Opinion
Civil Action No. SA-03-CA-1271-XR.
December 16, 2004
ORDER
On this date the Court considered Defendant's motion for summary judgment. Plaintiff alleges sexual discrimination and retaliation under Title VII and various state law causes of action. Because the Court finds no adverse employment action was taken against Plaintiff by Defendant, the Court GRANTS Defendant's motion (docket no. 18) as to Plaintiff's claims of sexual discrimination and retaliation. Defendant's motion does not address Plaintiff's state law causes of action as pled in her Original Complaint and, as such, those claims remain pending.
I. Factual and Procedural Background
Plaintiff, a 51 year old female, began working for Defendant as a "lineman" in 1974 and was transferred to a position of "cable splicing technician" in 1976. It appears that Plaintiff remained a cable splicing technician until her retirement in August 2003. Plaintiff was the only female member of her "crew." On June 15, 2001, Rodney Lawless became the supervisor of Plaintiff's crew. Prior to Lawless's assignment, Plaintiff had alleged sex discrimination against Defendant, through Plaintiff's previous supervisors, and had filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Plaintiff claims that immediately after Lawless's assignment, Lawless became verbally abusive towards her and treated her differently than he treated her male counterparts. On December 28, 2001, Plaintiff filed a lawsuit against Defendant in the Western District of Texas, based on her previous charges of discrimination. While this suit was pending, Plaintiff claims that Lawless's conduct towards her continued to be verbally abusive and discriminatory. Specifically, Plaintiff claims that Lawless yelled at her numerous times in front of her co-workers, physically blocked her way when she tried to enter his office and bumped her chest, and told her to the effect that she was trying to ruin his job and that if she would drop her suit, things would be better for her. Plaintiff asserts that none of her male counterparts were treated similarly. Plaintiff also claims that Lawless arrived at her house on a day in which she called in sick, ostensibly to deliver certain forms, and then changed the compensation for her illness days to "denied disability with no pay" without her authorization.
It's unclear when this took place, as the only evidence of this occurrence is Plaintiff's deposition testimony.
Plaintiff further claims that in May 2002 Lawless assigned a 2000 model work vehicle to her that did not have an invertor or generator, or air conditioning, despite the availability of newer model trucks. Plaintiff's male counterparts were assigned 2002 model vehicles that included an invertor and/or generator and air conditioning. Additionally, Plaintiff claims that Lawless denied her the use of a "bucket truck" to perform an aerial job and instead insisted on her using a ladder. Plaintiff claims that her male counterparts were never denied a "bucket truck." Plaintiff asserts that her productivity suffered because of these incidents.
It is unclear at what point this incident took place.
On or about June 20, 2002, Lawless observed Plaintiff and a co-worker taking a coffee break at a restaurant early in the morning before they went out to their respective job sites. According to Lawless, Plaintiff and her co-workers had been told previously that they should not take coffee breaks prior to going out to their job sites. According to Plaintiff, this practice was a common occurrence among the crew and Lawless had in fact joined in these coffee breaks in the past. On this occasion, however, Lawless waited in the parking lot of the restaurant to confront Plaintiff and her co-worker. According to Lawless, when Plaintiff's co-worker, Joe Vasquez, came out of the restaurant, Lawless told him "you know you-all weren't supposed to be doing this," and Vasquez responded "I know." Plaintiff then came out of the restaurant and, according to Lawless, came over to him and began yelling at him, waving her finger at him, and stated "I'll have your job." The verbal altercation continued and then Plaintiff got in her truck and drove away. Plaintiff denies ever raising her voice, sticking her finger at Lawless, or threatening him. Lawless reported this incident and Plaintiff was suspended without pay pending an investigation. According to Lawless, Plaintiff was suspended, not for taking an unauthorized coffee break, but for "being insubordinate" and using obscene language. According to Plaintiff, however, this entire incident was in retaliation for filing a claim with the EEOC ten days previously, charging Lawless with discrimination. Plaintiff was reinstated with full back pay and placed on "Decision Making Leave." Plaintiff never returned to work after her suspension and leave. Plaintiff went out on short-term disability leave for anxiety and depression on August 12, 2002. In late August 2002, Plaintiff was offered reinstatement by Defendant, including a transfer to another work site under a new supervisor. Plaintiff was told that this would be her final chance to maintain her employment. Within a matter of days, Plaintiff checked herself into a rehabilitation center on the advice of her doctor and went on long-term disability leave. According to Plaintiff, on the advice of her doctor Plaintiff took early retirement in August 2003 and went on Social Security disability.
