Opinion
Civil Action No. SA-00-CA-0144 NN
July 13, 2001
ORDER GRANTING, IN PART , AND DENYING, IN PART , DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT AND FOR DISMISSAL
I. Factual and Procedural Overview of the Case
This is an employment discrimination case brought by plaintiffs George Rosales and Ralph Fuentes against the defendant, the City of San Antonio ("the City"). According to their 42-page Third Amended Complaint, plaintiffs allege that while employed at the Streets and Drainage Operations Division of the Public Works Department, they were subjected to sexual harassment, in the form of a hostile work environment, by their crew leader, Jose De La Cruz.
The sexual harassment for which plaintiffs complained apparently began in February of 1999 when De La Cruz would not only expose his genitals to them but would also attempt to grope and fondle them on at least six different occasions. According to the plaintiffs, De La Cruz' actions were offensive and unwelcome. In fact, plaintiffs allege that after telling De La Cruz to stop and rebuffing his advances, the harassment worsened. On May 14, 1999, the plaintiffs complained to management, and shortly thereafter, filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC") on May 17, 1999. The City deemed inconclusive its investigation into plaintiffs' allegations because it found no corroboration to plaintiffs' story of sexual harassment. Likewise, the EEOC issued its dismissal letter and notice of right to sue on November 5, 1999, finding that based upon its investigation, it was unable to conclude that discrimination had taken place. Plaintiffs timely filed this action on February 3, 2000.
Plaintiffs originally sued as individual defendants De La Cruz and John L. German, Executive Director of the Public Works Department. Subsequently plaintiffs dismissed their claims against these defendants, leaving the City as the only defendant in the case.
In sum, plaintiffs allege that the City failed to adequately investigate their complaints of discrimination and that the sexual harassment policy, which had been in effect since 1982, was defective and dysfunctional in various respects. On that basis, plaintiffs argue that the City should be held vicariously liable for the illegal actions of De La Cruz, who plaintiffs argue, was their immediate supervisor at the time the discrimination took place. In addition to their sexual harassment hostile work environment claim, plaintiffs have asserted numerous causes of action. some of which have only been listed by plaintiffs with no discussion and/or application to the facts of the case. The causes of action pleaded by plaintiffs with some level of specificity are: retaliatory discrimination under Title VII (Count II of the complaint), intentional infliction of emotional distress (Count III of the complaint), negligent retention (Count IV of the complaint), negligent supervision (Count V of the complaint), denial of due process (Count VI of the complaint), breach of the implied covenant of good faith and fair dealing (Count VII of the complaint), constructive fraud (Count VIII of the complaint), Family and Medical Leave Act ("FMLA") violations, 29 U.S.C. § 2601 (Count IX of the complaint), and wrongful termination (Count X of the complaint).
The City filed a second amended answer and moved for dismissal under various provisions of FED.R.CIV.P. 12. Its requests for dismissal are primarily targeted to those causes of action listed by plaintiffs in the Jurisdiction and Venue portion of their amended complaint. Plaintiffs responded that each of their causes of action as stated in their latest amended complaint are properly pleaded and are not subject to dismissal. The City has also moved for summary judgment as to all of plaintiffs' specifically pleaded causes of action.
Docket Entry No. 127.
Id . at 1-4 and Docket Entry No. 116, at 1-4 (pages unnumbered).
Docket Entry No. 130. The City tiled a reply to plaintiffs' response. Docket Entry No. 133.
Docket Entry No. 122.
In seeking summary judgment on plaintiffs' hostile environment sexual harassment claim, the City does not dispute plaintiffs' prima facie case, but rather contends there is no genuine issue of material fact as to each of the elements of its affirmative defenses that: (1) any purported acts of sexual harassment discrimination occurring in 1995 are barred by limitations; (2) the City, as a matter of law, cannot be held vicariously liable because De La Cruz was not a supervisor for purposes of Title VII, and the City exercised reasonable care in preventing and promptly correcting plaintiffs' complaints of sexual harassment; and (3) even assuming De La Cruz was a supervisor for purposes of Title VII, plaintiffs' hostile work environment claim fails because they exercised reasonable care to prevent or promptly correct any harassing behavior, and the plaintiffs failed to use reasonable care to avoid harm.
Id . at 1-7.
Concerning plaintiffs' retaliation claim, the City contends it is entitled to summary judgment because plaintiffs have failed to establish their prima facie case that they suffered an adverse employment action as a result of having engaged in protected activity. Similarly, the City has moved for summary judgment with respect to plaintiffs' other pleaded causes of action on the grounds that they cannot establish theirprima facie case under the applicable legal standards. In addition, the City argues it is entitled to summary judgment on plaintiffs' request for punitive damages and further states that plaintiffs' Title VII damages are statutorily limited to a cap of $300,000. Plaintiffs, as expected, have filed their response opposing each one of the City's summary judgment grounds. I have jurisdiction to enter this Order as the parties consented to have the case assigned to me for all purposes, including entry of final judgment, in accordance with 28 U.S.C. § 636 (c).
Id . at 8-9.
Id . at 9-12.
Id . at 13-14.
Docket Entry No. 128.
Because plaintiffs' Title VII actions are the crux of their lawsuit, I will first proceed to address the City's motion for summary judgment, beginning with plaintiffs' sexual harassment and retaliation, and will then address the City's arguments for summary judgment and/or dismissal of plaintiffs' other causes of action.
II. Jurisdiction
This court has original jurisdiction pursuant to 42 U.S.C. § 2000e-5 (f) and 28 U.S.C. § 1331, as well as supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
III. Applicable Standards
The City has moved for summary judgment and for dismissal. The standards that I will apply in considering the City's motions are discussed below.
A. Summary Judgment
The applicable standard in deciding a motion for summary judgment is set forth in FED.R.CIV.P. 56, which provides in pertinent part as follows:
The judgment sought shall be rendered forthwith 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.
FED.R.CIV.P. 56(C); Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986).
Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact. In an employment discrimination case such as this one, the court focuses on whether a genuine issue of material fact exists as to whether the defendant intentionally discriminated against the plaintiff. A fact is material if it might affect the outcome of the lawsuit under the goveming law. A dispute about a material fact is genuine if the evidence is such that a reasonable jury could retum a verdict for the nonmoving party. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.
Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 247 (1986).
See La Pierre v. Benson Nissan, Inc ., 86 F.3d 444, 447 (5th Cir. 1996) (citing Armstrong v. City of Dallas, 997 F.2d 62, 65-66 (5th Cir. 1993)).
Anderson, 477 U.S. at 248; Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994).
Id .; Wise v. E.I. DuPont De Nemours Co ., 58 F.3d 193, 195 (5th Cir. 1995).
Anderson, 477 U.S. at 249.
The movant on a summary judgment motion bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record which it alleges demonstrate the absence of a genuine issue of material fact. To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the nonmoving party's claim or defense, or if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or or defense. Regardless of whether the movant accompanies its summary judgment motion with affidavits or other evidentiary materials, the motion must be granted if the evidence before the court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c). is satisfied. Once the movant has carried that burden, the burden then shifts to the party opposing the motion to present affirmative evidence in order to defeat a properly supported motion for summary judgment.
Celotex Corp ., 477 U.S. at 323.
Edwards v. Aguillard, 482 U.S. 578, 595 n. 16 (1987); and Celotex Corp., 477 U.S. at 325.
Id .
Anderson , 477 U.S. at 257.
The nonmoving party cannot discharge this burden by referring to the mere allegations or denials of the nonmoving party's pleadings. Rather, the nonmovant must, either by submitting opposing evidentiary documents or by referring to evidentiary documents already in the record, set out specific facts showing the existence of a genuine issue for trial. The court will look at the record in the light most favorable to the nonmovant drawing all inferences most favorable to that party. Nevertheless, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden." Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial.
FEDR.CIV.P. 56(e); Anderson , 477 U.S. at 250; State of Texas v. Thompson, 70 F.3d 390, 393 (5th Cir. 1995).
Celotex Corp ., 477 U.S. at 324; Fields v. City of South Houston, Texas, 922 F.2d 1183, 1187 (5th Cir. 1991); Neff v. American Dairy Queen Corp ., 58 F.3d 1063, 1065 (5th Cir. 1995), cert. denied , 516 U.S. 1045 (1996).
Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993). See also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (holding that a nonmovant cannot discharge her burden with doubt as to the material facts, by conclusory allegations, unsubstantiated assertions, or by only a scintilla of evidence).
See Douglass v. United Seryices Auto. Ass'n., 79 F.3d 1415, 1429 (5th Cir. 1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied , 513 U.S. 871 (1994)).
Celotex Corp., 477 U.S. at 322 ("In such situation, there can be 'no genuine issue as to any material fact,' since a complete failure of the proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."). Id . at 323.
Accordingly, summary judgment motions permit the court to resolve lawsuits without the necessity of trials if there is no genuine dispute as to any material facts and the moving party is entitled to judgment as a matter of law.
See Fields , 922 F.2d at 1187.
B. Dismissal
FED.R.CIV.P. 12(b)(1) authorizes the dismissal of a case for lack of subject-matter jurisdiction when the district court lacks the statutory and constitutional power to adjudicate the case. In deciding a motion to dismiss, the court will construe the facts alleged in the complaint in the light most favorable to the plaintiff. A district court may dismiss a case for lack of subject-matter jurisdiction on any one of three different bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.
