Opinion
Civil Action No. 3:02-CV-1286-D
February 2, 2004
MEMORANDUM OPINION AND ORDER
This is an action by plaintiff Kimberly Banks-Jones ("Banks") against defendant Hilton Reservations Worldwide, LLC ("HRW") for hostile work environment sexual harassment and retaliation, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. HRW moves for summary judgment as to both claims. The court concludes that a reasonable jury could not find in Banks' favor on her hostile work environment claim but that there is a genuine issue of material fact whether HRW retaliated against her. The court therefore grants in part and denies in part HRW's motion.
I
Banks and Michael Campbell ("Campbell") worked as reservation sales representatives and were coworkers at HRW's Carrollton, Texas call center. In late 2000 or early 2001, Campbell touched Banks, placing his hand in her back pocket while she was standing in line to sign up for overtime. Banks did not report this incident to HRW management. Several months later, in April 2001, while Banks was handling a telephone call, Campbell approached her from behind and grabbed her breasts, placing his hands on them tightly. Another coworker witnessed this incident, and Banks immediately reported it to Tom Branch ("Branch"), HRW's Manager of Human Resources. Banks told Branch what had happened, and he instructed her to return to her position and send him an email that recounted everything that had happened, which she did. When Branch did not respond to the email, Banks sent a second one asking that he do so. Branch apologized, stated that he had spoken to Campbell and that she had nothing to worry about, and advised her to speak with him again if anything else occurred. Campbell never touched Banks again in a sexual manner during the remainder of her employment at HRW. And from that date until June 12 or 13, 2001, Banks had no problems with Campbell.
The court recounts the evidence favorably to Banks and draws all reasonable inferences in her favor. See Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000).
On June 12 or 13, 2001, however, Banks and Campbell were involved in a verbal altercation. While Banks was handling a telephone call, Campbell approached her and began talking loudly. He was approximately three-to-four feet from her at the time. Banks turned around and indicated that he should be quieter. Campbell responded with a comment, Banks gave him a look, and he replied that if she had a problem, they could "take it outside." P. App. 13. After Banks completed the call, she spoke to Kathy Krukewitt ("Krukewitt"), the manager of the call center area. After she reported the incident, Krukewitt promised to speak to Branch, stating that no one had to work in this type of environment. Krukewitt also approved Banks' request for permission to leave. The following day, Banks, Branch, Krukewitt, and Campbell met in the human resources conference room. Branch asked her what had happened and recommended that she and Campbell have no further interaction. Branch and Krukewitt asked Campbell to apologize to Banks, and he did. After the meeting, Campbell continued to pass by Banks' desk and give her strange looks and glares, which frightened her, although he did not speak to her.
In September 2001 Banks' counsel wrote HRW complaining about Campbell's conduct, and he demanded that HRW take action to eliminate the hostility and offensive behavior and compensate her for damages suffered to date. After HRW received the letter, Carol Boles ("Boles"), HRW's Senior Human Resources Manager, asked to speak to Banks. Banks, Boles, and Branch met, and, during the meeting, Banks advised Boles that the problem with Campbell had not been taken care of. Banks did not provide Boles much information about Campbell during the meeting. Banks recalls that she was not comfortable doing so because she was represented by counsel and was uncomfortable talking about the situation. Boles stated that she would investigate the matter further About one week later, Banks, Branch, and Boles had a follow up meeting. Boles stated that she had investigated the issue. She also asked Banks if she had any further matters before she closed the case. Banks said she did not.
On October 1, 2001 HRW issued a written warning to Campbell. HRW advised him that any further perceived acts of unwanted touching on his part would result in termination.
In approximately early October Banks complained again to Boles about Campbell's continued conduct involving passing and glaring at her. Boles responded by stating, in essence, that she would look into the complaint and see what she could do. Boles was cordial and friendly when they met in her office, and, to Banks' knowledge, she did investigate further. Boles got back with Banks about two or three days later. She said she was able to change Campbell's supervisor and move his physical location and, after Campbell returned from military leave, he would be relocated and have a new supervisor. To Banks' knowledge, Campbell did have a new supervisor, and he was moved when he returned from leave. Thereafter, Banks still had problems with Campbell's passing her cubicle and giving her looks and stares, which frightened her, but she could not recall reporting this to anyone.
