Summary
holding that alleged harassment was "constant and pervasive," but that it was not "`extreme and outrageous' behavior that would rise to the level of that required to support [an] IIED claim"
Summary of this case from Rogers v. American Heritage Life Insurance CompanyOpinion
Civil Action No. 3:01-CV-0701-P
July 9, 2002.
MEMORANDUM OPINION AND ORDER
Now before the Court for consideration are:
1. Defendant Waffle House, Inc.'s Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56, with brief in support and appendix filed March 8, 2002;
2. Plaintiff Julianne Contreras' Response to Defendant's Motion for Summary Judgment with brief in support and appendix, filed March 29, 2002;
3. Defendant Waffle House, Inc.'s Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment, filed April 12, 2002; and
4. Plaintiff's Rejoinder to Defendant's Summary Judgment Reply, filed April 25, 2002.
After a thorough review of the summary judgment evidence, the pleadings, the parties' briefs, and the applicable law, for the reasons set forth below, the Court is of the opinion that Defendant's Motion for Summary Judgment should be GRANTED as to all claims.
BACKGROUND
Plaintiff Julianne Contreras ("Contreras") filed this suit against Waffle House, Inc. ("WHI") on April 9, 2001, claiming sexual harassment, retaliation, intentional infliction of emotional distress (IIED), as well as assault and battery. WHI now moves the Court for summary judgment against all of Contreras' claims.
In mid-January 2000, Contreras accepted a management position with WHI at its Richardson, Texas location and subsequently began a required 12-week management training program. App. Supp. of Pl.'s Resp. to Def.'s Mot. for Summ. J., Ex. A at 4, 10 (hereinafter "Pl.'s App."). The program was designed to expose management trainees to all aspects of the operation by rotating the trainee through various positions within the restaurant. Pl.'s App., Ex. A at 6. During her training, Contreras studied WHI company policies and procedures, completed paperwork, handled deposits, and worked as a waitress and grill cook. Pl.'s App., Ex. A at 8-9. During the first four weeks of her training, Plaintiff was supervised in part by WHI assistant manager Bernard Ross and proceeded without incident. Pl.'s App., Ex. A at 9-10. When Mr. Ross left the company, Contreras continued her training, eventually working directly with Tony Foster ("Foster"), a grill operator. Pl.'s App., Ex. A at 13, 21-22.
According to Contreras, she worked in the restaurant's open grill area with Foster beginning in her fourth week for about three to four hours each day. Pl.'s App., Ex. A at 19, 29. She alleges that Foster began sexually harassing her four or five days into her grill operation. Pl.'s App., Ex. A. at 21-22. Foster's alleged behavior included: continually requesting hugs; making references to Contreras performing a sexual act on his body; repeated nonconsensual touching of her hair, hands and upper body; nonconsensual touching of her hips and torso from behind on one occasion; and making comments of a sexual nature concerning her appearance and her sexual relationship with her husband. Pl.'s Resp. to Def.'s Mot. for Summ. J., II ¶¶ 6-8 (hereinafter "Pl.'s Resp."). Contreras asserts that on all occasions she rebuffed Foster's advances. Pl.'s Comp. ¶ 6.
Plaintiff claims that after Foster touched her torso, she told WHI district manager Paul Ramirez ("Ramirez"), "tell this man to leave me alone," although she failed to provide a reason for her request and has no idea if Ramirez ever observed Foster touching her back. Pl.'s App., Ex. A at 54. Plaintiff asserts that approximately a week later she spoke with Ramirez a second time about Foster's conduct and told Ramirez she felt sexually harassed, but that they did not discuss details. Pl.'s App. Ex. A at 56. Contreras also states that, at that time, Ramirez asked her whether she wanted to work in another unit but her response was unclear. Pl.'s App., Ex. A at 78, 82. WHI did not remove Foster from his position in the grill or otherwise discipline him. Pl.'s App., Ex. D at 153. Contreras failed to return to work five days later. Pl.'s App., Ex. A at 89.
