Opinion
Civil Action No. 03-3139, Section "N".
October 7, 2004
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment filed by defendant Tetra Applied Technologies, L.P. ("Tetra"). For the foregoing reasons, defendant's motion is GRANTED.
I. BACKGROUND
Thomas Kreamer, plaintiff herein, claims that he was a victim of continuous same-sex sexual harassment and inappropriate conduct while he worked as a deckhand for Tetra from May 9, 2002 to August 13, 2002, and that Tetra's successor, Henry's Marine wrongfully discharged him.
The parties refer to defendant Henry's as both Henry's Marine and as Henry's Towing. Because Henry's answered plaintiff's Complaint as "Henry's Marine," the Court will hereinafter use that title.
In his Complaint, plaintiff asserts three counts against the defendants: (1) "[f]rom May 9 through May 15, 2002, plaintiff was subjected to repeated same-sex harassment by a Tetra co-worker despite repeated complaints to Tetra management officials;" (2) "[a]fterwards plaintiff was avoided, called derogatory names, and harassed by co-workers and supervisors; and (3) "on August 21, 2002, [Henry's captain Lucious O'Neal] fired plaintiff, saying, `You are fired, Mr. Queer.'" Plaintiff's Complaint (Rec. Doc. No. 1). In opposing defendant's motion for summary judgment, plaintiff now argues that the claim against Tetra is in fact three separate claims: (1) seeking damages for harassment from May 9 — 15, 2002; (2) seeking damages for harassment on August 13, 2002; and (3) seeking damages against Tetra as plaintiff's "de jure employer" for harassment and other actions taken after August 13, 2002. Pl.'s Opposition, p. 2-3 (Rec. Doc. No. 52). The Court, however, will address only those claims asserted by plaintiff for the harassment alleged to have occurred prior to August 14, 2002, as Title VII addresses only the conduct of a plaintiff's employer. 42 U.S.C. 2000, et seq. Until the filing of his opposition, plaintiff has never alleged any kind of liability based on Tetra's status as a de jure or de facto employer. Moreover, plaintiff has presented absolutely no proof of any genuine issue of fact relative to this newly-raised issue.
Thirty-eight-year old Thomas Kreamer began working on boats with his father when he was thirteen years old. Plaintiff's Deposition at 38-40. In December 2001, he went to work for Tetra as a deckhand on a tugboat, the Bacchus. Id. at 56, 59, 61. While working for Tetra, plaintiff normally worked hitches of fourteen days on and seven days off. Id. at 88. Tugboats, such as the Bacchus, were assigned to a "plug and abandon" rig located approximately twenty miles from land, and had two-member crews, consisting of a deckhand and a captain, both of whom worked and slept (in separate quarters) on the boat. Id. at 61-63; Pl.'s Opposition at 4 (Rec. Doc. No. 52). When not working, the captain and deckhand could eat meals on the rig to which the boat was assigned. Id. When off-duty, crew members could also use a break room on the rig to watch television. Id. at 64.
Plaintiff regarded Carroll Carrere, a deckhand from another Tetra tugboat assigned to the same rig as the Bacchus, as a "loud mouth type" who was "always" arguing with or hollering at other employees and "throwing things around." Pl.'s Dep. at 248. Plaintiff testified that Carrere's language was consistently profane and that he had been known to engage in excessive horseplay. Id. On the other hand, Tetra regarded Carrere as reliable and competent, but sometimes prone to an above-average level of horseplay. Falgout Declaration at 4. Before May 2002, Sid Falgout, Tetra's Human Resources ("HR") Manager, had never received a complaint that Carrere had engaged in conduct that was sexually offensive in any way. Id. at 5.
After a verbal warning on July 24, 2001, tool pusher Hank Smith formally warned Carrere on July 23, 2001, that horseplay involving throwing eggs at Timothy Legeion was careless, unsafe and a violation of Company policy. Falgout Declaration at 8-11; Ex. F-1 to Falgout's Declaration. In addition, approximately five months prior to May 13, 2002, a cook on the rig, Marty Newcome, had complained of Carrere pinching and grabbing him on the sides. Pl.'s Dep. at 196, 247-48; Exhibit F-2 to Falgout Declaration.
