CRAWFORD v. MEDINA GENERAL HOSPITAL, 96 F.3d 830 (6th Cir. 1996)
MARY ANN CRAWFORD, PLAINTIFF-APPELLANT, v. MEDINA GENERAL HOSPITAL, DARLA
KERMENDY, KENNETH MILLIGAN, AND REX SLEE, DEFENDANTS-APPELLEES.
No. 95-3243.
United States Court of Appeals, Sixth Circuit.
Argued May 20, 1996.
Decided and Filed September 24, 1996.
Pursuant to Sixth Circuit Rule 24.
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Edward L. Gilbert (argued and briefed), Akron, OH, for
Plaintiff-Appellant.
Joel R. Hlavaty (argued and briefed), Richard Whelan, Thompson,
Hine & Flory, Cleveland, OH, for Defendants-Appellees.
On Appeal from the United States District Court for the
Northern District of Ohio.
Before: RYAN and NORRIS, Circuit Judges; JOINER, District
Judge.[fn*]
[fn*] The Honorable Charles W. Joiner, United States District
Judge for the Eastern District of Michigan, sitting by
designation.
Page 832
RYAN, Circuit Judge.
[1] Mary Ann Crawford filed suit against her employer, Medina
General Hospital, as well as her supervisors, Darla Kermendy,
Kenneth Milligan, and Rex Slee, alleging that the defendants
discriminated against her in violation of the Age Discrimination
in Employment Act of 1967, 29 U.S.C. §(s) 621-634, by
creating a hostile working environment. She also filed
supplemental state-law claims for false imprisonment and assault
and battery. The district court disposed of the ADEA claim on
summary judgment, reasoning that Crawford had failed to prove her
prima facie case, and declined to exercise jurisdiction over the
state-law claims.
[2] On appeal, Crawford contends that the district court erred in
granting summary judgment. For the reasons that follow, we will
affirm.
I.
[3] The billing department at Medina General Hospital appears to
have deep morale problems. To get the flavor of the situation, as
well as to appreciate our resolution of the issue, requires that
we burden our opinion with a rather detailed recitation of the
evidence. The plaintiff, Mary Ann Crawford, began working at
Medina in September 1964, when she was 28 years old. The
defendant, Darla Kermendy, whose age is not apparent from the
record, became Crawford's supervisor in June 1991. It is unclear
what the atmosphere in the Medina billing department was like
prior to Kermendy's tenure, but once she came aboard, at least
Crawford became unhappy. Crawford complains that beginning with
Kermendy's hire, "there were racial remarks flying, old age
remarks flying, [and] the younger women would make remarks and
insulting remarks." There were also "sexual remarks, filthy
remarks, and [Kermendy] had a habit of putting her hands" on
Crawford, apparently in an aggressive manner.
[4] Crawford points to several "old age remarks" in support of her
hostile environment claim. Crawford alleges that "Kermendy made a
comment, `I don't think women over 55 should be working.'"
Crawford did not hear that remark, since she was at home ill at
the time the alleged remark was made, but two coworkers told her
that Kermendy "had made that remark in their presence." They told
Crawford that Kermendy was talking to them about Crawford when
she made the comment. Kermendy filed an affidavit countering that
her comment was simply that she would like to retire by the age
of 55, and that "[t]he comment was not directed to anyone other
than [her]," as she "do[es] not care at what age anyone else may
desire to retire." Her affidavit purported to explain that she
wanted to retire at 55 because various family members had gotten
sick shortly after attaining that age.
[5] Next, Crawford complains that Kermendy said, within Crawford's
hearing, that "[o]ld people should be seen and not heard."
Crawford was "embarrassed" and "humiliated" by the comment. She
does not know to whom the comment was made, because she could not
actually see Kermendy at the time; she could only hear her voice,
which was "[r]ude and unpleasant." Crawford, however, assumed the
comment "was meant to include [her]." Crawford therefore "leaned
around the file cabinet and . . . said, `I heard that, Darla.'
And she didn't respond." Crawford feels that Kermendy meant to
suggest that "old people were somehow less than young people."
