Harris v. PetSmart, Inc.

Filing 26

MINUTE ENTRY ORDER FOR ORAL ARGUMENT held on 10/3/2012 re 17 def's motion for summary judgment before Judge William O. Bertelsman: Def's motion for summary judgment 17 is GRANTED . A separate judgment shall enter concurrently herewith. (Court Reporter Joan Averdick.) Signed by Judge William O. Bertelsman on 10/23/2012. (TJZ)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON

CIVIL ACTION NO. 2011-94 (WOB-JGW)
SHAWN HARRIS

PLAINTIFF

VS.

MEMORANDUM OPINION AND ORDER

PETSMART, INC.

DEFENDANT

Plaintiff brings this action alleging claims for sexual
harassment and retaliation under Title VII of the Civil Rights
Act of 1964.

(Doc. 1, Doc. 22 at 4 n.1).

This matter is before the Court on defendant’s motion for
summary judgment (Doc. 17).
The Court heard oral argument on this motion on Wednesday,
October 3, 2012.

James Moore represented the plaintiff, and

LaToi Mayo represented the defendant.

Official court reporter

Joan Averdick recorded the proceedings.
Having heard the parties, the Court now issues the
following Memorandum Opinion and Order.
Factual and Procedural Background
Plaintiff Shawn Harris (“Harris”) was hired by PetSmart as
a part-time dog trainer on October 28, 2008.

In conjunction

with his hire, Harris completed an employment application and
was interviewed by PetSmart employee Michael Dixon (“Dixon”).

In a section entitled “Criminal History,” the application
Harris completed contained the following two questions:
Have you been convicted of a felony in the past 10 years?
Have you been convicted of any other crimes in the past 10
years?
(Doc. 17-4 at 10).
Harris

asked

Dixon

if

he

should

include

violations in response to the second question.

recent

hunting

Dixon asked the

store manager how to handle the situation, and he told Harris
that

the

questions

(Harris Depo. 76-78).

did

not

pertain

to

hunting

violations.

Harris thus answered “no” to both of the

questions and signed the application on a line preceded by the
following statements:
I hereby certify and affirm that the information provided
in connection with the application process is true,
accurate and complete, and that I have withheld nothing
that
would,
if
disclosed,
affect
this
application
unfavorably.
. . .
I understand that any omissions, misrepresentations, or
falsification in connection with this application process
may be grounds for denial of employment or, if hired,
immediate termination of employment.
(Doc. 17-4 at 11).
Within a month of his employment, Mr. Harris was promoted
to a full-time dog trainer.
When Harris began at PetSmart, Dixon told Harris that he
(Dixon) was homosexual and that he had hired Harris because he
2

thought he was cute.

(Harris Depo. 119, 157).

When Harris

worked with Dixon, usually once a week, Dixon would buy Harris
lunch and tell him to keep the change.

Dixon also offered

Harris $2,000 if he would have sex with Dixon’s boyfriend and
allow Dixon to tape it.

(Harris Depo. 176-77).

Harris thought

Dixon was joking and so did not report the matter.

Dixon also

once whispered in Harris’s ear during a dog training class that
he had had sex with an adult male customer, who was present,
when the man was underage.
Dixon

also

gave

(Harris Depo. 177-80).

Harris

gifts,

including

a

used

laptop,

clothing, and a gym membership.
On one occasion at the gym, Harris caught Dixon looking at
him in the shower.

Dixon later commented on Harris’s physical

attributes to co-workers at PetSmart and stated that he could
make Harris “go gay,” which Harris overheard.

(Harris Depo.

158-59, 170).
Sometime in May 2009,1 Harris reported the gym incident to
an employee he identified as “Jamie,” an assistant manager.2
Jamie told Harris to “watch his back” because Dixon would find a
reason to get him fired.

(Harris Depo. 170-72).

Unhappy with

1

As will be discussed below, Harris’s deposition testimony is
vague as to the timing of various events, including these
complaints.
2

Harris gave no last name for “Jamie,” and PetSmart has stated
that its database listed no managerial employee at the Florence,
Kentucky store by that name. (Doc. 17-1 at 20).
3

this response, Harris told another assistant manager, Jennifer,
who told him that he needed to inform Store Manager, Thomas
Bogenschutz (“Bogenschutz”).

(Id.).

Harris also told another

hourly manager, Kris, who likewise told him that he needed “to
go higher.”

(Harris Depo. 310-11).

Harris testified that he

believed the proper course for complaining was to go up “the
chain of command.”

(Harris Depo. 165-66).

Shortly thereafter, Harris told Bogenschutz that Dixon was
making “sexual harassment comments” to him.
75).
and

(Harris Depo. 173-

Harris testified that Bogenschutz just “kind of shrugged
changed

testified

the

that,

subject.”
in

a

(Id.).

performance

However,

review

Harris

meeting,

also

Bogenschutz

assured him that he would not be fired for filing a complaint
against Dixon.

