Davis v. Coastal International Security, Inc.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 30, 2001 Decided January 11, 2002

No. 00-7293

Wallace LoWarren Davis,
Appellant

v.

Coastal International Security, Inc. and
Securiguard, Inc.,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 00cv00074)

Thomas Ruffin, Jr. argued the cause and filed the briefs
for appellant.

Nancy M. O'Connor argued the cause for appellee Coastal
International Security, Inc. With her on the brief were J.
Tullos Wells, Julia M. Rendon and James F. Parker III.

 Eric Paltell argued the cause for appellee Securiguard, Inc.
With him on the brief was Lynn A. Clements.

Before: Ginsburg, Chief Judge, and Randolph and Tatel,
Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: A male employee of a security
company alleges that two co-workers, also male, sexually
harassed him in violation of Title VII of the Civil Rights Act
of 1964. Finding the three employees engaged in only a
"workplace grudge match," the district court granted sum-
mary judgment for the employers. We affirm. Not one of
the alleged acts of sexual harassment, ranging from vulgar
comments and gestures to tire slashing, constitutes discrimi-
nation because of sex, as required by Title VII.

I.

The extended and rancorous workplace dispute giving rise
to this action began in 1996 after appellee, Coastal Interna-
tional Security, through its subcontractor and co-appellee
Securiguard, hired appellant Wallace Davis to work as a
security guard at the Environmental Protection Agency.
While serving as a supervisor early in his tenure, Davis
disciplined two other Coastal security guards, Aaron Smith
and Everett Allen, for various on-the-job infractions. Viewed
through the lens we use at summary judgment, see Abraham
v. Graphic Arts Int'l Union, 660 F.2d 811, 814 (D.C. Cir.
1981) (noting that at summary judgment, "facts asserted by
the non-movant, if adequately buttressed by evidentiary ma-
terial, are to be taken as true" (citations omitted)), record
evidence indicates that Smith and Allen, apparently infuriated
by their discipline, launched a retaliatory campaign against
Davis, which they began by repeatedly slashing his tires.

After Davis complained to his supervisor, Coastal required
the three men to sign a memorandum of understanding in
which they agreed to set aside their differences. This agree-
ment accomplished nothing. When Davis was demoted, in
part for his failure to abide by the memorandum of under-

standing, Smith and Allen visited his work station and taunt-
ed him about the demotion. On other occasions, Allen told
Davis that he "ma[de] him sick," and that he found Davis
"aggravat[ing]." Davis again found his tires slashed.

Approximately six months into their campaign against
Davis, Smith and Allen expanded their repertoire. Smith
approached Davis at his work station and grabbed his
(Smith's) crotch, made kissing gestures, and used a phrase
describing oral sex. (Readers interested in additional de-
scription of this behavior may consult the briefs and record,
which spare no detail, however vulgar.) After Smith twice
repeated this performance, Davis complained to his supervi-
sor, who convened a meeting with Davis, Smith, and Coastal's
project manager for the EPA facility. Because Smith denied
Davis's accusations, and because Davis failed to provide cor-
roborating evidence, the project manager took no formal
action, but admonished both Davis and Smith to "act like
grown men."

Undeterred, Smith continued his vulgar comments and
gestures, and Davis again complained to his supervisor. This
time the supervisor warned Smith that he would be fired if
his behavior continued. This seems to have gotten Smith's
attention, for his lewd conduct ceased (although Davis alleges
that Smith threatened his life on several subsequent occa-
sions). Allen, however, picked up the cudgel, twice approach-
ing Davis and making precisely the same lewd gestures and
comments that Smith had.

When Davis complained for a third time, Coastal conducted
a full-scale investigation. Although the investigator inter-
viewed ten employees, he concluded that the inquiry had been
"hampered by the lack of a reliable witness to substantiate
even one allegation of sexual harassment by ... Davis."
Notwithstanding this lack of corroborating evidence, the in-
vestigator recommended that Davis and Allen be reassigned
(Coastal had terminated Smith for unrelated reasons).
Shortly thereafter, Davis filed one final complaint, claiming
again that Allen, despite his reassignment, had repeated the
by-now-familiar lewd gestures and comments.

