Lynette HARRIS, Plaintiff-Appellant, v. MAYOR AND CITY COUNCIL OF BALTIMORE, A Municipal Corporation, Defendant-Appellee, and City of Baltimore, Department of Public Works, Bureau of Water and Waste Water, Defendant.
No. 09-1446
United States Court of Appeals, Fourth Circuit
Argued: Jan. 28, 2010. Decided: May 6, 2011.
637 F. Supp. 2d 195
United States of America; American Civil Liberties Union; American Association of University Women; American Jewish Congress; California Women‘s Law Center; Anti-Defamation League; Coalition of Labor Women; Asian American Justice Center; Equal Rights Advocates; DC Employment Justice Center; National Council of Jewish Women; Lawyers’ Committee for Civil Rights Under Law; Women Employed; Mexican American Legal Defense and Educational Fund; National Alliance for Partnerships in Equity; National Association for Girls and Women in Sport; National Employment Law Project; National Employment Lawyers’ Association; National Partnership for Women and Families; National Women‘s Law Center; Sargent Shriver National Center on Poverty Law; Southwest Women‘s Law Center; Union for Reform Judaism; Washington Lawyers’ Committee for Civil Rights and Urban Affairs, Amici Supporting Appellant.
Affirmed in part, reversed in part, and remanded by unpublished opinion. Judge DUNCAN wrote the opinion, in which Judge HARWELL joined.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
Appellant Lynette Harris (“Harris“) challenges the district court‘s grant of summary judgment on her claims against her employer, Appellee Mayor and City Council of Baltimore (collectively, the “City“), for hostile work environment and failure to promote under Title VII of the Civil Rights Act of 1964,
I.
Lynette Harris has worked for the City as an electrician since 1988. Beginning as an apprentice, she was twice promoted, rising to the level of Maintenance Technician III Electrical in 1994. She received no further promotions and continued to occupy that position. During the time period relevant to this case, Harris worked for the City‘s Department of Public Works at the Patapsco and Back River plants. Women constituted a small minority of the overall work force at these plants.
A.
In 2003 and again in 2004, Harris applied and interviewed for a promotion to Supervisor Electrical I. A male co-worker of Harris‘s, Edwin Moye, was chosen over her in 2003, and the City ultimately declined to fill the position in 2004 after two other male co-workers of Harris‘s, Keith Raynor and Kevin Lee, turned down offers.
In both 2003 and 2004, the candidates chosen for the supervisor position received higher interview scores than Harris even though she had greater experience. Each candidate‘s score was based on answers to the interview questions, which were equally weighted and asked of each candidate. Although the record does not contain any of the exact interview questions, the majority of questions related to technical matters, and at least one dealt with the candidate‘s seniority and experience.
Following her second unsuccessful promotion application, in December 2004, Harris was assigned to the electrical motor shop3 supervised by James Gernhart.4
The environment of that shop and the conduct of the employees that worked within it form the main basis for Harris‘s hostile work environment allegations.
While in the shop, Harris was repeatedly subjected to profane, sexually explicit language. Harris was referred to as a “bitch” by her coworkers in the presence of her supervisor. J.A. 554. Harris also overheard male employees refer to other women as “bitches” on a daily basis.5 J.A. 615. Others confirmed the frequent use of such offensive language. Judy Coleman, a supervisor at the Back River plant where Harris worked, heard male technicians refer to women using the “B word” and the “C word.” J.A. 386-88. Kevin Lee, another co-worker, confirmed that male employees referred to women as “bitches” and that there was “a [w]hole lot of that going on.” J.A. 442. Male employees also referred to women, including Harris, as “troublemakers” who “didn‘t belong in those jobs.” J.A. 389-90, 405, 616. According to Coleman, the use of such language increased when females came within earshot.
Conversations between male employees that Harris could not have avoided overhearing discussed “what they ha[d] done the night before with women” and visits to “gentlemen‘s clubs” or “titty bar[s].” J.A. 436, 633. Harris overheard one co-worker ask another if he had “got any pussy” over the weekend. J.A. 634. On another occasion, she heard a co-worker remark that “if his wife‘s pussy got wet you would hear it sloshing.” J.A. 634. Harris reported that conversations about sexual activity with women and discussions of “women‘s anatomy in a sexual manner” occurred frequently and in the presence of supervisors. J.A. 617-18. Two of Harris‘s co-workers, Edwin Moye and Kevin Lee, confirmed that language of this nature was used daily in the shop.
