Smith v. Perdue Farms Incorporated

Filing 55

REPORT AND RECOMMENDATIONS- GRANTING 42 MOTION for Summary Judgment. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 4/28/2014. Signed by Judge Sherry R. Fallon on 4/11/2014. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MARC E. SMITH,
Plaintiff,
V.

PERDUE FARMS INCORPORATED,
Defendant.

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Civil Action No. 12-227-LPS-SRF

REPORT AND RECOMMENDATION
I.

INTRODUCTION
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.
II.

BACKGROUND
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 ,-r,-r 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
,-r 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 1 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." (!d.) Smith did not notify human resources or anyone
else at Perdue of this incident out of fear of retaliation. (!d. 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. (!d. at 118, 122-23) Broderick ultimately agreed to investigate the PDI testing issue.
(!d. 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."
(!d. at 128-29, 137-38) Smith responded with inappropriate language. 2 (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. (!d. at B59)

1

The evidence on the record is inconsistent with regard to whether touching occurred. Compare
D.I. 44, Ex. 1 at 190 with D.I. 44, Ex. 15 at,, 5-7. Smith later characterized Broderick's
conduct as "hip hop" dancing. (D.I. 44, Ex. 9; Ex. 1 at 141)
2

Smith called Broderick "a worthless piece ofs**t." (D.I. 44, Ex. 6; Ex. 1 at 128)
2

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 14445; 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
3

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, 3 after which Vanni coli 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. (!d.; 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
ofLabor ("DDOL") on April22, 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. (!d.)
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 5657; Ex. 3 at 55-56) Smith called Broderick to complain, and became stressed as a result of the
continued harassment. (!d.) Believing that he should not operate the heavy equipment in his
3

At his deposition and in his opposing brief, Smith characterizes the act depicted as "making
out." (D.I. 49 at 7; D.I. 44, Ex. 1 at 173-74)
4

condition, he requested permission from Broderick and Jefferson to leave work early. (!d.)
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. (!d.) 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. (!d.; 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. (!d.)
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. (ld 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

5

permission on or about May 9, 2009, and has not suffered any discipline. (D.I. 44, Ex. 1 at 20810)
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. (!d.) 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, 4 although he did not report it. (D.I. 44, Ex. 1 at 167-69) Next,

4

Smith includes this alleged conduct, which he describes as "dry humping," as evidence that he
was sexually harassed and retaliated against in a workplace "permeated" with same sex desires.
(D.I. 49 at 15) However, according to Smith's deposition, he did not tum away from watching,
creating a contrary impression that he was a prurient observer:
A: It happened actually a lot.

Q: Were they directing that at you?
A: No. They were just doing it.
Q: How did you see it?
A: They would start off, and then they would shut the light off and shut the door. The
door had a window on it, though, and light could get in.
Q: So they would tum the light off, shut the door. There is glass in the door?
A: You can see right through the glass.
6

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." (!d.; 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

III.

at~~

35-40)

LEGALSTANDARD
"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
(D.I. 44, Ex. 1 at 168)
7

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)(l)(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 ofWest 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.

IV.

DISCUSSION
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 ofhis sex; (2) the discrimination
was severe or pervasive; (3) the discrimination detrimentally affected him; (4) the discrimination
8

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. & Santa Fe Ry. Co. v. White, 548 U.S. 53
(2006). In the present matter, the parties' dispute centers on the first and second prongs.
1.

Discrimination because of gender

Title VII prohibits discrimination "because of ... sex" in the "terms" or "conditions" of
employment. 42 U.S.C. § 2000e-2(a)(l). The Supreme Court has cautioned that Title VII is not
"a general civility code for the American workplace," and instead, the focus in a sexual
harassment claim is "whether members of one sex are exposed to disadvantageous terms or
conditions of employment to which members ofthe other sex are not exposed." Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). "In other words, the conduct of jerks,
bullies, and persecutors is simply not actionable under Title VII unless they are acting because of
the victim's gender." Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 467 (6th Cir. 2012).
Title VII provides a cause of action for same-sex sexual harassment in addition to
harassment involving members of different genders. Oncale, 523 U.S. at 79. In Oncale, the
Supreme Court reasoned that it is not the sex of the harasser or the victim that is important to a
sexual harassment claim, but rather, whether the victim can "prove that the conduct at issue was
not merely tinged with offensive sexual connotations, but actually constituted discriminat[ion] ..
. because of ... sex." !d. at 81 (internal quotations omitted). Whereas the court may reasonably
infer that the harasser is acting because of the victim's sex in cases involving members of
different genders, the inferences are not always so clear when the harasser and the victim are of
the same sex. Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 262 (3d Cir. 2001).

