Wilson v. Southern National Bk

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GRACE WILSON,
Plaintiff-Appellant,
v.
No. 95-1831
SOUTHERN NATIONAL BANK OF NORTH
CAROLINA,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CA-93-274-3-P)
Submitted: May 7, 1996
Decided: August 8, 1996
Before WIDENER, MURNAGHAN, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Shelley Blum, Charlotte, North Carolina, for Appellant. Philip M.
Van Hoy, VAN HOY, REUTLINGER & TAYLOR, Charlotte, North
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Grace Wilson appeals the district court's order granting summary
judgment to Appellee Southern National Bank of North Carolina ("the
Bank") in this action alleging employment discrimination based upon
sexual harassment. Because we find no reversible error, we affirm.
Wilson filed a complaint under Title VII of the Civil Rights Act of
1964, 42 U.S.C.A. § 2000e (West 1994), against her former
employer, the Bank. Wilson was employed at the Bank from March
13, 1991, until June 17, 1993. The complaint alleged that a male co-
worker sexually harassed Wilson and that the Bank retaliated against
her when she reported some of the alleged harassing incidents to her
supervisor. The complaint also included a state law claim for inten-
tional infliction of emotional distress.
The Bank moved for summary judgment. Wilson belatedly
opposed that motion and filed her own motion for summary judgment
without supporting depositions. The district court granted summary
judgment to the Bank. Wilson timely appealed.
I.
Wilson and the Bank have very different accounts of what hap-
pened in the workplace. However, because Wilson did not provide
supporting depositions with her motion for summary judgment, the
district court relied on the portions of her deposition submitted by the
Bank and also on the unopposed depositions filed by the Bank. We
briefly detail the alleged events below.
A. The Hand-on-Hip and Rubber Band Incidents
Wilson alleged that in October or November 1991, Eric Wright, a
co-worker in her department, put his hand on Wilson's hip, licked his
lips, and said: "umm . . . I'd like to have some of that." Wilson turned
around and told Wright to keep his hands off of her. Wright then
threw his hands up in a surrendering motion and said, "oh, oh, oh."
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The alleged incident occurred in the workplace. Later that day, Wil-
son told Wright that she did not want anyone to touch her and asked
him not to do it again. Wright responded, "okay, okay, okay." Wilson
did not report the incident to a supervisor at the time. Wright never
did this to Wilson again. Later in the week, Wright shot Wilson in the
hip with as many as three rubber bands. Wilson returned fire with a
rubber band. Other workers, all female, also shot rubber bands.
About a week after the hand-on-hip incident, Wilson complained
about that incident and the rubber band incident to her department
supervisor, Richard Burch. Within four days of receiving Wilson's
complaint, Burch sent a memo and held a meeting (with Wright pres-
ent) where he told the department employees that they should act in
a professional manner at work.
B. The Hiked Pants, Dirty Cartoons,
and "Older Women" Incidents
Wilson alleged that, after the above meeting with Burch, Wright
would "yank up his pants as high as he could get them so that [the
outline of] his genitals would show and then he would get in front of
your face." Wilson stated in her complaint that this occurred on sev-
eral occasions. In her deposition, however, Wilson stated that the
behavior occurred "25 to 30 times." Wilson would turn away and ask
Wright to stop. Wilson never reported this alleged behavior to any
member of management.
Wilson also alleged that, after the meeting with Burch, some of her
co-workers would show her "dirty cartoons." Wright brought in one
of these cartoons, but a majority of them were brought in by a female
co-worker. The department's employees, both male and female, gen-
erally laughed and joked about the cartoons. When Wright showed
Wilson a cartoon, she turned away. When a female co-worker showed
Wilson a cartoon, she said she did not want to see it. Burch saw a car-
toon and appeared to think it was funny. Wilson never reported the
cartoon incidents to management.
Wilson further alleged that Wright, who is half Wilson's age, told
Wilson twice that he preferred older women. Wilson never reported
this incident to management.
