Steeg v. Vilsack
Filing
30
MEMORANDUM OPINION AND ORDER Signed by Senior Judge Thomas B. Russell on 9/1/2016 denying 22 Motion for Summary Judgment. cc: Counsel (JBM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:13-CV-00086-TBR
JAMI W. STEEG,
Plaintiff
v.
THOMAS J. VILSACK, et al.
Defendants
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendants’ motion for summary judgment.
(DN 22). Plaintiff has responded. (DN 23). Defendants have replied. (DN 29). For the
following reasons, Defendants’ motion for summary judgment is DENIED.
BACKGROUND
This matter arises out of the employment of Jami W. Steeg with the United Stated
Department of Agriculture (“USDA”). Steeg claims that she subjected to a hostile work
environment, quid pro quo sexual harassment, and was retaliated against in violation of
state and federal law. As Steeg is the party opposing summary judgment, the Court shall
interpret the facts in the “light most favorable” to her. Huckaby v. Priest, 636 F.3d 211,
216 (6th Cir. 2011).
In March, 2011, Steeg was hired by the USDA as a Food Inspector. Steeg was
responsible for examining animal carcasses, specifically chickens, at the Pilgrim’s Pride
facility in Hickory, Kentucky. Upon being hired, Steeg traveled to the USDA’s district
office in Raleigh, North Carolina, for training. Although Steeg was informed that she
would receive two weeks of training, she received only a three-day orientation, a day-
Page 1 of 21
and-a-half training with a supervisor on the line, and three days observing other
employees. (DN 22-2, p. 23-26).
After completing training Steeg began working on the night shift. Steeg felt her
supervisor, Bill Burgess, was “overly friendly to her from the beginning,” “frequently
stood close to her,” and called her off the line to his office “where he would talk to her
about his life, ask questions about her life, and discuss other random matters.” (DN 1).
Steeg worked in a large room with long conveyor belts from which chickens were
hung, having just been transferred from the slaughter room. The chickens would go
through a scalder and a machine that would remove the viscera. (DN 22-5, p. 101).
Steeg was responsible for inspecting the chickens as they traveled along the line. USDA
inspectors were stationed approximately twenty-five feet apart. They were responsible
for inspecting the chickens while trimmers, who were not USDA employees, worked on
them. Unless the line was down it moved quickly and required all employees to be at
their stations. Chickens would pass in front of an inspector “every 1 1/2 seconds, so
you’re just constantly looking at the inside and outside of the chickens to see -- just really
looking for abnormalities.” (DN 23-2, p. 2). Steeg described the room as “very loud,
very bright” and “very wet.” (DN 22-5, p. 102).
A contract employee for the USDA named Derrick Noffsinger occasionally filled
in on the line and was stationed near Steeg.
Steeg informed Burgess that Derrick
Noffsinger made her uncomfortable. “[H]e would just sit there and just stare at me and
be making hand gestures and all this stuff.” (DN 22-5, p. 45). When Steeg went to
lunch, he would sit next to her and ask whether she had a boyfriend.
2
In May, 2011, Steeg became seriously ill, causing her to lose weight and miss
approximately five weeks of work. When Steeg returned to work Burgess said that Steeg
must have morning sickness because Derrick Noffsinger “knocked you up.” (DN 22-5).
Burgess also made comments about Steeg’s loose-fitting clothes and told her “The jeans
look really good on you. I would like to see them on the floor.”
(DN 22-5, p. 52).
Steeg claims that Burgess made comments about other females employees, such as
describing a trimmer named Valencia by saying “her juices would be so sweet like a
Valencia orange that he would like to taste them.” (DN 22-5, p. 54). Burgess also asked
Valencia out to the casino. (DN 22-5, p. 54). Steeg also claims that Burgess was known
to have had affairs with several trimmers and had a child with an employee at the
Pilgrim’s Pride facility. (DN 22-5, p. 66). Other employees confirmed that Burgess had
relationships with other female employees. (DN 23-2, p. 4; DN 23-6, p. 5). Steeg alleges
that Burgess would try to invite himself to her house under false pretenses, such as
expressing interest in buying a sheep, even though she did not raise sheep. (DN 22-5, p.
54).
