Smith v. Perdue Farms Incorporated

Filing 62

MEMORANDUM ORDER re 55 REPORT AND RECOMMENDATION is ADOPTED; 42 MOTION for Summary Judgment is GRANTED. Signed by Judge Leonard P. Stark on 9/30/14. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MARC E. SMITH,
Plaintiff
Civ. No. 12-227-LPS-SRF

V.

PERDUE FARMS INCORPORATED,
Defendant
MEMORANDUM ORDER
WHEREAS, Magistrate Judge Fallon issued a Report and Recommendation (the
"Report") (D.I. 55), dated April 11, 2014, recommending that Defendant Perdue Farms
Incorporated's ("Defendant") motion for summary judgment be granted with respect to Plaintiff
Marc E. Smith's ("Plaintiff') sexual harassment and retaliation claims under the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 2000 et seq. ("Title VII") against Defendant (Counts I and II);
WHEREAS, the Report further recommended that Plaintiffs claim of hostile work
environment retaliation be rejected as a new theory ofliability not appearing in the pleadings and
only first appearing in connection with Plaintiffs opposition to summary judgment;
WHEREAS, on April 17, 2014, Plaintiff filed objections to the Report (D.I. 56);
WHEREAS, on May 6, 2014, Defendant filed amended responses to the Plaintiffs
objections (D.I. 61);
WHEREAS, the Court has considered Defendant's motion for summary judgment (D.I.
42) de nova, as it presents case-dispositive issues, see 28 U.S.C. § 636(b)(l); Fed. R. Civ. P.
72(b)(3), and has further reviewed all of the pertinent filings;
WHEREAS, the Court has considered the Magistrate Judge's rejection of Plaintiffs

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claim of retaliatory harassment for an abuse of discretion, as it presents a non-dispositive issue,

see Quantum Loyalty Sys. Inc. v. TPG Rewards Inc., 2012 WL 1134779, at *1 (D. Del. Apr. 4,
2012).
NOW THEREFORE, IT IS HEREBY ORDERED that:

1.

Accordingly, Plaintiff's Objections (D.I. 56) are OVERRULED, Judge Fallon's

Report (D.I. 55) is ADOPTED, and Defendant's Motion for Summary Judgment (D.I. 42) is
GRANTED.
2.

Given the Court's adoption of the Report, and its agreement with the Report's

detailed discussion of the record evidence (properly taken in the light most favorable to Plaintiff)
and the law, it is unnecessary to address each point raised by Plaintiff in the Objections.
Although the Court has considered each of Plaintiff's issues, it limits its comments here to those
that merit discussion.
3.

With respect to Plaintiff's claim of sexual harassment claim in violation of Title

VII, Plaintiff must ultimately 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), overruled in part on other grounds by Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 3 (2006). Only the first two elements were disputed (D.I. 43 at 10-17) and
the Magistrate Judge recommended summary judgment be granted based on Plaintiff's failure of
proof on the first element, that he suffered intentional discrimination because of his sex (D.I. 55
at 9-15). The Court agrees with the Report.

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Given Plaintiffs particular allegations of same-sex harassment, he must adduce sufficient
evidence from which a reasonable factfinder could find that a harasser was homosexual. See

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998); see also D.I. 55 at 10 ("In
the present matter, the parties dispute only whether Smith has produced sufficient evidence to
show that the harassers sexually desired him."). The only evidence here to that effect is
Plaintiffs deposition testimony, where he stated he believed the alleged harassers were
homosexual based on their actions toward him. (D.I. 44, Ex. 1at218-20) 1 As the Magistrate
Judge concluded, this evidence is at best "speculative" and "equivocal" (D.I. 55 at 10-11), and
the record taken in the light most favorable does not create even a genuine dispute of material
fact on this point on which Plaintiff carries the burden. See Wasek v. Arrow Energy Servs., Inc.,
682 F.3d 463, 468 (6th Cir. 2012) ("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 nonheterosexuality.") (quoting Oncale, 523 U.S. at 80); Podobnik v. US. Postal Serv., 409 F.3d 584,
594 (3d Cir. 2005) (stating party opposing summary judgment "must present more than just bare
assertions, conclusory allegations or suspicions to show the existence of a genuine issue")
(internal quotation marks and citation omitted).
4.

With respect to Plaintiffs retaliation claim, Plaintiff must make out aprimafacie

case that: (1) that he engaged in a protected activity; (2) the defendant 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 ofPhi/a.,

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Each of the alleged harassers has submitted an affidavit attesting that he is neither
homosexual nor sexually attracted to Plaintiff. (D.I. 44, Exs. 13, 16-19)

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461 F .3d 331, 340-41 (3d Cir. 2006). If Plaintiff establishes a prirna facie case of retaliation,
Defendants must "articulate some legitimate, nondiscriminatory reason" for terminating the
plaintiff. Woodson v. Scott Paper Co., 109 F.3d 913, 920 n.2 (3d Cir. 1997). If Defendants do
so, the burden then shifts back to Plaintiff 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
determining cause of the employer's action." Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.
1994). Proving a retaliation case requires but-for causation, that is, ''that the unlawful retaliation
would not have occurred in the absence of the alleged wrongful action or actions by the
employer." Univ. of Tex. S. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).
Plaintiff alleged that his termination was retaliation for his sexual harassment complaint
against Broderick. Defendants proffered a legitimate, nondiscriminatory reason for Plaintiff's
termination, which was that he left the plant without permission. Plaintiff admits that he left
work early without permission (D.I. 44, Ex. 1 at 197) and further admits this is a terminable
offense (id. at 206). His dispute as to some of the particulars of his abandonment of the worksite
(e.g., whether he shut the machines down before leaving) does not create a genuine dispute of
material fact, as it does not undermine the evidence that Defendant had a legitimate, nonretaliatory reason for his dismissal; moreover, there is not sufficient evidence from which a
reasonable factfinder could disbelieve Defendant's articulated reasons or believe that retaliation
was the cause of his termination. See Fuentes, 32 F.3d at 764. The Court agrees with the Report
that Plaintiff cannot show that there was a causal connection between protected activity and the
adverse employment action.

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5.

Finally, with respect to Plaintiffs hostile work environment retaliation claim, the

Magistrate Judge did not abuse her discretion in refusing to allow Plaintiff to add a claim he only
first raised in connection with summary judgment briefing. (See generally D.I. 56 at 5
(acknowledging that "Plaintiff did not specifically state in his Complaint that the harassment he
experienced also constituted retaliation")) Allowing Plaintiff to include a new claim of
retaliatory harassment in opposition to the motion for summary judgment would have been
prejudicial to Defendants, who had not obtained discovery about this claim. See Bjorgung v.
Whitetail Resort, LP, 550 F.3d 263, 266 (3d Cir. 2008). "District Courts have broad discretion to

disallow the addition of new theories of liability at the eleventh hour." Carr v. Gillis Associated
Indus., Inc., 227 F. App'x 172, 176 (3d Cir. Apr. 16, 2007). The Magistrate Judge was correct to

recognize Plaintiffs hostile work environment retaliation claim as a new theory of liability, and
did not abuse her discretion in barring Plaintiff from raising his claim.
The Clerk of Court is directed to CLOSE this case.

September 30, 2014
Wilmington, Delaware

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