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holding employer not liable for hostile work environment claim where employer interviewed employees within two days of report of harassment
Summary of this case from Graham v. Lear CorporationOpinion
Civil Action No. 3:98-CV-2254-P.
May 31, 2000.
MEMORANDUM OPINION AND ORDER
Now before the Court is Defendant's Motion for Summary Judgment filed March 17, 2000, as to Plaintiff's claims for sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964. After considering the Motion, the Response, the evidence presented and the applicable law, the Court hereby GRANTS IN PART and DENIES IN PART Defendant's Motion.
BACKGROUND
The parties in this matter agree on many of the facts surrounding the underlying dispute in this action. Plaintiff Gladys Goff ("Plaintiff" or "Goff") was an employee with the Soundolier Division of American Trading and Production Corporation ("Defendant") beginning in September 1995. One year later in September 1996, Plaintiff claims that co-worker Bobby Ray Dixon began making sexual comments to her. (Pl's Depo., Exh. A to Def's Mot. for Sum. J., at 11-12, 55-56) ("Pl's Depo."). On October 7, 1996, Plaintiff made her first report of these sexual statements to Kaylyn Venable, Defendant's Human Resources Manager. Ms. Venable requested a written statement from Plaintiff and immediately began an investigation of Plaintiff's claims. Plaintiff claims that after making the report, Mr. Dixon continued making sexual remarks to her, and that on October 9, he rubbed up against her in the break room and whispered in her ear that she had nice cleavage. Though it is unclear whether Plaintiff requested a couple of days off or whether Ms. Venable made the suggestion, after Plaintiff reported the October 9th incident, Plaintiff went home for approximately two days. By October 11, 1996, Ms. Venable completed her investigation, but could not find anyone to corroborate Ms. Goff's claims. Plaintiff claims that when Ms. Venable gave Plaintiff the investigation results, she also told Plaintiff that she would not tolerate complaining and she did not want to see or hear from Plaintiff again. Ms. Venable denies making such a statement. It is undisputed that Ms. Venable offered to transfer Plaintiff in order to separate her from Mr. Dixon
In March 1997, Plaintiff claims that she was again sexually harassed by a different co-worker, Tracy Morrison. Plaintiff contends that he continually made sexual references to her and touched her breasts and her buttocks. Plaintiff claims that she complained to her immediate supervisor. Kevin Ivey, about Mr. Morrison's alleged harassment on March 25, 1997 On March 26, 1997, Ms. Venable suspended Ms. Goff after learning of an altercation between Mr. Morrison and Plaintiffs husband. Plaintiff claims that Ms. Venable specifically stated the reason for her suspension was due to her recent claim against Mr. Morrison. However, Ms. Venable denies having knowledge of Plaintiff's complaint until after the suspension. On April 1, 1997, Defendant terminated Plaintiff's employment.
DISCUSSION
I. SUMMARY JUDGMENT STANDARD
In general, summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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, 323-25 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party must identify the evidence on file in the case which establishes the absence of any genuine issue of material fact. Celotex, 477 U.S. at 323.
Once the moving party has made an initial showing, the party opposing the motion must offer evidence sufficient to demonstrate the existence of the required elements of the party's case. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment; the party defending against a motion for summary judgment cannot defeat the motion unless it provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in its favor. Anderson, 477 U.S. at 256-57. Conclusory assertions, unsupported by specific facts, presented in affidavits opposing the motion for summary judgement are likewise insufficient to defeat a proper motion for summary judgment. See Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888 (1990).
All evidence and the inferences to be drawn therefrom "must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Marshall v. Victoria Transp. Co., 603 F.2d 1122, 1123 (5th Cir. 1979). However, if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case on which it will bear the burden of proof at trial, summary judgment must be granted Celotex, 477 U.S. at 322-23. Finally, in reviewing the summary judgment evidence, the Court has no duty to search the record for triable issues; rather, it need rely only on those portions of the submitted documents to which the nonmoving party directs its attention. See Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992).
II. THE TITLE VII CLAIMS
Plaintiff claims that Defendant discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., on the basis of her gender, and then retahated against her for complaining about the discrimination. Title VII makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment because of such individual's . . . sex." 42 U.S.C. § 2000e-2 (a)(1).