Steeg claims that Burgess would inappropriately touch her. Burgess would join
Steeg on her stand and “he would always reach around me and made sure he tried to feel
me up as he was going for the birds.” (DN 22-5, p. 58). There were also “numerous
times that he’d come around me like escorting me off the stand, but it would always be as
he was feeling me up escorting me off.” (DN 22-5, p. 58). When Steeg would place her
hands on each carcass to inspect it, “he would take his hand and lay it over top of mine or
whatever and just -- it was sickening.” (DN 22-5, p. 58-59). “I mean, he had no reason
to touch me, period.” (DN 22-5, p. 59).
3
Burgess also frequently called Steeg into his office. Each time Steeg was taken
off the line another employee was required to fill Steeg’s place on the line. (DN 22-2, p.
37). Wayne Richards or Nathan Kohl, lower level supervisors, were frequently required
to fill in for Steeg. Richards testified that he had never seen a probationary employee
taken off the line that frequently. (DN 23-5, p. 5). Richards raised his concern with Dr.
Mark Harpole, the Supervisory Public Health Veterinarian, who said that Steeg was not
listening to instructions. (DN 23-5, p. 5). Richards and Kohl both raised their concern
with Shannon Noffsinger,1 the union president. One night, Burgess instructed Richards
and Kohl to replace Steeg on the line. Kohl made a comment in response to this request
(DN 23-6, p. 3), questioning why they needed to do so. (DN 23-5, p. 6). Burgess
replied: “if you were trying to get into her pants, you would be getting her off the line,
too.” (DN 23-5, p. 6).2
Steeg reported Burgess’s behavior to Barry Scoggins, her union representative.
He allegedly warned her “you don’t want to rock the boat because you’re in your first
year” and gave her a number she could call. (DN 22-5, p. 55). Steeg also confided in
Lori Johnston, a female food inspector for the USDA. Johnston testified that she became
concerned after this call. She also stated that while “those stands are tight,” they are “not
so tight where you should be touching each other if somebody were to get up there and
stand beside you.” (DN 23-2, p. 5). Steeg filed an EEOC complaint in January, 2012,
but withdrew it in February. (DN 22-5, p. 26). Steeg also reported Burgess’s conduct to
1
Shannon’s cousin was Derrick Noffsinger.
After an investigation, Burgess received a Letter of Caution for this incident. (DN 221).
2
4
Shannon Noffsinger, who told her that “if you upset one of Dr. Kelso’s3 babies,” then
“your head’s going to be on the chopping block.” (DN 22-5, p. 59).
A week after making her report to Noffsinger, Burgess would no longer meet in
private with Steeg. Burgess also began reprimanding her for various offenses. On one
instance, Burgess gave Steeg permission to bring a carcass to Dr. Pickens, a veterinarian
at the facility, during her break. Burgess then gave Steeg a written reprimand for being
tardy after break, even though Burgess was aware Steeg would be late. When Steeg
questioned him, Burgess told her “I run this show. I can do whatever I want to.” (DN
22-5, p. 17). Employees carried stopwatches when they went on break. Employees were
supposed to start the stopwatch at the same time as their supervisor. Burgess gave Steeg
breaks while his stopwatch was already running. He claimed he was tracking the extra
time, but then cited her when she returned late by his watch. (DN 22-5, p. 77). Steeg
also claims she was cited for being tardy on several instances for minor issues outside her
control, such as guard gate being down or a garbage truck blocking the entryway. (DN
22-5, p. 78).
Steeg also claims that Burgess was friends with Kim Getz, a plant employee. The
two would harass4 Steeg, on occasion standing behind her and talking about her. (DN 225, p. 60). Steeg entered Burgess’s office while Getz was present and Getz stated: “Oh,
there’s the bitch.” (DN 22-5, p. 61). Getz called Steeg a “Keebler Elf looking bitch” and
“would throw guts all over my seat and all over my work area and soak my area down
3
Dr. Janey Kelso was the supervisory veterinarian in charge of the plant. (DN 22).
4
Barry Scoggins, another inspector, also testified that he had had problems with Burgess
and that Burgess was a bully. (DN 22-7, p. 14).
5
whenever we went on break.” (DN 22-5, 48). Eventually, Shannon Noffsinger was
required to intervene.
Steeg also felt threatened when a meat trimmer “was slinging his knife around.”
(DN 22-5, p. 48). Steeg reported the trimmer to Burgess, who told her that trimmer “was
like some guy on Sling Blade.” (DN 22-5, p. 48). The trimmer was moved to a new line.
