Opinion
Case No. 2:01-CV-00311TC
October 3, 2003
ORDER
Tamra Carter brings this sex discrimination action against Defendant Discover Financial Services ("Discover"), alleging hostile work environment sexual harassment, constructive discharge, and related tort claims. At the time relevant to her claims, Ms. Carter was a breastfeeding mother who used specially designated rooms at the Discover facility ("Mothers' Rooms") to pump breast milk for her baby. Ms. Carter claims that because of inadequate window covering, she could be viewed from the outside of the Mothers' Rooms while she was pumping milk. She further claims that despite her complaints, Discover did not take adequate remedies to correct the situation, that she was subjected to hostile work environment harassment on the part of Discover employees and a visiting vendor, and that ultimately, she was forced to resign as a result of the harassment she endured.
Soon after filing a Complaint in this case on May 1, 2001, Ms. Carter filed a First Amended Complaint on May 17, 2001. Specifically, in her First Amended Complaint, she alleges violations of the Utah Antidiscrimination Act and Title VII of the Civil Rights Act of 1964, as well as tort claims for Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, and Invasion of Privacy. Discover then brought this Motion for Summary Judgment on all of Ms. Carter's claims. Following oral argument on the motion on August 5, 2003, the court requested supplemental briefing on the issues of (1) whether Ms. Carter had made out a prima facie case of hostile work environment sexual harassment, particularly whether the alleged harassment was sufficiently pervasive and severe, and whether Discover's response was adequate; and (2) whether Ms. Carter was constructively discharged. Having considered the parties' original and supplemental memoranda, as well as the arguments of counsel at the August 5, 2003 hearing, Discover's motion is GRANTED for reasons discussed below.
GENERAL BACKGROUND
The facts included in this background section are either undisputed or, where disputed, are read in the light most favorable to Ms. Carter.See McCarty y. City of Bartlesville, 8 Fed. Appx. 867, available at 2001 WL 246196, at **1 (10th Cir. Mar. 13, 2001). Material disputed facts are discussed in relevant portions of the analysis that follows.
Ms. Carter is a former employee of Discover. Following the birth of her second child in September 1999, Ms. Carter used two rooms at the Discover facility called "Mothers' Rooms," where lactating mothers could breast-feed or pump breast milk for their children. She used the Mothers' Rooms from approximately November 1, 1999, to February 24, 2000. Each of these two rooms had a large window facing an outdoor common area. The common area was regularly occupied by other Discover employees. The windows of the Mothers' Rooms were covered by a reflective coating so that no one could see into the room during the day. Ms. Carter's complaints centered on her use of the rooms after nightfall.
On Friday, December 3, 1999, at about 5:00 p.m., Ms. Carter asked a Discover security guard, Bryce Martin, to determine whether he could see through the windows of the room. Mr. Martin told Ms. Carter that he could.
Ms. Carter learned on December 3, 1999 that another employee, Kim Pendleton, had complained two days before, on December 1, 1999, that women in the Mother's Rooms could be seen from outside the building. Ms. Carter had also noticed that the blinds hanging in the Mother's Rooms were identical to those hanging in the Human Resources department, and that people in Human Resources could be seen, through the closed blinds.
That same day, Ms. Carter complained to Gary Walter, Discover's regional facility manager, about the lack of privacy in the Mothers' Rooms. Mr. Walter told Ms. Carter that he already knew of the problem, and he assured her that he would take care of the problem the following Monday, December 6, 1999.
When Ms. Carter returned to work on Monday, December 6, 1999, she found that nothing had been done to correct the problem. She made a second complaint, this time to Morgan Smith, a manager in the engineering department. Mr. Smith placed heavy, opaque curtains over the windows that same day. Ms. Carter testified in her deposition that after the curtains were put up, she was happy, but "still feeling unsafe" and indeed "paranoid," since the curtains only extended to a point two feet above the floor, (Deposition of Tamra Carter ("Carter Dep.") at 32:16-20; 40:7-14)
Ms. Carter made a third complaint (this time a written complaint) in late January 2000. Nothing had happened to prompt this complaint, aside from Ms. Carter's continued (and, by her own characterization, "paranoid") suspicion that mothers could be viewed despite the presence of the curtains. At that time, Ms. Carter requested of Pam Lewis in Human Resources that partitions be installed to further block visibility in the Mothers' Rooms. She claims that at that time Pam Lewis told her that she could not use the sick room because it was reserved for people who were ill. (Id at 29:3-24.)
