Poss v. Charles E Smith Real ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRENT E. POSS,
Plaintiff-Appellant,
v. No. 96-1931
CHARLES E. SMITH REALTY COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-95-1556-A)
Submitted: January 27, 1998
Decided: June 19, 1998
Before ERVIN and WILKINS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Jeffrey I. Ehrlich, LAW OFFICES OF JEFFREY I. EHRLICH,
Washington, D.C.; Jonathan C. Dailey, LAW OFFICES OF JONA-
THAN C. DAILEY, Washington, D.C., for Appellant. Thomas P.
Murphy, Eric A. Welter, REED, SMITH, SHAW & MCCLAY,
McLean, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Brent Poss appeals from the district court's order granting sum-
mary judgment to Charles E. Smith Realty Company (Smith Realty)
and dismissing his sexual discrimination complaint. Poss was
employed as a utility maintenance man by Smith Realty, which man-
ages Concord Village, an apartment town house complex. Poss's
direct supervisor was the engineer at Concord Village, Will Smith,
who supervised the maintenance staff.
Soon after Poss began working for Smith Realty, he was
befriended by Roland Zabala, the assistant property director at Con-
cord Village. Poss alleges that about two weeks after he started work-
ing at Concord Village, he went to Zabala's apartment to pay Zabala
the remainder of the money he owed for a video cassette recorder he
bought from Zabala and Zabala made a homosexual advance towards
Poss. As Poss stood at Zabala's door, Zabala asked him if he wanted
to come back that night and watch a pornographic movie with him.
Poss reluctantly responded, "yeah." Zabala told Poss to bring a con-
dom because "things might get intimate." Poss asked, "what?" Zabala
responded, "it's just going to be me and you alone. Things might get
intimate."
Poss replied, "I don't do that." Poss further stated, "you're lucky
if I don't tell Will tomorrow." Zabala replied that Poss would not be
believed because he had only worked for the company for two weeks,
while Zabala had worked for Smith Realty for over a year and that
Poss would end up getting fired. Poss then walked away from
Zabala's apartment. Poss did not immediately report this incident to
anyone. Zabala denies that this incident took place.
Poss alleges that Zabala retaliated against him for rejecting his
homosexual advance on six subsequent occasions. Poss filed a Title
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VII complaint against Smith Realty. The district court dismissed one
of the counts with prejudice and granted Smith Realty's motion for
summary judgment as to all remaining issues. Poss timely appeals.
On appeal, Poss claims that there are genuine issues of material
fact as to whether Poss was the victim of quid pro quo sexual harass-
ment and whether he was constructively discharged. Smith Realty
contends that Poss did not properly raise a claim of quid pro quo sex-
ual harassment in his complaint. We find that it is unnecessary to
determine whether the claim was properly raised in the complaint
because, in any event, Poss has not established a claim of quid pro
quo sexual harassment.
This court reviews a district court's grant of summary judgment de
novo and affirms only if the record reveals no genuine issue of mate-
rial fact. See Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). A gen-
uine issue of material fact exists when the evidence presents a
sufficient disagreement to require submission to a jury. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). In ruling on a
motion for summary judgment, a court must assess the evidence in the
light most favorable to the non-moving party. See Miller v. Leathers,
913 F.2d 1085, 1087 (4th Cir. 1990).
Sexual discrimination can be categorized as either hostile work
environment harassment, or quid pro quo harassment. See Spencer v.
General Elec. Co., 894 F.2d 651, 658 (4th Cir. 1990). Quid pro quo
harassment can be established by proving each of five prima facie ele-
ments. See id. Once the prima facie case is established, a presumption
arises that the plaintiff has suffered quid pro quo sexual harassment
and the burden of production shifts to the defendant to rebut this pre-
sumption with legitimate, nondiscriminatory reasons for the employ-
ment decision in question. See id. at 659. If the presumption is rebut-
ted, the burden of production returns to the plaintiff to show that the
defendant's proffered nondiscriminatory reasons are pretextual and
that the employment decision was based on a sexually discriminatory
motive. See id. Throughout this shifting scheme of evidentiary bur-
dens, the ultimate burden of persuasion remains with the plaintiff. See
id. Furthermore, employers are strictly liable for quid pro quo sexual
harassment by supervisors. See Katz v. Dole, 709 F.2d 251, 255 n.6
(4th Cir. 1983).
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Smith Realty contends that Poss is not in a protected group--one
of the requirements of a quid pro quo claim--because he is alleging
same-sex sexual harassment by a homosexual. We find that this issue
need not be resolved in this case because Poss has not established a
quid pro quo sexual harassment claim.
This court has noted that quid pro quo sexual harassment is "``ha-
rassment in which a supervisor demands sexual consideration in
exchange for job benefits.'" Katz, 709 F.2d at 254 (quoting Henson
v. City of Dundee, 682 F.2d 897, 908 n.18 (11th Cir. 1982)). Poss
does not allege nor does the evidence establish, however, that Zabala
requested sexual favors from him in exchange for favorable job bene-
fits. Accordingly, Poss has failed to establish a claim of quid pro quo
sexual harassment.
Poss next contends that the district court erroneously granted sum-
mary judgment to Smith Realty on his constructive discharge claim.
Poss alleges that he was constructively discharged when he quit.
In this circuit, the standard for constructive discharge requires a
plaintiff to establish both intolerable working conditions and a delib-
erate effort by the employer to force the employee to quit. See Martin
v. Cavalier Hotel Corp., 48 F.3d 1343, 1353-54 (4th Cir. 1995);
Johnson v. Shalala, 991 F.2d 126, 131 (4th Cir. 1993). Poss has nei-
ther shown intolerable working conditions nor a deliberate effort by
Smith Realty to force Poss's resignation. As the district court noted,
Poss established an isolated incident of sexual harassment about
which Poss did not immediately complain. As for the other six com-
plained of incidents, Poss admitted that two were justified. The other
four were of a relatively de minimis kind of disciplinary action and
Poss did not provide any direct evidence that Zabala was involved in
them. Thus, Poss has not established intolerable working conditions.
Because Poss has failed to demonstrate intolerable working condi-
tions, it is unnecessary to address the deliberateness of Smith Realty's
actions. See Shealy v. Winston, 929 F.2d 1009, 1013 (4th Cir. 1991).
Accordingly, we affirm the district court's order granting summary
judgment to Smith Realty and dismissing Poss's discrimination com-
plaint. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
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and argument would not aid the decisional process.
AFFIRMED
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