to complain to Norrell that she was being discriminated against by ServiceMaster or ServiceMaster personnel. Haynes-Bey Dep. TR at 144-45, attached to Norrell's MSJ at Ex. G (Q: "Is my understanding correct that you never specifically called anybody at Norrell and complained about any of those actions?" A: "Yes").
Plaintiffs' notice argument rests on an alleged conversation on or about August 26, 1993, between Caldwell and Norrell's Pierce after Morris was terminated,
Nur's vague and tentative comments to Norrell staff on August 19, 1993, and rumors of discriminatory stray comments by ServiceMaster personnel who were not involved in the discriminatory conduct alleged by Plaintiffs.
Even granting Plaintiffs those reasonable inferences to which they are entitled, neither Caldwell's conversation on August 26th nor Nur's ambiguous statement on August 19th were sufficiently specific to expose Norrell to joint employer liability under Title VII. While Nur told Norrell personnel that something funny was going on at ServiceMaster, she made no specific allegations. She did not ask Norrell to take any action, and, in fact, she at least strongly implied that she did not want Norrell to take any action at that time. In her deposition testimony, she agreed that she provided Norrell with no specifics. See Nur Dep. TR at 150-51, attached to Plaintiffs' Opp. to Norrell's MSJ at Ex. 4. And, Nur even told the EEOC that when Norrell "asked [her] what [Nur] wanted them to do about [her] complaints, [she] said that [she] wanted to give ServiceMaster a chance to make the changes they promised." Nur's EEOC Aff., attached to Plaintiffs' Opp. to ServiceMaster's MSJ at Ex. 2. Moreover, it is uncontroverted that when Norrell followed-up with Nur the next week, she did not mention any discriminatory conduct by ServiceMaster. See Pierce Dep. TR at 64, attached to Norrell's MSJ at Ex. D.
Nor do the unsubstantiated allegations that other ServiceMaster employees had, in the past, engaged in discriminatory verbal conduct at other worksites provide Norrell with notice of discrimination against these Plaintiffs at the ServiceMaster office, in large part because such allegations involved different persons and different worksites.
Assuming for the purposes of this motion that the conversation on August 26, 1993, between Caldwell and Pierce even took place, it was not specific enough to place Norrell on notice of all of the detailed (and overlapping) allegations in Plaintiffs' sixteen-count Complaint. At most, Caldwell's statement in response to Pierce's question whether a racial atmosphere existed at ServiceMaster (primarily because of the claim that McClun could not work with Blacks), placed Norrell on notice as to the possible discriminatory verbal conduct of McClun. But, the record indicates that, following the (disputed) conversation with Caldwell, Norrell discussed with ServiceMaster the basis for Haynes-Bey and Morris' terminations and determined that ServiceMaster had offered reasons that were fully consistent with The Payrolling Services Agreement.
Even had Norrell determined that ServiceMaster had terminated Plaintiffs Haynes-Bey and Morris for an unlawful reason under Title VII, Norrell had no authority under the Payrolling Services Agreement to oversee ServiceMaster or to force it to change its request that Plaintiffs Haynes-Bey and Morris no longer be assigned to the ServiceMaster worksite. By offering positions to Haynes-Bey (who accepted) and Morris (who did not) after ServiceMaster requested that they not return, Norrell took those corrective measures that were within its control.
