Summary
In Jackson, the court held that a former university employee's claim under La.R.S. 23:697 was barred because her employment by Xavier, a private university, did not fall within the scope of the Louisiana whistleblower statute.
Summary of this case from Guy v. Boys Girls Club of Southeast Louisiana, Inc.Opinion
Civil Action No. 01-1659, Section "C" (1)
July 5, 2002
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment of Defendant, Xavier University of Louisiana ("Xavier"). After considering the arguments of the parties, the record and the applicable law, IT IS ORDERED that the Motion is hereby partially GRANTED and partially DENTED. BACKGROUND
The Court considers the discovery taken to date to be adequate to rule on the motion, despite the continuance of the trial date.
It is undisputed that beginning September 26, 1997, Jackson began working at Xavier as an Administrative Assistant to Dr. Richard Corriveau ("Corriveau") in the Clinical Trials Unit of Xavier's College of Pharmacy. Jackson was terminated from Xavier on June 23, 2000. At the time, she was employed as a Clinical Trials Recruiter in the Clinical Trials Unit of Xavier's College of Pharmacy at an annual salary of $32,240.00.
Xavier has set forth unrebutted evidence that it is a non-profit, private, educational institution. See Rec. Doc. 22, Ex. 7 at ¶ 18.
According to Jackson's deposition, from approximately February 1999 to April 2000, Corriveau sexually harassed her. See Rec. Doc. 22, Ex. 3 at 145, 203-04, 206. Corriveau's alleged activity included "playing with his genitals" in front of her, discussing "how to stimulate the woman," and touching Jackson's back, the last of these listed actions making her "uncomfortable." Id. at 138-39, 193, 195. Such incidents occurred twice a month. See id. at 206. Jackson also testified that Corriveau placed pornography on her computer. See id. at 155.
Jackson claims she informed a Xavier professor of the harassment in the spring of 1999. See id. at 143, 146, 151-52. Jackson also alleges that around this time, she told Dr. Robert L. Thomas ("Thomas"), who at the time was the Interim Dean of Xavier's College of Pharmacy, of the harassment. See id. at 187-96. Additionally, Jackson testified, Thomas told her was "aware of the problem" and that "Human Resources would be taking care of it." Id. at 196.
Xavier has provided evidence that it provided all employees with copies of its sexual harassment policy and that the harassment policy is posted on bulletin boards in the College of Pharmacy. See Rec. Doc. 22, Ex. 7 at ¶ 5. Jackson testified, however, that she did not receive a copy of the policy. See id., Ex. 3 at 144.
At some point between February and April 2000, Jackson testified, Larry Calvin ("Calvin"), Xavier's Human Resources Director at the time, contacted her. See id. at 202-03. Jackson also testified that her attorney at the time contacted Xavier in April 2000, after which Jackson spoke to Calvin. See id. at 207. Additionally, Jackson testified that she did not speak to Calvin until April 2000 because she "didn't feel comfortable" as she "had applied for a position in his department." Id. at 208.
Xavier investigated the matter in early 2000, according to Calvin's affidavit. Corriveau's alleged harassment of Jackson also ceased in April 2000. See Rec. Doc. 22, Ex. 3 at 206. It is unrebutted that Corriveau was given the option of being terminated or resigning. Jackson also has not disputed that Corriveau resigned May 20, 2000. Shortly after his resignation, Xavier claims-and Jackson has provided no evidence to the contrary-Corriveau died.
