Opinion
No. SA-04-CA-0620-RF.
January 20, 2006.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendants Texas Department of Licensing and Regulation ("TDLR"), William H. Kuntz, Jr., Brian Francis, and Chris Kadas' Motion for Summary Judgment (Docket No. 32), filed on October 13, 2005, Plaintiff's Response (Docket No. 35), filed November 3, 2005, and Defendant's Reply (Docket No. 36), filed November 14, 2005. The parties appeared for a hearing on this matter on January 6, 2006. After due consideration, the Court is of the opinion that Defendant's Motion for Summary Judgment (Docket No. 32) should be GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of this case were previously set forth in the Court's Order Granting in Part and Denying in Part Defendants' Partial Motion to Dismiss (Docket No. 23). In that Order, the Court determined that Plaintiff asserted claims of discrimination based on national origin, age, and sex. The Court ordered that Defendants' Motion to Dismiss Plaintiff's Title VII claims against individual Defendants William H. Kuntz, Jr., Brian Francis, and Chris Kadas be denied. Since the entry of that order, Plaintiff has retained counsel.
Order Granting in Part and Denying in Part Defendants' Partial Motion to Dismiss (Docket No. 23) at p. 2.
STANDARD OF REVIEW
Summary judgment is appropriate if, after adequate time for discovery, no genuine issue as to any material facts exists, and the moving party is entitled to judgment as a matter of law. Where the issue is one for which the nonmoving party bears the burden of proof at trial, it is sufficient for the moving party to identify those portions of the record which reveal the absence of a genuine issue of material fact as to one or more essential elements of the nonmoving party's claim. The nonmoving party must then "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial." To prevail on summary judgment, the moving party need only demonstrate that "there is an absence of evidence to support the nonmoving party's case." Upon viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the court, in order to grant summary judgment, must be satisfied that no rational trier of fact could find for the nonmoving party as to each element of his case.
Fed.R.Civ.P. 56(c); Celotex Corp v. Catrett, 477 U.S. 317, 322-24 (1986).
Celotex, 477 U.S. at 323-24.
Id. at 324.
Id. at 325.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
DISCUSSION
Defendants contend that they did not discriminate against Plaintiff because of her race or national origin. Defendants first assert that Plaintiff did not allege race discrimination in her Complaint, therefore, they were not provided fair notice of this claim. Although Plaintiff did not check the box indicating race discrimination on her Complaint, the Court believes Defendants still had fair notice of this claim. In her original charge of discrimination and her first amended charge of discrimination, (both of which were attached to the Complaint) Plaintiff indicated that she was alleging discrimination based on national origin. Furthermore, in the Order Granting in Part and Denying in Part Defendants' Partial Motion to Dismiss, the Court adduced that Plaintiff was asserting a claim for discrimination based on race/national origin. These factors lead the Court to conclude that Defendants had fair notice of this claim, and therefore, the Court will address the merits of Plaintiff's race or national origin cause of action.Defendants next argue that even if Plaintiff did properly plead a cause of action for national origin/race discrimination, she cannot meet her prima facie case. Defendants believe that Plaintiff's Title VII claim should be analyzed under the traditional McDonnell Douglas burden shifting analysis. A McDonnell Douglas prima facie case of discrimination requires Plaintiff to show: (1) she is a member of a protected class, (2) she was qualified for her position, (3) she suffered an adverse employment action, and (4) someone outside her protected class was treated more favorably than she was treated. Defendants claim that Plaintiff cannot prove elements (3) and (4) of her prima facie case of discrimination. Under the traditional analysis, if the plaintiff establishes a prima facie case of discrimination, the burden then shifts to the employer to "respond with a legitimate, nondiscriminatory reason for its decision." If the employer meets this burden, the inference of discrimination created by plaintiff's prima facie case disappears and the trier of fact must decide whether the plaintiff has proven intentional discrimination. In contrast, Plaintiff contends that the Fifth Circuit's adoption of the Supreme Court's Desert Palace holding requires the Court to use the modified McDonnell Douglas analysis and allows Plaintiff to meet her prima facie case by showing that unlawful discrimination was a "motivating factor" in the decision. Thus, Plaintiff believes that if she raises a genuine issue of material fact as to whether national origin/race was at least a factor in the employment action, then she has met her summary judgment burden.
