Opinion
Civil Action No. 6:03-CV-076-C.
August 27, 2004
ORDER
ON THIS DAY THE COURT CONSIDERED Defendants MEDICENTER BRYANT, a division of SAN ANGELO COMMUNITY MEDICAL CENTER ("Medicenter"), and ROBERT ROMATOWSKI's ("Romatowski") (collectively, "Defendants") Motion for Summary Judgment and Brief in Support, together with Appendix, filed on July 15, 2004. The Court also considered Plaintiff LISA M. TURNER's Response in Opposition to Defendants' Motion for Summary Judgment and Brief in Support, filed on August 11, 2004, together with her Appendix to same, filed on August 16, 2004. After considering all the papers, pleadings, and evidence, together with the legal arguments of the parties, the Court is of the opinion that Defendants' Motion for Summary Judgment is well-taken and should be granted as to all claims. In ordering summary judgment for Defendants on all claims, the Court, for the purposes of this Order, adopts the arguments stated in Defendants' Brief in Support except for the arguments contained in sections IV(A)(2) and (4), and IV(B)(2)(b) and (c).
In her Response in opposition to Defendants' Motion for Summary Judgment, Plaintiff raises no disputed material facts to put at issue, or adequate legal arguments to counter, Defendants' legal arguments that they are entitled to judgment as a matter of law because Plaintiff failed to exhaust her administrative remedies with respect to her claims of hostile work environment, sex discrimination, and constructive discharge. The scope of a Title VII complaint is limited to the scope of the charges made in the EEOC complaint and the investigation that might reasonably be expected to grow out of that complaint. Thomas v. Texas Dep't of Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000). Plaintiff only marked the box indicating "retaliation" as the basis for her discrimination charge in her EEOC charge and only asserted facts in support of retaliation, claiming that she was "terminated from [her] position in retaliation for reporting sexual harassment" and "discriminated against in retaliation for objecting to what I perceived to be unlawful discrimination." [App. to Pl.'s Resp. at 9]. Plaintiff did not charge that she was sexually harassed, nor did she allege hostile work environment, sex discrimination, or constructive discharge. Because such allegations are not necessarily encompassed in her retaliation claim or the investigation that could reasonably be expected to arise out of that claim, the scope of Plaintiff's lawsuit cannot be expanded to include sex discrimination, sexual harassment, constructive discharge, or hostile work environment. See Thomas, 220 F.3d at 395; Lee v. Kroger Co., 901 F. Supp. 1218, 1224 (S.D. Tex. 1995) (precluding Plaintiff from maintaining additional charge of racial discrimination when he only marked the "retaliation" box in his initial EEOC charge and only asserted facts to support retaliation claim in that charge). Therefore, Plaintiff has failed to exhaust her administrative remedies for those claims not raised in her EEOC charge and the Court must dismiss, for lack of subject matter jurisdiction, Plaintiff's complaint of hostile work environment, sex discrimination, sexual harassment, or constructive discharge.
Because the Court determines that Plaintiff failed to exhaust her administrative remedies, it does not need to decide whether Romatowski's actions were severe and pervasive enough to state a cause of action for hostile work environment under Title VII, or whether Medicenter may avail itself of the Faragher/Ellerth affirmative defense. Nevertheless, assuming arguendo that Plaintiff had not failed to exhaust her administrative remedies, this Court is of the opinion that Plaintiff's facts, if believed, are insufficient as a matter of law to allow a jury to find that Plaintiff was subjected to actionable sexual harassment. The standard for actionable sexual harassment under Title VII is that it must be "so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment." Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998); see also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998) (holding that only harassing conduct that is severe or pervasive can produce a constructive alteration in the terms or conditions of employment). Furthermore, to be actionable, the allegedly harassing conduct must be both objectively offensive, such that a reasonable person would find the conduct hostile or abusive, and subjectively offensive, such that the victim perceived the conduct to be hostile or abusive. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993); Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 874 (5th Cir. 1999). The Supreme Court has indicated that
Because the conditions necessary to prove constructive discharge are even more stringent than those necessary to show hostile work environment, the Court is of the opinion that Plaintiff's claims for constructive discharge are likewise insufficient. The Court does not offer an opinion on whether Medicenter would be entitled to judgment as a matter of law on its Faragher/Ellerth affirmative defense.
