Opinion
No. 00-3203, Section "K"(1)
November 13, 2001
Before the Court is a Motion for Summary Judgment filed by defendant Shaw Constructors, Inc. ("Shaw") (Doc. No. 10). Shaw seeks to dismiss plaintiff Wanda Mark's Title VII claims of sexual harassment and retaliation. Having reviewed the pleadings, memoranda, exhibits and deposition testimony, the Court finds merit in the motion with respect to the sexual harassment issue; however, there are questions of fact which preclude the entering of judgment with respect to the retaliation claim.
Background
Marks was hired as a laborer by Shaw at the Orion refinery in Norco, Louisiana on March 18. 1999. About a month later, on April 27, 1999, she was promoted to the warehouse where she earned internal classification "WA-i" and a commensurate raise to $9.00 an hour. In the first part of May of 1999, her supervisor then offered her a $5.00 an hour raise; for this increase in salary, she was asked to clean the management trailers. On May 3, 1999 while plaintiff was mopping the floor of the purchasing trailer, she encountered co-worker Matt Jolissaint in the back of the trailer where he allegedly rubbed dirt off of her backside. Plaintiff contends that by this action, Jolissaint sexually harassed her rubbing her buttocks rather than brushing dirt off. She reported this incident on May 6, 1999 to George Mahan, her supervisor.
Defendant contends that Jolissaint was asked to apologize to the plaintiff and was given an admonition; however, the plaintiff maintains that no such apology was made simply because reference to it does not appear in defendant's paperwork.
Plaintiff contends that shortly after she reported the incident, Shaw sent what she assumed were two lawyers to meet with her. The so-called "lawyers" asked her what happened, took notes and assured her that her complaint of harassment would not affect her job. Plaintiff had no problem with the manner in which they handled her complaint. In actuality these persons were two Shaw employees, Louis Dunnigan, Vice-President of Construction, and John McCurry, Human Resource Manager.
Nonetheless, Marks claims that Nicky Gaidry ("Gaidry") warned her that because she complained about her harassment, her job might be in jeopardy. Gaidry complained that she had terminated for having made a similar complaint and then rehired in a lesser position.
Dunnigan and McCurry subsequently asked her to sign certain papers; however, she had already engaged counsel. Consequently, she refused to sign them. Plaintiff also contends in an affidavit that George Mahan was cold to her after her reporting the incident. Additionally she claims that Brian Guillot and Dave Wilkinson told her that she would be laid off because of her complaint. In the same affidavit, Marks claims that Guillot told her she would be laid off because of her complaint on four or five occasions.
On May 28, 1999, plaintiff and seven other warehouse employees with the same "WA-I" classification were released. Shaw claims this action was taken because of a general reduction in workforce, and the person who made the ultimate employment decision had no knowledge of the sexual harassment complaint. Plaintiff disputes this fact.
Marks subsequently filed the instant lawsuit containing 2 claims: (1) that she was sexually harassed while on the job on May 3, 1999, in violation of Title VII, 42 U.S.C. § 2000e and (2) that Shaw retaliated against after she reported the alleged harassment to company officials her by laying her off from her job. As noted, Shaw seeks judgment dismissing both claims by the instant motion. The Court will now address the gravamen of the motion.
Analysis
Sexual Harassment Claim
As this Court has stated before:
sexual harassment which does not culminate in an adverse employment decision must, to create a hostile work environment, be severe or pervasive. Incidental, occasional or merely playful sexual utterances will rarely poison the employee's working conditions to the extent demanded for liability. Discourtesy or rudeness, "offhand comments and isolated incidents(unless extremely serious) will not amount to discriminatory changes in "terms and conditions of employment.'" Faragher [v. City of Boca Raton, 524 U.S. 774, ____, 188 S.Ct. 2275, 2283.Green v. Administrators of the Tulane Educational Fund, 1999 WL 203262 (E.D.La. 1999). As noted by Judge Sear in Baker v. Starwood Hotel and Resort Worldwide, Inc., 1999 WL 397405 (E.D.La. June 15, 1999):
The Fifth Circuit in Shepherd v. Comptroller of Public Accounts, [168 F.F.3d 871 (5th Cir. 1999)] held that no sexual harassment occurred when a co-worker made crude remarks about plaintiffs anatomy, touched her arm on several occasions, rubbed her shoulder, and motioned for her to sit on his lap during a meeting. [footnote omitted]. In Guidry v. Zale Corporation, [ 969 F. Supp. 988 (M.D.La. 1997)], the court granted defendant's summary judgment dismissing plaintiffs claims and held that the conduct complained of was not severe or pervasive enough to constitute sexual harassment. In Guidry, 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. [footnote omitted].Id at *3 From this analysis, it is clear that the allegation of sexual harassment must fail.