Crawford also generally alleges that "there were about five
different girls" in the billing department "who would just
constantly make . . . miserable" the lives of "the older ladies";
those five would "every once in a while" make negative comments,
and "equate old with being stupid, useless, dumb." For instance,
Crawford was once passing the door of a room where a group of
people were having a pizza party, and one of the five looked out
and saw her pass, and said, "It's just my luck in an office with
an old dumb side to have to sit on that side." Crawford claims
that Kermendy was in the room at the time, and "laughed and
pointed and looked at [the woman making the comment]," and said
"Oh, that's good." That comment apparently referred to the fact
that a number of the older women sat on one particular side of
the office. Crawford claims that the side was
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referred to as "the old side, the dumb side, worthless side." She
also claims that Kermendy "refused to walk on that side of the
office for a whole day once." In sum, Crawford asserts that the
office is "totally divided" on the basis of age. She contends
that in addition to verbal insults, the older women are "not
included in anything," such as parties, as well as information
about minor changes in office procedures. She further contends
that Kermendy "calls the young people in[to Kermendy's office]
and questions them about what the older people are doing, what
they're saying, and then she encourages them to go out and
confront those people." She claims that Kermendy "called
attention" to Crawford's "extremely sensitive hearing" in a staff
meeting once, and that Kermendy said that all another older
worker, who had false teeth, "wanted for Christmas was her front
teeth"; it is Crawford's belief that these comments are
age-related.
[6] That there was tension in the billing department is by now
apparent. While it is Crawford's contention that the hostility
directed at her was age-based, it is clear that Crawford treated
others with hostility as well. For example, she refused to sign
one coworker's birthday card, because, as Crawford explained, "I
don't like her . . . because she's mean to me." She referred to
one coworker as "the widow" because "she always wears black." She
nicknamed one supervisor "Pat" because "at times [Crawford]
feel[s] [the supervisor is] pathetic." Another coworker is
nicknamed "Sluggo" because "she reminds [Crawford] of that
cartoon character." Another is "Freak" because "she wears
outlandish clothes and hairdos and that type of thing." She calls
two coworkers "Miss Piggy," and another "fatso." Moreover,
Crawford argued even with those other workers whom she considered
her allies; for example, a note from one of Crawford's diaries,
referring to a coworker that Crawford described as "older," reads
as follows: Ruth has gone over the other side. Tell her nothing
from now on. According to Crawford, "the other side" denoted "the
people who were against the older people." Crawford herself says
that, despite the incidents complained of, and despite being
"unhappy" about the way Kermendy treated her, she "liked [her]
job very well." She has continued to work at Medina throughout
this course of events, and has suffered no demotion or reduction
in pay. But in November 1993, she filed a complaint in federal
district court, alleging that she was being subjected to a
hostile working environment as a result of age discrimination.
Her complaint also contained state-law claims for false
imprisonment and for assault and battery, based on incidents not
germane to her age discrimination claim.
[7] The district court disposed of the plaintiff's ADEA claim on
summary judgment, and dismissed the supplemental state-law
claims. Although holding that a hostile work environment claim
was cognizable under the ADEA, the district court concluded that
the plaintiff had failed to produce evidence that the alleged
harassment had the effect of unreasonably interfering with her
performance and creating an intimidating, hostile, or offensive
work environment that seriously affected her psychological
well-being. The court noted, moreover, that most of the incidents
complained of by Crawford "indicate[d] hostility between
coworkers rather than an age-related hostile environment."
Crawford filed a timely notice of appeal as to defendants Medina,
Kermendy, and Milligan only, thus abandoning her claims against
defendant Slee. See Fed.R.App.P. 3(c). We note further that
the notice of appeal named one Judy Reidell; because this is an
individual not named in Crawford's complaint, it is clear that
Reidell is not properly a party to this appeal.
II.
[8] The ADEA makes it unlawful for any employer to discharge any
individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions,
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or privileges of employment, because of such individual's age.
[9] 29 U.S.C. §(s) 623(a)(1). As the Supreme Court has
recently explained,
[10] [t]he ADEA, enacted in 1967 as part of an ongoing congressional
effort to eradicate discrimination in the workplace, reflects a
societal condemnation of invidious bias in employment decisions.
The ADEA is but part of a wider statutory scheme to protect
employees in the workplace nationwide. See Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §(s) 2000e et seq. (1988 ed.
and Supp. V) (race, color, sex, national origin, and religion);
the Americans with Disabilities Act of 1990,
42 U.S.C. §(s) 12101 et seq. (1988 ed., Supp. V) (disability); the National
Labor Relations Act, 29 U.S.C. §(s) 158(a) (union
activities); the Equal Pay Act of 1963, 29 U.S.C. § 206(d)
(sex). . . . The substantive, antidiscrimination provisions of
the ADEA are modeled upon the prohibitions of Title VII. . . .
[11] The ADEA and Title VII share common substantive features and
also a common purpose: "the elimination of discrimination in the
workplace."
