Ziskie v. Mineta

547 F.3d 220, 2008 U.S. App. LEXIS 23702, 91 Empl. Prac. Dec. (CCH) 43,382, 104 Fair Empl. Prac. Cas. (BNA) 1377, 2008 WL 4891202
CourtCourt of Appeals for the Fourth Circuit
DecidedNovember 14, 2008
Docket06-2060
StatusPublished
Cited by149 cases

This text of 547 F.3d 220 (Ziskie v. Mineta) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ziskie v. Mineta, 547 F.3d 220, 2008 U.S. App. LEXIS 23702, 91 Empl. Prac. Dec. (CCH) 43,382, 104 Fair Empl. Prac. Cas. (BNA) 1377, 2008 WL 4891202 (4th Cir. 2008).

Opinion

Affirmed in part, vacated and remanded in part by published opinion. Judge WILKINSON wrote the opinion, in which Judge NIEMEYER and Judge DUNCAN joined.

OPINION

WILKINSON, Circuit Judge:

Plaintiff Cynthia Ziskie appeals the grant of summary judgment on her Title VII claims in favor of defendant the Secretary of Transportation, who administers the Federal Aviation Administration (FAA), Ziskie’s former employer. She al *222 leges that the defendant created a sexually hostile work environment and retaliated against her for asserting her rights. Because in considering the evidence the district court seemed to feel itself constrained in a way that is inconsistent with circuit precedent and with our civil justice system’s basic notions of relevance, we vacate and remand on the hostile work environment claim. We affirm on the retaliation claim.

I.

On appeal of a grant of summary judgment, we “view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the [summary judgment] motion.’ ” Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1774, 167 L.Ed.2d 686 (2007) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam)). Cynthia Ziskie worked as an air traffic controller (ATC) at the FAA’s Washington Air Route Traffic Control Center (the Washington Center) in Leesburg, Virginia. The Washington Center manages the flow of air traffic to and from other regional centers. Ziskie became an ATC in 1982; she served in that position until her retirement in June 2005.

Beginning in 1991 and continuing into 2002, Ziskie had a part-time schedule, and worked Mondays, Tuesdays, and Wednesdays. On April 1, 2002, employees at the Washington Center were notified that part-time employment would no longer be available beginning May 5, 2002. Ziskie asked for an extension of her part-time schedule in order to make childcare arrangements, but her request was denied. After she was moved to a full-time schedule, Ziskie called in sick for eight straight weeks every Thursday and Friday, the days she previously had off. As a result, she was reprimanded for abusing sick leave. Part-time schedules were reinstated in the fall; Ziskie worked only one full-time week during the entire period that part-time schedules were unavailable.

Shortly after the cancellation of part-time schedules, Ziskie complained in a memo that she was experiencing sexual harassment at the Washington Center. Ziskie began keeping a diary in which she recorded co-workers’ comments that she found offensive. On May 30, 2002, Ziskie filed a formal complaint with the Department of Transportation’s (DOT) Office of Civil Rights.

Ziskie alleged, as she alleges in the present litigation, that she and all other female ATCs at the Washington Center “have been and are being subjected to a continuing atmosphere of harassment and intimidation on-the-job by male ATCs with the acquiescence [of] management” and that she had suffered retaliation for complaining about the harassment. Ziskie stated in her complaint that “unremitting use of profanity, sexual innuendos, mass flatulence, and other behaviors designed and intended to make female workers uncomfortable and ill at ease” created a hostile work environment.

There are essentially four different features of the workplace that Ziskie points to as creating a hostile work environment. First, profanity and other crude language and behavior, such as belching, were commonplace. For example, male controllers often referred to pilots as “dick head pilots].” Ziskie heard one co-worker call a supervisor a “stupidvisor”; another told a female supervisor to “fuck off.” Male controllers found it amusing to intentionally pass gas in the presence of other employees, including Ziskie.

Second, Ziskie points to a number of sexist comments directed to other employees or not directed to anyone in particular. *223 Some of these comments Ziskie heard herself. They include: a co-worker called another woman “an aben with big boobs”; a male controller talked about a party where women were wearing “tit-teasing sweaters”; when two male coworkers discussed a former female co-worker, one called her a “chick,” and the other said she had breast enhancement; and male controllers, including a male supervisor, laughed when a male controller made a sexual comment about a female supervisor. Other conduct Ziskie did not witness, but was described in affidavits of other female employees submitted by Ziskie. Examples include: when a female controller was pregnant, male controllers made fun of her breasts; someone wrote on the men’s room wall that a female employee “has big tits”; male ATCs told female co-workers that they should be taking care of their children instead of working; and male employees told a female co-worker that they were upset that she wore shorts instead of pants.

Third, Ziskie claims that FAA Supervisors gave preference to male employees in making their schedules. She recalls a number of instances in which she feels male employees unjustifiably received days off that she had requested, or otherwise got preferential treatment over her or other female employees.

Finally, Ziskie claims she was frequently treated with hostility by a number of her male co-workers. A male controller loudly questioned how Ziskie had been able to keep her job. A supervisor told her that she should quit because her husband worked. Ziskie’s treatment by co-workers worsened after she began to complain to supervisors about her treatment, which she did repeatedly. For example, a male controller working a different sector of airspace who was “handing off’ a plane into Ziskie’s sector called Ziskie a “fucking moron.” After she complained to management, several other male co-workers called each other “moron” jokingly in front of Ziskie. Afterwards, she contends, coworkers who were supposed to be cooperating with or assisting Ziskie during flight control procedures actively thwarted her.

In one instance, she says a co-worker removed the equipment Ziskie needed to do her job; in another, a male controller handed off a plane into Ziskie’s sector, putting it on a collision course with other planes which Ziskie had to divert. Another co-worker told Ziskie, when she tried to look at the work logs in which the arrival and departure times of employees were noted, that she had “been warned”; when she later tried to look at them again, he yelled at her. In November 2003, Ziskie found that her tires had been slashed in the parking lot at work. There is, however, nothing in the record indicating who slashed them, or why. Several co-workers made negative or mocking remarks to Zi-skie about the complaints she had made, and she heard indirectly about other negative remarks made about her complaints.

Ziskie complained about all of the above conduct to management. A study commissioned by management concluded that seven employees believed the bay in which Ziskie worked had problems involving gender relations. However, no one was disciplined as a result of the complaints or the study.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
547 F.3d 220, 2008 U.S. App. LEXIS 23702, 91 Empl. Prac. Dec. (CCH) 43,382, 104 Fair Empl. Prac. Cas. (BNA) 1377, 2008 WL 4891202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ziskie-v-mineta-ca4-2008.