Opinion
EP-99-CA-266-DB.
April 10, 2000.
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Defendant El Paso Community College's "Motion for Summary Judgment Against Plaintiff Enrique Acosta," filed in the above-captioned cause on February 14, 2000. Plaintiff Enrique Acosta filed a Response to Defendant's Motion for Summary Judgment on March 3, 2000. On March 10, 2000, Defendant filed "Objections to Plaintiff's Summary Judgment Evidence."
Defendant styles its March 10, 2000, pleading "Objections." However, the Court notes that, although Defendant therein generally objects to some of Plaintiff's proffered evidence as hearsay, that pleading is more in the nature of a Reply to Plaintiff's Response. Hence, the Court need not address each objection independently. Rather, the Court takes note of Defendant's general evidentiary objections and subsumes those objections into its consideration of Defendant's Motion for Summary Judgment. Accordingly, the Court summarily overrules Defendant's objections to Plaintiff's evidence.
After due consideration, the Court is of the opinion that the instant Motion should be granted for the reasons set forth below.
BACKGROUND
Plaintiff Enrique Acosta worked for El Paso Community College ("EPCC" or "Defendant") in El Paso, Texas, in June 1997 as a part-time office helper at the Val Verde Campus library's Learning Resource Center. As a student at EPCC, Plaintiff's position was part of a financial aid work-study program. His duties included making signs and photocopies, faxing papers and generally assisting librarians with miscellaneous tasks.
On June 16, 1997, a library secretary, Lucy Rosas ("Rosas"), directed Plaintiff to create a sign to inform patrons that the library would be closed on certain days surrounding the upcoming Fourth of July holiday. Rosas told Plaintiff that he could use a computer program called "Print Shop Deluxe," which he could find on a particular computer in Carlos Humphreys's ("Humphreys") locked office. Humphreys, the head librarian, was not at the library that day, and Plaintiff had used that computer two or three times previously.
Plaintiff looked through the computer's directory and found an entry designated "DL". According to Plaintiff, he believed that the designation "DL" stood for the "Deluxe" in "Print Shop Deluxe." Upon opening that computer file, however, Plaintiff discovered that the file executed a video sequence containing a nude man and woman engaging in sexual intercourse; i.e., pornography. Plaintiff watched the video for two to three seconds and hit the computer's "escape" button to exit the program. According to Plaintiff, he was so "shocked and offended" that he gathered his possessions and left.
According to Plaintiff, he was extremely offended by the video file "because he is a good Catholic who attends church every week and had not been exposed to pornography before."
According to Plaintiff, he related the incident to Rosas the next day believing she could get the offensive file removed. Plaintiff claims that Rosas viewed the computer file and also was shocked. Plaintiff contends that he asked Rosas to have the file removed.
Several weeks later, on July 7, 1997, Plaintiff again used Humphreys's computer for another assignment. On that day, he noticed that the "DL" file remained on the computer and reported the situation to Martha Holguin ("Holguin"), an assistant librarian. At that time, Holguin told Plaintiff that she and Terry Zarate ("Zarate"), another assistant librarian, were preparing a sexual harassment and gender discrimination claim against Humphreys and asked Plaintiff to be a witness in their case.
The following day, Plaintiff accessed the computer again to print out a copy of the computer's directory and duplicate the offensive file to floppy disks. The printed directory indicates that the "DL" file was placed on that computer sometime in 1990 or 1991.
On July 11, 1997, Plaintiff prepared an affidavit with the assistance of attorney David Kern, his attorney in this cause, outlining his experience with the "DL" file. Holguin created a short memorandum dated July 18, 1997, and directed to "Nancy Nelson, Director Humans [sic] Resources," informing Defendant that an anonymous "work-study [employee] discovered some pornographic material on a personal computer in the office of Carlos Humphreys." The memorandum did not provide any detail about the offensive file or its location — i.e., its name and the name of its directory on the computer. Defendant's Human Resources Department received the memorandum on July 24, 1997.
By the end of July 1997, the entire computer from Humphreys's office was removed. Plaintiff continued to work at the library through his financial aid program until the work-study program ended.
