Citations
- 947 F. Supp. 190
Full opinion text
MEMORANDUM
NICKERSON, District Judge.
Pending before the Court is the Motion for Summary Judgment of Defendant United Parcel Services, Inc. (“UPS”), Paper No. 9, and UPS’s Motion to Strike the Affidavit of Rose Marie Tierney, Paper No. 15. Plaintiff has opposed both motions. Paper Nos. 12 and 16. Upon a review of the pleadings and the applicable case law, the Court determines that no hearing is necessary (Local Rule 105.6) and that UPS’s Motion for Summary Judgment will be granted in part and denied in part. UPS’s Motion to Strike the Affidavit of Rose Marie Tierney will be denied as moot.
I. BACKGROUND
Plaintiff Audrey Smith is a female employee of UPS. She has worked as a part-time sorter and bagger at the “small sort” department of the UPS hub facility in Burtonsville, Maryland since March of 1992. UPS employees at the hub facility are represented by Local 639 of the International Brotherhood of Teamsters (“Union”) and are covered by a collective bargaining agreement (“CBA”) negotiated between UPS and the Union.
Plaintiff had two supervisors, Defendant Tom Dewitt and Chuck Warfield, who is not a defendant. Warfield and Dewitt were supervised by Kenny Wong who was, in turn, supervised by Darlene Martinuzzi. Wong and Martinuzzi had authority to hire, fire and impose disciplinary action. Warfield and Dewitt did not have such authority but were authorized to grade Plaintiffs performance, monitor her work and change the location of her work.
During the latter half of 1993, Dewitt asked Plaintiff to go out with him socially on several occasions, and Plaintiff refused his requests. Plaintiff told Dewitt that she was not interested in a romantic relationship with him, but that they could be friends. In the fall of 1993, Dewitt spent the night at Plaintiffs house on one occasion because he had consumed too much alcohol to drive himself home. Dewitt and Plaintiff did not have sexual relations on that occasion.
In December of 1993, Wong had a party at his house to which a number of ÜPS employees were invited including Plaintiff and Dewitt. Plaintiff and Dewitt left the party at approximately the same time and, when Plaintiff arrived at her house, Dewitt was waiting in his car for her. Seeing that Dewitt was too drunk to be driving, Plaintiff invited him in and went to get him a glass of water. When Plaintiff returned, Dewitt had fallen asleep and she could not. rouse him. Plaintiff fell asleep on the floor next to Dewitt, planning to wake him in a couple of hours after he slept off the alcohol.
When Plaintiff woke dp, Dewitt was on top of her with his pants down. Plaintiff was very upset, feeling that she had been raped or at least sexually assaulted. She kicked Dewitt out of her house and subsequently told him never to come to her house again.
Shortly thereafter, in January of 1994, Plaintiff received a note on her car, which she knew to be in Dewitt’s handwriting, which she felt was meant to threaten her. Dewitt also began saying things like “I will fix you” and “I will get you” to Plaintiff at work. Dewitt made comments at work about Plaintiffs breasts and’ buttocks. On numerous occasions at work, Dewitt made lewd gestures to Plaintiff with his hand on his crotch. On another occasion at work, Dewitt handed Plaintiff a package and when she took it, he grabbed her breast. Plaintiff begged Dewitt to stop harassing her, but he just laughed at her obvious distress.
In January of 1994, Plaintiff learned that she was pregnant. In March, just as her pregnancy was beginning to show, she injured her back at work, and she was told by her physician that she was not to do any heavy lifting. Dewitt ignored Plaintiffs medical restrictions and continued to place her on bagging duty which required heavy lifting. Plaintiff complained to a Union official that Dewitt was making her perform work that her doctor had told her not to do.
For several months, Plaintiff continued to work notwithstanding the pain in her back and chest. As Plaintiffs pregnancy began to show more fully, Dewitt’s behavior toward her worsened. He told her he wanted to put his hands on her breasts and then put his hand on his crotch. He also threw boxes at her feet and legs. He laughed as the boxes they were handling would hit her stomach. He called her names including “bitch,” “slut” and “whore” and called her unborn child a “bastard.”
In June of 1994, Plaintiff went to Marti-nuzzi and complained that Dewitt was harassing her and tampering with her time cards. Plaintiff did not tell Martinuzzi the details of Dewitt’s harassment. Martinuzzi did not take Plaintiffs complaints seriously and told Plaintiff she should “go home and take care of that baby.” Due to Plaintiffs emotional problems, back injury and pregnancy, Plaintiff went on disability leave on or about June 22, 1994 and has not returned to work at UPS since that time.