(Harris Depo. at 143, 149).

Based on Bogenschutz’s assurance, on May 27, 2009, Harris
called

PetSmart’s

anonymous

“CareSmart”

harassment

hotline,

hotline,

and

a

twenty-four

reported

(Harris Depo. 189-90, 201, 226; Doc. 17-9).

Dixon’s

hour

actions.

The hotline advisor

documented Harris’s call and directed him to prepare a formal
written

complaint,

PetSmart
interviews

then
of

which

conducted
other

he

did.

an

employees

(Harris

Depo.

investigation,
of

the

Florence

Exh.

which
store.

18).

included
As

result, PetSmart terminated Dixon’s employment on June 17, 2009.

4

a

Harris testified that he requested a lateral transfer to
another PetSmart location after making the complaint, but before
Mr. Dixon was fired, but that Bogenschutz denied that request
without giving a reason.
Harris

also

testified

that,

after

Dixon

was

fired,

Bogenschutz complained to Harris that he was not selling enough
classes, and told Harris that he might hire another trainer,
which would have reduced Harris’s commissions.
229-30).

(Harris Depo.

Bogenschutz did not, however, hire another trainer.

(Harris Depo. 237-39).
Harris also alleges that he was required to stay after
hours and put away stock while he would normally be selling, a
task he had not previously been required to perform.

However,

Harris

did

testified

that

decrease.

(Harris

Bogenschutz

for

a

his

personal

Depo.

239).

referral

for

sales

numbers

Also,
an

when

area

trainer

Harris

not
asked

position

at

another PetSmart location, he declined and told Harris that he
was not qualified for the position.
On

October

19,

2009,

PetSmart

District

Manager

Dan

Ott

received a call from a PetSmart customer. (Ott Affidavit ¶ 1).
The customer, who said that she was associated with “The Touch
of Healing” organization, was upset and complained that Harris
had represented to her group that he was a certified therapy-dog
instructor.

(Id. ¶¶ 2-3).

After paying Harris $400, however,
5

the

customer

said

certified.

(Id.).

no

because

action

PetSmart employment.

that

she

learned

that

Harris

was

not

Ott told the caller that PetSmart could take
the

matter

was

(Id. ¶ 4).

not

related

to

Harris’s

The caller then stated that

“she could not believe that PetSmart hired convicted felons.”
(Id. ¶ 5).
This

statement

caused

Ott

to

perform

a

public

records

search on Harris, which revealed that Harris had been convicted
in 2007 of multiple wildlife violations, including killing deer
at night using spotlights and rifles, taking waterfowl with a
rifle, taking waterfowl out of season, taking deer in Indiana
and transporting them to Ohio, and taking turkey in Indiana
without a license and transporting them to Ohio.

(Id. ¶ 6).

PetSmart then reviewed Harris’s employment application and,
finding that he had not disclosed these convictions, terminated
his employment on November 5, 2009.

(Id. ¶ 7).

Harris filed this action on April 30, 2011.

(Doc. 1).

Analysis
A.

Sexual Harassment Claim

Title VII prohibits discrimination because of sex in the
terms or conditions of employment.

42 U.S.C. § 2000e-2(a)(1).

Sexual harassment is a form of discriminatory treatment and is
actionable whether it involves members of the same gender or

6

different genders.

Oncale v. Sundowner Offshore Serv., Inc.,

523 U.S. 75, 79 (1998).
Harris brings his Title VII claim under a hostile work
environment theory, (Doc. 22 at 4 n.1), which makes actionable a
workplace that is “permeated with discriminatory intimidation,
ridicule, and insult, that is sufficiently severe and pervasive
to alter the conditions of the victim’s employment and create an
abusive working environment.”

Newton v. Ohio Dep’t of Rehab.

and Corr., No. 11-3681, 2012 WL 3631493, at *4 (6th Cir. Aug.
23, 2012) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993)).
A plaintiff alleging a claim for a sexually hostile work
environment must show that: (1) he was a member of the protected
class; (2) the employee was subject to unwelcome sexual
harassment; (3) the harassment complained of was based on sex;
(4) the charged sexual harassment created a hostile work
environment; and (5) the existence of employer liability.
Rayford v. Illinois Cent. R.R., No. 11-5507, 2012 WL 2755844, at
*3 (6th Cir. July 9, 2012) (citation omitted).
Harris has established the first three of these elements,
and, for purposes of the present motion, the Court assumes he
has at least raised a triable issue on the fourth.
fifth element, however, that his claim fails.

7

It is on the

The standard for establishing employer liability differs
depending on whether the alleged harasser was a supervisor of
the plaintiff or merely a co-worker.
F.3d 506, 512 (6th Cir. 1999).

