UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LISA H. HADROSEK,
Plaintiff-Appellant,
v.
No. 96-2453
PAGING NETWORK, INCORPORATED;
PAGING NETWORK OF WASHINGTON,
INCORPORATED,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-95-1741-AW)
Argued: March 2, 1998
Decided: June 26, 1998
Before HAMILTON, Circuit Judge, BUTZNER,
Senior Circuit Judge, and MOON, United States District Judge for
the Western District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished opinion. Judge Moon wrote the opinion, in
which Judge Hamilton and Senior Judge Butzner joined.
_________________________________________________________________
COUNSEL
ARGUED: Richard Albert Simpson, ROSS, DIXON & MASBACK,
L.L.P., Washington, D.C., for Appellant. Paul Joseph Lambert,
BINGHAM, DANA & GOULD, L.L.P., Washington, D.C., for
Appellees. ON BRIEF: Lisa A. Burns, ROSS, DIXON & MAS-
BACK, L.L.P., Washington, D.C., for Appellant. Teresa Burke,
Gerard P. Finn, BINGHAM, DANA & GOULD, L.L.P., Washington,
D.C., for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
MOON, District Judge:
Lisa H. Hadrosek ("Hadrosek") seeks reversal of the district court's
grant of summary judgment in favor of the appellees Paging Network,
Inc. ("Pagenet"), and its subsidiary Paging Network of Washington
("Pagenet-D.C."). Hadrosek asserts that an unresolved issue of mate-
rial fact existed concerning her sex discrimination and sexual harass-
ment claims against the appellees.
I. BACKGROUND
In January 1994, Pagenet-D.C. hired Hadrosek to work as a Cus-
tomer Care Manager in its College Park, Maryland office. Nancy
Broudy ("Broudy"), sales manager, Donald Tynes ("Tynes"), human
resource manager, and Mark Thielen ("Thielen"), general manager
and vice-president, interviewed Hadrosek and made the decision to
hire her. J.A. at 58. The following month, Broudy gave Hadrosek a
memorandum directing her to focus on improvements in patience and
sensitivity, discipline of employees, communication, commitment of
time, and interviewing skills. Broudy and Thielen assert that this was
a negative rating. Id. at 40, 327. Sixty days after Hadrosek began
work, she and Broudy met and discussed what the district court
described as "persisting problems" with Hadrosek's performance: her
poor relations with her co-workers, her poor attitude toward custom-
ers, her lack of discipline and organizational skills, and her unwilling-
ness to work overtime. Id. at 258-59. Although Pagenet-D.C. made no
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formal evaluation at that time and took no formal action, Hadrosek
acknowledged some of the principal problems alleged and assured her
supervisors that her performance would improve. Id. at 364.
Hadrosek's immediate superiors saw no improvement in her work.
Broudy and Thielen considered the "call abandon rate," the percent-
age of customer service calls that are abandoned by customers after
the initial connection, an important index of customer satisfaction.
They considered an acceptable call abandon rate to be between 3%
and 5%. Id. at 326, 370. Hadrosek's call abandon rate, however, was
13.8%, 11.9%, and 11.7% for July, August, and September 1994,
respectively. Appellee's Br. at 12. This is one of the aspects of
Hadrosek's performance that most troubled Broudy and Thielen. Id.
Additionally, in September, several of Hadrosek's co-workers
reported that she was incompetent and difficult to work with. J.A. at
390-91.
Hadrosek received a number of positive comments on her work
from Pagenet headquarters in Texas. Id. at 420-21. Nevertheless, e-
mail messages indicate that her local supervisors who worked most
closely with her remained dissatisfied. Id. at 328-63. In July, Pagenet-
D.C. management reprimanded her, and she offered to step down as
customer service manager. Id. at 317. Later, several of the Customer
Service Representatives ("CSRs") that Hadrosek managed com-
plained to her supervisors about her management of the department,
and Broudy finally recommended that Hadrosek's employment be ter-
minated. Id. at 297, 322.
Based on these complaints and the problems that preceded them,
Broudy, Thielen, and Tyne, the same individuals who had hired
Hadrosek, decided to fire her. Id. at 61. On September 27, they did
so without following the three-step process described in the employee
handbook. Id. at 424. Instead, she was escorted straight from Pagenet-
D.C.'s building and was only allowed to return after her e-mail and
voice mail had been checked by her superiors. Id. Pagenet-D.C.
showed that this alternate means of firing employees had been used
with at least one other male employee and that the three-step process
had been used to terminate female employees. Id. at 323, 372-73.
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On June 12, 1995, Hadrosek instituted this suit, claiming that in
contravention of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000 et seq., she was fired because of her sex;
that Pagenet-D.C. maintained a sexually oppressive work environ-
ment in its College Park office; and that the appellees were guilty of
the tort of intentional infliction of emotional distress.*
The district court determined that no issue of material fact existed
and granted appellees' motion for summary judgment.