In May 2000, just prior to Corriveau's resignation, further events leading to Jackson's termination unfolded. Jackson claims that she was a member of the United States Naval Reserve ("Naval Reserve"), which required her to participate in certain drill and training programs. See Rec. Doc. 22, Ex. 3 at 250. According to a letter purportedly signed by Thomas, she had military obligations scheduled from May 18 through May 21, 2000, and July 24 through August 4, 2000. The letter states that these requirements conflicted with training sessions required by Xavier. As such, Jackson testified, she asked Corriveau for a letter to the Naval Reserve to excuse her from her conflicting military duties. See id. Jackson also testified that Corriveau provided her with the letter several days later in a sealed envelope. See id. at 255-56. The letter, mentioned above, contains a signature purported to be that of Thomas. Jackson testified that she provided it to a "Chief Warner," apparently a Navy official. See id. at 257. Thomas then was purportedly faxed a copy of the letter, apparently by a Navy official. Thomas subsequently wrote Jackson a memorandum claiming that he denied generating the letter. In the memorandum, Thomas also informed Jackson, "What your action amounts to is fraudulent representation of the Dean's Office. . . . "The memorandum additionally states that Thomas was "compelled to refer [the matter] to the Office of Human Resources for resolution."
Calvin and Thomas also claim that Jackson acknowledged to them that she had "generated the forged letter. . . . "According to Calvin's affidavit, On June 23, 2000, Jackson's position at Xavier was terminated "as a result of her submitting an unauthorized letter to . . . the United States Naval Reserve under the official letterhead and signature of the then Interim Dean of the College of Pharmacy. This was the sole basis of her termination." Jackson, on the other hand, denied in her deposition that she had acknowledged generating the letter, see Rec. Doc. 22, Ex. 3 at 269-70, instead testifying that she did not see the letter after the letter was faxed to Thomas and prior to meeting with Thomas, see id. at 262-64.
Jackson filed a complaint with the Equal Opportunity Commission on September 22, 2000, claiming, inter alia, that Xavier had subjected her to a hostile work environment and had terminated her for reporting Corriveau's alleged harassment. On May 30, 2001, Jackson filed suit in this Court, claiming that those actions violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) and 2000e-3(a), respectively, and that Xavier acted with malice or reckless indifference in terminating her, in violation of 42 U.S.C. § 1981a(b)(1), entitling her to punitive damages. Jackson also advances a claim for her termination by Xavier pursuant to La. R.S. § 23:967(A)(3).
STANDARD OF REVIEW
A district court can grant a motion for summary judgment only when 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.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find "[a] factual dispute . . . [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)).
"If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24 and Fed.R.Civ.P. 56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248. "If the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50 (citations omitted).
The Court acknowledges that Jackson's deposition testimony at times may be perceived as inconsistent. Nevertheless, the Court's role on summary judgment is not to make credibility determinations. See Country Floors, Inc. v. Gepner, 930 F.2d 1056, 1061 (3d Cir. 1991). Indeed, as noted above, it is to "review the facts drawing all inferences most favorable to the party opposing the motion." Reid, 784 F.2d at 578. Accordingly, in deciding whether Jackson has satisfied her summary judgment burden, the Court need not weigh those portions of the deposition supporting her positions against those that seem to contradict her contentions.
Xavier offers three defenses to Jackson's hostile work environment claim: (1) the cause of action is time-barred; (2) the alleged conduct is insufficient to support a hostile work environment claim; and (3) the affirmative defense that the employer (a) exercised reasonable care to prevent and correct promptly any sexual harassment and (b) Jackson unreasonably failed to take advantage of any preventative or corrective opportunities provided by Xavier or to avoid harm otherwise.
First, Xavier argues, Jackson's hostile work environment claim is time-barred. Jackson filed charges in this case with the EEOC on September 22, 2000. Generally, a plaintiff must filed a discrimination charge with the EEOC within 180 days following the alleged unlawful practice. See 42 U.S.C. § 2000e-5(e)(1); Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir. 1988). In so-called "deferral states" such as Louisiana, however, the 180-day window is extended to 300 days. See Celestine v. Petroleos de Venez. SA, 266 F.3d 343, 351 (5th Cir. 2001); Clark, 854 F.2d at 765. Thus, Xavier contends, all claims prior to November 26, 1999 (300 days prior to the filing of the EEOC charge), are time-barred. Xavier asserts that none of the complained-of activity took place after this date.
