Opinion
Civil Action No.: 02-0097, Section "A" (2)
September 13, 2002
MEMORANDUM AND ORDER
Before the Court is defendants, Pizza Inn, Inc., Southern Pizza Co. and Larry Kinard's Motion for Summary Judgment (Rec. Doc. 27) on the plaintiff's claims of sexual harassment under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000 (e) et. seq., vicarious liability for corporate defendants, intentional infliction of emotional distress and negligent infliction of emotional distress. Plaintiff opposes the motion.
BACKGROUND
The plaintiff worked as a waitress for Southern Pizza Company, d/b/a Pizza Inn in Franklinton, Louisiana from March 14, 2000 until August 20, 2000. Plaintiff alleges that while she was employed at Pizza Inn the defendant Larry Kinard was interested in her and his unwanted flirtatious comments created a hostile working environment. Specifically, in her deposition she identified the following events that she alleges created a hostile working environment: (1) He always greeted her with "Good morning, beautiful"; (2) He told her he liked the way she walked; (3) On his way to work, he drove by her house, honked his car horn, waved and blew kisses at her; (4) He once kissed her on the cheek while she was making salads and allegedly would have kissed her lips but she turned her head; (5) He touched her buttocks three or four times; and (6) He tried to hug and kiss her in the cooler. Plaintiff testified that the worst thing he did was try to hug her and kiss her in the cooler. This conduct took place over a period of six months. These acts were denied by the defendant Kinard.
According to plaintiff's deposition testimony, she and her son quit due to a co-employee's lack of cooperation with her son. (Plaintiff's Deposition at 42-43).
Plaintiff's Deposition at 171.
Id. at 67, 111-112.
Id. at 24, 136.
Id. at 114-115.
Id. at 202.
Id. at 116.
Id. at 116.
Defendant's Exhibit 7.
The plaintiff affirmed in her deposition testimony that apart from the above instances, Kinard allowed her to work flexible hours and allowed her to go home to check on her son. She also admitted that Kinard always paid for her food when she and her family ate at the Pizza Inn. Further, she took advantage of his interest to get jobs for her son, niece and nephew.
Id. at 40-41.
Id. at 46.
Id. at 46.
The plaintiff received a copy of, and signed an acknowledgment form for Pizza Inn's Sexual Harassment Policy when she was hired on March 14, 2000. The anti-harassment policy provides procedures for an employee to report complaints of sexual harassment. The manual states in part, "All incidents of sexual harassment or inappropriate sexual conduct must be reported regardless of their seriousness. Publicizing information about alleged harassment without following the reporting procedures or filing a formal complaint might be considered evidence of a vexatious intent on the part of the accuser." The policy also requires that the incidents be reported to a supervisor, manager or owner.
Defendant's Exhibit A-3.
The plaintiff testified that she was aware of what the policy was and that the company had a 1-800 number for the home office to report any harassment. The plaintiff did not report the sexual harassment to any of her superiors while she was employed at Pizza Inn. Charles Tackett, Director of Operations of Southern Pizza Company from March, 2000 to March, 2002, visited the Pizza Inn store in Franklinton once a month to conduct Quality Assurance Evaluations. He was also there at other times for various follow-up visits. He stated that the plaintiff did not report any sexual harassment to him on any of his monthly visits. She did report sexual harassment to him on August 24, 2000 after walking off her job on August 20, 2000. Several days after she quit on August 20, 2002 the plaintiff called Tackett to tell him that she quit and had filed an unemployment claim based on sexual harassment. When questioned by Tackett as to why she had not reported the harassment the plaintiff replied that "Larry (Kinard) told me he already told you about me."
Plaintiff's Deposition at 93.
Defendant's Exhibit B.
Defendant's Exhibit B.
Plaintiff's Deposition at 126-127.
Id. at 131.
On August 24, 2002, Tackett traveled to the Franklinton store to interview Kinard and other employees. They all denied they saw any sexual harassment or other inappropriate conduct or participated in any type of sexual harassment Tackett then contacted the plaintiff who told him she wanted her job back provided Kinard was gone. Kinard was opposed to rehiring the plaintiff because she had walked out without notice. Plaintiff then told Tackett that she wanted to draw unemployment benefits and Tackett told her that the company would not oppose this.
Defendant's Exhibit 7, Tackett dec. ¶ 3.
Plaintiff's Deposition at 129-130.
Exhibit 7, Tackett dec. ¶ 4.
Id.
The plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that discrimination based on sex created a hostile work environment in violation of Title VII. The EEOC issued plaintiff a right-to-sue letter and plaintiff filed suit in this court. Plaintiff's complaint alleges she was "sexually harassed in many forms" and "seeks all remedies available to her under federal law, including, but not limited to, Title VII of the Civil Rights Act of 1964, and Louisiana state law, including claims under Louisiana Revised Statute 23:301 et seq., battery, assault, intentional infliction of emotional distress, negligent infliction of emotional distress and all other tort remedies available under federal and state law." The defendants moved for summary judgment, arguing that the facts did not rise to the level of hostile work environment, that there exists no vicarious liability for corporate defendants and no intentional infliction of emotional distress.
DISCUSSION
Summary judgment is appropriate if the record discloses that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c) and Chelates Corp. v. Citrate, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagra Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986)).The moving party bears the burden of establishing that there are no genuine issues of material fact. However, the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. Id. Therefore, "[i]f the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. In determining whether a party is entitled to summary judgment, the court views the evidence in the light most favorable to the non-moving party. Littlefield v. Forney Indep. School Dist., 268 F.3d 275, 282 (5th Cir. 2001) (citing Smith v. Brencettsy, 158 F.3d 908, 911 (5th Cir. 1998)). The moving party bears the burden, as an initial matter, of showing the district court that there is an absence of evidence to support the nonmoving party's claim. Id. (citing Chelates, 477 U.S. at 325, 106 S.Ct. at 2548.) If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. The burden then shifts to the nonmoving party, who may not rest upon the pleadings, but must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists for trial. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
The Court will first address the plaintiff's sexual harassment claim. Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." Sexual harassment is a form of sex discrimination. The Supreme Court has recognized two types of sexual harassment claims. There are those based on requests for sexual favors that result in adverse employment actions (a quid pro quo claim) and those where bothersome attentions or sexual remarks create a hostile work environment. Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998); Burlington Industries, Inc., v. Ellerth, 118 S.Ct. 2257 (1998); Oncale v. Sundowner Offshore Servs., Inc., 114 S.Ct. 3678 (1998). The plaintiff has not alleged any adverse employment actions and has stated a claim only for hostile work environment. The central issue in a hostile environment claim is whether the conduct (harassment) unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive working environment.
All of the sexual hostile environment cases decided by the Supreme Court have involved patterns or allegations of extensive, long lasting, unredressed, and uninhibited sexual threats or conduct that permeated the plaintiff's work environment. Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998); Burlington Industries, Inc., v. Ellerth, 118 S.Ct. 2257 (1998); Oncale v. Sundowner Offshore Servs., Inc., 114 S.Ct. 3678 (1998); Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993); Meritor Sav. Bank. FSB v. Vinson, 477 U.S. 57 (1986). "`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 in fact did perceive to be so . . .'" Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 269 (5th Cir. 1998) (quoting Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998)). "Whether an environment meets this standard depends on `all the circumstances,' including 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." Id. (quoting Faragher, 775 U.S. at 787). While what makes up an actionable claim for a sexually hostile work environment is a fact-sensitive determination, the Supreme Court's decisions strongly suggest that such allegations are not to be exclusively resolved by the jury. Indest v. Freeeman Decorating Inc., 164 F.3d 258, 264 (5th Cir. 1999).
Courts have set a high standard for what constitutes sufficiently severe and pervasive harassment for purposes of a claim of hostile work environment. "Title VII was only meant to bar conduct that is so severe and pervasive that it destroys a protected classmember's opportunity to succeed in the workplace." Weller v. Citation Oil Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996), cert. denied, 519 U.S. 1055, 117 S.Ct. 682, 136 L.Ed.2d 607 (1997).
In Shepherd v. Comptroller of Public Accounts, 168 F.3d 871 (5th Cir. 1999), the Fifth Circuit held that no sexual harassment occurred when a co-worker made crude remarks about the plaintiff's anatomy such as "your elbows are the same color as your nipples" while pretending to look down her dress, touched her arm on several occasions, rubbed her shoulder, and motioned for her to sit on his lap during a meeting saying "here's your seat." In Guidiy v. Zale Corporation, 969 F. Supp. 988 (M.D. La. 1997), the plaintiff claimed she was subjected to three incidents of harassment over a period of over six months. The alleged harassment included unwanted touching by a co-worker on one occasion, and comments of a graphic and sexual nature. The court ruled that "three isolated incidents that occurred over a period of six or more months . . . d[id] not constitute conduct severe or pervasive to create an objectively hostile or abusive work environment." Id. at 989.
In Indest v. Freeman, 164 F.3d 258 (5th Cir. 1999), the plaintiff accused the company vice-president of harassment because he made inappropriate sexual comments and gestures towards her. The Fifth Circuit reemphasized that harassment claims are only actionable when the conduct is extreme. "Incidental, occasional, or merely playful utterances will rarely poison the employee's working conditions to the extent demanded for liability. Discourtesy or rudeness, off-hand comments and isolated incidents (unless extremely serious) will not amount to actionable discrimination." Id. at 264.
