HENDERSON v. UNITED PARCEL SERVICES
Filing
31
OPINION. Signed by Judge Noel L. Hillman on 4/27/2020. (rtm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RASHEDAH HENDERSON,
1:17-cv-13059-NLH-KMW
Plaintiff,
OPINION
v.
UNITED PARCEL SERVICE,
Defendant.
APPEARANCES:
SARAH R. LAVELLE
COMEAU & BUNKER
1600 JOHN F. KENNEDY BOULEVARD
FOUR PENN CENTER, SUITE 500
PHILADELPHIA, PENNSYLVANIA 19103
DAVID MIKEL KOLLER
KOLLER LAW PC
2043 LOCUST STREET, SUITE 1B
PHILADELPHIA, PENNSYLVANIA 19103
On behalf of Plaintiff
JOSEPH C. DEBLASIO
JACKSON LEWIS P.C.
766 SHREWSBURY AVENUE
TINTON FALLS, NEW JERSEY 07724
LUKE P. BRESLIN
JACKSON LEWIS P.C.
200 CONNELL DRIVE, SUITE 2000
BERKELEY HEIGHTS, NEW JERSEY 07922
On behalf of Defendant
HILLMAN, District Judge
Plaintiff Rashedah Henderson filed this suit against
Defendant United Parcel Service (“UPS”) alleging violations of
Title VII of the Civil Rights Act (“Title VII”) and the New
Jersey Law Against Discrimination (“NJLAD”).
[Docket No. 1.]
UPS subsequently filed a Motion for Summary Judgment.
No. 27.]
[Docket
For the reasons expressed below, UPS’s Motion will be
granted in full.
BACKGROUND 1
Ms. Henderson was hired by UPS as an Administrative
Assistant on or about May 8, 2006.
She worked in various part-
time roles until February 2014, when she took a full-time
position as a Security Specialist.
In that role, she worked at
a UPS facility on Oregon Avenue in Philadelphia, Pennsylvania,
as well as one at the Philadelphia Airport.
At that time, Larry
Gaines — the man whose workplace actions led to this suit — was
1
The Court distills this undisputed version of events from the
parties’ statements of material facts, affidavits, and exhibits,
and recounts them in the manner most favorable to the party
opposing summary judgment — here, Plaintiff. The Court
disregards, as it must, those portions of the parties’
statements of material facts that lack citation to relevant
record evidence (unless admitted by the opponent), contain
improper legal argument or conclusions, or recite factual
irrelevancies. See generally L. CIV. R. 56.1(a); see also Kemly
v. Werner Co., 151 F. Supp. 3d. 496, 499 n.2 (D.N.J. 2015)
(disregarding portions of the parties’ statements of material
facts on these grounds); Jones v. Sanko Steamship Co., Ltd., 148
F. Supp. 3d 374, 379 n.9 (D.N.J. 2015) (same).
2
a Security Supervisor.
On or about September 22, 2014,
Henderson was promoted to a Security Supervisor position solely
at the Oregon Avenue facility.
Upon this promotion, Henderson
and Gaines were peers.
In April 2015, Gaines was promoted to Security Manager, at
which point Henderson began reporting to him.
As a Security
Manager, Gaines had security-related responsibility for three
UPS facilities: a building in Lawnside, New Jersey; a facility
at the Philadelphia Airport; and the Oregon Avenue building
where Henderson worked.
Gaines’ supervisor was Aron Meeks, the
Chesapeake District Security Director.
Initially, Henderson and Gaines had a good working
relationship.
But that changed in April 2015, when Gaines made
the first of three comments that Henderson believed were
inappropriate and created a hostile work environment.
Namely,
Henderson testified that she and Gaines were walking through the
Oregon Avenue building when they saw an attractive woman and
Gaines said to Henderson, “I think you’re a bisexual.”
nothing more, and Henderson walked away.
He said
The next day, Gaines
approached Henderson, apologized for the comment and asked if
they could get past it.
Henderson says that they did move past
it at that point, and that Gaines never said anything about her
sexuality to him again.
3
But then in December 2015, about eight months later, the
two were at the UPS facility in the Philadelphia Airport when
Gaines allegedly said, “I would consider us both attractive
people; wouldn’t you say?”
And in January 2016, this time at
the Oregon Avenue location, another incident occurred.
Gaines
and Henderson were walking through the building and came upon a
coworker named Steve Keenan.