Hafford v. Seidner, 183

“Employer liability for co-

worker harassment is based directly on the employer’s conduct.”
Id. (citation omitted).

Thus, an employer is liable for co-

worker harassment only if it “knew or should have known of the
charged sexual harassment and failed to implement prompt and
appropriate corrective action.”

Id.

“In contrast, employer liability for supervisor harassment
is vicarious,” but is subject to an affirmative defense.

Id.

The Supreme Court has established the test for employer
liability for supervisory harassment:
When no tangible employment action is taken, a defending
employer may raise an affirmative defense to liability for
damages . . . The defense comprises two necessary
elements: (a) that the employer exercised reasonable care
to prevent and correct promptly any sexually harassing
behavior, and (b) that the plaintiff employee unreasonably
failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm
otherwise.
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).
Here, the parties dispute whether Dixon was Harris’s
“supervisor” for purposes of his harassment claim.

The Court

need not decide this issue, however, because the undisputed
facts of this case negate employer liability for the alleged
harassment under either theory.
8

PetSmart produced evidence that it had in place during
Harris’s employment a strict antiharassment policy, published in
its employee handbook, which plaintiff admits having received.
(Doc. 17-5 at 50, “Dignity in the Workplace”; Doc. 17-4; Harris
Depo. 113-14).

The policy provides multiple, alternative

avenues through which an employee who feels they are being
harassed can bring their concerns to PetSmart’s attention,
including reports to supervisors, district and regional
managers, a Vice-President, and the toll-free “CareSmart” line.
(Doc. 17-5 at 50-51).
PetSmart also published a detailed policy entitled
“Associate Conduct” which prohibits conduct that might
constitute harassment.

(Doc. 17-8 at 1).

Although Harris’s deposition testimony is vague as to
dates, a fair reading is that he first complained to others in
the store about Dixon in early May 2009, several months after
the harassment began.

(Harris Depo. 310).

The first person to

whom he complained, Jamie, allegedly told Harris to “watch” his
back because Dixon could get him fired.

Although the record is

unclear as to actual identity of “Jamie” or his position, his
response to Harris’s concern was obviously unsatisfactory and
inadequate.
Nonetheless, Harris then raised his complaints with two
other employees, whose positions are also unclear, and both told
9

him that he needed to “go higher” and tell the Store Manager.
It is undisputed that Harris did so, and while he testified that
Bogenschutz’s initial response was one of indifference, he also
testified that Bogenschutz assured him that he could not be
retaliated against for filing a complaint against Dixon.

Harris

testified that, based on that assurance, he called the CareSmart
line on May 24, 2009.

A swift investigation ensued, and

PetSmart terminated Dixon’s employment on June 17, 2009.
Given these facts, no reasonable jury could find that
PetSmart “knew or should have known of the charged sexual
harassment and failed to implement prompt and appropriate
corrective action.”
Cir. 1999).

Hafford v. Seidner, 183 F.3d 506, 512 (6th

Although Bogenschutz, according to Harris’s

testimony, did not himself initiate the investigation into
Harris’s complaint, his assurance of non-retaliation caused
Harris to call the CareSmart line and make a formal report of
harassment, leading to prompt and decisive corrective action.
See, e.g., Kean v. IT-Works, Inc., 466 F. App’x 468, 470-71 (6th
Cir. 2012) (affirming summary judgment for employer where it
responded quickly to put a stop to alleged co-worker
harassment).

See also Newton v. Ohio Dep’t of Rehab. and Corr.,

No. 11-3681, 2012 WL 3631493, at *7 (6th Cir. Aug. 23, 2012)
(noting that when “an employer responds with good-faith remedial
action, we cannot say that the employer has itself committed an
10

act of discrimination”) (quoting Blankenship v. Parke Care
Ctrs., Inc., 123 F.3d 868, 873 (6th Cir. 1997)).
These same undisputed facts enable Pet Smart to establish
the affirmative defense to supervisory harassment.3

PetSmart

took reasonable steps to prevent harassment by promulgating
policies which clearly prohibit such conduct and provide
employees multiple avenues for bringing harassment to the
company’s attention for remediation.

While Harris testified

that he knew about the policies, including the availability of
the 24-hour CareSmart line, there is no dispute, as discussed
above, that he delayed for several months before utilizing the
complaint mechanisms available to him, as his counsel conceded
at oral argument.

Once Harris utilized those mechanisms, the

company responded quickly and fired the harasser.
As a matter of law, therefore, PetSmart is entitled to
summary judgment on Harris’s claim for hostile environment
harassment.

