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Spinney v. Spencer

United States District Court, D. Maine

September 27, 2017

ROSEMARY SPINNEY, Plaintiff,
v.
RICHARD SPENCER, SECRETARY OF THE NAVY Defendant.

          ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          NANCY TORRESEN UNITED STATES CHIEF DISTRICT JUDGE.

         Rosemary Spinney brings this action against the Navy for sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2003-15. She advances both hostile work environment and failure to promote claims. Before me is the motion for summary judgment brought by Defendant Ray Mabus[1] in his official capacity as Secretary of the Navy (the “Navy”), pursuant to Federal Rule of Civil Procedure 56. (ECF No. 40). For the reasons stated below, the motion is DENIED IN PART and GRANTED IN PART.

         LEGAL STANDARD

         Summary judgment is appropriate when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A fact is material where it could influence the outcome of the litigation. Oahn Nguyen Chung v. Student City.com, Inc., 854 F.3d 97, 101 (1st Cir. 2017). A dispute is genuine where a reasonable jury could resolve the point in favor of the non-moving party. Id. In deciding a motion for summary judgment, the court must construe the evidence “in the light most favorable to the non-moving party” and draw “all reasonable inferences” in the non-movant's favor. Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014).

         FACTUAL BACKGROUND

         Spinney has been the only female employee in the crane operations department at the Portsmouth Naval Shipyard since she started working there in 2002. Spinney presently is a Crane Operator WG-11. The allegations in this case center on the conduct of the following co-workers and supervisors.

• Trevor Thayer was superintendent of rigging and equipment operations and oversaw all personnel within the crane operation department, including the general foreman and work supervisors. Thayer approved Spinney's most recent promotion, which was in 2008.
• Rick Schoff was Spinney's foreman and, in 2014, was promoted to be the department general foreman.
• Joseph “Larry” Kashmer and Christopher Nadeau were Spinney's co-workers. Sometime between 2011 and 2013, Nadeau was promoted to Spinney's work leader. In 2014, Kashmer was promoted over Spinney to work leader and Nadeau was promoted again to become Spinney's work supervisor.

         In addition, colleagues of Spinney's corroborate her account in sworn statements. They are Craig Richardson, the crane operations unit's union representative; James Fisher, who worked in crane operations at the shipyard for 35 years until his retirement in September 2014; and Tim Yates, who worked in the shipyard for 30 years until his retirement in 2013.

         I include additional facts within the sections to which they pertain.[2]

         DISCUSSION

         The Navy moves for summary judgment on both counts of sex discrimination. The following discussion addresses Count One, a hostile work environment claim, and then Count Two, a failure to promote claim.

         I. Hostile Work Environment

         Title VII prohibits an employer from discriminating against any individual with respect to “compensation, terms, conditions, or privileges of employment” because of sex. 42 U.S.C. § 2000e-2(a). A hostile work environment is a form of sex discrimination that consists of “offensive, gender-based conduct that is ‘severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive' and is subjectively perceived by the victim to be abusive.” Lattimore v. Polaroid Corp., 99 F.3d 456, 463 (1st Cir. 1996) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). To succeed in a hostile work environment claim, the plaintiff must show:

(1) that she (or he) is a member of a protected class; (2) that she was subjected to unwelcome sexual harassment; (3) that the harassment was based upon sex; (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of plaintiffs employment and create an abusive work environment; (5) that sexually objectionable conduct was objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so; and (6) that some basis for employer liability has been established.

Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206, 215-16 (1st Cir. 2016) (quoting O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001)). “Evidence of sexual remarks, innuendoes, ridicule, and intimidation may be sufficient to support a jury verdict for a hostile work environment.” O'Rourke, 235 F.3d at 729. But Title VII is not a “general civility code, ” and “offhand comments, and isolated incidents” are insufficient to establish a claim. Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)).

         A. Exhaustion

         The Navy first argues that Spinney did not adequately raise her hostile work environment claim in the formal EEO complaint that she filed in November 2014. The formal administrative complaint is “both a prerequisite for entry into federal court and a scope-setting device for the civil action that follows” under Title VII and relevant regulations. Brown v. Mabus, 2:14-cv-426-NT, 2016 WL 6068116, at *2 (D. Me. Oct. 14, 2016). If Spinney failed to exhaust this process, her hostile work environment claim would be barred from this civil action.

         The purpose of the exhaustion requirement is to provide the employer with prompt notice of the claim and encourage early conciliation. Powers v. Grinnell Corp., 915 F.2d 34, 37 (1st Cir. 1990) (applying the ADEA). Accordingly, the scope of the civil complaint is “limited to the charge filed with the [EEO] and the investigation which can reasonably be expected to grow out of that charge.” Fantini v. Salem State Coll., 557 F.3d 22, 27 (1st Cir. 2009) (quoting Powers, 915 F.2d at 37). “This does not mean that the scope of the suit is inevitably limited to the allegations in the administrative complaint, but it is nonetheless constrained by those allegations in the sense that the judicial complaint must bear some close relation to the allegations presented to the agency.” Jorge v. Rumsfeld, 404 F.3d 556, 565 (1st Cir. 2005) (finding Title VII claim not sufficiently alleged in an EEO filing alleging an ADEA violation).

