Opinion
CIVIL ACTION NO: 00-3423, SECTION: "R" (2)
May 24, 2002
ORDER AND REASONS
I. Background
This is an employment discrimination action by Debbie Forrest and Holly Smith against their former employer, defendant Dynamic Security, Inc. The Court conducted a two-day bench trial on plaintiffs' retaliation and hostile work environment claims. The Court granted judgment as a matter of law on the hostile work environment claims at the conclusion of plaintiffs' case. The Court now rules in favor of plaintiffs on the retaliation claims. Based on the preponderance of the evidence, the Court makes the following findings of fact and conclusions of law.
Throughout the trial record, plaintiffs are referred to by various names. Debbie Forrest was married while she worked for Dynamic Security, and her name changed from Debbie Tullos to Debbie Forrest. Holly Smith got married after her termination, and changed her name from Holly Smith to Holly Smith Ruf fin. To avoid confusion, the Court refers to plaintiffs throughout this opinion as Debbie Forrest and Holly Smith.
II. Findings of Fact
A. Background
Plaintiffs Debbie Forrest and Holly Smith, both white females, worked as security officers for defendant Dynamic Security, Inc., an Alabama company that provided security services for a variety of clients. Dynamic had a contract with Sanderson Farms, Inc. to provide security, and plaintiffs worked at the Sanderson Farms plant in Hammond, Louisiana. Forrest worked for Dynamic from September 1, 1996 until November 19, 1999, when she was fired. Forrest was also certified as a weighmaster, which meant that she was responsible for weighing incoming and outgoing trucks at the plant. Smith worked for Dynamic from June 29, 1998 until November 19, 1999, when she was terminated. Smith also served as an assistant weighmaster.
Dynamic Security assigned military rankings to its employees, which indicated different levels of pay and responsibility. At the Hammond Plant, Forrest, Smith, James Gibson, a white male, Carl Booker, a black male, and Deborah Taylor Blount, a black female, were security "officers." Their direct supervisor was "Lieutenant" Alisha Kelley, a white female. Kelley's direct supervisor was "Major" Winston Broome, a white male. Carl Booker had been a "sergeant, " but after Dynamic assigned him to the Sanderson plant, he was demoted to "officer" and received a pay cut. The position of "sergeant" remained unfilled for a long time after Booker's demotion.
The witnesses testified that in general the atmosphere at the. Hammond Plant was fairly congenial. In fact, Forrest and Kelley were friends. Things began to change in October 1999. At that time, Smith asked Kelley if she could be promoted to "sergeant." Kelley informed Smith that as a matter of policy, Dynamic staffed a "sergeant's" position only when there were 12 or more employees on a site. At the Hammond plant, Dynamic only had nine employees. Smith, however, did not let the matter rest and contacted Major Winston Broome about a promotion to sergeant. Major Broome, who did not testify, told Smith that staffing a sergeant's position was a good idea. Kelley admitted that Broome informed her that he thought it was a good idea to staff a sergeant's position and that he considered appointing Smith to the post. Kelley tried to discourage him from appointing Smith and recommended Gibson for the post because she felt that he was the person most willing to work any shift.
Broome approached Gibson and asked him if he was interested in the sergeant's position. Broome told him that the position would involve a pay increase. James Gibson accepted the position and was made a sergeant on November 12, 1999. Forrest pinned the sergeant's stripes on his lapel. When Kelley told Smith that Gibson had been promoted, Kelley said, "Don't be mad. It was not my decision."
Although plaintiffs challenged defendant's failure to promote them instead of Gibson as discriminatory, the Court granted summary judgment in favor of defendant on this claim. Defendant disputes that Gibson was promoted because he in fact received no pay increase. Regardless, plaintiffs' retaliation claim does not rise or fall on whether Gibson's job change was an actual promotion.
Plaintiffs were upset when Gibson was made sergeant because they believed that he was not qualified for the position. Gibson was junior in seniority to both Forrest and Smith and had been employed as a full-time security guard for only three months. Gibson had worked part-time from January 1999 until August 1999, when he was assigned a full-time position as a security officer. He had not worked in the security industry in the past. He had not been certified as a weighmaster, although he from time to time acted as an assistant weighmaster. Plaintiffs believed that he was promoted because he was a white male and decided to file a lawsuit against Dynamic..
Smith made an appointment to see an attorney, James Dukes, on November 17, 1999 to explore her legal options against Dynamic. On November 18, 1999, both Smith and Forrest met with Dukes for this purpose. The attorney's paralegal, Peter Breslin, who was subpoenaed by defendant, corroborated Smith's testimony that both Smith and Forrest met with Dukes only days before they were terminated.
Kelley knew that Smith and Forrest were considering legal action against Dynamic. She testified that Smith approached her after Gibson's promotion and asked her to participate in a class action lawsuit alleging sexual discrimination against Dynamic based on James Gibson's promotion. Smith also told Kelley that if the "promotion" suit was not successful, then Forrest was going to file a suit for sexual harassment. She told her that Forrest kept a work journal in which she recorded sexist jokes told by Broome. Smith told Kelley that the suit would have more credibility if Kelley were a part of the lawsuit because she was a supervisor. Kelley confirmed that she knew that plaintiffs planned to see a lawyer.
