Opinion
Civil Action No. 2:96cv189-D-D
December 15, 1997
MEMORANDUM OPINION
Presently before the court is the motion of the defendant, Magnolia Lady, Inc., d/b/a Lady Luck Rhythm and Blues Casino-Hotel, Inc. ("Lady Luck"), for the entry of summary judgment on its behalf with regard to the claims of the plaintiff against it. Finding that the motion is well taken, the court shall grant the motion and dismiss the plaintiff's claims.
In ruling on a motion for summary judgment, the court is not to make credibility determinations, weigh evidence, or draw from the facts legitimate inferences for the movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. The court's factual summary is so drafted. The court chooses not to provide an in-depth discussion of all of the facts surrounding this case, but rather will discuss pertinent facts in the body of its opinion as they become necessary.
The plaintiff Laticia Davis suffers from a condition called hemangioma, which is a "tumor-like growth of dilated blood vessels. Typically, this condition will recur and the patient will require surgery to remove the growth." Exhibit F to Plaintiff's Response, Expert Report of Jack Sartin, M.D. Ms. Davis' hemangioma results in a recurring growth on her lower left leg, and she has undergone surgery on three prior occasions over the last twenty years to remove the growth.
The defendant Lady Luck initially hired the plaintiff on or about June 28, 1994, as a gate attendant at the Lady Luck casino located near Lula, Mississippi. Her initial employment was at an hourly rate of pay of $8.75. The defendant later reassigned the plaintiff's job from the marketing department to the security department, and the plaintiff was transferred to the position of valet parking attendant. It was after the plaintiff began working in this position that she began to experience problems with one of her supervisors, Michael Pastore.
During the remainder of her employment with the defendant, the plaintiff made a total of five (5) complaints to management regarding Mr. Pastore's conduct to her and to other employees. After her fifth complaint and a counseling session between Pastore and Lady Luck management, Pastore apologized for his behavior to Ms. Davis. Also during this time period, the plaintiff received a total of five (5) "Records of Discussion," or disciplinary actions, from the defendant. In January 1996, after the defendant issued the fourth Record of Discussion to the plaintiff, Lady Luck demoted the plaintiff from valet "team leader" to valet parking attendant and cut her rate of pay to $5.25 per hour. On February 7, 1996, Ms. Davis left work early in light of pain she experienced as a result of her hemangioma. After returning to work some days later, the plaintiff discovered that her employment with the defendant had been terminated.
The plaintiff filed this action on, and seeks to recover against the defendant under various theories, abilities Act; 2) hosfile work environment sexual discrimination in violation of Title VII; 3) retaliation in violation of engaging in a Title VII protected activity; 4) intentional infliction of emotional distress under Mississippi law. The defendant has moved this court for the entry of summary judgment on all of the plaintiff's claims, and the matter is fully briefed and is ready for resolution by this court.
Discussion
Summary Judgment Standard
Summary judgment shall be granted "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden rests upon the party seeking summary judgment to show to the district court that an absence of evidence exists in the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see Jackson v. Widnall, 99 F.3d 710, 713 (5th Cir. 1996); Hirras v. Nat'l R.R. Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996). Once such a showing is presented by the moving party, the burden shifts to the non-moving party to demonstrate, by specific facts, that a genuine issue of material fact exists.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Texas Manufactured Housing Ass'n, Inc. v. City of Nederland, 101 F.3d 1095, 1099 (5th Cir. 1996);Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir. 1994). Substantive law will determine what is considered material.Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 40 (5th Cir. 1996). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted."Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see City of Nederland, 101 F.3d at 1099; Gibson v. Rich. 44 F.3d 274. 277 (5th Cir. 1995). Further, "[w]here the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see City of Nederland, 101 F.3d at 1099. Finally, all ferefrom. See Anderson, 477 U.S. at 254, 106 S.Ct. at 2513; Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1198 (5th Cir. 1995); Taylor v. Gregg, 36 F.3d 453. 455 (5th Cir. 1994); Matagorda County v. Russell Law. 19 F.3d 215, 217 (5th Cir. 1994). However, this is so only when there is "an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994); Guillory v. Domtar Industries Inc., 95 F.3d 1320, 1326 (5th Cir. 1996); Richter v. Merchants Fast Motor Lines. Inc., 83 F.3d 96, 97 (5th Cir. 1996). In the absence of proof, the court does not "assume that the nonmoving party could or would prove the necessary facts." Little, 37 F.3d at 1075 (emphasis omitted); see Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990).
