Opinion
EP-04-CA-0241-FM.
June 21, 2005
MEMORANDUM OPINION AND ORDER ON DEFENDANT'S MOTION TO ALTER OR AMEND JUDGMENT
Before the Court is "Telerx's Motion for Reconsideration and for the Court to Amend its Order of May 10" [Rec. No. 21] and "Plaintiff's Response to Telerx's Motion for Reconsideration and for the Court to Amend its Order of May 10, 2005" [Rec. No. 25] filed in the above-captioned cause. After carefully reviewing the arguments and authorities, the Court is of the opinion that "Telerx's Motion for Reconsideration and for the Court to Amend its Order of May 10" [Rec. No. 21] should be GRANTED for the following reasons:
On May 10, 2005 this Court granted in part and denied in part Defendant's motion for summary judgment. [Rec. No. 20]. On May 19, 2005 Defendant timely brought its Rule 59(e) motion to alter or amend this Court's denial of summary judgment on Plaintiff's sexual harassment claim. [Rec. No. 68]. Under Rule 59, the district court has been given considerable discretion over whether to grant or deny such a motion. Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993). In general, our Circuit disfavors granting a Rule 59(e) motion to alter or amend judgment. Southern Constructors Group, Inc., v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993). Moreover, a Rule 59(e) motion "cannot be used to raise arguments which could, and should, have been made before the judgment issued." Rosenzweig v. Azurix Corp., 332 F.3d 854, 863-64 (5th Cir. 2003). However, there are certain grounds upon which a district court may grant a Rule 59 motion: (1) an intervening change in controlling law; (2) the availability of new evidence not previously available; (3) the need to correct a clear error of law or fact; or (4) prevent manifest injustice. In re Benjamin Moore Co., 318 F.3d 626, 629 (5th Cir. 2002); Rosenzweig 332 F.3d at 863-64.
Defendant brought its motion pursuant to both Rules 59(e) and 60(b). However, "A motion for reconsideration filed within 10 days of judgment is treated as a motion to alter or amend judgment under Rule 59(e)." Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 353 (5th Cir. 1993).
The Court notes that Defendant has failed to cite to or anchor its argument in the applicable Rule 59(e) standard of this Circuit.
Because Defendant has not established an intervening change in controlling law, sought to introduce new evidence or claimed that manifest injustice will result, the Court considers Defendant's motion for reconsideration as a Rule 59(e) motion to alter or amend judgment based on a clear error of law. Clear error has not been explicitly defined but should conform to a "very exacting standard." Lightfoot v. District of Colombia, 355 F. Supp.2d 414, 422 (D.D.C. 2005).
In this Court's Order denying summary judgment on Plaintiff's sexual harassment claim, the Court found that in a case such as the one at bar alleging same-sex harassment it must first address whether the harasser's conduct constituted sex discrimination. [Rec. No. 20]. Moreover, the Court found that only if the answer were "yes" should it decide whether the challenged conduct met the applicable standard for a hostile environment claim following the holding of La Day v. Catalyst Tech. Inc., 302 F.3d 474, 478 (5th Cir. 2002). La Day provides three ways that Plaintiff may establish that her harasser's conduct constituted sex discrimination in a same-sex claim. The Court found outright that Plaintiff could not prevail under two of the three ways. Regarding the third way, the Court found that Defendant did not meet its burden because it did not prove that there was no question of material fact as to whether: (a) Setzu, a woman was a homosexual; and (b) whether Setzu made explicit or implicit proposals of sexual activity. The Court reasoned Defendant failed to entirely address the second requirement, (b), of this standard. Defendant now argues that, the Court erred in finding that Defendant needed to address the second requirement, (b), provided that it met its burden of showing that there was no question of material fact regarding the first requirement, (a). Defendant is correct. Although Defendant inaccurately cited the standard as being made up of only one of the two requirements, to carry its initial burden the Court agrees that Defendant needed only to have shown that there was no genuine issue of material fact as to one of the two requirements. Defendant met its burden and showed that there was no question of material fact that Setzu was a homosexual. Thus, Plaintiff must show a genuine question of material fact on the above to overcome summary judgment.
See Rec. No. 15, fn. 15 and Rec. No. 18.
