Opinion
Civil Action No. 3:98-CV-1389-D
February 2, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Elaine Belmear ("Belmear") alleges that defendant Mary Kay Inc. ("Mary Kay") discriminated against her based on sex and disability, and retaliated against her, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., and intentionally inflicted emotional distress on her. Mary Kay moves for summary judgment. For the reasons that follow, the court grants the motion as to all causes of action except Belmear's retaliation claims. Concerning these claims, the court grants the motion in part and denies it in part, and grants Mary Kay leave to file another summary judgment motion that addresses the balance of these claims.
I
Mary Kay hired Belmear as a temporary employee and later employed her in a permanent position. Before Mary Kay hired her, Belmear had been involved in an automobile accident that resulted in the amputation of her right leg above the knee.
In pertinent part, Belmear maintains that during her employment tenure, Mary Kay failed reasonably to accommodate her physical disability in various respects, downgraded her job performance on grounds that stemmed from limitations placed on her by her disability, denied her pay raises or gave her smaller raises than her performance merited, unjustifiably reprimanded her, subjected her to a hostile work environment based on the erroneous perception that she is homosexual, and retaliated against her for opposing unlawful employment practices and filing a charge of sexual harassment and disability discrimination with the Equal Employment Opportunity Commission ("EEOC").
Belmear filed this action pro se. Later represented by counsel, she amended her complaint to allege Title VII sexual harassment and retaliation, ADA disability discrimination and retaliation, intentional infliction of emotional distress, and invasion of privacy. Mary Kay moves for summary judgment.
The parties agreed to dismissal of Belmear's invasion of privacy claim and on September 22, 1999 the court dismissed that claim with prejudice. See P. Br. at 2 n. 1 (acknowledging that invasion of privacy claim was dismissed without opposition).
Mary Kay has filed a December 8, 1999 motion to strike the testimony of Belmear's designated expert witness in psychology. The court denies the motion without prejudice in view of the disposition of Mary Kay's summary judgment motion.
II
Belmear alleges that she was subjected to sexual harassment, in the form of a hostile work environment, based on the erroneous perception that she is homosexual. She sues for relief under Title VII. Mary Kay moves for summary judgment dismissing this claim.To establish that she was subjected to a hostile work environment, Belmear must demonstrate inter alia that the sexually objectionable environment was both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that she in fact did perceive to be so. Faragher v. Guy of Boca Raton, 524 U.S. 775, 787 (1998) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)). "[W]hether an environment is `hostile' or `abusive' can be determined only by looking at all the circumstances." Harris, 510 U.S. at 23. These circumstances may include (1) the frequency of the discriminatory conduct, (2) its severity, (3) whether it was physically threatening or humiliating, or a mere offensive utterance, and (4) whether it unreasonably interferes with an employee's work performance. Id.
The court need not resolve the parties' dispute concerning Belmear's ability to satisfy the requirement that she was discriminated against because of her sex. The court will assume arguendo that a person who is harassed because the harasser erroneously believes she is homosexual is discriminated against because of her sex.
The court holds that Belmear has failed to adduce evidence that would permit a reasonable trier of fact to find that she was subjected to a hostile work environment. Because Mary Kay will not have the burden of proof at trial of proving that the work environment was hostile, it can meet its summary judgment obligation by pointing the court to the absence of evidence to support Belmear's claim that it was hostile. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If Mary Kay does so, then Belmear must go beyond her pleadings and designate specific facts showing that there is a genuine issue for trial. See id.; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). Summary judgment is mandatory where the nonmoving party fails to meet this burden. Little, 37 F.3d at 1076.
