Beckmann v. Edson Hill Manor, Inc.

Beckmann v. Edson Hill Manor, Inc. (99-155); 171 Vt. 607; 764 A.2d 1220

[Filed 14-Nov-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-155

                               JUNE TERM, 2000


Anita Beckmann	                       }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Lamoille Superior Court
                                       }	
                                       }
Edson Hill Manor, Inc., et al.	       }	DOCKET NO. 145-7-95 Lecv


             In the above-entitled cause, the Clerk will enter:


       Plaintiff Anita Beckmann appeals a Lamoille Superior Court judgment
  for defendants Edson  Hill Manor, Inc., Eric Lande, Billy O'Neal, Nicole
  Bourassa, and Peg White, in a discriminatory  retaliation action. Plaintiff
  argues that the trial court erred because it failed to consider whether 
  Edson Hill Manor's head chef and other employees retaliated against
  plaintiff by subjecting her to  further harassment after she complained
  about sexual harassment. We affirm.

       The trial court found the following facts. From September 1994 to
  March 1995, plaintiff was  employed by defendant Edson Hill Manor, Inc. as
  a member of the waitstaff in the dining room and  resident caretaker at the
  inn. At all times relevant to plaintiff's complaint, Eric Lande was
  president  and majority stockholder of the corporations that own Edson Hill
  Manor, Inc.  Billy O'Neal, general  manager of the Manor, hired plaintiff,
  and had supervisory responsibility over the waitstaff and the  kitchen
  staff.  Nicole Bourassa, dining room manager, held supervisory
  responsibility over the  waitstaff. Matt Delos was the head chef with
  supervisory responsibility over the kitchen staff, and  Peg White was the
  sous chef.  Each of these individuals was personally involved in the
  operation of  the Manor or the restaurant on a regular basis.

       Plaintiff claimed that chef made derogatory comments to her,
  including:  "Did you get laid  today?" and, "You know, you've got a really
  nice ass."  Chef denied making these remarks.  The trial  court noted,
  however, that chef signed a letter of apology to plaintiff, in which he
  conceded  culpability. He then recanted this letter in his trial testimony,
  saying that he signed it to end the  litigation.  Defendant sous chef also
  denied hearing all of the alleged  remarks, except the first, to  which she
  promptly responded to chef that it was "none of his business."

       Plaintiff testified that she responded immediately to chef's second
  comment, saying, "That's  called sexual harassment."  She further testified
  that within ten minutes, sous chef and a kitchen  assistant joked about
  sexual harassment and refused to answer plaintiff's questions about the
  menu,  instead replying: "We better not talk to you because anything we
  might say, you might accuse us of  sexual harassment." Plaintiff also
  testified that chef refused to answer her questions about the menu  as
  well. She testified that this atmosphere continued for weeks after the
  incident. 

 

       Plaintiff left defendants' employ in March 1995, and brought suit. 
  Plaintiff's complaint alleged  intentional infliction of emotional
  distress, sexual harassment, retaliation for her complaints of  sexual
  harassment, wrongful interference with her ability to seek gainful
  employment elsewhere, and  wrongful withholding of tips.  The trial court
  dismissed the claims for intentional infliction of  emotional distress and
  wrongful withholding of tips. In its opinion, the court found that
  plaintiff  failed to prove by a preponderance of the evidence that: (1) she
  was sexually harassed by her  coworkers; (2) she was the victim of
  retaliatory constructive discharge; or (3) the Manor interfered in  any way
  with her ability to seek gainful employment elsewhere.

       Plaintiff concedes that the trial court's findings of fact and
  conclusions of law may be fairly  construed to deny her claim that
  defendants reduced her work hours in retaliation for her sexual  harassment
  complaint.  Plaintiff argues, however, that the trial court failed to
  consider "whether or  not the further harassment of Ms. Beckmann by fellow
  employees and Chef Delos constituted  retaliation in violation of Vermont's
  Fair Employment Practices Act, 21 V.S.A. § 495(a)(5), and Title  VII, 42
  U.S.C. 2000e-3(a)." 