He allegedly made a joke about the
fact that Gaines was a married man, to which Gaines responded by
saying to Keenan, “Steve, that was below the belt.
Below the belt.”
You get it?
When he made that comment, Gaines allegedly
“started to thrust his pelvic area.”
Henderson witnessed this
gesture.
Henderson concedes that the above three incidents are the
only instances of alleged sexual harassment in this case.
Aside
from those three comments and the gesture, Gaines never said or
did anything that Henderson considered to be a sexual advance.
Moreover, Henderson admits that Gaines’ alleged comments and
conduct did not interfere with her job performance and that
there was never any criticism of her performance as a Security
Supervisor.
Shortly after the third incident, still in January 2016,
Henderson called her former supervisor, Ricky Rau, and told him
about Gaines’ “below the belt” comment.
This was the first time
that she complained to anybody about any of the above incidents.
4
Rau suggested that Henderson contact Meeks, Gaines’ supervisor.
Henderson did just that, at which point Meeks arranged for her
to meet with Area Human Resources Manager Larry Moulder.
Moulder met with Henderson and conducted an investigation
based on what she had reported.
Keenan.
Moulder interviewed Gaines and
Gaines denied saying or doing anything inappropriate
while Keenan confirmed that he had made some comment about
Gaines being a married man but could not hear Gaines’ response.
Keenan did recall that Gaines had gestured to his waist and
knees, but Keenan did not believe that was a sexual gesture.
At
the conclusion of Moulder’s investigation, Gaines was counseled
about UPS’s Professional Conduct and Anti-Harassment Policy,
warned that any form of sexual harassment would not be
tolerated, and warned not to retaliate against Henderson in any
way for having raised concerns.
Finally, Gaines was required to
read and sign the Professional Conduct and Anti-Harassment
Policy, as well as a No Retaliation statement, which confirmed
that he agreed not to engage in any form of sexual harassment or
retaliation.
Henderson concedes that Gaines never did or said
anything that she considered to be sexual harassment after this
point.
After the above transpired, Henderson generally refused to
talk with Gaines and insisted that any communication be limited
to emails or text messages.
But on April 28, 2016, Henderson
5
and Gaines had a meeting to discuss her career development.
Henderson alleges that, in that meeting, Gaines told her that
she “was committing career suicide for reporting” him.
That
meeting was the last substantive conversation between the two of
them.
All further communications were in writing.
Four months after the alleged “career suicide” comment, on
September 9, 2016, Henderson met with Meeks and Moulder to
discuss her working relationship with Gaines.
In that meeting,
Henderson for the first time reported the “career suicide”
comment.
Moulder confronted Gaines about this and Gaines
emphatically denied making any such comment or treating
Henderson differently based on the concerns that she had
previously raised about him.
Moulder also informed Eddie Roach,
the District Human Resources Manager, of the issues that
Henderson had raised.
In response, Roach and Henderson met to address her
concerns on September 13, 2016.
In that meeting, Roach asked
Henderson what he and UPS could do to make her more comfortable
and happier at UPS.
In the moment, Henderson did not have any
suggestions, so Roach gave her his phone number, invited her to
call him at any time, reminded her of UPS’s open-door policy,
and asked her to follow up with suggestions on how he and UPS
could address her concerns.
6
About a week later, on September 21, 2016, Henderson
suggested to Roach that she be transferred out of the Security
Department.
Roach offered her the opportunity to transfer to a
supervisor position in either the Feeder Department (UPS’s
tractor-trailer operation) or a position as an On-Road
Supervisor, supervising package delivery drivers in one of the
package delivery centers.
Ms. Henderson requested an On-Road
Supervisor position, and her request was granted.
In November 2016, she transferred out of the Security
Department and into the package delivery operation in Lawnside,
New Jersey.
Prior to this point, her employment and alleged
instances of harassment all occurred exclusively in
Pennsylvania.
This was a promotion for her, in that it resulted
in a raise from $65,000 to $80,000, and later to $89,000.
It
also gave her additional responsibilities, including training
and supervising approximately sixty package delivery drivers.
She performed these duties mostly on the road, but she would
also sometimes work at the Lawnside facility.
Upon receiving
this promotion, she no longer reported to Gaines and was not in
his chain of command.
From approximately November 2016 to March 2017, Henderson
then completed training for the On-Road Supervisor position.
Such training was required because she had no previous
experience working in the package delivery operation.
