Summary
holding that several limited lewd and unwelcome verbal comments and physical contact of a sexual nature did not create a severe and pervasive hostile work environment
Summary of this case from Moore v. Aramark Educational Resources, Inc.Opinion
No. 3:01-CV-2406-AH
September 11, 2002
MEMORANDUM OPINION AND ORDER
Pursuant to the consents of the parties, the provisions of 28 U.S.C. § 636(c), and the District Court's Order of Reassignment filed on January 14, 2002, came on to be considered Defendant's Motion for Summary Judgment filed on July 24, 2002, Plaintiff's response filed on August 12, 2002, and Defendant's reply thereto filed on August 26, 2002. Having considered the relevant pleadings, including the parties' summary judgment briefs and appendices, as well as applicable authorities, the court, for the reasons stated herein, GRANTS Defendant's Motion for Summary Judgment.
I. Factual Background
Pearline Jones (hereinafter referred to as "Plaintiff" or "Jones") brought suit against Seago Manor Nursing Home (hereinafter referred to as "Defendant" or "Seago Manor") alleging that she was subjected to a hostile work environment on the basis of sex discrimination, to wit: sexual harassment and that she suffered adverse employment actions in retaliation for lodging a complaint against her former supervisor for sexual harassment in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et. seq. and the Civil Rights Act of 1991. The record reflects that Jones has satisfied all administrative prerequisites to filing a claim under Title VII, including filing a charge with the Equal Employment Opportunity Commission ("EEOC"), receiving a right-to-sue letter from the EEOC, and filing suit within ninety days thereafter. Pl.'s Original Compl. ¶ 8.
In her response to Defendant's instant motion, Jones denied having pleaded causes of action for sex discrimination and quid pro quo sexual harassment. See Pl.'s Response at 1. Therefore, these issues are not before the court for consideration.
Jones was employed by Seago Manor for approximately nine years (Pl.'s Response at 2, ¶ 2). Her most recent duties included serving as a certified medication aide and central supply clerk (Def's Motion for Summary Judgment ("Def.'s Motion") at 1). Jones' responsibilities included dispensing medication (she was one of two people with a key to the drug room), overseeing medical supplies, performing end of the month billings and payroll, feeding residents, and performing computer work (Pl.'s App., Ex. 1 at 2, ¶ 2 (Aff. of E.J. Connolly)("Connolly's Aff.")). During her term of employment, Mrs. Jones' immediate supervisor was Mr. Howard "Tony" Jackson ("Jackson"), assistant director of nursing, who in turn reported to Gabriel "Gabe" Bach ("Bach"), the administrator of Seago Manor (Def's Motion at 1-2).
On or about April 23, 2001, Mr. Jackson allegedly made two untoward sexual remarks to Mrs. Jones during work hours. According to Mrs. Jones, Mr. Jackson and Mr. Lynn Butler, one of Jones' co-workers, were making fun of Jones' pronunciation of the word "computer" (Pl.'s App., Ex. 2 at 97 (Jones' Dep.)). Jackson then told Jones, in Butler's presence, "You know, I stick [my penis] in you, you'll say computer right" ( Id. at 97, Ins. 10-11). Jones promptly informed two of her co-workers about Jackson's comment ( Id. at 99). Approximately thirty minutes later Jones again encountered Jackson during which time he said "Ooh, girl, I could stick this long [expletive deleted] in you and you [sic] go tell your husband that you'll leave him for a white man" ( Id. at 100, Ins. 13-15). Due to Mr. Bach's unavailability at the time of these incidents, Jones apprised Bach of Jackson's comments to her the following day ( Id. at 104). Within thirty minutes of Jones' disclosures Bach convened a meeting, at which both Jones and Jackson were present, to discuss the allegations raised by Jones ( Id. at 105). At the meeting, Jones reiterated the statements which Jackson had made to her on the previous day, in response to which Jackson accused Jones of being a "damn liar" ( Id. at 108, Ins. 8-9). However, as the meeting concluded Jackson apologized to Jones saying "I'm sorry for going that way with you, I will not go that way with you anymore" ( Id. at 110, Ins. 7-10). During the remainder of Jones' tenure at Seago Manor Jackson never made any similar comments or touched Jones in an inappropriate manner ( Id. at 110, 119-20).
Sometime prior to these two instances of vulgar banter, Jackson touched Jones' buttocks and told her that ". . . [it] must be jelly because jam [does not] shake like that" ( Id. at 116-17).
