Opinion
CIVIL ACTION NO. 3:00-CV-0560-G
June 25, 2001
MEMORANDUM ORDER
Before the court is the motion of the defendant city of Farmers Branch, Texas ("Farmers Branch" or "the city") for summary judgment on all of the claims asserted by the plaintiff Sharon L. Ingram ("Ingram"). For the reasons stated below, the city's motion is granted.
I. BACKGROUND
Ingram was hired as a dispatcher by the Farmers Branch fire department in April 1991. Affidavit of Plaintiff Sharon Ingram ("Ingram Affidavit"), Exhibit A to Plaintiff's Appendix in Opposition to Defendant's Motion for Final Summary Judgment as to All Claims of Sharon Ingram ("Ingram Appendix") at 4. Ingram is still employed as a dispatcher by Farmers Branch, although she is currently supervised by the police department. Id. Ingram alleges that she was sexually harassed by a coworker, Larry Stover ("Stover"), on average about once a week for seven years. Ingram contends that during her encounters with Stover, he made comments about her appearance and told her how good she smelled, hugged her tightly, squeezing her breasts to his chest, and kissed her on her face and neck. Id. at 5. Ingram avers that Stover always timed his visits so that no one else was present and that she did not report the harassment for seven years because she believed that the fire department had an anti-female bias. Id. at 5-6. Ingram finally reported Stover's behavior to her immediate supervisor, Ken Muzalewski ("Muzalewski"), on May 10, 1999. Id. at 6. According to Ingram, Muzalewski later denied — in retaliation for Ingram's filing a charge of discrimination — a request for a substitution of work between Ingram and a co-worker. Original Complaint ("Complaint") ¶ 16.
Ingram filed this case on March 14, 2000. Her complaint alleges the following causes of action: (1) discrimination on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; (2) retaliation, in violation of Title VII; (2) intentional infliction of emotional distress, in violation of the common law of Texas; (3) a violation of 42 U.S.C § 1981 ("Section 1981"). Complaint at 1-2, 5-7.
II. ANALYSIS A. Evidentiary Burdens on Motion for Summary Judgment
Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The movant makes such a showing by informing the court of the basis of its motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). The pleadings, depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material fact exists. FED. R. CIV. P. 56(c).Once the movant makes this showing, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24. To carry this burden, the "opponent must do more than simply show . . . some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovant must show that the evidence is sufficient to support a resolution of the factual issue in her favor. Anderson, 477 U.S. at 249.
While all of the evidence must be viewed in a light most favorable to the motion's opponent, Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress Company, 398 U.S. 144, 158-59 (1970)), neither conclusory allegations nor unsubstantiated assertions will satisfy the non-movant's summary judgment burden. Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825 (1992). Summary judgment in favor of the movant is proper if, after adequate time for discovery, the motion's opponent fails to establish the existence of an element essential to her case and as to which she will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.
B. Title VII Claims
Title VII prohibits discrimination on the basis of race, color, religion, sex, or national origin in federal and private employment. Fitzgerald v. Secretary, United States Department of Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997). Where there is no direct evidence of sex discrimination, the court must apply a three-step analysis utilized by the Supreme Court. Hanchey v. Energas Company, 925 F.2d 96, 97 (5th Cir. 1990). See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-12 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-58 (1981); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05 (1973).
Direct evidence, in the employment discrimination context, is "evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption." Mooney v. Aramco Services Co., 54 F.3d 1207, 1217 (5th Cir. 1995) (quoting Brown v. East Mississippi Electric Power Association, 989 F.2d 858, 861 (5th Cir. 1993)).
In the first step, the plaintiff must establish a prima facie case of discrimination. Ports v. First National Bank of New Albany, MS, 34 F.3d 325, 328 (5th Cir. 1994). If the plaintiff presents a prima facie case, a presumption of discrimination arises. Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 957 (5th Cir. 1993). At the second step, the defendant can rebut this presumption of discrimination by offering a legitimate, nondiscriminatory reason for the employment decision of which the plaintiff complains. Id. If the defendant satisfies this burden of production, the plaintiffs prima facie case dissolves, id., and the case proceeds to the third step of the analysis. At this third stage, the burden is on the plaintiff to prove that the reasons offered by the defendant are pretexts for sex discrimination. Id.