Keelan v. Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir. 2005) (citing See Urbano v. Cont'l Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998)).
Id. at 222.
Id.
While Plaintiff has correctly identified the final step of the modified McDonnell Douglas approach laid out in Rachid v. Jack in the Box, her citation to it for support is premature. After accurately reciting the final step of the modified McDonnell Douglas analysis, Plaintiff inaccurately states that "[a]s a result of Desert Palace and its progeny, if a plaintiff has any circumstantial evidence from which a reasonable jury could infer that the employee's race, color, religion, sex or national origin was a factor in the employer's employment action, then the employee should survive the defendant employer's motion for summary judgment and obtain a jury instruction on her mixed motive case." The Fifth Circuit has clearly stated that "[t]he question of mixed-motive treatment is only reached after plaintiff has met his prima facie showing under the modified McDonnell Douglas standard and the defendant has responded with a legitimate nondiscriminatory reason." Therefore, to survive summary judgment, Plaintiff must first show that she meets the four prima facie elements of a discrimination case.
376 F.3d 305 (5th Cir. 2004).
Pl. Response to Def. MSJ at ¶ 21.
Keelan, 407 F.3d at 341 (citing Rachid, 376 F.3d at 312).
Adverse Employment Action
Defendants do not contest that Plaintiff is an Hispanic female or that she was qualified for her position. Instead, they contest that (1) Plaintiff suffered an adverse employment action as that term relates to Title VII, and (2) someone outside the protected class was treated more favorably than Plaintiff. Plaintiff claims that her transfer to the General Counsel's Office on August 7, 2003 and her ultimate resignation from that position on August 31, 2003 were both adverse employment actions. Defendants point to case law that demonstrates the Fifth Circuit's position is that "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Also, "[a]dverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating." Furthermore, the Fifth Circuit has held that a purely lateral transfer does not constitute an adverse employment action. The esteemed Judge Posner once noted that "a purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action. A transfer involving no reduction in pay and no more than a minor change in working conditions will not do, either." In this case, the personnel form completed by the human resources division shows Plaintiff being transferred from Classification number 0160, position number 39 in the Executive Office to Classification number 0160, position number 39 in the Office of the General Counsel. Additionally, this form indicates that Plaintiff's monthly salary was to remain the same. Plaintiff argues that Defendants promised her a pay increase in order to induce her to accept the transfer. However, the Fifth Circuit has stated that a missed pay increase does not constitute an adverse employment action. Plaintiff also complains that her job responsibilities were significantly diminished as a result of the transfer. Plaintiff testified that her responsibilities as Executive Assistant included "opening the mail . . . greet[ing] visitors as they come in . . . receptionist contact for calls coming go in . . . schedul[ing] meetings for him." Plaintiff further testified that her job duties at the Office of the General Counsel included answering the phones and assisting in the preparation of a Power Point presentation. The record indicates that Plaintiff only worked at the Office of the General Counsel for a total of two days before taking vacation, and then ultimately resigning to take a position with the Texas Board of Professional Geoscientists (TBPG). The record demonstrates that the position at the Office of the General Counsel required Plaintiff to perform administrative assistant duties, albeit slightly different ones than those performed at the Executive Office, which is most likely only a reflection of the different functions of the two offices. Therefore, the Court is of the opinion that Plaintiff did not raise a genuine issue of material fact as to whether her transfer constituted an adverse employment action.
Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995) (citing see Page v. Bolger, 645 F.2d 227, 233(4th Cir. 1981) (en banc) (noting that Title VII discrimination cases have focused on ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating), cert. denied, 454 U.S. 892, 102 S.Ct. 388 (1981)).
Green v. Adm'rs of the Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002) In Green the Fifth Circuitfound that "changing locks, restructuring office procedures, clarifying job duties, and taking disciplinary actions in the form of reprimands do not constitute ultimate employment decisions."
Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875, 879 (5th Cir. 1999).
