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Asking for Coffee Not Grounds for Sex Harassment Suit
The Legal Intelligencer
June 11, 2008
A woman who was fired from her job as a receptionist after she refused to get coffee for the men in the office has lost her Title VII sexual harassment suit now that a federal judge has declared that there's nothing sexist about requiring workers to serve coffee -- even if those workers are always women.
"The act of getting coffee is not, by itself, a gender-specific act," U.S. District Judge Berle M. Schiller wrote in Klopfenstein v. National Sales and Supply.
Schiller found that plaintiff Tamara Klopfenstein failed to allege even a prima facie case of sex discrimination because she cannot show that she was treated differently from any "similarly situated" male employees since there was only one receptionist in the office and the job had always been held by a woman.
Plaintiffs attorneys Timothy M. Kolman and Rufus A. Jennings of Timothy M. Kolman & Associates in Langhorne, Pa., said in an interview that they intend to appeal the ruling, and that Schiller erred by failing to recognize that some tasks are "inherently more offensive to women."
Schiller also erred, they said, by dismissing a retaliation claim in which Klopfenstein complained that she was fired immediately after she complained that she should not be expected to get coffee when it was not one of her listed job duties.
According to court papers, Klopfenstein worked for six weeks as a part-time receptionist and data entry clerk. In her suit, she claims that the office environment was tinged with sexism from the very beginning when a vice president of the company made a note after her initial interview that she "looks nice, dresses well." After just a few weeks on the job, Klopfenstein claims that a male co-worker invited her to lunch in an e-mail that said "I feel bad you have been working here for a couple of weeks and we haven't gotten to know each other yet."
In her deposition, Klopfenstein testified that she found the invitation "very offensive" because "there is no reason why a man and a woman should go out to lunch together without any other party around. To me that's a date."
The suit also said Klopfenstein once walked into an office to find two men whispering, giggling and laughing, and that they would not respond to her when she inquired what the joke was about.
But the centerpiece of Klopfenstein's suit was the ongoing dispute that erupted over her objection to being asked to serve coffee to her male supervisors.
Klopfenstein testified that she acquiesced once or twice, but that she found the request demeaning and embarrassing and believed that they "reinforced outdated gender stereotypes."
The issue came to a head one day, the suit alleged, when Jason Shrager, one of Klopfenstein's supervisors, asked for coffee and she refused.
In an e-mail, the suit said, Shrager told Klopfenstein that getting coffee was one of her many responsibilities as a receptionist and that "this is not open for debate."
The suit said Klopfenstein responded with an e-mail that said: "I don't have a problem getting coffee and/or water for our guests when they come in. I don't expect to serve and wait on you by making and serving you coffee every day. ... If I would have known that when I took the job, I would never have taken the job." Klopfenstein ended the e-mail by saying "I will be more than happy to sit down and talk to you about this matter."
But Klopfenstein's bosses had no interest in talking about it, the suit alleged.
Just nine minutes after she sent the e-mail, Klopfenstein received a response from Richard Blum, a vice president, that said: "I'm sorry it didn't work out so please pack up your things. We will send you your last check next week."
Klopfenstein claims she was told at first that she could work the remainder of the day, but that when she mentioned that she intended to file a complaint, she was told to leave immediately and that she would be paid for the full day.
In Blum's and Shrager's depositions, both men said they had discussed firing Klopfenstein a week before because she had failed to pass along important phone calls, placed the wrong pricing labels on packages, mispronounced customer names and forgot to offer coffee to office guests.
Klopfenstein's e-mail about refusing to get coffee was the simply the "last straw," they said. Defense attorney Brian F. Jackson of McNees Wallace & Nurick in Harrisburg, Pa., moved for dismissal on summary judgment, arguing that Klopfenstein's claim of sexual harassment would fail under either a hostile work environment or quid pro quo theory.
Schiller agreed, saying "in the context of other indicators of sexism, getting coffee could evince a discriminatory intent. However, the record is barren of any such supporting evidence in this case." There was no evidence, Schiller found, of any demeaning statements "relating even tangentially to sex or gender."
Other than the requests to serve coffee, Schiller said, there was no evidence that Klopfenstein "was asked to perform any acts that conform to traditional gender-specific stereotypes, either inside or outside of the workplace."
The co-worker's lunch invitation and the written notation that Klopfenstein "looks nice," Schiller said, were "innocuous and unsupportive of plaintiff's claim of harassment."
Schiller also said the evidence showed that getting coffee was one of the responsibilities associated with the job of receptionist.
"Receptionists before plaintiff were required to get coffee for Blum and Shrager," Schiller noted, and Klopfenstein didn't object to getting coffee for office guests.
As a result, Schiller concluded that "there seems to be little in the record, other than plaintiff's own subjective speculation, to indicate that plaintiff was treated differently ‘because of her sex.'" Schiller said Klopfenstein's quid pro quo claim failed because she cannot point to any sexual advances from supervisors.
Kolman and Jennings argued that requiring a woman to get coffee for men and then firing her for refusing to do so qualified as a "quasi" quid pro quo claim.
But Schiller flatly rejected the argument, saying "under plaintiff's theory, the requirement that an employee conform to an outdated gender stereotype should also trigger a quid pro quo analysis. Significantly, plaintiff has not cited to any case adopting a 'quasi' quid pro quo framework."
Schiller said he "declines plaintiff's invitation to create new law."
Klopfenstein's retaliation claim also failed, Schiller said, because she had already been fired before she made any mention of filing a complaint.
Kolman and Jennings said in an interview that they believe Schiller misconstrued the retaliation claim because Klopfenstein's objection to being required to serve coffee was an implicit complaint of sexist treatment. If Schiller's ruling is upheld, they said, employers could avoid all retaliation claims by pre-emptively firing any employee who appears to be on the verge of lodging a complaint.
Defense attorney Jackson declined to be interviewed.
