Opinion
EP-04-CV-0424-FM.
January 26, 2006.
MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT BY ELECTROLUX DEFENDANTS
On this date, the Court considered "Motion for Summary Judgment by Electrolux Defendants" [Rec. No. 15], "Laura Casas' Response/Opposition to Motion for Summary Judgment by Electrolux Defendants" [Rec. No. 22], "Joint Fact Appendix in Support of Motions for Summary Judgment by Defendant Southwest Staffing, Inc. and Electrolux Defendants" [Rec. No. 17], "Electrolux's Reply in Support of Motion for Summary Judgment," [Rec. No. 23], "Defendants' Supplement to Motion for Summary Judgment" [Rec. No. 19] and "Defendants' Objections to Evidence Presented in Plaintiff's Response to Defendants' Motions for Summary Judgment and Affidavit of Laura Casas" [Rec. No. 24] filed in the above captioned cause. After careful consideration of the motion, response, and applicable law, the Court is of the opinion that the "Motion for Summary Judgment by Electrolux Defendants" [Rec. No. 15] should be GRANTED.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff Laura Casas ("Plaintiff") applied for temporary employment positions through Southwest Staffing, Inc. (SSI) on October 13, 2003. On November 12, 2003, Plaintiff was assigned to Electrolux for her first assignment with SSI. SSI maintained an office at the Electrolux facility and four full-time SSI representatives were present at the facility during Plaintiff's shifts. Plaintiff reported to SSI representative Ms. Maria Devora ("Devora"), the person from whom she received her paychecks. Plaintiff alleges that, beginning approximately three weeks after starting work at the Electrolux plant, Mr. Willie Saenz ("Saenz") subjected her to unwanted sexual comments and frequently asked her out on dates. It is further alleged that Saenz, an Electrolux employee, subjected Plaintiff to unwanted touching. Plaintiff also claims that Saenz rubbed his front side against the backside of Plaintiff and would put his hand against hers and hold it down.It is undisputed that Plaintiff did not report the harassing behavior to Devora or anyone else at either SSI or Electrolux. Plaintiff claims she did not report the harassment because another SSI employee told her that the Electrolux supervisor favored Electrolux employees rather than SSI employees and she was afraid of losing her job. On March 31, 2004, Plaintiff was notified by Devora that her assignment had ended and was told to report to SSI's main office to receive other assignments. Plaintiff admits that even after her assignment ended at Electrolux, she did not report Saenz's conduct to anyone at SSI. While waiting for more work from SSI, Plaintiff signed up to work with another staffing company, Adecco, and subsequently obtained a position through Adecco.
In May 2004, Plaintiff filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging gender and sexual discrimination. Plaintiff received notice of the right to sue from the EEOC within 90 days of the filing of the complaint. Plaintiff filed her "Complaint" [Rec. No. 1] on November 10, 2004, alleging she was subjected to sexual harassment and discrimination based on her gender in violation of 42 U.S.C. § 2000e, et. seq. Defendants Electrolux Home Care Products North America, Electrolux Home Care Products North America, Ltd., individually and d/b/a and f/k/a The Eureka Company, Electrolux Home Care Products, Ltd., White Consolidated, Ltd., White Consolidated Industries, Inc., Electrolux Professional, Inc., AB Electrolux, and Electrolux Home Products, Inc. ("Electrolux") answered on February 22, 2005. [Rec. No. 3]. Electrolux now moves for summary judgment pursuant to FED. R. CIV. P. 56(c). [Rec. No. 15].
II. STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. FED. R. CIV. P. 56; Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Sys. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Props, Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25). If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. FED. R. CIV. P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Ass'n, 65 F.3d 443, 447 (5th Cir. 1995).
In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Servs., 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
III. ANALYSIS
Electrolux urges three main grounds in support of its summary judgment motion. First, Electrolux argues that it did not employ the Plaintiff, for Plaintiff was only an employee of co-defendant SSI, a temporary employment agency, assigned to work at Electrolux's assembly plant. Second, even if Electrolux could be held liable as an employer, Electrolux argues that summary judgment is appropriate on Plaintiff's sexual harassment claim because Plaintiff failed to report the allegedly harassing conduct. Finally, Electrolux argues that Plaintiff cannot establish a prima facie case of gender discrimination.The Court first examines whether Plaintiff should be considered an employee of both Electrolux and SSI or only an employee SSI. Claims under Title VII require "an employment relationship between the plaintiff and the defendant." Deal v. State Farm County Mut. Ins. Co., 5 F.3d 117, 118-119 (5th Cir. 1993). Defendant Electrolux argues at the outset that it is entitled to summary judgment on Plaintiff's sexual harassment and gender discrimination claims because Electrolux was not Plaintiff's employer as a matter of law. If Electrolux was not Plaintiff's employer, Plaintiff's claims against Electrolux would be foreclosed regardless of the merits of the action.
