TIMOTHY R. RICE, United States Magistrate Judge.
Plaintiff Lisa A. Hemphill sued her employer, the City of Wilmington ("the City"), alleging two violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Both of Hemphill's claims arise from racial harassment she allegedly experienced between October 2007 and January 2008. See generally Compl., Hemphill v. Wilmington, No. 10-679, 2010 WL 4951006 (D.Del. Aug. 12, 2010) [hereinafter Compl.].
Even assuming Hemphill's subordinates created a racially hostile work environment, no reasonable jury could conclude the City was liable for the conduct. The evidence establishes the City promptly addressed Hemphill's complaint and the alleged unlawful conduct ceased. However, Hemphill has raised a genuine factual dispute—albeit a weak one—as to whether she was subject to an adverse employment action after raising a hostile work environment complaint with her superior. Her retaliation claim will proceed to trial.
Beginning in April 2004, Hemphill was employed by the City as an administrative assistant to the Chief of Police, a "non-merit" or "appointed" position. Compl. at ¶¶ 13, 35; Defs.' Br. at Ex. A. On October 22, 2007, Hemphill was selected to fill a new role, Constituent Services Supervisor ("CSS"), which was a "merit" or "non-union" position. Compl. at ¶¶ 14-15, 33; Defs.' Br. at Ex. A. With the new job came greater job security and a salary increase of more than $2,000 per year. See App. to Pl.'s Answering Br. Opp'n Defs.' Mot. Summ. J. at B182, Hemphill v. Wilmington, No. 10-679 (D.Del. May 24, 2011) [hereinafter Pl.'s App.]; compare Defs.' Br. at Ex. A (new salary of $44,017), with id. at Ex. T (old salary of $41,848.42). Hemphill's first ninety days in her new position were considered a probationary period. See Compl. at ¶ 15; cf. Defs.' Br. at 7.
In her new supervisory capacity, Hemphill was tasked with overseeing daily operations in the Call Center at the Department of Public Works, where four Constituent Services Assistants ("CSAs") responded to telephone calls from local residents. See Pl.'s App. at B059; Defs.' Br. at 3. One of the CSAs, Sharlene Drummond, had also applied for the CSS position. See Defs.' Br. at Ex. C.
All four CSAs are African-American women; Hemphill is white. See id. at Ex. B.
Hemphill was warned she might meet resistance from the CSAs, who had been largely unsupervised for many years. See id. at Exs. B, G; Pl.'s App. at B072. The warnings proved accurate almost immediately. Two of the four CSAs turned their backs on Hemphill during her first meeting with them. See Pl.'s App. at B134-35. That meeting launched a series of conflicts between Hemphill and the two CSAs, Drummond and Tracey Husser.
On October 29, 2007, her first full day working in the Call Center, Hemphill claims Drummond announced she was "seething with anger" because Hemphill received the CSS position, which Drummond said she deserved. See id. at B189-90. Drummond further speculated the job might have been given to Hemphill "because [she is] white." Id. at B190. Meanwhile, during her first two weeks as CSS, Hemphill issued four disciplinary write-ups: two to Drummond and two to Husser, primarily for failure to follow the proper procedure when calling out sick. See Defs.' Br. at Ex. D.
In mid-November 2007, Hemphill entered the Call Center and heard Drummond loudly comment, "Jena 6, that's all I'm saying, Jena 6."
Thereafter, Drummond and Husser met with someone in the Personnel Department and alleged Hemphill was using her supervisory position to harass them. See Defs.' Br. at Ex. M; Pl.'s App. at B051. Additionally, Kash Srinivasan, the Commissioner of Public Works, met with Hemphill, the CSAs, and Alfonso Ballard (the Director of Operations and Hemphill's immediate supervisor) to address the tension within the Call Center. See Defs.' Br. at Ex. D; Pl.'s App. at B029. During that meeting, Drummond alleged Hemphill treated the CSAs like children despite the fact they were "four mature black women." Defs.' Br. at Ex. G.
On November 21, 2007, Hemphill learned Srinivasan had not approved the disciplinary write-ups she had issued to Drummond and Husser.
