Opinion
CA 3:99-CV-2245-R
January 31, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff Martha C. Justice (" Ms. Justice") asserts claims against Defendant Johnson Johnson Medical, Inc. ("JJM") for: (1) sexual harassment in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e, et seq.; (2) sexual discrimination in violation of Title VII; (3) retaliation in violation of Title VII; (4) disability discrimination in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq.; and (5) intentional infliction of emotional distress. Now before this Court is Defendant's Motion for Summary Judgment, filed August 21, 2000. For the reasons stated below, Defendant's motion is GRANTED in part and DENIED in part.
I. BACKGROUND FACTS
This case involves alleged discrimination against a temporary worker contracted to work at JJM from April, 1996 through April, 1999. In April, 1996, JJM contracted with Ms. Justice's employer, PI Systems, to have Ms. Justice work at JJM's technical help desk. Her duties included answering the telephone and giving computer-related support to JJM's employees. Ms. Justice's first allegation of sexual discrimination occurred at an undetermined time shortly thereafter, against another contract worker who made rude and offensive comments to her. At that time, Ms. Justice made no formal complaints to either employer (PI Systems or JJM), and she continued to work at the help desk without further incident until November, 1996, when she transferred to the Information Management ("IM") department to fill a purchasing position.
During her first year at the IM department, Ms. Justice experienced several incidents of sexual harassment. She issued her first official sexual harassment complaint in September, 1997 about allegedly inappropriate conduct by her manager, Bill Culhane. JJM's documented investigation into the complaint found no evidence to support her allegations. During that same time period, coworker Joe Castillo began pressuring her for dates. When she refused him, Mr. Castillo became verbally abusive and hostile to her, and continued to do so through November, 1998.
In late 1997, Ms. Justice began working with manager Erika Varnish, who made inappropriate comments to Ms. Justice about how to succeed as a woman at JJM. Among others, these comments included advice to hike up her skirt and wear more revealing clothing, as well as to have sex with employees to secure her contract. Ms. Varnish made one such comment in a meeting in which Justice, a vendor, and another manager, Ralph Koller were present, during which Ms. Varnish requested that the vendor provide attractive women to conduct field training for JJM's sales force to "keep the meeting interesting because most of the sales people where men." On or about this same time, Ms. Justice complained of a fourth incident in which co-worker Walter Howell sent sexually explicit emails to her. In early 1998, Ms. Justice complained of a fifth incident concerning supervisor Dan Soloman, who allegedly stared at Ms. Justice's chest when speaking and caused Ms. Justice to believe Mr. Soloman was talking to her breasts, rather than to her. With the possible exception of Joe Castillo's abusive behavior, all of these events occurred prior to August of 1998. Other than her complaint against Mr. Culhane, Ms. Justice did not officially report any of these incidents to management at JJM, or PI Systems.
At an unidentified time between late 1997 and mid November of 1998, Ms. Justice experienced more harassing behavior from JJM employees. First, her supervisor in the IM department, Doug Philips, acted inappropriately by sending her to meet with vendor Sean Stubenson at an offsite meeting, who then offered to form a romantic liaison with her. When Ms. Justice refused his advances after expressing that his behavior was inappropriate, Mr. Stubenson became hostile and verbally abusive, threatened to have her fired, and also told her that Mr. Philips had only sent Ms. Justice to the meeting as a favor to Mr. Stubenson, who was recently divorced. During that time period, Randy Chapin, another JJM manager, treated Ms. Justice "like a stripper" by stuffing dollar bills into her pants in the company hallway.
On December 1, 1998, Ms. Justice left the IM department for a position in Process Excellence ("PE") at the urging of PE manager Scott Lovin ("Mr. Lovin"), who recruited Ms. Justice to work on an ACCESS database that the department used to track the status of its various projects. While the parties agree that Ms. Justice was forthcoming on her lack of experience and training in database development, the parties dispute the nature of the discussions between Ms. Justice and Mr. Lovin regarding the specific skills the positions required. Ms. Justice claims that Mr. Lovin had assured her that she would both receive training on Microsoft ACCESS databases and that she would only have to learn to manipulate them, as opposed to creating a new database. While JJM concedes that Mr. Lovin knew she had no previous training on ACCESS, they argue that Ms. Justice was aware that she would have to master a new skill set in database development to complete her new job. As evidence, JJM points to the training and peer support they provided for Ms. Justice by appointing managers Sherry Zapinski and Ruth Voor as Ms. Justice's mentors, in accordance with JJM's Women in Leadership program. While JJM contends that developing a database was always an intrinsic part of Ms. Justice's job description at Project Excellence, Ms. Justice maintains that the creation of a non-existing database was not mentioned at the time she accepted the position.
In late December, 1998, relations between Ms. Justice and her supervisor Scott Lovin declined, and once again the parties dispute the underlying causes of the relationship's failure. According to Ms. Justice, Mr. Lovin asked her to accompany him for the weekend to attend a martial arts class being held in Waco, which she refused. After her refusal, Ms. Justice maintains that Mr. Lovin became hostile and verbally abusive towards her, and that he retaliated against her by changing the duties for which she was responsible regarding the database project, now expecting that she would be responsible for developing the database, in addition to maintaining it. Ms. Justice also claims that she sought the advice of Bill Fender, Mr. Lovin's immediate supervisor, regarding Lovin's allegedly retaliatory and hostile reaction, but she claims that Fender did nothing but urge her to do the best job she could do.
In response, JJM maintains that Mr. Lovin merely gave Ms. Justice information about the class, or at most, told her that she could attend the class along with Mr. Lovin and his wife, but that he did not intend the invitation as a sexual proposition. Also, JJM argues that it was Ms. Justice who caused the strain in her working relationship with Mr. Lovin beginning in December, 1998. First, JJM contends that after providing Ms. Justice adequate training in her new job, she herself decided that she could not build the necessary database development skills required to complete her position with Project Excellence. Second, JJM argues that instead of addressing her concerns about her lack of skills with Mr. Lovin, she approached other managers and complained about Lovin's allegedly unreasonable expectations, and thus refused to communicate openly with her supervisor against Company policy. Third, JJM claims that any and all hostility directed at Ms. Justice resulted from her poor performance and unreliable attendance that occurred throughout February of 1999. According to Mr. Lovin, Ms. Justice agreed to a ninety day window in which to complete the database project when she transferred to the department mid November, 1998, placing the deadline in early March, 1999. JJM claims that Ms. Justice's attendance and failure to make progress toward completion by the deadline strained the Lovin / Justice working relationship, which was further exacerbated when Mr. Lovin began questioning the contracting agency for the high hourly rate he paid for Ms. Justice's time. Taken together, JJM contends that Lovin's hostility, if any, solely concerned the lack of progress for which his department was paying Ms. Justice thirty dollars per hour, and was not related to her gender.
Justice also complains of co-worker harassment occurring in late 1998 or early 1999 in which co-worker Victor Rodriquez allegedly made sexually offensive gestures with his tongue toward Ms. Justice in a meeting. JJM, while disputing the sexual nature of the gesture, contends that Sherry Zapinsky, Ms. Justice's assigned mentor, immediately called Mr. Rodriquez and reprimanded him for his misconduct. While JJM's files are devoid of any official reprimand or sanctions in response to Mr. Rodriquez's misconduct, Ms. Zapinsky scheduled a meeting between Ms. Justice and human resources manager Michael Thomas to discuss the incident, which Ms. Justice reluctantly went to on January 11, 1999.
During the meeting, Ms. Justice did tell Mr. Thomas about her complaint about Mr.
Rodriquez. After voicing her concerns about the Rodriquez incident and repeating her allegations concerning Bill Culhune, she also shared second hand information about the unrelated allegations of inappropriate business practices in the IM department. Then, Mr. Thomas proposed that they meet again on January 15, and he suggested that Ms. Justice reduce her complaints to writing and that she note specific instances of discrimination or harassment, including times, dates, and places, which Ms. Justice refused to do. Ms. Justice did not raise any concerns about supervisor Lovin's behavior to Mr. Thomas at that time.