When the analysis has proceeded to this third step, the plaintiff — to avoid summary judgment — must produce evidence from which a reasonable factfinder could find "that the employer's reasons were not the true reason for the employment decision and that unlawful discrimination was." Id. (emphasis in original). Accord Moore v. Eli Lilly and Company, 802 F. Supp. 1468, 1471-74 (N.D. Tex. 1992), aff'd, 990 F.2d 812, 816 n. 24 (5th Cir.), cert. denied, 510 U.S. 976 (1993); Waggoner v. City of Garland, 987 F.2d 1160, 1166 (5th Cir. 1993). See St. Mary's, 509 U.S. at 507-08.
1. Sexual Harassment
The Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate 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). A plaintiff may establish a claim for unlawful sexual harassment by proving either that an employer required sexual consideration as a quid pro quo for job benefits, Jones v. Flagship International, 793 F.2d 714, 721-22 (5th Cir. 1986), cert. denied, 479 U.S. 1065 (1987), or that discrimination based on sex created a hostile or abusive work environment. Id. at 719-21.
2. Hostile Work Environment
A plaintiff may establish a violation of Title VII by demonstrating that discrimination based on sex has created a hostile or abusive work environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 22-23 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57, 66-67 (1986). To set forth a prima facie claim of actionable harassment in the workplace, Ingram must produce evidence that (1) she belongs to a protected group; (2) she experienced unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a "term, condition or privilege" of employment; and (5) the city knew or should have known of the harassment and failed to take prompt remedial action. Shepherd v. Comptroller of Public Accounts for the State of Texas, 168 F.3d 871, 873 (5th Cir.) (citing Jones, 793 F.2d at 719-20), cert. denied, 528 U.S. 963 (1999). Harassment by a co-worker may be imputed to the employer based upon a negligence theory. Sharp v. City of Houston, 164 F.3d 923, 928-29 (5th Cir. 1999). Thus, "[a]n employer is negligent with respect to sexual harassment if it knew or should have known about the conduct but failed to stop it." Id. at 929.
Farmers Branch does not contest that Ingram belongs to a protected class and has assumed for the purposes of its motion that Ingram was subject to unwelcome sexual harassment based on sex. See Defendant's Brief in Support of Motion for Final Summary Judgment as to Sharon Ingram's Claims ("Summary Judgment Brief") at 13-15. The city contends that it is entitled to summary judgment because Ingram cannot establish that the harassment affected a "term, condition or privilege" of employment or that the city knew or should have known of the harassment and failed to take prompt remedial action. Id. at 7-12. In order for harassment to affect a "term, condition or privilege of employment," it must be "severe or pervasive." Butler v. Ysleta Independent School District, 161 F.3d 263, 269 (5th Cir. 1998). The conduct at issue must be both objectively and subjectively offensive and must, in fact, have been offensive to the plaintiff. See id. Factors to be considered in determining whether conduct was sufficiently severe or pervasive to be actionable include its frequency, its severity, whether the conduct was physically threatening or humiliating or merely offensive, and whether it unreasonably interfered with the plaintiff's work performance. See id. The factfinder must consider "all the circumstances" in determining whether an environment meets this standard. Id. (citing Harris, 510 U.S. at 23).