In his affidavit Jackson specifically denied ever having made such comments to Jones (Def.'s App., Ex. 4 at 2 (Jackson's Aff)).
Jones also contends that Jackson looked at her and grabbed his crotch on one occasion in April of 2001 ( Id. at 128-33).
In an excerpt from Jones' deposition, included in both parties' appendices, she related rumors of Jackson's threats of physical violence against her which she received from a fellow employee named Calvin and from Mr. Bach. However, Jones concedes that Jackson never personally threatened her (Jones' Dep. at 142-48). The statements attributed to Calvin and Bach constitute inadmissible hearsay. Moreover, even if Jackson had told third persons that he was considering physically harming Jones, such comments have no relevance to her claims of sexual harassment and of retaliation.
Sometime in May of 2001, Mr. Bach informed Ms. E.J. Connolly, one of Jones' co-workers, that he did not believe Jones' allegations of sexual harassment by Jackson (Connolly's Aff. at 2, ¶ 3). On two occasions in June of 2001, Bach also confronted Jones about her claim of harassment ( Id. at ¶ 4).
Sometime during May or June of 2001, Jones refused Jackson's request that she immediately begin dispensing medications to Seago Manor's residents ( Id. at 135-38; Pl's Response at 3, ¶ 8). Jones was informed of Jackson's request by a co-worker as well as by Jackson himself ( Id. at 135-36). Jones' refusal of the request was predicated on the fact that she had previously been instructed by Bach that on the day in question she need only perform Medicare billing and then she could go home, due to having worked each of the proceeding thirteen days ( Id. 135). Jones had also been advised by a doctor that she not push anything heavy as she was recovering from a hysterectomy ( Id. at 137, 141; Pl.'s Response at 3, ¶ 8). After Bach denied having so instructed Jones, she proceeded to dispense the medications pursuant to Jackson's request, albeit more than 30 minutes after she was asked to perform this task ( Id. at 137, 141-42). As a result of this incident Jones was written up by Jackson for insubordination ( Id. at 138).
In the fall of 2001, Jones' responsibilities as a medication aide were discontinued due to a perceived lack of reliability, stemming from two instances when she refused to dispense medications to the residents ( Id. at 3, ¶ 9; Def.'s App. at Ex. 3, p. 2 (Aff. of Gabriel Bach)). In early October 2001, Bach informed Jones that her work hours would be reduced from eight to five hours pursuant to a corporate mandate ( Id. at 157-59, 206-07; Pl.'s Response at 3, ¶ 9)). On November 6th, 2001, Bach informed Jones that her employment with Seago Manor was to be terminated due to a lack of work for her ( Id. at 209; Pl's Response at 3, ¶ 9).
Jones argues that Bach's affidavit contains inadmissible hearsay (Pl.'s Br. at 16-17). From the evidence before the court it is clear that Bach was personally involved in the above described incident. With respect to the second occasion, assuming Bach was not also personally involved, evidence of the same is admissible to the extent that it reflects what was reported to him and what responses he took as Seago Manor's administrator.
II. Analysis
A. Summary Judgment — Standard of Review
To prevail on a motion for summary judgment, the moving party has the initial burden of showing that there is no genuine issue of any material fact and that judgment should be entered as a matter of law. FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10 (1986). The materiality of facts is determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. An issue is "material" if it involves a fact that might affect the outcome of the suit under governing law. See Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th Cir. 1994) (citing Anderson, 477 U.S. at 248, 106 S.Ct. at 2510). Once the moving party has made an initial showing, the party opposing the motion for summary judgment may not merely rely on his pleadings, but must come forward with competent evidentiary materials that establish a genuine fact issue. Anderson, 477 US at 256-257, 106 S.Ct. at 2514; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56 (1986). Neither conclusory allegations nor hearsay statements are competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996) (citation omitted). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports the opponent's claim. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citation omitted). Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support a nonmovant's opposition to the motion for summary judgment. Id. (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992)). The court must resolve any factual controversies in favor of the non-moving party. Richter v. Merchants Fast Motor Lines, Inc., 83 F.3d 96, 98 (5th Cir. 1996) (citation omitted). Thus, in reviewing all of the evidence, the court must consider it in a light most favorable to Mrs. Jones' claims, drawing all factual inferences therefrom and making all credibility determinations related therefrom in her favor. However, summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322.
