Opinion
Civil Action No. 3:03-CV-1884-G.
September 14, 2004
MEMORANDUM ORDER
Before the court is the motion of the defendant Anthony Sylvan Pools Corporation ("AS" or "the defendant") for summary judgment on all claims asserted by the plaintiff Shirley Campanello ("Campanello" or "the plaintiff"). For the reasons set forth below, AS's motion is granted.
I. BACKGROUND
Campanello was employed in the builder sales division of AS from June of 1999 until May 6, 2003. Affidavit of Shirley Campanello ("Campanello Affidavit") ¶ 2, Exhibit C to Appendix to Brief in Support of Plaintiff's Response to Defendant's Motion for Summary Judgment ("Plaintiff's Appendix") at 25, 31, 37, 40. Campanello was involuntarily terminated on May 6, 2003 through a letter signed by Bruce Williams, AS's General Manager. Id. at 31.
Campanello alleges that she was discriminated against because of her sex, that she was terminated because she rebuffed sexual advances from one or more of her supervisors, and that she was subjected to a hostile and abusive work environment while employed with AS. Plaintiff's Brief in Response to Defendant's Motion for Summary Judgment ("Response") ¶ 4. Specifically, Campanello alleges that her most recent supervisor, C.B. Spurlin, made unwelcome sexual advances towards her. Id. ¶ 4. Campanello contends that on one occasion Spurlin touched and kissed her against her will. Id. ¶ 5. Campanello also contends that she refused to meet with Spurlin alone, and requested that Williams sit in on future meetings. Id. Additionally, Campanello complains that she was subjected to a "harassing profession of love" from her prior supervisor, Victor Mueller. Id. (citing Campanello Affidavit ¶ 3). Campanello also alleges that, on one occasion, she was not invited to a business dinner because her male supervisor and a male client were going to a topless bar. Response ¶ 5.
In February 2003, Campanello received a written warning from Spurlin that she had not produced an adequate amount of work and that she was in violation of company policy. Plaintiff's Appendix at 32. Campanello maintains that this warning was Spurlin's way of retaliating against her for rejecting his alleged sexual advances. Response ¶ 6. Additionally, during her first two years of employment, Campanello received annual reviews from Mueller, in which he rated her performance as "above expectation." Plaintiff's Appendix at 34-39. In December 2002, Campanello's evaluation was reviewed by Williams, and Williams rated her overall performance as "at expectation," a decline from her two previous evaluations. Id. at 40-42.
On August 21, 2003 Campanello filed this case, alleging that AS terminated her in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Texas Commission on Humans Right Act, TEX. LAB. CODE § 21.051 (the "TCHRA"). Plaintiff's Original Complaint ("Complaint") ¶ 4.01. Campanello further alleges that AS failed to compensate her for overtime worked, in violation of the Fair Labor Standards Act ("FLSA"). Id. ¶ 5.01.
II. ANALYSIS A. Evidentiary Burdens on Motion for Summary Judgment
Summary judgment is proper when the pleadings and evidence before the court show that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The movant makes such a showing by informing the court of the basis of its motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The pleadings, depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material fact exists. FED. R. CIV. P. 56(c).
The disposition of a case through summary judgment "reinforces the purpose of the Rules, to achieve the just, speedy, and inexpensive determination of actions, and, when appropriate, affords a merciful end to litigation that would otherwise be lengthy and expensive." Fontenot v. Upjohn Company, 780 F.2d 1190, 1197 (5th Cir. 1986).
Once the movant makes this showing, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24. To carry this burden, the "opponent must do more than simply show . . . some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovant must show that the evidence is sufficient to support a resolution of the factual issue in her favor. Anderson, 477 U.S. at 249.
While all of the evidence must be viewed in a light most favorable to the nonmovant, id. at 255 (citing Adickes v. S.H. Kress Company, 398 U.S. 144, 158-59 (1970)), neither conclusory allegations nor unsubstantiated assertions will satisfy the non-movant's summary judgment burden. Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th Cir. 2002) (citing Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)). Summary judgment in favor of the movant is proper if, after adequate time for discovery, the motion's opponent fails to establish the existence of an element essential to her case and as to which she will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.
B. Campanello's Title VII and TCHRA Claims
"[T]he law governing claims under the TCHRA and Title VII is identical." Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 403 n. 2 (5th Cir. 1999). Therefore, to avoid unnecessary repetition, the court will analyze both claims utilizing the case law construing Title VII. See id.