Similarly, after Caldwell and Nur were terminated and they leveled more specific claims of discrimination against ServiceMaster personnel, Norrell staff interviewed Plaintiff Caldwell (the only one who was willing to talk), certain ServiceMaster personnel and other Norrell temporary employees assigned to the ServiceMaster worksite. As did the EEOC when it conducted its investigation, Norrell did not find proof of discrimination. Nevertheless, as it did for Plaintiff Haynes-Bey and Morris, Norrell offered Plaintiffs Caldwell and Nur reassignment to positions that were substantially similar. While reassigning Plaintiffs was within Norrell's control, changing ServiceMaster's work environment was not. See Payrolling Services Agreement P5, attached to Norrell's MSJ at Ex. A. ServiceMaster had the right to request the removal or replacement of any "Payrolled Worker for any lawful reason." ServiceMaster did so request and, upon reasonable inquiry, Norrell lacked a sufficient basis from which to conclude that the terminations were other than lawful. In sum, Norrell cannot be exposed to Title VII liability where Plaintiffs failed to provide it with timely, reasonably specific allegations of discrimination. Nor can Norrell be held liable where, once it received reasonably specific notice, it investigated the complaints and took those actions that were within its control by offering Plaintiffs new assignments (which were accepted by the three of four Plaintiffs).
Summary judgment will be entered in favor of Norrell on Counts 9-12.
B. ServiceMaster's motion for partial summary judgment.
1. Plaintiffs' claims for sex discrimination.
ServiceMaster seeks summary judgment on the sex discrimination claims contained in Counts 1-4, contending that Plaintiffs Haynes-Bey, Nur and Caldwell failed to exhaust their administrative remedies by including a gender discrimination charge in their EEOC Complaint and that Plaintiff Morris has not identified any evidence of sex discrimination such that a jury could reasonably find in her favor. In opposition, Plaintiffs argue that sex discrimination could be inferred from the conduct alleged in their administrative complaints.
Before a Title VII plaintiff may institute a civil action alleging discrimination, she must file an administrative complaint with the EEOC. Park v. Howard Univ., 315 U.S. App. D.C. 196, 71 F.3d 904, 907 (D.C. Cir. 1995), cert, denied, 136 L. Ed. 2d 20, 117 S. Ct. 57 (1996). Compliance with the requirement for administrative exhaustion is mandatory, Brown v. General Services Administration, 425 U.S. 820, 832-33, 96 S. Ct. 1961, 1967-68, 48 L. Ed. 2d 402 (1976); Bayer v. U.S. Department of Treasury, 294 U.S. App. D.C. 44, 956 F.2d 330, 332 (D.C. Cir. 1992), because the administrative charge gives the charged party notice of the claim and it "narrow[s] the issues for prompt adjudication and decision." Park, 315 U.S. App. D.C. 196, 71 F.3d 904 at 907 (quoting Laffey v. Northwest Airlines, Inc., 185 U.S. App. D.C. 322, 567 F.2d 429, 472 (D.C. Cir. 1976), cert. denied, 434 U.S. 1086, 55 L. Ed. 2d 792, 98 S. Ct. 1281 (1978)).
Although a complaint in some manner or in some form must be made administratively, it is well settled that a vaguely worded charge is not fatal to a Title VII plaintiffs case. EEO complaints are to be liberally construed, because they are often drafted "by persons unschooled in technical pleading." Shehadeh v. Chesapeake & Potomac Telephone Co., 193 U.S. App. D.C. 326, 595 F.2d 711, 727 (D.C. Cir. 1978). However, "it is also true that the requirement of some specificity in a charge is not a 'mere technicality,'" Park, 71 F.3d at 907 (quoting Rush v. McDonald's Corp, 966 F.2d 1104, 1111 (7th Cir. 1992) (internal quotation marks omitted)), and a liberal interpretation of an administrative charge cannot be used to "permit a litigant to bypass the Title VII administrative process." Park, 71 F.3d at 907.
A claim not included in an administrative complaint is barred under Title VII unless it is like or reasonably related to another claim or other claims that were exhausted administratively. Park, 71 F.3d at 907. Other than Morris' complaint, a fair reading of the record fails to reveal that a sex discrimination allegation, in any form, was ever brought to the EEOC's attention by Plaintiffs Haynes-Bey, Caldwell or Nur. An allegation of race-based discrimination does not, by itself, include an allegation of sex discrimination; these allegations are discrete, and they must be identified specifically and separately. See Rush v. McDonald's Corp., 966 F.2d 1104, 1112 (7th Cir. 1992); Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985), amended, 784 F.2d 1407 (9th Cir. 1986). See generally Lindeman & Grossman, 2 Employment Discrimination Law 1450-51 (3rd ed. 1996).
