                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-29-2008

Bailey v. Commerce Natl Ins
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1777




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"Bailey v. Commerce Natl Ins" (2008). 2008 Decisions. Paper 1506.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1506


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  Case No: 07-1777

                             KIMBERLEY A. BAILEY,

                                      Appellant

                                           v.

             COMMERCE NATIONAL INSURANCE SERVICES, INC.,
                    A NEW JERSEY CORPORATION




                    On Appeal from the United States District Court
                               for the District of Delaware
                                 Civil No. 05-CV-00183
                    District Judge: The Honorable Sue L. Robinson


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 February 15, 2008

                   Before: SLOVITER, and SMITH, Circuit Judges,
                             DIAMOND, District Judge *

                              (Filed: February 29, 2008)


                                      OPINION




      *
        The Honorable Gustave Diamond, Senior District Judge for the United States
District Court for the Western District of Pennsylvania, sitting by designation.

                                          1
DIAMOND, District Judge.

      Appellant Kimberley A. Bailey (“Bailey”) is a former employee of Commerce

National Insurance Services, Inc. (“Commerce”). Bailey claims that the termination of

her employment by Commerce was motivated by retaliation in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The District Court granted

Commerce’s motion for summary judgment. We will affirm.

                                           I.

      As we write primarily for the parties, we will discuss only those facts relevant to

our analysis. Bailey began her employment with Commerce on August 27, 2001, as a

customer service representative in Delaware. Bailey later was promoted to the position of

sales and service supervisor of Commerce’s Main Street Department (“the Department”),

also located in Delaware. At that time, Steven Duncan, who was director of the

Department, was Bailey’s supervisor.

      On April 3, 2003, Bailey submitted a letter to Commerce’s Human Resources

Department alleging that Duncan had sexually harassed her (the “internal complaint”).

Bailey subsequently met with Deborah Watson, who was Commerce’s Vice President of

Human Resources, and Bruce McKelvy, another official in the Human Resources

Department, to discuss the situation. Commerce then conducted an investigation of

Bailey’s allegation against Duncan. At the conclusion of the investigation, Commerce

determined that Duncan had not sexually harassed Bailey, but he had acted


                                            2
inappropriately. As a result, Commerce terminated Duncan. However, through the

investigation, Commerce found that Bailey had engaged in certain unprofessional conduct

that it thought she should correct in light of her position as a supervisor. Accordingly,

Commerce requested that Bailey complete various in-house training courses.

        Duncan was replaced as director of the Department by Mary Corcoran, who

transferred to the Department from another office. When Corcoran took over as director

of the Department, she was not aware of Bailey’s internal complaint or the ensuing

investigation. In fact, Corcoran did not learn of Bailey’s internal complaint until after she

was terminated. This was because Corcoran did not have any files relating to the internal

complaint or the investigation in her Delaware office, and the Commerce Human

Resources Department, which had conducted the investigation, did not inform Corcoran

about the matter. Furthermore, nothing relating to Bailey’s internal complaint was placed

in her personnel file.

        Corcoran had the reputation within Commerce of being a forceful manager with

high standards. On one occasion after Corcoran became Bailey’s new supervisor,

Corcoran requested that Bailey go home to change her clothes because of a dress code

violation. On another occasion, Corcoran counseled Bailey on her writing style in e-mail

communications. Corcoran also removed several sales people from Bailey’s supervision

and removed her from a project on which she had been working.

       The incident which ultimately led to Bailey’s termination occurred on August 12,


                                             3
2003. Valerie Oakes, who was one of Bailey’s subordinates, asked her for assistance on a

matter. Bailey responded directly to Oakes with profanity. At Corcoran’s request, Oakes

documented the incident in an e-mail. Bailey was terminated on August 27, 2003, for

inappropriate conduct toward a subordinate and violation of company policies. Corcoran

made the decision to terminate Bailey, and she was supported in her decision by Joe

Morrissey, who was her supervisor, as well as Deborah Watson of Human Resources.1

       Bailey filed suit against Commerce in the District Court for the District of

Delaware, claiming that her termination by Commerce was motivated by retaliation for

her internal complaint against Duncan. The District Court granted summary judgment in

favor of Commerce, finding that Bailey failed to produce evidence of a causal link

between her protected activity and her termination sufficient to establish a prima facie

case of retaliation, and, even if Bailey were able to establish causation, she would be

unable to rebut the legitimate reasons Commerce set forth to explain its decision to

terminate her. Bailey now appeals, challenging the District Court’s grant of summary

judgment.

                                             II.