7
As part
of the training, she worked as a delivery driver in the Lawnside
facility for approximately four months.
This is standard
practice for somebody who is going to become an On-Road
Supervisor.
Kathryn Gardiner, a female On-Road Supervisor, was
responsible for training and supervising Henderson as a package
delivery driver.
Although Henderson asserts Gardiner was a poor
trainer, she admits that Gardiner in no way discriminated or
retaliated against her.
Moreover, Henderson was never
disciplined during her training period, and she was paid her
normal wages during that time.
It is undisputed that during her training Henderson was
required to deliver packages in a U-Haul vehicle, rather than a
UPS vehicle, during this training period.
Henderson argues that
this slowed her performance and resulted in her having to go
through additional training.
She further alleges that such a
requirement is not “common practice” at UPS.
The parties agree,
though, that Henderson’s training took place during what she
described as the “thick of peak season.”
During that high-
volume time-frame, UPS used approximately 20 rental vehicles, in
addition to its typical flight of UPS vehicles, to meet demand.
Additionally, Henderson claims that two other employees,
Dennis Doyle and Jason Abette, were allowed to start as On-Road
Supervisors without first having to work as a driver.
These are
the only two employees that she argues were treated differently.
8
UPS admits that Doyle was training for a Package Dispatch
Supervisor position, not an On-Road Supervisor position.
He was
initially required to spend time working as a package car driver
during his training, before which he had to attend driver
training classes.
However, before he completed those classes,
he was pulled out of them and put on the road as a package car
driver due to demand.
As soon as Roach learned about this,
Doyle was pulled off the road and required to complete the
remaining classes.
The parties do not address the validity of
Henderson’s allegations with respect to Abette.
After Henderson’s transfer and promotion in November 2016,
she and Gaines occasionally saw each other because he still had
security responsibilities and an office at the Lawnside
location.
The Lawnside location had an employee parking lot in
which hundreds of UPS employees parked. In May 2017, six months
after Henderson started at the Lawnside location, Henderson
noticed for the first time that Gaines’ car was parked near her
car in the employee lot.
Over the course of the next two
months, Henderson claims that Gaines’ car was parked near —
though never next to — her car on twelve occasions.
Henderson
only ever saw Gaines once during that time period, and neither
of them said anything to each other.
The only evidence
Henderson had to suggest that this parking routine was an
intimidation or retaliation tactic employed by Gaines was the
9
fact that he had previously told her that he did not like
parking in that lot.
Nevertheless, after the one occasion in
which Henderson saw Gaines in the lot, she reported to Quinn,
the Human Resources Manager, that Gaines’ car sometimes was
parked near her car.
After that, she never again saw Gaines’
car parked near her car.
As of the filing of the present motion, Henderson was still
an On-Road Supervisor.
She admits to having never been
disciplined or subject to any adverse employment action.
She
does not claim that anybody other than Gaines created a hostile
work environment for her.
physically touched her.
She admits that Gaines never
Additionally, UPS has well-publicized
policies prohibiting discrimination, sexual harassment, and
unprofessional conduct in the workplace.
UPS’s stated policies
are to promptly investigate employee concerns and, where a
violation of the policy is found, to take action against the
employee who violated the policy.
Such action can include
termination or other disciplinary action.
Henderson was aware
of these policies and admits that they were reinforced with her
and other employees on a regular basis.
PROCEDURAL HISTORY
On August 25, 2016, Henderson filed a Charge of
Discrimination with the Equal Employment Opportunity Commission
(“EEOC”).
She was represented by counsel at that point.
10
The
Charge asserted a hostile work environment claim based on sexual
harassment by Gaines and retaliation for complaining of the
sexual harassment.
The EEOC was unable to conclude that the
information in the Charge established violations of the relevant
statutes.
Complaint.
On December 13, 2017, Henderson filed her six-count
[Docket No. 1.]
Counts I and II allege gender
discrimination in violation of Title VII and the NJLAD,
respectively.
Counts III and IV allege sexual harassment in the
form of hostile work environment in violation of Title VII and
the NJLAD, respectively.
Finally, Counts V and VI allege
retaliation in violation of Title VII and the NJLAD.
UPS answered the Complaint on April 27, 2018.
4.]
[Docket No.
After the parties engaged in discovery, UPS filed the
present Motion for Summary Judgment on June 28, 2019.
No. 26.]
27.]