         District courts may “look beyond the four corners of the underlying administrative charge to consider collateral and alternative bases or acts that would have been uncovered in a reasonable investigation.” Thornton v. United Parcel Serv., Inc., 587 F.3d 27, 32 (1st Cir. 2009). In Caldwell v. Federal Express Corp., a court in this District noted that factors informing the scope of the civil complaint include “whether the agency did in fact investigate the alternative grounds at issue, ” “whether the factual statements in the plaintiff's complaint should have alerted the agency of an alternative claim, ” and whether it was “clear that the charging party intended the agency to investigate the allegations.” 908 F.Supp. 29, 35-36 (D. Me. 1995). In Caldwell, the court found a claim for age discrimination was within the scope of an administrative complaint that asserted only a sex discrimination claim because the two claims were “premised on the same predicate facts.” Id. at 35.

         In this case, Spinney's formal EEO complaint was filed after she had conversations with two different EEO counselors and had attempted to mediate her EEO claims. Spinney contacted the Navy EEO office June 11, 2014, and had a “few” discussions with EEO counselor Ava Drost. Def.'s Reply Statement of Material Facts [hereinafter Joint Statement of Material Facts (“JSMF”) ¶ 221. Spinney and Drost discussed Spinney's non-selection for the crane operator WG-12 position in April of 2014 and whether Spinney had active priority that should have applied to the selection process. Spinney also raised the “discriminatory treatment that she had been enduring, ” such as the boys club mentality, how people spoke of her in vulgar terms, and her fear of reprisal from Schoff and Nadeau if she were to file an EEO claim. JSMF ¶ 446. Drost reassured Spinney that her impression from Thayer was that the accident prevention team position would open up again soon and that Thayer, in speaking with Drost, “built [her] up on this pedestal.” JSMF ¶ 447. This made Spinney think she was “very close to getting a promotion, ” and she decided not to file a formal complaint. JSMF ¶ 447.

         On August 15, 2014, after Spinney was not selected for the accident prevention position, Spinney again contacted the Navy EEO office. Spinney met with EEO counselor Linda Campbell on August 21, 2014. Campbell's report of the interview stated simply that Spinney's complaint was the non-selection for the quality assurance specialist position. Spinney and Campbell also discussed the hostile environment, the boys' club mentality, and other background information. Spinney elected to try mediation on her claims before filing a formal complaint.

         On November 4, 2014, Spinney attended a mediation for her complaint, accompanied by her attorney. Also in attendance were EEO counselor Campbell, Navy management representative Deb Carpenter, Navy human resources representative Paul Weaver, and mediator Mr. Green. Spinney spoke at length about the pattern of her treatment, filling the majority of the mediation with a discussion of how the boys' club mentality, vulgar language, and animus directed at her led to her non-selection for available positions.

         Spinney filed her formal EEO complaint on November 14, 2014. The document read:

EXPLAIN SPECIFICALLY HOW YOU WERE DISCRIMINATED AGAINST (That is, treated differently from other employees or applicants, because of your race, color, religion, sex, national origin, age, mental or physical disability, reprisal or genetic information). (If your complaint involves more than one allegation, list and number each allegation separately and furnish specific, factual information in support of each).

         Allegation Number 1 (Include basis(es) (See Question Number 7):

For years, I have been consistently discriminated against because of my gender and denied certain types of training that sometimes are claimed to be needed for promotion, and denied promotions and/or new employment positions.

         Formal Complaint 4 (ECF No. 36-3) (italics added to distinguish handwriting). Spinney's response, written by hand, filled the provided text box. In the field asking for the date of the most recent alleged discrimination, Spinney stated “August 21st, 2014” and “ongoing.” Formal Complaint 3. Spinney at no time sought to amend her complaint. She believed she had indicated to the Navy EEO on numerous occasions, including in the formal complaint, that the hostile work environment was part of her claims.

         During the investigation, the EEO investigator's questions to Spinney were narrow in scope, focusing on the quality assurance position and certain training. JSMF ¶ 473. In response, however, Spinney also “provided information regarding management's denial of training in an effort to preclude her from being promoted, management's favoring of her male co-workers over her, feeling mistreated by male co-workers, and the ‘good old boy network.' ” JMSF ¶ 473. The EEO's final decision framed the issue narrowly as the Navy's alleged failure to promote or train Spinney in August 2014 and November to December 2014, and it found no discrimination. EEO Final Decision (ECF No. 36-5).

         The question of exhaustion turns on whether a hostile work environment claim “can reasonably be expected to grow” out of the formal complaint Spinney filed in November 2014. See Fantini, 557 F.3d at 27. Several factors ...


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