Nievaard v. City of Ann Arbor

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0173n.06
Filed: March 7, 2005
No. 03-2340
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Christine R. Nievaard, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
City of Ann Arbor, ) EASTERN DISTRICT OF MICHIGAN
)
Defendant-Appellee. )
Before: GIBBONS and ROGERS, Circuit Judges, and BUNNING, District Judge.*
ROGERS, Circuit Judge. Plaintiff Christine Nievaard appeals the grant of summary
judgment issued in favor of her former employer, the Defendant City of Ann Arbor (“the City”), on
Nievaard’s claim that she was subject to a hostile work environment based on her sex. Because the
City made a good-faith effort to address Nievaard’s complaints of harassment, the grant of summary
judgment is affirmed.
I. Background
*
The Honorable David L. Bunning, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 03-2340
Nievaard v. City of Ann Arbor
In January of 2001, Nievaard applied with the City of Ann Arbor for the position of Parks
Maintenance Foreperson. She was hired for the position on or about April 2, 2001. Nievaard’s
position required her to supervise five employees, both male and female, who were responsible for
installing and maintaining playground equipment, fencing, and athletic fields for various parks
throughout the city. Nievaard also interacted with employees from crews that she did not supervise.
Nievaard claims that she experienced sexual harassment almost immediately after starting work.
Specifically, Nievaard claims that, as a result of being the first female in the position of maintenance
supervisor, she experienced harassment based on her sex. She cites several incidents of alleged
harassment, most of which involve non-sexual conduct.
A. Alleged Incidents of Harassment
Nievaard claims that the first incident of alleged harassment occurred the day after she was
hired, when, according to Nievaard, one of the Parks Department employees told Nievaard that he
would have a hard time working for a woman because of his religious beliefs. Nievaard further
alleges that, during her period of employment with the City, other employees engaged in the
following actions based on her sex: (1) questioned her competence, decisions, and orders on a daily
basis; (2) were insubordinate on a daily basis; (3) called her names such as “bitch;” (4) spread
rumors about her relationship with various employees and made allegations of sexual promiscuity;
(5) made daily comments about her appearance and clothing, (6) slipped a note with the word
“superbitch” under her door; (6) “keyed” her personal and work vehicles; (7) accused her of writing
a racial slur in the bathroom of the Parks and Recreation building; and (8) evaluated her unequally
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when compared to another allegedly similarly situated probationary employee. Nievaard
complained to the City about these incidents in July 2001, alleging that she was experiencing
harassment based on her sex.
Nievaard alleges, however, that complaining did not stop the harassment. For instance, in
May of 2002, Nievaard’s door was glued shut on three separate occasions. Nievaard also claims
that, after the City hired Terry Rynard as the manager of the City’s Parks and Forestry Department
on May 6, 2002, the following discriminatory events occurred: (1) she was told that she could not
work a prearranged shift that gave her Mondays off; (2) she was told by Rynard that she lacked
“integrity;” (3) she was asked by Rynard if she had used a work vehicle for personal business, when
she had not; (4) she was questioned about making personal calls on her work-issued cell phone and
told she may be disciplined for such behavior, even though her prior supervisor had told her the cell
phone could be used for personal calls; (5) she was told by Rynard that she was lying about not
using a work vehicle for personal use; (6) she was given a list by Rynard of areas to improve in,
which included honesty and integrity; (7) she was told that she must have her cell phone turned on
at all times or she would be denied the use of a City vehicle to and from work; (8) she was told she
may not get to take off vacation time that she had previously scheduled, because it was another
supervisor’ s regular day off; and (9) she was given a written warning by Rynard for personal use
of the cell phone and told she had to pay the City approximately three hundred and sixty dollars or
face discipline. Ultimately, Nievaard was terminated for job abandonment on July 1, 2002.1
1
The plaintiff does not bring a claim of retaliatory discharge.