In determining whether an employment relationship existed between the Plaintiff and Electrolux within the meaning of Title VII, our Circuit applies a "hybrid economic realities/common law control test." Deal, 5 F.3d at 118-119; see also Broussard v. L.H. Bossier, Inc., 789 F.2d 1158, 1160 (5th Cir. 1986) (holding that the court must consider (1) interrelations of operation, (2) common management, (3) centralized control of labor relations, and (4) common ownership and financial control).
The right to control an employee's conduct is the most important component of this test. Broussard, 789 F.2d at 1160. When examining the control factor, Courts have focused on whether the alleged employer has the right to hire and fire the employee, the right to supervise the employee, and the right to set the employee's work schedule. Deal, 5 F.3d at 118-19; Mares v. Marsh, 777 F.2d 1066, 1068 (5th Cir. 1985). The economic realities component of the test has focused on whether the alleged employer paid the employee's salary, withheld taxes, provided benefits, and set the terms and conditions of employment. See Mares, 777 F.2d at 1068.
Electrolux makes a compelling argument that there is no common management, ownership or financial control between the two companies and as to the imperative control component, aside from job-related supervision by Electrolux employees, SSI maintains complete responsibility for its employees working at the Electrolux facility. Although Plaintiff merely states in a conclusory fashion that she was employed by Electrolux and provides nothing more than legal conclusions and personal suspicions, an extensive review of the summary judgment record reveals that the evidence conflicts at this stage. After careful consideration, the Court is of the opinion that the summary judgment evidence creates a genuine issue of fact as to whether Electrolux and SSI should be considered "joint employers" as a matter of law. Accordingly, there are genuine issues of material fact as to Electrolux's liability and summary judgment in Electrolux's favor is therefore not appropriate on this ground. The Court next examines Defendant's other arguments for summary judgment.
A. Sexual Harassment Claim
Plaintiff's hostile work environment claim is based on alleged inappropriate behavior by Electrolux employee Saenz. Plaintiff alleges that Saenz subjected her to unwanted sexual comments; touched her legs, feet, hands and buttocks; and repeatedly asked her out on dates. Because Plaintiff failed to comply with the sexual advances of Saenz, Plaintiff contends she was fired by SSI and Electrolux.
In order to establish a claim for co-worker hostile work environment, a plaintiff must establish that: "(1) the employee belonged to a protected class; (2) the employee was subject to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a `term, condition, or privilege' of employment; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action." Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 298 (5th Cir. 2001); see also Faragher v. City of Boca Raton, 524 U.S. 775, 786-87 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751 (1998); Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 409 (5th Cir. 2002). In Faragher and Ellerth, the Supreme Court modified this test with respect to cases where the alleged harasser is a supervisor with immediate or higher authority over the harassed employee. See id.; see Watts v. Kroger, 170 F.3d 505, 509-511 (5th Cir. 1999). In such cases, the employee need only meet the first four elements of the test. See id.
Electrolux moves for summary judgment alleging Plaintiff cannot prevail on her sexual harassment claim because Saenz was not Plaintiff's supervisor and she cannot prove that Electrolux knew or should have known about the harassment. For the purposes of the motion, Electrolux does not dispute that Plaintiff belongs to a protected class and she was subjected to unwelcome harassment based on sex. Electrolux claims that it cannot be held liable for any harassment perpetrated by one of its employees, because it has satisfied both requirements of the affirmative defense established by the Supreme Court in Ellerth and Faragher. "The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Ellerth, 524 U.S. at 765.
