Foss v. Circuit City Stores, Inc.

521 F.Supp.2d 99

Andrew FOSS, Plaintiff, v. CIRCUIT CITY STORES, INC., Defendant.

Civil No. 06-153-P-S.

United States District Court, D. Maine.

November 8, 2007.

COPYRIGHT MATERIAL OMITTED

Guy D. Loranger, Nichols & Webb, P.A., Saco, ME, for Plaintiff.

Brian G. Muse, Susan Childers North, Leclair Ryan, PC, Williamsburg, VA, Richard G. Moon, Anne Birgel, Verrill & Dana, Portland, ME, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DE FEN. DANT'S MOTION FOR SUMMARY JUDGMENT

GEORGE Z. SINGAL, Chief Judge.

Plaintiff Andrew Foss brought the instant action against his former employer Defendant Circuit City Stores, Inc. ("Circuit City") alleging hostile work environment sexual harassment in violation of Title VII (Count I), 42 U.S.C. § 2000e-2(a)(1) and retaliation in violation of Title VII (Count II), 42 U.S.C. § 2000e-3(a). Plaintiff claims that his direct supervisor, John Lounsbury, created a hostile work environment by continuously commenting on women's bodies or discussing topics of a sexually explicit nature for the six weeks that they worked together at the Keene, New Hampshire Circuit City store. Now before the Court is Defendant's Motion for Summary Judgment, which asserts that the record does not generate a genuine issue of material fact on either claim. (Docket # 25.) After a thorough review of the affidavits, depositions, answers to interrogatories, and other exhibits submitted in connection with the instant motion, the Court concludes that Defendant is entitled to summary judgment on Count I, but not on Count II.

I. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Santoni v. Potter, 369 F.3d 594, 598 (1st Cir.2004). "In this regard, `material' means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant. By like token, `genuine' means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party.'" Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir.2001) (quoting McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995)). The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Santoni, 369 F.3d at 598. Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (citation and internal punctuation omitted); Fed.R.Civ.P. 56(e). "As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at, trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party." In re Spigel, 260 F.3d 27, 31 (1st Cir.2001) (citation and internal punctuation omitted).

II. FACTS

The parties' statements of material facts, credited to the extent either admitted or supported by record citations in accordance with Local Rule 56, viewed in the light most favorable to Foss and resolving all reasonable inferences in Foss's favor, reveal the following.¹ Rosenberg v. City of Everett, 328 F.3d 12, 17 (1st Cir. 2003).

In October 2004, Andrew Foss completed an online employment application for a sales position with Circuit City.² (Foss Dep. at 23.) Later in October, Circuit City hired Foss as an entertainment sales associate at its South Portland, Maine store. (Foss Dep. at 34-35.) Foss's duties as an entertainment sales associate included assisting customers with the purchase of consumer electronic products and equipment. (Foss Dep. at 43-44; Affidavit of Kenneth Dionne ¶ 9.) Foss's duties also included following Circuit City's polices and procedures, such as reporting on time for his scheduled shifts and accurately recording his hours worked. (Dionne Aff. ¶ 10; Affidavit of Lisa Hopkins ¶ 7; Circuit City "Associate's Handbook.")

After working at Circuit City for almost a year, in September 2005, Foss requested a transfer to the Circuit City store in Keene, New Hampshire so he could be closer to the college he was attending.³ (Foss Dep. at 44; Dionne Aff. ¶ 6.) Foss was told that he would be allowed to transfer; however, the Keene store was not scheduled to opening until the end of October, so Foss was first assigned to the Manchester, New Hampshire store. (Foss Dep. at 44.)

To keep track of their work hours, Circuit City associates either "swipe" their I.D. cards into the computer system, which automatically records the time they begin their shift, or their time is manually entered. (Hopkins Aff. ¶ 15.) After starting at the Manchester store, Foss swiped his I.D. card to automatically sign him into the system and record his time, but the computer system did not recognize him. (Foss Dep. at 88.) Foss spoke to his manager Josh Dean about not being able to automatically punch into the system. (Foss Dep. at 88-89.) Dean told Foss that he probably had not been transferred in the system and then Dean manually entered Foss's arrival on his time record. (Foss Dep. at 88-89.) Within a few weeks, Foss was told he could manually enter the time into the computer on his own time record until he was formally entered into the system. (Foss Dep. at 89.)