Title VII prohibits discrimination on the basis of race, color, religion, sex, or national origin in federal and private employment. Fitzgerald v. Secretary, United States Department of Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997). Where there is no direct evidence of sex discrimination, the court must apply a three-step analysis utilized by the Supreme Court. Hanchey v. Energas Company, 925 F.2d 96, 97 (5th Cir. 1990). See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-12 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-58 (1981); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05 (1973).
Direct evidence, in the employment discrimination context, is "evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption." Mooney v. Aramco Services Co., 54 F.3d 1207, 1217 (5th Cir. 1995) (quoting Brown v. East Mississippi Electric Power Association, 989 F.2d 858, 861 (5th Cir. 1993)).
In the first step, the plaintiff must establish a prima facie case of discrimination. Portis v. First National Bank of New Albany, MS, 34 F.3d 325, 328 (5th Cir. 1994). If the plaintiff presents a prima facie case, a presumption of discrimination arises. Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 957 (5th Cir. 1993). At the second step, the defendant can rebut this presumption of discrimination by offering a legitimate, nondiscriminatory reason for the employment decision of which the plaintiff complains. Id. If the defendant satisfies this burden of production, the plaintiff's prima facie case dissolves, id., and the case proceeds to the third step of the analysis. At this third stage, the burden is on the plaintiff to prove that the reasons offered by the defendant are pretexts for sex discrimination. Id.
When the analysis has proceeded to this third step, the plaintiff — to avoid summary judgment — must produce evidence from which a reasonable factfinder could find "that the employer's reasons were not the true reason for the employment decision and that unlawful discrimination was." Id. (emphasis in original). Accord Moore v. Eli Lilly and Company, 802 F.Supp. 1468, 1471-74 (N.D. Tex. 1992), aff'd, 990 F.2d 812, 816 n. 24 (5th Cir.), cert. denied, 510 U.S. 976 (1993); Waggoner v. City of Garland, 987 F.2d 1160, 1166 (5th Cir. 1993). See St. Mary's, 509 U.S. at 507-08.
1. Prima Facie Case of Discrimination
To establish a prima facie case of discrimination, Campanello must establish that (1) she is a member of a protected group, i.e., female; (2) that she was qualified for her position; (3) that she was dismissed or suffered an adverse employment action; and (4) "that after [her] discharge others who were not members of the protected class remained in similar positions." Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 318 (5th Cir. 1997) (citing Meinecke v. H R Block of Houston, 66 F.3d 77, 83 (5th Cir. 1995)).
Here, the defendant's lack of intent to replace the plaintiff causes the court to slightly alter the traditional prima facie test's fourth element (requiring that a Title VII plaintiff show that she was replaced by a person not in her protected class) to reflect the fourth element articulated in the above test. See id.
Campanello has established a prima facie case of discrimination. First, it is undisputed that Campanello is female, and thus a member of a protected class. Second, there is no evidence in the record to indicate that she was not qualified for her position with the defendant. In fact, the plaintiff's three year tenure as well as her initial employment evaluations rating her performance at one time as "above expectations" is competent evidence to support a finding that she was qualified for her position. See Plaintiff's Appendix at 34-43. Next, it is undisputed that the plaintiff was terminated involuntarily in May 2003. Appendix to Brief in Support of Defendant's Motion for Summary Judgment ("Defendant's Appendix") at 173; Plaintiff's Appendix at 31. The only remaining issue in analyzing the plaintiff's prima facie case is whether the fourth element of the test has been satisfied. When the record and facts are viewed in the light most favorable to Campanello, she has successfully met the fourth requirement by providing evidence that a male was kept on in a similar position at the time she was terminated. Specifically, AS did not terminate Greg Hanson, who was employed in the same division as the plaintiff. Deposition of Bruce Williams ("Williams Depo."), Exhibit C to Defendant's Appendix at 118-119. Furthermore, AS subsequently reassigned Hanson upon dissolving the division in which he an the plaintiff previously worked. Id. at 119.
Campanello has made out a prima facie case of discrimination. As a result, a presumption of discrimination arises, and the burden shifts to AS to rebut the presumption by offering a legitimate, nondiscriminatory reason for terminating the plaintiff. See Bodenheimer, 5 F.3d at 957.
