Opinion
Case Number: 4:99cv294-P-D
September 15, 2000.
MEMORANDUM OPINION
This case is presently before the Court on defendant's motion for summary judgment [25-1]. The Court, having considered the motion, the response thereto, and the authorities cited, is prepared to rule. The facts of the case are as follows:
FACTUAL BACKGROUND
Laura Weems was hired by the Delta Correctional Facility ("DCF") on June 17, 1996. DCF, a prison located in Greenwood, Mississippi, is operated by the defendant, Corrections Corporation of America. While employed with DCF, she worked in the food services department, where she supervised and monitored prisoners and performed other tasks assigned by her supervisors. Weems claims that in March of 1997, her supervisor, Lawrence Feldkamp, "patted" her on the buttocks. However, she did not report this incident. In April of 1997, she claims that Feldkamp "came on to [her] real bad in front of everybody and embarrassed [her]" at a company picnic. Again, she did not report this incident. In January of 1998, Weems asserts that Feldkamp visited her house and discussed his old girlfriend and how he was "a good lover and everything." Additionally, she claims that Feldkamp asked her for sex on this occasion. As he was leaving Weems' house, he "reached around and started kissing on [her] and hugging on [her]." She told him to leave her house, which he did. Weems does not remember reporting this incident.
In March of 1998, Weems reported to Assistant Warden Donald Radford and Personnel Coordinator Rosemary Woodall that Feldkamp had visited her house and had asked for sex. However, she did not file a formal grievance against Feldkamp. Woodall informed DCF Warden Donald Grant about Weems' allegation, and Grant met with Feldkamp to counsel him and inform him of the defendant's policy regarding sexual harassment.
Also in March of 1998, Feldkamp sent Weems perfume through the mail, which she kept "for evidence." She does not remember when she reported this to the defendant. On March 31, 1998, Feldkamp visited Weems at her home again, and he asked her to have sex with him. Weems claims that she "got ugly" and "real angry" and told him to leave, which he did. The next month, Feldkamp sent her a gown through the mail, which she kept "for evidence." Again, she does not recall when she reported this incident. In April or May of 1998, Feldkamp told Weems that his wife was going to be out of town, so he would go over to her house, with some beer, and "rub baby oil all over [Weems]." She told him, "Heck, no," and he did not visit her house. About this same time, he patted her on the buttocks at work, but she does not remember if she reported this incident.
Weems recalls that she met with Radford and Woodall again to discuss Feldkamp's conduct; however, she does not remember the date or the substance of the conversation with them. In any event, she met with Feldkamp following the meeting with Radford and Woodall sometime in May of 1998. After the meeting with Feldkamp, the alleged harassment ended.
Throughout Weems' employment at DCF, she received numerous evaluations. Her first evaluation in February of 1997 indicated that she was "meeting expectations;" thus, her salary was increased. Again, in February of 1998, her evaluation reflected that she was "meeting expectations," and her salary was again increased.
Despite her positive evaluations, Weems also received disciplinary warnings about various incidents that occurred during her employment. In May of 1997, she was verbally warned for failing to follow the orders a shift supervisor. In April of 1998, she received a written reprimand because she did not follow the orders of her supervisor; additionally, the reprimand stated that she attempted to provoke a disagreement with staff and management in the presence of the inmates. Also in April of 1998, she was suspended for three days for disregarding a supervisor's instructions and lying to her supervisors. In May of 1998, she was suspended for five days for arguing with another employee in the presence of the inmates. That same month, she received a written reprimand for failing to "shake down" an inmate in accordance with the defendant's policies. Furthermore, when confronted with the issue, she cursed at her supervisor. On two occasions in August of 1998, she did not follow her supervisor's orders and cursed at her supervisor. Then, on August 28, 1998, she was terminated as a result of her continued employment related misconduct.
After her termination, she submitted a grievance in accordance with the defendant's grievance procedure. In her grievance, she complained of Feldkamp's sexual harassment. After an investigation into the matter, her termination was upheld. On November 5, 1998, she filed a charge with the Equal Employment Opportunity Commission ("EEOC"). Her complaint with the EEOC alleged that she had been sexually harassed, and that her termination was retaliatory.
SUMMARY JUDGMENT STANDARD
Summary judgment should be entered 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." Rule 56(c), Federal Rules of Civil Procedure. The party seeking summary judgment has the initial burden of demonstrating through the evidentiary materials that there is no actual dispute as to any material fact in the case. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On motion for summary judgment, "[t]he inquiry performed is the threshold inquiry of determining whether there is a need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In determining whether this burden has been met, the court should view the evidence introduced and all factual inferences from that evidence in the light most favorable to the party opposing the motion. Id. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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, supra, at 322.
The summary judgment procedure does not authorize trial by affidavit. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict." Anderson v. Liberty Lobby, Inc., supra, at 255. Accordingly, a court may not decide any factual issues found in the record on motion for summary judgment, but if such material issues are present, the court must deny the motion and proceed to trial.
