Equal Employment Opportunity Commission v. Cromer Food Services, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1476
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff - Appellant,
v.
CROMER FOOD SERVICES, INCORPORATED,
Defendant - Appellee.
No. 10-1552
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff - Appellee,
v.
CROMER FOOD SERVICES, INCORPORATED,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:08-cv-03249-HMH)
Argued: January 26, 2011 Decided: March 3, 2011
Before MOTZ, KING, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished opinion. Judge Gregory
wrote the opinion, in which Judge Motz and Judge King joined.
ARGUED: Corbett Anderson, U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Equal Employment Opportunity
Commission. Sarah Ganss Drawdy, THE DRAWDY LAW FIRM, LLC,
Anderson, South Carolina, for Cromer Food Services,
Incorporated. ON BRIEF: P. David Lopez, General Counsel,
Carolyn L. Wheeler, Acting Associate General Counsel, Lorraine
C. Davis, Assistant General Counsel, U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Equal Employment
Opportunity Commission.
Unpublished opinions are not binding precedent in this circuit.
2
GREGORY, Circuit Judge:
This case involves alleged sexual harassment in violation
of Title VII of the Civil Rights Act of 1964. Homer Ray Howard,
an employee of Cromer Food Services (“CFS”), claimed to suffer a
daily barrage of lewd comments and gestures by employees of CFS’
biggest client. Rather than intervene, CFS told him there was
nothing that could be done because the harassers were not under
its control. Howard then filed a complaint with the Equal
Employment Opportunity Commission (“EEOC”). The EEOC brought
suit on his behalf. After discovery, CFS moved for summary
judgment, which the district court granted. Because Howard has
articulated sufficient facts to show that it would be reasonable
to conclude his employer had actual or constructive notice of
the harassment and failed to take any corrective action, we
vacate and remand for trial.
I.
The following facts are undisputed unless otherwise noted.
We recount them in the light most favorable to the EEOC, the
nonmovant.
CFS is a food-stocking company that sells snacks and
beverages in vending machines that it places on its clients’
premises. Its biggest client is Greenville Hospital. Howard
began working for CFS in July of 2006 as a route driver. He
3
worked on the second shift, 3:00 p.m. to 11:00 p.m., servicing
the vending machines at Greenville Hospital. He had a
regularized schedule where he would wind his way upstairs from
the snack bar or cafeteria with scheduled stops in between.
Following an incident with a co-worker who left a note in
the hospital canteen calling him gay, Howard began to be
harassed on a daily basis at the hands of two hospital employees
who referred to him as “Homo Howard.” These two employees, John
Mills and Andre McDowell, were housekeepers. Starting in early
December 2006, they made unwanted sexual comments in nearly
every encounter they had with Howard, including graphic
discussions of oral sex that featured the two men groping
themselves and propositioning Howard. Howard wanted to walk
away but because the comments were made while he was stocking
the vending machines, he could not leave without abandoning his
duties. Mills and McDowell knew Howard’s schedule and would
wait for him at the machines so frequently that Howard felt
“stalk[ed].” J.A. 78, 84-85, 100. Both men deny that they
harassed Howard.
CFS failed to take adequate action to combat the harassment
on behalf of the hospital employees. C.T. Cromer, the chairman
of the company’s Board of Directors, claims this was because he
was unaware of the harassment or at least unaware of the scale
on which it was occurring. Howard, however, contends that he
4
made both CFS and the hospital aware of what was going on as
soon as it began. After the first incident, Howard spoke to his
supervisor, Gregg Adams, telling him “there was some gentlemen
at the hospital that were asking me homosexual questions, asking
me was I gay.” J.A. 89. Adams made light of the events,
telling Howard to let it go, that the men were only joking. He
did not ask for additional information to rectify the problem.
The employee sexual harassment policy, which Howard signed upon
being hired, requires employees to report harassment to the
president of the company. Howard never reported the harassment
to Brent Cromer, who was the head of the company, and testified
that he did not even know who the president was. J.A. 119. The
harassment policy also requires any employee “who becomes aware
of any harassment of any employee by a non-employee [to] report
such harassment to the president of Cromer Food Services.” J.A.
