Shabica v. Engineering Sales

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARY SHABICA,
Plaintiff-Appellant,
v.
No. 97-2184
ENGINEERING SALES ASSOCIATES OF
THE SOUTHEAST, INCORPORATED,
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-96-46-3-P)
Argued: October 30, 1998
Decided: January 19, 1999
Before WILLIAMS and MOTZ, Circuit Judges, and STAMP,
Chief United States District Judge for the
Northern District of West Virginia,
sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Regan Anthony Miller, MURPHY & CHAPMAN, P.A.,
Charlotte, North Carolina, for Appellant. Bruce Merle Simpson,
JAMES, MCELROY & DIEHL, P.A., Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Mary Shabica appeals the district court's grant of judgment as a
matter of law in favor of her former employer on her claims of
employment discrimination under 42 U.S.C.A. § 2000e et seq. (Title
VII) (West 1994 & Supp. 1998). Shabica argues that judgment as a
matter of law was inappropriate because she established that she was
sexually harassed and that she was terminated for complaining about
that harassment. We disagree. The one incident of harassment cited
by Shabica was not sufficiently severe or pervasive to create an abu-
sive working environment. Moreover, Shabica was fired for using
company funds to pay for personal expenses, not for complaining
about the one incident of harassment. Accordingly, we affirm the
judgment of the district court.
I.
Shabica was hired by Engineering Sales Associates of the South-
east, Inc. (ESA) in September of 1991. Initially, Shabica worked as
a bookkeeper, at a salary of $18,000 per year. At some point, Shabica
was promoted to the position of Office Manager, and her salary was
increased to $45,000 per year. Art Pue, the president of ESA, traveled
extensively. In order to cover company expenses in his absence, Pue
gave Shabica signed blank checks. In addition, Pue gave Shabica a
credit card that she could use for company expenses.
Leon Philbeck, a sales manager at ESA, worked in the company's
warehouse. Although Philbeck and Shabica had some contact with
each other while performing their respective duties, Philbeck had no
supervisory responsibility over Shabica. On either October 18 or 19,
1994, Philbeck and Shabica entered into a heated discussion in the
warehouse. During the exchange, Philbeck called Shabica a "f--ing
whore." (J.A. at 190.) Shabica admitted that she also may have used
inappropriate language during the incident.
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After the warehouse incident, Shabica wrote a letter to Pue that
contained the alleged details of the incident. At some point, Pue met
with Philbeck and they discussed Philbeck's "negative actions." (J.A.
at 175.) On February 27, 1995, Pue informed Philbeck that his behav-
ior would not be tolerated and that any repetition of that "conduct
[would] be subject to severe disciplinary action, up to and including
discharge." (J.A. at 175.) Pue then suspended Philbeck from his job
without pay for three days. Thereafter, Shabica and Philbeck main-
tained a professional relationship while conducting their duties at
ESA.
In May 1995, Pue confronted Shabica about her use of company
funds for personal expenses. Pue had discovered that Shabica had
diverted approximately $50,000 of company funds to her benefit in
1994 and that she had continued to use ESA funds in a similar fashion
during 1995. In particular, Shabica used company funds to pay for (1)
repairs to her home and rental properties, (2) personal and family
automobile expenses, (3) personal credit card expenses, (4) her
daughter's wedding reception, and (5) a hot tub.
After confronting Shabica with over 103 checks drafted on the
company's bank accounts, Pue informed Shabica that her employ-
ment was being terminated. On May 23, 1995, Shabica sent ESA's
counsel a letter concerning her termination from ESA. "Since this is
an employment at will state, what I would like is a written letter of
recommendation from Mr. Pue, a confidentiality agreement stating
[that] neither [party] will discuss our past financial arrangements and
. . . unemployment benefits." (J.A. at 173.) Shabica did not contend,
however, that she was terminated in retaliation for her reporting Phil-
beck's inappropriate behavior seven months earlier.
On May 24, 1995, Shabica filed a complaint with the EEOC charg-
ing that she was "verbally harassed" on October 19, 1994, and that
she was terminated for complaining about that harassment. (J.A. at
170.) The EEOC issued Shabica a "Right to Sue" letter on December
7, 1995. Shabica then filed suit in the Superior Court of Mecklenburg
County alleging employment discrimination under 42 U.S.C.A.
§ 2000e et seq. (Title VII) (West 1994 & Supp. 1998), and North Car-
olina law. In particular, Shabica contends that she was "sexually
harassed" and that she was terminated for complaining about that
3
harassment. ESA removed the case to the United States District Court
for the Western District of North Carolina due to the existence of a
federal question.
