SARAH EVANS BARKER, District Judge.
This cause is now before the Court on Defendant's Motion for Summary Judgment [Docket No. 66], filed on December 23, 2011. Plaintiff, Marilyn D. Hughes, brings her claim against her former employer, Defendant, the City of Indianapolis, Department of Public Works ("the City"), for its allegedly discriminatory actions toward her based on her gender in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
On August 12, 2002, Ms. Hughes began working as a dispatcher for the Indianapolis Department of Public Works ("DPW"). On March 13, 2006, she became a semi-skilled laborer within the DPW Operations Division and subsequently became a Maintenance Operations Technician on October 27, 2007. During all times relevant to this litigation, Ms. Hughes worked at DPW's West Street garage. On September 8, 2009, Ms. Hughes was terminated. The reason given for her termination was that she had engaged in unbecoming conduct while at work. At that time, Brian Lawrence was the assistant administrator who had authority over Ms. Hughes, Michael Dale was her manager, and Richard Scott and Mark Handcock were her supervisors.
Shortly after Ms. Hughes began her employment with DPW, on August 21, 2002, she signed an Employee Manual Acknowledgment form that stated that it was her responsibility to read the Manual, to ask questions of her supervisor if she required additional information about any of the items addressed in the Manual, and to abide by all of the information, policies, and procedures explained therein. In October 2003, the City revised its Employee Manual; thus, on December 1, 2003, Ms. Hughes signed another Employee Manual Acknowledgment form, agreeing to abide by all of the revised policies and procedures.
The City's Employee Manual contains a Standards of Conduct Policy which provides in relevant part as follows:
Ex. C-22 (Employee Manual) at 21. The conduct policy further provides that violations of "these Standards of Conduct, or any other policy or procedure set forth in this manual will result in corrective action, up to and including discharge."
The Employee Manual also contains the City's Workplace Harassment policy, which states that the City "is committed to providing a working environment that is pleasant, healthy, comfortable, and free from intimidation, hostility, or harassment of any kind."
The City also has a policy prohibiting discrimination in employment decisions, which states that the City "administers all terms and conditions of employment without regard to race, color, disability, religion, sex, age, national origin, or veteran status, except when such constitutes a bona fide occupational qualification."
During her tenure at DPW, Ms. Hughes was disciplined on five occasions for threatening, abusive, or discourteous conduct. On October 31, 2006, Ms. Hughes received a verbal warning for being "discourteous or disrespectful to [a] fellow employee." Ex. C-8. Almost one year later, on September 25, 2007, Ms. Hughes was disciplined for an incident in which she was alleged to have refused a "reasonable order of a supervisor" after she was instructed by her supervisor to clean up the garage and she replied that she was not going to comply with that instruction. As a result of this incident, Ms. Hughes received a written counseling notice. Ex. C-9. On January 12, 2009, she was issued a verbal warning for allegedly "cussing" and calling co-workers names. Ex. C-10.
On April 2, 2009, Ms. Hughes was disciplined after it was alleged that she had threatened, intimidated, and harassed her crew leader, Jerry Middleton. Mr. Middleton submitted a statement to DPW management complaining that Ms. Hughes had confronted him about a statement he had made about her at a crew meeting and told him: "I have no respect for you, and as long as you do as I say, everything will be all right [sic]." Exh. C-12. Middleton further alleged that, although he walked away in an attempt to avoid further confrontation, Ms. Hughes continued to repeat the same statement over and over again. Ms. Hughes contends that all she said was that she did not want to talk to him unless it was work related and if he abided by that, "they will be just fine." Hughes Dep. at 46.
As a result of this incident, Mr. Middleton stated that he felt he was working in a hostile environment and asked that Ms. Hughes be removed from his crew. Exh. C-12. Two members of Mr. Middleton's crew, Garland Graves and Jack Albright, had observed the incident and signed Middleton's prepared statement. Following an investigation into the incident, a supervisor at DPW concluded that Ms. Hughes had made threatening and intimidating remarks. Ms. Hughes was issued a written counseling notice and her supervisor noted that the incident was "a second instance" of such behavior and that "further infractions will be progressive in discipline."