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B. The City’s Response to Nievaard’s Allegations of Harassment
Upon Nievaard’s complaint to the Human Resources Department (“HR”), an investigation
was undertaken and the HR department “quickly confirmed . . . the fact that Nievaard was being
subjected to a hostile work environment, due to her gender.” In making a finding of gender-based
harassment, the HR department relied on the fact that Nievaard had been subject to rumors about
her relationships, comments about her appearance and clothing, questions about her competence,
questions about her decisions and orders, insubordination by various employees, name calling
(including “bitch”), her personal and work vehicles being “keyed,” having a note slipped under her
door with “superbitch” written on it, and a probationary evaluation that was inconsistent with the
treatment of another recent probationary supervisor. Ultimately, the HR department found that, “the
problem can not be pinned on one person, but rather on an attitude that has been allowed to pervade
the workplace at [the Parks and Recreation Headquarters].”
After determining that Nievaard had been the subject of harassment based on gender, the HR
department made several attempts to eliminate the harassment, to educate Parks and Recreation
management about the City’s Policy 404, which prohibits discrimination and harassment, and to
provide support to Parks and Recreation management in uniformly enforcing the policy. A memo
written by HR Director Dave Ferber sets forth the numerous actions taken by the HR Department
in response to Nievaard’s complaints. They include the following: (1) on August 8, 2001, the HR
department held a two hour training session on Policy 404 for Parks and Forestry management who
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worked at the Parks and Forestry Headquarters;2 (2) on August 15, 2001, the HR department met
with supervisors from the 415 Building to go over Policy 404 again and to instruct them in how to
inform their employees about the policy; (3) on August 16, 2001, and August 23, 2001, the HR
department met with each division and work group to go over Policy 404 and to discuss the
consequences of violating the policy; (4) on August 20, 2001, the HR department met with all Parks
employees at the 415 Building about Policy 404; (5) on August 15, 2001, the HR department held
numerous individual meetings with employees; (6) on various dates, the HR department held
meetings with union officers from AFSCME Local 369 to discuss the situation with Nievaard; (7)
the HR department provided support to the management staff of the Parks Operation and Forestry
Division, as well as the Assistant Superintendent of Parks and Recreation, to ensure consistent
enforcement of Policy 404; (8) the HR department provided Nievaard with support services, such
as personal counseling by outside consultants, daily consultations about how to handle various
situations, offers to repair her damaged vehicle, and other support as needed; (9) discipline was
imposed on one manager and two supervisors in the Forestry division for their involvement in the
harassment; and (10) a seasonal employee was terminated for violation of Policy 404. In addition
to these measures, an employee supervised by Nievaard, who had been accused of insubordination
by Nievaard, was transferred to another supervisor.
2
The Parks and Forestry Headquarters, located at 415 W. Washington St., is alternately
referred to by the City as “415 W. Washington,” “the 415 Building,” or simply “415.”
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Ultimately, however, the HR Department conceded that “[d]espite all of these actions,
selected supervisory personnel and hourly employees are increasingly directing harassing comments
and initiating extremely negative rumors towards Nievaard.” The HR Department felt the
harassment was continuing because of a lack of cooperation and follow-through by Parks
Department management. A memo issued by the HR department ultimately came to several
conclusions about the situation involving Nievaard:
1. Nievaard continues to be subjected to a hostile and harassing work environment.
...
2. Human Resources has attempted to support the Parks Department in eliminating
the harassment and resolving the issues at 415. However, it has become clear that
our advice and suggestions are being disregarded.
3. As is true throughout the City, Human Resources has the responsibility for
advising departments about how to accurately and effectively enforce policies related
to Human Resources issues (such as harassment). However, HR cannot do the
enforcement ourselves. The responsibility and accountability for ensuring
compliance with policies falls to each department.
4. . . . Without this kind of action it is our view that the harassment will continue
unabated and will result in legal action against the City and Parks management.
5. Parks Operations and Forestry management staff, as well as Parks Department
senior management, ceased enforcing Policy 404 and taking a proactive approach to
stop the on-going harassment directed at [Nievaard] by the beginning of September.
6. At this time, HR’s ability to enforce Policy 404 at 415 W. Washington has been
completely undermined by the lack of follow-through by the Parks Department. HR
has consistently tried to protect the City from liability while at the same time
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attempted to stop the harassment. At this time we feel we have no more to offer on
this situation, until such time as follow-through and accountability issues within
Parks are resolved.
7. Parks Department’s lack of initiation and maintenance of an appropriate level of
action to effectively stop the daily harassment directed at [Nievaard] could subject
the City and Parks management to possible civil litigation.
