Hopelynn Neely v. McDonald's Corporation; Desi Carter

The Honorable William H. Stafford, Jr., Senior United States District Judge for*
the Northern District of Florida, sitting by designation.
1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-2186
_____________
HOPELYNN NEELY,
Appellant
v.
MCDONALD'S CORPORATION; DESI CARTER
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 04-cv-01553
District Judge: The Honorable Joy Flowers Conti
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 20, 2008
Before: SMITH and NYGAARD, Circuit Judges,
and STAFFORD, District Judge*
(Filed: August 10, 2009)
OPINION

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The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We1
exercise jurisdiction pursuant to Federal Rule of Civil Procedure 54(b) and 28 U.S.C. §
1291. Our review of an order granting summary judgment is plenary. Knabe v. Boury
Corp., 114 F.3d 407, 410 n.4 (3d Cir. 1997).
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SMITH, Circuit Judge.
Hopelynn Neely appeals from an order of the United States District Court for the
Western District of Pennsylvania, which granted summary judgment in favor of her
former employer, McDonald’s Corporation, on Neely’s claims of employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-2(a)(1), and the Pennsylvania Human Relations Act (PHRA), 43 Pa. Con. Stat. §
951. For the reasons set forth below, we will affirm the judgment of the District Court.1
Neely worked for a McDonald’s restaurant in Crafton, Pennsylvania, beginning in
August of 2003. The following month, Desi Carter started work at this same location as
an assistant manager-trainee. In early October, Carter began harassing Neely, touching
her inappropriately on several occasions, and calling her “babe.” Neely provided a
written complaint on October 27, 2003 to Christine Bellock, the restaurant manager,
prompting Bellock to call her supervisor Gwen Menzer. Menzer initiated an
investigation. Thereafter, on November 12, 2003, Menzer issued a written warning to
Carter that his behavior and language violated McDonald’s “zero tolerance policy”
regarding discrimination and sexual harassment. The warning indicated that any future
violations of the policy could result in further discipline, including termination. At the

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Because the PHRA is “generally interpret[ed] in accord with its federal2
counterparts,” our discussion of Neely’s hostile environment and constructive discharge
claims applies to her claims under Title VII and the PHRA. See Kelly v. Drexel Univ., 94
F.3d 102, 105 (3d Cir. 1996); see also Weston v. Pennsylvania, 251 F.3d 420, 426 n.3 (3d
Cir. 2001).
3
time this warning was issued, Menzer and Bellock reviewed and reiterated McDonald’s
“zero tolerance policy” with Carter. Carter signed the written warning. In addition to this
disciplinary meeting, Menzer instructed Bellock to schedule Neely and Carter on different
shifts. These measures were effective in stopping the offensive conduct, at first.
After about a month, Neely and Carter’s shifts began to overlap for approximately
an hour. According to Neely, this was not problematic. However, by the end of
December or the beginning of January, Carter started working much of the same shift as
Neely. According to Neely, Carter “was looking [her] up and down” and persisted in
calling her, and other female employees, “babe.” On January 22, Carter touched Neely’s
lower leg while she was waiting on a customer. According to Neely, Carter claimed he
was reaching to get sauce that was stored under the counter. Neely filed a complaint with
Bellock. Bellock advised that she would inform Menzer of Neely’s complaint. Five days
later, Neely resigned, believing that neither Bellock nor Menzer were going to respond to
her complaint.
Thereafter, she filed a civil action against McDonald’s and Carter. She alleged,
inter alia, claims under Title VII and the PHRA against McDonald’s for a hostile work
environment and constructive discharge. After discovery closed, McDonald’s moved for2

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summary judgment. The Court rejected Neely’s contention that Carter was a supervisor
and concluded that her hostile work environment claim failed because McDonald’s had
taken prompt remedial action upon learning of the offensive conduct. It also granted
summary judgment in favor of McDonald’s on Neely’s constructive discharge claim
because she had not established that the subsequent conduct was so intolerable that a
reasonable person would have felt compelled to resign.
Neely contends that the District Court erred in concluding that Carter was not a
supervisor for purposes of Title VII. “The basis of an employer’s liability for hostile
environment sexual harassment depends on whether the harasser is the victim’s
supervisor or merely a coworker.” Huston v. Procter & Gamble Paper Products Corp.,
__F.3d. __, 2009 WL 1587649 at *3 (3d Cir. June 8, 2009). In Huston, we considered
“who qualifies as a ‘management level’ employee” in the context of imputing
constructive notice to an employer of coworker sexual harassment. We concluded “that
an employee’s knowledge of allegations of coworker sexual harassment” could be
imputed to the employer “where the employee is sufficiently senior in the employer’s
governing hierarchy, or otherwise in a position of administrative responsibility over
employees under him, such as a departmental or plant manager, so that such knowledge is
important to the employee’s general managerial duties.” Id. at *6. We also determined
that an employee’s knowledge could be imputed if the “employee is specifically
employed to deal with sexual harassment.” Id. In concluding that the employees who had

