Decided: May 30, 2013
The Fourth Circuit affirmed the judgment of the United States District Court for the Western District of North Carolina in its grant of summary judgment to Stephanie Crockett’s (“Crockett”) former employer on her hostile work environment claim under Title VII of the Civil Rights Act of 1963, 42 U.S.C. § 2000e (“Title VII”).
Crockett was employed as a radiologic technologist at Mission Hospital, Inc. (“Mission”) in February 2008 when she was reassigned and Harry Kemp (“Kemp”) became her supervisor; however he was unable to fire her. Kemp remained in that position until his death in March 2010. In December 2009, Crockett was initially counseled for her a lack of initiative based on her work history and concerns expressed by her co-workers. In January 2010, she was cited again for violating an administrative policy that prohibited the use of cellular phones and misrepresenting facts to Mission representatives. Finally, in February 2010, she was given a final warning for the use of a cellular phone while working and not on break. Crockett was required to sign the final warning and the warning provided that any further misconduct would result in termination of her employment. Kemp was not involved in the final warning. Shortly following the final warning, Kemp was allegedly involved in an incident with Crockett that included him accusing her of complaining about her performance evaluation that he authored and making unwanted sexual advances towards her which included physical touching. Crockett did not contact anyone in the Human Resources (HR) department after the incident. Following the incident, Crockett took leave pursuant to the Family Medical Leave Act for approximately one week; during which time she retained an attorney. When she returned to work, she met with HR and was informed that Kemp had reported continued misuse by Crockett of her cell phone and accused her of ‘flashing’ him to persuade him not to report her. At this point, Crockett told HR that Kemp had done something “horrific” to her, but refused to elaborate, stating that her attorney had instructed her not to do so. Crockett was subsequently placed on suspension pending the conclusion of an investigation. Kemp was later approached by HR with Crockett’s allegation, as was Crockett. Crockett, again, refused to provide details. During the second meeting with Crockett, HR provided her with a copy of the company’s sexual harassment policy and information on how to report a claim of harassment. HR continued its investigation and had another meeting with Crockett during which they told her to return to work and that their investigation had failed to validate Kemp’s claims against her. During the process, Crockett filed an Equal Employment Opportunity Commission (“EEOC”) charge against Kemp; however Kemp continue to deny anything inappropriate occurred. Finally, in March 2010, Crockett filed a formal complaint to report the incident with Kemp; however it only referenced her EEOC charge and provided no details of the incident. Later in the month, Crockett met with HR representatives and disclosed she had surreptitiously recording a conversation with Kemp. HR met with Kemp again where he again denied any wrongdoing. Kemp subsequently left work and committed suicide. Following Kemp’s suicide, Crockett played the tape recording she made which also recorded conversations she was having with patients while she was treating them and statements made by her patients. Crockett’s employment was terminated for tape recording interactions with her patients in violation of the Health Insurance Portability and Accountability Act (“HIPAA”). Crocket filed an action against Mission in state court alleging claims for employment discrimination in the form of hostile work environment and retaliatory discharge in violation of Title VII, as well as a state law claim for intentional infliction of emotional distress. Mission removed the action to federal court where Crockett agreed to dismiss the retaliatory discharge and intentional infliction of emotional distress claims. Mission moved for summary judgment on the remaining hostile work environment claim and the district court granted the motion. The district court held that Crockett could not establish that she incurred “tangible employment action” as a result of her claims and that Mission was entitled to an affirmative defense to defeat liability because it exercised reasonable care in dealing with the sexual harassment claims. Crockett appealed.
The Fourth Circuit explained that in order to establish a claim for a hostile work environment based on sexual harassment, the plaintiff must prove “(1) the conduct was unwelcome; (2) it was based on the plaintiff’s sex; (3) it was sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and to create an abusive work environment; and (4) it was imputable on some factual basis to the employer.” If the claim is against the employee’s supervisor, the company is subject to vicarious liability, but if the plaintiff did not “suffer a tangible employment action,” the employer can assert an affirmative defense that can protect it from liability. The district court and the Fourth Circuit focused their decisions on the fourth element of the claim and the fact that Crockett did not suffer a tangible employment action. Such an action requires a significant change in the employee’s employment status, such as ‘hiring, firing, failing to promote, and reassignment with significantly different responsibility, or a decision causing a significant change in benefits.’ Crockett did not argue that her firing constituted tangible employment action because she was fired appropriately for violating HIPAA. Rather, Crockett challenged her seven-day suspension and argued that Kemp’s harassing conduct was not limited to the single incident and his false reporting led to her suspension that altered her condition of employment. The Fourth Circuit agreed with the district court that Crockett was unable to prove her suspension was caused by Kemp’s sexual harassment for three main reasons. First, when she was suspended, Crockett had yet to tell anyone that Kemp had sexually harassed her. Second, at the time of her suspension, Crockett had been given a final warning regarding the use of cell phones. Lastly, though Crockett asserted she had suffered tangible employment action because she had been suspended without pay, she could not prove she suffered any pecuniary loss because she could not prove that she had paid time off available to cover the suspension. In addition, the Fourth Circuit addressed the district court’s finding that Mission could raise an affirmative defense. The Fourth Circuit held taht Mission proved it exercised reasonable care to ‘prevent and correct promptly any sexually harassing behavior’ and Crockett failed to take advantage of any of the preventative or corrective opportunities provided to her. As a result, Mission was able to meets its burden to assert its affirmative defense.
– John G. Tamasitis