Then on February 25, 2000, the curtains were removed from the windows of the Mothers' Rooms. Ms. Carter alleges, on the basis of information given to her by security guard Ben Wareing, that the curtains were taken by janitors. (Id. at 76:21-77:8.) Ms. Carter told Morgan Smith about the disappearance. She asked Mr. Smith if partition walls could be put up, but Mr. Smith simply responded, "Suggestions have been made," and would not tell her more. (Id. at 46:17-21.) Within an hour of her speaking with Mr. Smith about the matter, Ms. Carter found that the windows had been covered by a large piece of opaque paper. But Ms. Carter was not satisfied because there was a three to four foot gap through which mothers could be observed. (Id. at 47:2-6.) Finally, after Ms. Carter had already stopped using the Mothers' Rooms, sheer shower curtains described as "filmy" and "milky" were hung in the rooms. Ms. Carter still considered this measure to be inadequate to block the view into the rooms. (Id. at 49:13-50:6.) Ms. Carter never used the Mothers' Rooms again, but instead used the third floor executive restrooms, to which she gained access by using a security badge provided to her by Ben Wareing, a security guard. (Id. at 47:14-22.) She told Morgan Smith that she was using the executive restrooms because she was no longer going to use the Mothers' Rooms. (Id at 47:24-25.) Although there was a general rule that employees were not allowed to be on the third floor (a secure floor) without having a security guard "checking it out," no one specifically told Ms. Carter that she could not use the rooms. (Id. at 91:8-24.)
Ms. Carter's suspicion that she and other mothers could be seen while using the Mothers' Rooms, along with her dissatisfaction with Discovers efforts to ensure privacy in those rooms, forms one basis of her hostile work environment sexual harassment claim. Additionally, Ms. Carter argues that she suffered "constant" harassment by security guard personnel and other men on the premises following her December 3, 1999 complaint. Specifically, she complains that (1) following her initial complaint on December 3, 1999, she was subjected to harassing comments by male security guard personnel, specifically a conversation between two security guards (in her presence) in which the two discussed "mak[ing] snowmen in front of the mothers room," a reference to making Christmas decorations (Id., at 25:21-26:7); (2) on one occasion, two janitors putting up Christmas lights in November moved their work closer to the Mothers' Rooms during the evening hours (Id. at 87:21-88:15); (3) on another occasion, there were men occupying the Mother's Room who refused to leave, then lingered outside scratching the door and jiggling the door knob after they left, while Ms. Carter was still using the room, and finally "butted in front of her" when she tried to go to the rest room to clean her equipment (Id. at 34:23-35:10); (4) on March 2, 2000, a vendor pulled Ms. Carter close to him, rubbed his arm across her breasts, and insisted that she was his "girlfriend" and that they could "flirt" even though they were both married (Id. at 60:14-61:20); (5) she had difficulties gaining the cooperation of her security guard co-workers in relieving her for breaks (Id. at 52:25-53:9); and (6) an unnamed security guard took Ms. Carter's keys from her purse on one occasion, which Ms. Carter thought of as "just kind of annoying;" (Id. at 50:12-20.) Ms. Carter testified that she complained to Randy Gittens, the security guard manager, about this key incident, but that Mr. Gittens was unsympathetic and did nothing in response. (Id. at 52:3-22.)
On approximately March 15, 2000, Ms. Carter told Mr. Gittens that she was considering giving Discover two weeks' notice. Following that conversation, Ms. Carter's supervisor offered her one month's pay if she would quit that day. Ms. Carter wrote a note stating that she was leaving Discover's employ to take care of her children. She told one Discover Card employee that she was leaving to take care of her family. But Ms. Carter argues her written statement was not fully voluntary. According to Ms. Carter, she wrote the note under duress. She claims that she both (1) told people in Human Resources that the real reason she was leaving was that she "didn't feel safe [at Discover]," and (2) that she wrote an extension on the note saying that "[t]he situation with the mother's room is why I'm leaving." (PL's Mem. Opp. Mot, Summ. J, at p. 3; Carter Dep. at 53:17-54:19.)
ANALYSIS
I. Legal Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Fed.R.Civ.P. 56(c): see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986): Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).
