Opinion
CIVIL ACTION No. 3-99-CV-0444-P
June 27, 2000
MEMORANDUM OPINION ORDER
Now before the Court for consideration is Defendants' Motion for Summary Judgment filed April 19, 2000. After reviewing the motion, Plaintiff's response, the evidence, and the applicable law, the Court hereby GRANTS Defendants' Motion.
I. BACKGROUND
Daniela Jordan ("Plaintiff" or "Ms. Jordan") began working as a receptionist for Aon Risk Services of Texas ("Defendant" or "Aon") in approximately July 1994. In early 1995, Plaintiff received a promotion and became Assistant to Tad Gardere in the CPA Program. (Jordan Depo. at 24). She received another promotion in June 1997 when she became Assistant to Andrew Felder ("Felder"). Mr. Felder had transferred from New York to the Dallas Office in order to run the newly created Trade Show Program. The Real Estate Group at Aon developed this program for the purpose of going to trade shows and generating leads for large, specialized real estate deals. (Cathey Depo. at 5, 11). Mr. Felder and Ms. Jordan were the only two employees in the Trade Show Program.
On October 28, 1997, Ms. Jordan first complained about Mr. Felder's behavior. She reported to Karan Sills, Aon's then Vice President, that Mr. Felder's behavior had made her uncomfortable on a number of occasions. (Jordan Depo. (V2) at 23; Yancey Aff. ¶ 6). On the same day as Ms. Jordan's initial complaint, Ms. Sills alerted the regional resource manager for Aon, Laura Yancey. (Yancey Aff. ¶ 6). On November 3, 1997, Ms. Yancey met with Mr. Felder about the complaints. At that time, she verbally cautioned him that any sexually harassing conduct would not be tolerated. (Yancey Aff. ¶ 9). Ms. Yancey also met with Ms. Jordan to discuss the details of her complaint against Mr. Felder and requested Ms. Jordan provide a written complaint containing all of the allegations. (Yancey Aff. ¶ 6; Jordan Depo. (V2) at 40). On November 5, 1997, Ms. Jordan complied with this request. (Jordan Depo. (V1) Exh. 10).
Ms. Jordan complained that Mr. Felder made several comments about women's attractiveness and women's weight, such as his preference to not work with unattractive people. (Jordan Depo. (V1) at 153, 155, 156). He allegedly touched Ms. Jordan almost daily. He touched her back on at least one occasion, and once put his head on her shoulder. (Jordan Depo (V1) at 144, 158). Ms. Jordan further alleges that Mr. Felder leered at women in the office as well as those appearing in newspaper bra advertisements. (Jordan Depo. (V1) at 143, 171, 172). Mr. Felder allegedly made jokes with sexual innuendos around the office, commented on his desire to have sex (with someone other than Plaintiff), and stared at his own crotch while commenting on the size of his genitalia. (Jordan Depo. (V1) at 145, 163-65). Ms. Jordan was required to make copies of pages from Mr. Felder's planner with sexual jokes written in it and brochures for calendars containing, among other completely innocuous things, models in swimsuits. (Jordan Depo. (V1) at 169, 174).
A specific example came when Mr. Felder made the comment. "I don't replicate in public," when talking about the Xerox machine. (Jordan Depo. (V1) at 168).
This incident occurred when Ms. Jordan overheard one end of Mr. Felder's phone conversation with an unknown individual. During the course of the conversation, Ms. Jordan heard him say, "I'll do her so to speak' about an unidentified woman. (Jordan Depo. (V1) at 163-64).
In referring to a gadget used at the trade shows, Plaintiff once asked Mr. Felder if he "got the little deal," to which he responded by covering his crotch with his hands and saying "I hope it's not little." (Jordan Depo. (V1) at 165). Plaintiff testified that she believed he was trying to be funny in making this remark. Id.