Two days later, Hemphill met with the CSAs to inform them of a shift change she intended to implement, upsetting Husser, whose ability to work a second job would be impacted. See id. at Ex. I. After the meeting, Hemphill noticed Drummond's attitude toward her deteriorating, with Drummond ignoring her and using earphones to listen to music. Id. That afternoon, Hemphill overheard Drummond outside the Call Center saying, "someone needs to punch that bitch in the face." Id. Believing Drummond was referring to her, Hemphill notified Ballard in a November 30, 2007 memorandum that she "ha[d] begun to fear for [her] personal safety," citing a "hostile environment in the Call Center" based on the behavior of Drummond and Husser. Id. She did not allege any racially-motivated issues. Hemphill also filed a police report on December 4, 2007, alleging Drummond was harassing her and describing the "punch in the face" comment, as well as the "seething with anger" comment from Hemphill's first day at the Call Center. See id. at Ex. K. The police report, like both of Hemphill's memoranda to Ballard, contained no reference to any
On December 5, 2007, Ballard notified Hemphill that, based on her safety concerns, she was to report to a different office while the Personnel Department conducted an investigation. See id. at Ex. L. Hemphill protested her temporary removal from the Call Center, but complied with Ballard's directive when she returned from sick leave on December 10, 2007. See id. at Exs. J, M, N. In December 2007 and early January 2008, Samuel Pratcher, Deputy Director of Personnel, conducted interviews and collected written accounts from Hemphill, Drummond, Husser, and six other employees regarding Hemphill's complaint.
Pratcher issued a preliminary report on January 4, 2008, making the following interim recommendations: Hemphill should be permitted to return to the Call Center; Srinivasan should speak with the CSAs about showing Hemphill respect; Hemphill should attend supervisory training; and future disputes should be discussed directly with Srinivasan or McLaughlin. See Defs.' Br. at Ex. Q.
Based on that report, Srinivasan met with Hemphill on January 9, 2008 to discuss implementing Pratcher's recommendations and extending Hemphill's probationary period to better assess her supervisory skills. See id. at Ex. R.
Srinivasan documented the meeting in a memorandum written the same day, noting Hemphill had said she was not prepared to return to the Call Center, and explaining she had "reassigned herself" to work for the Police Chief since being removed from the Call Center in December. See Pl.'s App. at B080-81. The next day, Hemphill notified the Director of Personnel, Monica Gonzalez-Gillespie ("Gillespie"), about the meeting with Srinivasan, characterizing it as "an unfair attempt ... to force my
Pl.'s App. at B122-23 (containing Wilmington City Code § 40-152).
On January 14, 2008, Pratcher notified Hemphill he had concluded his investigation into her complaint about Drummond and deemed her allegations unsubstantiated.
After the meeting, Hemphill submitted a written request to return to her former position with the Chief of Police. See Defs.' Br. at Ex. T (referring to Hemphill's Jan. 14, 2008 request). Her request was approved. Id.
Pratcher issued a final report disposing of Hemphill's hostile work environment complaint on February 28, 2008. See Pl.'s App. at B052-56. On March 25, 2008, Hemphill filed a complaint with the Delaware Department of Labor ("DDOL") alleging retaliation, constructive discharge, and race-based harassment.
Entry of summary judgment is appropriate only where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). I must "view
"When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... 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 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (footnote and citations omitted); see also Wellman v. DuPont Dow Elastomers, L.L.C., 739 F.Supp.2d 665 (D.Del.2010) ("The mere existence of some evidence in support of the nonmoving party ... will not be sufficient for denial of a motion for summary judgment; there must be enough evidence to enable a jury reasonably to find for the nonmoving party on that issue.").
Applying these standards to the record before me, the City is entitled to judgment as a matter of law only with respect to Hemphill's hostile work environment claim.
Hemphill first alleges the actions of Drummond and Husser created a hostile work environment, constituting discrimination on the basis of race in violation of Title VII. See Compl. at Count I. However, she has not adduced evidence from which a reasonable jury could hold the City liable for the actions of its employees, who were Hemphill's subordinates. Such evidence would be necessary to defeat the City's motion for summary judgment with respect to Count I.