Despite the conclusions of the HR Department, the district court found that Nievaard had
“failed to show that much of what she complains [of] stems from anything other than personal
animosity or specific disagreements and misunderstandings between her and her co-workers.” Thus,
the court found that “[m]any of Plaintiff’s allegations amount to what are clearly discrete
misunderstandings or disagreements not based on any gender discrimination.” The district court
then determined that four of Nievaard’s allegations did occur because of sex: (1) two employees
calling Nievaard a “bitch” and the anonymous note calling her a “superbitch;” (2) “wolf whistling”
by an employee that she saw rarely; (3) an employee putting his arm around Nievaard and telling
her she was “sexy;” and (4) an employee’s statements that if Nievaard pulled down her shirt a little
more the workers could have a “view all day” and that Nievarrd’s shirt was “too tight.” The district
court only considered these incidents in analyzing whether Nievaard had experienced a hostile work
environment. The district court stated that it was “doubtful” that these incidents amounted to either
serious or pervasive harassment; however, it ultimately failed to reach the issue. Instead, the district
court relied on the City’s “prompt and adequate remedial measures” as a basis for granting the City’s
motion for summary judgment. It is from this judgment that plaintiff appeals.
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II. Analysis
Although we assume for purposes of argument that Nievaard has presented genuine
questions of material fact regarding whether certain incidents of harassment were based on her sex,
and whether the harassment was severe or pervasive, we nonetheless affirm the grant of summary
judgment because the City made a good-faith effort to respond to the harassment.
We review the district court’s order granting summary judgment de novo. Williams v.
Mehra, 186 F.3d 685, 689 (6th Cir. 1999). Summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” FED. R. CIV. P. 56(c). A “material” fact is one “that might affect the
outcome of the suit.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). This court must view
the evidence and draw all reasonable inferences in favor of the non-moving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Nievaard alleges that she was discriminated against in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. 2000e, et seq., specifically, that she was subject to a hostile or abusive
working environment because she experienced repeated harassment based on her sex. Under Title
VII, an employee alleging a hostile work environment based on sexual harassment must show the
following: (1) the employee was a member of a protected class; (2) the employee was subjected to
unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the charged
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sexual harassment created a hostile working environment; and (5) the existence of employer
liability. Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999); see also Williams v. General Motors
Corp., 187 F.3d 553, 560-61. (6th Cir. 1999).
A hostile work environment occurs “[w]hen the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993) (internal quotation and citation omitted). Both an objective and subjective test
must be met; in other words, the conduct must be so severe or pervasive as to constitute a hostile or
abusive working environment both to the reasonable person and the actual victim . Id. at 21-22.
The City of Ann Arbor alleges that Nievaard has failed to establish a claim of a hostile work
environment because she has failed to prove that the harassing incidents were motivated by her
gender, that the incidents were severe or pervasive, or that the City did not respond adequately to
Nievaard’s complaints. Despite the City’s argument, we assume without deciding that Nievaard has
established a genuine question of material fact regarding whether at least some of the harassing
incidents that she experienced were because of sex. In addition, we assume without deciding that
Nievaard has established a genuine question of material fact regarding whether the harassment she
experienced was severe or pervasive. However, Nievaard has failed to establish that the City did
not respond promptly and adequately to her complaints; thus, the grant of summary judgment in
favor of the City was proper.
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As discussed above, the five-part showing used to demonstrate a hostile work environment
based on sexual harassment includes a requirement that there be employer liability. It is this
requirement that Nievaard fails. The standard for employer liability differs depending upon the
identity of the alleged harasser, with a distinction drawn between co-worker harassment and
harassment perpetrated by a supervisor. Because “[e]mployer liability for co-worker harassment is
based directly on the employer’s conduct,” an employer is only liable “if it ‘knew or should have
known of the charged sexual harassment and failed to implement prompt and appropriate corrective
action.’” Hafford, 183 F.3d at 513 (quoting Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 804
(6th Cir. 1994)). But in the case of harassment committed by a supervisor, an employer’s liability
is vicarious. Id. In such a case, the employer must demonstrate that it “‘exercised reasonable care
to prevent and correct promptly any sexually harassing behavior, and . . . that the plaintiff employee
unreasonably failed to take advantage of any preventative or corrective opportunities provided by
the employer or to avoid harm otherwise.’” Id. (quoting Faragher v. City of Boca Raton, 524 U.S.
