Carole L. Page v. E.I. Du Pont de Nemours and Company, 857 F.2d 1469, 4th Cir. (1988)

857 F.
2d 1469
Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
Carole L. PAGE, Plaintiff-Appellant,
v.
E.I. Du PONT De NEMOURS AND COMPANY, DefendantAppellee.
No. 87-3754.
United States Court of Appeals, Fourth Circuit.

Argued: June 6, 1988.
Decided: Sept. 7, 1988.
Before DONALD RUSSELL, ERVIN and CHAPMAN, Circuit Judges.

Richard Green Dusenbury (Dusenbury & Snow, P.A., on brief), for
appellant.
Gardner G. Courson (William S. Myers, G. Daniel Ellzey, Ogletree,
Deakins, Nash, Smoak and Stewart, on brief), for appellee.
PER CURIAM:
The plaintiff-appellant, Carole L. Page, was an employee of the defendantappellee, E.I. Du Pont DeNemours & Company, Inc., from March 23, 1981
until August 2, 1985. Page has sued Du Pont alleging that she was a victim of
sex discrimination while an employee of Du Pont's Florence, S.C. plant. Page
alleged below that Du Pont violated Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. Sec. 2000e, et seq., in four ways: first, through
discriminatory discharge based on Page's sex, in violation of section 703(a)(1);1
second, through sexual harassment resulting from a sexually hostile work
environment in violation of section 703(a)(1); third, through retaliatory
discharge in response to Page's filing of a complaint of sexual harassment, in

violation of section 704(a);2 and fourth, through retaliatory discrimination in
the form of a sexually hostile work environment, created or tolerated in
retaliation for registering a complaint of sexual harassment, also in violation of
section 704(a). Du Pont contended, on the other hand, that any hostility Page
encountered at work was due not to her sex but to her abrasive personality and
that she was ultimately discharged because of excessive absenteeism.
2
Following a bench trial the district court found against Page on all her causes of
action and granted judgment in favor of Du Pont. Page's primary claim was
sexual harassment. She based such claim on a sexual advance by her fellow
employee, Cecil Hooks, during work hours, and on sexually suggestive graffiti
placed in the wall of the ladies' rest facilities in the area where she worked. She
seeks to hold the employer responsible for these actions under the doctrine of
respondeat superior. The circumstances under which such a claim can be
successfully asserted against an employer were stated by us in Katz v. Dole, 709
F.2d 251, 251 (4th Cir.1983), and later by the Supreme Court in Meritor
Savings Bank, FSB v. Vinson, 477 U.S. 57, 91 L.Ed.2d 49, 106 S.Ct. 2399
(1986)3 . The requirements are that knowledge of the alleged incident of sexual
impropriety be brought to the attention of the employer and that the employer
take action to reprimand the offending employee and to take appropriate steps
to prevent a recurrence of the impropriety. Katz, at 256. Turning first to the
graffiti incident, Page never brought such incident to the employer's attention,
nor is there any evidence the employer knew of the incident. This fact is
sufficient to dismiss this claim. Page did, however, bring the improper sexual
advances of her fellow employee to the attention of the employer, and the
employer promptly investigated the incident, gave the offending employee a
formal reprimand, duly recorded the incident on the offending employee's
employment record, and warned him of discharge if there were any repetition of
the offense. The employer also called a meeting of the employees in Page's
department and severely admonished them all against any improper sexual
harassment toward female employees and particularly of Page. There were,
according to Page herself, no sexual improprieties by the offending employee
or any other male employee after these steps had been taken by the employer.
The district judge found that the employer therefore had met its burden under
Katz, and Meritor, supra, and dismissed this claim. His decision on this point,
based on a careful and detailed review of the evidence, was amply supported by
the record and was not clearly erroneous.
Page also alleges that her discharge was in retaliation for the filing of her sexual
harassment charge. It was the employer's defense to this claim that Page was
discharged not because of her filing of the charge but because of a record of
absenteeism extending over several years, finally culminating at the time of her
discharge in 1985, when she had a record of 85.6% absences when she was
scheduled to work. Her attendance record at that time had so deteriorated that
her continued employment in the department was clearly intolerable. During all
the preceding years the employer had made repeated unsuccessful efforts to
assist Page in improving her attendance record and condoned her excessive
absence until in 1985 when the absences became so excessive. The district
court found that Page did not refute this evidence. The district judge
accordingly found that Page's discharge was not retaliatory but was reasonably
justified by Page's inexcusable attendance record at the time of her discharge.
The employer's discharge for absenteeism was accordingly found not to be
pretextual. The record amply supports this finding and sustains the dismissal of
this cause of action.
4
The other claims of Page were related to two relatively trivial incidents. The
district judge, however, considered these carefully, reviewed painstakingly the
evidence, and found that they were without merit. Such findings are amply
supported by the record and were not clearly erroneous. We accordingly affirm
the judgment herein on the basis of the excellent opinion of the district judge.
AFFIRMED.
42 U.S.C. Sec. 2000e-2(a)(1) (1982)
42 U.S.C. Sec. 2000e-3(a) (1982)
Meritor involved an allegation of unwelcome sexual advances by the

complaining employee's supervisor. In this case the offending party was a
fellow employee and not Page's supervisor

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857 F.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

United States Court of Appeals, Fourth Circuit.

Before DONALD RUSSELL, ERVIN and CHAPMAN, Circuit Judges.

discharge in response to Page's filing of a complaint of sexual harassment, in

42 U.S.C. Sec. 2000e-2(a)(1) (1982)

42 U.S.C. Sec. 2000e-3(a) (1982)

Meritor involved an allegation of unwelcome sexual advances by the

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