Opinion
Case No. 1:97-CV-357.
November 21, 2000.
Thomas Walter Umphrey and James Erick Payne, Of Provost Umphrey, Beaumont TX attorneys for Plaintiffs.
Michael D. Hausfeld, Victoria C. Arthaud and Joseph M.Sellers of Cohen, Milstein, Hausfeld Toll, Washington DC Reuben A. Guttman, Brian P. McCafferty and Charles V. Firth, of Provost Umphrey, Washington DC Cyrus Mehri and Pamela Coukos of Mehri, Malkin Ross, Washington DC Attorneys for James V. Carroll, III, Mark E. Schwartz, and Anne Gibson Bruckner of Littler, Mendelson Defendant, Houston, TX.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON PLAINTIFF LORETTA BURRELL'S CLAIMS
Before the court is Defendant's Motion for Partial Summary Judgment on Plaintiff Loretta Burrell's Claims, filed May 15, 1998. Plaintiff filed her opposition on June 22, 1998, and a supplemental opposition on July 16, 1998. Defendant filed a reply on July 20, 1998. After consideration of the motion, oppositions and reply, the court is of the opinion that Defendant's Motion should be GRANTED.
I. Background
The facts and allegations surrounding this lawsuit can be found in previous orders of this court. See Burrell v. Crown Cent. Petroleum, Inc., 177 F.R.D. 376 (E.D.Tex. 1997); Burrell v. Crown Cent. Petroleum, Inc., 176 F.R.D. 239 (E.D.Tex. 1997). Loretta Burrell ("Burrell"), an African-American female, along with six other employees of Defendant Crown Central Petroleum's ("Crown") Pasadena refinery and one employee of LaGloria Oil and Gas Company (a wholly owned subsidiary of Crown), filed this lawsuit alleging that they were victims of race and/or sex discrimination. Specifically, Burrell claims that during her tenure at Crown she was subjected to both a racially and sexually hostile work environment in violation of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5, et seq. ("Title VII") and the Civil Rights Act of 1871, as amended, 42 U.S.C. § 1981 ("Section 1981").
On April 12, 1999, the eight named plaintiffs filed their Motion for Class Certification. Plaintiffs sought to certify a class of "[a]ll African-American and/or female persons employed at any Crown Central Petroleum facility in Texas at any time from June 30, 1995 to present, who have been or continue to be subjected to a hostile work environment based on race and/or sex." [Pls.' Mot. for Class Certification at 1] Relying of the Fifth Circuit's recent decision in Allison v. Citgo, 151 F.3d 402 (5th Cir. 1998), the court concluded that Plaintiffs' proposed class was inappropriate for class certification under either Rule 23(b)(2) or (b)(3). [ See Memorandum Opinion and Order Denying Plaintiffs' Motion for Class Certification dated November 21, 2000]
Initially, Loretta Burrell asserted twelve separate claims against Crown alleging that it had engaged in race and sex discrimination in violation of Title VII and § 1981 by (i) failing to promote her to eight different positions; (ii) transferring other employees during the lockout from their temporary assignment back to their permanent positions; and (iii) failing to take prompt remedial action against an alleged racially and sexually hostile work environment. After Crown filed its motion for partial summary judgment, however, Burrell dropped most of her claims. [ See Pls.' Opp'n at 2, n. 1] Currently, her only remaining claims are that she was subject to both a racially and sexually hostile work environment during her tenure at Crown.
Burrell began her employment with Crown in April of 1979, working as a Telex Operator at Crown's Supply and Transfer facility in Bellaire, Texas. Burrell is currently employed as an Administrative Assistant I in Crown's Operations Department in Pasadena, Texas. Through her complaint, Burrell alleges that she has been subjected to severe and pervasive racial and sexual harassment since arriving at Crown's Pasadena Refinery in 1987.
With respect to her racially hostile work environment claim, Burrell recalls several offensive incidents (one prank and four comments), which she contends were racially motivated. In 1994 or 1995, Burrell allegedly discovered a dead mouse in the Operations Department's fax basket, which is located behind her desk. Burrell testified that when she saw the mouse, she "hollered" and a shift foreman emerged laughing. According to Burrell, the shift foreman (whose identity she cannot recall) admitted that he placed the mouse in the basket. The foreman then allegedly picked up the mouse and threw it away. Although the foreman said nothing that led Burrell to believe that the incident was racially motivated, she contends that it was. Burrell never complained to anyone at Crown about the dead mouse incident.
The second incident complained of occurred when a temporary employee remarked to Burrell that she looked like the actress Whoopi Goldberg. According to Burrell, she was working in the lab and wearing a red hat when the employee made the comment. Burrell responded by asking the employee "Do you think all blacks look alike because they got a hat on? Why do I look like Whoopi Goldberg? What makes me look like Whoopi Goldberg?" Burrell testified that the employee replied "Well, you've got a hat on, you look like Whoopi Goldberg." Burrell admits that she never complained about the comment to anyone at Crown.
Burrell also claims that, Alvin Francis, a white shift foreman at the Pasadena refinery, made racially offensive remarks to her on two separate occasions. On one occasion, Francis commented, in reference to an obese African-American woman who was hit by a truck while crossing a freeway, "They must have thought that they hit a big cow." On another occasion, Burrell testified that Francis commented to her, "Aren't you sick of these honkies," referring to the Caucasian employees. Burrell stated that in response to these inappropriate comments, she "would just ignore him." Again, Burrell never reported the comments to anyone at Crown.
Finally, Burrell recalls a racially offensive comment made to her while she was working in the laboratory with a red bandana tied around her head. On this particular occasion, Burrell claims that a temporary employee remarked that she looked like Aunt Jemima with that "red rag tied around [her] head," and the employee inquired as to whether she was "fixing pancakes that night." According to Burrell, the other employees in the lab laughed and joked about the incident the next day. After Burrell announced that she did not think that the incident was "funny," however, the laughing stopped and that "was the end of it." Like the previous incidents, Burrell never reported the comments to her supervisor or to Crown's Human Resources Department.
