Summary
holding that plaintiff failed to make out prima facie case of discrimination based on national origin where summary judgment record "contain[ed] no evidence as to the national origin of the person who replaced Plaintiff."
Summary of this case from Davis v. RealPage, Inc.Opinion
Civil No. 3:01-CV-2764-H.
June 9, 2004
MEMORANDUM OPINION AND ORDER
Before the Court are Defendant's Motion for Summary Judgment, filed February 25, 2004; Plaintiff's Response to Defendant's Motion for Summary Judgment, filed April 30, 2004; Plaintiff's Affidavit, filed April 30, 2004; and Defendant's Reply in Support of its Motion for Summary Judgment, filed May 17, 2004. For the following reasons, Defendant's motion for summary judgment is GRANTED in part and DENIED in part.
I. Background
Plaintiff is a woman of Iranian descent, whom Defendant employed as a customer service representative and, for a time, as a supervisor. Plaintiff worked for Defendant from February 24, 1999, until her discharge on September 27, 2001. (D.'s App. at 273, 300a.) On October 19, 2001, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging supervisory sexual harassment and discriminatory discharge. (D.'s App. at 99; P.'s App. at Ex. 8.) Specifically, Plaintiff alleged that Defendant discharged her due to her national origin and in retaliation for complaining about the sexual harassment. ( Id.) The EEOC issued Plaintiff a right to sue notice on October 23, 2001. (D.'s App. at 10-11.) On December 21, 2001, Plaintiff brought suit in this Court alleging various forms of discrimination and harassment in violation of Title VII and the Texas Commission on Human Rights Act ("TCHRA"). (D.'s App. at 2, 5-8.) Plaintiff also asserts a claim for intentional infliction of emotional distress. ( Id. at 8-9.) Defendant now moves for summary judgment on all claims.
II. Summary Judgment Standard
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits, and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. FED.R.CIV.P. 56; Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Sys. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Props., Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25). If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. FED. R. CIV. P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Ass'n., 65 F.3d 443, 447 (5th Cir. 1995).
In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Servs., 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
III. Analysis
At various points in the history of this case, Plaintiff has asserted the following causes of action against Defendant: (1) harassment based on national origin; (2) harassment based on race; (3) supervisory sexual harassment; (4) co-worker sexual harassment; (5) discriminatory failure to promote based on national origin; (6) discriminatory demotion based on national origin; (7) discriminatory suspension based on national origin; (8) discriminatory suspension based on race; (9) discriminatory discharge based on national origin; (10) discriminatory discharge based on race; (11) retaliation for engaging in a protected activity; and (12) intentional infliction of emotional distress. In her response, Plaintiff withdraws her cause of action for discriminatory demotion based on national origin. (P.'s Resp. at 1, 5.) Because all of the remaining causes of action — with the exception of intentional infliction of emotional distress — arise under Title VII, TCHRA, or both, Plaintiff must demonstrate that she has exhausted her administrative remedies as to those causes of action. See Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002) (holding that Title VII "[e]xhaustion occurs when the plaintiff files a timely charge with the EEOC and receives a statutory notice of right to sue" and that the filing of a charge with the EEOC is not a jurisdictional prerequisite but a precondition to filing suit in federal court); M.D. Anderson Hospital and Tumor Institute v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000) (holding that the Texas Legislature intended to correlate state law with federal law in employment discrimination cases). Accordingly, the Court will visit the issue of exhaustion before turning to the merits of the claims that are properly before this Court.
A. Exhaustion
As noted above, Plaintiff filed a charge of discrimination with the EEOC on October 19, 2001, alleging that her supervisor sexually harassed her and that Defendant discharged her due to her national origin and in retaliation for complaining about the sexual harassment. (D.'s App. at 99; P.'s App. at Ex. 8.) Thus, Plaintiff's charge of discrimination is limited to a charge of supervisory sexual harassment, discriminatory discharge based on national origin, and retaliation for engaging in a protected activity. The Court concludes that Plaintiff's remaining Title VII and TCHRA causes of action are outside the scope of the EEOC investigation that could have reasonably been expected to grow out of Plaintiff's charge of discrimination. See Thomas v. Texas Dep't of Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000). Accordingly, Plaintiff's causes of action for harassment based on national origin, harassment based on race, co-worker sexual harassment, discriminatory failure to promote based on national origin, discriminatory suspension based on national origin, discriminatory suspension based on race, and discriminatory discharge based on race are hereby DISMISSED for failure to exhaust administrative remedies.