"Title VII is not `a general civility code for the American workplace.'" Jensen v. Potter, 435 F.3d 444, 449 n. 3 (3d Cir.2006), overruled in part on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). Although it prohibits racial harassment resulting in a hostile work environment, Title VII "does not mandate a happy workplace." Id. at 451. A race-based hostile work environment exists "when unwelcome [racial] conduct unreasonably interferes with a person's performance or creates an intimidating, hostile, or offensive working environment." See Weston v. Pennsylvania, 251 F.3d 420, 425-26 (3d Cir.2001) (citing Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 65-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)).
To establish a prima facie hostile work environment case against the City, Hemphill must prove: (1) she suffered intentional discrimination because of her race; (2) the discrimination was severe or pervasive;
Of particular importance here is the fifth element. Where the hostile work environment is allegedly created by a plaintiff's co-workers or subordinates, the "employer is not always liable." Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir.1999). "Even if a work environment is ... hostile, a plaintiff must also show that the conduct creating the hostile work environment should be imputed to the employer." Knabe v. Boury Corp., 114 F.3d 407, 410 (3d Cir.1997). Employer liability exists only if the plaintiff demonstrates "the employer failed to provide a reasonable avenue for complaint, or, if the employer was aware of the alleged harassment, that it failed to take appropriate remedial action." Weston, 251 F.3d at 427; see Andrews, 895 F.2d at 1486 (a plaintiff must prove "management-level employees had actual or constructive knowledge about the existence of a [racially] hostile work environment and failed to take prompt and adequate remedial action"); see also Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104-05 (3d Cir.2009); Knabe, 114 F.3d at 411.
As to notice, "when employees' complaints do not refer to [racially] offensive behavior, employers are not on constructive notice of [racial] harassment." Kunin, 175 F.3d at 294; see Huston, 568 F.3d at 105. Further, an employer's remedial action is appropriate "if it is reasonably calculated to prevent further harassment." Knabe, 114 F.3d at 411 n. 8; see Andreoli v. Gates, 482 F.3d 641, 644 (3d Cir.2007). "[W]hen an employer's response stops the harassment, there can be no employer liability under Title VII." Weston, 251 F.3d at 427; see Knabe, 114 F.3d at 411 n. 8 ("A remedial action that effectively stops the harassment will be deemed adequate as a matter of law."); Kunin, 175 F.3d at 294.
Hemphill acknowledges the City had a written "Harassment-Free Work Environment" policy, Defs.' Br. at Ex. V, providing "a reasonable avenue for complaint," Weston, 251 F.3d at 427. See Pl.'s Answering Br. Opp'n Defs.' Mot. Summ. J. at 19-20, Hemphill v. Wilmington, No. 10-679 (D.Del. May 24, 2011) [hereinafter Pl.'s Br.] (noting the policy, but challenging the adequacy of the City's investigation of Hemphill's complaint). Therefore, to hold the City liable, Hemphill must show it "was aware of the alleged harassment, [and] that it failed to take appropriate remedial action." Weston, 251 F.3d at 427. The record reveals Hemphill first notified the City she believed the environment in the Call Center was hostile in her November 30, 2007 memorandum to her supervisor, Ballard.
Although Hemphill has adduced evidence showing notice, she has failed to raise a genuine factual dispute as to whether the City took prompt and adequate remedial action. Immediately upon receipt of Hemphill's November 30, 2007 memorandum, Pratcher temporarily removed Hemphill from the allegedly hostile environment and initiated an investigation. See Pl.'s App. at B097 (showing Pratcher received the memorandum on December 5, 2007); Defs.' Br. at Ex. L (informing Hemphill an investigation would be conducted and ordering her to report to a different office starting December 6, 2007 to ensure her safety). Hemphill identifies no further incidents—racial or otherwise— to suggest she was exposed to a hostile work environment after she was removed from the Call Center. She does not claim Drummond continued to harass her, nor does she cite any instances of racial discrimination by other city employees while the investigation of her complaint was pending.