See also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998 (1998) (Abusive language and boorish behavior alone do not violate Title VII); Long v. Eastfield College, 88 F.3d 300, 309 (5th Cir. 1996) (finding single joke involving condoms insufficient to create hostile environment); Weiss v. Coca-Cola Bottling Co., 990 F.2d 333 (7th Cir. 1993) (finding that a male co-worker's conduct consisting of several incidents of unwanted touching, attempts to kiss, placing "I love you" signs in her work area, and asking female employee out on dates did not create a hostile work environment).
Cases alleging some physical contact have not been held to rise to the level of severe and pervasive harassment. In Baker v. Starwood 1999 WL 397405, 80 FEP 1114 (E.D. La. 1999) the plaintiff alleged that the man accused of harassing her touched her in different places while attempting to kiss her. On the first attempt he touched her thigh. On the second attempt he touched her breast and her arm. On another occasion, he grabbed her hand and pulled it to his crotch. In dismissing the case, the court stated, "While I find any unwanted touching in the work place to be inappropriate, the two incidents alleged to have occurred in the present case do not rise to the level of severe or pervasive harassment. . . . While Evans' behavior and comments were ill-mannered and vulgar, as a matter of law, they were not sufficiently severe or pervasive enough to alter the conditions of Woods' employment or to create an abusive working environment."
See also Scusa v. Nestle USA Co., 181 F.3d 958 (8th Cir. 1999) (not severe or pervasive conduct when coworker patted plaintiff on her rear end, blew her kisses and made sexual comments to her).
There are five elements necessary to set forth a hostile environment claim: (1) that the employee belongs to a protected class; (2) that the employee was subject to unwelcome sexual harassment; (3) that the harassment was based on sex; (4) that the harassment affected a "term, condition, or privilege" of employment; and (5) that the employer knew or should have known of the harassment and failed to take prompt remedial action. The Court notes initially that the plaintiff did not report the sexual harassment while she was employed at Pizza Hut. She had ample opportunity to report the harassment when Charles Tackett, Director of Operations, made one of his monthly inspections or follow-up visits. When she was asked in her deposition why she did not report it, she indicated that Kinard had already reported it. The Court finds this statement ludicrous and unbelievable. At a minimum, even assuming plaintiff's statement to be true, the Court finds that the plaintiff was unreasonable in depending on the very person she alleges is sexually harassing her to report the harassment. An employee has a legal duty to overcome any natural apprehension about reporting harassment. "[A]n employee's subjective fears of confrontation, unpleasantness or retaliation do not alleviate the employee's duty under Ellerth to alert the employer to the allegedly hostile environment." Shaw v. AutoZone, Inc., 180 F.3d 806 (7th Cir. 1999). It was plaintiff's duty to report the harassment and she did not, thus depriving her employer of the opportunity to take any immediate, remedial action.
See Jones v. Flagship Int'l, 793 F.2d 714, 719-20 (5th Cir. 1986); see also Sharp v. City of Houston, 164 F.3d 923, 929 (5th Cir. 1999) (stating that the fifth element remains undisturbed) and Shepherd v. Comptroller of Public Accounts, 168 F.3d 871 (5th Cir. 1999).
Defendant's Exhibit B.
Plaintiff's Deposition at 126-127.
While Kinard's behavior and comments were ill-mannered and vulgar, the Court concludes that under the standards set by higher courts, as a matter of law they were not sufficiently severe or pervasive enough to alter the conditions of plaintiff's employment or to create an abusive working environment.
Taking all of Plaintiff's allegations as true, the Court finds that this claim does not meet the standard for actionable sexual harassment under a hostile work environment and defendants are entitled to summary judgment.
STATE LAW CLAIMS
Plaintiff alleges jurisdiction over her state law claims under Louisiana Revised Statute 23:301 et seq., battery, assault, intentional infliction of emotional distress and negligent infliction of emotional distress solely under 28 U.S.C. § 1367. Section 1367 provides for supplemental jurisdiction over all claims that are so related to claims over which the court has original jurisdiction that the related claims are part of the same case or controversy under Article III of the United States Constitution. 28 U.S.C. § 1367 (a). The court may decline, however to exercise supplemental jurisdiction in certain circumstances, including where "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367 (c).
Having dismissed Plaintiff's Title VII claims, the Court declines to exercise supplemental jurisdiction over the various state law claims.
Accordingly,
IT IS ORDERED, that Defendants' motion for summary judgment on plaintiff's Title VII claims is GRANTED. IT IS FURTHER ORDERED that the court declines to retain jurisdiction over the state law claims for which there is no independent subject matter jurisdiction, and they are DISMISSED.