Opinion
Civil No. 3:99-CV-0668-BC
July 5, 2000
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's Motion for Summary Judgment, filed May 31, 2000. At issue is whether Plaintiff Carol Bradley McCluney ("McCluney") has raised a genuine issue of material fact regarding her Title VII claim for sexual harassment. Having reviewed the pertinent pleadings and the evidence submitted by the parties, the Court GRANTS Defendant's motion for the reasons that follow:
I. Background
McCluney brings this action, alleging claims for quid pro quo and hostile environment sexual harassment and gender discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq. McCluney has sued her former employer, Andrew Cuomo ("Cuomo"), Secretary of Housing and Urban Development ("HUD"), but her complaints of sexual harassment are focused on the conduct of her one-time supervisor, John Eubanks ("Eubanks"). See PI.'s First Am. Compl. at ¶¶ 5-8.
McCluney was employed as a program support assistant by the HUD Department in Ft. Worth, Texas. PI.'s First Am. Compi. at ¶ 5. Between December 1990 and March 1994, she was supervised by Eubanks, who was the Fair Housing Equal Opportunity Officer at HUD. Def.'s Mot., App. at 42 (McCluney Depo.), 72 (Eubanks Depo.); PI.'s First Am. Compi. at ¶ 5. McCluney alleges that between April 2, 1992 and March 8, 1995, Eubanks committed sexual harassment by threatening her with termination if she did not perform certain sexual favors and services for him. PI.'s First Am. Compl. at ¶ 6, More specifically, she claims that Eubanks demanded that she meet him in various locations throughout Dallas, Arlington, and Ft. Worth to have sex. Id. She further alleges that on multiple occasions, Eubanks required her to come in his office, close the door, and either walk on his back while he attempted to look up her skirt or permit him to run his hand over or inside her blouse or skirt. Id. Eubanks also allegedly referred to his penis in McCluney's presence, rubbed himself while speaking to her regarding his sexual experiences, and spoke in graphic detail of sexual matters. Id.
McCluney filed a complaint with the HUD's Equal Employment Opportunity Commission ("EEOC") Division on June 6, 1995. Id. at ¶ 4. At some point, she requested an immediate final agency decision pursuant to 29 C.F.R. § 1614.110, but apparently no decision has been made or issued. Id. Nevertheless, McCluney filed this action on March 26, 1999, seeking to impose vicarious liability on her employer on the grounds that Cuomo knew or should have known of Eubanks' harassing conduct and failed to take measures to prevent or correct it. Id. at ¶ 8-9.
"29 C.F.R. § 1614.110 provides in relevant part:
When an agency . . . receives a request for an immediate final decision . . . the agency shall take final action by issuing a final decision. The final decision shall consist of findings by the agency on the meuits of each issue in the complaint, or, as appropriate, the rationale for dismissing any claims in the complaint and, when discrimination is found, appropriate remedies and relief in accordance with subpart E of this part . . . The final action shall contain notice of the right to appeal the final action to the Equal Employment Opportunity Commission, the right to file a civil action in federal district court, the name of the proper defendant in any such lawsuit and the applicable time limits for appeals and lawsuits. 29 C.F.R. § 1614.110 (b).
Cuomo filed the instant motion on May 31, 2000, contending that he is entitled to summary judgment on the following grounds: (1) McCluney has failed to allege any actionable conduct constituting sexual harassment within the applicable statutory period; (2) Cuomo has established the affirmative defense for sexual harassment claims as enunciated in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); and (3) McCluney cannot establish an essential element for her claim of non-supervisor sexual harassment. Def.'s Br. at 3-12. On June 19, 2000, McCluney filed her responsive brief and Cuomo filed a reply brief on June 26, 2000. Before turning to address the merits of Cuomo's summary judgment motion, the Court will first review the standards governing its analysis.
II. Summary Judgment Standards
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that, as a matter of law, the movant is entitled to judgment. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). "[T]he substantive law will identity which facts are material." Anderson v. Liberty Lobby, Inc., 477 11.5. 242, 248, 106 S.Ct. 2505, 2510 (1986). Only disputes about those facts will preclude the granting of summary judgment. Id. In a motion for summary judgment, the burden is on the movant to prove that no genuine issue of material fact exists. Latimer v. Smithkline French Lab., 919 F.2d 301, 303 (5th Cir. 1990). If the non-movant bears the burden of proof at trial, the movant for summary judgment need not support the motion with evidence negating the opponent's case; rather, the movant may satisfy its burden by showing that there is an absence of evidence to support the non-movant's case. Id.; Little, 37 F.3d at 1075 .