Plaintiff quit her job on March 10, 2000, approximately six weeks after she began work at WHI. Pl.'s Compl. ¶ 8. She claims that when WHI failed to respond to her complaints against Foster and the alleged behavior continued this prevented her from returning to work and therefore she was constructively discharged from her job. Pl.'s Br. in Resp. to Def.'s Mot. for Summ. J. at 17 (hereinafter "Pl.'s Br. in Resp."). Contreras did not contact WHI to let them know she would not return. Pl.'s App., Ex. A at 57. When Contreras failed to report to work WHI's regional manager, Trent Angelle ("Angelle"), called her to ascertain why she was not at work. Pl.'s App., Ex. A at 58. Angelle asked Contreras if anything had happened and if she wanted to transfer to a different WHI restaurant. Pl.'s App. Ex. A at 58, 89. Plaintiff, however, did not inform Angelle of the alleged harassment and simply replied that she was "finished" and "didn't want to work." Pl.'s App., Ex. A at 58, 89.
Contreras filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC") on April 26, 2000. On January 10, 2001, she received notice from the EEOC of her right to sue and filed this civil action on April 9, 2001.
In its motion, WHI argues that it is entitled to summary judgment on Contreras' sexual harassment claim because the facts as presented are, as a matter of law, insufficient to establish a severe and pervasive hostile work environment and because Contreras failed to reasonably utilize WHI's complaint mechanisms. Def.'s Mot. for Summ. J. at 3. WHI also contends that Contreras is barred from asserting a retaliation claim because she failed to assert retaliation in her administrative discrimination charge or, alternatively, her retaliation claim fails because she suffered no adverse employment action. Id.
Regarding Contreras' intentional infliction of emotional distress claim, WHI asserts that it fails because the conduct she complains of is not sufficiently extreme and outrageous. Id. at 3-4. Finally, WHI argues that the assault and battery claims also fail because they are preempted by the Texas Workers' Compensation Act and are not actionable under Texas law. Id. at 4. The Court will now address each of these arguments individually.
I. Summary Judgment Standard
Generally, summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Fed.R.Civ.P. 56(c). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden of identifying the absence of any genuine issue of material fact based on the evidence in the case file. Celotex, 477 U.S. at 323. The court must view all evidence and the inferences to be drawn therefrom "in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); see also Marshall v. Victoria Transp. Co., 603 F.2d 1122, 1123 (5th Cir. 1979). Although all reasonable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion, "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.
Once the moving party has made its initial showing, the nonmovant must offer evidence sufficient to demonstrate a genuine issue of material fact for its claim to survive summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Mere assertions of a factual dispute absent probative evidence will not prevent summary judgment; the party defending against a motion for summary judgment cannot defeat the motion unless it provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in its favor. See Anderson, 477 U.S. at 256-57. If the nonmovant fails to provide evidence sufficient to establish any of the material elements of its case for which it will bear the burden of proof at trial, summary judgment must be granted. See Celotex, 477 U.S. at 322-23. In the absence of any proof, the Court will not simply assume that the nonmoving party could or would prove the essential facts necessary to support a judgment in favor of the nonmovant. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075-76 (5th Cir. 1994).
Finally, the Court has no duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which the evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id.
II. Title VII Standard
Under Title VII of the Civil Rights Act of 1964, "it shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment because of such individual's sex." 42 U.S.C. § 2000e-2 (a)(1) (2001). According to the Supreme Court, employers may be held vicariously liable for harm resulting from sexual harassment in the workplace. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); see also Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Two principal theories of sexual harassment may be shown under Title VII: quid quo pro and hostile work environment. See Mentor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986). The first theory prohibits an employer from requiring sexual favors from an employee as a quid pro quo for job benefits. Jones v. Flagship Int'l, 793 F.2d 714, 721 (1986). The second theory disallows on-the-job sexual harassment that "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive environment." Mentor Sav. Bank, 477 U.S. at 65. In this case, Plaintiff is claiming only that her coworker's behavior created a hostile work environment. Pl.'s Comp. ¶¶ 6-8.