Both parties agree that Mr. Lovin had warned Ms. Justice not to go talk to Thomas "on his dime." Ms. Justice further claims that when she informed Mr. Lovin that she was meeting with Mr. Thomas, Mr. Lovin specifically told her "don't go to HR. If you go to HR, you are only going to get yourself fired." On learning that Ms. Justice did, in fact, go to talk to HR, Mr. Lovin confronted both Mr. Thomas and Ms. Justice in an angry manner. According to Ms. Justice, Mr. Lovin continued to warn her not to waste time in HR and that he used profanity and derisive remarks when he talked about the subsequent HR investigations of her harassment complaints in January and February of 1999. Specifically, Ms. Justice contends that during this time period, Mr. Lovin also asked her if she felt guilty for being attractive, and belittled her in front of others by stating out loud that he did not know why JJM continued to employ Ms. Justice. While JJM admits that tension existed between Mr. Lovin and Ms. Justice, they argue that these issues solely stemmed from Mr. Lovin's increased awareness that Ms. Justice was not meeting even the minimum requirements of the position, including attendance, during the same time period.
In his deposition, Mr. Thomas affirmed the fact that Mr. Lovin was furious about HR's involvement with his employee and that HR ought to notify him any time human resources representatives talked to Ms. Justice.
On March 22, Ms. Justice officially complained to JJM about the allegedly sexually offensive behavior of another co-worker, security guard Bill Jones, in the Arlington plant. Her allegations included that he used pet names for the women and made comments about putting cameras in the women's restrooms. Elton Spencer, Mr. Jones' supervisor, received Ms. Justice's statement and complaint, as well as the statements and complaints of four other female employees, and he removed Jones from the facility before the end of the month.
On March 25, Ms. Justice received an email requesting her attendance at a "Violence Against Women" workshop that JJM provides as training for its workforce. When Mr. Lovin discovered that Ms. Justice attended the workshop, he became furious, interrupted the workshop, and forced Ms. Justice to return to her department. This incident allegedly prompted to Mr. Lovin discuss his concerns about Ms. Justice's past performance problems and lack of consistent attendance with Mr. Thomas on March 26. According to his deposition, Mr. Thomas then advised Mr. Lovin to document these concerns in writing. Mr. Lovin did so that day, and for the first time, he documented warnings that he supposedly gave Justice about her performance and attendance during late January and February. Ms. Justice contends that he never gave her any official warnings during these months, other than acting in a consistently hostile and derogatory manner.
On March 30, two months after their original meeting, Mr. Thomas wrote Ms. Justice a letter that formally closed JJM's investigation into Ms. Justice's January 11 allegations. The letter stated that Ms. Justice had refused to put her complaints in writing and that this refusal hampered any investigation that JJM might attempt. Furthermore, the letter stipulated that Ms.
Justice had no complaints against any current JJM employees. On April 2, Mr. Thomas hand-delivered the letter to Ms. Justice. Upon reading the letter, Ms. Justice erupted, accusing Mr. Thomas of lying and misrepresenting her complaint. Because she perceived the letter as a denial of responsibility for handling any of her sexual harassment complaints as well as being a refusal to correct any coworker misconduct, Ms. Justice claims that her admittedly disruptive conduct on April 2 was a cumulative "buildup" of frustration at her perceived disinterest on the part of JJM in response to her complaints. Specifically, she argues that while she was expecting an apology for Mr. Lovin's behavior at the Violence Against Women workshop, as promised by manager Elton Spencer, she was instead presented with what she considered an intentional misrepresentation of her harassment complaints. Ms. Justice also contends that her reaction was normal as compared to JJM's general acceptance of profanity and outburst, as demonstrated by Mr. Lovin's confrontation with Mr. Thomas. Once Ms. Justice had raised her voice and begun cursing the human resources manager, Thomas with the assistance of Bill Fender, escorted Justice out of the building, and sent her home to "calm down."
This letter did include an affirmative offer to address any of Justice's concerns that she was willing to come forward and document in writing because the company stated that it wanted to enforce its "strict policy on Harassment."
On April 6, Mr. Lovin, Mr. Thomas, and Mr. Fender met to discuss Ms. Justice's termination. Mr. Thomas recommended to Susan McTavish, head of human resources, that JJM terminate Ms. Justice's employment contract because of her poor performance in Project Excellence and her insubordinate conduct on April 2. Based on this report, Ms. McTavish and Bill Griffin, Fender's immediate supervisor and vice-president, agreed to terminate Ms. Justice. The same day, Mr. Lovin and Mr. Thomas met with a representative of Ms. Justice's employment agency to discuss her termination, and offered three reasons for their decision: 1) inappropriate purchases, including an unauthorized pager and palm pilot; 2) poor performance and poor attendance, that likely would be exacerbated by Justice's "medical condition;" and 3) inappropriate office conduct on April 2. At no prior documented time had Ms. Justice been accused of any unauthorized purchases. The JAS Systems representative noted his surprise at the decision, citing Justice's past positive performance reviews and the lack of previous documented complaints of Ms. Justice's behavior by JJM. Mr. Thomas, while questioning whether the JAS Systems representative ever mentioned the reviews during the meeting, confirmed in his deposition testimony that Ms. Justice's threefold pay raises from $7.00 per hour to $30.00 per hour was atypical of most contract workers and that it was indicative of positive performance.
At that time, Ms. Justice had switched temporary employment agencies from PI Systems to JAS Systems.
On June 18, 1999, Ms. Justice properly filed her complaint with the Equal Employment Opportunity Commission, and she received her statutory notice of right-to-sue after July 6, 1999. On October 1, 1999, Justice filed this timely complaint asserting claims for sexual harassment, sexualdiscrimination, and retaliation under Title VII, disability discrimination under the ADA, and intentional infliction of emotional distress.
II. LEGAL ANALYSIS.
JJM seeks summary judgment on all of Ms. Justice's claims. In response to Ms. Justice's sexual harassment claim, JJM first argues that the statute of limitations bars recovery on any incidents that occurred before August 22, 1998. Subsequently, JJM argues that the facts alleged in Ms. Justice's complaint that are not time-barred are insufficient to satisfy the requirements of Title VII. In response to Ms. Justice's claims of discrimination and retaliation, JJM asserts that Ms. Justice cannot a.) prove that she suffered the adverse employment action because of her sex, or b.) prove any connection between a protective activity and her dismissal. JJM also argues that Ms. Justice is not disabled as defined by the ADA, and that the adverse employment action Ms. Justice suffered was not related to any knowledge JJM possesses regarding Ms Justice's alleged disability. Finally, as to Ms. Justice's claims of intentional infliction of emotional distress, JJM contends that Ms. Justice fails to state facts alleging that JJM's conduct towards her was "extreme and outrageous," as required by Texas tort law. After discussing the relevant legal standard for deciding summary judgment motions in employment discrimination cases, each of these claims will be addressed below, in turn.
A. SUMMARY JUDGMENT STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure allows summary judgment only when there is no genuine issue as to any material fact 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, 106 S.Ct. 2548, 2552, (1986); Melton v. Teachers Ins. Annuity Ass'n. of Am., 114 F.3d 557, 559 (5th Cir. 1997). An issue is "material" if it involves a fact that might affect the outcome of the suit under governing law. See Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th Cir. 1994). The court must decide all reasonable doubts and inferences in the light most favorable to the party opposing the motion. See Walker v. Sears, Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988); Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). In addition, when both parties have submitted contradictory evidence, factual controversies are resolved in favor of the nonmovant. See Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion must be denied. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 250, (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. Where the nonmoving party bears the burden of proof on a claim upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that there is an absence of evidence to support the nonmoving party's case. See id. at 325. Once the moving party has satisfied this burden, the nonmoving party must go beyond the pleadings and by its own affidavits or by depositions, answers to interrogatories, and admissions on file set forth specific facts showing a genuine issue for trial. See id. at 324; Anderson, 477 U.S. at 256-57. Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex. 477 U.S. at 322.
