CA-99-877-S Equal Employment Opportunity Commission v. R&rventures, d/b/a Taco Bell

Filed: April 2, 2001
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 00-1702
(CA-99-877-S)
Equal Employment Opportunity Commission,
Plaintiff - Appellant,
versus
R&R Ventures, d/b/a Taco Bell,
Defendant - Appellee.
O R D E R
The court amends its opinion filed March 23, 2001, as follows:
On page 8, second full paragraph, line 3 -- “June of 1997" is
corrected to read “June of 1996.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk

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PUBLISHED PUBLISHED PUBLISHED PUBLISHED
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff-Appellant,
No. 00-1702
v.
R&R VENTURES, d/b/a Taco Bell,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-99-877-S)
Argued: January 23, 2001
Decided: March 23, 2001
Before WILKINSON, Chief Judge, and WILKINS and
KING, Circuit Judges.
_________________________________________________________________
Reversed and remanded by published opinion. Chief Judge Wilkinson
wrote the opinion, in which Judge Wilkins and Judge King joined.
_________________________________________________________________
COUNSEL COUNSEL COUNSEL COUNSEL
ARGUED: ARGUED: ARGUED: ARGUED: Julie Loraine Gantz, EQUAL EMPLOYMENT OPPOR-
TUNITY COMMISSION, Washington, D.C., for Appellant. Paul
Joseph Weber, HYATT, PETERS & WEBER, L.L.P., Annapolis,
Maryland, for Appellee. ON BRIEF: ON BRIEF: ON BRIEF: ON BRIEF: C. Gregory Stewart, General
Counsel, Philip B. Sklover, Associate General Counsel, Vincent J.

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Blackwood, Assistant General Counsel, EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Appellant.
Christopher D. Buck, BUCK, MIGDAL & MEYERS, CHARTERED,
Annapolis, Maryland, for Appellee.
_________________________________________________________________
OPINION OPINION OPINION OPINION
WILKINSON, Chief Judge:
The Equal Employment Opportunity Commission (EEOC) brought
this suit against R&R Ventures, owner of the Severna Park, Maryland
Taco Bell. The EEOC alleges that Edwin Wheeler, a former manager
of the restaurant, sexually harassed various female employees. The
district court held that Wheeler's conduct was not severe enough to
create a triable issue of sexual harassment. We reverse.
I.
Edwin Wheeler used to manage the Severna Park Taco Bell for
R&R Ventures. Shelby Scott and Brandyn Potter worked as entry-
level employees under Wheeler. R&R claims that Wheeler was a dif-
ficult manager who abused male and female employees alike. The
EEOC claims, however, that Wheeler singled out his female subordi-
nates for especially cruel treatment and that this constituted sexual
harassment. For purposes of summary judgment, we shall address the
facts in the light most favorable to the EEOC as the non-prevailing
party.
Shelby Scott was one of Wheeler's victims. She was only fifteen
when she started work at the Severna Park Taco Bell. Scott claims
that Wheeler made sexual jokes on a daily basis and that he frequently
discussed sexual positions and experiences. When Scott bent over,
Wheeler told her she was giving him a "cheap thrill." He commented
regularly about the size of her buttocks and breasts. He repeatedly
asked Scott if she liked to be spanked. He also frequently said that
women were stupid as compared to men. Wheeler made these com-
ments every time he worked with Scott, often in front of other
employees. Because of Wheeler's comments, Scott suffered an eating
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disorder and lost a significant amount of weight in an effort to avoid
attracting attention to her body.
Although Scott repeatedly asked Wheeler to stop making sexual
comments, he persisted. He did so even though Scott became visibly
upset. Ultimately, Scott buckled under the pressure and resigned in
June of 1996. When she resumed working at Taco Bell in August of
1996, Wheeler began harassing her again. Scott complained about
Wheeler's conduct to three other managers at her store, none of whom
took any action. This prompted Scott's mother to lodge several com-
plaints with Mike Lee, then R&R's Area Manager. Lee did not return
any of her calls. Another R&R employee, however, investigated the
claims by interviewing five or six female employees who worked for
Wheeler. Neither Scott nor Wheeler were interviewed as a part of this
investigation and no disciplinary action resulted.
On October 27, 1996, after Scott and her mother had complained
to Lee, Scott arrived early to work. Wheeler screamed at Scott, reduc-
ing her to tears, because of her early arrival. As Scott was leaving,
one of the other managers told her to take the rest of the day off.
When she did, Wheeler suspended her for two weeks. Scott was never
returned to the work schedule. Scott filed a charge of discrimination
with the EEOC on February 10, 1997. On February 18, the EEOC
served notice of the charge on R&R ventures.
