Opinion
Civil Action No. 03-2453 Section: "B" (4).
October 22, 2004
ORDER AND REASONS
Before the Court is the Defendant's Motion to Dismiss and/or for Summary Judgment (doc. #17). The motion seeks dismissal of the plaintiffs' claims. The plaintiffs oppose the motion.
I. Factual and Procedural Background
This is an employment discrimination action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000 et seq. On August 28, 2003, the original plaintiff, Catherine Allen ("Allen"), an employee of the United States Postal Service filed a complaint in this Court against John E. Potter, the United States Postmaster General ("the defendant").
A. Original Complaint
In the original complaint, Allen alleges that, while working for the United States Postal Service in New Orleans, she, along with thirty co-employees, were required to work in a "cage" for one and one half hours. She alleges that only she and other "darker-colored" black employees were required to do so. (Rec. Doc. #1) She further contends that neither white employees nor "lighter skinned" black employees were subjected to the degrading experience of having to work in the "cage." (Id.) She complains that the experience created a hostile work environment because, while working, she had peanuts and bananas thrown at her. She alleges that someone put up signs which read "All blacks are monkeys," "We work for peanuts," and "Feed the animals." (Allen Cmplt. ¶ 5)
During her tenure in the cage, Allen alleges that at least two supervisors, Thomas Cass and Carl Beavers, passed by, saw the conditions, and laughed. (Allen Cmplt. ¶¶ 6-7) Further, Allen alleges that she asked another supervisor whether this cage would be her assigned work area and according to Allen, he smiled. As a result of having this experience, Allen complains that she has suffered acute stress, anxiety, involuntary sweating, insomnia, and claustrophobia. (Allen Cmplt. ¶ 9)
B. First Amended Complaint
Two months after the original complaint was filed by Allen, she filed another complaint where she sought to add the claims of sixteen additional plaintiffs. The Amended Complaint adds Tequilla Adams, Barbara Ambrose, Ronald Bazile, Ruth Borden, Willard Castle, Robert Collins, Alvin Daniel, Johnny Green, Diane Jones, Myrtle Jones, Glenn Journee, Carmen McCray, Gail McGraw, Travella Newsome, Youlanda Prevost, and Gail Simmons, all of whom are co-employees of Allen who worked in the cage. (Amended Cmplt., Rec. Doc. #2)
These additional claimants assert claims similar to Allen's, however their tenure in the cage ranged from 2-4 days. (Rec. Doc. 2) Three claimants, Tequilla Adams, Carmen McCray, and Gail McGraw allege that they missed work because of the difficult experience and allege psychiatric trauma as a result. (Amended Cmplt. ¶¶ 10, 47, 51)
II. Motion to Dismiss and/or for Summary Judgment
In response to the complaint the defendant filed the subject motion seeking a dismissal on jurisdictional grounds pursuant to Federal Rule of Civil Procedure 12(b)(1). The defendant contends that the Court lacks jurisdiction over Allen's claims because the persons added in her Amended Complaint failed to timely and/or fully exhaust the requisite administrative claim procedure and because Allen failed to allege a race and hostile environment claim.
The defendant further seeks a dismissal pursuant to FRCP 12(b)(6) because the complaint fails to state a claim for disparate treatment. Finally, the defendant contends that the claims of the remaining claimants should be dismissed because they are untimely as the amendment does not relate back to the filing of the original complaint.
In addition to the procedural grounds for dismissal, the defendant seeks a dismissal of the complaint on substantive grounds. The defendant contends that the plaintiffs' disparate treatment claim fails because the plaintiffs cannot demonstrate that the reason for relocating the work area was a pretext for discriminatory animus. He further contends that under the facts alleged by the plaintiffs, the hostile work environment claim, was not sufficiently "severe and pervasive" to alter her work environment, nor can the claimants establish that management failed to relieve them from the conditions once someone complained about the "cage."
Allen, on the other hand, contends that the court has jurisdiction over the claims of the newly added claimants because they may use the "single-filing" rule to "piggyback" onto Allen's timely-filed and fully-exhausted complaint. Allen contends that her original complaint should not be narrowly construed because the additional plaintiffs were prevented by their employer from asserting race and hostile work environment claims when they were told that the EEO had enough complaints.
The newly added plaintiffs further contends that their amended complaint is timely. They contend that their claim does relate back and that since the court permitted the amendment, the relation back argument has evaporated.