The Americans with Disabilities Act ("ADA")
The plaintiff in the case at hand asserts a claim under the Americans With Disabilities Act ("ADA"). The ADA prohibits employers from "discriminat[ing] against a qualified individual with a disability because of the disability." 42 U.S.C. § 12112(a). Interpretation and precedent relevant to the Rehabilitation Act is equally applicable to the ADA. See, e.g., Chandler v. City of Dallas, 2 F.3d 1385, 1391 (5th Cir. 1993). For the plaintiff to establish her claim of discrimination in employment under the ADA, the three-tierMcDonnell-Douglas standard is utilized: 1) the plaintiff must establish a prima facie case of discrimination, 2) the burden then shifts to the defendant to articulate a legitimate and nondiscriminatory reason for its actions, and 3) the burden returns to the plaintiff to prove that the proffered reason was a mere pretext for discrimination and that the real reason was to discriminate.McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Polanco. v. City of Austin, 78 F.3d 968, 976 (5th Cir. 1996); Marcantel v. Louisiana Dep't of Trans. Dev., 37 F.3d 197, 199 (5th Cir. 1994).
The McDonnell-Douglas shifting burden of proof is applied by the court to determine the legal sufficiency of the plaintiff's claims. If the plaintiff's claims proceed to be considered by the jury, the only issues to be submitted to the fact-finder will be the ultimate question of discrimination vel non and the resulting damages.LaPierre v. Benson Nissan. Inc., 86 F.3d 444, 448 (5th Cir. 1996); Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1089 (5th Cir. 1995).
In order to establish a prima facie case under the ADA, the plaintiff must show:
1) that she suffers from a "disability";
2) that she is a "qualified individual" for the position; and
3) that she suffered an adverse employment action because of her disability.Stradley v. Lawrence Communications, 869 F. Supp. 442, 443 (E.D. La. 1994) (citing Chandler, 2 F.3d at 1390). For summary judgment purposes, the plaintiff need only present sufficient evidence to create a genuine issue of material fact as to each of these elements. Chandler, 920 F.2d at 314-15. In the case at bar, the defendant centers its argument upon the first factor of the prima facie case — the plaintiff's "disability." It is this factor, then, that the court will address.
In order to be protected under the Rehabilitation Act, and likewise the ADA, a person need not have a "traditional" handicap. Walker v. Aberdeen-Monroe County Hosp., 838 F. Supp. 285, 288 (N.D. Miss. 1993). A person is considered "disabled" under the ADA if that person:
1) has a physical or mental impairment that substantially limits one or more of the major life activities of [the plaintiff];
2) has a record of such impairment; or
3) is regarded as having such an impairment.
42 U.S.C. § 12102(c); Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir. 1996); Rogers v. Int'l Machine Terminals. Inc., 87 F.3d 755, 758 (5th Cir. 1996). Thankfully, the text of the statute is not the only source of direction for this court in determining whether the plaintiff is "disabled" under the ADA. The United States Supreme Court directs this court to the applicable regulations created for the implementation of the ADA. School Board of Nassau Co. v. Airline, 480 U.S. 273, 280, 107 S.Ct. 1123, 1127, 94 L.Ed.2d 307 (1987). A relevant regulation provides that a "major life activity" is a "function such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(I); see Chandler. 2 F.3d at 1390 (quoting 45 C.F.R. § 84.3(j)(2)(ii) (1992)).
But see Coghlan, 851 F. Supp. at 812 (agency interpretative guidelines not binding upon court).
See 29 C.F.R. § 1630, et. seq. For further discussion of the pertinent regulations, see Robert L. Mullen, The Americans With Disabilities Act: An Introduction For Lawyers and Judges, 29 Land Water L. Rev. 175 (1994).