On September 2, 2009, Mr. Middleton submitted another statement to DPW management regarding an incident involving Ms. Hughes that occurred on August 31, 2009. According to Mr. Middleton, Ms. Hughes came up to him and stated, "I found somebody that knows you, and I'm gonna get you." Exh. C-13. He responded, "So." Ms. Hughes then grinned at him and walked away. Ms. Hughes denies that she made such a statement. The next day, Mr. Middleton observed Ms. Hughes taking his picture. In his statement, Mr. Middleton wrote, "I am continually made to feel threatened when she is around. I feel that with her continued harassment, my place of business has become a hostile work environment."
On September 8, 2009, a pre-disciplinary meeting was held at which Mr. Lawrence discussed his findings with Ms. Hughes and her union representative. During that meeting, Ms. Hughes was terminated for unbecoming conduct and for violating the City's Standard of Conduct as described in the Employee Manual. Mr. Lawrence prepared a report memorializing his findings and noting that Ms. Hughes "has been warned in the past that this is not acceptable behavior and has been disciplined for this on 1/12/2009 and 4/02/2009." Exh. C-14. Ms. Hughes challenged her termination through the available two-step grievance procedure, but her termination was upheld. Exhs. C-15; C-16.
Following her termination, Ms. Hughes filed two EEOC charges. In the first charge, filed the same day as her termination, she alleged that her termination was discriminatory. Specifically, Ms. Hughes alleged as follows:
Exh. A.
Ms. Hughes filed a second charge, approximately five months later, on February 22, 2010. In that charge, she added additional claims of racial discrimination and retaliation, and also alleged that she had been subjected to an employee's sexual gestures in May 2009. The narrative section of her charge provided as follows:
Ex. B.
The only sexual harassment allegations contained in Ms. Hughes's EEOC charges relate to sexual gestures allegedly made by Richard Scott, a supervisor at DPW. According to Ms. Hughes, "Scott would look at [her], open his mouth and roll his tongue down up underneath his chin and back in his mouth." Exh. I at 5. When asked at her deposition to clarify the gesture allegedly made by Mr. Scott, Ms. Hughes testified that, while looking directly at her, Scott "would open up his mouth, roll his tongue around and flip his tongue up underneath his chin." Hughes Dep. at 56. Ms. Hughes testified by deposition that she first complained about Mr. Scott's behavior in May or June of 2009 and made a second complaint when "it happened again."
Although she did not include the following allegations in either of her EEOC charges, Ms. Hughes now claims that she was also subjected to sexual harassment from other employees during her tenure with the DPW. According to Ms. Hughes, in May 2006, co-worker Tony Dilosa made derogatory comments about her rear end and when she complained to Danny Quintana, who was her supervisor at the time, he told her, "[T]hese guys are men, don't think because you are here they are going to change. Keep your mouth closed and go with the flow."
Later that year, in October 2006, fellow employee, William Abney, allegedly called Ms. Hughes a "black bitch" after she refused to purchase a product he was selling. Ms. Hughes reported the comment to Mr. Quintana, but he informed her he was not going to get involved. When Mr. Abney continued to make derogatory comments, she called him "retarded." Mr. Abney reported the incident to Mr. Quintana who gave Ms. Hughes a verbal warning as discipline for violating the courtesy and disrespect clause.
During the time period that Ms. Hughes worked on the guardrail crew, from mid-2008 to April 2009, another co-worker, Jerry Woods, allegedly made comments about the size of women's breasts, stating "how he could put his head between a breast, how he would love to suck those big ass tits, things of that nature."
On April 20, 2010, the EEOC issued Ms. Hughes right to sue letters for both of the charges she had filed. On June 24, 2010, Ms. Hughes filed her original complaint, which was subsequently amended on March 2, 2011, alleging claims for sexual harassment, race and sex discrimination, and retaliation, all in violation of Title VII, and various breach of contract claims. The City filed its motion for summary judgment on all claims on December 23, 2011.
Summary judgment is appropriate when the record shows that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c);
The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact."
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes.
A plaintiff's self-serving statements, which are speculative or which lack a foundation of personal knowledge, and which are unsupported by specific concrete facts reflected in the record, cannot preclude summary judgment.
The summary judgment standard is applied rigorously in employment discrimination cases, because intent and credibility are such critical issues and direct evidence is rarely available.
