MAX O. COGBURN JR., District Judge.
At all times relevant to this action, plaintiff was a fill-in mail carrier employed by the United States Postal Service at its West Asheville station. Plaintiff contends that her route supervisor, David Duncan ("Duncan"), sexually harassed her by forcing her to engage in an exchange of sexually explicit text messages and pictures for 10 months in 2010. Plaintiff never brought such conduct to the attention of Duncan's supervisor, who was present at the West Asheville station, or otherwise availed herself of the postal services' written sexual harassment procedures. The inappropriate conduct only ended — and ended immediately — when plaintiff's husband discovered the texts and brought them to the attention of the local postmaster. After the postal service investigated the allegations, Duncan's employment was terminated by the postmaster in little more than two months; however, Duncan ultimately received a lesser punishment when he appealed the termination to the Merit System Protection Board, which downgraded his position, assigned him to another location, and placed him on probation.
Defendant has moved for summary judgment contending that plaintiff's failure to report the harassment was unreasonable; that Duncan does not qualify as a "supervisor" under current law; and that because defendant had in place an effective anti-harassment policy, it is entitled to dismissal in accordance with its affirmative defense. Plaintiff contends that summary judgment is not appropriate because she failed to report the conduct based on fear of retaliation; that Duncan was a supervisor as he controlled her work hours and routes; and that defendant is not entitled to avail itself of its affirmative defense under Faragher, infra, as the anti-discrimination policy was not effective.
Rule 56 was amended to give parties a "roadmap" for seeking and responding to a request for summary judgment. Rule 56(a), Federal Rules of Civil Procedure, provides:
Fed.R.Civ.P. 56(a). The rule goes on to provide procedures for a party to use in responding to a Motion for Summary Judgment:
Fed.R.Civ.P. 56(c). On a motion for summary judgment, the moving party has the burden of production to show that there are no genuine issues for trial. Upon the moving party's meeting that burden, the non-moving party has the burden of persuasion to establish that there is a genuine issue for trial.
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citations omitted; emphasis in the original) (quoting Fed.R.Civ.P. 56). There must be more than just a factual dispute; the fact in question must be material and readily identifiable by the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
By reviewing substantive law, the court may determine what matters constitute material facts. Anderson, supra. "Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Id. at 248, 106 S.Ct. 2505. A dispute about a material fact is "genuine" only if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Id. The court must credit factual disputes in favor of the party resisting summary judgment and draw inferences favorable to that party if the inferences are reasonable, however improbable they may seem. Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir.1980). Affidavits filed in support of a Motion for Summary Judgment are to be used to determine whether issues of fact exist, not to decide the issues themselves. United States ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir.1971). When resolution of issues of fact depends upon a determination of credibility, summary judgment is improper. Davis v. Zahradnick, 600 F.2d 458 (4th Cir.1979).
In determining whether a genuine issue of material fact exists, the admissible evidence of the non-moving party must be believed and all justifiable inferences must be drawn in his or her favor. Anderson, supra, at 255, 106 S.Ct. 2505 In the end, the question posed by a summary judgment motion is whether the evidence "is so one-sided that one party must prevail as a matter of law." Id., at 252, 106 S.Ct. 2505.
Defendant contends, inter alia, that the postal service is, like other corporations, protected from liability under Title VII because: it had in place a written policy prohibiting workplace harassment or discrimination; that it took immediate steps to investigate plaintiff's allegations once they were made; that such investigation was adequate; and that Duncan was plaintiff's
Title VII prohibits practices that "discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment ... Such discrimination includes maintaining a... hostile work environment." Jordan v. Alternative Resources Corp., 458 F.3d 332, 339 (4th Cir.2006). "To state a hostile work environment claim, [Plaintiff] must allege that: (1) she experienced unwelcome harassment; (2) the harassment was based on her gender, race, or age; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) there is some basis for imposing liability on the employer." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 764 (4th Cir.2003).
EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir.2008) (internal quotations and citations omitted). The Fourth Circuit has found that this is a high bar and that a plaintiff must
Id. at 316 (internal quotations omitted); see also EEOC v. Fairbrook Medical Clinic, 609 F.3d 320, 328-29 (4th Cir.2010) (denying summary judgment where supervisor targeted plaintiff with highly personalized comments about her breasts and sex drive designed to demean and humiliate her in front of co-workers and the public); Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 336 (4th Cir.2010) (denying summary judgment where plaintiff showed that repeated comments about sexual encounters with young women and constant demeaning remarks about women caused her significant emotional distress). A totality of the circumstances test is applied when evaluating the question of whether alleged harassment altered the conditions of employment.
Critical to the inquiry is whether the alleged harasser is a co-worker or a supervisor. Here, plaintiff contends that Duncan was her supervisor. In Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), the Supreme Court determined that if the harasser is a supervisor who takes a tangible employment action against the employee victim, then the employer can be held to be vicariously liable for that supervisor's actions. Id. Where the harasser is a supervisory employee who does not take a tangible employment action against the employee, then the employer could still be vicariously liable, with such liability subject to the employer's assertion of an affirmative defense that the employer took reasonable care to prevent and correct any harassment and the plaintiff failed to take advantage of those opportunities. Id. at 807. Where the alleged harasser is not a supervisory employee, Faragher provides that such employee is a co-worker and plaintiff must come forward with evidence that the employer was negligent "with respect to the offensive behavior." Vance v.
Thus, the first consideration for this court is whether Duncan was plaintiff's supervisor or merely a co-worker, which is a question of law. Id. In Vance, the Supreme Court significantly limited the definition of Title VII "supervisor" to those agents of the employer who have the authority to effect a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Vance, 133 S.Ct. at 2444. "If the alleged harasser is a coworker of the plaintiff, liability attaches to the employer if the employer was "negligent in controlling the working conditions" id.; however, if the harasser was plaintiff's supervisor and the supervisor's harassment "culminates in a tangible employment action," the employer is strictly liable." Id. (quoting Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). Where the alleged harasser is the supervisor, but the harassment does not culminate in a tangible employment action, liability will not attach if the employer can establish an affirmative defense that it exercised reasonable care to prevent and correct any harassing behavior and that the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities that the employer provided. Id. at 2439. Plaintiff has presented evidence that Duncan's position was titled "route supervisor" and that he had the authority to assign employees "good routes" or "bad routes" and, since she was a fill-in employee, Duncan also had the ability to impact the number of hours plaintiff worked each week. The situation presented here is not unlike the situation addressed in Vance: there, plaintiff was a catering assistant who alleged that she had been repeatedly harassed by a catering specialist, Davis, who was given leadership responsibilities and led or directed the work of Vance and other employees in defendant's kitchen. Id. at 2454. The parties in Vance also agreed that Davis had no authority to hire, fire, promote, transfer, or discipline plaintiff.
This leaves this court with a question unaddressed by Vance, which is whether a person who has the ability to determine the number of hours a person works during a week is person who can bring about a "significant change in employment status.... [or] benefits." Id. at 2444.
Post-Vance, the courts that have addressed similar issues have determined that similarly situated co-workers with the ability to control hours worked were not supervisors. First, in McCafferty v. Preiss Enterprises, Inc., 534 Fed.Appx. 726, 731-32 (10th Cir.2013), an unpublished decision, a panel of the Tenth Circuit Court of Appeals held that a shift manager with the power to schedule employees to different shifts and hours was not a supervisor within the meaning of Vance.