See Home Builders Association of Mississippi, Inc., v. City of Madison, 143 F.3d 1006, 1010 (516 Cir. 1998).
See Scheuer v. Rhode, 416 U.S. 232, 236 (1974).
See Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986) (citations omitted). See also Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir. 1996) (In ruling on a motion to dismiss, a court should consider only those facts stated on the face of the complaint or incorporated into the complaint by reference, and matters of which judicial notice may be taken); and McNamara v. Bre-X Minerals Ltd., 57 F. Supp.2d 396, 417 n. 12 (E.D. Tex. 1999).
Rule 12(c), in turn, enables a party to move for judgment on the pleadings "after the pleadings are closed but within such time as not to delay the trial." The movant, must establish, that on the basis of the pleadings, there is no issue of material fact to be resolved and that the movant is entitled to judgment as a matter of law. Motions brought under Rule 12(c) should be read in conjunction with the standards outhned for motions brought under Rule 12(b), such as 12 (b)(1) 12(b)(6).
Id . See also 5A CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1369, 2d ed. 1987); and Frey v. Bank One, 91 F.3d 45, 46 (7th Cir. 1996) ("We review a motion pursuant to [Rule] 12 (c) under the same standard as a motion to dismiss under [Rule] 12(b). [T]he motion should not be granted unless it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief.").
Pursuant to Rule 12(b)(6), a plaintiffs claim should be dismissed for failure to state a claim upon which relief may be granted when, viewing the allegations in the plaintiffs complaint in the light most favorable to him and drawing all reasonable inferences in his favor, it appears certain that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Rule 12(b)(6) allows a court to eliminate actions that are fatally flawed in their legal premises and destimed to fail, thus sparing the litigants the burdens of unnecessary pretrial and trial activity. Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice to prevent a motion to dismiss pursuant to Rule 12(b)(6). In ruling on a motion to dismiss, a court should consider only those facts stated on the face of the complaint or incorporated into the complaint by reference, and matters of which judicial notice may be taken. If a complaint omits facts concerning pivotal elements of a plaintiffs claim, a court is justified in assuming the nonexistence of those facts.
See Kaiser v. Aluminum Chem Sales, Inc. v. Avondale Shipyard. Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied , 459 U.S. 1105 (1983); and Adolph v. Federal Emergency Management Agency, 854 F.2d 732, 735 (5th Cir. 1988).
See Spivey. Jr., v. Robertson , 197 F.3d 772, 774 (5th Cir. 1999).
See Fernandez-Montes v. Allied Pnots Assoc., 987 F.2d 278 (5th Cir. 1993).
See Lovelace v. Software Spectrum, Inc ., 78 F.3d 1015, 1017 (5th Cir. 1996) and McNamara v. Bre-X Minerals Ltd., 57 F. Supp.2d 396, 417 n. 12 (E.D. Tex. 1999).
See Ledesma v. Dillard Dept. Stores, Inc ., 818 F. Supp. 983 (N.D. Tex. 1993).
IV Analysis
The City's motion for summary judgment presents the following issues:
• Whether the alleged harasser, De La Cruz, is a "supervisor" for purposes of Title VII analysis?
• Whether the plaintiffs are precluded from relying on the 1995 "indecent exposure" incident involving De La Cruz as part of their prima facie proof for hostile environment sexual harassment?
• Whether plaintiffs can establish their prima facie case for retaliation/constructive discharge under Title VII?
• Whether plaintiffs can establish their prima facie case for intentional infliction of emotional distress under Texas law?
• Whether plaintiffs can establish their prima facie case for negligent retention and/or negligent supervision?
• Whether the City is entitled to summary judgment with respect to plaintiffs' claims alleging denial of due process, breach of the implied covenant of good faith and fair dealing, and constructive fraud?
• Whether plaintiffs have pleaded a viable cause of action for subjecting the City to strict liability under the FMLA?
• Whether the City is entitled to judgment as a matter of law with respect to plaintiffs' claim for punitive damages?
• Whether plaintiffs' request for damages under Title VII is limited to $300,000?
A. Hostile Environment Sewal Harassment
Plaintiffs' specific instances of hostile environment sexual harassment are stated in paragraphs 9-14 of their third amended complaint. Title VII provides a cause of action for individuals subjected to a sexually hostile or abusive work environment. Ordinarily, a a plaintiff must establish five elements to set forth an actionable hostile environment claim: (1) that he belongs to a protected class; (2) that he was the subject of unwelcome sexual harassment; (3) that the harassment was based upon sex; (4) that 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. For harassment to affect a "term, condition or privilege" of employment, the workplace must be "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." In determining whether a working environment is hostile or abusive, all circumstances must be considered, 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."
Docket Entry No. 116.
See Mentor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66-67 (1986).
See Jones v. Flagship Int'l , 793 F.2d 714, 719-20 (5th Cir. 1986) and Watts v. Kroger Co ., 170 F.3d 505, 509 (5th Cir. 1999).
Harris v. Foklift Systems, Inc., 510 U.S. 17, 21 (1993) (internal citations omitted) and Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1998) (where the Court held that sex discrimination consisting of same-sex sexual harassment, such as the one alleged here, is actionable under Title VII).
Harris , 510 U.S. at 21-23; and Walker v. Thompson , 214 F.3d 615, 625 (5th Cir. 2000).
The City has moved for summary judgment only on the grounds that there is no basis for holding it liable in this case. Thus, for purposes of summary judgment only, I will assume that plaintiffs have met the first four elements of their prima facie case. The sole issue which I must address on summary judgment is whether the City can be held liable for the hostile environment sexual harassment as alleged by the plaintiffs.
Docket Entry No. 122, at 1-6.
i. Basis for employer liability
An employer's liability for hostile environment sexual harassment depends upon whether the alleged harasser is the victim's supervisor or merely a co-employee. Harassment "by coworkers differs from harassment by supervisors. . . ." Where the harasser is a supervisor and the victim suffered no tangible employment action, an employer is strictly liable, although there is the possibility of an affirmative defense. "An employer is subject to vicarious liability to a vicuimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee." Because employers do not entrust mere coemployees with any significant authority with which they might harass a victim, employers are liable for a co-employee's harassment only "when they have been negligent either in discovering or remedying the harassment." An employer's legal duty in co-employee harassment cases will be discharged if it takes "reasonable steps to discover and rectify acts of sexual harassment of its employees."
Faragher v. City of Boca Raton, 524 U.S. 775, 805-07 (1998).
See Hunter v. Allis-Chalmers Corp ., 797 F.2d 1417, 1422 (7th Cir. 1986).
Faragher , 524 U.S. at 802-03. The Fifth Circuit has also provided guidance in the application of the Ellerth/Faragher test to supervisor sexual harassment. See Casiano v. ATT Corp., 213 F.3d 278 Appendix entitled "Supervisor Sexual Harassment Roadmap" (5th Cir. 2000).
Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 747 (1998).
See Williamson v. City of Houston, 148 F.3d 462, 465-66 (5th Cir. 1998).
Id .
In the present case, plaintiffs allege that De La Cruz was their supervisor and that the City is vicariously liable for his actions. The record demonstrates that De La Cruz was transferred to the position of "crew leader" and/or "foreman" of the barrier/flex-beam section sometime in February of 1999. Rosales was already employed as an equipment operator in that section and Fuentes was employed as a section assistant. Plaintiffs allege that almost immediately after his arrival, De La Cruz exerted his "supervisory authority" to sexually harass them by, for example, brushing his genitals against plaintiffs while they were either sitting down, bent over working, or kneeling. According to plaintiffs, De La Cruz would also intentionally rub his genitals over plaintiffs' shoulders, back and arms while they were not looking or were otherwise occupied in their work. Specifically, plaintiffs claim that as their crew leader, De La Cruz had control of their daily work activities and had the authority to discipline them for not doing as instructed. According to Rosales, De La Cruz' supervisory authority became evident when Rosales was suspended for two days for not following one of De La Cruz' orders. In addition, plaintiffs maintain that other supervisory/managerial employees of their division such as Tony Trevino, Norbert Schneider and Armando Aranda regarded De La Cruz as having supervisory authority over the plaintiffs.
Docket Entries Nos. 116 128.
The summary judgment record indicates that Rosales became a City employee on April 4, 1995. Fuentes' starting date of employment with the City was October 27, 1997. De La Cruz became a City employee on November 3, 1986. Docket Entry No. 122, at Exhibit P.
Docket Entry No. 116 at ¶ 14.
Id .
Docket Entry No. 128 at 5-7.
Id . at 6-7. Interestingly, Rosales was charged with insubordination the day before he complained that De La Cruz was sexually harassing him.
Id . at 3 and Exhibits E-H.
The City, on the other hand, contends that De La Cruz was not plaintiffs' supervisor for purposes of sexual harassment analysis as a matter of law. According to the City, De La Cruz was an hourly employee and was "on the same level" as plaintiffs. Further, the City maintains that although De La Cruz held the title of "crew leader" or "foreman," plaintiffs' actual and immediate supervisors during the course of their employment in the barrier/flex-beam section were carpentry supervisors Tony Treviflo and Eddie Gray. Contrary to plaintiffs' assertions, the City maintains that these individuals, and not De La Cruz, had the controlling authority to hire, fire, reward, promote, or discipline the plaintiffs. The City, thus, argues, that as De La Cruz' job title implies, his job was to "lead" other workers at the site, but not to supervise. In light of the parties' divergent views, I must determine the essential attributes of a supervisor for purposes of determining employer liability under Title VII, and assess whether the City endowed De La Cruz with these characteristics.
