MITCHELL S. GOLDBERG, District Judge.
In this employment discrimination case, Plaintiff, Jessica Harrison-Harper, alleges that she was sexually harassed by one of her female subordinates. Plaintiff further alleges that her employer, Defendant Nike, Inc., failed to remedy the harassment and terminated her in retaliation for complaining about it to her supervisor.
Plaintiff has asserted hostile work environment and retaliation claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951, et seq. Currently before me is Defendant's Motion for Summary Judgment. For the reasons that follow, Defendant's Motion will be granted and Plaintiff's claims dismissed.
The following facts are set out in the light most favorable to Plaintiff.
Plaintiff began employment with Defendant on July 7, 2014, as store manager of a Converse retail store. Plaintiff was responsible for, among other things, managing the store's sales staff. That staff included three team "leads," two of whom are relevant to this matter: Jessica Lepera and Tiffany Weil. Plaintiff hired both Ms. Lepera and Ms. Weil in the summer of 2015. (Def.'s SOF ¶¶ 1-2, 10, 12-14; Pl.'s Resp. to Def.'s SOF ¶¶ 1-2, 10, 12-14.)
While employed as one of Plaintiff's leads, Ms. Lepera commented, "more than one time" but not daily, that Plaintiff was attractive. She would remark that Plaintiff was "really hot," and make similar statements, such as "you look hot" and "look at my sexy boss." Ms. Lepera also remarked that she was "jealous" of Ms. Weil because both Plaintiff and Ms. Weil were lesbians, and thus "had something in common." Plaintiff did not believe that Ms. Lepera was lesbian or bisexual, as Ms. Lepera had a boyfriend. However, Ms. Lepera quipped, "over a handful of times," that she wanted to be a member of the lesbian "club." Plaintiff felt that these comments were "weird," "off-placed," and "just stupid," and made her uncomfortable. (Def.'s SOF ¶¶ 117, 124-125; Pl.'s Resp. to Def.'s SOF ¶¶ 117, 124-125; Pl.'s SOF ¶¶ 29-34, 36-38; Def.'s Resp. to Pl.'s SOF ¶¶ 29-24, 36-28; Pl.'s Dep. 126:20-127:3.)
In late August 2015, Plaintiff learned from her other lead, Ms. Weil, that Ms. Lepera had been saying other things about her outside of her presence. Ms. Weil informed Plaintiff that Ms. Lepera told other employees that Plaintiff was flirting with people in the store, including minors. Plaintiff further learned that Ms. Lepera had told employees that she and Plaintiff would frequently "h[ang] out [together] at gay clubs." Additionally, Plaintiff learned that Ms. Lepera had sent Ms. Weil a screenshot of a post from Plaintiff's girlfriend's social media account. The post contained a photo of Plaintiff's girlfriend with another female, on which Plaintiff had posted a comment: "Two beautiful ladies." In sending the post to Ms. Weil, Ms. Lepera remarked that Plaintiff was "so alpha over her woman [that] she's got to comment on the pictures." (Def.'s SOF ¶¶ 118-123; Pl.'s Resp. to Def.'s SOF ¶¶ 118-123; Pl.'s Dep. 119:25-120:12.)
As store manager, Plaintiff's immediate supervisor was the district manager for the Pennsylvania/New Jersey district. Beginning on September 21, 2015, that position was filled by Josh Sanders. Before becoming district manager, Mr. Sanders knew who Plaintiff was, but did not have any interactions with her. Mr. Sanders was not aware, at that time, of any issues with Plaintiff's performance or the condition of her store, which Mr. Sanders understood to be running smoothly. (Def.'s SOF ¶¶ 3, 5, 9; Pl.'s Resp. to Def.'s SOF ¶¶ 3, 5, 9; Pls.'s SOF. ¶¶ 1-2; Def.'s Resp. to Pl.'s SOF ¶¶ 1-2.)
However, on September 24, 2015, a few days after becoming district manager, Mr. Sanders was copied on an email sent to Plaintiff by his supervisor—Defendant's Director of Stores, Kimberly Kiefer. The email concerned a complaint made by a customer who had visited Plaintiff's store and attempted to return a pair of sneakers. The customer complained that Plaintiff refused to accept the return and instead advised the customer that she "could sell the shoes on Ebay." The customer complained that this "embarrassed [her] in front of other customers." Ms. Kiefer instructed Plaintiff to "take care of this customer." (Def.'s SOF ¶¶ 6, 23-24, 26-27; Pl.'s Resp. to Def.'s SOF ¶¶ 6, 23-24, 26-27.)