Plaintiffs Haynes-Bey, Nur and Caldwell failed to include claims of sex discrimination in their administrative complaints, and sex discrimination simply is not like or reasonably related to race discrimination or retaliation. Contrary to their argument, the administrative complaints (and supporting affidavits) filed by Plaintiffs Haynes-Bey, Nur and Caldwell do not contain a whisper of sex discrimination. While they contend that a charge of sex discrimination was fairly raised to the EEOC because they complained that Bonnie McClun had used "sexually derogatory remarks such as 'gal' and 'girl,'" see Plaintiffs' Opp. to ServiceMaster's MSJ at 7, when deposed Plaintiffs stated that they interpreted those remarks to be racially derogatory. E.g., Caldwell Dep. TR at 117-19, attached to Plaintiffs' Opp. to ServiceMaster's MSJ at Ex. 11; Nur Dep. TR at 85, attached to ServiceMaster's MSJ at Ex. C; Morris Dep. TR at 181-82 & 217, attached to ServiceMaster's MSJ at Ex. B; Haynes-Bey Dep. TR at 104, attached to ServiceMaster's MSJ at Ex. A. Similarly, although Plaintiffs point to the phrase "Uh huh girls" as another sexually derogatory term, during their depositions, at least two of them testified that it was a racially derogatory phrase. E.g., Haynes-Bey Dep. TR at 95, attached to ServiceMaster's MSJ at Ex. A; Nur Dep. TR at 87.
A fair reading of the administrative complaints and affidavits submitted by Plaintiffs Caldwell, Haynes-Bey and Nur do not even hint that they were complaining about sex discrimination. Since sex discrimination is not like or reasonably related to the charges that they filed regarding race discrimination and retaliation, ServiceMaster's motion for partial summary judgment will be granted on the sex discrimination claims of Plaintiffs Haynes-Bey, Nur and Caldwell.
Summary judgment in favor of the ServiceMaster will also be granted on Plaintiff Morris' claim for sex discrimination.
While Morris' claim was administratively exhausted, there is insufficient evidence of gender animus for a jury to reasonably find in her favor. While pointing primarily to a comment made by Skoff that he "didn't understand how these young ladies could get knocked up and not get married to these men," Morris concedes that the remark was not targeted at her (but at Skoff's sister) and that Skoff was unaware that Morris was pregnant. See Morris Dep. TR at 115-18. Morris also concedes that Skoff did not know she was behind a door when he opened it and struck her. Id. at 161. And, while McClun (a woman) may have used the words "gal" and "girl," consistent with each Plaintiff's testimony, those words were not reasonably construed by Plaintiffs as sexually demeaning. See Caldwell Dep. TR at 117-19, attached to Plaintiffs' Opp. to ServiceMaster's MSJ at Ex. 11 (construed words as racially derogatory); Nur Dep. TR at 85, attached to ServiceMaster's MSJ at Ex. C (same); Morris Dep. TR at 181-82 & 217, attached to ServiceMaster's MSJ at Ex. B (same); Haynes-Bey Dep. TR at 104, attached to ServiceMaster's MSJ at Ex. A (same). Nor does the failure to terminate a white male sleeping on the job provide evidence of disparate treatment based on sex where Morris (a pregnant Black female) was not terminated for sleeping on the job.
Morris' evidence of sex discrimination is thin to the point of invisibility. She has simply failed to carry her burden to survive summary judgment by showing that there is sufficient evidence of sex discrimination to establish a genuine issue of material fact such that a jury could reasonably find in her favor.