The Court now considers whether Plaintiff can raise a genuine question of material fact by providing credible evidence that: (a) Setzu is a homosexual, and (b) that Setzu made explicit or implicit proposals of sexual activity. La Day outlines two types of evidence that are "likely to be especially `credible' proof that the harasser may be a homosexual." La Day, 302 F.3d at 480. The first type is "evidence suggesting that the harasser intended to have some kind of sexual contact with the plaintiff rather than merely to humiliate him for reasons unrelated to sexual interest." Id. The second type is proof that the alleged harasser made same-sex sexual advances to others. Id. Plaintiff has not provided any evidence of the second type of credible proof. Taking the evidence in the light most favorable to Plaintiff, there is credible evidence that Setzu intended to have some kind of sexual contact with Plaintiff. Setzu touched Plaintiff's breast, invited Plaintiff to her apartment after being out at a bar, told Plaintiff that she wanted to get to know her and questioned why she did not fall for her advances. Therefore, there is sufficient proof of Setzu's homosexuality and of her making implicit or explicit proposals of sexual activity for Plaintiff's harassment claim to overcome the threshold issue.
Thus, the Court now addresses what it did not address in its previous Summary Judgment Order: whether or not the challenged conduct meets the applicable standard for sexual harassment. To establish her prima facie case of sexual harassment, Plaintiff must establish that at some point during this period: (1) she belonged to a protected group; (2) she was subjected to unwelcome harassment; (3) the harassment complained of was based on gender; and (4) the harassment complained of affected a term, condition or privilege of employment. Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir. 2001). Defendant argues that there is not a question of material fact on the fourth requirement. To prevail Plaintiff must prove that the "workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993) (citations and quotations omitted). Whether conduct rises to a sufficient level of abusiveness or hostility based on discriminatory intent "depends on a totality of circumstances, focusing on factors such as the frequency of the conduct, the severity of the conduct, the degree to which the conduct is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee's work performance." Long v. Eastfield College, 88 F.3d 300, 309 (5th Cir. 1996). "In order to be actionable under [title VII], a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim did in fact perceive to be so." Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 269 (5th Cir. 1998).
Plaintiff never complained about the incidents prior to November 14, 2002. Moreover, prior to November 14, 2002 Plaintiff never felt that her work environment was "actively hostile" because through her own admission, she would have called the human resources manager if it had become actively hostile. However, the Court finds that on November 14, 2002 Plaintiff complained to human resources indicating that she found these incidents offensive. Plaintiff's affidavit further corroborates that she found these incidents offensive.
See e.g. Factual and Procedural History. [Rec. No. 20].
The Court next examines whether a reasonable person would find the situation hostile or abusive, and whether the alleged acts rose to a level that were severe or pervasive enough to alter a term or condition of Plaintiff's employment. Looking at the totality of the circumstances, the evidence submitted suggests that sexual overtones were present at Telerx. For example, managers would frequently kiss employees on the cheek, there were sexually explicit materials hung and distributed in the workplace, and during managerial meetings sexual innuendos would be commonplace. However, none of these instances were directly aimed at Plaintiff. Even assuming these incidents were "ordinary socializing in the workplace," a one time incident of Setzu's touching Plaintiff's breast rises above this level. See Oncale v. Sundowner Offshore Services, 523 U.S. 75, 81 (1998) (quotations and citations omitted). This is an objectively offensive action. However, alleged harassment "must be more than episodic, it must be sufficiently continuous and concerted in order to be deemed pervasive." Faragher v. City of Boca Raton, 524 U.S. 775, 786 n. 1 (1998). The alleged incident took place at a dance club called the Old Plantation following dinner with a client and Setzu sometime in September of 2002. [Rec. No. 17, Ex. C]. Esparza admitted as of October 2, 2002 she had "at least a pretty good relationship with [Setzu], . . . and at least a working relationship." [Rec. No. 16, Ex. A, p. 62]. The incidents as outlined in the Court's previous Order were not pervasive as they took place over the course of a total of three months and did not occur on a recurring basis during those months. Significantly, Esparza also admitted that despite the environment she was in, she was still able to perform her job highly competently. [Rec. No. 16, Ex. A at 237]. Thus, this incident in combination with the others was not sufficiently severe or pervasive to alter a term or condition of Esparza's work or for her to find the workplace actively hostile. The Court finds that the totality of the circumstances were not severe or pervasive enough to affect a term or condition of Plaintiff's employment, a necessary condition to establish her prima facie case of hostile work environment.
See "Plaintiff's Response to Defendant's Motion for Summary Judgement" [Rec. No. 17] for Plaintiff's allegations that allege hostile work environment sexual harassment.
IT IS THEREFORE ORDERED that "Telerx's Motion for Reconsideration and for the Court to Amend its Order of May 10" [Rec. No. 21] is GRANTED. IT IS FURTHER ORDERED that Summary Judgment is GRANTED as to Plaintiff's claim for sexual harassment hostile work environment.