Elizаbeth LEVENDOS, Appellant, v. STERN ENTERTAINMENT, INC. and Stern Entertainment System, Inc.
No. 88-3079
United States Court of Appeals, Third Circuit
Decided Nov. 9, 1988
860 F.2d 1227
Argued June 22, 1988.
Ronald L. Hicks, Jr. (argued), Dennis Unkovic, Joseph A. Vater, Jr., Meyer, Unkovic and Scott, Pittsburgh, Pa., for appellee.
Before GIBBONS, Chief Judge, and HIGGINBOTHAM, Circuit Judge, and ROTH, District Judge.*
* Honorable Jane R. Roth, United States District Judge for the District of Delaware, sitting by designation.
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.
Elizabeth Levendos appeals the summary judgment entered by the district court in favor of Appellees Stern Entertainment, Inc. and Stern Entertainment Systems, Inc., in an action alleging discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, as amended,
We hold that appellant raised a genuine issue of material fact regarding whether she was constructively discharged from her job. Accordingly, we will vacate the district court‘s order granting summary judgment in favor of Appellees, and remand the case to the district court for further proceedings.
I.
Beginning in 1979, Elizabeth Levendos (“Levendos“) worked as a waitress at Les Nuages, a Pittsburgh restaurant owned by Stern Entertainment, Inc. and Stern Entertainment Systems, Inc. (“Stern“). Stern promoted Levendos to the positions of maitre‘d and pastry chef in or about September, 1981. Joint Appendix (“App.“) at 9-10.
According to an affidavit filed by Levendos, she “was the only female in a management position,” and that “[a]lthough males who had previously held th[e] position of maitre‘d were included in management meetings, [she] was not [so] included....” App. at 46 (affidavit of Elizabeth Levendos). She further stated that the general manager of the restaurant “boasted that [Levendos] would not be there long,” id. at 47, that “management ... told other employees that [she] did not fit the ‘mold’ for maitre‘d because [she] was a woman,” id., that the chef “was askеd ... by [the owner] to find a male to replace [her],” id., that “management ... falsely accusing [her] of stealing, drinking and fraternizing with employees,” id., and that “[o]ne evening [she] discovered wine bottles placed in [her] locker ... to make it appear as if [she] were stealing.” Id.
An affidavit filed by Robert Roth, one of Levendos‘s co-workers, stated that Levendos “had an excellent reputation at the restaurant[, that c]ustomers frequently came in and asked for her specifically,” App. at 51 (affidavit of Robert Roth), and that “she was written up in the Pittsburgh Press for her excellent work.” Id. at 52. He stated, moreover, his belief that the owner “liked the image of a male staff,” id., that the chef “acknowledged that [there] was a plan to get rid of her, and replace her with a male friend of [the chef],” id., and that the owner refused to meet with her. Id.
Both the affidavits included the affiants’ view that Stern management disliked women in general and viewed them as inferior. App. at 47, 54. Moreover, in the complaint that Levendos filed with the Equal Employment Opportunity Commission (“EEOC“), she alleged that she was not allowed to order supplies although a male mаnager was able to order them, id. at 13, and that she was replaced by a male friend of the chef. Id.
On April 22, 1982, Levendos resigned her position by letter to the owner, explaining that her action was precipitated because he suspected her of stealing. App. at 44.1 She filed the instant action on December 21, 1984. Id. at 6. Upon defendants’ motion for summary judgment, the district court found that even if the facts Levendos alleged were true, they did not establish, as a matter of law, that she was constructively discharged from her position. The court therefore granted summary judgment in favor of Stern. Levendos v. Stern Entertainment Inc., et al., Nos. 84-3051 and 84-3053, slip op. at 2 (W.D.Pa. Sept. 9, 1987), reprinted in App. at 61.2
We have often stated that in our review of a summary judgment, we must employ the same test that the district court applies. See Jackson v. University of Pittsburgh, 826 F.2d 230, 232 (3d Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 732, 98 L.Ed. 2d 680 (1988); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (in banc), cert. dismissed, ___ U.S. ___, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). Pursuant to the
[i]nferеnces to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion. The nonmovant‘s allegations must be taken as true and, when these assertions conflict with those of the movant, the former must receive the benefit of the doubt.