A. Hostile Work Environment Claim
To survive summary judgment on her sexual harassment claim, Contreras must provide evidence that raises a genuine issue of material fact concerning each element of her prima facie case. Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640-641 (5th Cir. 1985). The Fifth Circuit has established five elements necessary to state a prima facie case of sexual harassment by a co-worker in a non-supervisory position:
(1) The employee belongs to a protected group;
(2) The employee was subject to unwelcome sexual harassment, i.e., sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature that is unwelcome in the sense that it is unsolicited or uninvited and is undesirable or offensive to the employee;
(3) The harassment complained of was based upon sex;
(4) The harassment complained of affected a "term, condition or privilege of employment," i.e., the sexual harassment must be sufficiently severe as to alter the conditions of employment and create an abusive working environment; and
(5) Respondeat superior, i.e., that the employer knew or should have known of the harassment in question and failed to take prompt remedial action.
See Shepherd v. Comptroller of Public Accounts of the State of Texas, 168 F.3d 871, 873 (5th Cir. 1999) (citing Jones, 793 F.2d at 719-20).
Contreras, a female, is a member of a protected class and has set forth sufficient evidence to adequately raise a fact issue with respect to the second and third elements of the test. Therefore, the Court need only consider two questions: (1) whether Contreras has raised a genuine issue of material fact that the alleged harassment was severe or pervasive enough to alter a "term, condition, or privilege" of her employment; and (2) whether Contreras has raised a genuine issue of material fact that WHI knew or should have known about the harassment yet failed to take prompt remedial action.
1. Is there a genuine factual issue that the alleged harassment was severe enough to affect a "term, condition, or privilege" of Contreras' employment?
a. Severity and Pervasiveness
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." Meritor Savings Bank, 477 U.S. at 66-67; see Woods v. Delta Beverage Group, 274 F.3d 295, 299 (5th Cir. 2001). The standard for determining whether the alleged conduct created a hostile or abusive working environment is an objective "reasonable person" standard. DeAngelis v. El Paso Municipal Police Officers Ass'n, 51 F.3d 591, 594 (5th Cir. 1995). Applying this standard, the court must evaluate all of the circumstances surrounding the alleged harassment, including: 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 the employee's work performance. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993); Woods, 274 F.3d at 299. In addition, the court should consider the type of conduct (verbal or physical), whether it comes from a supervisor or co-worker, and the number of persons at whom it is directed. Soto v. El Paso Natural Gas Co., 942 S.W.2d 671 (Tex.App. — El Paso, 1997) (citing King v. Hillen, 21 F.3d 1572, 1579 (Fed. Cir. 1994)).
In her complaint, Contreras has alleged multiple instances of verbal and physical harassment by her coworker, Foster, concentrated in a two-week time period. Pl.'s Comp. ¶ 6. In her deposition, Contreras described Foster's conduct during the 3-1/2 to 4 hours a day they spent together at the grill as that of Foster routinely saying "ooh, baby, what I could do with you," saying "I want you" about seven times, and on ten occasions telling her she had "really pretty hair" while touching her hair for about one second. Pl.'s App., Ex. A at 31, 34, 36. Plaintiff also states that when they were together cooking at the grill "if their hands were together he'd touch [her] hand" and comment on how soft they were. Def.'s App. to Mot. for Summ. J. at 26 (hereinafter "Def.'s App."). In addition, Contreras alleges that one week into the grill operation Foster made comments about her sexual relationship with her husband as well as other sexual innuendos directed specifically at her. Throughout all of this, Plaintiff asserts that without exception she indicated to Foster that his conduct was unwelcome, either verbally or by pushing his hand away. Pl.'s App., Ex. A at 34, 40-41, 45.
Foster allegedly said one time "I can imagine the way you turn on your husband when you're on top of him" and another time said "I can imagine you in bed with your husband." Pl.'s App. Ex. A at 32, 39.
On one occasion, when Contreras put bacon on the grill, he said he could imagine her touching his "meat" — which Contreras assumed meant his penis. Pl.'s App. Ex. A at 39, 40. Foster would say also "what I could do with you. Id.
There is no bright line for determining what constitutes harassment and what is merely offensive. The Supreme Court has indicated that the "mere utterance of an . . . epithet which engenders offensive feelings in an employee" does not affect the conditions of employment to a significant degree sufficient to violate Title VII. Mentor Savings Bank, 477 U.S. at 66-67 (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971) and Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). However, the Court here finds that there is sufficient evidence in this case to raise a factual issue as to whether a pervasively hostile work environment existed at WHI given that Foster allegedly made frequent sexual comments, directed them specifically at Contreras, and more often than not these were accompanied by some form of brief, yet nonetheless offensive physical contact.