Four days later, on September 28, Plaintiff reached out to Mr. Sanders by email, asking to "touch base" with him. Plaintiff followed up by email on October 2, providing Mr. Sanders a list of topics for discussion, including "[c]ustomer complaint update." The email did not mention any issues related to harassing behavior by Ms. Lepera. Mr. Sanders and Plaintiff would not discuss these matters until October 7. (Def.'s SOF ¶¶ 58, 59; Pl.'s Resp. to Def.'s SOF ¶¶ 58-59; Deposition of Joshua Sanders (hereinafter "Sanders Dep."), Ex. 8, at NIKE 0040.))
A few days before that discussion, on October 3, Mr. Sanders received an email from Ms. Lepera. The email contained a number of complaints about Plaintiff, including that she was unavailable to her staff and rarely worked weekends, despite company guidelines providing that store managers should do so. The email provided a list of weekends on which Plaintiff had allegedly not worked. Also copied on the email was Defendant's Senior Employee Relations Specialist, Crystal Barlow, who emailed Mr. Sanders stating that they should discuss the complaints about Plaintiff. (Def.'s SOF ¶¶ 8, 44-45, 48; Pl.'s Resp. to Def.'s SOF ¶¶ 8,44-45, 48.)
The same day, October 3, Mr. Sanders was forwarded another email sent by Tabitha Pezoldt, the manager of a Nike retail store located next door to Plaintiff's Converse store. In this email, Ms. Pezoldt noted that she received a complaint about Plaintiff from one of the leads in Plaintiff's store. Ms. Pezoldt explained, in a further email on October 6, that she had, on "multiple occasions," been approached by employees of Plaintiff's store who were "unsure as to what to do or even [had] concerns about not being able to reach their store manager [i.e. Plaintiff]." (Def.'s SOF ¶¶ 47, 49; Pl.'s Resp. to Def.'s SOF ¶¶ 47, 49; Dep. of Crystal Barlow, Ex. 7, at NIKE 000148.)
Another issue concerning Plaintiff's performance came to Mr. Sanders' attention on October 5. On that date, Plaintiff copied Mr. Sanders on an email that she sent to Defendant's Loss Prevention Supervisor, "reach[ing] out. . . . regarding an employee discount violation." Plaintiff was referring to an incident in which her relatives visited a Nike store and attempted to use her employee discount. Under Defendant's employee discount policy, relatives of Converse employees, like Plaintiff, could not obtain a discount at a Nike store unless accompanied by the employee. In this instance, however, Plaintiff did not accompany her relatives when they attempted to obtain the discount at the Nike store. In her email, Plaintiff apologized for this incident and noted that she had not "explained to [these relatives] the difference between shopping at Converse and Nike." (Def.'s SOF ¶¶ 31, 35-36, 39; Pl.'s Resp. to Def.'s SOF ¶¶ 31, 35-36, 39; Pl.'s Dep., Ex. 7.)
On October 6, Plaintiff sent Mr. Sanders a text message following up on her previous requests to "touch base." In this text message, Plaintiff alluded to Ms. Lepera's harassment for the first time, noting that she needed to speak to Mr. Sanders because a "lead ha[d] been saying things about [her]." (Def.'s SOF ¶ 62; Pl.'s Resp. to Def.'s SOF ¶ 62.)
Plaintiff and Mr. Sanders finally spoke by telephone the next day, October 7. In addition to discussing the customer complaint regarding Plaintiff's refusal to accept a return, they also discussed Ms. Lepera's alleged harassment.
After receiving Ms. Lepera's email complaining about Plaintiff's failure to work on weekends, Mr. Sanders reviewed the store's time and attendance records. He found that Plaintiff had not worked during the weekends listed in Ms. Lepera's email and that other store employees were not punching in on time. (Def.'s SOF ¶ 52; Pl.'s Resp. to Def.'s SOF ¶ 52.)
On October 10, Plaintiff emailed Mr. Sanders the store's "Performance Activity Record," in which store managers are responsible for documenting their employees' performance issues. (This document is referred to hereinafter as the "PAR log.") During a phone call on October 15, Mr. Sanders informed Plaintiff that the PAR log she provided was not complete, as it did not include failures by Plaintiff's staff to punch in on time, which failures had previously come to Mr. Sanders' attention. (Def.'s SOF ¶¶ 72-73, 75, 77; Pl.'s Resp. to Def.'s SOF ¶¶ 72-73, 75, 77.)
On October 27, Mr. Sanders visited Plaintiff's store and met with Plaintiff. During this meeting, they discussed the employee discount violation and Plaintiff's failure to document her staff's attendance policy violations on the PAR log. Mr. Sanders also learned from Plaintiff, during this meeting, that she had decided to rehire an employee named Maxine Bacon, whom Plaintiff had previously disciplined for an incident in which Ms. Bacon called Ms. Lepera a "bitch." Mr. Sanders suggested to Plaintiff that rehiring Ms. Bacon was not a good decision. (Def.'s SOF ¶¶ 19, 84-88; Pl.'s Resp. to Def.'s SOF ¶¶ 19, 84-88; Sanders Dep. 133:7-10.)
