ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court on Defendant’s Motion for Summary Final Judgment, filed December 15, 1998 [D.E. No. 23], and Plaintiffs Motion for Summary Judgment, filed January 22, 1999 [D.E. No. 38].
UNDISPUTED MATERIAL FACTS
This is a case of alleged disparate treatment on account of sex and alleged hostile work environment sexual harassment by a co-worker, brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
On November 18, 1996, the school principal, Irvin Grice, held a Conference-for-the Record session with Plaintiff and his union representative because Plaintiff had left school without permission a couple of times, leaving his students unsupervised. During the conference, Plaintiff mentioned to his union representative that Ms. Lorenz had been sexually harassing him, but the union representative prevented Plaintiff from discussing it. No official complaint was made to Principal Grice at that time.
Following the November 18th conference, Ms. Lorenz learned from the union representative that Plaintiff was trying to blame her for his problems. On November 22, 1996, Plaintiff contacted the school district’s Equal Educational and Employment Opportunity Office (the “EEEO”). His case was logged in and he was sent a package of materials. 1
In December 1996, Plaintiff finally broke off the relationship with Ms. Lorenz. Following the break-up, Ms. Lorenz began to harass Plaintiff by making verbal threats (such as she would have students falsely accuse Plaintiff of sexually molesting them), using foul language, leaving notes on his car windshield, and embarrassing Plaintiff in front of his students and other teachers by criticizing him. 2 At on point, when she had gotten Plaintiff to come to her room after school hours under the pretext that she had some of his belongings in her room for him to pick up, Ms. Lorenz allegedly grabbed Plaintiff as he tried to leave and said “you are not going anywhere.” As Plaintiff pulled away, his shirt ripped. 3 Ms. Lorenz then began hitting and kicking Plaintiff. 4
On January 21, 1997, a confrontation between Plaintiff and Ms. Lorenz occurred wherein Ms. Lorenz appeared at Plaintiffs classroom while class was.in session and
On January 30, 1997, Plaintiff informed Assistant Principal Hawa that a student had approached him and stated that Ms. Lorenz had commented how Plaintiff would always walk away quickly when she approached to make it look like she was following him and how Plaintiff would not enter the teachers’ lounge if he saw Ms. Lorenz in it. Plaintiff also inquired of Assistant Principal Hawa as to the status of the other students’ complaints to her and his complaint to Principal Grice. Because personnel issues are solely the responsibility of the Principal, Hawa had no knowledge as to the status.
On February 24, 1997, the EEEO received Plaintiffs formal complaint. 6 On February 25, 1997, the Compliance Director in the EEEO, Rafael Urrutia, assigned investigator Marta Fernandez to the case. By memorandum dated February 28, 1997, from Assistant Superintendent Freddie Woodson, Principal Grice was notified of Plaintiffs complaint of sexual harassment and that an investigation into Plaintiffs claim would ensue. During her investigation, Ms. Fernandez interviewed Principal Grice, Assistant Principal Hawa, the union representative, a fellow teacher, and Ms. Lorenz.
In March 1997, another incident occurred between Plaintiff and Ms. Lorenz. There, Plaintiff spotted Ms. Lorenz on his floor of the school during class hours walking toward him. Plaintiff stepped into a nearby class room (in which another teacher was in the middle of a class session) to avoid her and used his cellular phone to notify Principal Grice that Ms. Lorenz was after him and to send someone. The Principal said he would send somebody. A couple of minutes later, the students in the classroom said Ms. Lorenz was gone. Af
Plaintiff asserts that, while he was at the EEEO, he complained to an administrator, Terrence Garner, that he was afraid of Ms. Lorenz, and that she had hit him in school, torn his clothes, and humiliated him in front of students. At this time, Mr. Garner allegedly replied, “Well, she is just a little woman and you are a big man, and you can deal with it, and the principal is going to assure you that nothing is going to happen.” 7 Plaintiff apparently then met with Director Urrutia, during which meeting Principal Grice was contacted by telephone. Principal Grice assured Plaintiff that he had told Ms. Lorenz to stay away from Plaintiff and that the school would be a safe place for him. Director Urrutia and Investigator Fernandez counseled Plaintiff to return to the school and told him that the investigation would take from three to twelve weeks.