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C. The Clipboard Incident
Wilson alleged that on June 22, 1992, Wright "finished a session
of holding up his pants, . . ." while singing a song "about hips and
butts and things like that." Then, as Wilson was leaning over an office
machine that had jammed, Wright "whacked" her in the hip with a
clipboard. The whack "felt like bee stings" and Wilson was "stunned,"
"fell into the machine," "saw stars," and "had tears running from [her]
eyes." Other co-workers, mostly female, were present. Wilson alleged
that she could hear people laughing.
Wilson sought medical treatment about a week later, but did not
see a doctor because she did not have a workers' compensation report
and did not want to pay the doctor herself. Wilson eventually saw a
doctor six or seven weeks after the clipboard incident.
When the clipboard incident originally occurred, Wilson did not
report it to management because Burch was out of town. Wilson sub-
sequently reported the incident to Burch. Wilson tried three times to
relate the incident to Burch's supervisor, Sheila Ezell, but was unable
to contact her. At Burch's recommendation, Wilson told Renita Bar-
ton, an Affirmative Action Coordinator in the Bank's Personnel
Department, that "[she] had been hit [and she] had a bruise on [her]
hip." Barton asked if Wilson wanted to file a workers' compensation
claim, but Wilson declined at that time. Burch called Wright into his
office and told him that "in no circumstances should [he] ever touch
another employee, and that there certainly shouldn't be any hitting of
another employee." Burch warned Wright that actions of that sort
could lead to Wright losing his job.
After the alleged clipboard incident, Wilson felt that a female co-
worker and Wright were teasing her because she complained to man-
agement. In response to Wilson's concerns, Burch transferred Wilson
to another department where she worked in a separate room with only
one other person. Wilson also received a raise as a result of the trans-
fer. Wilson was "overjoyed" and "really appreciated" the transfer.
After the transfer, Tish Jones, a female co-worker,"would come to
the door, shut the door behind her and ask [Wilson] what [she] was
doing" and why she would not talk to Wright or Jones. Jones would
also "get closer and closer to" Wilson until Wilson "would get up,
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open the door and leave." Wright would do the same thing sometimes
and lean over Wilson. Burch told Jones and Wright to leave Wilson
alone. Wright then only entered Wilson's office once more for a busi-
ness purpose. When Jones continued to bother Wilson, Burch
instructed her to leave Wilson alone.
At some point Burch told Wilson that she was too slow and needed
to pick up the pace of her work. Wilson admits that she was not keep-
ing up with her work. Wilson resigned from her position by giving
two weeks notice. The first week of her notice she spent on vacation.
When she returned for her second and final week, Wilson took a sick
day, but ran into another employee of the Defendant when she was
out shopping. Wilson was fired, but was paid for the second week.
II.
We review the district court's award of summary judgment de
novo. Higgins v. E.I. Du Pont de Nemours & Co. , 863 F.2d 1162,
1167 (4th Cir. 1988). Summary judgment is appropriate when the
record taken as a whole could not lead a rational trier of fact to find
for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986). In ruling on a motion for summary judgment, we
must assess the evidence in the light most favorable to the non-
moving party. Charbonnages de France v. Smith , 597 F.2d 406, 414
(4th Cir. 1979). Although summary judgment disposition should be
used sparingly in employment discrimination cases, it is appropriate
where there is no genuine dispute of material fact. Ballinger v. North
Carolina Agric. Extension Serv., 815 F.2d 1001, 1004-05 (4th Cir.),
cert. denied, 484 U.S. 897 (1987).
A. Sexual Harassment
To prove a hostile work environment claim under Title VII, a
plaintiff must show that the conduct in question was unwelcome, that
the harassment was based on sex, and that the harassment was suffi-
ciently severe or pervasive to create an abusive working environment,
and that some basis exists for imputing liability to the employer.