Ingram contends that in addition to making inappropriate comments, Stover made "unsolicited physical contact" with her by squeezing her and pressing his body against her breasts and by kissing her face and neck. Plaintiff Sharon Ingram's Brief in Opposition to Defendant City of Farmers Branch's Motion for Final Summary Judgment as to All Claims of Plaintiff Sharon Ingram ("Response Brief") at 4. Farmers Branch does not challenge Ingram's description of Stover's actions but argues that Ingram's exposure to Stover was "de minimis" and not sexual harassment as a matter of law because the encounters lasted for no more than five minutes and occurred only once a week. Summary Judgment Brief at 14. The court disagrees. The evidence presented by Ingram regarding physical and sexual advances made by Stover is sufficient to raise a factual issue regarding the existence of a hostile environment at the fire station. See Waltman v. International Paper Company, 875 F.2d 468, 477 (5th Cir. 1989) (female employee who introduced evidence that other employees touched her in a sexual manner and directed sexual comments toward her raised a fact issue regarding the existence of a hostile environment); cf. DeAngelis v. El Paso Municipal Police Officers Association, 51 F.3d 591, 596 (5th Cir.) (female police officer against whom no physical or sexual advances were made did not raise a fact issue as to the existence of a hostile work environment), cert. denied, 516 U.S. 974 (1995).
Farmers Branch also contends that the fact that Ingram failed to report the alleged harassment to Fire Chief King during his weekly visit to her office demonstrates her lack of subjective perception of Stover's conduct as abusive. Summary Judgment Brief at 15. A plaintiff who genuinely feels sexually harassed may have a number of reasons for failing to report such harassment. See, e.g., Sharp v. City of Houston, 164 F.3d 923, 931 (5th Cir. 1999) (female mounted police officer "presented abundant evidence that to lodge [a complaint of sexual harassment] against a fellow officer was effectively forbidden by the code of silence"). Even viewing Ingram's failure to report Stover's conduct to Fire Chief King as evidence of a lack of subjective perception of the conduct as abusive, the court concludes that, in light of all the circumstances, Ingram has raised a fact issue regarding the existence of a hostile environment.
Even if Ingram has raised a fact issue regarding the existence of a hostile environment, Farmers Branch contends that she has failed to set forth any evidence that the city knew or should have known of Stover's conduct and failed to take prompt remedial action. Summary Judgment Brief at 7-12. In support of her contention that the city knew or should have known of the harassment and failed to remedy it promptly, Ingram states:
Although it could be speculated that Ms. Ingram knew she could inform her supervisor of the harassment which was taking place, she was not aware of the grievance procedure to follow when sexually harassed nor had she ever received any training on the policies and procedures of the City. These facts, coupled with the sexist attitudes pervasive within the fire department and Ms. Ingram's belief that she would be not believed and possibly fired for complaining concerning the harassment, make it clear that the element of whether the City knew or should have known of the harassment in question and failed to take prompt, remedial action is a genuine issue of fact that remains.
Response Brief at 6. In summary, Ingram's evidence that the city knew, or should have known, of the alleged harassment but failed to remedy it promptly consists of her lack of knowledge of specific grievance procedures, her subjective belief that she would not be believed, and her general and unsupported accusation of sexism within the department. This evidence is insufficient to carry Ingram's summary judgment burden.
Farmers Branch may be liable for sexual harassment of which it had actual or constructive knowledge. See Sharp, 164 F.3d at 929-30. An employer has actual knowledge when "someone with authority to address the problem is notified." Id. (internal quotations omitted). Ingram does not contend that Farmers Branch had actual knowledge of Stover's conduct. Even though Farmers Branch lacked actual knowledge, it may still be liable "if through the exercise of reasonable care it should have known what was going on but failed to address it." Id. at 930. "If the harassment complained of is so open and pervasive that the employer should have known of it, had it but opened its corporate eyes, it is unreasonable not to have done so, and there is constructive knowledge." Id. Even when harassment is "open and pervasive" as between the harasser and the victim, someone with authority over the victim must have constructive knowledge of the harassment in order to impute such knowledge to the employer. See id.