2. Legitimate, Nondiscriminatory Reasons for Termination
To prevail on its motion, AS must now "articulate some legitimate, nondiscriminatory reason" for terminating Campanello. Daigle v. Liberty Life Insurance Company, 70 F.3d 394, 396 (5th Cir. 1995). The defendant's burden is one of production, not persuasion. "If the employer produces any evidence `which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action,' then the employer has satisfied its burden of production." Id. (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993)).
Here, AS has met its burden of production by articulating two legitimate, nondiscriminatory reasons for terminating Campanello. Brief in Support of Defendant's Motion for Summary Judgment ("Defendant's Brief") at 11-15. First, AS contends that the "[p]laintiff was not performing satisfactorily." Id. at 11. Second, AS asserts that Campanello abandoned her job by failing to report or come to work for three days, allowing for termination according to the defendant's internal rules of employment. Id. at 14-15. AS has submitted evidence in the form of deposition testimony of supervisors regarding Campanello's performance and alleged job abandonment, and has additionally referenced Campanello's most recent employment evaluation to further support its claim of unsatisfactory performance. Id. at 11-15; Deposition of C.B. Spurlin ("Spurlin Depo."), Defendant's Appendix at 97, 111; Williams Depo., Defendant's Appendix at 123-124; Plaintiff's Appendix at 40-42 (2002 Evaluation). The legitimate, nondiscriminatory reasons articulated — together with the supporting evidence offered by AS — are sufficient to fulfill AS's burden; thus the burden shifts to Campanello on the third and final step.
3. Pretext for Discrimination
Once AS has met its burden of production in the second step, the burden is on Campanello to prove that AS's reasons were not the true reason for her termination, and that the unlawful sexual discrimination was. Bodenheimer, 5 F.3d at 957. On a motion for summary judgment, the court "need not determine whether [Campanello] actually proved [AS's] reasons were a pretext for [sexual] discrimination. Rather, [the court] must assess whether [Campanello] tendered factual evidence that would lead a jury to reasonably conclude that [AS's] reasons are a pretext for [sexual] discrimination." Id. at 958. Campanello must produce "sufficient evidence" to establish that AS's proffered reasons were pretexts for sexual discrimination. Id. The court concludes that Campanello has not provided sufficient evidence to support a finding that AS's reasons of abandonment and poor performance are mere pretexts for sexual discrimination."A mere scintilla of evidence of pretext does not create an issue of material fact in all cases." Crawford v. Formosa Plastics Corporation, Louisiana, 234 F.3d 899, 902-03 (5th Cir. 2000). As stated above, Campanello must present "sufficient evidence to find that the employer's asserted justification is false." Id. at 903 (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 140 (2000)). "It is, therefore, possible for a plaintiff's evidence to permit a tenuous inference of pretext and yet be insufficient to support a reasonable inference of discrimination." Id. at 903. However, "if the evidence of pretext is substantial, the plaintiff may create a genuine issue of material fact without independent evidence that discrimination was the real reason for the adverse employment action." Id.
A plaintiff's subjective belief that discriminatory intent motivated the defendant is insufficient to establish a material question of fact. Ray v. Tandem Computers, Inc., 63 F.3d 429, 434 (5th Cir. 1995). Additionally, while "the fact that [the plaintiff's] case-in-chief consists solely of her own testimony does not prevent her from establishing intentional discrimination," Portis, 34 F.3d at 329 n. 10, the "plaintiff may not manufacture a genuine issue of material fact by submitting an affidavit that impeaches prior testimony without explanation." Doe v. Dallas Independent School District, 220 F.3d 380, 386 (5th Cir. 2000) (citing Perma Research and Development Company v. Singer Company, 410 F.2d 572, 578 (2d Cir. 1969)), cert. denied, 531 U.S. 1073 (2001). "If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting [her] own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Id.
In her response to the defendant's motion for summary judgment, Campanello relies solely on her own affidavit as evidence that the legitimate reasons proffered by AS were pretexts for sexual discrimination. Response ¶¶ 12-13. However, Campanello's affidavit contradicts her earlier deposition testimony on several occasions, which are discussed in relevant detail below. The contradictions tend to embellish or amplify the alleged acts of discrimination and harassment perpetrated by her supervisors and co-workers. To the extent that Campanello's affidavit contradicts her earlier deposition, the court will disregard it in determining the existence of genuine issues of material fact. See Doe, 220 F.3d at 386.
Along with its reply, AS also filed a motion to strike plaintiff's affidavit. However, since the court is granting the defendant's motion for summary judgment, AS's motion to strike is denied as moot.
