Opinion
Civil Action No. 00-2937 Section "N"
March 28, 2002
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment filed by defendant, Cytec Industries, Inc. ("Cytec"). For the reasons that follow, the motion is GRANTED.
I. BACKGROUND
Plaintiff, Cynthia Matherne, brings this action against her former employer, Cytec, seeking damages under Title VII and state law for alleged sexual harassment. Cytec, a chemical manufacturer, hired plaintiff in 1991 to work in its Fortier Louisiana plant, ultimately as an operator in the acrylonitrile department. She belonged to the union (PACE) and became a union steward in 1995.
Plaintiff claims that on July 6, 1999, after approximately eight years of employment with Cytec, she was kissed near the guard shack by Ivins Clark, an African-American male non-supervisory employee from another unit. She claims that while waiting for a ride into the plant to begin her shift, Clark commented on her buttocks and then pressed her against a wall, kissed or pecked her on the lips, and said, "now you ain't never going to get married." When she allegedly stated that she already was married, Clark allegedly replied, "now you're going to get a divorce." Shortly after her shift began, plaintiff asked a supervisor to take her to the infirmary, where she locked herself in a room for two hours. Afterward, she was taken to East Jefferson Medical Center, where she voluntarily admitted herself to the psychiatric ward for two days. She has been on medical disability and has not returned to work since that date.
On April 26, 2000, she filed a complaint with the EEOC. In addition to complaining about the alleged July 6, 1999 kiss, plaintiff alleged that since 1995 male co-workers had requested sexual favors and had used pornographic movies and websites in the break room and work area. Cytec Exh. 10. She did not allege any retaliation and did not check the box labeled "Retaliation."
On October 4, 2000, she filed the instant action, seeking damages under Louisiana's anti-discrimination statute. In her complaint, she alleged that she was subjected to sexual harassment and/or retaliation "from at least April 19, 1999 to July 7, 1999." In addition to recounting the alleged kiss, she alleged that: (1) in March or April 1999, she saw co-worker Darrell Petite place two Taco Bell toy dogs together in a suggestive position; (2) in April, May, and June 1999, Mike Gaudet began to appear more often in her unit, where he and other workers would "glance over" at plaintiff; (3) walking through the control room to the break room, she saw "x-rated" pictures on the computer screen of co-worker Earl Richard; (4) despite bidding on May 6, 1999 to be moved from her "Relief I" job (which required her to work in laboratory and console "ConII/I" positions) to a recovery operator position, Cytec did not immediately reclassify her and continued to require her to cover ConII/I positions for which she had inadequate training, thereby causing her in late May 1999 to go to the infirmary (and ultimately home for the day) due to stress; (5) she was not paid for the seven hours work she missed that day due to stress, although male workers "have gone home sick and gotten paid;" and (6) on June 30, 1999, a print out of a web page title "Top 10 things women do to screw up their lives" [a parody by talk show host Rush Limbaugh of talk show host Dr. Laura Schlessinger] was taped to a table in the break room.
On March 13, 2001, plaintiff filed an amending complaint (the "Complaint"), which added a Title VII claim. The EEOC issued plaintiff a right-to-sue letter on February 2, 2001.
Plaintiff gives no date for this event. In her Opposition Memorandum, she states that Earl Richards resigned in August 1998. See Opp. Memo at p. 23. If true, then this incident could not have occurred during the April 19 to July 7, 1999 actionable period.
II. LAW AND ANALYSIS
Defendant argues that plaintiffs claims are inactionable as a matter of law. The Court agrees.
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.
B. Sexual Harassment:
The first step in analyzing a sexual harassment claim is to ask "whether the complaining employee has or has not suffered a 'tangible employment action.'" Casiano v. ATT Corp., 213 F.3d 278, 283 (5th Cir. 2000). "If he has, his suit is classified as a 'quid pro quo' case; if he has not, his suit is classified as a 'hostile environment' case." Id. "The Supreme Court has defined 'tangible employment action' as "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'" Mota v. University of Texas Houston Health Science Center, 261 F.3d 512, 520 (5th Cir. 2001) (quoting Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). "A tangible employment action in most cases inflicts direct economic harm and must involve an official act by the company." Id.