It amended its brief on July 1, 2019.
[Docket No.
Henderson filed her response on July 16, 2019.
No. 28.]
UPS filed is Reply on July 29, 2019.
[Docket
[Docket
[Docket No. 29.]
JURISDICTION
The Court exercises subject-matter jurisdiction over this
action pursuant to 28 U.S.C. § 1331 because the claim arises
under the laws of the United States.
alleges violations of Title VII.
Specifically, Henderson
The Court exercises
supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over
Henderson’s state law claims because they arise out of the same
11
circumstances and are based on a common nucleus of operative
facts.
STANDARD OF REVIEW
Summary judgment will be granted if “‘the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits if any,’ . . . demonstrate the
absence of a genuine issue of material fact” and the party
seeking summary judgment is entitled to judgment as a matter of
law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)
(citing FED. R. CIV. P. 56).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
248 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
A fact is “material” if, under the governing
substantive law, a dispute about the fact might affect the
outcome of the suit.
Id.
“In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party’s evidence ‘is to be believed and
all justifiable inferences are to be drawn in his favor.’”
Marion v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004).
The moving party first bears the burden of demonstrating
the absence of a genuine issue of material fact.
Celotex, 477
U.S. at 323 (“[A] party seeking summary judgment always bears
12
the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which
it believes demonstrate the absence of a genuine issue of
material fact.”).
The moving party may discharge that burden by
“‘pointing out to the district court[ ]that there is an absence
of evidence to support the nonmoving party’s case’ when the
nonmoving party bears the ultimate burden of proof.”
Singletary
v. Pa. Dep’t of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001)
(quoting Celotex, 477 U.S. at 325).
Once the moving party has met this burden, the nonmoving
party must identify specific facts showing that a genuine issue
for trial exists.
Celotex, 477 U.S. at 324.
The party “may not
rest upon the mere allegations or denials of the . . .
pleading[s],” but instead must rely on affidavits or other
documents.
2001).
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
To withstand summary judgment, the nonmoving party “must
‘make a showing sufficient to establish the existence of [every]
element essential to that party’s case, and on which that party
will bear the burden of proof at trial.’”
Cooper v. Sniezek,
418 F. App’x 56, 58 (3d Cir. 2011) (quoting Celotex, 477 U.S. at
322).
Therefore, to prevail in opposition of a motion for
summary judgment, the nonmoving party must identify specific
13
facts and affirmative pieces of evidence that contradict those
offered by the moving party.
Anderson, 477 U.S. at 257.
DISCUSSION
The Complaint in this matter raises six claims: two allege
gender discrimination, two allege sexual harassment in the form
of hostile work environment, and two allege retaliation.
UPS
argues that it is entitled to summary judgment on all six
counts.
The Court will first address the retaliation and gender
discrimination claims because they both fail for the same
reason.
The Court will then address the hostile work
environment claim.
A.
Retaliation and Gender Discrimination
Counts I and II allege disparate treatment gender
discrimination under Title VII and the NJLAD, respectively.
Counts V and VI allege retaliation under the same statutes,
respectively.
The analysis of claims under those two statutes
are the same: the burden-shifting framework established in
McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973); see Davis
v. City of Newark, 285 F. App’x 899, 903 (3d Cir. 2008)
(“Discrimination claims brought under Title VII and NJLAD must
be analyzed according to the burden-shifting framework set forth
by the Supreme Court in [McDonnell Douglas].”); Cardenas v.
Massey, 269 F.3d 251, 263 (3d Cir. 2001) (listing the same
elements for retaliation under Title VII and the NJLAD).
14
Under that framework, the plaintiff has the initial burden
of establishing a prima facie case under the relevant statute.
McDonnell Douglas, 411 U.S. at 802; see also Parikh v. UPS, 491
F. App’x 303, 307 (3d Cir. 2012) (“[P]laintiff must establish a
prima facie case of discrimination.”).
This requires the
plaintiff to produce sufficient evidence to allow the factfinder
to infer the fact at issue.
Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 254 n.7 (1981).
For both retaliation and
gender discrimination, one requirement of the prima facie case
is that the plaintiff suffered an adverse employment action.