Seago Manor contends that it is entitled to summary judgment, because Jones cannot establish either a hostile work environment or retaliation. As summary judgment evidence, Defendant proffers the following: excerpts from Jones' deposition, Jones' interrogatory answers, Bach's affidavit, and Jackson's affidavit.
B. Title VII- Applicable Law
Title VII of the Civil Rights Act of 1964 prohibits covered employers from discriminating against "any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (1994). Title VII's prohibition of sex (gender) discrimination includes sexual harassment. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64-67, 106 S.Ct. 2399, 2404-06, 91 L.Ed.2d 49 (1986).
1. Plaintiff's Hostile Work Environment Claim
In order to demonstrate an actionable sexual harassment claim based on a theory of hostile work environment, a plaintiff must show that: (1) she belongs to a protected class, (2) she was subjected to unwelcome sexual harassment, (3) the harassment was based on sex, (4) the harassment affected a term, condition, or privilege of employment, and (5) the employer knew or should have known of the harassment and failed to take remedial action. Green v. Adm'rs. of the Tulane Educ. Fund, 284 F.3d 642, 655 (5th Cir. 2002) (citing Mota v. Univ. of Tex. Houston Health Science Cfr., 261 F.3d 512, 523 (5th Cir.2001)). Conduct sufficient to create a hostile working environment must be severe or pervasive. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754, 118 S.Ct. 2257, 2265, 141 L.Ed.2d 633 (1998); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. at 67, 106 S.Ct. at 2405. In order to state a cause of action under Title VII, sexually objectionable conduct must be both objectively and subjectively offensive (i.e., perceived by the victim as well as by a reasonable person to be both hostile and abusive). Shepherd v. Comptroller of Public Accounts of Tex., 168 F.3d 871, 874 (5th Cir.), cert. denied, 528 U.S. 963, 120 S.Ct. 395, 145 L.Ed.2d 308 (1999) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993)).
Here, construing all facts and inferences in Jones' favor as the court must, it is undisputed that she was subjected to lewd and unwelcome verbal comments and physical contact, of a sexual nature, by Tony Jackson and that the unwelcome conduct was both subjectively and objectively abusive. As such, issue is joined only on the final two elements which a plaintiff must prove to establish an actionable sexual harassment claim.
"Whether an environment is hostile or abusive 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." Weller v. Citation Oil Gas Corp., 84 F.3d 191, 194 (5th Cir.), cert. denied, 519 U.S. 1055, 117 S.Ct. 682, 136 L.Ed.2d 607 (1997) (citation omitted).
In Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), the Supreme Court held that "an employer is . . . vicarious[ly] liab[le] [under Title VII] to a victimized employee for an actionable hostile environment created by a supervisor with immediate authority over the employee" Id., 524 U.S. at 807, 118 S.Ct. at 2292-93. In Faragher, the Court announced that in order for the acts of a supervisory employee whose sexual harassment of a subordinate has created a hostile work environment to be actionable, the same must be "so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment." Id., 524 U.S. at 786, 118 S.Ct. at 2283 (quoting Mentor Sav. Bank, FSB v. Vinson, supra, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)) (internal quotation marks omitted). Further, with respect the type of conduct which is actionable under Title VII, the Court stated, ". . . it [is] clear that conduct must be extreme to amount to a change in the terms and conditions of employment." Id. 524 U.S. at 788, 118 S.Ct. at 2284 (emphasis added).
In light of the Supreme Court's pronouncements in Faragher, it is clear that Jones has failed to present evidence sufficient to permit a jury to find that the conduct complained of was severe or pervasive. Although a hostile environment can and often does detract from an employees' job performance, see, e.g., Harris v. Forklift Systems, Inc., 510 U.S. at 21-22, 114 S.Ct. at 370-71, Plaintiff's summary judgment evidence falls far short of evincing the type of extreme conduct necessary to establish the existence of such an environment.
Jones has identified three incidents in which Jackson engaged in offensive conduct, culminating in the lewd remarks he made on April 23, 2001 ( See n. 2 and n. 4, supra). Had Jackson's verbal taunts continued unabated, a colorable basis for a severe and pervasive hostile work environment might exist. See DeAngelis v. El Paso Mun. Police Officers Ass'n., 51 F.3d 591, 593 (5th Cir. 1995) (Title VII was only meant to bar conduct that is so severe and pervasive that it destroys a protected employee's opportunity to succeed in the workplace). However, in point of fact Jones' complaint was considered the very next day by the nursing home administrator, ultimately resulting in a personal apology by Jackson. Plaintiff herself concedes that following the informal conference on April 24, 2001, Jackson never engaged in any sexually offensive conduct throughout the remainder of her employment. Moreover, it is clear that Defendant, through Gabriel Bach, took prompt and effective remedial action, foreclosing Plaintiff's ability to establish a genuine issue of fact on the final element of proof in a hostile work environment claim. See Skidmore v. Precision Painting and Packaging, Inc., 188 F.3d 606, 615-16 (5th Cir. 1999).