According to the plaintiff, the "major life activities" substantially limited by her hemangioma are the activities of walking and standing. Plaintiff's Response, p. 8 ("The hemangioma is a recurring condition that at certain stages of growth causes great pain and limits her ability to walk and stand."). The court finds highly relevant, however, that even the asserted disabling aspects of her hemangioma are only temporary conditions. According to the plaintiff herself, the disabling nature of the hemangioma only occurs "at certain stages of growth" and does not produce a continuing disability. Even her physician states in his affidavit that "Ms. Davis' medical condition substantially limits her ability to walk and/or stand during the period of recurrence and following surgery." Exhibit F to Plaintiff's Response, Expert Report of Jack Sartin, M.D. (emphasis added). Each period of recurrence lasts only a matter of weeks, and Ms. Davis has only suffered recurrences necessitating surgery three (3) times over a twenty (20) year period. By in large, however:
A: It doesn't completely prevent me from [performing activities] but it bothers me walking and standing but, you know, I guess because of where it is it hurts a lot. I mean, it hurts all the time but it's not real bad all the time. It doesn't prevent me from doing, you know, anything.
Q: Have you considered your hemangioma to be a handicap in the general sense of the word, a condition that prevents you from doing anything?
A: Not a handicap. I don't know. It's aggravating.
Q: Something you've learned to live with?
A: Yeah.
Exhibit A to Defendant's Motion, Deposition of Ms. Davis, p. 78-79 (emphasis added). The plaintiff herself did not even consider her hemangioma a disabling condition. Exhibit A to Defendant's Motion, Deposition of Ms. Davis, p. 43.
It's like I say, I know how far I can go. I know where it's going to do any good to just sit down or where I'm going to need to go to the doctor. I know how far to go with it. It's three times it's already been taken out. I know when it starts hurting in certain places, in different areas then when it's time to go to the doctor and have it taken care of.
Exhibit A to Defendant's Motion, Deposition of Ms. Davis, p. 52.
"[T]emporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities." 29 C.F.R. § 1630.2(j), App. (1996). Consequently, courts within the Fifth Circuit have routinely held numerous temporary conditions not to constitute a "disability" under the ADA. See, e.g., Rogers v. International Marine Terminals. Inc., 87 F.3d 755, 759 (5th Cir. 1996) (ankle injury); Jerina v. Richardson Automotive, Inc., 960 F. Supp. 106, 108 (N.D. Tex. 1997) (chronic fatigue syndrome);Rakestraw v. Carpenter Co., 898 F. Supp. 386, 390 (N.D. Miss. 1995) (back injury). The plaintiff's condition is more akin to these temporary conditions like a broken leg that, while serious, do not constitute a disability of a sufficient duration to warrant protection under the ADA. Admittedly, her impaired condition is intermittently recurring and has necessitated hospitalization on at least three occasions. Plaintiff's Response, p. 4 ("[The hemangioma] has been removed [from the plaintiff's leg] at age sixteen (16), twenty (20) and thirty-six (36)."). It is questionable, however, whether a condition that reoccurs approximately every seven (7) years can even be classified as "chronic." Merriam Webster's Medical Desk Dictionary 121 (1993) (defining chronic as "marked by long duration, by frequent recurrence over a long period of time, and often by slowly progressing seriousness"). The determination is irrelevant, however, for "chronic" conditions do not automatically qualify as "disabilities" under the ADA.
Such conditions would, however, most likely trigger the protections enumerated under the Family and Medical Leave Act of 1993. 29 U.S.C. S 2601 et seq. One of the findings which prompted Congress to enact the Family and Medical Leave Act was its belief that "there is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods." 29 U.S.C. § 2601(a)(4).
That the plaintiff's hemangioma constitutes a longstanding or permanent condition is entirely different from the fact that the disabling effects of the hemangioma are temporary and infrequent.
Burch's testimony that his inebriation was frequent does not make it a permanent impairment. Permanency, not frequency, is the touchstone of a substantially limiting impairment. Although Burch's alcoholism may have been permanent, he offered no evidence that he suffered from any substantially limiting impairment of any significant duration.Burch, 119 F.3d at 316. Like the Burch panel, this court is not stating that a condition like hemangioma may never constitute a disability under the ADA. Burch, 119 F.3d at 316 n. 9; 29 C.F.R. § 1630, App. (1996) ("The determination of whether an individual has a disability is not necessarily based upon the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual. Some impairments may be disabling for particular individuals but not for others . . ."). Nevertheless, there is insufficient proof before this court that Ms. Davis' hemangioma substantially impaired one or more of her major life activities on a sufficiently substantial basis to constitute a disability. There is no genuine issue of material fact as to the question of whether the plaintiff is "disabled" within the meaning of the Americans With Disabilities Act, and the defendant is entitled to the entry of a judgment as matter of law as to this claim.