Louisiana courts look to federal Title VII jurisprudence to determine whether a plaintiff has asserted a valid claim for sexual harassment. See, e.g., Lapeyronnie v. Dimitri Eye Center, Inc., 693 So.2d 236, 237 (La.App. 4th Cir. 1997), writ denied, 701 So.2d 207 (La. 1997); ("Historically, Louisiana courts have looked to the federal statute to determine whether plaintiff has asserted a claim for sexual discrimination."); Tanner v. Reynolds Metals Co., 739 So.2d 893, 899 (La.App. 1st Cir. 1999) ("Louisiana courts have routinely looked to the federal statute for guidance in determining whether a claim for sexual harassment has been asserted."); Meche v. Wal-Mart Stores, Inc., 692 So.2d 544, 548 (La.App. 3d Cir.), writ denied, (La.), cert. denied, 522 U.S. 1002 (1997) ("Louisiana's courts have properly looked to the federal statute to ascertain whether a valid claim for sexual harassment has been asserted."); Trahan v. Rally's Hamburgers, Inc., 696 So.2d 637, 641 (La.App. 1st Cir. 1997) (because of substantive similarity between Title VII and Louisiana's anti-discrimination law, it is "appropriate to consider interpretations of the federal statute"). Both parties rely on federal case law, and neither party has suggested that Louisiana case law would produce a different result on any issue. Accordingly, this Court will analyze the state and federal claims together, using federal jurisprudence.
Here, plaintiff does not argue that her claim should be treated as a qui pro quo claim. Moreover, plaintiff offers no evidence from which a jury reasonably could conclude that she suffered any tangible employment action because of her reaction to any unwelcome harassment. She does not complain that she was ever demoted, refused a raise, or reassigned to an undesirable position due to her sex. She does complain, apparently in connection with her retaliation claim, that she was not released immediately to the new job assignment she bid for in May 1999. However, plaintiff offers no evidence that this was an ultimate employment decision. To the contrary, plaintiff herself maintains that her May 6th bid for the new job assignment was approved. Her complaint is simply that she was not allowed to be released immediately to go into the new job. See Complaint at ¶ 4(g) and (h). Plaintiff does not dispute defendant's evidence that this alleged delay caused plaintiff no economic harm and denied her no economic benefit. See Cytec Memo Exh. 13, Eileen O'Brien Affidavit at ¶ 4 (because plaintiff already "was being compensated at the top rate of pay under the collective bargaining agreement in her current job, no increase in pay accompanied the job change"). Accordingly, the Court will treat plaintiffs sexual harassment claim as one alleging "hostile work environment."
To establish a qui pro quo claim, a plaintiff must show that her "acceptance or rejection of the harassment [was] an express or implied condition to the receipt of a job benefit or the cause of a tangible job detriment." Collins v. Baptist Memorial Geriatric Ctr., 937 F.2d 190, 196 (5th Cir. 1991), cert. denied, 502 U.S. 1072 (1992).
1. Elements of a Hostile Work Environment Claim:
"In order to establish a hostile working environment claim, a plaintiff must prove five elements: (1) the employee belonged to a protected class; (2) the employee was subject to: unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a 'term, condition, or privilege' of employment; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action." Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 298 (5th Cir. 2001).
The plaintiff need not establish the fifth element if the sexual harassment is committed by a worker with supervisory authority over the plaintiff Woods, 274 F.3d at 298 n. 2 (citing Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999).
Defendant argues that certain of the conduct alleged does not constitute harassment based on plaintiffs sex, as required by the third element, and that the remainder is not sufficiently severe or pervasive as to affect a "term, condition, or privilege" of plaintiffs employment, as required by the fourth element. Defendant also argues that each instance of alleged conduct fails to satisfy the fifth element because Cytec took prompt remedial action on every incident brought to its attention.
2. The Alleged Harassment Must Be Based on Plaintiff's Sex:
To be actionable, the harassment alleged must be based on sex. See, e.g., Green v. Administrators of Tulane Educational Fund, ___ F.3d ___, 2002 WL 314011 *7 (5th Cir. Mar 15, 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"). Two of the incidents complained of here do not satisfy this essential element: the job bid and sick pay complaints.