About the same time Scott filed her charge with the EEOC, Bran-
dyn Potter began working at the store. Potter was twenty when she
started working with Wheeler. Wheeler flirted with Potter and repeat-
edly made sexual comments in her presence. For example, Wheeler
inquired about the size of Potter's pants and complained to her about
how long it had been since he had engaged in sex. Wheeler also belit-
tled Potter in front of others, telling her she was stupid. Wheeler
behaved this way every time the two worked together. Potter cried
every morning at the thought of having to work with Wheeler and fre-
quently left in tears on account of his verbal assaults.
As did Scott, Potter complained to Wheeler and asked him to stop.
She also complained to another manager, Tammy Hartley, who told
Potter that she was overreacting. When she decided to complain to
R&R's higher management, none of the managers would give her
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Mike Lee's phone number. After two weeks, however, Potter
obtained the number and called Lee to complain.
Lee responded by offering to move Potter to the Crofton Taco Bell
while he worked out the details of transferring Wheeler. Since the
Crofton assignment could not take place immediately, Lee told Potter
to take a week off so she would not have to work with Wheeler. Dur-
ing her week off, however, Hartley called Potter and told her she
would be fired if she did not come to work. When Potter arrived at
the store, Wheeler confronted her. He screamed at Potter, saying that
she "had no [expletive deleted] right to go to my boss and complain"
and that she was a bitch. Potter left immediately and did not return
until Wheeler had been transferred. When she returned, however,
R&R management reduced her hours so much that she quit and found
another job.
On March 30, 1999, the EEOC filed this suit. The complaint
alleged that R&R was liable for a hostile working environment. The
complaint also alleged that R&R retaliated against Scott and Potter
for objecting to Wheeler's behavior. After discovery, the district court
granted R&R's motion for summary judgment. It ruled that the
alleged misconduct was not sufficiently severe or pervasive to create
a hostile work environment. According to the district court, this case
was "about a crude supervisor who made the life of his subordinates
miserable," but whose conduct failed to rise to the level of a Title VII
violation. The district court also held that there was insufficient evi-
dence to establish a prima facie case of retaliation. The EEOC now
appeals.
II.
Title VII prohibits employers from, inter alia , discriminating
against an employee based on sex with respect to the terms, condi-
tions, or privileges of employment. 42 U.S.C. § 2000e-2(a)(1). Since
an employee's work environment is a term or condition of employ-
ment, Title VII creates a hostile working environment cause of action.
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 73 (1986). In order
to succeed on a claim of hostile workplace harassment, the EEOC
must prove the following: (1) the harassment was because of sex; (2)
the harassment was unwelcome; (3) the harassment was sufficiently
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severe or pervasive to create an abusive working environment; and (4)
some basis exists for imputing liability to the employer. Hartsell v.
Duplex Prods., Inc., 123 F.3d 766, 772 (4th Cir. 1997). Since the
EEOC seeks here to reverse a grant of summary judgment, it must
establish a material dispute of fact with respect to each of the four
requirements.*
A.
R&R first claims that Wheeler's harassment of his female employ-
ees was not because of sex. Rather, R&R claims that Wheeler was an
"equal-opportunity" harasser who abused men and women alike.
However, the allegations contained in the depositions of Scott and
Potter, if proven at trial, would rebut this argument fully. While
Wheeler may sometimes have been abusive toward male employees,
the allegations indicate that Wheeler directed his sexually pointed
comments exclusively to the young women who worked for him. For
example, Pedro McKee, a male who worked under Wheeler, testified
that only female employees complained about Wheeler's inappropri-
ate sexual comments. Further, Wheeler's repeated close examination
of female employees' bodies, his inquiries about pant size, and his
repeated references to the size of Scott's buttocks and breasts demon-
strates that Wheeler behaved differently towards his female employ-
ees. Thus, the evidence indicates Wheeler did more than engage in
generally abusive, though non-actionable, behavior. His curiosity and
derision were reserved for the young women whom he supervised.
_________________________________________________________________
* The district court erroneously concluded that the complaint was time
barred. In a deferral state such as Maryland, a charge is timely if it is
filed with the Commission within 300 days of the last alleged act of dis-
crimination and served on the company within ten days of being received
by the EEOC. 42 U.S.C. § 2000e-5(e) & (e)(1). Scott's charge was filed
on February 10, 1999, 106 days after the last alleged act of discrimina-
tion. The EEOC served notice on R&R on February 18, 1999. Because
Scott filed a timely charge and because the allegations grew out of a rea-
sonable investigation of that charge, the claims alleged by the EEOC
were properly before the district court.
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B.
The second element of a hostile workplace claim is whether the
harassment was unwelcome. R&R does not and cannot claim that
Wheeler's behavior was welcome.
