Opinion
CIVIL ACTION NO. 3:00-cv-1384-D.
December 20, 2001.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's order of referral filed on August 31, 2001, and the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) came on to be considered Defendant's Motion for Summary Judgment filed on August 29, 2001, Plaintiff s response, filed September 21, 2001, and Defendant's reply thereto. Having carefully considered the relevant pleadings, including the parties' summary judgment briefs and appendices, as well as applicable authorities, the United States magistrate judge makes the following findings, conclusions and recommendations, as evidenced by his signature thereto:
Factual Background
Plaintiff Jennifer Allen (hereinafter referred to as "Allen") brought suit against Lucent Technologies, Inc. (hereinafter referred to as "Lucent"), alleging that she was terminated in retaliation for lodging a complaint against a former supervisor for sexual harassment, and, alternatively, that she was subjected to sexual harassment, or sex discrimination, in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et. seq. , Allen was originally hired as a temporary contract employee by Olsten Staffing Services (hereinafter referred to as "Olsten") and assigned to the Lucent manufacturing facility in Mesquite, Texas, where she remained from August 1999 until February 2, 2000. Pl.'s Compl. ¶ 5; Pl.'s Decl. ¶ 2 (Pl.'s App. 2). Allen claims that her supervisor, Dennis Blair, in addition to touching her on the back and shoulders, commented on her physical appearance on several occasions. About a week before she was reassigned to another supervisor, Blair conducted a private meeting between Allen and himself wherein he inquired about her marital status, living arrangements, and expressed an interest in pursuing a sexual relationship or, at least, a sexual jaunt, with her. Pl.'s Decl. ¶ 4; Pl.'s Dep. 39-47, 86-88.
According to the record, Allen has satisfied all administrative prerequisites to filing a claim under Title VII, including filing a charge with the Equal Employment Opportunity Commission ("EEOC"), receiving a right-to-sue letter from the EEOC, and filing suit within ninety days thereafter. Pl.'s Compl. ¶ 4.
In her response to Lucent's Motion for Summary Judgment, Allen expressly abandoned her claim of sex discrimination, opting, instead, to proceed only with her retaliation claim under Title VII. See Pl.'s Br. at n. 1.
LaTanya Smith ("Smith"), a former co-worker of Allen's, indicated in her declaration that she observed Blair constantly looking at Allen's body, touching her shoulders, back, and hair, as well as hearing comments he made to Allen which made Smith feel uncomfortable. Smith Decl. ¶ 3 (Pl's App. 3). Smith further recounted that she witnessed Blair engage in similar conduct with other female employees, some of whom complained to Lucent to no avail. Id.
Shortly thereafter, Ed Winkelmeyer ("Winkelmeyer"), a manager in charge of hiring contract employees at Olsten, communicated with Allen. Pl.'s Decl. ¶ 5; Def.'s App. 2 ¶ 3 (Declaration of Winkelmeyer). Winkelmeyer told Allen that Blair wanted her fired or, at the very least, that he no longer wanted Allen on his shift. Pl.'s Decl. ¶ 5; Pl.'s Dep. 50-51. Allen advised Winkelmeyer of Blair's conduct and sexual overtures and according to Allen, Winkelmeyer responded "I knew it, there's been a lot of stuff about Mr. Blair that's been swept under the carpet." Pl.'s Dep. 52-53., Three days later, Winkelmeyer contacted Allen to inform her that "the situation" had been resolved and that she would return to the same shift at Lucent under a new supervisor, John Gerstong ("Gerstong"). Pl.'s Decl. ¶ 8; Pl.'s Dep. 52-55.
Winkelmeyer, however, in his declaration, indicated that Allen never informed him of any inappropriate or sexually harassing behavior by Blair. Consequently, due to his lack of knowledge thereof, he never broached the issue of sexual harassment with any management personnel at Lucent. Winkelmeyer Decl. ¶ 4-5 (Def.'s App. 2).
LaTanya Smith stated in her declaration that she personally witnessed a conversation between Allen and Winkelmeyer, in which Allen told Winkelmeyer about Blair's conduct. Smith Decl. ¶ 4 (Pl.'s App. 3). Winkelmeyer responded that he would investigate Allen's complaints and contact Smith with some questions. Id. Smith was never contacted. Id.