Paroline v. Unisys Corp., 879 F.2d 100, 105 (4th Cir. 1989); Swentek
v. USAIR, Inc., 830 F.2d 552, 557 (4th Cir. 1987). For sexual harass-
ment to be actionable, it must be sufficiently severe or pervasive to
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alter the conditions of employment and create an abusive working
environment. Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 67
(1986).
We find that the district court properly concluded that, with the
possible exception of the rubber band incident (in which Wilson par-
ticipated), the conduct complained of was unwelcome. When Wright
put his hand on Wilson's hip, she told him to keep his hands off her.
When Wilson was shown a cartoon or when Wright hiked his pants,
Wilson turned away. Finally, the clipboard incident caused Wilson
physical pain. Thus, the district court correctly found that Wilson had
demonstrated that the conduct she complained of was unwelcome.
The district court next concluded that, accepting as true Wilson's
version of events, the alleged conduct could reasonably be found to
have been based on sex. Specifically, the court found that the hand-
on-hip, hiked pants, and cartoon incidents had sexual overtones. Fur-
ther, the district court found that the "older women," rubber band, and
clipboard incidents, when viewed in context with the other incidents,
could reasonably be seen as based on sex. Accordingly, the district
court properly found that Wilson met the second element by showing
that the alleged behavior was based on sex.
The district court then concluded that the alleged conduct could
reasonably be found to be severe or pervasive. The court reasoned
that the alleged conduct was more than an isolated incident (making
it possibly pervasive) and involved physical contact (making it possi-
bly severe). Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991);
Paroline v. Unisys Corp., 879 F.2d at 105. Thus, the court found that
the alleged conduct was sufficiently severe or pervasive to be action-
able; accordingly, Wilson met the third element of sexual harassment.
As to the fourth factor, the district court correctly found that no
basis existed for holding the Bank liable for any harassing behavior
engaged in by its employees. An employer is liable for an employee's
sexual harassment of another worker if the employer had actual or
constructive knowledge of the existence of a sexually hostile working
environment and took no prompt and adequate remedial action.
Paroline, 879 F.2d at 106. Wilson's testimony reveals that she never
informed Bank managers about the hiked pants, cartoon, or older
6
women incidents. Thus, the Bank had no actual knowledge of any
hostile work environment which may have arisen from these inci-
dents. Moreover, these incidents were not so pervasive or obvious as
to give the Bank constructive knowledge of the alleged harassment,
and the district court correctly so held.
Wilson did complain to management about the hand-on-hip, rubber
band, and clipboard incidents; thus, the Bank had actual knowledge
of any hostile work environment that may have arisen out of those
incidents. The record reveals, however, and the district court correctly
noted, that when the Bank learned of these incidents, it did not "ac-
quiesce in a practice of sexual harassment." Katz v. Dole, 709 F.2d
251, 254 (4th Cir. 1983). Rather, the Bank took prompt remedial
action that was reasonably calculated to end the harassment. Katz, 709
F.2d at 256. Wilson's testimony reveals that within four days of her
complaint to Burch about the hand-on-hip and rubber band incidents,
Burch convened a meeting of the department and distributed a memo
regarding the need for employees to act in a professional manner. Fol-
lowing that meeting, there were no more such incidents. Thus, the dis-
trict court properly found that no reasonable fact finder could find that
the Bank did not take prompt remedial action.
As to the clipboard incident, Wilson waited a week to report the
incident. When she did report it, the incident was referred to the Per-
sonnel department. Burch counseled Wright that he should never
touch or hit another employee, and warned Wright that his behavior
could lead to termination. Further, the Bank transferred Wilson to
another department with a raise to separate her from her alleged
harasser. Wilson welcomed the transfer. When Wright continued to
bother Wilson in a non-sexual manner in her new work area, he was
warned to stay away from her and leave her alone. Wright never both-
ered Wilson again.
