                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-26-2009

Connell v. Principi
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1050




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"Connell v. Principi" (2009). 2009 Decisions. Paper 1688.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1688


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 2009 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                                       NOT PRECEDENTIAL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
                    _____________

                         No. 08-1050
                        _____________

MARK CONNELL; RONALD H. HARRINGTON; ERIC LUDWICK;
    EDWARD M. NARUSHOFF; RICHARD M. WEAVER,
                             Appellants

                                v.

    *R. JAMES NICHOLSON, Secretary of the Department of
                   Veterans Affairs

               *(Pursuant to Rule 43(c), F.R.C.P.)
                      _______________

        On Appeal from the United States District Court
            for the Western District of Pennsylvania
                     (D.C. No. 04-cv-1356)
        District Judge: Honorable Maurice B. Cohill, Jr.
                       _______________

          Submitted Under Third Circuit LAR 34.1(a)
                      March 26, 2009

   Before: RENDELL, AMBRO and JORDAN, Circuit Judges.

                   (Filed: March 26, 2009)
                      _______________

                 OPINION OF THE COURT
                     _______________
JORDAN, Circuit Judge.

            The appellants are five current or former male employees of the Department of

Veterans Affairs (“VA”) Medical Center in Pittsburgh, Pennsylvania. They sued the

Secretary of the VA in his official position, alleging sexual discrimination in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq. (“Title VII”), and

they are appealing the District Court’s order granting summary judgment to the VA.

More specifically, they claim that they were subjected to a hostile work environment

because of the behavior of a female co-worker. They argue that the District Court should

not have granted summary judgment because there is a genuine issue of material fact as to

whether they were harassed on the basis of their sex. For the following reasons, we will

affirm.

I.          Background 1

            Appellants allege that another VA Medical Center employee, Janice Freidel,

engaged in a pattern of gender-based harassment and discrimination that created a hostile

work environment. All of the appellants, except for Harrigan, worked in the Radiology

Department and saw Freidel there. In March of 2000, Harrigan went on his first, and

only, date with Freidel. Two months later, she poured a soft drink on his head and ran

away. Freidel then threatened to sue Harrigan for sexual harassment and also kicked him




     1
         The following information is cast in the light most favorable to the appellants.

                                                  2
in the upper thigh.2 On a separate occasion, she also threatened to kick appellant

Ludwick and another employee, Pete Tolento, in the same way.

         In July of 2002, Freidel made threats against employees in the Radiology

Department after appellant Ludwick commented on her failed personal relationships. She

stated to a supervising co-worker, Dr. Mino, that if he “did not do something ... there

would be a blood bath in the work corridor.” (App. 337a, emphasis omitted.) She also

threatened to inform the spouses of both male and female co-workers that she believed

her co-workers were engaging in inappropriate behavior. A few days later, she verbally

abused and threatened a female co-worker and told appellant Narushoff that if the female

co-worker informed anyone of the incident she would “physically shut her up.” (App.

219a-20a, 339a.) She then began to lash out at Narushoff and declared that if

management did not make some changes she would take everyone to court. Eventually,

she was placed on authorized absence while the VA police department investigated her

threats against her co-workers.

         After the threats were deemed not credible by the VA investigation, she was

permitted to return to work. Ten VA employees, however, signed a report protesting

Freidel’s return to the VA. The report was signed by the appellants in this action and four

female co-workers. It alleges that Freidel told a co-worker that she would “kick the three

cow’s asses,” referring to three female co-workers. The appellants allege other hostile or



  2
      Harrigan testified that he believed that Freidel was aiming higher.

                                                3
threatening interactions with Freidel after she returned to work, including threatening or

intimidating staring incidents, eavesdropping, and near-physical confrontations. The VA

informed Freidel that they were proposing to terminate her employment, which prompted

Freidel to resign.