63. Adams did not follow this directive.
In addition to Adams, Howard also reported the problem to
his direct supervisor, Brian Tyner. Howard asked if there were
a way to address the problem such as switching routes. Tyner’s
reply was “it was just a joke” and not to take things too
seriously because “faggots are ignorant, retarded people, and
Homer, I know you’re not retarded.” J.A. 89-90. The next week,
Howard told another supervisor, Gary Roper, about the problem.
J.A. 90. Roper replied that it was unfortunate that the
5
situation was being handled as it was, but that Adams had
already dealt with it. Id.
As the harassment continued unabated, in late December or
early January Howard spoke to Chet Cromer, one of the sons of
the chairman of the Board of Directors and a manager with the
company, and told him “what was going on.” J.A. 91. Chet told
Howard he would speak with his father, which he did. Id. That
very night, Howard met with C.T., who was visibly upset by the
situation. The first words out of his mouth were “[d]o you not
realize this could cost me everything?” J.A. 92. He started to
“rambl[e]” so much that Howard could not get a word in edgewise.
J.A. 93. Howard does not remember whether or not he disclosed
the names of his harassers in the meeting, but he knows he was
never asked for their names. J.A. 130, 135. Howard testifies
that he met with C.T. again in January to tell him the situation
was getting worse. C.T.’s response, which directly contradicted
the company harassment policy, was that he was not responsible
for the hospital but only responsible for CFS employees.
As the harassment continued, Howard took progressively more
drastic measures to stop it. In January, he reported the
harassment directly to Greenville Hospital, speaking to an
unidentified woman in the human resources department. Nothing
happened as a result of that report. He also complained to
Ronnie Galloway, Mills’ and McDowell’s supervisor, about their
6
actions. Galloway took action and the harassment stopped for
“[p]robably two days.” J.A. 125. However, it quickly resumed.
In response Howard remembers “constantly” telling Adams that the
harassment at the hospital continued unabated. J.A. 100. He
told Adams that the men were “following him” around the hospital
and waiting for him to get there, as well as making lewd and
vulgar comments about sex, but Adams only laughed it off and
told him not to take the comments seriously. Id.; J.A. 139.
When Howard asked if he could switch to another second-shift
route he believed was available that would not entail him going
to the hospital, Adams told him to quit whining and that he was
under contract at the hospital. Adams’ version of the facts
differs from Howard’s. In his deposition testimony, Adams
claimed he only remembered receiving one complaint from Howard
in February of 2007 about a one-time incident, not a pervasive
and hostile environment. Adams did not report the complaint as
he did not consider it to be sexual harassment.
On March 6, 2007, Howard decided to report the daily
harassment to the EEOC. CFS received a report of what happened
shortly thereafter. The same day, C.T. called Howard into his
office and told him he got “this stupid letter from the EEOC.”
J.A. 102. According to Howard, the meeting only lasted a few
minutes and C.T. told Howard he did not want to hear about it.
C.T.’s description of the meeting differs from Howard’s. In his
7
deposition, C.T. claims that he thought that Howard’s failure to
give specifics proved that he was lying about the details of the
harassment. According to C.T., Howard’s refusal to give names
or to turn over the note suggests that he was making things up.
Despite purportedly believing that Howard was a liar, C.T. acted
to protect his employee. As a result of the details that C.T.
claims emerged for the first time in this meeting, he decided
that it was unacceptable for Howard to continue working at the
hospital. Therefore, he immediately and in writing offered him
a position on the first shift, which was from 4:00 a.m. to 3:30
p.m. Mondays through Fridays, with a thirty-minute unpaid lunch
break.
The hours worked as part of the first shift increased to
fifty-five per week from forty hours per week. The pay was $10
per hour for the first forty hours and $15 per hour thereafter
with weekly pay coming to $625. Because overtime was mandatory,
the effective pay rate was $11.26 per hour. By contrast, and
according to the EEOC’s calculations, the pay for Howard was
$12.50 per hour for his original second shift position. This
calculation includes the $100 weekly advance on his annual bonus
that was paid on top of his $400-a-week salary and which he
would only be able to keep if he worked at the company for a
year. CFS disputes whether the advance is properly included in
the calculations, and alleges that his actual pay was $10 per
8
hour. Regardless of the pay, Howard declined to take the new
shift, which allegedly conflicted with his childcare
responsibilities. Because the shift was a “take it or leave it”
offer, Howard claims he was terminated as a result of his
choice.