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notice of the sexual harassment that Huston complained of were not managers, we
considered that these employees were not part of “‘the collective body of those who
manage or direct an enterprise or interest . . . .’” Id. (omitting citation). Although
Huston’s coworkers, who had notice of the sexual harassment, were responsible for
overseeing the performance of others in completing the work at hand, they lacked any
authority to hire or discipline the others. Id. at *6. Such employees, we concluded, were
not managers for purposes of imputing notice to their employer of ongoing sexual
harassment. Id. at *7.
We find Huston instructive. Carter’s position, though labeled assistant manager,
did not bestow upon him the authority to hire, fire, and discipline the staff he worked with
during his shift. He neither scheduled the staff on his shift nor assigned them to work
stations. Those duties were performed by Bellock, the store manager. She was
responsible for the operations of the restaurant and answered to upper management.
Accordingly, we agree with the District Court that Carter was not a supervisor for
purposes of Title VII.
Because Carter was a coworker, McDonald’s may be liable “only if the employer
failed to provide a reasonable avenue for complaint or, alternatively, if the employer
knew or should have known of the harassment and failed to take prompt and appropriate
remedial action.” Id. (citations omitted). We have held that “an employer’s remedial
measure is nonetheless adequate if ‘reasonably calculated’ to end the harassment.”

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McDonald’s “zero tolerance policy” does not require termination of the offender.3
It states that “[i]f the report has merit, McDonald’s will take corrective action, including,
but not limited to, disciplinary action against the offender ranging from a warning to
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Jensen v. Potter, 435 F.3d 444, 453 (3d Cir. 2006) (quoting Knabe v. Boury Corp., 114
F.3d 407, 412-13 (3d Cir. 1997)). In Knabe, we instructed that “whether a chosen remedy
was reasonably calculated to prevent further acts of harassment can be answered at the
time that remedy is put into place.” 114 F.3d at 415. Thus, the fact that a harasser may
persist in the offensive conduct does not preclude a determination that the remedy was
adequate. Id. at 411 n.8, 415; see also Robinson v. City of Pittsburgh, 120 F.3d 1286,
1305 n.20 (3d Cir. 1997) (observing that in Knabe “[w]e held instead that a remedial
action is ‘adequate’ if it was ‘reasonably calculated to prevent further harassment,’
whether or not it actually succeeded in doing so”), abrogated on other grounds in
Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
We conclude that McDonald’s remedial measures were prompt and adequate. It is
undisputed that Bellock contacted Menzer without delay after receiving Neely’s written
complaint in October of 2003, and that Menzer conducted an investigation. Although
Menzer was unable to corroborate Neely’s complaints, Menzer concluded that Carter had
violated McDonald’s “zero tolerance policy.” As a result, she met with him on November
12 in Bellock’s presence, issued a written warning that indicated he had violated
McDonald’s “zero tolerance policy,” reviewed McDonald’s policies with him personally,
and warned that he could face termination if the conduct did not cease. In addition, she3

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termination.”
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directed that Bellock rearrange Carter’s shifts. These steps, according to Neely,
alleviated the problem at first. That they failed to completely put an end to Carter’s
conduct, however, does not mean that they were inadequate at the time these measures
were taken. Knabe, 114 F3d. at 415. Accordingly, we conclude that the District Court
did not err in its grant of summary judgment for McDonald’s on Neely’s hostile
environment claim.
Neely’s constructive discharge claim is based on Carter’s conduct after their shifts
began to substantially overlap in late December. In Pennsylvania State Police v. Suders,
542 U.S. 129 (2004), the Supreme Court instructed that a “hostile-environment
constructive discharge entails something more” than just offensive behavior that is severe
or pervasive enough “to alter the conditions of the victim’s employment and create an
abusive working environment.” Id. at 147. It reiterated that a plaintiff advancing a
constructive discharge claim “must show working conditions so intolerable that a
reasonable person would have felt compelled to resign.” Id. We recognize that after
Neely’s and Carter’s shifts overlapped that some of Carter’s conduct was offensive and
inexcusable. We cannot say, however, that Neely demonstrated that Carter’s conduct
constituted “something more” than a hostile environment claim. Indeed, Neely’s
admissions minimizing the severity of Carter’s post-remediation conduct preclude a
reasonable inference that his action rose to the level of being “so intolerable” that a