Docket Entry No. 122, at 3.
Id .
Id .
At the outset, it must be noted that Title VII provides no definition of the term "supervisor." Because of this, my understanding of the term must be guided by the common law of agency and the purposes of Tide VII. The United States Supreme Court has made clear that heightened liability exists in this context only because a supervisory's conduct is made possible by the "abuse of his supervisory authority," his apparent authority, or because his supervisory position aided him in accomplishing the harassment. In short, because liability is predicated on misuse of supervisory authority, the touchstone for determining supervisory status is the extent of authority possessed by the purported supervisor.
Faragher 524 U.S. at 791 (quoting and adopting Restatement (Second) of Agency § 219(1) (1958)); and Meritor , 477 U.S. at 72.
Faragher , 524 U.S. at 793 (quoting and adopting Restatement (Second) of Agency § 219(1) (1958)) ("in implementing Title VII it makes sense to hold an employer vicariously liable for some tortuous conduct of a supervisor made possible by use of his supervisory authority. . . ."). See also Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir. 1994) (strict liability is imposed on employers for quid pro quo harassment because the harasser wields the employer's authority to alter the terms and conditions of employment).
See Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1271 (10th Cir. 1998) ("the operative question in determining supervisory status is whether the employee in question 'had sufficient control over the plaintiff to be considered her supervisor . . .'").
The various courts that have addressed the issue consistently distinguish employees who are supervisors merely as a function of nomenclature from those who are entrusted with actual supervisory powers. Before the United States Supreme Court established the rule of employer liability in Burlington Industries, Inc., v. Ellerth and Faragher v. City of Boca Raton, the Fifth Circuit, as well as other circuit courts, made an effort to maintain a line between low-level supervisors who were the equivalent of co-workers and supervisors whose authority and power was sufficient to make consequential employment decisions affecting the subordinate, such that the supervisor was effectively acting on the employer's behalf. In light of the courts' distinction between low-level supervisors (who are equivalent to co-employees for purposes of Title VII) and true supervisors, the question, then, is how much or what kind of authority must an individual possess to be a true supervisor.
See Saxton v. American Tel. Tel. Co ., 10 F.3d 526, 536 n. 19 (7th Cir. 1993) ("if someone in the employer's decision-making hierarchy engages in harassment, the employer may be held liable . . .," but not when the supervisor is at such a low level that he would not be the company's agent); Haynes v. Williams , 88 F.3d 898, 899 (10th Cir. 1996) ("supervisor is an individual who serves in a supervisory position and exercises significant control over the plaintiffs hiring, firing or conditions of employment."); Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993) (an employer is liable for harassment by a "supervisor with significant control over plaintiff's hiring, firing, or conditions of employment."); Swentek v. USAIR, Inc., 830 F.2d 552, 558 (4th Cir. 1987) (although pilots exercised some authority, it did not include the authority to "hire, fire, promote, or demote flight attendants."); and Yates v. Avco Corp., 819 F.2d 630, 636 (6th Cir. 1987) (the employer is liable for hostile environment sexual harassment carried out by "someone with the authority to hire, fire, promote and discipline the plaintiffs.").
524 U.S. 742 (1998).
524 U.S. 775 (1998).
Prior to the Ellerth and Faragher decisions, the Fifth Circuit and the other circuits defined the essential attributes of a supervisor for purposes of a claim of hostile environment sexual harassment under Title VII. In Pfau v. Reed, for instance, the plaintiff claimed that her audit team supervisor had sexually harassed her. 125 F.3d 927, 930-37 (5th Cir. 1997), cert. granted and vacated on other grounds, 525 U.S. 801 (1998). The Court held that the audit team supervisor did not quality as a supervisor for purposes of Title VII. Id . at 937. While it emphasized that the audit team supervisor could not hire or fire other employees, the Court also noted that he simply did not exercise any significant control over the terms of plaintiffs employment. Id . For example, the audit team supervisor's powers were limited to recommending subordinate awards or discipline and handling the procedural aspects of Pfau's termination. The Court held that these powers alone were not substantial enough to hold the employer liable for the audit team supervisor's harassment. Id . This decision was remanded to the district court level in order to determine, in part, whether an audit team supervisor qualifies as a supervisor under the Faragher and Ellerth definition. 167 F.3d 228 (5th Cir. 1999). The district court's decision on remand has not been published.
Cases subsequent to Faragher and Ellerth indicate that whether an individual is "a supervisor with immediate (or successively higher) authority" is dependent upon whether his authority was of a substantial magnitude. Hence, it is manifest that the essence of supervisory status is the authority to affect the terms and conditions of the victim's employment. This authority primarily consists of the power to hire, fire, demote, promote, transfer, or discipline an employee. Absent an entrustment of at least some of this authority, an employee does not qualify as a supervisor for purposes of imputing liability to the employer.
See Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 592 (5th Cir. 1998) (employee was victim's supervisor under Faragher and Ellerth where he had the authority to discharge her): Phillips v. Taco Bell Corp ., 156 F.3d 884, 888 (8th Cir. 1998) (harasser, who was the store manager, was a supervisor based on the authority he had over the plaintiff); and Lissau v. Southern Food Services, 159 F.3d 177, 179 (4th Cir. 1998) (the Ellerth and Faragher standard of liability applied where the harasser "could hire and fire sales representatives," such as the plaintiff).
See STEPHANIE ANN KENNING BLACKMAN, The Faragher and Ellerth Problem: Lower Courts' Confusion Regarding the Definition of "Supervisor," 54 VAND. L. REV. 123 (Jan. 2001), where the author advocates that since the Ellerth and Faragher decisions did not intend to overrule the traditional "hiring, firing, or conditions of employment" definition of supervisor, most courts, including the Fifth Circuit, have continued to correctly apply the traditional definition.
Applying this standard to the present case, it is evident that De La Cruz was not a supervisor for purposes of imposing strict liability on the City under Title VII. According to the undisputed summary judgment evidence presented by the City, De La Cruz as "crew leader" or "foreman" did not have the authority to hire, fire, reward, promote, or significantly discipline the plaintiffs. There is no evidence disputing the City's position that De La Cruz was an "hourly employee" and was "on the same level" as plaintiffs. In fact, Rosales testified that he had even served as "crew leader" in the past whenever the assigned person (i.e., Manuel De LaTorre) was absent. There is no question that the most persuasive piece of evidence establishing De La Cruz's status as a low-level supervisor equivalent to that of a co-worker is Rosales' own deposition testimony. According to his testimony, Rosales recognized that his true supervisors were the individuals who held the position of carpentry supervisors. The evidence in this case reflects that during the relevant time period in question (from February through May of 1999), those individuals were Tony Trevino and Eddie Gray. Significantly, although Rosales referred to crew leaders such as De La Cruz as his immediate supervisors, he understood that his actual supervisors were Trevino and Gray. According to the organization structure as of May 14, 1999, submitted by the plaintiffs as an attachment to the deposition of the Streets and Drainage Operations Manager, Armando Aranda, both plaintiffs as well as De La Cruz, ultimately reported to the carpentry supervisor (who at the time was Eddie Gray). Based on the summary judgment evidence before me, and particularly, Rosales' deposition testimony, I conclude that plaintiffs knew that their actual supervisors, those who had the ability to significantly affect the terms and conditions of their employment, were Treviflo and Gray, and not De La Cruz.
Docket Entry No. 122, at 3 (and cited portions of its Statement of Facts).
Id . at Exhibit B at 147:5-7.
Id . at 142-45 147.
Id . at 147:22-25.
Id .
Docket Entry No. 128, Exhibit AA.
Further, there is no evidence that De La Cruz accounted for his time or was paid any differently than the plaintiffs. There is also no evidence that De La Cruz ever substituted for carpentry supervisors Trevino or Gray. In addition, there is no evidence that De La Cruz as crew leader and/or foreman had any say as to what work was to be done at a particular site or how many employees would be assigned to his crew. Additionally, any authority that De La Cruz may have had over the plaintiffs at the time of the alleged sexual harassment incidents was tenuous at best because he had just transferred to the barrier/flex-beam crew, and as Rosales testified, he "did not know his job very well."
Docket Entry No. 122, Exhibit B, at 118: 22-25 119:1-3. See also the first three pages of the attached deposition testimony of Ralph Fuentes, Exhibit C.
With respect to the incident of insubordination, the summary judgment evidence demonstrates that Rosales had already loaded his truck pursuant to previous orders he received from Gray. When De La Cruz asked Rosales to load up his truck, apparently not knowing that he had done so already, Rosales, in a disrespectful fashion, told De La Cruz, that he was not his boss and that he had already loaded up the truck. Trevino, who was present when the exchange between Rosales and De La Cruz took place, told Rosales that he needed to obey De La Cruz because he was his section crew leader. In light of Rosales' inappropriate behavior (i.e., using foul language towards another employee), as witnessed by Trevino, he was written up for insubordination and suspended for two days. There is no evidence on record that De La Cruz had anything to do with the disciplinary action imposed on Rosales for this incident.
