Opinion
CIVIL ACTION NO. 02-1945, SECTION A(5)
May 7, 2003
ORDER AND REASONS
Before the Court is Defendant, Rouse's Enterprises, L.L.C.'s Motion for Summary Judgment (Rec. Doc. 17) on plaintiff's claim of sexual harassment and retaliation pursuant to Section 703(a)(1) of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000-e2 (A)(1) and 42 U.S.C. § 2000 (e)(k), Section 105 et. seq. of the Civil Rights Act of 1991, 42 U.S.C. § 2000 (c)-2M and violation of La. R.S. 23:332. Plaintiff, Crystal DeVillier, opposes the motion. The motion is before the Court on the briefs without oral argument.
BACKGROUND
Crystal Devillier began her employment with Rouse's in December of 2000. She was hired to work in the meat department of defendant's grocery store. Plaintiffs duties included wrapping meat, cutting cold cuts, and putting both meat and cold cuts out for sale. Approximately one month after being hired, Plaintiff alleges that the Meat Department Supervisor, Tony Leger ("Leger"), began sexually harassing her. Specifically, Plaintiff alleges that over the course of roughly three months, Leger: (1) made an off-color reference to how Plaintiff wrapped sausage; (2) asked Plaintiff if she was as good at sex as she was at making chicken salad; (3) brushed his body against Plaintiff's breasts as he passed her, purposely not choosing a path which would have avoided physical contact; (4) spoke to Plaintiff about his fondness for sadomasochistic sex and sexual devices; (5) asked Plaintiff if she liked sadomasochistic sex and sexual devices; (6) asked Plaintiff if she wanted to watch a movie of Leger and his wife having sex; (7) told Plaintiff that every man fantasized about two women in bed; (8) asked Plaintiff how her sex life was; (9) followed Plaintiff into the ladies' restroom; (10) asked Plaintiff if she wanted to watch pornographic movies with him; and (11) commented on a female customer's buttocks to Plaintiff.
Plaintiff admits receiving and reading an employee handbook that contained the defendant's policy against sexual harassment. Plaintiff understood that she had a right to complain to management or someone in Human Resources and defendant also had a copy of its policy posted in the break room. Plaintiff's deposition, Exhibit 1 at 21-23.
Id. at 23.
Id. at 24-73.
Plaintiff alleges that she complained of these incidents to Charlie Luke ("Luke"), the assistant manager of defendant's LaRose, Louisiana, store and to Steve Galtier ("Galtier"), the personnel coordinator. Purportedly, upon hearing of Plaintiff's complaints, Leger assigned Plaintiff physically strenuous tasks, including unloading heavy boxes of meat. Plaintiff complained of this subsequent treatment to Luke and in response Luke allegedly "told her that it was not the first time that Leger worked a female employee harder after she complained about him."
Id. at 35, 98-99.
Id. at 79.
Id. at 84.
Plaintiff alleges that she also complained to Personnel Coordinator Steve Galtier ("Galtier") about Leger's sexual behavior. Plaintiff maintains Galtier "told her Leger was under investigation and asked her why so many other female employees were leaving the meat department." Despite Plaintiff's allegations, both Luke and Galtier deny that the Plaintiff ever complained of Leger's sexual behavior towards Plaintiff.
Id. at 99.
Defendant's Exhibit 4, Luke declaration and Exhibit 5, Galtier declaration.
Plaintiff applied for a transfer to the produce department and was transferred approximately five weeks later on March 21, 2001. Despite the transfer, Plaintiff alleges Leger continued to interfere with her work. Specifically, Plaintiff alleges Leger put his meat dolly in front of her door preventing her from stocking the produce on time and instructed her to do an assignment incorrectly making her late for work. At the same time Plaintiff maintains that co-workers began ignoring her. Finally, in June of 2001, Plaintiff quit her employment with Defendant without notice. Despite the allegations in her complaint, Plaintiff testified in her deposition that the reason she quit was because she was tired of being ignored by a floor manager and some office people and because she was criticized for displaying "bad" bananas.