Campanello offers four arguments asserting that AS's proffered reasons for terminating her are pretexts for discrimination. Response ¶¶ 11-13. In response to AS' claim of job abandonment, Campanello asserts that she did not miss three days of work. Id. ¶ 11. To support this assertion, Campanello relies solely on her own affidavit, Campanello Affidavit ¶¶ 8-9, which contradicts earlier testimony she provided during her deposition. In her deposition, Campanello stated that the last time she communicated with anyone at the AS office was the Wednesday prior to her termination, the following Tuesday. Campanello Depo., Defendant's Appendix at 42-43. As stated above, a plaintiff may not contradict earlier testimony in hopes of establishing a genuine issue of material fact. Doe, 220 F.3d at 386. Thus, Campanello has not directed the court to any evidence in the record, other than her own contradictory affidavit, tending to show that sex discrimination, rather than job abandonment, was the real reason for her termination.
The remaining three assertions attacking the legitimate reasons proffered by AS concern Campanello's performance. Two of the arguments in the response are not contradicted by Campanello's deposition testimony; however, they do not evince any falshy of the legitimate reasons proffered by the defendant. Campanello, in both her deposition and affidavit, admits that she failed to attend a meeting and failed to submit a report on the Friday prior to her termination. Plaintiff's Response ¶ 12; Campanello Depo., Defendant's Appendix at 64-66; Campanello Affidavit ¶ 8. These admissions not only fail to call into question the validity of AS's stated reasons for Campanello's termination but actually support AS's claim that Campanello's performance was less than adequate. Finally, Campanello asserts in her response and affidavit that she did not fail to report in daily to the AS sales assistant. Plaintiff's Response ¶ 12; Campanello Affidavit ¶ 7. However, in her deposition Campanello admits that she updated the information in her reports "once or twice a week." Campanello Depo., Defendant's Appendix at 45-46. If the inconsistent statement made in Campanello's affidavit is disregarded, there is no evidence in the record contradicting AS's assertions that Campanello failed to consistently file daily reports, failed to attend the meeting with her supervisor, and failed to file her weekly report in conjunction with the missed meeting.
Campanello, therefore, has not satisfied her burden of producing sufficient evidence that the legitimate reasons for termination given by AS were pretexts for discrimination. Campanello has failed to tender sufficient evidence that could lead a reasonable jury to conclude that AS's proffered reasons for termination were false and that discrimination was the true reason that she was terminated.
4. Sexual Harassment
A plaintiff may establish a claim for sexual harassment under Title VII by proving either that an employer required sexual consideration as a quid pro quo for job benefits, or that discrimination based on sex created a hostile or abusive work environment. In evaluating sexual harassment claims, the Fifth Circuit has laid out a roadmap based upon the methodology developed by the Supreme Court in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Casiano v. ATT Corporation, 213 F.3d 278, 283 (5th Cir. 2000). The first step in analyzing sexual harassment claims is to "determine whether the complaining employee has or has not suffered a tangible employment action." Id. (internal citation omitted). If a tangible employment action was suffered, then a quid pro quo sexual harassment claim is being asserted. Id. On the other hand, if no tangible employment action was suffered, a hostile work environment claim is presented. Id. In the instant case, Campanello asserts a quid pro quo harassment claim, and, in the alternative, she also asserts a hostile work environment claim.