Jackson, 826 F.2d at 232 (quoting Goodman, 534 F.2d at 573) (footnote omitted).
In this case, as in Jackson and Chipollini, we examine the legal sufficiency of facts that underlie an employment discrimination action and that are presented to us in the procedural posture of a summary judgment motion. The “governing law“, Anderson, 477 U.S. at 248, 106 S.Ct. at 2510, in a Title VII case is well-established and consists of shifting burdens of proof. In the three-part analysis, “the plaintiff has the [initial] burden of proving by the preponderance of the evidence a prima facie case of discrimination.” Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)).3 This Court reiterated the elements of a Title VII plaintiff‘s prima facie case under the Burdine/McDonnell Douglas holdings in Chippolini:
In the absence of direct evidence a plaintiff may establish a prima facie case of discrimination by proving by a preponderance of the evidence that (1) he belongs to a protected class; (2) he was qualified for the position; (3) he was dismissed despite being qualified; and (4) he ultimately was replaced by a person [in a non-protected class so as] to permit an inference of ... discrimination.
In Chippolini, however, we further held that in a motion for summary judgment, “[t]he burden to demonstrate the absence of material fact issues remains with the moving party regardless of which party would have the burden of persuasion at trial.” 814 F.2d at 896.4 Thus, although
Levendos‘s affidavit and the other record evidence leave no doubt that she has established the first, second and fourth elements of her prima facie case. Levendos is female and thus indisputably belongs to a protected сlass. It is also undisputed that she was replaced by a male. That she was qualified for her position as maitre‘d and pastry chef does not appear to be contested, and is, moreover, amply evidenced by the fact of her promotion, and the favorable press and customer comments mentioned in the affidavits.
The third prong of Levendos‘s prima facie case is the one possible material fact that could be disputed: whether she was dismissed despite being qualified. Levendos does not deny that she submitted a letter of resignation, but сontends nevertheless that she was discharged from her position. Relying on the doctrine of “constructive discharge,” she argues that her affidavit describes several incidents that create a genuine issue of material fact with respect to whether she was in effect dismissed from her job.
This Court, as well as most of the other courts of appeals, have decided that “acts of discrimination in violation of Title VII can make working conditions so intolerable that a reasonable employee would be forced to resign,” Goss v. Exxon Office Systems, Co., 747 F.2d 885, 887 (3d Cir. 1984), and therefore entitle the employee to damages for wrongful termination in addition to damages for the pretermination discrimination. See id. at 889. While these courts generally agree that “constructive discharge” is a heavily fact-driven determination, at least two, and possibly three, different legal standards have emerged to aid in determining whether constructive discharge has occurred. Some courts have adopted a test based on an inquiry into the motive of the employer, holding, for example, that “the employer‘s actions must have been taken with the intentiоn of forcing the employee to quit.” Johnson v. Bunny Bread, Co., 646 F.2d 1250, 1256 (8th Cir. 1981); see also Martin v. Citibank, N.A., 762 F.2d 212, 221 (2d Cir.1985) (employer must deliberately make employee‘s working conditions so intolerable that resignation is forced); Coe v. Yellow Freight System, Inc., 646 F.2d 444, 454 (10th Cir.1981) (must be deliberate effort to make things difficult for employee). Other courts, such as ours, have adopted a reasonable person test, which is focussed on the impact of an employer‘s actions, whether deliberate or not, upon a ‘reasonable’ employee. See, e.g., Goss, 747 F.2d at 888 (“The court need merely find that the employer knowingly permitted conditions of discrimination in employmеnt so intolerable that a reasonable person subject to them would resign.“); Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir.1987) (“plaintiff need not show that the employer subjectively intended to force the employee to resign.“); Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 561 (1st Cir.1986) (“focus is upon the ‘reasonable state of mind of the putative discriminatee‘“); Williams v. Caterpillar Tractor, Co., 770 F.2d 47, 50 (6th Cir.1985) (“Reasonableness ... is measured ... from the perspective of a reasonable person in the position that [the employee] was in at the time of [his or her] discharge.“); Welch v. University of Texas and Its Marine Science Institute, 659 F.2d
In Goss, this Court upheld a district court‘s finding of constructive discharge where a female sales representative was verbally abused about her decision to become pregnant, her employer assigned her lucrative sales territory to a male representative despite the plaintiff‘s successful performance, thus effectively cutting her pay, and her attempts to pursue remedies in-house rеsulted in the ultimatum that she either accept the new assignment or resign. 747 F.2d at 888. We held these factual findings, based on credibility determinations, to be legally sufficient to support a claim of constructive discharge, and we therefore affirmed the district court‘s judgment in the plaintiff‘s favor. Id. at 889.