[w]orkplace conduct is not measured in isolation; instead, whether an environment is sufficiently hostile or abusive must be judged by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Hence, a recurring point in our opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-71, 121 S. Ct. 1508, 1509-10, 149 L. Ed. 2d 509 (2001) (internal quotes omitted).
The substance of the sexual harassment Plaintiff complains of is the discomfort she felt "seeing [Romatowski] rub the thighs of another nurse" on or about October 12, 2002 [App. to Pl.'s Resp. at 9], and her belief that she would have to welcome similar advances or quit, thereby being constructively discharged [Pl.'s Compl. at 3, ¶ 8]. Defendants argue that, even if Plaintiff's account of the event she allegedly witnessed were believed, the facts of that event are not sufficient to rise to the level of actionable sexual harassment under Title VII. This Court agrees, finding the language of the Supreme Court's opinion in Breeden expressing its holding apropos this case when it stated, "No reasonable person could have believed that the single incident recounted above violated Title VII's standard." Id. at 271. This conclusion is based on the Court's determination that no reasonable jury could find that such activity was so severe and pervasive as to produce a level of discomfort in a reasonable person, regardless of how Plaintiff perceived it, that would amount to a constructive change in the terms or condition of her employment. See Collins v. Baptist Memorial Geriatric Ctr., 937 F.2d 190, 195 (5th Cir. 1991) (holding that "harassing incidents not involving [the Plaintiff] herself will not sustain her claim, unless there is evidence that the incidents involving other female employees affected [her own] psychological well-being" and that "psychological harm requires a commensurately higher showing that the sexually harassing conduct was pervasive and destructive of the working environment").
Defendant Romatowski denies that the event described by Plaintiff ever occurred.
Plaintiff raises several other incidents in her Response that she does not allege in either her EEOC charge or her Original Complaint, i.e., that Romatowski allowed pornographic videos to be shown in the break-room and that Romatowski initiated a practice of staff giving "neck-rubs" to one another in which she did not participate. [Pl.'s Resp. at 13, ¶¶ g, h]. The Court determines that neither of these events likewise is sufficient to permit a reasonable juror to conclude that severe and pervasive sexual harassment occurred.
In addition, Plaintiff raises no disputed material facts to put at issue, or adequate legal arguments to counter, Defendants' legal arguments that they are entitled to judgment as a matter of law on Plaintiff's claims against Romatowski for retaliation and negligence, her claims against Medicenter for negligent hiring, or her claims against Defendants for intentional infliction of emotional distress, libel, slander, and invasion of privacy.
As for the remaining claim against Medicenter for retaliation, Plaintiff's basic argument throughout is that disputed issues of material fact exist that preclude summary judgment. However, many of the issues Plaintiff raises are not material to the grounds on which summary judgment is granted. As Plaintiff's Brief states, quoting St. Amant v. Benoit, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987). Furthermore, and more significantly, Plaintiff's allegations of disputes that do not fail the materiality test nevertheless fail the genuine issue test. To quote the St. Amant court again,
[t]he mere existence of a factual dispute does not by itself preclude the granting of summary judgment. The requirement is that there be no genuine issue of material fact. . . . An issue is genuine if the evidence supporting its resolution in favor of the party opposing summary judgment, together with any inferences in such party's favor that the evidence allows, would be sufficient to support a verdict in favor of that party.Id. at 1296-97 (internal citations and quotations omitted).
