Summary
rejecting lost wage claim where treating physician told plaintiff she could return to work but recommended she not return to same department or area as her harasser
Summary of this case from Phillips v. Union CarbideOpinion
Civil Action No. 01-0436, Section: "R"(1)
July 9, 2002
ORDER AND REASONS
Before the Court is defendant's motion for summary judgment. For the foregoing reasons, the Court grants the motion in part and denies it in part.
I. Background
This case arises from plaintiff's employment with Harmony Corporation, a construction company. In February 1999, plaintiff worked as a timekeeper for Harmony at a Cytec plant in Waggaman, Louisiana. Plaintiff worked out of a trailer at the job site along with Emerson Collins, a materials coordinator for Harmony, Harold Mayfield, the site superintendent, and a number of other Harmony employees. Among plaintiff's tasks as timekeeper was to oversee the disbursement of petty cash.
In mid-July 1999, problems between plaintiff and Collins developed. On July 15, 1999, Collins asked plaintiff if she would go out with him. She refused. He then asked if he could buy her groceries and take them to her house. She again refused. On July 19, 1999, Collins twice approached plaintiff in a common area in the trailer and told her that he was going to hold her down and kiss her. Plaintiff called Collins into her office and told him not to "cross that line" with her. Collins apologized but he returned to plaintiff's office five minutes later and told her that she need to "watch herself" because "higher-ups" were noticing that she was becoming "nothing but a bitch." Plaintiff reported the two incidents to Mayfield. Mayfield laughed at plaintiff and told her that Collins was just being himself.
On July 27, 1999, Collins asked plaintiff if he could have $30 from the petty cash account because he needed to buy Pampers for his child. Plaintiff denied Collins' request and the two argued. Collins told plaintiff to "watch what [she] was doing." Following the argument, plaintiff threatened to file a complaint against Collins with Harmony. Plaintiff called David Thompson, who assists timekeepers and works at Harmony headquarters in Baton Rouge, Louisiana. Plaintiff told Thompson that she was having trouble with a man at the site but she did not indicate that the problem was of a sexual nature. Later that day, Mayfield called plaintiff and Collins into his office to discuss the petty cash argument. Plaintiff related the argument to Mayfield and reminded him about the comments Collins made to her on July 15th and 19th. Collins confirmed plaintiff's story. Plaintiff also told Mayfield that she had called Thompson about the incident. Mayfield was very upset that plaintiff "went over his head" to try to handle the situation. He told her that she works for him and that this should be the last time that she goes over his head. At the close of the meeting Mayfield told plaintiff and Collins to stay away from each other.
The next day, Thompson called plaintiff and told her to relate the previous day's events to him in an e-mail. He asked her if everything was alright, and plaintiff told him that Mayfield had taken care of the problem. Plaintiff e-mailed Thompson a summary of the incidents with Collins and of the meeting with Mayfield. At the close of the e-mail plaintiff stated that she was not having any trouble. Later that day, however, Collins increased the frequency with which he would go into plaintiff's office to get files. Each time he went into plaintiff's office he would lean across her desk and touch her as he reached for files. Collins' visits persisted for two days before plaintiff called Thompson to tell him about Collins' behavior. Collins' visits to plaintiff's office stopped immediately after the call to Thompson.
The day after Collins' office visits stopped, Collins allegedly began touching his groin in plaintiff's presence. Collins would either walk up to the door of plaintiff's office and touch himself or he would block plaintiff's path through the trailer, place his feet on his desk, and touch his groin as plaintiff made her way across the trailer. Plaintiff says that Collins' conduct made her nauseous. She was unable to eat while at work for fear of gagging. On two or three occasions, plaintiff vomited after work on account of Collins' conduct. Plaintiff stopped using the bathroom in the trailer after an incident in which Collins pulled on the door of the bathroom when plaintiff was in it. There were days when plaintiff would not go to the bathroom for the entire day in order to avoid another encounter with Collins.
In attempt to get around the trailer without seeing Collins, plaintiff moved an empty desk near Collins' work space. In mid-August 1999, after Mayfield returned from a vacation, Mayfield asked plaintiff why she moved the desk. Plaintiff told Mayfield that she moved the desk so that she could avoid Collins because he would put his feet on his desk and touch his groin when she walked passed him. Collins' conduct continued despite plaintiff's complaint to Mayfield. Plaintiff began to use alternative routes to get in and out of her trailer. One route required plaintiff to take safety precautions because of construction site dangers.