Following the October 27 meeting, Mr. Sanders sent a summary of the meeting to Ms. Barlow (Defendant's Senior Employee Relations Specialist). Mr. Sanders recommended to Ms. Barlow that Plaintiff be terminated in light of four issues: (1) the customer complaint, (2) the employee discount violation, (3) time and attendance violations by Plaintiff's employees and Plaintiff's failure to document those violations, and (4) Plaintiff's decision to rehire Ms. Bacon. Ms. Barlow agreed with Mr. Sanders' recommendation, as did Ms. Kiefer (Mr. Sanders' supervisor and Defendant's Director of Stores) and Defendant's Human Resources Business Partner, Derek Lachman. Mr. Sanders would not have been authorized to terminate Plaintiff without such approval. (Def.'s SOF ¶¶ 91-93, 98-99, 101, 105, 107; Pl.'s Resp. to Def.'s SOF ¶¶ 91-93, 98-99, 101, 105, 107.)
Mr. Sanders returned to the store the following day, October 28, and terminated Plaintiff. (Def.'s SOF ¶ 109; Pl.'s Resp. ¶ 109.)
On August 25, 2016, Plaintiff instituted suit, asserting claims for hostile work environment (Counts III & IV) and retaliation (Counts I & II) under Title VII and the PHRA. In her hostile work environment claims, Plaintiff alleges that she informed Mr. Sanders of Ms. Lepera's harassing comments and conduct, and that he failed to remedy them. And in her retaliation claims, Plaintiff alleges that she was terminated in retaliation for complaining about Ms. Lepera's harassment. Defendant has moved for summary judgment on all claims.
In its Motion, Defendant argues, among other things, that Plaintiff's hostile work environment claims fail because Ms. Lepera's comments and conduct are not sufficiently severe or pervasive to alter Plaintiff's conditions of employment. And as to Plaintiff's retaliation claims, Defendant argues, among other things, that Plaintiff has not put forward sufficient evidence to support a causal link between her complaint of harassment and her subsequent termination. I agree with Defendant as to these two arguments and, accordingly, will grant Defendant's Motion.
A party moving for summary judgment bears the initial burden of demonstrating that there are no genuine issues of material fact in dispute, and that judgment is appropriate as a matter of law. Fed. R. Civ. P. 56(a);
An issue is "genuine" if a reasonable jury could rule in favor of the non-moving party based on the evidence presented.
Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to h[er] compensation, terms, conditions, or privileges of employment, because of such individual's. . . sex." 42 U.S.C. § 2000e-2(a)(1).
Defendant contends that it is entitled to summary judgment on Plaintiff's hostile work environment claims for three reasons. First, Defendant argues that Plaintiff cannot demonstrate intentional discrimination on the basis of sex, as there is no evidence that Ms. Lepera's comments and conduct were motivated by sexual desire. Second, Defendant maintains that Ms. Lepera's comments were not sufficiently severe or pervasive to create a hostile work environment. And third, Defendant submits that Plaintiff cannot establish respondeat superior liability, because Ms. Lepera was a subordinate of Plaintiff, and thus Plaintiff had the authority to discipline her for her harassment. Because I agree with Defendant's second argument—that a reasonable jury could not find Ms. Lepera's comments and conduct to be sufficiently severe or pervasive to create a hostile work environment—I will grant Defendant's Motion as to Plaintiff's hostile work environment claims, and need not reach Defendant's other arguments.
To establish a claim for a hostile work environment, a plaintiff must show that her workplace was "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment."
In determining whether the comments and conduct at issue are sufficiently severe or pervasive to meet this standard, courts consider "the totality of the circumstances . . . includ[ing] the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."
First, Ms. Lepera's comments do not rise to the level of severe. Ms. Lepera's comments about Plaintiff's appearance—that she was "hot" and "sexy"—may be unprofessional and inappropriate for the workplace, but they are not objectively lewd, and are, at most, merely offensive.
Nor can any of Ms. Lepera's comments or conduct reasonably be considered "physically threatening or humiliating."
Nor does the frequency of Ms. Lepera's comments support Plaintiff's hostile work environment claims. While the comments were made "more than a handful of times," there is no evidence that they were made on a daily or even weekly basis.
Finally, the undisputed facts reflect that Ms. Lepera's comments and conduct had little effect on Plaintiff's work performance. In this regard, Plaintiff's description of the comments— as "weird," "off-placed," and "just stupid"—is telling. Beyond her testimony that the comments and conduct made her uncomfortable, Plaintiff has put forward no evidence of any serious impact on her work performance. While harassment need not "cause tangible psychological injury" to be considered severe or pervasive, it must do more than merely "engender[] offensive feelings."