The court also notes that it appears from the evidence before the court that on the day in question, it does not appear that the plaintiff was capable of performing the essential functions of her job, even with accomodation. Exhibit A to Defendant's Motion, Deposition of Ms. Davis, p. 53 ("I would have needed to go home anyway because there was no way I could walk up and down that hill all day."). All in all, a "qualified" individual is one who can perform all the requirements of her job in spite of her handicap. See Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979); Bradley v. University of Texas M.D. Anderson Cancer Center, 3 F.3d 922, 924 (5th Cir. 1993) (noting ability to perform essential functions of an employee's job is absolute prerequisite to viability of ADA claim).
"Hosfile Work Environment" Sexual Harassment under Title VII
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., prohibits discrimination "against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). The plaintiff charges that the defendant, through the actions of Pastore, created a hosfile environment in which the plaintiff was forced to work. "Hosfile work environment" sexual harassment occurs when an employer's conduct "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hosfile, or offensive environment." Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986). The offensive action must create an environment hosfile or abusive to the reasonable person.Weller v. Citation Oil Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996). Whether an environment meets this criteria depends upon the "totality of the circumstances." Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993);DeAngelis v. El Paso Municipal Police Officers Ass'n, 51 F.3d 591, 594 (5th Cir.), cert. denied, — U.S. —, 116 S.Ct. 473, 133 L.Ed.2d 403 (1995).
In determining whether a working environment is "hosfile" or "abusive," all the circumstances must be considered, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 594 (5th Cir. 1995). As with any Title VII case, the court utilizes the venerable McDonnell-Douglas framework of shifting burdens of production. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). As modified to apply to her workplace sexual harassment claim, this framework required Ms. Davis to demonstrate that:
(1) she belongs to a protected class;
(2) she was subject to unwelcome sexual harassment;
(3) the harassment was based on sex;
(4) the harassment affected a term, condition, or privilege of employment (i.e., that the harassment was sufficiently pervasive or severe to create an abusive work environment); and
(5) the employer knew or should have known of the harassment and failed to take prompt remedial action.Hirras v. National R.R. Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996) (citing Jones v. Flagship Int'l, 793 F.2d 714, 719-20 (5th Cir. 1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987)). While the plaintiff must prove each element of the prima fade case by a preponderance of the evidence to prevail at trial, a genuine issue of material fact as to each element will preclude an award of summary judgment. Waltman v. International Paper Co., 875 F.2d 468, 477 (5th Cir. 1989) (citingThornbrough v. Columbus Greenville R.R., 760 F.2d 633, 640-41 (5th Cir. 1985)).
The defendant argues that Pastore's actions are insufficient as a matter of law to create a hosfile working environment primarily because Ms. Davis cannot demonstrate that Pastore subjected her to any harassment based upon sex, While there are several instances in the record regarding ungentlemanly conduct by Pastore, virtually all of those incidents did not involve topics of a sexual nature. E.g., Exhibit A to Defendant's Motion, Deposition of Ms. Davis, p. 39 (order for another employee to repair an automobile by "monkey fuck[ing] this son-of-a-bitch [car]"); p. 32 (statement to plaintiff that "sometimes [he] really want[ed] to stick [his] foot up [plaintiff's] ass."); pp. 31-32 (belittling Plaintiff's job tasks by calling them "no brainers.") — Additionally, there is proof before the court that Pastore gave "preferential treatment" to certain employees under his supervision.
[Pastore] would have us come in and work extra hours to cover for people that he partied with the night before and they had hangovers and couldn't come to work the next day and so we would have to cover for them . . . And certain ones could take off sick and miss days and come in late and go home early and all that but we weren't allowed to miss. I know I got written up for missing an hour and fifteen minutes.
Exhibit A to Defendant's Motion, Deposition of Ms. Davis, pp. 36-37. As a final matter, the record is replete with evidence that Pastore commonly used vulgarities in his dealings with other employees. Sex-neutral conduct such as this may not be used to support a hosfile environment claim. Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 n. 2 (5th Cir. 1996). The only portions of the record indicating that Pastore subjected the plaintiff to any sort of sexually-based harassment involve statements regarding persons other than the plaintiff which were made to persons other than the plaintiff:
Q: What happened to Michelle Wilson?