i. Quid Pro Quo Harassment
An employer may not require sexual favors from an employee as a quid pro quo for bestowing job benefits upon that employee. Ellert v. University of Texas, at Dallas, 52 F.3d 543, 545 (5th Cir. 1995). To establish a quid pro quo harassment claim, the plaintiff must demonstrate a nexus between the tangible employment action and the plaintiff's "acceptance or rejection of [her] supervisor's alleged sexual harassment." Casiano, 213 F.3d at 283. If the plaintiff fails to show this nexus, the defendant-employer cannot be held liable for quid pro quo sexual harassment. Id.Here, Campanello was terminated from her employment with AS; thus, a tangible employment action is shown. See Casiano, 213 F.3d at 283. However, Campanello has not produced evidence of behavior by her supervisors that rises to the level of actionable conduct. "For any sexual harassment preceding the employment decision to be actionable, . . . it must be severe or pervasive." Ellerth, 524 U.S. at 754. Sexual harassment has been defined as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (citing 29 CFR § 1604.11(a) (1985)). Remarks which are flirtatious in nature, even those which may objectively be considered inappropriate or possibly offensive, do not give rise to a claim of sexual harassment. See Prigmore v. Houston Pizza Ventures, Inc., 189 F.Supp. 2d 635, 639, 641 n. 4 (S.D. Tex. 2002); Pfeil v. Intecom Telecommunications, 90 F.Supp. 2d 742, 745, 748 (N.D. Tex. 2000). Here, the actions of Campanello's supervisor, Spurlin, are not so severe or extreme as to constitute actionable sexual harassment. Campanello has not produced any evidence that Spurlin's actions, although perhaps inappropriate or even offensive, were anything more than flirtation. Nor has Campanello produced any evidence of a specific incident where Spurlin propositioned her for sex, requested sexual favors for employment considerations, or continually touched or fondled her. See Pfeil, 90 F.Supp. 2d at 748. The only incident involving any physical contact between Spurlin and Campanello consisted of Spurlin kissing Campanello on the cheek. Campanello Depo., Defendant's Appendix at 29, 74. Moreover, the circumstances surrounding the kiss and Campanello's admitted response preclude the elevation of this isolated incident to actionable harassment. According to Campanello's deposition, Spurlin kissed her on the cheek in the entryway to AS's offices after she guessed his age to be eight years below his actual age. Id. at 29. Furthermore, Campanello never complained of the incident to anyone in the company, and referred to it as "nothing major" in her deposition. Id. at 35, 33.
In Pfeil, the court determined that the behavior of the plaintiff's supervisor did not rise to actionable harassment where the supervisor (1) requested private lunches with the plaintiff, using a sexual undertone; (2) made "grunting" noises when she would walk by; (3) asked the plaintiff if she would ever date a black man (the plaintiff's supervisor was African-American); (4) consistently looked at her in a way the plaintiff felt he was undressing her with his eyes; and (5) occasionally questioned her decision to get married to her fiancé 90 F.Supp. 2d at 745, 748. Additionally, in Prigmore, the court held that, while offensive, the plaintiff's supervisor's (1) invitations to have a drink with him; (2) occasional comments about the price of hotel rooms; (3) comments on her husband's fidelity and invitations to `pay him back'; and (4) tugging on her hemline were insufficient to establish an actionable claim of quid pro quo harassment. 189 F.Supp. 2d at 639, 641 n. 4.
Campanello also alleges the conduct of her former supervisor, Victor Mueller, amounts to sexual harassment. Plaintiff's Response ¶ 5. However, the actions of her former supervisor cannot be considered in a claim of quid pro quo harassment, because Mueller's employment with AS terminated several months before any tangible action was taken against Campanello. Campanello Depo., Defendant's Appendix at 12.
Campanello has failed to produce sufficient evidence of actionable conduct on the part of her supervisor, thus precluding her ability to establish a nexus between her termination and any alleged sexual harassment. Casiano, 213 F.3d at 283. Consequently, Campanello's quid pro quo claim cannot survive AS's motion for summary judgment.
ii. Hostile Work Environment
Campanello alternatively claims that the actions of certain AS employees created a hostile and abusive work environment. Plaintiff's Response ¶ 10. A hostile work environment claim requires the plaintiff to establish a prima facie case of such an environment. To establish a prima facie case of hostile environment, the plaintiff must produce evidence that (1) she is a member of a protected group, i.e., female; (2) she was subjected to unwelcome harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the defendant knew or should have known about the harassment and failed to take prompt remedial action. Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir. 2001); Webster v. Bass Enterprises Production Company, 192 F.Supp.2d 684, 690 (N.D. Tex. 2002). This five-part test is modified, however, in Title VII cases "where the harassment is allegedly committed by a supervisor with immediate (or successively higher) authority over the harassment victim." Celestine, 266 F.3d at 353-54. In such instances, the plaintiff need only prove the first four elements of the hostile environment test above to subject the employer to vicarious liability. Id. Here, a significant number of the alleged acts forming the foundation of Campanello's hostile work environment claim are attributed to her supervisors. Therefore, the fifth element of the test need not be proven by Campanello. See id.