Once the movant makes this showing, the burden shifts to the non-movant to show that summary judgment is not appropriate. Little, 37 F.3d at 1075 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54 (1986)). "This burden is not satisfied with "some metaphysical doubt as to the material facts,. . . by `conclusory allegations,'. . ., by "unsubstantiated assertions," or by only a `scintilla' of evidence." Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Rather, the non-moving party must "come forward with `specific facts showing that there is a genuine issue for final.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (quoting FED. K CIV. P. 56(e)). In determining whether a genuine issue for trial exists, the court must view all of the evidence in the light most favorable to the nonmovant, and the evidence must be sufficient such that a reasonable jury could return a verdict for the non- movant. Munoz v. Orr, 200 F.3d 291, 302 (Slit Cir. 2000); Anderson, 477 U.S. at 248, 106 S.CI. at 2510. The Court now turns to address the merits of Cuomo's motion.
III. Analysis
As explained above, Cuomo moves for summary judgment on the grounds that (1) McCluney has failed to allege any actionable sexual harassment within the applicable statutory period; (2) Cuomo has established an affirmative defense to her sexual harassment claim; and (3) she cannot establish an essential element of her claim for non-supervisor sexual harassment. Def.'s Br. at 3-12.
The Fifth Circuit recently provided a roadmap for courts to follow on vicarious liability cases, such as this one, that contain allegations of supervisor sexual harassment. Casiano v. ATT Corp., —F.3d—, 2000 WL 679781 (5th Cir. June 12, 2000) and Appendix. At the first step, the court must determine whether or not the complaining employee has suffered a "tangible employment action." Id. at *4 (quoting Ellerth, 524 U.S. at 761-62, 118 S.Ct. 2257). "If he has, his suit is classified as a `quid pro quo' case; if he has not, his suit is classified as a `hostile environment' case."
Id. Assuming a "quid pro quo" case, the court must then at step two determine "whether the tangible employment action suffered by the employee resulted from his acceptance or rejection of his supervisor's alleged sexual harassment." Id. If such a nexus cannot be shown, then the employer is not vicariously liable under Title VII for the supervisor's misconduct. Id. If, however, the employee can show that the tangible employment action did result from the employee's acceptance or rejection of the supervisor's sexual harassment, then the employer is per se vicariously liable and is not entitled to assert the one and only available affirmative defense as provided in Ellerth and Faragher. Id.
On the other hand, assuming a "hostile environment" case — that the employee did not suffer a tangible employment action — step two for the court is whether the misconduct attributed to the supervisor constitutes severe or pervasive sexual harassment. Id. If not, there is no vicarious liability on the employer; but if so, then the employer is vicariously liable, " unless the employer can prove both prongs of the Ellerth/Faragher affirmative defense, to wit: . . . (1) the employer exercised reasonable care to prevent or correct promptly any such sexual harassment, and (2) the employee did not unreasonably fail to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Id. (citations omitted). The Fifth Circuit then reiterated that the Ellerth/Faragher affirmative defense is the only affirmative defense available in supervisor sexual harassment cases, and it is available only in hostile environment cases and never in a quid pro quo case. Id. Following the Fifth Circuit's instructions, this Court now turns to analyze step one in the Casiano roadmap as it applies to the facts of this case.
A. Has McCluney Suffered A Tangible Employment Action?
The Supreme Court has defined a tangible employment action as "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a significant change in benefits." Burlington Indus., 524 U.S. at 761-62, 118 S.Ct. 2257. Cuomo contends in the instant motion that McCluney has presented no evidence of suffering any tangible employment action. Def.'s Br. at 6. The Court agrees.
McCluney testified at her deposition that her salary never decreased while she worked at HUD, she was never demoted, and she never had any vacation or sick leave taken away or denied by Eubanks. Def.'s App. at 6, 54 (McCluney Depo.). She acknowledged that while Eubanks was her supervisor, she received outstanding performance evaluations and, in fact received some cash awards for her job performance. Id. at 9-10 (McCluney Depo.). She further testified that Eubanks treated her "fairly professional" in front of other employees, and she had no problem with Eubanks in that regard. Id. at 11 (McCluney Depo.). Although McCluney testified that she attempted unsuccessfully to transfer to other positions in the HUD office, she could point to no evidence suggesting that Eubanks was in any way responsible for preventing her transfer. Id. at 44-48 (McCluney Depo.). And in her response to the instant motion, McCluney fails to provide any competent summary judgment evidence showing that she suffered any other type of tangible employment action. Absent such action, the Court will, as directed in Casiano, analyze McCluney's claim as a hostile environment claim and proceed to step two under the Casiano roadmap. See Casiano, 2000 WL 679781 at *4.