775, 807 (1998)).
Although Nievaard alleges that she was harassed by both co-workers and by a supervisor,
the harassment attributed to her supervisor Terry Rynard was not because of Nievaard’s sex, and
accordingly, cannot form the basis of a hostile work environment claim. Nievaard stated that she
felt that Rynard questioned her integrity, and questioned her about her personal use of a city-issued
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cell phone and truck, in an attempt to force Nievaard to resign in retaliation for her complaints.3 In
Morris v. Oldham County Fiscal Court, 201 F.3d 784, 790-91 (6th Cir. 2000), this court held that
conduct alleged to have occurred in retaliation for complaints made about a hostile work
environment can not be figured “into the hostile working environment equation,” because such
incidents are not alleged to have occurred “because of sex.” Therefore, they cannot be considered
when determining whether Nievaard experienced a hostile work environment. Nievaard also alleges
that Rynard discriminated against her based on gender when Rynard told her that if she wanted to
fit in, she should dress less femininely. In Courtney v. Landair Transport, Inc., 227 F.3d 559, 564
(6th Cir. 2000), however, this court held that “[a] manager’s warning, without more, that plaintiff’s
clothing is inappropriate in the workplace is not sexual harassment.” Here, Nievaard has not
demonstrated that these particular comments about her dress were anything more than a legitimate
concern about the appropriateness of her attire. Therefore, the comment made by Rynard also
cannot be considered in determining whether Nievaard has established a hostile work environment.
Accordingly, the only remaining alleged harassment that may have been because of sex is
that alleged to have been committed by Nievaard’s co-workers. For summary judgment purposes,
Nievaard has established a genuine issue of material fact regarding whether at least some of these
harassing incidents were committed because of her gender. This is because not only were some of
the incidents clearly based on Nievaard’s sex, such as an employee commenting that he would have
3
Again, although Nievaard alleges that there was a campaign to get her to resign in retaliation
for her complaints, she does not allege a claim of retaliatory discharge in her complaint.
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a hard time working for a woman, but in addition, “[n]on-sexual conduct may be illegally sex-based
and properly considered in a hostile environment analysis where it can be shown that but for the
employee’s sex, [s]he would not have been the object of harassment.” Bowman v. Shawnee State
University, 220 F.3d 456, 463 (6th Cir. 2000). As mentioned above, this court assumes without
deciding that these harassing incidents constitute a hostile work environment. It is not necessary
to reach that question, because, with only co-worker harassment at issue, Nievaard cannot
demonstrate employer liability where the City took sufficient action to redress Nievaard’s
complaints.
To reiterate the standard, “[e]mployer liability for co-worker harassment is based directly
on the employer’s conduct,” and an employer can only be held liable “if it ‘knew or should have
known of the charged sexual harassment and failed to implement prompt and appropriate corrective
action.’” Hafford, 183 F.3d at 513 (quoting Pierce, 40 F.3d at 804). In this case, it is undisputed
that the City knew of the alleged harassment. Thus, the only remaining issue is whether the actions
taken by the city were “prompt and appropriate.” In determining whether a response was “prompt
and appropriate,” negligence in fashioning a remedy is not sufficient for the employer to incur
liability. Blankenship v. Parke Care Centers, Inc., 123 F.3d 868, 873 (6th Cir. 1997). Rather,
[t]his court has found that when the allegations of sexual harassment involve a
coworker and the employer has fashioned a response, the employer will only be
liable “if its response manifests indifference or unreasonableness in light of the facts
the employer knew or should have known. The act of discrimination by the
employer in such a case is not the harassment, but rather the inappropriate response
to the charges of harassment.” Thus, an employer who implements a remedy “can
be liable for sex discrimination in violation of Title VII only if that remedy exhibits
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such indifference as to indicate an attitude of permissiveness that amounts to
discrimination.”
McCombs v. Meijer, Inc., 395 F.3d 346, 353 (6th Cir. 2005) (quoting Blankenship, 123 F.3d at 873)
(internal citations omitted).