On July 9, 1999, Plaintiff, Holguin and Zarate filed an Original Petition in the El Paso County Court at Law Number 5, alleging sexual harassment and gender discrimination by Defendant in violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq. ("Title VII") and the Texas Commission on Human Rights Act ("TCHRA"), Tex. Lab. Code Ann. § 21.001 et seq. Defendant removed the cause to this Court on August 9, 1999.
By Order entered February 16, 2000, the Court dismissed with prejudice Zarate's claims pursuant to her Motion. Similarly, by Order entered March 31, 2000, the Court dismissed with prejudice Holguin's claims against Defendant pursuant to the Parties' Joint Motion to Dismiss.
The instant Motion followed.
STANDARD ON SUMMARY JUDGMENT
Summary judgment should be granted only where "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 any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.Proc. 56(c). The party that moves for summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L. Ed.2d 265 (1986). "If the moving party fails to meet this burden, the motion must be denied, regardless of the nonmovant's response." Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). If the movant does meet this burden, however, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. See, e.g., Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. "If the non-movant fails to meet this burden, then summary judgment is appropriate." Tubacex, 45 F.3d at 954.
When making a determination under Rule 56, factual questions and inferences are viewed in a light most favorable to the nonmovant. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994). The party opposing a motion supported by evidence cannot discharge his burden by alleging mere legal conclusions. See Anderson v. Liberty Lobby, 477 U.S. 242, 248-55, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). Instead, the party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. See id.
DISCUSSION
Plaintiff claims that he was subjected to a sexually hostile work environment, which both Title VII and the TCHRA prohibit. Defendant argues that the single incident in which Plaintiff inadvertently came across a sexually explicit computer file in another employee's computer does not constitute intentional discrimination based on Plaintiff's gender. Defendant also contends that, even if Defendant intended Plaintiff to view the file, such conduct is not sufficiently severe or pervasive to alter the terms, conditions or privileges of Plaintiff's employment. The Court agrees with Defendant.
In order to establish a prima facie case for a hostile work environment claim, Plaintiff must show the following: (1) that he belongs to a protected group; (2) that he was subjected to unwelcome sexual harassment; (3) that the harassment complained of was based upon sex; (4) that the harassment complained of 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. See Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996). That the harassment affected a term, condition or privilege of employment means "that the sexual harassment was so pervasive or severe as to alter [his] conditions of employment and create an abusive working environment" which a reasonable person would find hostile or abusive. Id. Here, Plaintiff fails to present any evidence which shows that there is any contested issue of material fact, and Defendant has shown that it is entitled to judgment as a matter of law because Plaintiff cannot establish the third, fourth and fifth elements of his prima facie case.
First, Plaintiff cannot show that the computer video file was put into the computer or that he viewed it "because of" his sex. In general, "sex-neutral" conduct cannot support a Title VII hostile environment claim. See Farpella-Crosby, 97 F.3d at 806 n. 2. The video Plaintiff describes was "of a man and a woman having sex." There is no evidence to suggest that the fact that Plaintiff is a man led to the video's placement in the computer, his finding it there or his resulting discomfort and offense. Indeed, Plaintiff avers that he told Rosas, a woman, about the video and she too was offended when she saw it. Thus, the fact that Plaintiff is male is inconsequential and, accordingly, Plaintiff cannot meet the third element of his prima facie case.
Second, Plaintiff cannot show that the harassment, if any, affected a term, condition or privilege of employment. Plaintiff did not suffer any tangible loss, such as losing his job. Rather, Plaintiff testified that he continued to work at the library until that financial aid-related job naturally ended. More importantly, Plaintiff cannot show that the single episode wherein he inadvertently opened a computer file on another employee's computer is sufficiently severe or pervasive to effect his job duties. Indeed, the entire episode of which Plaintiff complains lasted some six weeks and Plaintiff only saw the video once. Plaintiff testified that during that period he knew how to avoid seeing the video again and did so avoid it. The fact that Plaintiff may have been particularly affected by the video because of his staunch religious beliefs is not relevant given the objective standard. Similarly, although Plaintiff avers that the alleged harassment "made it very difficult for [him] to continue to perform [his] work-related duties," Plaintiff nowhere states how his duties — photocopying, faxing, creating signs and generally assisting the librarians — were affected. Accordingly, the Court finds that no reasonable person would consider the isolated incident of which Plaintiff complains sufficiently severe or pervasive to alter Plaintiff's working conditions.