B. Does Eubanks' Conduct Constitute Severe or Pervasive Sexual Harassment?
Before answering the ultimate question of whether Eubanks' conduct constitutes severe or pervasive sexual harassment, the Court must first determine which conduct is relevant to that determination. Cuomo maintains that McCluney's EEOC complaint is untimely in relation to the alleged harassment and, therefore, she may recover, if at all, only for Eubanks' actionable conduct that occurred within 180 days prior to the filing of her EEOC complaint. Def's Br. at 3. McCluney counters that summary judgment is improper because Cuomo cannot establish when the 180-day period began or ended, but that, at any rate, under a "continuing violation" theory, she may recover for all occurrences of Eubanks' actionable conduct. Pl.'s Resp. at 2.
1. Continuing Violation Theory
A Title VII plaintiff must file a charge of discrimination with the EEOC within 180 days of the alleged wrongful conduct. 42 U.S.C. 2000e-5(e)(1) (Vernon 1994). Because McCluney filed her EEOC complaint on June 6, 1995, she would ordinarily be barred from premising her sexual harassment claim on any misconduct that occurred before December 8, 1994. See Waltman v. Int'l Paper Co., 875 F.2d 468, 474 (5th Cir. 1989).
This 180-day period is extended to 300 days if the plaintiff institutes a complaint with a state or local agency. 42 U.S.C. § 2000e-5(e)(1). Neither party in this case has presented evidence that McCluney filed a discrimination complaint with a state or local agency, consequently, the 180-day limitation applies to this case.
In her response, McCluney claims that there is no evidence of when she filed her EEOC complaint, but she alleged in her complaint and testified at her deposition that it was filed on June 6, 1995. Pl's First Am. Compi. at ¶ 4; Def.'s App. at 29 (McCluney Depo.).
A narrow exception to this 180-day limitation, known as the "continuing violation" doctrine, has been utilized by the courts "[w]here the unlawful employment practice manifests itself over time, rather than as a series of discrete acts." Id. (internal quotation and citation omitted). As explained by the Fifth Circuit:
The core idea of the continuing violation theory is that equitable considerations may very well require that the filing periods not begin to run until facts supportive of a Title VII charge or civil rights action are or should be apparent to a reasonably prudent person similarly situated. The focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights.Webb v. Cardiothoracic Surgery Assoc. of North Texas, P.A., 139 F.3d 532, 537 (5th Cir. 1998) (quoting Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1560-61 (5th Cir. 1985)). Thus, the continuing violation doctrine should be applied only in cases where the unlawful nature of the conduct might not have been easily apparent to the plaintiff. Price v. Danka Corp., No. Civ. 3:98 CV-2365-H, 2000 WL 274275 at * 2 (N.D. Tex. March 10, 2000) (Sanders, J.).
In this case, McCluney alleges that from April 2, 1992 through March 8, 1995, Eubanks forced her, under the threat of termination, to have sex with him. Pl.'s First Am. Compl. at ¶ 6. In addition, he allegedly required her, on multiple occasions, to walk on his back as he tried to look up her skirt and to allow him to run his hand over or inside her blouse or skirt. Id. McCluney further claims that Eubanks referred to his penis in her presence, rubbed himself while speaking to her regarding his sexual experiences, and spoke in graphic detail of sexual matters. Id. At her deposition, McCluney testified that she first began having sexual relations with Eubanks in 1992. Def.'s App. at 50 (McCluney Depo.). She also stated that "early in her career" at HUD, when Eubanks asked her to do such things as walking on his back, she realized then that his conduct was improper, but she complied with his requests because she was afraid of his perceived power and authority. Def.'s App. at 29-33 (McCluney Depo.).