Plaintiff's deposition. at 83, 89; Defendant's Exhibit 7, Employee Change Status Report. Jeff Plaisance, the store director, asked Plaintiff why she wanted to transfer and she responded that she "was looking for a change." Defendant's Exhibit 6, Plaisance declaration. Rouse's "Employee Change of Status Report" notes that the reason for Plaintiffs change was "Promotion."
Plaintiff's deposition at 110.
Id. at 121.
Id. at 123-127.
In September of 2001, Plaintiff filed a timely charge with the Equal Employment Opportunity Commission ("EEOC") alleging employment discrimination based on sex. The EEOC issued a right to sue letter in March of 2002.
In June of 2002, Plaintiff filed a complaint alleging Defendant, through its agents and officers, harassed her and retaliated against her because of her sex and her complaints about sexual harassment in violation of Section 703(a)(1) of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000-e2 (A)(1) and 42 U.S.C. § 2000 (e)(k) and Section 105 et. seq. of the Civil Rights Act of 1991, 42 U.S.C. § 2000 (c)-2M. Plaintiff also alleges her constructive discharge, harassment, and the retaliatory actions of Defendant were because of her sex in violation of La. R.S. 23:332. As a result, Plaintiff seeks full back pay, reinstatement to her former position or alternatively front pay, compensatory damages under the Civil Rights Act of 1991, punitive damages under the Civil Rights Act of 1991, attorney's fees, and interest on all monetary benefits.
PARTIES CONTENTIONS
Defendant argues (1) the alleged conduct in Plaintiffs complaint does not rise to an actionable level under Title VII; (2) Plaintiffs work environment was not so intolerable that a reasonable employee would have felt compelled to resign; and (3) Plaintiffs retaliation claims are procedurally and substantively without merit, specifically, Plaintiff failed to include this allegation in her EEOC charge.
Plaintiff responds (1) whether the sexual harassment was severe and pervasive can only be reached by a factual inquiry into the totality of the circumstances; (2) whether the work environment was so difficult or unpleasant that a reasonable person in the employee's shoes would have resigned can also only be determined by a factual inquiry; and (3) Plaintiff does not need to allege retaliation in her EEOC charge in order to have a viable claim under Louisiana law.
SUMMARY JUDGMENT
To overcome summary judgment, Plaintiff must establish a prima facie case of discrimination and a prima facie case of retaliation. Summary judgment is appropriate if the record discloses that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A fact is material if its resolution in favor of one party might affect the outcome of the action under governing law. A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." However, the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. Therefore, "[i]f the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. In determining whether a party is entitled to summary judgment, the court views the evidence in the light most favorable to the non-moving party. The moving party bears the burden, as an initial matter, of showing the district court that there is an absence of evidence to support the nonmoving party's claim. If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. The burden then shifts to the nonmoving party, who may not rest upon the pleadings, but must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists for trial.
Fed.R.Civ.P. 56(c) and Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986).
Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 248 (1986); Hamilton v, Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000).
Lavespere v. Niagra Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986)).
Id.
Littlefield v. Forney Indep. School Dist., 268 F.3d 275, 282 (5th Cir. 2001) (citing Smith v. Brencettsy, 158 F.3d 908, 911 (5th Cir. 1998).
Id., (citing Celotex, 477 U.S. at 325, 106 S.Ct. at 2548).
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
DISCUSSION
Sexual Harassment ClaimThe Plaintiff may avoid summary judgment on her discrimination claims only if the evidence taken as a whole creates a fact issue as to whether the Defendants acted on the basis of some proffered nondiscriminatory reason and if the evidence is sufficient to create a reasonable inference of discrimination. In an employment discrimination case under both Title VII and Louisiana law, plaintiff has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." Sexual harassment is a form of sex discrimination. The Supreme Court has recognized two types of sexual harassment claims. There are those claims that are based on requests for sexual favors that result in adverse employment actions (a quid pro quo claim) and those claims where bothersome attentions or sexual remarks create a hostile work environment. The plaintiff has not alleged any adverse employment actions and has stated a claim only for hostile work environment. The central issue in a hostile environment claim is whether the conduct (harassment) unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive working environment.
Grimes v. Texas Dept. of Mental Health Mental Retardation, 102 F.3d 137, 141 (5th Cir. 1996).