The Court must first determine whether Saenz was Plaintiff's co-worker or supervisor. If the Court finds that the case at bar involves "non-supervisory" harassment, the Court will then determine whether Defendant can establish the Ellerth/Farageher affirmative defense. Plaintiff describes Saenz as the "supervisor, group leader of Laura Casas," [Rec. No. 1, pg. 3] while Electrolux designates Saenz as "the Electrolux lead person working in Plaintiff's area at the Electrolux facility." [Rec. No. 15, pg. 5]. Plaintiff's only summary judgment proof that Saenz was a supervisor is Plaintiff's own subjective belief. Plaintiff does not state any facts which would raise an issue as to whether Saenz was Plaintiff's supervisor. As Electrolux argues in the summary judgment motion, "Plaintiff does not attest that Mr. Saenz set her schedule, disciplined her, promoted her, evaluated her, or did anything other than periodically show her the assembly line where she was needed to work." [Rec. No. 15, pg. 5]. Further, Plaintiff does not contradict the affidavit of Angie Arreola, which describes the extent of Mr. Saenz' authority as a line "lead" and not having the authority to hire, suspend, penalize or otherwise affect the employment of the SSI employees he worked alongside. [Rec. No. 17, Exh. 1]. Having reviewed all of the record, the Court concludes that Saenz was not Plaintiff's supervisor. The Court now determines whether Electrolux has established the Ellerth/Faragher defense. 1. Reasonable Steps to Avoid Sexual Harassment
Even if Court found that Saenz was in fact Plaintiff's supervisor and Electrolux did not establish the Faragher/Ellerth defense, Plaintiff's sexual harassment hostile work environment claim fails because Plaintiff cannot establish that she suffered an adverse employment action or show a causal connection between the alleged firing and the alleged harassment. The factual and legal analysis of this Court regarding Plaintiff's inability to show an adverse employment action and a causal connection between the alleged firing and harassment is found in section III. B. of this Order.
To establish the first prong of the Faragher/Ellerth affirmative defense, Electrolux must prove that "it exercised reasonable care to prevent and correct promptly any sexually harassing behavior." See Ellerth, 524 U.S. at 742; Faragher, 524 U.S. at 775. Citing Scrivner v. Socorro Indep. Sch. Dist., 169 F.3d 969, 971 (5th Cir. 1999), Electrolux first argues that "[w]hile not required as a matter of law, the existence of an anti-harassment policy satisfies the first prong of the Faragher/Ellerth defense." [Rec. No. 15, pg. 6]. While it is true that Ellerth and Faragher seem to imply that the adoption of an anti-harassment policy may be enough to satisfy the first requirement, it is clear that a policy not enforced would do nothing to accomplish the aims of Title VII. The Court notes the Third Circuit's reading of the defense that postures " Ellerth and Faragher do not . . . focus mechanically on the formal existence of a sexual harassment policy, allowing an absolute defense to a hostile work environment claim whenever the employer can point to an anti-harassment policy of some sort." Hurley v. Atlantic City Police Dept., 174 F.3d 95, 118 (3rd Cir. 1999). Further, the Supreme Court in Faragher wrote: "[w]here . . . there is no evidence that an employer adopted or administered an anti-harassment policy in bad faith or that the policy was otherwise defective or dysfunctional, the existence of such a policy militates strongly in favor of a conclusion that the employer `exercised reasonable care to prevent' and promptly correct sexual harassment." Faragher, 524 U.S. at 807.
In the case at bar, Plaintiff pleads, without any support, "Laura Casas states Electrolux does not have an anti-harassment policy and that she did not receive such non-existent anti-harassment policy." [Rec. No. 22, pg. 9]. However, Electrolux produced ample evidence that it maintains an anti-sexual harassment policy for all workers working in the Electrolux facility, including full-time and temporary employees. The summary judgment evidence showed that the policy, which is posted in conspicuous locations around the facility, instructs employees who believe they have been subjected to sexual harassment to report the harassing conduct. The posted notice of the policy also included an 800-number for reporting violations. Further, the summary judgment evidence showed that Electrolux's human resources department is available to hear complaints about sexual harassment from any employees working at the facility.
After a careful review of the entire record, the Court is of the opinion that Electrolux exercised reasonable care to prevent the alleged harassing behavior and therefore has satisfied the first prong of the Faragher/Ellerth affirmative defense.