With respect to the job bid, plaintiff has submitted no evidencc from which a jury reasonably could conclude that the refusal to release plaintiff immediately to her new job assignment was in any way based on plaintiffs sex. Indeed, the evidence is undisputed that it was Cytec's policy, consistent with practices under the collective bargaining agreement, not to release an employee to a new job until a replacement could be trained. See Affidavit of Eileen O'Brien, Cytec Memo, Exh. 13 at ¶ 4. Plaintiff has submitted no evidence that the policy was not applied equally to male and female employees. To the contrary, plaintiff alleges that every time she herself had bid successfully for a new job in the past, Cytec released her to the new job immediately. See Complaint at ¶ 4(h). Thus, as a matter of law, the job bid incident does not amount to sexual harassment.
The same is true for plaintiffs claim that she was not paid for the seven hours of work she missed on May 20, 1999 due to stress. Although plaintiff alleges in her Complaint that male workers had "gone home sick and gotten paid," she offers no evidence that Cytec's failure to give her sick pay for those seven hours was based on her sex. Instead, plaintiff now argues that a female human resource manager, Eileen O'Brien, made the decision to deny plaintiff the sick pay because she thought plaintiff was faking illness to avoid doing the job assigned. See Opp. Memo at p. 24 and Exh. A at ¶ 4. Because it is undisputed that the decision was not based on plaintiffs sex, the action cannot constitute sexual harassment.
3. The Harassment Must Affect a Term or Condition of Employment:
Defendant argues that the remainder of plaintiffs allegations are not sufficiently severe and pervasive to affect a term or condition of employment.
"Title VII was only meant to bar conduct that is so severe and pervasive that it destroys a protected classmember's opportunity to succeed in the workplace." Shepherd v. Comptroller of Public Accounts of State of Texas, 168 F.3d 871, 874 (5th Cir.) (internal quotations omitted), cert denied, 528 U.S. 963 (1999). Thus, to establish a hostile environment claim, a plaintiff must show that the complained-of conduct was "severe or pervasive enough to create an objectively hostile or abusive work environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Woods, 274 F.3d at 299 (to be actionable, harassment "must have created an environment that a reasonable person would find hostile or abusive"). This objective determination is made by looking at all the circumstances, 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 an employee's work performance." Id.; Green v. Administrators of Tulane Educational Fund, __ F.3d __, 2002 WL 314011 *6 (5th Cir. Mar 15, 2002). "[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Shepherd, 168 F.3d at 874 (intermittent "boorish and offensive" sexual comments, attempts to look down plaintiffs dress, and touching plaintiff's arm did not establish hostile environment) (internal quotations omitted).
The Court agrees with defendant that the conduct alleged here does not rise to the level of an objectively abusive environment, as required under Title VII. The alleged kiss is the sort of conduct that, if recurring, can become so severe and pervasive as to create an environment that would undermine a reasonable person's ability to perform her job duties. However, Clark was a non-supervisory employee who worked in a separate unit from plaintiff Without other similar or related conduct, Clark's alleged actions are not sufficiently serious to support a jury finding that they created an objectively abusive environment. Even when viewed in light of the other intermittent acts that allegedly occurred during the actionable period (the Rush Limbaugh parody in the break room and Mike Gaudet's alleged "glances" in plaintiffs direction) or even near the actionable period (Darrell Petite's Taco Bell dogs and Earl Richard's alleged "x-rated" computer screen), the alleged conduct falls short of that which would support a jury finding of an objectively abusive environment.
4. Plaintiff Must Show That Cytec Knew or Should Have Known of the Harassment and Failed to Take Prompt Remedial Action___________
Defendant argues that, even if plaintiff could establish genuine issue on the "term or condition" element, her claims nonetheless must be dismissed because she 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, 274 F.3d at 299. 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 Cytec 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.