II. DISCUSSION
A grant of summary judgment is subject to de novo review. Foster
v. American Home Products Corp., 29 F.3d 165, 168 (4th Cir. 1994).
Viewing the facts in the light most favorable to the party that opposed
the motion for summary judgment, this court must reverse the motion
if there is an unresolved issue of material fact and judgment cannot
be made as a matter of law. Helm v. Western Maryland Railway Co.,
838 F.2d 729, 734 (4th Cir. 1988). While the court views the facts and
inferences of the case in the light most favorable to the party opposing
the motion for summary judgment, the mere existence of evidence is
not enough to defeat the motion. To defeat a motion for summary
judgment, a party must present evidence of specific facts from which
the finder of fact could reasonably find for him or her. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
A. Sex Discrimination
Forty-two U.S.C. § 2000e-2(a) states, in pertinent part, "It shall be
an unlawful employment practice for an employer- (1) . . . to dis-
charge any individual, or otherwise to discriminate against any indi-
vidual with respect to his compensation terms, conditions, or
privileges of employment, because of such individual's . . . sex . . . ."
42 U.S.C. § 2000e-2(a). The appellant may prevail if she can show
that the adverse employment decision would not have been made but
_________________________________________________________________
*Because Hadrosek did not appeal the district court's grant of sum-
mary judgment disposing of her claim for intentional infliction of emo-
tional distress, we do not address that issue.
4
for her sex. McDonald v. Sante Fe Trail Transportation Co., 427 U.S.
273, 282 n.10 (1976).
Hadrosek argues that under the burden shifting analysis of
McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-04
(1973), and Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 252-53 (1981), she made a prima facie case of discrimina-
tion which was not rebutted by the appellees. Under this analysis, a
plaintiff must first raise an inference of sex discrimination by satisfy-
ing the elements of a prima facie case: She must show that (1) she
is a member of a protected class; (2) she was performing the job satis-
factorily; (3) she was discharged or constructively discharged; and (4)
she was replaced by someone with comparable qualifications outside
the protected class. Id.
If a plaintiff succeeds in carrying her prima facie burden, she raises
an inference of discrimination. A defendant may then attempt to rebut
that inference with evidence of a nondiscriminatory and legitimate
reason for its actions. Texas Department of Community Affairs, 450
U.S. at 253. Upon such a showing, the presumption against the defen-
dant would fall. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-
07 (1993). The plaintiff's burden then would be to show that the
defendant's rationale for its actions mask discrimination, and that the
defendant intentionally discriminated against her on the basis of sex.
Wileman v. Frank, 979 F.2d 30, 33 (4th Cir. 1992).
1.
Viewing the evidence in the light most favorable to Hadrosek, her
claim does not pass the second prong of the McDonnell Douglas
prima facie requirements--she has not shown that she performed her
job to the satisfaction of her employer. The compliments from super-
visors who did not work at Hadrosek's office do not overcome the
ongoing complaints from her immediate supervisors and her CSRs.
J.A. at 136, 139. The compliments Hadrosek seeks to use to establish
her proficiency are few, and the complaints are many. The compli-
ments are of a more general nature and sporadic, while the complaints
and requests for improvement are specific and persistent. The com-
plaints were part of an ongoing and periodic critique of her job perfor-
mance.
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Hadrosek asserts that her performance was good. It is the percep-
tions of an employee's supervisors, however, that matter in determin-
ing whether the employee is performing her job satisfactorily. Smith
v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980). Based on months of
Broudy's and Thielen's statements and writings concerning her acts
and omissions which led to her termination, no finder of fact could
reasonably conclude that Hadrosek performed her job to her supervi-
sors' satisfaction.
2.
Hadrosek argues that the reasons offered for her termination are
pretextual. She argues that Pagenet-D.C.'s expectations were unrea-
sonable with regard to the low call abandon rate goal. Even if an
employer's expectations are unreasonable, however, it does not neces-
sarily follow that the expectations mask discrimination. To further
support her claim of pretext, she offers that the process of her termi-
nation departed from standard procedure. Evidence shows that the
procedure for termination was not standardized. Id. at 295, 323, 372-
73. An employee guidebook offered a three-step termination process,
but the process described was optional and not binding upon the com-
pany. In practice, a male employee had been dismissed in the same
way that Hadrosek was dismissed, and some female employees had
been dismissed through the three-step process. Id. The termination
process varied without regard to sex, so the discrepancies between
Hadrosek's termination process and that outlined in the employee
guidebook are insufficient to support Hadrosek's claim.