In November of 1994, Plaintiff started seeing a psychotherapist named Rose Marie Ti-erney, meeting with her for one hour per week, and more recently twice a week. Plaintiffs current diagnosis is Major Depressive Disorder,- Recurrent, Severe with Psychotic Features. Her symptoms include sleep disorder and nightmares, confusion and isolation, difficulty attending to her family, negative self-image, hearing voices and suicidal ideation.
In October 1995, Plaintiff filed the instant lawsuit which includes the following three counts of sex discrimination against U.P.S. under Title VII: hostile work environment, quid pro quo sexual harassment, and retaliation. The Complaint also includes three counts under Title VII against Dewitt, and one count against both Dewitt and UPS for intentional infliction of emotional distress. UPS filed an answer. The parties engaged in written discovery and held depositions. After the Fourth Circuit ruled earlier this year in the case of Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875 (4th Cir.1996), UPS filed the instant motion, arguing that the Fourth Circuit’s analysis in Austin mandates the entry of summary judgment on Plaintiffs Title VII claims. The parties agreed to stay further discovery pending the instant ruling.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper if the evidence before the court, consisting of the pleadings, depositions, answers to interrogatories, and admissions of record, establishes that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Rule 56 mandates the entry of summary judgment against a party who, after reasonable time for discovery and upon motion, “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322, 106 S.Ct. at 2552. “[A] complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial [and] [t]he moving party is ‘entitled to judgment as a matter of law.’ ” Id. at 323, 106 S.Ct. at 2552. (citations omitted).
If the evidence favoring the non-moving party is “merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citations omitted). Unsupported speculation is insufficient to defeat a motion for summary judgment. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987) (citing Ash v. United Parcel Serv., Inc., 800 F.2d 409, 411-12 (4th Cir.1986)). Moreover, the mere existence of some factual dispute is insufficient to defeat a motion for summary judgment; there must be a genuine issue of material fact. Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2509-10. Thus, only disputes over those facts that might affect the outcome of the case under the governing law are considered to be “material.” Id.
Finally, in assessing such a motion, the Court must view the evidence and all justifiable inferences in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam).
With these principles in mind, the Court will address the arguments presented by the parties.
III. ANALYSIS
A. Title VII Claims Against UPS
The parties disagree as to the impact on this case of the Fourth Circuit’s recent decision in Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875 (4th Cir.1996). In Austin, a discharged employee filed suit against her former employer for violating Titlé VII and the Americans with Disabilities Act. The Fourth Circuit, citing the Supreme Court’s decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), held that arbitration of the plaintiffs Title VII and disability claims was mandatory under the applicable collective bargaining agreement (“CBA”). Consequently, the plaintiff could not sue her employer without first pursuing arbitration of her discrimination claims.
In the instant ease, Plaintiff is also subject to a CBA. The CBA prohibits discrimination on the basis of sex by UPS or the Union. Paper No. 9, ex. 4 at 75. The CBA further provides for mandatory and binding arbitration of grievances that cannot be resolved through an initial grievance procedure. Id. at 14-19. Therefore, under Austin, it initially appears that Plaintiffs Title VII claim should be dismissed, without prejudice to the merits of the claim asserted, for her failure to comply with the arbitration requirement of the CBA. See 78 F.3d at 886.
Plaintiff argues that the instant case can be distinguished from Austin, First, Plaintiff argues that, unlike the plaintiff in Austin, she did attempt to exhaust the grievance procedure set forth in the CBA. Said grievance procedure initially requires that the fob lowing steps be taken: a) that the employee report the grievance to her shop steward in writing within five days of the alleged breach; b) if the shop steward fails to resolve the matter with the grievant’s supervisor, the shop steward shall report the matter to the Union which shall submit it in writing to the employer and attempt to resolve it within five days. If the matter still remains unresolved, it is submitted to a regional joint union-management grievance committee and ultimately to the Federal Mediation and Conciliation Service for binding arbitration. Paper No. 9, ex. 4 at 14-19.
Plaintiff claims that she filed a written grievance with the union which led to a meeting, in February of 1994, at which Plaintiff, Martinuzzi, Harry Weaver, Warfield and Todd Newton, a Union steward, were all present. During the meeting Plaintiff reported that she was being “harassed” by one of her direct supervisors. When Warfield asked Plaintiff