Defendant points to a number of cases wherein other courts have declined to find a hostile environment when the harassing behavior was arguably similar to Foster's alleged behavior in this case. See Shepherd, 168 F.3d at 872-874 (finding comments such as "your elbows are the same color as your nipples," "you have big thighs," and "here's your seat" while patting the lap was merely offensive.); Gearhart v. Eye Care Ctrs. of Am., 888 F. Supp. 814, 825 (S.D. Tex. 1995) (finding coworkers' comments about "sleeping with the boss," masturbation, as well as three occasions of alleged offensive touching insufficient to show a hostile environment.); see also Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309 (5th Cir. 1987) (citing Shepherd and Gearhart to show offensive behavior may not be sufficient to sustain a sexual harassment claim). However, though similar to Foster's alleged behavior, the harassing behavior depicted in these cases consisted of fewer or more isolated incidents which occurred over a period of months and even years. See Shepherd, 168 F.3d at 874 (harassing behavior allegedly took place for almost two years); Gearhart, 888 F. Supp. at 824 (over a six-week period defendant's employees allegedly made inappropriate comments to plaintiff and on three occasions touched her in an offensive manner); Green v. Industrial Specialty Contractors, 1 S.W.3d 126, 134 (Tex.App. — [1st District] 1999) (supervisor's alleged harassment consisted of five incidents over a six month period). Meanwhile, in the instant case, Foster's alleged harassment was not only constant and pervasive, but also took place throughout a short two-week time period.
Moreover, in evaluating whether a hostile work environment existed the court must look to the plaintiff's actual work environment and evaluate the general work atmosphere as well as specific instances of alleged hostility or abuse. See King, 21 F.3d at 1579; Hicks v. Gates Rubber Co., 833 F.2d 1406, 1416 (10th Cir. 1987). The most offensive incident which Contreras alleges took place is when she states: "[Foster] came from behind me and put [both] his hands on my back from where my armpit is and he went down to my hips." Pl.'s App., Ex. A at 43. Contreras also asserts that when a WHI waitress, Donna Siddall, bent down to retrieve a towel from underneath the grill, Foster said to Donna "while you're down there why don't you suck my dick." Pl.'s App., Ex. A. at 45-46. At that point, according to Contreras, Foster pinched Donna's buttocks and then asked Contreras if she "wanted some, too." Pl.'s App., Ex. A. at 46, 48.
Harassment directed at other members of the same protected group is relevant to show a hostile environment. Hillen, 21 F.3d at 1581; Waltman v. International Paper, Co., 875 F.2d 468, 477 (5th Cir. 1989). Moreover, single incidents should not be viewed in isolation; it is the cumulative effect of offensive behavior which creates the work environment. Id. Thus, based on allegations as stated by Plaintiff, the Court finds that a reasonable jury could conclude that where a person is subjected to such multiple incidents of sexual harassment on a daily basis a hostile work environment may be found to exist.
b. Adverse Employment Effects
Once Contreras has shown a sufficiently pervasive hostile environment, she must also demonstrate an adverse effect on her employment as a result of Foster's behavior. In March 2000, without notifying anyone at WHI, Contreras did not report to work. Pl.'s App., Ex. A. at 57. Since Plaintiff does not allege that WHI acted affirmatively to change her employment status or conditions, the only way she can demonstrate an adverse employment effect is to claim constructive discharge.
In the motion for summary judgment, Defendant asserts that constructive discharge is not an adverse employment action sufficient to support the fourth element of a Title VII. This assertion, however, is incorrect. The Fifth Circuit has clearly held that when an employee resigns, she may satisfy the discharge requirement by proving constructive discharge. See Barrow v. New Orleans Steamship Ass'n, 10 F.3d 292, 297 (5th Cir. 1994).
