United States District Court, D. Delaware
MARC E. SMITH, Plaintiff,
PERDUE FARMS INCORPORATED, Defendant.
REPORT AND RECOMMENDATION
SHERRY R. FALLON, Magistrate Judge.
Presently before the court in this sexual harassment and retaliation action brought under the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq. ("Title VII"), is defendant Perdue Farms Incorporated's ("Perdue") motion for summary judgment, filed on February 28, 2013. (D.I. 42) For the following reasons, I recommend that the court grant Perdue's motion for summary judgment.
Plaintiff Marc E. Smith ("Smith") was hired by Assistant Mill Manager Tyson Jefferson ("Jefferson") to begin working on November 30, 2005 at Perdue's Bridgeville, Delaware location, where he was most recently employed as a utility operator. (D.I. 11 at ¶¶ 9-10; Pl. Dep. 88) During the course of Smith's employment, Jefferson was Smith's immediate supervisor, and Jefferson's immediate supervisor was mill manager Chuck Broderick ("Broderick"). (D.I. 11 at ¶ 12) Jefferson and Broderick promoted Smith to the position of utility operator and gave him a raise in 2008. (D.I. 44, Ex. 1 at 94-95, 98)
On February 16, 2009, Smith alleges that Broderick came up behind him and touched Smith's hips while wiggling his own hips and making "grinding/humping motions." (D.I. 44, Ex. 15 at ¶ 5) When Smith pushed Broderick away and asked what he was doing, Broderick allegedly responded, "I know you like it." ( Id. ) Smith did not notify human resources or anyone else at Perdue of this incident out of fear of retaliation. ( Id. at ¶ 7) On February 24, 2009, Smith requested a letter of recommendation for a supervisory position from Broderick, and Broderick agreed to write the letter, giving Smith a positive recommendation. (D.I. 44, Ex. 1 at 97; Ex. 2)
On March 13, 2009, a coworker informed Smith that the Pellet Durability Index ("PDI") tests he had been performing since 2005 should instead be the responsibility of a quality control employee. (D.I. 44, Ex. 1 at 92-93, 114-15) Smith disagreed and went to Broderick's office to complain. ( Id. at 118, 122-23) Broderick ultimately agreed to investigate the PDI testing issue. ( Id. at 122, 125-26) Smith alleges that, following this exchange, he asked Broderick what was for lunch, to which Broderick responded, "I have a tube steak smothered in drawers for you." ( Id. at 128-29, 137-38) Smith responded with inappropriate language. (D.I. 44, Ex. 9) Smith alleges that he immediately went upstairs and called human resources, and was informed that someone would call him back. (D.I. 50 at B58) Following this incident, Jefferson met with Smith and told him to go home, and Smith alleges that David Jones, the corporate live production human resources manager, called Smith on his way home to discuss the alleged harassment Smith had experienced. ( Id. at B59)
Broderick subsequently prepared a Memo to File, citing Smith's insubordination for the use of inappropriate language. (D.I. 44, Ex. 5 at 27-28, 31-32; Ex. 3 at 35; Ex. 6) Smith signed the Memo to File and a Disciplinary Record noting his discipline when he returned to work on March 17, 2009. (D.I. 44, Ex. 1 at 133; Exs. 6 & 7) He also attempted to write a statement on the disciplinary form complaining that Broderick's conduct was sexual harassment. (D.I. 44, Ex. 3 at 31-32) Broderick scratched out the statement on the disciplinary form, but gave Smith an opportunity to prepare and fax a letter to Jim Perdue, the Chairman of Perdue, to share his complaints about Broderick's alleged conduct. (D.I. 44, Ex. 1 at 133-35; Ex. 3 at 32-33; Ex. 9) The letter was forwarded to Jones, who called Smith to set up a meeting to address the contents of the letter. (D.I. 44, Ex. 8 at 31-35)
On March 23, 2009, Jones met with Smith at the Bridgeville facility to investigate Smith's allegations. (D.I. 44, Ex. 1 at 142-44; Ex. 8 at 36-39) Smith initially gave Jones the names of witnesses who could substantiate his allegations. Smith described the "hip hop" dancing and tube steak allegations, but subsequently refused to talk to Jones because he claimed that he had hired an attorney who instructed him not to speak to anyone. (D.I. 44, Ex. 1 at 144-45; Ex. 8 at 36-40) After meeting with Jones, Smith prepared a typewritten letter to Jim Perdue thanking him for investigating his complaint. (D.I. 44, Ex. 1 at 147-48)