On November 20, 1997, Susan Held, in-house counsel for Defendant, traveled to Dallas and investigated Ms. Jordan's claims. (Held Depo. at 10). During the course of the investigation, Ms. Held met with Ms. Jordan, Mr. Felder, Ronnie Cathey, Karan Sills, and two co-workers, Lisa Colbert and Kelly Bean, (Held Depo. at 11). Ms. Held corroborated some of Ms. Jordan's claims, including a calendar which made references to body parts; however, she was unable to corroborate any of the other allegations. (Held Depo. at 12). In Ms. Held's opinion, none of the conduct she uncovered rose to the level of sexual harassment. (Held Depo. at 36). Despite the inability to corroborate most of Ms. Jordan's claims, Ms. Held warned Mr. Felder that Aon would not tolerate sexual harassment or harassing behavior. (Held Aff. ¶ 9). She also recommended separating Ms. Jordan and Mr. Felder due to the awkwardness of being the only two people in a single department. (Held Depo. at 38).
Mr. Cathey served as the Managing Director of the Aon Real Estate Group.
In accord with both Ms. Held's recommendation and Plaintiff's own request to transfer positions, Ms. Jordan was offered a new position on a temporary basis that became available in December 1997. (Yancey Aff. ¶ 13). In making the offer, Ms. Yancey anticipated Ms. Jordan would remain at the same pay and benefits level and that the transfer would only be temporary until another position that she qualified for became open. Id. Ms. Jordan refused the transfer.
On January 5, 1998, Defendant decided to eliminate the Trade Show Program. According to Defendant, the program made no profit and failed to produce any sales or legitimate leads. (Cathey Depo. at 10). As a result, both Plaintiff and Mr. Felder lost their jobs on January 7, 1998. Since that time, Defendant has not reinstated the Trade Show Program.
II. SUMMARY JUDGMENT STANDARD
In general, summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 248 (1986) The moving party must identify the evidence on file in the case which establishes the absence of any genuine issue of material fact. Celotex, 477 U.S. at 323.
Once the moving party has made an initial showing, the party opposing the motion must offer evidence sufficient to demonstrate the existence of the required elements of the party's case Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment; the party defending against a motion for summary judgment cannot defeat the motion unless it provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in its favor. Anderson, 477 U.S. at 256-57. Conclusory assertions, unsupported by specific facts, presented in affidavits opposing the motion for summary judgement are likewise insufficient to defeat a proper motion for summary judgment. See Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888 (1990).
All evidence and the inferences to be drawn therefrom "must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Marshall v. Victoria Transp. Co., 603 F.2d 1122, 1123 (5th Cir. 1979). However, if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23. Finally, in reviewing the summary judgment evidence, the Court has no duty to search the record for triable issues; rather, it need rely only on those portions of the submitted documents to which the nonmoving party directs its attention. See Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992).
III. TITLE VII CLAIMS
Plaintiff claims that Defendant discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., on the basis of her gender, and then retaliated against her for complaining about the discrimination. Title VII 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). The statute also makes it an "unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3 (a).
A. INDIVIDUAL LIABILITY
Plaintiff brought Title VII claims against Mr. Felder in his individual capacity. While Title VII defines the term employer to include any agent of the employer, 42 U.S.C. § 2000e(b), the Fifth Circuit does not interpret the statute as imposing individual liability for such a claim. See Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir. 1999) (citing Pfau v. Reed, 125 F.3d 927, 935-36 (5th Cir. 1997)). Plaintiff failed to demonstrate any basis other than his actions for Aon for holding him liable under Title VII. Therefore, Plaintiff's individual claims against Mr. Felder must be dismissed.
Similarly, any claims by Plaintiff against Mr. Felder in his official capacity must also be dismissed. The Fifth Circuit does not allow a plaintiff to seek recovery under Title VII against both the corporation and the supervisor in his official capacity. See Indest, 164 F.3d at 262 (quoting Sims v. Jefferson Downs Racing Assoc., Inc., 778 F.2d 1068, 1081 (5th Cir. 1985) (suit brought under § 1983)). To allow a claim against both would effectively hold the corporation liable twice for the same act. Id. (quoting Allen v. Tulane Univ., No. CIV.A 92-4070, 1993 WL 459959, at *4 (E.D. La. Nov. 2, 1993)).