In late September 1999, Thompson came to the Cytec site after plaintiff and Collins had a dispute over plaintiff's refusal to give Collins an equipment log. Plaintiff told Thompson about her problems with Collins. A few days after her talk with Thompson, plaintiff received a letter from a Harmony human resources manager. The letter instructed plaintiff to complete an attached form detailing her allegations of violations of Harmony's workplace harassment policy. Plaintiff completed the form and named Collins as her harasser. Harmony conducted an investigation. As part of the investigation, two human resources representatives and Thompson interviewed plaintiff, Collins, Mayfield, and other current and former Harmony employees from the Cytec site. The employees told investigators that Collins had a habit of touching his groin. One female employee said that Collins' "habit" offended her and that she observed Collins harass plaintiff.
The investigators completed the investigation about two weeks after plaintiff filed her official complaint. They determined that Collins had a habit of "adjusting" himself in public and that no violation of Harmony's sexual harassment policy had occurred. Nonetheless, the investigators admonished Collins to make a conscious effort to stop "adjusting" himself. Additionally, the investigators made Collins and plaintiff sign copies of Harmony's workplace harassment policy. The investigators assured plaintiff that she would not have any more trouble with Collins and that if she did, she should report the problems to the human resources department. Following the investigation, Collins did not engage in any sexual conduct toward plaintiff.
Mayfield had been critical of plaintiff throughout her ordeal with Collins. He allegedly came into her office twice a week between mid-August and late October to verbally discipline plaintiff based on complaints from Collins. For instance, in late September, a day after a meeting during which Mayfield told plaintiff and a number of Harmony employees not to allow Collins to have anything to do with the equipment log, Mayfield yelled at plaintiff in her office for refusing to give Collins the equipment log.
In late October, John Richmond, the project manager on the Cytec job, gave plaintiff a counseling report that detailed problems he found with plaintiff's incentive payment calculations. Plaintiff sent the letter to her attorney. The attorney contacted Harmony's human resources manager and told her that plaintiff's work was being excessively scrutinized and that someone had threatened to fire her. The attorney suggested that a transfer of plaintiff to another Harmony job site would be appropriate. The human resources department immediately investigated possible transfer sites.
Mayfield learned that plaintiff retained a lawyer when plaintiff gave him a doctor's note her lawyer had faxed to her. The lawyer sent the note in response to Mayfield's request when plaintiff asked for a day off to see a doctor for bladder and stomach problems. Mayfield questioned what plaintiff expected to gain from getting a lawyer. He told her that Harmony would some day find a way to fire her. At about that time, a Harmony welder told plaintiff that Collins had told him that as soon as plaintiff's sexual harassment suit was over, whoever was in charge was "going to get rid of her." On November 11, after Mayfield learned of plaintiff's transfer request, he stated that he, not Thompson was in charge, and he threatened to "run [her] ass off. . . ."
About two weeks after plaintiff's transfer request, Harmony accommodated plaintiff with a lateral transfer to company headquarters. The transfer did not cause a change in plaintiff's salary, benefits, or job responsibilities. Before appearing for the first day at her new position, plaintiff underwent surgery for an illness that had earlier forced her to miss work. When she arrived at the new job, plaintiff came across her time card from the Cytec site and noticed that the letters "TERM" had been scratched out next to her name. Next to the scratched out letters was a handwritten notation "TRANSFER." When she saw the time card, plaintiff left the office and did not return. Plaintiff gave Harmony no indication of why she left. A few days after she left, plaintiff received her official transfer slip from Harmony.
Unaware of why plaintiff was absent from work, Harmony assumed that plaintiff's absence was related to her on-going medical problems. As was company policy, Harmony sent plaintiff Family Medical Leave Act (FMLA) forms. Plaintiff filled out the forms without protest, and defendant placed plaintiff on medical leave for three months. At the end of her medical leave, plaintiff decided not to return to Harmony.
Plaintiff filed this lawsuit against Harmony for co-worker and supervisor sexual harassment under Section 717 of Title VII, 42 U.S.C. § 2000e-16. Plaintiff further alleges that she is disabled as a result of the alleged sexual harassment. Defendant seeks to dismiss plaintiff's claims on summary judgment.
