McKeown v. Dartmouth Bookstore CV-96-221-SD 06/30/97 P

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Judith S. McKeown

v. Civil No. 96-221-SD

Dartmouth Bookstore, Inc.

O R D E R

In this employment discrimination action, a former employee

of the Dartmouth Bookstore, Inc., in Hanover, New Hampshire,

claims that she was harassed on the basis of her gender and age,

and ultimately fired, in violation of Title VII of the Civil

Rights Act, 42 U.S.C. § 2000e, et seq., and the Age Discrimina­

tion in Employment Act,

, et seq. (ADEA).

Presently before the court is defendant's motion for summary

judgment, to which plaintiff objects.

Background

Plaintiff Judith S. McKeown began working at the Dartmouth

Bookstore in September 1988. At some point in 1992 she changed positions within the bookstore to buyer of adult trade books and

audiotapes, a nonsupervisory position. See Deposition of Judith

S. McKeown at 25.

In early 1994 McKeown and some of her co-workers began to

discuss what they believed was inappropriate attire on the part

of some of their co-workers.

. These individuals

were particularly concerned with the skimpy clothing worn by a

woman who worked in the business office.

. After

several people approached the assistant manager, he appointed a

"dress code committee" to come up with general clothing guide­

lines. McKeown was appointed to sit on the committee.

Following McKeown's appointment to the dress code committee,

Paul Messer, the shipping room manager, repeatedly made comments

to her such as "are we all supposed to look like McKeown now[?]"

. He also repeatedly made statements such as "watch

out, here comes the old broad."

. When McKeown com­

plained to him about his comments, he refused to speak to her at

all.

. Instead, from May of 1994 until May of 1995, he

would say to others "here comes Mother McKeown" or "here comes

2 Old Mother McKeown" whenever she entered the room in which he

worked.

.

Sometime in February 1995, McKeown complained about

Messer's conduct to the manager of the bookstore, who responded

simply that "boys will be boys."

At 48. In March plaintiff

met with the assistant manager in order to complain about the

conduct of those in the shipping department. The assistant

manager simply replied that it was not his job and asked her,

"can't you take it?" McKeown Deposition at 87-88.

Soon after, on March 20, 1995, the bookstore sent McKeown a

letter about an incident that had occurred in January. The

letter stated that McKeown was present when one of her co-workers

tore down one of Messer's "girlie" posters and pasted up portions

of a company newsletter about courtesy around Messer's work area.

The letter recognized that McKeown had not performed the conduct,

but reprimanded her for being present during, and for encour­

aging, the conduct. As the letter asked for her signature,

McKeown signed it, but she put in writing that she denied

encouraging the conduct.

3 On May 19, 1995, the bookstore terminated McKeown. Plain­

tiff filed a charge of discrimination with the New Hampshire

Commission for Human Rights and the Egual Employment Opportunity

Commission on November 9, 1995. After receiving a notice of her

right to sue on March 18, 1996, McKeown filed the instant com­

plaint on April 22, 1996.

Discussion

1. Summary Judgment Standard

Summary judgment is appropriate when there is no genuine

issue of material fact and the moving party is entitled to a

judgment as a matter of law. Rule 56(c), Fed. R. Civ. P.; Lehman

v. Prudential Ins. Co. of Am.,

, 327 (1st Cir. 1996) .

Since the purpose of summary judgment is issue finding, not issue

determination, the court's function at this stage "'is not [] to

weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.'" Stone &

Michaud Ins., Inc. v. Bank Five for Savings,

(D.N.H. 1992) (guoting Anderson v. Liberty Lobby, Inc.,

(1986) ) .

4 When the non-moving party bears the burden of persuasion at

trial, to avoid summary judgment he must make a "showing suffi­

cient to establish the existence of [the] element[s] essential to

[his] case." Celotex Corp. v. Catrett,,

(1986) . It is not sufficient to "'rest upon mere allegation [s]

or denials of his pleading.'" LeBlanc v. Great Am. Ins. Co.,

(1st Cir. 1993) (guoting

), cert, denied, ___ U.S. ,114 S. C t . 1398 (1994).

Rather, to establish a trial-worthy issue, there must be enough

competent evidence "to enable a finding favorable to the non­

moving party." Id. at 842 (citations omitted).

In determining whether summary judgment is appropriate, the

court construes the evidence and draws all justifiable inferences

in the non-moving party's favor.

. Nevertheless, "[e]ven in cases where elusive concepts such

as motive or intent are at issue, summary judgment may be

appropriate if the non-moving party rests merely upon conclusory

allegations, improbable inferences, and unsupported speculation."

Medina-Munoz v. R.J. Reynolds Tobacco Co.,

(1st

5 Cir. 1990) (citations omitted)

2. Hostile Environment Sexual and Age Harassment

Under Title VII, it is "an unlawful employment practice for

an employer . . . to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of

employment, because of such individual's race, color, religion,

sex, or national origin." 42 U.S.C. § 2000e-2(a) (1) . And sexual

harassment constitutes unlawful discrimination under Title VII.

Meritor Savings Bank, F.S.B. v. Vinton,

(1986).

Workplace sexual harassment may take either of two forms.

"Quid pro guo harassment" consists of promises of favorable

treatment or threats of unfavorable treatment calculated to

coerce an employee into submitting to unwelcome sexual advances.

Lattimore v. Polaroid Corp.,

(1st Cir. 1996) .

"Hostile environment harassment" 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

6 subjectively perceived by the victim to be abusive."