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reasonable person would have been forced to quit. Id.
We will affirm the judgment of the District Court.
STAFFORD, District Judge, dissenting.
With deference and respect to the district court and to the majority, I must
nevertheless dissent. I do so because I believe that Neely has established a genuine issue
of material fact as to her hostile work environment and constructive discharge claims.
I.
Neely presented evidence of the following:
Neely worked as an hourly crew person at the McDonald's Green Tree restaurant
in Crafton over the course of twelve years, taking time off after the births of each of her
three children. Carter was transferred to the Green Tree restaurant approximately one
month after Neely was rehired following the birth of her third child. During the relevant
time period, Carter was second in the store hierarchy under Bellock, the restaurant
manager. Swing managers were below Carter in the hierarchy. Whenever Bellock was
out of the restaurant, the employees, including Neely, looked to Carter as the person "in
charge." Indeed, Neely considered him to be her "boss;" and, when asked at her
deposition whether Carter could have fired her, she replied: "As far as I know."
Soon after he started working at the Green Tree restaurant, Carter intentionally

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grabbed Neely's left breast with his full hand as Neely was reaching for a bag in the
sandwich chute. Neely did not immediately report the incident because Carter "was
always there." Instead, when she left work that day, she called Barbara Richards, the
swing manager who generally worked the same shift as Neely, telling Richards exactly
what had happened. Richards, who was at home at the time, advised Neely to make a
written record of the incident before meeting with Bellock and Richards the next day.
Richards then called the restaurant to inquire about the day's video tapes. The manager
on duty at the time told Richards that the cameras had not been turned on that day.
Consistent with Richards's instructions, Neely submitted a written report about the
incident to Bellock the very next day. According to Neely, Bellock said that Neely's
complaint—which was not the first such complaint submitted to Bellock—would be
turned over to Menzer. McDonald's gave Bellock, as the store manager, no authority to
discipline her assistant managers; instead, she was required to contact Menzer or Human
Resources Consultant C.C. Coleman whenever she thought an assistant manager required
disciplinary action.
Menzer thereafter initiated an investigation. In the weeks that followed, hearing
nothing from Menzer or Coleman, Neely asked Bellock on several occasions what was
being done about Carter. Bellock, who knew little more about the investigation than
Neely, responded by saying that McDonald's would probably do nothing about the
situation. In the meantime, Carter's behavior did not improve. Indeed, there were

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occasions when he rubbed the side of Neely's leg with his hand, called her "babe," blew
into the hair by her ear, and—on as many as 20 occasions—pressed against her back with
his full body so that she could feel his penis. Neely complained about Carter's conduct to
Bellock, telling Bellock that she did not want to work the same shift as Carter. During
the course of the investigation, Neely was never interviewed by either Menzer or
Coleman.
Throughout the months that Carter worked at the restaurant, Neely observed Carter
treating other crew members in an inappropriate manner. For example, Neely saw a crew
member named India punch Carter after he grabbed her in a bear hug. She saw Carter
"rub up" against yet another crew member named Bobbie, who—Neely says—submitted a
written complaint about the rubbing. She saw Carter put his hands between Richards's
legs, ostensibly to help Richards wipe off the water she had spilled on herself. Richards
told Neely that she (Richards) reported the incident to Bellock.
At or about the same time that Neely was reporting Carter's inappropriate behavior,
at least two other crew members (Kaitlyn and Rebecca) similarly complained about
Carter's conduct. Among other things, Kaitlyn reported—in writing—that Carter put his
arms around her, called her "sexy," and placed his hands on her hips at least a few times
every time she worked with him. Rebecca reported similar inappropriate behavior, also in
writing. Bellock admits that she received these other complaints, that Menzer was told
about the complaints, and that she (Bellock) was involved in the ensuing investigation of