In its motion, Mary Kay has pointed out that Belmear relies only on a few minor comments from coworkers that Belmear believed referred to her being homosexual. See D. Br. at 14-15. It maintains that Belmear's "claim cannot survive summary judgment because these few alleged remarks are not sufficiently severe and pervasive to establish a hostile work environment as a matter of law." Id. at 15. Because Mary Kay has pointed the court to an absence of evidence that would support this claim, the burden shifts to Belmear to adduce evidence that would support a finding that she was subjected to a hostile work environment. In her brief, Belmear points in one paragraph to the allegations of her first amended complaint. See P. Br. at 32. She also appears to rely in a footnote on evidence that Mary Kay cites in its own brief. See id. at 33 n. 12 (citing D. Br. at 17-18 and 19-21). Belmear points to no summary judgment evidence of her own, but argues that she has created a genuine issue of material fact.
Citing Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), Belmear also suggests that Mary Kay has relied on the wrong legal standard for what is necessary to constitute a hostile work environment. P. Br. at 31. The court disagrees. Oncale does not change the requirement that a hostile work environment be both objectively and subjectively hostile. Moreover, regardless of the correct standard, Belmear has failed to cite the court to summary judgment evidence that supports her claim.
The unsworn allegations of Belmear's complaint do not, of course, constitute summary judgment evidence. See Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991). Concerning Belmear's possible reliance on evidence cited in Mary Kay's brief, Mary Kay argues in reply that it is "unable to decipher what forms the evidentiary basis for [Belmear's] claims," D. Rep. Br. at 5 n. 17. The court concurs in this observation. The court has reviewed the pages of Mary Kay's brief that Belmear cites. It has located no summary judgment evidence that would permit a reasonable trier of fact to find that Mary Kay subjected Belmear to a sexually objectionable environment that was both objectively and subjectively offensive. The court also agrees with Mary Kay's contention that "[t]his footnote does not adequately apprise Defendant, or this Court, of the other actions that form the basis for [Belmear's] . . . harassment claim, nor does it adequately specify the facts in the record upon which she relies for her argument[.]" Id. at 6 n. 24.
The court is not required to search the summary judgment record for such evidence. In general, Fed.R.Civ.P. 56 obligates a party to designate the specific facts in the record that create genuine issues precluding summary judgment. "Rule 56 does not impose a duty on the district court to sift through the record in search of evidence to support a party's opposition to summary judgment." Doddy v. Oxy USA, Inc., 101 F.3d 448, 463 (5th Cir. 1996) (citing Jones v. Sheehan, Young Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996)); accord Stults v. Conoco, Inc., 76 F.3d 651, 657 (5th Cir. 1996). The court has no obligation to consider evidence that the nonmovant does not bring forth in opposition to the summary judgment motion. Doddy, 101 F.3d at 463 (citing Copsey v. Swearingen, 36 F.3d 1336, 1347 n. 9 (5th Cir. 1994)). To satisfy her burden, a nonmovant is required to identify specific evidence in the record, and to articulate the precise manner in which that evidence supports her claims. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (citing Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir, 1992)). When a party fails to refer to items in the record, the evidence is not properly before the court in deciding whether to grant the motion. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 (5th Cir. 1992); Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988) (on rehearing) (denying rehearing after plaintiff asserted that deposition was of record when district court granted partial summary judgment, and holding that because plaintiff failed to designate, or in any way refer to, deposition as source of factual support for response to motion, deposition was never made part of competent summary judgment record before district court).
The court therefore grants summary judgment dismissing Belmear's Title VII sexually hostile work environment claim.
III
Belmear alleges that Mary Kay discriminated against her based on her disability. In her summary judgment response, she has limited her claim to the assertion that Mary Kay failed to afford her reasonable accommodation of her disability. See P. Br. at 34 (stating that "[Belmear] does not oppose the dismissal of a disability discrimination claim based upon issuance of the written warning."); id. at 34-35 (asserting reasonable accommodation claim).
