Bumbarger v. New Enterprise Stone & Lime Co.
170 F. Supp. 3d 801, 2016 U.S. Dist. LEXIS 34588 (2016)
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Rule of Law:
To establish a hostile work environment claim under Title VII, the alleged harassment must be sufficiently severe or pervasive to alter the conditions of the victim's employment. Conduct that is offensive, boorish, or sporadic, including the use of general profanity directed at both male and female employees, does not meet this high threshold.
Facts:
- Suzette M. Bumbarger was employed by New Enterprise Stone and Lime Co., Inc. as a seasonal laborer on a roadway construction crew supervised by Gregory Stamm.
- Stamm frequently yelled and used profanity, such as variations of the word "f-k," directed at both male and female employees on his crew.
- Over a period of several years (2009-2013), Stamm directed gender-specific slurs at Bumbarger on a few occasions, calling her a "b-ch" and a "c-t."
- In 2010 or 2011, Stamm pulled down his pants and "mooned" Bumbarger.
- Stamm also engaged in some unwanted physical contact, such as grabbing Bumbarger after a dispute over a paint can and once squeezing her shoulder.
- In 2011, Bumbarger and two male coworkers complained to company management about Stamm's general behavior, including the mooning incident.
- After Stamm's employment was terminated, Bumbarger was working on a different crew when a coworker, Bob McClure, handed her a document titled the "Hurt Feelings Report," which contained derogatory and sexist language mocking employees who complain.
- Bumbarger resigned from her position on June 17, 2014.
Procedural Posture:
- Suzette M. Bumbarger filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in June or July of 2013.
- The EEOC issued a Notice of Right to Sue on June 27, 2014.
- Bumbarger filed a complaint against New Enterprise Stone and Lime Co., Inc. in the U.S. District Court for the Western District of Pennsylvania.
- Bumbarger later filed an amended complaint alleging hostile work environment, constructive discharge, wrongful failure to promote, and retaliation under Title VII.
- Following discovery, New Enterprise Stone and Lime Co., Inc. filed a motion for summary judgment, asking the court to dismiss all of Bumbarger's claims before trial.
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Issue:
Does a supervisor's conduct create a hostile work environment in violation of Title VII where it includes a few instances of gender-specific slurs, one instance of mooning, and frequent but non-gendered profanity directed at all employees over a multi-year period?
Opinions:
Majority - Judge Kim R. Gibson
No, the supervisor's conduct was not sufficiently severe or pervasive to create a hostile work environment in violation of Title VII. To prevail on a hostile work environment claim, a plaintiff must establish five elements, including that the discrimination was severe or pervasive and that it would detrimentally affect a reasonable person. Here, Bumbarger failed to meet her burden on these elements. The court found that while Stamm's behavior was boorish and offensive, it did not rise to the level of altering the conditions of employment. The court refused to credit Bumbarger's unsubstantiated estimate that she was called gender-specific slurs over 500 times, focusing instead on the few specific instances documented. These few instances, combined with a single mooning incident and general profanity over several years, were deemed insufficiently severe or pervasive. Furthermore, because Stamm directed profanity and abusive behavior at both men and women, he was considered an "equal opportunity harasser," which undermines the claim that the conduct was based on gender. Finally, even if a hostile environment existed, the employer established the Faragher-Ellerth affirmative defense by taking prompt remedial action, including investigating complaints, reassigning Bumbarger, and ultimately terminating Stamm's employment.
Analysis:
This case reinforces the high threshold for proving a hostile work environment claim under Title VII. It demonstrates that courts distinguish between conduct that is merely offensive or rude and conduct that is so severe or pervasive it fundamentally alters the workplace environment. The court's decision to discredit the plaintiff's general allegations in favor of specific, substantiated instances highlights the critical importance of concrete evidence. The opinion also serves as a strong example of the "equal opportunity harasser" defense, where evidence that a supervisor is abusive to all employees, regardless of gender, can defeat a claim of gender-based discrimination. Finally, it illustrates the successful application of the Faragher-Ellerth affirmative defense, rewarding an employer for having and utilizing an effective procedure for investigating and remedying harassment complaints.
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