B. HARASSMENT
A Title VII violation may be established by proving that discrimination based upon gender has created a hostile or abusive working environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). As discussed more fully below, Plaintiff primarily bases her hostile work environment claim upon numerous incidents whereby Andrew Felder made offensive comments and touched her back and shoulders. Ordinarily, a plaintiff must establish five elements to set forth a hostile environment claim: (I) that she belongs to a protected class, female; (2) that she was the subject of unwelcome sexual harassment; (3) that the harassment was based upon sex; (4) that the harassment affected a "term, condition or privilege" of employment; and (5) that Defendant, her employer, knew or should have known of the harassment and failed to take prompt remedial action. Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 873 (5th Cir.), cert. denied, 120 S.Ct. 395 (1999). However, in two recent opinions delivered on the same day, the Supreme Court altered this analysis when the employee complains of harassment by a supervisor. See generally Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Under the current standard, an employee bringing an action to remedy harassment by a supervisor with immediate authority over the employee need only satisfy the first four elements of this test. See Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999). Once the employee makes this showing, an "employer is subject to vicarious liability to a victimized employee." Faragher, 524 U.S. at 807.
The Supreme Court also outlined the availability of an affirmative defense to preclude an employer's vicarious liability for the actions of its supervisors. In response to the employee's claim, the defendant may raise an affirmative defense to liability so long as the employer can establish that the harassment did not culminate in a "tangible employment action" against the employee. Id. The affirmative defense consists of two prongs: (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise." Id. If, however, the supervisor's harassment did culminate in a tangible employment action, then the employer is not entitled to raise the affirmative defense. Id.
In addition to pronouncements by the Supreme Court, the Fifth Circuit also provided recent guidance in the application of the Ellerth/Faragher test. Casiano v. ATT Corp., ___ F.3d. ___; No. 99-50992, 2000 WL 679781 (5th Cir. June 12, 2000). According to the "Supervisor Sexual Harassment Roadmap" attached as an Appendix to Casiano, a district court must first ask whether the complaining employee has or has not suffered a `tangible employment action." Id. at *4-5. If the answer is "yes", then the court must proceed in analyzing the case as one for quid pro quo sexual harassment, Id. at *4. If, on the other hand, the answer is no, then the court must treat the claim as one for hostile work environment and determine whether the harassment was sufficiently severe and pervasive to constitute an actionable claim for sexual harassment. Id. Only after the court determines that the claim is actionable may the defendant raise the affirmative defense outlined in Ellerth/Faragher. Id. at *4-5
Defendant asserts that it is entitled to summary judgment on the Title VII claims because (I) Plaintiff fails to identify any actions severe or pervasive enough to demonstrate a hostile work environment and (2) Defendant is entitled to assert an affirmative defense to Plaintiff's claims.
1. Tangible Employment Action
"Determination whether the complaining employee has suffered a tangible employment action is the indispensable first step in every supervisor harassment/vicarious liability case under Title VII, even if subsequent stops on the road map may be skipped." Casiano, at *5 Tangible employment actions consist of such things 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. Employers routinely have been held responsible when a supervisor makes a discriminatory discharge, whether or not the employer knew, should have known, or approved the supervisor's actions. Faragher, 775 U.S. at 790 (discussing Mentor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986)). The Court cited two separate theories for imposing vicarious liability on the employer for such discriminatory actions taken by a supervisor. The first involves a proxy theory, meaning that when a supervisor makes decisions affecting tangible employment benefits, his acts become that of the employer. Id.; see also Ellerth, 524 U.S. at 762 ("Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates."). The other theory relies upon the acts being within the scope of the supervisor's authority when he makes decisions such as hiring and firing. Faragher, 775 U.S. at 791.