II. Discussion
A. Legal standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool. Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986)). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue exists for trial. See id. at 325, 106 S.Ct. at 2553-54; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
B. Title VII Sexual Harassment
Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1)
(i) co-worker Sexual Harassment
A plaintiff in a hostile work environment case based on a co-worker's conduct must establish that: (1) she belongs to the protected class; (2) she was subjected to unwelcome sexual harassment; (3) the harassment was based on her sex; (4) the harassment affected a term, condition, or privilege of her employment; and (5) the employer knew or should have known of the harassment and failed to take remedial action. Mota v. Univ. of Tex. Houston Health Science Ctr., 261 F.3d 512, 523 (5th Cir. 2001) (citing Cain v. Blackwell, 246 F.3d 758, 760 (5th Cir. 2001)). "A hostile work environment claim requires the presence of a work environment that a reasonable person would find hostile or abusive." Id. In determining whether an environment is hostile or abusive, courts must look at the totality of the circumstances, including 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. See id. at 523-24 (quoting Weller v. Citation Oil Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996)).
Harmony contends that plaintiff cannot establish the fourth and fifth elements of a hostile environment claim. First, Harmony argues that there is no evidence that the harassment of which plaintiff complains affected a term, condition, or privilege of her work. According the Harmony, Collins' actions cannot be described as "severe and pervasive" under Fifth Circuit law.
In Shepard v. Comptroller of Public Accountants, 168 F.3d 871 (5th Cir. 1999), the Fifth Circuit held that no sexual harassment occurred when a co-worker made crude remarks about plaintiff's anatomy, touched her arm on several occasions, rubbed her shoulder, and motioned for her to sit on his lap during a meeting. See 168 F.3d at 872. similarly, in Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, the Fifth Circuit found that anonymous letters that a principal sent during the school year to the homes of two teachers suggesting that they would benefit from a romantic relationship, criticizing their appearances, and making derogatory comments did not constitute hostile work environment. The court concluded that the letters were infrequent, nonthreatening, less severe than a public display, and did not interfere with a reasonable person's work performance. See 161 F.3d at 269-70; see also DeAngelis v. El Paso Municipal Police Officers Assoc., 51 F.3d 591, 595-96 (5th Cir. 1995) (four columns containing derogatory comments in a police association newsletter appearing at irregular intervals during a two and a half year period did not constitute hostile work environment); Hyde v. Graebel/New Orleans Movers, Inc., 1999 WL 335385, *5 (E.D. La. 1999) (half-dozen or so incidents over three months that included touching plaintiff's hair and arms, and some rude remarks not pervasive).
Here, in contrast, there is evidence that Collins' conduct was both pervasive and severe. The Court will focus only on plaintiff's allegation that Collins regularly touched his genitals in a sexually suggestive manner in plaintiff's presence from about early August until October of 1999. Defendant does not dispute that Collins routinely touched his groin in front of plaintiff and other employees. Plaintiff testified that this occurred five to ten times a day for two months. In her complaint to the Harmony human resources manager, plaintiff indicated that Collins would approach her office door and touch himself and that he would block her route across the trailer and touch himself as she passed him.
Plaintiff invites the Court to focus on plaintiff's allegations that Collins touched himself in her presence in order to evaluate defendant's summary judgment motion regarding the sexual harassment claim based on Collins' conduct. See Pl.'s Memo. in Opp. to Mot. for Summ. J. at 10. Regardless, the Court finds that Collins' earlier conduct would not suffice as severe and pervasive under Title VII. See Mota, 261 F.3d at 523-24.
See Pl.'s Memo. in Opp. to Mot. for Summ. J., Pl.'s Deposition at 106.
See Def.'s Ex. 8, EEO/Harassment Concern Report at 8.
The Harmony employees who spoke with the human resources investigators verified that Collins had a habit of touching his groin in front of them. One employee told the investigators that she considered it harassment when he "grabs himself" and that she observed Collins harass plaintiff. She also believed that the touching was done both unconsciously and consciously. Further, there is evidence that Collins' conduct caused plaintiff emotional and physical harm. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 371 (1993) ("The effect on the employee's psychological well-being is, of course, relevant to whether the plaintiff actually found the environment abusive.") In her affidavit, plaintiff testifies that Collins' conduct made her nauseous, that she did not eat in order to avoid gagging, and that on two or three occasions she left work and vomited. Plaintiff also testified that she had crying episodes and suffered from nightmares. She often exited the trailer by alternative routes in order to avoid Collins, including one route that exposed her to danger. Further, she avoided using the bathroom in the trailer and even forced herself to not go to the bathroom because of an incident in which Collins pulled on the bathroom door while she was in the bathroom. Plaintiff testified that her bladder surgery in November 1999 was related to her inability to use the bathroom. In the context of the earlier problems between plaintiff and Collins regarding Collins' propositioning plaintiff, the Court finds that plaintiff's evidence creates a genuine fact issue as to whether Collins' conduct is pervasive or severe.