(DN 22-5, p. 49).5
Steeg also had an incident with Angela Noffsinger, the wife of Shannon
Noffsinger. Steeg patted her on the shoulder and told her to have a good weekend. (DN
22-5, p. 28). Angela Noffsinger claimed that Steeg inappropriately touched her. After
this incident, multiple employees suggested that Steeg was a lesbian. (DN 22-5, p. 38).
Steeg was transferred to a facility in Beaver Dam for several weeks before returning to
Hickory. (DN 22-5, p. 30). An employee testified that Angela Noffsinger was rumored
to be unhappy with Steeg for talking to her husband Shannon. (DN 23-2, p. 3).
On a separate incident, an employee believed Steeg had possibly made threats
towards him. Steeg walked outside where Garfield Hayden and Peggy Mangrum were
talking. Steeg commented that “‘Everybody need to watch their back,’ or something to
that state.” (DN 22-5, p. 36). Hayden initially felt this was a threat directed at him and
that he may lose his job.
(DN 22-3, p. 249).
Hayden later stated it was a
misunderstanding and did not wish to pursue the complaint. (DN 22-3, p. 187).
Steeg received one performance evaluation. This evaluation graded Steeg for her
performance from her hire date of March 27, 2011 until September 30, 2011. Steeg was
This meat trimmer was transferred and eventually terminated. (DN 22-1). His
connection, if any, to Burgess is tenuous, but the incident does establish the milieu at
facility.
5
6
rated “Fully Successful.” (DN 22-2, p. 61). The bottom of the performance evaluation
contained several acknowledgments as to USDA policies. Steeg said she would sign her
evaluation but “not going to checkmark all of [the boxes], because that’s me agreeing
with what has taken place, and I don’t agree with it.” (DN 22-2, p. 46).
The USDA sent Steeg a termination letter dated March 7, 2012.
Steeg’s
probationary period was scheduled to end on March 26, 2012. (DN 23-3). Steeg did not
receive her termination letter until March 15, 2012. Steeg continued to work in the
interim. On March 8, Steeg was working on a stand when a “shackle shattered” and hit
Steeg in the eye. Steeg claims the USDA tried to deny paying her medical bills. (DN 225, p. 30).
In her termination letter, the USDA cited several reasons for releasing Steeg,
including delay in completing an employment form, tardiness arriving to work and after
breaks (ranging from one to seven minutes late), and the incidents with Angela
Noffsinger and Garfield Hayden. (DN 23-3). Steeg argues these reasons were baseless
and many of them fabricated by Burgess. (DN 23). Steeg claims she was terminated in
retaliation for reporting Burgess’s behavior. Steeg also claims she was subjected to a
hostile work environment and quid pro quo sexual harassment. Defendants now move
for summary judgment on all claims.
STANDARD
Summary judgment is appropriate where “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). “[N]ot every issue of fact or conflicting inference presents a genuine issue
7
of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989).
The test is whether the party bearing the burden of proof has presented a jury question as
to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The
plaintiff must present more than a mere scintilla of evidence in support of her position;
she must present evidence on which the trier of fact could reasonably find for her. Id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Mere speculation will
not suffice to defeat a motion for summary judgment: “[T]he mere existence of a
colorable factual dispute will not defeat a properly supported motion for summary
judgment. A genuine dispute between the parties on an issue of material fact must exist to
render summary judgment inappropriate.” Monette v. Elec. Data Sys. Corp., 90 F.3d
1173, 1177 (6th Cir. 1996), abrogated on other grounds by Lewis v. Humboldt Acquisition
Corp., Inc., 681 F.3d 312 (6th Cir. 2012).
A plaintiff may establish a discrimination claim by either direct or circumstantial
evidence. See Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009). “Direct
evidence is ‘that evidence which, if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the employer’s action.’” Scola v. Publix
Supermarkets, Inc., 557 F. App’x 458, 465 (6th Cir. 2014) (quoting Geiger, 579 F.3d at
620). “Circumstantial evidence, on the other hand, is proof that does not on its face
establish discriminatory animus, but does allow a factfinder to draw a reasonable
inference that discrimination occurred.” Hale v. ABF Freight Sys., Inc., 503 F. App’x
323, 330 (6th Cir. 2012) (quoting Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564,
570 (6th Cir. 2003) (en banc)) (internal quotation marks omitted).