Regardless of the theory relied upon, the Supreme Court's language and reasoning requires the supervisor to take the tangible employment action. Cases from both the Supreme Court and the Fifth Circuit have clearly delineated between actions taken by the supervisor and actions taken by the employer. See Ellerth, 775 U.S. at 762 ("Tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer.") (emphasis added); Faragher, 775 U.S. at 804 ("When a person with supervisory authority discriminates in the terms and conditions of subordinates' employment, his actions necessarily draw upon his superior position.") (emphasis added); Watts v. Kroger, 170 F.3d 505, 510 (5th Cir. 1999) (evaluating whether the actions taken by the harassing supervisor constituted a significant change in employment status). Therefore, prior to addressing any other claim by Ms. Jordan, the court must first determine whether Mr. Felder's harassment culminated in him taking a tangible employment action against her.
Ms. Jordan claims to have suffered a tangible employment action due to her termination. However, she admits Mr. Felder neither controlled nor participated in the decision to terminate her position. (Jordan Depo. (V2) at 86). The only other possibly qualifying action was the alleged diminution in duties following her report of Mr. Felder's sexual harassment. Plaintiff complained that after her report the work in the Trade Show Program declined resulting in a diminution of duties. Once again, Plaintiff admits this diminution in duties resulted from Aon's decision to cut back on the Trade Show Program's scope of activities without any involvement by Mr. Felder. (Jordan Depo. (V2) at 86). Plaintiff does not allege that Mr. Felder ever disciplined, chastised, or altered Ms. Jordan's job duties in any way following her protest. In fact, she testified that he never conditioned any job benefit on her submission to his sexual advances. (Jordan Depo. (V1) at 90). Ms. Jordan has failed to demonstrate any evidence of Mr. Felder affecting a tangible employment condition or benefit. Accordingly, the first question to the Casiano roadmap but be answered no, Plaintiff did not suffer a tangible employment action. The Court must now analyze whether Mr. Felder's actions were sufficiently severe or pervasive so as to constitute an actionable hostile work environment claim.
2. Severe or Pervasive
For harassment based upon sex to be actionable, it must be "sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment." Meritor, 477 U.S. at 67. A recurring point in Supreme Court opinions is that neither "simple teasing," offhand comments nor isolated incidents (unless extremely serious) will amount to such discrimination. See Faragher, 524 U.S. at 788. Whether an environment is hostile or abusive is determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Finally, the conduct must be both objectively offensive, meaning that a reasonable person would find it hostile and abusive, and subjectively offensive, meaning that the victim perceived it to be so. Id. at 21-22; see also Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 874 (5th Cir. 1999).
As described above, Plaintiff complains primarily about Mr. Felder touching her back and shoulders, making sexual innuendoes, using double entendres, leering at other employees and bra ads, making sexual jokes, and commenting on his genitalia. Mr. Felder never propositioned Ms. Jordan for sex, asked her out on a date, or conditioned a job benefit on her acceptance of his sexual advances. (Jordan Depo. (V1) at 90-91). Ms. Jordan was never physically threatened or touched in a blatantly sexual manner. After making her complaint, Ms. Jordan felt safe or comfortable enough with Mr. Felder to voluntarily join him in attending a trade show in California (Jordan Depo. (V1) at 91, 94). She admits he never propositioned her or attempted to enter her room during the trip. Id.
Plaintiff testified at her deposition that she understood her job did not require her to travel to the trade shows with Mr. Felder and that Mr. Felder did not require her attendance. (Jordan Depo. (Vl) at 92, 94, (V2) at 32).
After reviewing Ms. Jordan's testimony, the Court finds Mr. Felder's actions consisted of the same type of flirting, casual touching, sexual innuendos and jokes underlying many other sexual environment claims that have been unsuccessful in court. See e.g., Shepherd, 168 F.3d at 874 (finding no hostile environment where co-worker touched female's arm, attempted to look up her dress, made offensive remarks, made remarks about her nipples, and offered to let her sit on his lap); Gearhart v. Eye Care Centers of America, 888 F. Supp. 814, 825 (S.D. Tex. 1995) (finding actions endured by female employee not severe or pervasive where supervisors made remarks about sex, brushed her breast, touched her hair, discussed seeing other women's breasts, and kicked her buttocks); Rabidue v. Osceola Refining Co., 805 F.2d 611, 615 (6th cir. 1986) (denying hostile work environment claim despite prolonged exposure to vulgar language and nude photos at work); cf. Waitman v. International Paper Co., 875 F.2d 468, 478 (5th Cir. 1989) (finding hostile work environment where female employee was sexually groped); Hall v. Gus Const. Co, 842 F.2d 1010, 1012 (8th Cir. 1988) (finding hostile environment where male co-workers cornered women, rubbed their thighs, grabbed their breasts, and held a woman so that a man could touch her). Accordingly, Plaintiff cannot establish her prima facie case for sexual harassment and her claim must be dismissed.