Kelley declined to join the suit. She immediately called Broome to inform him that the security officers were banding together to file a lawsuit against Dynamic for promoting Gibson. She also informed Broorne that Forrest had kept a record of allegedly sexist jokes Broome told, which would form the basis of a potential sexual harassment suit. Kelley asked Broome whether he had told such jokes, and he denied it.
B. PlaintiffS' Termination
On November 19, 1999, at 3 P.M., as Smith was leaving her shift at the front guard shack and Forrest was arriving to begin her shift at the back guard house, Broome approached Smith holding a piece of paper and told her that he needed to talk to her. He walked her to her car in the parking lot and told her that she was fired. When Smith asked why she was fired, Broome said that he did not have to tell her and that she could "get it" from the state licensing board. He also said that if she wanted to sue, she should go right ahead because he had a cousin who was a state supreme court judge, and he wished her all the luck in the world in doing so. Broome also told her that the next time she got a job, she should keep her mouth shut.
Smith asked Broome again what she had done to get fired, but Broome insisted that he did not have to tell her. She asked him what was on the piece of paper that he held. She said that she saw her name on it, but could not read the paper. He said that she could call the state board to find out.
Smith got into her car and drove to the rear guard house, where Kelley and Forrest were stationed. Smith went into the guard house in tears. She told Forrest, "They are firing us." Kelley told Smith that the decision to terminate her had been made by Broome and that she had nothing to do with it. Broome then came into the guard house and told Smith that she had five minutes to get off the property or she would be arrested. Smith told him that she had to pick up something from the sales office and then she left.
Forrest testified that when she went into the guard house, she saw four pieces of paper that looked like termination forms. Forrest realized that she was about to be fired. After Broome told Smith that she had five minutes to get off the property, Forrest asked Broome, "What about me?" Broome terminated Forrest, stating, "Because you've kept your mouth shut and you haven't said anything, you've got fifteen minutes to get off the property." Forrest said that she did not need that much time and began to gather her things. She asked for a copy of her termination papers. Broome refused to give them to her and told her that she could write to the state board to obtain them. Broome then asked Forrest, "What is it you're saying about me?" Forrest told Broome that he was an "asshole." Broome pointed his finger at Forrest and reiterated his demand that she leave the property. Forrest left.
Both Forrest and Smith testified that it was not until they filed for unemployment that they saw their termination forms. Kelley prepared the termination forms dated November 19, 1999. As the reason for termination, she gave "Conspiracy and ammosity on post causing ammosity with co-workers." Later Kelley prepared supplemental termination forms dated November 22, 1999 for both plaintiffs because Dynamic wanted her to state additional reasons for plaintiffs' termination. On the November 22, 1999 form, Kelley gave the following reasons for Smith's termination: "Holly Smith has excessive absences that are not varifiable [sic]. She also has been discussing DSI business with the client, while trying to get a raise in her pay." (Def.'s Ex. 10.) Forrest had two November 22, 1999 termination forms. The first stated that she was terminated for "Causing ammosity with co-workers and conspiracy on post," and because "she causes too much conflict and I do not trust her." The second form stated that "I, Lt. A. Kelley, and Mj. W. Broome was [sic] discussing an incident that had happened with Tina Tullos [Forrest] and she refused to discuss the problem and called MJ. W. Broome an `asshole.'" (Def.'s Ex. 9.). The form further stated: "Terminated for insubordination toward a supervisor. She also has excessive absences that are not varifiable [sic]." ( Id.) After plaintiffs were fired, Gibson testified that Broome told him that plaintiffs were fired because they were "stirring up shit." Deborah Taylor Blount testified that when Forrest called her, she was hysterical, and Forrest told her that she had been fired because she had seen a lawyer.
C. Plaintiffs' Employment Performance
Although plaintiffs testified that their job performance was satisfactory, defendant tried to paint plaintiffs as bad employees who deserved to be fired for reasons unrelated to their threats of litigation. The Court finds plaintiffs' testimony more credible and that defendant's complaints about plaintiffs' performance were after-the-fact efforts to justify firing them. Dynamic's Hammond, Louisiana operation involved providing 24-hour a day guard services to Sanderson's chicken processing plant. Guards were paid near-minimum wage, and Kelley admitted that it was difficult to keep people in these positions. Perhaps as a result, the record reflects that before plaintiffs were fired, Dynamic was lax in enforcing its rules and tolerant of mistakes in performance.
During the year and five months that Smith worked for Dynamic, Smith had never been-written up or warned. She accepted extra shifts and worked on Saturdays. Smith had once stopped the attempted theft of chickens, and Chip Blessey, a Sanderson Farms supervisor and hason to Dynamic, gave her a safety award. Blessey corroborated that he told Smith that she was doing a good job and did a "little bragging" about her to others. Further, Winston Broome looked favorably upon promoting Smith until he was dissuaded from doing so by Kelley who preferred Gibson.
Smith admitted that on one occasion, she missed seeing a maintenance worker leave the plant with a small hand grinder on his tool belt. Blessey, who devised this incident as a test, conceded that he did not recommend that Smith be disciplined for failing to detect the feigned theft.