A. Hostile Work Environment
A Title VII violation may be established by proving that discrimination based upon gender has created a hostile or abusive working environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). As discussed more fully below, Plaintiff bases her hostile work environment claim upon numerous incidents whereby co-workers Bobby Ray Dixon and Tracy Morrison made offensive and humiliating comments and touched her in a sexual nature. Under Fifth Circuit law, Goff must establish five elements to set forth a hostile environment claim: (1) that she belongs to a protected class, female; (2) that she 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 Defendant, her employer, knew or should have known of the harassment and failed to take prompt remedial action. Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 873 (5th Cir.), cert. denied, 120 S.Ct. 395 (1999).
Defendant asserts that it is entitled to summary judgment on the Title VII claims because (A) Plaintiff fails to demonstrate a hostile work environment and (B) Defendant promptly investigated and remedied the harassment claims once brought to management's attention. The Court considers each argument in turn.
For sexual harassment to be actionable, it must be "sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment." Meritor, 477 U.S. at 67. A recurring point in Supreme Court opinions is that neither "simple teasing," offhand comments nor isolated incidents (unless extremely serious) will amount to such discrimination. See Faragher v. City of Boca Raton, 524 U.S. 775, ___, 118 S.Ct. 2275, 2283 (1998). Whether an environment is hostile or abusive is determined 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. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Finally, the conduct must be both objectively offensive, meaning that a reasonable person would find it hostile and abusive, and subjectively offensive, meaning that the victim perceived it to be so. Id. at 21-22; see also Shepherd, 168 F.3d at 874.
1. Bobby Ray Dixon
Plaintiff claims that from September 1996 until October 9, 1996, Bobby Ray Dixon created a sexually hostile work environment for her. On October 7, she approached Ms. Venable about Mr. Dixon's harassing conduct. Ms. Venable requested a written statement from Ms. Goff so that she could begin an investigation. The next day, Ms. Goff submitted a typed statement accusing Mr. Dixon of staring at her constantly, whispering in her ear that he liked her breasts and wished she would wear sexier blouses, and sending messages asking her to wear sexier blouses. (Exh. 1, Def's App.). Ms. Goff also stated, "I believe I have told every thing I can think of at this time." Id. On October 9, 1996, Plaintiff submitted another written statement, claiming that on the previous day, Mr. Dixon had "rubbed up against" her. (Exh. 2, Def's App.). According to Plaintiff's deposition testimony, on October 7, 1996, Mr. Dixon allegedly told her that "he could take me on the back country road and f**k me. He said he could eat my p***y." (Pl's Depo at 21).
Regardless of whether or not the foregoing statements and actions were sufficiently pervasive or severe to create a hostile work environment, the Court finds that as a matter of law, Defendant responded with a prompt, remedial measure so as to preclude liability under Title VII.
Where an employer takes prompt action upon learning of alleged sexual harassment by a nonsupervisory employee, the employer is not liable under Title VII. Carmon v. Lubrizol Corp., 17 F.3d 791, 793 (5th Cir. 1994). Generally, an employer satisfies the prompt remedial action requirement if it took the allegation seriously, it conducted a prompt and thorough investigation, and it immediately implemented remedial and disciplinary measures based on the results of such investigation. See Waymire v. Harris County, 86 F.3d 424, 428 (5th Cir. 1996) (quoting Carmon v. Lubrizol Corp., 17 F.3d 791, 795 (5th Cir. 1994)). However, whether the employer's response is an appropriate remedial action will necessarily depend upon the particular facts of the case and the effectiveness of the remedial steps. See Hirras v. National R.R. Passenger Corp, 95 F.3d 396, 399-400 (5th Cir 1996); Waltman v. International Paper Co., 875 F.2d 468, 479 (5th Cir. 1989).
In the current instance, Ms. Venable responded seriously and promptly to Ms. Goff's report of sexual harassment. As Plaintiff acknowledged in her deposition, within two days Ms. Venable interviewed employees identified by Plaintiff as witnesses to the alleged harassment, including Bobby Ray Dixon, Johnny Weaver, Nathan Webb, Matthew Webb, Tammy Sheffield, and Linda Roybal (Pl's Depo. at 54). On October 11, she provided a copy of each employee's statement to Ms. Goff. Id. Although Ms. Venable alleges that the investigation did not produce any corroboration of Ms. Goff's allegations, she still offered to transfer Ms. Goff out of Mr. Dixon's department — an offer that Ms. Goff accepted and appreciated. (Pl's Depo. at 63) Under the circumstances, the Court finds Defendant acted promptly to remedy the situation. See Nash v. Electrospace Sys., Inc., 9 F.3d 401, 404 (5th Cir. 1993) (finding employer not liable for hostile work environment claims where employer completed an investigation within one week of employee's complaints and transferred employee to another department to separate her from the alleged harassment even though the investigation did not uncover any evidence to substantiate her claims). Therefore, Plaintiff's allegations about Mr. Dixon's behavior cannot form the basis of her hostile work environment claim.