Because cases involving claims of employment discrimination involve nebulous questions of motivation and intent, summary judgment is usually considered an inappropriate tool for resolving these claims. See Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). However, if the defendant is able to present strong evidence of a legitimate, nondiscriminatory reason for its actions and the plaintiff is unable to counter with additional evidence of pretext, summary judgment may properly be granted. See Enplanar. Inc. v. Marsh, 11 F.3d 1284, 1295 (5th Cir. 1994); Armstrong v. City of Dallas. 997 F.2d 62, 67 (5th Cir. 1993).
B. STATUTE OF LIMITATIONS
A Title VII plaintiff must file a charge with the EEOC within 300 days of the occurrence of the allegedly discriminatory act by his employer.See 42 U.S.C.A. § 2000e-5(e)(1) (1994); Griffin v. City of Dallas. 26 F.3d 610, 612-13 (5th Cir. 1994); Wilson v. Sysco Food Serv. of Dallas, Inc., 940 F. Supp. 1003, 1009 (N.D. Tex. 1996). The plaintiff is barred from recovering for allegedly discriminatory acts that fall outside of this limitations period, but evidence of the time-barred acts may be relevant to timely allegations of present discrimination. SeeUnited Air Lines, Inc. v. Evans, 431 U.S. 553 (1977): Ray v. Tandem Computers, Inc., 63 F.3d 429 (5th Cir. 1995). (citing Cortes v. Maxus Exploration Co., 977 F.2d 195 (5th Cir. 1992)).
In this case, Ms. Justice filed a complaint with the EEOC on June 18, 1999, so any timely discriminatory acts of which she complains must have occurred after August 22, 1998, 300 days prior to her complaint. The limitations period reduces Justice's recoverable sex discrimination claims to six acts of alleged sexual harassment, as well as sexual discrimination and retaliation in relation to her firing.
As the defendant bears the burden of proving the affirmative defense that the statute of limitations on individual claims has expired, this Court will consider Ms. Justice's claims of sexual harassment concerning coworker Joe Castillo and supervisors Randy Chapin and Doug Philips because no evidence provided by the defendant places the dates of each occurrence out of the limitations period. Moreover, Ms. Justice's allegations against coworkers, Victor Rodriquez, and Bill Jones involve conduct occurring after August 22, 1998. Lastly, the conduct of Scott Lovin in late 1998 and early 1999 regarding Ms. Justice's job duties and her eventual termination is not time-barred. There is no evidence to support Justice's claims that other acts occurred within the limitations time period.
Therefore, as a preliminary matter this Court GRANTS summary judgment to JJM as to any claims occurring before August 22, 1998. Furthermore, while this Court notes that while the claims not listed above are not actionable, evidence related to other time-barred claims may be relevant to determining whether any of the timely alleged acts of present discrimination constitute a violation of Title VII.
C. SEXUAL HARASSMENT CLAIMS
1. Current Legal Standards Governing Sexual Harassment Claims
In 1998, the Supreme Court of the United States eliminated the differentiation between "quid pro quo" sexual harassment and "hostile work environment" sexual harassment claims for the purposes of determining employer liability for supervisor harassment through its decisions in Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998) and Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998). At that time, the Court determined that this categorization, developed through Meritor v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 (1986) and Harris v. Forklift Systems. 510 U.S. 17, 114 S.Ct. 367 (1993), had outlived its usefulness. Specifically, "the Burlington Court found that `the labels quid pro quo and hostile work environment are [no longer] controlling for the purposes of establishing employer liability'" after noting that "the terms `quid pro quo' and `hostile work environment' do not appear in the relevant statute, 42 U.S.C 200(e)-2(a)(1)." Butler v. Independent School District. 161 F.3d 263 (5th Cir. 1998) (citing Burlington. 524 U.S at 752, 763-64). As a result of these cases, the Court's new focus on sexual harassment jurisprudence first differentiated between claims against co-workers and those against supervisors. While it remained consistent in its agency-principled approach to co-worker hostile environment claims, the Burlington court established a separate test for alleged supervisor harassment that "distinguished between two classes of cases; those in which `a supervisor takes a tangible employment action against the subordinate' and those where `the agency relation aids in commission of supervisor harassment which does not culminate in a tangible employment action." Butler. 161 F.3d
See, e.g., Watts v. the Kroger Company, 170 F.3d 505, 509, fn 3. ("In cases where the harasser is a co-worker, as opposed to a supervisor, the full test outlined in Jones v. Flagship International. 793 F.2d 714, 719-720 (5th Cir. 1986) in applicable." The Jones test will be explored more fully infra, p. 15
Thus, although both parties here have focused their arguments on whether or not Ms. Justice's claim can accurately be characterized as "quid pro quo," or "hostile work environment," this Court will instead analyze JJM's potential liability under Title VII for the conduct of its employers as Supreme Court precedent dictates. First, this Court will address Ms. Justice's claims of supervisor harassment that are not time-barred, namely, those against her direct supervisors Scott Lovin, Doug Philips and Randy Chapin under the stricter standard established inFaragher and Burlington. Next, this Court will turn to the claims Ms. Justice brings against her co-workers to determine whether or not sufficient evidence exists to survive summary judgment against the more rigorous, pre-Faragher/Burlington standard of employer liability for sexual harassment of one co-worker by another.
As previously stated, Ms. Justice was a contract worker for the duration of her employment at JJM. For the purposes of evaluating Ms. Justice's sexual harassment claims under Title VII, however, her status as a contract worker is irrelevant.
2. Supervisor Claims
Between 1986 and 1998, this Circuit utilized a standard five-prong test to determine whether or not a plaintiff had established a viable cause of action on a sexual harassment claim. See Jones v. Flagship International. 793 F.2d 714, 719-720 (5th Cir. 1986). Those prongs were:
1) The employee belongs to a protected group.
2) The employee was subject to unwelcome sexual harassment
3) The harassment complained of was based on sex
4) The harassment complained of affected a term, condition, or privilege of employment;
5.) Respondent superior, i.e. that the employer knew or should have known of the harassment in question and failed to take prompt remedial action.Burlington and Faragher changed this Circuit's approach to claims of sexual harassment by supervisors. "With the release of Burlington andFaragher. however, this test is modified so that employees bringing a Title VII sexual harassment case alleging that a supervisor with immediate or successively higher authority over the employee harassed the employee need only satisfy the first four elements of the test outlined above." Kroger, 170 F.3d at 509. The four prong test alone is sufficient when a tangible employment action is taken against an employee, such as Ms. Justice's firing in this case. In those cases when no tangible employment action is taken, "`a defending employer may raise an affirmative defense to liability or damages' . . . that affirmative defense consists of two prongs, both of which the employer must fulfill: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Kroger, 170 F.3d at 509-510 (citingFaragher, 524 U.S. 775).