On the morning of May 9, 2002, Carrere allegedly grabbed plaintiff for the first time. Pl.'s Dep. at 138, 147. Plaintiff alleges that while he was working on the stern of the Bacchus, which was tied up beside the Mr. Troy, the tugboat to which Carrere was assigned, Carrere approached plaintiff from the side and grabbed him in the area of his crotch. Id. at 143. No one was present at the time to witness the incident. Id. at 143. Plaintiff testified that he told Carrere to stop and reported the incident to the captain of the Bacchus, Darrell Naquin. Id. at 139, 143. According to plaintiff, Naquin said that he would report the occurrence to Carrere's captain, Wayne Lambas; although it "got [him] mad," plaintiff went back to work. Id. at 139, 143-44. Plaintiff alleges that Carrere grabbed him in a similar fashion three more times on May 9, 2002. Id. at 147. On the third or fourth time, Carrere allegedly told plaintiff that "he would like to compare packages." Id. at 148. That evening, acting upon advice from his father during a cellular telephone conversation, plaintiff began preparing notes regarding his daily interactions with Carrere. Pl.'s Dep. at 137-38; Exhibit 7 to Pl.'s Dep.
Kreamer testified that the notes were made at the conclusion of each work day and contained references to the offensive conduct committed by Carrere on that day. Pl.'s Dep. at 153. According to plaintiff, the daily log was the best recollection of what actually occurred to him. Id.
Carrere's offensive conduct allegedly continued for the remainder of the week of May 9, 2002. On the night of May 10, at the end of a shift, Carrere allegedly approached plaintiff from the front and grabbed him between the legs. Pl.'s Dep. at 152. The next incident alleged to have occurred involving the two men was at the end of the shift on Saturday, May 11, when plaintiff was attempting, in rough water, to tie the Bacchus alongside the Mr. Troy. Id. at 154. According to plaintiff, he twice threw the rope from the Bacchus to the bit on the Mr. Troy, and Carrere threw the rope off both times. Id. Plaintiff reported this incident to his captain Darrell Naquin, who then spoke to Wayne Lambas, the captain of the Mr. Troy. Id. at 161. Naquin did not have any follow-up conversation with plaintiff. Id.
The next "grabbing" incident allegedly occurred on May 12 when Carrere, without saying anything, snuck up behind plaintiff, reached around plaintiff's side and grabbed plaintiff between his legs. Pl.'s Dep. at 171. Plaintiff stated that he reported this incident to Darrell Naquin. Id. Plaintiff later overheard Wayne Lambas telling Carrere that Carrere needed to learn how to leave Kreamer alone and to stay away from Kreamer because Kreamer was getting tired of Carrere's conduct. Id. at 172.
Plaintiff testified that, at the end of the May 13 shift, Carrere again threw the rope off the bit of the Mr. Troy when plaintiff was attempting to tie the boats together. Pl.'s Dep. at 175. Following the third time that Carrere threw the rope, plaintiff asked Carrere if he was playing a game. Id. Carrere did not say anything in response, but he blew a kiss to plaintiff. Id.
While Plaintiff made a general entry in his daily log of the "rope-throwing" incident on May 13, plaintiff did not record therein that Carrere blew a kiss to him. Pl.'s Dep. at 175; Ex. 7 to Pl.'s Dep.
The following day began with Carrere grabbing plaintiff once, and plaintiff telling Carrere to stop. Pl.'s dep. at 177. Later that same day, while plaintiff was attempting to tie up the two tugboats, Carrere threw the rope off the bit one time; plaintiff did not recall anything having been said or any gestures having been made. Id. at 178-79. Plaintiff also testified that, at the end of the May 14 shift, several of the men assigned to Tetra's Rig 2 gathered in the galley of the Bacchus. Id. at 179-80. Present in the ten-by-ten-foot room were plaintiff, Carrere, Darrell Naquin, Wayne Lambas and Del Deshotel, the Texaco Chevron company man on the rig. Id. While sitting in a chair at plaintiff's right side, Carrere allegedly burned plaintiff's wrist with a hot Zippo lighter that Carrere was allegedly trying to put between plaintiff's legs. Id. at 184-85. Immediately after this occurred, plaintiff testified that he looked at Deshotel and told him, "This is the kind of shit I'm tired of" and walked out of the galley. Id. at 184. Naquin and Lambas later checked on plaintiff, as did Deshotel. Id. at 188. According to plaintiff, Naqun and Lambas told plaintiff that they were getting Carrere off the boat the following day, and Deshotel similarly told plaintiff, "Don't worry about it. He'll be going." Id. at 188, 191-92. Plaintiff did not see Carrere for the remainder of the evening. Id. at 188.