Jones subsequently interviewed Broderick, as well as Erwin Hall and George Williams, who had been named by Smith as witnesses to the incident with Broderick. (D.I. 44, Ex. 8 at 39) The interviews with Hall and Williams revealed that it was common for male employees to tease each other, but neither had witnessed anything inappropriate between Smith and Broderick. (D.I. 44, Ex. 8 at 39-41) In his interview with Jones, Broderick denied Smith's allegations, but acknowledged that he used the term "tube steak" in reference to a hot dog from the vending machine, and without mentioning "smothered in drawers, " when Smith inquired about lunch. (D.I. 44, Ex. 8 at 12, 41-43) Based on the investigation, Jones concluded that there was no evidence of discrimination. (D.I. 44, Ex. 10; Ex. 8 at 51-52)
On April 3, 2009, Smith claims that coworker Harry Vannicoli allegedly showed him a picture of a donkey and a woman engaged in a sexual act,  after which Vannicoli instructed Smith to perform oral sex on coworker Erwin Hall. (D.I. 44, Ex. 1 at 158-59, 176-77) Smith reported the picture and Perdue disciplined Jefferson, who had originally sent the text message containing the offending picture to Vannicoli. ( Id. ; Ex. 5 at 44-46) On April 9, 2009, Jones scheduled a facility-wide sexual harassment training session for April 29, 2009. (D.I. 44, Ex. 1 at 154; Ex. 11)
Smith filed charges of sexual harassment and retaliation with the Delaware Department of Labor ("DDOL") on April 22, 2009. (D.I. 44, Ex. 14; Ex. 1 at 174-79) In the charge of discrimination, Smith alleged that Broderick made grinding/humping motions while standing behind Smith, he subsequently made the "tube steak smothered in drawers" comment, Jefferson sent a photo of a donkey and a woman in a sexual act to co-worker Harry Vannicoli, who showed it to Smith, and Vannicoli encouraged Smith to perform oral sex on Hall. (D.I. 44, Ex. 14) Perdue was served with the charges between May 6 and May 11, 2009. ( Id. )
On May 9, 2009, Smith alleges that his coworkers ridiculed and harassed him, and refused to help him with malfunctioning machinery. (D.I. 44, Ex. 1 at 192-96, 234; Ex. 5 at 56-57; Ex. 3 at 55-56) Smith called Broderick to complain, and became stressed as a result of the continued harassment. ( Id. ) Believing that he should not operate the heavy equipment in his condition, he requested permission from Broderick and Jefferson to leave work early. ( Id. ) Neither Broderick nor Jefferson gave Smith permission to leave. (D.I. 44, Ex. 1 at 196-98; Ex. 5 at 56-60; Ex. 3 at 57) Smith left work despite the lack of permission. ( Id. ) Although Smith testified that he shut the machines down before exiting, a maintenance worker testified that Smith left the machines running. (D.I. 44, Ex. 1 at 196-97; Ex. 3 at 56-60) Broderick instructed Jefferson to go to the facility and complete Smith's responsibilities to prevent further loss of production. ( Id. ; Ex. 5 at 61; Ex. 8 at 61-62)
Broderick informed Jones by telephone that Smith had walked off the job without permission. (D.I. 44, Ex. 3 at 60-66; Ex. 8 at 56-57) Jones recommended issuing a three-day suspension pending termination on May 11, 2009. (D.I. 44, Ex. 8 at 58-60) When Smith returned to work on May 11, 2009, he claimed that he experienced another panic attack. (D.I. 44, Ex. 1 at 199-200) Jefferson informed Smith that he was being written up for leaving early on May 9, 2009 and asked him to leave the premises. Smith called human resources complaining that Jefferson refused to take him to the medical center. (D.I. 44, Ex. 1 at 199-204) Smith was instructed to call 911. (D.I. 44, Ex. 1 at 199) Smith called 911 and requested an ambulance, and he was taken to the emergency room. ( Id. )
Jones confirmed that Smith had abandoned the job by speaking with Broderick and Jefferson and by reviewing Smith's time card. (D.I. 44, Ex. 8 at 61-63) Based on this investigation, Jones decided that termination was appropriate. ( Id. at 68) Jones terminated Smith later that week for insubordination because Smith walked off the job without permission on May 9, 2009. (D.I. 44, Ex. 1 at 205; Ex. 8 at 63) Smith believes that Richie Oliphant ("Oliphant"), an allegedly similarly situated employee of Perdue, left work early without permission on or about May 9, 2009, and has not suffered any discipline. (D.I. 44, Ex. 1 at 208-10)