On November 1, 2001 Banks received her annual performance evaluation, receiving a rating of "exceeds requirements," which was one of her highest ratings. P. App. 25. The rating resulted in her being eligible for a five percent raise, the highest for such a rating. During the evaluation process, Krukewitt advised Banks that she had been overpaid a dollar per hour during the prior year and that she would have to speak with Branch about it. In early November she met with Coles and Branch. Lora Lawson ("Lawson"), Banks' supervisor, participated by telephone. Boles explained to Banks that she had been overpaid approximately $2,030, and she wanted to know how Banks was going to take care of the overpayment. Banks requested proof of the overpayment, and Branch provided her a handwritten note that stated she owed $2,037.76.
A few days later, Banks met again with Boles and Branch. Boles asked Banks what option she intended to take to repay HRW. Banks responded that the error was payroll's fault, and she did not see how she could be held responsible. Boles replied that she understood that, but Banks could not work for HRW and owe it money. In substance, Boles told Banks that she could have additional time to consider her options, but she could not work for the company unless she repaid the money. Before the two could speak again, Banks was involved in an automobile accident and was out of work for approximately two weeks. When she returned, she and Boles met on November 28, 2001. Boles advised her that if she did not repay the company by check or payment plan, she could no longer work there. Banks declined again on the basis that the error was not hers. When Banks also declined to resign, she was terminated.
Banks sues HRW for sexual harassment and retaliation under Title VII. HRW moves for summary judgment.
II
The court turns first to HRW's motion as it relates to Banks' hostile work environment sexual harassment claim.
To prove this cause of action, Banks must establish each of the following five elements: (1) The employee belongs to a protected group; (2) The employee was subject to unwelcome sexual harassment; (3) The harassment complained of was based upon sex; (4) The harassment complained of affected a "term, condition or privilege of employment," i.e., the sexual harassment must be sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) Responde[a]t superior, i.e., that the employer knew or should have known of the harassment in question and failed to take prompt remedial action.Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999) (on rehearing) (citing Jones v. Flagship Int'l, 793 F.2d 714, 719-720 (5th Cir. 1986)). HRW contends that some of the conduct on which Banks relies was not based on sex; the conduct, even if based on sex, was not sufficiently severe or pervasive to create a hostile working environment; and HRW took prompt, remedial action after Banks complained about Campbell's conduct.
It is undisputed that Campbell was Banks' coworker and that his conduct did not result in a tangible employment action. Accordingly, all five elements apply. See Watts, 170 F.3d at 509 n. 3 ("In cases where the harasser is a co-worker, as opposed to supervisor, the full test outlined in Jones v. Flagship International, 793 F.2d 714, 719-720 (5th Cir. 1986), is applicable."). Had Campbell been Banks' supervisor with immediate (or successively higher) authority, Banks would not be required to prove the fifth element, and HRW would be required to avoid liability under the terms of the affirmative defense made available under Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Both parties appear to recognize that this affirmative defense is inapposite, because neither addresses it in the briefing.
B
HRW maintains that some of the conduct on which Banks bases her sexual harassment claim is not based on sex. It points to the absence of evidence that the June 13, 2001 verbal altercation and Campbell's conduct thereafter in glaring at Banks were based on sex. Banks responds that HRW reads far too narrowly the requirement that harassing conduct be because of sex.The court agrees with HRW. There is simply no basis in the record for a reasonable jury to find that the June altercation between Banks and Campbell, or his glaring at her thereafter, was based on her sex. The June incident involved Campbell's talking loudly while Banks was handling a telephone call, her turning around and indicating that he should be quieter, Campbell's responding with a comment, Banks' giving him a look, and his replying that, if she had a problem, they could "take it outside." Nothing about this incident indicates that Campbell based his conduct on Banks' female sex. Banks' testimony concerning Campbell's subsequent conduct in glaring at her describes nothing that could reasonably be found to be based on her sex. "Sex-neutral hostile conduct cannot be used to support a hostile environment claim. Title VII does not protect employees from hostile conduct that is not based on their protected status." Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 n. 2 (5th Cir. 1996). The glaring that Banks describes occurred after the June 2001 altercation, after she complained to Krukewitt, and after there was a meeting in which Branch and Krukewitt asked Campbell to apologize to Banks. The context in which Campbell glared at Banks would only permit a reasonable jury to find that he did so because he was upset about the incident and its outcome, not because of Banks' sex.
Accordingly, the court holds that Banks has not introduced evidence that would support a claim of hostile work environment sexual harassment based on the June 2001 altercation and the glaring that followed.
