Opinion
Civil Action No. 3:98cv203-D-A
March 8, 2000.
OPINION
Before the court is the motion of the Defendant, Sheraton Tunica Corporation, for summary judgment. Upon due consideration, the court finds that the Defendant's motion should be granted in part and denied in part.
Factual Background
In ruling on a motion for summary judgment, the court is not to make credibility determinations, weigh evidence, or draw from the facts legitimate inferences for the movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. The court's factual summary is so drafted.
In October 1997, Cindy Oliver (Oliver) began working for Sheraton Casino in Robinsonville, Mississippi, as a beverage server. As a server, her duties included providing drinks to patrons, maintaining waitress stations, and cleaning her serving area at the end of the shift. On December 21, 1997, Oliver was working the graveyard shift (1:00 a.m. until 9:00 a.m.) with two other servers, Tammy Melton and Sonja Vanelli. Upon serving a male patron in the "high-roller" area of the casino, the customer put his arm around Oliver and squeezed her buttocks. Oliver refused his advances and when the patron asked to see her name tag, which was pinned near her hip, he attempted to put his face in her crotch.
Shortly after the incident, Oliver approached Security Shift Supervisor Joe Harper and relayed the prior events. Harper instructed Oliver to serve the customer his next beverage at as great a distance as possible. Harper observed as Oliver served him, and the patron again attempted to grope her, leaning so far to reach her that he nearly fell out of his chair. Harper then spoke with Shift Manager Jim Bracey, and both men ultimately asked the customer to leave the blackjack table where he was playing.
On the day of the incident, Oliver prepared a written statement detailing the above facts. Oliver also spoke with her co-workers, Melton and Vanelli, and learned that the same patron had made similar advances toward each of them prior to his advance toward Oliver. Both Melton and Vanelli reported the incidents to their respective supervisors, but no action was taken to restrain the customer's conduct.
Oliver filed a charge with the Equal Employment Opportunity Commission on May 7, 1998, alleging that she had been subjected to unwelcome sexual advances and touching by one of her employer's patrons and that her employer took no effective action. Oliver also alleged that prior to the December 1997 incident, she received verbal abuse (vulgar remarks, propositions, etc.) from other customers and alerted management to those events, also to no avail. On July 30, 1998, the EEOC dismissed Oliver's charge and issued a Right to Sue Letter. Oliver filed the instant case on or about October 30, 1998, pursuant to Title VII of the Civil Rights Act of 1964, alleging retaliation and hostile work environment sexual harassment. Citing excessive absenteeism, Sheraton Casino terminated Oliver from employment in April 1999.
Summary Judgment Standard
On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986) ("The burden on the moving party may be discharged by `showing' . . . that there is an absence of evidence to support the non-moving party's case."). Under Rule 56(e) of the Federal Rules of Civil Procedure, the burden shifts to the non-movant to "go beyond the pleadings and by . . . affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324. That burden is not discharged by "mere allegations or denials." Fed.R.Civ.P. 56(e). All legitimate factual inferences must be made in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Rule 56(c) mandates the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322. Before finding that no genuine issue for trial exists, the court must first be satisfied that no reasonable trier of fact could find for the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
Discussion Retaliation Under Title VII
Oliver contends that she was terminated in retaliation for her complaints to management, the EEOC, and this court about sexual harassment by customers. To establish a prima facie case of unlawful retaliation, a plaintiff must prove:
that she engaged in activity protected by Title VII;
that an adverse employment action occurred; and
that a causal link exists between the protected activity and the adverse employment action.
Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 n. 8 (5 th Cir. 1998); Grimes v. Texas Dept. of Mental Health and Mental Retardation, 102 F.3d 137, 140 (5 th Cir. 1996); Long v. Eastfield College, 88 F.3d 300, 304 (5 th Cir. 1996); Dollis v. Rubin, 77 F.3d 777, 781 (5 th Cir. 1995). With respect to the first requirement, an employee has engaged in activity protected by Title VII if she has either (1) "opposed any practice made an unlawful practice" by Title VII or (2) "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under Title VII. 42 U.S.C. § 2000e-3(a); Grimes, 102 F.3d at 140. As to whether an "adverse employment decision" occurred, the Fifth Circuit has provided:
Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions. Ultimate employment decision[s] include acts such as hiring, granting leave, discharging, promoting, and compensating.
Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5 th Cir. 1997) (internal citations omitted).
Assuming Oliver can meet the first two requirements of establishing a prima facie case of retaliation, her case is fatally deficient by her testimony with regard to the third requirement. In order to establish the third requirement, which is the causal link between the alleged protected conduct and the illegal employment action, the evidence must show that the employer's decision to terminate was based in part on knowledge of the employee's protected activity. Sherrod, 132 F.3d at 1122. Oliver maintains she was reprimanded and ultimately terminated by Sheraton after voicing complaints about sexual harassment by customers and after filing the EEOC charge and the instant case. Indeed, the timing of her reprimands corroborates this allegation.
Further assuming that Oliver is capable of establishing her prima facie case, the burden of production shifts to the Defendant to articulate a legitimate, non-discriminatory reason for the adverse employment decision. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (In Title VII cases, courts utilize a framework of shifting burdens of production and persuasion.). In this case, Sheraton contends that it terminated Oliver for excessive absenteeism. Sheraton submits, and Oliver substantially agrees, that she accumulated fifteen absences between February 1998 and April 1999. The court finds that this reason is sufficient for the Defendant to meet its burden in this regard.
Although Oliver disagrees with the Defendant's manner of "writing up" some of her absences, specifically those involving family illness, she does not dispute her absence from work. Moreover, Sheraton contends that its attendance policy provided for termination upon twelve occurrences and it allowed Oliver to continue her employment notwithstanding her violations.
The Plaintiff must now raise a genuine issue of material fact as to whether the reason proffered by Sheraton is pretext for retaliation and whether retaliation was at least a substantial motivating factor in her termination. This she fails to do. Oliver relies, almost exclusively, on a statement made in regard to the December 1997 incident by Shift Supervisor Robin Horton that "heads were going to roll" because the casino patron was a "high roller" and instructed Oliver to prepare a written statement and not report the incident to the Human Resources Department. The Plaintiff, however, offers no evidence tending to establish that Sheraton's proffered reason for terminating her employment was a pretext for retaliation, or that Horton's statement exposed retaliation as a substantial motivating factor in her termination.
While temporal proximity may be sufficient to establish the final element of a Title VII prima facie case, it is generally insufficient to overcome a defendant's proffered legitimate, non-discriminatory reason for an adverse employment decision. Swanson v. Gen. Serv. Admin., 110 F.3d 1180, 1188 (5 th Cir. 1997) ("Once the employer offers a legitimate, non-discriminatory reason that explains both the adverse action and the timing, the plaintiff must offer some evidence from which the jury may infer that retaliation was the real motive.").
The record in the instant case is notably lacking in evidence that the Plaintiff's complaints of inappropriate sexual harassment served as the catalyst for her termination. In view of the facts of the case, the court is of the opinion that no reasonable trier of fact could determine that the Defendant retaliated against the Plaintiff based on her complaint of sexual harassment. There is no genuine issue of material fact with respect to this matter, and the Defendant is entitled to judgment as a matter of law on this claim.
Hostile Work Environment Sexual Harassment Under Title VII
With regard to the Plaintiff's claim of sexual harassment, the Defendant has failed to establish that it is entitled to a judgment as a matter of law. In any event, the court has the discretion, which it exercises here, to allow the Plaintiff's sexual harassment claim to proceed to trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("Neither do we suggest . . . that the trial court may not deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial.").
Accordingly, the Defendant's motion for summary judgment shall be granted in part and denied in part. A separate order in accordance with this opinion shall issue this day.
ORDER
Pursuant to an opinion issued this day, it is hereby ORDERED that:
the Defendant's motion for summary judgment is GRANTED as to the Plaintiff's claim of retaliation under Title VII;
the Plaintiff's claim of retaliation under Title VII is DISMISSED WITH PREJUDICE; and
the Defendant's motion for summary judgment is DENIED as to the Plaintiff's remaining claim.
SO ORDERED, this the 8th, day of March 2000.