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Kaitlyn's and Rebecca's complaints. Bellock was not, however, involved in the
investigation of Neely's complaints, and Menzer did not solicit Bellock's input as to what
disciplinary action, if any, should be meted out to Carter. While Bellock says she never
saw any of Carter's inappropriate behavior, she believed "to a certain extent" what Neely,
Kaitlyn and Rebecca reported simply "because there were one, two, and three."
When first alerted about Neely's complaint, Menzer instructed Bellock to pull the
videotapes from the relevant days. Bellock was unable to produce any video tapes
because the video system was broken. According to Menzer, the system was replaced
years later. During her investigation, Menzer interviewed six to eight employees
(including Bellock and Carter) at the Green Tree restaurant, taking written statements
from anyone who wished to submit such a statement. Richards submitted a statement that
included: "I was in drive-through and [Carter] came over and was rubbing my back. I
moved, and then I was by the drive-through cart and he grabbed my hand." Nicole Watts
submitted a statement, complaining that "[Carter] makes me feel like I'm worthless and
demoralized." Rebecca submitted the following statement:
[Carter] would go behind Kaitlyn and I [sic] and grab our
waists from behind us. . . . Also [Carter] was standing in front
of the fry station and . . . he backed up into my chest and
starting rubbing his back on my chest and told me I had a nice
upper chest area if I know what he means. . . . I've seen him
grab Kaitlyn's butt. He took me into the stockroom and came
really close to my face asking me to stay until eleven. I asked
him why he wanted me to stay, and he said: "You know I'll
make it up to you," and he winked.

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Kaitlyn submitted a statement that included the following:
[Carter] pinched my side. When I told him to get off he
pinched harder. He picked me up after I told him not to touch
me. He has made numerous comments to me that I have
attempted to block out of my mind simply because I like my
job and was trying not to let it get to me.
At least two weeks after Neely, Kaitlyn, and Rebecca submitted their complaints
about Carter, and without ever talking with Neely, Menzer issued Carter a written
warning for violating McDonald's zero tolerance policy. The warning was based on
"unacceptable behavior and language being used with a crew person." Menzer instructed
Bellock to thereafter schedule Neely and Carter on different shifts. Indeed, Menzer also
instructed Bellock to keep Carter separated from Kaitlyn and Rebecca. Bellock admits
that, after she received Menzer's instructions, "it wasn't okay to schedule [Carter and
Neely] together."
For a brief period of time, Bellock scheduled the restaurant's shifts so that Carter
and Neely were not working at the same time. For reasons that are unclear, however, the
two were soon again scheduled for overlapping shifts. At first, Neely's and Carter's shifts
overlapped by only an hour, and few, if any, problems arose. When their shifts reverted
to a four-hour overlap, Neely again complained that she could not work with Carter, that
he leered at her, called her "babe," and touched her in offensive ways. Carter also
continued to act inappropriately with other employees. Weeks after Carter was
reprimanded, for example, Neely saw Carter "hanging all over" a foreign exchange

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I agree with the majority's conclusion that Carter was not a "supervisor" for4
purposes of holding McDonald's vicariously liable under Title VII. Because Carter was a
low-level manager who did not use whatever supervisory authority he had to carry out the
harassment, his situation is indistinguishable from cases in which the harassment is
perpetrated by an employee's co-worker.
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student who worked for about a month at the restaurant, making everyone feel
uncomfortable, including another crew member who went straight to Bellock to complain
about Carter's conduct. Neely was so unhappy about having to again work the same shift
as Carter that she would get physically sick in the mornings, vomiting as she waited
outside the restaurant "until exactly that minute I had to be there." Expecting—as Bellock
had advised—that McDonald's would probably do nothing else to rectify the situation,
Neely quit her job.
Two weeks later, Neely received a letter from McDonald's, extending Neely an
unconditional offer to return to work at the Green Tree restaurant and informing her that
Carter had been transferred to another restaurant. She refused the offer, explaining that
McDonald's had taken too long to adequately address the Desi Carter situation, that the
company failed to respect and properly protect its crew members, and that she was simply
"upset with them because they didn't do anything."
II.
To prevail on a claim of sexual harassment by a co-worker, Neely must4
prove—among other things—that McDonald's "knew or should have known about the
harassment, but failed to take prompt and adequate remedial action." Andreoli v. Gates,