Turning to her sexually hostile work environment claim, Burrell alleges that she was the target of open sexual advances by Crown employees. To support this charge, Burrell points to the frequent offensive touching by a co-worker and comments relayed to her regarding the shape of her body and the "way she walked down the hall." Specifically, Burrell claims that, Howard Hagen, a Crown chemist, brushed up against her, touching her hip or buttock, when ever he tried to get by her in the lab. Burrell testified that Hagen brushed up against her with such frequency that she cannot recall the number of times it happened. Here too, Burrell admits that she never complained about the offensive touching to anyone at Crown.
Burrell also claims that she was subjected to a sexually hostile work environment based on a comment that a female co-worker, Bernie Burns, relayed to her. According to Burrell, Burns stated that the "guys in operations" were always talking about Burrell's shape and the way she "walked down the hall." Burrell testified that she did not know who made the comments, when the comments were made, or what was said about her shape or the way she walked. Again, Burrell did not notify her supervisor or the Human Resources Department about the comments.
Summary judgment evidence is subject to the same rules that govern the admissibility of evidence at trial. See Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 175-76 (5th Cir. 1990 ), cert. denied, 114 S.Ct. 171 (1993). Because these comments were overheard by a coworker and subsequently relayed to Burrell, they are nothing more than inadmissible hearsay and cannot support Burrell's hostile work environment claim. See FED. R. EVID. 801(c); Roark v. Kidder, Peabody Co., Inc., 959 F. Supp. 379 , 385 (N.D.Tex. 1997).
In addition to the specific incidents mentioned above, Burrell also claims to have seen offensive cartoons placed on her desk and posted on a bulletin board in the shift foreman's office. According to Burrell, these cartoons were demeaning to African-Americans and females. Instead of reporting the cartoons to her Human Resources Representative, Burrell testified that she collected them for over ten years because she thought she "might be able to use [them] one of these days." Indeed, while Burrell alleges that she was exposed to these cartoons for over ten-years, she never complained about them to anyone at Crown.
After deposing the eight named plaintiffs, Crown filed this motion for partial summary judgment against Burrell on her individual claims. In support of its motion, Crown argues that there is no genuine issue of material fact as to whether Crown knew or should have known about the alleged harassment experienced by Burrell and failed to take prompt remedial action, and, thus, Crown is entitled to summary judgment as a matter of law.
II. Legal Standard
The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed R. Civ. P. 56(c). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive law identifies which facts are material. See id. at 248. The party moving for summary judgment has the burden to show that there is no genuine issue of fact and that it is entitled to judgment as a matter of law. See id. at 247. If the movant bears the burden of proof on a claim or defense on which it is moving for summary judgment, it must come forward with evidence that establishes "beyond peradventure all of the essential elements of the claim or defense." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). But if the nonmovant bears the burden of proof, the movant may discharge its burden by showing that there is an absence of evidence to support the nonmovant's case. See Celotex, 477 U.S. at 325. In this instance, the movant is not required to offer evidence to negate the nonmovant's claim. See Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885-86 (1990). Once the movant has carried its burden, the nonmovant "must set forth specific facts showing that there is a genuine issue for trial." Fed R. Civ. P. 56(e). The nonmovant must adduce affirmative evidence. See Anderson, 477 U.S. at 257.
Summary judgment evidence is subject to the same rules that govern the admissibility of evidence at trial. See Lavespere, 910 F.2d at 175-76. In considering a motion for summary judgment, the court cannot make credibility determinations, weigh evidence, or draw inferences for the nonmovant. See Anderson, 477 U.S. at 255. The evidence of the nonmovant, however, is to be believed, and all justifiable inferences are to be drawn in the nonmovant's favor. See id.
III. Discussion
A hostile work environment claim arises when a plaintiff alleges harassment "sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment." Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). To prevail on her hostile work environment claims, Burrell must show that: (1) she belongs to a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based upon her race and/or gender; (4) the harassment affected a term, condition or privilege of employment; and (5) Crown knew or should have known about the harassment experienced by Burrell and failed to take prompt remedial action. See Hirras v. Nat'l R.R. Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996); Waymire v. Harris County, 86 F.3d 424, 428 (5th Cir. 1996); McCray v. DPC Indus., Inc., 942 F. Supp. 288, 292 (E.D.Tex. 1996).
In Faragher v. Boca Raton, the Supreme Court noted that "[a]lthough racial and sexual harassment will often take different forms, and standards may not be entirely interchangeable, we think there is good sense in seeking generally to harmonize the standards of what amounts to actionable harassment." 118 S.Ct. 2275, 2283 n. 1 (1998).
Hostile work environment claims brought under Title VII and § 1981 are analyzed under the same standards. See Patterson v. P.H.P Healthcare Corp., 90 F.3d 927, 940 (5th Cir. 1996); Johnson v. City of Fort Wayne, 91 F.3d 922, 940 (7th Cir. 1996).
For purposes of its summary judgment motion, Crown contends that even assuming, arguendo, that Burrell could establish that she was subjected to a hostile environment, Crown cannot be held liable as a matter of law because there is no evidence that it knew or should have known of the alleged harassment and failed to take prompt remedial action. In fact, Crown points out that Burrell admits-in deposition testimony-that she never reported any of the alleged incidents of harassment to anyone at Crown. [ See Def's Br. in Supp. of its Mot. for Partial Summ. J. on Pl. Loretta Burrell's Claims, Ex. A, Burrell Dep. at 297:20-298:9; 262:1-12; 338:9-340:6] Therefore, according to Crown, the only way that Burrell can survive summary judgment is to establish that there is a genuine issue of material fact as to whether Crown had constructive knowledge of the alleged harassment.