A few weeks after the investigation, Mr. Dixon ceased working for Defendant: however, parties do not indicate that his departure in any way related to Ms. Goff's claims or Ms. Venable's subsequent investigation.
Despite the actual existence of sexual harassment, an investigation may shield an employer from Title VII liability even where investigation turned up no evidence of harassment if made in good faith. See Harris v. L L Wings, Inc., 132 F.3d 978 (4th Cir. 1997). Plaintiff presented no evidence of bad faith in Ms. Venable's actual execution of the investigation.
2. Tracy Morrison
Plaintiff claims that in March 1997, Tracy Morrison began to ask her out on a date and gave her his beeper number even though he knew that she was married. (Pl' Depo. at 77). Mr. Morrison allegedly commented on Ms. Goff's cleavage, asked her to wear sexier blouses, and stated that he also wanted to take her out on the country road and f**k her all night long. (Pl's Depo. at 80). She also alleges that while the two of them were hidden from view behind some boxes, Mr. Morrison touched her breasts and her buttocks. (Pl's Depo. at 77, 81). Plaintiff testified Mr. Morrison touched her buttocks twice. (Pl's Depo. at 100). The first time, she turned her back to him while stacking boxes, and he allegedly grabbed her buttocks for a "just a second", then let her go and said "nice butt." Id. She told him to leave her alone, but she did not report his behavior to any supervisor or manager. When asked to describe the next time he touched her, she testified "[i]t's just an ongoing thing, weekly by weekly. I can't really recall. I really can't. All I know it was a good five or six times. It's been so long ago." (Pl's Depo. at 101). She did not provide any details regarding the incident where he allegedly grabbed her breast. Plaintiff's allegations satisfy the first three prongs of the hostile environment claim; however, she fails to sufficiently meet the fourth and fifth required elements.
The Court will assume that Plaintiff's charges are both pervasive and severe. For purposes of this motion, the Court also finds a fact issue exists as to whether the alleged conduct affected a term of her employment. Defendant argues that Mr. Morrison's alleged actions did not cause Ms. Goff to seek other employment, prevent her advancement, or prevent her from attending and performing at work. However, Plaintiff testified to taking Aleve in order to deal with the stress she suffered at work due to Mr. Morrison's behavior. Moreover, if the sexual harassment did in fact occur, the humihation and stress associated with the unwanted touching would be enough to satisfy this element.
The Court expresses reservation due to the very brief period of time, three weeks, in which the alleged actions occurred. The pervasiveness requirement is even more unlikely to be met because Plaintiff did not work with Mr. Morrison dining every day of the three week period. (Pl's Depo. at 81) (stating that some days she worked with several other women soldering speaker wires so that Mr. Morrison did not approach her). Moreover, the lack of details and nonspecificity about the unwanted physical touches creates a degree of skepticism of whether Plaintiff's testimony actually creates a substantial question of fact about the issue. Regardless, at this procedural stage, the Court must take all facts in the light most favorable to the non-movant.
Plaintiff also met her summary judgment burden of demonstrating Defendant failed to appropriately respond to her complaint. Plaintiff claims that when she made her first report against Mr. Dixon in October 1996, Ms. Venable threatened to fire her if she should ever make any other report of discrimination. This perceived threat prevented her from then reporting Mr. Morrison's behavior to Ms. Venable. Court found no case law establishing fear of termination as an exemption from requiring plaintiffs to demonstrate that the defendant knew or should have known about the harassment. The employee manual lists several people who the employee should approach if ever dissatisfied with their treatment. See "You and Your Supervisor. . . . "Let's Talk About It", Exh. B, Def's App. Plaintiff could have gone to others in the company to complain. In fact, Plaintiff makes several references in her deposition to fellow co-workers and supervisors whom she considered to be good people to whom she could have complained. (Pl's Depo. at 67) (describing Wayne McNutt, the plant manager to whom her first complaint of sexual harassment was addressed, as a wonderful person); (Pl's Depo. at 148) (describing how she passed around a book at work to collect everyone's addresses to send Christmas cards and saying there are a lot of sweet people who work for Defendant).