Relative to the merits of the claim, the plaintiffs contend that they can show that the reason for relocating the work area was a pretext for discriminatory animus, that the ridicule they experienced was due to their race and that they have alleged facts that are sufficiently "severe and pervasive" to alter their work environment. Having set forth the positions of the parties, the court will proceed with its review of the claims.
III. Standards of Review A. Rule 12(b)(1)
Dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure is proper when "it appears certain that the plaintiffs cannot prove any set of facts in support of their claim which would entitle them to relief." Pan-American Life Ins. Co. v. Bergeron, No. 03-30500, 2003 WL 22888894, at *1 (5th Cir. Dec. 8, 2003). Unlike a motion to dismiss or for summary judgment pursuant to Rule 12(b)(6) or Rule 56 of the Federal Rules of Civil Procedure, in deciding a motion brought pursuant to Rule 12(b)(1), the Court does not presume that the plaintiff's allegations are truthful. See id; Radil v. Sanborn Western Camps, Inc., No. 03-1343, 2004 WL 2106536, at *3 (10th Cir. Sept. 22, 2004).
A court may base its decision on a 12(b)(1) motion on "the complaint alone, the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Bergeron, 2003 WL 22888894, at *1. A motion to dismiss pursuant to Rule 12(b)(1) also differs from a Rule 12(b)(6) or a Rule 56 motion in that under 12(b)(1), the party asserting jurisdiction, the non-movant, bears the burden of proof. Id. B. Rule 12(b)(6)
A motion to dismiss for failure to state a claim under Rule 12(b)(6) is "viewed with disfavor" by the Court. Lowery v. Tex. AM Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). In considering such a motion, the complaint must be liberally construed in favor of the non-movant, and all facts pleaded in the complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1980). If on a motion to dismiss pursuant to 12(b)(6), "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." FED. R. Civ. P. 12(b).
The Court cannot dismiss a complaint for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Bain v. Ga. Gulf Corp., No. 03-30023, 2004 WL 2152360, at *4 (5th Cir. Sept. 27, 2004). Thus, the Court must determine "whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief." Lowery, 117 F.3d at 247.
C. Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure sets forth the standard for considering a motion for summary judgment:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of any material fact and that the moving party is entitled to a judgment as a matter of law.
The Court must therefore determine whether a genuine issue of material fact exists.
In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the United States Supreme Court indicated that the party seeking summary judgment must point out the absence of evidence showing a genuine issue of material fact. See Slaughter v. Allstate Ins. Co., 803 F. 2d 857, 860 (5th Cir. 1986). "Material facts are those `that might affect the outcome of the suit under the governing law.'" Morrissey v. Boston Five Cents Savings Bank, 54 F.3d 27, 31 (1st Cir. 1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "A dispute as to a material fact is genuine `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id.
Further, the party opposing summary judgment and who bears the burden of proof at trial must then "go beyond the pleadings and by [his] own affidavits, or by `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324. On a motion for summary judgment, the Court must view all evidence and related inferences in the light most favorable to the nonmoving party. See Springfield Terminal Ry. Co. v. Canadian Pac. Ltd., 133 F.3d 103, 106 (1st Cir. 1997). However, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden." Douglass v. United Services Automobile Association, 79 F.3d 1415, 1429 (5th Cir. 1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994).
IV. AnalysisA. Rule 12(B)(1) 1. The Intra-racial Color Discrimination and Hostile Environment Claims
The defendant contends that the plaintiffs' claim should be dismissed because the court lacks subject matter jurisdiction over the intra-racial discrimination claim that only darker-skinned blacks and not lighter-skinned blacks were required to work in the cage. The defendant therefore seeks a dismissal of this claim.
The plaintiffs do not specifically address the allegations that she failed to allege intra-racial discrimination by her employer when she was required to work in the cage and lighter-skinned blacks were not.
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., prohibits discrimination on the basis of race, color, religion, sex, or national origin in federal and private employment. Title VII grants an aggrieved federal employee the right to file suit in federal district court. See 42 U.S.C. § 2000e-16(c). However, before bringing suit, an employee must exhaust his administrative remedies against his federal employer. Brown v. Gen. Servs. Admin., 425 U.S. 820, 832-33 (1976).