2. Unreasonable Failure to Take Advantage of Preventative Opportunities Provided by Employer
Electrolux must next establish that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Ellerth, 524 U.S. at 765. The second prong of the Faragher/Ellerth defense is a "policy imported from the general theory of damages that a victim has a duty `to use such means as are reasonable under the circumstances to avoid or minimize the damages' that result from violations of the statute." Faragher, 524 U.S. at 806 (quoting Ford Motor Co. v. EEOC, 458 U.S. 219, 231 n. 15 (1982)). "[W]hile proof that an employee failed to fulfill the . . . obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense." Id. at 807-08.
As previously discussed, Electrolux's anti-harassment policy allowed Plaintiff the means to report any harassing behavior. The Court is of the opinion that Plaintiff unreasonably failed to take advantage of Electrolux's anti-harassment policy, for she could have contacted SSI management or Electrolux management. Even though Plaintiff claims she went looking for SSI representative Maria Devora on two occasions to report the harassment, Plaintiff states that it appeared that Devora had already left for the day. Further, Plaintiff admits she never actually made a report or ever told any other Electrolux management of the situation.
Plaintiff argues that she did not file a report or tell a supervisor because another employee told her that the Electrolux supervisor would side with Electrolux employees rather than SSI employees and she was afraid she would not be able to keep her job. After a careful review of the entire record, the Court is of the opinion that the failure to report the harassing conduct was not reasonable.
Based on this evidence, viewed in the light most favorable to Plaintiff, the Court determines that Electrolux has met both prongs of the Faragher/Ellerth defense. Electrolux has met its burden of demonstrating that no genuine issue of material fact is left for trial with respect to Plaintiff's sexual harassment claims. Accordingly, summary judgment is proper based on Electrolux's Faragher/Ellerth affirmative defenses.
B. Gender Discrimination
Plaintiff asserts that Electrolux discriminated against her on the basis of her gender, female, in violation of Title VII. When a plaintiff asserts a discrimination claim under Title VII, she must prove the claim of discrimination either through direct or circumstantial evidence. See McDonnell Douglas v. Green, 411 U.S. 792, 802-04 (1973). Since direct evidence of discrimination is rare, a plaintiff must usually rely upon circumstantial evidence of discrimination.
When analyzing claims based on circumstantial evidence, courts employ the three-part burden shifting analysis set forth in McDonnell Douglas v. Green. See 411 U.S. at 802-04; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); Byers v. Dallas Morning News, 209 F.3d 419, 425-26 (5th Cir. 2000). Plaintiff must first establish a prima facie case of discrimination. Id. If the prima facie case is successfully established, the burden then shifts to a defendant to demonstrate a legitimate, nondiscriminatory reason for its action. Id. Finally, if both burdens are met, the burden shifts back to the plaintiff to demonstrate that defendant's nondiscriminatory action was a mere pretext for discrimination. Id.
To establish the prima facie case on her claim for gender discrimination, Plaintiff must show the following: (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) she was qualified for her position; and (4) she was replaced by someone outside her protected class or, in the case of disparate treatment, "that others similarly situated were treated more favorably." See Okoye v. The University of Texas Houston Health Science Center, 245 F.3d 507, 512-513 (5th Cir. 2001). At the summary judgment stage, Plaintiff need only demonstrate a genuine issue of fact as to the prima facie case to meet her burden. However, if Plaintiff cannot establish a prima facie case of discrimination, the Court need not address the remaining elements of the McDonnell Douglas analysis.
Electrolux argues that the Plaintiff cannot satisfy the second prong of her prima facie case because the undisputed evidence shows that Plaintiff did not suffer an adverse employment action. Additionally, Electrolux argues Plaintiff cannot satisfy the fourth prong of her prima facie case because Plaintiff lacks any evidence that similarly situated individuals outside her protected class were treated more favorably. For the purposes of the motion, Electrolux does not dispute that Plaintiff satisfies the first and third elements of her cause of action.
1. Adverse Employment Action
The Fifth Circuit stated that the purpose of Title VII was to address "ultimate employment decisions," not every decision of an employer which could have little, if any, effect on the "ultimate employment decisions." Mattern v. Eastman Kodak Co., 104 F.3d 702, 705-07 (citing Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995)). These ultimate decisions include such actions as "hiring, granting leave, discharging, promoting, and compensating." Id. Other acts such as documented reprimands, verbal threats of being fired, and placement on "final warning" do not constitute ultimate employment actions. Id. at 708.
