Marcia A. Hocevar v. Purdue Frederick Company Timothy Amundsen

223 F.3d 721, 2000 U.S. App. LEXIS 19061, 79 Empl. Prac. Dec. (CCH) 40,270, 83 Fair Empl. Prac. Cas. (BNA) 1196, 2000 WL 1162228

Opinions

LAY, Circuit Judge, with whom Judge John R. Gibson joins in Part IIA.

This is an appeal brought by Marcia Hocevar (Hocevar) from the district court’s grant of summary judgment in favor of Purdue Frederick Company (Purdue), her former employer, in a sexual harassment and retaliation claim brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The district court found that the plaintiff was a member of a protected class (a female) but that she failed as a matter of law to demonstrate a genuine dispute of material fact on both of her claims. In addition to denying her claim of retaliation, the court found that Hocevar had not shown a hostile work environment because it concluded that the alleged harassment was neither pervasive nor severe. For the reasons stated below, the majority of the court (Judges Beam and Gibson) affirm the grant of summary judgment on the hostile work environment claim; a different majority of the court (Judges Lay and Gibson) reverse and remand for trial on Hoce-var’s retaliation claim.

I. BACKGROUND

The record shows that Marcia Hocevar began working at Purdue in August 1988 as a pharmaceutical sales representative. While working for Purdue in Minnesota between 1988 and 1992, Hocevar consistently out performed her then co-worker Timothy Amundsen (Amundsen) and was often ranked in the top sales percentile nationally. Hocevar was promoted three times in five years, the final promotion being to the position of sales training manager at corporate headquarters in Norwich, Connecticut. Hocevar’s bonuses reflect her good sales record, and her performance was rated at the highest possible level.

In June 1994, Hocevar transferred to Minnesota due to her impending marriage where she was placed under the supervision of Amundsen, the new district manager, and took over the sales territory previously assigned to him.¹ Despite Hocevar’s history of top-notch performance evaluations, Amundsen rated Hocevar at the lowest possible level in October and November 1994. Amundsen gave Hocevar an additional adverse rating in February 1995.

In March 1995, Amundsen accused Hocevar of lying and making false sales reports. A company investigation concluded no wrongdoing on Hocevar’s part. Shortly thereafter, in July 1995, Amundsen again gave Hocevar the lowest possible performance rating despite the fact that she demonstrated a sales growth of seven percent. At some point, Purdue took away a portion of Hocevar’s sales territory — an area including the world renowned Mayo Clinic and LaCrosse, Wisconsin.² This action was taken by Amundsen despite the fact that Hocevar exceeded Amundsen’s own prior sales record in the same territory and received bonuses for exceeding sales quota. These areas remained un-staffed for three months following removal from Hocevar’s territory.

On August 11, 1995, Amundsen recommended Hocevar for probation based on her past year’s performance. Following an automobile accident, Hocevar took disability leave from August 16, 1995, until September 15, 1995. Despite her absence, Hocevar again met her sales quota and earned a bonus. Hocevar took additional disability leave on October 21, 1995, and requested a part-time work schedule accommodation. Amundsen denied her request. As a result, Hocevar was unable to return to full-time work and remained on disability leave until her termination on June 7,1996.

Following Hocevar’s return to Minnesota in 1994, Amundsen engaged in hostile behavior in the workplace over a two-year period: he distributed sexually explicit material at business meetings; he made threats of violence towards female staff members; he constantly referred to women as “bitches,” “fucking bitches,” and “fat fucking bitches,”³ he told stories of animal violence (e.g., placing a loaded gun in the mouth of a dog that wandered into his yard); he told jokes at meetings that were derogatory towards women and contained profanity; he introduced a new employee as the “fucking new guy;” and claimed that new pharmaceutical products were so exciting a physician would be “creaming his jeans” to get them. Hocevar also testified .that Amundsen exhausted a portion of a staff meeting by playing an audiotape of the Jerky Boys which contained obscene, vulgar, and sexually explicit “prank” phone calls to businesses on topics such as genital warts.

