morning inspections for defective glass formations. There is
no evidence of such displays on the walls of the office to
which she was assigned or in any of the adjacent areas where
she spent most of the work day. Moreover, the complaint was
dealt with promptly. The fact that after she made her first
complaint to management one man was found to have a pinup type
postcard on the inside cover of his tool box is insufficient
to support a conclusion that defendant failed to take
reasonable remedial action promptly. Indeed, the evidence is
clear that Francik and Stumpf took immediate corrective
measures, and that Tunis was no longer confronted with pinup
photography in any public area or space throughout the plant.
The use of gender based language and terminology shown in
this record does not constitute a Title VII violation. It must
be borne in mind that these events took place in 1976, which
probably marked the beginning or near beginning of awareness
that describing various supervisory jobs with male gender
titles was a not so subtle indication that such jobs were not
open to women. However, even before Tunis came on board,
defendant had recognized the discriminatory nature of the
practice and had instituted a company policy designed to
eliminate gender based job titles. While the work force
continued the traditional usage, after Tunis' complaint, a new
memorandum reinforcing the company's effort to eliminate
gender based job titles was issued to all plant personnel.
Defendant contends that since there is no evidence of
complaint about this issue from other female employees at the
plant, the reasonable person's yardstick, see Koster v. Chase
Manhattan Bank, supra, requires rejection of this claim.
Although defendant's reasoning need not be adopted, the claim
cannot survive simply because under the circumstances of this
case defendant took reasonable steps to eliminate the
discriminatory features of its job titles.
The whistling, catcalls, etc., were directed at the
plaintiff personally, unlike the photographs and gender based
terminology, neither of which were specifically aimed at
plaintiff. No female employee should be required to confront
whistling, catcalls or other sexually suggestive noises from
male employees, individually or in groups. Francik and Stumpf
took steps to have this form of harassment stopped. After
their taking prompt action to inform those with influence
among the men doing the catcalling that such activity was
inappropriate and specifically disapproved, Tunis did not
complain again to either man about this issue. Since prompt
remedial action reasonably calculated to resolve the problem
was taken, a claim of sexual harassment based on this
complaint under Title VII cannot prevail. Barrett v. Omaha
National Bank, 726 F.2d 424 (8th Cir. 1984).
There is no evidence that Tunis brought the incident when
the two men commented about not being able to see her legs to
management's attention. That incident, therefore, cannot form
the basis of any claim in the instant litigation since it was
both incidental and isolated, Meritor Savings Bank FSB v.
Vinson, supra, and involves activity for which management is
liable only in failing, once made aware of the harassment, to
take reasonably designed corrective measures.
Strict liability attaches to an employer on a quid pro quo
harassment claim. Id., 477 U.S. at 70-71, 106 S.Ct. at 2407-08;
Carrero v. New York City Housing Authority, supra, 890 F.2d at
579; Henson v. City of Dundee, 682 F.2d 897, 905 n. 9 (11th
Cir. 1982). However, the quid pro quo claim appears to have no
basis whatever on this record. Plaintiff contends that a quid
pro quo violation need not involve a sexual proposition, and
this record certainly reveals none. Nonetheless, there surely
must be some gender based impropriety. There is none here.
Francik's advice to Tunis that her approach was not the best
way to get results cannot in fairness be construed as
suggesting that Tunis should accept without complaint the use
of gender based terminology, the whistling or the pinup
display. In each instance he had condemned what she complained
about and had taken prompt corrective action
to deal with the problems. On the contrary, his remarks were
addressed to her apparent inability to get along with the
people she was required to interact with to complete her
assigned tasks successfully. As a glass technical engineer,
particularly one just learning what the job involved, she
could not continue to be considered standoffish, antagonistic
and unfriendly to those fellow workers from whom she had to
learn how best to accomplish her assignments. Francik was
merely advising Tunis that a friendlier approach to her
colleagues would produce better results. There is no basis for
any quid pro quo claim in this case.
Plaintiff contends that she was terminated either because
she refused to be passive and accepting about the hostile
environment issues or because she filed a charge with the
EEOC. Claims of retaliation under Title VII require a three
step approach. Plaintiff must first make out a prima facie
case of retaliatory discrimination. Manoharan v. Columbia
University College of Physicians & Surgeons, 842 F.2d 590,
593-595 (2d Cir. 1988). The burden then shifts to the defendant
to articulate a legitimate, non-discriminatory reason for the
adverse employment decision. "The defendant need not persuade
the court that it was actually motivated by the proffered
reasons. . . . It is sufficient if the defendant's evidence
raises a genuine issue as to whether it discriminated against
the plaintiff." Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 1094, 67 L.Ed.2d
207 (1981) (citation omitted); Manoharan v. Columbia University
College of Physicians & Surgeons, supra, 842 F.2d at 594-95.
The defendant must clearly establish through admissible
evidence the reasons for the plaintiff's termination. "The
explanation must be legally sufficient to justify a judgment
for defendant." Texas Department of Community Affairs v.
Burdine, supra, 450 U.S. at 256, 101 S.Ct. at 1095. The burden
then shifts back to the plaintiff to demonstrate that the
proffered reason was not the true reason for the discharge.
Plaintiff retains the ultimate burden of persuading the court
that she is an intentional victim of discrimination. Id.
The court has serious doubts that the plaintiff has made a
prima facie case of retaliatory discrimination since there is
insufficient evidence that defendant fired Tunis because she
complained about the pinups, usage, or the catcalls. Nor is
there any credible evidence that she was fired because of
knowledge of her EEOC filing. Francik knew that she had been
in contact with the EEOC in April. She told him that she had
such contact. An exhibit shows that Lammon had knowledge of
the EEOC filing on the day of her discharge. Neither Kauser,
Stumpf nor Francik remembers being advised of this fact at
that time. One could conclude that since Lammon had knowledge
of the filing that it must have been brought to Francik's
attention. One could also conclude that Lammon, being involved
in the company's affirmative action program, deliberately
refused to divulge this information to Francik in order not to
compromise the decision. In any event the decision of Kauser
and Stumpf was initially made and that decision was
communicated to Francik before any of the three men went to
Lammon's office. Thus the record cannot support a holding that
retaliation for the EEOC filing generated the discharge
However, for the purpose of this analysis, even assuming
arguendo that a prima facie case has been made, defendant has
articulated legally sufficient non-discriminatory reasons for
Tunis' termination. Texas Department of Community Affairs v.
Burdine, supra. She did not perform her assignments; she did
not get along with her colleagues. She could not accept the
fact that she was not performing up to par and therefore
defendant had little hope that her performance or attitude
would improve in the future. These are certainly legitimate
reasons to terminate an employee.
Plaintiff has not persuaded the court that the proffered
reasons for her discharge are pretextual or that she has been
victimized by sex discrimination. Accordingly,
all claims are dismissed and judgment is entered in favor of
IT IS SO ORDERED.
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