Plaintiff did not recall the exact circumstances of this incident. Pl.'s Dep. at 177.
Plaintiff also testified that, one morning during the time in question, Carrere entered his sleeping quarters on the Bacchus. Pl.'s Dep. at 238. Plaintiff stated that when he awoke, Carrere was standing next to plaintiff's bed, just looking at plaintiff. Id. at 238-39. Carrere did not say anything, did not touch plaintiff and did not attempt to get into plaintiff's bed. Id. at 239-40. When plaintiff told Carrere to "get the hell out," Carrere left without saying anything. Id. Plaintiff then reported this incident to his captain. Id. at 240. Plaintiff further testified that, each time he came into contact with Carrere between May 9 and May 15, Carrere directed offensive gestures and whistles at him. Id. at 150, 163.
Plaintiff did not recall the exact date, but stated that it was near the end of the first week of the May hitch. Pl.'s Dep. at 240. Plaintiff also did not record this incident in his log. Id. at 241; Ex. 7 to Pl.'s Dep.
Plaintiff did not make any notes regarding these alleged occurrences, i.e., the whistling and the gestures. Pl.'s Dep. at 151; Ex. 7 to Pl.'s Dep.
By the end of the week, Carrere had received orders to return to the dock. Before departing, however, Carrere grabbed plaintiff a final time in the engine room of the Bacchus early on the morning of May 15. Pl.'s Dep. at 190-92. Plaintiff testified that in doing so, Carrere approached plaintiff from behind as he was bent over slightly over the engines, grabbed his sides and said he "would like to "f**k that piece of ass." Id. at 190-91, 193. Plaintiff stated that he pushed Carrere away and reported the incident to his captain, who told plaintiff to not worry about it because Carrere was leaving. Id. at 194. After Carrere left, plaintiff completed his hitch without encountering him again. Id. at 194-95. Plaintiff testified that he did, however, experience other offensive and embarrassing behavior during the remainder of his hitch — one co-employee apparently made a teasing remark that Carrere would be coming back to the field, and others supposedly laughed at plaintiff. Id. at 197-98.
Upon completing the hitch, plaintiff talked with Sid Falgout in person about his complaints regarding Carrere. The thrust of plaintiff's complaint was his contention that Tetra should have fired Carrere instead of issuing him a warning and transferring him. Pl.'s Dep. at 204. Plaintiff testified that during this discussion, Falgout reviewed plaintiff's notes with him and suggested that he add certain details to clarify what had occurred. Id. at 146-47, 149, 214. Falgout also purportedly explained that he had met with Carrere earlier to discuss the complaint and that Carrere had reported being grabbed around the neck by plaintiff. Id. at 204.
In the week following his completion of the 14-day hitch during which Carrere had allegedly harassed him, plaintiff suffered an off-the-job injury to three of his fingers that resulted in his being unable to return to work until August 13, 2002. Pl.'s Dep. at 90-91, 113. While unable to work due to this injury, plaintiff received short-term disability income payments through Tetra. Id. When plaintiff returned to work on the Bacchus, he worked as a Tetra employee for only one more day, August 13, 2002, before Tetra sold its tugboat operations to Henry's Marine, terminating nearly all of its employees (including plaintiff) in the process. Id. at 114, 216.
Plaintiff became an employee of Henry's Marine the next day, August 14, 2002. Pl.'s Dep. at 114.