Ms. Justice has asserted timely claims against her direct supervisor, Scott Lovin, as well as supervisors Randy Chapin and Doug Philips for sexual harassment. In order to properly analyze each of these claims, this Court must first determine the specific nature of the charges Ms. Justice wields against each supervisor. As previously stated, judicial treatment of supervisory conduct is distinguishable when a tangible employment action is taken against an employee and when it is not. "A tangible employment 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." Burlington, 524 U.S. at 761. In this case, Ms. Justice was ultimately fired at the recommendation of supervisor Scott Lovin, but she does not allege that supervisors Randy Chapin and Doug Philips were in any way connected with that employment decision, nor that they had any influence or say in that employment decision. Thus, this Court will first address whether or not Mr. Lovin's role in firing Ms. Justice was influenced by her "acceptance or rejection of [her supervisor's] sexual harassment." Casiano v. AT T Corp. 213 F.3d 278 (5th Cir. 2000). Next, the Court will determine whether or not Ms. Justice's maltreatment by supervisors Doug Philips, Randy Chapin, or Scott Lovin constitutes a "hostile working environment" as defined by Faragher, which provides the test for supervisory conduct that does not result in an ultimate employment action,
In Casiano v. AT T Corp., Judge Wiener proposes two different "tracks" of sexual harassment jurisprudence, and suggests that the primary question differentiating the two "tracks" is whether or not the employee has suffered a "tangible employment action." According to Judge Wiener's flowchart, provided with the opinion, an employee who has experienced a firing would have a "quid pro quo" case, and one who did not could only bring a "hostile environment" claim. "If he has [suffered a tangible employment action] his suit is classified as a `quid pro quo' case." Casiano. 213 F.3d at 283. In this case, Ms. Justice has been fired, yet the crux of her claim alleges harassing conduct on the part of supervisors that are unrelated to that firing — i.e., she largely suggests, with the possible exception of one incident, that JJM should be vicariously liable because certain supervisors created a hostile working environment. To complicate matters, she accuses one supervisor — Scott Lovin — of both traditional "quid pro quo" harassment as well as "hostile working environment" harassment. Following Casiano, it is difficult to then determine whether or not JJM is entitled to assert theFaragher affirmative defense with regards to Mr. Lovin's non-quid pro-quo behavior, which is the crux of Ms. Justice's claim against JJM. "As noted, this is the employer's only affirmative defense in a supervisor sexual harassment case post Ellerth/Faragher, and it is available only in a hostile environment situation; never in a quid pro quo case." Casiano, 213 F.3d at 284, n. 11. However, it is not clear that Judge Wiener intended this position when faced with a case involving multiple supervisors, some of whom had no control over the "ultimate employment action" against Ms. Justice. In an effort to defer to Judge Wiener's ruling on current Fifth Circuit sexual harassment jurisprudence, this Court will analyze each claim against each supervisor separately. In the case of Scott Lovin, because we find no nexus between the "tangible employment action" and the quid pro quo situation as described by Ms. Justice, infra, we will reject the "quid pro quo" analysis track with explanation, and then proceed with Ms. Justice's remaining claims related to Mr. Lovin along the "hostile work environment" track.
a.) Scott Lovin/Quid Pro Quo Claim.
In her pleadings, Ms. Justice asserts that Mr. Lovin's behavior towards her drastically changed when she refused to accompany him to a self-defense workshop in Waco, Texas for the weekend. According to Ms. Justice's deposition, Mr. Lovin requested her presence at this workshop at some time in November or December of 1998. "After [Ms. Justice] declined Mr. Lovin's invitation to the weekend practice of martial arts, his entire attitude towards me, my duties, and responsibilities changed remarkably." Justice Affidavit, p. 3 (App. 84). Regardless of Mr. Lovin's intentions with the invitation, however, a change in attitude, duties, and responsibilities does not constitute a "tangible employment action" as this Circuit has defined it. "Ultimate employment decisions include acts such as hiring, granting leave, discharging, promoting, and compensating." Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir 1997), cert denied 522 U.S. 932. Although Mr. Lovin's attitude towards Ms. Justice and her responsibilities may have changed, she was not fired, demoted, or reassigned at that time. "Such an action, in most cases, inflicts direct economic harm." Burlington, 524 U.S. at 761. In Ms. Justice's case, no such economic harm occurred following her rejection of Mr. Lovin's advances.
Instead, Ms. Justice's sole claim of quid-pro-quo harassment can only succeed if she can connect her ultimate firing to her rejection of Mr. Lovin's proposition. "`In a quid-pro-case,' the road branches toward a second stop at which the court must determine whether the tangible employment action suffered by the employee resulted from his acceptance or rejection of his supervisor's alleged sexual harassment." Casiano. 213 F.3d at 283. In our determination that no question of fact exists on whether or not Ms. Justice can prove this nexus, this Court relies on the following three factors; (1) Ms. Justice herself has directed this Court to analyze this claim "according to the hostile environment methodology" and thus does not appear to directly accuse Mr. Lovin of quid pro quo harassment; (2) Ms. Justice's deposition does not indicate that she believes her rejection of the Waco weekend was related to the reasons she was fired; (3) Ms. Justice's affidavit does not explicitly state that she believed Mr. Lovin's weekend proposition was a direct sexual proposition, and if she had stated such a proposition, that statement would have been inconsistent with her deposition testimony. Thus, this Court grants summary judgment to JJM on all claims and potential claims Ms. Justice brings regarding traditional "quid-pro-quo" harassment.
b.) Supervisory Hostile Work Environment Claims.
As previously stated, Ms. Justice may also establish her claim by utilizing the Jones test to establish that discrimination based on sex on the part of managers Doug Philips, Randy Chapin, and Scott Lovin has created a hostile or abusive working environment. "Courts determine whether an environment is sufficiently abusive to be actionable under Title VII by reviewing all of the relevant circumstances, including the frequency of the conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with the employee's work performance." Pfeil v. Intecom Telecommunications, 90 F. Supp. 2s 742, 749 (N.D. Tex. 2000) (citing Butler, 161 F.3d at 269.) Moreover, "Title VII is intended only to prohibit and prevent conduct `that is so severe and pervasive that it destroys a protected class member's opportunity to succeed in the workplace." Shepard v. Comptroller of Public Accounts in the State of Texas, 168 F.3d 871, 874 (5th Cir. 1999) (citing Weller v. Citation Oil Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996). As Ms. Justice evidence regarding each supervisor cannot meet prongs two, three, or four of the Jones test, her claims of supervisory sexual harassment must be dismissed.
Once again, prongs two, three and four of the Jones test requires that plaintiff to show that she was subject to unwelcome sexual harassment, that the harassment complained of was based on sex, and that the sexual harassment she suffered" affected a term, condition, or privilege of employment." Jones, 793 F.2d at 719-720.
Although the actions by supervisors Doug Phillips (who set up a meeting for Justice in an effort to "set up" a vendor romantically) and Randy Chapin (who stuffed dollar bills into Justice's pants) were certainly offensive and done in objectively poor taste, they were not frequent enough, nor severe enough to interfere with Ms. Justice's opportunity to succeed in the workplace. Isolated incidents, unless extremely serious, are insufficient to relay that an employer has altered the terms or conditions of one's employment. See Shepard, 168 F.3d at 874 (citing Faragher. 524 U.S. 775) (citation omitted). The conduct exhibited by these supervisors is insufficent to establish that Ms. Justice's workplace was a consistently hostile one.
See Pfeil, 90 F. Supp at 749. ("Incidental or occasional sexual comments, discourtesy, rudeness, or isolated incidents (unless extremely serious) are not discriminatory changes in the terms and conditions of a worker's employment.")
With regards to Mr. Lovin, Ms. Justice's hostile work environment claims fail both prongs two and four of the Jones test. Ms. Justice claims that Mr. Lovin made her environment exceedingly hostile by "asking if she felt badly for being attractive," "telling her she was in danger of physical attack" and "giving her books on self defense." This behavior is not "harassment, in and of itself" as Ms. Justice claims; in this Circuit, such behavior is not sexual harassment at all. Mr. Lovin may have become increasingly hostile towards her work product, and he may have made inquiries into her timecards that upset Ms. Justice. The two may have developed a poor working relationship over time. However, "Title VII is not a general civility code." Faragher, 524 U.S. at 788. "Sexual harassment by definition means `unwelcome sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature.'" Pfeil 90 F. Supp at 748 (citing Meritor. 477 U.S. at 65.) Ms Justice has not levied such accusations against Mr. Lovin.
Moreover, Ms. Justice has offered no proof on how Mr. Lovin's behavior affected a term or condition of employment. Although Ms. Justice does allege that Mr. Lovin changed her responsibilities at Project Excellence, she fails to offer a causal connection between those changed terms and any comments made by Mr. Lovin's that are either of a sexual nature or that indicate gender discrimination. Her claims of vicarious liability due to supervisor harassment thus fail. As Ms. Justice cannot meet the first four requirements of Jones, we need not address the parties contentions regarding the Faragher/Burlington affirmative defense (prong five).