In cases in which the same person hired and fired a plaintiff, the
court must give weight to the "powerful inference" that discrimination
did not motivate the termination. Jiminez v. Mary Washington
College, 57 F.3d 369, 378 (4th Cir. 1995). Broudy, Thielen, and
Tynes hired Hadrosek in January 1994. J.A. at 58, 314. Less than a
year later, Broudy, Thielen, and Tynes met with Hadrosek and termi-
nated her employment with Pagenet-D.C. Broudy, who originally
interviewed Hadrosek, prepared the three-page memo that listed the
reasons for her termination. Id. at 322.
Thus, even if Hadrosek had made out a prima facie case of dis-
crimination or established the reason for firing her was pretextual, her
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evidence would not support a finding of discrimination. Id. From the
litany of negative comments, it is clear that Hadrosek was not living
up to the expectations of her superiors. Pagenet-D.C. had a nondis-
criminatory, legitimate reason for Hadrosek's discharge: her job per-
formance was unsatisfactory. Considering the evidence as a whole, in
the light most favorable to Hadrosek, no finder of fact could reason-
ably decide in her favor. Hadrosek failed to establish the central sec-
ond prong of the McDonnell Douglas analysis. Because her evidence
of sex discrimination did not meet that threshold test, it was not suffi-
cient to shift the burden to her employer.
B. Sexual Harassment
Hadrosek claimed sexual harassment in a sexually hostile work
environment. In order to prove hostile work environment, a plaintiff
must show that (1) she belongs to a protected group; (2) she was sub-
jected to unwelcome sexual harassment; (3) based upon sex; (4)
which was sufficiently severe and pervasive to create an abusive work
environment; and (5) there is a basis for imputing liability to the
employer. Swentek v. U.S. Air, Inc., 830 F.2d 552, 557 (4th Cir.
1987).
Hadrosek can prove only the first of the five prongs. She has not
demonstrated that she was subject to unwelcome sexual harassment
based upon her sex as required by Swentek's second prong. See id.
She never made a complaint of sexual harassment to her supervisors,
except that she reported to Broudy an incident of a sales manager
"leering" at two female CSRs and asking them out on a date. Broudy
filed a memorandum of the incident in the sales managers file.
Pagenet-D.C. fired the sales manager a few days later, though it prob-
ably did so for poor job performance rather than sexual harassment.
J.A. at 249-54. In any event, the conduct was not repeated. Hadrosek
also alleges that she overheard, or heard of, crude sexual innuendos
in conversations at work.
In order to show a hostile work environment, the environment must
have been abusive both objectively and subjectively. Harris v. Fork-
lift Systems, Inc., 510 U.S. 17, 21-22 (1993). Hadrosek could not have
been subjectively abused by remarks or actions she did not know of
during the term of her employment. She heard few of the comments
7
personally, and she admits she learned of many of the incidents only
after her employment terminated. Id. at 143-52, 195-99, 214, 281-83,
374, 413-14, 416. Of the verbal comments and gestures Hadrosek
allegedly did hear and see, her superior or co-worker directed few
toward her. These include a claim that at a baseball game, Thielen
chastised her for leaving early and stated that she should "let [her]
husband know who wears the pants in the family." J.A. at 15. She also
recalls Thielen once telling her that she looked like she had a hard
night and should put on makeup. Id. at 416. Other comments were
directed to a number of people. Hadrosek alleges she was present at
a meeting where employees were directed to make a presentation con-
cerning something that cost less than a dollar. One employee chose
to make a presentation on the worth of a condom. Id. at 414. She also
recalls overhearing male employees' and a male manager's crude
comments regarding their estimation of various women's attractive-
ness. She complains that some employees were given priority in the
allocation of business equipment, though she eventually obtained the
equipment as well.
Even if these incidents occurred on the basis of sex, as required by
the third prong, they do not meet the fourth requirement: that the inci-
dences be sufficiently severe and pervasive so as to create an abusive
work environment. See Swentek, 830 F.2d at 557. The sporadic com-
ments and actions of which Hadrosek was aware at the time of her
employment do not constitute Title VII sexual harassment.
The final prong of Swentek requires a basis for imputing liability
to the employer. Id. Even if some of the incidents Hadrosek observed
constituted sexual harassment, Hadrosek had a managerial duty to
report these to her superiors. Hadrosek reported to her supervisors
only the one incident regarding the sales manager asking her female
CSRs out on dates. Management took prompt action, and the behavior
did not recur. J.A. at 415. She failed to report to her supervisors the
incidents that she now alleges were directed toward her. An employer
will only be held liable for sexual harassment if it knew or should
have known of the harassment and failed to take prompt action. See
Swentek, 830 F.2d at 558. Hadrosek's own inaction concerning other
incidents undercut her employer's ability to remedy any problems.
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III. CONCLUSION
Considering the evidence as a whole and in the light most favor-
able to Hadrosek, the evidence is insufficient to support her claim of
sex discrimination or sexual harassment. We affirm the summary
judgment entered by the district court in favor of the appellees.
AFFIRMED
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