A: With Michelle. As you know they have music all the time, you know, on the intercom. She was leaned against the counter at the front desk at the hotel and she was kind of leaned over . . . and she was sticking out and he walked up behind her and she was kind of swaying with the music . . . and [he] told her not to swing that thing like that because his you know what was already so hard it would go through a brick wall.
Q: What happened to D.D.?
A: She could wear some pretty exotic clothes, and he always had a comment to say about her clothes him wishing that he was [her pants].
Q: Any other individuals that you overheard Michael Pastore make any type of sexually disparaging remarks to?
A: The customers. He would just, I mean, he wouldn't be talking to any particular person at some time but he would be talking about the customers as they were entering or leaving the casino . . . about what they had on. Exhibit A to Defendant's Motion, Deposition of Ms. Davis, pp. 18-20. A case of hosfile work environment sexual harassment may indeed be established with this type of evidence.Farpella-Crosbv v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996) ("Sexually discriminatory verbal intimidation, ridicule, and insults may be sufficiently severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment that violates Title VII.").
In the opinion of this court, however, these few incidents are insufficient in this case to support any determination by a finder of fact that the plaintiff was subjected to a hosfile work environment in violation of Title VII. It is crucial to remember that this court will not permit an interpretation of Title VII that
mak[es] actionable "conduct that sporadically wounds or offends but does not hinder a female employee's performance, would not serve the goal of equality." Instead, a lesser standard "would attempt to insulate women from everyday insults as if they remained models of Victorian reticence." Such a result is not the goal of Title VII.Weller v. Citation Oil Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996). These few "merely offensive utterances," even in combination, are insufficient to support a hosfile work environment claim in this case. See, e.g., Long v. Eastfield College, 88 F.3d 300, 309 (5th Cir. 1996) ("The Supreme Court has previously contrasted physically threatening or humiliating conduct, which will support a claim for hosfile work environment, from a "mere offensive utterance," which will not."); DeAngelis, 51 F.3d at 595; see Harris v. Forklift Sys., Inc., 510 U.S. 17, —, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993) ("Conduct that is not severe or pervasive enough to create an objectively hosfile or abusive work environment — an environment that a reasonable person would find hosfile or abusive — is beyond Title VII's purview."). These comments were not made to the plaintiff nor were they about her, nor did they involve threats of physical harm. More importantly, the plaintiff has failed to produce any evidence as to how these sexually-related comments interfered with her work performance. Pastore's conduct may most certainly have been crude and insulting, but employees in today's age must be both prepared and capable to endure the slings and arrows of a crude society. As one circuit court put it:
We do not think that these [nine] incidents, spread over seven months, could reasonably be thought to add up to sexual harassment. The concept of sexual harassment is designed to protect working women from the kind of male attentions that can make the workplace hellish for women. . . . It is not designed to purge the workplace of vulgarity. Drawing the line is not always easy. On one side lie sexual assaults; other physical contact, whether amorous or hosfile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures, [cites omitted] On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers. We spoke in Carr of "the line that separates the merely vulgar and mildly offensive from the deeply offensive and sexually harassing." Carr v. Allison Gas Turbine Division, 32 F.3d 1007, 1010 (7th Cir. 1994). It is not a bright line, obviously, this line between a merely unpleasant working environment on the one hand and a hosfile or deeply repugnant one on the other; and when it is uncertain on which side the defendant's conduct lies, the jury's verdict, whether for or against the defendant, cannot be set aside in the absence of trial error. Our case is not within the area of uncertainty. [The defendant], whatever his qualities as a sales manager, is not a man of refinement; but neither is he a sexual harasser.Baskerville v. Culligan Intern. Co., 50 F.3d 428, 431 (7th Cir. 1995). In the case at bar, Mr. Pastore may have proven his social skills and tact lacking. He may have even shown himself inappropriate for a supervisory position. There is insufficient proof, however, that his conduct was so pervasive or unsettling as to make the plaintiff's working conditions hosfile or abusive in violation of Title VII. There is no genuine issue of material fact as to this claim of the plaintiff, and the defendant is entitled to the entry of a judgment as a matter of law.