Ingram has adduced no evidence that anyone with remedial power ever had constructive knowledge of Stover's conduct. Stover's conduct was in no way "open and pervasive." Ingram herself states that Stover's conduct occurred at 5:30 a.m., a time when no one other than Ingram was present in the fire station. Ingram's Appendix at 5. Ingram concedes that she never reported Stover's conduct to anybody within the fire department. Id. at 6. Ingram claims that she never reported the conduct because of an "anti-female attitude" within the department. Id. Ingram has provided the court with no evidence of a departmental bias against women other than her subjective belief that one existed. Ingram's Appendix at 6. Furthermore, she has provided no evidence of a negligent failure to supervise Stover from which the court could conclude that, through the exercise of reasonable care, Farmers Branch should have known about the harassment but failed to remedy it. Cf. Sharp, 164 F.3d at 931-32 (court imputed constructive knowledge where there was negligent supervision, the harasser was well-known to be a "loose cannon" with a history of harassing women, and a strict chain of command existed which reinforced a "code of silence" among officers). In sum, Ingram's subjective belief that the department had an anti-female bias and that she would not be believed is insufficient to raise a fact issue regarding the city's knowledge — either actual or constructive — of Stover's conduct.
Ingram also claims that Farmers Branch did not timely remedy the alleged harassment because the investigation of her allegations was still in progress five weeks after she reported it and because she did not receive notice of the action taken against Stover until eleven weeks after she reported it. Response Brief at 6. It is undisputed that once Ingram reported her allegations, she was never again alone with Stover and had no further "inappropriate encounters" with him. Oral Deposition of Sharon Lynne Ingram, Exhibit 1 to Defendant's Appendix in Support of Motion for Final Summary Judgment as to All Claims of Plaintiff Sharon Ingram ("Farmers Branch's Appendix"), at 17-18. Whether or not Farmers Branch took eleven weeks to investigate Ingram's complaint and to take appropriate disciplinary action against Stover, it is inarguable that the city — after it was notified — stopped the harassment immediately. Once Ingram made her complaint, it is difficult to see how Farmers Branch's actions could have been any more prompt or remedial.
3. Retaliation
Section 2000e-3(a) of Title 42 of the United States Code prohibits an employer from "discriminat[ing] against any of his employees . . . because [the employee] has . . . opposed any practice made an unlawful employment practice by this subchapter." This court applies the three-step analysis utilized by the Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), to analyze McDaniels's claims of discriminatory retaliation. Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1121-22 (5th Cir. 1998); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). If Ingram establishes a prima facie case of retaliation, a presumption of discrimination arises, and the city must articulate a legitimate, non-discriminatory reason for the employment action of which Ingram complains. See Sherrod, 132 F.3d at 1122; Long, 88 F.3d at 304-05; Grizzle v. Travelers Health Network Inc., 14 F.3d 261, 267 (5th Cir. 1994). If Farmers Branch satisfies this burden of production, Ingram must prove the ultimate issue of retaliation by showing that the reason offered is a pretext for prohibited discrimination. Sherrod, 132 F.3d at 1122; Long, 88 F.3d at 305; Grizzle, 14 F.3d at 267.To establish a prima facie case of retaliation, Ingram must show that (1) she engaged in an activity protected under Title VII; (2) an adverse employment action occurred; and (3) there was a causal connection between the protected activity and the adverse employment decision. Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992); Collins v. Baptist Memorial Geriatric Center, 937 F.2d 190, 193 (5th Cir. 1991), cert. denied, 502 U.S. 1072 (1992). The causal connection required is cause-in-fact or "but for" causation. Jack v. Texaco Research Center, 743 F.2d 1129, 1131 (5th Cir. 1984). Farmers Branch admits that Ingram made protected complaints. Summary Judgment Brief at 15-16. However, the city asserts that the act of retaliation alleged by Ingram is not an "adverse employment action." Adverse employment actions are "ultimate employment decisions" such as discharges, demotions, refusals to hire, refusals to promote, denial of grants of leave, compensation, and reprimands. Pierce v. Texas Department of Criminal Justice, Institutional Division, 37 F.3d 1146, 1149 (5th Cir. 1994), cert. denied, 514 U.S. 1107 (1995); Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). Ingram contends that Farmers Branch retaliated against her by denying a substitution of work between Ingram and a co-worker, in violation of departmental policies. Complaint at 4. The denial of use of a substitute to work Ingram's shift does not fall within a recognized category of adverse employment action. The denial of the use of a work substitute is simply not the type of ultimate employment decision that Title VII was intended to address. Because Ingram cannot establish that Farmers Branch took an adverse employment action against her, she has failed to establish a prima facie case of retaliation.