Plaintiff's contention that a single episode may constitute a hostile work environment, based on the Tenth Circuit's decision in Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1073 (10th Cir. 1998), while perhaps true in some cases, is not applicable to the circumstances here. In Lockard, several customers verbally and physically abused the female plaintiff, repeatedly pulled her down by her hair and grabbed her breasts. At one point, a customer put his mouth on her breast. While, here, Plaintiff may have been extremely offended, Plaintiff never was physically assaulted or touched inappropriately. Accordingly, the Court finds no similarity between this case and Lockard.
Finally, Plaintiff cannot show that Defendant knew or should have known of what Plaintiff alleges was offensive conduct and failed to take steps to repudiate the conduct or eliminate the hostile environment. Plaintiff cannot simply point to the fact that a computer in Defendant's library contained a sexually explicit file and that Defendant did not stop everything to investigate. In this regard, the Court finds that Defendant's actions with respect to investigation were reasonable under the circumstances, given that Defendant was not aware of the problem until late July 1997. Clearly, Rosas is not Defendant's managing agent as the library's secretary. Thus, her failure to rid the computer of the allegedly offensive file upon Plaintiff's request is insufficient to meet this element. Holguin, formerly a plaintiff in this cause, herself waited some ten days after Acosta described the file to her before informing Defendant's Human Resources Department of the problem. Thus, Defendant was not made aware of the video's existence until July 24, 1997, the date the Human Resources Department received Holguin's memorandum. It is undisputed that the computer itself was removed not later than the end of July, roughly one week later. Moreover, even considering the period from June 16, 1997 — the date Plaintiff claims he saw the video — until the computer was removed — roughly six weeks — that period is a reasonable one for any employer to investigate and take corrective action under these circumstances.
Similarly, Plaintiff's contention that Defendant knew of Humphreys's alleged propensity toward sexually harassing employees is inapposite. Here, there is nothing in the record regarding any such alleged propensity or Defendant's knowledge thereof. In fact, Plaintiff cannot point to any such "on-going sexual harassment complaints" beyond his own self-serving affidavit testimony that he "was offended and upset to learn about the atmosphere of sexual harassment that existed . . . due to Humphreys' activities." Furthermore, Plaintiff has not presented any evidence to show that Humphreys was the person who placed the file in his computer. In fact, there is no evidence to show who placed the file on that computer or when. Plaintiff's own testimony concedes that the file was created in 1990 or 1991, some six or seven years before Plaintiff discovered it. He testified that, although the door to Humphreys's office generally was locked, Rosas had a key to the office and Plaintiff, a part-time work-study employee, used that computer on several occasions. The offensive computer file can be transported by floppy disk or otherwise, as Plaintiff demonstrated when he copied the file to his own floppy disk(s). Thus, any person within a six or seven year period, including part-time work-study students, could have placed the file in Humphreys's computer. Moreover, Plaintiff acknowledged that the file was not easily accessible from the computer's main menu and that he had to go through some eleven steps to reach the file. Hence, there is no evidence which shows that Defendant knew or should have known that a single computer in one building on its Val Verde Campus harbored a computer file with pornography which some unknown employee within the next six to seven years would discover.
In sum, Plaintiff utterly fails to set forth any evidence that Defendant or any of Defendant's employees engaged in unwelcome sexual harassment, that the harassment was because of Plaintiff's sex and that the harassment was so objectively severe or pervasive that it affected a term, condition or privilege of Plaintiff's employment. Accordingly, Defendant's Motion for Summary Judgment as to Plaintiff's claim should be granted.
IT IS HEREBY ORDERED that Defendant El Paso Community College's "Motion for Summary Judgment Against Plaintiff Enrique Acosta" is GRANTED.
IT IS FURTHER ORDERED that Defendant's Objections to Plaintiff's Summary Judgment Evidence are OVERRULED.