Upon his return, plaintiff encountered Carrere only once, on August 13, when Carrere's tugboat, the Carl T, passed nearby and Carrere whistled at plaintiff. Pl.'s Dep. at 117, 120. After Carrere whistled at plaintiff, plaintiff complained not to his captain, but to Hank Smith, the tool pusher on the rig. Id. at 122, 125. Smith told plaintiff to call the port captain, Woody Domangue. Id. at 125. Even though he was no longer a Tetra employee after August 13, plaintiff called Domangue on August 14 to ask for a transfer; Domangue's response, according to plaintiff, was that "we all need to get along." Id. at 122-23. Seemingly not satisfied, plaintiff called Sid Falgout that same day to request a transfer and to report that Carrere was working in the same field where he was assigned. Id. at 126-27. Falgout then contacted a Henry's representative to alert him of plaintiff's complaint and to recommend that the two be separated. Falgout Decl. at 26-27. On or about the seventh day of the fourteen-day hitch, plaintiff was transferred to the Mackerel, a tugboat assigned to a different rig in a different field. Pl.'s Dep. at 246. After August 13 (both before and after the transfer to the Mackerel), plaintiff never saw or talked with Carrere again. Id. at 128-29, 247.
Carrere was working as a deckhand at that time on the Carl T, which was assigned to another rig in the same field as the Bacchus. Pl.'s Dep. at 117.
Plaintiff's captain on the Bacchus was no longer Darrell Naquin; Naquin resigned on August 12, 2002, prior to the transfer of ownership from Tetra to Henry's Marine. Pl.'s Dep. at 255.
Falgout earlier had told plaintiff to contact him if he ever had any problems. Pl.'s Dep. at 126.
On August 21, 2002, Henry's Marine terminated plaintiff.
II. LAW AND ARGUMENT
A. Standard for Summary Judgment
"Summary judgment is proper `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 judgment as a matter of law.'" Kee v. City of Rowlett, Texas, 247 F.3d 206, 210 (5th Cir.), (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c))), cert. denied, 122 S. Ct. 210 (2001). "The moving party bears the burden of showing . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 210. If the moving party meets this burden, "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Id. "A dispute over a material fact is genuine if the evidence is such that a jury reasonably could return a verdict for the nonmoving party." Id. (internal quotations omitted). "The substantive law determines which facts are material." Id. at 211. Factual controversies are to be resolved in favor of the non-moving party. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
B. Claim of Hostile Work Environment Based on Sexual Harassment
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 . . . sex." 42 U.S.C. § 2000e-2(a)(1). A plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive working environment. See Shepherd v. Comptroller of Pub. Accounts of the State of Tex., 168 F.3d 871, 873 (5th Cir. 1999) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986)). Under Fifth Circuit precedent, to establish a prima facie case for a hostile work environment claim based on a co-worker's conduct, a plaintiff must establish that: (1) he belongs to a protected group; (2) he was subject to unwelcome harassment; (3) the harassment was based on sex; (4) the harassment affected a "term, condition, or privilege of the employment;" and (5) 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), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987).
Defendant argues that the conduct alleged does not constitute harassment based on plaintiff's sex, as required by the third element, and that the conduct is not sufficiently severe or pervasive as to affect a "term, condition, or privilege" of plaintiff's employment, as required by the fourth element. Defendant also argues that plaintiff cannot establish the fifth element because Tetra took prompt remedial action reasonably calculated to end the alleged harassment. Having reviewed the summary judgment evidence as a whole and resolving all factual controversies in the light most favorable to plaintiff, the Court agrees with defendant that plaintiff cannot establish the third and fifth elements of his Title VII hostile work environment claim. 1. The Alleged Harassment Must Be Based on Plaintiff's Sex :
For purposes of the instant motion, the Court will assume (1) that plaintiff is a member of a protected class, and (2) that plaintiff was subject to unwelcome harassment. In addition, because the Court finds that plaintiff cannot establish two of the five elements of his prima facie case, the Court will not address the fourth element, i.e., whether the unwelcome harassment, if based on sex, was sufficiently severe or pervasive so as to affect a term, condition or element of plaintiff's employment.
To be actionable, the harassment alleged must be based on sex. See, e.g., Green v. Administrators of Tulane Educ. Fund, 284 F.3d 642, 656 (5th Cir. 2002) ("the critical issue . . . is whether Green was exposed to disadvantageous terms or conditions of employment to which members of the opposite sex were not"). Stated otherwise, the conduct at issue must constitute "discrimination because of sex." Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81, 118 S.Ct. 998 (1998).