Forrest worked for Dynamic for three years and had never been written up. Indeed, the week before she was fired, Forrest was asked to re-fill out her employment forms because Dynamic had lost them. When she noticed that her personnel file was empty, she remarked to Kelley, "Oh, I have no write-ups." Kelley responded, "That's right." Forrest admitted that she had a few verbal arguments with co-workers in the three years that she worked for Dynamic. In addition, a few months after she was hired, in January 1997, she misweighed a truck. Forrest stated that Blessey spoke to her about it, but she was not written up for the mistake.
Kelley testified that she kept her own records on the security officers. She kept a handwritten list of Smith's and Forrest's unexcused absences. She said that she filled out disciplinary reports for Forrest and Smith, but she admitted that she never showed plaintiffs these reports at the time, and never had them sign the reports in the spaces designated for employee signatures. She admitted that she did not fill out disciplinary forms each time plaintiffs failed to follow certain rules or made a mistake. She kept her lists in her briefcase and did not place them in plaintiffs' official personnel files. While she complained after-the-fact that plaintiffs were excessively absent, she admitted that Dynamic did not have a policy stating the amount of absenteeism that would result in termination. Both plaintiffs denied ever being warned of excessive absences before they were fired.
Kelley conceded that Smith was a decent employee. She said, however, that Smith violated company policies when she complained about her salary to non-Dynamic employees such as Chip Blessey. Kelley also relied on the incident in which Smith failed to catch the mock theft of the small grinder as an indication of poor performance.
Kelley was more critical of Forrest's job performance. She said that Forrest failed to make her rounds, left her post, had visitors in the guard shack, failed to wear her uniform and failed to obey orders. Kelley pointed out that Forrest had once misweighed a truck and had gotten into arguments with other security officers.
Forrest denied that she was ever admonished for leaving her post or failing to perform her duties. She stated that she had never been reprimanded for failing to wear her uniform. Forrest and Booker testified that all the security officers as well as Kelley entertained visitors at the guard shack. Additionally, guards were not disciplined for being out of uniform.
Although Kelley said that plaintiffs' behavior drastically changed after Gibson was named sergeant — that they were hostile, caused problems, refused to make eye contact with her and didn't follow orders — there is no contemporaneous record of any such behavior.
D. Legal Proceedings
Smith and Forrest timely filed charges of discrimination based on retaliation with the Equal Employment opportunity Commission. After the EEOC gave them notice of their right to sue, plaintiffs filed suit in federal district court against Dynamic Security, Inc., alleging illegal gender discrimination under Title VII of the Civil Rights Act of 1964.
In July 2000, Dynamic offered both Forrest and Smith their old positions back at the same rate of pay as when they left. (Pl.'s Ex. 3 and 4.) Neither Forrest nor Smith responded to Dynamic's offer.
Forrest remained voluntarily unemployed after the termination. She testified that she did not attempt to find work. The only employment Forrest has had since her termination was a temporary job as a driver with Statewide Transportation over the holidays, a job which Smith offered her. Forrest did not state the dates of employment. Forrest left voluntarily after two months.
Smith was upset after the termination. She was, however, the sole breadwinner for her family and found a new job as a delivery driver for Stateside Transport after three weeks. She stated that she liked her new job and received better pay and benefits than she did when she worked for Dynamic.
Smith stated that she was hurt and embarrassed by the termination. She stated that she did not see a physician or psychologist for mental suffering as a result of the termination because she could not afford to.
Forrest did not testify as to any emotional injury she suffered due to the termination. She stated only that she was confused by the termination.
III. Conclusions of Law
A. Retahation under Title VII
Title VII forbids an employer from retaliating against an employee who has engaged in a "protected activity." 42 U.S.C. § 2000-3(a) (1994). 42 U.S.C. § 2000e-3(a) provides that it is
an unlawful employment practice for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because [the employee] has 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) (1994).
Plaintiffs did not present direct evidence at trial that defendant fired them because they engaged in protected activity. Their claims therefore must be assessed under the scheme announced in McDonnell Douglas Corp. V. Green, 411 U.S. 792,93 S.Ct. 1817 (1973). Under this framework, plaintiff carries the initial burden of establishing a prima facie case of retaliation. Plaintiff must demonstrate that (1) she engaged in an activity protected by Title VII; (2) she experienced an adverse employment action following the protected activity; and (3) that there is a causal link between the protected activity and the adverse employment action. See Montemayor v. City of San Antonio, 276 F.3d 687,692 (5th Cir. 2001); Evans v. City of Houston, 246 F.3d 344,351 (5th Cir. 2001).
An employee engages in a protected activity if she has either (1) opposed any practice made an unlawful employment practice by Title VII, or (2) made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII. 42 U.S.C. § 2000e-3(a); Douglas, 144 F.3d at 372-73; Long v. Eastifield College, 88 F.3d 300,304 (5th Cir. 1996). The Court finds that the "participation" clause is not involved in this lawsuit.