9

In Oncale, the Supreme Court ruled that a trier of fact may infer that same-sex
harassment occurred because of sex when the plaintiff can produce ( 1) "credible evidence that
the harasser was homosexual," (2) evidence that "make[ s] it clear that the harasser is motivated
by general hostility to the presence of [the same sex] in the workplace," or (3) "comparative
evidence about how the alleged harasser treated members of both sexes in a mixed-sex
workplace." Wasek, 682 F.3d at 467-68. In the present matter, the parties dispute only whether
Smith has produced sufficient evidence to show that the harassers sexually desired him.
In support of its motion for summary judgment, Perdue contends that there is no record
evidence and no allegation in the amended complaint to establish or suggest that Smith's claims
of same sex harassment meet any of the criteria set forth in the Third Circuit's decision in Bibby
v. Philadelphia Coca Cola Bottling Co. (D.I. 43 at 11) According to Perdue, Smith's
speculation that his harassers might be homosexual is insufficient for Smith's sexual harassment
claim to survive summary judgment. (!d. at 12) In response, Smith dismisses the cases cited by
Perdue as non-authoritative and distinguishes them as not involving physical contact. (D.I. 49 at
14) Smith further alleges that other male-to-male harassment in the workplace not directed
specifically at Smith establishes that a severe and pervasive discriminatory atmosphere existed in
the workplace. (ld. at 15)
I recommend that the court grant summary judgment in favor of Perdue with respect to
Smith's claim for sexual harassment. Smith does not allege in his amended complaint that his
harassers' alleged conduct was the result of sexual desire, and alleged male-to-male harassment
not directed at Smith does nothing to show that Smith was targeted because of his gender.
Moreover, Smith fails to present evidence to sufficiently establish that the alleged harassers were
homosexual, relying solely on speculative statements from his own deposition testimony. When
10

asked at his deposition whether he thought that his harassers were homosexual, Smith
consistently replied in an equivocal manner:
Q: Looking at the chronology and based on what we have talked about today, are
there any allegations of harassment that you contend occurred because you are a
man?
A: Yes, if they like men.
Q: Which instances of misconduct in this chronology or in this case do you contend
occurred solely because you are a man?
A: All right. Well, if, if they are interested in homosexual lifestyle and when they
came on to me or did things to me.
A: They are gay and assuming- they are gay and what they do, their actions
towards me.
Q: How do you know they are gay?
A: I don't know. The way they act. How do you know they are not?
Q: How do you know they are gay? What facts or evidence do you have to
establish that any person at your plant is gay?
A: The way they talk. The way they carry themselves.
Q: I need to know exactly what you are talking about.
A: The dry humping each other.
Q: Was that directed at you?
A:No.
Q: What else?
A: The grinding up behind me. The telling me that I need to give someone else
oral sex.
Q: Does that mean somebody is gay?
A: Yeah.
Q: Other than the fact of the statements that you allege in this case, do you have
any evidence that anyone at the facility is gay?
A:No.
Q: Other than the fact of the statements that you allege in this case, do you have
any evidence that anyone was trying to come on to you?
A: No, just what I have admitted.
(D.I. 44, Ex. 1 at 218-22) Other portions of Smith's deposition transcript reflect a similar pattern
of speculation and equivocation regarding each individual Smith accuses of harassing behavior. 5

5

Illustratively, Smith accuses Russell of being both a womanizer and a homosexual during the
course ofhis deposition. (D.I. 44, Ex. 1 at 104, 245)
11