        The appellants filed suit against the VA, alleging that Freidel had sexually

harassed them and created a hostile work environment. The VA filed a motion for

summary judgment and argued that the appellants could not establish that they suffered

harassment based on their gender. The District Court agreed and held that the appellants

were unable to “establish that they suffered intentional discrimination or harassment

because of their sex,” and granted the VA’s motion for summary judgment. (App. at

23a.)

II.     Discussion 3

        To succeed on a Title VII hostile work environment claim, plaintiffs must

establish 1) that they suffered intentional discrimination because of their sex, 2) that the




  3
    The District Court had jurisdiction under 18 U.S.C. § 1331. On appeal, we have
subject matter jurisdiction pursuant to 28 U.S.C. § 1291. Miller v. Beneficial Mgmt.
Corp., 977 F.2d 834, 841 (3d Cir. 1992). We review a District Court’s grant of summary
judgment de novo. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000);
Miller, 977 F.2d at 841. In conducting this review, we view all of the evidence in the
light most favorable to the non-moving party and determine whether there is a genuine
issue of material fact or the District Court misapplied the substantive law. Moore v. City
of Philadelphia, 461 F.3d 331, 340 (3d Cir. 2006); United Artists Theatre Circuit, Inc., v.
Twp. of Washington, 316 F.3d 392, 396 n.3 (3d Cir. 2003).


                                              4
discrimination was pervasive and regular, 3) that the discrimination detrimentally affected

them, 4) that the discrimination would have detrimentally affected a reasonable person of

the same sex in like circumstances, and 5) the existence of respondeat superior liability.

E.g., Andreoli v. Gates, 482 F.3d 641, 643 (3d Cir. 2007); Weston v. Pennsylvania, 251

F.3d 420, 426 (3d Cir. 2001); Spain v. Gallegos, 26 F.3d 439, 447 (3d Cir. 1994).

       In explaining the first element, the United States Supreme Court has stated: “‘The

critical issue, Title VII’s text indicates, is whether members of one sex are exposed to

disadvantageous terms or conditions of employment to which members of the other sex

are not exposed.’” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)

(quoting Harris v. Forklift Sys,. Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring)).

The Court has further clarified that workplace harassment is not automatically sex

discrimination because “the words used have sexual content or connotations.” Oncale,

523 U.S. at 80.

       The appellants argue that there is a genuine issue of material fact as to whether

Freidel’s behavior was gender-based. We cannot agree. Viewing the facts in the light

most favorable to the appellants, the facts nevertheless fail to support a hostile work

environment claim because both male and female VA employees were exposed to

Freidel’s ire and so, to the extent her bad behavior can be characterized as a

“disadvantageous term or condition of employment” for workers who had to deal with it,

it was a gender-neutral condition. Oncale, 523 U.S. at 80. Other significant questions



                                              5
can be raised about appellants’ claim, but it is dispositive to note that the appellants have

failed to establish the first element of a Title VII hostile work environment claim: that

they suffered intentional discrimination because of their sex.

       For example, Freidel’s threat to Dr. Mino, that there would be a “blood bath in the

work corridor,” was taken by her co-workers as a general threat against all of them,

irrespective of their sex. (App. at 337a., emphasis omitted.) Similarly, her threat to

contact the spouses of both male and female co-workers and allege that they were

engaged in inappropriate behavior was a general threat, not based on the sex of the co-

workers. She also made threats specifically against three female co-workers, implying

violence, and to another female co-worker, threatening to physically shut her up.

       Even the incidents in which Freidel harassed only men fail to show that she

harassed them on the basis of their sex. Her behavior, while clearly inappropriate, was

apparently motivated by nothing more than difficult relationships and a generally hostile

disposition towards co-workers, without regard to gender. We cannot impose Title VII as

a civility code for the work place, see Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1995) (the “standards for judging hostility are sufficiently demanding to ensure that Title

VII does not become a ‘general civility code’”) (citation omitted), and we conclude, as

did the District Court, that no reasonable fact finder could say that the appellants were

subjected to discrimination based on their sex.




                                              6
III.   Conclusion

       Accordingly, we will affirm the District Court’s grant of summary judgment.




                                           7