To prove that plaintiff engaged in a "protected activity," she need not establish that the employment practice she opposed was in fact a violation of Title VII. She must demonstrate only a "reasonable belief" that the practice she opposed was unlawful. Payne V. Mcbemore's Wholesale Retail Stores, 654 F.2d 1130, 1140 (5th Cir. 1981). As to the "adverse employment action" component of her claim, plaintiff must show that an "ultimate employment decision," such as hiring, granting leave, firing, promoting or compensating, was made adversely to her. Fierros V. Texas Dept. of Health, 274 F.3d 187, 191 (5th Cir. 2001). Proof of causation may be established if the "protected activity" is closely followed in time by the adverse employment action. Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001). Once the plaintiff establishes these elements of a prima facie case, the defendant must articulate a non-retalitory reason for the action it took. If it does so, plaintiff must prove that such a reason was a pretext for the real, discriminatory purpose. See Gee V. Principi, 2002 WL 597374, *2 (5th Cir. 2002). The plaintiff bears the ultimate burden of persuading the factfinder that defendant retaliated against her. Id. at *3 The trier of fact may infer the ultimate fact of retaliation from the falsity of the defendant's explanation. Id., citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,146-48, 120 S.Ct. 2097 (2000).
B. Smith's Claims
The Court finds that Smith has met her burden of establishing a prima fade case of retaliation. See Montemayor, 276 F.3d at 692; Evans v. City of Houston, 246 F.3d 344,351 (5th Cir. 2001). First, Smith established that she was engaged in protected activity when she informed Kelley, her direct supervisor, that she planned to file a class action lawsuit to protest Gibson's promotion and contacted an attorney for that purpose. See Kelley v. West, 2001 WL 102342, *8 (S.D.N.Y. 2001) (finding that plaintiff's conversation with his supervisors that he felt discriminated against fit into the definition of protected activity); Iannone v. Harris, 941 F. Supp. 403,410 (S.D.N.Y. 1996) (finding that an objection voiced to an employer is protected activity) (citations omitted).
The Court rejects defendant's argument that Smith did not reasonably believe that Dynamic engaged in discriminatory actions in promoting Gibson and that Smith was simply motivated by greed. The Fifth Circuit has held that Title VII does not require a "plaintiff [to] prove that the conduct opposed was actually in violation of Title VII, but only that a charge was made, or that participation in an investigation of a violation of Title VII occurred." Green v. The Administrators of the Tulane Educational Fund, 2002 WL 314011, *8 (5th Cir. 2002). Here, the Court finds that Smith reasonably believed that Gibson was promoted over her because he was a male. Smith expressed her interest in the sergeant's job to Kelley and Broome. She was initially told by Kelley that Dynamic was not going to staff a sergeant's position. Broome, however, gave that job to Gibson. It is undisputed that Smith was upset when Gibson, her junior, got the title instead of her. Smith contacted an attorney less than a week after Gibson was made a sergeant. The Court finds that Smith's testimony that she reasonably believed that Gibson had been promoted because he was male and that she wished to file a lawsuit to ptotest this employment action was credible. Accordingly, the Court finds this legally sufficient to satisfy prong one for a claim of retaliation. See Green, 2002 WL 314011, at *8 (citung Payne, 654 F.2d at 1137).
Prong two was established because Smith was terminated after she informed Kelley that she was seeking legal recourse and contacted an attorney. Indeed, the Court finds Broorne's statements to Smith that she should keep her mouth shut in her next job and that she could go ahead and file suit because he had a relative on the bench were consistent with his having a retalitory motive. To the same effect was Broome's asking Forrest, "What is it that you're saying about me?" The Court finds that prong three — the causal connection — was also met because Smith was terminated only days after she told Kelley that she was considering legal action.
Defendant points out that plaintiff must first identify who made the decision that resulted in her termination to establish the causal connection prong. See Mato v. Baldauf, 267 F.3d 444, 450 (5th Cir. 2001). The Court finds that plaintiffs have shown that Broome made the termination decision. It is undisputed that Broome actually fired both plaintiffs. In Smith's case, Kelley was not even present when Broome fired her. Broome had authority over major personnel decisions, such as when he decided that it was a good idea to promote a security officer to sergeant, even though company policy stated that Dynamic staffed a sergeant's position only when there were 12 employees at a plant. When Smith came into the guard shed after she was terminated, Kelley told her that Broome made the decision to fire her. Further, Smith was terminated almost immediately after Kelley informed Broome that Smith and Forrest contemplated filing a class action lawsuit against Dynamic.
The Court also finds Kelley's assertion that she, rather than Winston Broome, made the decision to terminate plaintiffs not credible. Kelley asserted that she alone possessed the authority to hire and fire security officers who worked for her at the Hammond plant, yet she admits that she consulted Broome and got his approval to fire plaintiffs. Her testimony is also belied by her admission that she was not the one who offered to rehire plaintiffs and that she knew nothing about their being offered reinstatement. The actions taken by Kelley's superiors contradict her assertion that she had the sole authority to hire and fire the security guards under her supervision.
The Court finds that even if Kelley were in fact the decisionmaker, she also had a retalitory motive. She testified that she knew about the proposed lawsuit and that she did not like the fact that plaintiffs were considering the suit. She reported this fact to Broome. She wrote "Conspiracy and Ammosity" as the reasons for plaintiffs' termination. That Smith told Kelley that the security guards were planning a class action lawsuit makes it credible that "conspiracy" meant getting people to join the class action. Indeed, Smith had unsuccessfully solicited Kelley to join the cause. Further, Kelley was not a credible witness when she testified about the reasons for plaintiffs' termination. She appeared personally miffed at plaintiffs and appeared to take this lawsuit personally. Indeed, Booker testified that he was afraid to testify because Kelley was now his supervisor at another company and that Kelley had hectored him about getting involved in this case as a witness. Indeed, Booker stated that he believed that he would suffer repercussions from his testimony. Kelley's actions are consistent with retaliation.