The Court now turns to the merits of Plaintiff's remaining causes of action, i.e., supervisory sexual harassment, discriminatory discharge based on national origin, retaliation for engaging in a protected activity, and intentional infliction of emotional distress.
B. Supervisory Sexual Harassment
Plaintiff alleges that her supervisor-Darryl Steen ("Steen") — sexually harassed her from May or June 2001 until her discharge on September 27, 2001, in violation of Title VII. Defendant moves for summary judgment on the grounds that (1) Plaintiff has presented no evidence that the supervisor's alleged conduct altered the terms of her employment, and (2) even if Plaintiff has presented sufficient evidence of supervisory sexual harassment, Plaintiff has not raised any genuine issue of material fact as to Defendant's entitlement to the affirmative defense outlined in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). (D.'s Br. at 10-13 n. 4.)
In analyzing a supervisory sexual harassment claim, a court must first determine whether the plaintiff suffered a tangible employment action. See Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 409 (5th Cir. 2002). If so, the case is classified as a quid pro quo case; if not, the case is classified as a hostile work environment case. See id. In quid pro quo cases, an employer is vicariously liable, and no affirmative defense is available, if the tangible employment action resulted from the supervisor's sexual harassment. See id. See also Handzlik v. United States, 93 Fed.Appx. 15, 17 (5th Cir. 2004) (holding that there must be a nexus between the tangible employment action and the plaintiff's "acceptance or rejection of [her] supervisor's alleged sexual harassment") (internal quotations omitted).
In hostile work environment cases, a plaintiff must show the following to establish supervisory sexual harassment:
(1) The employee belongs to a protected group;
(2) The employee was subject to unwelcome sexual harassment;
(3) The harassment complained of was based upon sex; [and]
(4) The harassment complained of affected a "term, condition or privilege of employment," i.e., the sexual harassment must be sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment.Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999). "[A] sexually objectionable environment must be both subjectively and objectively offensive," considering the totality of the circumstances. Green v. Administrators of Tulane Educational Fund, 284 F.3d 642, 655 (5th Cir. 2002). In examining whether a hostile work environment exists, the Court must look to "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." Cain v. Blackwell, 246 F.3d 758, 760 (5th Cir. 2001) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)) (internal quotations omitted).
Once a plaintiff has established supervisory sexual harassment based on hostile work environment, an employer is vicariously liable unless the employer can establish both prongs of the Ellerth/Faragher affirmative defense. That affirmative defense requires:
(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
(b) that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.Watts, 170 F.3d at 509-10.
In the instant case, the summary judgment record contains the following evidence: affidavit and documentary evidence that Steen is a registered sex offender with two felony convictions for sexual offenses (P.'s App. at Ex. 3; P.'s Aff. at 4); affidavit and documentary evidence that Defendant obtains background checks on prospective employees as a condition of employment (P.'s App. at Ex. 5; P.'s Aff. at 6-7); Plaintiff's affidavit statement that "[i]n May or June 2001, my immediate supervisor, Darryl Steen, sexually harassed me. Darryl Steen made offensive, abusive, . . . and unwelcome advances upon me during this time which became conditions of my employment" (P.'s Aff. at 3); Plaintiff's deposition testimony that Steen first sexually harassed her when he laid down on the ground and asked her to walk on his back (D.'s App. at 79, 81, 87); Plaintiff's deposition testimony that, on one occasion in May or June 2001 when they were the last two people at work, Steen pulled his van behind Plaintiff's car so that she could not leave and asked her to go to a motel with him and to get a drink with him (D.'s App. at 79-80); Plaintiff's deposition testimony that Steen asked her on several occasions to go to a motel with him (D.'s App. at 79, 98); Plaintiff's deposition testimony that Steen told her that he wanted her to move in with him and that he wanted to have group sex (D.'s App. at 79, 82, 98); Plaintiff's deposition testimony that Steen followed her during one of her breaks, walking very close behind her such that she had to tell him not to stand so close (D.'s App. at 80); Plaintiff's deposition testimony that, having been told that he was standing too close, Steen replied that he was being a gentleman and that he had his hands in his pockets (D.'s App. at 80); Plaintiff's deposition testimony that Steen would often walk with her during her breaks and that, during one such walk, Steen told her that he wanted to grab her, put her on his lap, and spank her (D.'s App. at 80, 93-94); Plaintiff's affidavit statement that "Darryl Steen made repeated and continuous threats against my person and my employment if I did not succumb to his sexual advances" (P.'s Aff. at 3-4); Plaintiff's deposition testimony