See Def.'s Ex. B-4, Notes from HR Investigation.
See Pl.'s Affidavit at ¶¶ 17.
See Roussell Deposition at 181-82.
See Pl.'s Affidavit at ¶¶ 18, 21; see also Roussell Deposition at 189.
See id. at 190.
See Casiano ATT Corporation, 213 F.3d 278, 285 (5th Cir. 2000) (comments that standing alone do not constitute sexual harassment can be viewed in pari materia with multiple incidents of egregious sexual misconduct alleged in order to defeat summary judgment).
Defendant contends that plaintiff cannot establish the final prong of the hostile environment test because Harmony took prompt remedial action in response to plaintiff's official harassment complaint. "An employer can be liable . . . where its own negligence is a cause of the harassment. An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct but failed to stop it." Burlington Industries v. Ellerth, 524 U.S. 742, 759, 118 S.Ct. 2257, 2267 (1998); see also Williamson v. City of Houston, 148 F.3d 462, 464 (5th Cir. 1998). Generally, the negligence standard governs employer liability for co-worker harassment. Sharp v. City of Houston, 164 F.3d 923, 929 (5th Cir. 1999) (emphasis omitted) (citing Williamson, 148 F.3d at 464).
A Title VII employer has actual knowledge of harassment that is known to "higher management" or to someone who has the power to take action to remedy the problem. Id. ( citing Nash v. Electrospace System, Inc., 9 F.3d 401, 404 (5th Cir. 1993)). Plaintiff argues that even though defendant took prompt action after it received her official complaint in October, defendant is liable because Mayfield knew of Collins' harassment in mid-August, a month and a half before plaintiff filed her formal complaint, and he did nothing. Plaintiff asserts that she told Mayfield that she had to move the empty desk in order to get around Collins because he was putting his feet on his desk and touching himself when she attempted to pass through the trailer. Defendant does not contest this assertion. Defendant's prompt remedial action following plaintiff's official complaint does not eliminate the possibility that defendant was negligent for not acting earlier because Mayfield had the power to instruct Collins to cease the harassing behavior and he did nothing. See Williamson, 148 F.3d at 465 (affirming jury finding of employer's negligence despite prompt remedial action following official complaint when supervisor had notice of harassment before plaintiff filed official complaint). Therefore, the Court finds that there is a genuine issue of fact as to whether defendant was negligent with respect to Collins' harassment of plaintiff and failed to stop it.
See Def.'s Ex. 8, EEO/Harassment Concern Report at 8.
The Court notes that the Fifth Circuit has not resolved the issue of whether the knowledge of a supervisor who is also the target of the sexual harassment complaint can be imputed to the employer. See Sharp, 164 F.3d at 930 n. 9.
Accordingly, the Court finds that there is a genuine issue of material fact as to whether defendant is liable for co-worker sexual harassment under Title VII.
(ii) Supervisor Sexual Harassment
Defendant's brief characterizes plaintiff's claim that her supervisor, Mayfield, sexually harassed her as a claim for retaliation. Defendant then argues that the claim is defective because retaliation requires an adverse employment action, which plaintiff does not demonstrate. Plaintiff, on the other hand, argues that her claim is not a retaliation claim, but a sexual harassment claim based on a hostile work environment.
The Court agrees that plaintiff has not established an adverse employment action. The Court also agrees that this is fatal to a retaliation claim. As to a claim for sexual harassment, a lack of an adverse employment action does not necessarily doom plaintiff's claim for supervisor sexual harassment.
In analyzing whether an employer can be liable for the sexually harassing acts of a supervisor, a plaintiff's claims are treated as a "quid pro quo" case or a "hostile environment case," depending on whether she has suffered a tangible employment action. See Casiano, 213 F.3d at 283. If plaintiff suffers a tangible employment action, she may establish a claim for "quid pro quo" sexual harassment, if the elements of the claim are met. If there is no tangible employment action, plaintiff may still establish a hostile work environment claim if plaintiff can establish that her supervisor's actions were severe or pervasive so as to alter the conditions of the victim's employment and to create an abusive working environment. Casiano, 213 F.3d at 284; Green v. Administrators of the Tulane Educational Fund, 284 F.3d 642, 655 (5th Cir. 2002) (citing Ellerth, 524 U.S. at 752, 118 S.Ct. at 2264). If the actions ascribed to the supervisor constitute severe or pervasive sexual harassment, the employer is vicariously liable unless the employer can prove both prongs of the Ellerth/Faragher affirmative defense. See id. The Ellerth/Faragher affirmative defense requires the employer to show that: (1) it exercised reasonable care to prevent and correct promptly any such sexual harassment and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. Id. (citing Ellerth, 524 U.S. at 765, 118 S.Ct. at 2270; Faragher v. City of Boca Raton, 524 13.5. 775. 808, 118 S.Ct. 2275, 2293 (1998)).
