Opinion
CIVIL ACTION NO. 02-2921, SECTION "K"(4)
August 19, 2003
Before the Court is a Motion for Summary Judgment filed by defendant Camellia Grill, Inc. ("Camellia Grill") (Doc. No. 39). Having reviewed the complaint, the pleadings, the memoranda, deposition testimony and the relevant law, the Court finds that there are material questions of fact that preclude the granting of this motion.
D'Erica Flowers ("Flowers") filed her "Complaint for Gender Harassment; Discrimination; Retaliation" on September 23, 2002. She alleges therein that she was employed by Camellia Grill as a cashier from August 1998 to January 15, 2002. She filed an EEOC charge on or about February 24, 2002 and received a Right to Sue letter dated June 21, 2002. She contends that she was harassed by the manager, Ronald Jaeger, who engaged in physical touching and verbal harassment both at her cashier station and in a back office. The manager also telephoned her both at her home and on her cell phone. The harassment is alleged to have begun about September/October 1998 and continued until her last day of work. She further alleges in her complaint that she complained on two occasions but got no relief. She seeks in her complaint "all legal and equitable relief, back pay and benefits, damages for emotional distress, attorney fees, costs, trial by jury and all other legal and equitable relief to which she is entitled."
Defendant filed the instant Motion for Summary Judgment on July 22, 2003. Camellia Grill contends that plaintiff cannot meet her burden of proof with respect to discrimination as prohibited under La. Rev. Stat. 23:332(A)(1) which Camellia Grill characterizes as a hostile work environment claim. (See Memorandum in Support of Motion, p. 13, n. 47). Furthermore, it contends that it is entitle to summary judgment based on the defense found in Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998). Finally, Camellia Grill contends that plaintiff cannot prove a prima facie case of unlawful retaliation based on the lack of proof of a causal connection between Flower's engaging in the protected activity and her being terminated. Camellia Grill maintains that basically Flowers was fired because of insubordination and poor attitude caused by the firing of her boyfriend.
Flowers responds to this motion contending that the sexual harassment claim is brought under both the Louisiana anti-discrimination law and Title VII. She maintains that the defendant has tailed to provide sufficient proof to grant the motion with respect to theeFaragher defense and Camellia Grill's contention that plaintiff failed to take advantage of preventive or corrective options. Furthermore, plaintiff maintains that there are material questions of fact as to the issue of whether Flowers' termination was in retaliation for complaining of the harassment.
Standard for Motion for Summary Judgment
Rule 56©) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Fed.R.Civ.P. 56©). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact." Stults v. Conoco, 76 F.3d 651, 656, (5th Cir. 1996), (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir. 1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has carried its burden under Rule 56©), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986) (emphasis supplied);Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). Finally, the court notes that the substantive law determines materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court now turns to the merits of the arguments with these standards in mind.
Sexual Harassment Claim
As noted, with respect to the sexual harassment claim, Flower contends that she seeks redress pursuant to both the state and the federal statutes applicable. Generally, a five-factor test is employed to determine if a plaintiff could establish a viable cause of action for a sexual harassment claim alleging hostile work environment. To do so, a victim had to establish that:(1) the employee belongs to a protected class;
(2) the employee was subject to unwelcome sexual harassment;
(3) the harassment complained of was based on sex;
(4) the harassment affected a term, condition, or privilege of employment (i.e., that the harassment was sufficiently pervasive or severe to create an abusive work environment); and
(5) the employer knew or should have known of the harassment and failed to take prompt remedial action.Jones v. Flagship International, 793 F.2d 714, 719-20 (5th Cir. 1986). However, in the wake of Burlington Ind. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998), the Fifth Circuit has recognized that where the alleged harasser is a supervisor with authority over the employee, only the first four elements need be satisfied.Watts v. Kroger, ___ F.3d ___, 1999 WL 147382, *3 (5th Cir. 1999).citing Williamson v. City of Houston, 148 F.3d 462, 464 (5th Cir. 1998). This view is based on the following holding inFaragher:
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence see Fed. Rule. Civ. Proc. 8©). 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.Faragher, 524 U.S. at ___, 118 S.Ct. at 2293.