"For sexual harassment to be actionable, it must be sufficiently severe and pervasive `to alter the conditions of the [the victim's] employment and create an abusive working environment.'" Meritor, 477 U.S. at 67. "When the workplace is permeated with `discriminatory intimidation, ridicule and insult,' . . . that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (citing Meritor, 477 U.S. at 65, 67). Moreover, to be actionable, workplace harassment must be both subjectively and objectively hostile and abusive. Id. at 21-22. In making this determination, the court looks to the totality of the circumstances, considering, inter alia, "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23. The Supreme Court has made it clear that the conduct must be "extreme" before it will create an objective change in the terms and conditions of employment. Faragher, 524 U.S. at 788. "A recurring point in [the Court's sexual harassment] 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. (internal citation omitted).
Here, Campanello has failed to produce sufficient evidence that the alleged actions of AS, through its employees, constituted severe or pervasive harassment. Her evidence not only fails to show that the workplace harassment she experienced was, objectively speaking, hostile and abusive, but several of the incidents and attitudes Campanello bases her hostile environment claim on likely failed to meet the subjective prong as well. For instance, in explaining why she missed her final meeting with Spurlin, Campanello said that she did not want to be harassed, but she defined that term as "[j]umping all over me, talking, mouthing. You know, all over doesn't mean physically on top of you. It means all over you, wanting to know this, wanting to know that, the way he did on all of my reports." Campanello Depo., Defendant's Appendix at 74 (emphasis added). Thus, Campanello's anxiety regarding her encounters with Spurlin was based not on the fear of being sexually harassed but on her concern that she would be questioned about her performance.
Moreover, Campanello has not produced sufficient evidence that the alleged harassment was severe and pervasive. In her response, Campanello complains of private meetings with her supervisor, Spurlin, in which she was uncomfortable and she believed he was flirting with her. Response ¶ 5. However, according to her deposition, Campanello only met with Spurlin twice in the four months they worked together, and, upon her request, after the first meeting Williams met with them. Campanello Depo., Defendant's Appendix at 67-68. Furthermore, Campanello relies on several one-time events to support her claim of a hostile environment, and a total of no more than ten events comprise her allegations. Ten events, no more severe or extreme than those listed in this opinion, over a period of four years cannot be so pervasive as to create a hostile work environment. See Harris v. Forklift Systems, 510 U.S. at 21.
Campanello has failed to submit evidence that sporadic actions of her co-workers and supervisors were so extreme as to create a hostile or abusive work environment. Campanello's hostile work environment claim, as with her other claims under Title VII and the TCHRA, fails to survive AS's motion for summary judgment.
C. FLSA Claim
The FLSA provides that "no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1). Exempt from the FLSA, however, are individuals "employed in a bona fide executive, administrative, or professional capacity." Id. § 213(a)(1). This exemption shall apply to any bona fide administrative employee(a) [w]hose primary duty consists of either:
(1) The performance of office or nonmanual work directly related to management policies or general business operations of his employer or his employer's customers, . . .; and
(b) Who customarily and regularly exercises discretion and independent judgment; and
(c)(1) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity . . ., or
(2) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge, or
(3) Who executes under only general supervision special assignments and tasks; and
(d) Who does not devote more than 20 percent, or, in the case of an employee of a retail or service establishment who does not devote as much as 40 percent, of his hours worked in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (c) of this section; and
(e)(1) Who is compensated for his services on a salary or fee basis at a rate of not less than $155 per week. . . .29 C.F.R. § 541.2 (2003) (current version at 29 C.F.R. §§ 541.200 — 541.203 (2004)).
Title 29 Part 541 of the Code of Federal Regulations was amended on April 23, 2004. 69 Fed. Reg. 22,122. The amended regulations became effective on August 23, 2004. Id. This action was filed prior to the effective date of the new regulations. Plaintiff's Original Complaint (filed August 21, 2003). The prior version of the regulations govern this case, as the regulations are silent as to retroactivity. See Hernandez-Rodriguez v. Pasquarell, 118 F.3d 1034, 1042 (5th Cir. 1997). In any event, it appears to the court that there is no difference in outcome under either version of the regulations.
The court must determine whether an employee is exempt from the FLSA's overtime compensation provisions — a determination that is a question of law for the judge, not of fact for the jury. See Lott v. Howard Wilson Chrysler-Plymouth, Inc., 203 F.3d 326, 331 (5th Cir. 2000). The employer has the burden to prove that an employee is exempt under the FLSA, and that exemption is construed narrowly against the employer. Tyler v. Union Oil Company of California, 304 F.3d 379, 402 (5th Cir. 2002) (citing Dalheim v. KDFW-TV, 918 F.2d 1220, 1224 (5th Cir. 1990)); see also Vela v. City of Houston, 276 F.3d 659, 666 (5th Cir. 2001); Samson v. Apollo Resources, Inc., 242 F.3d 629, 636 (5th Cir.), cert. denied, 534 U.S. 825 (2001).
