supervisor for Miller and Hollihan. Caylor reported to Phillip Helsley, the manager of the quality assurance department. Helsley reported to Plantin.
Early in 1983, as part of its cost-cutting measures, Alcoa's Logans Ferry management decided to reduce its salaried work force by one product technician. On or around September 8, 1983, Miller was informed that she would be terminated on December 31, 1983, due to her poor performance. Consequently, Miller filed a charge of sexual discrimination on October 12, 1983. On November 7, 1983, her supervisors told her no longer to report to work. Nonetheless, she received her full salary until December 31, 1983. On November 8, 1983, Miller filed an additional EEOC charge of unlawful retaliation.
Joseph Crognali, who had been a unit supervisor, filled the product technician position from November 7, 1983, through December 12, 1983. His pay remained the same as it was when he was a unit supervisor - higher than Miller's as a product technician. On December 12, 1983, Crognali returned to a unit supervisor position.
In her amended complaint, Miller alleges violations of Title VII, 42 U.S.C. § 2000e-2. Miller claims that sex discrimination motivated her January 1, 1982, demotion from unit supervisor to product technician and the placement of a male, Joseph Crognali in that position on December 1, 1982. According to Miller, during her subsequent term as a product technician, her supervisors discriminated against her on the basis of sex by showing favoritism toward the other product technician, Mary Hollihan, because Hollihan was having an affair with the plant manager, Thomas Plantin.
Miller's Title VII claim also includes a retaliation aspect. 42 U.S.C. § 2000e-3. On September 8, 1983, Miller was told that she would be terminated in December, 1983, for poor performance. Miller alleges that because of her filing of a charge of sex discrimination with the EEOC on October 12, 1983, Alcoa discharged her early, on November 7, 1980.
During the time from November 7, 1983, until the end of December, Joseph Crognali received higher pay as a product technician than Miller had. Miller asserts that this pay discrepancy violates the Equal Pay Act, 29 U.S.C. § 206.
As to her state law claims, Miller founds her breach of contract claim on an employee handbook, the "Performance Appraisal System." Miller argues that this handbook modified her employment contract so that she could not be discharged absent proper appraisals of her performance. Miller also alleges that the harassment and favoritism she experienced while a product technician constitutes negligent and intentional infliction of emotional distress.
We will discuss the arguments and evidence bearing on summary judgment as to each claim separately.
We may enter summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether there exists a genuine issue of material fact, we must resolve all conflicts in the evidence and draw all reasonable inferences in the non-movant's favor. Baker v. Lukens Steel Co., 793 F.2d 509, 511 (3d Cir. 1986). However, the non-movant may not rest on the allegations of her complaint. Once the movant indicates the absence of genuine issues of material fact, the non-movant, if she bears the burden of proof, is obligated to come forward with evidentiary materials of record sufficient to survive a motion for directed verdict. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987) (en banc).
I. The 1982 Demotion.
Miller claims that her demotion on January 1, 1982, from unit supervisor violated Title VII, because its motive was sexual animus. As evidence of this, Miller relies upon the placement of Joseph Crognali, a less experienced male, in the unit supervisor position on December 1, 1982.
Alcoa argues that this claim is time-barred. Miller never filed an administrative complaint with the EEOC regarding this claim, as required by 42 U.S.C. § 2000e-5(e). In response, Miller contends that her demotion was part of a continuing violation of Title VII which culminated in her termination on December 31, 1983. Since Miller filed a timely EEOC complaint for her termination, that filing would encompass her 1982 demotion claim. The continuing violation consisted of a pattern and practice of discriminating against women and favoring women who proffered sexual favors to Thomas Plantin, the plant manager. To support this claim, Miller presents evidence that Plantin had an affair with another co-worker besides Mary Hollihan several years before November, 1981, see Pretrial Stip., III. 28, 29; Miller Aff., para. 27, and of the percentage of the employees at Alcoa's Logans Ferry Works that were women. Plaintiff's Exhibit K.
Miller also seeks to invoke the doctrine of equitable tolling. Alcoa informed her that her demotion was due to poor performance, thus, according to Miller, actively misleading her as to the accrual of her cause of action. Miller did not become aware that Alcoa's actions were discriminatory until her final termination and replacement by Crognali. Plaintiff's Brief in Response to Defendant's Motion for Summary Judgment, p. 4.
Timely filing with the EEOC is a prerequisite to maintenance of a Title VII action. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974). The continuing violation theory measures the start of Title VII's limitations period from the time of the last of a series of related discriminatory acts. See Bronze Shields, Inc. v. New Jersey Dep't. of Civil Service, 667 F.2d 1074, 1081 (3d Cir. 1981). The courts have emphasized that only a policy of discrimination can constitute a continuing violation:
To prevail on a continuing violation theory, however, the plaintiff must show more than the occurrence of isolated or sporadic acts of intentional discrimination. The preponderance of the evidence must establish that some form of intentional discrimination against the class of which plaintiff was a member was the company's "standard operating procedure."