3. Non-Supervisor Claims
Ms. Justice also asserts claims against JJM for alleged indifference to sexual harassment she suffered at the hands of co-workers. Specifically, three actionable incidents fall within the statute of limitations to support this claim; Joe Castillo's behavior pressuring the plaintiff for dates through November of 1998; Victor Rodriguez's tongue gesture in November of 1998, and the comments made by security guard Bill Jones in December of 1998. In this Circuit, claims of sexual harassment in the workplace by co-workers must be analyzed under the standard the Court established in Jones v. Flagship International, 793 F.2d 714 (5th Cir. 1986.) See, e.g., Watts v. The Kroger Company, 170 F.3d 505, 509, fn. 3 (5th Cir. 1999) ("Where the harasser is a co-worker as opposed to a supervisor, the full test outlined in Jones is applicable.") Unlike the test outlined for claims of sexual harassment against supervisors, supra, employer liability for co-worker harassment is evaluated on a negligence standard. See Williamson v. City of Houston, 148 F.3d 462, 464-465 (1998) (noting that both before and after Faragher all Circuits have uniformly applied a negligence standard to co-worker harassment cases.)
As with all Title VII claims involving sexual harassment, the first four prongs of the Faragher/Burlington test, discussed supra, must still be met regarding the specific claims against non-supervisory employees. However, in co-worker harassment Title VII claims the additional fifth and final factor in this pre-Faragher test remains in place, thus requiring the plaintiff to prove that the employer was negligently indifference to harassment that it reasonable should have known about. "An employer may be liable for sexual harassment if it `knew or should have known of the harassment in question and failed to take remedial action.' . . . an employer is negligent with respect to sexual harassment if it knew about the conduct and failed to stop it." Sharp v. City of Houston, 164 F.3d 923, 929 (citing Burlington, 118 S.Ct. at 2267.) Thus, in order to survive summary judgment on this claim, Ms Justice must prove a genuine question of material fact exists in two ways; first, that her co-workers' harassment was so severe or pervasive that it altered the conditions of her working environment (prong four of the test) and second, that JJM should have been aware that the harassment existed, yet failed to remedy the situation (prong five).
See Kroger, 170 F.3d at 509. (outlining the five factor test). For the purposes of evaluating the legal viability of Ms. Justice's coworker-based sexual harassment claim, we find that Ms. Justice has sufficiently met the summary judgment standard as to prongs one, two, and three of the five factor test outlined in Jones.
This Court finds that Ms. Justice's claims fails on both accounts. Even considering the evidence of past, unactionable claims set forth by Ms. Justice to bolster the two actionable incidents at hand, the fact pattern that she alleges does not rise to the level of a hostile work environment in this Circuit, as dictated in Butler and its prodigal cases, Shepard and Pfeil. "Incidental or occasional sexual comments, discourtesy, rudeness, or isolated incidents (unless extremely serious) are not discriminatory changes in the terms and conditions of a worker's employment." Pfeil 90 F. Supp at 749 (citing Butler, 161 F.3d at 269). Similarly, in Shepard, the Fifth Circuit determined that conduct must be severe in order to affect a term, condition, or privilege of employment. "Offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Shepard, 168 F.3d at 874. (citing Faragher, 524 U.S. 775 (1998)). As in this case, the plaintiff in Shepard experienced staring at her breasts and supervisors attempting to look up her skirt. However, in that case, the plaintiff also experienced unwanted touchings on multiple occasions, as well as more extensive requests for dates and sexual liaisons and direct comments about the shape and color of her breasts. As the Pfeil court found, "If the more offensive conduct in Shepard does not constitute an abusive or hostile working environment, a reasonable jury could not conclude that the conduct and statements of [either Mr. Jones, Mr. Castillo, or Mr. Rodriguez from this case] created an abusive or hostile working environment." Pfeil. 90 F. Supp at 749. As her claim now stands, Ms. Justice has simply not pled facts that rise to level of actionable sexual harassment in this Circuit.
Moreover, assuming arguendo that these facts were sufficient to state a claim, Ms. Justice has not successfully negated the prompt response of JJM to remedy the situations. JJM supervisor Zapinski reprimanded Victor Rodriguez, the perpetrator of the "tongue" gesture, and supervisor Elton Spencer removed security guard Jones from the JJM facility once he was aware of the complaints against him. In regards to Mr. Castillo, Ms. Justice did not put JJM on notice of any inappropriate behavior on his part through a documented claim, and apparently, the harassing comments eventually ceased. As these are the only three actionable examples of harassment that fall within the proper statute of limitations period, this Court finds that the response of JJM was sufficient in its attempt to mitigate Justice's discomfort. Justice's claims of co-worker harassment do not meet this Circuit's five prong test.
Thus, this court GRANTS summary judgment to JJM on each of Ms. Justice's sexual harassment claims, both against her former co-workers and each of her supervisors, at JJM.
E. Sexual Discrimination Claim
Title VII makes it illegal for an employer "to fail or refuse to hire or discharge any individual. . . . because of such individual's race, color, religion, sex, or national origin." 42 U.S.C.A § 2000e-2(a)(1) (1994). The basic framework for analyzing employment discrimination cases was laid out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973). A plaintiff can prove discrimination under Title VII by establishing a prima facie case, either by direct evidence, or indirectly through a series of shifting burdens of proof. See Williams v. Time Warner Operation Inc., 98 F.3d 179, 181 (5th Cir. 1996); Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992-993 (5th Cir. 1996.) Ms. Justice seeks to avoid summary judgment for her sex discrimination claim against JJM through both methods.
1. Direct Evidence Approach
Evaluating the facts in the light most favorably to Ms. Justice, this Court find no direct evidence that JJM discriminated against her on the basis of her gender that is not time-barred. "`Direct evidence is evidence which, if believed, proves the fact [of intentional discrimination] without inference or presumption.' In the context of Title VII, direct evidence includes any statement or written document showing a discriminatory motive on its face." Portis v. First National Bank of New Albany, MS, 34 F.3d 325 (5th Cir. 1994) (citing Brown v. East Miss. Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993). With the possible exception of her allegations that Mr. Lovin told Ms. Justice how to dress, which is not stated in her deposition testimony, none of the comments cited by Ms. Justice indicate Mr. Lovin discriminated against her on the basis of gender. The fact that Mr. Lovin appointed Ms. Justice a female mentor is obviously not direct evidence of discriminatory intent. The fact that Mr. Lovin told Ms. Justice how to rearrange her desk, belittled the tasks that she accomplished and directed menial work her way, commented on her appearance, prevented her from attending a meeting "on his dime" and acted in an overprotective manner may indicate that Mr. Lovin has extremely poor judgment as a manager. It does not, however, directly indicate gender animus on his part. Ms. Justice has produced no evidence that Mr. Lovin paid less for her work because she is a woman; nor that he told her she was less valuable to the company because she is a women, nor did he deny her company resources because she is a woman. These are the types of comments this Circuit deems as "direct evidence" of sexual discrimination. "Generalized testimony by an employee regarding his subjective belief that his discharge was the result of discrimination is insufficient to make an issue for the jury . . . on cross examination each [plaintiff] admitted that he was never told that age was a factor in his discharge." Elliot v. Group Medical Surgical Serv., 714 F.2d 556, 566 (5th Cir. 1983). As in the Elliot case, Ms. Justice does not allege that anyone at JJM told her she held an inferior status at the company because she is a woman. Her argument of direct evidence thus fails.
On page 157 of her deposition, Ms. Justice indicates that she had a conversation with Mr. Lovin about other individuals telling her how to dress when she visited the Sherman site. However, according to Ms. Justice, Mr. Lovin made no such comments. Rather, on page 158 of her deposition, Ms. Justice claims that Mr. Lovin indicated to her that "he wanted to make sure that nobody in his group acted that way with [Ms. Justice.] This comment directly negates her premise that Mr. Lovin actively discriminated against her on the basis of gender.
See Portis, 34 F.3d at 329.
See id.