Subsequently, after reviewing all of the information gathered by the investigator, Director Urrutia determined that there was insufficient evidence to substantiate discrimination on the basis of gender, that Plaintiffs problem arose out a romance turned sour, and that both Plaintiff and Ms. Lorenz were equally at fault for retaliatory conduct toward each other. By letter dated May 13, 1997, Plaintiff was notified by Assistant Superintendent Woodson of the outcome of the investigation.
Subsequently, Plaintiff requested and was granted a transfer to another school for the 1997/98 school year. Plaintiff concedes that the harassment only lasted until May 1997. Plaintiff also concedes that Principal Grice immediately approved Plaintiffs transfer request.
It is undisputed that Ms. Lorenz has previously exhibited hostile, abusive and intimidating conduct, regardless of gender, toward other teachers, security personnel, staff, and students, including complaints of battery, racial epithets, and provocative language. Plaintiff even concedes that Ms. Lorenz has a “volatile” personality.
ANALYSIS
Plaintiff claims that he was subjected to a sexually hostile work environment for which the Defendant failed to take prompt remedial action, and that he was also subjected to disparate treatment on account of his gender. The Court addresses each claim in turn.
1. Hostile Work Environment Sexual Harassment.
Plaintiff first asserts that Ms. Lorenz’s conduct created a sexually hostile work environment, and that the Defendant failed to take action to remedy his complaints about that conduct.
8
To establish a
(1) That he belongs to a protected group;
(2) That he was subjected to unwelcome harassment;
(3) That the harassment complained of was based on sex;
(4) That the harassment complained of affected a term, condition, or privilege of employment; and
(5) That the Defendant knew or should have known of the harassment in question and failed to take prompt remedial action.
Henson,
It is axiomatic that sexual harassment is conduct that would not occur but for the sex of the employee/recipient.
Bolden v. PRC, Inc.,
With this backdrop, the Court now turns to the facts of the instant case. Here, we have the classic setting of a love affair gone awry, with Ms. Lorenz (taking the facts in the light most favorable to Plaintiff) playing the part of the proverbial jilted lover attempting to seek retribution. As such, the Court finds that Ms. Lorenz’s harassment arises not out of the fact that Plaintiff is male, but rather, out of the termination of the intimate physical and emotional relationship she shared with him. Clearly, the end of this ill-fated relationship brought with it hurt feelings and bruised egos — perfect ingredients for the bearing of a grudge. Viewing the undisputed material facts in the light most favorable to Plaintiff, it is clear to the Court
The Eleventh Circuit has not yet addressed a factual scenario similar to the one presented in the instant case, and the Court notes that case law in general on this issue is sparse. However, as to those cases in other jurisdictions that have addressed similar facts, the Court finds such cases to be persuasive. For instance, in
Huebschen,
the plaintiff (male) brought an action under 42 U.S.C. § 1983 against his supervisor (female) for alleged sexual harassment in violation of the Equal Protection Clause.
The court in Huebschen held that the plaintiff was not discriminated against based upon his gender. Id. at 1172. The court reasoned that although the supervisor reacted spitefully toward the plaintiff by recommending his termination, the supervisor’s “motivation in doing so was not that Huebschen was male, but that he was a former lover that jilted her.” Id. Thus, the Huebschen court found that the supervisor discriminated against the plaintiff as an individual and not as a male, and hence concluded that:
Thus the proper classification, if there was one at all, was the group of persons with whom [the supervisor] had or sought to have a romantic affair. It was this group, of which Huebschen may have been the only one, that [the supervisor] sought to disadvantage. As unfair as [the supervisor’s] treatment of Hueb-schen may have been, we simply are not persuaded that the Equal Protection Clause should protect such a class.
