Equal Employment Opportunity Commission v. McPherson Companies, Inc., The
MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 11/14/12. (KGE, )
2012 Nov-14 PM 03:22
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EQUAL EMPLOYMENT OPPORTUNITY
THE MCPHERSON COMPANIES,
CIVIL ACTION NO.
utterances in the workplace. The question in the case, however, is
not how vile and obnoxious this workplace language was.
vile and obnoxious enough to score nine on a scale of ten.
will become apparent as the story unfolds.
The question for the
competition to see who could beat whom in the foul-mouth game into
a cause of action under Title VII by an offended employee for samesex sexual harassment.
This question comes before the court on cross-motions for
summary judgment, one by plaintiff, Equal Employment Opportunity
Commission (“EEOC”), and the other by defendant, The McPherson
Companies, Inc. (“McPherson”).
(Docs. 90, 102).
EEOC asks the
court to find, as a matter of law, that McPherson is liable for
all of EEOC’s claims.
McPherson seeks summary judgment as to
For the reasons set forth
below, EEOC’s motion will be denied, and McPherson’s motion will be
Basic Facts Stated in the Light
Most Favorable to EEOC1
EEOC filed this suit on behalf of John Doe2 (“Doe”) under its
authority to enforce the provisions of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e-3(a)(1)(2). EEOC
makes two claims: (1) a hostile work environment arising from the
opposition to the said discriminatory conduct.
McPherson is one of the largest independent oil lubricant
distributors in the nation, with locations in Alabama, Florida,
Georgia, Tennessee, and Mississippi.
in Trussville, Alabama.
McPherson’s headquarters is
Doe worked for McPherson in Trussville
Rule 56, F.R.Civ.P., requires that a non-movant be given
the benefit of the doubt on the evidence. When there are crossmovants, Rule 56 makes the task more difficult. Based on the
unique procedural posture of this case, all facts and their
reasonable inferences will be viewed in the light most favorable
to EEOC, which is both a non-movant and a movant. Instead of
submitting an affidavit from Doe in which he disputes upon
personal knowledge, particular testimony of McPherson witnesses,
EEOC offers a blanket denial of McPherson’s entire evidence.
This court has never encountered such a procedure. This is not
the way to create a dispute of material fact.
The charging party here is referred to both by EEOC and by
the court as “John Doe” in order to preserve his anonymity.
from August 16, 2004 until February 8, 2008, when he was discharged
during a reduction-in-force (“RIF”).
During this entire time, Doe
worked in the Renew Department, which recycles oil-based products.
His job could fairly be described as “gritty and grimy”.
Painter (“Painter”) was the Facility Operations Manager to whom Doe
After a reorganization in the fall of 2005, Doe
reported to Lamar Tipton (“Tipton”), the Lead Blend Supervisor who
oversaw the Renew Department.
Tipton, in turn, reported to Mike
Mike reported to Painter.
Tipton did not
directly supervise Doe, although he had supervisory authority based
upon his higher position.
When Doe began his employment, he was presented with the
McPherson Employee Handbook, which included McPherson’s policy
expressly prohibiting sexual and all other forms of unlawful
Doe acknowledged receipt of these materials, and
testified that he never asked McPherson any questions about them.
Doe admits that he understood, inter alia, that if he had any
complaint regarding harassment of any kind, he could and should
Allegations of Purported Sexual Harassment
There was a culture of horseplay and off-color badgering in
the all-male warehouse where Doe worked.
Not only would the
language used by many employees shock a bishop in his robe, but it
would have been unpleasant and offensive to any person of tender
employees, calling them demeaning names like “fathead”.
joked around with Mike, his superior.
When Doe and Mike would have
to climb on top of tanks, they would rock the tanks back-and-forth
to scare each other.
Doe, like other employees, would spit his
tobacco juice in the trash can in Mike’s office.
Doe also “rag
popped” Mike, as well as non-supervisory employees.
to the point of crudity, was a way of life.
Everybody got a dose
of ugly talk, delivered casually and without apparent malice.
Doe says that in late 2004 or early 2005 this warehouse banter
rose to an intolerable level.
By that time, Mike’s and Painter’s
comments had, on some occasions, become name calling of a sexual
According to Doe, in 2005, Mike first referred to him as
a “faggot”, and made similar comments almost every day up until
(“Chapman”), the Director of Human Resources. Doe says that Mike’s
comments included: “come here, fag,” “hey homo,” “look who’s here,
d**k s**ker,” and “why does your breath always smell like a**?”
Doe says that on September 25 or 26, 2007, Mike said to him “all
anybody has got to do is pull their pants down and, poof, there you
are ready s**k their d**k”, and “hurry, everybody get your pants
up, here’s [Doe], he’ll start s**king your d**k.”
Doe, Painter made similar comments. Doe says that between February
and April 2005, Painter said to him, “Okay faggot.
want you to do[,].”
Here’s what I
Doe further alleges that on October 18, 2007,
Painter said to him “What, is the battery dead on your butt plug
going dead?” (grammatical error in original), and “I swear, that
boy can’t do nothing without something shoved up his a**.”
says that once when he asked Painter about a jar of peanut oil
sitting on Painter’s desk, Painter responded, “You know what this
is, that’s a nut and you’ve had several nuts in your mouth.”
Painter apparently had a quick and filthy, if childish, response to
almost any question.
Doe alleges that Painter regularly and
routinely used expressions like: “faggot,” “queer,” “homo,” “d**k
s**ker,” “fairy,” “a** breath,” and “go behind the tank and do what
[you] do to other men.”
