Opinion
CIVIL ACTION NO. 04-1530, SECTION: "A" (3).
March 30, 2005
ORDER AND REASONS
Before the Court is Defendant's Motion for Summary Judgment (Rec. Doc. 14) filed by Port Cargo Enterprises, LLC. Plaintiff, Joyce Molero, opposes the motion. The motion, set for hearing on March 23, 2005, is before the Court on the briefs without oral argument. For the reasons that follow, the motion is GRANTED.
I. BACKGROUND
This is an action brought under Title VII of the Civil Rights Act of 1964. Plaintiff, Joyce Molero ("Molero"), alleges that her former employer and defendant herein, Port Cargo Enterprises, LLC ("Port Cargo"), maintains a pattern and practice of gender discrimination against female employees.
Port Cargo is a small locally-owned company with about seventy employees. (Kelly Decl., Def. Exh. 2). Port Cargo hired Molero in May of 1988 as a customer service representative in the coffee department. (Pla. Depo. at 18, Def. Exh. 1). When Molero began her employment her duties entailed "representing the clients," invoicing, disputing claims, settling claims, handling inventory records, telephone contact with new and old customers, and making arrangements for the transportation of cargo. (Id. at 19). Plaintiff asserts that Kevin Kelly, President of Port Cargo, asked her on various occasions to take on additional duties around the office. (Id.). During two non-consecutive six month periods when the company was without a licensed customs broker, Molero assumed those duties on a temporary basis. (Id. at 24).
In order to continue in the customs broker position beyond a six month period, United States Customs Regulations required Molero to obtain a license. Molero claims that Kelly approached her about taking the licensing exam because he needed someone "in-house" to fill the position. (Id. at 76). Molero asserts that Kelly promised her a merit raise if she were to pass the test. (Id.). Port Cargo paid for Molero to take the exam five times. (Id. at 71). Molero failed the test the first four times that she took it but ultimately passed it on the fifth try and obtained the broker's license in late 2001. (Id. at 35-36, 71). By that time Port Cargo, which could not function without a licensed custom's broker on staff, had already hired a full-time licensed customs broker. That person, Tony Daleo, had been in the broker position for nearly two and a half years by the time Molero obtained her license. (Id. at 77). Nevertheless, Molero asserts that Kelly's refusal to oust Daleo in order to give her his job was due to gender discrimination. (Id. at 38).
Daleo worked in the "import area" of the office which is basically three desks situated side by side behind a glass partition. (Id. at 21). Molero asserts that after she was with Port Cargo for about eight years (around 1996), she was moved from the open area of the office into the import area to occupy the middle desk. (Id. at 20-21). Molero asserts that Kelly told her that another employee was not getting along with Daleo and that Molero would be much better suited to work in that department. (Id. at 29-31). Kelly indicated to Molero that he had previously received a complaint that Daleo was a "pervert." (Id. at 30). However, Kelly asserts that he moved Molero into that area due to other employees' complaints about her negative attitude and constant complaining. (Kelly Decl. ¶ 18). Shortly after Molero moved into the import area Daleo left Port Cargo to take a position with another employer. (Daleo Decl., Def. Exh. 5). During Daleo's absence Molero assumed the broker's position for six months until Port Cargo hired Ms. Barbara Chopin to fill the position. (Id. at 33). Chopin left Port Cargo after two years and Molero once again filled the broker's position for a six month period. (Id. at 33). It was during this period that Kelly suggested that Molero take the broker's exam so that she could fill the position on a permanent basis.
When Molero had not obtained her license after the six month period expired, Port Cargo rehired Daleo to fill the position. Kelly asked for Molero's opinion regarding the rehiring of Daleo but she told Kelly that it was his decision. (Id. at 39). Molero expressed no negative views toward Daleo at that time. (Id.). Daleo returned to one of the three desks in the import area. Molero's desk was located between the desks of Daleo and William Alger, who works as a freight forwarder. (Alger Decl., Def. Exh. 4).
Molero claims that on numerous occasions she was uncomfortable working around Daleo because he made references to sexual encounters with his wife. (Pla. Depo. at 57-59). According to Molero, Daleo loved to talk about sex while on the phone with friends or his wife. (Id. at 55). Molero observed Daleo playing a sex game on the internet on at least one occasion. (Id. at 50). Molero was very uncomfortable having a conversation about someone else's sex life in a place of employment. (Id. at 59). Molero recalls complaining to Mario Cruz, the administrative manager, on one occasion but she never told Kelly about Daleo's behavior. (Id. at 55, 90).