The Court further finds that defendant produced a legitimate nondiscriminatory justification for its actions. See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). Here, Kelley testified that Smith was terminated because her performance deteriorated after Gibson's promotion. Kelley testified that Smith failed to tuck her shirt in, complained to the client about Gibson's promotion, did not follow orders and turned her back on Kelley. Kelley further testified that Smith had past performance-related problems which included carelessness on the job and an excessive amount of unverified absences. The Court finds these reasons, if believed, would permit the Court as the trier of fact to conclude that the termination was nonretalitory.
The burden-shifting framework of McDonnell Douglas drops from the case and the factfinder must `decide the ultimate question: whether [the] plaintiff has proved [intentional discrimination].'" Evans, 246 F.3d at 350 (quoting St. Mary's Honor Ctr. v. Hicks, 511-512, 121 S.Ct. 2742 (1993). In making her showing on this ultimate question, plaintiff "can rely on evidence that the employer's reasons were a pretext for unlawful discrimination." Id. The factfinder "may still consider the evidence establishing the plaintiff's prima facie case `and inferences properly drawn therefrom[.]'" Id. (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097 (2000). In Reeves, the Supreme Court stated that "[i]n appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Id. at 148,120 S.Ct. 2109. The Court concluded that "[a] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id.
The Court finds that Broome's statements to Smith showed that he had a retalitory motive. He indicated that her threatened lawsuit was on his mind when he told her that a lawsuit would be futile because he had a relative who was a judge. Additionally, he told her that she should keep her mouth shut in her next job, which certainly suggests that her effort to legally challenge Gibson's promotion instead of shutting up about it ammated his decision. Further, Gibson stated that Broome told him that plaintiffs were fired because they were "stirring up shit."
The Court also finds that Kelley's testimony regarding the reasons for plaintiffs' termination was not credible. Smith presented evidence that she was a capable employee. She testified that she was never written up and had never seen any disciplinary reports. Chip Blessey testified that he gave Smith a safety award after she detected the attempted theft of a crate of chickens and that he told people that she did a good job. He testified that he never recommended a disciplinary action against Smith after she failed to detect the theft of the grinder. Kelley admitted that Broome considered Smith a worthy candidate for promotion to sergeant.
Further, Kelley's testimony that Smith's behavior became a problem after Gibson's promotion is unbelievable. It is undisputed that only six days passed between Gibson's promotion and plaintiffs' termination. There was, however, no contemporaneous evidence of any infractions, warnings or disciplinary action taken against Smith during the time period in which Kelley states that Smith's behavior at work was at its worst. Further, the documentary evidence shows that Smith had no unexcused absences in that six-day span.
Indeed, Dynamic's asserted reasons for Smith's termination are not reflected in the termination forms. Kelley testified that Smith was careless on the job. In Smith's termination papers, carelessness was never listed as a reason for termination. On the November 19, 1999 termination form, Dynamic listed "Conspiracy and ammosity on post causing ammosity with co-workers," and the November 22, 1999 termination form stated that Smith was terminated due to excessive non-verifiable absences and for discussing Dynamic's problems with clients. The Court finds that the word "conspiracy" more likely refers to Smith's action in proposing a class action lawsuit than it describes Smith's alleged poor job performance and absences. The Court also notes that it is skeptical of the reliability of the absenteeism record Kelley prepared because it listed a November 22, 1999 absence, which was after Smith had already been terminated. In addition, Kelley admitted that Dynamic did not have a policy describing what kind of absenteeism was considered "excessive." Further, the only disciplinary document that stated that Smith had excessive absenteeism was created on November 22, 1999, after Smith's termination. The Fifth Circuit has found that "after-the-fact" documentation is insufficient to justify an adverse employment action because of disciplinary problems. Evans, 246 F.3d at 355.
The Court finds that the reasons proffered by Dynamic were pretexts for unlawful termination. Based on the totality of the evidence, the Court concludes that Dynamic fired Smith for threatening a lawsuit and consulting an attorney.
C. Forrest's Claims
The Court similarly finds that Forrest made out a prima facie case of retaliation. First, Forrest contacted an attorney to file a lawsuit based on the reasonable belief that Gibson's promotion and Broome's sexist jokes violated Title VII. See discussion, supra, at 16-17. Second, Dynamic terminated Forrest. See discussion, supra, at 17-18. Third, the Court finds that Forrest established a causal link between her consulting with an attorney and her termination. As with Smith, Kelly knew that Forrest was part of Smith's proposed class action lawsuit and also knew that Forrest had been documenting Broome's remarks in her diary as the basis for a sexual harassment lawsuit. It is undisputed that Kelley reported Forrest's actions to Broome. Further, only one day passed between Forrest's consulting an attorney and her termination. See Evans, 246 F.3d at 355. See also discussion, supra, at 18-19.
The burden then shifts to Dynamic to give a legitimate, nondiscriminatory explanation for the action it took against Forrest. Dynamic asserts that it fired Forrest because her behavior at work caused problems after Gibson's promotion. Kelley testified that Forrest became disgruntled and refused to follow orders. Dynamic also presented evidence that Forrest had a past history of performance problems which included allowing visitors into the scale house, failing to be at her post, an excessive amount of absences, arguing with another security officer and failing to wear her uniform. The Court finds that Dynamic has articulated a nondiscriminatory rationale for terminating Forrest.