Thus, there is now vicarious liability on the part of the employer and an available affirmative defense where no tangible employment action has occurred. However, "[o]nce a tangible employment action has been found, an employer is not entitled to the Farragher/Ellerth defense."Green v. Administrators of the Tulane Educational Fund, 284 F.3d 642, 655 (5th Cir. 2002).
Having reviewed the deposition testimony and the numerous exhibits presented to the Court, it is clear that there are material questions of fact with respect to whether Camellia Grill knew or should have known of the harassment and failed to take prompt remedial action. The deposition testimony of Flowers and her supplemental affidavit and the statements provided by Camellia Grill as to the facts of this case are in conflict. As such, the motion is without merit. Furthermore, considering that the ultimate tangible employment action occurred-Flowers was fired-the affirmative defense set forth in Faragher is not available to Camellia Grill.
Retaliation
To prevail on this claim, Flowers would have to establish that:
(1) the activity engaged in by the plaintiff is protected under Title VII, (2) plaintiff was subjected to an adverse employment action, and (3) there is a causal link between the protected activity and the adverse employment action.Douglas v. DynMcDermott Petroleum Operations Co. 144 F.3d 364, 372 (5th Cir. 1998), cert. denied, 119 S Ct. 798 (1999). The burden shifting framework enunciated in McDonnell-Douglas v. Green, 411 U.S. 792,93 S.Ct. 181791973) applies. Thus, assuming that Flowers could establish a prima facie case of retaliation, the burden of production then shifts to Camellia Grill to articulate legitimate, non-retaliatory reasons for its actions. Then the burden shifts back to Flowers to prove that the real motive behind the action was retaliation. Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996). For purposes of the motion, Camellia Grill "does not concede that Ms. Flowers can meet her burden of proof on the first two requirements," but "focuses" on the third requirement-a causal connection between Ms. Flowers' complaint of sexual harassment and her termination. Camellia Grill argues that plaintiff fails in her burden of proof.
The standard is that the employee must demonstrate that her having opposed the perceived unlawful activity (sexual harassment) was a motivating factor or determining factor in the adverse employment action. This has been described as a "but for" or "causation in fact" test.Jack v. Texaco Research Center, 743 F.2d 1129, 1131 (5th Cir. 1984). However, the standard for establishing the causal link in a prima facie case is less stringent than in proving the ultimate issue in an unlawful retaliation case. Long v. East Field College, 88 F.3d 300, 305 n. 4 (5th Cir. 1996). As noted in Eugene v. Rumsfeld, 168 F. Supp.2d 655 (S.D. Tex. 2001):
The consideration of three factors may be helpful in determining whether a causal link has been demonstrated at the prima facie stage: (1) the plaintiffs past disciplinary record, (2) whether the employer followed its typical policies and procedures when taking adverse action against the employee, and (3) the temporal relationship between the employee's conduct and the adverse act. See Nowlin v. RTC, 33 F.3d 498, 507-08 (5th Cir. 1994) . . . "The timing of the adverse employment action can be a significant although not necessarily determinative factor." Mayberry [v. Vought Aircraft Co., 55 F.3d 1086,] 1092 [5th Cir. 1995].Rumsfeld, 168 F. Supp.2d at 682.
Thus, considering that Flowers had been apparently an excellent employee, having been promoted consistently, up to the beginning of 2002 and that she was fired when within 10 days of her having alleged more incidents sexual harassment by Jaeger, the Court cannot grant the motion for summary judgment on this basis. Taking these facts in the light most favorable to the plaintiff, it is possible that Shwartz believed that Flowers had become part of the "conspiracy" to harm Camellia Grill. Thus, simply put, this Court cannot find as undisputed that Camellia Grill's actions were legitimate and non-retaliatory in light of the evidence presented. Accordingly,
IT IS ORDERED that the Motion for Summary Judgment (Doc. 39) is DENIED.