Burrell does not dispute that she never invoked Crown's established grievance procedure or otherwise attempted to report the alleged harassment to anyone at Crown. Instead, she relies on two Supreme Court decisions holding that "[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee." Faragher v. Boca Raton, 118 S.Ct. 2275, 229-293 (1998); Burlington Indus. v. Ellerth, 118 S.Ct. 2257, 2270 (1998) (decided the same day as Faragher). In other words, an employee is not required to show that the employer had actual or constructive knowledge of the harassment where the harassment is perpetrated by a supervisor with the requisite authority over the employee. "When no tangible employment action is taken, [however,] a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence." Id. By adopting this holding, the Court sought to "accommodate the principle of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees. . . ." Faragher, 118 S.Ct. at 2292; Ellerth, 118 S.Ct. at 2270. In any event, according to Burrell, the harassment was so open and obvious that Crown knew or should have known, and they failed to take prompt remedial action.
In Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 593, the Fifth Circuit, discussing the Faragher and Ellerth decisions, concluded that "the Supreme Court intended to apply these same agency principles to all vicarious liability inquiries under Title VII for acts by supervisors, including racial discrimination." But cf. Ellerth, 118 S.Ct. at 2271 (Thomas, J., dissenting) (concluding that, as a result of the majority's decision, employer liability under Title VII is judged by different standards depending upon whether a sexually or racially hostile work environment is alleged).
In light of the Court's decisions in Faragher and Ellerth, Crown moved to formally amend its original answer to assert its affirmative defense to liability. [ See Crown's Reply to Pls.' Resp. to Crown's Mot. for Partial Summ. J. on Pl. Loretta Burrell's Claims at S n. 6] To establish an affirmative defense to liability or damages, Crown must show: (a) that it exercised reasonable care to prevent and promptly correct any racially or sexually harassing behavior, and (b) that Burrell unreasonably failed to take advantage of any preventative or corrective opportunities provided by Crown or to otherwise avoid harm. See Faragher, 118 S.Ct. at 2293; Ellerth, 118 S.Ct. at 2270.
Because Burrell does not allege that any tangible employment actions were taken in this case, her claims are subject to this affirmative defense. [ See Pls.' Supplemental Opp'n at 3]
A. Crown Exercised Reasonable Care to Prevent and Correct Promptly Any Racially or Sexually Harassing Behavior
According to the Supreme Court, with respect to establishing the first element of the affirmative defense, that is the employer's exercise of reasonable care to prevent and promptly correct any sexually or racially harassing behavior, "proof that an employer had promulgated an anti-harassment policy with a complaint procedure is not necessary in every instance as a matter of law, . . ." Faragher, 118 S.Ct. at 2293; Ellerth, 118 S.Ct. at 2270. In this case, the undisputed summary judgment evidence establishes that Crown has two written anti-harassment policies, one specifically prohibiting sexual harassment and the other prohibiting, inter alia, both racial and sexual harassment. [ See Def.'s Br. in Supp. of its Mot. for Partial Summ. J. on Pl. Loretta Burrell's Claims, Ex B, Elbert Affidavit at Tab 13 14] In this regard, the Supreme Court has observed that an employer's argument that it exercised reasonable care may be substantially stronger where the employer: (1) has an anti-harassment policy specifically addressing the particular harassment, (2) the policy provides for alternative means of reporting harassment, and (3) the policy has been communicated to the employees. See Meritor, 477 U.S. at 72-73; see also Pfau v. Reed, 125 F.3d 927, 939-41 (5th Cir. 1997) (finding that no genuine issue of material fact exists as to whether an employer had constructive notice of harassment where the summary judgment evidence indicates that the employer had a structured, accessible grievance procedure that the employee could use to provide employer with actual notice of harassment).
Crown's Sexual Harassment Policy states, in pertinent part:
An employee of the Company who feels he/she has been subjected to sexual harassment is strongly encouraged to bring to the Company's attention any conduct which violates this policy. No employee complaining about sexual harassment will be subjected to retaliation by the Company. It is the policy of the Company to investigate promptly and thoroughly any complaint of sexual harassment and take appropriate corrective action.
Any employee who believes he/she has been the victim of sexual harassment, or has any knowledge of other employees engaging in sexual harassment is encouraged to report such conduct promptly to their supervisors. If the complaint cannot be resolved at this level, or the employee is uncomfortable discussing the situation with his/her supervisor, the employee is encouraged to discuss his/her complaint in confidence with their [sic] Human Resources Representative.
[ See Def's Br. in Supp. of its Mot. for Partial Summ. J. on Pl. Loretta Burrell's Claims, Ex B, Elbert Affidavit at Tab 13 (emphasis added)]
In connection with its Sexual Harassment Policy, Crown sponsored a full-day training seminar on sexual harassment to ensure that its employees were familiar with the Company's policy and complaint procedures. [ See id. at ¶ 25] Burrell admits that she attended the seminar. [ See id., Ex. A, Burrell Dep. at 262:13-263:5] In fact, at the conclusion of the seminar, Burrell received and signed a copy of Crown's sexual harassment policy, which describes the Company's grievance procedure. [ See Ex. B, Elbert Affidavit at Tab 15]
In addition to its Sexual Harassment Policy, Crown has an Equal Employment Opportunity ("EEO") Policy prohibiting discrimination or harassment based upon, inter alia, race and/or sex. [ See id., Ex B, Elbert Affidavit at Tab 14] The summary judgment evidence reflects that Crown has communicated this policy to its employees by posting it on bulletin boards throughout the refinery. One of its stated purposes is "to provide a work environment for all employees which is free of harassment and intimidation. . . ." [ Id.] And like its Sexual Harassment Policy, Crown's EEO Policy encourages "[a]ny employee who has a complaint or concern regarding any type of discrimination or harassment . . . to bring it to the attention of his or her immediate supervisor or the Employee Relations Department." [ Id.]