The burden then shifts to Forrest to prove that she was terminated for engaging in the protected activity. The Court is persuaded by the testimony at trial and by the documentary evidence that Dynamic's proffered explanation for Forrest's termination was false and that Dynamic fired Forrest for engaging in protected activity.
First, the Court finds that the statements Broome made when he fired Forrest indicate a retalitory motive. Broome asked Forrest, "What is it you're saying about me?" The Court finds Broome's question indicated that he was firing her because he was angry about her allegations that he told sexist jokes.
Further Kelley's asserted rationale for Smith's termination was not credible because it did not match the contemporaneous documentary evidence. Kelley testified that Smith's behavior after Gibson's promotion was "uncontrollable." As in Smith's case, there is no conUemporaneous documentary evidence that Forrest engaged in obstreperous conduct at work between the time of Gibson's promotion and her termination, and she had no unverified absences during this time period. Dynamic's November 19, 1999 termination form stated that Forrest was terminated for "Conspiracy and ammosity on post causing ammosity with coworkers," and it does not mention anything about rule violations or Aabsenteeism. In the November 22, 1999 supplementary termination form, Dynamic stated that Forrest was fired because Forrest was insubordinate in calling Broome an "asshole." Kelley asserted that Broome fired Forrest because she called him an "asshole" after he attempted to "investigate" Forrest's complaints of sexual harassment. This assertion is unbelievable and contradicted by Forrest's testimony and the documentary evidence. First, the Court finds that Broome's asking, "What is it that you're saying about me?" is not an "investigation" of sexual harassment. Rather, this statement is consistent with an act of displeasure at the complaint instead of an investigation of the complaint. Indeed, Kelley testified that the "investigation" into the sexual harassment allegation ended with Forrest's termination, which indicates that Dynamic was never seriously investigating the allegations against Broome at all. Second, Kelley testified that the decision to terminate Forrest had been made before November 19, 1999. Indeed, Forrest testified that she saw the termination papers on the table in the guard house.
The Court, therefore, finds that the reasons offered by Kelley for Forrest's firing — excessive rule violations and absenteeism — are pretextual. The Court finds that Forrest's actions were protected opposition to discrimination, and that these actions were the reason for her discharge. Defendant's assertion of absenteeism, rule violations and problems with coworkers were simply a cover for retaliation.
B. Hostile Work Environment
To establish a hostile work environment claim, plaintiff must prove that: (1) she belongs to a protected class, (2) she was subjected to unwelcome sexual harassment, (3) the harassment was based on sex, (4) the harassment affected a term, condition, or privilege of employment, and (5) the employer knew of or should have known of the harassment and failed to take remedial action. Green v. The Administrators of the Tulane Educational Fund, 2002 WL 314011 at *6 (5th Cir. 2002); Mota v. Univ. of Tex. Houston Health Science Ctr., 261 F.3d 512, 523 (5th Cir. 2001). The Supreme Court has found that conduct sufficient to create a hostile working environment must be severe or pervasive. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742,752,118 5. Ct. 2257,2264 (1998). A "mere utterance of an . . . epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment to implicate Title VII." Harris v. Forklift Sys., 510 U.S. 17, 21-22, 114 5. Ct. 367,370 (1993). Furthermore, the Fifth Circuit has held that a sexually objectionable environment must be both subjectively and objectively offensive to be actionable. Green, 2002 WL 314011 at *6, citing Shepherd v. Comptroller of Public Accounts of Tex., 168 F.3d 871, 874 (5th Cir. 1999). "Whether an environment is hostile or abusive depends on a totality of circumstances, focusing on factors such as the frequency of the conduct, the severity of the conduct, the degree to which the conduct is physically threatening or humilating, and the degrees to which the conduct unreasonably interferes with an employee's work performance." Weller v. Citation Oil Gas Corp., 84 F.3d 191,194 (5th Cir. 1996)
At the close of plaintiffs' case in chief, Dynamic moved for judgment as a matter of law and argued that defendants did not provide sufficient evidence to support a hostile work environmental claim. The Court offered plaintiffs' counsel an opportunity to respond to Dynamic's argument, but counsel declined. He pointed to no evidence in the record to support plaintiffs' asserted claim for hostile work environment sex discrimination. The Court granted defendant's motion and issues its reasons in writing here.
The only evidence possibly supporting this claim is the testimony of Forrest who stated that Broome told a few jokes that were derogatory towards women, such as calling Cajun women "coonasses." She also testified that Broome once tried to issue her a shirt that was too small for her to button across her chest. Smith offered no testimony in support of this claim at all.
The Court finds that this evidence is insufficient as a matter of law to show the existence of a hostile work environment because Forrest offers no evidence that Broome's remarks affected the terms or conditions of her employment, which is a necessary element of a claim for hostile work environment. Accordingly, the Court finds that Broome's remarks and actions did not alter the terms or conditions of her employment. Further, the Court did not find that the conduct Forrest testified to was sufficiently "severe or pervasive" under the applicable legal standard. Broome was on-site at the Hammond plant only every two weeks and he rarely stayed longer than a few hours. While Forrest testified that she found Broome's behavior offensive, on cross-examination, she admitted that she had also referred to Cajun women as "coon-asses." It is Undisputed that after Forrest complained to Broome about the shirt being too small, he gave her a larger shirt.
