United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
TORRESEN UNITED STATES CHIEF DISTRICT JUDGE.
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 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.
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).
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
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.
include additional facts within the sections to which they
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.
Hostile Work Environment
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)).
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.
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).
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.
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.
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.
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.
filed her formal EEO complaint on November 14, 2014. The
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).
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.
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.
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
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