Id. See also DeCintio,
In
Freeman v. Continental Technical Servs., Inc.,
It would be possible for a male supervisor to have an intimate homosexual relationship with a lower level male employee. If subsequent events, such as the employee’s threat to blatantly expose the relationship to the supervisor’s wife, friends and subordinates, caused the supervisor to terminate the employee, it would not be because the employee was a male.
Id. at 331 n. 2. Hence, the Freeman court concluded that the “discharge of an employee for sexual or sex-related behavior does not constitute unlawful sex discrimination under Title VII.” Id.
The decision in
Keppler,
although made solely in a
quid pro quo
context, is also instructive. In
Keppler,
an administrator with the defendant school district had a consensual sexual relationship with one of the school’s principals. The affair ended in March 1986.
The court in
Keppler
granted summary judgment in favor of the defendant, finding that the principal’s conduct did not arise to actionable sexual harassment.
Id.
at 870. The court reasoned,
inter alia,
that “even assuming the truth of Ms. Keppler’s testimony, Dr. Miller requested on a few occasions that they resume their relationship, and became angry when she refused. Bearing a grudge, he then embarked on a campaign to denigrate her in the eyes of Superintendent Thorson, with the ultimate goal of having her removed from her administrative position.... Even if Dr. Miller did seek retribution against Ms. Keppler for abandoning their relationship ... the most she has shown is that Dr. Miller reacted harshly to their failed relationship.”
Id.
at 869. In finding no sexual harassment, the
Keppler
court stated “Whether explicit or implicit, a desire to continue a prior consensual relationship is not, on its own, an impermissible basis for personnel action under Title VII.”
Id.
at 870 n. 7.
See also Intlekofer v. Turnage,
2. Disparate Treatment Sex Discrimination.
The sole basis for Plaintiffs disparate treatment claim is that the Defendant failed to take prompt remedial action because of Plaintiffs gender, and as his sole support for this claim points to Mr. Garner’s statement that “you’re a man, deal with it.” Plaintiff asserts the statement constitutes direct evidence of discrimination. The Court disagrees. Here, assuming that the statement was in fact made by Mr. Garner, the record is completely silent as to what role, if any Mr. Garner played in the administrative process or in the final determination of nondiscrimination. In fact, Plaintiff does not even show what Mr. Garner’s duties were with respect to the EEEO in general. The law is clear that, for statements of discriminatory intent to constitute direct evidence of discrimination, they must be made by a person involved in the challenged employment decision.
See Trotter v. Board of Trustees,
Moreover, taking the statement in context, Mr. Garner does not state that Plaintiffs charges will not be investigated, and the record is undisputed that Plaintiff did in fact meet with the Director of the EEE'O (Urrutia) and the investigator (Fernandez) assigned to his complaint. It is further undisputed that an investigation was in fact conducted. At best, the Court finds that Garner’s statement merely suggests a discriminatory motive and therefore, by definition, it is only circumstantial evidence as to possible discrimination in the EEEO process.
See Schoenfeld v. Babbitt,
Absent direct evidence, Plaintiff must establish, at a minimum, a prima facie case of disparate treatment in order to prevail on his discrimination claim. To do so, Plaintiff must show,
inter alia,
that similarly situated .female employees were treated differently or better in complaining of sexual harassment.
12
See Texas Dep’t of Community Affairs v. Burdine,
Specifically, the Court finds a lack of record evidence (other than Plaintiffs own unsubstantiated belief) establishing
CONCLUSION
Based upon the undisputed material facts and the foregoing analysis, it is hereby
ORDERED that Defendant’s Motion for Summary Final Judgment [D.E. No. 23] is GRANTED, and Plaintiffs Motion for Summary Judgment [D.E. No. 38] is DENIED. Pursuant to Fed.R.Civ.P. 58, Final Summary Judgment shall enter under separate order.