Further, it should be noted that both plaintiffs claim that De La Cruz bragged on more than one occasion about his authority over them, stating that he was in charge of them and insinuating that they did not need to work as hard as long as they submitted to his sexual advances. Even if De La Cruz' boasts were accurate, they do not elevate him to supervisory status. Because there is no evidence that De La Cruz enjoyed more than minimal authority, and exercised almost no control over equipment operators and their assistants, he clearly was not a supervisor with immediate or successively higher authority. Moreover, no reasonable person could have believed that De La Cruz was endowed with this supervisory authority. Accordingly, the City's liability for the purported harassment must be determined according to the standard for co-employees.
See Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1034 (7th Cir. 1998) ("Although [plaintiff] claims that [harasser] once bragged about his ability to have employees fired, even if his boast were accurate, this does not elevate him to supervisory status.") (citing Pfau , 125 F.3d at 937). Significantly, the Seventh Circuit in Parkins , stated that a traditional "foreman" simply did not possess enough authority to be considered a supervisor for Title VII purposes. Id . at 1034.
ii. Notice or knowledge of harassment
As mentioned earlier in this Order, employers are liable for a co-employees' harassment only when they have been negligent either in discovering or remedying the harassment. An employer's legal duty in co-employee harassment cases will be discharged if it takes reasonable steps to discover and rectify acts of sexual harassment by its employees. of course, it "would be unrealistic to expect management to be aware of every impropriety committed by every low-level employee." Thus, notice of knowledge of the harassment is a prerequisite for liability.
Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997).
Williamson , 148 F.3d at 464-65.
Carr v. Allison Gas Turbine Div., Gen. Motors Corp., 32 F.3d 1007, 1009 (7th Cir. 1994).
Perry , 126 F.3d at 1014.
In determining whether an employer had notice of harassment, I must first determine whether the employer had designated a channel for complaints of harassment. Where an employer sets up a "point person" to accept complaints, "this person becomes the natural channel for the making and forwarding of complaints, and complainants can be expected to utilize it in the normal case."
Young v. Bayer Corp., 123 F.3d 672, 674 (7th Cir. 1997).
Id . at 674.
Where a point person was not identified or easily accessible, an employer can receive notice of harassment from a "department head" or someone that "the complainant reasonably believed was authorized to receive and forward (or respond to) a complaint of harassment. With respect to the extent of the notice given to an employer, a plaintiff "cannot withstand summary judgment without presenting evidence that she gave the employer enough information to make a reasonable employer think there was some probability that she was being sexually harassed."
Id .
Zimmerman v. Cook County Sheriff's Dept., 96 F.3d 1017, 1019 (716 Cir. 1996).
Plaintiffs argue that the City failed to take prompt remedial action because it had an ineffective sexual harassment policy in place at the time they filed their internal complaints. For instance, plaintiffs contend that the policy failed to properly provide the identity of those individuals in charge of receiving a complaint of sexual harassment, and most importantly, it failed to provide the procedures that the City would follow in investigating such complaints. As summary judgment evidence, plaintiff has attached an expert witness report (Dr. Margaret Langford) discussing the deficiencies of the City's procedures (or lack thereof) that were in place at the time of plaintiffs' complaints, as well as the ineffectiveness of the internal investigation conducted by Armando Aranda, the Streets and Drainage Operations Manager, and Abel Araiza, Executive Assistant of Public Works Department. Further, plaintiffs rely on the deposition testimony of Mr. Aranda, who admitted having conducted the interview as "he saw fit." Plaintiffs argue that by having Mr. Aranda conduct the investigation, the City acted in a biased fashion in remedying the reported harassment. Mr. Aranda, plaintiffs maintained, was a supervisory employee working in the same department as plaintiffs who did not have any specialized knowledge as to how to properly conduct these types of investigation. Based on the evidence, plaintiffs argue the City did not a have a viable mechanism in place for adequately investigating their allegations and for taking appropriate corrective action.
Docket Entry No. 116, at 12-15 Docket Entry No. 128, at 8-9.
Docket Entry No. 128, at 8-9 Exhibit B.
Id . at Exhibit O, 12:22-25.
Docket Entry No. 116, at 13-16 26-28; and Docket Entry No. 128, at 8-9.
In turn, the City maintains that as soon as plaintiffs reported their complaint of sexual harassment, on May 14, 1999, it took prompt and corrective action in addressing the complaints. The City further argues that it had no notice of any harassment taking place against the plaintiffs prior to May 14th, since they admittedly failed to report it sooner. Further, the City states that on the same day it received plaintiffs' complaints, it began investigating them. According to the summary of the interviews conducted, De La Cruz was placed on administrative leave with pay pending the outcome of the investigation. The City closed the investigation as inconclusive, as it was unable to corroborate plaintiffs' sexual harassment allegations through the witnesses interviewed. Further. the City states that at the time plaintiffs lodged their internal complaints, it had in place a published sexual harassment policy which contained grievance and investigation procedures. The City further maintains that the policy and procedures were properly disseminated among its workforce and that it provided training to its employees on those policies and procedures. The City argues that it could not have responded more swiftly and adequately in this case as it did, and as such it cannot be held liable. I disagree.
Docket Entry No. 122, at 4-6.
Docket Entry No. 128, at Exhibit C.
Docket Entry No. 122, at 4-6.
After having reviewed the summary judgment record on the issue, I conclude that triable issues remain asto whether a two-page sexual harassment policy, Administrative Directive No. 4.67, which was enacted seventeen years earlier on February 1, 1982, provided a proper mechanism for investigating plaintiffs' 1999 allegations of sexual harassment. Not surprisingly, the policy was substantially revised on October 1, 1999. Plaintiffs, however, were not able to avail themselves of the revised policy and procedures because by that time, the City had already conducted its investigation and issued its findings on plaintiffs' internal complaints of harassment. Accordingly. the original sexual harassment policy, in effect since 1982, is the document that would determine whether the City's responded appropriately in this case. Based on plaintiffs discussion on the deficiencies of the City's policy and investigation procedures, as well as my own study of the 1982 and 1999 sexual harassment policies, I note the following:
Docket Entry No. 122, at Exhibit P.
Id .
First and foremost, the policy was in effect before same-sex harassment was even recognized as a viable cause of action. Second, the policy is devoid of any clear grievance procedure to be followed by employees in submitting complaints of discrimination. In that regard, it should be noted that in 1999, the City's EBO Division was part of the Office of Internal Review. The Office of Internal Review is not even mentioned in the 1982 policy. Further, the simple fact that Rosales had filed an EEOC charge alleging national origin discrimination prior to his sexual harassment claims does not establish that he was aware of the City's sexual harassment policy and procedures. Third, the policy is completely silent as to what type of investigation the City will undertake once it receives a sexual harassment complaint, and who will be in charge of conducting such investigations. This may have prompted plaintiffs to file an EEOC charge of discrimination immediately after having complained to the City and before the City began its own investigation of the complaints. Finally, the 1982 policy does not indicate how the City disseminated it to its workforce. In contrast, the 1999 revised policy requires City employees to sign an attached acknowledgment form indicating having received the policy.
Oncale , 523 U.S. at 79-80 and Docket Entry No. 122, Exhibit P, where the City in acknowledging this change in the law, revised its definition of sexual harassment as follows: "3.2 Sexual harassment can be committed by a member of either sex and can involve members of the same sex as well as members of the opposite sex." Id .
Docket Entry No. 122, at Exhibits G H.
Id . at Exhibit P, 1999 revised policy, at ¶ 5.25.
Further, according to the excerpts of Aranda's deposition testimony, he was unable to explain how he applied the policy to his investigation, or what definition of sexual harassment he used in conducting his investigation. The City cannot reasonably argue that Aranda's investigation of the complaints as "he saw fit" absolves them from liability in this case, even if that liability is to be analyzed under a negligence standard. In that regard, I also note that there is no evidence that Aranda or the other supervisory/managerial employees involved in plaintiffs' investigation received any particularized training on how to conduct effective sexual harassment investigations. In addition, although the City has submitted summary judgment evidence that De La Cruz and plai oti ffs received and were trained on the policy when they were first hired by the City, there is no evidence that the issue was revisited at a later time in light of the changes in the law, or that they received any kind of subsequent training on the subject.
Id . at Exhibit O.
Docket Entry No. 122, at Exhibit P, Affidavit of David M. Griffith. Interestingly, the City's own summary judgment evidence demonstrates that it began providing periodic sexual harassment training to its employees in June of 1999, a month after plaintiffs filed their complaints.
The lack of an effective (and updated) written sexual harassment policy certainly weighs in the plaintiffs' favor in determining whether there is a genuine issue of material fact with regard to whether the City exercised reasonable care to prevent any sexually harassing behavior. Accordingly, viewing the evidence in the light most favorable to the plaintiffs (as non-movants), I find that plaintiffs have created a genuine issue of material fact with respect to element five of their prima facie case, that is, whether the City knew or should have known of the harassment and failed to take prompt remedial action. Thus, the City's summary judgment motion on this ground is DENIED, and plaintiffs's hostile environment sexual harassment will proceed to trial.