Painter never used the word “gay”, the
relatively innocuous word used by male homosexuals to describe
Such nasty talk, in and of itself, does not prove that
the people who engage in it, and who aim it at others, actually
believe, or have any reason to believe, that their listeners are
expression “ass breath” has no homosexual connotation.
more like a comment on someone’s halitosis.
Other McPherson employees, including Scott Wamble (“Wamble”)
and Eric Beasley (“Beasley”), testified that Mike and Painter
comments to each other, and to
regularly made these types of
In other words, Doe was not the only person with whom this
word game was played.
Doe does not dispute this fact.
demurs, simply saying that he does not know whether or not Mike and
Painter made such comments to others.
He admits that it is
threatened by any of the talk, and that no one at McPherson ever
touched him or propositioned him.
Doe is 5'10" and weighs between 190 and 220 pounds.
tattoos on his arms.
He, as well as other male employees, wore
Doe was married and had children.
Doe did not carry
himself like a woman or act in a manner that could even remotely be
described as feminine. Doe testified in his deposition that he was
“just as much of a man as anyone else” and that he gave this
impression to everyone, including his co-workers.
Mike and Tipton
both testified that Doe did not look or carry himself in any way
that would suggest femininity. Doe even bragged about his way with
He gave no one any reason to doubt his manhood.
nothing and said nothing to suggest that he was homosexual.
Doe’s Complaints Regarding Alleged Harassment
About a year into his employment, Doe told Tipton that the
name calling wasn’t appreciated, and that it needed to stop.
also told Tipton that he wanted Mike and Painter to address him by
his first name or “sir.”
There is no testimony as to what
particular words or expressions Doe found offensive, or violative
of any particular federal discrimination laws.
By inference, all
of the above-quoted words offended Doe. It was not, however, until
sometime in 2006 that Doe told his co-workers, Beasley and Merrell
Smith (“Smith”), that he was sick of their horseplay, that he could
not put up with it anymore, that it was driving him crazy, and that
he wanted it to stop.
Beasley and Smith both then apologized to
Doe, and stopped making off-color remarks in Doe’s presence.
Before November 2007, Doe did not report any of this offensive
language to Chapman, the Director of Human Resources, because he
personally liked his fellow employees, and did not want to cause
them any trouble.
On some unspecified date, Doe told Mike that he
was tired of his comments and that they were getting old.
offensive language to the Director of Human Resources.
week of November 3, 2007, Doe spoke for the first time with Chapman
about Mike’s and Painter’s inappropriate language.
Doe may have
also talked to Chapman about what he had found to be offensive talk
by other employees, because Chapman followed up with others.
the conclusion of the conversation, Chapman told Doe that she would
investigate the matter.
Before the week of November 3, 2007, Doe
had never complained to Chapman about any bothersome workplace
horseplay, or language, not only because he did not want to hurt
anybody, but, as he testified, because he “loved his job.”
short, between his first day of employment in 2004, and the week of
November 3, 2007, Doe never complained to the Director of Human
Resources about foul or sexually provocative language, despite the
clear invitation to do so contained in the Employee Handbook.
October 30 or 31, 2007, shortly before the week of November 3,
2007, Doe had consulted with Chapman regarding personal matters,
but Doe admits that on the earlier occasion, he did not bring up
any inappropriate or harassing language.3
Immediately after her meeting with Doe during the week of
November 3, 2007, Chapman interviewed Painter, Mike, and Beasley
regarding Doe’s complaints.
She instructed all three to stop
making inappropriate or vulgar remarks to, or in the presence of,
McPherson disciplined Mike and Painter for their offending
The discipline apparently worked, because Doe heard no
more ugly remarks from any McPherson employee during the remainder
of his employment.
Other Events Prior to the Reduction in Force
On February 7, 2007, Doe received his annual performance
evaluation for the 2006 calendar year.
On a scale of one to four,
with one being the worst and four being the best, Doe received an
overall rating of two.
This was months before Doe met with Chapman
In its brief, EEOC asserts that Doe talked to Chapman about
the allegedly harassing comments during the October 30 or 31,
2007 meeting. EEOC offers no evidentiary support for this
assertion. A thorough review of Doe’s deposition reveals Doe’s
unequivocal testimony that he did not discuss these comments with
Chapman until the meeting held during the week of November 3,
2007. (See Doe Depo. at 277:2-10).
regarding personal issues.4
On October 30, 2007, Doe was randomly
selected to take a drug test.5
He did not complain about it at the
Doe took the test on November 1, 2007, and passed it.
was before Doe’s second meeting with Chapman.
employees were also randomly drug tested the same week.
problems with his attendance.
His co-workers complained that he
came to work late and kept “bankers [sic] hours.”
notifying anybody of his impending absence.
On January 22,
Chapman explained to
Doe that McPherson was willing to accommodate him while he was
supervisors know in advance if he was going to be late or absent.
EEOC contends that anything related to the personal issues
Doe was experiencing during 2007 is inadmissible as irrelevant.
While the court finds it unnecessary to rehash the intimate
details of Doe’s personal life during 2007, the fact that Doe was
experiencing personal issues to the extent that he discussed them
with Chapman in late October, without discussing his work issues
is relevant to his state of mind at the time, particularly as an
indication of his own evaluation of the offending conduct.
EEOC disputes that this drug test was random, like the
others contemporaneously given, but offers no evidence in support
of this contention. This unsupported contention is insufficient
to create a disputed fact sufficient to prevent the entry of
summary judgment. See In re World Access, Inc., 310 F. Supp. 2d
1281, 1289 (N.D. Ga. 2004) (citing Leigh v. Warner Bros., Inc.,
212 F.3d 1210, 1217 (11th Cir. 1983)) (“Conclusory allegations
based on subjective beliefs are insufficient to create a genuine
issue of material fact.”).