C. RETALIATION
Under Fifth Circuit law, Plaintiff must prove three elements to carry her retaliation claim: (1) that she has engaged in activity protected by Title VII; (2) that Defendant took adverse employment action against her; and (3) that a causal connection exists between the protected activity and the adverse employment action. Burger v. Central Apartment Mgmt., Inc., 168 F.3d 875, 878 (5th Cir. 1999). Ms. Jordan's retaliation claim is subject to the burden-shifting analysis expounded in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), and St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Under this line of cases, once a plaintiff makes the prima facie showing of retaliation, the burden then shifts to the defendant to produce a legitimate, nonretalitory reason for the adverse employment action. Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). If the defendant meets this burden, then the plaintiff must adduce sufficient evidence that would permit a reasonable trier of fact to find that the proffered reason is pretext for retaliation. Id. At all times, the ultimate issue in a retaliation case remains whether the protected conduct was a "but for" cause of the adverse employment decision. McDaniel v. Temple Indep. Sch. Dist., 770 F.3d 1340, 1346 (5th Cir. 1985). Even if the employee's conduct is a "substantial element" in the employer's decision to terminate an employee, the employer escapes liability if it would have taken the same action irrespective of the protected activity Long v. Eastfield College, 88 F.3d 300, 305 n. 4 (5th Cir. 1996).
Here, Plaintiff fails to prove her prima facie case of retaliation because she cannot demonstrate the causal connection between her report against Mr. Felder and her eventual termination. Aon fired Plaintiff a little more than two months after she initially complained about the harassment. The close timing between an employee's protected activity and an adverse action against her may provide the "causal connection" required to make out a prima facie case of retaliation. See, e.g., Rath v. Selection Research, Inc., 978 F.2d 1087, 1090 (8th Cir. 1992) (discharge soon after protected activity is indirect proof of causal connection). However, under these circumstances, the close timing alone will not satisfy Ms. Jordan's burden. Cf. Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993) (finding temporal proximity of the protected activity and the allegedly discriminatory policy alone did not suffice to demonstrate policy was pretext for discrimination)
During her testimony, Plaintiff did not identify one person, other than perhaps Mr. Felder, who was angry or upset about her report of sexual harassment. Ms. Jordan admitted that Laura Yancey wanted her to pursue her charge and once told her not to back down from her complaint. (Jordan Depo. (V1) at 114-15). When talking with Ms. Jordan, Karan Sills referred to Mr. Felder with a very derogatory term and stated she was very angry about his behavior. (Jordan Depo. (V2) at 24-25). Similarly, Ms. Jordan noted the genuine concern of Ronnie Cathey, who told Ms. Jordan over lunch that Mr. Felder was "gone." (Jordan Depo. (V2) at 33-35). Even Susan Held, who conducted the investigation, told Plaintiff she was "pissed off" at Mr. Felder's behavior. (Jordan Depo. (V2) at 41). Once the investigation was underway, Mr. Felder even apologized for his behavior, saying he did not mean to offend Ms. Jordan. (Jordan Depo. (V2) at 61). No one identified by Ms. Jordan in the real estate department, human resources, or corporate counsel's office demonstrated any hostility about Ms. Jordan's complaint. Moreover, Aon warned Mr. Felder against any further harassment. Aon warned Ms. Jordan that after the first of the year, changes would be made and that she needed to transfer to a receptionist position until something else became available. (Jordan Depo. (V2) at 66). However, Ms. Jordan refused that position because she was unable to work the required hours from eight in the morning until five in the evening. (Jordan Depo. (V2) at 67). Mr. Felder had no part in the decision to eliminate the Trade Show Program or terminate Ms. Jordan. In fact, he lost his job as well. Considering all of the facts and the attitudes described by Ms. Jordan, the Court finds she failed to demonstrate a causal connection between her termination and her complaint. Therefore, her claim of retaliation must fail.