If a federal employee fails to exhaust his administrative remedies, the district court cannot adjudicate the employee's Title VII claim. See Porter v. Adams, 639 F.2d 273, 276 (5th Cir. 1981) (noting that exhaustion is "an absolute prerequisite" to suit under § 2000e(16)); Edwards v. Dept. of the Army, 708 F.2d 1344, 1346 (8th Cir. 1983). Similarly, if an EEOC charge is untimely filed, a suit based upon the untimely charge should be dismissed absent a defense of waiver, estoppel, or equitable tolling. Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 476-77 (5th Cir. 1991). See also Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992).
Templeton v. Western Union Tel. Co., 607 F.2d 89, 91 (5th Cir. 1979) (per curiam); see also National Ass'n of Gov't Employees v. City Pub. Serv., 40 F.3d 698, 711 (5th Cir. 1994) ("[C]ourts have no jurisdiction to consider Title VII claims as to which the aggrieved party has not exhausted administrative remedies").
Regardless of whether the time limit is jurisdictional or merely a statute of limitations, it can be equitably tolled. Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 95-96 (1990). However, the plaintiff bears the burden of proving that equitable tolling is warranted. Hood v. Sears Roebuck and Co., 168 F.3d 231, 232 (5th Cir. 1999).
Under the purview of Title VII, the EEOC has promulgated regulations designed to resolve claims of discrimination at the administrative level; these regulations set forth procedures by which federal employees must pursue charges of discrimination. Federal employees claiming unlawful discrimination must first consult an EEO counselor within the employing agency within 45 days of the date of the alleged discriminatory action. See Title 29 C.F.R. § 1614.105(a)(1).
According to the record, Catherine Allen initiated the EEO Complaint process when she filed the Information for Precomplaint Counseling form on December 10, 1999. ( Exhibit 180, Information for Precomplaint Counseling) In the precomplaint, she alleged that the discriminatory action took place on December 6, 1999. She also complained that she was discriminated against because she is black, has a physical disability, and was on light duty due to her physical ailments consisting of carpal tunnel syndrome, herniated and bulging discs, cervical sprain and lumbar syndrome. (Id.)
Also during the precomplaint phase she told the EEO that Rickey Hilderbrand, a white employee who was also on light duty due to a disability, was not required to work in the cage as she was required to. ( Exhibit 181, Information for Precomplaint Counseling) She further set forth in her precomplaint that Carla Miller also a white co-employee suffered from a physical disability, was placed on light duty but was not required to work in the cage. (Id.)
The record further shows that Catherine Allen, filed her EEO complaint on June 6, 2000, and that her complaint was investigated by the EEO. ( Exhibit 174, EEO Complaint of Discrimination in the Postal Service) The allegations in her EEO complaint are consistent with the allegations she set forth in the precomplaint counseling form. She does not in either document allege that her employer discriminated against her by placing her in the cage because she is darker-skinned while allowing similarly situated lighter skinned blacks to work outside of the cage. The Court therefore finds that the intra-racial color discrimination claim is not exhausted such that the Court does not have jurisdiction to consider this claim. Having determined that Allen's intra-racial color discrimination fails for lack of jurisdiction, so does the sixteen added plaintiffs' claims because they do not have an independent basis for subject jurisdiction.
2. Hostile Environment Claim
The defendant further contends that Allen's hostile environment claim should be dismissed because she failed to raise the claim during the administrative proceeding with the EEO. The defendant further alleges, that Allen framed her discrimination claim in such a way that it did not cause the investigator to investigate the claim as a hostile environment claim. Allen does not address this issue in her opposition to the motion.
The Fifth Circuit addressed the issue of whether a charging party's claim should be cut off because he failed to correctly state the legal conclusion arising from the facts. In Sanchez v. Standard Brands, Inc. 431 F.2d 455 (5th Cir. 1970) the court held that the factual statement is the most crucial element in the discrimination charge.
In the precomplaint and the actual complaint filed with the EEO, Allen alleged that on December 6, 1999, she reported to work, punched in, and went to work downstairs on the flats patch-up, the area where the cage was located. ( Exhibit 180, Information for Precomplaint Counseling; Exhibit 174, Formal EEO Complaint) Allen further stated that when she arrived on the second-floor she saw that her work area was in a "cage." (Id.) She complained that the group of people placed inside the cage were African Americans and that they were ridiculed and harassed by supervisors, clerks and mail handlers. (Id.) She also complained that peanuts were thrown at them like they were animals in a cage. (Id.)
