Opinion
CIVIL ACTION No. 03-746 SECTION: I/1
March 8, 2004
ORDER AND REASONS
This matter is before the Court pursuant to a motion for summary judgment filed on behalf of defendant, the United States Postal Service. Plaintiff, Silvia G. Duhé, brought this action alleging that she was subjected to sexual harassment and a hosfile work environment by her supervisor in violation of Title VII of the Civil Rights Act of 1964, § 701, et seq., 42 U.S.C. § 2000-e, et seq. Additionally, plaintiff alleged state law claims for assault, battery, and intentional infliction of emotional distress. For the following reasons, defendant's motion for summary judgment is GRANTED.
Rec. Doc. No. 22.
Rec. Doc. No. 1, Comp. ¶ XVIII.
Comp. ¶ XIX.
FACTS AND PROCEDURAL HISTORY
Plaintiff, Sylvia G. Dune", began her employment with the United States Postal Service ("USPS") in August, 1999, as a rural carrier associate ("RCA") stationed at the Destrehan, Louisiana, post office. John Bourgeois was the Postmaster of the Destrehan post office and Duhé's supervisor. Bourgeois was the Destrehan Postmaster from November, 1998, until January, 2003, when he became Officer in Charge ("OIC") of the Donaldsonville, Louisiana, post office. During the time Bourgeois was Postmaster of the Destrehan post office, all of the carriers and clerks at the post office, with the exception of two male carriers and Bourgeois, himself, were female. Plaintiff asserts that on three occasions, Bourgeois' physical conduct created a hosfile work environment. Additionally, she avers that from the time she began her employment at the Destrehan post office, she was subject to discriminatory treatment concerning her job responsibilities and promotions which contributed to a hosfile work environment.Plaintiff avers that on May 7, 2001, while she was sorting mail, Bourgeois walked up behind her and that he was heavily breathing. Plaintiff testified that Bourgeois began speaking to her about how to sort the mail and, when she turned around, she saw Bourgeois standing two feet away from her rubbing his crotch in a sexual manner. Plaintiff testified that Bourgeois continued to rub himself while she was facing him. According to Duhé, as soon as she noticed what he was doing, she looked him in the eye, but Bourgeois did not stop rubbing his crotch. Because this made her feel uncomfortable, she turned away from him. She testified that after she turned away from Bourgeois, he remained behind her for awhile and then he walked away. That evening, plaintiff called a co-worker, Terry Naquin, and informed her of what had happened.
Rec. Doc. No. 26, Ex. 3, plaintiff's excerpted deposition testimony of Sylvia G. Duhé ("Dep. Duhé"), at pp. 235-36.
Aff. Duhé, at 1; Dep. Duhé, at pp. 237-39.
Dep. Duhé, at p. 238.
Aff. Duhé, at 1; Dep. Duhé, at pp. 237-39.
Dep. Duhé, at p. 237. In her affidavit, Duhé, asserts that while her back was turned to Bourgeois, he continued to breathe heavily. Aff. Duhé, at 1.
Aff. Duhé, at 1; Dep. Duhé, at p. 244.
The second incident of sexual harassment allegedly occurred on August 6, 2001. On that date, Bourgeois was training Duhé to deliver the mail on a particular route. Duhé was using her own personal vehicle during the training process. According to Duhé, Bourgeois told her that it was necessary for him to accompany her in her vehicle during the training. Duhé testified that Bourgeois was in the passenger seat and Duhé was driving. Bourgeois allegedly made a comment about how to put the mail in the mailbox and when Duhé looked at him, she saw Bourgeois rubbing his crotch in a sexual manner. She testified that because this made her uncomfortable, she turned away. During the remainder of the training ride, Bourgeois continued to attempt to get her to look to the right, but Duhé refused. When she returned home that evening, Duhé again called Naquin and informed her of what had happened.
Dep. Duhé, at p. 270. Most, but not all, of the Destrehan routes had a USPS van (an "LLV") assigned to them. On those routes for which an LLV was not assigned, the mail carriers used their own personal vehicles to deliver the mail. Rec. Doc. No. 22, Ex. 10, Declaration of Larry Hamilton, Manager of Labor Relations for the Louisiana District of the USPS ("Hamilton Decl."), ¶ 9; Isaac Decl, ¶ 12; Duhé Depo., at pp. 86, 87, 91-92, 119.
Aff. Duhé, at 2. In typed recollections submitted in support of her informal EEO complaint, Duhé states:
"Mr. Bourgeois said he would go with me in my car to show me the route. I was very uncomfortable with this, but I couldn't say no, because he is the boss."
Rec. Doc. No. 22, Ex. 2, notes appended to the deposition testimony of Sylvia Duhé.
Dep.Duhé, at p. 241.
Duhé testified:
Q. And what did he say to get your attention to look at him?
A. He says, "you got to put the mail in this way, in it. You got to put it in there," and all this about putting in the mail in the mailbox. Something that I already knew, because I had already done Route 7 and Route 2 and Route 6.
Q. Okay. Was he looking at you?
A. He was looking at me. And then-you know.
Q. And motioning with his hand?
A. With his hand, yeah.
Q. Put it in the box?
A. Yes.
Q. Okay.
A. But he turned around and looked at the mailbox.
Dep. Duhé, at pp. 240-41:18-20; see also Aff. Duhé, at 2.
Duhé testified:
Q. And in the car?
A. To me it seem [sic] like it was his right hand. Because when I noticed it, I turned around. And he kept talking to me for me to keep turning. And it just made me very uncomfortable.
Q. How much longer were you in the car with him after you noticed him rubbing himself?
A. For a while, because we had, we had just started the route. I don't know what street we were on.
Q. Now —
A. From then on I didn't turn back after that second time. I didn't turn back when he spoke. I just answered, you know.
Dep. Duhé, at p 243:3-16; see also Aff. Duhé, at 2.
Aff. Duhé, at 2.
The third incident allegedly occurred on May 3, 2002. Duhé testified that upon returning to the post office after delivering the mail, Bourgeois met her outside the post office and told her that she would have to deliver the mail on a route which was unfamiliar to her. According to Duhé, she stated to Bourgeois that she could not cover the new route because she was not trained to deliver the mail on that route. Bourgeois immediately became angry, raised his voice, and threatened to fire her if she did not follow his orders. Duhé testified that after Bourgeois raised his voice and threatened to fire her, Bourgeois deliberately walked into her, pushing her forcefully with his body. Bourgeois then proceeded to walk out to the parking lot without any further verbal exchange between Duhé and Bourgeois.
Dep. Duhé, at pp. 280-81. Duhé, in her position as an RCA, as opposed to a regular mail carrier, was assured of working only one day a week, usually Saturday. Although the RCA's are regularly assigned to work a particular route, they may, depending on the availability of carriers, be required to work other routes as well. See Isaac Decl., ¶ 6; Hamilton Decl., ¶ 15; Duhé Depo., at pp. 80, 84-85, 290.
Dep. Duhé, at 280.
Id. at 281.
Id
Id In addition to the above-described incidents, plaintiff alleges numerous other incidents that she asserts contributed to the discriminatory hosfile working environment:
1. Duhé was instructed by Bourgeois that she had to take all of her mail when making deliveries, with no exceptions, while other carriers were not required to take all of their mail. When she was late returning to the office, she was subjected to verbal harassment from Bourgeois. She was then instructed to take her incoming mail to New Orleans Airport when other employees were not required to do the same.
2. Bourgeois told her that she had to deliver to blocked mailboxes while other carriers were not required to deliver mail to blocked mailboxes.
3. Duhé was told that she had to use her personal vehicle to make deliveries while in October, 2001, a newly hired carrier was allowed to use an LLV to make deliveries.