See id
2. McDonnell-Douglas Burden Shifting Approach As Ms. Justice offers no valid direct evidence of sex discrimination, the Court will next consider her claim under the McDonnell-Douglas burden shifting approach. The plaintiff first bears the burden of proving a prima facie case of discrimination by a preponderance of the evidence. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993); McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the defendant "to articulate some legitimate, non-discriminatory reason for the employee's rejection." Id. Finally, the plaintiff must prove by a preponderance of the evidence that the defendant's proffered reasons were not valid, but instead are pretext for actual discriminatory intent. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). At this stage, "the scheme of shifting burdens and presumptions `simply drops out of the picture' and `the trier of fact proceeds to the ultimate questions: whether the plaintiff has proved `that the defendant intentionally discriminated against [her]' because of [her sex].'" Urbano v. Continental Airlines Inc., 138 F.3d 204, 206 (5th Cir. 1998) (citing St. Mary's Honor Center. 509 U.S. at 507).
a.) Prima Facie case
To establish a prima facie case of sex discrimination, the plaintiff must show: "1) she is a member of a protected class; 2) she was qualified for the position she lost; 3) she suffered an adverse employment action; and 4) that others similarly situated were more favorably treated."Urbano. 138 F.3d at 206. It is uncontested that JJM terminated Ms. Justice's assignment on April 6, 1998 and that Ms. Justice is a woman; thus, she meets the first and third prong of the McDonnell-Douglas test. In its motion, JJM argues that Ms. Justice cannot establish the second and fourth prong of her prima facie case. Assuming the facts most favorably to Ms. Justice, and considering the discrepancies in the deposition testimony about Ms.
Justice's original job description in Project Excellence, this Court will assume, for the purposes of summary judgment, that Ms. Justice has established a prima facie case,
b.) Legitimate Nondiscriminatory Reasons for Discharge
Once a plaintiff has established a prima facie case of discrimination, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the termination. See Burdine. 450 U.S. 248, 254. The defendant's burden of production is a light one, and "if the employer has produced any evidence `which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action,' then the employer has satisfied its burden." Thornton v. Neiman Marcus, 850 F. Supp. 538, 543 (N.D. Tex. 1994) (citing Hicks. 509 U.S. at 509.)
JJM argues several legitimate, nondiscriminatory reasons for terminating Ms. Justice. Most notably, JJM maintains that they fired Ms. Justice because she could not adequately perform her job, and Ms. Justice herself admits in her deposition testimony that ultimately, her position at Project Excellence was beyond her capabilities. Specifically, JJM argues that Ms. Justice did not pick up the training for Project Excellence as quickly as they had hoped, and was unable to meet designated project deadlines. In addition, JJM has cited her insubordinate conduct on April 2, general tardiness, and an inability to work effectively with managerial staff as reasons for her termination. JJM has satisfied its burden of production by alleging facts which, taken as true, would permit this Court to find that Ms. Justice's discharge was for legitimate, nondiscriminatory reasons.
c.) Pretext
Ms. Justice can still escape summary judgment by demonstrating that the reasons advanced by JJM for her termination are a mere pretext for discrimination. To withstand a summary judgment motion by raising a factual issue as to pretext, a plaintiff must present evidence establishing not only that the enunciated reasons for her discharge were false, but also that they operated as a pretext for discriminatory animus. See Hicks. 509 U.S. at 515. Thus, a plaintiff must go beyond merely refuting the nondiscriminatory reasons advanced by her employer to provide specific evidence of discrimination, "such as `direct' evidence of . . . discrimination, information about the [attributes] of other employees in plaintiff's position, the treatment and evaluation of other employees, or the employer's variation from standard evaluation practices." Bienkowski v. American Airlines Inc., 851 F.2d 1503, 1508 (5th Cir. 1988). The trier of fact cannot reasonably infer discriminatory intent unless the evidence put forth to rebut the employer's reasons is substantial. See Rhodes, 75 F.3d at 994. Therefore, Ms. Justice must provide substantial evidence of `sufficiently egregious' facts to overcome the inference that JJM's stated reasons for terminating her were not pretext for discrimination. Brown v. CSC Logic. Inc., 82 F.3d 651, 658 (5th Cir. 1996); see also Walton v. Bisco Indus., Inc., 119 F.3d 368, 371 (5th Cir. 1997) (stating that "the plaintiff [must] do more than simply negate the employer's proffered reasons." Such evidence "must be enough to support a reasonable inference that the proffered reason is false; a mere shadow of doubt is insufficient." EEOC v. Louisiana Office of Community Serv., 47 F.3d 1438, 1444 (5th Cir. 1995).
Here, Ms. Justice cannot demonstrate that JJM's proffered reasons for her termination are pretext for sexual discrimination. Although a fact dispute exists about whether or not Mr. Lovin originally misstated or changed Ms. Justice's responsibilities at Project Excellence, there is no evidence presented by Ms. Justice that gender animus prompted Mr. Lovin's behavior.
Moreover, the fact that Mr. Lovin began documenting his problems with Ms. Justice on March 26, rather than at the time they occurred, does not indicate that Mr. Lovin discriminated against Ms. Justice on the basis of her gender. To survive summary judgment on this issue, Ms. Justice must indicate that JJM's proffered reasons for her dismissal are pretext for sexual discrimination, not merely that the proffered reasons were insufficient to mandate her termination. While this Court seeks to prevent gender discrimination from occurring in the workplace, this Court will not scrutinize management decisions absent some showing by Ms. Justice that her gender was the reason Mr. Lovin waited to document complaints against her and/or changed his expectations for her in Project Excellence. As Ms. Justice has not presented any information to this effect, this Court GRANTS summary judgment to JJM for her sexual discrimination claims.
In her Response to Defendant's Motion for Summary Judgment, Ms. Justice cites Deffenbaugh-Williams v. Walmart Stores. Inc., 156 F.3d 581 (5th Cir. 1998) as supporting her proposition that JJM possessed a discriminatory motive for firing her. In that case, Ms. Justice writes that the Court utilized a two part test to determine if the plaintiff's participation in an interracial relationship was discriminatorily related to her firing; "1) whether the employer had knowledge of the relationship, and 2.) the proximity from the time the employer learned of the relationship until the employee was terminated." Upon review of Deffenbaugh. this Court is not convinced it has any relation to the case at hand. First, JJM was clearly aware of Ms. Justice's gender at the time she was hired. Second, the fact that Mr. Lovin knew that male employees at JJM "leered" at Ms. Justice when walking down the hall one January or February does not indicate that he recommended firing Ms. Justice that March because she is a woman. Nor can a rational connection be drawn that such a comment is pretext for his personal gender discrimination against her.
F. Retaliation Claim
The Fifth Circuit has held that the three-part McDonnell-Douglas test applied to Title VII disparate treatment cases is also applicable to Title VII unlawful retaliation cases. See Long v. Eastfield College. 88 F.3d 300, 304 (5th Cir. 1996); McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir. 1983). Accordingly, Ms. Justice must first establish a prima facie case of unlawful retaliation; JJM is then given the opportunity to articulate a legitimate, non-discriminatory reason for the adverse employment action; finally, Ms. Justice is given the opportunity to show that the Defendant's reason is a pretext for unlawful retaliation. See Long v. Eastfield College at 304-05.
1) Prima Facie Case
To establish a prima face case of retaliation under Title VII, Ms. Justice must show that (1) she engaged in activity protected by Title VII; (2) he suffered an adverse employment action; and (3) a causal connection exists between the protected activity and the adverse employment action. See Webb v. Cardiothoracic Surgery Assoc., 139 F.3d 532, 540 (5th Cir. 1998); Messer v. Meno. 130 F.3d 130, 140 (5th Cir. 1997);Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997).
Title VII provides that an employee has engaged in protected activity if she has (1) "opposed any practice made an unlawful employment practice by this subchapter," or (2) "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). The parties do not dispute whether Ms. Justice has set forth a proper prima facie case for retaliation here; Ms. Justice filed a sexual discrimination complaint with Mr. Thomas in JJM's human resources department, and shortly thereafter, she was fired. This is sufficient to establish a prima facie case. See Ray, 63 F.3d at 435.
