Hosey v. McDonald's Corp.

Filed: June 3, 1997
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-1891
(CA-95-196-AW)
Brandon Hosey,
Plaintiff - Appellant,
versus
McDonald's Corporation,
Defendant - Appellee.
O R D E R
The Court amends its opinion filed May 12, 1997, as follows:
On the cover sheet, section 7 -- the counsel information is
corrected to read:
Joseph M. Sellers, Avis L. Sanders, WASHINGTON LAWYERS'
COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFIARS, Washington,
D.C.; Richard Semsker, Solaman G. Lippman, LIPPMAN &
ASSOCIATES, Washington, D.C. for Appellant. Bruce S.
Harrison, Eric Hemmendinger, SHAWE & ROSENTHAL,
Baltimore, Maryland, for Appellee.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRANDON HOSEY,
Plaintiff-Appellant,
v. No. 96-1891
MCDONALD'S CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-95-196-AW)
Submitted: May 1, 1997
Decided: May 12, 1997
Before WIDENER and MURNAGHAN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Joseph M. Sellers, Avis L. Sanders, WASHINGTON LAWYERS'
COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS,
Washington, D.C.; Richard Semsker, Solaman G. Lippman,
LIPPMAN & ASSOCIATES, Washington, D.C., for Appellant.
Bruce S. Harrison, Eric Hemmendinger, SHAWE & ROSENTHAL,
Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Brandon Hosey appeals from the district court's order granting
summary judgment to his former employer on his Title VII action
alleging sexual harassment, disparate treatment, and constructive dis-
charge. 42 U.S.C. § 2000e (1994). Hosey began working for McDon-
ald's in February 1993 as a part-time "crew person." Hosey worked
approximately twelve hours per week and his duties included cooking
french fries, washing dishes, and sweeping floors. Laria Cornell was
Hosey's "crew trainer" and, as such, was responsible for training new
employees. Although she was promoted to "floor supervisor" in
November 1993, Cornell had no direct supervisory authority over
Hosey.
Hosey alleged in his complaint that, beginning in November 1993,
Cornell made unwanted sexual advances toward him--asking him out
on numerous occasions, touching him in a sexually offensive manner,
and making explicit sexual comments to him. After the first touching
incident, Hosey spoke with the "certified swing manager" Katedra
Taylor whose response was "Why don't you just date her?" Approxi-
mately two weeks later, Hosey approached the assistant manager,
Terry Richards, and told her that "[Cornell] was asking me out and
stuff," to which Richards replied, "I know." According to Hosey,
Richards did nothing. Hosey resigned on March 31, 1994, citing Cor-
nell's behavior toward him.
This court reviews the district court's granting of summary judg-
ment de novo. Farwell v. Un, 902 F.2d 282, 287 (4th Cir. 1990).
Summary judgment is appropriate when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any mate-
rial fact and that the moving party is entitled to judgment as a mattter
of law." Fed. R. Civ. P. 56(c). We construe all facts and draw all rea-
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sonable inferences in the favor of the nonmovant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
With this standard in mind, we find that the district court properly
granted summary judgment in favor of McDonald's. To prove a hos-
tile work environment claim under Title VII, a plaintiff must show
that the conduct in question was unwelcome, that the harassment was
based on sex, that the harassment was sufficiently 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 harassment to be actionable, it must
be sufficiently severe or pervasive to alter the conditions of employ-
ment and create an abusive working environment. Meritor Sav. Bank
v. Vinson, 477 U.S. 57, 67 (1986). We agree with the district court's
conclusion that the facts as alleged by Hosey were not sufficiently
severe or pervasive to create an abusive working environment.
In any event, Hosey has failed to establish a basis for imputing lia-
bility to McDonald's. An employer is liable for an employee's sexual
harassment of another worker if the employer had actual or construc-
tive knowledge of the existence of a sexually hostile working environ-
ment and took no prompt and adequate remedial action. Paroline, 879
F.2d at 106. Hosey's statement to the assistant manager that Cornell
was "asking me out and stuff" was insufficient to impute liability to
McDonald's. Nor did Hosey's statement to Taylor impute liability to
McDonald's because Taylor had no direct supervisory authority.
Moreover, the incidents complained of by Hosey were not so perva-
sive or obvious as to give McDonald's constructive knowledge of the
alleged harassment.
In order to establish that he was constructively discharged, Hosey
must show that McDonald's "deliberately" made his working condi-
tions "intolerable," thus forcing him to quit his job. See Amirmokri v.
Baltimore Gas and Elect. Co., 60 F.3d 1126, 1132 (4th Cir. 1995);
Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1350 (4th Cir. 1995).
Hosey has failed to make such a showing.
Finally, Hosey's disparate treatment claim fails because he could
not show that McDonald's treated sexual harassment complaints by
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women more seriously than those by men. See Carter v. Ball, 33 F.3d
450, 456 n.7 (4th Cir. 1994).
For the foregoing reasons, we affirm the district court's order
granting summary judgment in favor of McDonald's. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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