See also Winkelmeyer Decl. ¶ 6.
Gerstong supervised Allen's group until the beginning of January 2000, when he was succeeded by Gerald Whitfield ("Whitfield"). Pl.'s Dep. 56; Pl.'s Decl. ¶ 9. According to Ms. Allen, Blair seldom, if ever, interacted with Gerstong. However, once Whitfield replaced Gerstong, she observed Blair and Whitfield conversing and interacting with one another on a daily basis, and on at least one occasion looking directly at her while conversing. Pl.'s Dep. 57-58; Pl.'s Decl. ¶ 9.
Approximately two week after Whitfield became Allen's supervisor, she received a call from Lalomi Chapman ("Chapman"), Winkelmeyer's successor at Olsten, in which Chapman informed Allen that Whitfield had received a complaint indicating that Allen made some comments about a co-worker's genitals. Pl.'s Dep. 59-60; Pl.'s Decl. ¶ 10. About ten days later, Whitfield summoned Allen into his office to discuss a complaint regarding Allen speaking to a male employee outside of her work-station. Allen informed Whitfield that the complainant had, in fact, approached her, initiated the conversation, and, thereafter, produced his business card while inquiring about her landscaping needs. Pl.'s Dep. 59-60; Pl.'s Decl. ¶ 11. Allen gave Whitfield the co-employee's card and Whitfield told her that he would talk to the man. Pl.'s Dep. 63-64.
In his declaration, Whitfield indicated that one of his employees, Aaron Bates, complained to him on two occasions that Alien made sexual comments about her body in Bates' presence, making Bates feel uncomfortable. Whitfield Decl. ¶ 3-4 (Def's App. 3); see also n. 8 supra.
Allen was scheduled to take an examination to become a permanent Lucent employee, on February, 2, 2000, but Ms. Chapman, Olsten's representative, informed Allen that Whitfield had received two complaints from Lucent employees that she was soliciting money from them, and therefore Lucent did not want her working at its Mesquite facility any longer. Pl.'s Dep. 64-65.
Whitfield indicated in his declaration that three employees, Albert Smith, Terry Crow, and Rollie Nelson, complained to him that they had each been approached by Allen regarding an investment opportunity and aggressively solicited for money. Whitfield Decl. ¶ 5,7. Whitfield also indicated that Nelson complained to him that Allen had made inappropriate sexual comments which he interpreted as a sexual proposition. Id. ¶ 6.
Standard of Review
To prevail on a motion for summary judgment, the moving party has the initial burden of showing that there is no genuine issue of any material fact and that judgment should be entered as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10 (1986). The materiality of facts is determined by substantive law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Once the moving party has made an initial showing, the party opposing the motion for summary judgment may not merely rely on his pleadings, but must come forward with competent evidentiary materials that establish a genuine fact issue. Id. at 256-257, 106 S.Ct. at 2514. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 1355-56 (1986). The court must resolve any factual controversies in favor of the non-moving party. Richter v. Merchants Fast Motor Lines, Inc., 83 F.3d 96, 98 (5th Cir. 1996). Thus, in reviewing all of the evidence, the court must consider it in a light most favorable to Allen, drawing all factual inferences therefrom and making all credibility determinations related therefrom in her favor.Applicable Law
In order to prevail on her claim Allen is required to make a prima facie case of retaliatory discharge under 42 U.S.C. § 2000e-3(a), consisting of proof that (1) the employee engaged in protected conduct, (2) that the employee was thereafter subjected to an adverse employment action, and (3) that such adverse employment action was motivated by animus inspired by, or causally linked to, the protected conduct. Chaney v. New Orleans Public Facility Mgmt., Inc. 179 F.3d 164, 167 (5th Cir. 1999) cert. denied 529 U.S. 1027, 120 S.Ct. 1439, 146 L.Ed.2d 327 (2000); see also Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996) (describing the third element of a prima facie retaliation case as a "causal link") citing McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir. 1983). An employee engages in activity protected by Title VII if she has either "opposed any practice made an unlawful employment practice" by Title VII or "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). Long v. Eastfield College, 88 F.3d at 304.