4. When she started working at the post office, Bourgeois told Duhé to come in at 6:00 A.M. to start casing the mail. When Duhé would arrive early, Bourgeois told her that she was not allowed to enter early while other carriers were permitted to enter early. During holidays, Bourgeois would let all the other carriers but Duhé come in at 5:00 A.M.
5. During one week in January, 2000, Bourgeois required her to falsify her timesheet to indicate that she took a lunch break every day when, in fact, she had not taken one. This was done, according to Duhé, so that Bourgeois could avoid paying her overtime.
6. Bourgeois falsely represented to another letter carrier that Duhé had requested training on a certain mail route when, in fact, she had not made that request. Upon confronting Bourgeois about this statement, Bourgeois became angry, shouting at her and calling her a liar.
7. In October, 2000, Duhé suffered a head injury and was out of work under a doctor's care. While she was recuperating, Bourgeois called her at home asking when she was going to return to work. He allegedly shouted at her and threatened to fire her if she did not return to work.
8. In August, 2001, when Duhé asked Bourgeois for a PIN number to fuel the LLV that she was using, Bourgeois became angry, yelled at her, and stated that he already had given her a PIN number when, in fact, he had not done
9. In September, 2001, Bourgeois told Duhé that he would not pay her for training a new hire. Duhé later overheard Bourgeois tell another clerk that he knew he had to pay her, but he was just trying to make her mad.
10. In January, 2002, Bourgeois monitored Duhé's phone conversation when another carrier called to ask her to cover his route. In addition, Duhé saw Bourgeois following her on her route on several occasions although Duhé understood that Bourgeois was only supposed to follow her on her route once a month. Further, Bourgeois passed her over for a clerking position in favor of other carriers with less seniority.
11. Bourgeois gave less senior carriers work on a particular route.See Comp., ¶ XIV-XV; Rec. Doc. No. 22, Ex. 5, Amended partial acceptance/partial dismissal of plaintiff's administrative complaint, at 3-4.
On May 7, 2002, Duhé contacted the EEO office in the Louisiana district of the USPS. Duhé claimed that Bourgeois had discriminated against her based upon her race, national origin, and gender from 1999, the year she began working in the Destrehan post office, all of which culminated in the May 3, 2002, alleged battery. Prior to filing her initial informal complaint with the EEO on May 7, 2002, plaintiff did not report the two instances of alleged sexual harassment to anyone with management authority and she did not request that anyone else report that she was being sexually harassed. Plaintiff testified that upon informing Naquin that Bourgeois had sexually harassed her, Naquin told her to call the union. She further testified that she did call the union and complain about being treated rudely and unfairly by Bourgeois with respect to her work assignments, but she did not mention the two instances of alleged sexual harassment. Duhé also met with Gwen Troxclair, a union representative at the Destrehan post office, to complain about Bourgeois' general temperament toward her. Duhé did not report the two instances of sexual harassment to Troxclair. so. Upon learning of Duhé's informal EEO complaint, Douglas Russell, the USPS human resources manager in charge of the Eastern District of Louisiana, dispatched Joseph Primas, a workplace improvement specialist employed by the USPS, to Destrehan to conduct an initial inquiry into Duhé's allegations. Primas interviewed Duhé, who informed him that she had not returned to work. After interviewing Duhé, Bourgeois, and several other employees at the Destrahan post office, Primas advised Bourgeois to be more conscious of the way he spoke to his employees and to try to speak in a lower tone. On May 31, 2002, Russell received Primas' initial report. After reviewing Primas' report, Russell concluded that a more formal fact-finding investigation was warranted due to the nature of Duhé's allegations.
Dep. Duhé at p. 101.
Id.
Troxclair Dec!., ¶ 12.
Id., Duhé Depo.p. 98.
Rec. Doc. No. 22, Ex. 14, Declaration of Douglas E. Russell ("Decl. Russell"), ¶ 8.
Id., Ex. 12, Declaration of Joseph Primas ("Decl. Primas"), ¶ 9.
Id., ¶ 10.
Decl. Russell, ¶ 9.
Id., ¶ 10.
On June 24, 2002, Russell contacted Jacqueline Francis and Gerald Miller, two supervisors trained to conduct fact-finding investigations, and he directed them to conduct an investigation into Duhé's allegations. That investigation was completed on July 8, 2002. Russell concluded that because conflicts existed between Duhé's statement and statements by other witnesses, including Naquin, there was no evidence to substantiate Duhé's allegations of sexual harassment. Russell wrote to Duhé and informed her of his conclusion by letter dated August 5, 2002. Although he had not found evidence to support Duhé's allegations of sexual harassment, Russell stated in his letter that the post office had a zero tolerance policy toward sexual harassment and that it would administer refresher sexual harassment training at the Destrehan post office to all employees at that location. That sexual harrassment training occurred on September 11, 2002.
Decl. Russell, ¶ 12.
Id. at ¶ 14.
Id., attachment 3.
Id
Id., ¶ 17.
Because Duhé had indicated that she could no longer work for Bourgeois, the USPS offered her the opportunity to transfer to either the Luling or Boutté post offices which were both approximately twenty minutes from Destrehan. Duhé did not accept the offer to transfer because she felt that she did not do anything wrong and she thought that Bourgeois should be transferred instead. Additionally, after discussing the possibility of transferring to either Luling or Boutté, Duhé testified that Naquin advised her against accepting the offer because, according to Nauqin, the work assignment would have involved a greater mail delivery area and it would have taken more time for a carrier to cover those routes.
Dep. Duhé, at p. 321; Russell Decl., ¶ 18, attachment 6, letter from Sylvia Duhé dated August 5, 2002.
Dep.Duhé, at pp. 320-22.
Duhé filed a formal EEO complaint on or about August 5, 2002. Duhé claimed that she had been discriminated against based upon her race, national origin, and gender and she added a retaliation claim. On October 25, 2002, the USPS accepted Duhé's hosfile work environment claim for investigation based upon the alleged May 3, 2002, altercation between Duhé and Bourgeois. On January 24, 2003, the EEO dismissed as untimely the remainder of Duhé's claims, which were based upon events which occurred more than 45 days prior to May 7, 2002. Duhé filed this lawsuit on March 14, 2003.
Rec. Doc. No. 22, Ex. 3. Plaintiff concedes that she cannot sustain a Title VII discrimination claim based upon race or national origin. See Rec. Doc. No. 26, pl. mem. in opposition, at 3 n. 4. Plaintiff also advises the Court that she is not pursuing a claim for retaliation. Id. at 7 n. 7. Therefore, the sole remaining claim before the Court is plaintiff's sexual harassment/hosfile work environment claim. Plaintiff does not intend to pursue a gender discrimination claim based upon a disparate treatment theory. See Rec. Doc. No. 31.
Id., Ex. 4, USPS acceptance of EEO complaint, at 1.
See id., Ex. 5., partial acceptance/partial dismissal of formal EEO complaint.
LAW AND ANALYSIS
I. Summary Judgment Standard
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue 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). Once the moving party carries its burden pursuant to Rule 56(c), the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct 1348, 1356, 89 L.Ed.2d 538 (1986). That burden is not satisfied by creating merely some metaphysical doubt as to the material facts, by conclusory allegations, unsubstantiated assertions or by only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). The materiality of facts is determined by "the substantive law's identification of which facts are critical and which facts are irrelevant." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Therefore, a fact is material if it "might affect the outcome of the suit under the governing law." Id. 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." Id. "Where 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." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (internal quotation omitted).