that Steen would often yell at her for a variety of reasons (D.'s App. at 81); Plaintiff's deposition testimony that on many occasions Steen threatened to shoot her in the head and kill her (D.'s App. at 79, 81, 82); Plaintiff's letter, dated September 27, 2001, to various managers in which she describes how Steen, along with others, discussed in Plaintiff's presence how to cut someone's throat from ear to ear, as well as how to shoot someone in the head such that the hole in the head would be bigger (P.'s App. at 6); Plaintiff's letter, dated September 27, 2001, to various managers in which she reports that Steen "constantly talks about shooting people" (P.'s App. at Ex. 6); Plaintiff's deposition testimony that Steen would "take her off the system" because Plaintiff would not sleep with him (D.'s App. at 88); Plaintiff's affidavit statement that "I reported in May, June, July, August and September 2001 the abusive, offensive, and discriminatory conduct of management to Human Resources Representative Lisa Lewis, Ella Dickerson, and David Walker, Operations Manager. . . . My complaints were ignored. No remedial action was ever taken to address my complaints" (P.'s Aff. at 4); Plaintiff's deposition testimony that she reported Steen's threats and sexual harassment to Lisa Lewis, telling Lewis "a little bit" about the harassment despite being scared to do so due to Steen's threat of killing her (D.'s App. at 82-83); a handwritten note, apparently by Lisa Lewis, referencing an investigation into Plaintiff's allegation of sexual harassment (D.'s App. at 425); Plaintiff's letter, dated September 27, 2001, to various managers referencing sexual harassment and accusing certain supervisors, including Steen, of abusing her and stressing her out (P.'s App. at Ex. 6); declaration of David Walker, Operations Manager, confirming that Steen became Plaintiff's supervisor in February 2001 and remained so until her discharge (D.'s App. at 763-67); affidavit and documentary evidence that Steen recommended Plaintiff's discharge (D.'s App. at 624, 714); Plaintiff's deposition testimony that she did not sleep with Steen and that she believed he retaliated against her for that by discharging her (D.'s App. at 98); and Plaintiff's deposition testimony that, immediately after discharging her, Steen told her "that happens to people he fires, people who don't sleep with him" (D.'s App. at 78a).
The Court concludes that there are genuine issues of material fact as to whether Plaintiff suffered a tangible employment action because of Steen's alleged sexual harassment. The Court further concludes that there are genuine issues of material fact as to quid pro quo sexual harassment and as to hostile work environment, including Defendant's entitlement to the Ellerth/Faragher affirmative defense. Accordingly, Defendant's motion for summary judgment is DENIED as to supervisory sexual harassment.
C. Discriminatory Discharge (National Origin)
Plaintiff alleges that Defendant discharged her based on her national origin, Iranian, in violation of Title VII and TCHRA. Defendant moves for summary judgment on the grounds that (1) Plaintiff cannot establish a prima facie case of discriminatory discharge based on national origin, and (2) even if Plaintiff could establish a prima facie case, Plaintiff cannot establish that Defendant's legitimate, non-discriminatory reason for discharging Plaintiff amounted to pretext for national origin discrimination. (D.'s Br. at 20-22.)
The Court employs the same legal standards in analyzing discrimination claims under Title VII and TCHRA. See M.D. Anderson Hospital and Tumor Institute v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000) (holding that the Texas Legislature intended to correlate state law with federal law in employment discrimination cases). The Court evaluates discrimination claims that rely on circumstantial evidence by employing the burden-shifting approach announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See West v. Nabors Drilling USA, Inc., 330 F.3d 379, 383 (5th Cir. 2003); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). The Supreme Court developed this approach "to deal with cases in which discrimination can be proved only by circumstantial evidence." Evans v. City of Houston, 246 F.3d 344, 350 (5th Cir. 2001) (citing Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133 (2000)).
Under the burden-shifting approach, a plaintiff is first required to establish a prima facie case of discrimination. See Meinecke v. H R Block of Houston, 66 F.3d 77, 83 (5th Cir. 1995). If the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a "legitimate, non-discriminatory justification for its actions." Evans, 246 F.3d at 350. "If the defendant can articulate a reason that, if believed, would support a finding that the action was non-discriminatory, the mandatory inference of discrimination created by the plaintiff's prima facie case drops out of the picture and the factfinder must decide the ultimate question: whether the plaintiff has proved intentional discrimination." Id. (internal quotations omitted). In establishing this ultimate question, "the plaintiff can rely on evidence that the employer's reasons were a pretext for unlawful discrimination . . ., and the factfinder may still consider the evidence establishing the plaintiff's prima facie case and inferences properly drawn therefrom." Id.