C.
The third element focuses on whether the harassment was suffi-
ciently severe or pervasive to create an abusive working environment.
As the Supreme Court has explained, "not all workplace conduct that
may be described as `harassment' affects a `term, condition, or privi-
lege' of employment within the meaning of Title VII." Meritor, 477
U.S. at 67. Boorish behavior may exist apart from any propensity to
discriminate. Title VII, however, "affords employees the right to work
in an environment free from discriminatory intimidation, ridicule, and
insult." Id. at 65.
In order to clear the high threshold of actionable harm, the conduct
in question must (1) be "severe or pervasive enough to create an
objectively hostile or abusive work environment," and (2) be subjec-
tively perceived by the victim to be abusive. Harris v. Forklift Sys-
tems, Inc., 510 U.S. 17, 21 (1993). In conducting the objective
inquiry, courts should examine "all the circumstances," including (1)
the frequency of the discriminatory conduct; (2) its severity; (3)
whether it is physically threatening or humiliating, or merely offen-
sive; and (4) whether it unreasonably interferes with an employee's
work performance. Id. at 23. In conducting the subjective inquiry we
need only look at the testimony of the complaining witnesses. Since
we have already concluded that Scott and Potter subjectively per-
ceived the environment to be abusive, see supra Section II.B, we shall
proceed to the objective inquiry and examine its four components in
turn.
R&R argues that the complained of conduct was not frequent and
that none of the witnesses could recall more than two incidents of
harassment towards them. This is simply not true. Scott claimed that
Wheeler harassed her every time they worked together. Specifically,
she testified that "every single day" Wheeler would mention "how
nice of a butt I had and how much guys would love to just spank me
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or how much I should try it." Potter too described Wheeler's miscon-
duct as a daily event. She claimed that Wheeler would make daily
inquiries into her sex life and made sexual comments and jokes on a
daily basis.
R&R also claims that Wheeler's harassment was not sufficiently
severe to sustain a hostile work environment claim. In support, R&R
points to the absence of any allegations of unwanted touching, overt
sexual propositions, or physical threats. One of Scott's complaints,
however, was that Wheeler sometimes touched her and brushed up
against her. Scott's mother also claimed to have witnessed Wheeler
touching an employee's breasts in an inappropriate fashion.
Even without these allegations, however, R&R's arguments are
misplaced as a matter of law. "A work environment consumed by
remarks that intimidate, ridicule, and maliciously demean the status
of women can create an environment that is as hostile as an environ-
ment that contains unwanted sexual advances." Smith v. First Union
Nat'l Bank, 202 F.3d 234, 242 (4th Cir. 2000). In this case, Wheeler
allegedly described his sex life and discussed sexual positions with
Scott and Potter. He regularly asked Scott if she liked to be spanked,
if she had "gotten laid," and complained about his lack of sexual
prowess. On almost a daily basis he commented on Scott's buttocks
and breasts, asked Potter what size pants she wore, and made inappro-
priate sexual remarks. He made these comments in front of other
employees and customers and, in doing so, made his victims uncom-
fortable and visibly upset. Sometimes he even reduced them to tears.
These allegations, if proven, would be more than sufficient to estab-
lish that Wheeler created an environment consumed by remarks that
ridiculed and demeaned the status of women.
Moreover, the Supreme Court has held that determining "the objec-
tive severity of harassment" requires consideration of "all the circum-
stances," including "the social context in which particular behavior
occurs and is experienced by its target." Oncale v. Sundowner Off-
shore Serv., Inc., 523 U.S. 75, 81 (1998). "The real social impact of
workplace behavior often depends on a constellation of surrounding
circumstances" in order to determine what conduct "a reasonable per-
son in the plaintiff's position would find severely hostile or abusive."
Id. at 81-82. Here the severity of Wheeler's sexual misconduct was
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compounded by the context in which it took place. Throughout his
campaign of torment, Wheeler was an adult male in a supervisory
position over young women barely half his age. And he is alleged to
have engaged in a systematic effort to cripple the self-esteem of the
teenagers who assisted him at the store. This eclipses the threshold of
severity required to defeat summary judgment.
R&R next argues that Wheeler's comments were neither physically
threatening nor humiliating, but merely offensive in a manner not pro-
hibited by Title VII. In support, R&R points out that Title VII does
not "guarantee freedom from insensitive remarks that do not create an
objectively abusive work environment," Beall v. Abbott Labs., 130
F.3d 614, 620-21 (4th Cir. 1997), and that "Title VII does not attempt
to purge the workplace of vulgarity." Hopkins v. Baltimore Gas &
Elec. Co., 77 F.3d 745, 753 (4th Cir. 1996) (internal quotations omit-
ted). Such maxims, while true, do not allow R&R to escape the
import of Wheeler's behavior. The facts as alleged go beyond mere
offensiveness. Indeed, the incessant put-downs, innuendos, and leers
directed at these young women literally caused them to become sick
at the prospect of going to work.