EEOC contends that Doe was denied the benefit of McPherson’s
progressive discipline policy when he received this January 22
warning, but EEOC’s said contention is conclusory in the extreme.
discipline than a warning would have been called for if progressive
discipline had been applied.
On February 6, 2008, Doe was forty-five minutes late.
not notify anyone in advance that he was going to be late.
February 7, 2008, he did not appear at all, and did not notify
McPherson that he would not be coming to work until forty-five
minutes after he was scheduled to arrive.
For a reason that is
obvious, he received no discipline on these occasions.
already been determined that Doe would be RIFed.
There was no
point in disciplining an employee on February 7, 2008, when a day
later he would no longer be an employee.
Whether Doe’s non-
appearance on February 7, 2008, was because he knew that he was
being RIFed is not reflected in the record, but it would make
At some unspecified earlier time, McPherson asked Doe to
obtain a commercial driver’s license (“CDL”). Doe never did obtain
such a license, becoming the only employee in the Renew Department
who did not have one.
Late in 2007, Smith and Wamble were assigned to handle an offsite job.
Wamble was unable to go.
Doe was assigned in his place.
EEOC cannot seriously offer this as an adverse employment action.
To the extent that any of the above-outlined events may have
constituted adverse employment actions, they were not indicative of
circumstances surrounding them.
The Reduction in Force
In late 2007 and early 2008, an Executive Management Team,
consisting of Mike Bedford (“Bedford”) (a different “Mike”), VicePresident of Operations, Brad Grey (“Grey”), and Ken McPherson
(“Ken”), decided that McPherson must cut jobs to off-set a downturn
As a result, McPherson implemented a RIF in early
EEOC disputes McPherson’s account of the RIF process.
EEOC’s evidentiary citations, however, do not support its
assertion. EEOC contends that testimony offered by Bedford and
Chapman is inconsistent as to who made the decision that Doe
would be selected for the RIF. Specifically, EEOC argues that
Bedford testified that he made the decision, while Chapman
testified that the Executive Management Team made the decision to
discharge Doe. Based on this alleged inconsistency, EEOC resorts
to a dispute of every fact offered by McPherson related to the
RIF, including facts unrelated to the process in which Doe was
selected for discharge. The court has taken EEOC’s position as
seriously as such a position can be taken.
Upon review of the testimony, the two accounts offered by
Bedford and Chapman are entirely consistent. Bedford testified
that he made the decision to select Doe for the reduction in
force and agreed that the other members of the Executive
Committee and Chapman were involved in the RIF process.
As to his role in selecting Doe for the RIF, Bedford
Q: Okay. So is it your testimony that you made the
decision for [Doe’s] employment to end and not the
team? . . . Which one, did the team made the decision
or did you make the decision?
A: As I’ve already stated, I made the decision.
Q: Would that apply to all of the reductions in forces
A: To those departments that reported to me, yes.
(Bedford Depo., Doc. 104-7 at 74:10-22). At another time,
Bedford testified that:
Q: What were the circumstances for you to meet [Doe]?
A: [Doe] was an employee in the Renew Division and I
was over Renew from the operations standpoint.
(Doc. 104-7 at 10:12-16).
Bedford’s testimony unambiguously establishes that he made the
final decision to terminate Doe, because Doe was selected from
the Renew Department, a department he oversaw. Bedford did not
make the decisions regarding the termination of employees outside
of his the departments he worked. Other members of the Executive
Committee were involved in the RIF process either by providing
Bedford with information, such as budgetary needs, or making the
final decisions for the departments they oversaw. (See
generally, Doc. 104-7 at 25:8-21; 41:4-8).
Bedford’s testimony regarding who selected Doe for the RIF
is entirely consistent with Chapman’s testimony. Chapman
Q: Okay. So would you agree that the four individuals
who made the decisions as to who were to be subject to
a reduction in force were you, Ken McPherson, Brad
Grey, and Mike Bedford?
(Chapman Depo. 2, Doc. 104-12 at 16:7-11). Chapman did not
testify that each of these individuals was involved in the
specific decision to select Doe for the RIF. Instead, she
testified that each of the members of the Executive Management
Team were involved the RIF decisions. Chapman later clarified by
explaining her role in Doe’s selection.
Q: Were you involved in decision who was going to be
subject to the reduction in force?
A: Not all of them.
. . .
Q: Okay. Were you involved in [Doe’s]?
A: Not as the final decision-maker.
(Doc. 104-12 at 13:4-11).
Because the Renew Department was not performing up to
expectations, the Executive Management Team decided to cut one of
its three employees, Smith, Wamble, and Doe.
selected as the one to go.
Doe was finally
Overall, eleven McPherson employees
were let go as part of the RIF.
McPherson explains, without any real need to do so, that Doe
was selected for the Renew Department RIF for several reasons. The
core reason for letting him go was, of course, the mathematical
certainty that during the RIF, hard choices like this one had to be
The court finds it hard to believe that EEOC is seriously
arguing that the entire RIF process was a subterfuge and a fraud
designed for the sole purpose of providing cover for retaliation
against Doe. If that is EEOC’s contention, it is so beyond belief
as to be precluded from jury consideration. Instead of undertaking
the virtually impossible, namely, to prove that the RIF itself was
a pretext, EEOC argues that the reasons McPherson gave for Doe’s
selection as the one to RIF in the Renew Department are unworthy of
The testimony offered by EEOC in support of an alleged
inconsistency plainly does not support its contention. EEOC does
not offer any other evidence to dispute the RIF decision-making.