At the close of Shabica's evidence, ESA moved for judgment as a
matter of law pursuant to Rule 50 of the Federal Rules of Civil Proce-
dure. On July 7, 1997, the district court filed a"Memorandum of
Decision and Order" granting ESA's motion and entered judgment as
a matter of law against Shabica on her federal claims. The district
court dismissed Shabica's state law wrongful discharge claim without
prejudice. On August 6, 1997, Shabica filed her notice of appeal.
II.
On appeal, Shabica contends that the district court erred in granting
ESA's motion for judgment as a matter of law. In actions tried by a
jury, the district court may grant a motion for judgment as a matter
of law if "a party has been fully heard . . . and there is no legally suffi-
cient evidentiary basis for a reasonable jury to find for that party."
Fed. R. Civ. P. 50(a)(1). As a result, judgment as a matter of law is
appropriate when a contrary verdict would necessarily be based on
speculation or conjecture. See Gairola v. Virginia Dep't of Gen.
Servs., 753 F.2d 1281, 1285 (4th Cir. 1985). We review de novo the
grant or denial of a motion for judgment as a matter of law. See id.In considering such a motion, we must construe the evidence in the
light most favorable to the party against whom the motion is made.
See Garraghty v. Jordan, 830 F.2d 1295, 1302 (4th Cir. 1987).
A.
Title VII makes it an "unlawful employment practice for an
employer . . . to fail or refuse to hire or to discharge . . . or otherwise
discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such indi-
vidual's sex." 42 U.S.C.A. § 2000e-2(a)(1) (West 1994). Because the
workplace environment is one of the "terms, conditions, or privileges
of employment," Meritor Savs. Bank v. Vinson , 477 U.S. 57, 64-67
(1986), Title VII creates a cause of action in favor of persons forced
to work in a hostile workplace, see id. at 66 (establishing "that a
plaintiff may establish a violation of Title VII by proving that dis-
4
crimination based on sex has created a hostile or abusive work envi-
ronment"). To make out such a claim, Shabica"must prove: (1) that
[s]he was harassed ``because of' [her] ``sex;' (2) that the harassment
was unwelcome; (3) that the harassment was sufficiently severe or
pervasive to create an abusive working environment; and (4) that
some basis exists for imputing liability to the employer." Wrightson
v. Pizza Hut of America, Inc., 99 F.3d 138, 142 (4th Cir. 1996); see
also Swentek v. USAIR, Inc., 830 F.2d 552, 557 (4th Cir. 1987). Here,
the district court concluded that Shabica failed to establish the third
element. We agree.
The only instance of harassment cited by Shabica during her four
years of employment at ESA was the incident in which Philbeck cal-
led her a "f--ing whore." That incident, assuming it to be true, is sim-
ply insufficient to satisfy the requirement "that the harassment was
sufficiently severe or pervasive to create an abusive working environ-
ment." Wrightson, 99 F.3d at 142. On the contrary, Shabica's allega-
tions demonstrate only that Philbeck was vulgar. This Court recently
explained that
[n]ot all sexual harassment that is directed at an individual
because of his or her sex is actionable. Title VII does not
attempt "to purge the workplace of vulgarity." Baskerville v.
Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995). As the
Supreme Court recognized in Harris v. Forklift Sys., Inc.,
510 U.S. 17, 20 (1993), "Conduct that is not severe or per-
vasive enough to create an objectively hostile or abusive
work environment -- an environment that a reasonable per-
son would find hostile or abusive -- is beyond Title VII's
purview." See also Meritor, 477 U.S. at 67 (recognizing that
conduct amounts to actionable sexual harassment only when
it is "sufficiently severe or pervasive ``to alter the conditions
of [the victim's] employment and create an abusive working
environment'" (alteration in original) (citation omitted)).
Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 753 (4th Cir.)
(parallel citations omitted), cert. denied, 117 S. Ct. 70 (1996); see
also McWilliams v. Fairfax County Bd. of Supervisors , 72 F.3d 1191,
1196 (4th Cir.) (refusing to recognize a Title VII claim for sexual
harassment based solely on the alleged harasser's"vulgarity and
5
insensitivity and meanness of spirit"), cert. denied, 117 S. Ct. 72(1996). This Court concluded in Hopkins that similar conduct failed
to amount to a violation of Title VII. "While we do not approve of
[the employer's] apparent willingness to offend and provoke employ-
ees with his ambiguously sexual innuendos, Title VII was not
designed to create a federal remedy for all offensive language and
conduct in the workplace." Hopkins, 77 F.3d at 754; see also
Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995)
("The concept of sexual harassment is designed to protect working
women from the kind of male attentions that can make the workplace
hellish for women. . . . It is not designed to purge the workplace of
vulgarity.").