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482 F.3d 641, 644 (3d Cir. 2007). Any dispute regarding the promptness and adequacy or
appropriateness of management's remedial action is a factual issue for the jury to decide.
See Id. (reversing district court's grant of summary judgment in favor of employer where
there was a genuine factual dispute as to whether the employer's purported remedial
actions to address ongoing harassment were prompt and adequate); see also Howard v.
Burns Bros., Inc., 149 F.3d 835, 841 (8th Cir.1998) (noting that “the promptness and
adequacy of the employer's response to a complaint of harassment are fact questions for
the jury to resolve”). The appropriate corrective response will vary according to the
severity and persistence of the alleged harassment. See, e.g., Calderon v. Ford Motor
Credit Co., 300 Fed. Appx. 362, 371 (6th Cir. 2008); Kreamer v. Henry's Towing, 150
Fed. Appx. 378, 382 (5th Cir. 2005). A remedial action that stops the harassment is
adequate as a matter of law. Knabe v. Boury Corp., 114 F.3d 407, 411 n.8 (3d Cir. 1997).
Here, the district court determined that the remedial actions taken by McDonald's
were both prompt and adequate as a matter of law. According to the district court, Neely
"stated in her deposition that she was never harassed after McDonald's investigation."
Having determined that the reprimand received by Carter stopped the harassment, the
district court concluded that no reasonable juror could find that McDonald's remedial
action was anything other than prompt and adequate.
In fact, when the evidence is construed in a light most favorable to Neely, as it
must be on a motion for summary judgment, it cannot be said that Carter altogether

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ceased his harassing behavior after he was reprimanded. As recognized by the majority,
there is evidence that Carter's conduct toward Neely and others continued to be "offensive
and inexcusable" up until the day she quit. Weeks after he was reprimanded, Carter
called her "babe," leered at her, squatted down next to her leg, and made her feel
uncomfortable by "hanging all over" other crew members. To be sure, Neely said in her
deposition that she experienced no harassment during the brief time when Carter was
assigned to a completely different shift and that she remembered no specific incident of
harassment during the brief time their shifts overlapped by only an hour. Her deposition
testimony is unclear, however, about what happened when—contrary to Menzer's put-
them-on-different-shifts instruction—Carter's shift again overlapped Neely's by as much
as four or more hours. When asked if she recalled any incidences of harassment during
that time period, Neely responded: "I didn't let it get that far. . . . I left." Her response
does not necessarily mean that Carter altogether ceased his untoward behavior after he
was reprimanded.
The evidence submitted by Neely, if taken as true, reveals that McDonald's put
Carter "in charge" of a mostly female crew in a relatively confined setting. His behavior
toward Neely was egregious, involving—among other things—offensive physical
touching. His behavior, moreover, was not confined to Neely alone but involved several
other women who—likewise—complained of offensive physical touching. Neely not
only experienced Carter's offensive conduct directly but she also observed his untoward

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conduct toward others. Similarly, Kaitlyn and Rebecca both experienced Carter's
harassment themselves and also observed others being treated in like fashion. The
harassment, in other words, was severe as well as pervasive, creating an atmosphere that
made Neely and others feel very uncomfortable.
Despite receiving three contemporaneous complaints from three different women,
all complaining of offensive physical touching by Carter, it took Menzer two weeks to
conduct an investigation. During that investigation, Menzer never talked with Neely.
Menzer did, however, receive statements from other employees who reported similar
experiences with Carter's inappropriate behavior. To her credit, Menzer thereafter
instructed Bellock to put Carter on the night shift so that he would not be working the
same shift as Neely. That instruction was followed for less than a month.
When Neely again complained that she could not work with Carter, that he leered
at her, called her "babe," and squatted next to her leg, she was told that McDonald's
would likely do nothing more to remedy the situation. Because she became physically ill
on days that she was scheduled to work with Carter, and because she was given no reason
to think that McDonald's would take further action against Carter, Neely quit her job.
Given the egregiousness of Carter's conduct to Neely and others, the "in charge"
role Carter often played at the restaurant, the close-quarters in which Neely and Carter
worked, Carter's continuing offensive behavior, and Bellock's statement that McDonald's
would likely do nothing more to remedy the situation, a jury should be permitted to decide

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whether the remedial action taken by McDonald's was both prompt and adequate.
Just as the adequacy of an employer's remedial action is normally a factual
question for the jury, so too is the question of whether working conditions were so
intolerable as to justify a reasonable employee's decision to resign. Here, given the
totality of the circumstances already described, a reasonable jury could decide that, by
failing to fire Carter after he engaged in any post-reprimand inappropriate behavior,
McDonald's not only failed to abide by its own zero tolerance policy, but it also put Neely
in the intolerable situation of having to work closely with a man whose behavior was
inexcusable, especially before but also after his reprimand.
III.
Because I believe the district court resolved issues of disputed fact that should
have been submitted to a jury, I would reverse the district court's grant of summary
judgment in McDonald's favor and remand for a trial on Neely's claims.

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