The "short test" is used in determining the status of employees earning more than $250 per week. Under the "short test," an administrative employee may be exempt under the FLSA if: "(1) the employee has a salary of more than $250 per week; (2) the employee's primary duty is performing office work or nonmanual work directly related to management policies or general business operations; and (3) the employee exercises discretion and independent judgment." Heidtman v. County of El Paso, 171 F.3d 1038, 1041 (5th Cir. 1999); see also Lott, 203 F.3d at 331.
AS contends that Campanello was an exempt administrative employee under the FLSA and thus not entitled to overtime pay. Defendant's Motion for Summary Judgment at 4. Campanello, on the other hand, maintains that she was not an exempt administrative employee and that AS violated the FLSA by failing to provide her with overtime compensation. Response ¶¶ 2-3. Campanello admits in her deposition that she was "in charge of marketing builder pools." Campanello Depo., Defendant's Appendix at 44 (emphasis added). Furthermore, Campanello's salary was, at its lowest, $673 per week. Id. at 20. Therefore, the first two prongs of the "short test" are satisfied, and only the third prong remains. See Heidtman, 171 F.3d at 1041.
"The exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered . . . [and] implies that the person has the authority or power to make an independent choice free from immediate direction or supervision and with respect to matters of significance." 29 C.F.R. § 514.207(a) (2003) (currently at 29 C.F.R. § 541.202). The term "does not necessarily imply that the decisions made by the employee must have a finality that goes with unlimited authority and a complete absence of review." 29 C.F.R. § 541.207(e)(1) (2003) (currently at 29 C.F.R. § 541.202(c). Campanello argues that she exercised no discretion and independent judgment while employed with the defendant. Plaintiff's Response ¶ 3. However, Campanello entered into a compensation agreement on January 17, 2003, approximately four months prior to her termination, in which her listed duties included "supervising and training builder salespeople, developing builder relationships, . . . generating builder sales leads and completing sales. . . ." Defendant's Appendix at 85. Furthermore, the agreement provided a bonus and commission program based on the number of sales and pool digs attributable to the Campanello. Id. Prior to this agreement, Campanello also received commission on each pool dig attributed to her efforts. Campanello Depo., Defendant's Appendix at 21. While the court is not relying on the mere payment of commission as a determining factor in the her status as an exempt employee, such arrangements indicate the existence of discretion and the absence of immediate supervision. Additionally, Campanello, in her marketing duties, worked out of the office on occasion visiting builders and keeping the relationship with the builders strong. Id. at 72. It appears from the evidence in the record, that Campanello had discretion in the way she marketed AS pools to builders and was given the discretion and judgment to make decisions regarding her duties without immediate supervision. See 29 C.F.R. § 541.207 (2003).
D. Attorney's Fees
AS seeks to recover its attorney's fees and costs in defending Campanello's claim. Motion for Summary Judgment at 4. In Title VII and TCHRA claims, a prevailing defendant is entitled to recover attorney's fees only if it is shown that the plaintiff's claim is frivolous, unreasonable or without foundation. Harris v. Plastics Manufacturing Company, 617 F.2d 438, 440 (5th Cir. 1980). Here, AS asserts that Campanello's claims are frivolous, unreasonable, and groundless. Defendant's Brief at 33. However, the court finds that Campanello's claims, while insufficient to survive summary judgment, were not frivolous, unreasonable, or without foundation. As stated above, Campanello established a prima facie case of discrimination, and she also offered evidence of arguably offensive conduct which did not rise to the level of harassment. Therefore, the court denies AS's request for attorney's fees and costs.
III. CONCLUSION
Campanello has failed to produce evidence establishing a genuine issue of material fact on any of her claims. The evidence — even when viewed in the light most favorable to Campanello — fails to establish genuine issues of material fact on her claims that she was terminated because of her sex, that she was subjected to either quid pro quo sexual harassment or a hostile work environment, or that she was entitled to overtime compensation under the FLSA. Accordingly, AS's motion for summary judgment is GRANTED on all of Campanello's claims. AS's request for an award of costs and attorneys' fees is DENIED. AS's motion to strike the plaintiff's affidavit is DENIED as moot.