The EEOC brought suit shortly thereafter. The district
court in South Carolina granted summary judgment to the
defendant. In reaching this conclusion, the district court
rejected a magistrate judge’s recommendation that it deny
summary judgment. Specifically, the district court found that
although there was a dispute of fact regarding when CFS was
aware of harassment, this dispute was immaterial because CFS
lacked the requisite details regarding the harassment to take
curative action. In reaching this conclusion, the district
court focused on one snippet of Howard’s deposition testimony,
where Howard said “no” when he was asked if he provided details
of the harassment to Adams or other employees of CFS. J.A. 139-
40, 18. However, other evidence from the record made plain that
Howard attempted on numerous other occasions to alert CFS to the
nature of the harassment, and had effectively been stonewalled.
J.A. 130 (“Q: Do you think you could have given [C.T.] more
information so that he could go to Greenville Hospital and file
a formal complaint? . . . A: No. Because C.T. already had it
in his mind, it’s not his problem.”); J.A. 105 (“What details
9
did you tell [C.T.] about the harassment? . . . A: With C.T.,
I was explaining to him that the gentlemen are very aggressive,
very vulgar, very sexually-oriented, stalking. And that’s about
as far as you can get.”); J.A. 100 (“Q: Did you tell [Gregg]
the details? A: I told him a couple of incidents where
‘They’re following me around. They’re stalking me in certain
areas of the hospital, waiting for me to get there.’ And as any
other conversation, he thought it was funny.”); J.A. 89 (“Q:
What did you say to [Gregg]? A: And I told him there was some
gentlemen at the hospital that were asking me homosexual
questions, asking me was I gay. And I told him I didn’t find it
very pleasing. And his comment was, ‘Homer, it was just a joke.
Let it go.’ And I said I didn’t find it a joke. And he said,
‘It’s time to go, get on your route, and head on out.’”).
Further, according to Howard’s testimony, none of the managers
to whom he reported the harassment asked for names or details.
J.A. 135, 140-41. 1
1
At oral argument, counsel for the EEOC contended that
Howard stated that if asked for the names he would have provided
them. Counsel did not provide a cite to the Joint Appendix,
and, after scouring the record, we find no such statement.
10
II.
We review a grant of summary judgment de novo, applying the
same test as the district court. EEOC v. Fairbrook Med. Clinic,
P.A, 609 F.3d 320, 327 (4th Cir. 2010) (citations omitted).
Importantly, we “view the facts and draw reasonable inferences
in the light most favorable to the non-moving party, here the
EEOC.” Id. at 322 (internal quotations omitted). That means
that evidence supporting CFS should be disregarded unless it is
“uncontradicted and unimpeached, at least to the extent that the
evidence comes from disinterested witnesses.” Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133, 151 (2000). Further,
the court may not make credibility determinations or weigh the
evidence, a function that is reserved for the jury. Id. at
150. Importantly, this means considering the evidence as a
whole rather than zooming in and focusing on deposition
testimony that is taken out of context or is viewed in
isolation.
III.
To make out a claim for sexual harassment, the plaintiff
must establish four elements: (1) the harassment was unwelcome;
(2) was based on sex; (3) was sufficiently severe or pervasive
to alter conditions of employment and create an abusive
atmosphere; and (4) was imputable to the employer. EEOC v.
11
Central Wholesalers, Inc., 573 F.3d 167, 174-75 (4th Cir. 2009).
Because the fourth element is the only one challenged, it is the
only one we address here.
The Fourth Circuit has yet to consider whether an employer
may be liable for the activities of non-employees in a claim for
sexual harassment. Other Circuits to address the issue have
adopted a negligence standard, finding that an employer can be
liable if it took no steps to protect its employees and if it
had actual or constructive knowledge of the situation. See Dunn
v. Washington County, 429 F.3d 689, 691 (7th Cir. 2005)
(employers, which have an “arsenal” of tools at their disposal,
can be liable for the acts of independent contractors if they
fail to take corrective action); Galdamez v. Potter, 415 F. 3d
1015, 1022 (9th Cir. 2005) (employer can be liable for third
parties if it ratifies their actions by failing to act); Watson
v. Blue Circle, Inc., 324 F.3d 1252, 1258 n.2 (11th Cir. 2003)
(employer can be liable for acts of its customers if it knew or
should have known of actions); Turnbull v. Topeka State Hosp.,
255 F.3d 1238, 1244 (10th Cir. 2001) (adopting a negligence
standard in this context). EEOC regulations are also to the
point, providing that an employer “may also be responsible for
the acts of nonemployees, with respect to sexual harassment of
employees in the workplace where the employer (or its agents or
supervisory employees) knows or should have known of the conduct
12
and fails to take immediate and appropriate corrective action.”