"Courts have continually turned to federal employment discrimination law, including Title VII and the well-developed jurisprudence arising thereunder, for interpretation of Louisianas' antidiscrimination statute)" Nichols v. Lewis Grocery, 138 F.3d 563, 566 (5th Cir. 1998).
Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998); Burlington Industries, Inc., v. Ellerth, 118 S.Ct. 2257 (1998); Oncale v. Sundowner Offshore Servs., Inc., 114 S.Ct. 3678 (1998).
All of the hostile environment cases decided by the Supreme Court involve patterns or allegations of extensive, long lasting, unredressed, and uninhibited sexual threats or conduct that permeate the plaintiff's work environment. "`In order to be actionable under [Title VII], a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so . . .'" "Whether an environment meets this standard depends on `all the circumstances' including 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." While what makes up an actionable claim for a sexually hostile work environment is a fact-sensitive determination, the Supreme Court's decisions strongly suggest that such allegations are not to be exclusively resolved by the jury.
Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998); Burlington Industries, Inc., v. Ellerth, 118 S.Ct. 2257 (1998); Oncale v. Sundowner Offshore Servs., Inc., 114 S.Ct. 3678 (1998); Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993); Meritor Sav. Bank. FSB v. Vinson, 477 U.S. 57 (1986).
Buttler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 269 (5th Cir. 1998) (quoting Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998)).
Id. (quoting Faragher, 775 U.S. at 787).
Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th Cir. 1999).
Courts have set a high standard for what constitutes sufficiently severe and pervasive harassment for purposes of a claim of hostile work environment. "Title VII was only meant to bar conduct that is so severe and pervasive that it destroys a protected class member's opportunity to succeed in the workplace."
Weller v. Citation Oil Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996), cert. denied, 519 U.S. 1055, 117 S.Ct. 682, 136 L.Ed.2d 607 (1997).
In Shepherd v. Comptroller of Public Accounts, 168 F.3d 871 (5th Cir. 1999), the Fifth Circuit held that no sexual harassment occurred when a co-worker made crude remarks about the plaintiff's anatomy such as "your elbows are the same color as your nipples" while pretending to look down her dress, touched her arm on several occasions, rubbed her shoulder, and motioned for her to sit on his lap during a meeting saying "There's your seat." In Guidry v. Zale Corporation, 969 F. Supp. 988 (M.D. La. 1997), the plaintiff claimed she was subjected to three incidents of harassment over a period of over six months. The alleged harassment included unwanted touching by a co-worker on one occasion, and comments of a graphic and sexual nature. The court ruled that "three isolated incidents that occurred over a period of six or more months . . . d[id] not constitute conduct severe or pervasive to create an objectively hostile or abusive work environment." Id. at 989.
In Indest v. Freeman, 164 F.3d 258 (5th Cir. 1999), the plaintiff accused the company vice-president of harassment because he made inappropriate sexual comments and gestures towards her. The Fifth Circuit reemphasized that harassment claims are only actionable when the conduct is extreme. "Incidental, occasional, or merely playful utterances will rarely poison the employee's working conditions to the extent demanded for liability. Discourtesy or rudeness, off-hand comments and isolated incidents (unless extremely serious) will not amount to actionable discrimination." Id. at 264.
See also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998 (1998) (Abusive language and boorish behavior alone do not violate Title VII); Long v. Eastfield College, 88 F.3d 300, 309 (5th Cir. 1996) (finding single joke involving condoms insufficient to create hostile environment); Weiss v. Coca-Cola Bottling Co., 990 F.2d 333 (7th Cir. 1993) (finding that a male coworker's conduct consisting of several incidents of unwanted touching, attempts to kiss, placing "I love you" signs in her work area, and asking female employee out on dates did not create a hostile work environment).