Viewing McCluney's allegations in conjunction with her deposition testimony, the Court finds that she knew and a reasonable person similarly situated should have known that her rights were being violated. The fact that McCluney was intimidated or afraid of Eubanks' perceived power does not change the fact that she was and should have been put on notice that she was a victim a sexual harassment. See Price, 2000 WL 274275 at *3. The sexual relations and other inappropriate touching were discrete acts which triggered McCluney's obligations to timely file her EEOC complaint. See Antoine-Tubbs v. Local 513, Air Trans. Div., Trans. Workers Union of America, AFL-CIO, 50 F . Supp.2d 601, 615 (S.D. Tex. 1998), aff'd, 190 F.3d 537 (5th Cir. 1999). Accordingly, the continuing violation theory is not applicable in this case, therefore, McCluney's sexual harassment claim cannot be premised on Eubanks' alleged misconduct which occurred prior to December 8, 1994.
2. Severe or Pervasive Sexual Harassment
Continuing then with the second step of the Casiano roadmap, the issue is whether Eubank's alleged misconduct occurring after December 8, 1994, constitutes severe or pervasive sexual harassment. Casiano, 2000 WL 679781 at * 4. McCluney testified at her deposition that she had very little contact with Eubanks between December of 1994 and the filing of her EEOC complaint. Def.'s App. at 21-24 (McCluney Depo.). In fact, the only incident that she characterized as sexual harassment occurred in March of 1995, when she asked Eubanks to write her a letter of reference for a prospective job, to which he replied that it would "cost her." Id. at 23-28 (McCluney Depo.). Cuomo maintains that such conduct does not by itself constitute actionable sexual harassment. Def's Br. at 3. The Court agrees.
The parties also dispute whether Eubanks was McCluney's supervisor during this relevant time period. Def.'s Br. at 4; Pl.'s Resp., Ex. A at ¶¶ 2-3 (McCluney Aff.). The summary judgment evidence established that in March of 1994, Eubanks was reassigned to a different floor from McCluney in the Ft. Worth HUD office. Def.'s App. at 21-22 (McCluney Depo.), 72 (Eubanks Depo.). While Cuomo contends that Eubanks was removed as McCluney's supervisor, she counters that he still retained supervisory authority over her, although he was not her direct supervisor. Pl.'s Resp., Ex. A at ¶ 2-3. For purposes of the instant motion, whether or not Eubanks was McCluney's supervisor during this period is immaterial because in order for McCluney to succeed on her hostile environment claim, she must establish severe or pervasive sexual harassment by Eubanks regardless of whether he was her supervisor or merely a co-worker. See Watts v. Kroger Co., 170 F.3d 505, 509 n. 3. (5th Cir. 1999) (citing Jones v. Flagship Int'l, 793 F.2d 714, 719-20 (5th Cir. 1986)).
"For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment." Shepherd v. Comptroller of Pub. Accounts of the state of Texas, 168 F.3d 871, 874 (5th Cir.), cert. denied, 120 S.Ct. 395, 145 L.Ed.2d 308 (1999) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2403, 91 L.Ed.2d 49 (1986)) (internal quotations omitted). "A recurring point in [Supreme Court] opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Id. (quoting Faragher, 524 U.S. 775, 118 S.Ct. 2275)) (internal quotations omitted).
Viewing the summary judgment evidence in this case in light of the relevant authority, this Court finds that the sole incident of alleged sexual harassment occurring after December 8, 1994 — Eubanks' comment to McCluney that a letter of reference would "cost her"— is not sufficiently severe or pervasive so as to alter the terms and conditions of her employment. See Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th Cir. 1999) (noting that the Supreme Court cases involving allegations of extensive, longlasting, unredressed, and uninhibited sexual threats or conduct that permeated the plaintiffs' work environment highlight the intensity of the objectionable conduct that must be present in order to constitute an actionable hostile environment claim) (citing cases). Accordingly, because McCluney cannot establish an essential element of her hostile environment sexual harassment claim, Cuomo is entitled to summary judgment. Nevertheless, for the sake of completeness, the Court will proceed to the next step in the Casiano roadmap for hostile environment claims.
C. Can Cuomo Establish the Ellerth/Faragher Affirmative Defense?
Even assuming that Eubanks' alleged misconduct constitutes severe or pervasive sexual harassment, Cuomo may still avoid vicarious liability by proving both prongs of the Ellerth/Faragher affirmative defense: (1) the employer exercised reasonable care to prevent or correct promptly any such sexual harassment, and (2) the employee did not unreasonably fail to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Casiano, 2000 WL 679781 at * 4.