Id. (quoting Williams v. Brisol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996)).
Def. MSJ, Exhibit B at Attachment 3.
Def. MSJ, Exhibit B at Attachment 3.
Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997).
Pl. Response to Def. MSJ, Exhibit 4, Transcript of deposition of Mary Martha Denman, at p. 37-38.
Pl. Response to Def. MSJ, Exhibit 4, Transcript of deposition of Mary Martha Denman, at p. 78.
Def. MSJ, Exhibit D at Attachment 3. Ms. Denman testified that she was transferred to the Office of the General Counsel on August 7, 2002. Def. MSJ, Exhibit A at p. 80, 94.
Alternatively, Plaintiff argues that her August 31, 2003, resignation from her position at the Office of the General Counsel amounted to a constructive discharge. Plaintiff contends that Defendants orchestrated her transfer and essentially forced her to resign in order to avoid termination. Plaintiff interpreted the transfer to a position for which she was not hired and the failure to receive a promised increase in pay to forebode termination. Plaintiff testified that she applied to the TBPG because she believed that she was going to be terminated from her position in the General Counsel's Office. Furthermore, Plaintiff testified that Ms. Mahan and Mr. Kuntz encouraged her to apply for the position at the TBPG. As a result of these beliefs, on August 18, 2003, while on leave from the General Counsel's Office, Plaintiff applied for a position at the TBPG. Plaintiff resigned from TDLR on August 31, 2003 to start her new position at TBPG.
Pl. Response to Def. MSJ at ¶ 25.
Pl. Response to Def. MSJ, Exhibit 4, Transcript of deposition of Mary Martha Denman at p. 103.
Pl. Response to Def. MSJ, Exhibit 4, Transcript of deposition of Mary Martha Denman at p. 102.
Pl. Response to Def. MSJ, Exhibit 4, Transcript of deposition of Mary Martha Denman at p. 102.
Pl. Response to Def. MSJ, Exhibit 4, Transcript of deposition of Mary Martha Denman at p. 101.
Pl. Response to Def. MSJ, Exhibit 4, Transcript of deposition of Mary Martha Denman at p. 132.
In order to survive summary judgment on a claim for constructive discharge, Plaintiff must produce evidence that her working conditions were "so intolerable that a reasonable employee in her position would [have felt] compelled to resign." Plaintiff must also show the existence of "aggravating factors," not merely harassment. Courts consider the following factors when analyzing constructive discharge claims: "(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement or continued employment on terms less favorable than the employee's former status." In order to prevail on a constructive discharge claim, Plaintiff must ultimately show a greater degree of harassment than that required for a hostile work environment claim. Plaintiff simply has not set forth sufficient evidence of any of these aggravating factors. As discussed above, although Plaintiff perceived her transfer as a demotion, she suffered no reduction in pay and was performing essentially the same type of administrative assistant tasks. Plaintiff complains of a reduction in job responsibilities, but because Plaintiff never saw a description of her new job duties, her belief of diminished responsibilities is based on only two days on the job. This is not sufficient for Plaintiff to meet her summary judgment burden of proof. Plaintiff neither alleges nor sets forth any evidence to support factors (4) through (7). Therefore, the Court is of the opinion that Plaintiff has failed to create a genuine issue of material fact as to one or more elements of her constructive discharge claim. Accordingly, the Court finds that neither Plaintiff's transfer to the General Counsel's Office nor her ultimate resignation from the TDLR constitutes an adverse employment action as that term is defined for purposes of Title VII. Because the Court finds that Plaintiff did not suffer an adverse employment action, it need not reach the last prong of a prima facie discrimination case which addresses the issue of whether Plaintiff was replaced by someone outside the protected class.
Hockman v. Westwood Commc'ns, L.L.C., 407 F.3d 317, 331 (5th Cir. 2004) (quoting Webb v. Cardiothoracic Surgery Assoc. of N. Tex., 139 F.3d 532, 539 (5th Cir. 1998)).
Id.
Id. at 331-32 (citing Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001)).
Id. at 332.
Pl. Response to Def. MSJ, Exhibit 4, Transcript of deposition of Mary Martha Denman at p. 79.