Another co-worker of Plaintiff, Albert Arias, testified that he had never seen Plaintiff act violent toward another employee or management, and it would be out of character for her to do so. There is no indication, however, that Arias was present during the June 20 incident.
Decision Making Leave is apparently the final disciplinary step in Defendant's process, whereby the employee is given an opportunity to decide whether she will stay with the company and come back after a period of time away.
Plaintiff filed this action on December 18, 2003. Though not crystal clear, Plaintiff's Original Complaint alleges at least seven causes of action. None of Plaintiff's causes of actions are labeled other than numerically, and do not set forth the specific cause of action being sued under. After examining the complaint, it appears that Plaintiff has set forth two federal causes of action, sex discrimination and retaliation under Title VII, and five Texas causes of action, including negligent misrepresentation, negligent entrustment, assault, negligent retention, and intentional infliction of emotional distress. Defendant moved for summary judgment on September 24, 2004, addressing only Plaintiff's sex discrimination claim. Defendant argues that there is no evidence of an adverse employment action or of disparate treatment against Plaintiff. In response, Plaintiff points out that Defendant does not address her retaliation or state law claims. In Defendant's Reply to Plaintiff's Response, Defendant asserts that the specific causes of action are difficult to ascertain, but that the argument in its motion for summary judgment adequately addresses Plaintiff's retaliation claim as well. Defendant does not address Plaintiff's state law claims in its Reply.
A classic example of the "shotgun approach" to pleading discouraged by the Courts of Appeals. See Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 869 (5th Cir. 1988); Southern Leasing Partners, Ltd. v. McMullan, 801 F.2d 783, 788 (5th Cir. 1986); Rodgers v. Lincoln Towing Serv., Inc., 596 F. Supp. 13, 27 (N.D. Ill. 1984), aff'd 771 F.2d 194 (7th Cir. 1985) ("[T]his `shotgun approach' to pleadings . . . where the pleader heedlessly throws a little bit of everything into his complaint in the hopes that something will stick, is to be discouraged.").
II. Summary Judgment Standard
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The moving party has the burden of showing that there is no genuine issue as to a material fact and that the moving party is entitled to judgment as a matter of law. Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir. 1995). Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. Fields v. City of S. Houston, 922 F.2d 1183, 1187 (5th Cir. 1991). All justifiable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In making this determination, the court will review the evidence in the record and disregard the evidence favorable to the moving party that the jury is not required to believe. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 135 (2000). In order for a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986). If the record, viewed in this light, could not lead a rational trier of fact to find for the party opposing the motion, summary judgment is proper.
III. Analysis
Under Title VII, in order to allege a sexual discrimination claim, a plaintiff must first establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). "The burden of establishing a prima facie case of disparate treatment is not onerous." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To establish the prima facie case, a plaintiff must show (1) she was a member of a protected class; (2) she was qualified for her position; (3) an adverse employment action was suffered; and (4) male employees were treated differently, and more favorably. Travis v. Bd. of Regents of the Univ. of Texas System, 122 F.3d 259, 263 (5th Cir. 1997). Similarly, to establish a cause of action for retaliation, a plaintiff must establish that (1) she was engaged in a protected activity; (2) suffered an adverse employment action; and (3) the employer took the action because the plaintiff engaged in the protected activity. Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992). Defendant argues that there is no genuine issue of material fact as to whether Plaintiff has suffered an adverse employment action, as Plaintiff voluntarily took early retirement despite an offer of reinstatement and a lateral transfer. Plaintiff argues that there is a genuine issue of material fact as to whether she was constructively discharged.
A. Adverse Employment Action
Plaintiff's employment was not terminated, rather she voluntarily elected to take early retirement. Therefore, there are only two possible arguments as to an adverse employment action. First, Plaintiff was suspended without pay in June 2002. However, it is uncontroverted that Plaintiff was reinstated with full back pay. As such, this does not constitute an adverse employment action. Thus, Plaintiff's case rests on her argument that she was constructively discharged.