Fasold v. Justice, 409 F.3d 178, 188 (3d Cir. 2005)
(retaliation); Rosencrans v. Quixote Enters., 755 F. App’x 139,
142 (3d Cir. 2018) (gender discrimination) (non-precedential)
(citing Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008)). 2
2
To establish a prima facie case of gender discrimination under
a disparate treatment theory, a plaintiff “must show that (1)
she is a member of a protected class; (2) she was qualified for
the position; (3) she suffered an adverse employment action; and
(4) the action occurred under circumstances giving rise to an
inference of intentional discrimination.” Rosencrans, 755 F.
App’x at 142 (non-precedential) (citing Makky, 541 F.3d at 214).
To establish a retaliation claim, a plaintiff must show that:
(1) she engaged in protected activity; (2) the employer took an
adverse employment action against her either subsequent to or
contemporaneous with the protected activity; and (3) there is a
causal connection between her participation in the protected
activity and the adverse employment action. Fasold, 409 F.3d at
199. The Court will focus solely on the adverse employment
action requirement because all four claims fail on that issue.
The Court reserves judgment on the remaining requirements for
Counts I, II, V, and VI.
15
Once the plaintiff has established a prima facie case, the
burden shifts to the defendant, who must provide a legitimate,
non-discriminatory reason for the adverse employment action.
McDonnell Douglas, 411 U.S. at 802-03; Burdine, 450 U.S. at 253;
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07.
Once the
defendant has established a legitimate, non-discriminatory
reason for the adverse employment decision, the burden shifts
back to the plaintiff to show that the defendant’s reason is
pretextual.
McDonnell Douglas, 411 U.S. at 804-05.
UPS argues that Henderson cannot satisfy the adverse
employment action requirement of the respective prima facie
cases. 3
Henderson claims that Gaines’ comments that she was
committing “career suicide” by reporting him constitutes an
adverse employment action.
[See Docket No. 28, at 6.]
Even
assuming that Gaines made that comment, a fact which the parties
dispute, it does not constitute an adverse employment action for
either her retaliation claim or her gender discrimination claim.
The standard for what constitutes an adverse employment
action is different for retaliation and gender discrimination
claims.
Indeed, “[t]he standard a plaintiff must meet in
3
Plaintiff did not respond to UPS’s arguments about her
disparate treatment gender discrimination claims. [See Docket
No. 29-1.] This means that the claims are effectively waived.
See Ray v. Pinnacle Health Hosps., Inc., 416 F. App’x 157, 162
(3d Cir. 2010). The Court will nevertheless analyze the claims
under the relevant law.
16
establishing a materially adverse action is widely recognized to
be ‘lower for a retaliation claim than for a disparate treatment
claim.’”
McKinnon v. Gonzales, 642 F. Supp. 2d 410, 426 (D.N.J.
2009) (Simandle, J.) (quoting Flynn v. N.Y. State Div. of
Parole, 620 F. Supp. 2d 463, 490 (S.D.N.Y. 2009)).
Therefore,
if the “career suicide” comment is insufficient to constitute an
adverse employment action for Ms. Henderson’s retaliation claim,
the same must be true for her gender discrimination claim.
See
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64-67
(2006) (distinguishing the discrimination and retaliation
provisions of Title VII and holding that the retaliation
provision, unlike the discrimination provision, “is not limited
to discriminatory actions that affect the terms and conditions
of employment,” but rather “extends beyond workplace-related or
employment-related retaliatory acts and harm”).
To satisfy the adverse employment action prong of the Title
VII retaliation claim, Ms. Henderson “must show that a
reasonable employee would have found the alleged retaliatory
actions ‘materially adverse’ in that they ‘well might have
dissuaded a reasonable worker from making or supporting a charge
of discrimination.’”
Moore v. City of Phila., 461 F.3d 331, 342
(3d Cir. 2006) (quoting Burlington N., 548 U.S. at 57).
As the
Supreme Court put it, Title VII’s “antiretaliation provision
protects an individual not from all retaliation, but from
17
retaliation that produces an injury or harm.”
Burlington N.,
548 U.S. at 67.
Henderson cites only one case in support of her argument
that Mr. Gaines’ alleged “career suicide” comment constitutes an
adverse employment action: Rivera v. Rochester Genesee Reg’l
Transp. Auth., 702 F.3d 685 (2d Cir. 2012).
at 6.]
[See Docket No. 28,
In that Second Circuit case, the Court determined that
summary judgment was inappropriate given the totality of the
circumstances in the case. Rivera, 702 F.3d at 700.
particular, the Court relied on three facts.
Id.