Its only argument is that the testimony is inconsistent, which it
plainly is not. EEOC’s manufactured inconsistency is not
sufficient to create a genuine issue of material fact regarding
McPherson’s RIF process, especially one that singled out Doe.
Which people actually participated in the decision is not crucial
to the outcome.
prerogative, namely, a RIF.
EEOC cannot oppose the idea that good
employees, like bad employees, are subject to RIF.
RIF selection cannot itself create a Title VII claim by the RIFed
employee, that is, unless the choice is so transparently tainted
with prejudice that it smells to high Heaven.
EEOC does not
contend that Doe was more qualified than either of the two Renew
Department employees who were retained.
Absent the RIF, McPherson
says that it would not have terminated Doe, despite his several
shortcomings. Conspicuously, no one was hired to replace Doe. If,
for economic reasons, McPherson decided to reduce its work force in
the Renew Department by one, McPherson had to choose one. There is
nothing in the record to suggest either that the decision to reduce
force was aimed at Doe, or that Doe’s selection was retaliatory or
the result of any form of prejudice.
Hostile Work Environment7
Title VII clearly prohibits an employer from discriminating
against an employee based on the employee’s sex.
42 U.S.C. §
McPherson is the only party that has moved for summary
judgment on the hostile work environment claim. For reasons of
practicality and abbreviation, this court will not tie itself
into a pretzel under Rule 56, trying to give both non-movants the
benefit of the doubt on all possible conclusions that can
reasonably be derived from the evidence. Where there is arguably
conflicting evidence, EEOC will be given the benefit of the
doubt, although it is a movant on the retaliation claim. Both
parties rely on some of the same evidence, whether as movant or
It follows as night follows day that discrimination
which creates a hostile work environment based on the sex of the
complaining party violates Title VII.
In Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993), the Supreme Court held:
When the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the
environment, Title VII is violated.
(emphasis added, internal citations and quotation marks omitted).
Under this rubric, EEOC must show:
(1) that [Doe] belongs to a protected group; (2) that
he has been subject to unwelcome sexual harassment; (3)
that the harassment was based on [his] sex; (4) that the
harassment “was sufficiently severe or pervasive to alter
the terms and conditions of employment and create a
discriminatory abusive work environment”; and (5) a basis
for holding the employer liable.
Watson v. Blue Circle, Inc., 324 F.3d 1252, 1257 (11th Cir. 2003)
(quoting Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir.
1999) (en banc).
mistreatment because of his sex?”
Just as in cases of opposite-
gender sexual harassment, the plaintiff in a same-sex harassment
case must prove not only that there was harassment but that it was,
in fact, occasioned by the plaintiff’s sex.
Such a plaintiff must
show not only that the employer’s conduct was offensive to her or
to him, but that it constituted discrimination because of her or
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
Establishing the discriminatory aspect of same-sex
harassment is more difficult than establishing opposite-gender
There is no formula by which it can be established.
In Oncale, the Supreme Court recognized three ways by which a
plaintiff can prove that harassment by persons of the plaintiff’s
own sex is traceable to or occasioned by plaintiff’s sex.
include: (1) by
credible evidence that the harasser himself was
homosexual; (2) by credible and clear evidence that the harasser
was motivated by general hostility toward persons of the victim’s
gender working in the workplace; or (3) by direct comparative
differently in the workplace.
Id. at 80-81; see Pedroza v. Cintas
Corp. No. 2, 397 F.3d 1063, 1068 (8th Cir. 2005)(recognizing that
the three methods outlined in Oncale are non-exhaustive); Shepherd
v. Slater Steels Corp., 168 F.3d 998, 1009 (7th Cir. 1999) (same).
EEOC’s claim of the same-sex harassment of Doe does not fall within
any of the three methods of proof listed in Oncale.
reason, EEOC seeks an innovative recognition of a new Title VII
concept, namely, that the discrimination element can be established
by a showing that the male employee was harassed by members of his
own sex because the male plaintiff did not conform to the male
This court is, then, being asked by EEOC to expand
the reach of Title VII to preclude offensive workplace language
even when it is not directed at a person of the male sex because of
that person’s male sex.
The mere fact that Doe’s fellow employees
used terms like “faggot”, assuming that their purpose was to
irritate Doe or to irritate others who were also called “faggot”,
does not prove that Doe would not have been bothered by other
workplace was not exactly a Sunday School.
Any person who is
offended by filthy language, particularly if aimed at him, might
well take offense at the language that offended Doe.
“harassers” may or may not have enjoyed getting under Doe’s skin,
but they undoubtedly did get under his skin.
If Doe had complained
to the Director of Human Resources two years earlier, the offending
conduct might have ended before it reached the stage that finally
caused Doe to bring it to the attention of the Director of Human
The theory of same-sex harassment based on gender
stereotypes comes from the Supreme Court’s decision in Price
Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775 (1989). In
Price Waterhouse, a plurality advocated that “[i]n forbidding
employers to discriminate against individuals because of their
sex, Congress intended to strike at the entire spectrum of
disparate treatment of men and women resulting from sex
stereotypes.” Id. at 251, 109 S. Ct. 1775 (internal citations
and quotation marks omitted). Because neither of the two
concurring opinions in Price Waterhouse expressly disagreed with
this plurality proposition, many courts have traveled on the
assumption that the plurality opinion is the law of the land.
This may or may not be good jurisprudence.