Hostile Work Environment/Sexual Harassment
In her Complaint, Plaintiff alleges she was discriminated based on her sex. Defendants contend that Plaintiff cannot meet the prima facie elements of a hostile work environment claim. A hostile work environment claim consists of the following elements: "(1) the plaintiff belongs to a protected group; (2) she was subjected to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) her employer knew or should have known of the harassment and failed to take prompt remedial action." The first element is not in dispute, but the remaining elements are contested. "For harassment to affect a term, condition, or privilege of employment, it must be both objectively and subjectively abusive." In analyzing a hostile work environment claim, no single factor is required. Instead, courts look to many factors, including: "(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating as opposed to a mere offensive utterance; (4) whether it unreasonably interferes with an employee's work performance; and (5) whether the complained-of conduct undermines the plaintiff's workplace competence." In order to survive summary judgment, the harassment must be so "severe and pervasive" that the employee is essentially prevented from succeeding in the workplace.
Hockman, 407 F.3d at 325.
Id. (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367 (1993)).
Id.
Id. at 326 (citations omitted).
Id.
Plaintiff's own testimony indicates that she has not created a genuine issue of material fact as to one or more elements of this claim. First, Plaintiff points to behavior and conduct of other employees to support her claim of harassment. Plaintiff cites testimony that Mr. Francis kissed two female subordinates on the hand or cheek as evidence to support her claim that Defendants fostered a hostile working environment. However, Plaintiff fails to illustrate how these incidents created a hostile work environment for her. To support her claim of sexual harassment, Plaintiff testified that she and others felt pressured to go out to lunch with Ms. Guzman even when they did not really want to go, that she was twice requested by Mr. Francis to listen to a piece of poetry he wrote, and that on a couple of occasions Mr. Francis listened in on Plaintiff's telephone conversations. Furthermore, Plaintiff submitted an affidavit with her Response to Defendants' Motion for Summary Judgment in which she stated Mr. Francis "was fairly blatant in his expressiveness about sex and sexual conduct with women. I found his poetry to be laden with sexual content, and I found his behavior to be very suggestive. I did not complain about Mr. Francis' behavior because I was afraid I would lose my job." The poetry readings are the only evidence that resemble unwelcome sexual harassment or behavior based on sex. However, "[t]o constitute a hostile work environment, the alleged conduct must be more than rude or offensive comments, teasing, or isolated incidents. Having poetry read to her twice in six months, whether it contained sexual overtones or not, is not the type of persistent, severe behavior that Title VII was meant to remedy. Additionally, after reviewing the poems, the Court is of the opinion that the poems do not rise to the level of objectively offensive behavior necessary to support a claim of sexual harassment.
Pl. Response to Def. MSJ, Exhibit 1, Transcript of deposition of Brian E. Francis at p. 55-56.
Pl. Response to Def. MSJ, Exhibit 4, Transcript of deposition of Mary Martha Denman at p. 57.
Pl. Response to Def. MSJ, Exhibit 4, Transcript of deposition of Mary Martha Denman at p. 66.
Pl. Response to Def. MSJ, Exhibit 4, Transcript of deposition of Mary Martha Denman at p. 68.
Pl. Response to Def. MSJ, Exhibit 7.
Hockman, 407 F.3d at 326.
The poems read to Ms. Denman and Ms. Mahan are attached to this Order. While the Court is not a good judge of poetry, the poems of Mr. Francis do not appear to cross the line of propriety, although in some instances they come close. Still, the poems are not objectively offensive and certainly do not rise to the level of harassment. Nonetheless, Mr. Francis might find it advisable to choose venues outside the office for his poetry recitations.