 In January 2000, over three years after these events began,
Davis filed suit in the United States District Court for the
District of Columbia, alleging that Smith's and Allen's behav-
ior amounted to sexual harassment and that Coastal and
Securiguard "permitted ... Allen ... and ... Smith to make
sexually vulgar gestures and statements." The companies'
actions, the complaint alleges, violated Title VII of the Civil
Rights Act of 1964, 42 U.S.C. ss 2000e et seq., and section
1-2512(a) of the District of Columbia Human Rights Act, D.C.
Code Ann. s 1-2512(a). In an oral ruling, later confirmed in
a memorandum opinion, the district court granted summary
judgment for Coastal and Securiguard on both claims. While
Davis, Smith, and Allen "obviously hated each other" and
"were fighting like scorpions in a bottle," the district court
found, Smith's and Allen's behavior "ha[d] nothing to do with
sexual harassment." Tr. of Mots. Hr'g at 36, Davis v.
Coastal Int'l Security, Inc., No. CA 00-0074 (D.D.C. Oct. 20,
2000). "[T]he fact that [Smith and Allen] used references to
their anatomies or used their anatomies as part of their
harassment does not make it sexual harassment unless they
were harassing because of gender ... , and there is simply no
evidence that they were harassing Mr. Davis because of their
gender or because of his gender." Id.

Davis now appeals. Our review is de novo. See Aka v.
Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998).

II.

Title VII, which prohibits employers from discriminating
"against any individual ... because of such individual's ...
sex," 42 U.S.C. s 2000e-2(a)(1), protects both men and wom-
en, see, e.g., Newport News Shipbuilding & Dry Dock Co. v.
EEOC, 462 U.S. 669, 675-76 & n.11, 103 S.Ct. 2622, 2627 &
n.11, 77 L.Ed.2d 89 (1983). Sex discrimination includes creat-
ing a hostile or abusive work environment if the harassment
is sufficiently abusive to affect a "term, condition, or privi-
lege" of employment. Meritor Sav. Bank v. Vinson, 477 U.S.
57, 66, 106 S.Ct. 2399, 2405-06, 91 L.Ed.2d 49 (1986). To

make a prima facie Title VII hostile environment claim, the
plaintiff employee must show:

(1) the employee was a member of a protected class; (2)
the employee was subjected to unwelcome[ ] sexual
harassment ...; (3) the harassment complained of was
based upon sex; (4) the charged sexual harassment had
the effect of unreasonably interfering with the plaintiff's
work performance and creating an intimidating, hostile,
or offensive working environment ...; and (5) the exis-
tence of respondeat superior liability.

Yeary v. Goodwill Industries-Knoxville, Inc., 107 F.3d 443,
445 (6th Cir. 1997).

Like the district court, we begin and end with Davis's
failure to satisfy the third element of a prima facie case: that
the alleged harassment amounts to discrimination because of
sex. As the Supreme Court observed in Oncale v. Sundown-
er Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 140
L.Ed.2d 201 (1998), this element of a hostile-environment
claim presents a plaintiff with serious obstacles where, as
here, the perpetrators and plaintiff are of the same sex.
Although when "the challenged conduct ... involves explicit
or implicit proposals of sexual activity" between members of
the opposite sex "it is reasonable to assume those proposals
would not have been made to someone of the same sex," the
same assumption of disparate treatment, the Court explained,
may not as readily be made in the same-sex harassment
context. 523 U.S. at 80, 118 S.Ct. at 1002. To address this
problem, the Court suggested three ways to prove that same-
sex sexual behavior rises to the level of illegal sexual harass-
ment: The plaintiff may show that the sexual behavior is
motivated by actual homosexual desire; that the harassment
is framed in "such sex-specific and derogatory terms ... as to
make it clear that the harasser is motivated by general
hostility" toward members of the same gender in the work-
place; or that there is "direct comparative evidence about
how the alleged harasser treated members of both sexes in a
mixed-sex workplace." Id. at 80-81, 118 S.Ct. at 1002.

 Davis's effort to mold his allegations into a plausible Title
VII claim rests on the first and third methods of proof. He
begins by claiming that Smith's and Allen's behavior amount-
ed to sexual propositions. No reasonable jury could believe
this. For one thing, Davis's own testimony conclusively
shows that Smith and Allen were motivated by a workplace
grudge, not sexual attraction. In his deposition, Davis testi-
fied that he is not homosexual, that he had no reason (other
than the behavior of which he complains) to believe that
either Smith or Allen is homosexual, that Smith and Allen
were motivated by their resentment of Davis's disciplinary
action, and that Smith and Allen both repeatedly made clear
that they despised Davis. Most damaging to Davis, although
he claimed early in his deposition that he understood "without
a shadow of a doubt" that Smith's and Allen's comments and
gestures amounted to a serious sexual proposition, Davis later
stated "I don't know if they were asking me to have sexual
relations with them. I don't really know what they were
saying...."