In order to demonstrate that summary judgment should not lie, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct 2548, 2553, 91 L.Ed.2d 265 (1986); Auguster v. Vermillion Parish School Board, 249 F.3d 400, 402 (5th Cir. 2001). A court will resolve factual controversies in favor of the nonmoving party, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075. The Court will not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts. See id. (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct 3177, 3188, 111 L.Ed.2d 695 (1990)).
[T]he plain language of Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Munoz v. Orr, 200 F.3d 291, 307 (5th Cir. 2000) ("A complete failure of proof as to one element requires summary judgment against the entirety of the claim") (citation omitted).
II. Title VII claim for supervisor sexual harassment
Section 717(a) of Title VII mandates that all personnel actions affecting federal employees covered by that section "shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a); see Loeffler v. Frank, 486 U.S. 549, 559, 108 S.Ct. 1965, 1971, 100 L.Ed.2d 549 (1988). When Congress amended Title VII to bring federal employees within the ambit of Title VII, "Congress intended to provide federal employees with `the full rights available in the courts as are granted to individuals in the private sector under Title VII.'" Id. (quoting Chander v. Roudebush, 425 U.S. 840, 841, 96 S.Ct. 1949, 1950, 48 L.Ed.2d 416 (1976) (quoting S.Rep. No. 92-415, p. 16 (1971))). In amending Title VII to cover federal employment, "Congress simultaneously provided federal employees with a cause of action under Title VII and effected a waiver of the Government's immunity from suit." Id.
Although a federal employee's Title VII action is "circumscribed by mandatory administrative prerequisites that are distinct from the prerequisites for a civil suit brought against a private employer, a § 717 suit, once commenced, is delineated by the same provisions as a suit against a private employer." Loeffler, 486 U.S. at 564, 108 S.Ct. at 1974; see 42 U.S.C. § 2000e-16(b) (directing the EEO to "issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under [§ 2000e-16]"); § 2000e-16(c) (providing that a federal employee must institute a civil action within 90 days of final agency action or after 180 days of bringing the initial complaint if no final agency action has been taken).
Federal employees must initiate informal counseling prior to filing a claim of discrimination with the EEOC. Teemac v. Henderson, 298 F.3d 452, 454 (5th Cir. 2002Xciting 29 C.F.R. § 1614.105(a)). If an employee fails to do so, the claim is barred unless the employee can establish waiver, estoppel, or grounds for equitable tolling. Id.(citing Pacheco. v. Rice, 966 F.2d 904, 905 (5th Cir. 1992)). Pursuant to 29 C.F.R. § 1614.105(a), a federal employee "must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory." Based upon the 45-day limitations period, the USPS denied Duhé's claims which were based upon events occurring more than 45 days prior to May 7, 2002, the day Duhé contacted a counselor. See Rec. Doc. No. 22, Ex. 5, at 5.
In Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), the U.S. Supreme Court clarified the appropriate timeliness analysis with respect to the initiation of a Title VII claim. In Morgan, the Court held that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. at 113, 122 S.Ct. at 2072. The Court reasoned that because discrete acts "such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify[,] . . . only incidents that took place within the timely filing period are actionable." Id. at 114, 122 S.Ct. at 2073. Although an employer's liability may not be based on time barred "discrete acts" of discrimination, a plaintiff may nevertheless introduce evidence of time barred conduct as "background evidence in support of a timely claim." Id. at 113, 122 S.Ct. 2072.
In contrast, the Morgan Court explained that "[h]osfile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct." Id. at 115, 122 S.Ct. at 2073. Accordingly, hosfile work environment claims are subject to a different limitations rule: "Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hosfile environment may be considered by a court for the purposes of determining liability." Id. at 117, 122 S.Ct. 2074. The Court noted, "in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." Morgan, 536 U.S. at 115, 122 S.Ct. at 2073; see Singletary v. District of Columbia, 351 F.3d 519, 525 (D.C. Cir. 2003) (noting that pursuant to Morgan, the timeliness of a plaintiff's hosfile work environment claim "does not depend upon whether the acts [plaintiff] alleged were discriminatory are actionable standing alone"). Faced with a hosfile environment claim, "[a] court's task is to determine whether the acts about which an employee complains are part of the same actionable hosfile work environment practice, and if so, whether any act falls within the statutory time period." Morgan, 536 U.S. at 120, 122 S.Ct. at 2076.
The Morgan Court addressed the timeliness issue in the context of the statutory requirement that plaintiff's (who are not federal employees) must file a charge within 180 days if filing directly with the EEOC, or 300 days if filing with a state agency possessing the authority to process and remedy such claims under state law. 42 U.S.C. § 2000e-5(e). Those specific time limits do not apply to federal employees. See 42 U.S.C. § 2000e-16(d). However, the Morgan Court's distinction between discrete acts of discrimination and hosfile environment claims did not depend on the specific time limit at issue in that case. Although the Fifth Circuit has not directly addressed the applicability of Morgan to the 45-day time limitation applicable to federal employees, the Ninth Circuit has concluded that "the mandatory nature of [ 29C.F.R. § 1614.105] is sufficient to warrant full application of the Morgan rule." Lyons v. England, 307 F.3d 1092, 1106 n. 6 (9th Cir. 2002).
It is undisputed that with respect to the May 3, 2002, incident, Duhé timely initiated contact with a counselor and properly exhausted her administrative remedies. Duhé alleges that all of Bourgeois' conduct contributed to the hosfile work environment which culminated on May 3, 2002. Accordingly, her hosfile work environment claim is timely. However, even if the May 3, 2002, incident is viewed as a "discrete" event of discrimination, Bourgeois' conduct, even if time barred for purposes of liability, may be considered as "background evidence" in support of her timely filed claim. See Morgan, 536 U.S. at 11. Therefore, regardless of how Duhé's claim is viewed, this Court is permitted to consider, for purposes of summary judgment, conduct that occurred more than 45 days prior to May 7, 2002.
A plaintiff may establish a violation of Title VII by proving that discrimination based upon the plaintiff's sex has created a hosfile or abusive work environment. Mentor Savings Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986). In order to establish a Title VII sexual harassment claim alleging a hosfile work environment based upon the conduct of a supervisor with immediate (or successively higher) authority over the harassed employee, a plaintiff must prove four elements: (1) the employee belonged to a protected class; (2) the employee was subject to unwelcome sexual harassment; (3) the harassment was based on sex; and (4) the harassment affected a "term, condition, or privilege of employment" i.e., the sexual harassment must be sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment. Watts v. Kroger Co., 170 F.3d 505, 509 n. 3 (5th Cir. 1999) (distinguishing supervisor sexual harassment claims from co-worker sexual harassment claims); see also Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 298 n. 2 (5th Cir. 2001). Once an employee makes this showing, an employer may be held vicariously liable for the sexual harassment of its supervisor. Watts, 170 F.3d at 509.