The district court here held that the case did could not proceed to trial because even if the factual allegations in support of Levendos‘s position were true, they were legally insufficient to raise the issue of constructive discharge. It thus granted summary judgment for defendаnts. We disagree with the district court‘s assessment both of the record evidence and of the relationship of this evidence to the governing legal standard. The record certainly “contains more than ‘a scrap of evidentiary material,‘” Jackson, 826 F.2d at 234 (citations omitted), from which a fact-finder could infer that conditions at the restaurant were so intolerable that a maitre‘d of reasonable sensitivity would be forced to resign.7 Indeed, we find that the evidence presented by Levendos is even consistent with the stringent legal test that this Court rejected in Goss, namely, the standard based on evidence of deliberate actions on the part of the employer to force the employee to resign, as well as with the objective, ‘reasonable person’ standard adopted by this circuit in Goss, 747 F.2d at 888.
We emphasize that the fact-finder must assess the veracity and weight of Levendos‘s various factual allegations. While we can imagine a maitre‘d who might not object to exclusion from management meetings, denial of authority to order supplies, false accusations of stealing from and drinking on the job, and who might not be disturbed by rumors аnd remarks that she would be replaced by a male, her employer‘s refusal to talk with her, and to find wine bottles in her locker, we find that these events are clearly not trivial.8 It is of course plausible that a jury could decide ultimately that a reasonable person would tolerate some or even all of these occurrences without being forced to quit. It is equally plausible, however, that a jury would come to the opposite conclusion.
In support of the district court‘s holding that Levendos‘s assertions were legally in-
For several reasons, we do not agree with Stern‘s contention regarding the lack of “aggravating circumstances” in this case. First, we cannot, by any stretch of the imagination, characterize this case as a ‘single incident’ case. Levendos has alleged the occurrence of several incidents during her short tenure as maitre‘d that, cumulatively, could meet the “aggravаting circumstances” test. Indeed, appellees do not argue seriously a lack in the number of incidents. Rather, they contend that each of these incidents is too trivial to constitute an aggravating circumstance. This is an argument we flatly reject. Levendos‘s allegations contain both the quality and quantity of evidence sufficient to allow the question of constructive discharge to go to a jury.
Furthermore, we cannot state as a broad proposition of law that a single non-trivial incident of discrimination can never be egregious enough to сompel a reasonable person to resign. An employment discrimination plaintiff may simply face a more difficult burden of proof in establishing the employer‘s liability, when relying on a single discriminatory incident as a basis for arguing the occurrence of constructive discharge.10
Thus we hold that Levendos, as the Title VII plaintiff, presented sufficient evidence to raise a genuine issue of material fact regarding whether she was constructively discharged from her position, and that Stern, as the moving party on summary judgment, failed to meet its burden of dem-onstrating its absence. We find, according-ly, that the district court erred in granting summary judgment for Stern.
III.
For the foregoing reasons, we will vacate the district court‘s order and remаnd the case for further proceedings consistent with this opinion.
ROTH, District Judge, dissenting.