8
Absent direct evidence of discrimination, the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) applies. Monette, 90 F.3d at
1186. The plaintiff must first make a prima facie case of discrimination. Id. This
requires a plaintiff to show: (1) he is a member of a protected class; (2) he was otherwise
qualified for the position; (3) he suffered an adverse employment action; and (4) the
circumstances under which he suffered that action give rise to the inference of unlawful
discrimination. Id. Once a prima facie case is established, the burden shifts to the
defendant to produce evidence of a legitimate, nondiscriminatory reason for the adverse
action. Id. If the defendant offers sufficient evidence of a legitimate, nondiscriminatory
reason, the burden then shifts back to the plaintiff to identify evidence from which a
reasonable jury could conclude that the proffered reason is actually pretext for unlawful
discrimination.” Id.
DISCUSSION
Steeg has asserted claims of (1) hostile work environment; (2) quid pro quo
sexual harassment; and (3) retaliation under both Kentucky and federal law.6 (DN 1).
“The same standards of interpretation apply to Kentucky’s Civil Rights Act, Ky.Rev.Stat.
§ 344.040(1), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.”
Conner v. State Farm Mut. Auto. Ins. Co., 273 F. App’x 438, 445 (6th Cir. 2008); Smith
v. Leggett Wire Co., 220 F.3d 752, 758 (6th Cir. 2000); Allen v. Highlands Hosp. Corp.,
545 F.3d 387, 393 (6th Cir. 2008). Accordingly, the Court will concurrently analyze both
sets of claims.
Steeg also asserted two claims of defamation but the parties now agree that the USDA is
entitled to sovereign immunity on these claims. (DN 22, 25).
6
9
I.
Hostile Work Environment.
Title VII prohibits an employer from discriminating “against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1). “Title VII affords employees the right to work in an environment free from
discriminatory intimidation, ridicule, and insult.” Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 65 (1986).
“Case law recognizes two types of sexual harassment: 1) harassment that creates
an offensive or hostile environment; and 2) quid quo pro harassment, in which a
supervisor demands sexual favors as a condition for job benefits.” Kauffman v. Allied
Signal, Inc., Autolite Div., 970 F.2d 178, 182 (6th Cir. 1992). “[T]he label affixed to the
claim is not dispositive; instead, the focus should be on the substance of the plaintiff’s
allegations.” Stevens v. Saint Elizabeth Med. Ctr., Inc., 533 F. App’x 624, 629 (6th Cir.
2013) (“no ‘magic words’ are necessary to state a claim and we should instead examine
the substance of a plaintiff’s allegations”). Steeg has asserted both hostile work
environment and quid pro quo harassment. The Court will analyze the latter in the next
section.
A hostile work environment claim arises “[w]hen the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive working
environment.” Williams v. Gen. Motors Corp., 187 F.3d 553, 560 (6th Cir. 1999)
(alteration in original) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
“But conduct that is not severe or pervasive enough to create an objectively hostile or
10
abusive work environment—an environment that a reasonable person would find hostile
or abusive—is beyond Title VII’s purview.” Berryman v. SuperValu Holdings, Inc., 669
F.3d 714, 717 (6th Cir. 2012) (internal quotation marks omitted) (quoting Harris, 510
U.S. at 21). “Whether misconduct rises to the level of a hostile work environment is a
legal question that may be decided on a summary judgment motion.” Stacy v. Shoney's,
Inc., 142 F.3d 436 (6th Cir. 1998).
“A successful hostile-work-environment claim under Title VII requires a plaintiff
to establish that: (1) she belonged to a protected group, (2) she was subject to unwelcome
harassment, (3) the harassment was based on [sex], (4) the harassment was sufficiently
severe or pervasive to alter the conditions of employment and create an abusive working
environment, and (5) the defendant knew or should have known about the harassment and
failed to act.” Waldo v. Consumers Energy Co., 726 F.3d 802, 813 (6th Cir. 2013).
In this case, the parties dispute whether the alleged sexual harassment suffered by
Steeg is severe and pervasive enough to give rise to a hostile work environment claim.
“The determination of whether harassing conduct is sufficiently severe or pervasive to
establish a hostile work environment is not susceptible to a mathematically precise test.”
Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 333 (6th Cir. 2008) (citation omitted).
Whether an environment is hostile or abusive can be determined only by looking at the
totality of the circumstances, including “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance.”