Based on the above prompt remedial action taken by the Bank in
response to Wilson's complaints, we find that the district court prop-
erly found that Wilson failed to establish that the Bank is liable for
any hostile work environment which may have been created by the
actions of a co-worker. Wilson simply failed to offer evidence that the
Bank acquiesced in a practice of sexual harassment. Accordingly, the
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district court properly granted summary judgment to the Bank on Wil-
son's sexual harassment claim.
B. Retaliation
An employer may not discriminate against an employee in retalia-
tion for that employee's opposition to, or complaint about, an unlaw-
ful employment practice. 42 U.S.C. § 2000e-3. Wilson alleged that
the Bank retaliated against her in violation of that provision because
the Bank's employees responded to her complaints of sexual harass-
ment in a demeaning, disrespectful, and emotionally destructive man-
ner. Wilson alleged that the Bank purposely responded in this manner
in retaliation for Wilson's complaints. Further, Wilson alleged the
Bank ratified the hostile work environment and failed to protect her
from further harassment, which caused her to resign.
To prevail on a claim of retaliation, Wilson must show that she
engaged in protected activity, that the employer took adverse employ-
ment action against her, and that a causal connection existed between
the protected activity and the adverse action. Ross v. Communications
Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). The district court
correctly found that Wilson engaged in protected activity by com-
plaining to management about Wright's actions. However, the Bank
did not take adverse employment action against Wilson. Wilson
asserted that the Bank's alleged failure to protect her from retaliatory
teasing by Wright satisfies the adverse employment action element of
her retaliation claim. However, the record demonstrates that the Bank
took prompt remedial action reasonably calculated to end the alleged
retaliatory harassment by Wright and Jones. Thus, Wilson cannot
establish the second element of her retaliation claim.
Moreover, the district court correctly noted that Wilson complained
only of retaliation by her co-workers. Wilson did not allege that man-
agement took any direct retaliatory action against her, such as her
transfer or discharge. In any event, the district court properly found
that the Bank offered ample evidence showing that Wilson's transfer
was not retaliatory, but was welcomed by Wilson and accompanied
by a pay raise. Finally, the undisputed evidence showed that Wilson
was discharged during her last week for good cause-- she was seen
shopping on a day when she had called in sick to work. Thus, the dis-
8
trict court properly granted summary judgment to the Bank on this
claim.
C. Intentional Infliction of Emotional Distress
Wilson's complaint included a state law claim for intentional
infliction of emotional distress. To prevail on such a claim, Wilson
must show that the Bank engaged in extreme and outrageous conduct,
that the conduct was intended to cause severe emotional distress, and
that the conduct in fact caused severe emotional distress. Waddle v.
Sparks, 414 S.E.2d 22 (N.C. 1992). Rarely will conduct in the
employment context rise to the level of outrageousness necessary to
provide a basis for recovery for the tort of intentional infliction of
emotional distress. Cox v. Keystone Carbon, 861 F.2d 390, 395 (3d
Cir. 1988), cert. denied, 498 U.S. 811 (1990).
Wilson's complaint merely asserts that the Bank's response to her
complaints of sexual harassment was performed "intentionally and
with reckless indifference to the consequences to the Plaintiff." Wil-
son further alleged that "the conduct alleged did in fact cause severe
emotional distress to the Plaintiff." However, Wilson failed to offer
any evidence of a severe or disabling emotional or mental condition,
as required to prevail on such a claim. See Waddle v. Sparks, 414
S.E.2d at 27 (defining "severe emotional distress" as including neuro-
sis, psychosis, chronic depression, phobia, or any other type of severe
and disabling emotional or mental condition which may be generally
recognized and diagnosed by professionals trained to do so). In fact,
the medical doctors who treated Wilson both concluded that Wilson
has no permanent disability, either physical or mental, and that she
suffered from "tremendous symptom magnification and fixation."
Thus, the district court properly granted summary judgment to the
Bank on this claim.
For the reasons set forth above, we affirm the district court's order
granting summary judgment to the Bank. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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