In response to that cause of action, the employer can raise an affirmative defense to damages or liability so long as the employer establishes that the supervisor's harassment did not culminate in a "tangible employment action" being taken against the employee. See id In light of the companion cases of Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 662 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), the Fifth Circuit has established a methodology which governs the analysis of supervisor sexual harassment claims:
First we determine whether the complaining employee suffered a "tangible employment action." If he has, the claim is classified as a "quid pro quo" case; if he has not, the claim is classified as a "hosfile environment" case. In a quid pro quo suit, proof that a tangible employment action resulted from a supervisor's sexual harassment renders the employer vicariously liable, and no affirmative defense can be asserted. In a hosfile environment case, however, the next inquiry is whether the supervisor's actions constituted severe or pervasive sexual harassment: If the conduct was not severe or pervasive, the employer cannot be held liable vicariously for the supervisor's actions; if the conduct was severe and pervasive, the employer is vicariously liable unless the employer can establish both prongs of the conjunctive Ellerth/Faragher affirmative defense-the only affirmative defense to vicarious liability now available in a supervisor sexual harassment hosfile work environment case. To establish this defense, the employer must show that (1) the employer exercised reasonable care to prevent and correct promptly any sexual harassment, and (2) the complaining employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.Wyatt v. Hunt Plywood Co., 297 F.3d 405, 409 (5th Cir. 2002); Casiano V. ATT Corp., 213 F.3d 278, 283-84 App. (5th Cir. 2001) (setting forth a "road map" for analysis of supervisor sexual harassment claims); Rodriguez v. City of Houston, 250 F. Supp.2d 691, 700 (S.D.Tex. 2003) (noting that the Casiano framework details two different ways in which a plaintiff may establish the fourth element of the prima facie case for supervisor sexual harassment, i.e., that sexual harassment affected a term, condition, or privilege of employment). The Ellerth Court found that the labels "quid pro quo" and "hosfile environment," while not controlling for purposes of establishing an employees liability, are nevertheless not irrelevant in the context of Title VII litigation. Burlington, 524 U.S. at 753-54, 118 S.Ct. at 2265; Green V. Adm's of the Tulane Educ. Fund, 284 F.3d 642, 655 n. 5 (5th Cir. 2002) (noting that "in Ellerth, the Supreme Court noted that the terms quid pro quo and hosfile work environment, while helpful, are not dispositive"); Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 268 (5th Cir. 1998). As explained by the Supreme Court,
We do not suggest the terms quid pro quo and hosfile work environment are irrelevant to Title VII litigation. To the extent they illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general, the terms are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII. When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII. For any sexual harassment preceding the employment decision to be actionable, however, the conduct must be severe or pervasive.Ellerth, 524 U.S. at 753-54, 118 S.Ct. at 2265; "In other words, proof that a tangible employment action did result from the employee's acceptance or rejection of sexual harassment by his supervisor makes the employer vicariously liable, ipso facto; no affirmative defense will be heard." Casiano, 213 F.3d at 284.
Before reaching the question of whether Bourgeois' alleged harassment culminated in a "tangible employment action," the Court will first address the USPS's argument that Duhé's claim fails because she cannot establish the third element of her prima facie case, i.e., that Bourgeois' conduct toward her was based upon her sex. The USPS contends that with respect to the May 3, 2002, altercation between Duhé and Bourgeois, Duhé has not presented summary judgment evidence to show that Bourgeois was acting out of any prohibited animus. The USPS contends, and Duhé's own deposition testimony establishes, that the May 3, 2002, incident involved a disagreement between Bourgeois and Duhé about whether Duhé was required to deliver the mail with respect to a route on which she had not been trained. The USPS asserts that Duhé's entire hosfile environment claim fails because she cannot establish that there was anything overtly sexual with respect to Bourgeois' threat to fire her if she did not comply with his order and the alleged subsequent physical contact. Plaintiff responds by arguing that, when taken in conjunction with the allegations of more overt sexual conduct by Bourgeois, it is a reasonable inference that Bourgeois' conduct on May 3, 2002, was based upon Duhé's gender.
The law is clear that "[s]ex-neutral hosfile conduct cannot be used to support a hosfile environment claim. Title VII does not protect employees from hosfile conduct that is not based on their protected status." Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 n. 2 (5th Cir. 1996) (citing Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995)). It follows that even "severe and pervasive" hostility in the workplace, if not based upon gender, cannot establish a prima facie case of gender discrimination.
Duhé has not offered any objective summary judgment evidence to establish that the disagreement on May 3, 2002, was anything other than a power struggle between a demanding boss and a contrary employee. However, when viewed against the backdrop of the two alleged crotch-rubbing incidents, which unquestionably support an inference of conduct based upon Duhé's gender, the "sex-neutral" character of Bourgeois' May 3, 2002, conduct becomes less clear. Although "vague assertions" of past discriminatory animus will not bolster a discrimination claim based upon conduct that is not itself motivated by prohibited animus, see Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002), Duhé's allegations of sexual harassment are relatively detailed, specific, and supported by admissible summary judgment evidence. If Duhé's testimony is believed by the jury, the two prior instances of crotch-rubbing, one of which was accompanied by verbal sexual innuendo, may bear on the jury's determination of whether Bourgeois' subsequent conduct was also motivated by animus toward Duhé because she is female.
As the Fifth Circuit has noted, "[w]hen state of mind is an essential element of the nonmoving party's claim, it is less fashionable to grant summary judgment because a party's state of mind is inherently a question of fact which turns on credibility." Int'l Shortstop, 939 F.2d at 1265; see also Casiano, 213 F.3d at 285(noting that in a "no-witness `swearing match' [regarding overt sexual conduct] . . . either party could prevail at trial, depending solely on which one the trier of fact believes after hearing the testimony and observing the demeanors of the protagonists on the witness stand"). In such a case, "the court must be vigilant to draw every reasonable inference from the evidence in the record in a light most flattering to the nonmoving party." Id. at 1266. Although this is a close case on this element, the Court cannot say that Duhé has not submitted sufficient summary judgment evidence to at least raise a genuine issue of material fact with respect to whether Bourgeois' conduct was or was not based upon her gender. Therefore, the Court proceeds with an analysis of Duhé's claim and the USPS's vicarious liability for Bourgeois' conduct pursuant to the Faragher/Ellerth/Casiano framework.
A. Tangible Employment Action
As defined by the Supreme Court, a tangible employment action "constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S. at 761, 118 S.Ct. at 2268. Analyzing an employer's vicarious liability for its supervisor's conduct by reference to agency principles, the Supreme Court explained:
Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control.
Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment decision requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors.
For these reasons, a tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer.Id. at 762, 118 S.Ct. at 2269. Accordingly, as noted above, in a case where the harassing supervisor's conduct culminates in a "tangible employment action," the employer is necessarily liable for the supervisor's conduct. Wyatt, 297 F.3d at 410 n. 15; Casiano, 213 F.3d at 284; Watts, 170 F.3d at 509; Butler, 161 F.3d at 268.
Duhé's complaint characterizes her sexual harassment claim as a hosfile work environment claim. Nevertheless, Duhé argues that the USPS is not entitled to the Faragher/Ellerth defense because (1) she was "constructively discharged," and (2) a transfer to Luling or Boutté would have been an undesirable reassignment and, therefore, the offer to transfer her constituted a "tangible employment action." Although Duhé has not referred to her claim as a "quid pro quo" claim, proof that a supervisor's sexual harassment resulted in a "tangible employment action," even if the case is characterized as a hosfile environment case, precludes an employer from asserting the Faragher/Ellerth defense. See Green, 284 F.3d at 655 n. 5 (noting that regardless of whether a case is tried as a hosfile environment case, a "tangible employment action" taken against a subordinate becomes the act of theemployer and no affirmative defense to vicarious liability is available). Therefore, the Court must determine whether Bourgeois' conduct culminated in a "tangible employment action," i.e., a "significant change in employment status." Ellerth, 524 U.S. at 761, 118 S.Ct at 2268.