The only alleged harassment committed by him after the complaint was when Mr. Felder approached Ms. Jordan while she sat at her desk and complimented her on looking nice that day. (Jordan Depo. (V2) at 58).
Even if Plaintiff could meet her burden of establishing a prima facie case of retaliation, she has not rebutted Aon's proffered legitimate business reason for the elimination of the Trade Show Program and Ms. Jordan's position. Aon contends it eliminated the Trade Show Program and Ms. Jordan's position because the program was financially unrewarding.
Ronnie Cathey, the Managing Director of Aon's Real Estate Group, stated the Trade Show Program resulted in no sales and no usable leads. (Cathey Depo. at 31). Under his original proposal, Mr. Felder promised that Aon would begin seeing a return within three months of the Program's inception and that the Program would be paying for itself within six months. (Cathey Depo. at 32). Instead, the Trade Show Program cost Aon a considerable amount of money in the six figure range." (Cathey Depo. at 31). The results were so negative that Mr. Cathey stated, "[t]here were no results that led to any business or even the chance of any business that I remember." (Cathey Depo. at 32). Due to the poor return of the Trade Show Program, Mr. Cathey met with Mr. Felder after three months. Mr. Cathey told him Aon would end the Program if there were no meaningful results within the next three months. (Cathey Depo. at 33). When Mr. Felder failed to produce the results, Aon eliminated the Program. Aon has not participated in any trade shows since the end of its Trade Show Program. (Cathey Depo. at 33). With these reasons, Aon has sufficiently stated a legitimate, non-discriminatory reason for eliminating the Program.
Plaintiff relies upon her perceived success of the trade shows to rebut Aon's fiscal reason for eliminating the Program. Plaintiff also relies upon the original long-term nature of the Program. Ms. Jordan states that Aon originally planned on sticking with the Trade Show Program for five years, and that Mr. Cathey told her they would have five years to make the Program work. Ms. Jordan argues the impracticability of having Mr. Felder relocate to Dallas for a project with only a three-six month life span. None of this evidence could lead a reasonable jury to find that retaliation actually motivated Aon to eliminate the Trade Show Program. After making an investigation into Ms. Jordan's claims and offering her an alternative position, it is not reasonable to think a corporation would eliminate a program it saw as potentially profitable merely in retaliation against Ms. Jordan. Although the poor working relationship between the only two employees in the department may have been considered by Aon, Plaintiff has failed to demonstrate by a preponderance of the evidence her complaint was the "but for" cause of the Program's demise.
Plaintiff also relies upon the existence of several other positions for which she qualified that Aon never offered to her as evidence of Aon's retalitory intent. Ms. Jordan did not present competent summary judgment evidence of any existing positions at Aon prior to her termination for which she qualified. Aon offered Ms. Jordan a position as receptionist, a task that she performed occasionally even while working as Mr. Felder's assistant. When telling Ms. Jordan about the end of the Program and presenting her severance package, Karan Sills told Ms. Jordan she was being terminated because she did not let them know about the receptionist position. Plaintiff failed to present any evidence demonstrating a question of fact as to her prima facie case of retaliation. She also failed to rebut Defendant's legitimate, non-discriminatory reason for her termination. Therefore, the Court GRANTS summary judgment as to Plaintiff's claim for retaliation.