In order to state a prima facie case of retaliation under Title VII, Plaintiff must establish that (1) she engaged in protected activity, (2) she suffered an adverse employment action, and (3) a causal nexus existed between the protected activity and the adverse employment action. Green v. Administrators of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002). An individual engages in protected activity under Title VII when the individual "has opposed any practice made an unlawful employment practice by [Title VII]. . . ." 42 U.S.C. § 2000e-3(a). In opposing a practice, the individual must establish that she had an objectively reasonable belief that the employment practice at issue was unlawful. See Payne v. McLemore's Wholesale Retail Stores, 654 F.2d 1130, 1140 (5th Cir. 1981).
Again, it is important to understand that the practice Plaintiff opposed was not any sexual harassment she believed Romatowski committed against the other nurse, but rather sexual harassment she believed she was subjected to because of how "uncomfortable [she was] seeing [Romatowski] rub the thighs of another nurse" [App. to Pl.'s Resp. at 9], and her belief that she would have to welcome similar advances or quit, thereby being constructively discharged [Pl.'s Compl. at 3, ¶ 8]. Although the Court has already determined that the alleged conduct did not amount to sexual harassment, that alone is not dispositive of a retaliation claim if Plaintiff can establish that she had an objectively reasonable belief that the employment practice at issue was unlawful. See Payne, 654 F.2d at 1140 (requiring reasonable belief standard in order "[t]o effectuate the policies of Title VII and to avoid the chilling effect that would otherwise arise."). Nevertheless, the proper focus is on the objective reasonableness of Plaintiff's belief, and not the subjective, or good-faith, nature of her belief. See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 428 (5th Cir. 2000) (citing with approval the holding in Harvey v. Chevron USA, Inc., 961 F. Supp. 1017, 1032 (S.D. Tex. 1997), that subjective good faith alone is insufficient).
By employing an objectively reasonable belief standard in order to avoid a "chilling effect" on victim opposition to suspect employment practices, this Court cannot require that "the conduct opposed must actually be sexual harassment, but it must be close enough to support an objectively reasonable belief that it is." See Clover v. Total Sys, Servs., Inc. 176 F.3d 1346, 1351 (11th Cir. 1999). To require otherwise would be to "eviscerate the objective component of our reasonableness inquiry. If the plaintiffs are free to disclaim knowledge of the substantive law, the reasonableness inquiry becomes no more than speculation regarding their subjective knowledge." Harper v. Blockbuster Entm't Corp., 139 F.3d 1385, 1388 n. 2 (11th Cir. 1998); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S. Ct. 998, 1002, 140 L. Ed.2d 201 (1998) (commenting that the Supreme Court "has never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations" and that "careful attention to the requirements of the statute" is necessary to prevent the transformation of Title VII into a "general civility code for the American workplace."). In the case sub judice, given the state of the substantive law, the activity Plaintiff opposed does not even come close to supporting an objectively reasonable belief that she was the victim of actual sexual harassment. See Oncale, 523 U.S. at 81, 118 S. Ct. at 1003 (holding that the reasonableness requirement is necessary "to ensure that courts and juries do not mistake ordinary socializing in the workplace — such as . . . intersexual flirtation — for discriminatory `conditions of employment.'").
Because the Court determines that Plaintiff did not engage in a protected activity, it is not necessary to reach the issue of whether she suffered an adverse employment action or whether a causal nexus existed between the protected activity and any purported adverse employment action. The Court notes, however, that many of the acts of which Plaintiff complains, i.e., having her job duties changed without a reduction in her hourly pay, being counseled, having locks to the building changed on her, and having her belongings boxed up, do not amount to adverse employment activities. See Green v. Administrators of Tulane Educ. Fund, 284 F.3d 642, 657-58 (5th Cir. 2002) ("changing locks, restructuring office procedures, clarifying job duties, and taking disciplinary actions in the form of reprimands, do not constitute ultimate employment decisions.").
IT IS THEREFORE ORDERED that Defendants' Motion for Summary Judgment is GRANTED and Defendants are granted summary judgment against Plaintiff on all Plaintiff's claims against Defendants MEDICENTER BRYANT, a division of SAN ANGELO COMMUNITY MEDICAL CENTER, and ROBERT ROMATOWSKI, and that Plaintiff take nothing.
SO ORDERED.