Mary Kay moves for summary judgment on the ground inter alia that Belmear failed to exhaust her administrative remedies concerning this claim by including it in her EEOC charges filed January 6, 1997 and November 5, 1997. See D. Br. at 22. Mary Kay is correct. The January 6, 1997 charge mentions only discrimination based on a performance warning. D. App. at 149 ("I was issued a final warning regarding my performance on or about September 9, 1996 due to my disability. . . . I also believe I have been discriminated against because of my disability, in violation of The Americans With Disabilities Act of 1990 by being issued a final warning regarding my performance."). Belmear no longer relies on this claim. See P. Br. at 34. The November 5, 1997 charge alleges retaliation for filing the January 6, 1997 charge. Id. at 192. Although Belmear purports to address the exhaustion issue in her brief, stating at one point that she has "already established why the accommodation claims as alleged by Plaintiff should not be dismissed insofar as the Mary Kay failure to exhaust administrative remedies is concerned," P. Br. at 37, the court has found no opposition argument, nor apparently has Mary Kay, see D. Rep. Br. at 1 ("[Belmear] also failed to address the issue of her failure to exhaust her administrative remedies on her ADA and retaliation claims; thus, [Mary Kay] assumes [Belmear] does not oppose dismissal on those points.").
In the Fifth Circuit, a Title VII action is limited in scope to the EEOC investigation that can reasonably be expected to grow out of the charge of discrimination. Young v. Guy of Houston, Tex., 906 F.2d 177, 179 (5th Cir. 1990) (citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)). In other words, a complaint filed pursuant to Title VII may encompass any kind of discrimination "like or related to" allegations contained in the EEOC charge. Sanchez, 431 F.2d at 466. The same principles and result apply to an ADA claim. See Leptich v. City College of SF, 134 F.3d 378, 1998 WL 22037, at **1 (9th Cir. Jan. 15, 1998) (per curiam) (unpublished opinion) (holding that plaintiff was required to exhaust administrative remedies before seeking judicial relief for ADA claim and that charges not raised in administrative complaint could not be basis of complaint in federal court) (citing 42 U.S.C. § 12117 (a) as incorporating Title VII procedures); Davis v. Alhambra Nat'l Water Co., 1999 WL 33435, at *1 (N.D. Cal. Jan. 20, 1999) ("Because plaintiff is required to exhaust his administrative remedies before proceeding to court with his ADA claim, the scope of this action must be limited by the scope of plaintiff's charge with the EEOC.").
The November 5, 1997 charge alleges retaliation. It is not like or related to the ADA reasonable accommodation claims. The January 6, 1997 charge pertains to sexual harassment and the performance warning complaint that Belmear has now dropped. The EEOC investigation that could reasonably be expected to grow out of these claims would not extend to the reasonable accommodation claims that Belmear asserts. See P. Br. at 35.
The court holds that Belmear has failed to exhaust her administrative remedies concerning her ADA reasonable accommodation claims. These claims are therefore dismissed.
IV
Belmear alleges that Mary Kay retaliated against her, in violation of Title VII and the ADA, for opposing unlawful discrimination and filing a charge of discrimination with the EEOC in January 1997. Mary Kay moves for summary judgment dismissing these claims.
Perhaps because Belmear did not make clear in her first amended petition or in discovery what she contends are the protected activities and the retaliatory acts, Mary Kay has treated the claims as if they are based solely on the filing of the EEOC charge, see D. Br. at 26, and has expressed confusion concerning what Belmear maintains are the retaliatory actions, id. at 34. Mary Kay has correctly recited in its brief the formulation for a prima facie retaliation case, see id. at 26, and has properly set out the burden-shifting regimen, id. at 26-27, but has not argued that Belmear has failed to establish a prima facie case or that Mary Kay has met its production burden. Instead, Mary Kay argues that Belmear has not asserted retaliatory acts that constitute ultimate employment decisions, id. at 27-30, contends that Belmear cannot establish causation between the filing of her EEOC charge and any adverse employment action, id. at 30-33, and posits that if Belmear relies on allegations contained in ¶ VII of her first amended petition, these assertions are barred for various reasons, and that Belmear cannot establish causation with respect to them, id. at 34-37.