B. Tangible Employment Action/ Constructive Discharge
A constructive discharge can be a tangible employment action in the Fifth Circuit. See Wyatt, 297 F.3d at 410 n. 15 (noting that plaintiff had not advanced a coherent claim of constructive discharge "or other tangible employment action"); Webb V. Cardiothoracic Surgery Assocs. of North Texas, P.A., 139 F.3d 532, 540 (5th Cir. 1998) (finding that plaintiff's failure to support a constructive discharge claim meant that the plaintiff failed to show a "tangible job detriment"); see also Roussell V. Harmony Corp., 2002 WL 1467837, at *7-8 (E.D.La. July 9, 2002); Chavera v. Victoria Indep. Sch. Dist., 221 F. Supp.2d 741, 747-48 (S.D.Tex. 2002) (citing cases applying the constructive discharge doctrine to determine whether a tangible employment action occurred). In order to prove a constructive discharge, "an employee must offer evidence that the employer made the employee's working conditions so intolerable that a reasonable employee would feel compelled to resign." Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000). Stated more simply, a plaintiff's resignation "must have been reasonable under all the circumstances." Id (quoting Barrow v. New Orleans Steamship Ass'n, 10 F.3d 292, 297 (5th Cir. 1994)).
The Fifth Circuit has considered the following working conditions relevant, singly or in combination, when addressing constructive discharge claims: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement or continued employment on terms less favorable than the employee's former status. Brown, 207 F.3d at 782. Duhé claims that the offer to transfer her to another post office constitutes an offer of less favorable employment and that the "badgering, harassment, or humiliation" by Bourgeois rendered her unable to work with him.
Whether a reasonable employee would feel compelled to resign is an objective test. Hunt v. Rapides Healthcare Sys., LLC., 277 F.3d 757, 772 (5th Cir. 2002). Therefore, the question is not whether Duhé felt compelled to resign, but whether a reasonable employee in her situation would have felt so compelled. See id (citing Barrow, 10 F.3d at 297 n. 19). Moreover, to maintain a claim of constructive discharge based upon allegations of harassment, a plaintiff must "demonstrate a `greater severity or pervasiveness of harassment than the minimum required to prove a hosfile work environment claim.'" Woods, 274 F.3d at 301 (quoting Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998)). As stated by the Fifth Circuit, "[p]art of an employee's obligation to be reasonable is an obligation not to assume the worst, and not to jump to conclusions too fast." Webb, 139 F.3d at 539 (quoting Dornhecker V. Malibu Grand Prix Corp., 828 F.2d 307, 310 (5th Cir. 1987)). When an employer takes reasonable steps to correct sexual harassment once notified of the problem, an employee has "an obligation to give the company another opportunity to remedy the problem before deciding that she could not work there anymore." Woods, 274 F.3d at 301. Therefore, when an employer takes prompt remedial action to prevent further harassment by a supervisor, that factor alone is "fatal" to a plaintiff's constructive discharge claim. Webb, 139 F.3d at 539-40.
Duhé submits evidence which supports her claim that Bourgeois was hosfile and abusive to her and that she subjectively thought that his harassment was designed to force her to quit her job. Duhé, who never resigned, voluntarily stayed absent from work on unpaid medical leave until Bourgeois eventually changed locations. Even assuming, arguendo, that voluntary medical leave is the equivalent of a resignation, Duhé's claim fails because the USPS promptly undertook action to remedy the harassment in response to Duhé's claims which included, (1) conducting a fact-finding investigation of Duhé's claim; (2) offering Duhé a transfer to another post office; (3) administering refresher sexual harassment training to all Destrehan employees; and (4) instructing Bourgeois to be more conscious of the way he spoke to his employees. Duhé does not submit any evidence to suggest that these measures were not reasonably calculated to stop the harassment. Moreover, despite the remedial action taken by the USPS, Duhé did not return to work until June, 2003. Even were the Court to find that Bourgeois' harassment of Duhé was substantial, "[a] reasonable employee would not have felt compelled to resign immediately following the institution of measures which [are] . . . reasonably calculated to stop the harassment." Landgraf v. USI Film Prod's, 968 F.2d 427, 430-31 (5th Cir. 1992). After Duhé refused the offer to transfer her to another post office, the USPS took no action to change her employment status and simply awaited her return to work. Duhé has not raised a genuine issue of material fact with respect to her claim that the alleged harassment by Bourgeois constituted a constructive discharge.
Dep.Duhé, 216-17.
Additionally, Duhé claims that the USPS's offer to transfer her constitutes a "tangible employment action" or "constructive discharge" because the transfer was undesirable. The crux of Duhé's argument is that she was given two equally undesirable alternatives, i.e. return to a work atmosphere which she alleges was intolerable, or accept a transfer to a post office which would entail an additional twenty minute drive and, possibly, an increased mail delivery area. Further, Duhé felt that because she had not done anything wrong, Bourgeois, not she, should have been transferred.
Whether an employment action is sufficiently adverse to constitute a "tangible employment action" or a "constructive discharge" is an objective determination. Hunt, 277 F.3d at 772; Doe v. Dekalb County Public Schs., 145 F.3d 1441, 1448-49 (11th Cir. 1998). "[Subjective impressions as to the desirability of one position over another cannot control [the] decision" as to whether a transfer constitutes an "adverse" employment action or a constructive discharge. Kelleher V. Flown, 761 F.2d 1079, 1086 (5th Cir. 1987) (quoting Lee v. Russell City Bd. of Educ., 563 F.2d 1159, 1162 (5th Cir. 1977)); see also Hunt, 211 F.3d at 770-72 (holding that an "adverse employment action" and "constructive discharge" cannot be proven by a plaintiff's subjective desire for another position); Burger v. Central Apartment Mgmt., Inc., 168 F.3d 875, 879 (5th Cir. 1999) (noting that plaintiff's desire for a shorter commute does not have any effect on whether a transfer is "purely lateral") (citing Doe, 145 F.3d at 1453); Darnell v. Campbell County Fiscal Court, 731 F. Supp. 1309, 1313 (E.D.Ky. 1990)("The mere subjective preferences of the plaintiff . . . are insufficient to turn a transfer of location into a constructive discharge."). Changes in work schedule, purely lateral transfers, transfers requiring additional commuting time, and the assignment of extra work are neither tangible employment actions nor changes in employment sufficient to support a claim of constructive discharge. See Watts, 170 F.3d at 510 (changing one's work schedule and expanding the duties of an employee's job does not constitute a "tangible employment action"); Burger, 168 F.3d at 879 (noting the "clear trend of authority" holding that a lateral transfer does not constitute an adverse employment decision) (citing Doe, 145 F.3d at 1453); Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996) (holding that even though a transfer resulted in reduction of commission income, lateral transfer does not constitute adverse employment action); Slay v. Glickman, 137 F. Supp.2d 743, 752 (S.D.Miss. 2001) (holding that a transfer requiring a three hour commute did not constitute a "tangible employment action" pursuant to the Ellerth definition); Darnell, 731 F. Supp. at 1313 (holding that a transfer to a job requiring additional twenty minute commute does not constitute an adverse employment action or a constructive discharge). Additionally, being subject to a rude and demanding boss is not a sufficient tangible employment action which would constitute a violation of Title VII. See Webb, 139 F.3d at 539 (holding that exposure to a rude and uncivil boss does not affect the tangible aspects of the compensation, terms conditions, or privileges of employment).
The precise holding of the Burger decision was that a purely lateral transfer did not constitute an "ultimate employment decision," for purposes of establishing a Title VII retaliation claim. 168 F.3d at 879. The Fifth Circuit has not yet decided whether a "tangible employment action, " as defined by the U.S. Supreme Court in Ellerth, is identical to the Fifth Circuit definition of an "adverse employment action", i.e. an "ultimate employment decision." See Watts, 170 F.3d at 510 n. 4 (declining to reach the issue). The Fifth Circuit has implied that the continuing vitality of the "ultimate employment decision" doctrine is questionable in light of the Ellerth Court's broad definition of "tangible employment action". Felton v. Polles, 315 F.3d 470, 486 (5th Cir. 2002). In any event, the Burger holding that a purely lateral transfer does not constitute an "ultimate employment decision" is persuasive because a purely lateral transfer also does not come within the broader Ellerth definition of a "tangible employment action," i.e., a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S. at 761, 118 S.Ct. at 2268(emphasis supplied).