In Oncale, the Court outlined three ways in which a plaintiff can show that an incident of same-sex harassment constitutes sex discrimination:
First, he can show that the alleged harasser made "explicit or implicit proposals of sexual activity" and "provide credible evidence that the harasser was homosexual." . . . Second, he can demonstrate that the harasser was "motivated by general hostility to the presence of [members of the same sex] in the workplace." . . . Third, he may "offer direct, comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace."La Day v. Catalyst Tech., Inc., 302 F.3d 474, 478 (5th Cir. 2002) (quoting Oncale, 523 U.S. at 80, 118 S.Ct. 998). Like the plaintiff in La Day, Kreamer alleges only the first type.
In La Day, the Fifth Circuit was first presented with the issue of what kind of proof constitutes "credible evidence" that the harasser was homosexual. 302 F.3d at 478. While the Court recognized the impossibility of specifying all the possible sources of proof that an alleged harasser acted out of homosexual interest, the Court emphasized two types of evidence "likely to be especially `credible' proof that the harasser may be homosexual." Id. at 480. The first type of "especially credible proof" is that "evidence suggesting that the harasser intended to have some kind of sexual contact with the plaintiff rather than merely to humiliate him for reasons unrelated to sexual interest." Id. "The second is proof that the alleged harasser made sexual advances to others, especially to other employees." Id.
In the instant case, the only sources of proof possibly suggesting that Carrere acted out of a homosexual interest are the one prior report of nondescript pinching and/or grabbing, made by the chef Marty Newcome against Carrere, Pl.'s Dep. at 196, 247-48, and the two comments made by Carrere to plaintiff: (1) that Carrere would like to compare packages, id. at 148, and (2) that Carrere "would like to f**k that piece of ass." Id. at 190-91, 193. While the Court cannot consider this proof in isolation, the Court finds that plaintiff's deposition testimony and the summary judgment evidence, as a whole, reveals an intent of Carrere to humiliate plaintiff for reasons unrelated to a sexual interest, rather than an actual intent to have sexual contact. The entire week at issue and the one day in August 2002 consisted of eight separate incidents of Mr. Carrere's having grabbed plaintiff's crotch or sides eight separate times, accompanied twice by crude statements; offensive gestures; and the lighter incident.
Plaintiff described Carrere as a loud-mouth type, prone to profanity and horseplay. Pl.'s Dep. at 248. When plaintiff reported Carrere's behavior, plaintiff found that Carrere "kept pushing it." Pl.'s Dep. at 162. The instances of Carrere throwing the rope off the bit at the end of three shifts indicate an intent to bully, humiliate and/or annoy plaintiff. Likewise, the lighter incident, where Carrere allegedly attempted to place a hot lighter near plaintiff's crotch in the presence of the tugboat captains and the company man, hardly indicates a sincere desire for sexual contact.
Even with the one time when Carrere allegedly used language that could possibly indicate an intent to have sex with plaintiff, the Court agrees with defendant that the circumstances negate any such intent and instead demonstrate that Carrere's real goal was again humiliation. According to plaintiff, this incident occurred while he was in the engine room of the Bacchus, after Tetra had arranged for Carrere to be moved and shortly before he actually departed. Pl.'s Dep. at 192-94. Even in this situation, Carrere did not actually attempt to have sexual contact, however. Instead, he again taunted plaintiff.
The Court is guided by the Seventh Circuit's statement that when expressions such as "F**k me" and "kiss my ass" are used by men speaking to other men, often "their use has no connection whatsoever with the sexual acts to which they make reference — even when they are accompanied . . . with crotch-grabbing gesture." Johnson v. Hondo, Inc., 125 F.3d 408, 412 (7th Cir. 1997).
A: . . . he grabbed my sides and all I did was push him away, and I got out of the engine room, because I was looking for my captain and all to tell him what happened, and he told — the way Carroll told me, he says, "That's all right. You ain't got to tell him. I'm leaving anyway. I'm going to another boat, and I'm getting five more dollars a day."Id. at 194. Given that Carrere's departure was imminent, the only reasonable interpretation of Carrere's taunting comments is an intent to engender feelings of anger; the entire incident was nothing more than a final parting shot directed at plaintiff. No reasonable juror could find that Carrere's behavior constituted a realistic sexual proposition of the type necessary to be actionable under Title VII.