C
HRW next argues that Campbell's other conduct was not sufficiently severe or pervasive to support a hostile work environment claim. The court holds that a reasonable jury could find that the sexual harassment was sufficiently severe or pervasive as to alter the conditions of employment and create an abusive working environment.
According to the evidence, in late 2000 or early 2001, Campbell touched Banks, placing his hand in her back pocket while she was standing in line to sign up for overtime. In April 2001, while Banks was handling a telephone call, Campbell approached her from behind and grabbed her breasts, placing his hands on them tightly. "For sexual harassment to be actionable, it must be sufficiently severe or pervasive `to alter the conditions of [the plaintiff's] employment and create an abusive working environment.'" Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). "[W]hether an environment is sufficiently hostile or abusive must be judged by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-271 (2001) (per curiam) (quotation marks omitted) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-788 (1998)). An employee may prevail in an action for sexual harassment if the asserted harassment was pervasive or there was only a single incident of harassment that, standing alone, was sufficiently severe. Creamer v. Laidlaw Transit, Inc., 86 F.3d 167, 170 (10th Cir. 1996).
Viewing the summary judgment evidence favorably to Banks and drawing all inferences in her favor, the court holds that these other incidents would permit a reasonable jury to find that Campbell's conduct was severe enough to alter the conditions of Banks' employment. The incidents exceed what can be viewed as isolated events involving teasing or joking. They can be deemed to constitute "extremely serious" or "egregious" behavior that involved unwanted touching of Banks' private areas. See Faragher, 524 U.S. at 788; DeAngelis v. El Paso Mun. Police Officers Ass `n. 51 F.3d 591, 593 (5th Cir. 1995) ("A hostile environment claim embodies a series of criteria that express extremely insensitive conduct against women, conduct so egregious as to alter the conditions of employment[.]").
D
The court now considers HRW's assertion that it took prompt remedial action upon learning of Campbell's conduct.
Although this is not a case involving supervisor liability, the second prong of the Burlington/Faragher affirmative defense is nevertheless instructive. See Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 300 n. 3 (5th Cir. 2001) (per curiam). In Woods the panel held that the plaintiff's unreasonable failure to take advantage of the company's remedial apparatus in a coworker suit did not satisfy the fifth element of her claim and was fatal to her case. Id. at 299-300.
In a coworker case in which no tangible employment action occurred, an employer is not liable for an employee's harassment unless it has actual or constructive notice of the sexual conduct. See Nash v. Electrospace Sys., Inc., 9 F.3d 401, 404 (5th Cir. 1993) (per curiam) (pre Burlington/Faragher case). A plaintiff may show actual knowledge by demonstrating that she complained to company management. Waltman v. Int'l Paper Co., 875 F.2d 468, 478 (5th Cir. 1989). Banks did not notify HRW that Campbell had placed his hand in her back pocket in late 2000 or early 2001 while she was standing in line to sign up for overtime. Accordingly, the relevant incident for this part of the court's analysis occurred in April 2001, when Campbell grabbed her breasts.
Banks provided HRW actual knowledge of this incident when she complained to Branch. This notice triggered HRW's obligation to investigate the allegation with the purpose of halting any sexual harassment and to take remedial action reasonably calculated to halt any harassment that had occurred. See York v. Coopers Lybrand, Civil Action No. 3:91-CV-2695-D, slip op. at 19 (N.D. Tex. June 29, 1993) (Fitzwater, J.). The appropriateness of the response depends on "the severity and persistence of the harassment, and the effectiveness of any initial remedial steps." Waltman, 875 F.2d at 479. An employer is not insulated from liability merely because it has a grievance procedure and policy against discrimination and the employee fails to utilize that procedure. Meritor Sav. Bank, 477 U.S. at 72.
According to the evidence, Banks and Campbell were both informed of HRW's policy prohibiting sexual harassment, and Banks understood that she was obligated to report promptly any harassment in order for HRW to conduct an investigation. HRW management required Campbell to review HRW's harassment policy after the breast-grabbing incident and instructed him not to touch Banks in an offensive manner. HRW maintains that, as a result of prompt remedial action, Banks never made another complaint regarding glaring.
HRW also required Campbell to apologize to Banks following his threat to fight her, and it later transferred him to another supervisor in another work area.
