Nitza Scarbro v. SSA

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 22, 2021
• Docket: 20-5416
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0045n.06

No. 20-5416

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED NITZA SCARBRO, ) Jan 22, 2021 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellant, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT SOCIAL SECURITY ADMINISTRATION, ) COURT FOR THE MIDDLE ) DISTRICT OF TENNESSEE Defendant-Appellee. ) )

BEFORE: SUHRHEINRICH, CLAY, and DONALD, Circuit Judges.

SUHRHEINRICH, Circuit Judge.

I. BACKGROUND

Plaintiff Nitza Scarbro (“Scarbro”) appeals the district court’s grant of summary judgment

to Defendant Andrew Saul, Commissioner of the Social Security Administration, on her Title VII

claim of hostile work environment based on sexual harassment.1 We AFFIRM.

At all times relevant to this suit, Scarbro worked as a GS-12 Operations Supervisor at the

Social Security Administration (“SSA”) in the Nashville, Tennessee, Field Office. Dan Phillips

(“Phillips”) worked as a GS-12 Staff Assistant in the same office. District Manager Mark Blythe

(“Blythe”) and Assistant District Manager Joshua Horn (“Horn”) were the second-line and first-

line supervisors respectively for both Phillips and Scarbro. Scarbro had worked with Phillips since

1 Before the district court, Scarbro brought claims for gender discrimination, hostile work environment, and retaliation. On appeal, we are asked only to consider the hostile work environment claim. No. 20-5416, Scarbro v. SSA

2009, but before September 2012 they had never socialized with each other outside of the office

or had any personal one-on-one conversations.

On September 30, 2012, Phillips approached Scarbro after a meeting and said he

considered her to be a good friend and spoke with her about his marriage. He told her that he and

his wife were having issues and that she wanted an open marriage and inquired whether Scarbro

knew what an open marriage was. Scarbro replied that she thought he needed legal advice and left

the room. Though she mentioned the conversation to a coworker, Carnita Davis, Scarbro did not

complain to management following this meeting.

That same month, Scarbro was collecting seven dollars from each coworker for a

management function. Phillips tried to give her ten dollars, but Scarbro refused to take it because

she did not want to owe him the change. He told her that he did not want his wife to have his

money, and that she was the only woman he wanted to have his money.

Also, in September 2012, Phillips approached Scarbro’s cubicle and asked her to ask her

husband how he dealt with being away from his kids for so long. She responded that she would

not ask him, and Phillips walked away.

Sometime in October 2012, when Scarbro was leaving work, she saw Phillips parked at the

end of the employee parking lot. When Davis asked him what he was doing, he gave her an answer

and then drove away.

Sometime in early October 2012, Scarbro reported to Horn and Blythe that Phillips made

her uncomfortable. She told Blythe that she wanted to talk to Phillips to try to resolve the situation

rather than file a formal complaint. When she spoke with Phillips, he told her he did not know

what she was talking about and that management had already told him to stop talking about his

personal life at work because someone else had already complained about it. She alleges that he

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then continued to approach her with “work related” questions that he did not really need to be

asking her about.

The management team frequently had lunch together, but Scarbro stopped going to lunch

with Phillips following the above incidents. In October or November 2012, Scarbro was going to

lunch with another coworker and Horn. Horn invited Phillips to join them, and all four people

rode in Scarbro’s car. She testified that having Phillips in her car made her uncomfortable.

In December 2012, Horn asked the management group to include Phillips in their lunch

plans. Scarbro told Blythe that she was uncomfortable going to lunch with Phillips, and Blythe

agreed that she did not need to go to lunch with Phillips.

Scarbro later chose not to attend the office Christmas party because she did not want to be

around Phillips. Blythe asked how things were going between her and Phillips, to which she

replied that he had not come to her cubicle and she “was doing fine.”

On January 2, 2013, Phillips approached Scarbro’s desk and asked questions about how

her holidays with her family had been and apologized for the comments he had made the previous

year. Scarbro told him that he made her feel uncomfortable, he could not take back what he had

said, and that he should only speak to her about business. After she complained about this incident

to Blythe, Blythe advised her she could file a formal complaint, and per her request, he instead

approached Phillips directly and told him not to talk to her about anything personal. Blythe assured

Scarbro that Phillips would not be bothering her anymore, and Horn removed her from the

workload involving medical cases that she shared with Phillips.

On June 5, 2013, Scarbro noticed that she and Phillips were the only managers scheduled

to be on duty the following day. When she alerted Horn, he responded that he did not see a problem

as he thought they had worked things out. Phillips repeatedly visited her desk and asked her about

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things such as a pen, asked a question about a technician, and looked for things in a cabinet in the

cubicle where she had set up.