The USPS did not transfer Duhé, but instead offered her the opportunity to maintain her position as an RCA at a different post office in response to her claim that she could not work with Bourgeois. As mentioned, Duhé declined that offer because she felt that Bourgeois should have been transferred instead. However, "[an employer] is not legally obligated to fire [an alleged sexual harassment offender] or separate him from work interaction with [a plaintiff]." Woods, 274 F.3d at 299 (alteration added); Landgraf, 968 F.2d at 427 ("Title VII does not require that an employer use the most serious sanction available to punish an offender, particularly where, as here, this was the first documented offense by an individual employee."). Moreover, putting aside whether a transfer could constitute a "tangible employment action," Duhé cannot establish that the USPS took any employment action because she did not accept the offer to transfer and the USPS did not make any change to her employment status while she was absent on medical leave. See Butler, 161 F.3d at 268 (declining to decide whether a reassignment to teach a different grade level constituted a "tangible employment action" because the grade assignments were ultimately reversed; therefore, "even if an employment action was contemplated, or even favored by the school district, none occurred"). However, even had she accepted the transfer, Duhé has not offered any summary judgment evidence to show that the transfer would have been objectively worse.
Furthermore, the U.S. Supreme Court has made it clear that an employer is vicariously liable for a supervisor's harassing conduct when the supervisor takes a "tangible employment action" against a subordinate, because, in such a case, the harassing supervisor, aided by his agency relation to the employer, "brings the official power of the enterprise to bear on subordinates." Id at 762, 118 S.Ct. at 2269. Duhé does not offer any evidence that Bourgeois was in any way connected with the offer to transfer her. Nevertheless, Duhé argues that USPS's offer to transfer her to another post office (without any change in employment status) precludes the USPS from asserting an affirmative defense.
Duhé's argument is contrary to the policies underlying the creation of the Fargher/Ellerth defense to vicarious liability for a supervisor's misconduct. The Supreme Court, in creating the Fargher/Ellerth defense, noted:
Although Title VII seeks to make persons whole for injuries suffered on account of unlawful employment discrimination, its primary objective, like that of any statute meant to influence primary conduct, is not to provide redress but to avoid harm. . . . It would therefore implement clear statutory policy and complement the Government's Title YII enforcement efforts to recognize the employer's affirmative obligation to prevent violations and give credit here to employers who make reasonable efforts to discharge their duty. Indeed, a theory of vicarious liability for misuse of supervisory power would be at odds with the statutory policy if it failed to provide employers with some such incentive.Faragher, 524 U.S. at 805-06, 118 S.Ct. at 2292 (internal citation and quotations omitted). In Duhé's view, an employer, attempting to prevent harassment by a supervisor by offering a complaining employee an opportunity to transfer to another office, would automatically be vicariously liable for the supervisor's conduct solely by virtue of making the offer.
"Title VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms." Ellerth, 524 U.S. at 764, 118 S.Ct. at 2270. Duhé's rule would be illogical and at odds with Title VII's design by creating a disincentive for employers to correct harassing behavior by offering complaining employees equivalent positions within an organization at other locations. See Indest, 164 F.3d at 266 (reasoning that imposing vicarious liability on an employer for a supervisor's "hosfile environment" actions, despite its swift and appropriate remedial response to a complaint, would undermine the Supreme Court's rejection of employer strict liability for the conduct of its supervisors and Title VII's goal of deterrence). Because Duhé was simply offered a lateral transfer in an attempt to remedy the harassment, and she was subject to no adverse consequences for rejecting that offer, Duhé cannot raise any genuine issue of material fact with respect to whether a "tangible employment action" or "constructive discharge" occurred.
Having concluded that "no tangible employment action" occurred, this case is properly characterized as a hosfile work environment case. See Wyatt, 297 F.3d at 410. Pursuant to the Casiano analysis, the next inquiry is whether the supervisor's actions constituted severe or pervasive sexual harassment. Id. at 409. However, even if a plaintiff establishes that the alleged harassment was severe or pervasive, an employer may avoid vicarious liability if the employer can establish that (1) it exercised reasonable care to prevent and promptly remedy the harassment; and (2) the plaintiff unreasonably failed to use the preventative and remedial opportunities provided by the employer. Id. Therefore, pretermitting whether Duhé can establish that she was subjected to severe and pervasive harassment, the USPS is entitled to summary judgment if it establishes both prongs of the Faragher/Ellerth affirmative defense. See Casiano, 213 F.3d at 283 n. 5 (noting that once a determination has been made with respect to whether a "tangible employment action" occurred, subsequent steps in the supervisor sexual harassment analysis may be assumed arguendo so as to reach a subsequent stop at which the case ultimately turns); Indest, 164 F.3d at 258 (noting that the question of whether a plaintiff was subject to a sexually hosfile working environment need not be addressed if the plaintiff cannot establish a basis for employer liability).
For purposes of summary judgment, the Court assumes, arguendo, that Duhé can establish "severe and pervasive" sexual harassment. However, it is questionable whether the record evidence in this case creates a genuine issue of material fact with respect to whether Bourgeios' harassment was "severe or pervasive." As stated by the Fifth Circuit:
Incidental, occasional or merely playful sexual utterances will rarely poison the employee's working conditions to the extent demanded for liability. Discourtesy or rudeness, "offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in `terms and conditions of employment.'" All of the sexual hosfile environment cases decided by the Supreme Court have involved patterns or allegations of extensive, longlasting, unredressed, and uninhibited sexual threats or conduct that permeated the plaintiff's' work environment. The extreme facts recited in those cases highlight the intensity of the objectionable conduct that must be present in order to constitute an actionable hosfile environment claim.
C. Faragher/Ellerth Defense
Uncontroverted evidence that an employer maintains adequate procedures for handling complaints of sexual harassment and hosfile work environment will satisfy the requirement that an employer exercises reasonable care to prevent harassing behavior. See Wyatt, 297 F.3d at 410 (affirming district court's grant of summary judgment where undisputed facts showed that the employer maintained a sexual harassment policy which it promulgated to all employees, that the policy instructed employees to report harassing incidents and advised to whom the report should be made, and the employer held regular meetings with its supervisory staff in order to train them to prevent sexual harassment); Casiano, 213 F.3d at 286 ("[E]xtant procedures for encouraging and facilitating employee complaints of sexual harassment and for thereafter dealing with them swiftly and effectively is essentially uncontroverted and eschews the existence of a genuine dispute of material fact in that regard."). With respect to an employer's response to a complaint, "prompt remedial action" must be "reasonably calculated" to end the harassment. Skidmore v. Precision Indest, 164 F.3d at 264 (noting that four instances of crude sexual comments and sexual gestures by a supervisor, although deserving censure, did not amount to severe and pervasive harassment) (internal citations omitted). Printing and Packaging, Inc., 188 F.3d 606, 615 (5th Cir. 1999) (analyzing an employer's prompt remedial action in the context of a plaintiff's prima facie case for co-worker sexual harassment). As stated by the Fifth Circuit:
What is appropriate remedial action will necessarily depend on the particular facts of the case-the severity and persistence of the harassment, and the effectiveness of any initial remedial steps. . . . [N]ot every response by an employer will be sufficient to discharge its legal duty. Rather, the employer may be liable despite having taken remedial steps if the plaintiff can establish that the employer's response was not "reasonably calculated" to halt the harassment.Id at 615-16 (quoting Waltman v. Int'l Paper Co., 875 F.2d 468, 479 (5th Cir. 1989)) (citations omitted). If the harassment actually abates as a result of the employer's response to a complaint of sexual harassment, the employer's action constitutes prompt remedial action as a matter of law. See id (citing Indest, 164 F.3d at 263); Waymire v. Harris County, 86 F.3d 424, 429 (5th Cir. 1996) (affirming judgment as a matter of law for the defendant who promptly reprimanded the harassing employee who never harassed the plaintiff again); Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309-10 (5th Cir. 1987) (reversing judgment for the plaintiff where the employer took decisive action but the plaintiff quit her job too soon for the remedy to have effect).