In this case, it is difficult to imagine what more Crown could have done in its efforts to provide employees with a meaningful opportunity to report harassment and thereby enable the company to take prompt remedial action. The summary judgment evidence in this case demonstrates that Crown has an established grievance procedure, which is set forth in both its Sexual Harassment Policy and EEO Policy. Moreover, Crown's grievance procedure provides alternative means for an employee to raise a complaint the employee can raise his or her complaint with a supervisor or the employee can take his or her complaint to the Human Resources Representative. The summary judgment evidence also indicates that Crown's anti-harassment policies were communicated to Burrell and that she was aware of the company's grievance procedures. Based upon the foregoing, the court finds that Crown has satisfied the first element of its affirmative defense. That is, Crown exercised reasonable care to prevent and promptly correct any sexually or racially harassing behavior by its employees.
B. Burrell Unreasonably Failed to Take Advantage of the Corrective Mechanisms Provided by Crown or to Otherwise Avoid Harm
With regard to establishing the second element of the affirmative defense-that the employee unreasonably failed to take advantage of the preventative or corrective mechanisms provided in the employer's anti-harassment policies or to otherwise avoid harm-the Supreme Court notes that "while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense." Faragher, 118 S.Ct. at 2293; Ellerth, 118 S.Ct. at 2270. It is undisputed that Burrell was aware of Crown's grievance procedures and that she failed to avail herself of those procedures to avoid or correct the alleged harassment. To explain her failure to invoke Crown's grievance procedure, Burrell cites a general fear of retaliation; yet, Burrell can point to only one instance where she believes an employee was retaliated against for attempting to report discrimination. [ See Pls.' Opp'n to Def.'s Mot. for Partial Summ. J. on Pl. Loretta Burrell's Claims at 14-17] Moreover, the summary judgment evidence indicates that Burrell has successfully used Crown's grievance procedures in the past and suffered no retaliation by the company or any of its employees. [ See Def.'s Br. in Supp. of its Mot. for Partial Summ. J. on Pl. Loretta Burrell's Claims, Ex. A, Burrell Dep. at 37:21-38:11; 38:15-18] In fact, Burrell admits that she was satisfied with the way her complaint was handled on that occasion. [ Id.] Under the circumstances, it appears that Burrell's fear of retaliation was unjustified.
In addition to her fear of retaliation, Burrell claims that the supervisors' participation in the harassment, coupled with their failure to respond appropriately to harassment committed by others, discouraged her from making a complaint. [ See Pls.' Supplemental Opp'n to Def.'s Mot. for Summ. J. Against Loretta Burrell's at 5] Burrell's argument might be more persuasive if Crown's complaint procedures did not provide alternative means of reporting harassing behavior. Crown's grievance procedure, however, specifically states that if "the employee is uncomfortable discussing the situation with his/her supervisor, the employee is encouraged to discuss his/her complaint in confidence with their Human Resources Representative." [ See Def.'s Br. in Supp. of its Mot. for Partial Summ. J. on Pl. Loretta Burrell's Claims, Ex B, Elbert Affidavit at Tab 13] Burrell has not alleged that she had any reluctance about reporting harassment to Crown's Human Resources Representative. Given Crown's alternative means for reporting harassment, the court finds that Burrell unreasonably failed to report the alleged harassment to Crown's Human Resources Representative.
Based on the foregoing, the court finds that Burrell's failure to take advantage of Crown's preventative or corrective mechanisms to avoid harm was unreasonable as a matter of law. In Faragher, the Court explained that "[i]f the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if damages could reasonably have been mitigated no award against a liable employer should reward a plaintiff for what her own efforts could have avoided." 118 S.Ct. at 2292. To hold otherwise would undermine Title VII's basic policy of encouraging victimized employees to promptly notify their employer when confronted with a hostile work environment. See Faragher, 118 S.Ct. at 2292; Ellerth, 118 S.Ct. at 2270.
C. Alleged Hostile Environment Not Sufficiently Pervasive to Charge Crown with Constructive Knowledge
Burrell correctly points out that "[a] Title VII plaintiff can show constructive notice by showing the pervasiveness of the harassment, which gives rise to the inference of knowledge or constructive knowledge.'" Canutillo Independent School Dist. v. Leija, 101 F.3d 393, 401 (5th Cir. 1996) (citing Waltman v. Int'l Paper Co., 875 F.2d 468, 478 (5th Cir. 1989)). In this case, however, the specific instances cited by Burrell, while perhaps creating a fact issue as to whether she was exposed to a hostile environment, do not create a genuine issue of material fact as to whether the harassment was so open and obvious that Crown should be charged with constructive notice of it. See Pfau, 125 F.3d at 939. Although Burrell contends that she has been exposed to a hostile environment for over ten years, she can recall relatively few instances of offensive comments and behavior during that time, many of which are at best ambiguous as to whether race or sex was the motive. The court finds further support for its conclusion by the very fact that the summary judgment evidence indicated that Crown had a structured, accessible grievance procedure that Burrell could have used to provide Crown with actual notice of her harassment. See id at 940. Therefore, to the extent that Burrell seeks to charge Crown with constructive notice of a hostile work environment created by Crown's employees or supervisors, the court finds that Burrell has failed to allege sufficient facts to create a genuine issue of material fact as to whether the conduct was so pervasive that Crown knew or should have known of its occurrence.
IV. Conclusion
Based upon the foregoing, the court is of the opinion that Crown exercised reasonable care to prevent and promptly correct any harassing behavior and that Burrell unreasonably failed to take advantage of Crown's preventative or corrective opportunities or to otherwise avoid harm. Therefore, Crown's Motion for Partial Summary Judgment is hereby GRANTED and Burrell's remaining claims are hereby DISMISSED.
It is so ORDERED.