To prove constructive discharge, an employee must offer evidence that the employer made the employee's working conditions so intolerable that a reasonable employee would feel compelled to resign. "Stated more simply, [her] resignation must have been reasonable under all the circumstances." Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000). Whether a reasonable employee would feel compelled to resign depends on the facts of each case, but the Court considers the following factors relevant, (singly, or in combination): (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work . . . (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) continued employment on terms less favorable than the employee's former status. Id.
Contreras effectively "resigned" from WHI on March 10, 2000. As this Court has previously acknowledged, "[t]o prove a constructive discharge, a plaintiff must establish that working conditions were so intolerable that a reasonable employee would feel compelled to resign . . . [c]onstructive discharge requires a greater degree of harassment than that required by a hostile environment claim. Discrimination alone, without aggravating factors, is insufficient for a claim of constructive discharge." Friend v. Interior Systems, Inc., No. 3:00-CV-2170-P, slip op. at *21 (N.D. Tex. May 23, 2002) (Solis, J.) (citing Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001)). "To avoid summary judgment on her constructive discharge claim, plaintiff is required to show the harassment was greater in severity or pervasiveness than the minimum required to prove a hostile work environment." Green v. Industrial Specialty Contractors, 1 S.W.3d 126, 134 (Tex.App. — [1st District] 1999) (citing Epps v. NCNB Texas, 7 F.3d 44, 46 (5th Cir. 1993), Passons v. Univ. of Texas at Austin, 969 S.W.2d 560, 565 (Tex.App.-Austin 1998, no pet.)). Plaintiff here suffered none of the relevant acts which would make her resignation reasonable under all the circumstances. Further, the Court finds that Plaintiff has not established that a reasonable employee would have felt compelled to resign under the circumstances present. As discussed infra, after Contreras notified WHI of Foster's harassment, she did not give WHI sufficient time to remedy the harassment. Because Plaintiff resigned before giving her employer an opportunity to remedy the harassment, she cannot establish that she was constructively discharged.
2. Is there a genuine factual issue as to WHI knowledge of harassment and subsequent failure to take remedial action?
An employer becomes liable for sexual harassment only if it knew or should have known of the harassment and failed to take prompt remedial action. Garcia v. Elf Atochem N. Am., 28 F.3d 446, 451 (5th Cir. 1994). An employee can show actual notice by proving that she complained to higher management. Waltman v. Int'l Paper, Co., 875 F.2d 468, 478 (5th Cir. 1989). Or, she can demonstrate constructive notice by "showing the pervasiveness of the harassment, which gives rise to the inference of knowledge or constructive knowledge." Henson, 682 F.2d at 905 (citing Taylor v. Jones, 653 F.2d 1193, 1199 (8th Cir. 1981)); Swentek v. U.S. Air, Inc., 830 F.2d 552, 558 (4th Cir. 1987). This case involves alleged harassment by a coworker who was not responsible for the terms and conditions of Contreras' employment, nor for her work assignment within the company, or for hiring or firing decisions. Moreover, the record here does establish that anyone within WHI was aware of Contreras' complaints until her second conversation with Ramirez five days before she "resigned." Nor does the record contain any evidence that Foster's conduct was witnessed by any of her co-workers or supervisors. Therefore, the Court finds that WHI did not know nor should it have known of Foster's offensive behavior until Contreras' second conversation with Ramirez. See Nash v. Electrospace Sys., Inc., 9 F.3d 401, 404 (5th Cir. 1993). Thus, WHI may not liable under Title VII unless Contreras can show it failed to take prompt remedial action. Id.
According to Plaintiff, after Foster put his hands on her back she opened the door to the break room — with Foster following her, laughing and joking — where Ramirez was sitting in the small office. Pl.'s App., Ex. A at 54. She asserts that she told Ramirez "could you please tell this man to leave me alone" and Ramirez and Foster laughed thinking she was joking. Id. According to her deposition testimony, at that time Plaintiff had not yet told Ramirez that she was referring to Foster's touching her when Ramirez responded "he does that to everybody." Id. at 54, 55. She claims she didn't say more to Ramirez because "it just wasn't the time to talk" and "everybody was in back." Id. Plaintiff also claims she chose not ask to speak privately to district manager Ramirez, her immediate supervisor at the time, because she was "ashamed and felt bad" and she "couldn't just go to any man." Id. at 55. Meanwhile, Ramirez confirms that Contreras did not tell him at that time that Foster had touched her and she admits she had no idea if Ramirez saw Foster touch her. Id. at 54; Pl.'s App., Ex. D at 151.