Duhé does not dispute that the USPS exercised reasonable care to prevent and correct sexual harassment. The undisputed evidence shows that prior to Duhé's employment, the USPS established and maintained an anti-sexual harassment program which contains a "zero-tolerance" policy with respect to both quid pro quo and hosfile environment sexual harassment. The program consists of both preventative and remedial components. USPS managers and supervisors are trained in methods to prevent and handle sexual harassment complaints and the process for referring such complaints. The anti-sexual harassment policy as well as information relating to how to report harassment appear in the form of a "stop sign" poster which, by direct order of the Postmaster General, was posted in every USPS work area, including the Destrehan post office prior to and during Duhé's employment. Additionally, a pamphlet entitled, "An Employee's Guide to Understanding Sexual Harassment," has been periodically sent by the USPS directly to employees' homes. Sexual harassment prevention has also been the subject of "service talks" given to the employees at the Destrehan post office during the workday. New employees of the USPS receive information about sexual harassment prevention and reporting when they are hired, including information on how to file a complaint, where to file a complaint, and avenues of redress for harassing behavior. Duhé acknowledges that she received that information during her orientation.
See generally, Rec. Doc. No. 22, Ex. 11, Declaration of Hedy H. Duplessis ("Duplessis Decl."), Diversity Development Specialist for the Louisiana district of the USPS attachments 1, 12, 14; Russell Decl., ¶ 3.
Id
"Duplessis Decl., ¶ 3.
Rec. Doc. No. 22, Ex. 6, EEO Investigative Affidavit of Theresa Naquin, at 5; EEO Investigative Affidavit of Vicki Naquin, at 5; Duplessis Decl., ¶ 9 attachment; Ex. 8, Declaration of Diane J. Cancienne ("Cancienne Decl."), Regular Clerk at the Destrehan post office, ¶ 10; Troxclair Decl., ¶ 19; Isaac Decl., ¶ 27; Duhé Depo., at p. 79.
Cancienne Decl., ¶ 9; Isaac Decl., ¶ 26; Troxclair Decl., ¶ 18.
Duplessis Decl., ¶ 7; Cancienne Decl., ¶ 9; Troxclair Decl., ¶ 18; Isaac Decl., ¶ 26.
Duplessis Decl., ¶ 23.
Duhé Depo., at p. 314.
The USPS's sexual harassment policy provides multiple avenues through which an employee may report sexual harassment. According to USPS policy, an employee who believes he or she has been subjected to sexual harassment may report such misconduct to any supervisor, manager, anyone in the human resources department, or through EEO and collective bargaining grievance methods such as reporting to an EEO counselor or a union shop steward. Additionally, if an employee is uncomfortable with making a report himself, he can ask a co-worker, employee assistance program counselor, or union representative to speak with a manager on his behalf. Finally, if an employee does not want to make a report in person, they may call the employee assistance program hotline toll-free and make a report.
Russell Decl., ¶ 4; Troxclair Dec!., ¶¶ 2, 18; Isaac Decl, ¶¶ 2, 26; Hamilton Dec!., ¶ 12 attachments.
Duplessis Decl., attachments 3, 8 (PS Publication 553 PS Poster 21).
As noted above, the USPS took prompt remedial action by instituting an investigation into the allegations within days of receiving Duhé's complaint, counseling Bourgeois to be more conscious of how he spoke to employees and by offering her another position at a nearby post office. Although Duhé's allegations of sexual harassment could not be substantiated, Russell directed James Taylor, the manager of operations for the area encompassing the Destrehan post office, to notify Bourgeois that Bourgeois was responsible for insuring that the Destrehan post office was free from any sexual harassment. Subsequently, Bourgeois attended additional anti-sexual harassment training. There is no question that the harassment abated once the USPS was notified of Duhé's complaint. Although the harassment necessarily stopped because Duhé did not return to work at the Destrehan post office, the USPS's response to Duhé's complaint was nevertheless prompt and remedial action as a matter of law. Accordingly, Duhé has not raised a genuine issue of material fact with respect to the first prong of the Fargher/Ellerth defense.
Russell Decl., ¶ 15.
Duhé disputes whether she unreasonably failed to take advantage of the USPS's preventative and remedial opportunities. However, the Supreme Court has stated 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, 524 U.S. at 807, 118 S.Ct. at 2293. The uncontroverted summary judgment evidence shows that Duhé did not lodge any formal complaints during her employment at the Destrehan post office prior to May 7, 2002. After the two alleged incidents of sexual harassment, Duhé did not report the harassment to anyone with authority to address the harassment until approximately one year after the first incident and nine months after the second incident.
Although Duhé testified that she discussed the sexual harassment with a co-worker, Teresa Naquin, there is no evidence to suggest that Duhé's co-worker had any authority to address her complaint or that Duhé requested that Naquin assist her in filing a complaint.
The Fifth Circuit has not articulated a bright-line rule with respect to how long a plaintiff may reasonably wait to report sexual harassment. Although circuit precedent suggests that a three month delay in reporting supervisor sexual harassment may be not be excessive, Watts, 170 F.3d at 510-11, the Fifth Circuit has noted that an eight or nine month delay is "more problematic." Mota, 216 F.3d at 526; see also Wyatt, 297 F.3d at 412-13 (affirming summary judgment where plaintiff waited five months to report alleged sexual harassment); Casiano, 213 F.3d at 287 (holding that plaintiff's failure to report fifteen sexual propositions by a supervisor for "several months" was unreasonable); Taylor v. Nickles Dimes, Inc., 2002 WL 1827657, at *5 (N.D.Tex. 2002) (holding that plaintiff's failure to report sexual harassment for five months was unreasonable).
The undisputed summary judgment evidence shows that Duhé knew how to file grievances. Shortly after beginning her employment with the USPS, Duhé contacted the employee's assistance program about work-related problems she was experiencing with Bourgeois, but she failed to disclose any details of the problems she was experiencing and she failed to follow up with the filing of a complaint. Additionally, Duhé testified that the union advised her to bring any problems she was experiencing to the attention of the shop steward, Kathleen Isaac, but Duhé never informed Isaac of any sexual harassment. Moreover, Duhé testified that she had a conversation with the union president, Gwen Troxclair, during which she advised Troxclair that she was very upset with "Bourgeois' temperament" toward her. However, she never informed Troxclair about any sexual harassment. Given Duhé's knowledge of the sexual harassment policy and the fact that on three occasions Duhé initiated contact with individuals who have the authority and responsibility to address complaints of sexual harassment, her failure to disclose the alleged sexual harassment on at least one of those occasions was unreasonable. See Casiano, 213 F.3d at 286 (holding that plaintiff unreasonably failed to avail himself of the employer's procedures where his first complaint and "off the record" discussion with a union steward "were devoid of either direct or implied reports of sexual harassment); Scriviner v. Socorro Indep. Sch. Dist., 169 F.3d 969, 971 (5th Cir. 1999) (holding that plaintiff acted unreasonably because she failed to inform employer of sexual harassment when given the express opportunity).