To establish a prima facie case of discriminatory discharge based on national origin, a plaintiff must show "(1) that she was a member of a protected class; (2) that she was qualified for the position; (3) that she was discharged; and (4) [that] after she was discharged, she was replaced with a person who [was] not a member of the protected class" or that the employer acted in some other manner to indicate that the decision to discharge was based on her national origin. Frank v. Xerox Corp., 347 F.3d 130, 137 (5th Cir. 2003); Meinecke v. H R Block of Houston, 66 F.3d 77, 83 (5th Cir. 1995).
In the instant case, there is no serious dispute that Plaintiff has satisfied the first three prongs of her prima facie case. However, the record is devoid of any competent summary judgment evidence that Defendant discharged Plaintiff due to her Iranian descent. Although the summary judgment record contains evidence that certain co-workers and customers made isolated comments that could be construed as derogatory and disrespectful of Plaintiff's national origin (D.'s App. at 45, 46a, 47, 51, 93), there is no evidence that those who actually discharged her did so because of her national origin. Most significantly for purposes of prima facie analysis, the summary judgment record contains no evidence as to the national origin of the person who replaced Plaintiff. Accordingly, Defendant's motion for summary judgment is GRANTED as to discriminatory discharge based on national origin.
D. Retaliation
Plaintiff alleges that Defendant discharged her in retaliation for complaining about the supervisory sexual harassment, discussed above, in violation of Title VII. Defendant moves for summary judgment on the grounds that (1) Plaintiff cannot establish a prima facie case of retaliation, and (2) even if Plaintiff could establish a prima facie case, Plaintiff cannot establish that Defendant's legitimate, non-discriminatory reason for discharging Plaintiff amounted to pretext for retaliation. (D.'s Br. at 23-24.)
Title VII prohibits retaliation against an employee who engages in protected conduct, such as complaining about an unlawful employment practice. See 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, a plaintiff must show that (1) she engaged in a protected activity; (2) she suffered an adverse employment action; and (3) a "causal link existed between the protected activity and the adverse employment action." Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002). Once this prima facie burden is met, retaliation claims employ the McDonnell Douglas burden-shifting approach discussed above. See Perez v. Region 20 Educ. Service Center, 307 F.3d 318, 325 (5th Cir. 2002).
In the instant case, the Court concludes that the summary judgment record raises genuine issues of material fact as to Plaintiff's prima facie case of retaliation. Although the Court recognizes that Defendant has presented evidence of a legitimate, non-retaliatory reason for discharging Plaintiff, the Court further concludes that the summary judgment record raises genuine issues of material fact as to pretext. Accordingly, Defendant's motion for summary judgment is DENIED as to retaliation for engaging in a protected activity.
E. Intentional Infliction of Emotional Distress
Finally, Plaintiff asserts a cause of action for intentional infliction of emotional distress under state law. Defendant moves for summary judgment on the ground that Defendant's alleged conduct is not sufficiently extreme or outrageous, as a matter of law, to support a claim for intentional infliction of emotional distress. (D.'s Br. at 24 n. 16.)
To prevail on a claim for intentional infliction of emotional distress, a plaintiff must establish that: (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe." See Benners v. Blanks Color Imaging, Inc., ___ S.W.3d ___, 2004 WL 937902, at *___ (Tex.App.-Dallas May 2, 2004) (no pet. h.). In the instant case, the summary judgment record contains no evidence of severe emotional distress. Accordingly, Defendant's motion for summary judgment is GRANTED as to intentional infliction of emotional distress.
IV. Conclusion
For the foregoing reasons, Defendant's motion for summary judgment is GRANTED in part and DENIED in part. Specifically, Plaintiff's causes of action for harassment based on national origin, harassment based on race, co-worker sexual harassment, discriminatory failure to promote based on national origin, discriminatory suspension based on national origin, discriminatory suspension based on race, and discriminatory discharge based on race are hereby DISMISSED for failure to exhaust administrative remedies. Defendant's motion for summary judgment is GRANTED as to Plaintiff's causes of action for discriminatory discharge based on national origin and intentional infliction of emotional distress. Finally, Defendant's motion for summary judgment is DENIED as to Plaintiff's causes of action for supervisory sexual harassment and retaliation for engaging in a protected activity.
SO ORDERED.