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
Before the court is Plaintiffs' Motion for Class Certification, filed on April 12, 1999. Defendant filed its Opposition to Plaintiffs' Motion for Class Certification on June 24, 1999, and Plaintiffs' Reply in Support of Their Motion for Class Certification was filed on July 13, 1999. The court, having considered the motion, opposition and reply to the same, is of the opinion that Plaintiffs' Motion should be DENIED.I. Background
On June 30, 1997, eight individual plaintiffs brought suit against Crown Central Petroleum, Inc., ("Crown") on behalf of themselves and other similarly situated employees, seeking declaratory and injunctive relief as well as compensatory and punitive damages. Through their complaint, Plaintiffs assert that Crown unlawfully discriminated against them on the basis of their race and/or sex in violation of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5, et seq. ("Title VII") and the Civil Rights Act of 1871, as amended, 42 U.S.C. § 1981 ("Section 1981"). Specifically, Plaintiffs contend that Crown "cultivated an environment that is openly hostile to African-American and female employees." [Complaint at 1-2] Plaintiffs claim that, among other things, Crown's supervisors often used racial epithets when referring to African-American employees and that supervisors "routinely create, distribute, and post handbills in the workplace" that are offensive and demeaning to African-American and female employees. [ Id. at 2] To redress Crown's alleged "pattern and practice" of discrimination, Plaintiffs seek declaratory, injunctive, and monetary relief, including compensatory and punitive damages. [ Id. at 33] In addition, Plaintiffs have requested a jury trial.
A detailed account of the facts and allegations surrounding this lawsuit can be found in this court's previous orders. See Burrell v. Crown Cent. Petroleum, Inc., 177 F.R.D. 376 (E.D.Tex. 1997); Burrell v. Crown Cent. Petroleum, Inc., 176 F.R.D. 239 (E.D.Tex. 1997).
II. The Instant Motion
On April 12, 1999, Plaintiffs filed this Motion for Class Certification. Plaintiffs seek to certify a class of "All African-American and/or female persons employed at any Crown Central Petroleum facility in Texas at any time from June 30, 1995 to present, who have been or continue to be subjected to a hostile work environment based on race and/or sex." [Pls.' Mot. for Class Certification at 1] In support of their Motion, Plaintiffs argue that this putative class should be certified as it meets all of the requirements of Rules 23(a) and (b)(2) and (b)(3) of the Federal Rules of Civil Procedure. [ See Pls.' Mem. of P. A. in Supp. of Their Mot. for Class Certification] Crown, on the other hand, opposes class certification, arguing that Plaintiffs cannot satisfy the requirements of Rule 23(a) or (b) because proof of liability and damages in a hostile work environment case necessarily requires individualized proof of harm and, thus, certification under (b)(2) or (b)(3) would be inappropriate. [ See Def's Br. in Opp'n to Pls.' Mot. for Class Certification at 78-98] To support its argument, Crown relies on the Fifth Circuit's recent decision is Allison v. Citgo, 151 F.3d 402 (5th Cir. 1998) wherein the Court affirmed a district court's denial of class certification based on facts and circumstances similar to the instant case. Because the court finds Allison to be dispositive of Plaintiffs' Motion for Class Certification, the Motion will be denied.
Initially, Plaintiffs sought to include a class-wide promotions claim as part of their motion for class certification. [Pls.' Mot. for Class Certification at 1] Following the withdrawal of Dr. Charles R. Mann's expert report [ See Pls.' Resp. to Crown's Mot. to Strike With Prejudice Against Refiling the Report and Testimony of Dr. Charles Mann], however, Plaintiffs dropped their class wide promotions claim and now seek to certify a class focusing entirely on the hostile work environment claim. [ See Pls.' Reply in Supp. of Their Mot. for Class Certification at 4 n. 3]
III. Legal Standard
It should be noted that a district court has broad discretion in deciding whether to certify a class action. See Allison v. Citgo Petroleum Corp., 151 F.3d at 408. "Implicit in this deferential standard is a recognition of the essentially factual basis of the certification inquiry and of the district court's inherent power to manage and control pending litigation." Id. Even so, the court must vigorously analyze the requirements of Rule 23 before certifying a class. See Castano v. American Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996) (citing General Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982)). In other words, although the district court has broad discretion in deciding whether to certify a class, that discretion must be exercised within the framework of Rule 23. See id. (citing Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981)). To make the certification decision, the court must consider the substantive law that will govern the outcome of the trial. See Alabama v. Blue Bird Body Co., Inc., 573 F.2d 309, 316 (5th Cir. 1978). While the court will not consider the merits of the Plaintiffs' claims at the certification stage, see Eisen v. Carlisle Jacquelin, 417 U.S. 156, 177-78, (1974), the court may look past the pleadings to the record and any other completed discovery to make the certification decision. See Falcon, 457 U.S. at 160 ; Castano, 84 F.3d at 744. It should be noted that the party seeking certification bears the burden of proof. See Horton v. Goose Creek Ind Sch. Dist., 690 F.2d 470, 486 (5th Cir. 1982). With these principles in mind, the court turns to consider the merits of Plaintiffs motion for class certification.
IV. Discussion
A class action may be maintained as such only if it satisfies all of the requirements of Rule 23(a) and at least one of the alternative requirements of Rule 23(b). See Allison, 151 F.3d at 411. Rule 23 of the Federal Rules of Civil Procedure provides, in part:
(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
(b) Class Action Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
* * *
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
The court will assume, without deciding, that Plaintiffs have satisfied all of the requirements of Rule 23(a). Whether Plaintiffs' proposed class is appropriate for certification under either Rule 23(b)(2) or (b)(3) will, therefore, be the focus of the remainder of this opinion.
Plaintiffs move for class certification under either Rule 23(b)(2) or 23(b)(3) (or a hybrid of the two), arguing that the court would be within its discretion in certifying the putative class under either provision. Crown, on the other hand, argues that because of the Fifth Circuit's decision in Allison, and its similarities to the instant case, Plaintiffs cannot maintain a class action under any of Rule 23(b)'s provisions.