The City argues that it responded appropriately to Nievaard’s complaints because, upon
learning of the alleged harassment, it met with city employees on numerous occasions to discuss
Policy 404, it conducted training on Policy 404, it provided Nievaard with assistance in dealing with
the harassment, and it disciplined certain employees who were identified as having engaged in
harassing behavior, as discussed more extensively supra. Nievaard responds that, while the HR
Department did attempt to remedy the harassment, the lack of cooperation by the Parks Department
prevented such attempts from being implemented. In support of this, Nievaard cites the memo
prepared by the HR department, which concludes that “it has become clear that our advice and
suggestions are being disregarded,” and that Parks Management “ceased enforcing Policy 404 and
taking a proactive approach to stop the on-going harassment directed at [Nievaard].” Thus,
Nievaard argues, the actions taken by the HR Department cannot insulate the City from liability if
another division of the City, the Parks Department, caused these remedial efforts to be unsuccessful.
While the response taken to Nievaard’s complaints did not eliminate the problem entirely,
Nievaard does not allege that the HR Department’s response was not undertaken in good faith. As
noted previously, mere negligence in fashioning a response is not sufficient to hold an employer
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liable. Blankenship, 123 F.3d at 873. Rather, the employer’s response will be considered
inadequate “‘only if that remedy exhibits such indifference as to indicate an attitude of
permissiveness that amounts to discrimination.’” McCombs, 395 F.3d at 353 (quoting Blankenship,
123 F.3d at 873). In this case, because the City actually made several attempts to remedy the
discrimination, the City has not exhibited “such indifference as to indicate an attitude of
permissiveness that amounts to discrimination.” Imposing liability in the face of such an extensive
and good-faith attempt to remedy the problem would run contrary to the underlying theory of the
claim itself, that the “‘act of discrimination by the employer in such a case is not the harassment, but
rather the inappropriate response to the charges of harassment.’” Id. (quoting Blankenship, 123 F.3d
at 873).
III. Conclusion
Because the City took prompt and appropriate remedial action in response to Nievaard’s
complaints of co-worker harassment, there is no “employer liability” for the alleged harassment.
Accordingly, even assuming that Nievaard has met the other elements of a claim of hostile work
environment based on sexual harassment, Nievaard’s claim fails as a matter of law. The district
court’s decision granting the City’s motion for summary judgment and dismissing the case is
therefore affirmed.
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JULIA SMITH GIBBONS, Circuit Judge, dissenting. Because I believe that a genuine
issue of material fact exists regarding whether the City adequately responded to Nievaard’s
complaints, I respectfully dissent.
Certainly, the Human Resources Department took prompt and significant steps to respond
to Nievaard–steps that would be “prompt and adequate” as a matter of law if the evidence consisted
only of these steps. The record in this case, however, also includes evidence that managers in the
Parks Department disregarded the advice of the Human Resources Department and undermined its
actions, thus allowing the harassment to continue. The actions of the Parks Department managers
are no less attributable to the City than those of Human Resources Department personnel.
Moreover, there is evidence that Human Resources Department personnel were fully aware of the
lack of cooperation by the Parks Department; yet no evidence exists that Human Resources sought
to inform higher level city officials of the Parks Department’s position. Thus, a reasonable trier of
fact could find the City’s response inadequate based on either the Parks Department’s actions or the
Human Resources Department’s lack of action, or both.
The majority accurately cites the case authority applicable to determining whether a response
was “prompt and adequate.” The flaw in its reasoning is in looking only at the positive actions of
the Human Resources Department. Surely, a jury could find that the Parks Department’s actions,
which are actions of the City to the same extent as those of Human Resources, could be
characterized as amounting to more than mere negligence. Indeed, the actions of the Parks
Department in this case could fairly be said to manifest “culpable indifference,” in that the Parks
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Department “exhibit[ed] such indifference as to indicate an attitude of permissiveness that amounts
to discrimination.” Blankenship v. Parke Care Ctrs., Inc., 123 F.3d 868, 872-73 (6th Cir. 1997); see
McCombs v. Meijer, Inc., 395 F.3d 346, 353 (6th Cir. 2005). Similarly, a jury could find that the
failure of the Human Resources Department to seek resolution at a higher level was likewise more
than negligence, but instead rose to the level of culpable indifference, given the evidence of its
awareness of the Parks Department’s position. For these reasons, I would reverse the grant of
summary judgment to the City of Ann Arbor.
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