The Fifth Circuit applies the familiar burden-shifting structure first enunciated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25 36 L.Ed.2d 668 (1973), in addressing unlawful retaliation claims under Title VII. See McMillan v. Rust College, Inc., supra, 710 F.2d at 1116; see also Chaney v. New Orleans Public Facility Mgmt., Inc., supra, 179 F.3d at 167. If the plaintiff makes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for the adverse employment action. Long v. Eastfield College, 88 F.3d at 308. If the employer, in turn, provides a permissible rationale for its action, the plaintiff then shoulders the ultimate burden of proving that the employer's proffered rationale was pretextual and that engaging in the protected activity was the but-for cause of the adverse employment action. In other words, the plaintiff must demonstrate the existence of a genuine issue of fact. For purposes of proving pretext, it is not enough to show that the stated reason was false; plaintiff must show that the stated reason was false and that discrimination was the actual reason for the adverse employment action. Zambrano v. Northside Independent School District, 1999 WL 33290611 *11-12 (W.D. Texas September 29, 1999) citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 516-17, 113 S.Ct. 2742, 2752 (1993).
Findings and Conclusions
Although Defendant states that the court can assume Plaintiff engaged in protected conduct, i.e. that she complained of Mr. Blair's alleged sexual harassment, ( see Def.'s Br. at 7), it is not at all clear that her "complaint" constituted protected conduct in the context of her retaliation complaint against Lucent.
As noted above, it is undisputed that Plaintiff s only complaint with regard to her supervisor, Mr. Blair's, improper conduct first arose in the context of a meeting with Ed Winkelmeyer, Olsten's representative, in which Winkelmeyer initially informed her that Blair wanted her terminated as a "temp" at Lucent.
It is undisputed that following February 2, 2000, Ms. Allen remained as an employee of Olsten Staffing and that she was assigned thereafter to work for Alcatel and subsequently obtained permanent employment there, although she was terminated in the summer of 2001 as part of a reduction-in-force.
Winkelmeyer denies that any discussion regarding Blair's misconduct occurred in the meeting. See n. 4, supra. However, the declarations of Allen and LaTonya Smith, as well as Plaintiff's deposition testimony, contradicting his recollection, are sufficient to raise an issue of fact as to whether this subject was broached with Winkelmeyer.
Winkelmeyer further stated in his affidavit that he never told anyone in Lucent's managment that Allen had made a complaint of sexual harassment against Mr. Blair. Plaintiff has presented no competent evidence to refute his statement that no one at Lucent was told of her accusation.
Ms. Smith's declaration tends to confirm that Winkelmeyer did nothing more. See n. 5, supra.
It is axiomatic that if no one at Lucent was aware of Plaintiff's sexual harassment complaint-particularly Gerald Whitfield, who advised Ms. Chapman that Ms. Allen's services were not longer wanted-Plaintiff cannot demonstrate a genuine issue of fact to establish that her complaint fell within conduct protected under Title VII. It necessarily follows that she cannot make a prima facie showing under the third element since no reasonable jury could find that Lucent's conduct was motivated by or causally linked to conduct of Ms. Allen, of which Lucent had no knowledge.
It is therefore unnecessary, under the circumstances, to address the second element of a prima facie showing of retaliation. Likewise, it is unnecessary to determine whether Plaintiff can make a showing that Lucent's reasons for terminating her, as articulated in Whitfield's declaration, were pretextual. Although Ms. Allen claims that the complaints made by co-employees about her were false, this assertion-standing alone-is insufficient since it does not tend to show that Lucent acted in bad faith in relying on the co-employees' statements concerning her activities in the workplace. See Waggoner v. City of Garland, 987 F.2d 1160, 1165-66 (5th Cir. 1993).
R RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court GRANT the Defendant's motion for summary judgment against Jennifer Allen and enter judgment dismissing Allen's Title VII action against Defendant with prejudice.
A copy of this recommendation shall be mailed to counsel for the parties.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.