The court agrees that the issues in the instant case are similar, if not identical, to those addressed by the Fifth Circuit in Allison. In that case, numerous plaintiffs filed an employment discrimination class action lawsuit against their employer, Citgo Petroleum Corporation ("Citgo"), on behalf of themselves and similarly situated African-American employees and job applicants. The suit alleged that Citgo engaged in class-wide racial discrimination with respect to general hiring, promotion, compensation, and training policies at its manufacturing facilities in Lake Charles, Louisiana. The plaintiffs challenged these policies under disparate impact and disparate treatment theories of discrimination. To remedy the alleged violations, the plaintiffs sought injunctive, declaratory, and monetary relief, including compensatory and punitive damages. In addition, the plaintiffs demanded a jury trial on their claims of intentional discrimination. See id. at 407-08.
Plaintiff's take the position that the subsequent history in Allison "eviscerates" the precedential value of the opinion with respect to Rule 23. [ See Pls. Reply in Supp. of Their Mot. for Class Certification at 39] At best, Plaintiffs argue, the Court's lengthy decision has been reduced to mere dicta. To support their position, Plaintiffs point to the Fifth Circuit's denial of the plaintiffs petition for panel rehearing wherein the Court stated:
In denying rehearing, the panel majority makes the following observation: The trial court utilized consolidation under rule 42 rather than class certification under rule 23 to manage this case. We review that decision for abuse of discretion and we find no abuse in this case. We are not called upon to decide whether the district court would have abused its discretion if it had elected to bifurcate liability issues that are common to the class and to certify for class determination those discrete issues.Allison, 151 F.3d at 434.
Plaintiffs are correct in that Allison should not be understood as establishing a bright-line rule that class certification is per se improper in employment cases where plaintiffs seek monetary damages. Indeed, a decision on class certification remains a fact specific determination. Falcon, 457 U.S. at 160. Having said that, this court does not agree that the order denying panel rehearing reflects a retreat from the opinion in Allison.
The plaintiffs moved for class certification under Rule 23 of the Federal Rules of Civil Procedure, which Citgo opposed. The district court referred the plaintiffs' motion for class certification to a magistrate judge, who conducted an evidentiary hearing and determined that, although the proposed class met the requirements of rule 23(a), it could not be certified under any alternative provided in 23(b). In regards to Rule 23(b)(2), the magistrate judge determined that certification required that injunctive or declaratory relief be the "predominate" form of relief sought by the plaintiffs. Because money damages predominated over injunctive or declaratory relief, the magistrate judge found certification under 23(b)(2) inappropriate. The judge concluded that the individualized nature of the damages claims and the consequent need for individualized proof rendered plaintiffs money damages not sufficiently incidental to the injunctive relief. Likewise, the magistrate judge declined to certify the class under 23(b)(3) because the need for individualized damages determinations caused individual issues to predominate over common ones and that class action would not be a superior method for fair and efficient adjudication of the controversy. See id. at 408. Finally, the magistrate judge contemplated bifurcating the trial into liability and damages stages and certifying the class only on the claims for injunctive relief. The court declined to do so, however, after expressing concern over Seventh Amendment complications arising out of proceeding with multiple fact finders and the difficulty in separating liability and damages issues in discrimination cases. See id. The district court adopted the magistrate judge's report and recommendation in its entirety and denied class certification. See id. The plaintiffs appealed the district court's ruling.
In affirming the district court's denial of class certification, the Fifth Circuit noted that "[i]n years past we have routinely upheld certification of class actions to resolve Title VII cases involving disparate impact and pattern and practice claims of discrimination." Id. at 409. Nevertheless, according to the Court, the Civil Rights Act of 1991 brought about fundamental changes in both the procedures and remedies available to Title VII litigants. Id. at 409. Chief among them are the right to seek compensatory and punitive damages and the right of either party to demand a jury trial. See 42 U.S.C. § 1981a(a)(1) and § 1981a(c). The Court explained that:
By bringing additional monetary claims within the scope of intentional discrimination cases, the Civil Rights Act of 1991 added to the complexity and diversity of the issues to be tried and decided. By injecting jury trials into the Title VII mix, the 1991 Act introduced, in the context of class actions, potential manageability problems with both practical and legal, indeed constitutional, implications.
Id. at 410. With this in mind, this court turns to consider whether certification is proper under Rule 23(b)(2) or (b)(3).
A. Certification Under Rule 23(b)(2)
Although Plaintiffs move for certification under both Rule 23(b)(2) and (b)(3), they contend that "23(b)(2) provides the most appropriate basis for certification of all of the class claims." According to the Federal Rules of Civil Procedure, certification is proper under Rule 23(b)(2) if "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole[.]" FED. R. CIV. P. 23(b)(2). As previously mentioned, Plaintiffs allege that Crown engaged in a "pattern or practice" of intentional discrimination by creating and maintaining a work environment that is hostile towards African-American and female employees. To remedy this alleged violation, Plaintiffs seek, among other things, compensatory and punitive damages in addition to injunctive and declaratory relief. Crown argues that certification under (b)(2) is inappropriate because monetary relief is the predominant form of relief sought by Plaintiffs.
According to the Fifth Circuit, class certification under (b)(2) "does not extend to cases in which the appropriate final relief relates exclusively or predominately to money damages." Allison, 151 F.3d at 411 (quoting FED. R. CIV. P. 23 (advisory committee notes)). In other words, "monetary relief may be obtained in a (b)(2) class action so long as the predominant relief sought is injunctive or declaratory." Id. Furthermore, "monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief." Id. at 415 (emphasis added). To be incidental, damages must be such that they "flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief." Id. Such damages "should at least be capable of computation by means of objective standards and not dependant in any significant way on the intangible, subjective differences of each class member's circumstances." Id. Moreover, "[l]iability for incidental damages should not require additional hearings to resolve the disparate merits of each individual case; it should neither introduce new and substantial legal and factual issues, nor entail complex individualized determinations." Id. Thus, "incidental damages will, by definition, be more in the nature of a group remedy. . . ." Id.
Plaintiffs argue that their claims for compensatory and punitive damages are incidental to their request for injunctive and declaratory relief. To support their argument, Plaintiffs assert that the "major issue" in this case is whether Crown engaged in a pattern or practice of discriminatory conduct and, therefore, issues common to the claims for injunctive or declaratory relief predominate. In addition, Plaintiffs contend that because they do not intend to present medical or psychiatric evidence related to each class member's claim of emotional distress, their compensatory damages claims are "clearly" incidental to the class-wide injunctive relief.
1. Compensatory Damages
Like the Allison court, this court begins with the premise that "in this circuit, compensatory damages for emotional distress and other forms of intangible injury will not be presumed from mere violation of constitutional or statutory rights" Id. at 416-17 (citing Patterson v. P.H.P Healthcare Corp., 90 F.3d 927, 938-40 (5th Cir. 1996). "Compensatory damages may be awarded only if the plaintiff submits proof of actual injury, often in the form of psychological or medical evidence, or other corroborating testimony form a third party." Id. Moreover, "[s]pecific individualized proof is necessary, and testimony from the plaintiff alone is not ordinarily sufficient." Id. Therefore, although Plaintiffs have made clear that they do not intend to introduce any medical or psychological evidence related to their claims for emotional harm, it is clear that, to recover compensatory damages, Plaintiffs must present evidence showing actual injury.
In Allison, the Court held that "compensatory damages under Title VII and 42 U.S.C. § 1981 are not incidental to class-wide injunctive or declaratory relief for discrimination." Id. at 417. The court explained that "[t]he amount of compensatory damages to which any individual plaintiff may be entitled cannot be calculated by objective standards." Id. Moreover, "by requiring individualized proof of discrimination and actual injury to each class member, compensatory damages introduce new and substantial legal and factual issues." Id. In the end, the Court concluded that "[t]he very nature of these damages, compensating plaintiffs for emotional and other intangible injuries, necessarily implicates the subjective differences of each plaintiff's circumstances." Id. at 417.
2. Punitive Damages
Plaintiffs argue that their punitive damages claims, like their compensatory damages claims, are incidental to their request for injunctive and declaratory relief. Here, Plaintiffs suggest that punitive damages maybe awarded on a class-wide basis because the entire class was subjected to the same hostile work environment. In addition, Plaintiffs argue that they were "universally harmed" by Crown's inadequate response to Plaintiffs' complaints and by retaliation against those who brought harassment to Crown's attention.
In addressing the punitive damages issue, the Allison court concluded that claims for punitive damages were similarly non-incidental to injunctive or declaratory relief. See id. In reaching this conclusion, the court noted that:
Punitive damages cannot be assessed merely upon a finding that the defendant engaged in a pattern or practice of discrimination. Such a finding establishes only that there has been general harm to the group and that injunctive relief is appropriate. Actual liability to individual class members, and their entitlement to monetary relief, are not determined until the second stage of the trial. And because punitive damages must be reasonably related to the reprehensibility of the defendant's conduct and to the compensatory damages awarded to the plaintiffs, recovery of punitive damages must necessarily turn on the recovery of compensatory damages.Id. at 418. From this, the Court reasoned that because punitive damages ". . . are dependant on nonincidental compensatory damages, punitive damages are also non-incidental — requiring proof of how discrimination was inflicted on each plaintiff, introducing new and substantial legal and factual issues, and not being capable of computation by reference to objective standards." See id. at 418.
Like the plaintiffs in Allison, Plaintiffs' request for compensatory and punitive damages would necessarily require this court to inquire into the individual circumstances of each plaintiff s claims. To date, there are eight named plaintiffs in two separate facilities, each claiming specific instances of harassment by several different individuals. Moreover, Plaintiffs' hostile environment claims differ significantly in degree and length of exposure. Despite all of this, Plaintiffs still claim that the compensatory and punitive damages sought in this case are capable of objective determination. This court disagrees. As the Fifth Circuit stated in Allison, "[s]uch damages, sawarded on the basis of intangible injuries and interest, are uniquely dependant on the subjective and intangible differences of each class member's individual circumstances." Id. at 418. Moreover, these are not the type of damages that flow directly from liability to the class as a whole. It would be unfair, to say the least, for those plaintiffs who may have suffered more severe discrimination over a longer period of time to have their damages divided equally among the class as a whole. This is especially true here given that certification under Rule 23(b)(2) provides no absolute right to opt-out once a class is certified. Based on the foregoing, the court is of the opinion that Plaintiffs' claim for monetary relief predominates over their request for injunctive and declaratory relief and, thus, certification under Rule 23(b)(2) would be inappropriate.
B. Certification Under Rule 23(b)(3)
In addition to certification under Rule 23(b)(2), Plaintiffs also seek certification under Rule 23(b)(3). Under Rule 23(b)(3), class certification is proper where "the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." FED. R. CIV. P. 23(b)(3). Whether common issues predominate and whether class action is a superior method to resolve the controversy requires an understanding of the relevant claims, defenses, facts, and substantive law presented in the case. See Castano, 84 F.3d at 744.
Plaintiffs argue that certification under 23(b)(3) is proper because common issues relating to a class-wide "pattern or practice" of discrimination clearly predominate over issues related to the recovery of compensatory and punitive damages. In Allison, however, the Court rejected a similar argument after concluding that a plaintiff's claims for compensatory and punitive damages would require case specific inquiries into the special circumstances of each case, and that the success of Plaintiffs' claims would turn, not on whether the defendant engaged in a pattern or practice of discrimination, but ultimately on facts of each individual's case. See id. at 420 (applying the same logic used in Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1006 (11th Cir. 1997)).