The "`mere utterance of an . . . epithet which engenders offensive feelings in a employee' does not sufficiently affect the conditions of employment" See Harris v. Forklift Sys., Inc., 510 U.S. at 21, 114 S.Ct. at 370 (quoting Mentor Sav. Bank, FSB v., 477 U.S. at 67, 106 S.Ct. at 2405).
Accordingly, there is no basis from which a jury could reasonably find that Plaintiff was subjected to a hostile work environment which is actionable under Title VII and, therefore, Defendant is entitled to summary judgment on that claim.
2. Plaintiff's Retaliation Claim
To prove a claim for retaliation, Jones is required to establish that: (1) she engaged in a protected activity, (2) she suffered an adverse employment action, and (3) that such adverse employment action was motivated by animus inspired by, or causally linked to, the protected conduct. Chaney v. New Orleans Public Facility Mgmt., Inc. 179 F.3d 164, 167 (5th Cir.), cert. denied, 529 U.S. 1027, 120 S.Ct. 1439, 146 L.Ed.2d 327 (2000); see also Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996) (describing the third element of a prima facie retaliation case as a "causal link") (citation omitted); Mota, supra, 261 F.3d at 519. Protected activity is defined as opposition to any practice rendered unlawful by Title VII, including making a charge, testifying, assisting, or participating in any investigation, proceeding, or hearing under Title VII. 42 U.S.C. § 2000e-3(a)(2001); see also Long v. Easifield College, 88 F.3d at 304. To demonstrate causation, an employee must ultimately show that "but for" the protected activity, the adverse employment action would not have taken place. See Long v. Easifleld College at 305, n. 4 ("[t]he 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"). However, the causation showing at the prima facie stage is much less stringent than the "but for" standard. Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001).
The Fifth Circuit applies the familiar burden-shifting structure first enunciated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), in addressing unlawful retaliation claims under Title VII. See McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir. 1983); see also Chaney v. New Orleans Public Facility Mgmt., Inc., supra, 179 F.3d at 167. If the plaintiff makes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for the adverse employment action. Long v. Eastfield College, 88 F.3d at 308. If the employer, in turn, provides a permissible rationale for its action, the plaintiff then shoulders the ultimate burden of proving that the employer's proffered rationale was pretextual and that engaging in the protected activity was the "but-for" cause of the adverse employment action. Id. In other words, the plaintiff must demonstrate the existence of a genuine issue of fact. For purposes of proving pretext, it is not enough to show that the stated reason was false, the plaintiff must show that the stated reason was false and that discrimination was the actual reason for the adverse employment action. Zambrano v. Northside Independent School District, 1999 WL 33290611 *11-12 (W.D. Texas September 29, 1999) (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 516-17, 113 S.Ct. 2742, 2752 (1993)).
Defendant concedes that Plaintiff has satisfied the first two elements of a prima facie retaliation case (Def.'s Motion at 13). Therefore, the only issue remaining is whether Jones can establish a causal link between her sexual harassment complaint and her reduction in work hours and subsequent termination.
In Jones' response to Defendant's motion, Plaintiff contends that both Jackson and Bach retaliated against her for making her sexual harassment complaint. With respect to Jackson, Jones contends that his writing her up for insubordination for failure to timely dispense medications to residents, constituted retaliation. However, to the extent that this act does not amount to an adverse employment action, it is not cognizable as retaliatory conduct under Title VII. See Walker v. Thompson, 214 F.3d 615, 629 (5th Cir. 2000) (adverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating). With respect to Bach, Jones contends that the following conduct was retaliatory: he personally confronted her on two occasions and a co-worker on another occasion regarding his belief that Jones' complaint of sexual harassment was incredible, he scaled back her work hours, and he terminated her employment. However, only the latter two circumstances involve ultimate employment decisions cognizable under Title VII. See id.