2. Plaintiffs Haynes-Bey, Morris and Nur's hostile environment claims.
To prove hostile environment under Title VII, a plaintiff must demonstrate that the "workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of employment and create an abusive environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993) (internal citations omitted). Determining whether alleged conduct is sufficiently hostile or abusive is based on an objective standard, although if a plaintiff does not consider the environment to be abusive, such conduct has not altered her conditions of employment. Id. at 21. In determining whether an environment is hostile, courts consider the totality of the circumstances, including the frequency of the alleged conduct; its severity; whether the conduct is physically threatening or humiliating or a mere offensive utterance; and whether the conduct unreasonably interferes with an employee's work performance. Stoeckel v. Environmental Mgt. Sys., Inc., 882 F. Supp. 1106, 1114 (D.D.C. 1995). Title VII only prohibits discrimination; it does not guarantee employees a pleasant work environment.
The allegations by Plaintiffs Haynes-Bey, Morris and Nur do not demonstrate conduct that is sufficiently severe or pervasive for a jury to reasonably find in their favor. During her fifteen-day tenure with ServiceMaster, Haynes-Bey spent the first week "out in the field." There were only five days in which she interacted in a significant way with the supervisors in ServiceMaster's office. Although Haynes-Bey contends that she was in an environment that was hostile to minorities, the evidence to which she points reflects only comments and conduct that were, at most, rude and offensive.
Buttressing this conclusion is the fact that Haynes-Bey never complained to Norrell and, in her deposition, she testified that at the meeting Plaintiffs requested to complain about McClun, Haynes-Bey stated: "Actually, at that time I didn't have a complaint." Haynes-Bey Dep. TR at 11, attached to Plaintiffs' Opp. to ServiceMaster's MSJ at Ex. 12. Where the plaintiff does not subjectively perceive the environment to be abusive, there is no Title VII violation. Harris, 510 U.S. 17, 126 L. Ed. 2d 295, 114 S. Ct. 367 at 370.
The hostile environment claim of Plaintiff Morris falls for the same reason: she has not produced sufficient evidence for a reasonable jury to find that the conduct to which she was subjected was sufficiently severe and pervasive. Morris points to comments by McClun (calling Plaintiff Morris "girl," "gal," "rascal" or "you people"), a comment directed to someone else regarding fried chicken, evidence that she was inadvertently hit by a door when Skoff exited (not knowing she was on the other side), the requirement to sign-in when non-Blacks were allegedly not required to do so and a stray comment by someone regarding her name. While these remarks and incidents may be construed as being race-related, they do not demonstrate racial animus that is so severe and pervasive as to create a hostile environment under Title VII.
Plaintiff Nur fares no better. Nur spent only a portion (19 days) of her ServiceMaster tenure (of approximately 2 months) in the ServiceMaster office. At most, like Haynes-Bey and Morris, Nur was subjected to conduct that was offensive, but which consisted of sporadic, isolated incidents--none of which could be deemed outrageous when considered alone or even when aggregated. As evidence of a racially hostile environment, Nur offers the comments in which Plaintiffs were called the "Uh Huh Girls" by Ledbetter (about whom Nur had no complaints about, see supra n.22 & infra n.24); contends that she was locked out of a meeting when she left in the middle of it; that she was subjected to the phrase "you people" when Ron Fisher referred to Plaintiffs.
ServiceMaster points to other comments such as McClun's statements that she was not used to working around Blacks, that McClun gave her a "hard time," that McClun asked her if she was Spanish because her first name was Juanita, and that Ron Fisher responded to a question about whether Nur and Haynes-Bey would get a company car with the statement: "what to do you people expect me to do about it?" Contrary to Plaintiffs' contentions, these comments and incidents do not describe a hostile environment under Title VII. At most, the comments are rude and insensitive. They are not, however, sufficiently pervasive and severe to establish a racially hostile environment under Title VII as a matter of law.
Summary judgment will be entered in favor of Defendant ServiceMaster on the hostile environment claims of Haynes-Bey, Morris and Nur.
3. The retaliation claims of Plaintiffs Haynes-Bey, Caldwell and Nur
To make out a prima facie case of retaliation under Title VII, a plaintiff must demonstrate (1) that he or she engaged in a statutorily protected activity; (2) that the employer was aware of such activity; (3) that the employer took an adverse action against them; and (4) that there is a nexus between the protected activity and the adverse action. McKenna v. Weinberger, 234 U.S. App. D.C. 297, 729 F.2d 783, 790 (D.C. Cir. 1984). See generally 1 Lindeman & Grossman, Employment Discrimination Law, supra at 650. Once the employer has articulated a legitimate, nondiscriminatory reason for the discharge, the plaintiff must prove by a preponderance of the evidence that the articulated reason was not the real reason but was a pretext for retaliation.
ServiceMaster seeks summary judgment on these claims, contending that Plaintiffs Haynes-Bey, Caldwell and Nur failed to show that they engaged in protected activity under Title VII and that they have failed to establish a causal connection between the adverse action and the protected activity. ServiceMaster's motion will be denied. Plaintiffs have offered evidence that they requested a meeting with Ledbetter to complain about the treatment that they had received from McClun. Later, McClun approached Caldwell, stating that she had been told that Caldwell said that the problems with between them were based on race. This creates a genuine issue of material fact whether Plaintiffs complained to Ledbetter about McClun's alleged unlawful employment practices, see, e.g., Caldwell Dep. TR at 78, 80 & 84-85,
and whether they were later terminated in retaliation for those complaints. This is cognizable under Title VII, see 1 Lindeman & Grossman, Employment Discrimination Law, supra at 650 & 655-57, and Plaintiffs' deposition testimony is sufficient to create a genuine issue of material fact as to both. Therefore, ServiceMaster's motion for summary judgment on the retaliation counts will be denied.
Accordingly, it is hereby
ORDERED that Defendant Norrell's motion for summary judgment is granted; in accordance with Fed.R.Civ.P. 58, judgment will be entered separately in favor of Norrell as to Counts 9 through 12; it is
FURTHER ORDERED that Defendant ServiceMaster's motion for summary judgment is granted in part and denied in part. ServiceMaster's motion will be granted as to Plaintiffs Caldwell, Nur, Haynes-Bey and Morris' claims of sex discrimination in Counts 1 through 4; it will be granted as to Plaintiffs Haynes-Bey, Nur and Morris' hostile environment claims in Counts 2, 3 and 4; and it will be denied as to the retaliation claims of Plaintiffs Caldwell, Nur and Haynes-Bey in Counts 5, 6 and 8. Accordingly, Judgment will be entered separately in favor of ServiceMaster; and it is
FURTHER ORDERED that a status/settlement conference will be set for June 27, 1997 at 9:15 a.m. to set dates for the pretrial conference and the jury trial on the remaining issues. Prior to the status/settlement conference, counsel for Plaintiffs and counsel for ServiceMaster are to meet and confer regarding the possibility of settling those counts that remain. Should this matter not be settled prior to the status/settlement conference, counsel shall be prepared to continue the settlement discussions at the status/settlement conference on June 27th. If settlement discussions are necessary on June 27th, counsel shall ensure that they have direct and immediate access to their principals, by telephone or otherwise, in order to facilitate settlement.
IT IS SO ORDERED.
June 12, 1997.
JOYCE HENS GREEN
United States District Judge
In accordance with the Memorandum Opinion and Order issued this date and pursuant to Fed.R.Civ.P. 58, judgment is entered in favor of Defendant Norrell and against Plaintiffs Caldwell, Nur, Haynes-Bey and Morris on Counts 9 through 12; judgment is entered in favor of Defendant ServiceMaster on each Plaintiff's sex discrimination claim as contained in Counts 1 through 4; and judgment is entered in favor of ServiceMaster on Plaintiffs Nur, Haynes-Bey and Morris' hostile environment claims as contained in Counts 2, 3 and 4.
IT IS SO ORDERED.
June 12, 1997.
JOYCE HENS GREEN
United States District Judge