Walker , 214 F.3d at 627. The EEOC in its Enforcement Guidance on vicarious liability for unlawful harassment by supervisors noted that although the affirmative defense does not apply in cases of harassment by coworkers, an employer cannot claim lack of knowledge as a defense to such harassment if it did not make clear to employees that they can bring such misconduct to the attention of management and that such complaints will be addressed. See EEOC Enforcement Guidance on vicarious liability, at 27 n. 58 (dated June 18, 1999), available at www.eeoc.gov/docs/harassment.html. See also Perry v. Ethan Allen , 115 F.3d 143, 149 (2d Cir. 1997) ("When harassment is perpetrated by the plaintiffs coworkers, an employer will be liable if the plaintiff demonstrates that 'the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.'") (cited in Faragher , 524 U.S. at 799). Furthermore, an employer is liable for harassment by a co-worker if management knew or should have known of the misconduct, unless the employer can show that it took immediate and appropriate corrective action. 29 C.F.R. § 1604.11 (d).
I am aware of Defendant's evidentiary objections to the plaintiff's expert witness report as stated in its reply brief Docket Entry No. 129, at 2. My summary judgment ruling is based on the language of the 1982 sexual harassment policy and its 1999 revisions, as well as the deposition testimony of Mr. Aranda. I did not rely on any of plaintiffs' expert opinion in deciding the issues raised by the City's motion for summary judgment. Accordingly, the City's objections to this summary judgment evidence are denied as moot. I do note the relevancy this report may have at trial and will address properly presentedDaubert objections, if any, at that time.
iii. The 1995 "indecent exposure" incident
Plaintiffs rely on the continuing violation theory and "relation back" doctrine to argue that an incident that occurred in May of 1995, four years before they internally complained to the City and filed their charges of discrimination with the EEOC, should be considered prima facie proof of their claim for hostile work sexual harassment. The City, in turn, argues that this incident is barred by the applicable statute of limitations. I agree with the City but for different reasons.
Plaintiffs described the 1995 incident at issue in their amended complaint:
During the summer of 1995, while at a worksite at Coliseum Oaks Subdivision, Mr. Rosales along with other workers and a senior supervisor witnessed Mr. De La Cruz pull down his pants and expose his genitals to many of the workers. Mr. Rosales was standing to the left of Mr. De La Cruz and found the incident disturbing, outrageous, and sick. Mr. De La Cruz was facing Mr. James Storey, a high-level supervisor, and they were communicating some sort of invitations to each other. Mr. Rosales walked away in disgust. Other witnesses were present and heard and saw more of this public lewdness [. . .]. Mr. Rosales did not know Mr. De La Cruz before this time but the incident definitely caused a conditioning [sic] impression on him and others at the site.
Docket Entry No. 116, at ¶ 8.
It is well-established in the Fifth Circuit that in order to support a finding of a continuous violation, a plaintiff must do more than show a series of unrelated and isolated instances of discrimination. The core idea of the theory is that "equitable considerations may very well require that the filing periods not begin to run until facts supportive of a Title VII charge or civil rights action are or should be apparent to a reasonably prudent person similarly situated." The focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his/her rights. At the same time "the mere perpetuation of the effects of the time-barred discrimination does not constitute a violation of Title VII in the absence of independent actionable conduct occurring within the statutory period," (which in this case is within 300 days from May 17, 1999). The continuing violation theory only preserves claims based on acts outside the prescriptive period if the plaintiff timely files a claim based on a present violation.
See Glassy , Petro-Tex Chemical Corp., 757 F.2d 1554, 1560 (5th Cir. 1985) (citation omitted).
See Trevino v. Celanese Corporation, 701 F.2d 397, 403 n. 7 (5th Cir. 1983); and Messer v. Meno , 130 F.3d 130, 135 (5th Cir. 1997), cert. denied , 119 S.Ct. 794 (1999).
Hendrix v. City of Yazoo City, Mississippi, 911 F.2d 1102, 1103 (5th Cir. 1990) (Emphasis added).
In Berry v. Board of Supervisors , the Fifth Circuit identified three factors that are relevant to determining whether a continuing violation has occurred: (1) subject matter — do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation; (2) frequency — are the alleged acts recurring or more in the nature of an isolated work assignment or employment decision; and (3) degree of permanence (embodying the "core-idea" discussed above) — does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert her rights. Thus, to establish that a continuing violation occurred, plaintiff must establish: (1) that some "independent actionable conduct" occurred during the statutory period and (2) that she did not know and could not reasonably be expected to have realized that the time-barred events were in themselves actionable until within 300 days of the date she filed her EEOC charge.
715 F.2d at 981.
Id .
See Glass , 757 F.2d at 1561 ("This inquiry turns on the facts and context of each particular case").
In this case, the continuing violation theory does not apply. It is undisputed that the incident in question was not directed at Rosales. By Rosales' own accounts, he did not even know De La Cruz at the time the incident took place. He merely witnessed De La Cruz' exposure and he was not even the intended audience. Plaintiffs have failed to establish how this isolated incident is related to their allegations of sexual harassment which occurred in 1999. Because the 1995 incident was not directed at Rosales, it is not proper proof of plaintiffs' prima facie case.
For the same reason, the "relation back" doctrine is inapplicable to the case as Rosales cannot establish how the 1995 incident was proof of De La Cruz' harassing behavior towards him. Further, the "relation back" doctrine applies to conduct subsequent to the EEOC charge which is reasonably related to that alleged in the EEOC charge. Since the 1995 incident occurred well before plaintiffs' EEOC charges, the "relation back" doctrine by definition, cannot apply in this case. Perry , 115 F.3d at 153.
This time-barred incident, however, may be used by the plaintiffs as circumstantial evidence. For instance, this evidence may be relevant the claim that the City failed to promulgate an effective sexual harassment policy among its workforce which would have prompted Rosales, as well as the other co-workers (including supervisors) who witnessed the incident, to timely report De La Cruz' actions as sexual harassment. Also, it can be argued that this circumstantial evidence may prove that had the City enacted an effective sexual harassment policy identifying those acts that could be considered as sexual harassment, that De La Cruz would have not acted the way he did. Other than that, the evidence is of little relevance to the case. For these reasons, the City's motion for summary judgment is GRANTED to the extent plaintiffs seek to use the 1995 incident as part of their prima facie proof.
See Ray v. Tandem Computers, Inc., 63 F.3d 429, 434 fn.12 (5th Cir. 1995) (citations omitted).
iv. Quid Pro Quo Sexual Harassment
It should be noted that although the City has moved for summary judgment under the theory of quid pro quo sexual harassment, a reading of plaintiffs' amended complaint evidences that they have solely alleged sexual harassment under a hostile work environment theory. It appears that plaintiffs have attempted to plead tangible employment actions in support of their retaliation claim. Nevertheless, to the extent that plaintiffs allege quid pro quo sexual harassment, that claim is not supported by the record because there is no evidence that De La Cruz, a low-level supervisor at the most, with authority equivalent to that of a co-employee, took any tangible employment action against the plaintiffs. Accordingly, the City's summary judgment motion with respect to plaintiffs' purported claim for quid pro quo sexual harassment is GRANTED.
Docket Entry No. 116, at 27 (Count I); and Docket Entry No. 128, at 11.
The United States Supreme Court has defined a tangible employment action as "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a significant change in benefits." Ellerth , 524 U.S. at 761-62; and Casiano , 213 F.3d at 283.
B. Title VII Retaliation
The City seeks summary judgment on plaintiffs' retaliation claims on the basis that plaintiffs failed to exhaust their administrative remedies because they failed to allege retaliation in their EEOC charges. Alternatively, the City argues that even if the claim is properly before this court, plaintiffs fail to establish that they suffered an adverse employment action as a result of engaging in protected activity.
The City's exhaustion argument is not supported by the record. For instance, plaintiff Fuentes specifically checked the box for retaliation as one the bases for his complaint in his EEOC charge. Also, Rosales' EEOC documentation subsequent to his charge indicates that he also complained of retaliatory discrimination. Accordingly, I will focus on the City's summary judgment argument regarding plaintiffs' ability to meet their prima facie case of retaliation.
Docket Entry No. 122, at Exhibit E.
Docket Entry No. 128, at Exhibit T, Rosales' Memorandum to James Lyons, EEOC Investigator, dated August 12, 1999.
To demonstrate a claim for retaliation, the plaintiffs must prove: (1) that they engaged in an activity that was protected; (2) an adverse employment action occurred; and (3) a causal connection existed between the participation in the activity and the adverse employment action. Here, I am concerned solely with ultimate employment decisions. It is well-settled that the analytical framework applicable to Title VII disparate treatment cases, as set forth in McDonnell Douglas Corp. v. Green. is also applicable to Title VII unlawful retaliation cases. After plaintiffs prove all of their prima facie case elements, the burden shifts to the City to articulate a non-discriminatory reason for the employment decision. Once the City proffers a non-discriminatory reason, the burden returns to plaintiffs to show that the City's explanation is a mere pretext for unlawful retaliation.
Walker , 214 F.3d at 628-29.
411 U.S. 792 (1973).
See Byers v. The Dallas Morning News, 209 F.3d 419, 427 (5th Cir. 2000).
See St. Mary's Honor Center v. Hicks , 509 U.S. 502, 506-07 (1993).
The plaintiffs correctly assert that they engaged in a protected activity when they filed their internal complaints of discrimination with the City, as well as their EEOC charges of discrimination. Thus, the first prong is satisfied. Regarding the second-prong, Rosales' alleged adverse employment actions include: (1) the City's failure to provide him with an Employee Performance Rating for the period ending in September/October of 1999; (2) his involuntary reassignment to another center in November of 1999; (3) the City's retroactive application of his FMLA leave which resulted in his termination from employment on July 28, 2000; (4) his involuntary transfer as of May 19, 2000; (5) the City's failure to reverse his insubordination charge: (6) the City's failure to rectify a series of wrongs in his favor (i.e., to clear him from a work related auto accident based on new evidence); and (7) the City's suspension or limited internal grievance procedure for the filing of his sexual harassment complaint, which included the City's decision at the conclusion of its investigation to return him back to work along with De La Cruz.