A tangible employment action involves a supervisor bringing the power of the enterprise to bear on the employee. Such action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. See Ellerth, 524 U.S. at 761, 118 S.Ct. at 2268. Here, plaintiff contends that she suffered a tangible employment action because she was constructively discharged. A constructive discharge occurs when the employer makes working conditions so intolerable that a reasonable employee would feel compelled to resign. See Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757, 771 (5th Cir. 2001) (citing cases). To show constructive discharge, a plaintiff must show that a reasonable person in her shoes would have felt compelled to resign. Faruki v. Parsons, S.I.P., Inc., 123 F.3d 315, 319 (5th Cir. 1997). The Fifth Circuit listed the following factors for courts to consider when they address constructive discharge claims:
(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (6) offers of early retirement that would make the employee worse off whether the offer was accepted or not. Id. (citing Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297 (5th Cir. 1994)).
Plaintiff contends that she reasonably felt compelled to resign because of Mayfield's warnings that Harmony was going to find a way to fire her, the scratched out notation on her time card which she says Mayfield knew of, her deletion from the incentive pay eligibility list, a project manager's criticism of her work, and defendant's failure to recall her from FMLA leave. Regardless of whether plaintiff subjectively believed that these factors indicated that Mayfield's threats that Harmony would fire her had come true, the Court finds that no reasonable employee in plaintiff's position would have felt compelled to leave. See id; see also Webb v. Cardiothoracic Surgery Associates of North Texas, P.A., 139 F.3d 532, 539 ("[p]art of an employee's obligation to be reasonable is an obligation not to assume the worst, and not to jump to conclusions too fast.") (citations omitted).
First, the evidence indicates that Harmony's responded to the note from plaintiff's attorney detailing her complaints about excessive criticism and Mayfield's threats to her job by transferring plaintiff from under Mayfield's supervision. This surely is no indication that Mayfield's threats had the blessing of the company. Second, the letters "TERM" next to plaintiff's name on the time card are barely visible, and the word "TRANSFER" is clearly written next to the scratch-out. A reasonable person in plaintiff's position would have ignored the barely legible and corrected notation in light of the fact that plaintiff had just been transferred at her own request and because she received a transfer slip in the mail shortly after she saw the marked time card. Third, plaintiff's contention that she did not return to work in part because she was removed from the incentive pay eligibility list is belied by the fact that she received her incentive check in January 2002 before she decided not to return to work. The Court is further unpersuaded that a October 28, 1999 memorandum detailing a conversation in which plaintiff's project manager critically evaluated plaintiff's incentive calculations establishes reasonable grounds for not returning to work.
See Def.'s Ex. 16 to Roussell Deposition.
See Def.'s Ex. A, Roussell Deposition at 147.
See id. at 152-53.
See Def.'s Ex. 12, Richmond Memorandum (19/28/99).
Finally, there is no evidence that plaintiff protested being placed on FMLA leave or that she was on FMLA leave for a term longer than the statutorily mandated twelve weeks. Plaintiff's contention that she was medically unable to return to work for defendant is not supported by any evidence in the record. Although plaintiff testified that her family doctor told her not to return to Harmony, a letter from plaintiff's doctor to plaintiff's counsel shows that the doctor never told plaintiff that she could not return to work. Rather, plaintiff's doctor told her not to return to work in the same area or department with the person who was sexually harassing her, and plaintiff's doctor suggested that plaintiff obtain a transfer to a different department or seek employment elsewhere. Plaintiff asked defendant for a transfer, and defendant complied with plaintiff's request. In light of the foregoing considerations, the Court finds that plaintiff does not establish a genuine issue of fact as to whether she acted reasonably in leaving work and not returning after her medical leave period ended. Accordingly, because the Court finds that plaintiff suffered no significant change in her employment status, there is no genuine issue as to whether plaintiff suffered retaliation or "quid pro quo" harassment.
See Pl.'s Deposition at 155, 182.
See Def.'s Supplemental Brief, Ex. 1 (Dr. Montegut Letter; 6/25/02).