(quoting Harris v. Forklift Systems, Inc.,

(1993)). The instant case is a "hostile environment harassment"

case.

The determination of whether a plaintiff has established a

hostile or abusive workplace environment requires the court to

consider all of the circumstances, but particularly those con­

cerning (1) the frequency of the discriminatory conduct; (2) its

severity; (3) whether it is physically threatening or humiliating

rather than a mere offensive utterance; and (4) whether it

unreasonably interferes with an employee's work performance.

Brown v. Hot, Sexy & Safer Productions, Inc.,

(1st Cir. 1995), cert, denied, ___ U.S. ,116 S. C t . 1044

(1996) (citing

) .1 As previously

indicated, the relevant factors must be viewed both subjectively

and objectively.

Plaintiff's theory of harassment is that Messer's remarks,

1Although Brown was a Title IX case, it made use of the quoted elements which were taken from Title VII cases.

7 such as his habit of calling her "Old Mother McKeown" when she

visited the shipping area, combined with other aspects of her

employment, made up a hostile working environment. Sexual

harassment, however, must be viewed in conjunction with all of

the circumstances. Here, all sides agree that a primary

motivation behind Messer's comments was McKeown's earlier

activism in the area of instituting an employee dress code. In

addition, the bulk of Messer's offensive behavior appears to have

involved his refusal to speak to McKeown, a form of behavior

perhaps juvenile or unprofessional, but which does not rise to

the level of sexual harassment.

In an attempt to provide reinforcement for her sexual

harassment claim, plaintiff relies on other aspects of her

employment such as being "subjected to" employees who wore

sexually provocative clothing, including outfits "as short as

most person's underwear" and very tight tops over a "big chest."

See Plaintiff's Memorandum at 12. However, the court is

unwilling to accept that a female employee's unilateral decision

to wear tight or provocative clothing could be construed as creating or contributing to an "objectively hostile or abusive

work environment."

Finally, plaintiff asserts that she was repeatedly and

continuously subjected to "girlie posters" and sexually

provocative T-shirts worn by co-workers. As plaintiff notes in

her memorandum of law, there are times when offensive posters,

and perhaps even T-shirts, can support a sexual harassment claim

premised on a hostile environment theory. However, having

reviewed plaintiff's evidence, the court finds that even the most

proper of sensibilities would not have cause to find the subject

posters and T-shirts created a hostile or abusive enironment.

Accordingly, the defendant's motion for summary judgment is

granted as to plaintiff's sexual harassment claim (Count I) and

her age harassment claim (Count III).

2. The Retaliation Claim

Defendant next seeks summary judgment on plaintiff's

retaliation claim. Where, as here, plaintiff has no direct

evidence of her employer's retaliatory motivation, she may make use of the familiar burden-shifting framework that originated in

McDonnell Douglas Corp. v. Green,

(1973). See

Fennell v. First Step Designs, Ltd.,

(1st Cir.

1996). Under this scheme, plaintiff can make out a prima facie

case of retaliation by proving that: (1) she engaged in conduct

protected by Title VII; (2) she suffered an adverse employment

action; and (3) the adverse action causally related to her

conduct. See id.; Hoeppner v. Crotched Mountain Rehabilitation

Ctr., 31 F .3d 9, 14 (1st Cir. 1994).

Following plaintiff's prima facie showing, the burden shifts

to defendant to "articulate a legitimate, nonretaliatory reason

for its employment decision." Fennell, supra,

.

The burden of production2 then returns to plaintiff, who must

show both that the defendant's reason is a pretext and that

defendant possessed retaliatory animus.

Finally, it should

be noted that

[o]n summary judgment, the need to order the presentation of proof is largely obviated, and a

2Unlike the burden of production, the burden of persuasion remains at all times with plaintiff.

10 court may often dispense with strict attention to the burden-shifting framework, focusing instead on whether the evidence as a whole is sufficient to make out a jury guestion as to pretext and dis­ criminatory animus.

The court's decision to enter summary judgment on

plaintiff's sexual harassment claim does not necessarily void her

retaliation claim. To make a prima facie showing of retaliation,

plaintiff need not prove that the conduct complained of amounted

to a Title VII violation. "It is enough that the plaintiff had a

reasonable, good-faith belief that a violation occurred [and]

that [s]he acted on it . . . ." Mesnick v. General Elec. Co.,

(1st Cir. 1991), cert, denied,

(1992). The court finds that plaintiff's repeated complaints to

management about Messer's conduct were motivated by a reaonsable,

good-faith belief that a violation of Title VII had occurred.

Defendant provides a legitimate nondiscriminatory reason for

plaintiff's lay-off: In May of 1995 economic realities made it

necessary for it to discharge the most junior person in the trade

book department--the plaintiff.

11 Plaintiff relies on several pieces of evidence to cast doubt

on defendant's proffered explanation for its decision and to

support that its true motivation was retaliatory animus. First,

she notices the closeness in time between her protected conduct

(complaining of sex and age discrimination) and the decision to

terminate her. See id. Also significant is the suspicious

timing of the written reprimand she received in March for "the

January incident" involving the ripping-up of posters. The

reprimand followed suspiciously soon after she made a complaint

about harassment but, curiously, long after the January incident

had been investigated. This and other evidence persuade the

court that defendant's motion for summary judgment on plaintiff's

retaliation claims must be denied.

12 Conclusion

Defendant's motion is granted as to Counts I (Sexual

Harassment/Title VII) and III (Age Harassment/ADEA), and is

otherwise denied.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

June 30, 1997

cc: All Counsel

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