The undersigned judge well remembers a grizzled veteran drill
sergeant during basic training.
What the sergeant called us
draftees equaled or exceeded what Doe heard himself and others
being called at McPherson.
The sergeant routinely called us
“mother-fuckers” or “cock-suckers”, when he wanted to emphasize a
point or to get our attention, or he put the two expressions
He may have considered the language as a training
technique, or he may just have been born with a foul mouth, but we
did not understand that he believed that any of us fit either of
the two pejorative appellations he routinely used to describe us to
our faces, both of which, if taken literally, would have had
provocative and offensive sexual connotations.
We called our
sergeant “sir”. The context was different, but the analogy is good
The Eleventh Circuit has not addressed the gender stereotype
theory in a Title VII case.9
In Glenn v. Brumby, a case brought
under 42 U.S.C. § 1983 and not under Title VII, the Eleventh
Several circuit courts have recognized that a plaintiff may
be able to establish a claim of same-sex harassment by showing
that the harassing conduct was motivated by a belief that the
plaintiff did not conform to the stereotypes associated with his
or her sex. See e.g., Dawson v. Bumble & Bumble, 398 F.3d 211,
218-21 (2d Cir. 2005); Bibby v. Phila. Coca Cola Bottling Co.,
260 F.3d 257, 262-63 (3d Cir. 2001); Nicholas v. Azteca Rest.
Enters., Inc., 256 F.3d 864, 874-75 (9th Cir. 2001) Higgins v.
New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir.
1999); Doe v. City of Belleville, Ill., 119 F.3d 563, 580-83 (7th
Cir. 1998), vacated on other grounds, 523 U.S. 1001, 118 S. Ct.
Circuit held that when a defendant, while acting under color of
state law, discriminates on the basis of a person’s nonconformity
to a gender stereotype, the conduct may constitute sex-based
discrimination in violation of the Equal Protection Clause.
F.3d 1312, 1316 (11th Cir. 2011). The Eleventh Circuit relied upon
the plurality opinion in Price Waterhouse.
Brumby, like other
cases to be cited, is readily distinguishable from the present case
for a more obvious reason than that it is being brought under an
Brumby involved a plaintiff who had an obvious gender
non-conformity, a fact that is not present in the instant case. As
will be explained in more detail, this court does not believe that
the narrowly tailored stereotype theory of sex discrimination
recognized in Brumby can or should be judicially expanded to make
the conduct that EEOC here complains of on behalf of a masculine
male into a violation of Title VII.
It does not cross any bright
line that was drawn in Brumby.
Assuming arguendo that, if faced with the issue, the Eleventh
Circuit would recognize the applicability of EEOC’s suggested
theory to a Title VII case, this court must determine if there is
evidence in this case upon which a reasonable jury could find that
Doe was harassed because of his failure to conform to the male
stereotype and therefore that he was harassed “because of his sex.”
There are substantial differences between the evidence in the few
cases in which a court has recognized a claim for hostile work
environment, and the undisputed evidence in the present case.
stereotyping cases there was undisputed evidence that the male
The male plaintiffs in the said cases
virtually advertised their non-conforming sexual image.
Prowel v. Wise Business Forms,
Inc., 579 F.3d 285 (3d Cir. 2009);
Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th
Here, there is no evidence that Doe, the complaining
party, failed to conform strictly to the male stereotype, or was
thought not to do so.
This court can find no decision, whether
binding on this court or not, in which a demonstrably
plaintiff has prevailed.
Cf. Vickers v. Fairfield Med. Ctr., 453
F.3d 757, 764 (6th Cir. 2006) (“Rather, his claim fails because
Vickers has failed to allege that he did not conform to traditional
gender stereotypes in any observable way at work.”).
Trying to push Doe within the Brumby embrace, EEOC disagrees
testimony, that Doe was harassed because he did not conform to the
Where does EEOC find this?
Certainly not from
Doe testified that he never thought of himself as
acting in any way like a woman.
Instead, he testified that he is
just as much of a man as any man.
the other men.
He spit his tobacco juice with
He looked in all respects like a man and acted like
Contrary to the position taken on his behalf by EEOC, Doe
more than once testified that he gave off a manly impression.
Nobody ever called him effeminate or girl-like. Doe’s complaint is
quite different from the complaints in the few cases in which
courts have found Title VII harassment in response to plaintiff’s
nonconformity to gender stereotype.
For example, the plaintiff in
Prowel readily conceded the obvious, namely, that he did not
display masculine traits.
579 F.3d at 291.
Prowel may not have
worn a dress and high heels, but he readily admitted that he spoke
in a high-pitched voice, walked in an effeminate manner, groomed
his nails, crossed his legs and had a tendency to shake his foot
the way a woman might.
In the instant case, it is undisputed
that Doe viewed himself as fully masculine.
Doe, has testified to the contrary.
No witness, including
In its zealous representation
of Doe, EEOC is mischaracterizing Doe’s own testimony.
engaging in wishful thinking, apparently in order to squeeze under
the Brumby umbrella.
As a further illustration that Doe’s alleged “harassers” did
not view him as feminine or as having any feminine traits, Mike and
Painter both testified that they did not think of Doe as in any way
The very idea came as a surprise to them.
testimony corroborates Doe’s view of himself. It provides no basis
whatsoever for inferring that anyone McPherson perceived Doe as
non-conforming to the male stereotype.
What exactly constitutes a
stereotypical male could, of course, be a matter for debate in some
other case, but not in this one.
No witness spotted a non-
conformity to masculine stereotype in Doe.