Ms. Hughes contends that the City subjected her to sexual harassment, in violation of Title VII, by allowing several employees' sexually offensive behavior to continue after she had complained to her supervisors. The City rejoins that most of Ms. Hughes's allegations relating to her hostile work environment claim are outside the scope of her EEOC charge and thus cannot be considered, and further, that the allegations that do survive are not sufficiently severe or pervasive to be actionable.
"As a general rule, a Title VII plaintiff cannot bring claims in a lawsuit that were not included in her EEOC charge."
Clearly, Ms. Hughes is foreclosed from asserting factual allegations in her Amended Complaint which are outside the scope of her EEOC charges to support her sexual harassment claim. Here, Ms. Hughes's February 22, 2010 EEOC charge addressing her sexual harassment claim alleges only that, in May 2009, she reported to her manager, Greg Morse, that she had been subjected to "sexual gestures" by a supervisor, Richard Scott and that, when Scott made the sexual gestures on a subsequent occasion, she reported the situation to Union Steward Kenny Stringer who allegedly laughed at her. There is no mention of any of the other incidents of sexually harassing behavior alleged to have been committed by other co-workers that have been included in her Amended Complaint and that she attempts to rely upon to support her hostile work environment claim. Because the additional allegations contained in her Amended Complaint involve entirely different conduct and individuals than the allegations in her EEOC charge, they cannot "reasonably be expected to grow out of an EEOC investigation of the allegations in the charge."
In order to survive summary judgment on this claim, Ms. Hughes must establish that: "(1) her work environment was both objectively and subjectively offensive; (2) the harassment complained of was based on her gender; (3) the conduct was either severe or pervasive; and (4) there is a basis for employer liability."
Because the majority of Ms. Hughes's sexual harassment allegations occurred outside the scope of her EEOC charge, the only remaining, actionable allegations are those related to Mr. Scott's behavior. Ms. Hughes alleges that Mr. Scott looked directly at her and "open[ed] up his mouth, roll[ed] his tongue around and flip[ped] his tongue up underneath his chin." Hughes Dep. at 56. Ms. Hughes testified that she complained of his behavior in May or June of 2009 and then complained a second time when "it happened again."
Under Title VII, it is unlawful for an employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race." 42 U.S.C. § 2000e-2(a)(1). A plaintiff may prove discrimination under Title VII either with direct evidence of discrimination or indirectly through the burden-shifting analysis established in
Under the
The City does not challenge the first and third prongs of Ms. Hughes's prima facie case, to wit, that she is a member of a protected class and that she was terminated, which constitutes an adverse employment action. Thus, in determining whether Ms. Hughes established a prima facie case, we need only consider whether she was meeting the City's legitimate job expectations and whether similarly situated male employees received more favorable treatment.
The City maintains that Ms. Hughes was not meeting its legitimate performance expectations because she engaged in threatening behavior toward other employees, in violation of its Standards of Conduct. Ms. Hughes does not deny that she engaged in at least some of the behavior that the City contends violated its Standards of Conduct and led to her termination.
Ms. Hughes claims that, although the City terminated her for threatening other employees, it did not terminate similarly situated male employees and instead afforded them the benefit of the progressive discipline policy. For an employee to be similarly situated to a plaintiff for purposes of Title VII comparison, a plaintiff "must show that there is someone who is directly comparable to her in all material respects."
"In a disparate discipline case, the similarly-situated inquiry often hinges on whether co-workers `engaged in comparable rule or policy violations' and received more lenient discipline."
In support of her argument, Ms. Hughes identifies four employees as comparators: Randall Irvin, William O'Fallon, Eligh McDaniels, and George Bryant. The parties do not dispute that Ms. Hughes and the individuals she identified as comparators shared the same supervisor(s), had similar qualifications, and were subject to the same standards. The City contends that they are nonetheless not similarly situated for Title VII purposes because the nature of their conduct is obviously distinguishable. Specifically, the City argues that Ms. Hughes had a documented history of insubordination and threatening behavior, while none of the individuals she identified as being similarly situated had such extensive disciplinary records.