Drawing all inferences most favorable to Jackson, the Court disagrees. As Jackson testified, the alleged harassing behavior began in approximately February 1999. This conduct, which she found offensive, lasted through April 2000. As to Corriveau's alleged harassment prior to November 26, 1999, Jackson is not time-barred from basing her hostile work environment claim on this activity by virtue of the "continuing violation doctrine." See Messer v. Meno, 130 F.3d 130, 134-35 (5th Cir. 1997), cert denied, Texas Educ. Agency v. Messer, 525 U.S. 1067, 119 S.Ct. 794; 142 L.Ed.2d 657 (1999). "The continuing violation theory relieves a [Title VII] plaintiff of establishing that all of the complained-of conduct occurred within the actionable period if the plaintiff can show a series of related acts, one or more of which falls within the limitation period. . . . The focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights." Id. at 134-35 (internal quotations and citations omitted).
Second, Xavier claims, Corriveau's alleged conduct was insufficient to support a hostile work environment claim. To support such a claim, the alleged conduct must be severe and pervasive. See Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). The Court's inquiry focuses on factors including "`the frequency of the conduct, the severity of the conduct, the degree to which the conduct is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee's work performance." Green v. Adm'rs of the Tulane Educ. Fund, 284 F.3d 642, 655-56 (5th Cir. 2002) (citing Weller v. Citation Oil Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996)).
Jackson testified in her deposition that the conduct was not infrequent-it occurred twice a month during the alleged period of harassment. Drawing all inferences favorable to Jackson, the conduct was severe. Jackson testified that Corriveau's actions included "playing with his genitals" in her presence, discussing "how to stimulate the woman," touching Jackson's back, and placing pornography on her computer. Jackson testified to the effect that she was sufficiently bothered by Corriveau's conduct to complain to Xavier officials. Jackson also testified that Corriveau's touching of her back made her feel "uncomfortable." Although Jackson has pointed to no evidence in the record that the conduct unreasonably interfered with her work performance, under the totality test guiding the Court's inquiry, the evidence here indicates a pervasiveness and severity sufficient to withstand Xavier's summary judgment motion.
Third, Xavier asserts that it is entitled to the affirmative defense set forth in Faragher, 524 U.S. at 805. To prevail under this defense, the employer must show that it "`exercised reasonable care to prevent and correct promptly any sexually harassing behavior,' and `that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.'" Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 269 n. 2 (1998) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).
The Court finds that Xavier is not entitled to prevail under Faragher. Xavier indicates that all employees receive a copy of its sexual harassment policy. Yet Jackson testified that she did not receive a copy of this material. Additionally, although Xavier has submitted evidence that its sexual harassment policy is posted on bulletin boards, there is no evidence that it was posted on bulletin boards during the specific time of the alleged harassment. Furthermore, Jackson claims she did complain to a professor and the Interim Dean in the spring of 1999, yet nothing was apparently done at that time in response to her complaints. As the Court has determined that summary judgment is inappropriate as to whether Xavier "exercised reasonable care to prevent and correct promptly any sexually harassing behavior," it is unnecessary for the Court to pass on whether Jackson "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."
2000e-3(a)
Retaliatory discharge claims are analyzed under the following burden-shifting test:
First, a plaintiff must establish a prima facie case of retaliation by showing: "(1) that she engaged in activity protected by Title VII; (2) that an adverse employment action occurred; and (3) that there was a causal connection between the participation in the protected activity and the adverse employment decision." Shackelford v. DeLoitte Touche, LLP, 190 F.3d 398, 407-08 (1999) (citing Shirley v. Chrysler First, Inc., 970 F.2d 39, 41 (5th Cir. 1992)). The establishment of a prima facie case gives rise to an inference of retaliation. See id. (citing Shirley, 970 F.2d at 41). This inference, in turn, shifts the burden of proof to the defendant, who must then articulate a legitimate non-discriminatory reason for the challenged employment action. See id. (citing Shirley, 970 F.2d at 41). If the defendant offers such a rationale, the plaintiff must prove that the reason is pretextual. See id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-803, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).