Plaintiff complained to her union chairman about the Taco Bell dogs and never saw them again. See Defendant's Statement Undisputed Material Facts ("SUMA") at ¶ 36; Plaintiff's Statement of Controverting Facts ("SCA") at ¶ 36. In March 1999, plaintiff complained to a supervisor that a co-employee was looking at a pornographic internet site and neglecting his job. SUMA and SCA at ¶¶ 37, 38. The behavior stopped after she complained. Id. at ¶ 39. Moreover, plaintiff admits that Cytec subsequently established an internet use policy and has worked to monitor and control inappropriate internet use, including installation of software that blocks access to sites containing certain words. Id. at ¶ 40.
Defendant argues that both of these alleged acts ( i.e., the computer screen and Taco Bell dogs) are time-barred, as are others alleged in the Complaint. Because the Court finds that plaintiff has failed to demonstrate a genuine issue of fact on the merits of her sexual harassment claim, even with these arguably time-barred events, the Court need not decide this issue.
Although plaintiff asserts that this co-employee's internet use resumed some time later, plaintiff submits no evidence that she reported the recurrence.
When plaintiff saw the Rush Limbaugh parody of Dr. Laura, she complained to the human resources manager, Eileen O'Brien, who told plaintiff she would handle it. Id. at ¶¶ 45, 46. Bob Johnson then spoke to the male workers in the department, or at least to the suspected perpetrator, making clear that such material was inappropriate. Id. at ¶¶ 47, 48. Such material never reappeared. He. Id. at ¶ 48. Plaintiff offers no evidence that she ever complained to anyone about Mike Gaudet and others "glancing" at her.
Plaintiff admits that, after the alleged kiss, Cytec immediately investigated plaintiffs claim that Clark had kissed her. Id. at ¶ 63. The human resources manager, Eileen O'Brien, interviewed Clark, who denied the incident. Moreover, the worker's compensation carrier (who was investigating plaintiffs worker's compensation claim based on the alleged incident) was unable to find a single witness to substantiate plaintiffs version of the alleged kiss. Id. at ¶¶ 64 through 67. Despite this', Eileen O'Brien counseled Clark that conduct such as that alleged would be considered unacceptable, against company policy, and subject to disciplinary action, up to and including termination. Id. at ¶ 68; Defendant's Memo, Exh. 9 at ¶¶ 4, 5.
Even if the company's investigation had shown that Clark had kissed plaintiff Cytec was not legally obligated to fire Clark, an employee of twenty-five years with no record of disciplinary problems. See Woods, 274 F.3d at 300 (citing Mota v. University of Texas Houston Health Science Center, 261 F.3d 512, 525 (noting that an employer need not use the most serious sanction available to punish a sexual harassment offender)). "What 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." Skidmore, 188 F.3d at 615. An employer's response is considered "prompt remedial action" if it was "reasonably calculated" to stop the harassment. Id. "Plaintiff bears the burden of showing that Cytec" s response failed in this regard, and she has submitted no evidence from which a jury reasonably could conclude that Cytec did not take prompt remedial action.
5. Plaintiff's New Allegations About Old Events:
In response to the instant motion, plaintiff has submitted an opposition memorandum brimming with allegations regarding old conflicts and incidents going back to 1993, supported largely by an affidavit from plaintiff stating that all of the fact representations in the opposition memorandum are true. For example, plaintiff claims that: (1) in 1993, co-worker Andy LeBoeuf repeatedly tried to touch and hold her and that co-worker Brett Haydel once touched her breast and laughed; (2) starting in 1994, only she (not male co-workers) was reported for abusing the "shower pay" policy by showering while on shift; (3) starting in 1995, she was told that the plant was no place for a woman and that women were not wanted in the acrylonitrile unit; (4) starting in 1992, pornographic videos (e.g. tapes of Jerry Springer episodes and flashers at Mardi Gras) were played in the break room; (5) although a supervisor told her once in 1996 or 1997 that she would be fired if caught sleeping on the job, this same supervisor passed by a male employee sleeping and said nothing; and (6) in 1998, Console II trainers refused or neglected to train her for that position. Opp. Memo at p. 23. She also includes in her memorandum, inter alia, statements about 1998 rumors that she was having an affair with a supervisor, rumors that she was a lesbian, and comments concerning the affect of the cold temperature on parts of her anatomy.