R&R also disputes the claim that Wheeler's harassment unreason-
ably interfered with any employee's work performance. In support,
R&R points out that although Scott quit in June of 1996, she returned
in August. According to R&R, the harassment could not have been
interfering with her work if she was willing to come back. As was
explained in Harris, however, the inquiry "is not whether work has
been impaired, but whether working conditions have been discrimina-
torily altered." 510 U.S. at 25 (Scalia, J., concurring). We have no
hesitation in concluding that Wheeler's alleged conduct was so
severe, especially when considered from his victims' perspective, that
it discriminatorily altered their working conditions.
D.
The fourth element of a hostile work environment claim asks if
there is any basis for imputing liability to the employer. R&R claims
that as a matter of law, the Faragher/Ellerth affirmative defense pro-
tects R&R from being held liable for Wheeler's misconduct. See
Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington
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Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). In order to escape lia-
bility, R&R must prove that it exercised reasonable care in preventing
and promptly correcting any sexually harassing behavior. Faragher,
524 U.S. at 807; Ellerth, 524 U.S. at 765. It also must show that "the
plaintiff employee unreasonably failed to take advantage of any pre-
ventive or corrective opportunities provided by the employer or to
avoid harm otherwise." Faragher, 524 U.S. at 807; Ellerth, 524 U.S.
at 765.
In this case, Scott and Potter affirmatively sought to bring their
complaints about Wheeler to the attention of several different manag-
ers. Potter complained both to Tammy Hartley, another Taco Bell
manager, and to R&R's area manager, Mike Lee. Scott also com-
plained to three other managers at the store and to Mike Lee. Scott
and Potter thus complained at virtually every available opportunity.
It therefore cannot be said, as a matter of law, that Scott and Potter
failed to take advantage of any corrective opportunities.
What can be said, however, is that R&R management failed to
promptly correct Wheeler's harassing behavior. Hartley responded to
Potter's complaints by saying that Potter was overreacting. Scott's
complaints to the three other managers at the store went similarly
unattended. Further, when Scott's mother complained to Mike Lee,
R&R failed to interview Scott, failed to interview Wheeler, and took
absolutely no corrective action. Under these circumstances, R&R can-
not claim as a matter of law that it exercised reasonable care to
promptly correct any sexually harassing behavior.
III.
The EEOC also appeals the grant of summary judgment on the
retaliation claim. Title VII prohibits an employer from discriminating
against an employee in retaliation for opposing an unlawful employ-
ment practice. See 42 U.S.C. § 2000e-3(a). To establish a prima facie
case of retaliation, the EEOC must prove (1) that Scott and Potter
engaged in a protected activity; (2) that R&R took an adverse action
against Scott and Potter; and (3) a causal connection between the two.
Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 443 (4th Cir. 1998).
The district court accepted as sufficient EEOC's allegations that R&R
took adverse actions against Scott and Potter. It held, however, that
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the EEOC could not establish that these adverse actions were a result
of Scott and Potter's complaints about Wheeler.
We disagree. After complaining, Scott was suspended by Wheeler
and never recalled. Potter claims that after she complained, Wheeler
told her she "had no [expletive deleted] right to go to my boss" and
that she was a bitch. Shortly thereafter, Potter's hours were reduced
to the point that she resigned in order to find other employment. The
fact that adverse actions followed so closely on the heels of Scott's
and Potter's complaints supports their prima facie case of retaliation,
especially since the decision to suspend Scott and to reduce Potter's
hours were made by people who were well aware that they had com-
plained. Id. at 444.
These facts certainly require an explanation. See id. at 443
(employer can rebut prima facie case by articulating legitimate, non-
retaliatory reason for its actions). R&R makes no attempt to provide
any legitimate reason for why Scott was never recalled to work. Even
the stated reason for her suspension -- that she arrived for work too
early -- raises as many questions as it answers. With respect to Pot-
ter, R&R claims that her hours were not reduced, and that if they
were, it was because she stopped being a reliable employee. As the
EEOC points out, however, this explanation is undermined by the tes-
timony from R&R management that Potter was a good employee who
herself was being prepared for a management position.
The above facts raise a genuine dispute on the ultimate question of
R&R's retaliatory motive. Summary judgment on the retaliation claim
was therefore improper.
IV.
For the foregoing reasons, the judgment of the district court is
reversed and the case is remanded with directions that it go to trial.
REVERSED AND REMANDED
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