       Specifically, plaintiff contends that the court erred by addressing
  "the issue of co-worker  harassment solely in the context of her sexual
  harassment claim and not in the legally distinct context  of her
  retaliation claim."  Plaintiff asserts that the court's discussion of
  plaintiff's relationship with  her co-workers as hostile work environment
  rather than retaliation demonstrates that the court did  not adequately
  address her retaliatory co-worker harassment claim.  We disagree,  and
  determine that  the trial court's consideration of plaintiff's claims and
  evidence was adequate to support its findings.  See Secretary v. Irish, 169
  Vt. 407, 419, 738 A.2d 571, 580 (1999) (court's fundamental duty is to 
  resolve issues before it and make findings necessary to support its
  conclusions).

       The distinction plaintiff makes on appeal between a hostile work
  environment claim based  on  co-worker sexual harassment and a legally
  distinct claim of a hostile work environment created by  co-workers in
  retaliation for her sexual harassment complaint is difficult to discern in
  her pleadings.  Plaintiff's appellate argument more directly alleges that
  defendants violated Vermont's Fair  Employment Practices Act (FEPA) and
  Title VII of the Civil Rights Act of 1964 (Title VII) by  retaliating
  against her after she complained about sexual harassment to management
  through further  harassment by chef and her co-workers. 

       The standards and burdens of proof to be applied under FEPA are the
  same as those under  Title VII.  Carpenter v. Central Vermont Med. Ctr.,     
  Vt.     ,     , 743 A.2d 592, 594 (1999) (mem.).  This Court has applied
  the three-step burden-shifting analysis articulated in McDonnell Douglas 
  Corp. v. Green, 411 U.S. 792, 802-04 (1973), to FEPA claims.  Carpenter,     
  Vt. at     , 743 A.2d  at  594-95.  Under McDonnell Douglas, plaintiff bears
  the initial burden of establishing, by a  preponderance of the evidence, a
  prima facie case of retaliation.  Hodgdon v. Mt. Mansfield Co, 160  Vt.
  150, 159, 624 A.2d 1122, 1127 (1992); Texas Dep't of Community Affairs
  v.Burdine, 450 U.S. 248, 253 (1981).  A prima facie case for retaliatory
  discrimination requires the plaintiff to show that:  (1) she was engaged in
  protected activity, (2) her employer was aware of that activity, (3) she 
  suffered adverse employment action, and (4) there was a causal connection
  between the protected  activity and the adverse employment action.  Gallipo
  v. City of Rutland,163 Vt. 83, 92, 656 A.2d 635, 642 (1994).  At the prima
  facie case stage, the plaintiff's burden is a relatively light one.   
  Carpenter , __ Vt. at __, 743 A.2d  at 595. 

 

       Once the plaintiff has established a prima facie case, the employer
  must "articulate some  legitimate, nondiscriminatory reason" for the
  adverse employment action. Hodgdon , 160 Vt. at 159,  624 A.2d  at 1127
  (quoting McDonnell Douglas, 411 U.S. at 802). If the employer meets this
  burden  of production, the burden then shifts back to the plaintiff to
  prove by a preponderance of evidence  that the employer's given reason is a
  pretext and not the true reason for the employment decision.    Id.;
  Burdine, 450 U.S.  at 256.  If the plaintiff does not satisfy this burden,
  then the employer is  entitled to judgment.

       Assuming plaintiff's statement to chef "[t]hat's called sexual
  harassment" occurred, it satisfies  both the first and second elements of
  her prima facie case.  First, reporting the alleged harassment  constituted
  a protected activity.  See Gallipo, 163 Vt. at 92, 656 A.2d  at 642. 
  Second, complaining  to chef, a supervisory employee, established notice to
  her employer.  Levendos v. Stern  Entertainment, Inc., 909 F.2d 747, 751-2
  (3d Cir. 1990).  The trial court  did not consider chef a  member of
  management in its analysis.  Rather, its discussion focused on the dining
  room manager,  who was plaintiff's immediate supervisor, and the general
  manager.  