See Opp. Memo at p. 8. She does not claim to have complained about this behavior.
See Opp. Memo at p. 13. She does not claim to have complained about this alleged disparate treatment.
See Opp. Memo at pp. 5-6, 8 n. 14. She does not claim to have lodged a complaint about these alleged comments.
See Opp. Memo at p. 10. When she complained to the human resources manager, he issued a warning that anyone with such a tape would be fired. Opp. Memo at p. 10. She claims the videos continued, but does not maintain that she ever notified the company of this fact. Id.
See Opp. Memo at 16.
Many of the allegations concern confrontations between plaintiff and Paul Beltz, a co-employee who, along with plaintiff, served as a union steward. Before plaintiff become a union steward, plaintiff and Beltz got along well. See SUMA and SCA, supra, at ¶ 6. He helped plaintiff find a babysitter and gave plaintiff rides to work while his friend repaired her truck. Id. at ¶ 7. However, they did not see eye to eye on union issues. Id. at ¶ 8. Plaintiff claims that in January 1995, Beltz made a sexual proposition to her off company premises, which she rejected. See Opp. Memo at p. 6. She admits that Beltz's sexual comments stopped in late 1996. Id. at 21. However, she claims that he continued to harass her and maintained a "secretive agenda" against her. Id. at ¶¶ 22, 23. The disagreements between Beltz and plaintiff eventually sparked a company investigation in 1998, after which the human resources manager held a series of meetings on the company's mutual respect policy and called in a consulting group to do evaluations and surveys. Id. at ¶ 26, 35. In June 1998, plaintiff filed a charge with the National Labor Relations Board claiming that Cytec was harassing and discriminating against her "because of her union activity." Def. Memo, Exh. 11.
Defendant argues that these allegations should not be allowed to defeat summary judgment because they are time-barred, not backed by admissible evidence, and constitute an improper expansion of the pleadings. The Court agrees.
a. The New Allegations Are Time-Barred:
In a referral state such as Louisiana, a Title VII plaintiff must file a charge of discrimination with the EEOC within 300 days "after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5 (e)(1); see Webb v. Cardiothoracic Surgery Associates of North Texas, P.A., 139 F.3d 532, 537 (5th Cir. 1998). The Fifth Circuit has explained that "Congress intended the limitations period contained in § 2000e-5 (e)(1) to act as a statute of limitations." Id. at 537 (citing United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977) ("A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed.")). Consequently, a Title VII plaintiff in a referral state "cannot sustain a claim of sexual harassment based upon incidents that occurred more than 300 days before the filing of a charge of discrimination." Id. at 537. Plaintiff here filed her initial charge of discrimination on April 26, 2000 (or April 18, 2000, if plaintiffs date is accepted). Thus, she may recover under Title VII only for conduct that occurred after June 30, 1999 (or June 23, 1999, if plaintiffs date is accepted), which is 300 days before the filing of her charge.
Plaintiff agrees with this rationale, but argues that the EEOC complaint should be deemed filed on April 18, 2000 (on which date she claims she filed an affidavit), rather than April 26, 2000.
Plaintiffs state law claim is subject to a liberative prescriptive period of one year. See La. Rev. Stat. § 23:303(D); see also Williams v. Conoco, Inc., 860 F.2d 1306, 1307 (5th Cir. 1988). Prescription is tolled, however, during the pendency of an EEOC charge (for up to six months under the statute as currently written, for up to eighteen months under the previous statute). See La. Rev. Stat. § 23:303(D) (formerly § 23:333(C)). Plaintiff filed her state-law complaint on October 4, 2000, less than six months after filing her EEOC charge. Thus, her complaint was timely as to conduct occurring on or after April 26, 1999 (or April 18, 1999, if plaintiffs date is accepted) — one year prior to the filing of her EEOC charge. However, the new allegations sprung in her opposition memorandum all concern conduct occurring before April 26, 1999. Accordingly, any claim based on this conduct is time-barred.
For reasons that are not clear, plaintiff argues that the state-law action covers only those acts occurring on or after June 18, 1999. See Plaintiff's Response Memo (Rec.Doc. 116) at p. 9.