The party moving for summary judgment bears the initial burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 323; Adler, 144 F.3d at 67G-71. A movant "may make its prima facie demonstration simply by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Adler, 144 F.3d at 671. In applying this standard, the court views the factual record and construes all facts and reasonable inferences from it in the light most favorable to the nonmovant. Matsushita Elec, Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adler, 144 F.3d at 670: Aramburu v. Boeing Co., 112 F.3d 1398, 1402 (10th Cir. 1997).
Once the moving party has carried its initial burden, Rule 56(e) requires the nonmovant to "go beyond the pleadings and `set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."Adler, 144 F.3d at 671 (quoting Fed.R.Civ.P. 56(e)). The specific and pertinent facts put forth by the nonmovant "must be identified by reference to an affidavit, a deposition transcript or a specific exhibit incorporated therein." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992). Mere allegations and references to the pleadings will not suffice. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986).
II. Sexual Harassment Claims
Discover challenges Ms. Carter's sex-based claims on two grounds, arguing that (1) Ms. Carter's status as a breast-feeding mother is not protected by Title VII; and (2) even if it is, Ms. Carter cannot make out a prima facie case of sex discrimination. On the first issue, Discover initially maintained that Ms. Carter was invoking a "sex-plus" theory of discrimination, based upon her status as a breast-feeding mother, to conclude that she falls within the protection of Title VII. But Ms. Carter expressly denies relying on this theory, and the court agrees that the relevant question is whether Ms. Carter has made out a prima facie case of sex discrimination under a theory of hostile work environment sexual harassment.
Ms. Carter brings both Title VII and the Utah Antidiscrimination Act claims. Identical facts support both claims, and the court addresses both claims under a Title VII analysis. See Viktron/Lika v. Labor Comm'n, 38 P.3d 993, 995 (Utah Ct.App. 2001); Sauers v. Salt Lake County, 735 F. Supp. 381, 386 n. 8 (D. Utah 1990).
To make out a prima facie case of hostile work environment sexual harassment, Ms. Carter must show (1) that she is a member of a protected group, (2) that she was "subject to unwelcome sexual harassment," (3) that the harassment she complains of "affected a term, condition, or privilege of employment," and (4) that Discover "is subject to liability based on agency principles." Sauers v. Salt Lake County, 735 F. Supp. 381, 386 n. 8 (D. Utah 1990).
"For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment." Meritor Sav. Bank. F.S.B. v. Vinson, 477 U.S. 57, 67 (1986) (internal quotations and citation omitted) (alteration in original). The existence of sexual harassment must be determined "in light of the record as a whole and the totality of circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred." Id. at 69 (quotations and citation omitted). The mere utterance of a statement which "`engenders offensive feelings in an employee would not affect the conditions of employment to [a] sufficiently significant degree to violate Title VII.'" Id. at 67 (citations omitted). The United States Supreme Court has more recently emphasized the importance of "filter[ing] out complaints attacking `the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.'" Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citation omitted). In short, "conduct must be extreme to amount to a change in the terms and conditions of employment, and the Courts of Appeals have heeded this view." Id. (citations omitted).
In Harris v. Forklifl Sys., Inc., the Court clarified the elements of a claim of discrimination resulting from a hostile work environment:
Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation.510 U.S. at 21-22. Furthermore, the Harris Court identified a number of factors that are significant when viewing the totality of the circumstances in a Title VII hostile work environment case, including "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." Id at 23. These standards ensure that Title VII does not become a "general civility code" or prohibit "genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80-81 (1998).
A. Lack of Privacy in the Mothers' Rooms
Ms. Carter's central concern, and the primary factor affecting her working environment, was the risk of exposure and the lack of privacy in the Mothers' Rooms. Ms. Carter testified that she was upset, felt she was not safe, and was even admittedly "paranoid" that she could be seen while using the Mothers' Rooms. But as Discover points out, she has offered no evidence that her fears were realized, and that she actually was observed while using the rooms. (Carter Dep. at 89:4-14.) Any assertions by Ms. Carter that she was seen are vague and unsubstantiated. Considering the totality of the circumstances, the record reveals that the majority of Ms. Carter's discomfort stemmed from her own dread of being viewed while using the Mothers' Rooms, not from incidents of having been seen.