Jewett v. International Telephone and Telegraph Corp., 653 F.2d 89, 91-92 (3d Cir. 1981). To prove this "standard operating procedure," plaintiff must show "a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the [limitations] period." Milton v. Weinberger, 207 U.S. App. D.C. 145, 645 F.2d 1070, 1075 (D.C.Cir. 1981), quoting Schlei & Grossman, EMPLOYMENT DISCRIMINATION LAW 232 (Supp. 1979). The persistent effects of an isolated discriminatory act do not constitute a continuing violation. United Air Lines v. Evans, 431 U.S. 553, 52 L. Ed. 2d 571, 97 S. Ct. 1885 (1977).
Resolving all inferences and doubts in Miller's favor, we still do not find a triable issue of a continuing violation. Miller's raw numbers showing the percentage of women in Alcoa's workforce are meaningless without comparison to "the community from which employees are hired." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339 n.20, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977); Mazus v. Department of Transportation, 629 F.2d 870, 875 (3d Cir. 1980). In Mazus, the Court of Appeals found that data showing that only .41 % to .68 % of highway maintenance workers were women did not make out a prima facie case of sex discrimination. The failure of plaintiff's proof lay in the absence of any data on the number of women applicants to this position. Similarly, Miller has not offered any data on the number of female applicants for employment at Alcoa's Logans Ferry Works.
Miller's 1982 demotion and her 1983 firing were two isolated and unrelated acts. Plantin was somehow involved in each firing and Plantin had twice, according to Miller, had affairs with female Alcoa employees. But two transgressions do not a pattern make. See Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n.14, 87 L. Ed. 2d 346, 105 S. Ct. 3275 (1985). Plantin's first affair took place in Lafayette, Indiana. Plantin Depo. 61. Neither that affair nor his later affair with Mary Hollihan bore any relation to Miller's 1982 demotion. Both affairs were consensual; there is no evidence that Plantin had a practice of extracting sexual favors from female workers in exchange for employment benefits. At best, Miller alleges two separate discriminatory acts against the same employee with the same general discriminatory motive. This does not make out a continuing violation. Stoller v. Marsh, 221 U.S. App. D.C. 22, 682 F.2d 971, 975 (D.C.Cir. 1982).
Title VII's time limits are subject to equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982). "Plaintiffs have the burden of establishing the facts necessary to justify equitable tolling." Byers v. Follmer Trucking Co., 763 F.2d 599, 600-601 (3d Cir. 1985). The United States Court of Appeals for the Third Circuit has recognized equitable tolling where the defendant "has actively misled the plaintiff regarding the cause of action." Meyer v. Riegel Products Corp., 720 F.2d 303, 307 (3d Cir. 1983). The plaintiff must reasonably rely on the misrepresentations to invoke the doctrine. English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987).
Additionally, some courts have imported a discovery rule into Title VII's time requirements. See, e.g., Tucker v. United Parcel Service, 657 F.2d 724 (5th Cir. 1981); Bey v. Schneider Sheet Metal, Inc., 596 F. Supp. 319, 322 (W.D.Pa. 1984). Under this theory, the filing period does not begin to run "until the facts that would support a charge of discrimination under Title VII were apparent or should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to the plaintiff." Tucker, 657 F.2d at 726. The Third Circuit Court of Appeals has not yet embraced the discovery rule in a holding; to the contrary, it has observed that the restrictions on equitable tolling "must be scrupulously observed." School District of City of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981); but cf. Hart v. J.T. Baker Chemical Corp., 598 F.2d 829, 834 (3d Cir. 1979) (assumes discovery rule applies, but upholds dismissal because plaintiff should have known her dismissal was discriminatory). Under both theories, the tolling period ends when plaintiff learns, or ought to learn, that she has been the victim of discrimination, and she has 300 days from that date to file with the EEOC. See Wislocki-Goin v. Mears, 831 F.2d 1374, 1381 (7th Cir. 1987); Bey v. Schneider Sheetmetal, Inc., 603 F. Supp. 450, 452 (W.D.Pa. 1985); 42 U.S.C. § 2000e-5(e).
The facts, viewed most favorably to Ms. Miller, do not support either of these equitable tolling doctrines. Miller alleges that her supervisors informed her that her January 1, 1982, demotion was due to poor performance. Miller Aff., para. 6. Prior to this, however, Miller had been told that her performance was good. Miller Aff., para. 2, 5. On December 1, 1982, Joseph Crognali, a less-qualified male, filled her former position as unit supervisor. Miller Aff., para. 3, 4. These are the facts in their entirety that support Miller's claim of sexual discrimination in her demotion. Thus, the facts on which Miller relies to support her charge of discrimination in her demotion were apparent to her on December 1, 1982. Certainly, by December 3, 1984, when she filed her complaint in this court, Miller realized she had been the victim of what she perceived to be sexual discrimination. Yet, to this day, she has not filed a claim with the EEOC regarding her 1982 demotion.