3

The Court concludes that the affirmative defense is applicable
here because, although Harris did later experience a tangible
employment action – termination – it is undisputed that Dixon
played no role in that decision and, indeed, had been removed
from the workplace months earlier. See Theus v.
GlaxoSmithKline, 452 F. App’x 596, 601 n.7 (6th Cir. 2011)
(approving premise that the harassing supervisor “must be
involved in the adverse action for the affirmative defense to be
unavailable”).
11

B.

Retaliation Claim

To establish a prima facie case of retaliation, a plaintiff
must show that: (1) he engaged in Title-VII-protected activity;
(2) defendant knew of his protected activity; (3) defendant
subsequently took an adverse employment action against
plaintiff; and (4) the adverse action was causally connected to
the protected activity.
Newton, 2012 WL 3631493, at *8 (citation omitted).

“Retaliation

may be proved through direct or circumstantial evidence.”

Id.

Once the plaintiff establishes a prima facie case, the
employer may come forward with a legitimate, nonretaliatory
reason for the adverse action, which then requires the plaintiff
to prove by a preponderance of the evidence that the employer’s
reason is a mere pretext for retaliation.

Id.

Harris’s retaliation claim fails for two reasons.

First,

he cannot establish a causal connection between his protected
activity and his termination.4

The only evidence of causation is

that he was fired approximately five months after he complained
about Dixon’s harassment.

However, the Sixth Circuit has been

clear that “temporal proximity alone may not support an
4

Although Harris complained in his deposition of several
negative actions that Bogenschutz took after Harris complained
of harassment, he has limited the alleged retaliatory adverse
action to his termination. (Doc. 22 at 12) (“Mr. Harris’
contention is that his termination roughly five months after his
report of Mike’s conduct is the only adverse employment action
at issue.”).
12

inference of retaliatory discrimination absent other compelling
evidence.”

Id. (citations omitted).

See also id. (holding that

temporal proximity of three months between protected activity
and adverse action was insufficient as a matter of law to
establish causation); Kean, 466 F. App’x at 471 (two and a half
months insufficient).
Harris has conceded that he has no other evidence that
PetSmart terminated him because he complained about sexual
harassment.

(Harris Depo. 277).

As a matter of law, therefore,

he cannot establish a prima facie case of retaliation.
Second, PetSmart has offered a legitimate reason for
discharging Harris: his failure to list his criminal hunting
convictions on his application.

See Harris Depo. at 272 (“They

said I was fired for lying on my application.”).
“Misrepresentations on an application or resume may
constitute a legitimate ground for dismissal.”

Algie v.

Northern Ky. Univ., 456 F. App’x 514, 517 (6th Cir. 2012)
(citing Moos v. Square D Co., 72 F.3d 39, 43 (6th Cir. 1995)).
Harris does not assert either that this reason has no basis
in fact – i.e., that he did disclose the violations on the
application -- or that it is insufficient to justify discharge.
See Algie, 456 F. App’x

517 (citation omitted).

Rather,

Harris’s only argument as to pretext is that he asked during the
application process whether he should list the hunting
13

violations and was told not to do by Dixon and the then-Store
Manager.

(Doc. 22 at 14-15).

This argument fails to raise a triable issue of pretext.
The fact and nature of Harris’s hunting violations were
discovered by District Manager Dan Ott after he received a
customer complaint about Harris in October 2009.

Ott then

determined that Harris had not listed these violations in
response to the second question about criminal history on the
application, which rendered his certification false.
does not dispute this evidence.

Harris

See Algie, 456 F. App’x at 517

(holding that plaintiff could not establish discharge for resume
fraud to be pretextual).
There is no evidence that Ott was aware that Harris had
been instructed not to list the hunting violations, and Ott’s
belief that Harris had falsified the application – even if
incorrect – thus falls within the “honest belief” line of cases
which reject a finding of pretext on such evidence.

See Tingle

v. Hillard, No. 11-3494, 2012 WL 3711439, at *6 (6th Cir. Aug.
29, 2012) (discussing case law).

That is, “a case alleging

unlawful retaliation is not a vehicle for litigating the
accuracy of the employer’s grounds for termination.

Instead,

the employee also must offer some evidence that not only were
the employer’s reasons false, but that retaliation was the real
reason for the adverse action.”

Id. (citation omitted).
14

In sum, Harris has come forward with no evidence that
PetSmart’s discovery of the omissions on his employment
application –- triggered by an independent complaint from a
PetSmart customer -– and the company’s decision to terminate his
employment on that basis were in any way related to his prior
complaint of harassment.

Harris’s retaliation claim thus fails

as a matter of law.

Therefore, having heard the parties, and the Court being
sufficiently advised,
IT IS ORDERED that defendant’s motion for summary judgment
(Doc. 17) be, and is hereby, GRANTED.
enter concurrently herewith.
This 23rd day of October, 2012.

TIC: 26 min.

15

A separate judgment shall