Hocevar also testified that in April 1992, Purdue Regional Manager Paul Ka-sprzycki (Kasprzycki) had made sexual advances toward her at a bi-regional meeting in Denver, Colorado. She testified that she was afraid to report complaints to Kasprzycki (Amundsen’s supervisor) due to incidents of Kasprzycki making unwelcome sexual advances towards her, including pulling her toward him resulting in “full body contact” during what began as a consensual “fast” dance that led into a “slow” dance. She testified that Ka-sprzycki’s made “very clear his wish to have a sexual relationship” with her and made suggestive comments about being available for a sexual relationship. Hoce-var testified that Kasprzycki’s advances were even more explicit when no witnesses were around. According to Hocevar, this was not an isolated incident, as Kasprzycki had previously made “unwelcome and uninvited” sexual advances toward her following a Purdue national meeting in New Orleans in January 1992. Then, in front of nearly 150 people Kasprzycki made statements at a bi-regional meeting in April 1995 implying a female manager had a sexual device in her hand and, in a separate incident, that he would be engaging in a sexual liaison in his hotel room later that day with three female sales representatives that had just performed a singing skit. Additionally, she describes an incident at a national meeting in Texas in 1993 involving two other Purdue District Managers, Dan Mackavoy and Dick Silverman. Hocevar stated that the district managers talked throughout her presentation; after-wards, she approached them about their “rude” behavior, to which Mackavoy responded: “We were talking about what great legs you have.”

In yet another incident, also following a Purdue bi-regional meeting, Hocevar and six male and female co-workers were discussing Susan Faludi’s book Backlash: The Undeclared War Against American Women (discussing public reaction to successful working women). During this conversation, a male employee called Hocevar a “bitch” and the then new district manager, Kelly Bartlett, became “very angry” and “exploded” stating: “You women, since when are women always right and men are always wrong? If your women’s movement had its way, every woman would be working and our children would be being raised in communes.” The incident was so upsetting that Kathy Kiekhae-fer (Kiekhaefer) and a co-worker were crying and were “scared” and concerned at the prospect of working for a manager with such a feeling of hostility toward working women.

In October 1995, Hocevar complained to Dennis Merlo, a Purdue managerial employee, about Amundsen’s inappropriate behavior, foul language, and stories of animal violence. On December 20, 1995, Hocevar’s attorney notified Purdue of her intention to file a complaint against Purdue with the Minnesota Department of Human Rights alleging sexual harassment. The letter also voiced concerns about the “ongoing sexual harassment” of Hocevar and other women at Purdue. In January 1996, another female employee, Kiekhae-fer, filed a claim of sexual harassment with Purdue, which prompted Purdue to investigate the complaints.

Danielle Nelson (Nelson), Purdue’s Vice President of Equal Employment Opportunity Compliance and Human Resources Administration, conducted an investigation into the complaints of sexual harassment. Nelson found that Amundsen’s extensive use of profanity and off-color jokes violated company policy and was “unprofessional behavior.” Nelson concluded, however, that no sexual harassment occurred. Despite Nelson’s determination that no sexual harassment occurred, Purdue directed Amundsen — under threat of termination— to take a three month unpaid leave of absence during which he would receive counseling and management training. Thereafter, Nelson and James Lang (Lang), Purdue’s National Sales Manager, traveled to Amundsen’s district, informed the employees that Amundsen’s language was inappropriate and unacceptable, and trained employees on Purdue sexual harassment complaint procedures. After the Nelson/Lang visit, Hocevar’s co-worker Mary Beck-Johnson testified that workplace conduct “absolutely changed” — “personal” matters were no longer discussed and inappropriate language was no longer used at meetings.

In mid-April 1996, Amundsen returned from the unpaid leave of absence. On May 2, 1996, Hocevar filed a charge of sexual harassment with the Equal Employment Opportunity Commission (EEOC) and Purdue terminated her a little over a month later by letter dated June 7, 1996. Hocevar thereafter filed her claim alleging retaliatory discharge on July 10, 1996. Hocevar now appeals the district court’s grant of summary judgment in favor of Purdue.

II. DISCUSSION

A. Retaliation

The district court found that Hocevar made a prima facie case of retaliation following her claim of sexual harassment with the EEOC. It found that (1) Hocevar had engaged in a statutorily protected activity;⁴ (2) an adverse employment action occurred; and (3) the adverse employment action was causally linked to the protected activity.⁵ Nonetheless, the district court found that Purdue articulated a nondiscriminatory reason for termination, namely, the company’s need to restaff her vacant position.⁶ The district court furthermore found that Hocevar had not shown evidence that Purdue’s reason was pretextual.