She further complained that there were other similarly situated white employees, namely Carla Miller and Rickey Hilderbrand but despite their disabilities, they were not required to work in the cage. (Id.) Allen therefore sought to recover compensatory and punitive damages, removal from the hostile environment, and change in her work schedule from nights to morning with weekends off and restoration of her annual leave and benefits. (Id.)
In reviewing the precomplaint form and the factual allegations contained in the complaint, it is clear to the Court that Allen has asserted a hostile work environment claim. In the precomplaint counseling form, she went so far as to use the legal term by requesting removal from the hostile environment. ( Exhibit 183) In the formal complaint she set forth facts that she was placed in a cage like a monkey and had peanuts thrown at her. She even complained that some unknown individual came up to the employees in the "cage" and gave them water and bananas. ( Exhibit 174) These allegations are sufficient to state a claim for hostile work environment. Having determined that Allen properly stated a hostile work environment claim which was properly submitted, if the sixteen plaintiffs are allowed to piggy back their claims onto hers, then their hostile environment claims would be appropriately submitted as well. The issue of piggy backing is addressed later herein.
3. The Sixteen Added Plaintiffs' Claims
The defendant contends that the sixteen plaintiffs' claims should be dismissed because the amendment by which they were added does not relate back to the date of the original complaint pursuant to Rule 15(c). The defendant further contends that the Court does not have jurisdiction over the amended claims filed by the sixteen additional claimants because, with the exception of Tequilla Adams and Ronald P. Bazile, none of the remaining claimants made contact with the EEO. ( Motion to Dismiss and/or for Summary Judgment, Page 10)
The defendant contends that although the remaining fourteen claimants filed other EEO charges none of these charges included a complaint regarding the "cage." (Id.) The defendant further contends that the plaintiffs should not be allowed to "piggyback" onto Allen's claim because the piggyback theory preexisted the Title VII statutory scheme. (Id. at 11)
The sixteen plaintiffs, on the other hand, contend that once a party is allowed to join in a case, any relation back arguments evaporate. The plaintiffs further contend that they should be allowed to use the "single filing" rule to piggyback. In so doing, the plaintiffs rely upon Baroni v. BellSouth Communications, Inc., Slip copy 7/27/04 (E.D.La. 2004) citing Bettcher v. The Brown Schools., 262 F.3d 492, 494 (5th Cir. 2001). The plaintiffs further contend that the regulations are silent regarding whether the single filing rule would be applicable to the instant case.
Rule 15(c) governs the relation back of amendments. It provides, in pertinent part:
An amendment of a pleading relates back of the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations to the action
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading . . .
FED. R. CIV. P. 15(c). In addition, Rule 15(c)(3) outlines when "the amendment changes the party or the naming of the party against whom a claim is asserted" relates back to the date of the original complaint. Id. at (c)(3).
The Court is of the opinion that the defendant's reliance on the relation back doctrine, in support of its argument for dismissal of the sixteen added plaintiffs is misplaced. The relation back doctrine only applies to amendments filed outside the statute of limitations period. See Rumberg v. Weber Aircraft Corp., 424 F.Supp 294, 301 (C.D. Cal. 1976) ("Rule 15(c) is designed to provide a uniform solution to statute of limitations problems after the limitations period has expired."); Brown v. Providence Gas Co., 445 F.Supp. 459, 462 (D.R.I. 1976) ("[The] purpose of this rule is to . . . ameliorate the harsher aspects of the limitations period.").
In this case, Allen timely filed her claim in Federal Court. She received her Notice of Final Agency Action on August 11, 2003 and had 90 days, to file her complaint or until November 11, 2003. Allen's complaint was filed on October 20, 2003, well within the statute of limitations period. The amended complaint is therefore properly filed.
On this point, Levey v. Roemer, No. 97 CIV. 401, 1998 WL 193191, at *2 (S.D.N.Y 1998), as relied upon by the defendant is not applicable because in Levey, the original plaintiff amended her suit to bring in new parties outside the relevant 90-day period.
Having determined that the Allen's complaint is timely, the next issue is whether the sixteen added plaintiffs could piggyback onto Allen's complaint such that the court has jurisdiction to hear their claims.
b. The "Single-filing" Rule and "Piggybacking" Plaintiffs
The defendant contends that the plaintiffs should not be allowed to piggyback onto Allen's complaint because the "piggyback" rule preexisted the statutory scheme created for federal sector employees. The defendant also contends that only one court extended the rule to a federal sector claim such that the sixteen added plaintiffs' claims should be dismissed as the court lacks jurisdiction over their claims.