Harris, 510 U.S. at 23. “Title VII was not meant to create a ‘general civility code,’ and
the ‘sporadic use of abusive language, gender-related jokes, and occasional teasing’ are
11
not sufficient to establish liability.” Clark v. United Parcel Serv., Inc., 400 F.3d 341, 352
(6th Cir. 2005) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). The
conduct must be both objectively and subjectively hostile, such that a reasonable person
would find it abusive and the plaintiff subjectively regards it as such. Stanley v. Cent. Ky.
Cmty. Action Council, Inc., 2013 WL 3280264, at *4 (W.D. Ky. June 27, 2013).
Defendant argues that although “Burgess’ alleged comments and actions, if taken
as true,” were in “poor taste,” they do not rise above being merely offensive. (DN 29).
Defendants cite to a bevy of Sixth Circuit cases. The Court finds these cases are helpful
in explaining what constitutes a hostile work environment but are also distinguishable
from the facts in this case. For instance, in Zaring a female employee working for a
property developer sat through a series of bi-weekly meetings in which the male
employees made sexually suggestive comments and proposed innuendo-laden names for
a tract of land next to a Hooters restaurant. Black v. Zaring Homes, Inc., 104 F.3d 822,
824 (6th Cir. 1997). Plaintiff filed an EEOC claim. The case proceeded to trial and a
jury awarded her $250,000 in damages. Id. at 825. The Sixth Circuit reversed. It found
that the conduct was “merely offensive” because although the comments were sex-based,
they were not directed at the plaintiff, and the other circumstances were insufficient to
create hostile work environment. Id. at 826. Similarly, in Richards, the Sixth Circuit
found that comments describing plaintiff as “my girl attorney” and “little legal gal” and
describing a bell curve “as resembling ‘a pair of woman’s tits’” were “clearly improper
and have no place in a professional work setting,” but were also nothing more than
“isolated examples of boorish behavior” which did not create a hostile work environment.
Richards v. Dep’t of Army, No. 05-1091, 2007 WL 579549, at *5 (6th Cir. Feb. 15, 2007).
12
Defendants argue the facts of Stacy v. Shoney’s, Inc., 142 F.3d 436 (6th Cir. 1998)
“closely mirror[s]” the allegations in this case. (DN 29). In Stacy, the plaintiff claimed
her supervisor said “Your tan sure does look good I wish I could see more of it”; “I like it
better when you wear your hair down”; “[I]f [I] had someone that looked like you, I’d not
let them leave the house”’ and “I’d move in with you and take care of you.” Id. at 436.
Furthermore, on one occasion her supervisor “inappropriately touched her breast when he
removed and replaced an ink pen from her front shirt pocket.” Id. at 436. The Stacy case
is closer to the facts of this case in that it involved physical harassment. Hawkins, 517
F.3d at 334 (“harassment involving an ‘element of physical invasion’ is more severe than
harassing comments alone.”) (citation omitted). However, that case involved only one
incident of physical touching, significantly fewer instances of vulgar comments, and
lacked evidence of any other employee corroborating plaintiff’s complaints of sexual
harassment.
The Court finds that, viewing the totality of the circumstances in this case, Steeg
has presented sufficient evidence of a hostile work environment to survive summary
judgment. Steeg alleges that Burgess made sexually suggestive comments over several
months.
Burgess not only ignored Steeg’s complaints that another employee was
harassing her, but instead commented that Steeg has been impregnated by her harasser.
On several occasions Burgess groped Steeg or touched her in a discomfiting manner.
Burgess detained Steeg in his office for extended periods of time, taking her away from
her job. When questioned about this by other employees, Burgess stated that he was
trying to sleep with Steeg. When Burgess learned that Steeg had complained about his
behavior, he began to treat her differently than other employees. Burgess also tacitly
13
approved another worker’s verbal harassment of Steeg, which ultimately escalated into
Steeg’s workplace being soaked and covered in chicken viscera. Collectively, these
actions are sufficient to show that Steeg was subjected to an abusive working
environment. See e.g. Williams v. Gen. Motors Corp., 187 F.3d 553, 563 (6th Cir. 1999)
(holding repeated sexual innuendo, a co-worker saying “Hey, slut,” and pranks
“including finding office supplies glued to one’s desk, being hit by a thrown box, and
being locked in one’s work area” were sufficient to survive summary judgment);
Hawkins, 517 F.3d at 334; Abeita v. TransAmerica Mailings, 159 F.3d 246 (6th Cir.
1998); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 19, 114 S. Ct. 367, 369, 126 L.