In
First of all,
a supervisor in Rivera had made a threatening comment to the
plaintiff specifically suggesting that the plaintiff would lose
his job if he filed an EEOC charge.
Id.
Second of all, the
Court relied on evidence that showed that the supervisor had
responded to the plaintiff’s complaints about his co-workers’
use of racial slurs by telling him to “suck it up and get over
it, n****r!”
Id.
Finally, the Court relied on the fact that,
after the plaintiff filed his EEOC charge, another supervisor
“arranged a meeting during which she admonished” the plaintiff.
Id.
Similar circumstances are not present here.
First of all,
Henderson points only to one instance of alleged retaliation:
Gaines’ alleged “career suicide” comment.
Additionally, rather
than suffering any further adverse employment actions, such as
18
the admonishment that the plaintiff in Rivera received,
Henderson received a promotion and raise virtually immediately
after she complained about the alleged retaliation.
In other
words, this alleged retaliation did not produce any injury or
harm, as required by Burlington Northern.
Such a holding is
consistent with other cases in this Circuit.
See, e.g.,
Sconfienza v. Verizon Pa. Inc., 307 F. App’x 619, 621-22 (3d
Cir. 2008) (“[F]ormal reprimands that result in a notation in an
employee’s personnel file could be sufficiently concrete, but
harsh words that lack real consequences are not.” (quoting
Robinson v. City of Pittsburgh, 120 F.3d 1286, 1298 (3d Cir.
1997))); Hudson v. Cheyney Univ. of Pa., Civil Action No. 142552, 2018 WL 6603870, at *7 (E.D. Pa. Dec. 14, 2018) (“[T]he
threat of termination . . . does not amount to an adverse
employment action because no punitive action was taken against
plaintiff . . . .”); Leblanc v. Hill Sch., Civil Action No. 141674, 2015 WL 144135, at *16 (E.D. Pa. Jan. 12, 2015) (“[W]hen
an employer threatens to take an action but does not in fact
take that action, the threat does not constitute a materially
adverse employment action for the purposes of retaliation
claims.”); Ilori v. Carnegie Mellon Univ, 742 F. Supp. 2d 734,
760 (W.D. Pa. 2010) (holding that a “threat [that] was never
carried out and had no demonstrable impact on plaintiff’s
employment” is insufficient to constitute an adverse employment
19
action); see also Hellman v. Weisberg, 360 F. App’x 776, 779
(9th Cir. 2009) (holding that a threat of termination and
criminal prosecution did not constitute an adverse employment
action when the plaintiff was never fired or prosecuted).
In sum, Gaines’ comment to Henderson that she was
committing “career suicide” by reporting him does not constitute
an adverse employment action for the purposes of a Title VII
retaliation claim.
Since the standard is stricter for a Title
VII gender discrimination claim, the “career suicide” comment is
also insufficient to constitute an adverse employment action for
that claim.
Therefore, Henderson is unable to establish a prima
facie claim for both her retaliation and gender discrimination
claims under Title VII.
Finally, since the analyses for both of
those claims are the same under Title VII as under the NJLAD,
Henderson also fails to establish prima facie claims under the
NJLAD.
As a result, the Court will grant summary judgment in
favor of UPS on each of Counts I, II, V, and VI.
B.
Hostile Work Environment
Henderson also fails to satisfy the prima facie case for a
hostile work environment sexual harassment claim under both
Title VII and the NJLAD.
In order to succeed on a hostile work
environment claim under either statute, a plaintiff must
establish that: (1) she suffered intentional discrimination
because of her sex, (2) the discrimination was severe or
20
pervasive, (3) the discrimination detrimentally affected the
plaintiff, (4) the discrimination would detrimentally affect a
reasonable person in like circumstances, and (5) respondeat
superior liability exists.
Mandel v. M&Q Packaging Corp., 706
F.3d 157, 167 (3d Cir. 2013) (Title VII); Lehmann v. Toys ‘R’
Us, 626 A.2d 445, 452 (N.J. 1993) (“In construing the terms of
the [NJ]LAD, this Court has frequently looked to federal
precedent governing Title VII . . . .”).
UPS argues that Henderson fails to satisfy at least the
second and fifth prongs.
Henderson argues that the events
outlined above do constitute “severe or pervasive”
discrimination. 4
“For sexual harassment to be actionable, it
must be sufficiently severe or pervasive ‘to alter the
conditions of [the victim’s] employment and create an abusive
working environment.’”
Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 67 (1986) (quoting Henson v. Dundee, 682 F.2d 897, 904
(11th Cir. 1982)).
A court should consider four factors in
determining whether that standard is met: “the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
4
As above, Henderson failed to respond to UPS’s argument about
the fifth prong. [See Docket No. 28, at 3-5.] This means that
the argument is effectively waived. See Pinnacle Health, 416 F.
App’x at 162. Because the Court will rest its decision on the
second prong, it will not address the fifth prong.
21
whether it unreasonably interferes with an employee’s work
performance.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23
(1993).
Here, Henderson argues that five events constituted severe
or pervasive discrimination: (1) Gaines’ comment that he thought
she was bisexual; (2) Gaines’ comment, “I would consider both of
us attractive people, wouldn’t you say?”; (3) the incident in
which Gaines made a gesture by “pump[ing] his hand in front of
me and Steve” when he had “his hands by his penis area, groin
area”; (4) Gaines’ comment that Henderson was committing career
suicide by reporting him; and (5) Gaines’ car being parked near
Henderson’s car on twelve occasions over the course of two
months.
[See Docket No. 28, at 4.]
The Court does not take lightly these allegations, and in
no way condones the alleged actions of Gaines.
But the bar in
Title VII cases is a high one, and for good reason: “to ensure
that Title VII does not become a ‘general civility code.’”
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
Unfortunately for Henderson, as a matter of law, the facts of
this case, even when considered in the light most favorable to
Plaintiff, do not meet that high bar.
Within the parameters set forth by precedent in this
Circuit, the allegations in this case were not frequent, since
Henderson only alleges five incidents over the course of at
22
least 26 months.
They were not severe, as they amounted to
nothing more than “[t]he mere utterance of an epithet, joke, or
inappropriate taunt that . . . cause[d] offense.”
Brown-
Baumbach v. B&B Auto, Inc., 437 F. App’x 129, 133 (3d Cir. 2011)
(holding that “not every sexual comment, action, or joke creates
a hostile work environment” and 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”).
They were not physically
threatening or humiliating, but rather merely offensive
utterances, since Henderson herself admits that Gaines never
physically touched her.
Finally, they did not unreasonably
interfere with Henderson’s work performance, which again
Henderson admits.
There can be no question that, if Henderson’s allegations
are true, certain aspects of Gaines’ behavior were at best
socially unacceptable.
But there can also be no question that
these allegations are insufficient to meet the high burden of
severe or pervasive harassment required for a successful hostile
work environment sex discrimination claim under Title VII and
the NJLAD.
Such a holding comports with the overwhelming
majority of cases in this Circuit.
See, e.g., Bacone v. Phila.
Hous. Auth., 112 F. App’x 127, 129 (3d Cir. 2004) (“The behavior
at issue involved no more than four incidents during the span of
23
two weeks, and though they were offensive, they are not
pervasive enough to rise to the level of a Title VII
violation.”); Saidu-Kamara v. Parkway Corp., 155 F. Supp. 2d
436, 439-440 (E.D. Pa. 2001) (defendant, over 18-month span,
touching plaintiff’s breast; propositioning her for sex;
offering her money to go out with him; removing a bottle of wine
from his pants, asking her to join him later at a local hotel
for a “good time,” and again touching her breasts and buttocks
insufficient); Bonora v. UGI Utilities, Inc., No. CIV.A. 995539, 2000 WL 1539077, at *4 (E.D. Pa. Oct. 18, 2000) (defendant
touching plaintiff’s hand, brushing his buttocks against hers,
and touching her waist insufficient); McGraw v. Wyeth-Ayerst
Lab., Inc., No. CIV. A. 96-5780, 1997 WL 799437, at *6 (E.D. Pa.
Dec. 30, 1997) (defendant kissing plaintiff, touching her face,
asking her out on dates, inquiring about her marriage
insufficient).
Because Henderson has failed to establish that the alleged
harassment she experienced was severe or pervasive enough “to
alter the conditions of [her] employment and create an abusive
working environment,” the Court must grant summary judgment in
favor of UPS as to Counts III and IV.
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CONCLUSION
For the foregoing reasons, the Court will grant UPS’s
Motion for Summary Judgment as to all of Plaintiff’s claims.
accompanying Order will be entered.
April 27, 2020
DATE
At Camden, New Jersey
_
s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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An
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