The plaintiffs allege that the court has jurisdiction over the sixteen plaintiffs' claims because they should be allowed to use the "single filing" rule and the "piggyback rule" which has been applied in private sector cases.
The "single filing" rule provides that in a "multiple-plaintiff, non-class action suit [in which] one plaintiff has filed a timely EEOC complaint as to [her] individual claim, co-plaintiffs with individual claims arising out of similar discriminatory treatment in the same time frame need not have satisfied the filing requirement" to maintain those claims. Allen v. United States Steel Corp., 665 F.2d 689 (5th Cir. 1982) (citing Crawford, 660 F.2d at 665). Under the "single-filing" rule, a non-filing plaintiff may "piggyback." Bettcher v. The Brown Schools, Inc., 262 F.3d 492, 494 (5th Cir. 2001).
As the administrative procedure for federal employment discrimination claims set forth in 42 U.S.C. § 2000e-16(c), is "analogous to the EEOC charge procedure set forth at 42 U.S.C. § 2000e-5(e)-(f), which governs Title VII actions against private employers," the Court finds that the "single filing" rule does apply to federal sector cases. Berry v. Pierce, 98 F.R.D. 237, 246 (E.D. Tex. 1983).
In order to "piggyback:" (1) the plaintiff must be "similarly situated" to the person who actually filed the EEOC charge; (2) the charge must have provided some notice of the "collective" or "class-wide" nature of the charge; and (3) the individual who filed the EEOC charge must actually file a suit that the piggybacking plaintiff may join. Id.
It is clear in this suit that the added plaintiffs are similarly situated because their claims arise from being placed in the "cage" to perform their job. The second prong is met because Allen alleges in her precomplaint that what she experienced applied to the group of African-American light duty workers placed in the cage. Finally, Allen timely filed her suit on August 28, 2003, as her filing deadline was November 11, 2003. The Court finds therefore that the sixteen added plaintiffs are allowed to piggyback their claims to Allen's timely filed complaint.
B. 12(b)(6)-Failure to State a Claim
Next, the defendant contends that the plaintiffs have failed to state a claim for disparate treatment as they have not alleged that they suffered any "ultimate employment decision." The defendant contends that the offensive wire mesh wall was removed within a short four days after its erection and replaced by a more agreeable safety bar.
The plaintiffs generally contend that federal claims of employment discrimination are not limited to adverse personnel actions. In so doing, the plaintiffs refer to Hayes v. Shalala, 902 F.Supp 2d 259 (D.D.C. 1995).
However, the McDonnell Douglas burden-shifting framework governs the plaintiffs' Title VII claims for disparate treatment. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this framework, "[a] Title VII plaintiff bears the initial burden to prove a prima facie case of discrimination by a preponderance of the evidence." LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 (5th Cir. 1996) (citing McDonnell Douglas, 411 U.S. at 802).
Although the precise articulation of the elements of a prima facie case will vary according to the facts of the case and the nature of the claim, a plaintiff usually satisfies this initial burden by showing that: (1) she is a member of a protected class, (2) she was qualified for the position, (3) she suffered an adverse employment action, and (4) the employer continued to seek applicants with the plaintiff's qualifications, the employer selected someone of a different race or sex, or that others similarly situated were treated more favorably than she. Id. at 448 n. 3; Evans v. City of Houston, 246 F.3d 344, 348-50 (5th Cir. 2001); Rios v. Rossotti, 252 F.2d 375, 378 (5th Cir. 2001); Urbano v. Cont'l Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998).
Under the framework of McDonnell Douglas Corp., once a plaintiff has established a prima facie case, the burden of production is on the defendant to "articulate some legitimate, nondiscriminatory reason" explaining its conduct. If the defendant is able to articulate such a reason, the plaintiff must make a showing sufficient for a jury to find that the reason was mere pretext and discrimination was the true motivation. Bodenheimer v. P.P.G. Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1994). If a plaintiff fails to satisfy his burden of proof in either the first or third step, his claim fails as a matter of law.
The Court notes that the defendant also raised the issue that it is entitled to summary dismissal of the disparate treatment claim because Allen cannot prove that the reason for relocating the work area as a pretext or animus. The Court notes that it does not have to reach the issue in light of its finding that Allen did not meet her prima facie case.