2.) Legitimate, Nonretaliatory Reason
Once again, JJM articulates two non-retaliatory reasons for firing Ms. Justice; her poor work performance, including consistent tardiness, and her disruptive, insubordinate conduct on April 2, 1999. This Court finds that JJM meets its burden of production through these reasons to shift the McDonnell-Douglas burden back to Ms. Justice.
3.) "But For" Causation
We now turn to Ms. Justice's arguments "whether a jury could find that `but for' her complaints of sexual harassment, she would not have been ultimately discharged." Ray. 63 F.3d at 436. In consideration of all the evidence, evaluated most favorably to Ms. Justice, this Court concludes that it must deny summary judgment to JJM on Ms. Justice's retaliation claims.
Several facts support this Court's decision. First, Mr. Lovin, Ms. Justice's direct supervisor, admits that he specifically warned Ms. Justice to not go to human resources or she would be fired, and he then played a major role in the decision to fire her. This is direct evidence of pretext that specifically negates JJM's proffered reasons for the firing. Although JJM argues that "context is everything" and that Mr. Lovin was not aware Ms. Justice was specifically making sexual harassment charges at the time he made his comment, Mr. Lovin admits that he had engaged in private conversations with Ms. Justice about her sexual harassment incidents before the time Ms. Justice lodged her complaint. Therefore, JJM's assertions that Mr. Lovin "had no idea that the planned meeting [with Michael Thomas] might concern protected activity under Title VII" is not necessarily true. Mr. Lovin's deposition testimony is inconsistent in that he admits to having prior conversations with Ms. Justice on the topic of her perceptions of sexual harassment, while also claiming that he was shocked when Michael Thomas informed him that Ms. Justice had made an official complaint to human resources about sexual harassment. Even setting this inconsistency aside, at the very least Mr. Lovin's comment indicates that he believed a retaliatory intent existed at JJM in Ms. Justice's case in early 1999. A genuine question of material fact exists about the relative credibility of these two witnesses, and this question must be decided before a jury.
Moreover, it is undisputed that Mr. Lovin had a violently negative reaction to the news of Ms. Justice's meeting with Mr. Thomas — both confirmed by Mr. Thomas and Ms. Justice, and that Mr. Lovin warned Ms. Justice to stay away from human resources in what could be perceived by the jury as an intimidating manner. In regards to Ms. Justice's ultimate termination, Mr. Lovin began and completed his documentation about his complaints with Ms. Justice's work on March 26, 1998, six days prior to the day she was fired. In that documentation, Mr. Lovin referenced several incidents that had purportedly occurred in January and February of that year — despite the fact that he neither made any complaints about Ms. Justice to her temporary agency prior to the April 6, 1998 termination meeting with that agency, nor did he document any complaints about her prior to that time. All of Ms. Justice's prior reviews to her temporary agency had been above average.
One of those complaints indicated that Ms. Justice had made prior unauthorized purchases, and the nature of this complaint strongly indicates that some documentation should have existed at the time the alleged purchasing occurred.
Although JJM is correct in its argument that close proximity in timing between the protected activity and the ultimate employment action is insufficient to negate the employer's legitimate, nondiscriminatory reasons alone, the close timing in this case merely bolsters the direct and circumstantial evidence previously described. Specifically, Ms. Justice's outburst on April 2, 1999 was directly related to her perceived indifference on the part of JJM to her sexual harassment claims. Two business days later, after a brief meeting, Ms. Justice was fired at the recommendation of Mr. Lovin, whose weight in that decision-making process is not disputed. JJM has not successfully explained why Mr. Lovin both discouraged and thwarted Ms. Justice's efforts to utilize the grievance procedures of human resources by both actively intimidating her access attempts and verbally discouraging her from pursuing her claims, and has not effectively refuted Ms. Justice's direct evidence of pretext.
See Ray, 63 F.3d at 435; see also Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993).
Although any of these facts, standing alone, may not have met Ms. Justice's burden of production on "but-for" causation, together they show a triable question of fact about the real reason Ms. Justice was fired from JJM. Therefore, as to Ms. Justice's retaliation claims, this Court DENIES summary judgment to JJM.
G. ADA Claim
Ms. Justice also complains of disability discrimination under 42 U.S.C. § 12101 et seq. ("ADA"). Her complaint stems from the written notes her temporary employer made during the April 6, 1999 meeting with Mr. Lovin and Mr. Thomas in which JJM presented its reasons for terminating Ms. Justice's contract. According to these notes, Mr. Lovin and Mr. Thomas gave three reasons for dismissing Ms. Justice. First, they claimed that Ms. Justice's outburst amounted to insubordination. Second, they claimed that she had made unauthorized purchases. Third, they claimed that her performance and attendance record were substandard. As a part of this third reason, the notes indicate that Mr. Lovin and Mr. Thomas "had expressed their concerns that [Ms. Justice] has developed a medical condition that will further impact her ability to meet the deadlines." From her own conversations with Mr. Thomas and Mr. Lovin, Ms. Justice argues that this "medical condition" must be her heart condition called tachycardia, a condition caused by a rapid heart beat. Ms. Justice further argues that these notes indicate that JJM's decision to terminate her was discriminatorily influenced by the presence of her tachycardia.
The ADA will only protect a "qualified individual with a disability." 42 U.S.C. § 12112(a) (2000). A prima facie case under the ADA requires that a plaintiff show (1) that she is disabled, (2) that she is qualified for the position, and (3) that she suffered an adverse employment decision because of her disability. See Zenor, 176 F.3d at 852. As a threshold issue, the plaintiff must demonstrate that she is disabled under the statutory definition. The statute allows a plaintiff to qualify as disabled in three ways: if the plaintiff is actually disabled; if the plaintiff has a record of a disability; or if the plaintiff's employer regarded her as disabled. See 42 U.S.C. § 12102 (2)(A-C) (2000). Ms. Justice need only show a viable question of fact on one of these definitions in order to properly present prong one of a prima facie case. Because she cannot do so, summary judgment is proper.
42 U.S.C. § 12112(a) (2000); see also Zenor v. El Paso Healthcare System, Ltd., 176 F.3d 847, 852 (5th Cir. 1999) (plaintiff must prove that she is disabled, qualified for the position, and that she suffered an adverse employment decision because of her disability).
1.) Actual Disability
The ADA recognizes an individual as actually disabled if she has (1) a "physical impairment" that (2) "substantially limits" a "major life activity". See 29 C.F.R. § 1630.2(g) (2000).
a. Physical Impairment
The statute does not itself define the term "physical impairment." But the EEOC Interpretive Guide provides a list of types of disorders that are disorders that are physical impairments, including cardiovascular system disorders. 29 C.F.R. § 1630 (h)(1) (2000).
Tachycardia can be defined as "[a]n abnormal rapidity of heart action, usually defined as a heart rate greater than 100 beats per minute in adults." See TABER'S CYCLOPEDIC MEDICAL DICTIONARY 1899 (Clayton L. Thomas ed., F.A. Davis co. 1997). Because Ms. Justice has a condition that affects her cardiovascular system, this Court finds that she has a physical impairment as defined by the ADA.
b. Substantially Limited in a Major Life Activity
This Court will next examine whether Justice's physical impairment substantially limits a major life activity. 29 C.F.R. § 1630.2(g)(1) (2000). The key is the extent to which the claimant is limited. Sutton v. United Airlines. Inc., 527 U.S. 471 (1999). It is clear that the individual must actually, not hypothetically, suffer from the substantially limiting effects of her impairment. Furthermore, whether the impairment substantially limits the individual is determined on a case-by-case basis, looking at the actual limitations that the claimant suffers. Deas v. River West, 152 F.3d 471 (5th Cir. 1998). Sutton also mandates that the limiting effects of the impairment are analyzed in their mitigated state. Sutton, 527 U.S. at 471 (pilots alleged that their poor eyesight was a disability, but the court only considered the effects of poor eyesight as mitigated by corrective lenses, finding no disability).