See Dollis v. Rubin , 77 F.3d 777, 781 (5th Cir. 1995) (explaining that "[t]here can be no question that the [employee's] retaliation claims satisfy the first element of the analysis . . . filing an administrative complaint is clearly protected activity.").
Fuentes, on the other hand, claims that he was retaliated against when on August 19, 1999, he was reprimanded for having his wife, and not him personally, call the City to inform he was going to be absent on that day. Fuentes further claims that due to the City's retaliatory acts against him and its lack of response in properly addressing his sexual harassment complaint, he was forced to involuntarily resign from employment on March 1, 2000.
Contrary to plaintiffs' legal arguments, the Fifth Circuit defines the term "adverse employment action" as including ultimate employment decisions "such as hiring, granting leave, discharging, promoting, and compensating." In Dollis v. Rubin , for instance, the employee alleged, among other things, that she was refused consideration for promotion, refused attendance at a training conference, and her work was criticized to a government vendor. The Fifth Circuit held that these were at most "tangential" to future decisions that might be ultimate employment decisions. Likewise, in Mattern v. Eastman Kodak Company , the Fifth Circuit found the following events did not constitute adverse employment actions because of their lack of consequence: verbal threat of being fired, reprimand for not being at assigned station, missed pay increase, and being placed on "final warning."
Dollis , 77 F.3d at 782.
Id . at 779-80.
104 F.3d 702, 708 (5th Cir.), cert. denied , 522 U.S. 932 (1997).
Under this framework, I find that most of plaintiff Rosales alleged retaliatory actions, with the exception of the supposed November 1999 unwanted reassignment, the May 2000 unwanted transfer and the retroactive application of FMLA leave, which ended his leave period sooner than he anticipated, do not constitute ultimate employment decisions within the realm of Title VII as a matter of law. The factual background leading to the three remaining employment actions must be examined in greater detail to determine whether they constitute ultimate employment actions under Title VII.
With respect to Rosales unwanted reassignment in November of 1999, according to the record before me, it is not clear whether his reassignment was ever effectuated since he went on leave that same month. Further, besides Rosales having a longer commute at the new reassigned location, Rosales presents no evidence that this action resulted in a demotion in pay and/or job duties. Without more, this action cannot constitute an adverse employment action.
Regarding his FMLA leave, it appears that Rosales began receiving medical treatment on November 13, 1999, for severe depression and panic disorder. Rosales has attributed his mental health problems to the sexual harassment he endured by De La Cruz. He was first absent without leave due to medical reasons on November 29, 1999. As of December 1, 1999, Rosales exhausted all of his paid leave balances and the City placed him on leave without pay. He applied for workers' compensation benefits but was denied due to the City's position that no sexual harassment had occurred against him. He then applied for medical disability benefits but was also denied. Due to Rosales' continued absence from work, David Magal6a, one of Rosales' supervisors, wrote him a letter on April 5, 2000 informing him of the FMLA leave benefits available to him. On April 17, 2000, Rosales and his Union representative met with Magafia and EEO specialist Zulema Gonzalez to discuss his FMLA leave related benefits. Rosales' medical provider signed the PhysicianZs Certification Form required by the City to apply for EMLA leave on April 20, 2000, and on that day. both, Rosales and his supervisor signed a "Notice to Employees Regarding FMLA Leave." By a memorandum dated May 8, 2000, the City notified Rosales that his absence since April 5, 2000, was designated as due to a serious medical health condition and was being counted against this twelve work week entitlement under the Act. Importantly, the City also notified Rosales that his FMLA would expire on June 29, 2000, and that his failure to return to work after that date would be treated as an unauthorized absence, which could warrant termination from employment. Rosales remained absent well past the expiration of his FMLA leave. Based on Rosales' unauthorized absence, the City issued him a notice of final termination on July 28, 2000. Even though, Rosales attributes his inability to return to work to the alleged sexual harassment he suffered, there is no evidence that the City retahated against him by denying him FMLA leave benefits he was entitled to receive.
Docket Entry No. 122, at Exhibit Q.
Id . at Exhibit R.
Id .
Docket Entry No. 128, at Exhibit FF.
Docket Entry No. 122, at Exhibit Q.
Id .
Id . at Exhibit R.
Finally, the summary judgment record demonstrates that his May 20, 2000 involuntary transfer was due to allegations of sexual harassment lodged against him by another employee. Rosales maintained that he did not harass anyone and that the charges against him are unfounded. This transfer, if it occurred as Rosales alleges, took place a year after he complained of discrimination and while he was still on FMLA leave.
The terms of the transfer are not clear from the record.
Even assuming that Rosales satisfies element two of his prima facie case, as I must do in a summary judgment proceeding, he has failed to present any evidence establishing a causal connection between his protected activity and any of these adverse employment actions. Nevertheless, even if I were to find that Rosales has met all elements of his prima facie case of retaliation, the City has articulated a non-discriminatory reason for its decision to terminate Rosales' employment. Rosales did not return to work after his FMLA leave expired. He had been absent from work for a total period of eight months (since November of 1999). Rosales has not stated how the City's reason to terminate his employment after the expiration of his FMLA leave is a pretext for unlawful retaliation. In other words, Rosales has not shown that his termination was motivated by his complaints rather than by his continuous unauthorized absence from work after his FMLA leave expired. As such, the City's motion for summary judgment as to Rosales' retaliation claim is GRANTED.
Likewise, Fuentes' retaliation claim also fails. Because reprimands do not rise to the level of an adverse employment action under Title VII as a matter of law, the only issue I have to determine is whether Fuentes can establish his constructive discharge claim. According to the amended complaint and response to summary judgment, Fuentes attempts to argue that he has met his burden of establishing that the City took an adverse employment action against him by asserting he was constructively discharged from employment in March of 2000. To prove that he was constructively discharged, Fuentes must show that a "reasonable person in [his] shoes would have felt compelled to resign." Significantly, a constructive discharge claim further requires a "greater severity or pervasiveness of harassment than the minimum required to prove a hostile work environment." Accordingly, just because I have concluded that plaintiffs' hostile environment sexual harassment claim can proceed to trial, it does not follow that Fuentes' constructive discharge should also be tried as well.
Docket Entry No. 116, at
Benningfield v. The City of Houston , 157 F.3d 369, 378 (5th Cir. 1998) (where the court noted that constructive discharge can constitute a tangible or adverse employment action in the proper factual scenario) (quoting Landgraf v. USI Film Products , 968 F.2d 427, 429-30 (5th Cir. 1992)); and Boze v. Bransett , 912 F.2d 801, 804-05 (5th Cir. 1990) (the burden is on the employee to prove constructive discharge).
Id .
Besides his subjective beliefs and conclusory arguments, Fuentes presents no other evidence in support of his claim that he was constructively discharged. Evidence of a plaintiffs subjective beliefs, with no supporting summary judgment evidence, however, is typically considered to carry little weight in the discrimination inquiry under the applicable legal standards. In order to establish the third prong of his prima facie case, that is, that a causal link existed between the protected activity 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. Fuentes has failed to present competent summary judgment evidence establishing a causal connection between any protected activity and any adverse employment action. Further, it should be noted that the record is devoid of any evidence that De La Cruz continued to sexually harass Fuentes after he reported his actions to the City and the EEOC or that Fuentes complained of any other discriminatory action from August of 1999 through his resignation in March of 2000.
See Hornsby v. Conoco, Inc., 777 F.2d 243, 246 (5th Cir. 1985) (court held that "employee's subjective belief that she was terminated because of her age and sex could not be the basis for judicial relief where adequate nondiscriminatory reason for discharge was presented."); and Elliott v. Group Med. Surgical Serv., 714 F.2d 556, 567 (5th Cir. 1983), cert. denied , 467 U.S. 1215 (1984).
See Sherrod v. American Airlines Inc., 132 F.3d 1112, 1122 (5th Cir. 1998).
After having reviewed the competent summary judgment evidence on record, assuming arguendo, that Fuentes has met his first two prima facie elements of retaliation, I conclude that he has not brought forth sufficient evidence to support a finding that "but for" his protected activity, he would have not have resigned from employment. Because Fuentes has failed to establish his prima facie case of retaliation and/or constructive discharge, the burden-shifting analysis under McDonnell Douglas is not invoked. Based on these reasons, the City's motion for summary judgment as to Fuentes' retaliation/constructive discharge claim is GRANTED.
See McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir. 1983); Jack v. Texaco Research Ctr., 743 F.2d 1129, 1131 (5th Cir. 1984) (noting that prima facie retaliation requires "but for" causation); and Long v. Eastfield College, 88 F.3d 300, 304-05 n. 4 (5th Cir. 1996) ("even if plaintiff's protected conduct is a substantial element in a defendant's [adverse employment] decision . . ., no liability for unlawful retaliation arises if the [same decision would have been made] even in the absence of the protected conduct.").