Plaintiff's Original Complaint states that "Plaintiff was reinstated with full back pay." No evidence has been contradicted to dispute this assertion.
Defendant initially argues that Plaintiff has not pled a constructive discharge argument. However, Plaintiff's complaint alleges that she was "constantly harassed and threatened," that "Lawless used violence towards [Plaintiff] by threatening her with termination, yelling and screaming at her in close proximity to her, standing in close proximity to [her], waving paperwork in [her] face, and glaring at [her]," and that Defendant's conduct was "egregious and intentional." Plaintiff's allegations are therefore sufficient to give Defendant notice that she would argue a constructive discharge.
Plaintiff argues a constructive discharge in that the actions of Lawless caused her such severe anxiety and depression that she was forced to take early retirement rather than return to work. She argues that a reasonable person would feel forced to resign in such a situation. "The general rule is that if the employer deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation, then the employer has encompassed a constructive discharge. . . ." Bourque v. Powell Elec. Mfh. Co., 617 F.2d 61, 65 (5th Cir. 1980). "Proof is not required that the employer imposed these intolerable working conditions with the specific intent to force the employee to resign." Jurgens v. E.E.O.C., 903 F.2d 386, 390 (5th Cir. 1990). An employee need only offer evidence that the working conditions were so intolerable that a reasonable employee would feel compelled to resign. Barrow v. New Orleans Steamship Assoc., 10 F.3d 292, 297 (5th Cir. 1994). Among the factors to consider when determining whether a reasonable employee would feel compelled to resign includes badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation or early retirement, reduction in job responsibilities, and offers of early retirement on terms that would make the employee worse off whether the offer was accepted or not. Id.
Plaintiff argues that Lawless's constant yelling and harassment and the disparate treatment between herself and her male co-workers caused her such anxiety and depression that she was compelled to take early retirement. However, Plaintiff has offered no evidence that a reasonable person would feel compelled to act as Plaintiff did. "Hostility from fellow employees . . . and resulting anxiety, without more, do not constitute ultimate employment decisions, and therefore are not the required adverse employment actions. Mattern v. Eastman Kodak Co. 104 F.3d 702, 707 (5th Cir. 1997). "Likewise, . . . verbal threat[s] of being fired, . . . and being placed on `final warning' [or Decision Making Leave], do not constitute `adverse employment actions' because of their lack of consequence." Id. at 708. The conduct complained of by Plaintiff amounts to little more than that declared insufficient by the Mattern court to qualify as creating a constructive discharge. The conduct alleged of Lawless is analogous to Spence v. Maryland Casualty Co., 995 F.2d 1147 (2nd Cir. 1993). In Spence, the plaintiff complained that constant beratement and threats of firing had caused him to develop health problems and to eventually apply for long-term disability benefits and finally to elect early retirement on the advise of his doctor. Id. at 1152-54. The plaintiff in Spence was offered reinstatement within a reasonable time, and was told that he would no longer be supervised by the same person of whose conduct he had complained. Id. at 1154. The plaintiff, however, chose not to return to work on the advise of his doctor. Id. The Second Circuit stated that
"the fact that an employee develops stress-related ill health from the demands of his voluntarily undertaken position or from criticisms of his performance, and as a result determines that health considerations mandate his resignation, does not normally amount to a constructive discharge by the employer. Unless the evidence is sufficient to permit a rational trier of fact to find that the employer deliberately created working conditions that were so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign, a claim of constructive discharge should be dismissed as a matter of law. . . ."Id. at 1156 (quotations and citations omitted). As in Starnes, Plaintiff has not provided evidence of a constructive discharge. Plaintiff's evidence of hostility, threats, and yelling by Lawless, as well as evidence that Lawless resorted to confronting her outside a restaurant about a coffee break, changed the designation of certain illness days, blocked her path into his office and apparently bumped her chest with his chest, and visited her home to check whether Plaintiff was actually sick is not sufficient to establish that a reasonable person would have felt compelled to resign in Plaintiff's situation.