Jones also contends that Jackson looked at her in a weird manner when Seago Manor received the EEOC's right-to-sue letter (Jones' Dep. at 149). Similarly, this behavior cannot constitute retaliatory conduct.
In arguing that Plaintiff cannot make a prima facie showing of the causation element of her retaliation claim, Defendant points to the lack of temporal proximity between the date of her harassment complaint- April 23rd and the dates of her reduction of hours and her termination, in October and November, respectively. Jones has presented nothing to suggest that either action was taken in retaliation for her prior complaint, either by word or deed on the part of Bach, Seago Manor's administrator.
While an inference of proximate causality may be drawn when the adverse employment action follows close on the heels of a plaintiffs protected conduct, in Clark Co. School Dist. v. Breeden, 532 U.S. 268, —, 121 S.Ct. 1508, 1511, (2001) the Supreme Court noted that in those cases in which such an inference was permitted, it was uniformly held that the temporal proximity must be "very close." Id. The Court further noted cases in which periods of 3 months and 4 months, respectively- between the protected activity and the alleged retaliation- were insufficient to permit such an inference.
In the present case, the claimed retaliatory acts of Defendant occurred more than 5 months and 6 months, respectively, after Jones made her complaint of sexual harassment. In addition, in the interim period she concedes that on at least one occasion she refused to timely comply with her supervisor's request that she distribute medications to the nursing home residents. In light of the foregoing, the court concludes that Plaintiff has failed to present a prima facie showing that Defendant's adverse employment actions were in retaliation for her harassment complaint.
Alternatively, assuming arguendo that Plaintiff has made the requisite prima facie showing, under the McDonnell Douglas framework the burden of production shifts to Defendant. The summary judgment evidence before the court shows the undisputed fact that Jones was relieved of any obligation to dispense medication to residents on a date prior to that on which her daily work hours were reduced from 8 to 5 and that she was told that the reduction in her hours was a corporate decision. Defendant provides additional reasons for Jones' termination in the affidavit of its administrator, Gabriel Bach, wherein he relates that her termination was based in part upon a progressively worsening attitude throughout the summer and fall of 2001 which affected the performances of other employees and that because Jones' remaining job functions could be performed by other employees, her job was eliminated and she was terminated as an employee ( See, e.g., Bach's Aff.).
Each of these proffered reasons for Defendant's employment actions are non-discriminatory and, consequently, have no connection to Plaintiff's April 23rd complaint. Therefore, Plaintiff must, in turn, demonstrate the existence of a material issue of disputed fact as to whether Defendant's proffered explanation for its actions was merely a pretext for retaliation.
With respect to the reduction in her hours Plaintiff points to nothing other than her subjective belief that she needed more time to complete her remaining job duties. See Scrivner v. Socorro Indep. School Dist., 169 F.3d 969, 972 (5th Cir. 1999) (citing Grimes v. Texas Dep't of Mental Health and Mental Retardation, 102 F.3d 137, 139 (5th Cir. 1996) (conclusory allegations, unsubstantiated assertions, and subjective beliefs insufficient to support discrimination claim). Conspicuous by its absence is any evidence that after her hours were reduced, the workloads of co-employees increased to perform the duties formerly assigned to Mrs. Jones. There is simply no evidence showing that her reduction in hours was anything more than a legitimate business decision.
Jones also offers the conclusory allegation that Bach's decisions were motivated by Jones' complaint because Bach, Jackson, and others at Seago Manor "stuck together" (Jones' Dep. at 141).
With regard to problems with her attitude towards others, Plaintiff merely denies that she had a bad attitude, notwithstanding the fact that on at least one occasion she refused to comply with directions to distribute medications for approximately 40 minutes. Although she has presented the affidavit of E.J. Connolly in which it is represented that Plaintiff was diligent and good natured, this is incompetent evidence as to Jones' demeanor after Connolly left Seago Manor in June 2001.
Jones has not presented any evidence to refute Defendant's statement that she was terminated because her job was eliminated or Defendant's representations that she was never replaced by a new employee and that her duties where assumed by other employees at Seago Manor. Therefore, Plaintiff has failed to discharge her burden of showing that Defendant's reasons for its employment actions were pretextual and a cover-up for prohibited retaliation. As such, Defendant is entitled to summary judgment on this claim as well.
III. Conclusion
It is therefore ORDERED that Defendant's Motion for Summary Judgment is GRANTED and the court hereby DISMISSES with prejudice Plaintiff's Complaint.