C. Intentional Infliction of Emotional Distress
Plaintiffs' intentional infliction of emotional distress claim is premised on De La Cruz' harassing actions against them also made the basis of their hostile environment sexual harassment claim under Title VII. The City has moved for summary judgment on this claim arguing that plaintiffs cannot establish that it is liable (under the doctrine of respondeat superior) for the alleged unlawful actions of De La Cruz. Significantly, the City has acknowledged that the determination of whether an employee has acted within the scope and course of his employment is a question of fact, and that it only becomes a question of law when the facts are undisputed and no conflicting inferences are possible. Since the relevant facts are heavily disputed in this case, and based on my ruling concerning plaintiffs' sexual harassment claim, I must DENY the City's motion for summary judgment on this cause of action and allow the plaintiffs to present their claim to a jury.
Docket Entry No. 122, at 10.
See Skidmore v. Precision Printing and Packaging Inc ., 188 F.3d 606 (5th Cir. 1999), where the plaintiff's causes of action for hostile work sexual harassment and intentional infliction of emotional distress were presented to a jury.
To prevail on a claim of intentional infliction of emotional distress, Texas law requires a finding of four elements: (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. Conduct is considered to be "outrageous" if it surpasses "all bounds of decency" such that it is "utterly intolerable in a civilized community." Liability does not extend to mere insults, indignities, threats, annoyances, or petty oppressions. There is no litmus test as to what constitutes outrageous conduct. Therefore, whether the conduct was outrageous and extreme must be analyzed on a case by case basis.
See Ugalde v. McKenzie Asphalt Co., 990 F.2d 239, 242 (5th Cir. 1993) (citing Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir. 1989)).
Id . (quoting Restatement (Second) of Torts § 46 cmt.d).
See Wilson v. Monarch Paper Co., 939 F.2d 1138, 1143 (5th Cir. 1991).
Id . at 1143 ("some employment settings 'contemplate a degree of teasing and taunting that in other circumstances might be considered cruel and outrageous.'").
Under Texas law, an employer may be vicariously liable for the intentional tort of its employee under the doctrine ofrespondeat superior or directly liable under the theory of ratification. In reading plaintiffs' amended complaint, it appears that they are pleading both theories of liability. Regarding liability through ratification, the employer may be found to have ratified its employee's conduct through its own acts, conduct, or affirmative acquiescence. The employer's mere retention of the employee in service will not establish ratification. Nor will its mere denial of liability. The employer's failure to repudiate its employee's tortuous act may sometimes establish ratification. In cases of employer silence as ratification, the employer must possess all material facts. Therefore, in the case of intentional infliction of emotional distress, the employer must know enough to realize that the employee's conduct was extreme and outrageous. The plaintiff bears the burden of proving ratification.
Docket Entry No. 116, at 31-33.
See Skidmore , 188 F.3d at 608 (citation omitted).
Id . (citing Durand v. Moore, 879 S.W.2d 196, 203 (Tex.App.-Houston [14th Dist] 1994, no writ)); and Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 653-54 (5th Cir. 1994).
Id . (citing Southwestern Bell Telephone Co. v. Wilson, 768 S.W.2d 755, 764 (Tex.App.-Corpus Christi 1988, writ denied)).
Id . (citing Prunty , 16 F.3d at 653).
Id . (citing Southwestern Bell Telephone, 768 S.W.2d at 764).
Id .
Id .
After having reviewed the summary judgment record and the arguments raised by both parties in this case, I find that plaintiffs have alleged genuine issues of material fact precluding summary judgment to the City on this claim. Accordingly, the City's summary judgment motion with respect to this claim is DENIED.
D. Negligent Retention/Negligent Supervision
Plaintiffs allege that the City acted negligently in retaining and supervising De La Cruz on the grounds that: (1) the City should not have hired him in the first place due to his criminal record:
and (2) despite De La Cruz' propensity to sexually harass other employees, the City failed to monitor his actions and take remedial action in rectifying his behavior. The City has moved for summary judgment with respect to these claims on the basis that plaintiffs have failed to establish their prima facie case under both of these legal theories. I hereby GRANT the City's motion for summary judgment but for different reasons than those articulated by the City.
Docket Entry No. 128, at 20-21; and docket entry no. 116, at 33-35.
Docket Entry No. 122, at 10-11.
According to case authority from the Fifth Circuit, these negligent causes of action are preempted by the Texas Workers' Compensation Act. The Act provides the exclusive remedy for injures sustained by an employee in the course of his employment as a result of his employer's negligence. Because there is no question that plaintiffs base their claims on the City's alleged negligence with respect to retaining and supervising De La Cruz at the workplace, recovery is foreclosed by the Texas Workers' Compensation Act. The City's motion for summary judgment is thus GRANTED with respect to Counts IV and V of plaintiffs' amended complaint.
TEX. LAB. CODE ANN. § 408.001 (Vernon 1996 Supp. 2001).
See Ward , 102 F.3d at 203-04 (where in affirming the trial court's grant of summary judgment, the Court held that plaintiff's claims for premises liability and negligent hiring, supervision and retention claims based on her employer's alleged negligence with respect to its workplace supervision of subordinate, were preempted by the exclusive remedy afforded by the Texas Workers' Compensation Act) (citing Dickson v. Silva , 880 S.W.2d 785 (Tex.App.-Houston [1st Dist] 1993, writ denied), and Ajaz v. Continental Airlines , 156 F.R.D. 145, 148-49 (S.D. Tex. 1994)).
E. Denial of Due Process Rights. Breach of the Imnlied Covenant of Good Faith and Fair Dealing and Constructive Fraud
A reading of the amended complaint and plaintiffs' summary judgment response indicates that, in addition to their sexual harassment allegations, they (and in particular Rosales) have had numerous work-related grievances against the City throughout the course of their employment. By pleading due process violations and breach of the implied covenani of good faith and fair dealing, it appears that plaintiffs are trying to litigate all their employment related disputes with the City in this action. For instance, the record reveals that Rosales complained about the City's actions concerning: his employee performance appraisals; the City's failure to rectify his personnel record as it related to a car accident occurring at work; the City's failure to produce material facts during his disciplinary hearings, which according to Rosales, amount to obstruction of justice; and the City's failure to bargain with his Union, among others. In very general terms, plaintiffs argue that the City did not follow its own "manuals, laws and other protocols" in its dealings with them. Plaintiffs further maintain that, under Texas law, employee manuals are considered contracts, and as such, they also argue that the City breached its contracts of employment with them. Because plaintiffs' claims have no merit in law or fact, they must be dismissed.
To show a due process violation in the public employment context, the plaintiffs must first show that they had a legally recognized property interest at stake. Such a showing, as the Fifth Circuit noted in Schaper v. City of Huntsville , must be made by reference to state law. "The Constitution does not create property interests; 'they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.'"
See Lollar v. Baker, 196 F.3d 603, 606-07 (516 Cir. 1999); State of Texas v. Walker, 142 F.3d 813, 818 (5th Cir. 1998); and Spuler v. Pickar , 958 F.2d 103, 107 (5th Cir. 1992) (stating that a prerequisite to a substantive due process claim is the establishment of a constitutionally protected property right).
813 F.2d 709 (5th Cir. 1987).
Id . 713 (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)). See also Bishop v. Wood, 426 U.S. 341, 344 (1976) (stating "a property interest in employment can, of course, be created by ordinance or by an implied contract . . . in either case, however, the sufficiency of the claim must be decided by reference to state law.").
In reviewing Texas law in the context of plaintiffs' claims, it is clear that their cause of action for breach of the covenant of good faith and fair dealing is not a viable one. Texas law does not recognize this cause of action in the employment relationship. Accordingly, the City's motion for summary judgment is GRANTED with respect to this claim.
See Pruitt v. Levi Strauss Co ., 932 F.2d 458, 461 (5th Cir. 1991) (affirming summary judgment in favor of employer on the grounds that former executive had no cause of action for alleged breach of covenant of good faith and fair dealing in employment relationship) (citing English v. Fischer , 660 S.W.2d 521 (Tex. 1983)).
Next, I address plaintiffs' breach of contract allegations based on their position that the City's employee manual, which prescribes procedures for disciplinary action and employment term nat ion. constitutes a legally binding written employment contract. Under Texas law, personnel manuals and employee handbooks do not create contractual rights, unless the parties expressly agree that the procedures contained in these manuals are binding.
Pruitt , 932 F.2d at 463 (citing Vallone v. Agip Petroleum Co., 705 S.W.2d 757, 759 (Tex.App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.) ("Employee handbooks, unaccompanied by an express agreement dealing with procedure for discharge of employees, do not create contractual rights regarding those procedures."); Reynolds v. Manufacturing Co., v. Mendoza, 644 S.W.2d 536, 539 (Tex.App.-Corpus Christi 1982, no writ) (absent express reciprocal agreement dealing with procedures for discharge, employee handbooks "constitute no more than general guidelines,")).
The Fifth Circuit in Aiello v. United Air Lines, Inc., recognized an exception to the general rule in Texas that personnel manuals and employee handbooks do not create contractual rights. The Court noted that only under circumstances of "great significance," could such materials constitute express written contracts. The Aiello court identified three factors that would establish circumstances of "great significance:" (1) the employee manual contained detailed procedures for discipline and discharge; (2) the employer followed these procedures and notified the employee that he was entitled to them; and (3) the supervisor or managerial employee who discharged the employee treated the provisions of the employee manual as a contractual obligation.