In addition to profane language and conversations sexualizing women, a number of “provocative[] pictures of women” were displayed in the shops. J.A. 366. The pictures featured women who were “scantily clad,” wearing bathing suits, or simply “naked.” J.A. 366-67, 402, 429. While male employees attended so-called safety meetings in Gernhart‘s office for an hour every day, Harris, who was excluded from the meetings, sat at a table in the shop with “provocative photographs placed under the glass.” J.A. 616. Coleman observed in her deposition that these pictures were in “all the shop areas,” J.A. 401, and Edwin Moye, disclosed that these pictures were “[i]n the shop area and [on] the hall bulletin board.” J.A. 429.
On January 11, 2005, Harris again requested—this time by letter to an employee of the City‘s personnel department—that she be “removed from the supervision of James Gernhart Jr. and placed under [her] previous supervisor Mr. Sandy Altadonna because nothing has changed.” J.A. 556. The letter catalogued Harris‘s previous complaints and what she considered to be inappropriate practices in Gernhart‘s shop, including the “provocative pictures of women in the motor shop area.” J.A. 555-56. The letter led the personnel department, along with a representative from the City‘s Equal Employment Office (“EEO“), to investigate the shop in February 2005.
The investigation found “evidence of provocative pictures being displayed on tables, walls, workstations and two offices.” J.A. 557. These pictures were deemed “less than appropriate for the shop for males or females” and ordered removed. J.A. 611. A few weeks later, one of Harris‘s supervisors was suspended by the EEO for failing to “remove offensive material in a timely manner from the work site.” J.A. 558. Following the EEO visit, Harris once again made a request to be transferred out of Gernhart‘s shop. Her request was granted in April 2005.
B.
Harris filed this action against the City on September 18, 2006. Her amended complaint contained four counts: (1) violation of equal protection under
After discovery, the City moved for summary judgment on all counts. On September 30, 2008, the district court granted summary judgment on all claims except for Harris‘s failure to promote claim to the extent it concerned the City‘s refusal to select her for the supervisor position in 2004. After additional discovery, the City filed a second motion for summary judgment on the remaining claim. The court granted that motion on March 24, 2009. This appeal followed.
II.
We first address Harris‘s Title VII discrimination claims of a hostile work environment and a failure to promote. Harris contends that the City was not entitled to summary judgment because triable issues
A.
An employee “may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). To establish her hostile work environment claim, Harris “must show that the offending conduct (1) was unwelcome, (2) was because of her sex, (3) was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment, and (4) was imputable to her employer.” Hoyle v. Freightliner, LLC, 650 F.3d 321, 2011 WL 1206658 at *6 (4th Cir. 2011) (quoting Bonds, 629 F.3d at 385). The district court granted the City‘s motion for summary judgment based on Harris‘s failure to adduce sufficient evidence to support elements two and three of her hostile enviroment claim, and these are the only two elements at issue in this appeal.
1.
We first consider whether the record contains sufficient evidence from which a reasonable juror could conclude that the hostile work environment that Harris experienced was because of her sex. See EEOC v. Central Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009). “An employee is harassed or otherwise discriminated against ‘because of’ his or her gender if, ‘but for’ the employee‘s gender, he or she would not have been the victim of the discrimination.” See Hoyle, 650 F.3d at 331 (quoting Smith v. First Union Nat‘l Bank, 202 F.3d 234, 242 (4th Cir. 2000)).
To satisfy this element, Harris points to the use of profane, sexually explicit language by her co-workers, as well as the pictures of nude or scantily clad women throughout the shop. We recently clarified that “[a] juror could reasonably find that sexualizing the work environment by placing photos of nude women or women in sexually provocative dress and poses in common areas is detrimental to female employees and satisfies the ‘because of sex’ requirement.” Id. at 331; see also Jennings v. Univ. of N.C., 482 F.3d 686, 695-96 (4th Cir. 2007) (considering “[a] coach‘s sexually charged comments in a team setting, even if not directed specifically to the plaintiff, [as] relevant to determining whether the plaintiff was subjected to sex-based harassment“). We recognized that “the critical inquiry is whether the plaintiff‘s environment was hostile ... ‘because of her sex” and not solely on whether the conduct was directed at the plaintiff.6 Hoyle, 650 F.3d at 332; see also Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 332 (4th Cir. 2003) (en banc) (finding that conduct in the work place, including conversations between male co-workers, satisfied
In Hoyle, we deemed this requirement satisfied based on several factors, including “photos of scantily-clad women in G-strings taped to the lid of a company-issued toolbox” on the factory floor, Hoyle, 650 F.3d at 326; calendars depicting “women in sexually suggestive positions in bathing suits” located in a company‘s break room and cafeteria, id. at 327; and “a nude picture of a woman appear[ing] as the [company] computer‘s screen saver,” id.