(!d. at 243-46) Smith fails to satisfy the requirements for opposing summary judgment as a

matter of law, pursuant to Federal Rule of Civil Procedure 56( c)(1 ). Perdue supports its motion
with the affidavits of Tyson Jefferson, Clint Lewis, Vernon Russell, Louis Hudson, and Erwin
Hall, attesting that they are not homosexual and are not sexually attracted to Smith. (D.I. 44,
Exs. 13, 16-19) Consequently, the burden shifts to Smith to refute these allegations with sworn
testimony or declarations. The only affidavit submitted by Smith is that of Alex Quebral, which
fails to establish that any homosexual overtures were ever directed to Smith. (D. I. 45)
Although Smith claims that a reasonable jury could infer that the alleged harassers were
motivated by a sexual desire for Smith based on the alleged conduct, such inferences have been
routinely rejected by courts in similar cases. See Vandeventer v. Wabash Nat'! Corp., 887 F.
Supp. 1178, 1181 n.2 (N.D. Ind. 1995) (holding that even when taunts and expletives have a
sexual component, there can be no sexual harassment unless the harasser was aiming expletives
at the victim because ofthe victim's maleness); Collins v. TRL, Inc., 263 F. Supp. 2d 913, 91921 (M.D. Pa. 2003) (concluding that a reasonable jury could not find that the alleged harasser
acted out of sexual desire where plaintiff himself could not say that the actions were motivated
by a desire to have sex with him). The Sixth Circuit has held that "[a] single speculative
statement in a deposition cannot be the first link in the 'chain of inference' that Oncale
recognizes may follow from the harasser's non-heterosexuality. Oncale requires 'credible
evidence' of the harasser's sexual orientation in order to draw inferences based on it." Wasek,
682 F.3d at 468 (rejecting plaintiffs speculation that alleged harasser was possibly bisexual
where conduct included grabbing plaintiffs buttocks, poking him in the rear with various
objects, and making comments such as "you've got a pretty mouth" and "you know you like it
sweetheart").
12

As illustrated by the cases described below, explicitly sexual conduct, without more, is
not necessarily sufficient to constitute an expression of sexual desire for purposes of establishing
a claim for same-sex sexual harassment. In Collins v. TRL, Inc., the court granted summary
judgment in favor of the defendant because the plaintiff failed to offer sufficient proof of the
alleged harasser's sexual desire. 263 F. Supp. 2d 913, 919-21 (M.D. Pa. 2003). As in the
present case, the record indicated that the plaintiff did not know if the harasser was homosexual.

!d. The alleged conduct included the harasser asking the plaintiff if he was homosexual,
reaching for the plaintiffs groin area while saying, "got wood?" and saying "You ought to put
them lips where they belong" while grabbing his crotch when the plaintiff was whistling. !d.; see
also Beseau v. Fire Dist. No. I of Johnson County, Kansas, 2006 WL 2795716, at *4 (D. Kan.
2006) (granting summary judgment for failure to show credible evidence of the alleged
harasser's sexual desire, where actions included crude, sexual jokes, jumping into bed with the
plaintiff for a few seconds, telling plaintiff he must "work out" with his right hand, and touching
plaintiff on the shoulder seductively while asking plaintiff if he was homophobic); Humphries v.
Consol. Grain & Barge Co., 412 F. Supp. 2d 763, 768-69 (S.D. Ohio 2005) (dismissing case on
summary judgment for failure to show credible evidence of alleged harasser's sexual desire,
where the plaintiff found multiple pictures of nude males in his work area and on his time card
and experienced name calling and sexually charged comments). The Sixth Circuit reached the
same result in King v. Super Service, Inc., in which the plaintiff complained of name calling
relating to homosexuality, repeated assertions from coworkers that the plaintiff wanted to
perform oral sex on them, and some related physical abuse. 68 F. App'x 659, 660 (6th Cir.
2003). The conduct described in the above-referenced cases is comparable to the "tubesteak"