Davis's assertion that Smith's and Allen's behavior amount-
ed to a series of sexual advances also ignores the dual
teachings of Oncale: that "[t]he real social impact of work-
place behavior often depends on a constellation of surround-
ing circumstances, expectations, and relationships which are
not fully captured by a simple recitation of the words used or
the physical acts performed," id. at 81-82, 118 S.Ct. at 1003,
and that plaintiffs who pursue sexual harassment claims
"must always prove that the conduct at issue was not merely
tinged with offensive sexual connotations, but actually consti-
tuted 'discrimination because of sex,' " id. at 80-81, 118 S.Ct.
at 1002 (emphasis omitted). Although Smith's and Allen's
performances were certainly "tinged with offensive sexual
connotations," we agree with the district court that when
their behavior is viewed in light of "surrounding circum-
stances," the two were not sexually propositioning Davis. In
a virtually identical case, Johnson v. Hondo, Inc., the Seventh
Circuit held that a plaintiff's claim that a male co-worker,
inspired by a long history of mutual dislike, tormented him
with a series of sexually explicit comments accompanied by

lewd gestures "failed to raise a triable issue as to whether
[the harasser's] comments were because of [the plaintiff's]
gender." 125 F.3d 408, 412 (7th Cir. 1997). The court's
analysis applies here as well:

Most unfortunately, expressions [that employ obscene
language] are commonplace in certain circles, and more
often than not, when these expressions are used (particu-
larly when uttered by men speaking to other men), their
use has no connection whatsoever with the sexual acts to
which they make reference--even when they are accom-
panied, as they sometimes were here, with a crotch-
grabbing gesture. Ordinarily, they are simply expres-
sions of animosity or juvenile provocation, and there is no
basis in this record to conclude that [the harasser's]
usage was any different.

Id.

Attempting to distinguish Johnson, Davis points out that
Johnson's workplace was all-male and that Johnson, unlike
Davis, retaliated against his tormentors. We see no signifi-
cance in these distinctions. Same-sex harassment can occur
in single- or mixed-sex workplaces, cf. Oncale, 523 U.S. at 77,
82, 118 S.Ct. at 1001, 1003 (holding that plaintiff could bring
same-sex harassment suit even though he worked in an all-
male environment), and no authority suggests that workers
who retaliate against their harassers forfeit Title VII protec-
tion.

Not only do we thus think this case indistinguishable from
Johnson, but Davis himself recognizes that certain obscene
expressions, "particularly when uttered by men speaking to
men, ... ha[ve] no connection whatsoever with the sexual
acts to which they make reference." Johnson, 125 F.3d at
412. During Coastal's full-scale investigation, a co-worker
provided evidence that Davis used a vulgar description of a
sex act to describe his animosity toward the company. Asked
at oral argument whether Davis actually meant to perform a
sex act, his counsel responded, "No. What he meant was ...
he was angry...." Tr. of Oral Arg. at 10.

 Invoking Oncale's third method of proof, Davis next argues
that because Smith and Allen directed their behavior at him,
and not at any female Coastal employees, they systematically
treated men differently than women. To succeed on this
theory, however, Davis must produce "direct comparative
evidence about how the alleged harasser treated members of
both sexes in a mixed-sex workplace." Oncale, 523 U.S. at
80-81, 118 S.Ct. at 1002 (emphasis added). This Davis has
failed to do. He has shown not that Smith and Allen treated
men differently than women, but that they treated Davis
differently than all other members of the Coastal workforce,
whether male or female. If anything, this showing actually
undermines Davis's claim: It suggests that Smith and Allen
targeted Davis because of his behavior as an individual rather
than because of his sex. Apparently aware of this serious
defect in his case, Davis goes so far as to suggest that any
adverse treatment in the workplace constitutes discrimination
when aimed at a single individual: "After all, when Smith
threatened to kill Davis, doing so on about ten different
occasions, Smith sexually discriminated against Davis because
Smith never similarly threatened female employees." Appel-
lant's Reply Br. at 1. Rejecting this preposterously broad
interpretation of Title VII requires little discussion, for such a
theory would convert the statute from a law aimed at eradi-
cating discrimination to one that prescribes a "general civility
code for the American workplace." Oncale, 523 U.S. at 80,
118 S.Ct. at 1002.

While Davis correctly notes that courts do not always
require Title VII plaintiffs to show that their harasser target-
ed multiple members of the plaintiff's sex, such a showing is
required where, as here, the plaintiff proceeds under the
third Oncale method and claims that the harassers treated
men as a group differently than women as a group. In
saying this, we emphasize that employees with legitimate
sexual harassment claims may invoke Title VII's protections
even absent systemic workplace harassment. As Oncale
makes clear, a lone plaintiff can sustain a sexual harassment
action if he or she suffers abusive treatment motivated by
sexual desire or evincing animus toward his or her gender.