Carrere did not receive any raise at the time of his transfer on May 15, 2002. Falgout Declaration at 18.
In his opposition, plaintiff places great emphasis on the one time when plaintiff awoke to find Carrere standing in his sleeping quarters. Plaintiff argues that he is entitled to an inference that Carrere's only motive was to have sex with plaintiff. Pl.'s Opp'n, n. 40. Plaintiff would be entitled to such an interpretation if it were reasonable. See Moreno v. Summit Mortgage Corp., 364 F.3d 574, 576 (5th Cir. 2004) (in evaluating a summary judgment motion, the district court must draw all reasonable inferences in favor of the nonmovant) (emphasis added). Plaintiff, however, fails to recognize that Carrere did not say anything, did not touch plaintiff and did not attempt to get into plaintiff's bed or remove plaintiff's clothing. Pl.'s Dep. at 239-40. When this one incident is considered in light of all the other summary judgment evidence, plaintiff has simply failed to present any proof indicating that Carrere was acting out of any bona fide homosexual interest.
Finally, the only evidence suggesting that Carrere may be homosexual is plaintiff's own self-serving testimony. Plaintiff has testified that he does not know whether Carrere was in fact homosexual, but, based on the incidents that occurred during the week of May 9 to May 15, plaintiff believes that Carrere is homosexual. Pl.'s Dep. at 242-43. Carrere, who is married with children, has denied that he is homosexual. Carrere Decl. at 15, 16. Likewise, Falgout has stated that he does not believe Carrere to be homosexual. Falgout Decl. at 6. Hank Smith, a tool pusher on the rig to which the Bacchus and the Mr. Troy were assigned, has denied ever seeing Carrere touch or approach any other men on the rig in a way that made the men feel uncomfortable. Smith Dep. at 17. In fact, plaintiff never saw Carrere touch any other man on the rig. Pl.'s Dep. at 247. Plaintiff concedes that Carrere never told him that he was a homosexual and that Carrere never asked him out or expressed an interest in him socially outside of work. Id. at 241-43. Conversely, plaintiff presents no evidence that Carrere had any reason to believe that plaintiff was gay.
Plaintiff has also submitted three declarations of his captain Darrell Naquin. In the declaration dated August 20, 2004 ("Declaration A"), Naquin states that he has no reason to believe Carrere is homosexual; that he understood Carrere was joking around; and during the relevant time period, he did not believe Carrere was homosexual or was attempting to have homosexual relations with plaintiff, and that he continues to hold these beliefs. Naquin Decl. A at 11, 20 and 29. However, in a declaration dated August 23, 2004 ("Declaration B"), Naquin stated that he thought plaintiff was interpreting Carrere's grabbing as sexual and that such an interpretation was reasonable; and that by May 15, he had "added it all up and concluded that the whole ordeal could have been sex." Naquin Decl. B at 3, 4 and 15. Given that these statements are completely inconsistent, contradictory and unreliable, the Court affords little to no weight to Mr. Naquin's declarations.
"In other words, [plaintiff] has `no other reason (other than the behavior of which he complains) to believe that [Carrere] is a homosexual.'" English v. Pohanka of Chantilly, Inc., 190 F.Supp.2d 833, 846 (E.D.Va. 2002) (quoting Davis v. Coastal Int'l Sec., Inc., 275 F.3d 1119, 1123 (D.C. Cir. 2002) (rejecting sexual solicitation theory because, inter alia, plaintiff's evidence of harassers' homosexuality was based on harassers' conduct)). Plaintiff cannot rely on his subjective belief alone that Carrere was gay to meet his evidentiary burden. See id.