Based on our de novo review of the record, we reverse the grant of summary judgment on Hocevar’s retaliation claim. The overall record establishes the plaintiff has demonstrated sufficient evidence, if believed, that the reason given for her discharge simply masked the true reason for the discharge — retaliation for filing an EEOC charge. See Furnco Const. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978).⁷ The record demonstrates several factors from which a trier of fact might infer that retaliation was the true reason for her discharge:

(1) the close proximity in time between Hocevar’s discharge and Amundsen’s return to work after his three-month suspension without pay for sexual harassment as reported by Hocevar and others;

(2) the close proximity of Hocevar’s filing the EEOC claim of sexual harassment and her discharge;

(3) that long prior to the company’s reason for Hocevar’s discharge, the Mayo Clinic account was taken away from the plaintiff and that account was unserviced for over three months thus depriving Hocevar of substantial sales commission;

(4) that Hocevar was targeted by Amundsen and Kasprzycki for preprobation in July 1995;

(5) that defendant had earlier refused to accommodate plaintiffs work restriction following a car accident, when defendant’s own employment expert testified that such accommodation could have occurred;

(6) that Amundsen had required Hoce-var to call him every day with a special report about her sales calls; no other employee was required to do so;

(7) that Kathy Kiekhaefer testified that employees who complained about their manager “eventually were gone from the organization altogether.”

Hocevar’s allegations, if proven true, evidence a long history of unfavorable actions by Amundsen against her virtually from the moment she was placed under his supervision. During the period in which Amundsen gave her the lowest possible performance ratings and placed her on probation, Hoeevar consistently exceeded Purdue sales quotas and received bonuses. Hocevar’s sales performance exceeded quota notwithstanding the fact that Amundsen removed a lucrative portion of her sales territory and despite the offensive work environment and heightened scrutiny by Amundsen. After Hoeevar notified Purdue of Amundsen’s offensive behavior, Amundsen was forced to take an unpaid leave of absence. Less than a month after his return, Hoeevar filed a sexual harassment claim and shortly thereafter was terminated.

Giving Hoeevar the benefit of all favorable inferences on summary judgment, we hold there exists sufficient inference that the company’s sudden need to restaff the Mayo Clinic territory was indeed questionable and that Hocevar’s filing of her complaint with the EEOC was the motivating act that caused Amundsen to discharge her.

It is not for this court, nor for the district court, to weigh the evidence and decide whether Purdue’s proffered reason was true. As long as there exists conflicting evidence upon which reasonable men and women might differ, we find sufficient evidence of pretext to survive the motion of summary judgment. Under the circumstances, we find the district court erred in granting summary judgment on Hocevar’s retaliation claim. We, therefore, reverse the grant of summary judgment on Hoce-var’s claim of retaliation for the exercise of protected activity.

1

. The district court dismissed the action against Amundsen. There is no appeal from that order of dismissal.

2

. The timing of the reduction in Hocevar's sales territory is not clear from the record. Hocevar’s affidavit indicates the reduction occurred in the summer of 1995. Hocevar's EEOC complaint, however, indicates the event occurred on September 5, 1995. The district court found the event occurred prior to her August 16, 1995, injury and disability leave. See Dist.Ct.Mem. and Order at 13.

3

.In selling forth the facts of this case, we explicitly recite the use of foul and offensive language. Unfortunately, such a recitation is necessary to accurately depict the language used in order to provide a more precise sense of the work environment that existed at Purdue. Women in any work environment will be totally bewildered by the suggestion of Judge Beam that these terms are not sexual in content or demeaning to women.

4

. An employer may not discriminate against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a).

5

. The defendant seeks to refute that any adverse employment had taken place. Without getting into evidentiary detail, it is undisputed that Hocevar claims she lost her job for engaging in protected activity. As the district court points out, Hocevar’s discharge followed the protected activity so closely in time so as to create an inference of retaliating motive, citing Kiel v. Select Artificials, Inc., 142 F.3d 1077, 1080 (8th Cir.1998), reh'g granted and opinion vacated (Jun. 5, 1998).

6

. In its letter terminating Hocevar, Purdue advised that it would make every effort to locate a suitable territory for her when she was certified as able to return to work. Purdue suggests this precatory offer of reinstatement constitutes sufficient immunity from a claim of retaliation. Whether this offer to mitigate the harshness of discharge was sincere is a question of fact for the jury. Whatever intended, it cannot serve to provide immunity from liability if Purdue retaliated against a person who engaged in a statutory protected right.

7

.The Supreme Court observed, "when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as [age]." Furnco Const. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978).