Similarly here, we are persuaded that a reasonable juror could find on this record that the “provocative pictures” throughout the shop areas sexualized Harris‘s work place and satisfied the “because of” gender requirement. As in Hoyle, the pictures here featured “scantily clad” women or women who were simply “naked.” J.A. 366-67, 402, 429. The City‘s EEO investigation found such images “displayed on tables, walls, workstations and two offices.” J.A. 557. The images were commonly visible “[i]n the shop area and in the hall bulletin board.” J.A. 429. Harris also viewed “provocative photographs” that were “placed under the glass” of the break room table, where she sat every day while her co-workers conducted “safety meetings” without her. J.A. 616.
Furthermore, Harris‘s work environment was also laced with the repeated, daily use of demeaning words, such as “bitch,” “cunt,” and “troublemaker,” to refer to women. We have previously concluded that a co-worker‘s use of the word “b***h on a daily basis when referring to women” was relevant to satisfying the “because of gender” requirement. Central Wholesalers, 573 F.3d at 175; see also Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 811–12 (11th Cir. 2010) (characterizing the use of terms “whore,” “bitch,” and “cunt” as being “targeted at [a woman‘s] gender“).
Therefore, viewing the evidence in the light most favorable to Harris, we find that a jury could reasonably conclude that the hostility of the environment was based on her gender.
2.
We now consider whether the record could support the conclusion that the hostility Harris faced was “sufficiently severe or pervasive to alter the conditions of [Harris‘s] employment and create an abusive work environment.” Ocheltree, 335 F.3d at 331.7 To establish this element, Harris must show not only that she subjectively found her work environment to be “hostile or abusive” but also that an “objectively reasonable” person would have found it to be so. Hoyle, 650 F.3d at 333. This requirement is “crucial” to ensure that “ordinary socializing in the workplace---such as male-on-male horseplay or intersexual flirtation“---does not come to be regarded as discrimi-
As to the subjective inquiry, we believe that there are sufficient facts in the record for a reasonable jury to conclude that Harris personally found her work environment to be hostile and this affected her performance. Harris complained to her union representative and to the City that the language used by her co-workers and the explicit pictures posted throughout the workplace created a hostile environment. See Central Wholesalers, 573 F.3d at 176 (finding the subjective element met when a female employee “complained about ... [the] harassment and stated that she found such harassment objectionable“). The record also contains the expert testimony of Harris‘s psychiatrist who diagnosed her with a depressive disorder affiliated with her work experiences, and the testimony of a co-worker who reported seeing Harris frequently crying at work. To affirm summary judgment for the City on this record, we would have to weigh the credibility of Harris‘s evidence, which is “plainly not permitted on summary judgment.” Hoyle, 650 F.3d at 333.
We also conclude that a reasonable jury could find the harassment in Harris‘s workplace to be objectively severe or pervasive. As described more fully above, sexually explicit pictures of scantily clad or naked women were located throughout the shop, including the common areas. Harris could not help but view these images on a daily basis. And even after instructed by the City‘s EEO to remove the offending pictures, a shop supervisor did not comply and was suspended.
Furthermore, the language used by Harris‘s co-workers also supports a finding of objective severity or, at least, pervasiveness. When the harassment is exposure to language, we examine whether “a jury could find ... [the words used] particularly offensive to women,” Ocheltree, 335 F.3d at 332, as well as whether the context in which they were spoken “make[s] it clear that the harasser is motivated by general hostility to the presence of women in the workplace,” Oncale, 523 U.S. at 80. A reasonable jury, looking at the entirety of the circumstances, could find that the shop area was an environment where hostility towards female employees pervaded the attitudes and conduct of co-workers and supervisors. Women were regularly referred to as “bitches,” “cunts,” and “troublemakers.” In a meeting with Harris‘s union representative, a male co-worker repeatedly referred to Harris as a “bitch” without condemnation by Harris‘s supervisor, who was also present. Discussions between co-workers about “women‘s anatomy in a sexual manner” and sexual activity with women occurred regularly. J.A. 618-19. We believe that a reasonable jury could find this type of profane language “particularly offensive to women.” Ocheltree, 335 F.3d at 332. Ultimately, after examining all circumstances in the light most favorable to Harris, there is sufficient evidence in the record “to create a triable issue on whether the gender-based harassment was
Accordingly, we conclude that the district court erred when it granted the City‘s motion for summary judgment based on Harris‘s failure to raise a genuine issue of fact with regard to elements two and three of her hostile work environment claim.
B.