In responding to the summary judgment motion, Ingram addressed only Farmers Branch's arguments regarding her sexual harassment claim. Ingram's response and brief are entirely devoid of any mention of her retaliation, intentional infliction of emotional distress, and Section 1981 claims.
The court notes that there is some question as to whether Ingram was actually denied a substitution or whether she simply objected to disclosing how much she planned to pay the substitute to take her shift. Summary Judgment Brief at 16-17. This distinction is immaterial to the court's analysis and thus the court has assumed for purposes of this opinion that Ingram was denied permission to use a substitute, as alleged in the complaint.
C. Intentional Infliction of Emotional Distress
Farmers Branch argues that it is entitled to sovereign immunity on Ingram's claim for intentional infliction of emotional distress. Motion at 6. The tort liability of the state of Texas and its political subdivisions, such as the city of Farmers Branch, is strictly limited. See Federal Sign v. Texas Southern University, 951 S.W.2d 401, 405 (Tex. 1997) (discussing the doctrine of sovereign immunity under Texas law); City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994) (explaining that a municipality is a political subdivision of the state and thus is not liable in tort unless its common law immunity is waived by the Texas Tort Claims Act); see also Knowles v. City of Granbury, 953 S.W.2d 19, 23 (Tex.App.—Ft. Worth 1997, writ denied) ("Generally, municipalities and other government entities have governmental or sovereign immunity from private litigation."). Ingram's intentional infliction of emotional distress claim is indeed governed by the Texas Tort Claims Act ("TTCA"), TEX. CIV. PRAC. REM. CODE ANN. § 101.001 et seq. (Vernon 1997). § 101.057 of the TTCA provides, "[t]his chapter does not apply to a claim . . . arising out of assault, battery, false imprisonment, or any other intentional tort . . ." (emphasis added). Thus, the limited waiver of sovereign immunity in the TTCA does not, by virtue of § 101.057, extend to intentional torts such as the intentional infliction of emotional distress. Absent that waiver of sovereign immunity, Farmers Branch cannot be liable on this claim. See Aston v. City of Cleburne, 2000 WL 217876 (N.D. Tex. February 22, 2000) at *3; see also Kesler v. King, 29 F. Supp.2d 356, 375-76 (S.D. Tex. 1998). Accordingly, Farmers Branch's motion for summary judgment on Ingram's intentional infliction of emotional distress claim is granted.
D. Section 1981
Farmers Branch asks the court to grant summary judgment on Ingram's Section 1981 claim. It has long been recognized that gender discrimination does not fall within the scope of § 1981. Runyon v. McCrary, 427 U.S. 160, 167 (1976). See also Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 815 (5th Cir.), cert. denied, 459 U.S. 1038 (1982); Guadarrama v. Vance, 1998 WL 59026, *5 (N.D. Tex. January 23, 1998). Accordingly, Farmer's Branch's motion for summary judgment on Ingram's claim under Section 1981 for sexual harassment is granted.
III. CONCLUSION
For at least one element of each of her causes of action, Ingram has not produced evidence on which a reasonable jury could find in her favor. She has not set forth a prima facie case of workplace sexual harassment because she cannot demonstrate that Farmer's Branch knew (or should have known) of the harassment but failed to take prompt remedial action. With respect to her Title VII retaliation claim, Ingram has adduced no evidence that she was subject to an adverse employment action. Farmers Branch is entitled to sovereign immunity from Ingram's intentional infliction of emotional distress claim. Finally, Section 1981 does not provide a remedy for sexual discrimination or harassment. Accordingly, Farmers Branch's motion for summary judgment on all of Ingram's claims is GRANTED. Judgment will be entered that Ingram take nothing on her claims against the city.
SO ORDERED.