13

comment, the grinding and humping gestures, the references to oral sex, and the "sore" and
"bigger and better" comments that Smith experienced in the present matter.
Courts that have analyzed claims of same-sex harassment consistently observe that the
typical atmosphere in all-male workplaces often gives rise to vulgarity and sexually explicit
conduct that bears no actual relation to sexual desire. The same is true in the present case, as the
record reflects that sexual and other inappropriate language were "not uncommon" in the
workplace. (D.I. 44, Ex. 13

at~

7; Ex. 12 at~ 6; Ex. 18

at~

5; Ex. 16 at~ 7; Ex. 19 at~ 6) The

Seventh Circuit described this reality as follows:
Most unfortunately, expressions such as "[f**k me]," "kiss my [a**]," and "[s**k
my d**k]," are commonplace 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 - even when they are accompanied, as they sometimes were here,
with a crotch-grabbing gesture. Ordinarily, they are simply expression of
animosity or juvenile provocation.
Johnson v. Hondo, Inc., 125 F.3d 408,410-13 (7th Cir. 1997). In light of the foregoing

authority, this case fits squarely within the Supreme Court's caution against overregulating
ordinary socialization in the workplace, which includes male-on-male horseplay or intersexual
flirtation:
The real social impact of workplace behavior often depends on a constellation of
surrounding circumstances, expectations, and relationships which are not fully
captured by a simple recitation of the words used or the physical acts performed.
Common sense, and an appropriate sensitivity to social context, will enable courts
and juries to distinguish between simple teasing or roughhousing among members
of the same sex, and conduct which a reasonable person in the plaintiff's position
would find severely hostile or abusive.
Oncale, 523 U.S. at 81.

Given the sparse jurisprudence on same sex harassment in this jurisdiction, the court must
analyze the context of the statements or conduct to determine when such behaviors are actionable
14

under Title VII, or when they amount to crude sophomoric taunting not uncommon in locker
rooms and predominantly male workplaces. Smith attempts to distinguish the case law cited by
Perdue based on a lack of physical contact when the vulgarities were uttered. However, the court
notes that Wasek involved repeated instances of an alleged harasser poking the plaintiffs
backside with an assortment oflong, cylindrical objects. 682 F.3d at 467-68; see also Beseau,
2006 WL 2795716, at *4 (alleged harasser jumped into bed with the plaintiff and touched the
plaintiff on the shoulder seductively). This conduct could be characterized as equally, if not
more, invasive and sexually suggestive than Smith's claim that Broderick touched his hips.
Furthermore, Smith cites no case law, from this jurisdiction or any other, in support of his
argument that the evidence on the record in the present case is sufficient to establish the alleged
harassers' sexual desire for purposes of surviving summary judgment. Instead, Smith turns to
the severity and pervasiveness of the conduct, which is a separate requirement.

2.

Severity and pervasiveness of conduct

Because Smith has failed to meet the first element of his sexual harassment claim, the
court need not reach the additional requirement that the conduct was "severe or pervasive enough
to create an objectively hostile or abusive work environment." 6 Oncale, 523 U.S. at 81. Even if
the court were to determine that Smith has established a genuine issue of material fact indicating
that he was discriminated against because of his gender, his claim cannot survive summary
judgment.
6

The complained-of conduct consists primarily of jokes, taunts and gestures, with only one
incident of minor physical contact alleged. The law is well-established that "[t]he mere utterance
of an epithet, joke, or inappropriate taunt that may cause offense does not sufficiently affect the
conditions of employment to implicate Title VII liability." Weston v. Pennsylvania, 251 F.3d
420, 428 (3d Cir. 2001 ), abrogated in part on other grounds by Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53 (2006).
15

As a preliminary matter, Smith's retaliation theory of the claim for hostile work
environment does not appear in the pleadings. "District Courts have broad discretion to disallow
the addition of new theories ofliability at the eleventh hour." Carr v. Gillis Associated Indus.,
Inc., 227 F. App'x 172, 176 (3d Cir. 2007); see also Speziale v. Bethlehem Area Sch. Dist., 266
F. Supp. 2d 366, 371 n.3 (E.D. Pa. 2003) ("Plaintiff's counsel cannot reasonably expect to amend
the complaint after the close of discovery merely by raising new arguments in the responsive
papers" to a motion for summary judgment). Moreover, the authority Smith relies on in support
of this theory, Jensen v. Potter, 435 F.3d 444 (3d Cir. 2006), is no longer controlling. See
Burlington N & Santa Fe Ry. Co. v. White, 548 U.S. 53, 61-67 (2006) (declining to read Title
VII's antiretaliation provision and antidiscrimination provision coterminously).

B.