As to the first prong, McCluney contends that there is no evidence that HUD used any procedures or took any steps to protect her. Pl.'s Resp. at 3. The Court disagrees. Cuomo points to evidence that Eubanks was removed as McCluney's supervisor in March of 1994 and reassigned to a different floor in the HUD office. Def.'s App. at 21-22, 42 (McCluney Depo.), 72-74 (Eubanks Depo.). And after Eubanks' reassignment, McCluney had very little contact with him. Id. at 21-24 (McCluney Depo). After McCluney filed her EEOC complaint in June of 1995, she never had contact with him. Id. at 37-38 (McCluney Depo.). In addition, the Office of the Special Counsel at HUD investigated the charges against Eubanks, conducting at least three administrative hearings, one in August of 1994, the second in October of 1995, and the third in 1998. Id. at 1-4, 18-21, 43 (McCluney Depo.), 65-67 (Eubanks Depo.). Again, although it is unclear which of these investigations, if any, was conducted in direct response to McCluney's complaint, the evidence establishes that HUD pursued the allegations against Eubanks and undertook measures to correct and to prevent his conduct from recurring. Def.'s App. at 53 (McCluney Depo.).
Because McCluney testified that she did not report Eubanks' alleged sexual harassment until one year later, in March of 1995, it appears from the record that Eubanks was reassigned in response to sexual harassment complaints lodged against him by other employees. Def's App. at 4, 19, 34 (McCluney Depo.), 66-68 (Eubanks Depo.). Nevertheless, Eubanks' reassignment does constitute evidence that HUD attempted to correct and prevent his alleged misconduct.
With respect to the second prong of the Ellerth/Faragher affirmative defense, McCluney claims that there is no evidence that she could have availed herself of any means to stop the harassment or to otherwise protect herself. Pl.'s Resp. at 3. The Court again disagrees. As noted previously, McCluney testified that she did not tell any of her supervisors or the HUD EEO office of Eubanks' alleged sexual harassment until after the reference letter incident in March of 1995. Def's App. at 34 (McCluney Depo.). Although she claims to have received no training or information regarding procedures for filing sexual harassment complaints, McCluney filed an EEOC complaint against Eubanks' successor soon after he replaced Eubanks in March of 1994 for swearing at her and getting upset with her. Id. at 14, 40 (McCluney Depo.). She also testified to filing complaints against other co-workers as well. Id. at 16-17.
See Pl's Resp., Ex. A (McCluney Aff.).
Additionally, McCluney signed two affidavits in 1994 in connection with the HUD investigations into the complaints against Eubanks. Id. at 1-4. The November 17, 1994 affidavit begins with the phrase, "[s]exual harassment is when a person makes gestures or remarks of a sexual nature that another finds offensive." Id. at 4. More importantly, in that affidavit, McCluney stated in relevant part:
I have never been sexually involved with Mr. Eubanks. We have a friendly relationship on a professional basis. I have never known Mr. Eubanks to tell jokes of a sexual nature nor engage in conversation of a sexual nature.Id. at 4. In the June 20, 1994 affidavit, McCluney denied any knowledge that Eubanks had sexually harassed a co-worker. Id. at 1-3, 39 (McCluney Depo.). McCluney further acknowledged at her deposition that she testified under oath in 1994 that Eubanks never harassed her or anyone else. Id. at 58 (McCluney Depo.). While McCluney now claims that her sworn affidavits and sworn testimony in 1994 were false, the fact remains that she chose to lie rather than avail herself of the opportunity to speak out regarding Eubanks' alleged sexual harassment toward her. She, therefore, acted unreasonably. See Scrivner v. Socorro Indep. Sch. Dist, 169 F.3d 969, 971 (5th Cir. 1999).
See Def.'s App. at 40-41, 60-61 (McCluney Depo.).
As the Fifth Circuit has stated:
When an employer initiates a good-faith investigation of charges of discrimination, it must be able to rely on the evidence it collects. By misleading investigators, [McCluney] thwarted the purposes of Title VII and frustrated [HUD's] efforts to remedy past misconduct and prevent future harassment by [Eubanks]. When there is no evidence that the investigation was heavily skewed against a complainant's interest, this court cannot sanction such deceptive conduct.Id. at 971-72.
Based on a review of the summary judgment evidence, this Court finds that Cuomo has properly set forth the necessary elements to establish the Ellerth/Faragher affirmative defense. And McCluney has failed to proffer competent summary judgment evidence raising a genuine fact issue regarding these elements. Accordingly, Cuomo is entitled to summary judgment.
IV. Conclusion
For the foregoing reasons, the undersigned GRANTS Defendant's Motion for Summary Judgment.
SO ORDERED, July 5, 2000.