Foss started at the Keene store on October 28, 2005. The Director for the Keene store was Kenneth Dionne ("Dionne"). (Foss Dep. at 45; Dionne Aff. ¶ 6.) Dionne remained Foss's store Director throughout Foss's employment at the Keene store. (Dionne Aff. ¶ 5.) John Lounsbury ("Lounsbury") worked as the sales manager of the entertainment department at the Keene store and served as Foss's immediate supervisor.⁴ (Dionne Aff ¶ 12; John Lounsbury Aff. ¶ 3; Foss Dep. at 47.) The operations manager during the time of Foss's employment at the Keene store was Lisa Hopkins ("Hopkins"). (Dionne Aff. ¶ 30; Hopkins Aff. ¶¶ 1, 4.) Tracy Tobolski ("Tobolski") was Circuit City's District Human Resources Manager assigned to the Keene store during Foss's employment there. (Tobolski Aff. ¶¶ 3, 16.)

After starting at the Keene store, Foss continued to manually enter his arrival and departure times on his timesheets. (Foss Dep. at 86-89.) Circuit City's computer system displays the time of the day so associates who manually record their time into the computer will know the exact time when they arrive. (Hopkins Aff. ¶ 16.) However, when working at the Keene store, Foss did not make a practice of immediately entering his arrival time on his timesheet. (Foss Dep. at 96.) Rather, after arriving for a shift, he would check in with his manager — Dionne or Lounsbury — and talk about sales or the other shifts and then at some point in the shift he would enter his arrival time into the system. (Foss Dep. at 96.)

From October 28 through December 17, 2005, Foss worked with Lounsbury on 19 days. (Foss Dep. at 50.) The record is in dispute on Lounsbury's conduct during this time, however, viewing the evidence in the light most favorable to Plaintiff, the record supports the following facts. Lounsbury constantly made sexual comments about female customers and, specifically, commented on their breasts, legs and buttocks. (Foss Dep. 54-55, 70.) Lounsbury would also make jokes to Foss about obese women, saying he felt sorry for their husbands. (Foss Dep. at 54-55.) If an attractive woman came into the department, Lounsbury would talk about his desire to be single or wished he was not married. (Foss Dep. at 83-84.) Lounsbury often described his sexual habits and experiences to Foss. (Foss Dep. at 53, 71.) The sexual comments Lounsbury made spanned the entire six weeks that Foss worked with him at the Keene store. (Foss Dep. at 60.)

In addition to this generalized conduct, Foss recounts specific instances of Lounsbury's inappropriate conversations. Indeed, Foss recalls that Lounsbury's vulgar commentary began immediately after he started working at the Keene store. For example, at the "friends and family night" celebrating the grand opening of the Keene store, Lounsbury made inappropriate comments to other employees about a woman he thought was Foss's girlfriend. (Foss Dep. at 51.) After Foss showed Lounsbury a picture of his girlfriend, Lounsbury commented that she looked very Irish and stated that Irish women were whores, that "he dated Irish women and that they were just as bad as dating crazy black Jamaican women." (Foss Dep. at 56.) On another occasion, Lounsbury picked up a piece of product wrap and walked up to a female employee saying Foss's girlfriend has lips like the product wrap. (Foss Dep. at 52.) Lounsbury then gestured toward his crotch. (Foss Dep. at 52.) On another occasion, Foss described a woman to Lounsbury who was taking a bartending class with Foss. Lounsbury recognized the woman and said that one of his friends had dated her. Lounsbury then described the woman's pubic hair and how she shaved it. On at least two other occasions, Lounsbury again made sexual comments about the female bartender and Foss again told Lounsbury that he did not want to hear it. (Foss Aff. ¶ 13.) On another occasion, Lounsbury told Foss that if his wife knew the number of women he had slept with and the "stuff" he had done with them, she would not be married to him. (Foss Dep. at 53, 71.) Lounsbury also told Foss that when he was in the Navy he would go from port to port, sleeping...