About a week later, Contreras alleges that she and Ramirez "were in the office or something" when they talked a second time. Pl.'s App., Ex. A at 56. She complained to Ramirez that she wasn't happy at WHI. When he asked what she meant by that, she brought up Foster "bothering her" but did not give him specific details. Id. at 56. She does claim that she told Ramirez that Foster was harassing her and saying things to her in a "sexual manner." Id. at 56. Though these conversations can clearly be categorized as vague and ambiguous, the Court finds they are sufficient to raise an issue of material fact as to Ramirez', and therefore WHI's, knowledge of the alleged harassment.
Once the plaintiff has raised an issue with regard to defendant's knowledge of the harassment she must also show that employer failed to take proper remedial action. Though Contreras has raised an issue with regard to notice she has failed to show that WHI did not take remedial action in this case. In Contreras' own deposition she states that both Ramirez, prior to her "resignation," and Angelle, subsequent to her "resignation," without knowing any details of Foster's alleged harassment, offered to continue her training at another location if she was unhappy at the Richardson unit. Pl.'s App., Ex. A at 78, 82. Plaintiff's response to Ramirez' offer was "I don't know." Def.'s App., Ex. A at 29. When Angelle followed up with her after she left WHI about transferring to another unit she said: "`no' `didn't want to work' `finished'." Pl.'s App., Ex. A at 82, 89.
Title VII is not a strict liability statute for employers. Nash, 9 F.3d at 404. An employer is liable only if it knew or should have known of the employee's offensive conduct and did not take steps to repudiate that conduct and eliminate the hostile environment. Id.; see also Jones, 793 F.2d at 720. Contreras has produced no such evidence in this case.
By virtue of Ramirez' offer to move Contreras to another store, WHI clearly attempted to provide a remedy. Whether that remedy was sufficient is irrelevant since there is no indication from the record that Contreras questioned why she should move instead of Foster; she simply did not respond — either positively or negatively. Five days later she failed to return to work. WHI demonstrated its good faith via Angelle's subsequent call reaffirming the offer to move her to another store and his attempt to determine Contreras' specific issues. Again Plaintiff refused to respond and rejected WHI's attempt to provide a remedy.
In addition to ignoring Ramirez' offer to move to another restaurant, Plaintiff also unreasonably failed to take advantage of other options at her disposal. As the record reflects, WHI had extensive policies and procedures in place for preventing and correcting sexual harassment. See Pl.'s App., Ex. 1-8. A management trainee, Contreras was well acquainted with those policies and procedures and had to study and review such policies, including the sexual harassment policy, and have her supervisor "grade" her work. Pl.'s App., Ex. A at 8-9; Def.'s App., Ex. A at 39. The "Week 1/Day 1" assignment included reading the Sexual Harassment Policy and reviewing steps for reporting incidents of harassment or discrimination. See Pl.'s App., Ex. 2. Part of WHI's policy was to post hotline flyers in the restaurant stating "you must report these unlawful acts (including sexual harassment) by calling the hotline," "you haven't officially reported the act until you call the hotline," and "you may remain anonymous — every call is considered confidential and will be investigated." Pl.'s App., Ex. 4; Id., Ex. D at 124. Contreras admits she knew about the WHI anonymous hotline, but states that she was "too embarrassed" to call the anonymous hotline and report Foster's alleged behavior. Def.'s App. Ex. A at 33, 37. The Court, however, finds that Plaintiff failed to reasonably avail herself of the preventive and corrective measures offered by her employer and Defendant has met its burden with respect to this element.
Given Plaintiff's failure to establish a genuine issue of material fact with respect to the fifth element of her sexual harassment claim and her unreasonable failure to take advantage of her employer's preventative and corrective procedures, Defendant's motion for summary judgment on this claim shall be GRANTED.