Notes
. It is undisputed that the School Board of Dade County has in its personnel rules both a non-discrimination and an equal opportunity policy, which include a complaint procedure for employees filing discrimination or harassment charges.
. Although Plaintiff asserts in his Complaint and in his factual statement in opposition to the summary judgment motion that, on at least one occasion, Ms. Lorenz had a student deliver to him a sexually suggestive note written in Spanish, Plaintiff has failed to provide any competent evidence supporting this allegation. Indeed, the record cites provided by Plaintiff do not support his allegation that the note was “sexually suggestive” and no copy of the note (or its translation, if it was indeed in Spanish) has been provided to the Court.
. Ms. Lorenz denies ripping his shirt.
. Although Plaintiff describes many other incidents involving Ms. Lorenz that he believes were harassing in nature (i.e., threatening phone calls at home and other "stalking”-type behavior), these events took place outside work hours and off the school premises. Based upon its analysis below, the Court finds that these incidents are not relevant to the issue of hostile work environment and therefore they are not recounted herein.
. Plaintiff asserts that Ms. Lorenz was never disciplined for her conduct, citing to the deposition taken of Ms. Lorenz at pages 71-72. Plaintiff has failed to file those pages in the record, however, and the Court therefore has not considered this allegation.
. Plaintiff asserts he went to the EEEO because, in his opinion, Principal Grice did not take any action on Plaintiff's January 21, 1997, memorandum — conduct which is contrary to School Board policy. Pursuant to School Board policy, complaints of discrimination or harassment must first be registered with the school principal. If the complaint remains unresolved after five (5) business days, the principal must automatically forward it to the next supervisory level. Subsequently, if the employee is not satisfied with the handling of his or her complaint at the school level, the employee could then file with the EEEO. The Executive Director of the EEEO has the authority to make a final determination on such complaints. Employees can appeal determinations by the EEEO to the Superintendent and can also file a charge with the federal Equal Opportunity Employment Commission. In this case, however, it is clear from Principal Grice's testimony that, following his conferences with Plaintiff and Ms. Lorenz, he thought the matter resolved.
. The record is silent as to what role, if any, Mr. Garner played in the investigation of Plaintiff's complaint by Investigator Fernandez or in the final determination made by Director Urrutia. Even more interesting to the Court, however, is the fact that, in his deposition taken July 28, 1998, Plaintiff states that an otherwise unidentified person by the name of "Goonen” made the alleged comment. In his subsequent affidavit, dated January 25, 1999, Plaintiff attributes the alleged statement to Garner. In his Complaint, however, filed October 10, 1997, Plaintiff alleges that the Principal made the comment.
. At the outset, the Court finds that, to the extent Plaintiff is seeking relief for the harassing phone calls at home and for "stalking" behavior outside the workplace, summary judgment in favor of the employer is warranted. Under the particular facts of this case, the Court knows of no obligation upon the employer to monitor the activities of its employees outside of the workplace. Indeed, the clear intent of Title VII is to combat discrimination
in the workplace. See Pullman-Standard v. Swint,
. The Court’s conclusion in this regard is further bolstered by the unrefuted testimony in the record that Ms. Lorenz had a spiteful or vindictive nature irrespective of the recipient’s gender, and by the fact that Plaintiff’s wife had to seek a restraining order against Ms. Lorenz because of Ms. Lorenz's allegedly tormenting behavior toward her.
. Employment discrimination claims under the Equal Protection Clause apply the same prima facie standards and burdens of proof as Title VII discrimination claims.
See, e.g., Cross v. State of Alabama,
. In
Intlekofer,
the only issue on appeal was whether the employer took prompt remedial action upon notice of the plaintiffs allegations of sexual harassment. Hence, the majority did not address whether the harassing conduct in that case arose to sexual harassment, as the parties did not appeal the lower court's finding in that regard.
. For purposes of summary judgment, the Court assumes, without deciding; that Plaintiff can meet the other elements of his prima facie case.