Fatal to Plaintiff's claim is the fact that Plaintiff was offered reinstatement with full back pay and a lateral move away from Lawless as her supervisor. A purely lateral transfer is not an adverse employment action. Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875, 879-80 (5th Cir. 1999). The offer of this transfer to another work site is evidence that Defendant was attempting to accommodate Plaintiff's problems with Lawless; problems that were evidenced by Plaintiff's filing of an EEOC complaint alleging discrimination. Plaintiff was offered the opportunity to return to work in a situation that was designed to remedy the problems she had complained about. There is no evidence that this move was a reduction in job responsibilities or a reassignment to menial or degrading work. See Guthri v. Tifco Indus., 941 F.2d 374, 377 (5th Cir. 1991); Wilson v. Monarch Paper Co., 939 F.2d 1138, 1145 (5th Cir. 1991). Nor is there evidence of a required move or a pay decrease. See McCann v. Litton Sys., Inc., 986 F.2d 946, 952 (5th Cir. 1993) (holding that a "slight decrease in pay coupled with a loss of some supervisory responsibilities" is insufficient to constitute a constructive discharge). The evidence establishes that Plaintiff was offered the opportunity to return to work, and that she voluntarily chose to take early retirement. Plaintiff's argument that she had no other choice due to her disability is not supported by case law. As Plaintiff has pointed to no other instances that might constitute adverse employment actions, the Court finds that there is no genuine issue of material fact as to that element of Plaintiff's Title VII claims. Because there was no adverse employment action, Plaintiff cannot establish a Title VII claim for either sexual discrimination or retaliation.
B. Plaintiff's State Law Claims
While Plaintiff's Original Complaint is anything but clear, a close reading of the complaint indicates that Plaintiff has alleged various Texas causes of action. As labeled in the Original Complaint, the "Third Cause of Action" alleges negligent misrepresentation under Texas law. The "Fourth Cause of Action" alleges negligent entrustment. The "Sixth Cause of Action" alleges assault and negligent retention. And the "Seventh Cause of Action" alleges intentional infliction of emotional distress. Plaintiff pointed out in her Response to Defendant's motion for summary judgment that the motion did not address her retaliation claim or her state law claims. Defendant's Reply addresses the claim for retaliation, but does not address the state law claims. Defendant was given the opportunity to address these claims and chose not to do so, and as the time for the filing of dispositive motions has passed, Defendant does not now claim entitlement to summary judgment on Plaintiff's state law claims. As such, Plaintiff's state law claims remain set for trial.
IV. Conclusion
Plaintiff has sued Defendant, her former employer, for sexual discrimination and retaliation in violation of Title VII, and for various state law causes of action. Plaintiff complains of her former supervisor's conduct, including constant yelling and threats, coming to her house to make sure she was sick on a day she took an illness day, changing the designation of days she took off from work, blocking her path into his office and bumping her chest with his chest, and confronting her outside a restaurant for taking an unauthorized, but generally accepted coffee break before heading to a job site. Plaintiff argues that these actions were done in large part in retaliation for complaints of discrimination she filed with the Equal Employment Opportunity Commission and that these actions caused her such severe anxiety and depression that she became disabled and was forced to take early retirement on the advice of her doctor. The Court finds that Plaintiff has offered no evidence of an adverse employment action. Plaintiff's supervisor's actions do not constitute evidence of conduct that would make a reasonable employee feel compelled to resign. In addition, Plaintiff was offered a lateral move within the company once she was able to return to work, but chose early retirement instead. Therefore, there is no genuine issue of material fact as to an element of Plaintiff's Title VII sexual discrimination or retaliation claims, and summary judgment is proper for Defendant on those claims. Defendant's motion for summary judgment is GRANTED (docket no. 18) as to the sexual discrimination and retaliation claims. Defendant has not, however, moved for summary judgment on Plaintiff's state law claims contained in her Original Complaint. This despite warning to the contrary in Plaintiff's Response to Defendant's motion for summary judgment. Thus, Plaintiff's state law causes of action remain set for trial. However, the parties have agreed to mediate the remaining state law claims. As such, the Court shall VACATE the trial setting of Monday, January 3, 2005, and the parties are ORDERED to notify the Court as to the outcome of mediation. All other pending motions shall be held in abeyance pending the outcome of mediation.