Even assuming she had been seen, Discover itself cannot be faulted for failing to remedy the privacy issues in the Mothers' Rooms. Employer liability attaches where an employer "knew, or should have known, about the hostile work environment and failed to respond in an appropriate manner." Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1270 (10th Cir. 1998). There is no "bright-line rule for measuring the `appropriateness' of an employer's response," but the Tenth Circuit has recognized "promptness and effectiveness of any action" as "[k]ey factors in that determination."Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1245 (10th Cir. 2001) (citing Adler v. Wal-Mart Stores. Inc., 144 F.3d 664, 675-76 (10th Cir. 1998)). The effectiveness inquiry, in turn, "looks not to whether offensive behavior actually ceased but to whether the `remedial and preventative action was reasonably calculated to end the harassment." Id (citing Adler, 144 F.3d at 676).
Here, it is clear that Discover's efforts to make the Mothers' Rooms more private were reasonably calculated to prevent potential harassment and abuse. The record demonstrates that Ms. Carter understood and availed herself of Discover's complaint procedure or "open door policy." (Carter Dep. at 38:19-39:14.) Importantly, whenever Ms. Carter complained, Discover addressed her complaints, if not always to Ms. Carter's complete satisfaction. When she made her initial complaint about the Mothers' Rooms to Mr. Walter, the regional facility manager, on Friday, December 3, 1999, Mr. Walter assured her that he would take care of the problem the following Monday, December 6, 1999. The problem was indeed corrected that Monday, even though it required a second complaint to Morgan Smith, a manager in the engineering department. Mr. Smith installed opaque curtains, which Ms. Carter found helpful but not entirely satisfactory. In late January 2000, Ms. Carter made a third complaint (this time a written complaint) to Pam Lewis in Human Resources, asking that partitions be installed. Ms. Carter again requested partitions on February 25, 2000, when, having noticed that the curtains had disappeared, she advised Discover of this problem. Within an hour of Ms. Carter's speaking with Morgan Smith about the matter, the windows were covered up by a large piece of opaque paper, which according to Ms. Carter left a three to four foot gap through which breast-feeding or breast pumping mothers could be observed. At that point, Ms. Carter stopped using the Mothers' Rooms, but never successfully communicated her complaint to management about the inadequate window coverage. (See Carter Dep. at 78:2-7.) The paper was later replaced with "filmy," "milky" shower curtains.
Ms. Carter simply cannot claim that Discover inadequately responded to her complaints. The record demonstrates, to the contrary, that Discover repeatedly made prompt efforts to remedy Ms. Carter's problems as it learned of them, efforts that clearly were "reasonably calculated" to block the view into the Mothers' Rooms. That Discover failed to provide her with the precise window covering she requested (partitions) is of little consequence.
B. Alleged Incidents of Co-Worker Harassment
As explained above, Ms. Carter argues, as further basis for her hostile work environment claim, that security guard personnel, janitors, and one visiting vendor subjected her to sexual harassment, including (1) one comment by a security guard that he and his co-worker would move their work closer to the Mothers' Rooms; (2) one incident in which Ms. Carter observed janitors moving their work closer to the Mothers' Rooms, (3) another incident in which a group of men were reluctant to leave the Mothers' Room to allow Ms. Carter to use it, and stood outside scratching the door and jiggling the doorknob; (4) a generalized reluctance on the part of the security guards to relieve Ms. Carter so that she could go to use the Mothers' Rooms; (5) one incident in which a vendor visiting Discover pulled Ms. Carter to him, brushed against her breasts, and called her his "girlfriend" (advances which Ms. Carter declined assertively and successfully); and (6) an incident in which security guards took her keys from her purse. By her testimony, Ms. Carter apparently complained to management about only this last incident involving the keys.
Even assuming that the conduct Ms. Carter complained of was subjectively hostile or abusive (in that it altered the terms of her employment), she still must show that it was objectively hostile or abusive. Harris, 510 U.S. at 21-22. On summary judgment, the court must determine whether a plaintiff has shown "that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Penry y. Federal Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998) (citing Davis v. United States Postal Service, 142 F.3d 1334, 1341 (10th Cir. 1998) (internal quotation marks and citations omitted)).
With the exception of the incident involving the visiting vendor, there are no facts upon which a rational jury could conclude that Ms. Carter's working environment was "permeated with discriminatory intimidation, ridicule, and insult." Id. Conduct by Discover employees was limited to one documented comment, one incident involving door scratching and doorknob jiggling, another incident involving stolen keys, a suspicion that janitors had moved their work closer to the Mothers' Rooms in order to watch her while she was using the rooms, and a generalized reluctance by security guards to cooperate with Ms. Carter in her efforts to use the Mothers' Rooms. When considering only this actual (rather than speculative) conduct on the part of Discover and its employees, the harassment Ms. Carter endured was entirely incidental, and does not rise to the requisite level of severity and pervasiveness to be actionable under Title YE. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citations omitted) (recurring point in hostile work environment opinions is that "simple teasing," offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the "terms and conditions of employment"). Applying the Harris factors, the court finds that the harassing conduct on the part of Discover employees, although offensive and discomfiting to Ms. Carter, was infrequent and not objectively humiliating. 510 U.S. at 23.