Impossible Elec. Tech. v. Wackenhut Protection Systems, 669 F.2d 1026, 1031 (5 Cir. 1982); Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5 Cir. 1981); Lighting Fixture Electric Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1211 (5 Cir. 1969).
Under the provisions of Rule 56(e), Federal Rules of Civil Procedure, a party against whom a motion for summary judgment is made may not merely rest upon his pleadings, but must, by affidavit, or other materials as provided in Rule 56, inform the court of specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, supra, at 324. The facts stated in uncontradicted affidavits or other evidentiary materials must be accepted as true. However, the moving party must still show that he is entitled to judgment on those facts as a matter of law, and if he fails to discharge that burden he is not entitled to judgment, notwithstanding the apparent absence of a factual issue. 6-Pt. 2, Moore, Federal Practice (2d Ed.), ¶ 56.22[2], p. 56-777.
LEGAL ANALYSIS
A. Are the Plaintiff's Claims Time-Barred?
Weems filed a charge of discrimination with the EEOC on November 5, 1999. The defendant has moved for summary judgment, claiming, among other things, that any allegations of misconduct occurring prior to May 10, 1998 (180 days prior to the charge filing), are time-barred. Title VII requires that the plaintiff file a complaint with the EEOC within 180 days after the alleged unlawful employment practice occurred. Delaware State College v. Wicks, 449 U.S. 250, 258 (1980).
Weems maintains, however, that the issue is not time-barred, because her EEOC complaint alleged "continuing violations" of harassment. The continuing violation theory allows a plaintiff to establish discrimination through a series of related acts, even if one or more of the acts falls outside the limitations period. Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997). The Fifth Circuit has held that "[t]he focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights." Id., citing Berry v. Board of Supervisors of LSU, 715 F.2d 971, 979 (5th Cir. 1983). In order to show that a continuing violation occurred, Weems must demonstrate (1) that some "independent actionable conduct" occurred during the statutory period, and (2) that she did not know and could not reasonable be expected to have realized that the harassment was itself actionable within 180 days of the date that she filed her charge with the EEOC. See Glass v. Petro-Tex Chemical Corp., 757 F.2d 1554, 1561 (5th Cir. 1985).
This Court if of the opinion that Weems was clearly aware that the alleged harassment was in violation of her rights. She stated in her deposition that she first viewed Feldkamp's actions as harassing in April of 1997, when he came on to her at a picnic, and she felt at that time that "something should be done about it." Yet she waited a year and a half before she filed a complaint with the EEOC. Additionally, in the spring of 1998, she kept the perfume and gown that Feldkamp allegedly sent to her "for evidence." Weems did not exercise her rights in filing her charge within 180 days of the alleged harassment, and she should now be barred from relying on these alleged acts of harassment to support her claim before this Court.
However, since Weems has alleged that Feldkamp's harassment of her created a hostile work environment, this Court will analyze the alleged incidents to determine the severity and pervasiveness of the misconduct.
Was the Alleged Conduct Severe and Pervasive?
In order to establish a hostile work environment, Weems must allege that the harassment was "sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment." Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 67 (1986). To be actionable under Title VII, the harassment must be subjectively and objectively offensive so that a reasonable person would find it hostile or abusive, and the victim must perceive it to be hostile and abusive. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998).
Was the Alleged Conduct Objectively Severe and Pervasive?
To determine whether the alleged conduct is both objectively and subjectively hostile, the Court is directed to consider all the circumstances, "including the frequency of the alleged conduct; its severity; and whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 594 (5th Cir. 1995).
Frequency
The alleged harassment began in spring of 1997 and continued for the next year and a half. Weems claims that Feldkamp "came on" to her at a company picnic. He inappropriately touched her buttocks two times at work, and he told off-color jokes and remarks to Weems and other co-workers. He visited Weems' home at least eight times and attempted to kiss her. However, taken all together, these dozen or so acts of alleged harassment, which took place over a one and a half year time period, are not so frequent in nature as to create a hostile work environment.
Severity
Weems also maintains that Feldkamp's harassment of her was so severe that it created a hostile work environment. With regard to the alleged incidents that took place at Weems' house, this Court notes that all of these incidents took place away from the place of employment; thus, it is doubtful that such incidents would have reasonably affected her work performance. See Butler v. Ysleta Independent School Dist., 161 F.3d 263, 270 (5th Cir. 1998). Additionally, Weems admits that on each occasion that Feldkamp visited her home, she asked him to leave, which he promptly did. Also, Weems acknowledges that several of these visits were inoffensive to her; for instance, on one occasion he helped her clean out her shed, on another he came to drop off a couch, and on another Marchelle Moorman accompanied him. Interestingly, on yet another visit, Feldkamp and his wife visited Weems at her home, and Feldkamp's wife fixed dinner. Clearly, according to Weems herself, the majority of Feldkamp's visits to her home were completely innocent.