Although some witnesses in this case admit that their language
could have offended fellow workers, it never occurred to any of
them that they were singling Doe out for ridicule because he was
effeminate or believably homosexual.
In the few cases in which
actionable harassment based on a male’s nonconformity to gender
stereotype has been found, the undisputed evidence unequivocally
established that the male “harassers” perceived the employee to
show feminine characteristics.
In Prowel, for instance, the
harassers referred to the unmasculine Prowel as “Rosebud” and
placed a pink tiara at his work station.
Prowel, 579 F.3d at 291-
Doe’s alleged “harassers” have never described, much less
commented on, Doe’s body language, or the care he gave to his
In Nichols, the court explicitly noted that the
“harassers” repeatedly reminded the complaining employee that he
did not conform to the male stereotype.
They referred to him as
“she” and “her” and “the most vulgar name-calling . . . was cast in
256 F.3d at 874.
No one at McPherson ever called
Doe “she” or “her” or “sweetie pie”.
In the instant case, while some of the allegedly harassing
comments had sexual connotations, courts have held that such gross
language does not in of itself necessarily demonstrate that the
language was occasioned by the plaintiff’s gender. For example, in
Johnson v. Hondo, Inc., the court explained that “expressions such
as ‘f*** you,’ ‘kiss my a**,’ and “s**k by d**k,” are common place
in certain circles, and more often than not when these expressions
are used (particularly when uttered by men speaking to other men),
their use has no connection whatsoever with the sexual acts to
which they make reference.”
125 F.3d 408, 412 (7th Cir. 1997); see
also Davis v. Costal Int’l Sec., Inc., 275 F.3d 1119 (D.C. Cir.
While not binding authority, the cases cited above are on
point and are highly persuasive.
They represent a practical turn
of mind as well as a correct reading of Title VII.
is not amusing to every hearer, but its mere use does not make out
a prima facie case of federally proscribed harassment.
As offensive as the language here complained of was, EEOC has
offered no evidence to show that it was aimed exclusively at Doe,
particularly by persons who believed that he did not conform to the
It is undisputed that Mike and Painter made
similar vulgar comments to other employees, neither of whom were
The court has already acknowledged that some people
are more sensitive than others, but Title VII was not designed, and
has not yet been construed, to protect the relatively few employees
who are bothered by bad language of the sort employed here.
not complaining to the Director of Human Resources for two years
after he first complained to fellow workers about their language is
differentiation in his own mind between vulgarity, on the one hand,
and ridicule for perceived non-masculinity, on the other.
The court agrees with EEOC that Mike’s and Painter’s language
crossed the line of social acceptability, even in an all male work
But, this court is unwilling to assist in the
creation of a general rule that will expose all employers to Title
VII suits like this one.
into a brave new world.
EEOC asks the court to take Title VII
The mission of EEOC is an important one,
but it does not include the cleaning out of all boorish slobs in
Bad facts sometimes make bad law, but it will
require action by Congress to take Title VII over the great divide
that now exists between bad language and same-sex harassment. This
court respectfully declines to act as the shoehorn to classify bad
language as conduct proscribed by Title VII.
Last, but certainly not least, if Congress had intended in
Title VII to prevent the use of foul and offensive language in the
workplace, it would have had to find a way to circumvent the First
constitutional, would make the courts into word policemen.
Both EEOC and McPherson have sought summary judgment on the
separate retaliation claim.
EEOC seeks a judgment that McPherson
unlawfully retaliated, contending that the undisputed evidence
establishes a prima facie case of retaliation, and that McPherson’s
proffered reasons for discharging Doe are pretextual.
would have denied EEOC’s motion for partial summary judgment as its
first item of business if McPherson’s interconnected Rule 56 motion
had not been a priority item.
As defenses to EEOC’s Rule 56
motion, McPherson predictably interposes three:
(1) that there is
no causal connection between Doe’s protected conduct and Doe’s
termination, (2) that McPherson had one or more legitimate, nonretaliatory reasons for terminating Doe, and (3) that EEOC cannot
The court is puzzled as to why McPherson has confessed that
Doe’s complaint to Chapman constituted “protected” expression.
There is a conspicuous lack of evidence as to exactly what Doe said
to Chapman on or about November 3, 2007.
A Director of Human
Resources fields many complaints that clearly are not expressions
protected by Title VII. A good Director of Human Resources listens
implicate Title VII.
Title VII only prohibits retaliation in
response to an objectively arrived at employee complaint about past
or present employer misconduct that itself constitutes a violation
of Title VII. McPherson concedes that whatever Doe said to Chapman
in their second conversation was said as part of a conclusion
reasonably and objectively arrived at by Doe that McPherson had
violated Title VII in the form of sexual harassment.
fails to understand McPherson’s waiver of what seems to be a viable
defense, but this court does not decide on litigants’ strategies.
Perhaps McPherson knows something about that conversation between
Doe and Chapman that neither party has shared with the court.
There is no evidence regarding the depth of Chapman’s or Doe’s
understanding of Title VII, and, in particular, what proscribed
“sexual harassment” consists of.
It is so likely to be true that
the court deems that Doe shared with Chapman some of the offensive
words used by others in the workplace.
No wonder she put a stop to
it, but did she believe that Title VII had been violated?
did, she was, in this court’s opinion, objectively mistaken.
Under the “opposition clause”, an employee is protected from
retaliatory adverse action if he has “opposed any practice made an
unlawful employment practice by this subchapter.”