Molero's employment was terminated on August 21, 2003, after fifteen years of service. (Separation Notice, Pla. Exh. 2). The separation notice states that her position was eliminated. (Id.). Molero claims that she was terminated due to her gender and that she was sexually harassed by Daleo. Further, she asserts that Port Cargo paid its female employees less than male employees who performed comparable work. Finally, Molero claims that Kelly interfered with potential job opportunities after she left his employ.
Port Cargo now moves for summary judgment on all claims.
II. DISCUSSION 1. The Parties' Contentions
Port Cargo argues that Molero's complaints about Daleo's sexual conversations do not rise to the level of actionable sexual harassment. Regarding the pay discrimination claims, Port Cargo argues that Molero is comparing her salary to that of male co-workers with different job responsibilities. Port Cargo asserts that Molero has produced no evidence that gender played any role in its decision to terminate her employment. Finally, Port Cargo asserts that Molero has no evidence that Kelly interfered with any employment opportunities and that her allegations do not support a claim under any legal theory.
In opposition, Molero asserts that she will be able to establish at trial that Daleo's conduct was actionable harassment. Further, she claims that she was paid less than Alger and Bill Geraci for doing the same work. She also points out that Daleo, who was also a licensed custom broker, was paid approximately $57,000.00 per year while she was paid only $42,000.00 per year. Regarding her termination, she asserts that her complaints about Daleo and her request for pay commensurate with Daleo's led to her termination. Molero makes no arguments in support of her claim that Kelly interfered with potential employment opportunities.
2. Summary Judgment Standards
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-movant, "show that there is no genuine issue as to any material fact." TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party.Id. (citing Anderson, 477 U.S. at 248). The court must draw all justifiable inferences in favor of the non-moving party. Id. (citingAnderson, 477 U.S. at 255). Once the moving party has initially shown "that there is an absence of evidence to support the non-moving party's cause," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward with "specific facts" showing a genuine factual issue for trial. Id. (citing Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)). Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial.Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).
3. Sexual Harassment — Hostile Work Environment
Title VII 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 . . . sex." Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 873 (5th Cir. 1999) (quoting 42 U.S.C. § 2000e-2(a)(1)). A plaintiff can establish a violation of Title VII by proving that discrimination based on gender has created a hostile or abusive working environment. Id. (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986)). In order to prevail on a hostile environment sexual harassment claim, an employee is required to show that 1) she belongs to a protected group, 2) that she 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, and 5) that the employer knew or should have known of the harassment and failed to take prompt remedial action.Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996) (citing Jones v. Flagship, Int'l, 793 F.2d 714, 719-20 (5th Cir. 1986)). Behavior alleged to be "harassment" affects a term or condition of employment when it is so pervasive or severe as to alter the conditions of employment and create an abusive working environment. Id.; Penn. State Police v. Suders, ___ U.S. ___, 124 S. Ct. 2342, 2354 (2004).
Not all harassment affects a term or condition of employment.Shepherd, 168 F.3d at 874 (quoting Meritor, 477 U.S. at 67). The "mere utterance of an epithet" that "engenders offensive feelings in an employee" does not sufficiently affect the conditions of employment. Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). It is well-settled that simple teasing and offhand comments will not amount to "discriminatory changes in the `terms and conditions of employment.'" Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775 (1998)). Whether an environment is "hostile or abusive" is determined by looking at the totality of 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. (citing Harris, 510 U.S. at 23). To be actionable, the challenged conduct must be both objectively offensive, meaning that a reasonable person would find it hostile and abusive, and subjectively offensive, meaning that the victim perceived it to be so. Id. Title VII only bars conduct that is "so severe and pervasive that it destroys a protected classmember's opportunity to succeed in the workplace." Id. (quoting Weller v. Citation Oil Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996)).
In Shepherd v. Comptroller of Public Accounts, the Fifth Circuit concluded that the employer was entitled summary judgment on a claim of hostile work environment discrimination. 168 F.3d at 872. Plaintiff had complained of unwanted sexual attention from a coworker. The co-worker had made graphic comments to the plaintiff about her breasts and on several occasions had approached her immediate work area in order to look up her dress and "down her clothing." The co-worker had also touched the plaintiff's arms in a caressing manner and had made other sexual remarks to her. Although plaintiff and the co-worker otherwise enjoyed a friendly work relationship, the harassing conduct took place for nearly two years. Plaintiff received an unfavorable evaluation and she claimed that her work performance had suffered due to the harassment.