See id. ("it was my recommendation to Mrs. Roussell that when she returned to work after her leave of absence that she should not work with in the same area or department as the individual that was sexually harassing her. I suggested that she seek a transfer to a different department or seek employment elsewhere. . . .").
In the absence of a finding of constructive discharge, the Court finds that plaintiff cannot recover back pay for lost wages. See Jurgens v. Equal Employment Opportunity Commission, 903 F.2d 386, 389 (5th Cir. 1990) ("it is well settled in this circuit that, in order for an employee to recover back pay for lost wages beyond the date of his retirement or resignation, the evidence must establish that the employer constructively discharged the employee") (citation omitted). Plaintiff's contention that her situation presents an exception to Jurgens such that she need not show constructive discharge in order to make a claim for back pay is without merit. Plaintiff presents no evidence that a she was unable to continue in her same job station because of a disability. See id. at 389 n. 2.
Following the Casiano analysis, the court must next address whether plaintiff's supervisor subjected her to a hostile work environment. See 213 F.3d at 284. To establish a Title VII hostile environment claim against a supervisor with immediate (or successively higher) authority over the employee the employee must establish that: (1) she belongs to the protected class; (2) she was subjected to unwelcome sexual harassment; (3) the harassment was based on her sex; and (4) the harassment affected a term, condition, or privilege of her employment. See Watts v. Kroger, 170 F.3d 505, 509 (5th Cir. 1999). If the actions ascribed to the supervisor constitute severe or pervasive sexual harassment, the employer is vicariously liable unless the employer can prove both prongs of the Ellerth/Faragher affirmative defense. Casiano, 213 F.3d at 284.
Defendant did not brief plaintiff's claims that Mayfield's conduct created a hostile work environment based on sex. At oral argument, defendant contended that there was no evidence that Mayfield's conduct towards plaintiff was based on plaintiff's sex. The Court disagrees. The critical issue in the Title VII context is whether the plaintiff was exposed to disadvantageous terms or conditions of employment to which members of the opposite sex were not. See Green, 284 F.3d at 657. Plaintiff complains that she suffered discriminatory and harassing reprimands and criticism from Mayfield. She testified that from August through October Mayfield would "chew her out" twice a week based on trivial or manufactured complaints from Collins. Plaintiff's complaint that Collins touched himself in her presence, however, went unaddressed by Mayfield. See DeAngelis, 51 F.3d at 596 (considering evidence of atmosphere of sexual inequality when comparing cases). Further, defendant does not contest plaintiff's allegations that Mayfield yelled at her in front of Collins for complaining to Thompson in July about her initial problems with Collins and that he repeatedly threatened her with termination for obtaining a lawyer and for asking for a transfer. See Ellerth, 524 U.S. at 754, 118 S.Ct. at 2265 (leaving open the possibility that a "single unqualified threat is sufficient to constitute discrimination in the terms and conditions of employment"); see also Green, 284 F.3d at 656 (defendant's actions, including reprimands, a demotion, cursing, and humiliating comments, interfered with plaintiff's work performance). All of Mayfield's threats occurred after plaintiff filed her harassment complaint against Collins. In essence, plaintiff asserts that Mayfield ganged up with Collins to harass her because she is a woman.
See Pl.'s Affidavit at ¶¶ 21A, 28; 30; 31.
As long as Mayfield's harassment was based on sex, his conduct did not have to be based on sexual desire or involve sexual overtures to run afoul of Title VII. See Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 1002 (1998) (harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex). Accordingly, the Court finds that there is a fact issue as to whether Mayfield's treatment of plaintiff was based on her sex. See Green, 284 F.3d at 656-57 ("Title VII prohibits discriminat[ion] . . . because of . . . sex in the terms or conditions of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.") ( quoting Oncale, 523 U.S. at 79-80, 118 S.Ct. at 1002). There are also fact issues as to whether Mayfield's harassment was so severe or pervasive as to create a hostile environment.
Although defendant asserted the Ellerth/Faragher affirmative defense in its answer, ( see Def.'s Answer, Affirmative Defenses at ¶ 7), it has not briefed this issue. Therefore, the Court cannot rule on the applicability of the defense at this time.
III. Conclusion
For the foregoing reasons, the Court GRANTS defendant's motion in part and DENIES defendant's motion in part. It is ordered that plaintiff's claim of supervisor sexual harassment based on constructive discharge and her claim for lost wages are DISMISSED. The Court denies summary judgment on plaintiff's claims of co-worker and supervisor sexual harassment based on a hostile work environment.