42 U.S.C. §
A plaintiff engages in activity protected by the
opposition clause when he opposes an employment practice that he
has a good faith, reasonable basis to believe is unlawful.
v. Ala. Dep’t of
Transp., 536 F.3d 1209, 1213 (11th Cir. 2008).
In order to satisfy this standard:
A plaintiff must not only show that he
subjectively (that is, in good faith) believed
that his employer was engaged in unlawful
employment practices, but also that his belief
was objectively reasonable in light of the
facts and record presented.
It thus is not
enough for a plaintiff to allege that his
belief in this regard was honest and bona
fide; the allegations and record must also
indicate that the belief, though perhaps
mistaken, was objectively reasonable.
Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 960
(11th Cir. 1997).
(emphasis in original).
The opposition clause
is viewed in the context of what can reasonably be expected in an
ordinary business environment.
Accordingly, not every employee
complaint is given the protection that the “participation clause”
gives something like an employee’s EEOC complaint.
Anduze v. Fla.
Atl. Univ., 151 F. App’x 875, 878 (11th Cir. 2005).
subjectively perceived by Doe, or objectively arrived at by both
importantly, there is no evidence that Doe told Chapman that the
foul language was uttered for the purpose of humiliating him
because of his non-conformance to the male stereotype.
If he had
told Chapman these things, there would have been a plausible reason
for McPherson not to interpose the defense it was provided by the
opposition clause, under which the burden of proof would have been
Without any opposition from McPherson, EEOC is free to ask the
court to assume with it that Doe held the reasonable and objective
belief on or about November 3, 2007, that he was expressing
opposition to an unlawful employment practice. See Clover v. Total
System Services, Inc., 176 F.3d 1346 (11th Cir. 1999).
raising the issue McPherson has conceded that Doe’s complaint to
Chapman was “protected” by the opposition clause.
It has not
conceded that the conduct complained of violated Title VII.
McPherson draws its defensive line at another place, namely,
at the issue of causation.
This is a good defense in this case.
It is not the first defense this court would have chosen, but it
gets the job done.
A prima facie case of Title VII retaliation
requires evidence of causal connection.
The mere honestly held
belief that protected expression and subsequent adverse employment
action are connected is not enough.
McPherson admits that its
disciplining of Doe on January 22, 2008, and its termination of Doe
on February 8, 2008, were adverse employment actions, but it
vehemently denies any connection between either of them and Doe’s
earlier conversation with Chapman.
If, and only if, EEOC has
established a prima facie case, “the burden shifts to [McPherson]
to rebut the presumption of retaliation by producing legitimate
reasons for the adverse employment action.”
Id. (quoting Raney v.
Vinson Guard Serv., Inc., 120 F.3d 1192, 1196 (11th Cir. 1997)).
McPherson has articulated an over-arching and truly legitimate
reason for Doe’s termination, namely, a reduction-in-force.
has failed to show that this reason was a pretext.
Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998)).
It is very difficult to make a jury issue out of pretext when the
articulated reason for an employee’s termination is a RIF that
involves as many as eleven employees.
EEOC has not offered any
evidence of pretext that can overcome the RIF as its legitimate
The causal connection element of a retaliation claim requires
plaintiff to prove that “the protected activity [here conceded by
McPherson] and the negative employment action are not completely
Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261,
1278 (11th Cir. 2008) (quoting Olmsted v. Taco Bell Corp., 141 F.3d
1457, 1460 (11th Cir. 1998)). Causation may be inferred from close
temporal proximity between the protected expression and the adverse
employment action. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361,
1364 (11th Cir. 2007).
When a significant amount of time has
elapsed between the protected expression and the adverse action, a
causal connection can exist if and only if the protected expression
and the adverse action are linked by a chain of intervening
See Wideman v. Wal-Mart Stores, Inc., 141 F.3d
1453, 1457 (11th Cir. 1998).
Temporal proximity by itself must be
“very close” in order to establish the causal connection.
Lighting, Inc., 506 F.3d at 1364 (citing Clark County Sch. Dist. v.
Breeden, 532 U.S. 268, 121 S. Ct. 1508, 1511 (2001)).
Circuit has held that as short as a two month gap between the
statutorily protected expression and the adverse employment action
is not short enough to create a presumption of causation. Williams
v. Waste Mgmt., Inc., No. 10-13121, 2011 WL 207932, at *3 (11th
Cir. Jan. 25, 2011) (affirming summary judgment based on lack of
causal connection when there was a two month gap between the
protected expression and the adverse employment action); see also
Cooper Lighting, Inc., 506 F.3d at 1364 (three month gap); Drago v.
Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006) (three and a half month
gap); Higdon v. Jackson, 393 F.3d 1211, 1221 (11th Cir. 2004)
(three month gap).
Over three months elapsed between Doe’s conversation with
Chapman and Doe’s termination on February 8, 2008. This time lapse
was so lengthy that it provides no basis upon which a jury could
find the requisite causal connection, especially when McPherson’s
intervening verbal discipline of January 22, 2008, was very mild,
was administered right after Doe’s admittedly unexcused tardiness,
and is not even complained of by EEOC.
EEOC, for reasons of its
own, does not charge that the discipline of January 22, 2008, was
a violation of Title VII.10
EEOC, alternatively, argues that, despite the lack of temporal
proximity, the necessary causal connection exists because Doe’s
The only statutorily protected activity alleged by EEOC is
Doe’s November 2007 complaints to Chapman. The only materially
adverse employment action that the EEOC alleges is Doe’s
discharge on February 8, 2008. Using those dates, thirteen weeks
elapsed between the events. McPherson’s concession that the
January 22, 2008 discipline was an adverse employment action did
not shorten the gap.
meeting with Chapman was contemporaneous with or followed by a
linked chain of retaliatory acts leading up to the termination.