Contrary to plaintiffs protestations, the theory of continuing violation does not save these allegations. Application of this equitable theory is limited to "exceptional circumstances." See Webb, 139 F.3d at 537. The "core idea" of the exception "is that equitable considerations may very well require that the filing periods not begin to run until facts supportive of a Title VII charge . . . are or should be apparent to a reasonably prudent person similarly situated." Id. (internal quotations omitted). Its application "relieves a Title VII plaintiff from the burden of proving that the entire violation occurred within the actionable period provided the plaintiff can show a series of related acts, one or more of which falls within the limitations period." Id. (emphasis added); see also Messer v. Meno, 130 F.3d 130, 134-35 (5th Cir. 1997), cent denied, 525 U.S. 1067 (1999) ("The continuing violation theory relieves a plaintiff of establishing that all of the complained-of conduct occurred within the actionable period if the plaintiff can show a series of related acts, one or more of which falls within the limitations period. . . . [a] persisting and continuing system of discriminatory practices"). "[T]he plaintiff seeking to invoke this doctrine must demonstrate more than a series of discrete discriminatory acts. . . ." Celestine v. Petroleos De Venezuella, 266 F.3d 343, 351-52 (5th Cir. 2001). And, she must show more than "the mere perpetuation of the effects of time-barred discrimination." Glass v. Petro-Tex Chemical Corp., 757 F.2d 1554, 1560 (5th Cir. 1985) (internal quotations omitted) (emphasis in original)). Rather, the plaintiff must "show that there has been a pattern or policy of discrimination continuing from outside the limitations period into the statutory limitations period, so that all discriminatory acts committed as part of this pattern or policy can be considered timely." Celestine, 266 F.3d at 351-52 (5th Cir. 2001) (emphasis added) (internal quotations omitted). "He must showan_ organized scheme _ leading to and including a present violation , such that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action." Id. at 352 (quoting Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir. 1998)). "The focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights." Id. (internal quotations omitted).
The Fifth Circuit "has identified at least three factors that may be considered in determining if a continuing violation exists: (1) Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation? (2) Are the alleged acts recurring or more in the nature of an isolated work assignment or incident? (3) Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights?" Celestine, 266 F.3d at 352.
The acts alleged here do not satisfy the requirements of a continuing violation. Plaintiff has not shown a pattern or scheme of recurring related acts continuing into the actionable period. She speculates that Beltz might have inspired Clark to kiss her (presumably in an effort to bring her long-standing conflict with Beltz into the actionable period), but she has produced no competent evidence to support such an inference. The acts that occurred inside the limitations period are not of the same type as those occurring outside the period. Nor has plaintiff produced any evidence from which a jury reasonably could conclude that a reasonable person similarly situated would not have been alerted prior to April 2000 to protect her rights. Indeed, plaintiff herself states that prior to April 18, 2000, she was aware of her EEOC rights. Consequently, any state-law claim based on events occurring prior to April 26, 1999 and any Title VII claim based on events occurring prior to July 1, 1999 are time-barred.
Plaintiff states: "As to the issue of continuing violation, the threshold question is whether prior to the date of her EEOC charge on April 18, 2000 plaintiff should have been aware of her EEOC rights. As already outlined, she was." See Plaintiff's Response Memo (Rec.Doc. 116) at pp. 9-10.
b. The New Allegations Are Not Backed by Competent Evidence:
Defendant argues that the allegations presented in plaintiffs opposition memorandum fall flat for the additional reason that they are not supported by appropriate summary judgment evidence. The Court agrees. Rule 56(e) requires that opposing affidavits "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.Proc. 56(e). Plaintiff's affidavit, the only evidence supporting the overwhelming majority of factual allegations made in the opposition memorandum, falls far short of this standard. In it, plaintiff merely attests that the "fact representations in the foregoing opposition and statement of controverting facts" drafted by her counsel are "made of her own personal knowledge . . . and are true to the best of her knowledge and belief" Perhaps if the affidavit referred to a neat and orderly statement of facts, its failure to comply with Rule 56(e) could be deemed harmless. That is not the case here. The opposition memorandum, which the affidavit adopts, consists of a confusing patchwork of argument and alleged fact, with virtually no citation to evidence. Thus, for this reason also, the allegations unfurled in plaintiffs opposition memorandum do not serve to create a genuine issue of material fact.