The district court granted summary judgment for the employer and the Fifth Circuit affirmed reasoning that the plaintiff had not raised a genuine issue that the co-worker's behavior affected a term, condition, or privilege of employment. Id. at 874-75. The Fifth Circuit found that the plaintiff's claim involved far less objectionable circumstances than those for which courts have afforded relief. Id. Looking to the totality of the circumstance, the Fifth Circuit concluded that even though the conduct had occurred regularly during at least a one year period, the comments and the physical contacts were not severe enough to be actionable. Id. at 874. The court noted that none of the incidents were physically threatening. Id. The court conceded that the comments were both boorish and offensive but that the conduct involved would not have undermined a reasonable person's workplace performance. Id. In sum, based upon a consideration of the circumstances, the co-worker's conduct did not render the plaintiff's work environment objectively "hostile" or "abusive."Id. at 874.
In contrast, the Fifth Circuit found that the conduct involved in Farpella-Crosby was sufficiently frequent and serious to create a hostile work environment. 97 F.3d at 806. InFarpella-Crosby the plaintiff's supervisor had made egregious sexual comments to her, oftentimes in front of her co-workers and third parties. The supervisor also repeatedly accused the plaintiff of her proclivity to engage in sexual activity based upon her large number of children. When the plaintiff asked her supervisor to stop making the offending comments he threatened to have her employment terminated. The Fifth Circuit concluded that the totality of the circumstances supported the jury's finding that the comments and questions were sufficiently severe and pervasive to alter the conditions of the plaintiff's employment.Id. at 806.
The Court finds it unnecessary to its reasoning herein to recite the specific egregious comments that were made to the plaintiff in Farpella-Crosby.
Turning to the instant case, the Court concludes that the conduct Molero complains about falls woefully short of the type of severe and pervasive conduct that would support a hostile work environment claim. Molero's hostile environment claim is based upon the conduct of her co-worker Daleo. None of the more "offensive" remarks were directed at Molero. Rather, because of the office configuration Molero was uniquely situated to overhear Daleo's phone conversations and comments to Alger which were primarily based upon Daleo's sexual activity with his own wife. The sole "offensive" comment made directly toward Molero was Daleo's suggestion that she accompany him to the gym so that she could get in better shape to impress her husband in the nude. (Pla. Depo. at 56). When Molero complained to Daleo and Alger on the occasion when she found them playing a sex game on the internet, Daleo returned to his own desk and both men went back to work. (Id. at 50). Daleo's conduct was surely immature, unprofessional, and embarrassing to Molero but it was not so objectively offensive such that it created an abusive and hostile environment.
In her deposition, Molero was asked specifically whether any individual other than Daleo made comments that she was alleging constituted sexual harassment. (Pla. Depo. at 47, Def. Exh. 1). She unequivocally responded, "No, sir." (Id.). However, in her response to Port Cargo's statement of undisputed material facts, Molero claims that her sexual harassment claim is based upon the conduct of "both male co-workers with whom [she] shared an office." Other than Daleo, Alger is the only other male with whom Molero shared office space.
The law in this circuit is well-settled that a party cannot create an issue of fact by executing an affidavit contrary to his sworn deposition testimony without some justification. Copeland v. Wasserstein, Perella Co., 278 F.3d 472, 482 (5th Cir. 2002) (citing S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996) ("It is well settled that this court does not allow a party to defeat a motion for summary judgment using an affidavit that impeaches, without explanation, sworn testimony."). Furthermore, the Court has reviewed Molero's deposition in great detail and the deposition is devoid of any allegations against Alger sufficient to state a claim for sexual harassment. In fact, Molero claims that Alger on occasion asked Daleo "to quit going to unusual sites." (Pla. Depo. at 126).
