCI's policy, the Eleventh Circuit concluded, it was sufficient for Breda to complain to her store manager, Sharpley. 222 F.3d at 889. It wasn't enough that WCI had constructed a backup mechanism for correcting harassment to compensate for any weak links, and that Breda failed to exploit it. See doc. # 120 at 6 (this Court's application of Seventh Circuit precedent to the undisputed fact that Breda had failed to complain to Baez despite repeated opportunities to do so).

Rather, the Eleventh Circuit reasoned, once a company establishes a clear complaint policy and its employees comply, they "need not be concerned whether they pursued their complaints far enough up the company ladder." Breda, 222 F.3d at 890. It therefore reversed this Court, id., but found

the record insufficient to determine whether Sharpley was adequately informed that [Breda] believed she was the victim of sexual harassment. There are factual disputes as to the number and timing of complaints [she] made to Sharpley. In addition, there is disagreement over whether [Breda's] complaints specifically indicated she was complaining of sexual harassment rather than general workplace animosity between co-workers. Accordingly, we remand the hostile work environment sexual harassment claim.

222 F.3d at 890.

Subsumed within the above-excerpted discussion, of course, is whether what Breda complained of constituted a hostile sexual environment in the first place. In other words, she may establish that she sufficiently complained to Sharpley of misbehavior, but whether that misbehavior amounts to a hostile sexual environment is a matter for this Court to decide under Rule 56. See Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1246 (11th Cir. 2001) ("We recognize that claims of employment discrimination ... present fact-intensive issues. However ... motions for summary judgment or judgment as a matter of law are appropriate to police the baseline for hostile environment claims") (quotes and cite omitted).

III. ANALYSIS¹

A. Sexual Harassment

One must first understand what sexual harassment is in order to determine whether Breda communicated the existence of a "sexually hostile environment" to Sharpley. Sexual harassment is actionable under Title VII only if it is "so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment." Clark County School Dist. v. Breeden, 532 U.S. 268, 121 S.Ct. 1508, 1509, 149 L.Ed.2d 509 (2001) (quotes and cite omitted); Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir.1999) (en banc), cert. denied, 529 U.S. 1068, 120 S.Ct. 1674, 146 L.Ed.2d 483 (2000).

Breda thus must show harassment of such magnitude that it altered her work environment. E.E.O.C. v. R & R Ventures, 244 F.3d 334, 341 (4th Cir.2001) (The inquiry is not whether work has been impaired, but whether working conditions have been discriminatorily altered).

Part of that showing obviously is subjective — what Breda perceived. But it also must meet an objective standard. See Gregory v. Daly, 243 F.3d 687, 691-92 (2nd Cir.2001) (Harms suffered in the workplace are cognizable under Title VII, even when they are not the result of tangible employment actions, if they arise from conduct that: (1) is objectively severe or pervasive; (2) the employee subjectively perceives as hostile or abusive; and (3) creates such an environment because of the employee's sex or other characteristic protected by Title VII); accord Leibovitz v. New York City Transit Authority, 252 F.3d 179, 188 (2nd Cir.20001).

Courts thus ask, "Would a reasonable person in plaintiff's position find the harassment severe and pervasive?" Dinkins v. Charoen Pokphand USA, Inc., 133 F.Supp.2d 1237, 1250 (M.D.Ala.2001) (Dinkins I) (citing Johnson v. Booker T. Washington Broadcasting Service, 234 F.3d 501, 509 (11th Cir.2000), and Mendoza, 195 F.3d at 1246); see also Fitzgerald v. Henderson, 251 F.3d 345, 358 (2nd Cir. 2001). To answer that question, courts

consider the frequency of the conduct, the severity of the conduct, whether the conduct is physically threatening or humiliating, or a mere offensive utterance, and whether the conduct unreasonably interferes with the employee's job performance.

Dinkins I, 133 F.Supp.2d at 1250 (quoting Mendoza, 195 F.3d at 1246); see also Weston v. Commonwealth, 251 F.3d 420, 425-26 (3rd Cir.2001); R & R Ventures, 244 F.3d at 339. A single incident typically will not be enough. Breeden, 532 U.S. at ___, 121 S.Ct. at 1510.

While other Title VII claims may require courts to scrutinize discrete harms such as a hiring or discharge, a hostile sexual work environment-based claim requires courts to analyze a workplace environment as a whole to discover whether it is abusive. Raniola v. Bratton, 243 F.3d 610, 617 (2nd Cir.2001); R & R Ventures, 244 F.3d at 340 ("The real social impact of workplace behavior often depends on a constellation of surrounding circumstances....")

Here Breda need not show that each hostile act was sexual in nature. Raniola, 243 F.3d at 617; id. at 619-20 (workplace sabotage can support a hostile environment claim). But if sexual conduct is placed in issue, it must not be "merely tinged with offensive connotations, but actually [be shown to have] actually constituted discrimination because of sex." Id. at 621 (quotes and cite omitted); Weston, 251 F.3d 420, 427 (Mere utterance of an epithet, joke, or inappropriate taunt in the workplace that may cause offense does not sufficiently affect the conditions of employment to implicate Title VII liability).

WCI correctly notes that, of the two types of sexual harassment—quid pro quo and hostile environment² — Breda complains of only the latter. Doc. # 133 at 4. But the abuse Breda allegedly suffered, WCI argues, simply does not rise to actionable sexual harassment. Doc. # 133 at 4-17.

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