II. The Title VII "Paramour" Claim.
Miller claims that during her employment as a product technician her supervisor, Joseph Caylor, treated her less favorably than the other product technician, Mary Hollihan, because Caylor knew that Hollihan had a romantic relationship with the plant manager, Thomas Plantin.
Miller does not assert, and nothing in the record indicates, that any of her supervisors conditioned employment benefits on her submission to his sexual advances. See Craig v. Y&Y Snacks, Inc., 721 F.2d 77 (3d Cir. 1983); 29 C.F.R. § 1604.11(g).
As a matter of law, these assertions do not state a Title VII claim. We follow the Court of Appeals for the Second Circuit in holding that preferential treatment on the basis of a consensual romantic relationship between a supervisor and an employee is not gender-based discrimination. DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2d Cir. 1986), cert. denied, 484 U.S. 965, 56 U.S.L.W. 3383, 98 L. Ed. 2d 395, 108 S. Ct. 455 (1987); see Autry v. North Carolina Dep't of Human Resources, 820 F.2d 1384, 1386-87 (4th Cir. 1987) (following DeCintio). DeCintio is consistent with the holding of the United States Court of Appeals for the Third Circuit in Bellissimo v. Westinghouse Electric Corp., 764 F.2d 175 (3d Cir. 1985), that a plaintiff must show that her employer would have or did treat males differently to make out a Title VII claim. Male employees in Ms. Miller's workplace shared with her the same disadvantage relative to Ms. Hollihan: none could claim the special place in Mr. Plantin's heart that Ms. Hollihan occupied. Favoritism and unfair treatment, unless based on a prohibited classification, do not violate Title VII. See Bellisimo, 764 F.2d at 182; Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982) (bisexual supervisor's sexual harassment of male and female alike would not violate Title VII; dicta); Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). Because they underestimate the essential element of disparate treatment based on gender, we reject those cases cited by Miller which permit "paramour" claims. See King v. Palmer, 598 F. Supp. 65 (D.C. 1984), rev'd on other grounds, 250 U.S. App. D.C. 257, 778 F.2d 878 (D.C.Cir. 1985); Kersul v. Skulls Angels, Inc., 130 Misc. 2d 345, 495 N.Y.S.2d 886 (N.Y.Sup.Ct. 1985).
III. Hostile Work Environment.
Miller's allegation of a Title VII "hostile work environment" arises from a cumulation of purportedly harassing and distressing incidents. Her supervisor, Joseph Caylor, unjustly criticized Miller's work, while exempting Hollihan from any criticism because of Hollihan's relationship with Plantin. Miller Aff., paras. 21-23. Caylor assigned Miller menial and routine jobs. Id. at 22-23; Miller Deposition 139. Twice, Miller confided in Hollihan, and Hollihan betrayed these confidences to Plantin. One time, Plantin teased Miller about who she was dating. Miller Aff., para. 22. On another occasion, Miller's betrayed confidences resulted in an embarrassing remark by Plantin about her breasts. Id. at 24. Miller asserts that, in general, the favoritism shown Hollihan and Plantin's "flaunting" of his relationship with Hollihan distressed Miller. Finally, around the time of her discharge, Miller's co-workers and supervisors began to snub her, even failing to invite her to a birthday party. Miller Aff., paras. 35, 36; Miller Depo. pp. 126-128.
Sexual or racial harassment violates Title VII if it is 'sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment."' Meritor Savings Bank v. Vinson, 477 U.S. 57, 91 L. Ed. 2d 49, 60, 106 S. Ct. 2399 (1986), quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982). An abusive working environment is one "so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers. Meritor, 91 L. Ed. 2d at 59. The abuse must be severe and pervasive: the incidents must be persistent, not isolated. Id. 91 L. Ed. 2d at 60; Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (6th Cir. 1986), cert. denied, 481 U.S. 1041, 107 S. Ct. 1983, 95 L. Ed. 2d 823 (1987). While we must judge each case on the totality of its particular circumstances, Meritor, 91 L. Ed. 2d at 60; 29 C.F.R. § 1604.11(b) (1986), generally the case law requires a sexual discrimination plaintiff to have been subjected to continued explicit propositions or sexual epithets or persistent offensive touchings to make out a hostile work environment claim. E.g., Rabidue, 805 F.2d 611 (office wall posters and calendars of female nudes and one employee's regular misogynist obscenities insufficient; surveys cases); Scott v. Sears Roebuck & Co., 798 F.2d 210 (7th Cir. 1986) (summary judgment for defendant where evidence showed one pat on the buttocks, winks, a suggestion of a rubdown, and an invitation to dinner); Jones v. Flagship International, 793 F.2d 714 (5th Cir. 1986) (several propositions and display of statutes of bare-breasted mermaids as table decorations at a Christmas party insufficient).