In this case, Justice alleges that she was suffering from tachycardia at the time of her dismissal, but she does not allege that she was substantially limited in any activity, including work. In neither her complaint nor her brief does Justice raise any evidence that suggests such a limitation, except perhaps an inability to maintain perfect attendance.
Assuming arguendo that attendance is related to a major life activity, Justice does not present any evidence that her tachycardia substantially limits, rather than slightly limits, her employment capacity. Because Justice bears the burden of proving that she was substantially limited as a part of her prima facie case, Zenor. 176 F.3d at 852, she fails to show that she was actually disabled at the time she was terminated.
2. "Record of a Disability
The ADA recognizes that a claimant need not be currently disabled to invoke the protection of the statute; instead, a plaintiff may show that she has a "record of" a disability. See 42 U.S.C. § 12102(2)(B); 29 C.F.R. § 16.30.2(g)(2) (2000). Under the EEOC Interpretive Guide, a record of a disability may only qualify a claimant for recovery under the statute if the recorded disability designates that the claimant is substantially limited a major life activity. See 29 C.F.R. § 1630.2(k) (2000). This comports with the language of the statute that says that an individual is disabled if she has "a record of such an impairment." 42 U.S.C. § 12102(2)(B) (2000) (emphasis added). Because the language directly follows the definition of an actual disability, the record of the impairment must also have been the record of a substantially limiting impairment. See Bridges v. City of Bossier. 92 F.3d 329, 332 (5th Cir. 1996) (applying the same requirement to the "regarded as" section);see also Robinson v. Global Marine Drilling Co., 101 F.3d 35 (5th Cir. 1996) (stating that an employee with asbestosis had a record of impairment, but the record did not indicate he was substantially limited when the record indicated he suffered only minimal symptoms such as shortness of breath after climbing stairs).
Ms. Justice has presented no evidence that she was "substantially limited" as a result of her tachycardia. Though she may have a record of a physical impairment, Justice still fails to show that she has a record of a substantially limiting physical impairment that would have amounted to a disability at any time. As such, she cannot depend on her record of tachycardia in order to raise a fact question as to whether she is disabled.
3. "Regarded as" Disabled
The Fifth Circuit recognizes three scenarios in which an employer may regard the employee as disabled. In Bridges, the court listed these as follows:
"One is regarded as having a substantially limiting impairment if the individual (1) has an impairment which is not substantially limiting but which the employer perceives as constituting a substantially limiting impairment; (2) has an impairment which is substantially limiting only because of the attitudes of others toward such an impairment; or (3) has no impairment at all but is regarded by the employer as having a substantially limiting impairment." Bridges, 92 F.3d at 332.
As the parties agree that Ms. Justice's tachycardia is a physical impairment; this case engages only the first prong of the Fifth Circuit's list. In Deas v. River West, 152 F.3d 471 (5th Cir. 1998), the Fifth Circuit recognized that, when addressing a "regarded as" claim, the critical factor is not the physical impairment itself, but rather how the employer perceived the impairment. Deas, 152 F.3d 476, n. 9. Thus, the determinative issue is whether the employer perceived the impairment as substantially limiting the plaintiff in a major life activity at the time it made its decision to terminate the plaintiff. See 29 C.F.R. § 1630.2(g)(3) (2000); Bridges, 92 F.3d at 332.
In this case, Justice raises one piece of evidence to illuminate JJM's perceptions of her condition at the time she was terminated: notes taken during a meeting that indicate Mr. Lovin considered Justice's "medical condition" to be a contributing factor to her poor attendance. JJM contends that this is insufficient to create a fact question as to whether JJM regarded Justice as being substantially limited by her tachycardia. In weighing this evidence, this Court finds instructive bothRobinson v. Global Marine Drilling Co., 101 F.3d 35 (5th Cir. 1996), andEllison v. Software Spectrum. Inc., 101 F.3d 35 (5th Cir. 1996).
In Robinson, the plaintiff had asbestosis. However, he suffered only minimal symptoms, such as being out of breath after climbing stairs.Robinson, 101 F.3d at 35. In this case, the plaintiff suffers from tachycardia, and the evidence she raises suggests only that her employer viewed her as limited in her ability to maintain a good attendance record. Even if taken as an actual limitation, such a limitation would not reach the statute's requirement that the physical impairment be substantially limiting. It is not unimportant that Mr. Lovin thought the condition would only aggravate, rather than solely cause Ms. Justice's poor attendance. This further suggests that Mr. Lovin viewed her tachycardia as only a slight limitation, aggravating what he perceived to be a preexisting poor attendance record.
In Ellison, the plaintiff had breast cancer, and her treatments forced her to work reduced hours during her radiation therapy. The employer in that case admitted that Ms. Ellison was less effective during her radiation treatments. While the Court recognized that Ms. Ellison was limited, it noted that the key consideration was that her employer did not view her as substantially limited.
In the instant case, Ms. Justice's limitation, if any, could hardly exceed the limitation that Ms. Ellison experienced, given that Ms. Ellison's employer perceived that both her effectiveness and her attendance were impacted by her medical condition. While Mr. Lovin may have believed that Ms. Justice's attendance would deteriorate because of the tachycardia, there is no evidence that JJM found Ms. Justice" substantially limited in any major life activity."
Because Ms. Justice cannot build a prima facie case that she is disabled under the ADA, this court GRANTS Defendant's Motion For Summary Judgment on this issue. Because Ms. Justice's claim fails to meet the first prong of the required prima facie case, the court need not consider the parties' arguments regarding the causation element of Justice's claim.
H. IIED
Under Texas law, an IIED claim may only prevail if the plaintiff prevails on the following 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. See MacArther v. University of Texas Health Center. 45 F.3d 890, 898 (5th Cir. 1995); Ramirez v. Allright Parking El Paso, Inc., 970 F.2d 1372, 1375 (5th Cir. 1992). In support of its motion, JJM contends that Ms. Justice's evidence does now show that JJM's conduct was "extreme and outrageous" as required under Texas law.
In Twyman v. Twyman. 855 S.W.2d 619, 621-22 (Tex. 1993), Texas adopted the RESTATEMENT (SECOND) OF TORTS to define "extreme and outrageous." Outrageous conduct is that which goes "beyond all possible bounds of decency, and is regarded as atrocious and utterly intolerable in a civilized community." RESTATEMENT (SECOND) OF TORTS § 46 cmt.d (1965); see also Randall's Food Markets, Inc., v. Johnson, 891 S.W.2d 640 (Tex. 1995). A mere violation of laws regulating conduct in the workplace or an employment dispute alone is not enough to establish intentional infliction of emotional distress. See Skidmore v. Precision Printing and Pkg., Inc, 188 F.3d 606, 613 (5th. Cir. 1999) (citing cases).
Here, Ms. Justice presents no evidence of intent other than violation of underlying employment discrimination laws. Furthermore, the level of outrageousness and atrocity of any of the events or acts alleged, either alone or in unison, fails to reach the high standard required under Texas law. See Skidmore, 188 F.3d at 613 (supervisor continually solicited sex from employee, asked her to leave her husband, stalked her, and promulgated rumors about their supposed adulterous affair combined to meet the level of pervasiveness and outrageousness required under IIED in Texas). Notably, the situation in GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605 (Tex 1999), on which the Plaintiff relies, does not present a sufficiently parallel case on its facts to support a finding that JJM's workplace atmosphere amounted to a "den of terror" outrageous enough to allow a finding of intentional infliction of emotional distress. Therefore, this Court GRANTS summary judgment to JJM on Ms. Justice's IIED claim.
Id. at 617.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED as to Ms. Justice's claims of sexual harassment, both supervisory and non-supervisory, discriminatory discharge under Title VII, discriminatory discharge under the ADA, and intentional infliction of emotional distress. Defendant's Motion for Summary Judgment is DENIED as to Ms. Justice's claim of unlawful retaliation under Title VII. The parties will proceed to trial on this claim only.