c. The New Allegations Improperly Expand the Pleadings:
Defendant argues that the new allegations presented in plaintiffs opposition memorandum should be disregarded for the third and final reason that they improperly expand the pleadings in this matter. Under the circumstances of this case, the Court agrees. The Federal Rules set a very liberal standard for stating a claim. See Fed.R.Civ.Proc. 8(a). However, they "do contemplate that the pleadings will refer to the occurrences sued upon" and give the "defendant "fair notice of what the plaintiffs claim is and the grounds upon which it rests.'" Charles Alan Wright Arthur R. Miller, 5 FED. PRAC. PROC. CIV. 2D § 1202 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiff's Complaint gives a detailed description of acts from March 1999 through July 1999, but does not even hint at the subject matter of the allegations presented in the opposition memorandum. Ordinarily, such a discrepancy would have been cured through discovery. Here, however, plaintiff failed to answer defendant's written interrogatory, which asked her to identify the factual basis (including events, documents, persons, and any actions) that she contended formed the bases of the allegations in her complaint. Even after the Court warned plaintiff of the possible consequences of failing to answer the interrogatory, she failed to do so. Plaintiffs response to this is that defendant never filed a motion to compel. This does not excuse the plaintiffs failure to respond, particularly when such information is so favorable (according to plaintiff) and supporting of her position herein. Thus, even if the new allegations in the opposition memorandum were not time-barred and unsupported by competent evidence, the Court nevertheless would decline to consider them as a matter of fairness.
Accordingly, for all of these reasons, defendant is entitled to judgment as a matter of law dismissing plaintiffs sexual harassment claim.
D. Retaliation Claim:
Defendant argues that plaintiffs retaliation claim is subject to dismissal on several grounds. Defendant argues first that, because plaintiffs retaliation claim was not raised in her EEOC charge, it is outside the Court's jurisdiction to the extent it is brought under Title VII and prescribed to the extent it is brought under state law. The Court agrees.
"It is well-settled that courts have no jurisdiction to consider Title VII claims as to which the aggrieved party has not exhausted administrative remedies." National Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 711 (5th Cir. 1994). A judicial complaint under Title VII" "may encompass any kind of discrimination like or related to allegations contained in the charge and growing out of such allegation during the pendency of the case before the Commission.'" Id. (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)) (emphasis in original). "The suit filed may encompass only the discrimination stated in the charge itself or developed in the course of a reasonable [EEOC] investigation of that charge." Id. at 712 (internal quotations omitted). Although it is evident from the record that plaintiff was represented by counsel during the pendency of the EEOC complaint, she made no mention of retaliation in her charge. Nowhere in the charge does she state even that she was engaging in protected activity, much less that she suffered an adverse employment action because of such activity. Nor has plaintiff submitted any evidence showing that the EEOC investigation encompassed retaliation allegations. Accordingly, this Court is without jurisdiction over plaintiffs retaliation claim to the extent it is brought under Title VII.
To the extent that plaintiff brings her retaliation claim under Louisiana state law, it is time-barred. Because the last conduct alleged in plaintiffs complaint occurred on July 6, 1999, the one-year prescriptive period expired on July 6, 2000. If plaintiff had included a retaliation claim in her EEOC charge, then prescription would have been tolled on that cause of action from April 26, 2000 (or April 18, 2000, if plaintiffs date is used) until October 4, 2000, the date she filed her state-law complaint. See La. Rev. Stat. § 23:303(D) (formerly § 23:333(C)). However, because she did not, her state-law retaliation claim is time-barred.