[12] McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879, 884
(1995) (some citations omitted). Bearing the similarity of the
ADEA and Title VII in mind, then, it is unsurprising that the
standards, methods, and manner of proof established in Title VII
case law are persuasive authority in cases arising under the
ADEA, and that courts routinely employ Title VII and ADEA case
law interchangeably. See, e.g., Wallace v. Dunn Constr. Co.,
62 F.3d 374, 378 (11th Cir. 1995) (en banc); Newman v. GHS
Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir. 1995).
[13] It is well-established under Title VII that an employee has a
cause of action when an employer maintains a hostile working
environment. The "hostile environment" cause of action was first
recognized in Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), cert.
denied, 406 U.S. 957 (1972), when the court held that an employee
of Spanish origin had a cause of action against an employer for
"the practice of creating a working environment heavily charged
with ethnic . . . discrimination." Id. at 238. The doctrine has
since been applied in Title VII cases alleging sex
discrimination, see, e.g., Harris v. Forklift Sys., Inc.,
114 S.Ct. 367 (1993); Meritor Sav. Bank v. Vinson, 477 U.S. 57
(1986); Yates v. Avco Corp., 819 F.2d 630 (6th Cir. 1987), as
well as race and national origin discrimination, see, e.g.,
Erebia v. Chrysler Plastic Products Corp., 772 F.2d 1250 (6th
Cir. 1985), cert. denied, 475 U.S. 1015 (1986); Risinger v. Ohio
Bureau of Workers' Compensation, 883 F.2d 475 (6th Cir. 1989).
The elements and burden of proof are the same, regardless of the
discrimination context in which the claim arises. Risinger,
883 F.2d at 485. The theoretical rationale for the doctrine is that
sufficiently abusive harassment adversely affects a "term,
condition, or privilege" of employment within the meaning of
Title VII. See Ellison v. Brady, 924 F.2d 872, 876 (9th Cir.
1991).
[14] While, as far as we can discern, no circuit has as yet applied
the hostile-environment doctrine in an ADEA action, but see
Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104,
1109 (9th Cir. 1991); Young v. Will County Dep't of Pub. Aid,
882 F.2d 290, 294 (7th Cir. 1989), we find it a relatively
uncontroversial proposition that such a theory is viable under
the ADEA. For at least these reasons, in light of the ADEA's
employment of the "terms, conditions, or privileges of
employment" language, we have no doubt that a hostile work
environment claim may be stated. The broad application of the
hostile-environment doctrine in the Title VII context; the
general similarity of purpose shared by Title VII and the ADEA;
and the fact that the Title VII rationale for the doctrine is of
equal force in the ADEA context, all counsel this result. We thus
hold that a plaintiff may advance a hostile-environment claim
under the ADEA. These are the criteria for a prima facie claim:
[15] 1. The employee is 40 years old or older;
[16] 2. The employee was subjected to harassment, either through
words or actions, based on age;
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[17] 3. The harassment had the effect of unreasonably interfering
with the employee's work performance and creating an objectively
intimidating, hostile, or offensive work environment; and
[18] 4. The existence of some basis for liability on the part of the
employer.
[19] Cf. Risinger, 883 F.2d at 484; EEOC Compliance Manual
Section(s) 615.7.
[20] While the meaning of the first and second prongs is reasonably
self-evident, the third prong is more subtle, and we must explain
carefully the standard for determining when a plaintiff has
produced sufficient evidence to allow a jury to conclude that the
harassment is actionable, because sufficiently severe. The
Supreme Court, in its initial decision on the subject, held that
in order for harassment to be actionable, "it must be
sufficiently severe or pervasive to alter the conditions of [the
victim's] employment and create an abusive working environment."
Meritor, 477 U.S. at 67 (internal quotation marks and citation
omitted). In a more recent case, the Court clarified that the
appropriate viewpoint for determining the severity or
pervasiveness is an objective one:
[21] This standard . . . takes a middle path between making
actionable any conduct that is merely offensive and requiring the
conduct to cause a tangible psychological injury. As we pointed
out in Meritor, "mere utterance of an . . . epithet which
engenders offensive feelings in a[n] employee" . . . does not
sufficiently affect the conditions of employment to implicate
Title VII. Conduct that is not severe or pervasive enough to
create an objectively hostile or abusive work environment â€â€Â
an environment that a reasonable person would find hostile or
abusive  is beyond Title VII's purview. Likewise, if the
victim does not subjectively perceive the environment to be
abusive, the conduct has not actually altered the conditions of
the victim's employment, and there is no Title VII violation.
[22] But Title VII comes into play before the harassing conduct
leads to a nervous breakdown. A discriminatorily abusive work
environment, even one that does not seriously affect employees'
psychological well-being, can and often will detract from
employees' job performance, discourage employees from remaining
on the job, or keep them from advancing in their careers.