Cases alleging some physical contact have not been held to rise to the level of severe and pervasive harassment. In Baker v. Starwood, 1999 WL 397405, 80 FEP 1114 (E.D. La. 1999) the plaintiff alleged that the man accused of harassing her touched her in different places while attempting to kiss her. On the first attempt he touched her thigh. On the second attempt he touched her breast and her arm. On another occasion, he grabbed her hand and pulled it to his crotch. In dismissing the case, the court stated, "While I find any unwanted touching in the work place to be inappropriate, the two incidents alleged to have occurred in the present case do not rise to the level of severe or pervasive harassment. . . . While Evans' behavior and comments were ill-mannered and vulgar, as a matter of law, they were not sufficiently severe or pervasive enough to alter the conditions of Woods' employment or to create an abusive working environment."
See also Scusa v. Nestle USA Co., 181 F.3d 958 (8th Cir. 1999) (not severe or pervasive conduct when coworker patted plaintiff on her rear end, blew her kisses and made sexual comments to her).
There are five elements necessary to set forth a hostile environment claim: (1) that the employee belongs to a protected class; (2) that the employee was subject to unwelcome sexual harassment; (3) that the harassment was based on sex; (4) that the harassment affected a "term, condition, or privilege" of employment; and (5) that the employer knew or should have known of the harassment and failed to take prompt remedial action.
See Jones v. Flagship Int'l, 793 F.2d 714, 719-20 (5th Cir. 1986); see also Sharp v. City of Houston, 164 F.3d 923, 929 (5th Cir. 1999) (stating that the fifth element remains undisturbed) and Shepherd v. Comptroller of Public Accounts, 168 F.3d 871 (5th Cir. 1999).
The Court notes initially that the Plaintiff alleges she reported Leger's inappropriate behavior to Luke and Galtier. In sworn declarations, Luke and Galtier emphatically deny that the alleged behavior was ever reported to them by the Plaintiff. An employee has a duty to report any inappropriate behavior in order to give her employer an opportunity to take immediate, remedial action. "[A]n employee's subjective fears of confrontation, unpleasantness or retaliation do not alleviate the employee's duty under Ellerth to alert the employer to the allegedly hostile environment." However, if the employer should have known of the prohibited behavior, the Plaintiff will not be barred from asserting her claim.
As is so often the case in these matters, the testimony of plaintiff's and defendants dissolve into "swearing contests." At this point, the credibility of the witnesses becomes paramount.
Shaw v. AutoZone, Inc., 180 F.3d 806 (7th Cir. 1999).
Plaintiff alleges a number of incidents that, if true, would support a claim for sexual harassment. She claims Leger: (1) made an off-color reference to how Plaintiff wrapped sausage; (2) asked Plaintiff if she was as good at sex as she was at making chicken salad; (3) brushed his body against Plaintiff's breasts as he passed her, purposely not choosing a path which would have avoided physical contact; (4) spoke to Plaintiff about his fondness for sadomasochistic sex and sexual devices; (5) asked Plaintiff if she liked sadomasochistic sex and sexual devices; (6) asked Plaintiff if she wanted to watch a movie of Leger and his wife having sex; (7) told Plaintiff that every man fantasized about two women in bed; (8) asked Plaintiff how her sex life was; (9) followed Plaintiff into the ladies restroom; (10) asked Plaintiff if she wanted to watch pornographic movies with him; and (11) commented on a female customer's buttocks to Plaintiff.
Id. at 24-73.
The Court is required to look at the totality of the circumstances. The Plaintiff must demonstrate that the sexual harassment was sufficiently severe or pervasive that a reasonable person in her position would find her work environment to be hostile. The alleged incidents in this matter took place over a six month period. Plaintiff submitted the declaration of a co-worker who allegedly witnessed some of the incidents] The Court finds that the evidence submitted by the Plaintiff raises significant factual questions. If the allegations are taken as true, and remain uncontroverted by credible witnesses, it is reasonable for a jury to assume that the allegations are sufficiently severe or pervasive that a reasonable person would find her work environment to be hostile.
Celestine v. Petroleos de Venezuella SA, 299 F.3d 343 (5th Cir. 2001).
Plaintiff's Exhibit D, declaration of Dana Aucoin.
Constructive Discharge Claim
In order to demonstrate constructive discharge, a former employee claiming a violation of Title VII must prove that working conditions were so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign. It is uncontested that the Plaintiff voluntarily left her employment at Rouse's without giving notice. Significantly, a constructive discharge claim requires that Plaintiff prove a "greater severity or pervasiveness of harassment than the minimum required to prove a hostile work environment claim."