Even if plaintiffs retaliation claim were properly before the Court, it nonetheless would be subject to dismissal, for plaintiff has failed to establish a genuine issue on two essential elements of the claim. To succeed on a claim for retaliation, plaintiff must prove that: "(1) she engaged in protected activity, (2) she suffered an adverse employment action, and (3) a causal nexus existed between the protected activity and the adverse employment action." Green, 2002 WL 314011 at *8; see also Fierros v. Texas Dept. of Health, 274 F.3d 187, 191 (5th Cir. 2001). "Protected activity is defined as opposition to any practice rendered unlawful by Title VII, including making a charge, testifying, assisting, or participating in any investigation, proceeding, or hearing under Title VII." Green, supra at *8 (citing 42 U.S.C. § 2000e-3 (a) (2001)). "[O]nly 'ultimate employment decisions,' "such as hiring, granting leave, discharging, promoting, and compensating' satisfy the "adverse employment action' element. . . ." Fierros, 274 F.3d at 191 (quoting Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995)); see also Green, supra at *8 ("Adverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating.").
Plaintiffs retaliation claim fails as a threshold matter, for she has presented no evidence from which a jury reasonably could find that she suffered an adverse employment action. As discussed supra in connection with determining whether plaintiffs claim should be evaluated as a quid pro quo claim, plaintiff does not complain that she was ever demoted, refused a raise, or reassigned to an undesirable position due to her sex. She does complain that she was not released immediately to the new job assignment she bid for in May 1999 and she complains that she was not allowed to avoid working ConII/I positions in the interim by "withdrawing" her ConII/I certification. However, plaintiff offers no evidence that this was an ultimate employment decision. To the contrary, plaintiff herself maintains that her May 6th bid for the new job assignment was approved. Her complaint is simply that she was not allowed to be released immediately to go into the new job. See Complaint at ¶ 4(g) and (h). Plaintiff does not dispute defendant's evidence that this alleged delay caused plaintiff no economic harm and denied her no economic benefit. See Cytec Memo Exh. 13, Eileen O'Brien Affidavit at ¶ 4 (because plaintiff already "was being compensated at the top rate of pay under the collective bargaining agreement in her current job, no increase in pay accompanied the job change"). Accordingly, plaintiff has failed to demonstrate a genuine issue as to the "adverse employment action" element of her retaliation claim.
Plaintiffs summary judgment evidence also falls short on the causation element. "To demonstrate causation, an employee must show that 'but for' the protected activity, the adverse employment action would not have taken place." Green, supra at * 8. "If the plaintiff seeks to establish causation by circumstantial evidence, the tripartite burden-shifting framework of McDonnell Douglas applies." Fierros, 274 F.3d at 191. Under this framework, "the plaintiff carries the initial burden of establishing a prima facie case of retaliation," being held at this threshold stage to a less stringent standard on causation. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Such a showing gives rise to an inference of retaliatory motive, which "the employer can rebut by producing evidence of a legitimate, non-retaliatory reason for the adverse action." Id. "If the employer produces such evidence, then the plaintiff has the burden of proving that the Title VII protected activity was a "but for' cause of the adverse employment decision." Id. (internal quotations omitted). "If the plaintiff presents evidence supporting the prima facie case, plus evidence that the reasons given by the employer for the adverse employment action were pretextual, a jury may infer the existence of this "but for' causation." Id. at 191-92 (internal quotations omitted).
Here, defendant has submitted evidence that it was Cytec's policy, pursuant to the collective bargaining agreement, not to release an employee to a new job until a replacement could be trained. See Affidavit of Eileen O'Brien, Cytec Memo, Exh. 13 at ¶ 4. Thus, to survive summary judgment, plaintiff "must present "sufficient evidence' for a jury to reasonably conclude that [Cytec's] justification is unworthy of credence and is a pretext for discrimination or retaliation." See Mato v. Baldauf, 267 F.3d 444, 452 (5th Cir. 2001). Plaintiff has failed to produce any such evidence.
Because the Court finds that plaintiff has failed to present sufficient evidence of either pretext or an adverse employment action to survive summary judgment, the Court need not address defendant's argument that plaintiffs state-law retaliation claim is pre-empted by section 301 of the Labor Management Relations Act of 1947.
For all of these reasons, defendant is entitled to judgment as a matter law dismissing plaintiffs retaliation claim.
III. CONCLUSION
Accordingly, for the foregoing reasons, IT IS ORDERED that defendant's Motion for Summary Judgment is GRANTED. !!