III. Retaliation Claim
To establish a prima facie case for retaliation, Plaintiff must prove that (i) she was engaged in protected Title VII activity; (ii) she suffered an adverse employment decision; and (iii) a causal nexus exists between the protected activity and the adverse employment decision. Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000). Once Plaintiff has established her prima facie case, the burden shifts to Defendant to demonstrate a nondiscriminatory reason for the employment decision. Id. If Defendant is able to supply a sufficient explanation for the employment decision, the burden shifts back to Plaintiff to show the Defendant's reason is merely pretextual. Id. Ultimately, the court must decide whether the conduct protected by Title VII was a "but for" cause of the adverse employment decision. Long v. Eastfield College, 88 F.3d 300, 304 n. 4 (5th Cir. 1992) (citing McDaniel v. Temple Indep. Sch. Dist., 770 F.2d 1340, 1346 (5th Cir. 1985)).
Here, the Court finds that Contreras has failed to demonstrate that she suffered an adverse employment decision. As previously stated by the Court, Plaintiff here suffered none of the relevant acts which would make her resignation reasonable under all the circumstances. See Brown, 207 F.3d at 782. Moreover, after Contreras notified WHI of Foster's harassment, she did not give WHI sufficient time to remedy the harassment. Because Plaintiff resigned before giving her employer an opportunity to remedy the harassment, the Court finds that Plaintiff was not constructively discharged.
The record also establishes that Contreras unilaterally chose not to return to work, turned down WHI's prior and subsequent offers to continue her training at another location, and never informed WHI that her choice was based on her assertions of sexual harassment. Pl.'s App., Ex. A at 57-58, 78, 82. Instead she told WHI regional director, Trent Angelle, that she "didn't want to work — finished." Id. at 89. As such, Plaintiff has failed to pled facts sufficient to support her claim for retaliation and the Court shall grant Defendant's motion for summary judgment on this claim.
IV. Intentional Infliction of Emotional Distress Claim
For Plaintiff to recover based on her intentional infliction of emotional distress ("IIED") claim, she must prove that (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the emotional distress suffered by the Plaintiff was severe. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993).
Twyman incorporates the Restatement's formulation of the IIED tort and defines extreme and outrageous conduct as being "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. (quoting Restatement (Second) of Torts §§ 46 cmt. D (1965)); see also Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir. 1993). Generally, insensitive or even rude behavior does not constitute extreme and outrageous conduct. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994) (quoting Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993)). Similarly, mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not rise to the level of extreme and outrageous conduct. See Porterfield v. Galen Hosp. Corp., 948 S.W.2d 916, 920 (Tex.App.-San Antonio 1997, writ denied); Restatement (Second) of Torts § 46 cmt. d (1965).
Only in the "most unusual cases" may an employer's conduct be considered so extreme and outrageous that it supports an IIED claim. Hirras v. National R.R. Passenger Corp., 95 F.3d 396, 400 (5th Cir. 1996) (citing Prunty v. Arkansas Freightways Inc., 16 F.3d 649, 654 (5th Cir. 1994)). Based on her allegations as presented in the record, Plaintiff has failed to establish any "extreme and outrageous" behavior that would rise to the level of that required to support her IIED claim. Contreras' description of her emotional distress while still working at WHI includes being embarrassed, ashamed, uncomfortable around Foster, anxious, and nervous. Pl.'s App., Ex. A at 57-58. She does not assert that she sought medical treatment at that time. Id., Ex. A at 63. Severe emotional distress is "so severe that no reasonable person could be expected to endure it." GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 617-618 (Tex. 1999).
Following her resignation, Contreras complained of mood swings, depression, headaches and stomach problems but has not asserted any facts to link those physical effects to her work at WHI. Pl.'s App., Ex. A at 64-66. Instead, Contreras shows that after she left WHI in March she was capable of beginning a new job at Sears in May and was working there when she visited her doctor in August. Id., Ex. A. at 68. This was the first time she went to the doctor since leaving WHI. Id., Ex. A at 64. Moreover, Plaintiff states she had a history of ulcers and headaches and has provided no information from her physician linking her physical ailments to her experience at WHI. Id., Ex. A at 65.
Contreras' assertions fail to support that she experienced "unendurable" level of stress required to show a prima facie case for IIED. Therefore, the Court shall grant Defendant's motion for summary judgment on Plaintiff's IIED claim.