The summary judgment evidence would only permit a reasonable jury to find that HRW promptly undertook an investigation of Banks' allegations after she lodged her complaint, that it did so with the purpose of halting sexual harassment, and that it took prompt remedial action reasonably calculated to stop Campbell from harassing her. Banks immediately reported the incident to Branch via email, in compliance with HRW's harassment policy. Although Branch did not return Banks' email until she reminded him a second time of her complaint, he responded by assuring her that he had spoken with Campbell, that there was nothing to worry about, and that if anything else came up, she should speak to him. Branch reviewed HRW's harassment-free work policy with Campbell and informed him not to engage in similar conduct in the future. Campbell never touched Banks again sexually. Although Banks felt uncomfortable around him after the incident due to his glaring at her, this conduct was not based on her sex, and the offensive touching ceased completely.
The verbal altercation that occurred in June 2001 is not, as the court has already explained, an act that was based on Banks' sex. Even so, the evidence shows that HRW took prompt remedial action after Banks complained about it. The day following the incident, Branch and Krukewitt interviewed Campbell and Banks. HRW reprimanded Campbell and required that he apologize. Although Banks alleges that, shortly after the incident, Campbell glared at her while he passed by her cubicle, she did not report this conduct to HRW until September 2001. When Banks did complain, HRW responded by transferring Campbell to work under another supervisor and relocated his work area. HRW never received another complaint from Banks regarding Campbell's conduct.
Viewed favorably to Banks, the facts in this case are more analagous to Skidmore v. Precision Printing and Packing, Inc., 188 F.3d 606 (5th Cir. 1999), than to Farpella-Crosby, 97 F.3d 803. Although HRW did not transfer Campbell to another shift after Banks' initial complaint, as in Skidmore, the touching stopped as a result of HRW's second admonishment regarding the harassment-free work policy. The Skidmore panel held that the employer provided prompt remedial action even though no investigation was pursued, the perpetrator of the unwanted touching was never reprimanded, and no further inquiry was conducted to determine whether the conduct had ceased. See Skidmore, 188 F.3d at 616. HRW investigated Banks' claims promptly after she gave notice of the breast-grabbing incident, reprimanded Campbell, and followed-up to determine whether his conduct had ceased. Although Campbell later conducted himself in an offensive manner by offering to fight Banks and by glaring at her, the unwanted touching ceased and Campbell did not engage in offensive behavior that was based on Banks' sex. The court therefore holds that a reasonable jury could only find that HRW took prompt remedial action concerning the one incident that was based on Banks' sex and of which it had notice. See Waltman, 875 F.2d at 479 ("What is appropriate remedial action will necessarily depend on the particular facts of the case-the severity and persistence of the harassment, and the effectiveness of any initial remedial steps.). The court grants HRW's motion for summary judgment as to Banks' sexual harassment claim.
III
HRW next moves for summary judgment as to Banks' retaliation claim. It contends she cannot establish a prima facie case because she cannot demonstrate a causal connection between her complaints and her termination. It also maintains that Banks cannot demonstrate that HRW's proffered explanation for her discharge is pretextual.
A
Where, as here, Banks offers no direct evidence that HRW retaliated against her, the method of proof set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies. See Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001) (holding that McDonnell Douglas applies when plaintiff has presented only circumstantial evidence of retaliatory animus) (citing Portis v. First Nat'1 Bank, 34 F.3d 325, 328 (5th Cir. 1994)). Banks must first establish a prima facie case of retaliation. To do so, she must demonstrate that (1) she engaged in a protected activity; (2) an adverse employment action occurred; and (3) a causal link existed between the protected activity and the adverse employment action. Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996). The burden then shifts to HRW to articulate a legitimate, nondiscriminatory reason for the alleged retaliatory action taken. HRW's burden is one of production, not of proof. If HRW meets its production burden, Banks must adduce evidence that would permit a reasonable jury to find that "her termination . . . would not have occurred `but for' her protected conduct." Montemayor, 276 F.3d at 692. "At the summary judgment stage, the nonmovant need only point to the existence of a genuine issue of material fact." Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002). "The ultimate determination in an unlawful retaliation case is whether the conduct protected by Title VII was a `but for' cause of the adverse employment decision." Long, 88 F.3d at 305 n. 4.
B
HRW's first argument is addressed to Banks' prima facie case. It posits that she cannot meet her burden because, in her case, HRW applied a general policy that required all employees to repay funds that were inadvertently overpaid. HRW argues that it did not retaliate against her for complaining about sexual harassment, and that implementing and enforcing company policy is not retaliation. HRW also appears to contend, based on Banks' admission that no retaliation occurred before November 1, 2001, that the only sexually-based complaint she made concerned the breast-grabbing incident, and she thereafter received a promotion, pay raise, and positive evaluation that destroy any nexus between her protected conduct and an adverse employment action. It also maintains that there is no evidence that its request for repayment was an act of retaliation.