Duhé Depo., at 106.
Dep.Duhé., at p. 102.
Troxclair Decl., ¶ 12.
Duhé Depo., at p. 100.
Duhé suggests that her failure to report the harassing behavior is justified because Bourgeois was her supervisor. Mien an employer's sexual harassment complaint procedure provides multiple avenues of relief, an employee cannot justify a failure to report the sexual harassment simply because the harasser is her supervisor. See Wyatt, 297 F.3d at 413 ("Hunt's policy made clear that several persons in addition to the employee's immediate and next higher supervisors were available to receive and pursue sexual harassment claims. When Gorum's harassment began, Wyatt's reasonable (not to mention obvious) course of action would have been to report Thompson's [plaintiff's supervisor] and Gorum's [Thompson's supervisor] conduct to one of those individuals with authority higher than Gorum's."). Moreover, a plaintiff cannot justify a failure to report sexual harassment even when the supervisor has admonished the employee not to do so. See id. ("Wyatt's reliance on Gorum's unofficial and informal admonitions not to "go over his head" do not excuse her failure to disclose harassment to a higher authority at Hunt. Her failure to act was not reasonable, especially when Gorum was one of the persons who was creating the actionable hosfile environment."); Hockman v. Westward Communications Inc., 282 F. Supp.2d 512, 522 (E.D.Tex. 2003)("Whether [the plaintiff] subjectively felt she could not "go over [the supervisor's] head" is immaterial to the fact that the policy she acknowledged directed to her to do just that.").
Finally, Duhé argues that because she eventually filed an EEO complaint, she reasonably took advantage of the USPS's corrective and preventative opportunities. The Court rejects this argument because it misconceives the standard upon which this prong of the defense is predicated. The Supreme Court crafted the second prong of the Faragher/Ellerth defense by reference to the avoidable consequences doctrine and the duty of a plaintiff to mitigate damages:
The requirement to show that the employee has failed in a coordinate duty to avoid or mitigate harm reflects an equally obvious policy imported from the general theory of damages, that a victim has a duty "to use such means as are reasonable under the circumstances to avoid or minimize the damages" that result from violations of the statute. Ford Motor Co. v. EEOC, 458 U.S. 219, 231, n. 15, 102 S.Ct. 3057, 3065, n. 15, 73 L.Ed.2d 721 (1982) (quoting C. McCormick, Law of Damages 127 (1935) (internal quotation marks omitted)). An employer may, for example, have provided a proven, effective mechanism for reporting and resolving complaints of sexual harassment, available to the employee without undue risk or expense. If the plaintiff unreasonably failed to avail herself of the employer's preventive or remedial apparatus, she should not recover damages that could have been avoided if she had done so. If 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.Faragher, 524 U.S. at 806-07, 118 S.Ct. at 2292. The Fifth Circuit has elaborated on this rationale and explained why an employer should not be vicariously liable if an employee waits to complain about sexual harassment:
[W]hen a plaintiff promptly complains about a supervisor's inappropriate sexual actions, she can thwart the creation of a hosfile work environment. To the extent redress is sought, is justified, and is adequately provided by the company, the complained-of incidents will not likely have become severe or pervasive enough to create an actionable Title VII claim. This result effectuates the purpose of Title VII, which cannot guarantee civility in the American workplace but, at its best, inspires prophylactic measures to deter unwanted sexual harassment. By promptly invoking a company's grievance procedure, a plaintiff has received the benefit Title VII was meant to confer. In such cases, an actionable hosfile environment claim will rarely if ever have matured.Indest, 164 F.3d at 265. In light of that reasoning, the Fifth Circuit stated that if an employer has an effective grievance mechanism, an employee "should not wait as long as it usually takes for a sexually hosfile working environment to develop. . . . If the plaintiff complains promptly, the then-incidental misbehavior can be stymied before it erupts into a hosfile environment, and no actionable
Title VII violation will have occurred." Id.
In light of the foregoing principles, it is not reasonable for Duhé to have waited until after the May 3, 2002, altercation with Bourgeois transpired to report the sexual harassment which allegedly occurred nine months earlier. Although the burden on victims of sexual harassment to report their claim or risk losing a right to recover for the harassment may seem onerous, the Court is cognizant that the relevant inquiry with respect to the Faragher/Ellerth defense is whether the USPS should be held liable for Bourgeois' conduct. At the very least, if a jury believed Duhé's account of her employment history, a reasonable juror might find that Bourgeois' conduct was boorish, crude, uncivil and, perhaps, severe or pervasive. However, even if Duhé could establish that Bourgeois' conduct was actionable pursuant to Title VII, the USPS cannot be held liable for his conduct. Because the uncontroverted summary judgment evidence demonstrates that USPS procedures are more than adequate and that the sexual harassment policy provided Duhé with multiple avenues of relief which she unreasonably failed to pursue, the USPS is entitled to summary judgment on both prongs of the Faragher/Ellerth affirmative defense.
D. State Law Claims for Assault, Battery and Intentional Infliction of Emotional Distress
In addition to her Title VII claim, Duhé alleged state law claims for assault, battery and intentional infliction of emotional distress. The USPS moves for summary judgment and dismissal of those claims arguing that Duhé's state law claims are preempted by Title VII, the Postal Reorganization Act, the Civil Service Reform Act, and the doctrine of sovereign immunity.
It is well-settled that "Title VII provides the exclusive remedy for employment discrimination claims raised by federal employees." Jackson v. Widnall, 99 F.3d 710, 715 (5th Cir. 1996) (citing Brown v. General Servs. Admin., 425 U.S. 820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976)). "Equally well-settled is the principle that damage claims in Title VII cases sounding in tort are barred as a matter of law." Hampton v. I.R.S., 913 F.2d 180, 183 (5th Cir. 1990) (holding that federal employee's intentional infliction of emotional distress claim was barred where that claim was based on discriminatory treatment in federal employment).
Duhé's allegations of intentional infliction of emotional distress and assault and battery arise out of the same facts as her hosfile work environment claim. The complaint specifically alleges that all of the acts complained of, including the May 3, 2002, assault and battery, were part of the pattern of discrimination based upon her gender. Therefore, because Duhé's state law tort claims clearly arise out of her claim of discrimination, those claims are preempted by Title VII and cannot afford an independent ground for relief. Jackson, 99 F.3d at 716 (holding that federal employee's constitutional claims were preempted because the allegations of constitutional violations arise out of the same facts as his employment discrimination claims); Rowe v. Sullivan, 967 F.2d 186, 189 (5th "Cir. 1992) (holding that Title VII preempted § 1985 claim where the same set of facts formed the basis for both claims); Henderson v. Perkins, 1994 WL 25530, at *1, 5 (E.D.La. Jan. 24, 1994) (holding that a tort claim arising from an incident where defendants attempted to run over plaintiff in a pickup truck were preempted by Title VII because plaintiff had alleged that the incident was racially motivated).
Comp., ¶ VIII. The complaint reads,
On May 3, 2002, a pattern of repeated, severe and pervasive unwelcomed [sic] sexual harassment by the aforesaid Johnny Bourgeois, involving verbal and physical conduct of a sexual nature altering the term [sic] and conditions of plaintiff's employment and creating a hosfile and abusive working environment culminated when said Postmaster intentionally and forcefully walked into, pushed, and chest and shoulder butted plaintiff while verbally abusing plaintiff and threatening to fire her.
Because the Court finds that Duhé's claims are preempted by Title VII, the Court does not reach the USPS's remaining arguments.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of defendant, the United States Postal Service, for summary judgment is GRANTED and plaintiff's claims are dismissed with prejudice,