Moreover, even without regard to these tangible effects, the very
fact that the discriminatory conduct was so severe or pervasive
that it created a work environment abusive to employees because
of their race, gender, religion, or national origin offends Title
VII's broad rule of workplace equality. The appalling conduct
alleged in Meritor, and the reference in that case to
environments "`so heavily polluted with discrimination as to
destroy completely the emotional and psychological stability of
minority group workers,'" . . . merely present some especially
egregious examples of harassment. They do not mark the boundary
of what is actionable.
[23] Harris, 114 S.Ct. at 370-71. Thus, while a plaintiff must
subjectively feel that an environment is hostile, and the
environment must in fact be objectively hostile, it is not
necessary that the plaintiff be committed to a psychiatric
institution in order to have a legal complaint. The Court
counseled that the totality of the circumstances be considered in
applying this standard:
[24] [W]e can say that whether an environment is "hostile" or
"abusive" can be determined only by looking at all the
circumstances. These may include the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work
performance.
[25] Id. at 371.
[26] "This court reviews grants of summary judgment de novo and it
applies the same test utilized by the district court." Pierce v.
Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir. 1994). "A
party seeking summary judgment bears the initial burdens of
specifying the basis upon which it contends judgment should be
granted and of identifying that portion of the record which, in
its opinion, demonstrates the absence of a genuine issue of
material fact." Id. "Whether harassment is sufficiently severe or
pervasive
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to create an abusive work environment is `quintessentially a
question of fact.'" Amirmokri v. Baltimore Gas & Elec. Co.,
60 F.3d 1126, 1130-31 (4th Cir. 1995) (citations omitted).
[27] The plaintiff's claim fails due to her lack of proof under both
the second and third prongs of the prima facie case. First, the
plaintiff has virtually no evidence that the "harassment" of
which she complains was in any way based on her age. Instead, her
theory appears wholly based on a false syllogism: A) My coworkers
hate me; B) I am old; C) My coworkers hate me because I'm old.
The plaintiff points to only two comments that are objectively
indicative of age-based animus: Kermendy's comments that she does
not "think women over 55 should be working," and that "[o]ld
people should be seen and not heard." Other than those two
remarks, however, there is virtually no evidence, apart from
Crawford's self-serving conclusions, that the hostility in the
Medina workplace was in any way related to age. Unquestionably,
there was hostility and abusiveness in this working environment,
but the evidence suggests that the atmosphere stemmed from a
simple clash of personalities. In any event, there is an absence
of evidence that it stemmed from a dislike of people over a
particular age. Indeed, many of the comments that Crawford
asserts were age-based were, in reality, neutral. Thus, it is
Crawford who insists on separating the Medina workforce into age
categories; it is Crawford who consistently employs such terms as
"older ladies"; and, importantly, it is Crawford who simply
assumes, without objectively articulable support, that when she
was insulted with age-neutral insults, it was because of her age.
[28] Along those same lines, we think it is patent that we must
entirely discount the plaintiff's complaints insofar as they
focus on coworkers having parties without inviting her, or
coworkers being surly or impolite. Even if coworkers failed to
invite her to parties because she was over 55, it seems obvious
that the ADEA was not intended to remedy minor social slights and
the resulting hurt feelings. Pizza parties are simply not a term,
condition, or privilege of employment of which Congress has taken
cognizance.
[29] In any event, even apart from the fact that only two comments
were actually discernibly age-based, there is simply no question
that the hostility at Medina, while not insubstantial, was not
particularly severe or degrading. Crawford's complaints are of
"mere offensive utterance[s]," as opposed to physically
threatening or humiliating conduct. Saying "[o]ld people should
be seen and not heard" is certainly rude, but it is not enough to
create a hostile working environment within the meaning of
Harris. Similarly, while a supervisor's opinion that women should
retire at age 55 may be unenlightened and logically indefensible,
and might be circumstantial evidence of age discrimination if the
supervisor were later to have fired Crawford, it hardly rises
even to the level of an "offensive utterance," as it is simply
one person's opinion, susceptible to retort and dispute.
[30] Finally, relatedly, Crawford has not produced any evidence
tending to show that the harassment interfered with her work
performance and/or created an objectively intimidating, hostile,
or offensive work environment, within the meaning of Harris. We
note there is absolutely no suggestion that the environment
impeded Crawford's work performance; indeed, she herself claims
to like her job, despite Kermendy's asserted abusiveness.
III.
[31] Because Crawford has not shown that she was subjected to
harassment based on her age, or that the harassment unreasonably
interfered with her work performance and created an objectively
hostile environment, we
[32] AFFIRM.
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