       We have jurisdiction over the final order of the District Court pursuant to 28


       1
        In response to Bailey’s interrogatories, Commerce indicated that the decision to
terminate Bailey was made collectively by Corcoran, Watson, Morrissey and McKelvy.
See Appellee’s App. at 130. However, both Corcoran and Watson clarified in their
deposition testimony that Corcoran decided to terminate Bailey, and Morrissey and
Watson supported that decision. Id. at 150, 165, 227.

                                             4
U.S.C. § 1291. We review a grant of summary judgment de novo and apply the same

standard as the District Court. MBIA Ins. Corp. v. Royal Indem. Co., 426 F.3d 204, 209

(3d Cir. 2005). We must examine all of the evidence in the light most favorable to the

nonmoving party to determine if there is a genuine issue of material fact. Orsatti v. New

Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995). In determining whether a dispute is

genuine, the court’s function is to decide “whether the evidence of record is such that a

reasonable jury could return a verdict for the nonmoving party.” Id.

       In order to establish a prima facie case of discriminatory retaliation, a plaintiff

must show that (1) she engaged in protected activity, (2) the employer took an adverse

employment action against her, and (3) there was a causal link between her protected

activity and the employer’s adverse action. Kachmar v. SunGard Data Sys., Inc., 109

F.3d 173, 177 (3d Cir. 1997). In this case, only the third element is at issue. To sustain

her claim of retaliation, Bailey must be able to produce evidence of a causal connection

between her internal complaint alleging she was sexually harassed by Duncan and the

termination of her employment four months later.

       In Kachmar, we explained that proof of causation may be established in a number

of ways. Causation may depend on the temporal proximity between the employee’s

protected activity and the adverse employment action. Id. Temporal proximity can serve

as circumstantial evidence “sufficient to raise the inference that [the plaintiff’s] protected

activity was the likely reason for the adverse action.” Id. (quoting Zanders v. National


                                              5
R.R. Passenger Corp., 898 F.2d 1127, 1135 (6 th Cir. 1990)). Absent temporal proximity,

“circumstantial evidence of a ‘pattern of antagonism’ following the protected conduct can

also give rise to the inference.” Kachmar, 109 F.3d at 177. Temporal proximity and a

pattern of antagonism, however, “are not the exclusive ways to show causation, as the

proffered evidence, looked at as a whole, may suffice to raise the inference.” Id.

       In the present case, Bailey fails to establish causation on the basis of temporal

proximity. The fact that Bailey’s termination occurred after she made her internal

complaint is not sufficient to infer a causal link, as the elapsed period of four months

between her protected activity and termination is not unusually suggestive of retaliatory

motive. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citing

favorably Hughes v. Derwinski, 967 F.2d 1168, 1174 (7 th Cir. 1992), which rejected an

inference of retaliation where the events were four months apart).

       Bailey also fails to establish causation by a “pattern of antagonism” after her

internal complaint. Duncan, the supervisor who Bailey claimed sexually harassed her,

was terminated and replaced by Corcoran. The circumstances which led to Bailey’s

termination occurred when she was supervised by Corcoran, who was not aware of the

internal complaint or the ensuing investigation, a fact which Bailey acknowledged in her

deposition testimony. Thus, without any knowledge of Bailey’s internal complaint,

Corcoran decided to terminate Bailey following her use of profanity toward a subordinate,

and that decision was supported by other Commerce officials. In Jones v. School District


                                              6
of Philadelphia, 198 F.3d 403, 415 (3d Cir. 1999), we affirmed a grant of summary

judgment on a retaliation claim under Title VII where there was no evidence that the

principals who made the decision to fire the plaintiff were aware of the protected action.

Likewise, here, the District Court correctly entered summary judgment in favor of

Commerce because it was Corcoran’s decision to fire Bailey and she was unaware of the

protected action.

       Although temporal proximity and a pattern of antagonism are not the exclusive

ways to show causation, the proffered evidence, viewed as a whole, does not raise the

inference of retaliation in this case. See Kachmer, 109 F.3d at 177. Aside from Bailey’s

own conclusory assumptions, there is not sufficient evidence in the record to indicate a

causal link between her internal complaint and her termination. For this reason, as well

as those stated above, the District Court did not err in holding that Bailey failed to meet

the required causation element necessary for establishing a prima facie case of

retaliation.2

                                             III.

       We see no error in the District Court’s grant of summary judgment in favor of



       2
        We note that even if Bailey could establish a prima facie case of retaliation by
showing causation, she would be unable to demonstrate that Commerce’s stated reason
for terminating her employment was pretextual. Particularly, regarding Bailey’s use of
profanity, although the record indicates that other employees used profanity when
presented with stressful situations at work, the record does not indicate that others
directed profanity at their subordinates, as Bailey did in the situation involving Oakes.

                                              7
Commerce. For all of the above reasons, we will affirm the District Court’s judgment.




                                           8