Landgraf v. USI Film Products, 968 F.2d 427, (5th Cir. 1992).
Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998).
When the Plaintiff resigned she was working in the produce department and had been away from Leger's supervision for over two months. She has offered no evidence that her working conditions in the produce department were so intolerable that it was reasonable for her to feel compelled to resign. Plaintiff testified in her deposition that the only reason she felt that she had to quit was because she felt ignored by a floor manager and "some office people" and that she was reprimanded for leaving bad food on display and was instructed to remove spoiled bananas. At no point in her deposition did the Plaintiff claim that she was forced to quit because Leger continued to sexually harass her. This Court, as in Langsdorf, finds that there are other plausible reasons, other than sexual harassment, for the Plaintiff to leave her employment. As such, her allegations do not rise to the standard demanded of a constructive discharge claim.
Plaintiff's deposition, pp. 125-127.
Retaliation Claim
Plaintiff did not file a retaliation charge with the EEOC before filing this suit. In her complaint filed in this Court, Plaintiff stated a retaliation claim against Defendant for the first time. The courts generally have no jurisdiction to hear claims of discrimination based on retaliation unless a charge is first filed with the EEOC and the Plaintiff receives a Right to Sue Notice. in other words, a plaintiff must first exhaust administrative remedies before filing a complaint seeking relief under Title VII. Plaintiff did not allege retaliation in her EEOC charge and there is nothing in the charge suggesting retaliation. She only checked the box next to "Sex" as a basis of discrimination on her Charge of Discrimination despite the tact that "Retaliation" is an option on the form, and the instructions direct those filling out the form to "check the appropriate box(es)." To permit her to seek relief for retaliation without first affording the EEOC an opportunity to resolve the issue administratively with Defendant would undermine the administrative role of the EEOC in Title VII.
Barnes v. Levitt, 118 F.3d 404, 408-09 (5th Cir. 1997).
Id.
Even assuming that the Plaintiff's retaliation claim is not procedurally barred, she has failed to demonstrate a prima facie case raising any issue of material fact that could defeat summary judgment. In order to defeat summary judgment on her retaliation claim, "the plaintiff must show that the protected conduct was a `but for' cause of the adverse employment action." To establish a prima facie case of retaliation under Title VII, a plaintiff must show that: 1) she engaged in a protected activity known to the defendant; 2) she was subjected to an adverse employment action following the protected activity; and 3) there was a causal connection between the protected activity and the adverse employment action.
Scrivner v. Socorro Ind. School District, 169 F.3d 969, 972 (5th Cir. 1999). The Fifth Circuit has acknowledged that it has a very narrow view of what constitutes an adverse employment decision. It requires, as a minimum, that an adverse employment action must involve some determinative negative employment impact on the plaintiff.
Webb v. Cardiothoracic Surgery, Inc., 139 F.3d 532 (5th Cir. 1998).
The Court finds that Plaintiff has failed to establish a prima facie case on her claim of retaliation. The Plaintiff can show no adverse employment action. There is no "determinative negative employment impact" on the plaintiff. Her move from the meat department to the produce department was noted as a promotion on the employee status form. The Plaintiff has not established that the Defendant even remotely took any adverse employment action.
Burger v. Central Apt. Mgmt., Inc., 168 F.3d 875, 878 (5th Cir. 1999).
The Fifth Circuit has determined that only ultimate employment decisions by an employer can form the basis for liability for a claim of retaliation. Ultimate employment decisions include "hiring, granting leave, discharging, promoting and compensating." Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997).
Accordingly,
IT IS ORDERED, that Defendants' motion for summary judgment on Plaintiff's Title VII sexual harassment claim is DENIED.
IT IS FURTHER ORDERED that Defendant's motion for summary judgment on the issue of constructive discharge should be and is hereby GRANTED.
IT IS FURTHER ORDERED that Defendant's motion for summary judgment on the issue of retaliation under Title VII and Louisiana Revised Statute § 23:332 should be and is hereby GRANTED. New Orleans, Louisiana, this 7th day of May, 2003.