In her summary judgment response, Belmear maintains that she relies on more protected acts than the mere filing of the EEOC charge, see P. Br. at 43, concedes that many of the retaliatory acts that Mary Kay challenges are not actionable, see id. at 45, and clarifies that she is relying on the following adverse employment actions to support her retaliation claim: denying her a pay raise, giving her a small pay raise, denying her overtime compensation on the same basis as other similarly situated employees, barring her from the opportunity to transfer to other departments into equal and/or higher positions, and subjecting her to psychological injury, id. at 44-45.
The court is able to grant summary judgment dismissing three of these claims because they do not involve ultimate employment decisions and Mary Kay has moved for summary judgment on that basis. The anti-retaliation provision of Title VII is designed to address only "ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) (quoting Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995) (per curiam)). "`Ultimate employment decisions' include acts `such as hiring, granting leave, discharging, promoting, and compensating." Id. (citations omitted). This same reasoning applies to the ADA anti-retaliation provision.
Denial of overtime is not an ultimate employment decision. See Benningfield v. City of Houston, 157 F.3d 369, 376-77 (5th Cir. 1998) (holding that nonpayment of overtime was administrative matter than did not constitute adverse employment action), cert. denied, ___ U.S. ___, 119 S.Ct. 1457 (1999). Psychological injury would only rise to the level of an ultimate employment decision if Belmear could establish that it resulted in an ultimate employment decision. See Mattern, 104 F.3d at 707 (holding that anxiety that resulted from hostility from fellow employees and having tools stolen, without more, fell well below required standard to qualify as ultimate employment decision). Denial of a transfer to an equal position in another department is not an ultimate employment decision. Burger v. Central Apartment Management, Inc., 168 F.3d 875, 879 (5th Cir. 1999) (holding that denial of request for purely lateral transfer did not constitute ultimate employment action where evidence established that position had same job title, benefits, duties, and responsibilities as the position held by employee seeking transfer).
The court addresses here only the component of Belmear's transfer claim that concerns an equal position, not a higher position. The court reserves judgment concerning whether the "higher" position is sufficiently so to constitute a promotion and thus an ultimate employment decision.
The court cannot grant summary judgment as to the balance of Belmear's retaliation claim. Mary Kay has focused its motion on adverse employment actions that differ from those that Belmear cites in her responsive brief. And although Mary Kay challenges whether Belmear can establish the causation element, Mary Kay neither moved for summary judgment on the ground that Belmear had failed to establish a prima fade case, nor adduced proof of legitimate, nondiscriminatory reasons for taking the actions that Belmear maintains are retaliatory. The court cannot assess the merits of the causation element in its summary judgment inquiry unless the movant challenges the plaintiff's prima fade case or meets its own production burden, thus shifting to the plaintiff the obligation to create a genuine issue of fact concerning causation.
In view of Belmear's concession that she relies on certain allegations as "background incidents," P. Br. at 45, several of Mary Kay's arguments are moot.
To establish a prima facie case of unlawful retaliation, Belmear must demonstrate that (1) she engaged in a protected activity; (2) an adverse employment action occurred; and (3) a causal link existed between the protected activity and the adverse employment action. Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996) (addressing Title VII). The causal connection required is cause-in-fact or "but for" causation. Jack v. Texaco Research Ctr., 743 F.2d 1129, 1131 (5th Cir. 1984). "When the employee sues and complains that this prohibition has been violated, the employee must prove that there was a causal connection between the protected activity and the adverse employment decision. The connection required is causation-in-fact or `but for' causation. Whether or not there were other reasons for the employer's action, the employee will prevail only by proving that `but for' the protected activity she would not have been subjected to the action of which she claims. If the employee does not bear that burden of persuasion, she may not prevail." Id. (emphasis added).
Accordingly, the court denies in part summary judgment on Belmear's retaliation claims. The court grants Mary Kay leave to file a summary judgment motion addressed to the remainder of the claims.