Accordingly, the Court grants defendant's motion for judgment as a matter of law on this claim.
III. Damages
Once plaintiff has established that she was the victim of unlawful discrimination on the part of the defendant, a presumption in favor of full relief arises. Albemarle Paper Co. v. Moody, 421, 2373 (1975)
A. Back Pay
Section 706(g) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g), governs the award of backpay of Title VII cases and provides:
If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charges in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, . . . hiring of employees, with or without back pay, or any other equitable relief as the court deems appropriate. . . . Interim earnings or amount earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.
(Emphasis added). Back pay is intended to compensate the victim for economic losses sustained asa result of the Title VII injury. Green, 2002 WL 314011 at *9 Plaintiffs, however, have a statutory duty to minimize damages by using reasonable diligence to find other suitable employment. Id., citing Ford Motor Co. v. EEOC, 458 U.S. 219, 231, 102 S.Ct. 3057 (1982) The employer bears the burden of proving that plaintiff failed to mitigate. To do so, the employer must show that comparable work was available and that plaintiff failed to use reasonable diligence to obtain it. Sellers v. Delgado College, 902 F.2d 1189, 1191 (5th Cir. 1990). If, however, an employer proves the plaintiff did not exercise reasonable diligence, it need not prove the availability of comparable employment. Id. An employer can toll the accrual of backpay liability by unconditionally offering plaintiff a job substantially equivalent to one from which she was terminated. Ford Motor Co., 458 U.S. at 233-234,102 S.Ct. at 3066-3067.
In July 2000, Dynamic unconditionally offered plaintiffs their former jobs back at the same pay rate. Plaintiffs refused the offer and failed to prove that their refusal was reasonable. At that point, plaintiffs' entitlement to receive backpay ended. Id. at 241,102 S.Ct. at 3070. The Court finds that plaintiffs are entitled to their earnings as security officers from the date of their termination to the time when Dynamic offered plaintiffs their jobs back, reduced by any amounts that plaintiffs reasonably could have earned in the interim. See 42 U.S.C. § 2000e-5(g).
42 U.S.C. § 2000e-5(g) provides that: "[i]nterim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable."
Here, Smith found new employment after three weeks and accepted a position as a delivery truck driver with Stateside Transportation, where she received a higher salary and better benefits than she had with Dynamic. The Court finds by a preponderance of the evidence that Smith was reasonably dingent in mitigating her damages in finding employment three weeks after she was terminated. Further, because she was better off at her new job, she suffered no wage loss once she was reemployed. Accordingly, the Court awards Smith back pay in the amount of $672, three weeks salary at Dynamic.
Smith did not submit any evidence as to the value of her benefits at Dynamic Security.
Forrest admitted that she did not intend to work at all after she was terminated and made no effort to obtain substantially equivalent employment. The Court finds that with reasonable diligence, Forrest could have found substantially similar employment within three weeks, the same amount of time that it took Smith to find employment. Accordingly, the Court grants Forrest damages in the amount of $672, three weeks of back pay.
Smith offered Forrest a short-term job at Stateside Transportation, which Forrest accepted. She left voluntarily after two months. Forrest did not inform the Court of the time frame during which she worked. Nevertheless, that Smith soon got a job at Stateside and that she could get Forrest hired too indicate that comparable employment was reasonably available to Forrest.
Forrest did not submit any evidence as to the value of her benefits at Dynamic Security.
B. compensatory Damages: Emotional Pain and Suffering
The Civil Rights Act of 1991 provides for compensatory damages for violations of Title VII. Compensatory damages for emotional distress must "be supported by competent evidence concerning the injury." Brady v. Fort Bend County, 145 F.3d 691, 718 (5th Cir. 1998), quoting Carey v. Piphus, 435 U.S. 247,264 n. 20,98 S.Ct. 1042 (1978). Any award for emotional injury greater than nominal damages must be supported by evidence of the character and severity of the injury to the plaintiff's emotional well-being. See Salinas v. O'Neill, 2002 WL 453025, at (5th Or. April 9, 2002), citing Giles v. Gen. Elec. Co., 245 F.3d 474,488 (5th Cir. 2001). The lone testimony of the plaintiff may support an award of emotional distress. See id., at *2, citing Williams v. Trader Publ'g Co., 218 F.3d 481 (5th Cir. 2000) (upholding compensatory award for emotional distress of $100,000 premised solely on plaintiff's testimony). In the retaliation context, the Fifth Circuit found that plaintiff's uncorroborated testimony in response to a single question from counsel could support an award of $10,000 in compensatory damages. See Vadie v. Mississippi State University, 218 F.3d 365,367 (5th Cir. 2000)
Based on Smith's testimony about the emotional injury she sustained as a result of the retalitory discharge, the Court awards Smith $7,500 in compensatory damages.
Forrest presented no evidence of her emotional damages as a result of the termination. Therefore, she has failed to prove that she is entitled to recover for this type of injury. Accordingly, the Court will not award her damages for emotional distress.