We agree with the City that Eligh McDaniels, who was disciplined only one time, eight years prior to Ms. Hughes's termination, for a single threat that he "was going to kick [a co-worker's] ass," is not similarly situated to Ms. Hughes. This one incident, which took place years before the events occurred at issue in this litigation, is clearly distinguishable from the numerous negative comments and threats attributed to Ms. Hughes by various co-workers.
The other employees identified by Ms. Hughes cannot be distinguished so easily, however. Randall Irvin and William O'Fallon were each disciplined following an incident at a public job site in which Mr. Irvin "bumped" Mr. O'Fallon with the Gehl Bobcat machine he was operating, knocking Mr. O'Fallon to the ground. When Mr. O'Fallon stood up, Mr. Irvin allegedly told him, "If you don't get out of the way, I will hit you again." O'Fallon Dep. at 9. In response, Mr. O'Fallon threw a broom at Mr. Irvin who threw it back at O'Fallon. Neither Irvin nor O'Fallon reported the incident to their supervisors. However, a citizen witnessed the events and telephoned the DPW to complain. Mr. Irvin was originally terminated by his supervisor, Michael Dale, for unbecoming behavior (the same reason given for Ms. Hughes's termination) as well as "damag[ing] the city's reputation and the public trust by . . . intentionally using a piece of city equipment to inflict bodily injury to another employee, while out on the jobsite." Exh. C-17. Mr. Irvin filed a grievance and his termination was subsequently overturned by Brian Lawrence, citing the fact that the union steward, Kenneth Stringer, explained that the incident could have been an accident and that Irvin may not have intentionally hit Mr. O'Fallon. Mr. Irvin was instead placed on a 90-day probationary period and was not terminated. Mr. O'Fallon received a written warning for throwing the broom.
There is also evidence in the record that, in addition to this incident, both men had engaged in insubordination and other misconduct on prior occasions. Mr. Irvin had received various written notices during his tenure with the City for such offenses as refusing assignments, using profanity, "name calling," and telling his crew leader to "suck his dick." Mr. O'Fallon was previously disciplined a number of times, including, on one occasion, for telling his supervisor, "[you] don't have a fucking clue." On another occasion, one of Mr. O'Fallon's co-workers, William Pagel, reported to their supervisor that O'Fallon had twisted Pagel's wrist and injured it.
It is true that Ms. Hughes, Mr. Irvin, and Mr. O'Fallon did not violate the City's policies in an identical manner. However, the Supreme Court has made it clear that "precise equivalence in culpability between employees" is not required to establish that they are similarly situated.
The final employee Ms. Hughes has identified is George Bryant, who allegedly made threatening remarks to a co-worker, Richard Allen, over a number of months, but received no discipline other than a lateral transfer. The City contends that, although both Ms. Hughes and Mr. Bryant allegedly engaged in threatening behavior, Mr. Bryant is not similarly situated to Ms. Hughes because his conduct was never reported, and thus, no supervisors were aware of his alleged misconduct. However, Mr. Allen testified by deposition that some of Mr. Bryant's comments were made directly in front of supervisors and that he (Allen) reported other incidents to supervisors, including Mr. Lawrence. According to Mr. Allen, he had three meetings with Mr. Lawrence and reported that Mr. Bryant was "making my job miserable every day" by "always wanting to fight" and "cussing at me." Allen Dep. at 11. Mr. Allen further testified that he also told supervisors that Mr. Bryant would repeatedly tell Allen about all of the guns he owned and would talk about shooting people, which Allen believed was a "veiled threat."
For the reasons detailed above, we find that Ms. Hughes has identified three male comparators who dealt with the same supervisor(s), were subject to the same standards, and engaged in conduct that a reasonable jury could find was of comparable seriousness and yet were not disciplined as harshly as she. This is sufficient at this stage of the litigation to permit a reasonable inference of discrimination, and thus, we proceed to the pretext discussion.
The City has offered a legitimate nondiscriminatory reason for terminating Ms. Hughes, to wit, that she threatened other employees and had a history of insubordination. But as discussed above, Ms. Hughes has presented evidence that three male employees engaged in behavior that a reasonable jury could find was comparably serious and were not discharged. This inconsistency creates a genuine issue of material fact as to whether the City's stated reason for terminating Ms. Hughes was a pretext for discrimination.
For the reasons detailed in this entry, we
IT IS SO ORDERED.