D. SEXUAL DISCRIMINATION
Plaintiff claims to have been the victim of sex discrimination in being refused the opportunity to take over the Trade Show Program herself rather than having Aon eliminate the Program in its entirety. The ultimate issue in a case of discrimination under Title VII is whether the Plaintiff's gender was a factor in an adverse employment decision against her. Urbano v. Continental Airlines, 138 F.3d 204, 205-06 (5th Cir. 1998); Rhodes v. Guiberson Oil Tools, 39 F.3d 537, 542 (5th Cir. 1994). To defeat a motion for summary judgment, a plaintiff must first establish a prima facie case of discrimination. Fakuri v. Parsons S.I.P., Inc., 123 F.3d 315, 318 (5th Cir. 1997); Plemer, 713 F.2d at 1136. To do so, the plaintiff may prove her claim through either direct or circumstantial evidence. Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 587 (5th Cir. 1998). If the plaintiff presents no direct evidence of gender discrimination, then her claims are subject to the Supreme Court's McDonnell Douglas test. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Here, Ms. Jordan has not presented any direct evidence of gender discrimination.
Under the McDonnell Douglas burden shifting test, the plaintiff first bears the burden of proving a prima facie case of discrimination by a preponderance of the evidence. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); McDonnell Douglas 411 U.S. at 802. The prima facie case of discrimination requires the plaintiff to prove: (1) she was a member of a protected class; (2) she was qualified for the position she was denied; (3) she suffered an adverse employment action; and (4) she was replaced by or treated differently than someone outside the protected class. McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the defendant "to articulate some legitimate nondiscriminatory reason for the employee's rejection." Id. If the defendant meets this burden, then the plaintiff must prove by a preponderance of the evidence that the reasons offered by the defendant were not its true reasons but were instead pretext for discrimination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The ultimate burden of persuasion as to the defendant's intentional discrimination remains at all times with the plaintiff. Id.
Ms. Jordan cannot prove her prima facie case of discrimination based upon Aon's failure to appoint her head of the Trade Show Program because she cannot demonstrate that she was qualified for the position. Ms. Jordan's education is limited to her completion of high school and a one or two week course for obtaining her insurance solicitor's license. (Jordan Depo. (V1) at 55). Prior to her job at Aon, Plaintiffs only employment was at a Bealls Department store. Her job duties at the store consisted of sales, answering phones, and counting money at the end of the shift. (Jordan Depo. (V1) at 55-56). The only qualification for running the Program Ms. Jordan cites is her experience in being Mr. Felder's assistant. (Jordan Depo. (V2) at 82). Ms. Jordan admits she told Mr. Cathey that she could take over the Trade Show Program with help, though she knew it would take a lot of work and research, she was a little worried that she would not know what to do and would have to start on a smaller scale. (Jordan Depo. (V2) at 35, 82). Ms. Jordan's testimony has failed to establish her qualifications for running the Trade Show Program.
Plaintiff admittedly relies upon her own speculation for believing Aon would not allow a woman to run the Trade Show Program. (Jordan Depo. (V2) at 78). However, Plaintiff cannot rely upon mere speculation in making her discrimination claim. Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999) ("[S]ubjective believe of discrimination alone is not sufficient to warrant judicial relief") (internal citations omitted). Plaintiff has failed to make her prima facie case for sex discrimination. Even if she had, for the reasons stated supra Section IIl.C., Plaintiff has failed to rebut Aon's non-discriminatory reason for eliminating the Program. As such, Plaintiffs claim for sex discrimination must be dismissed.
IV. STATE LAW CLAIMS
A. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The elements for intentional infliction of emotional distress are' (I) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the emotional distress that the plaintiff suffered was severe. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999); Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). In order to recover for this tort, the plaintiff must demonstrate more than malicious, tortious, or even criminal intent on the part of the defendant. Rather, the plaintiff must demonstrate that the defendant's conduct is so outrageous and so extreme in degree "as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Twyman, 855 S.W.2d at 621 (quoting Restatement (Second) of Torts § 46 cmt. d).