During her deposition, the following line of questioning occurred about Ms. Venable's alleged threat made on the same day as Plaintiff received her transfer from Mr. Morrison's department:
Q: What specilically did Ms. Venable say to you?
A: She told me to stop coming in and complaining. That the same door I came in, I would be going out. Maybe you can figure that out.
Q: All right. What did you interpret that to mean?
A: Keep coming to her and complaining about stuff, you're gone. Pure and simple.
Q. But she didn't specifically say that'?
A: No, sir.
(Pl's Depo. at 68-69).
According to Plaintiff's allegations, Mr. Morrison made his comments in secret and touched her while in the seclusion of the stacks of boxes. (Pl's Depo. at 81). She does not claim that anyone saw or heard the offending behavior. However, she alleges to have reported his behavior on March 25, 1997, the day before she received her suspension. As stated infra, there is a question as to whether Ms. Venable suspended Ms. Goff in retaliation for her complaint. This creates a fact issue as to whether Defendant responded appropriately to Ms. Goff's sexual harassment complaint. An employer cannot avoid liability for hostile work environment by immediately terminating the complaining employee. While this approach is sure to satisfy the prompt and effective requirements, it is not an appropriate remedial response within the meaning of cases such as Hirras v. National RR Passenger, Corp., 95 F.3d 396, 399-400 (5th Cir. 1996). Accordingly, the Court DENIES Defendant's Motion for Summary Judgment with regard to Plaintiff's claim of hostile work environment.
B. Retaliation
Under Fifth Circuit law, Plaintiff must prove three elements to carry her retaliation claim. (I) that she has engaged in activity protected by Title VII; (2) that Defendant took adverse employment action against her; and (3) that a causal connection exists between the protected activity and the adverse employment action. Burger v. Central Apartment Mgmt., Inc., 168 F.3d 875, 878 (5th Cir. 1999). Goff's retaliation claim is subject to the burden-shifting analysis expounded in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), and St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Therefore, once a plaintiff makes the prima facie showing of retaliation, the burden then shifts to the defendant to produce a legitimate, nonretaliatory reason for the adverse employment action. Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). If the defendant meets this burden, then the plaintiff must adduce sufficient evidence that would permit a reasonable trier of fact to find that the proffered reason is pretext for retaliation. Id. At all times, the ultimate issue in a retaliation case remains whether the protected conduct was a "but for" cause of the adverse employment decision. McDaniel v. Temple Indep. Sch. Dist., 770 F.3d 1340, 1346 (5th Cir. 1985). Even if the employee's conduct is a "substantial element" in the employer's decision to terminate an employee, the employer escapes liability if it would have taken the same action irrespective of the protected activity. Long v. Eastfield College, 88 F.3d 300, 305 n. 4 (5th Cir. 1996).
For purposes of this analysis, the Court must accept as true that Plaintiff reported Mr. Morrison's sexual harassment to Mr. Ivey on March 25, 1997, which satisfies the first requirement. Moreover, Plaintiffs termination obviously qualifies as an adverse employment decision, which satisfies the second requirement. The close timing between an employee's protected activity and an adverse action against her may provide the "causal connection" required to make out a prima facie case of retaliation. Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993). Here, Defendant suspended Plaintiff the day after she claims to have informed Mr. Ivey of the harassment. Plaintiff's evidence is sufficient to create an issue of fact as to each element of her prima facie case.
1. Defendant's Proffered Legitimate, Nonretaliatory Reason for Ms. Golf's Termination
Defendant claims to have fired Ms. Goff due to her substandard performance record and her involvement in three separate instances of disruptive behavior at work. Specifically, on February 18, 1997, Plaintiff received a verbal warning for substandard work due to her 50% production rate, which was well below the 85% minimum rate. (Exh. 6, Def's App.). She then received a written warning for three days of failing to meet the 85% minimum rate. (Exh. 7, Def's App.). According to the documentation prepared by Plaintiff, on March 7, 1997, her productivity rate was 60%, on March 10, 1997, it was 59%; and on March 11, 1997, it was 39%. Id.