Ed. 2d 295 (1993) (reversing and remanding summary judgment in favor of forklift
company’s president who repeatedly made sexual innuendos, asked female employees to
retrieve change from his front pocket, and threw items on the ground for female
employees to pick up). Accordingly, Defendant’s motion for summary judgment on
Steeg’s hostile work environment claim will be denied.
II.
Quid Pro Quo Sexual Harassment.
“Under the Guidelines established by the Equal Employment Opportunity
Commission (“EEOC”), quid pro quo harassment occurs when ‘submission to or
rejection of [unwelcome sexual] conduct by an individual is used as the basis for
employment decisions affecting such individual.’” Karibian v. Columbia Univ., 14 F.3d
773, 777 (2d Cir. 1994) (quoting 29 C.F.R. § 1604.11(a)(2) (1993)).
“To prevail on a quid pro quo claim of sexual harassment, a plaintiff must assert
and prove (1) that the employee was a member of a protected class; (2) that the employee
was subjected to unwelcomed sexual harassment in the form of sexual advances or
requests for sexual favors; (3) that the harassment complained of was based on sex; (4)
14
that the employee’s submission to the unwelcomed advances was an express or implied
condition for receiving job benefits or that the employee’s refusal to submit to a
supervisor’s sexual demands resulted in a tangible job detriment; and (5) the existence of
respondeat superior liability.” Highlander v. K.F.C. Nat. Mgmt. Co., 805 F.2d 644, 648
(6th Cir. 1986). “Under the theory of respondeat superior, employers are held strictly
liable for conduct of supervisory personnel who have plenary authority to hire, fire,
promote, and discipline employees.” Kauffman v. Allied Signal, Inc., Autolite Div., 970
F.2d 178, 186 (6th Cir. 1992).
Steeg, a female, is a member of a protected class. Defendant concedes for the
sake of argument that Steeg was subjected to unwelcome sexual harassment and that
Burgess’s actions would give rise to respondeat superior liability. (DN 22). The only
issue the parties dispute is whether Steeg suffered a tangible job detriment.
“The terms ‘tangible job detriment’ and ‘materially adverse employment action’
are used interchangeably by the courts.” McFarland v. Henderson, 312 F. Supp. 2d 918,
922 (N.D. Ohio 2004) (citing Bowman, 220 F.3d at 462 n. 5). “A tangible job detriment
is a ‘discharge, demotion or undesirable reassignment.’” Hollar v. RJ Coffey Cup, LLC,
505 F. Supp. 2d 439, 452 (N.D. Ohio 2007) (quoting Faragher, 524 U.S. at 808);
Iceberg v. Whole Foods Mkt. Grp., Inc., 914 F. Supp. 2d 870, 880 (E.D. Mich. 2012) (“a
pay increase, a promotion, or a ‘significant’ new responsibility”). Conversely, the failure
to receive “petty job benefits” is insufficient to establish a tangible job detriment. Id. (“a
preferred shift and a couple of tardy-for-work passes fails to satisfy the law’s definition
of ‘tangible.’”); McCormick v. Kmart Distribution Ctr., 163 F. Supp. 2d 807, 829 (N.D.
Ohio 2001) (“the denial of secondary job assignments simply does not establish a
15
tangible job detriment”). However, it is not enough that the employee suffered a tangible
job detriment.
There must be a “connection between the plaintiff’s reaction to
unwelcome advances and job-related consequences of that reaction.” Davis v. McNea,
108 F.3d 1376 (6th Cir. 1997) (unpublished); Johnson v. Miles, 2011 WL 3880507, at *5
(E.D. Ky. Sept. 2, 2011). In comparison, the “hostile work environment analysis does
not require one to show a tangible job detriment resulting from her refusal to perform
sexual favors.” Sconce v. Tandy Corp., 9 F. Supp. 2d 773, 776 (W.D. Ky. 1998).