Retaliation

To establish a prima facie claim for retaliation under Title VII, Smith must show: (1)
that he engaged in a protected activity; (2) that Perdue took an adverse employment action after
or contemporaneous with the protected activity; and (3) the protected activity and the adverse
employment action were causally linked. See Moore v. City of Phila., 461 F.3d 331, 340-41 (3d
Cir. 2006); Weston, 251 F.3d at 430; see also Wellman v. Dupont Dow Elastomers, L.L.C., 414
F. App'x 386, 389 (3d Cir. 2011). A causal link between protected activity and adverse action
may be inferred from an unusually suggestive temporal proximity between the two events, an
intervening pattern of antagonism following the protected conduct, or the proffered evidence
examined as a whole. Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997).
Once Smith establishes a prima facie case of retaliation, Perdue has the burden to
"articulate some legitimate, nondiscriminatory reason" for terminating Smith. Woodson v. Scott
Paper Co., 109 F.3d 913, 920 (3d Cir. 1997) (internal quotation and citation omitted). The
16

burden then shifts back to Smith to establish that there is sufficient evidence for a reasonable
factfinder to "( 1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an
invidious discriminatory reason was more likely than not a motivating or determinative cause of
the employer's action." Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
The Third Circuit has stated that "temporal proximity between the employee's protected
activity and the alleged retaliatory action may satisfy the causal link element of a prima facie
retaliation claim, at least where the timing is unusually suggestive of retaliatory motive." Shaner

v. Synthes, 204 F.3d 494, 505 (3d Cir. 2000) (internal quotation and citation omitted). However,
temporal proximity alone is not always sufficient to overcome a defendant's allegations of
pretext. See Andes v. NJ City Univ., 419 F. App'x 230,234 (3d Cir. 2011) (concluding that
district court erred in focusing exclusively on temporal proximity when it found no causal
connection between the protected activity and the alleged retaliatory conduct); Kachmar v.

SunGard Data Sys., 109 F.3d 173, 178 (3d Cir. 2011) ("It is important to emphasize that it is
causation, not temporal proximity, that is an element of plaintiff's prima facie case, and temporal
proximity merely provides an evidentiary basis from which an inference can be drawn.").
The United States Supreme Court recently clarified that "Title VII retaliation claims must
be proved according to traditional principles of but-for causation," which "requires proof that the
unlawful retaliation would not have occurred in the absence of the alleged wrongful action or
actions of the employer." Univ. ofTex. S. Med. Ctr. v. Nassar,---- U.S.----, 133 S. Ct. 2517,
2533 (June 24, 2013). The Supreme Court expressed concern that a "lessened causation standard
would make it far more difficult to dismiss dubious claims at the summary judgment stage,"
which would be "inconsistent with the structure and operation of Title VII." Id. at 2532. Under
this standard, an employee establishes pretext by showing that the adverse action would not have
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occurred "but for" the employer's retaliatory reason for the action. ld. at 2533-34. Therefore,
Smith's protected activity must be the "but-for" cause of Perdue's alleged retaliatory action
under the causation prong of the prima facie case. As the Second Circuit recently explained,
"[B]ut-for" causation does not require proof that retaliation was the only cause of
the employer's action, but only that the adverse action would not have occurred in
the absence of the retaliatory motive .... A plaintiff may prove that retaliation
was a but-for cause of an adverse employment action by demonstrating
weaknesses, implausibilities, inconsistencies, or contradictions in the employer's
proffered legitimate, nonretaliatory reasons for its action. From such
discrepancies, a reasonable juror could conclude that the explanations were a
pretext for a prohibited reason.
Zann Kwan v. Andalex Group LLC, 737 F.3d 834, 846 (2d Cir. 2013) (internal citations omitted).
The parties in the present case dispute only the third factor regarding whether a causal
connection exists between the protected activity and the adverse employment action. In support
of its motion for summary judgment, Perdue alleges that Smith cannot show any causal
connection between the protected activity and his discharge, particularly because he admits to
engaging in the misconduct that Perdue maintains is the sole reason for his discharge. (D.I. 43 at
18) According to Perdue, the temporal proximity of his termination to the protected conduct,
approximately two months, was not unusually suggestive enough to allow a reasonable jury to
infer retaliatory motive. (!d. at 18-19) Moreover, Perdue contends that Smith does not allege a
claim of retaliation against Jones, who was the sole decision-maker with respect to Smith's
termination, and Smith fails to identify a similarly situated employee to show differential
treatment. (!d. at 19)
In response, Smith alleges that he experienced at least four significant instances of
retaliatory conduct following his discrimination complaints, including (I) the written reprimand
on March 17, 2009; (2) the ongoing harassing conduct previously discussed in connection with
18