On October 15, 1996, Ms. Venable approached Ms. Goff to discuss a situation involving her and three other employees. Tami and James Gilbert, estranged husband and wife, both worked for Defendant. Mr. Gilbert apparently began dating another co-worker, Linda Roybal. Ms. Goff was reprimanded for carrying information and questions between Ms. Gilbert and Ms. Roybal. Upon learning of the situation, Ms. Venable informed Plaintiff that her behavior was causing a disruption in the workplace and would not be tolerated. (Exh. B, Def's App.). On January 21, 1997, Plaintiff was again reprimanded for disruption in the workplace for passing a book among the employees requesting their home addresses. Id.
Plaintiff wrote a note to Ms. Gilbert dated October 15, 1996 that stated. "[Linda Royball said Jim told her he never really liked a fat woman and told her she is the right size." (Exh. 5. Defs App.)
The last instance of disruptive behavior occurred just at the time of her final suspension. Plaintiff's husband apparently followed Mr. Morrison in his car and flashed his lights at him until he pulled over. Plaintiff's husband then approached Mr. Morrison and confronted him about his treatment of Ms. Goff. Once he returned to work, Mr. Morrison reported the incident to Mr. Ivey, Ms. Goff's immediate supervisor. On March 25, 1997, Mr. Ivey approached Ms. Goff and asked whether there was anything she felt she needed to report about her and Mr. Morrison, to which she responded that there was nothing to report. (Pl's Depo at 115). She claims that about an hour later, she pulled Mr. Ivey aside and told him about Mr. Morrison's alleged harassment.
On March 26, 1997, Ms. Venable called Ms. Goff into her office and suspended her for three days, reserving the option to terminate her. On the suspension document, she identified the disruptive incident on March 25, 1997, as the reason for the suspension (Exh 4, Def's App). In her affidavit, Ms. Venable states that the suspension resulted from her previous disruptive behavior and the complaint by Mr. Morrison. (Venable Affidavit at 2, Exh. B, Def's App.). After reviewing her entire work history with her supervisors, the decision was made to terminate Ms. Goff. Id.
The company remarks on the suspension document reads in full, "[a]s of incident 03-25-97, Company again finds behavior disruptive and could have resulted in an unsafe issue with fellow employees."
The Court finds the Defendant identified a legitimate nonretaliatory reason for its adverse employment action against Ms. Goff. In order to survive summary judgment, Ms. Goff must now demonstrate that the identified reason was actually pretext for a retaliatory motive.
2. Ms. Golfs Evidence of Pretext
Although the close timing between Ms. Goff's protected activity and the adverse action against her may provide the "causal connection" required to make out a prima facie case of retaliation, Defendant offers a legitimate, nondiscriminatory reason that explains both the adverse action and the timing. Therefore, Ms. Goff must offer some other evidence from which the jury may infer that retaliation was the real motive.
Although Ms. Venable denies knowledge of Plaintiff's sexual harassment complaint against Mr. Morrison until after she called Ms. Goff into her office, the evidence creates a question of credibility and fact that must be reserved for the jury. See Carroll v. Metropolitan Ins. Annuity Co., 166 F.3d 802, 804 (5th Cir. 1999). Ms. Goff testified that Ms. Venable explicitly mentioned the allegations against Mr. Morrison during the meeting in which she received the suspension. Specifically, Ms. Goff testified,
[Ms. Venable] said, well, I told you not to come back in here again. I says, well, why am I in here now? She said, well it's a rumor about you and Tracy Morrison saying that Tracy Morrison is sexually harassing you. She said, I'm not going to tolerate that. She said, I'm not going to put up with that.
(Pl's Depo. at 117). According to Plaintiff's claims, Ms. Venable simply carried out her previously made threat to fire Ms. Goff should she ever again complain about sexual harassment. Moreover, each of the conduct and performance warnings were received by Ms. Goff after her initial complaint against Mr. Dixon. Although much of Plaintiff's testimony is questionable, it creates a fact issue as to whether Defendant would have fired her but for her protected activity.
CONCLUSION
For the reasons stated herein, the Court GRANTS Defendant's Motion for Summary Judgment as to Plaintiff's claims of hostile work environment based upon Mr. Dixon's action; DENIES Defendant's Motion for Summary Judgment as to Plaintiff's claims of hostile work environment based upon Mr. Morrison's action; and DENIES Defendant's Motion for Summary Judgment as to Plaintiff's claims for retaliation.