Here, Jackson has established a prima facie case. She testified to having complained to Xavier authorities about the harassment and was terminated shortly thereafter, purportedly for generating the letter with Thomas' forged signature.
Xavier has satisfied its burden on the second step of the inquiry, providing that it terminated Jackson not for reporting Corriveau's alleged sexual harassment, but rather because of the generation of the above-mentioned letter.
Jackson, however, has successfully rebutted this rationale for summary judgment purposes. Xavier may claim that the "sole basis of her termination" was the submission of the unauthorized letter to the Naval Reserve. Drawing all inferences most favorable to Jackson, however, Jackson has submitted evidence showing the reason underlying the basis of the termination, and thus the termination itself, to be pretextual. Thomas and Calvin state in their affidavits that Jackson acknowledged to each that she had generated the letter with the forged signature. Xavier provides no other rationale supporting the basis for termination. Jackson, on the other hand, denied in her deposition that she had acknowledged generating the letter, instead testifying that she did not see the letter after it was faxed to Thomas and prior to meeting with Thomas. Thus, there is a disputed issue of material fact as to whether the reason underlying the basis for Jackson's termination, and thus the basis of the termination itself, was pretextual. Accordingly, summary judgment on the hostile environment claim is denied.
Punitive damages
Under Title VII, punitive damages "are limited . . . to cases in which the employer has engaged in intentional discrimination and has done so `with malice or with reckless indifference to the federally protected rights of an aggrieved individual.'" Kolstad v. ADA, 527 U.S. 526, 529, 119 S.Ct. 2118, 144 L.Ed.2d 494 (citing 42 U.S.C. § 1981a(b)(1)). Drawing all inferences most favorable to Jackson, she has set forth evidence of action with such a state of mind. In particular, Jackson has testified to the effect that Xavier, through Calvin, fabricated the rationale underlying the basis for her termination is false. As her termination came swiftly on the heels of her complaints about Corriveau, the inference most favorable to Jackson is that she was punished for reporting his sexual harassment to Xavier officials. Accordingly, summary judgment is inappropriate as to the availability of punitive damages.
Front pay or future damages
Xavier argues that there is no evidence that Jackson has suffered a loss of front pay or future damages, specifically with respect to mental damages. While Jackson testified that she had counseling sessions during the year or so she remained on the job at Xavier, the Court agrees that Jackson has pointed to no evidence suggesting subsequent mental damages. Accordingly, summary judgment is appropriate as to future mental damages. Jackson, however, has set forth evidence of damages as to loss of front pay, including, as Xavier concedes, that she was not employed for approximately one year after her discharge. As such, summary judgment is inappropriate as to Jackson's loss of front pay.
La. R.S. § 23:967La. R.S. § 23:967A(1), the Louisiana whistleblower statute, provides that "[a]n employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law . . . [d]iscloses or threatens to disclose a workplace act or practice that is in violation of state law."
Section 23:302 provides the definition of employment covered by § 23:967. See Jones v. JCC Holding Co., No. 01-0573, 2001 U.S. Dist. LEXIS 7043, at *9 (E.D. La. May 21, 2001). Section 23:302(2)(b) specifically excludes from this definition employment by "a private educational . . . institution or any nonprofit corporation." As noted above, Xavier has set forth unrebutted evidence that it is a non-profit, private, education institution. Accordingly, the Court grants summary judgment dismissing Jackson's claim pursuant to La. R.S. § 23:967. CONCLUSION
The Court pauses here to point out that, with one exception, Jackson has completely declined to point to specific evidence in the record to sustain her burden in defending against the instant motion. The Court notes that:
unsubstantiated assertions are not competent summary judgment evidence. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (internal citations and quotations omitted).
For the foregoing reasons,
IT IS ORDERED that:
Xavier's Motion for Summary Judgment is hereby partially GRANTED and partially DENTED, as set forth above.