Jollisaint's action, although perhaps offensive, is not the type of extreme conduct that would prevent Marks from succeeding in the workplace. "Title VII was only meant to bar conduct that is so severe and pervasive that it destroys a protected class member's opportunity to succeed in the workplace." Shepherd v. Comptroller of Public Accounts of the State of Texas, 168 F.3d 871, 874 (5th Cir. 1999) citing Weller v. Citation Oil Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996), cert. denied, 519 U.S. 1055, 117 s. CT. 682 (1997). This one isolated incident which lasted at most 30 seconds was at best an attempt by a co-worker to be helpful or was at worst, under the pretext of being helpful, sexually offensive conduct. Under any circumstances, Marks was not subjected to severe and pervasive conduct that would constitute sexual harassment under Title VII. Marks has not demonstrated a contested issue that the alleged harassment created a hostile or abusive working environment. Shaw's motion will be granted on this issue.
Retaliation Claim
To prevail on this claim, Marks would have to establish that:
(1) the activity engaged in by the plaintiff is protected under Title VII, (2) plaintiff was subjected to an adverse employment action, and (3) there is a causal link between the protected activity and the adverse employment action.Douglas v. DynMcDermott Petroleum Operations Co. 144 F.3d 364, 372 (5th Cir. 1998), cert. denied, 119 S Ct. 798 (1999). The burden shifting framework enunciated in McDonnell-Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817 91973) applies. Thus, assuming that Marks could establish a prima facie case of retaliation, the burden of production then shifts to Shaw to articulate legitimate, non-retaliatory reasons for its actions. Then the burden shifts back to Marks to prove that the real motive behind the action was retaliation. Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996).
It is clear that plaintiff is in the protected class and that she was subjected to an adverse employment action. However, the Court finds that there is a question of fact as to whether there is a causal link between the protected activity and the adverse employment action. The affidavit of Yuri Johnson states that Brian Guillot, Mark's supervisor, stated on several occasions that she was going to be terminated because of her complaint. Plaintiff also testified in her deposition that Guillot told her that the company was going to get rid of her because of a complaint of sexual harassment. (Dep. of Marks at 134-135). Additionally, there are two "pink slips"--one which defendant presented that states "ROF" (reduction in force) as the reason for the termination and another presented by plaintiff which gives no reason. Although the deposition of Dave Surber is to the effect that the names of the persons that were laid off were provided by Orion (e.g. — George Mahan) (Dep. of Surber at 36-37) and that Surber had no knowledge of any sexual harassment complaint, such testimony must be evaluated by the trier of fact in light of the countervailing evidence noted.
The test to determine whether Guillot's remarks have probative value with regard to causal connection is that the remarks must be:
"'(1) related [to the protected class of persons of which the plaintiff is a member]; (2) proximate in time to the terminations; (3) made by a n individual with authority over the employment decision at issue; and (4) related to the employment decision at issue.'". . . Where "[c]omments are vague and remote in time [they] are insufficient to establish discrimination. In contrast, specific comments made over a lengthy period of time are sufficient." Brown, 82 F.3d at 655-546.Wallace v. Methodist Hospital System, _____ F.3d ____, 2001 WL 1267292 (Nov. 7, 2001) citing Krystek v. Univ. of So. Miss., 164 F.3d 251, 255 (5th Cir. 1999). Plaintiff should not infer that because the Court is denying this motion for summary judgment as to the retaliation claim that the testimony to be given in Court by the affiants will necessarily meet this test set forth in Wallace.
Summary judgment is proper only if "there is no genuine issue as to any material fact and. . . .the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c)
The party seeking summary judgment bears the exacting burden of demonstrating that there is no actual dispute as to any material fact in the case . . . in assessing whether the movant has met this burden, the courts should view the evidence introduced and all factual inferences from that evidence in the light most favorable to the party opposing the motion . . . . All reasonable doubts about the facts should be resolved in favor of the non-moving litigant . . . . Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the factual inferences that should be drawn from these facts . . . . If reasonable minds might differ on the inferences arising form undisputed facts, then the court should deny summary judgment.Martin v. John W. Stone Oil Distributor, Inc. 819 F.2d 547, 548 (5th Cir. 1987) (quoting Impossible Electronic Techniques, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026, 1031 (5th Cir. 1982). It is for this reason the Court denies this portion of the motion. Accordingly,
IT IS ORDERED that Shaw Constructors, Inc.'s Motion for Summary Judgment is GRANTED as to the claim for sexual harassment and DENIED as to the claim of retaliation.