Defendant moved for summary judgment in this action on April 8, 1987, on the basis that plaintiff Elizabeth Levendos had free-ly resigned from her employment, giving notice by letter dated April 22, 1982. At this point in the litigation, discovery had been completed and both parties had filed their Pre-Trial Narrative Statement. Plaintiff opposed the motion for summary judgment on the ground that she had been constructively discharged. At trial, plain-tiff would have the burden of proving con-structive discharge. That burden would be to establish that her “employer knowingly permitted conditions of discrimination in employment so intolerable that a reason-able person subject to them would resign.” Goss v. Exxon Office Systems, Co., 747 F.2d 885, 888 (3d Cir.1984). The substan-tive law, i.e., constructive discharge in this case, will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Where, as here, the nonmoving party will bear the burden of proof at trial on the issue of constructive discharge, Fed-eral Rule of Civil Procedure, Rule 56(e) requires that she designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1985). This evidence need not be in a form that would be admissible at trial. Id. Nevertheless, I dissent from the majority opinion in this case in part because I con-clude that plaintiff has designated facts
On the question of the inadmissibility of plaintiff‘s designated facts, evidence of de-fendant‘s discriminatory animus is present-ed by statements such as:
Many of the managers and employees of Les Nuages Restaurant and Heaven Discotheque did not prefer women and dismissed many other women upon false and trumped charges.
Affidavit of Elizabeth Levendos, para. 4.
The management of Les Nuages and Heaven Discotheque viewed females as inferior, and told other employees that I did not fit the “mold” for maitre‘d [sic] because I was a woman. Chef David DeVos was asked by Richard Stern to find a male to replace me, and he ulti-mately hired Robert Ashurst, a male friend who had worked with him previ-ously.
Id. at para. 8.
Elizabeth was the only female in the management level. Rick Stern liked the image of a male staff. He didn‘t feel that Elizabeth fit in the way he wanted. I remember at the end Elizabeth could never get an appointment to sit down and talk to him. I think he had clearly decided to get rid of her, and Chef De-Vos acknowledged that it was a plan to get rid of her, and replace her with a male friend of DeVos.
Affidavit of Robert Roth, para. 7.
When the hearsay within hearsay and the speculation on the mental processes of others is removed from the above, very little is left of the discriminatory element. Plaintiff in essence is left with the fact that she was replaced by a man and that previ-ous male maitre d‘s had attended manage-ment meetings (who and when undes-ignated) while plaintiff was not included in any decision-making meeting (no further information given). Furthermore, in view of the fact that it is the alleged perpetra-tors of the discrimination against plaintiff who are the missing links in reducing dou-ble hearsay to admissible testimony of a statement by a party opрonent, it does not appear that the above-quoted statements could be presented in admissible form. Nor, in view of the fact that discovery had been completed, can plaintiff argue that the motion for summary judgment cur-tailed her efforts to uncover additional evi-dence to support her burden of designating material facts.
In regard to the question of whether plaintiff demonstrated “conditions of dis-crimination in employment so intolerable that a reasonable person subject to them would resign,” I am concerned by the very short duration of plaintiff‘s difficulties, a week or two at most. This fact is apparent from her letter of resignation. Moreover, one cannot determine from plaintiff‘s Pre-Trial Narrative Statement and Affidavit whether there was just one incident in which wine bottles were placed in plain-tiff‘s locker and she was accused of dishon-esty and drinking on the job, or whether there were other incidents and accusations against her made by management. The inadmissibility of most of plaintiff‘s evi-dence on discrimination, the weakness of what‘s admissible, together with her failure to be more sрecific in her designation of facts regarding harassment all lead me to conclude that she had presented an inade-quate scintilla of evidence in opposition to defendant‘s motion. If a situation, as vaguely described as plaintiff‘s is, is deemed to constitute “constructive dis-charge,” I fear that the “reasonable per-son” test of Goss will be transformed into the test of the subjective reaction of the employee.
[T]he law does not permit an employee‘s subjective perceptions to govern a claim of constructivе discharge. Every job has its frustrations, challenges and disap-pointments; these inhere in the nature of
the work. An employee is protected from a calculated effort to pressure him into resignation through the imposition of unreasonably harsh conditions, in ex-cess of those faced by his co-workers. He is not, however, guaranteed a work-ing environment free of stress. The em-ployment discrimination laws require as an absolute precondition to suit that some adverse employment action have occurred. They cannot be transformed intо a palliative for every workplace grievance, real or imagined, by the sim-ple expedient of quitting.
Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir.1985), cert. denied, 475 U.S. 1082, 106 S.Ct. 1461, 89 L.Ed.2d 718.
I do not find that plaintiff has met her burden of demonstrating conditions so in-tolerable that a reasonable person would resign.
For the above stated reasons, I respect-fully dissent.