N.D. Tex. Civ. R. 56.2(b) provides that "[u]nless otherwise directed by the presiding judge, or permitted by the Federal Rules of Civil Procedure, a party may file no more than one motion for summary judgment." Given the apparent ambiguity in Belmear's retaliation claims preceding the filing of her responsive brief, the court concludes that Mary Kay should be permitted an additional opportunity to address the claims by summary judgment motion if it has grounds to do so.
V
Belmear brings a pendent state-law claim for intentional infliction of emotional distress. She asserts that Mary Kay engaged in actionable conduct by engaging in the following behavior: denying her ADA rights when she was hired; denying her appropriate accommodations; reprimanding her for not being able to perform certain job functions; making fun of her sexuality; isolating her from the Color Team; giving her a false "equal switch" of duties that resulted only in more work for her; retaliating against her for complaining about sexual harassment; belittling and failing to investigate her complaint and failing to take appropriate action against the harassers despite her continuing complaints of harassment and hostile work environment; subjecting her to conflicting instructions on job assignments and reprimanding her for proceeding based on her best judgment; coworkers and supervisors deliberately undermining her ability to perform her job functions by refusing to return phone calls and e-mails; refusing to allow her to attend Color Team meetings; planning team building activities without including her and that she could not participate in and then reprimanding her for not being a team member; retaliating against her by reprimanding her for wanting to transfer out of the department into a position that offered her a better future; displaying an openly hostile attitude toward her when she tried to defend herself against unwarranted criticisms; and failing and refusing to protect her from harassment until after she suffered a physical and mental breakdown, even though Mary Kay could have transferred her to another department or created a position in another department. P. Br. at 46-48.To recover on a claim for intentional infliction of emotional distress, Belmear must establish that (1) Mary Kay acted intentionally or recklessly, (2) its conduct was extreme and outrageous, (3) its actions caused Belmear emotional distress, and (4) the emotional distress was severe. See Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993); see also Stults v. Conoco, Inc., 76 F.3d 651, 658 (5th Cir. 1996). Extreme and outrageous conduct is that which is so extreme in degree, or so outrageous in character, as to go beyond all bounds of decency, to be regarded as atrocious, and utterly intolerable in a civilized community. Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993); see also Stults, 76 F.3d at 658. "Generally, the case is one in which a recitation of the facts to an average member of the community would lead him to exclaim, `Outrageous.'" Cantu v. Rocha, 77 F.3d 795, 810 (5th Cir. 1996) (quoting Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir. 1989)).
"It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery." McKethan v. Texas Farm Bureau, 996 F.2d 734, 742 (5th Cir. 1993) (quoting Wornick Co., 856 S.W.2d at 734). The essential ingredient of extreme and outrageous conduct required for such a claim has been narrowly construed in the employment context. Hagen v. BeautiControl Cosmetics, Inc., 1998 WL 355479, at *2 (N.D. Tex. June 30, 1998) (Fitzwater, J.). Such a construction makes establishing "extreme and outrageous" conduct in the employment context very difficult. See id. Under Fifth Circuit jurisprudence, an employer's deplorable conduct does not constitute "extreme and outrageous" conduct "except in the most unusual cases." Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 654 (5th Cir. 1994); see also Battee v. Eckerd Drugs, Inc., 1997 WL 340941, at *9 (N.D. Tex. June 12, 1997) (Buchmeyer, C.J.).
It is well settled that "[a]n employer's conduct, even if a Title VII violation, rises to the level of `extreme and outrageous' in only `the most unusual cases.'" Hirras v. National R.R. Passenger Corp., 95 F.3d 396, 400 (5th Cir. 1996) (per curiam) (citing Prunty, 16 F.3d at 654). Belmear has not alleged facts that, if proved, would establish that Mary Kay committed intentional infliction of emotional distress.
* * *
The court grants Mary Kay's motion for summary judgment as to all causes of action except Belmear's retaliation claims. Concerning these claims, the court grants the motion in part and denies it in part.
SO ORDERED.