Hemphill insists the City could have better addressed her concerns, identifying various deficiencies she perceived in its response to her complaint. See Pl.'s Br. at 7-12, 16, 18-20. However, "[t]he question... is not whether the investigation was adequate ... but rather whether the remedial action was adequate." Knabe, 114 F.3d at 412. In response to Hemphill's complaint that two of the four CSAs she supervised said and did things that not only created a hostile work environment, but caused Hemphill to fear for her own safety, see Defs.' Br. at Ex. I, the City moved Hemphill to a different work area and investigated the alleged violators. See Cerros v. Steel Techs., Inc., 398 F.3d 944, 954 (7th Cir.2005) (prompt investigation is "a hallmark of reasonable corrective action"). The City's remedial action was not only "reasonably calculated to prevent further harassment," it did, in fact, stop the harassment. Knabe, 114 F.3d at 411 n. 8. Such remedial action is "adequate as a matter of law." Id.; see Skidmore v. Precision Printing & Packaging, Inc., 188 F.3d 606, 616 (5th Cir.1999) (remedial action of moving plaintiff to a different shift was adequate where harassment stopped, even though plaintiff remained "uncomfortable," employer conducted no investigation until months later, and harasser was not reprimanded).
Moreover, Hemphill "has presented no evidence that there would have been a hostile work environment had she returned"
The record before me shows any harassment Hemphill suffered as CSS ceased when she was removed from the Call Center. Absent some non-speculative showing by Hemphill that such harassment continued after her removal, or would have continued had she returned to the Call Center, no reasonable jury could conclude the City's remedial action was inadequate. See Weston, 251 F.3d at 427. Under these circumstances, Hemphill has not demonstrated a genuine factual dispute regarding the City's respondeat superior liability, an element she must prove at trial.
In her second cause of action, Hemphill alleges the City retaliated against her in violation of Title VII by forcing her to resign from the CSS position and return to her "non-merit" position with the Chief of Police after she complained about Drummond and Husser. See Compl. at Count II. Hemphill has marshaled barely sufficient evidence to defeat summary judgment on her retaliation claim. The record contains at least some evidence from which a reasonable juror could conclude Hemphill's return to her position with the Chief of Police was not voluntary.
To establish a prima facie case of retaliation under Title VII, Hemphill must show: (1) she engaged in a protected activity; (2) the City took an adverse employment action after or contemporaneous with the protected activity; and (3) the protected activity and the adverse employment action were causally linked. See Moore v. Phila., 461 F.3d 331, 340-41 (3d Cir.2006); Weston, 251 F.3d at 430; see also Wellman v. DuPont Dow Elastomers, L.L.C., 414 Fed.Appx. 386, 389 (3d Cir.2011).
The City briefly questions whether Hemphill engaged in protected activity, suggesting she never tied her hostile work environment complaint to allegations of race-based harassment. See Defs.' Br. at 16. However, for the reasons already discussed, the record contains evidence suggesting
The central dispute here, and the focus of the parties' briefs, is the second element: adverse employment action.
Hemphill contends she transferred back to her position with the Chief of Police involuntarily, after Srinivasan and Gillespie "strongly suggested" she do so and "suggested the possibility of a termination." Pl.'s Br. at 12, 18. She argues she was "[f]aced with a choice of an unsatisfactory probation, and being returned to a hostile environment," and she asserts she "was forced to choose the only avenue which [was] left open to her, reverting to her former non-merit position." Id. at 13. She bases her contention on the events that unfolded during her January 9, 2008 meeting with Srinivasan, and her January 14, 2008 meeting with Srinivasan and Gillespie. Hemphill left the first of these meetings believing Srinivasan had taken the ninety-day probation extension "off the table," meaning her "probationary period [was] about to expire in a matter of days." Court Ex. 1. She further believed, based on his statements in the meeting, Srinivasan had determined she "had not satisfactorily completed [her probation]." Pl.'s App. at B202.
Against this backdrop, only days later Gillespie "strongly suggested" that Hemphill refer to a City code provision permitting promoted employees to return to their previous positions. Court Ex. 1. Hemphill understood the code provision to mean she would not be permitted to return to her previous position if her probationary period were deemed unsuccessful. See id.
Based on Hemphill's accounts of these two meetings, a reasonable juror could conclude Hemphill reasonably perceived she was faced with a choice between requesting a transfer to her previous position with the Chief of Police and losing her
Because a material factual dispute exists regarding whether Hemphill was forced to transfer or constructively discharged from her supervisory position, the City is not entitled to summary judgment on Hemphill's retaliation claim.
An appropriate order follows.
AND NOW, this
1. The motion is granted as to Count I of Plaintiffs Complaint, which is hereby
2. The motion is denied as to Count II of Plaintiff's Complaint.