The initial requirement that a plaintiff show a "causal link" between protected activity and an adverse employment action is "much less stringent" than the "but for" causation that a jury must find. Montemayor, 276 F.3d at 692; see Khanna v. Park Place Motorcars of Houston, Ltd., 2000 WL 1801850, at *4 (N.D. Tex. Dec. 6, 2000) (Fitzwater, J.) (characterizing prima facie burden as "minimal"). Banks has introduced evidence that she complained on several occasions about Campbell's conduct and that her lawyer wrote a September 11, 2001 letter complaining about her treatment and demanding that HRW "take the appropriate steps to protect [Banks], eliminate the hostility and offensive behavior, and reasonably compensate her for damages suffered to date." P. App. 50. Shortly thereafter, on November 28, 2001 HRW advised her for the first time that she owed $2,037.76 in overpaid salary. It had not disclosed this to her before she complained of sexual harassment. And despite the fact that the overpayment was HRW's mistake, it informed her that she would be terminated if she did not repay this amount immediately or through a payment plan. Boles, HRW's Senior Human Resources Manager, and the individual who informed Banks that she would be terminated absent repayment arrangements, was extensively involved in addressing her complaints of harassment. This evidence is sufficient to satisfy the minimal requirement of demonstrating the causal link required for a prima facie case.
C
The burden has therefore shifted to HRW to produce evidence of a legitimate, nondiscriminatory reason for terminating Banks' employment. It has met this production burden through evidence that it is HRW company policy to require employees to repay overpaid compensation when such overpayments are discovered. HRW has also produced evidence that it was unaware that other agents in the senior agent program had been overpaid but had not made arrangements to repay the company. It has adduced proof that, once it learned this fact, it conducted an investigation and required the limited number of employees involved to repay the overpayments.
Banks must adduce evidence that would permit a reasonable jury to find that her engaging in protected activity was the "but for" cause of her termination. Banks argues for three reasons that there is a genuine issue of material fact: first, HRW managers Boles and Branch have given conflicting sworn testimony regarding whether Banks resigned or was terminated, and Branch testified at a Texas Workforce Commission hearing that he had given Banks a typed note indicating the amount of the overpayment, when the typewritten note had been prepared weeks before the hearing and he had in fact provided her a handwritten note; second, even after HRW discovered the year-long overpayment, it continued to pay Banks at the allegedly inflated rate, indicating that the overpayment was not in fact a problem; and third, HRW has not yet articulated a coherent explanation for its procedure for collecting alleged overpayments.
If the evidence at trial is substantially the same as that set out in the summary judgment record, a jury may have little difficulty rejecting her retaliation claim. It may conclude that HRW acted responsibly when Banks complained about Campbell's conduct, discovered for the first time during her annual review that she had been inadvertently overpaid, and applied company policy uniformly in requiring repayment. Nevertheless, a reasonable jury could also find that HRW management has given false and inconsistent explanations about how the overpayment policy was applied to Banks.
It is permissible for the trier of fact to infer the ultimate fact of [retaliation] from the falsity of the employer's explanation. The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show [retaliation]. Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of [retaliation], and it may be quite persuasive.West v. Nabors Drilling USA, Inc., 330 F.3d 379, 385 (5th Cir. 2003) (Fitzwater, J.) (citations, quotation marks, and brackets omitted) (addressing age discrimination). It therefore follows that "a factfinder may infer the ultimate fact of retaliation from the falsity of the explanation." Gee, 289 F.3d at 348 (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 146-48(2000)). As the majority held in Gee'.
The [defendant] has offered a plausible nonretaliatory explanation for [plaintiff's] nonselection. [Plaintiff], however has provided sufficient evidence to cast doubt on this explanation, thereby enabling a reasonable factfinder to conclude that it was false and that the decision not to hire [plaintiff] was already made before the end of the key meeting. Resolution of this dispute is properly within the province of the trier of fact, and therefore summary judgment was inappropriate.Id. Accordingly, the court denies HRW's motion for summary judgment as to Banks' retaliation claim.
HRW has filed an October 2, 2003 motion for leave to supplement summary judgment evidence. Because the evidence, if considered, would not change the court's decision, the court denies the motion as moot.
For the reasons set out, HRW's motion for summary judgment is granted in part and denied in part.