On June 9, 2013, Scarbro became ill and was diagnosed with vertigo, which lasted four or

five days. On June 24, 2013, she complained to Blythe that she and Phillips had been the only

managers on duty on June 6, 2013. He said he could not do anything because it would look like

he was picking on Phillips. On July 22, 2013, Scarbro reported what had transpired to a member

of the Area Director’s office, who told her that management had done what it could. On July 26,

2013, Scarbro asked Blythe if she could stay in her current cubicle, rather than rotate to one closer

to Phillips. Blythe agreed.

On September 30, 2013, Scarbro was the supervisor assigned to close the office. Although

Phillips had left the office before Scarbro, he was still in his car in the parking lot when she walked

to her car. While she was sitting in her car, he drove up the parking lot and parked next to her for

several minutes, then drove off. Scarbro reported this to Blythe the next day, but the entire office

was furloughed the following day due to a government shutdown. Blythe spoke with the security

guard, who said nothing happened, so Blythe dropped the matter.

On October 31, 2013, Scarbro requested to see an EEO officer and reported what had

happened. Horn and Blythe complained that they had had to answer questions from a claims

representative. Scarbro testified that she did not interpret their complaining as an attempt to

pressure her to drop her complaint. In his affidavit to the EEO, Phillips testified that his habit was

to sit in his car and check his messages and that on September 30, 2013, as he was leaving, he

received another call, which was why he pulled off to the side by Scarbro. On December 10, 2013,

Phillips was again in his car when Scarbro left work.

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During the week of March 31, 2014, Scarbro was scheduled to close the office on Monday,

Tuesday, Thursday, and Friday, a total of four days, because some of the other supervisors had

scheduled leave on some of those days. She requested leave for Friday of that week. Horn

approved her request and told her to arrange for another supervisor to close for her. Scarbro felt

she was being treated differently because the other supervisors had scheduled their leave without

having to look for someone else to close.

In June 2014, Phillips made negative comments about technicians in Scarbro’s unit at two

management meetings. Blythe told Scarbro that he and Horn would speak with Phillips about his

remarks.

In October 2014, Scarbro applied for a position in a different SSA component, but she was

not selected for the position. She testified that she did not know “what the recommendation was”

from Horn or Blythe, and that she did not know if the reason she was not selected was because of

them.

In December 2014, Phillips sent Scarbro an instant message telling her she needed to send

a request for credit time, or he could not certify her time and attendance sheet. Phillips had been

certifying the timesheets of other supervisors (like Scarbro) when Blythe and Horn were not

available to do so. When Scarbro complained to Blythe about the instant message, he told the

supervisors they were not to certify each other’s time sheets.

On January 26, 2015, Phillips stayed in the office past 5:30 p.m. even though he had been

told not to stay after hours when Scarbro was closing the office.

Finally, Scarbro alleged that on November 7, 2015, while she was meeting with Horn in

his office, Phillips burped loudly from outside the office, which caused Horn to laugh. She testified

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that this incident was unrelated to her complaint, but that it was an example of Phillips’s poor

behavior that management condoned.

Scarbro exhausted her administrative remedies through the EEO and was granted the right

to sue. Scarbro filed this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq. (“Title VII”), on September 23, 2015. The district court granted summary judgment to SSA

on all of Scarbro’s claims. The court found that Scarbro had failed to demonstrate that the

undisputed facts on the record established conduct that was severe or pervasive enough to create a

hostile work environment. The court therefore did not address the issue of whether SSA knew or

should have known of the alleged harassment but failed to implement prompt and appropriate

corrective action. This appeal followed.

II. ANALYSIS

We review de novo a district court’s decision to grant summary judgment. Hamilton v.

Gen. Elec. Co., 556 F.3d 428, 433 (6th Cir. 2009). Summary judgment is appropriate if “there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). The court must draw all reasonable inferences in the light most

favorable to the nonmoving party. Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703, 710 (6th

Cir. 2001). “We affirm a grant of summary judgment where the record as a whole could not lead

a rational trier of fact to find for the nonmoving party.” Ondo v. City of Cleveland, 795 F.3d 597,

603 (6th Cir. 2015) (cleaned up).

To establish a prima facie case of hostile work environment based on sexual harassment

under Title VII, the plaintiff must establish that:

(1 ) the sexual harassment was unwelcome, (2) the harassment was based on sex, (3) the harassing behavior was sufficiently severe or pervasive to affect the terms, conditions, or privileges of employment, or any matter directly or indirectly related

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to employment, and (4) the employer knew or should have known of the harassment and failed to take immediate and appropriate corrective action.

Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 332 (6th Cir. 2008).