In July or August 2009, Smith and his former attorney prepared a document constituting a chronology of the alleged harassment suffered by Smith during his employment at Perdue. (D.I. 44, Ex. 1 at 212-14; Ex. 15) The chronology contained several allegations not previously mentioned in his April 22, 2009 DDOL Charge of Discrimination or in his internal complaints at Perdue. ( Id. ) Perdue disputes these allegations, but claims that even if the court accepts them as true, Perdue should still prevail on its motion for summary judgment. (D.I. 43 at 9)
The chronology adds new allegations. First, Smith alleges that a coworker named Clint Lewis went into an office with Russell, closed the door, turned the lights off, and provocatively rubbed up against one another, with their clothes on, on an almost daily basis. (D.I. 44, Ex. 15 at ¶ 16) Smith claims that this conduct was never directed at him, but he witnessed it by looking through a window in the door,  although he did not report it. (D.I. 44, Ex. 1 at 167-69) Next, Smith claims that on March 17, 2009, Russell told Smith to "get his knee pad[s] ready, " while Kenny Ross, another coworker, yelled Smith's name and said, "blow me." (D.I. 44, Ex. 15 at ¶ 23) Also, on March 18, 2009, Smith alleges that Louis Hudson asked him, "What's up, girlfriend?" and looked him over. (D.I. 44, Ex. 15 at ¶ 24) He then asked if Smith was sore, supposedly from anal sex, and said, "Don't worry, I still love you." ( Id. ; Ex. 1 at 165) Finally, on March 20, 2009, Smith alleges that he told Russell that a coworker would be mad at him because Smith's new computer was bigger and better. Russell allegedly responded, "that's not all that is big and better, " as he pushed his mid-section out and laughed. (D.I. 44, Ex. 15 at ¶ 27)
Smith initiated the instant harassment and retaliation action against Perdue by filing a complaint in this court on February 24, 2012. (D.I. 1) Smith filed an amended complaint on April 12, 2012, alleging causes of action for retaliation and hostile work environment under Title VII. (D.I. 11 at ¶¶ 35-40)
III. LEGAL STANDARD
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Material facts are those that could affect the outcome of the proceeding, and "a dispute about a material fact is genuine' if the evidence is sufficient to permit a reasonable jury to return a verdict for the non-moving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986)). Pursuant to Rule 56(c)(1), a party asserting that a fact is genuinely disputed must support its contention either by citing to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials, " or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A) & (B).
The moving party bears the initial burden of proving the absence of a genuinely disputed material fact. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The burden then shifts to the non-movant to demonstrate the existence of a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir.1989). When determining whether a genuine issue of material fact exists, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. See Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). However, the existence of some evidence in support of the nonmoving party may not be sufficient to deny a motion for summary judgment. Rather, there must be enough evidence to enable a jury reasonably to find for the nonmoving party on the issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If the nonmoving party fails to make a sufficient showing on an essential element of its case on which it bears the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. at 322.
A. Sexual Harassment
To establish a claim for hostile work environment under Title VII, a plaintiff must establish that: (1) he suffered intentional discrimination because of his sex; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected him; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) respondeat superior liability. See Weston v. Pennsylvania, 251 F.3d 420, 425-26 (3d Cir. 2001), abrogated in part on other grounds by Burlington N. ...