Plaintiff's subjective belief of Carrere's homosexuality stands on especially tenuous grounds here, where it appears plain on the record that the statements and conduct in question were nothing other than vulgar provocations having no causal relationship to plaintiff's gender as a male. See English, 190 F.Supp. at 846 (quoting Johnson v. Hondo, Inc., 125 F.3d 408, 413 (7th Cir. 1997)). Contrary to the limited number of cases where courts have inferred the harasser's homosexuality from the underlying conduct, the instant case does not involve "conduct [that] goes beyond the casual obscenity." Shepherd v. Slater Stells Corp., 168 F.3d 998, 1010 (7th Cir. 1999). This is a case very much unlike La Day where the Court did find credible evidence of a sexual interest and of homosexuality. La Day, 302 F.3d at 476-77 (summary judgment for defendant reversed where harasser fondled plaintiff's anus similarly to "foreplay with a woman;" harasser said he was jealous of plaintiff's girlfriend after seeing passion marks on plaintiff's neck; and employer had received complaints from two other employees about harasser's explicit sexual overture). Compare also Shepherd, 168 F.3d at 1009-10 (plaintiff survived summary judgment where harasser referred to plaintiff several times as a "handsome young man;" told plaintiff, who was lying face-down on a bench to alleviate stomach cramps, that he was thinking of "f**k[ing plaintiff] in the ass" as "he rubbed himself to an erection;" and made other graphic suggestions regarding sexual activity).
While the Court does not condone Carrere's highly inappropriate conduct, viewing the facts in the light most favorable to plaintiff, his evidence is insufficient to withstand summary judgment on his same-sex discrimination claim based on a sexual solicitation theory. Although the Court finds that summary judgment is properly granted in Tetra's favor on this basis alone, the Court finds that at least one other ground exists which compels the Court to grant Tetra's motion, as discussed infra. 2. Plaintiff Must Show That Tetra Knew or Should Have Known of the Harassment and Failed to Take Prompt Remedial Action
Defendant argues that, even if plaintiff could establish a genuine issue on the "gender" and the "term or condition" elements, his claims nonetheless must be dismissed because he cannot present evidence that defendant failed to take prompt remedial action once it knew or should have known of the harassment. The Court agrees.
Defendant "cannot be held liable for conduct of which it had no knowledge." Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 299 (5th Cir. 2001). Nor can it be held liable for conduct which it addressed with "prompt remedial action." See, e.g., Skidmore v. Precision Printing and Pkg., Inc., 188 F.3d 606, 616 (5th Cir. 1999). To survive summary judgment, plaintiff must produce evidence from which a jury reasonably could find both that Tetra knew or should have known of the alleged harassment and that it failed to take prompt remedial action. Id. Plaintiff has failed in this regard.
An employer fulfills its legal obligation when its remedial action is "reasonably calculated" to end the harassment. Skidmore, 188 F.3d at 616. Employers are not required to use the most serious form of discipline to punish an offending employee. Landgraf v. USI Film Products, 968 F.2d 427, 430 (5th Cir. 1992). Likewise, the employer's actions need not come immediately to be appropriate. Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309 (5th Cir. 1987). Rather, when Title VII is implicated, the manner and promptness of an employer's response should be analyzed considering its hierarchy and immediate business demands. Waymire v. Harris County, Tex., 86 F.3d 424, 429 (5th Cir. 1996). For example, in Dornhecker, the Fifth Circuit found the employer's response was "unusually prompt" and the "antithesis of inaction" when it told the plaintiff that she would not have to work with an alleged harasser again after the end of a business trip that was in progress at the time of the complaint. Id. at 308-09. Explaining, the Court observed that "[s]ince the demise of . . . dueling, society seldom has provided instantaneous redress for dishonorable conduct." Id. at 309.