EEOC contends that there are four intervening events that create
this chain: (1) a drug test, (2) unpaid time off, (3) a change in
EEOC conspicuously leaves out the January
22, 2008 discipline as an “intervening event”.
EEOC’s argument devoid of merit.
The court finds
This time line of “intervening
events” establishes that all occurred before Doe orally complained
Even if they had occurred after the conversation with
Chapman, they would not supply the necessary links for EEOC’s
argument, because, neither separately nor severally do they carry
any implication of retaliatory motive.
They were appropriate
exercises of business judgment, and are not conceivably indicative
of retaliatory motive.
A decision-maker cannot be motivated to retaliate by an event
she did not know about, and could not have known about.
v. Bellsouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000).
To establish the causal links, EEOC must show that the decisionmakers were
aware of the protected conduct at the time each
adverse action was taken.
Gupta v. Fla. Bd. of Regents, 212 F.3d
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
While there is no doubt that Doe met with Chapman on October 30 or
31, 2007, he did not on that occasion say anything to her about coworkers’
reason, he waited until the week of November 3, 2007, to complain.
Any adverse employment action that took place before November 3,
2007, could not have been in retaliation.
test on November 1, 2007.
Doe took the random drug
Doe accepted two days of unpaid leave
shortly before the week of November 3, 2007.
EEOC offers no
evidence to show proof that any change in job duties was before
November 3, 2007, or was not routine.
Changing duties is not an
adverse employment action unless it involves safety issues or is
facially punitive and completely irrational.
Doe’s disciplinary write-up on January 22, 2008, for his
EEOC does not list this as a “link” or an adverse
employment action, in all probability because Doe so clearly
The “link up” theory cannot be stretched as far as
EEOC wants to stretch it.11
Even if EEOC were found to have presented a prima facie case
reasonably lead a jury to conclude that McPherson’s legitimate
nondiscriminatory reason for Doe’s termination, namely, the RIF,
Doe received the January 22, 2008 discipline for failing
to report to work without proper notification. An employee’s
failure to report to work is a legitimate, non-retaliatory reason
for an adverse employment action. See Gilchrist v. Bolger, 733
F.2d 1551, 1553 (11th Cir. 1984).
was a pretext.
A RIF is always a legitimate reason for firing an
employee, unless his selection during the RIF is a transparent,
sham device to cover a proscribed reason for the entire RIF.
e.g., Freytes-Torres v. City of Sanford, 270 Fed. App’x 885, 894
(11th Cir. 2008).
When a total of eleven employees were RIFed, it
would require proof of a conspiracy (in this case, a conspiracy
involving at least four supervisory personnel) to meet the burden
of proving a pretext.
An employer’s decision to conduct a RIF is
a well recognized and legitimate exercise of business judgment. It
is the result of economic conditions.
It cannot be scrutinized
under the Title VII lens unless it is a facially elaborate fraud,
without any business justification whatsoever.
RIF, if it had been for the singular purpose of getting rid of Doe,
would be such an irrational act as to cause the court to question
not only the judgment and integrity of the four persons who
participated in it, but in their sanity.
including the Renew Department.
This particular RIF
McPherson says that its choice of
Doe was based on the relative skills and performance records of the
three employees in the Renew Department.
had attendance problems.
Both had a CDL.
Neither Smith nor Wamble
There was nothing about
the choice of Doe that can call into question the entire RIF
Because the RIF was inherently and indisputably a legitimate,
non-retaliatory reason for eliminating Doe’s position, EEOC wants
tangential Title VII analysis.
It contends that the reasons given
by McPherson for choosing Doe instead of Smith or Wamble are not
credible and thus are pretextual. McPherson’s reasons for choosing
Doe need not meet the standards for a straight-out firing of an
employee, when the firing is not part of a RIF.
proffered reasons for choosing Doe are only incidental to the RIF
If EEOC is claiming that Doe’s termination was a Title VII
violation because the reasons given for picking Doe from among its
three choices are all pretextual, it is barking up the wrong tree.
Not only are the articulated reasons for picking Doe subordinate to
the RIF, but they have no features that could remotely suggest a
proscribed motivation for picking Doe.
A good reason for picking
Doe (if McPherson needed one), would be Doe’s unexcused absence
immediately before he was RIFed. McPherson did not articulate this
as a reason, because the decision had already been made when Doe
failed to show up for work on February 7, 2008.
“circumstantial”, upon which a jury would find that McPherson
decided to RIF eleven people just to get rid of an employee who had
complained of offensive language to the Director of Human Resources
several months before the RIF.
To show pretext, EEOC “must cast
[McPherson’s] proffered legitimate reasons were not what actually
motivated its conduct.”
Brown v. Chertoff, 563 F. Supp. 2d 1372,
1378 (S.D. Ga. 2008) (quoting Combs v. Plantation Patters, 106 F.3d
accomplishing this not inconsiderable task.
Neither has it come
close to proving that the choice of Doe for the single Renew
“protected” complaint to Chapman.
McPherson could easily have
drawn straws between the three Renew Department employees, but it
was not obligated to do so.
People get hurt in a RIF.
reasonable jury could find pretext on this evidence.
Because there is no proof of discrimination by McPherson
motivated by Doe’s male sex, and no proof of retaliation, EEOC’s
motion for partial summary judgment will be denied, and McPherson’s
motion for summary judgment will be granted.
A separate order will be entered effectuating this opinion.
DONE this 14th day of November, 2012.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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