There is no question that Steeg’s termination is sufficiently severe enough to
qualify as a tangible job detriment. Hollar, 505 F. Supp. 2d at 452. However, Defendant
argues that Steeg has failed to show a connection between her termination and Burgess’s
acts. Viewing the facts in the light most favorable to Steeg, the Court finds Steeg has
established this connection. Steeg has demonstrated that she was sexually harassed by
Burgess, both by her testimony and independent testimony of other supervisors. (DN 236, p. 3; DN 23-5, p. 6). Steeg has also shown that Burgess threatened her job and that
Steeg feared retaliation if she reported Burgess’s acts. (DN 22-3, p. 9; DN 23-2, p. 4; DN
23-3, p. 9). Defendant argues Steeg was actually terminated for the “eleven instances of
misconduct” outlined in the termination notice. (DN 22-1). Furthermore, the Deciding
Official for Steeg’s termination, Victoria Rosas, was allegedly unaware of these incidents
at the time she decided to terminate Steeg from her probationary role. (DN 22-3, p. 6).
While these allegations may be true, at this stage the Court cannot accept Defendants’
explanation in place of a plausible explanation put forth by Steeg. Defendant argues this
case is similar to Prechtel, in which the Sixth Circuit found a lack of connection
warranted summary judgment for the defendant. Prechtel v. Kellogg’s, 270 F. App'x 379
16
(6th Cir. 2008). This Court finds Prechtel to be distinguishable because the evidence of
harassment and facts linking that harassment to the tangible job detriment were
significantly less, so much so that the Sixth Circuit commented that there was “so little in
the record to substantiate it.” Id. at 381. (finding “three inappropriate comments” made
“seven or eight months prior” and an attempt to grab plaintiff’s leg “three months prior to
the meeting at which the plaintiff was given the three options for her future with the
company” were insufficient to serve as the “impetus for any adverse employment action.”
Accordingly, Defendant’s motion for summary judgment on Steeg’s quid pro quo claim
will be denied.
III.
Retaliation.
“To establish a prima facie case of retaliation, a plaintiff must show: (1) that he
engaged in protected activity; (2) that he suffered adverse employment action; and (3)
that a causal connection existed between the protected activity and the adverse action.”
Penny v. UPS, 128 F.3d 408, 417 (6th Cir. 1997). An adverse employment action
“constitutes a significant change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761
(1998)).
If the plaintiff establishes a prima facie case, the employer must then offer a
legitimate, nondiscriminatory reason for its action. See Monette v. Electronic Data
Systems Corp., 90 F.3d 1173, 1186 (6th Cir. 1996). If the employer satisfies this burden
of production, the plaintiff must introduce evidence showing that the proffered
explanation is pretextual. Id; Penny, 128 F.3d at 417 (“The plaintiff, of course, bears the
17
ultimate burden of proving that the proffered reason for the action was merely a pretext
for discrimination”).
Defendant first argues Steeg has not established a prima facie case of retaliation
because she did not engage in a protected activity.7 An employee engages in protected
activity when they (1) file, assist, or participate in the investigation of a complaint; or (2)
oppose any practice which violates Title VII. Booker v. Brown & Williamson Tobacco
Co., 879 F.2d 1304, 1312 (6th Cir. 1989). “‘Oppose’ goes beyond ‘active, consistent’
behavior in ordinary discourse, where we would naturally use the word to speak of
someone who has taken no action at all to advance a position beyond disclosing it.”
Crawford v. Metro. Gov’t of Nashville & Davidson Cty., Tenn., 555 U.S. 271, 277
(2009).
Defendants argue Steeg did not file a formal EEOC complaint until after she was
terminated.8 Therefore, any protected activity by Steeg must arise from her opposition to
any practice which violates Title VII. Defendants, citing Booker, argue Steeg did not
engage in a protected activity because she made only a “vague” claim of harassment.
(DN 29). The Court finds Booker to be distinguishable from this case. The Booker court
held that a plaintiff’s internal letter that “the charges against him are a result of
‘ethnocism’” was, without more, insufficiently vague. Booker, 879 F.2d at 1313. In
comparison, in this case Steeg reported her sexual harassment on multiple occasions to
several authorities. See generally Yazdian v. ConMed Endoscopic Techs., Inc., 793 F.3d
634, 647 (6th Cir. 2015). Demanding that a supervisor cease harassing conduct and
The parties do not dispute that Steeg suffered an adverse employment action in being
terminated or that there was a causal connection.
7
8
Steeg filed an EEOC complaint in January, 2012, but retracted that complaint.
18
reporting that harassing conduct to other authorities which can prevent future harassment
are protected activities. E.E.O.C. v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir.
2015); Holden v. Owens-Illinois, Inc., 793 F.2d 745, 750 (6th Cir. 1986); Reed v.