In addition, the Court concluded that the "predominance of individual-specific issues relating to the plaintiffs' claims for compensatory and punitive damages in turn detracts from the superiority of the class action device in resolving these claims." Id. at 419. The Court also recognized that potential Seventh Amendment problems could arise from the possibility of bifurcated proceedings before multiple juries, which also decreases the superiority of the class action device. Id. Finally, the Court observed that the "`most compelling rationale for finding superiority in a class action — the existence of a negative value suit,' is missing in this case." Id. at 420 (citing Castano, 84 F.3d at 748.). The Court found that "[t]he relatively substantial value of these claims (for the statutory maximum of $300,000 per plaintiff) and the availability of attorney's fees eliminate financial barriers that might make individual lawsuits unlikely or infeasible." Id. at 420; see also Boggs v. Alto Trailer Sales, 511 F.2d 114, 118 (5th Cir. 1975) (acknowledging that the availability of attorney's fees is a common basis for fording non-superiority).
The Seventh Amendment to the United States Constitution provides:
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
U.S. Const. Amend. VII.
In the instant case, Plaintiffs are confronted with problems identical to those that plagued the plaintiffs in Allison. As previously noted, to recover compensatory damages for mental anguish or emotional harm in a case brought under Title VII or Section 1981, Plaintiffs must present evidence establishing that each plaintiff suffered actual injury. See supra p. 9. This would require the court to engage in a highly individualized inquiry into the specific circumstances of each plaintiff's claims. Although Plaintiffs contend that their hostile work environment focuses primarily on objective factors, the success of Plaintiffs' claims will rest, not on whether Crown engaged in a pattern or practice of discrimination, but ultimately on the resolution of these highly case-specific issues. As a result, issues common to the class as a whole are subordinate to the specific circumstances surrounding each individual plaintiff's claim for compensatory and punitive damages.
In addition, the court is of the opinion that the class action device is not a superior method for resolving Plaintiffs' claims. In this regard, the predominance of the individual-specific damages issues makes class action a less attractive vehicle for resolving these claims. By Plaintiffs' own estimates, there are 170 potential class members who may have been subjected to a hostile environment in one way or another by Crown's supervisors and/or employees. In light of the fact that these potential class members may also seek to recover compensatory and punitive damages, which requires individualized and independent proof of injury, there is a substantial danger that a Trial begun as a class action would "degenerate in practice into multiple lawsuits separately tried." Castano, 84 F.3d at 745 n. 19 (citing FED. R. CIV. P. 23 (advisory committee notes)).
Plaintiffs also argue that class action is superior because it is the only feasible method available to these plaintiffs as most of them "are in a poor position to seek legal redress, either because they do not know enough or because such redress is disproportionately expensive." [ See Pls.' Br. in Supp. of Their Mot. for Class Certification at 68 (citing Dolgow v. Anderson, 43 F.R.D. 472, 484-85 (E.D.N.Y. 1968)). But as the Court recognized in Allison, the most compelling reason for finding superiority in a class action — the existence of a negative value suit — is absent from most Title VII and Section 1981 cases. See supra pp. 12-13. The Court specifically noted that "[t]he relative substantial value of these claims . . . and the availability of attorney's fees eliminate financial barriers that might make individual lawsuits unlikely or infeasible." Allison, 151 F.3d at 420. For the reasons set forth above, the court is of the opinion that a class action is not superior to other available methods for the fair and efficient adjudication of Plaintiffs' claims.
B. Plaintiffs' Proposed Trial Plan
Finally, Plaintiffs have proposed a trial plain that they contend should eliminate any concerns the court may have in deciding whether to certify the putative class under Rule 23(b)(2) or (b)(3). Under Plaintiffs' proposed plan, the court is invited to certify the class only on the issues of classwide liability (i.e., whether Crown engaged in a pattern or practice of discrimination) and punitive damages, leaving the court to rule on class-wide injunctive relief. Assuming that liability is established, then individual jury trials could be used to determine the extent of compensatory damages for any class member who desires to seek such damages.
For the following reasons, this plan does not pass muster under either 23(b)(2) or (b)(3). The court has already determined that Plaintiffs' claims for punitive damages are non-incidental to their claims for injunctive or declaratory relief. See supra pp. 9-10. That being so, Plaintiffs' trial plan is still inadequate for certification under 23(b)(2). Likewise, certification may not be had under 23(b)(3) for two reasons. First, "[p]unitive damages cannot be assessed merely upon a finding that the defendant engaged in a pattern or practice of discrimination." Allison, 151 F.3d at 417. The recovery of punitive damages rests upon the specific circumstances of each individual plaintiff's case. See id. at 418. And as the court has already explained, "[t]he predominance of individual-specific issues relating to the plaintiffs' claims for . . . punitive damages . . . detracts from the superiority of the class action device in resolving these claims." Id. at 419. Second, "because punitive damages must be reasonably related to the reprehensibility of the defendant's conduct and to the compensatory damages awarded to the plaintiffs, recovery of punitive damages must necessarily turn on the recovery of compensatory damages." Id. at 418. In light of this relationship, it would be difficult to avoid violating the Seventh Amendment if the court were to move forward with Plaintiffs' plan and allow one jury to pass on the issue of punitive damages while allowing potentially hundreds of subsequent juries to decide whether and to what extent each individual plaintiff is entitled to compensatory damages. On this basis alone, Plaintiffs trial plan is not a superior method of resolving this controversy.
In addition to the Seventh Amendment concerns, the court is simply not comfortable with what amounts to piecemeal certification of a class action. As the Court explained in Castano, "[r]eading rule 23(c)(4) as allowing a court to sever issues until the remaining common issue predominates over the remaining individual issues would eviscerate the predominance requirement of rule 23(b)(3); the result would be automatic certification in every case where there is a common issue, a result that could not have been intended." 84 F.3d at 745 n. 21.