An adverse employment action is defined in this Circuit as an "ultimate employment decision" such as "hiring, firing, granting leave, discharging, promoting, and compensating." Dollis v. Rubin, 77 F.3d 777, 82 (5th Cir. 1995). In some cases, a resignation may also be actionable as an adverse employment action if it qualifies as a constructive discharge. Martorell v. Galveston County, 2004 WL 1431038, at *2 (5th Cir. 2004) (per curiam).
In this case, none of the plaintiffs have alleged any facts to support a claim that they suffered an adverse employment action as a result of the alleged disparate treatment they experienced. While the Plaintiffs' First Amended and Supplemental Complaint suggests that at least some of the plaintiffs missed work for extended periods of time after the "cage" incident, they were allowed to return to their positions with the Postal Service. Furthermore, the evidence of record establishes that each of the claimants continue to work for the defendant. The Court finds that the plaintiffs have failed to state a claim of disparate treatment for which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
C. Rule 56 — Summary Dismissal-Hostile Work Environment Claim 1. Allen's Hostile Work Environment Claim
The defendant also contends that to the extent the plaintiffs have stated a hostile environment claim, the claim should be dismissed on the merits because the acts about which they complain were not "severe and pervasive". The plaintiff, on the other hand, contends that the conduct at issue was racially motivated, the duration of the conduct was sufficient to be "severe and pervasive," and management did not discharge its duty to prevent or remedy the harassment.
To establish a prima facie case for hostile work environment under Title VII, the plaintiffs must show by a preponderance of the evidence that: (1) they belong to a protected group; (2) they were subject to unwelcome harassment; (3) the harassment complained of was based on race; (4) the harassment complained of affected a term, condition, or privilege of employment; (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. Fortenberry., 2003 WL 22135639, at *2 (citing Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)).
"For harassment on the basis of race to affect a term, condition, or privilege of employment, as required to support a hostile work environment claim under Title VII, it must be sufficiently severe or pervasive to alter the conditions of the [plaintiff's] employment and create an abusive working environment." Fortenberry., 2003 WL 22135639, at *2 (citing Harris v. Forklift Systems, Inc. 510 U.S. 17, 21 (1993)). In determining whether a work environment is "hostile" or "abusive," the court looks to the circumstances including "frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23, 114 S.Ct. at 371.
a. Allen's Hostile Environment Claim
Allen testified during the administrative hearing that she filed the EEO charge because she was put in a "cage" on December 6, 1999. (Allen Testimony, Transcript before Equal Employment Opportunity Commission, June 20, 2003, Page 50) She testified that she found the experience degrading and humiliating. (Id. at 52) She testified that December 6th was a Saturday and that she came in for two o'clock that day. (Id. at 55).
Allen testified further that she only worked an hour and a half on December 6th, and thereafter she was off from work for four days. (Id. at 60) When she returned to work, the cage had been removed. (Id. at 60) Allen only worked 1½ hours in the cage. She testified that she did not know who put up the sign on the cage or who threw the peanuts at her. (Id. at 62) Allen further testified that she suffered mental anguish and anxiety as a result of her experience. (Id. at 66)
The Court finds that while Allen worked in the cage for 1½ hours and the experience would clearly be degrading and offensive, this experience alone, under Fifth Circuit law could not constitute "severe" or "pervasive" conduct. Compare, e.g., Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 875 (5th Cir. 1999) (finding that four sexual comments and several instances of touching over a two-year period were not sufficient to create a material issue of fact as to severe or pervasive harassment); and Celestine v. Petroleous de Venezuella SSA, 266 F.3d 343, 354 (5th Cir. 2001) (finding that the plaintiff could not establish severe or pervasive harassment based on eight incidents of alleged racial harassment during a two-year period).
It is not enough that plaintiffs found the comments offensive. See Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 874 (5th Cir. 1999). Teasing and offhand comments do not by themselves create an abusive work environment. See id.
The next question is whether the experience coupled with the peanuts being thrown at Allen and a sign which reads, "We work for peanuts" is sufficiently "severe" or "pervasive" conduct. There is no evidence that the sign or the peanuts were placed in Allen's work area by her employer or supervisor. While Allen is a member of a protected class, who worked in a cage which affected the condition of her employment, Allen still has difficulty establishing a prima facie case because the fifth requirement is missing.