Cracker Barrel Old Country Store, Inc., 133 F. Supp. 2d 1055, 1070 (M.D. Tenn. 2000)
(“she complained to both Ms. O’Rourke and Ms. Golliher and wrote a letter to the home
office complaining of Mr. Hooper’s conduct [and] . . . told Mr. Hooper directly that he
must stop sexually harassing her.”). Accordingly, Steeg has established a prima facie
case of retaliation.
The burden therefore shifts to the Defendant to offer a legitimate,
nondiscriminatory reason for its action. Monette, 90 F.3d at 1186. The Supreme Court
has specifically rejected a requirement that employers “prove absence of discriminatory
motive” and affirmed that employers need only “articulate some legitimate,
nondiscriminatory reason for the employee’s rejection.” (emphasis in original) Bd. of
Trustees of Keene State Coll. v. Sweeney, 439 U.S. 24, 25 (1978) (citation omitted).
“This is merely a burden of production, not of persuasion, and it does not involve a
credibility assessment.” Upshaw v. Ford Motor Co., 576 F.3d 576, 585 (6th Cir. 2009).
In her termination letter, Defendants cited Steeg’s alleged failure to timely complete an
employment form, disagreements with co-workers, several instances of being tardy, and
incidents with Angela Noffsinger, Kim Getz, and Garfield Hayden as grounds for
dismissal.
(DN 22-3, p. 247-50).
These stated grounds for termination satisfy
Defendant’s requirement to offer a legitimate, nondiscriminatory reason for terminating
Steeg.
19
Once a defendant has met their burden, “the presumption raised by the prima
facie case is rebutted, and the factual inquiry proceeds to a new level of specificity.”
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981). “A plaintiff may
demonstrate that an employer’s proffered legitimate reason for an adverse employment
action is pretextual on any of three grounds: 1) by showing that the reason has no basis in
fact; 2) by showing that the reason did not actually motivate the employer’s action; or 3)
by showing that the reason was insufficient to motivate the action.” Macy v. Hopkins
Cty. Sch. Bd. of Educ., 484 F.3d 357, 366 (6th Cir. 2007) abrogated by Lewis v.
Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012).
To “survive summary
judgment a plaintiff need only produce enough evidence to support a prima facie case and
to rebut, but not to disprove, the defendant’s proffered rationale.” Blair v. Henry Filters,
Inc., 505 F.3d 517, 533 (6th Cir. 2007).
As noted above, Defendant claims Steeg was actually terminated for the “eleven
instances of misconduct” outlined in the termination notice. (DN 22-1). In response,
Steeg argues that she competently performed her job, as evidenced by the “Fully
Successful” rating she received on her performance evaluation. (DN 22-2, p. 61). Steeg
disputes the factual basis behind the claims she was tardy on four occasions and spread
gossip that Burgess wanted her fired. Steeg also argues that it was improper for the
USDA to hold her “disagreement with plant employee, Kim Getz,” which was sparked by
Getz covering Steeg’s work station in viscera and soaking it, against Steeg. Similarly,
Steeg argues it was improper that her “disagreement with a plaint employee named Dee,”
who allegedly called Steeg “the blond bitch,” against Steeg. Finally, Steeg disputes the
factual basis for the remaining instances: failure to timely complete a form when she
20
began work, unprofessionalism in requesting red meat training, and incidents with Angie
Noffsinger and Garfield Hayden.
Steeg also argues that, regardless of the above
incidents, Defendant’s true motive in terminating Steeg was retaliation for resisting
Burgess’s sexual advances and reporting his conduct. As noted above, in light of the
significant evidence that Steeg was sexually harassed and reported this harassment, the
Court finds that a reasonable jury could believe that Steeg was actually terminated for
reporting her harassment. Chen v. Dow Chem. Co., 580 F.3d 394, 400 n. 4 (6th Cir. 2009)
(“At the summary judgment stage, the issue is whether the plaintiff has produced
evidence from which a jury could reasonably doubt the employer’s explanation. If so, her
prima facie case is sufficient to support an inference of discrimination at trial.”); see also
Griffin v. Finkbeiner, 689 F.3d 584, 594 (6th Cir. 2012). Therefore, notwithstanding the
fact that Defendant has raised plausible grounds upon which Steeg’s termination could
have been based, the Court must deny summary judgment on this claim.
CONCLUSION
IT IS HEREBY ORDERED Defendants’ motion for summary judgment (DN 22)
is DENIED.
cc:
counsel of record
September 1, 2016
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