818 F.2d 1196 (5th Cir. 1987).
Id . at 1201 (citing United Transportation Union v. Brown, 694 S.W.2d 630 (Tex.App.-Texarkana 1985, writ ref'd n.r.c.)).
Id .
In this case, plaintiffs have failed to demonstrate circumstances of "great significance" sufficient to establish an Aiello exception. Even assuming that plaintiffs have adequately demonstrated that the City's employee manual contained detailed discharge procedures, they failed to show that the City treated these procedures as anything more than advisory guidelines, or that John L. German, the person who discharged Rosales, treated the employee manual as a contractual obligation. Nothing in the record suggests that the City employee manual constituted a written contract. Accordingly, because plaintiffs have failed to carry their burden, summary judgment to the City is GRANTED on their breach of contract claim.
Based on the summary judgment record, it is evident that Rosales was given the opportunity to challenge the disciplinary actions taken against him during the course of his employment with the City. Documents of record show that he exercised his administrative appeal rights on many occasions, that the City allowed his Union to represent him during these proceedings, and that he was given an opportunity to explain his side of the story. Concerning his termination, Rosales received a proposed notice of termination and was given an opportunity to respond to it before it became final. Rosales did and his response was considered prior to the City issuing its final notice terminating his employment. There is simply no evidence establishing that the City violated plaintiffs' due process rights. Just because plaintiffs disagreed with the outcome of its employment grievances, does not necessarily mean that the City did not afford them due process rights.
Finally, plaintiffs' claim for constructive fraud or fraud in the inducement fails as well. Rosales, in essence, argues that the City committed fraud when it induced him into applying for FMLA leave by promising he would be paid while on leave. To withstand summary judgment, the plaintiff in a fraud action must adduce some evidence that the purported misrepresentation was deliberately or recklessly false at the time it was made. A promise to do an act in the future is actionable fraud when made with the intention, design and purpose of deceiving, and with no intention of performing the act.
Pruitt , 932 F.2d at 462.
Id . (citing Spoljaric v. Percival Tours, Inc ., 708 S.W.2d 432, 434 (Tex. 1986)).
Assuming that the employee who allegedly made the promise to Rosales is an agent of the City, Rosales has failed to introduce any summary judgment evidence that the City possessed the requisite fraudulent intent at the time of the alleged misrepresentation. Further, based on the City's subsequent actions, no fraudulent intent can be inferred. Rosales has provided a transcribed copy of the meeting he had with his supervisor David Magana and EEO specialist Zulema Gonzales on April 17, 2000 regarding his FMLA benefits. Rosales, who had a Union representative present at the meeting, was able to ask all the questions he had about FMLA leave benefits. In fact, when he specifically asked whether he would receive any compensation or back wages while on FMLA leave, the City informed him that besides retaining his health insurance benefits, the Act did not provide him with any other monetary benefit. These two individuals also were not able to corroborate that a City employee made a promise to Rosales that he would be paid while on leave. Rosales was informed of this prior to submitting the required medical certification to begin FMLA leave. Accordingly, Rosales cannot argue that he relied on any alleged fraudulent statement when he made the decision to apply for FMLA leave.
Docket Entry No. 128, at Exhibit FF.
According to the evidence, Rosales was denied workers' compensation and medical disability benefits for his alleged mental condition. Once he was denied benefits under those two programs, the only alternative was to apply for FMLA leave. The City informed Rosales of this as it would have informed any other of its employees. In light of these facts and of Rosales' failure to introduce any specific evidence of the City's fraudulent intent, I conclude that he has failed to raise a fact issue sufficient to avoid summary judgment. The City's summary judgment motion is therefore GRANTED on this claim.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp, 475 U.S. 574, 586 (1986) (The opponent of a summary judgment motion "must do more than simply show that there is some metaphysical doubt as to the material facts.").
F. FMLA
As already discussed in this Order, there is no evidence that Rosales was retaliated against for having exercised its FMLA rights. There is also no evidence that the City somehow interfered with Rosales' FMLA leave benefits, in violation of 29 U.S.C. § 2615 (a)(1). To the contrary, the evidence establishes that the City honored Rosales' FMLA leave. Rosales failed to report back to work after having exhausted his FMLA leave. As a result, the City terminated his employment on July 28, 2000, thirty days after his FMLA leave expired. Finding that no material genuine issues of fact remain with respect to Rosales' inability to state an FMLA claim, I hereby GRANT the City's summary judgment motion on this claim.
See discussion on Rosales' retaliation claim, at 31-33, supra .
Docket Entry No. 122, at 12-13 (and relevant summary judgment evidence).
G. Punitive Damages
The City has moved for summary judgment by arguing that plaintiffs are not entitled to an award of punitive damages because they cannot show the City acted with malice or with reckless indifference in its handling of their sexual harassment complaints. Based on my findings conceming plaintiffs' sexual harassment and intentional infliction of emotional distress claims and the present posture of the case, the City's motion for summary judgment on the issue of punitive damages is DENIED .
See Deffenbaugh-Williams v. Wal-Mart Stores, Inc .,
188 F.3d 278, 28 1-84 (5th Cir. 1999); and Kolstad v. American Dental Association, 119 S.Ct. 2118 (1999).
H. Statutory Cap on Title VII Damages
Plaintiffs who allege employment discrimination on the basis of sex traditionally have been entitled to such remedies as injunctions, reinstatement, back pay, lost benefits, and attorneys' fees under § 706(g) of the Civil Rights Act of 1964. In the Civil Rights Act of 1991, Congress expanded the remedies available to these plaintiffs by permitting, for the first time, the recovery of compensatory and punitive damages. The 1991 Act provides that "the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964." The amount of compensatory damages awarded under § 1981 a for "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses," and the amount of punitive damages awarded under § 1981a, however, may not exceed the statutory cap set forth in § 1981a(b)(3). The statutory cap is based on the number of people employed by the defendant. In this case, as the City has pointed out, the cap is $300,000 (per plaintiff), because the City has more than 500 employees.
42 U.S.C. § 1981a(a)(1). As a side note, the parties have not briefed whether punitive damages under Title VII can be assessed against political subdivisions such as the City. This may become a relevant issue at trial.
Id . (Emphasis added).
I also take notice of the recent decision by the United States Supreme Court, Pollard v. E.I. du Pont de Nemours Co . In that case, the Court held that front pay (usually awarded in lieu of reinstatement) is not an element of compensatory damages within the meaning of the Civil Rights Act of 1991, and therefore, is not subject to the Act's statutory cap. The City has moved for summary judgment by stating that "[c]ompensatory and punitive damages under the 1991 amendment to Title VII are limited to a cap of $300,000 for front pay, emotional distress, and punitive damages combined." This is not a correct statement of the law as discussed above.
121 S.Ct. 1946, 1949-52 (2001).
Id . at 1952.
Accordingly, the City's motion for summary judgment on plaintiffs Title VII damages is DENIED IN PART for its failure to accurately state the law as discussed in this Order, but GRANTED IN PART, because as both parties agree, plaintiffs' Title VII compensatory and punitive damages are subject to a statutory cap pursuant to 42 U.S.C. § 1981a(b)(3).
I. Plaintiffs' Other Causes of Action
In the Jurisdiction and Venue portion of their third amended complaint, plaintiffs list in a summary fashion, numerous causes of action under state and local laws, as well as City ordinances. With respect to these causes of action, plaintiffs' complaint does not satisfy even the liberal pleading requirements of FED.R.CIV.P. 8(a). As discussed in this Order, plaintiffs will be able to proceed to a jury trial on their theories of sexual harassment under Title VII and intentional infliction of emotional distress under Texas law, which, in my view, are the only causes of action supported by the relevant facts of the case. It is my opinion that giving plaintiffs a fourth chance to amend their complaint would be futile, and at this stage in the case, prejudicial to the City. Accordingly, because plaintiffs have failed to state a claim upon which relief can be granted under the causes of action listed in the Jurisdiction and Venue of their amended complaint, I hereby GRANT the City's request for dismissal pursuant to FED.R.CIV.P. 12 (b)(6).
Docket Entry No. 116, at 1-4. For instance, plaintiffs assert several causes of action under the Texas Penal Code, Texas Open Records Act and the Texas Local Government Code, among others. Id .
VI. Conclusion
It is therefore ORDERED that the City's motion for summary judgment (Docket Entry No. 122) is GRANTED IN PART, AND DENIED IN PART. so that the only causes of action that will proceed to trial are plaintiffs' hostile environment sexual harassment and intentional infliction of emotional distress. Plaintiffs' causes of action for quid pro quo sexual harassment and retaliatory discrimination under Title VII, negligent retention, negligent supervision, denial of due process violations, breach of the implied covenant of good faith and fair dealing, constructive fraud, and for retaliation under the FMLA, are DISMISSED WITH PREJUDICE, as plaintiffs have failed to allege facts sufficient to entitle them to relief such that there is no genuine issue of material fact under the applicable legal standards.
Likewise, the City's requests for dismissal (Docket Entry Nos. 122 127) of those causes of action summarily listed in the Jurisdiction and Venue portion of plaintiffs' third amended complaint, are hereby GRANTED in their entirety. Moreover, the City's objections to plaintiffs' factual summary judgment evidence made part of its reply brief are hereby DENIED for the reasons articulated by the plaintiffs in their sur-reply.
Docket Entry No. 131.