The Court is of the opinion that the conduct complained of is not objectively abusive. Furthermore, Plaintiff's deposition testimony indicates that she did not find the conduct to be subjectively abusive. Significantly, Plaintiff testified that she would have returned to the TDLR Executive Office if she had been offered the opportunity. Additionally, Plaintiff testified that nobody ever touched her inappropriately or made any sexual demands of her. Furthermore, Plaintiff also stated that although she was uncomfortable about the poetry, the reading did not make her not want to come to work nor did it affect her ability to perform her job. The Court believes that the conduct Plaintiff complains of does not meet any of the factors traditionally considered by the Court in a hostile work environment claim. The conduct was infrequent, not severe, not physically threatening, and it did not unreasonably interfere with Plaintiff's work performance. Therefore, the Court is of the opinion that Plaintiff has failed to raise a genuine issue of material fact as to one or more elements of a hostile work environment claim.
Pl. Response to Def. MSJ, Exhibit 4, Transcript of deposition of Mary Martha Denman at p. 157.
Pl. Response to Def. MSJ, Exhibit 4, Transcript of deposition of Mary Martha Denman at p. 55.
Pl. Response to Def. MSJ, Exhibit 4, Transcript of deposition of Mary Martha Denman at p. 67.
Retaliation
Plaintiff asserts that Defendants retaliated against her for filing an EEOC complaint by having her evicted from the TDLR building in which her current employer, TBPG, was temporarily located. Defendants counter that they were justified in seeking Plaintiff's eviction because while in the TDLR building she continued to gossip about a possible inappropriate relationship between Ms. Guzman and Defendant Francis, and because she still had access to TDLR documents. Defendants argue that Plaintiff cannot demonstrate that she suffered an adverse employment action, therefore, her retaliation claim must fail as a matter of law. An actionable retaliation claim requires Plaintiff to prove three elements: "(1) the employee has engaged in activity protected by Title VII; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between that protected activity and the adverse employment action. Defendants contest the second and third elements. Plaintiff contends that having her removed from the E.O. Thompson Building and relocated to the Hobby Building constitutes an adverse employment action. She asserts that she was forced to work alone for three days and was not productive because the relevant documents were in the E.O. Thompson Building. However, Plaintiff also testified that TBPG did not charge her leave time, did not dock her pay, and in no way punished her as a result of the early move. Furthermore, the rest of the TBPG employees joined her in the Hobby Building approximately three or four days after she relocated to that building. As previously noted, "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Additionally, "[a]dverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating." The Fifth Circuit has interpreted retaliation claims to exclude claims of vague harms and stated that "a retaliation claim cannot be based solely on a defendant's act of `limit[ing]' an employee 'in any way which would deprive [that employee] of employment opportunities or otherwise adversely affect his status as an employee." Plaintiff's removal from her old building, while probably frustrating and embarrassing, does not constitute an ultimate employment decision. Plaintiff has not created a genuine issue of material fact as to whether she suffered an adverse employment decision as that term relates to Title VII. Because the Court finds that Plaintiff did not suffer an adverse employment action, the Court need not reach the causal connection element. Accordingly, the Court is of the opinion that Defendants' Motion for Summary Judgment should be GRANTED.
Burger, 168 F.3d at 868 (citing Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997)).
TBPG was in the process of relocating from the E.O. Thompson Building to the Hobby Building.
Def. MSJ, Exhibit 1, Deposition Transcript of Ms. Denman at p. 143.
Def. MSJ, Exhibit 1, Deposition Transcript of Ms. Denman at p. 143.
Def. MSJ, Exhibit 1, Deposition Transcript of Ms. Denman at p. 144.
Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995) (citing see Page v. Bolger, 645 F.2d 227, 233(4th Cir. 1981) (en banc) (noting that Title VII discrimination cases have focused on ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating), cert. denied, 454 U.S. 892, 102 S.Ct. 388 (1981)).
Green v. Adm'rs of the Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002) In Green the Fifth Circuitfound that "changing locks, restructuring office procedures, clarifying job duties, and taking disciplinary actions in the form of reprimands do not constitute ultimate employment decisions."
Burger, 168 F.3d at 878-79 (quoting 42 U.S.C. § 2000e-2(a)(2)).
CONCLUSION
For the foregoing reasons, the Court finds that Plaintiffs have failed to raise a genuine issue of material fact as to one or more essential elements of each of their causes of action. The Court ORDERS that Defendant's Motion for Summary Judgment (Docket No. 32) be GRANTED.
It is so ORDERED.