Moreover, there is no evidence that Daleo's conduct affected Molero either at home or at work. Molero claims to have been embarrassed and offended by Daleo's "vulgarities," but she continued to do her job and throughout her deposition she denied that her job performance ever suffered while employed at Port Cargo. (Pla. Depo. at 60, 117-19). Molero was never afraid of Daleo and occasionally had lunch with him. (Id. at 48). The totality of the circumstances in Molero's case not only falls short of that in Farpella-Crosby, supra, but Daleo's conduct is even less offensive than that alleged in Shepherd where the Fifth Circuit found that the employer was entitled to summary judgment on the hostile environment claim. The Court therefore concludes that Molero has failed to create an issue of fact as to whether Daleo's conduct altered a term or condition of her employment. Port Cargo is therefore entitled to summary judgment on this claim.
4. Gender Discrimination Based on Unequal Pay
In order to prevail on a claim of discrimination in pay under Title VII, plaintiff need not allege or prove that she is paid less than male employees for equal work. Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1131 (5th Cir. 1983);Gunther, 452 U.S. at 161. Rather, at the heart of a Title VII unequal pay claim is plaintiff's assertion that the employer paid her less than the job was worth because she happens to be female.See Plemer, 713 F.2d at 1132. Because wage discrimination claims brought under Title VII require proof of the employer's intent to discriminate, these claims are subject to the traditional McDonnell Douglas burden-shifting framework. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); Lenihan v. Boeing Co., 994 F. Supp. 776, 789 (S.D. Tex. 1998); see also Susan M. Omilian Jean P Kamp,Sex-Based Employment Discrimination § 15:1 n. 13 (2004).
The McDonnell Douglas framework applies in Title VII cases where plaintiff seeks to establish discrimination via circumstantial evidence as opposed to direct evidence. Fierros v. Tex. Dep't of Health, 274 F.3d 187, 191 (5th Cir. 20010 (citing Portis v. First Nat'l Bank, 34 F.3d 325, 328 (5th Cir. 1994)). Under the McDonnell Douglas framework, the plaintiff carries the initial burden of establishing a prima facie case of discrimination. Id. (citing McDonnell Douglas, 411 U.S. at 802). In a Title VII wage discrimination case, plaintiff establishes a prima facie case by showing that she occupies a job similar to that of higher paid male coworkers. Lenihan, 994 F. Supp. at 798. Once the plaintiff establishes a prima facie case, the burden of production shifts to defendant to articulate a legitimate, non-discriminatory reason for the disparity in pay between the sexes. See Haynes v. Pennzoil Co., 207 F.3d 296, 299 (5th Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802-04). If the defendant satisfies this burden, the plaintiff must prove that the proffered reasons are pretextual, i.e., that discrimination more likely than not motivated the employer to pay her less. Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 355 (5th Cir. 2001) (citing Haynes, 207 F.3d at 300); Lenihan, 994 F. Supp. at 799. Once a Title VII claim reaches the pretext stage, "the only question on summary judgment is whether there is a conflict in substantial evidence to create a jury question regarding discrimination." Id. Under McDonnell Douglas only the burden of production shifts to the defendant so the defendant need not prove its proffered non-discriminatory reason — the burden of persuasion always remains with the plaintiff. See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 308 (5th Cir. 2004);Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1136 (5th Cir. 1983).
Sometimes plaintiff will also bring a "classic equal pay claim" under the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d)(1), which oftentimes overlaps with Title VII. In the instant case, no party has raised the applicability of the EPA and Molero's complaint and memorandum in opposition to summary judgment make clear that she is suing only under Title VII.
Molero has established a prima facie case of wage discrimination under Title VII. Because Title VII does not require Molero to prove that her job is identical or exactly equal with that of any higher paid male coworkers, Molero's prima facie case can rest on the fact that she is paid less than Alger and Geraci. Port Cargo has explained the pay differential based upon differences in the job responsibilities allocated to each of these employees. Port Cargo asserts that during Alger's employment he acquired duties in addition to international freight forwarding such as managing the company's computer equipment, managing aged receivables, managing a chemical inventory, and managing a line of home air purifiers. (Kelly Decl. ¶ 32, Def. Exh. 2). Regarding Geraci, Port Cargo asserts that he was hired as part of the deal when Port Cargo purchased the business of Geraci's former employer. (Id. ¶ 33). Geraci's main responsibilities relate to administration of warehouse operations and in addition he purchases all office equipment, supplies, and serves as liaison between Port Cargo and the software vendor who developed the company's proprietary software system. (Id.). According to Port Cargo, only about one-third of his job is spent performing work comparable to Molero's. (Id.).