The conduct must be both subjectively and objectively severe and pervasive. The test is

“(1) whether a reasonable person would find the environment objectively hostile, and (2) whether

the plaintiff subjectively found the conduct ‘severe or pervasive.’” Williams v. Gen. Motors,

187 F.3d 553, 568 (6th Cir. 1999). The conduct should be considered as a whole such that “even

where individual instances of sexual harassment do not on their own create a hostile environment,

the accumulated effect of such incidents may result in a Title VII violation.” Id. at 563. “Among

the factors to be considered are ‘the frequency of the discriminatory conduct; its severity; whether

it is physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.’” Clark v. United Parcel Serv.,

Inc., 400 F.3d 341, 351 (6th Cir. 2005) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23

(1993)).

Scarbro argues that she was frequently and routinely subjected to harassment by her

coworker Phillips. Even accepting all her allegations as true, the conduct is not severe or pervasive

sexual harassment under the standards outlined above, and therefore does not give rise to a claim

for a hostile work environment. Though she testified that Phillips’ conduct made her

uncomfortable, and alleges that she suffered pain and illness resulting from the stress brought on

by these interactions, Scarbro has failed to satisfy the objective prong of the inquiry. These

incidents took place over a two-and-half year period and were seemingly minor in nature. Scarbro

does not allege that any physical contact took place, nor does she allege that there were any sexual

or romantic advances. Furthermore, other than the comments about an open marriage and her

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being the only woman he wanted to have his money, she alleges no conduct that is even sexual in

nature.

This court has repeatedly found that conduct that is far more vulgar and overtly sexual did

not create a hostile work environment. A few examples will suffice. In Clark, we found that there

was no hostile work environment where, over the course of two years, a male supervisor told

sexual jokes, twice placed a vibrating pager against a female plaintiff’s thigh and pulled on her

overalls after she told him that she was wearing a thong underneath. 400 F.3d at 351. The court

found that his behavior was “distasteful and boorish” but fell short of “being sufficiently pervasive,

hostile, or abusive to support a legal claim of a hostile work environment.” Id.

In Burnett v. Tyco Corp., we found that a female employee was not subjected to a hostile

work environment when over a six-month period her male manager placed a pack of cigarettes

inside her tank top and bra strap, and made several lewd jokes, including telling the employee she

had “lost [her] cherry.” 203 F.3d 980, 981 (6th Cir. 2000). We concluded that even though the

incident with the cigarettes might even be battery, the conduct as a whole was not sufficiently

severe to create a hostile work environment. Id. at 984–85.

In Morris v. Oldham County Fiscal Court, we found there was no objectively hostile work

environment where a male supervisor told lewd jokes, made a sexual advance on the female

plaintiff during her performance evaluation, referred to her once as “Hot Lips,” and made several

isolated comments about her appearance. 201 F.3d 784, 790 (6th Cir. 2000).

Scarbro fails to point to a single case where this court has found a hostile work environment

existed because of conduct similar to Phillips’s. She has failed to allege any conduct that was

severe or pervasive enough to create a hostile work environment.

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But even if we did find the conduct satisfied this prong of a sexual harassment claim, the

claim would still fail, because SSA appropriate corrective action. Although the federal

government is typically protected by sovereign immunity, Congress has waived that protection for

claims arising under Title VII. See Brown v. Gen. Servs. Admin., 425 U.S. 820, 835 (1976); Steiner

v. Henderson, 354 F.3d 432, 434–35 (6th Cir. 2003). Liability for a hostile work environment can

be imposed upon an employer if the plaintiff can demonstrate that “the employer’s response to the

plaintiff’s complaints ‘manifest[ed] indifference or unreasonableness in light of the facts the

employer knew or should have known.’” Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 311 (6th

Cir. 2016) (quoting Waldo v. Consumers Energy Co., 726 F.3d 802, 814 (6th Cir. 2013)). A

response is likely adequate if it is “reasonably calculated to end the harassment.” Waldo, 726 F.3d

at 814 (internal quotation omitted).

The record demonstrates that Horn and Blythe took corrective action several times in

response to Scarbro’s complaints. They investigated her allegations, told Phillips not to speak to

her about personal matters, respected her request not to have lunch with Phillips, allowed her to

stay in a cubicle farther away from Phillips, asked him not to stay late in the office if she was

closing, and ensured the two of them did not work on the same projects. Scarbro clearly wishes

management had done more, but that alone is insufficient to demonstrate that they did not take

appropriate action. See Thornton v. Fed. Express Corp., 530 F.3d 451, 457 (6th Cir. 2008)

(“[P]laintiff’s dissatisfaction with the investigation does not justify her rejection of the corrective

action.”). In sum, because Scarbro failed to demonstrate a factual question as to whether the

conduct at issue constituted severe or pervasive sexual harassment and whether SSA failed to take

immediate and appropriate corrective action, SSA was entitled to summary judgement on the

hostile work environment claim.

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III. CONCLUSION

Because no reasonable juror would find Phillips’ conduct was severe or pervasive enough

to create a hostile work environment under Title VII, we AFFIRM the judgment of the district

court.

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