Neely v. McDonald's Corp.

340 F. App'x 83
CourtCourt of Appeals for the Third Circuit
DecidedAugust 10, 2009
DocketNo. 07-2186
StatusPublished

This text of 340 F. App'x 83 (Neely v. McDonald's Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Neely v. McDonald's Corp., 340 F. App'x 83 (3d Cir. 2009).

Opinions

OPINION

SMITH, Circuit Judge.

Hopelynn Neely appeals from an order of the United States District Court for the Western District of Pennsylvania, which granted summary judgment in favor of her former employer, McDonald’s Corporation, on Neely’s claims of employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and the Pennsylvania Human Relations Act (PHRA), 43 Pa. Con. Stat. § 951.1 For the reasons set forth below, we will affirm the judgment of the District Court.

Neely worked for a McDonald’s restaurant in Crafton, Pennsylvania, beginning in August of 2003. The following month, Desi Carter started work at this same location as an assistant manager-trainee. In early October, Carter began harassing Neely, touching her inappropriately on several occasions, and calling her “babe.” Neely provided a written complaint on October 27, 2003 to Christine Belloek, the restaurant manager, prompting Belloek to call her supervisor Gwen Menzer. Men-zer initiated an investigation. Thereafter, on November 12, 2003, Menzer issued a written warning to Carter that his behavior and language violated McDonald’s “zero tolerance policy” regarding discrimination and sexual harassment. The warning indicated that any future violations of the policy could result in further discipline, including termination. At the time this warning was issued, Menzer and Bel-loek reviewed and reiterated McDonald’s “zero tolerance policy” with Carter. Carter signed the written warning. In addition to this disciplinary meeting, Menzer instructed Belloek to schedule Neely and Carter on different shifts. These measures were effective in stopping the offensive conduct, at first.

After about a month, Neely and Carter’s shifts began to overlap for approximately an hour. According to Neely, this was not problematic. However, by the end of December or the beginning of January, Carter started working much of the same shift as Neely. According to Neely, Carter “was looking [her] up and down” and persisted in calling her, and other female employees, “babe.” On January 22, Carter touched Neely’s lower leg while she was waiting on a customer. According to Neely, Carter claimed he was reaching to get sauce that was stored under the counter. Neely filed a complaint with Belloek. Bel-loek advised that she would inform Menzer of Neely’s complaint. Five days later, Neely resigned, believing that neither Bel-loek nor Menzer were going to respond to her complaint.

Thereafter, she filed a civil action against McDonald’s and Carter. She alleged, inter alia, claims under Title VII and the PHRA against McDonald’s for a hostile work environment and constructive [85]*85discharge.2 After discovery closed, McDonald’s moved for summary judgment. The Court rejected Neely’s contention that Carter was a supervisor and concluded that her hostile work environment claim failed because McDonald’s had taken prompt remedial action upon learning of the offensive conduct. It also granted summary judgment in favor of McDonald’s on Neely’s constructive discharge claim because she had not established that the subsequent conduct was so intolerable that a reasonable person would have felt compelled to resign.

Neely contends that the District Court erred in concluding that Carter was not a supervisor for purposes of Title VII. “The basis of an employer’s liability for hostile environment sexual harassment depends on whether the harasser is the victim’s supervisor or merely a coworker.” Huston v. Procter & Gamble Paper Products Corp., 568 F.3d 100, 104-05 (3d Cir.2009). In Huston, we considered “who qualifies as a ‘management level’ employee” in the context of imputing constructive notice to an employer of coworker sexual harassment. We concluded “that an employee’s knowledge of allegations of coworker sexual harassment” could be imputed to the employer “where the employee is sufficiently senior in the employer’s governing hierarchy, or otherwise in a position of administrative responsibility over employees under him, such as a departmental or plant manager, so that such knowledge is important to the employee’s general managerial duties.” Id. at 107. We also determined that an employee’s knowledge could be imputed if the “employee is specifically employed to deal with sexual harassment.” Id. In concluding that the employees who had notice of the sexual harassment that Huston complained of were not managers, we considered that these employees were not part of “ ‘the collective body of those who manage or direct an enterprise or interest....’” Id. (omitting citation). Although Huston’s coworkers, who had notice of the sexual harassment, were responsible for overseeing the performance of others in completing the work at hand, they lacked any authority to hire or discipline the others. Id. at 107-08. Such employees, we concluded, were not managers for purposes of imputing notice to their employer of ongoing sexual harassment. Id. at 108-09.

We find Huston instructive. Carter’s position, though labeled assistant manager, did not bestow upon him the authority to hire, fire, and discipline the staff he worked with during his shift. He neither scheduled the staff on his shift nor assigned them to work stations. Those duties were performed by Bellock, the store manager. She was responsible for the operations of the restaurant and answered to upper management. Accordingly, we agree with the District Court that Carter was not a supervisor for purposes of Title VII.

Because Carter was a coworker, McDonald’s may be liable “only if the employer failed to provide a reasonable avenue for complaint or, alternatively, if the employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action.” Id. (citations omitted). We have held that “an employer’s remedial measure is nonetheless adequate if ‘reasonably calculated’ to [86]*86end the harassment.” Jensen v. Potter, 435 F.3d 444, 453 (3d Cir.2006) (quoting Knabe v. Boury Corp., 114 F.3d 407, 412-13 (3d Cir.1997)). In Knabe, we instructed that “whether a chosen remedy was reasonably calculated to prevent further acts of harassment can be answered at the time that remedy is put into place.” 114 F.3d at 415. Thus, the fact that a harasser may persist in the offensive conduct does not preclude a determination that the remedy was adequate. Id. at 411 n. 8, 415; see also Robinson v. City of Pittsburgh, 120 F.3d 1286, 1305 n. 20 (3d Cir.1997) (observing that in Knabe “[w]e held instead that a remedial action is ‘adequate’ if it was ‘reasonably calculated to prevent further harassment,’ whether or not it actually succeeded in doing so”), abrogated on other grounds in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).

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