The circumstances here fall short of even those circumstances found insufficient in Rabidue, Scott, and Jones. Snubs and unjust criticisms of one's work are not poisonous enough to create an actionable hostile work environment. As we have discussed in Part II, supra, the favoritism shown Hollihan did not violate Title VII. Hostile behavior that does not bespeak an unlawful motive cannot support a hostile work environment claim. See Molthan v. Temple University, 778 F.2d 955, 962 n.1 (3d Cir. 1985). Plantin's single comment about Miller's breasts does not suffice to create an atmosphere pervaded by sexual harassment, especially absent specific evidence that the comment's unseemliness reached an outrageous degree.
IV. Title VII: Discharge.
Aside from the hostile work environment and "paramour" claims, the amended complaint alleges that Miller's discharge violated Title VII in that preferential treatment of males motivated her firing. See Amended Complaint, paras. 24, 46. As evidence of this sexual animus, the amended complaint points to Miller's replacement by Joseph Crognali. Id. at paras. 33, 35, 37. Alcoa moves for summary judgment on this claim and argues there were legitimate business reasons for Miller's discharge. Brief in Support of Motion for Summary Judgment, pp. 16-17; Brief in Response to Plaintiff's Objection to Defendant's Motion for Summary Judgment, pp. 5-6. However, in her brief, Miller seems to abandon any claim of preferential treatment for males and seems to rest her claim exclusively on the favoritism shown Hollihan. Brief in Response to Defendant's Motion for Summary Judgment, pp. 2, 5-11. Nevertheless, we will address the disparate treatment claim raised by the amended complaint.
Miller has established a prima facie case of sex discrimination regarding her termination. She is female; she was qualified for the product technician position; Alcoa terminated her, and, arguably, replaced her with a male, Joseph Crognali. See Chipollini, 814 F.2d at 897. This showing alone, however, will not enable Miller to survive a motion for summary judgment if Alcoa proffers evidence of a legitimate nondiscriminatory justification for the discharge. Miller then must adduce evidence to show that Alcoa's proffered reasons are pretextual. See id. at 898.
The Third Circuit Court of Appeals recently explained these principles and their application in several cases. In Chipollini, the court, sitting en banc, reversed a grant of summary judgment for the defendant in an age discrimination case because the district court required direct evidence of discrimination and mistakenly rejected plaintiff's evidence of pretextuality. 814 F.2d at 901-02. On summary judgment, the plaintiff must rebut defendant's proffered evidence of a legitimate justification for its actions, but that rebuttal may take the form of evidence directly showing that a discriminatory reason was the more likely motive or circumstantial evidence "showing that the employer's proffered explanation is unworthy of credence." Id. at 898. Such circumstantial evidence may consist of the identification of "inconsistencies and implausibilities in the employer's proffered reasons for discharge." Id. at 899. This is the type of evidence the district court erred in rejecting.
Unfounded challenges to an employer's proffered evidence of legitimate justifications, however, will not carry an employee's burden of opposing an employer's motion for summary judgment in a Title VII case. In Hankins v. Temple University, 829 F.2d 437 (3d Cir. 1987), the plaintiff made out a prima facie case that her termination from a hospital fellowship was due to sex and race. The defendant adduced evidence that plaintiff's poor performance caused her termination, and defendant moved for summary judgment. The district court granted the motion, and the court of appeals affirmed, despite contentions from the plaintiff that her supervisors treated her differently than they did men. For each instance of disparate treatment, the court found an undisputed legitimate justification based on the employees' individual experience and skills. 829 F.2d at 441-443. The court concluded that, at best, plaintiff raised the possibilities that her supervisors were mistaken in the appraisal of her skills or that personality conflicts lay behind some of plaintiff's difficulties at work. Id. at 443. Neither of these possibilities sufficed to carry plaintiff's burden.
Sorba v. Pennsylvania Drilling Co., Inc., 821 F.2d 200 (3d Cir. 1987), illuminates the intersection of Chipollini and Hankins. As in Chipollini, the court reversed a grant of summary judgment for the defendant because the district court had undervalued evidence that the plaintiff's employers did not really believe that plaintiff's work was unsatisfactory. 821 F.2d at 205. However, the court of appeals stressed that whether in fact plaintiff's performance was good or bad is not the issue in a discrimination case:
This is not to say that the jury must decide the poor results were, in fact, Sorba's fault. The jury must only assess the employer's credibility with respect to its proffered reason. The jury need only decide whether the employer dismissed Sorba because of reports from his supervisors that they believed Sorba to be responsible for the poor results.