Retaliation Under Title VII
The plaintiff also charges that she was terminated in retaliation for complaining about Pastore's conduct. The McDonnell Douglas framework is also applicable to this claim. Therefore, a plaintiff establishes a prima facie case for unlawful retaliation by proving (1) that he engaged in activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse employment action.Grimes v. Texas Dept. of Mental Health and Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996); Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995). An employee has engaged in activity protected by Title VII if she has either (1) "opposed any practice made an unlawful employment practice" by Title VII or (2) "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under Title VH. 42 U.S.C. § 2000e-3(a);Grimes, 102 F.3d at 140; Long, 88 F.3d at 304. Further, as to whether an "adverse employment decision" occurred:
our court has stated that "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions". Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). "Ultimate employment decisions" include acts "such as hiring, granting leave, discharging, promoting, and compensating". Id. at 782 (citing Page v. Bolger, 645 F.2d 227, 233 (4th Cir.), cert. denied, 454 U.S. 892, 102 S.Ct. 388, 70 L.Ed.2d 206 (1981)).Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997).
It does appear that the plaintiff can demonstrate a genuine issue of material fact as to the first two elements of the prima facie case. Ms. Davis need not have actually filed a charge with the EEOC "to engage in a protected activity" which triggers the anti-retaliation protections of Title VII. See, e.g., Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993); Patton v. United Parcel Service, 910 F. Supp. 1250, 1268 (S.D. Tex. 1995) (noting "the protection afforded by Title VII is not limited to individuals who have filed formal complaints of discrimination, but also extends to informal protests."). Here, she complained on at least one occasion — in October 1995 — of sexually-related statements by Pastore which the plaintiff found inappropriate. Exhibit C to Plaintiff's Response, Document entitled "Voluntary Statement of Laticia Davis. As to the second element, it appears undisputable that the plaintiff suffered an adverse employment decision. In January of 1996, prior to her termination but subsequent to the October 1995 complaint, the defendant demoted Ms. Davis and reduced her hourly rate of pay.
The plaintiff contends that she complained to the defendant on at least five occasions regarding Pastore's conduct. However, the evidence before the court reflects that the October 1995 complaint was the only one in which Ms. Davis complained of any sexually-oriented comments or misconduct by Mr. Pastore. Exhibit A to Plaintiff's Response, Deposition of Ms. Davis, pp. 30-40.
In her brief, the plaintiff contends that she suffered an adverse employment decision by the defendant terminating her employment in February of 1996. She is, however, collaterally estopped from making this contention. The Mississippi Employment Security Commission has rendered an administrative decision regarding Ms. Davis' loss of employment at the Lady Luck casino, and ultimately determined that Ms. Davis "voluntarily quit" her job there. Exhibit B to Defendant's Response, Deposition of Ms. Davis, pp. 85-87. Such an administrative factual finding is entitled to preclusive weight by this court. Stafford v. True Temper Sports, 123 F.3d 291, 295 (5th Cir. 1997); Raju v. Rhodes, 7 F.3d 1210, 1215 (5th Cir. 1993); M.E.S.C. v. Philadelphia Mun. Sep. Sch. Dist, 437 So.2d 388, 395 (Miss. 1983); Miss. Employment Sec. Comm'n v. Georgia-Pacific Corp., 394 So.2d 299, 301 (Miss. 1981). As this fact has been conclusively determined, the plaintiff cannot contend that the defendant terminated her employment in February of 1996.
It is the opinion of this court that the plaintiff may also be able to establish the third element of her prima facie case. However, the only proof before this court that the plaintiff's demotion was causally related to her complaint of sexually inappropriate comments by Pastore is the temporal proximity between the events — her demotion took place three months after she made the relevant complaint. It is well established that a close relationship in time between the protected activity and the adverse employment decision may be sufficient to establish this element of the prima facie case. See, e.g., Swanson v. General Services Admin., 110 F.3d 1180, 1180 (5th Cir. 1997) ("Close timing between an employee's protected activity and an adverse action against him may provide the `causal connection' required to make out a prima facie case of retaliation."); Ray v. Tandem Computers. Inc., 63 F.3d 429, 435 (5th Cir. 1995); Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993). This court has, on numerous occasions, deemed such temporal proximities to be sufficient to establish this element. See, e.g., Barnes v. Federal Express, 1997 WL 271709, *11 n. 12 (N.D. Miss. May 15, 1997); Stafford v. True Temper Sports, 1997 WL 88250, *5 (N.D. Miss. Feb. 19, 1997); Hollis v. Johnston-Tombigbee Furniture Mfg. Co., Civil Action No. I:93cv346 (N.D. Miss., Dec. 24, 1994) (Davidson, J.) ("This court agrees that the timing itself is suspicious, and this alone is minimally sufficient for the purposes of the motion at bar to establish his prima facie case as to his claim of reprisal discrimination.").