C. Front Pay
The intent of Title VII is to restore plaintiff to the situation she would have been in had no discrimination occurred; therefore reinstatement is warranted absent exceptional circumstances such as that the-position is no longer available. But when the preferred remedy of reinstatement is not appropriate, front pay is an acceptable substitute remedy. See Mota v. university of Texas Houston Health Science Center, 261 F.3d 512,526 (5th Cir. 2001) (finding that front pay is a substitute remedy when reinstatement is inappropriate, such as when there is no position available). Front pay is a form of equitable relief contemplated by Title VII and is intended "to compensate the plaintiff for lost future wages and benefits." See Pollard v. E. I. Du Pont de Nemours Co., 532 U.S. 843, 121 S.Ct. 1946,1949 (2001); Shirley v. Chrysler First, Inc., 970 F.2d 39,44 (5th Cir. 1992).
Plaintiffs' entitlement to front pay, however, is terminated upon an unreasonable refusal of an offer of reinstatement. See Lewis Grocer Co. v. Holloway, 874 F.2d 1008,1012 (5th Cir. 1989). In Lewis Grocer, the Fifth Circuit held that an unconditional offer of reinstatement precludes a later order of front pay and tolls an employer's back-pay liability. Id. Here, defendant offered plaintiffs their old jobs back at the same rate of pay in July 2000, which plaintiffs flatly refused. Plaintiffs failed to show that their refusal was reasonable.
Moreover, the Fifth Circuit reiterated that any award of front pay "should reflect earnings in mitigation of damages." Giles v. General Electric Co.; 245 F.3d 474 (5th Cir. 2001), quoting Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927,937 n. 8 (5th Cir. 1996). Indeed, the court stressed that "district courts "must consider [a plaintiff's failure] to mitigate damages in determining the extent to which, if at all, front pay is appropriate." Id., quoting Hansard v. Pepsi Metro. Bottling Co., 865 F.2d 1461,1470 (5th Cir. 1989). Here, the Court finds that Forrest is not entitled to front pay because she did not intend to work after she wap fired. Smith is also not entitled to front pay because she is better off in her new job than she was at Dynamic.
D. Punitive Damages
At the close of the case, Dynamic moved for judgment as a matter of law on plaintiffs' punitive damages claims. The Court granted Dynamic's motion as matter of law and explains the ruling in writing here. The Civil Rights Act of 1991, 42 U.S.C. § 1981a, provides that punitive damages may be awarded against an employer proven to have "engaged in discriminatory practices or discriminatory practices with malice or reckless disregard to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1). The Fifth Circuit has adopted the following test: an employer is liable for punitive damages in a Title VII action if (1) its agent is employed in a position of managerial capacity, (2) the agent acts within the scope of the employment, and (3) the agent acts with malice or reckless indifference towards the federally protected rights of the plaintiff. Green v. Administrators of the Tulane Educational Fund, 2002 WL 314011, *4 (5th Cir. 2002) citing Kolstad V. Am. Dental Ass'n, 527 U.S. 526,535-45,119 S.Ct. 2118, 2124-2129 (1999). Such liability, however, may not be imputed if the agent's actions are contrary to the employer's good faith effort to comply with Title VII. Id., citing Kolstad, 527 U.S. at 545, 119 S.Ct. at 2128-29.
The Court finds that both Broome and Kelley were agents under the Kolstad framework and that they acted within the scope of their employment. The Court finds, however, that plaintiffs did not present sufficient evidence to prove by a preponderance of the evidence that defendant acted with malice or reckless indifference toward their federally protected rights. Furthermore, Dynamic presented evidence that it made a good faith effort to comply with Title VII. For example, Dynamic's Security Officer's Handbook contained a written policy prohibiting sexual harassment.
E. Attorneys Fees and Costs
As plaintiffs are the prevailing parties in, this litigation, the Court grants plaintiffs' request for attorney's fees and plaintiffs are directed to submit an application for attorney's fees to the Court within 30 days of this order. Defendant shall file any response within 15 days thereafter. Plaintiffs's reply, if any, shall be due within ten days of defendant's response.
The Court also orders plaintiffs to include a calculation of costs for a determination of amounts due under 28 U.S.C. § 1920. Defendants will be given an opportunity to respond to plaintiff's request, and the Court will render a ruling upon consideration of the appropriate factors.
F. Post-Judgment Interest
Plaintiffs are presumptively entitled to a mandatory award of post-judgment interest under 28 U.S.C. § 1961(a). Loeffler v. Frank, 486 U.S. 549,557,108 S.Ct. 1965,1970 (1988).
V. Conclusion
Accordingly,
IT IS ORDERED that there be a judgment in favor of plaintiff Holly Smith against defendant Dynamic Security in the amount of $8,172.00.
IT IS FURTHER ORDERED that there be a judgment in favor of plaintiff Debbie Forrest against defendant Dynamic Security in the amount of $672.00.
IT IS FURTHER ORDERED that plaintiffs shall submit a motion to assess fees and costs in order to assist the Court in determining the amount of attorney's fees to be awarded under 42 U.S.C. § 1988 and the amount of costs to be taxed under 28 U.S.C. § 1920 within thirty days. Defendant shall file any response within 15 days thereafter. Plaintiffs' reply, if any, shall be due within ten days of Defendant's response.