With regard to the alleged conduct that took place at work, while the Court does not condone telling off-colored jokes and making lewd comments, "workplace harassment, even harassment between men and women, is [not] automatically discrimination because of sex merely because the words used have sexual content or connotations." See Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998). Weems claims that Feldkamp, in the presence of co-workers, told an off-color remark directed at her. However, this incident, while rude, was not so severe as to alter her work environment. As Weems admits, this comment was made in the presence of others, so it could not have reasonably been considered sexually threatening.
Affect on Plaintiff's Employment
Most of Feldkamp's alleged harassment occurred at Weems' home, away from work. As a result, Weems has difficulty in establishing that his visits to her house affected her working conditions. Indeed, while she may have felt annoyed or irritated by his visits, she continued to enjoy her work at the food services department, even though Feldkamp was there. Furthermore, while Weems may have encountered some problems working with Feldkamp because of the manner in which he allegedly harassed her at work, she did not suffer any discrimination with regard to her compensation, duties, benefits, or any other term or condition of her employment.
Did Plaintiff Subjectively Perceive the Alleged Conduct to be Severe and Pervasive?
The defendant claims that since Weems did not report Feldkamp's behavior until March of 1998, she did not subjectively perceive the conduct to be severe and pervasive. While Weems asserts that she did complain about the harassment several times, it is evident throughout her deposition that she is not sure when, or if, she reported the behavior. As such, the Court is not convinced that she subjectively perceived the conduct to be severe and pervasive, even though she could have possibly perceived the conduct to be inappropriate.
Did Defendant Take Prompt Remedial Action?
An employer will be liable for creating a hostile work environment only if an employee can establish that the employer failed to take prompt remedial action after receiving the employee's complaint. Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262-67 (5th Cir. 1999). When Weems complained of the Feldkamp's conduct in the spring of 1998, she did not request a transfer from the food services department. Additionally, while she reported his conduct to Radford and Woodall, she did not file a formal grievance against Feldkamp, as is required according to the defendant's policy. Even though no grievance was filed, Radford informed the warden, Don Grant, of possible sexual harassment. Immediately thereafter, Grant met with Feldkamp, told him of the allegations, and reiterated the policy regarding sexual harassment.
According to Weems, the harassment temporarily ended; however, Feldkamp allegedly visited her house about a month later. When she told him to quit coming to her house, the harassment ceased altogether.
Based on the evidence presently before the Court, the Court is of the opinion that the defendant has taken steps to investigate and remedy any possible sexual harassment directed toward Weems. As a result, the defendant should not be liable for the alleged harassment.
Does Plaintiff State a Cause of Action for Retaliation?
Title VII makes it an "unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a). In establishing a prima facie case of retaliation, a plaintiff must prove that (1) she engaged in activity protected by Title VII; (2) her employer took adverse employment action against her; and (3) a causal connection exists between the protected activity and the adverse employment action. Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997). If the plaintiff succeeds in proving a prima facie case, the burden then shifts to the employer to articulate some legitimate, non-discriminatory reason for the employment action. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Once the employer establishes a legitimate, non-discriminatory reason for its action, the plaintiff must establish that the reason given by the employer was actually a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
With regard to her prima facie case of retaliation, Weems has clearly met her burden in the first two prongs: complaining about a co-worker's sexual harassment of her is clearly protected activity under Title VII, and she was ultimately terminated by her employer. She claims that she complained of the sexual harassment in mid-August and she was terminated two weeks later; thus, she asserts she has sufficiently stated a causal connection to satisfy the third prong of the prima facie case, due to the close proximity of the occurrences. However, she ignores the fact that Don Grant, the warden, first became aware of the allegations of sexual harassment in or around March of 1998. Yet she was not terminated until August 28, 1998. Therefore, she has not convinced this Court that a causal connection exists between her complaining about Feldkamp's conduct and her termination. The Court cannot determine that her termination, which came five months after Grant was aware that she complained about Feldkamp's behavior, was a result of her complaint. As such, she has not established her prima facie case of retaliation, and her retaliation complaint must be dismissed.
Additionally, the defendant maintains that Weems was terminated by her insubordination, which is a legitimate, non-discriminatory reason. After an investigation and review by the disciplinary committee, Weems' termination was recommended because of her continued employment related misconduct (i.e., showing up for work late, cursing, improperly altering a inmate's food tray).
Because this Court is convinced that insubordination, not retaliation, was the reason for Weems' termination, her retaliation claim should be dismissed.
Mississippi Public Policy Claim
Weems also claims that her termination violated Mississippi public policy. As her federal claims have been dismissed, the Court declines to address the Mississippi state law claims. See 28 U.S.C. § 1367(c); United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966).
CONCLUSION
Based on the foregoing analysis, the Court is of the opinion that the defendant's motion for summary judgment [25-1] should be granted. An order will issue accordingly.
THIS, the 14th day of September, 2000.