For purposes of this motion, the Court assumes that, with each instance of grabbing, rope-throwing and offensive comments having been made, plaintiff complained to his captain, the tool pusher on the rig and/or the port captain. The Court also assumes that, following most of these reported incidents but not all, Carrere was instructed to stop and to leave plaintiff alone. Furthermore, it is undisputed that, on May 13, 2002, four days following the first report of any harassment, a message was sent by facsimile from the tool pusher and the company man on the rig to Tetra's office onshore. Ex. F-2 to Falgout Decl. It is further undisputed that, on May 14, 2002, Tetra's Human Resources Manager, Sid Falgout, received the facsimile and decided to have Carrere removed from the Mr. Troy, brought to his office to discuss the complaint, and thereafter transferred indefinitely to a boat assigned to a different rig. Falgout Decl. at 14, 17 and 18. Also undisputed is the fact that, on May 15, 2002, Carrere was transferred, and plaintiff thereafter had no personal contact with Carrere until plaintiff later returned to work nearly three months later. Carrere Decl. at 13; Pl.'s Dep. at 194-95. Even then, plaintiff only came into contact with Carrere on one day, August 13, 2002, at which time Carrere whistled once at plaintiff when the tugboat to which he was then assigned passed the Bacchus. Id. at 117, 120. Plaintiff reported the action to the tool pusher Hank Smith, and the next day, although no longer a Tetra employee, plaintiff contacted Falgout, to request a transfer and to complaint about the whistling. Id. at 122, 126-27. Within a few days, plaintiff was transferred to a different tugboat in a different field. Id. at 246. It is undisputed that after the one whistling incident on August 13, and after his transfer to the Mackerel, plaintiff never saw or spoke to Carrere. Id. at 128-29, 247.
Despite the fact that plaintiff, with the one whistling exception, did not encounter his alleged harasser following the two transfers, plaintiff complains that Tetra should have imposed more severe disciplinary sanctions on Carrere; that Tetra should have acted faster; and that Tetra erred in reprimanding Carrere for "physical harassment" and not "sexual harassment." Plaintiff argues that, at the time of the first reported incident, Tetra should have immediately removed Carrere from the Mr. Troy. Plaintiff's argument, however, is unreasonable as it does not take into account Tetra's business demands, as well as the fact that, in some cases, a verbal warning or other instruction may end the harassment and therefore be sufficient. Additionally, while plaintiff has testified that he was dissatisfied in that Carrere was not terminated as a result of his complaints, Tetra was not legally obligated to fire Carrere. See Woods, 274 F.3d at 300 (citing Mota v. University of Texas Houston Health Science Center, 261 F.3d 512, 525 (5th Cir. 2001) (noting that an employer need not use the most serious sanction available to punish a sexual harassment offender)).
For example, plaintiff does not present any evidence that Carrere threw eggs or any other objects at any co-workers following the one incident in July 2001 for which Carrere was warned verbally and in writing.
In the instant matter, the Court finds as a matter of law that removing Carrere from a vessel and returning him to shore for disciplinary action in the middle of a two-week hitch and within one week of the first report of unwelcome harassment involved prompt action by defendant. The Court further finds that defendant's actions in May 2002 and August 2002 were effective as the transfers did in fact stop the alleged harassment by Carrere. Plaintiff bears the burden of showing that Tetra's response failed in this regard, and he has submitted no evidence from which a jury reasonably could conclude that Tetra did not take prompt remedial action "reasonably calculated" to stop the harassment.
Plaintiff argues that Carrere's whistling at plaintiff on August 13, 2002, is proof that defendant's actions were not "reasonably calculated" to end the harassment. The Court, however, is not persuaded by plaintiff's argument as (1) no reasonable jury could find that a single instance of whistling in the present case could constitute sexual harassment, and (2) Tetra met its legal duty as it took action once it learned that the harassing behavior did not stop. See Skidmore, 188 F.3d at 615 ("[w]hat is appropriate remedial action will necessarily depend on the particular facts of the case — the severity and persistence of the harassment, and the effectiveness of any initial remedial steps.") (emphasis added).
Finally, as to plaintiff's allegations that he was subjected to a hostile work environment as a result of certain other conduct — co-workers laughing at him and/or making snide remarks, and his experiencing cold silence when he entered the rig's galley — plaintiff admits that he did not complain or otherwise report any such conduct. Pl.'s Dep. at 228-29. Plaintiff also has not presented any evidence that any Tetra employee in a supervisory or management position knew or should have known of such harassment. It is well-established that a defendant, such as Tetra, "cannot be held liable for conduct of which it had no knowledge." Woods, 274 F.3d at 295. Tetra therefore is entitled to summary judgment as a matter of law, dismissing any claim of plaintiff based on the conduct of Carroll Carrere and any other Tetra employee.
III. CONCLUSION
Accordingly, for all of the foregoing reasons, IT IS ORDERED that defendant's Motion for Summary Judgment is GRANTED, dismissing plaintiff's claims against Tetra Applied Technologies, L.P., for damages arising out of a hostile work environment.