Shabica does not allege that she was inappropriately touched, prop-
ositioned, flirted with, taunted, or even ogled. See Baskerville, 50
F.3d at 431 ("[Defendant] never touched the plaintiff. He did not
invite her, explicitly or by implication, to have sex with him, or to go
out on a date with him. He made no threats. He did not expose him-
self, or show her dirty pictures."). Under these circumstances, "allow-
ing [Shabica's] claim to go to trial would countenance a federal cause
of action for mere unpleasantness." Hartsell v. Duplex Prods., Inc.,
123 F.3d 766, 773 (4th Cir. 1997). As we recently noted, "Title VII
is not a federal guarantee of refinement and sophistication in the
workplace . . ., it prohibits only harassing behavior that is so severe
or pervasive as to render the workplace objectively hostile or abu-
sive." Id. Thus, the district court did not err in granting ESA judgment
as a matter of law.
B.
To prevail on her retaliation claim, Shabica must satisfy the three-
step proof scheme established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). First, Shabica must establish, by a preponder-
ance of the evidence, a prima facie case of retaliation. Once Shabica
has established her prime facie case, the burden shifts to ESA to rebut
the presumption of retaliation by articulating non-retaliatory reasons
for its actions. Cf. Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 254 (1981). If ESA meets its burden of production, the pre-
sumption raised by the prima facie case is rebutted and "drops from
the case," id. at 255 n.10, and Shabica bears the ultimate burden of
6
proving that she has been the victim of retaliation, see St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).
First, Shabica contends that she established a prima facie case of
retaliation under Title VII. To establish a prima facie case of retalia-
tion under Title VII, a plaintiff is required to prove (1) that she
engaged in a protected activity; (2) that an adverse employment action
was taken against her; and (3) that there was a causal connection
between the first two elements. See Hopkins v. Baltimore Gas & Elec-
tric Co., 77 F.3d 745, 754 (4th Cir.), cert. denied, 117 S. Ct. 70(1996). We will assume, for purposes of this appeal, that Shabica
engaged in protected activity when she complained to Pue about the
incident with Philbeck. Cf. Carter v. Ball, 33 F.3d 450, 460 (4th Cir.
1994) (filing a complaint with the EEOC is a protected activity). It is
also undisputed that an adverse employment action was taken against
Shabica. See, e.g., Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 775
(4th Cir. 1997) (recognizing that discharge is an adverse employment
action). To survive judgment as a matter of law, therefore, Shabica
must have evidence from which a reasonable factfinder could con-
clude that a causal connection exists between the protected activity
and the adverse action.
"To satisfy the third element, the employer must have taken the
adverse employment action because the plaintiff engaged in a pro-
tected activity." Dowe v. Total Action Against Poverty, 145 F.3d 653,
657 (4th Cir. 1998). Here, Shabica simply asserts that she complained
about a vulgar remark made by Philbeck and that she was terminated
seven months later. Those two facts are insufficient to establish,
absent additional evidence, that ESA fired Shabica"because" she
complained about Philbeck's vulgar statement. See EEOC v. Clay
Printing Co., 955 F.2d 936, 943 (4th Cir. 1992) (noting that bald
assertions are not sufficient to create a jury issue). Moreover, the
seven month time lapse "negates any inference that a causal connec-
tion exists between the two." Dowe, 145 F.3d at 657. As a conse-
quence, Shabica cannot establish the necessary causal connection. It
necessarily follows, therefore, that Shabica cannot establish a prima
facie case of retaliation. Accordingly, the district court did not err in
granting ESA judgment as a matter of law.
Even assuming, however, that Shabica produced evidence suffi-
cient to establish a causal connection between the protected activity
7
and the adverse action -- thereby establishing a prima facie case of
retaliation -- ESA articulated a legitimate, nonretaliatory reason for
Shabica's discharge (i.e., her use of company funds for her personal
use). To avoid judgment as a matter of law, therefore, Shabica must
also bring forward evidence sufficient to establish that she was the
victim of retaliation (i.e., ESA's nonretaliatory reason was pretex-
tual). As the district court noted, Shabica simply failed to do so.
III.
For the foregoing reasons, the judgment of the district court is
affirmed.
AFFIRMED
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