The Texas Supreme Court held as a matter of law that "the mere fact of termination of employment, even if the termination is wrongful, is not legally sufficient evidence that the employer's conduct was extreme and outrageous under the rigorous standard that [it] established in Twyman." F.J. Brewerton v. Dalrymple, 997 S.W.2d 212, 216 (Tex. 1999) (quoting Southwestern Bell Mobile Systems, Inc v. Franco, 971 S.W.2d 52, 54 (Tex. 1998)). Similarly, many cases of harassment in the workplace will not support a claim for intentional infliction of emotional distress. See Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir. 1993) (holding that racial slurs and jokes do not support a claim for intentional infliction of emotional distress); Wilson v. Monarch Paper Co., 939 F.2d 1138, 1144 (5th Cir. 1991) (stating that ordinary employment disputes, even those involving discrimination and sexual harassment, will rarely rise to the level of intentional infliction of emotional distress); Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 741 (Tex.App. .— Houston 1999, n w h.) (holding that insults, indignities, threats, annoyances, racial slurs and harassment do not support a claim for intentional infliction of emotional distress where plaintiff claimed that the conduct caused him to suffer clinical depression).
Plaintiff claims Mr. Felder's alleged actions qualify as extreme, outrageous, and utterly intolerable within civilized society. In particular, she points to the touching of her back and shoulder, Mr. Felder's references to his crotch, his double entendres, and leering at women as the physically upsetting behavior that caused her to suffer from hives, hair loss, depression, sleeplessness, and emotional stress. (Pl's Response at 23-24). Mr. Felder did not touch or grope her sexually. He never propositioned Ms. Jordan for sex or asked her out on a date. Though his behavior certainly qualifies as inappropriate, the behavior amounts to a series of bad jokes and unsolicited commentary on the appearances of fellow co-workers. As a matter of law, Mr. Felder's actions, even if true, fail to demonstrate the kind of extreme or outrageous behavior necessary to support Plaintiffs claims. Cf. Skidmore v. Precision Printing and Packaging, Inc., 188 F.3d 606, 613 (5th Cir. 1999) (upholding plaintiffs claim for intentional infliction of emotional distress where co-worker touched her sexually, kissed her neck, pulled her to his waist as she bent over, suggested plaintiff lick him from head to toe, and circulated false rumors about her sexual activity despite knowing the rumors were causing trouble in her marriage). Neither does Defendant's investigation of the matter reveal intolerable or deplorable employment tactics. Aon responded to her complaint with an in-depth investigation and offered her an alternative position in order to remove her from an uncomfortable situation As such, the Court GRANTS summary judgment as to Plaintiff's claim for intentional infliction of emotional distress
B. WRONGFUL TERMINATION AND BREACH OF CONTRACT
Plaintiff has also made claims against Aon for wrongful termination and breach of contract. She contends that Ronnie Cathey verbally agreed to employ her for a term of five years within the Trade Show Program. (Jordan Depo. (V1) at 40). Defendant moves for summary judgment on this claim arguing that any such contract is void for its failure to comport with the statute of frauds. In Texas, if an employment contract is to extend beyond one year, it must be in writing in accordance with the statute of frauds. See Tex. Bus. Com. Code § 26.01(b)(1) (Vernon 1987). Plaintiff admits she never received anything in writing about this alleged oral agreement. (Jordan Depo. (V1) at 40). Moreover, Plaintiff does not address the apparent deficiencies in responding to Defendant's motion for summary judgment. As such, the Court GRANTS summary judgment as to Plaintiffs claim for breach of contract
Plaintiff similarly fails to establish the elements of her wrongful termination claim, it does not appear that Plaintiff had an enforceable contract for a definite term of employment at Aon Moreover, Plaintiff has not presented any evidence to dispute Defendant's characterization of her status as an at-will employee. (Def's Br. at 25). As an at-will employee, she must plead and prove either a legislative or judicial exception to the employment-at-will doctrine in order to maintain a claim for wrongful termination. See Austin v. Health Trust, Inc. — The Hosp. Co., 967 S.W.2d 400 (Tex. 1998). Plaintiff did not plead any exception. Furthermore, she failed to address the apparent deficiency in her response to Defendant's motion for summary judgment. As such, the Court GRANTS summary judgment as to Plaintiffs claim for wrongful termination.
CONCLUSION
For the reasons stated herein, the Court hereby GRANTS summary judgment as to all of Plaintiff's claims. All of Plaintiffs claims are DISMISSED WITH PREJUDICE.
SO ORDERED