After careful consideration, the Court is of the opinion that Plaintiff did not suffer an adverse employment action. Plaintiff was a temporary employee assigned to work at the Electrolux plant by her employer, SSI. On March 31, 2004, Plaintiff was notified that her assignment had ended and was told to report available for other assignments at SSI's main office. On April 2, 2004, Plaintiff went to SSI's main office and requested that in the future she be assigned clerical work rather than light industrial work as she had been doing at Electrolux. While waiting for work from SSI, Plaintiff signed up to work with another staffing company, Adecco, and subsequently obtained a position through Adecco.
Plaintiff's summary judgment response contends that Plaintiff did suffer an adverse employment action by arguing "Electrolux makes the judicial admission that Laura Casas' employment terminated but it fails to controvert that Laura Casas was fired by Electrolux because she would not comply with the sexual advances of her supervisor." [Rec. No. 22, pg. 6]. Plaintiff contends that SSI made the "judicial admission" that Plaintiff was terminated in Electrolux's original answer by citing the following exert from the answer: "Defendants admit that Plaintiff's employment was terminated . . ." [Rec. No. 3]. Paragraph 18 of Plaintiff's Original Complaint alleges "Defendants' intentional discrimination resulted in an adverse employment action against Laura Casas. Specifically, Laura Casas was terminated." [Rec. No. 1]. Paragraph 18 of Defendants' Original Answer in turn states: "Defendants admit that Plaintiff's employment was terminated, but denies any discrimination as alleged in Paragraph 18 of the Complaint." [Rec. No. 3]. However, Electrolux cannot be said to have made a judicial admission because Plaintiff was eventually terminated by SSI when she had not requested a new job assignment in several months. A clear review of the pleadings shows that Electrolux has not admitted that an adverse employment action occurred on March 21, 2004 and no judicial admission was made. After a careful review of the entire record, the Court is of the opinion that Plaintiff did not suffer an adverse employment action.
As Plaintiff has not established a genuine issue of fact as to the prima facie case of sex discrimination, summary judgment on her Title VII discrimination claim is proper.
2. Similarly-Situated Individuals Treated More Favorably
Even if Plaintiff could prove that there was an adverse employment action by Electrolux, Plaintiff cannot make a prima facie case of discriminatory treatment because she has not brought forth evidence that she was treated less favorably than similarly situated male SSI employees assigned to work in the Electrolux plant when she was informed that her assignment ended on March 31, 2004. In order to be similarly situated, Plaintiff must show that circumstances of comparable employees must be "nearly identical" to Plaintiff's circumstances. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995). As Electrolux correctly argues, "[i]ndividuals working for Electrolux (rather than SSI) do not qualify as `imilarly situated' because they are full time employees." [Rec. No. 16, pg. 8].
Plaintiff's only evidence that similarly situated individuals were treated more favorably is Plaintiff's unsubstantiated argument that several male temporary employees were chosen to continue working at Electrolux when her assignment ended. However, the summary judgment evidence shows that the SSI employees chosen to continue working at the Electrolux plant after April 1, 2004 are not similarly situated because only individuals able to "run both hoses and power nozzles were selected to continue at Electrolux following a major decrease in production requirements" and "[t]his included both males and females." [Rec. No. 16, pg. 8]. Electrolux also produced evidence that of the sixteen temporary employees working on the line at the time, the nine temporary employees who were able to run both power nozzles and hoses were selected to continue their assignments. This group consisted of six females and three males. Plaintiff was among the temporary employees whose assignments ended on March 31, 2004 because Plaintiff was not able to run both power nozzles and hoses. Furthermore, Plaintiff has provided no facts to suggest that Electrolux's stated reason of the ability to run both power nozzles and hoses for selecting which employees should continue working is either false or a pretext for discrimination.
Because Plaintiff cannot show that other similarly situated employees outside of Plaintiff's protected class were treated more favorably, the Court finds that Plaintiff is unable to establish the fourth element of her prima facie case. Therefore, Plaintiff cannot make a prima facie case of discrimination and Electrolux is entitled to summary judgment as a matter of law.
IV. CONCLUSION
IT IS THEREFORE ORDERED that the "Motion for Summary Judgment by Electrolux Defendants" [Rec. No. 15] is hereby GRANTED.