V. Assault and Battery Claim
Plaintiff seeks to hold Defendant liable for the alleged assault and battery committed by Foster. A person commits an assault and battery and thus may be liable in a civil case if he "intentionally or knowingly causes physical contact regarded as offensive or provocative." Tex. Penal Code Ann. § 22.01(a)(3) (Vernon 1994). Since we are dealing with an intentional tort claim, the Texas Workers' Compensation Act does not apply. Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985).
Instead, Foster's alleged tortious conduct may be imputed to his employer WHI under any one of three different theories: (1) if he was acting within the course and scope of his employment at the time of his tortious acts (respondeat superior); (2) if he was a vice-principal of WHI; or (3) if WHI ratified his conduct. See GTE Southwest, Inc., 998 S.W.2d at 618; see also generally Durand v. Moore, 879 S.W.2d 196 (Tex.App.-Houston [14th Dist.] 1994, no writ) (ratification). Both parties agree that Foster was not acting in a supervisory capacity for WHI. As such, only the first and third theories apply.
First, in order to impose liability upon an employer for the tort of his employee under the doctrine of respondeat superior, the act of the employee must fall within the scope of the general authority of the employee and must be in furtherance of the employer's business and for the accomplishment of the object for which the employee was hired. Dieter v. Baker Service Tools, 739 S.W.2d 405, 407 (Tex.App. — Corpus Christi 1987, writ denied). In addition, the conduct must be of the same general nature as that authorized or incidental to the conduct authorized. Kelly v. Stone, 898 S.W.2d 924, 927 (Tex.App. — Eastland 1995, writ denied). Normally, it is not within the scope of an employee's authority to commit an assault upon a third person. Dieter, 739 S.W.2d at 407; Kelly, 898 S.W.2d at 927. Assault is usually the expression of personal animosity and is not for the purpose of carrying out the employer's business. Kelly at 927.
Here, Foster's offensive remarks or touching clearly were outside the scope of his employment. Def.'s App., Ex. A at 48. The evidence reveals that WHI had policies in place prohibiting this type of employee conduct and distributed those policies. Id. at 38-40. The evidence also shows that district manager Ramirez, on at least two occasions initiated an investigation into alleged sexual harassment. Pl.'s App., Ex. D at 144-145. Also, WHI had mechanisms in place for employees to anonymously report any suspect behavior. Pl.'s App., Ex. 4. Therefore, Foster's alleged conduct did not fall within the scope of his employment with WHI.
With regard to the third theory, ratification is "the adoption, confirmation or failure to repudiate prior unlawful acts which were not legally binding at a time when the [defendant] had the right and knowledge of facts necessary to repudiate such conduct; but which, by ratification or by the failure to repudiate, become the acts of the defendant." Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 653 (5th Cir. 1994). Ratification is determined on the basis of the principal's knowledge of the transaction and its actions in light of that knowledge. Paramount Nat'l Life Ins. Co. v. Williams, 772 S.W.2d 255, 267 (Tex.App.-Houston [14th Dist.] 1989, writ denied). To establish liability of an employer for the intentional tort of its employee under a theory of ratification, a plaintiff must demonstrate that the intentional tort was done in the employer's interest or was intended to further some purpose of the employer's. Dillingham v. Anthony, 11 S.W. 139, 142 (1889). The mere retention of an employee in the employer's service does not constitute a ratification of the employee's unlawful act. Durand v. Moore, 879 S.W.2d 196, 203 (Tex.App.-Houston [14th Dist.] 1994, no writ).
Plaintiff has provided no evidence that Foster's conduct was "done in his employer's interest" or that WHI approved of the alleged sexual harassment either explicitly or implicitly by ignoring it. At best, Plaintiff has shown that her allegations were not clearly communicated directly to Ramirez or Angelle, or to general management via the hotline and that she refused offers to move to a different location on two occasions.
Therefore, the Court shall grant Defendant's motion for summary judgment on Plaintiff's assault and battery claims.
CONCLUSION
Based on the preceding analysis of Plaintiff's claims and Defendant's motion, the Court shall and hereby GRANTS Defendant's Motion for Summary Judgment as to all claims.
SO ORDERED.