In sum, the comments and conduct Plaintiff complains of cannot support a claim for hostile work environment. Accordingly, I will grant Defendant's Motion as to Plaintiff's hostile work environment claims.
"[T]o advance a prima facie case of retaliation, a plaintiff must show that: (1) [she] engaged in a protected employee activity; (2) the employer took an adverse employment action after or contemporaneous with [her] protected activity; and (3) a causal link exists between [her] protected activity and the employer's adverse action."
Defendant does not dispute that Plaintiff's termination was an adverse employment action, but does dispute whether Plaintiff engaged in protected activity, contending that Plaintiff did not complain to Mr. Sanders about sexual harassment. Additionally, Defendant contends that, even if Plaintiff did complain, there is insufficient evidence of a causal link between her complaint and her termination. Because I agree with Defendant's latter argument—that there is insufficient evidence of a causal connection—I will grant Defendant's Motion as to Plaintiff's retaliation claims.
In order to establish a causal connection for purposes of a prima facie case, a plaintiff must prove one of the following: "(1) an unusually suggestive temporal proximity between the protected employee activity and the adverse action, (2) a pattern of antagonism coupled with timing to establish a causal link, or (3) the evidence gleaned from the record as a whole infers causation."
"Where the temporal proximity between the protected activity and the adverse action is `unusually suggestive,' it is sufficient standing alone to create an inference of causality and defeat summary judgment."
In
Here, Plaintiff was terminated a relatively short time (three weeks) after reporting Ms. Lepera's harassment to Mr. Sanders. However, as in
In addition to the timing of her termination, Plaintiff argues that other aspects of the record support an inference of a causal link between her complaint of harassment and her termination. Specifically, Plaintiff contends that the record reveals three facts which support such a link: (1) that Mr. Sanders held a positive opinion of Plaintiff's performance before she complained of Ms. Lepera's harassment and that his opinion suddenly changed afterwards; (2) that other store managers were not terminated for the same reasons that Plaintiff was terminated; and (3) that the reasons for terminating Plaintiff were "weak, flimsy, and incapable of belief." (Pl.'s Opp'n 13.) However, as explained below, the undisputed record belies these arguments.
First, Plaintiff argues that Mr. Sanders held a positive opinion of her performance before her complaint of harassment, and that his opinion suddenly changed afterwards. Plaintiff is correct that an inference of retaliation can be drawn where a supervisor had praised an employee's performance before receiving a complaint of harassment, and suddenly adopted a different view afterwards.
Plaintiff notes that "in late September 2015, [Plaintiff's] store ran smoothly," and that "Plaintiff and her store were not on Mr. Sanders' radar as potential problems." (Pl.'s Opp'n 13 (citing Sanders Dep. 65:7-9, 66:11-14.)) However, it is undisputed that Mr. Sanders: (1) only became district manager on September 21, 2015, (2) did not have any interactions with Plaintiff before that time, and (3) received, within days of becoming district manager, the complaints on which Plaintiff's termination was largely based.
Plaintiff further posits that, prior to receiving her harassment complaint, Mr. Sanders "agreed that [she] displayed strong management skills" and "found that [she] exhibited signs of a solid manager and leader" by, among other things, "attending training sessions," appropriately "handl[ing] an altercation" in the store, and "delegating duties to her leads." (Pl.'s Opp'n 13 (citing Sanders Dep. 72:1-15, 72:16-21, 74:15-75:2 80:10-22, 81:21-82:5, 83:2-15.)) Plaintiff derives this conclusion from Mr. Sanders' deposition, in which Mr. Sanders merely agreed that certain actions Plaintiff took in late September and early October 2015 were appropriate and would be undertaken by a strong manager.
Second, Plaintiff attempts to establish a causal link by contending that Mr. Sanders did not terminate other managers for the reasons that Plaintiff was terminated. (Pl.'s Opp'n 14.) Evidence of disparate treatment of similarly situated store managers who had not complained of harassment could support an inference of a causal link.
Third and finally, Plaintiff contends that the reasons for terminating Plaintiff were "weak, flimsy, and incapable of belief." (Pl.'s Opp'n 13.) But Plaintiff's evidence in this regard supports, at most, the conclusion that the decision to terminate Plaintiff was not the wise or correct one—which is insufficient to support the conclusion that her termination was actually motivated by a retaliatory purpose.
In sum, "[t]he anti-discrimination laws do not transform this Court into a super-personnel department vested with the authority to second-guess the wisdom of business decisions."
For the reasons set out above, Defendant's Motion for Summary Judgment will be granted and judgment will be entered in favor of Defendant as to each of Plaintiff's claims.
An appropriate Order follows.
(Sanders Dep. 80:16-22.)