       In fact, chef was a supervisory employee, with "greater influence with
  management regarding  the responsibilities and performance of the wait
  staff."  Defendants did not have a sexual harassment  policy, but even
  under its policy on workplace harassment, employees were "asked to report
  the  incident to management."  Although chef was the alleged perpetrator of
  both plaintiff's sexual  harassment and co-worker retaliation complaints,
  he was a member of management.  Further, the fact  that chef was a
  perpetrator in this case does not prevent his knowledge of his own conduct
  from  being imputed to the employer.

       Next, plaintiff must show that she suffered adverse employment action. 
  Plaintiff contends that  "unchecked retaliatory co-worker harassment, if
  sufficiently severe, may constitute adverse  employment action." Richardson
  v. N.Y. State Dep't of Correctional Servs., 180 F.3d 426, 446 (2d  Cir.
  1999).  In Richardson, the plaintiff presented evidence to show that after
  her complaint of sexual  harassment became known, her co-workers allegedly
  put manure in her parking space, hair in her  food, and scratched her car. 
  Id. at 446-47.  The court held that this was sufficient  to state a prima 
  facie claim of retaliatory harassment.  However, as the court in Richardson
  noted, "not every  unpleasant matter short of discharge or demotion creates
  a cause of action for retaliatory discharge."  Id. at 446 (internal
  quotations omitted).

       In this case, plaintiff alleges that chef and other co-workers
  continued to harass her in  retaliation for her complaint by refusing to
  speak to her, joking about sexual harassment and  complaining to management
  about her.  The trial court noted that it was, "undisputed that plaintiff 
  had an antagonistic relationship with [chef] and other members of the
  kitchen staff."  For example,  the court found that chef complained to
  management about plaintiff's performance shortly after he  started working
  with plaintiff.  In addition, chef and dining room manager complained to
  the general  manager about plaintiff's performance, including her
  persistent tardiness, her failure to provide the  kitchen staff with
  instructions regarding when guests were ready to have their meals prepared,
  and  that she took food to the wrong table and made mistakes on tickets.
  Members of the housekeeping  staff also complained to management about
  plaintiff's behavior, including her personal use of the  washers and
  dryers, her use of profanity, and that she blocked their access to the
  laundry with her car.  The court thus found that friction existed overall
  between plaintiff and the kitchen staff. 

 

       Plaintiff relies upon many of the same incidents to support both her
  co-worker retaliatory  harassment and hostile work environment claims.  In
  addition to her retaliatory constructive  discharge claims, on which the
  trial court made specific findings, plaintiff alleges three separate 
  incidents to support her retaliatory harassment claim.  The first consisted
  of co-workers  "respond[ing] to her questions about the menu by stating
  that they would not speak to her because  she might accuse them of sexual
  harassment."  The second was a sexual innuendo made by chef, and  the third
  was chef's refusal on one occasion to recite the menu slowly enough for
  plaintiff to take  notes.  These three incidents are not sufficiently
  severe to constitute an adverse employment action.   Indeed, the court
  stated it "cannot conclude that plaintiff was subjected to a hostile work 
  environment because of any complaints she allegedly made regarding sexual
  harassment." 

       Finally, plaintiff must demonstrate a causal connection between the
  protected activity and the  adverse employment action.  Although the trial
  court stated that "the timing of the events supports an  inference that
  there is a causal link between her complaint to management and the
  allegedly  retaliatory action," it ultimately found that plaintiff failed
  to prove "that the kitchen staff treated her  in a hostile manner because
  she objected to or complained of sexual harassment." 

       The court's opinion, as a whole, demonstrates that it evaluated the
  evidence critical to  plaintiffs' retaliatory co-worker harassment claims. 
  Although it would have been preferable for the  court to have organized its
  findings of fact and conclusions of law in a manner that more closely 
  tracked plaintiff's claim, the organization of factual and legal
  conclusions is not as critical as the  determination that these findings
  and conclusions were actually considered and adjudicated.  See  Vance v.
  American Hawaii Cruises, Inc., 789 F.2d 790, 792 (9th Cir. 1986) (remand
  unnecessary "if  the findings are sufficiently comprehensive and pertinent
  to the issues to provide a basis for the  decision").

       Affirmed.


                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice