Bailey v. Commerce National Insurance Services, Inc. ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
2-29-2008
Bailey v. Commerce Natl Ins
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1777
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 07-1777
KIMBERLEY A. BAILEY,
Appellant
v.
COMMERCE NATIONAL INSURANCE SERVICES, INC.,
A NEW JERSEY CORPORATION
On Appeal from the United States District Court
for the District of Delaware
Civil No. 05-CV-00183
District Judge: The Honorable Sue L. Robinson
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
February 15, 2008
Before: SLOVITER, and SMITH, Circuit Judges,
DIAMOND, District Judge *
(Filed: February 29, 2008)
OPINION
*
The Honorable Gustave Diamond, Senior District Judge for the United States
District Court for the Western District of Pennsylvania, sitting by designation.
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DIAMOND, District Judge.
Appellant Kimberley A. Bailey (“Bailey”) is a former employee of Commerce
National Insurance Services, Inc. (“Commerce”). Bailey claims that the termination of
her employment by Commerce was motivated by retaliation in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The District Court granted
Commerce’s motion for summary judgment. We will affirm.
I.
As we write primarily for the parties, we will discuss only those facts relevant to
our analysis. Bailey began her employment with Commerce on August 27, 2001, as a
customer service representative in Delaware. Bailey later was promoted to the position of
sales and service supervisor of Commerce’s Main Street Department (“the Department”),
also located in Delaware. At that time, Steven Duncan, who was director of the
Department, was Bailey’s supervisor.
On April 3, 2003, Bailey submitted a letter to Commerce’s Human Resources
Department alleging that Duncan had sexually harassed her (the “internal complaint”).
Bailey subsequently met with Deborah Watson, who was Commerce’s Vice President of
Human Resources, and Bruce McKelvy, another official in the Human Resources
Department, to discuss the situation. Commerce then conducted an investigation of
Bailey’s allegation against Duncan. At the conclusion of the investigation, Commerce
determined that Duncan had not sexually harassed Bailey, but he had acted
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inappropriately. As a result, Commerce terminated Duncan. However, through the
investigation, Commerce found that Bailey had engaged in certain unprofessional conduct
that it thought she should correct in light of her position as a supervisor. Accordingly,
Commerce requested that Bailey complete various in-house training courses.
Duncan was replaced as director of the Department by Mary Corcoran, who
transferred to the Department from another office. When Corcoran took over as director
of the Department, she was not aware of Bailey’s internal complaint or the ensuing
investigation. In fact, Corcoran did not learn of Bailey’s internal complaint until after she
was terminated. This was because Corcoran did not have any files relating to the internal
complaint or the investigation in her Delaware office, and the Commerce Human
Resources Department, which had conducted the investigation, did not inform Corcoran
about the matter. Furthermore, nothing relating to Bailey’s internal complaint was placed
in her personnel file.
Corcoran had the reputation within Commerce of being a forceful manager with
high standards. On one occasion after Corcoran became Bailey’s new supervisor,
Corcoran requested that Bailey go home to change her clothes because of a dress code
violation. On another occasion, Corcoran counseled Bailey on her writing style in e-mail
communications. Corcoran also removed several sales people from Bailey’s supervision
and removed her from a project on which she had been working.
The incident which ultimately led to Bailey’s termination occurred on August 12,
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2003. Valerie Oakes, who was one of Bailey’s subordinates, asked her for assistance on a
matter. Bailey responded directly to Oakes with profanity. At Corcoran’s request, Oakes
documented the incident in an e-mail. Bailey was terminated on August 27, 2003, for
inappropriate conduct toward a subordinate and violation of company policies. Corcoran
made the decision to terminate Bailey, and she was supported in her decision by Joe
Morrissey, who was her supervisor, as well as Deborah Watson of Human Resources.1
Bailey filed suit against Commerce in the District Court for the District of
Delaware, claiming that her termination by Commerce was motivated by retaliation for
her internal complaint against Duncan. The District Court granted summary judgment in
favor of Commerce, finding that Bailey failed to produce evidence of a causal link
between her protected activity and her termination sufficient to establish a prima facie
case of retaliation, and, even if Bailey were able to establish causation, she would be
unable to rebut the legitimate reasons Commerce set forth to explain its decision to
terminate her. Bailey now appeals, challenging the District Court’s grant of summary
judgment.
II.
We have jurisdiction over the final order of the District Court pursuant to 28
1
In response to Bailey’s interrogatories, Commerce indicated that the decision to
terminate Bailey was made collectively by Corcoran, Watson, Morrissey and McKelvy.
See Appellee’s App. at 130. However, both Corcoran and Watson clarified in their
deposition testimony that Corcoran decided to terminate Bailey, and Morrissey and
Watson supported that decision. Id. at 150, 165, 227.
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U.S.C. § 1291. We review a grant of summary judgment de novo and apply the same
standard as the District Court. MBIA Ins. Corp. v. Royal Indem. Co., 426 F.3d 204, 209
(3d Cir. 2005). We must examine all of the evidence in the light most favorable to the
nonmoving party to determine if there is a genuine issue of material fact. Orsatti v. New
Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995). In determining whether a dispute is
genuine, the court’s function is to decide “whether the evidence of record is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.In order to establish a prima facie case of discriminatory retaliation, a plaintiff
must show that (1) she engaged in protected activity, (2) the employer took an adverse
employment action against her, and (3) there was a causal link between her protected
activity and the employer’s adverse action. Kachmar v. SunGard Data Sys., Inc., 109
F.3d 173, 177 (3d Cir. 1997). In this case, only the third element is at issue. To sustain
her claim of retaliation, Bailey must be able to produce evidence of a causal connection
between her internal complaint alleging she was sexually harassed by Duncan and the
termination of her employment four months later.
In Kachmar, we explained that proof of causation may be established in a number
of ways. Causation may depend on the temporal proximity between the employee’s
protected activity and the adverse employment action. Id. Temporal proximity can serve
as circumstantial evidence “sufficient to raise the inference that [the plaintiff’s] protected
activity was the likely reason for the adverse action.” Id. (quoting Zanders v. National
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R.R. Passenger Corp., 898 F.2d 1127, 1135 (6 th Cir. 1990)). Absent temporal proximity,
“circumstantial evidence of a ‘pattern of antagonism’ following the protected conduct can
also give rise to the inference.” Kachmar, 109 F.3d at 177. Temporal proximity and a
pattern of antagonism, however, “are not the exclusive ways to show causation, as the
proffered evidence, looked at as a whole, may suffice to raise the inference.” Id.In the present case, Bailey fails to establish causation on the basis of temporal
proximity. The fact that Bailey’s termination occurred after she made her internal
complaint is not sufficient to infer a causal link, as the elapsed period of four months
between her protected activity and termination is not unusually suggestive of retaliatory
motive. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citing
favorably Hughes v. Derwinski, 967 F.2d 1168, 1174 (7 th Cir. 1992), which rejected an
inference of retaliation where the events were four months apart).
Bailey also fails to establish causation by a “pattern of antagonism” after her
internal complaint. Duncan, the supervisor who Bailey claimed sexually harassed her,
was terminated and replaced by Corcoran. The circumstances which led to Bailey’s
termination occurred when she was supervised by Corcoran, who was not aware of the
internal complaint or the ensuing investigation, a fact which Bailey acknowledged in her
deposition testimony. Thus, without any knowledge of Bailey’s internal complaint,
Corcoran decided to terminate Bailey following her use of profanity toward a subordinate,
and that decision was supported by other Commerce officials. In Jones v. School District
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of Philadelphia, 198 F.3d 403, 415 (3d Cir. 1999), we affirmed a grant of summary
judgment on a retaliation claim under Title VII where there was no evidence that the
principals who made the decision to fire the plaintiff were aware of the protected action.
Likewise, here, the District Court correctly entered summary judgment in favor of
Commerce because it was Corcoran’s decision to fire Bailey and she was unaware of the
protected action.
Although temporal proximity and a pattern of antagonism are not the exclusive
ways to show causation, the proffered evidence, viewed as a whole, does not raise the
inference of retaliation in this case. See Kachmer, 109 F.3d at 177. Aside from Bailey’s
own conclusory assumptions, there is not sufficient evidence in the record to indicate a
causal link between her internal complaint and her termination. For this reason, as well
as those stated above, the District Court did not err in holding that Bailey failed to meet
the required causation element necessary for establishing a prima facie case of
retaliation.2
III.
We see no error in the District Court’s grant of summary judgment in favor of
2
We note that even if Bailey could establish a prima facie case of retaliation by
showing causation, she would be unable to demonstrate that Commerce’s stated reason
for terminating her employment was pretextual. Particularly, regarding Bailey’s use of
profanity, although the record indicates that other employees used profanity when
presented with stressful situations at work, the record does not indicate that others
directed profanity at their subordinates, as Bailey did in the situation involving Oakes.
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Commerce. For all of the above reasons, we will affirm the District Court’s judgment.
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