Based on the foregoing, Port Cargo has met its burden of proffering a non-discriminatory explanation for the pay differentials between Alger, Geraci, and Molero. The burden therefore shifts to Molero to produce evidence that creates an issue of fact that the real reason for the differences in pay is discrimination.
Salaries for all employees were set solely by Kevin Kelly who asserts that he set the salaries based upon the duties that the positions entailed. (Kelly Decl. ¶¶ 29-30, Def. Exh. 2). Molero has not produced a scintilla of evidence to suggest that gender discrimination is the real reason that Kelly paid her less than Alger and Geraci. No one at Port Cargo, including Kelly, ever made comments that women were inferior to men or should be paid less than men. (Pla. Depo. at 87). In fact, Kelly encouraged Molero to obtain her customs broker license and even paid for her to take the exam on five different occasions. The record is simply devoid of anything to suggest that Kelly's reasons for paying Molero less are false or pretextual. Consequently, there is no evidence that Kelly unlawfully discriminated against Molero based on gender.
Molero was earning $42,600.00 when she was terminated. Alger and Geraci were earning $53,526.00 and $46,760.00, respectively. However, two other female employees with less seniority than Molero were paid more than she was paid. (Pla. Depo. at 132).
In her opposition memorandum Molero argues that Kelly broke a promise when he refused to give her the customs broker position after she obtained her license and that this somehow is indicative of discrimination. Molero's argument fails to take into account that she failed the licensing exam the first four times that she took it. It is undisputed that Port Cargo could not function without a full-time licensed customs broker. By the time Molero obtained her license, Daleo had been in the position for over two years. It is patently unreasonable for Molero to believe that Kelly would or could hold the position open for her indefinitely while she continued to take the licensing exam. Molero clearly believes that Kelly should have fired Daleo so that she could have his job but Kelly's refusal to oust an employee to accommodate Molero can hardly be called unlawful discrimination.
Furthermore, in support of her wage discrimination claim Molero compares her salary to the $57,066.40 that Daleo earned. Molero believes that when she obtained her broker's license she should have received the same pay that Daleo was receiving. But Molero's position is unpersuasive because she never worked as Port Cargo's licensed customs broker while Daleo was there. There is no evidence that Port Cargo ever had more than one broker on its payroll and Molero cannot reasonably expect her employer to pay her for a position that she did not obtain and for work that she did not do. Molero confessed that her job duties did not change when she finally obtained the license. (Pla. Depo. at 38). Rather, she simply believes that Kelly should have recognized her accomplishment by giving her a merit raise.
In sum, Molero has failed to create an issue of fact on her Title VII wage discrimination claim. Port Cargo is entitled to summary judgment on this claim.
5. Gender Discrimination in Termination of Employment
Molero asserts that she was fired because she complained about Daleo's conduct and because she asked for more money when she passed the customs broker examination. Assuming this is true, Molero does not explain how her termination would be unlawful. In her deposition Molero only refers to a single time that she complained about Daleo and that was to Cruz. (Pla. Depo. at 55). Molero never told Kelly that she found Daleo's conduct objectionable. (Id. at 67). Nevertheless, because Daleo's conduct was not actionable as a matter of law and because Molero did not serve as Port Cargo's licensed customs broker, she has no claim for unlawful termination based upon either of her cited grounds. Moreover, the summary judgment record is devoid of any evidence to suggest that gender played a role in Kelly's decision to terminate Molero. Port Cargo is entitled to summary judgment on this claim.
6. Interference With Employment Opportunities
Molero did not address this claim in her memorandum. The Court's own research has uncovered no authority to suggest that Molero states a claim for relief under federal or Louisiana law. Moreover, the record contains no competent evidence on this issue. The sole reference in the record to this claim is Molero's statement during her deposition that Mr. Jack Jensen, a potential employer, told her at a crawfish boil that Kelly told him that he would withdraw his business from Jensen if he hired Molero. (Pla. Depo. at 98). Molero claims that several people witnessed this conversation but the record contains no affidavits or statements from either Jensen or these other individuals that would confirm the hearsay statements in Molero's deposition. (Id. at 100-01). Port Cargo is clearly entitled to summary judgment on this claim.
Accordingly;
IT IS ORDERED that Defendant's Motion for Summary Judgment (Rec. Doc. 14) filed by Port Cargo Enterprises, LLC should be and is hereby GRANTED. Plaintiff's complaint is DISMISSED.