The fifth requirement which sounds the death knell to Allen's claim is the requirement that once the employer knew of the harassment, it took prompt remedial action. See Jones v. Flagship Int'l 793 F.2d 714, 719-20 (5th Cir. 1986) see also Sharp v. City of Houston, 164 F.3d 923, 929 (5th Cir. 1999) The evidence of record shows that Allen worked in the cage on December 6th and that she was off of work for the next four days. (Allen Testimony, Transcript before Equal Employment Opportunity Commission, June 20, 2003, Page 92) The first person to advise management that there was a problem with the patch up cage was Kathleen Lucien. Lucien saw the cage go in use on December 4, 1999, and wrote a letter but did not give it to anyone. (Lucien Testimony, Transcript before Equal Employment Opportunity Commission, June 20, 2003, Page 26) It was not until Tuesday, December 7, 1999 that Lucien, while on morning break, telephoned Anthony Ruda, the Manager of the Louisiana District, and advised him that she observed a problem on the workroom floor. (Id. at 26-27) Ruda immediately responded to Lucien's call, he spoke with workers in the cage and ½ hour later, the maintenance workers began to dismantle the wire mesh wall. (Id. at 28)
The cage was up for a total of four days. Neither Allen nor her co-workers complained to anyone about what they experienced. When another co-worker who was also on light duty but not assigned to the cage complained to the District Manager, he immediately tended to the problem. He walked over to the area, observed the workers, spoke with the workers, and then instructed maintenance to remove the "cage." The Manager's response was so prompt that when Allen returned to work, the "cage" was gone. The Court therefore finds that Allen cannot establish a prima facie case because the evidence shows that management promptly responded to the complaint when one was finally made. b. The Added Plaintiffs' Hostile Environment Claims
The fact that lower level supervisors allegedly observed the employees in the cage, is not material because the employees did not complain to them.
The only evidence of record regarding what the plaintiffs experienced consists of Allen's investigatory file. The remaining sixteen plaintiffs have not filed an EEO precomplaint or charge and nor have they submitted any affidavit to the court detailing their experience. The only argument presented by these claimants is that the racially motivated ridicule lasted for up to four days.
The Court notes that while the defendant on occasion appears to refer only to Allen's hostile environment complaint, that throughout the memorandum he makes reference to dismissing the entire complaint. Under the superseding rule, the amended complaint supersedes the original complaint because the plaintiff did not incorporate by reference the allegations set forth in the original complaint. Therefore the Court has construed the summary judgment seeking a dismissal of the hostile environment claim which has been asserted by all the claimants. Guaranty Nat. Ins. Co. v. Vic Mfg. Co., 143 F.3d 192, (5th Cir. 1998).
However, the complaint indicates that each of the sixteen added plaintiffs were in the cage from 1-4 days. Not all of the claimants had to endure the experience for four days. The plaintiffs have failed to present evidence of the type, nature, duration or extent of their experience and nor is there evidence of who used the language or put the insulting signs up. While the plaintiffs contend that the employer did nothing to remedy the problem the evidence suggests otherwise.
Furthermore, as stated by the United States Supreme Court in Celotex, on a motion for summary judgment, a claimant cannot just rest on the complaint when the defendant presents proof that the plaintiffs cannot meet their prima facia case. To the contrary, they must go beyond the pleadings and by affidavits, depositions, answers to interrogatories or admissions on file show specific facts that present genuine issues for trial. The plaintiffs have failed to do so in this case. The Court therefore finds that relative to the sixteen added plaintiffs there are no material questions of fact and that the defendant is entitled to judgment as a matter of law.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the Defendant's Motion to Dismiss and/or for Summary Judgment (doc. #17) is Denied in Part and Granted in Part.
1. The motion is DENIED to the extent that the defendant sought dismissal of Catherine Allen's Hostile Work Environment Claim because she failed to exhaust pursuant to 12(B)(1).
2. The motion is DENIED to the extent that the defendant sought dismissal of the claims of Tequilla Adams, Barbara Ambrose, Ronald P. Bazile, Ruth Borden, Willard S. Castle, Robert Collins, Alvin Daniel, Johnny Green, Diane Jones, Myrtle Jones, Glenn Journee, Carmen McCray, Gail McGraw, Travella Newsome, Youlanda Prevost, and Gail Simmons because the amendment did not relate back and because they may not piggyback onto Catherine Allen's EEO complaint.
2. The motion is GRANTED in all other respects.