Harris also appeals from the grant of summary judgment to the City on her Title VII failure to promote claims. Specifically, Harris argues that her applications for promotion to supervisor in 2003 and 2004 were denied because of her sex. Although Harris has made out a prima facie case of discrimination, we conclude that she has failed to prove that the City‘s legitimate reason for denying her promotion was pretextual.8
In accordance with the burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Harris bears the initial burden of establishing that: (1) she is a member of a protected group; (2) she applied for the position in question; (3) she was qualified for that position; (4) she was rejected; and (5) the position remained open or was filled by similarly qualified applicants outside the protected class. See id. at 802; see also Page v. Bolger, 645 F.2d 227, 229-30 (4th Cir. 1981) (applying the McDonnell Douglas framework in a failure to promote case). If Harris establishes a prima facie case of discrimination, “the burden shifts to the [City] to articulate a legitimate, nondiscriminatory reason for the adverse employment action.” Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004). If the City offers such a reason, the burden reverts to Harris “to prove by a preponderance of the evidence” that the City‘s reason was merely “a pretext for discrimination.” Id. “At this point, the burden to demonstrate pretext merges with the ultimate burden of persuading the court that [Harris] has been the victim of intentional discrimination.” Id. (internal quotations). While anecdotal evidence of disparate treatment is relevant to proving pretext, general hostility itself is insufficient to create an issue of fact for a particular decision not to promote.
On this record, Harris has established a prima facie failure to promote case. Harris is a member of a protected class. She applied both times for the promotion and at least one member of the promotion board, Patricia Odle, admitted that Harris possessed the necessary qualifications to be a supervisor. Finally, in 2003 the City filled the position with a male candidate and in 2004 left it vacant.
With the burden upon it, the City argues that Harris was not promoted because other applicants were simply more qualified. The City presented evidence that in 2003 and 2004 it selected applicants based on their higher interview scores. We agree with the City that this constitutes “a legitimate, nondiscriminatory reason” for not promoting Harris. See Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 270 (4th Cir. 2005) (rejecting claim of
Harris makes two arguments in response: (1) that the evidence that she had more experience than those selected demonstrates pretext; and (2) that the City failed to carry its burden because the proffered nondiscriminatory reason is not sufficiently specific. Neither of these arguments is persuasive.
Harris‘s first argument fails because it is undisputed that experience is not the only factor in the City‘s promotion decisions. Roughly seven questions were asked in each of the interviews. Only one of them concerned general experience; the others were primarily technical. Each question was equally weighted and scored by the interviewers to calculate a total. Because answers to the six technical questions together weighed significantly more than the one for experience, Harris‘s greater experience is not, by itself, sufficient to raise a reasonable inference of pretext.9 See Diamond v. Colonial Life & Accident Ins., 416 F.3d 310, 319 (4th Cir. 2005) (rejecting an attempt to show pretext in an employer‘s decision not to promote because “while management experience was a factor to be considered in awarding the promotion, it clearly was not intended to be dispositive“).
Turning to Harris‘s second argument, we are not persuaded by her claim that the City‘s response was not sufficiently specific. Harris relies heavily on Alvarado v. Texas Rangers, 492 F.3d 605 (5th Cir. 2007), where the Fifth Circuit held that the defendant-employer had not satisfied its burden to proffer a nondiscriminatory reason because it had provided no explanation for how the interviewers arrived at the scores for each question. The Alvarado court noted that each score “is at least as consistent with discriminatory intent as it is with nondiscriminatory intent because [the plaintiff] may well have received the relatively low interview score on account of her sex.” Id. at 617 (internal quotations omitted).
Unlike Alvarado, however, the City provided additional information concerning the interview questions asked: six tested technical expertise and one related to general experience. The City‘s nondiscriminatory reason for the lower scores is simply that, despite her greater experience, Harris did not have the technical expertise that the other candidates had. Given that the bulk of the promotion criteria related to technical expertise, Harris‘s overall score would naturally suffer. In response, Harris does not challenge the City‘s characterization of what the questions were designed to evaluate, nor does she suggest that the individuals who scored higher than her were undeserving. See Diamond, 416 F.3d at 320 (rejecting claim of pretext when the complainant “d[id] not suggest any flaw in the rating system or that [the evaluators] failed to conduct fair evaluations” or “contest the results of those evaluations“).
Thus, we conclude that Harris has not carried her burden to show the City‘s reason for failing to promote her was pretextual.
III.
Harris‘s remaining claims are dispensed with more readily. Because the City is
Finally, with regard to Harris‘s claim for negligent supervision and retention, her allegations and supporting evidence are insufficient to survive summary judgment. Harris alleges that the city breached its duty to her “by not taking action once it knew that the work environment was hostile and abusive toward” her. Appellant‘s Br. at 54. However, it is undisputed that, when Harris informed the City‘s personnel department of the situation, the City initiated an EEO investigation, which led to a disciplinary action against one of her supervisors, and which resulted in the grant of Harris‘s transfer request. Harris does not explain why this response amounted to negligence.
In responding to the City‘s motion for summary judgment, it is Harris‘s obligation to support her assertion that an issue of fact is genuinely disputed by “citing to particular parts of materials in the record.”
IV.
For the reasons stated above, we reverse the grant of summary judgment to the City with regard to Harris‘s hostile work environment claims under Title VII and
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.