Ultimately, the intent in Vance was to take the guess work out of determining who is and who is not a supervisor capable of creating vicarious liability for his or her employer. Indeed, the Court held that under its new standard, such matter "will generally be capable of resolution at summary judgment." Id. at 2449. Applying the standard set forth in Vance to the facts of this case, the court concludes, as a matter of law, that Duncan was not plaintiff's supervisor within the meaning of Title VII as none of the evidence submitted shows that Duncan was empowered to take tangible employment actions against plaintiff. While at first blush the ability to assign hours may appear to be tangible, the impact of that ability is tempered where, as here, Duncan's immediate supervisor, Ms. Clayton, was present at the West Asheville station since at least mid-June 2010. Indeed, plaintiff's argument that vicarious liability should attach based on the ability to control an employee's hours (either overtime or regular work
Having first determined that the alleged harassment was by a co-worker rather than a supervisor, the burden is now plaintiff's to come forward with evidence upon which a jury could find that the postal service was negligent in controlling the working conditions at the West Asheville Post Office. Vance, 133 S.Ct. at 2444. To meet this standard, plaintiff must prove the employer "knew or should have known about the [harassing] conduct and failed to stop it." Burlington Industries, Inc. v. Ellerth, 524 U.S. at 759, 118 S.Ct. 2257. In this case, it is undisputed that plaintiff never told the postmaster of allegedly harassing behavior of Duncan and that the postmaster first knew of the activities when the plaintiff's husband discovered the texts and reported them to the employer. It is equally undisputed that the postmaster took immediate and significant action to both investigate the complaint and, ultimately, to discipline Duncan.
In the Fourth Circuit, "a good faith investigation of alleged harassment may satisfy the `prompt and adequate' response standard, even if the investigation turns up no evidence of harassment." Harris v. L & L Wings, Inc., 132 F.3d 978, 984 (4th Cir.1997) (citing Kilgore v. Thompson & Brock Management, Inc., 93 F.3d 752, 754 (11th Cir.1996)). In this case, plaintiff presented no evidence that the investigation was a sham or that it was not intended to uncover the truth concerning the allegations of sexual harassment. Jordan v. Donahoe, 2013 WL 3893532 (E.D.Va. July 26, 2013), aff'd, 549 Fed.Appx. 213 (4th Cir.2014). Because plaintiff has failed to present evidence upon which a jury could find the postmaster or the postal service was negligent in controlling the working conditions at the West Asheville Post Office, plaintiff's Title VII hostile work environment claim fails as a matter of law.
Plaintiff may also have asserted a claim for quid pro quo harassment, which is defined as "harassment in which a supervisor demands sexual consideration in exchange for job benefits," Katz v. Dole, 709 F.2d 251, 254 (4th Cir.1983), see also Spencer v. General Electric Co., 894 F.2d 651, 658 (4th Cir.1990). In such a claim, the supervisory harasser conditions employment benefits on the employee's submitting to the sexual advances or threatening adverse employment actions if the employee does not submit. Tomkins v. Public Serv. Elec. & Gas Co., 568 F.2d 1044 (3d Cir.1977). "Benefits" may include the taking of adverse employment action against an employee who refuses to submit to the supervisor's sexual advances. Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir.1987). While plaintiff points to route assignments and being told to report late, route assignment was not a tangible aspect of her employment as she and others were expected to complete either assignment and accepting that reporting late could have impacted her hours, plaintiff testified that during the period of alleged harassment, she received a full complement of hours and even overtime and that she never made so much money as she did in 2010.
In the end, however, plaintiff's quid pro quo claim fails for the same reason her hostile work environment claim fails: Duncan was not a supervisor as a matter of law, an essential element of a quid pro quo
While in no manner condoning the alleged actions of Duncan in a workplace that should be free of harassment or discrimination, plaintiff's claims cannot survive summary judgment as Duncan was not plaintiff's supervisor and the postal service has in place an effective written policy that swiftly dealt out discipline to Duncan once the misconduct was brought to the attention of management at the West Asheville station. Although not part of the Vance analysis, the court found most informative the reaction of Duncan's supervisor, Ms. Clayton, when she learned of his misconduct: plaintiff testified that Ms. Clayton was angry with her not for reporting Duncan's conduct but for not reporting it earlier, and asked "[w]hy didn't you come to me?" The court finds that this case is precisely why the Faragher defense came about: an employer should not be held liable where an employee fails to take advantage of a facially effective plan aimed at making the workplace free of harassment. Plaintiff's fear of retaliation was without any plausible basis, especially where, as here, plaintiff was confident enough to meet with Ms. Clayton on an unrelated personnel matter earlier that year. Def. Ex. 12 at pp. 1-2. Indeed, there was some evidence that plaintiff was familiar with the postal service's policy as she had filed an earlier EEO claim. Finding that no genuine issues of fact remain for trial and that defendant is entitled to judgment as a matter of law, the court enters the following order.