The most egregious act of harassment done to Ms. Carter was clearly the encounter with the non-employee visiting vendor, who both touched her and made provocative comments. But even assuming that this single act alone rises to the level of severe and pervasive harassment, Discover is not liable for the vendor's conduct. Contrary to Discover's suggestion, the Tenth Circuit has held that an employer may be held liable for the sexually harassing conduct of non-employees. Turnbull, 255 F.3d at 1244;Lockard v. Pizza Hut. Inc., 162 F.3d 1062, 1073 (10th Cir. 1998). But liability will attach in such a situation only "where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action."Lockard, 162 F.3d at 1073 (citing 29 C.F.R. § 1604.11(e) (1997)). Such is clearly not the case here, where Ms. Carter herself has stated that following the incident, the vendor was no longer allowed in the building. (Id. at 63:6-12.)
Likewise, Ms. Carter has made no showing that conduct by Discover knew or should have known of harassment by Discover security guards or janitorial employees, and failed to respond appropriately. Wright-Simmons, 155 F.3d at 1269. Ms. Carter did not report the security guards' comments (about moving their work closer to the Mothers' Rooms) to Mr. Walter, but only complained to the guards themselves, who denied having made the comments. (Carter Dep. at 25:25-26:25.) Nor did she report to management the incident in which people scratched the door and jiggled the door knob. (Id at 35:13-15.) Rather, she complained only to a security guard, convinced that a complaint to management would not do any good. (Id. at 35:13-25.) Later, when Gary Walter found out about the incident, he asked Ms. Carter why she did not tell him about it, and she responded, "I don't feel like I could tell you. I don't trust that that would help the situation." (Id. at 81:7-11.)
She further testified that when the security guards delayed in relieving her for her breaks, "[the guards] always had an excuse, so [she] didn't have any right to complain." (Id. at 53:8-9.) Ms. Carter did report the incident in which the security guards took her keys, complaining to Randy Gittens. (Id. at 52:5-9.) She claims that this complaint did her no good, and Mr. Gittens failed to help her. (Id. at 52:11-13.) But as Discover correctly points out, the key episode was an isolated incident, and Ms. Carter cannot claim that the matter remained unresolved in spite of her complaint. (See Id. at 50:14-15.)
In short, the record demonstrates that with the exception of the key incident, Ms. Carter failed to report any of the incidents she complains of to management. Nor has she even tried to argue that Discover "should have known" these incidents were occurring. The law is clear Discover cannot be held liable for incidents of harassment about which it did not know. Wright-Simmons, 155 F.3d at 1269.
II. Discriminatory Discharge
Discover argues that summary judgment should be granted because Ms. Carter has produced no evidence that her resignation was anything other than voluntary. The Tenth Circuit recognizes constructive discharge where "the employer by its illegal discriminatory acts has made working conditions so difficult that a reasonable person in the employee's position would feel compelled to resign." Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1221 (10th Cir. 2002) (citing Sanchez v. Denver Public Schools, 164 F.3d 527, 534 (10th Cir. 1998)). The court has further held that "[t]he bar is quite high in such cases: a plaintiff must show he had no other choice but to quit." Id. (citing Sanchez, 164 F.3d at 534). Because the court has found that Discover is not liable for any "illegal discriminatory acts" of hostile work environment sexual harassment, there is no need to consider the issue of whether Ms. Carter's resignation was in fact voluntary.
Discover correctly points to the rule that "[t]he conditions of employment must be objectively intolerable; the `plaintiffs subjective views of the situation are irrelevant.'" Sanchez, 164 F.3d at 534 (citations omitted).
III. Tort Claims
Because the court grants Discover's motion for summary judgment on Ms. Carter's Title VII claim, the only federal claim alleged in this action, it declines to exercise supplemental jurisdiction, under 28 U.S.C. § 1367, over Ms. Carter's claims for Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, and Invasion of Privacy.
CONCLUSION
Based on the foregoing analysis, the court grants Discover's Motion for Summary Judgment, and the case is DISMISSED.