In any event, assuming that the plaintiff is capable of establishing her prima facie case, the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment decision. In this case, Lady Luck contends that it demoted the plaintiff for a physical confrontation that occurred between Ms. Davis and another employee. Exhibit B to Defendant's Motion, Deposition of Ms. Davis, pp. 52-56; Exhibit H to Defendant's Motion, document entitled "Record of Discussion" dated 1/5/96. The court finds that this reason is sufficient for the defendant to meet its burden in this regard.
The plaintiff must now demonstrate that the reason proffered by the defendant is pretext for retaliation and that retaliation was at least a substantial motivating factor in her suspension and demotion. This she fails to do. While temporal proximity may be sufficient to establish the final element of a Title VII prima facie case, it is generally insufficient to overcome a defendant's proffered legitimate, non-discriminatory reason for an adverse employment decision. See, e.g., Swanson, 110 F.3d at 1188 ("[O]nce the employer offers a legitimate, nondiscriminatory reason that explains both the adverse action and the timing, the plaintiff must offer some evidence from which the jury may infer that retaliation was the real motive.")Armstrong, 997 F.2d at 67. The record in this case is notably lacking in evidence that the plaintiff's single complaint of inappropriate sexual banter served as the impetus for her demotion. In view of the facts in this case as a whole, the undersigned is of the opinion that no reasonable trier of fact could determine that the defendant retaliated against the plaintiff for her October 1995 complaint regarding Mr. Pastore. There is no genuine issue of material fact with regard to this matter and the defendant is entitled to the entry of a judgment as a matter of law on this claim.
Proof does reflect that the plaintiff was punished more severely for this incident than the other employee involved. Exhibit B to Defendant's Motion, Deposition of Ms. Davis, pp. 52-56 While this may prove that she was treated differently than other employees and is relevant in proving pretext, it has no probative worth as to whether her complaint was a substantial motivating factor in her demotion. That is, while it may be probative of pretext, it is not probative of pretext for retaliation,
Intentional Infliction of Emotional Distress
As this court has already determined that all of the plaintiff's claims arising under federal law should be dismissed, this court declines to exercise supplemental jurisdiction over the plaintiff's claims arising under state law and shall dismiss them without prejudice. 28 U.S.C. § 1367(c)(3); United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Parker Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 590 (5th Cir. 1992);Watts v. Kroger, 955 F. Supp. 674, 687 (N.D. Miss. 1997).
Conclusion
After careful consideration of the matter at bar, the undersigned is of the opinion that the defendant's motion for summary judgment should be granted and the plaintiff's claims should be dismissed. The plaintiff's claim arising under the Americans With Disabilities Act fails because she cannot demonstrate that she suffers from a "disability" as that term is defined under the Act. Further, the plaintiff's Title VII claim fails because while there is more than adequate proof that she may have been subjected to an unpleasant working environment, there is insufficient proof for a trier of fact to determine that she was subjected to a sexually hosfile work environment in violation of Title VII. Finally, the plaintiff's claim for retaliation in violation of Title VII should not proceed to trial because there is insufficient evidence for a reasonable trier of fact to find in her favor on that claim. The defendant's motion for summary judgment shall be granted, and the plaintiff's claims shall be dismissed.
A separate order in accordance with this opinion shall issue this day.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Pursuant to a memorandum opinion issued this day, it is hereby ORDERED THAT:
the motion of the defendant for the entry of summary judgment on its behalf as against the plaintiff's claims is hereby GRANTED;
the plaintiff's claims in this cause arising under federal law are hereby DISMISSED;
the plaintiff's claims in this cause arising under Mississippi law are hereby DISMISSED WITHOUT PREJUDICE;
the defendant's motion to strike affidavit is hereby DENIED AS MOOT;
the plaintiff's motion for reconsideration is hereby DENIED AS MOOT; and
this case is CLOSED.