See id. at 80-81, 118 S.Ct. at 1002 (holding that showing
systemic harassment is not the only means of proving Title
VII claim); see also, e.g., Greene v. Dalton, 164 F.3d 671, 674
(D.C. Cir. 1999) (finding female employee's allegations of
sexual harassment and rape by a male supervisor "indisput-
ably sufficient" to survive summary judgment).

Davis devotes many pages of his briefs trying to show that
other circuits have allowed suits like his to survive summary
judgment. Properly read, the cases he cites stand for noth-
ing more than the unremarkable principle that plaintiffs in
same-sex harassment suits can survive summary judgment by
making a plausible showing according to one of the three
Oncale methods. Three of the cited cases allowed same-sex
harassment suits brought by lone male employees to survive
summary judgment on the first Oncale theory, noting the
plaintiff's undisputed evidence establishing that actual homo-
sexual desire motivated the harassment. See Yeary, 107 F.3d
at 447-48; Shepherd v. Slater Steels Corp., 168 F.3d 998,
1009-10 (7th Cir. 1999); Fredette v. BVP Mgmt. Assocs., 112
F.3d 1503, 1510 (11th Cir. 1997). In Yeary, the Sixth Circuit
expressly limited its holding to the point that "when a male
sexually propositions another male because of sexual attrac-
tion, there can be little question that the behavior is a form of
harassment that occurs because of ... sex." Yeary, 107 F.3d
at 448. Another case Davis cites relied on the third Oncale
theory and noted the plaintiff's allegations that the harassers
targeted virtually all men and no women in a mixed-sex
workplace. "Evidence that members of one sex were the
primary targets of the harassment," the court held, "is suffi-
cient to show that the conduct was gender based for purposes
of summary judgment." Quick v. Donaldson Co., 90 F.3d
1372, 1378 (8th Cir. 1996) (citation and internal quotation
marks omitted). The last circuit court decision Davis cites
was not even a hostile-environment case--the defendant was
found liable for same-sex harassment on a quid-pro-quo theo-
ry (which requires no showing of differential treatment).
Kelly v. City of Oakland, 198 F.3d 779, 785 (9th Cir. 1999).

Davis also cites a litany of district court cases, all of which are
easily distinguishable on similar grounds.

III.

In rejecting Davis's claims, we emphasize that nothing in
this decision limits the capacity of men with legitimate sexual
harassment complaints to bring Title VII actions against
other men. We find only that however vulgar Smith's and
Allen's behavior, no reasonable jury could believe that it
constitutes discrimination because of sex. To conclude other-
wise on the facts of this case would trivialize the important
values protected by Title VII and elevate a gross workplace
dispute into a federal case. Nor does anything we say here
preclude female plaintiffs subjected to comments and ges-
tures like those at issue in this case from bringing Title VII
sexual harassment suits. As Oncale holds, context matters:
"A professional football player's working environment is not
severely or pervasively abusive, for example, if the coach
smacks him on the buttocks as he heads onto the field--even
if the same behavior would reasonably be experienced as
abusive by the coach's secretary (male or female) back at the
office." Id. at 81, 118 S.Ct. at 1003.

Finally, while Davis has no cause of action under Title VII,
we note that he may have remedies under local law (though
they may not provide for recovery of attorney's fees, as does
Title VII). Indeed, claiming that Smith and Allen engaged in
felony threats, assault, and destruction of property, Davis
sought a stay-away order against the two men in the District
of Columbia Superior Court. Davis v. Smith, Civil Action
No. 3287-99 (Sup. Ct. D.C. May 14, 1999). These allegations
could also support a civil action under D.C. law, see Rogers v.
Loews L'Enfant Plaza Hotel, 526 F. Supp. 523, 529 & n.13
(D.D.C. 1981) (outlining elements of a cause of action for
assault), Woodward v. DiPalermo, 686 F. Supp. 1, 5 (D.D.C.
1986) (outlining elements of a cause of action for malicious
destruction of property), rev'd in part on other grounds, and
remanded sub nom. Yellow Bus Lines, Inc. v. Drivers, Chauf-
feurs & Helpers Local Union 639, 839 F.2d 782 (D.C. Cir.

1988), and Davis could have reported the alleged tire slashing
and death threats to the Metropolitan Police Department.
And of course, no legal action would have been necessary at
all had Davis, Smith, and Allen heeded their project manag-
er's admonition to "act like grown men."

The judgment of the district court is affirmed.

So ordered.