29 C.F.R. § 1604.11(e) (internal citations and quotations
omitted). The analysis is very similar to the standard used by
this Circuit in the context of harassment of co-workers. See
Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333-34 (4th
Cir. 2003) (“The employer may be liable in negligence if it knew
or should have known about the harassment and failed to take
effective action to stop it.”) For the purposes of the instant
litigation, and because both parties urge us to do so, we adopt
a negligence standard commensurate with the above precedents.
Thus CFS is liable if it knew or should have known of the
harassment and failed to take appropriate actions to halt it.
Appellee argues, and the district court agreed, that CFS
did not have actual or constructive knowledge of the harassment
because the complaints that Howard lodged were vague and
insufficiently detailed for CFS to take action. Further, it
argues, Howard failed to follow the sexual harassment protocol
that required incidents be made known to the company president.
But such reasoning ignores the clear evidence in the record that
Howard tried to communicate the nature and extent of the
harassment and was effectively ignored by all levels of CFS
management who scoffed at him and told him to quit being such a
“crybaby.” J.A. 140. If Howard’s deposition testimony is
credited, as it must be, then whatever paucity of details that
13
resulted from his complaints are due to the company’s own
decision not to listen to him. For example, he mentions that he
tried to tell C.T. but could not get a word in edgewise. He
also reported the incidents numerous times to his supervisor,
Adams, but was rebuffed at every turn. Furthermore, Howard did
communicate details about the harassment, including recounting a
couple of incidents, to Adams, who laughed at him and took it as
a joke despite Howard’s clear sentiments to the contrary. And,
crediting Howard’s testimony, the company also failed to ask him
follow-up questions or request the names of the harassers.
In this situation, it is hardly fair to fault Howard for
failing to communicate more information about the incidents or
for ineffectively conveying their gravity. To do so would be a
perversion of the law of anti-harassment, which although
requires notice to the employer, does not and should not require
it to be pellucid. Even if it is true that Howard refused to
give names, CFS still had a duty to investigate or take other
measures to combat the harassment. Indeed, other employees
reported problems to the hospital which were solved, indicating
that such a solution was available here as well. Further, the
fact that the hospital took some steps to combat the harassment
suggests that Howard was, in fact, communicating a sufficient
degree of detail to facilitate curative action.
14
Appellee cites Madray v. Public Supermarkets, Inc., 208
F.3d 1290, 1300 (11th Cir. 2000), for the proposition that once
the employer has “promulgated an effective anti-harassment
policy and disseminated that policy and associated procedures to
its employees . . . it is incumbent upon the employees to
utilize the procedural mechanisms established by the company
specifically to address problems and grievances.” Id.(citations and quotations omitted). There, the Eleventh Circuit
held that an employee who had not followed the anti-harassment
policy had not effectively put the company on notice. Id. This
is not the approach taken by the Fourth Circuit. In Ocheltree,
this Court found that claims of harassment could not be avoided
through the adoption of a “see no evil, hear no evil” strategy.
335 F.3d at 334. Rather, knowledge can be imputed to an
employer if a “reasonable [person], intent on complying with
Title VII, would have known about the harassment.” Id.Further, knowledge may be constructive if the employer does not
provide reasonable procedures to register complaints. Id.On the facts here, a reasonable person would have known
about the harassment given Howard’s vocal and vociferous
complaints to practically anyone who would listen. Furthermore,
the company policy obligates those who become aware of
harassment to report it up the chain of command, a protocol
which fell by the wayside. See Williamson v. City of Houston,
15
148 F.3d 462, 466 (5th Cir. 1998) (duty to report up sufficient
to trigger liability on part of the company); Restatement
(Second) of Agency § 275 (1958) (“the principal is affected by
the knowledge which an agent has a duty to disclose to the
principal or to another agent of the principal to the same
extent as if the principal had the information.”). Finally, the
company’s policy itself is somewhat questionable in requiring
the employees of a 100-person cadre to report directly to the
president. An employee might be easily intimidated and fail to
report it such that the company would be technically insulated
from liability. We do not find such a result just or proper.
EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 320 (4th Cir. 2008)
(“[e]vidence of repeated complaints to supervisors and managers
creates a triable issue as to whether the employer had notice of
the harassment.”). Finally, as here, an employee may lack
knowledge of the higher-ups; we do not think such ignorance is
justification for inaction on the part of the company sued.
CFS points to a snippet of Howard’s deposition: “Q: Did
you ever report your problem to the president of the company?
A: No. No, I didn’t.” J.A. 119. But this needs to be placed
in context because Howard explains that C.T. Cromer was out of
town for the Christmas holidays, and that’s why he reported the
16
incident to Adams in his stead. 2 The evidence when viewed in the
light most favorable to the EEOC showed that numerous
individuals laughed at and belittled his complaints or adopted
an ostrich-in-the-sand approach. J.A. 89 (“Homer, it was just
a joke. Let it go.”).
CFS next contends that it acted promptly to protect Howard
as soon as it had sufficient information about what was
occurring in the hospital. In other words, the offer to
transfer Howard from second shift to first shift, which would
have changed his route not to include Greenville Hospital, was
enough to fulfill its obligations to him. But the record does
not include evidence that the shift would have allowed Howard to
drive his young child to hospital appointments, his stated
reason for preferring a second-shift slot. Even if it is true
that he could have worked around it, as CFS implies, if it still
resulted in Howard being worse off, it is unacceptable as a
remedial measure. See Guess v. Bethlehem Steel Corp., 913 F.2d
463, 465 (7th Cir. 1990) (“A remedial measure that makes the
victim of sexual harassment worse off is ineffective per se.”).
Furthermore, corrective action is not enough if it is too
2
It should be noted that while technically Brent Cromer was
CFS’ president, C.T. Cromer, the chairman of the Board,
essentially ran the show as Brent Cromer admitted in his
deposition. JA 252. Thus, Howard was reasonably confused
regarding to whom he should report the harassment.
17
little, too late. Id. That is exactly the case here. Howard
endured months of inaction between when he first alerted his
employer of the problem, in December, to its eventual offer to
transfer him, which came in late March. Indeed, there were many
alternatives that may have been available to the employer that
suggest themselves when the facts are viewed in the light most
favorable to the EEOC and that may be substantiated at trial.
Perhaps, for example, CFS could have availed itself of its
relationship with Greenville Hospital and asked the management
there to investigate and, if proper, to discipline the relevant
employees. Alternatively, it could have petitioned its
employees who were on second shifts to see if they would switch
routes with Howard. But no matter how the facts are spun, CFS’
actions were hardly an effective remedy.
IV.
The next question, closely related to the previous, is
whether a reasonable jury could find that CFS’ decision to
switch Howard from the second to first shift constituted
unlawful retaliation for his decision to file an EEOC complaint.
In order to support a claim for retaliation, there must be
sufficient evidence that (1) the employee engaged in a protected
activity; (2) the employer acted adversely; and (3) a causal
connection between (1) and (2) exists. Holland v. Washington
18
Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007). CFS argues on
appeal that its decision to transfer was not adverse; it does
not claim that there was no causal connection between the two.
Therefore, we only address the second prong here.
In Burlington Northern v. Santa Fe Railway Co., 548 U.S. 53(2006), the Supreme Court established the framework for what
constitutes adverse action. It held that it is any action that
might “dissuade a reasonable worker from making or supporting a
charge of discrimination.” Id. at 57. Materiality must be
considered from the vantage point of someone in the plaintiff’s
position who shares “at least some individual characteristics
with the actual victim” such as “age, gender, and family
responsibilities.” Id. at 79.
Here, a jury could easily conclude that the actions taken
by CFS were adverse. First, there is a dispute of material fact
over whether Howard’s salary per hour increased or decreased.
According to the EEOC, Howard was paid $11.26 per hour for the
new shift but $12.50 per hour for his original second shift
position. Viewing these calculations in the light most
favorable to Howard, his pay per hour decreased and his number
of hours per week increased. Further, he had childcare
obligations that were interfered with. As a result, someone in
his position could find the material effects of the new shift
adverse.
19
V.
The final question is whether the district court abused its
discretion by denying CFS’ attorneys fees. Because we vacate
the district court as to liability, there is no prevailing party
at this point in the litigation. Therefore, there is no need to
consider the attorneys’ fees.
VI.
For the foregoing reasons, the decision of the district
court is
VACATED AND REMANDED.
20