Smith's claim of a hostile work environment; (3) differential treatment between Smith and
Doughty; and (4) Smith's suspension and termination in May 2009. (D.I. 49 at 18-19) Smith
maintains that the timing of the events is compelling because the written reprimand was issued
four days after his initial complaint to Jones, and the abusive conduct began almost immediately
thereafter and continued throughout the period leading up to his termination. (!d. at 19) Smith
further alleges that he was terminated based on false information provided by Broderick and
Jefferson, and avers that he had not left the mill running when he left on May 9, 2009. (!d. at 20)
The court concludes that no reasonable juror could find that Smith's complaints of
harassment were the but-for cause of his termination. Smith first complained of the alleged
conduct on March 13, 2009 in a telephone conversation with Jones, but he was not terminated
until May 15,2009, more than two months later. This lapse oftime is too great to establish
retaliation based on temporal proximity alone. See Shellenberger v. Summit Bancorp, Inc., 318
F.3d 183, 189 (3d Cir. 2003) (concluding that a temporal proximity often days is not sufficient
to establish retaliatory motive unless accompanied by other evidence of wrongdoing).
The written reprimand Smith received on March 17, 2009 does not support his retaliation
claim because there is no evidence on the record to suggest that either Broderick or Jefferson was
aware of Smith's alleged conversation with Jones on March 13,2009 when Broderick prepared
the Memo to File and Disciplinary Record on the same date. (D.I. 44 at Exs. 6 & 7) Moreover,
it is undisputed that Smith used inappropriate language constituting insubordination on March
13, 2009, and that this conduct provided the basis for the written reprimand. (!d.)
The harassing conduct Smith experienced between his protected conduct and his
termination is also insufficient to sustain his retaliation claim because that conduct was not

19

perpetrated by Broderick, Jefferson, Jones, or any other individual who played a role in the
determination to terminate Smith's employment. Although the picture V annicola showed Smith
was originally sent by Jefferson, there is no evidence on the record that Jefferson intended this
picture to reach Smith. Moreover, Jefferson was disciplined for sending the picture after Smith
complained about it. (D.I. 44, Ex. 13

at~

6) The remainder ofthe conduct consists primarily of

jokes, taunts and gestures, which lack sufficient severity or connection to Smith's engagement in
protected activity to constitute a pattern of antagonism. See Dudley v. Washington Metro. Area

Transit Auth., 924 F. Supp. 2d 141, 181 (D.D.C. 2013).
Smith has also failed to establish that coworker Robert Doughty is a valid comparator. 7
Nothing in the record suggests that Doughty left the workplace without permission, and Smith
alleges no facts that would indicate that management was aware of the offenses Doughty
allegedly committed, such as failing to wear steel toe boots and keeping his area clean. For these
reasons, Doughty is not a valid comparator.
Job abandonment is a terminable offense, and there is no dispute that Smith left his job
after expressly being told that he did not have permission to do so. No reasonable jury could
conclude that Smith's employment would not have been terminated had he not complained of
sexual harassment in the workplace.

IV.

CONCLUSION
For the foregoing reasons, I recommend that the court grant Perdue's motion for

summary judgment. (D.I. 42)

7

Robert Doughty was not mentioned in Smith's amended complaint. (D.I. 11)
20

This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(l), and D. Del. LR 72.1. The failure of a party to object to legal conclusions may
result in the loss of the right to de novo review in the district court. See Henderson v. Carlson,
812 F.2d 874, 878-79 (3d Cir. 1987); Sincavage v. Barnhart, 171 F. App'x 924, 925 n.l (3d Cir.
2006). The parties may serve and file specific written objections within fourteen (14) days after
being served with a copy of this Report and Recommendation. Fed. R. Civ. P. 72(b). The
objections and responses to the objections are limited to ten (10) pages each.
The parties are directed to the court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website,
www.ded.uscourts.gov.

Dated: April 11, 2014
S MAGISTRATE JUDGE

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