Opinion
Civil Action No. 3:03-CV-1125-L.
August 31, 2004
ORDER
Before the court is Defendant's Motion for Summary Judgment, filed June 7, 2004. After careful consideration of the motion, response, competent summary judgment evidence, record and applicable law, the court grants in part and denies in part Defendant's Motion for Summary Judgment. Plaintiff's sexual harassment claim based on a hostile work environment and Plaintiff's retaliation claim based on the reassignment of her existing clients remain for trial.
Defendant did not file a reply.
I. Factual and Procedural Background
This is a sexual harassment and retaliation case. Plaintiff Patricia M. Matheny ("Plaintiff" or "Matheny") was initially employed by Defendant Safesite, Inc. ("Defendant" or "Safesite") as a salesperson from May 1997 until May 1998. Safesite rehired Matheny on December 1, 1998 until her termination on December 15, 2000. Safesite is a records storage and management company with warehouses in Houston, Austin, Dallas and San Antonio. At all relevant times, Matheny worked at the Dallas location.
Michael Murphey ("Murphey"), a branch manager for Safesite and Matheny's supervisor, hired and rehired Matheny. After beginning her second term of employment with Safesite, Murphey began making inappropriate sexual remarks towards Matheny. Murphey's interest in Matheny intensified after he learned of her separation from her husband in the summer of 1999. For example, Murphey threatened to refuse to help her at work or give her any new customer leads if she continued to refuse his sexual advances. Matheny appealed to Murphey to stop his behavior towards her and to refrain from interfering with her job duties and responsibilities. Eventually, on March 9, 2000, Matheny complained to Joan Wallace, a branch manager at the San Antonio location, regarding Murphey's behavior. Joan Wallace informed Matheny that she did not want to get involved in the conflict between Matheny and Murphey. Subsequently, in a letter, dated March 21, 2000, Matheny complained of sexual harassment to Dalton Wallace ("Wallace"), chairman and owner of Safesite.
After receiving Matheny's letter, Wallace asked Ted Morris ("Morris"), president of Safesite, to investigate Matheny's allegations. Matheny was informed of the investigation and thereafter asked for and was granted vacation leave while the investigation was being conducted. During the investigation, Morris became aware of a numerous instances of Murphey violating or ignoring Safesite corporate policies. As a result, Murphey was terminated on April 11, 2000.
The record does not specify whether these instances violated Safesite's policy, if any, on sexual harassment.
Safesite replaced Murphey with Mike LaPierre ("LaPierre"). LaPierre was instructed to increase productivity and revenues and to ensure that employees complied with Safesite corporate policies, including, but not limited to, working from the office instead of from home and properly documenting expense reports and sales calls. Unhappy with LaPierre, Matheny complained to Wallace regarding matters unrelated to her employment duties. For example, Matheny informed Wallace that a facsimile machine had been stolen from the Dallas warehouse and that LaPierre had been involved in a hit-and-run accident in a Safesite van. The morning after complaining to Wallace, Matheny yelled in the reception area of the Dallas office that she had spoken to Wallace and repeated her complaints regarding LaPierre. Finding such behavior disruptive and insubordinate, Safesite terminated Matheny the next day, which was December 15, 2000.
On March 30, 2000, Matheny timely filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), contending sexual harassment and retaliation. On October 6, 2000, she filed a second Charge of Discrimination with the EEOC, contending retaliation. On December 18, 2000, Matheny filed her third Charge of Discrimination with the EEOC, again contending retaliation. After receiving her Right-to-Sue letter, Matheny timely filed this lawsuit on May 27, 2003, contending sex harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). Safesite filed for summary judgment. The court now considers this motion.
II. Summary Judgment Standard
Summary judgment shall be rendered 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 judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458. Further, a court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). 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 claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. Analysis
A. Sexual Harassment
Title VII forbids an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). Matheny may either prove her claim by establishing that a tangible employment action was taken against her because of her sex or by establishing that a supervisor with immediate or successively higher authority discriminated against her because of her sex and created a hostile or abusive environment. See Faragher v. City of Boca Raton, 524 U.S. 775, 786-87 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751 (1998); Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 409 (5th Cir. 2002); Casiano v. ATT Corp., 213 F.3d 278, 283-84 (5th Cir. 2000); Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 268-69 (5th Cir. 1998). If the employee has suffered a tangible employment action, the court analyzes the suit as a "quid pro quo" case. See Wyatt, 297 F.3d at 409. If the employee has not suffered a tangible employment action, the court analyzes the suit as a "hostile environment" case. See id.
1. Quid Pro Quo
The court must first determine whether Matheny suffered a tangible employment action. Casiano, 213 F.3d at 283. A "tangible employment action" is "an official act of the enterprise, a company act," 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. Once established, "the court must determine whether the tangible employment action suffered by the employee resulted from [her] acceptance or rejection of [her] supervisor's alleged sexual harassment." Casiano, 213 F.3d at 283 (citing Ellerth, 524 U.S. at 753-54). If such a nexus exists, "the employer is vicariously liable per se and is not entitled to assert the one and only affirmative defense permitted in such cases since Ellerth and Faragher." Casiano, 213 F.3d 283-84 (internal citations omitted).
In her Complaint, Matheny contends that she suffered a tangible employment action "in the form of reduced employment benefits and employment privileges, adverse employment conditions and reduced compensation." Compl. at 13 ¶ 43. Specifically, Matheny testified at her deposition that Murphey (1) locked the client files; (2) sent her a note advising her that he would no longer provide her with any leads and that she would only receive a 25 percent commission if she called on a particular customer; (3) attempted to deprive her of a commission for a contract she signed with Baylor Medical; and (4) would take some of her commissions. Safesite counters that the summary judgment evidence does not establish or create a genuine issue of material fact that Matheny suffered a tangible employment action or that the necessary nexus between the alleged tangible employment action and her rejection of Murphey's sexual advances exists. The court will address each alleged tangible employment action separately.
With respect to locking the client files, there is no evidence that such an act resulted in a significant change in benefits or any other type of tangible employment action. Specifically, Matheny testified that she rarely used the files and would do so "to look up an old bid or an old proposal that we'd given to a company to compare notes to see how much they were paying." Def. App. at Matheny Depo. (67:2-6). Further, even if locking the client files constituted a tangible employment action, which it does not, Matheny failed to establish the requisite nexus between her refusal of Murphey's alleged sexual advances and the locked client files, as she concedes that both she and the other Dallas salesperson were subjected to the locked client files.
The court notes that both parties virtually ignored the Local Rules of the United States District Court for the Northern District of Texas ("Local Rules"). By way of example, Local Rule 56.6(b)(3) requires that the appendix be numbered sequentially. As neither party did so, the court will give a brief description of the document in the appendix to which it refers. Further, both parties failed to follow Local Rules 56.3 and 56.4, which require certain information in the motion for summary judgment and response. The court admonishes the parties' attorneys to familiarize themselves with the Local Rules if they intend to continue to practice law in this district.
With respect to Murphey's note regarding leads and a reduced commission, the court accepts, for purposes of deciding Defendant's motion for summary judgment, that Murphey's refusal to provide new customer leads and reduction in commissions on particular clients constitutes a tangible employment action. Even so, Matheny does not establish or create a genuine issue of material fact regarding the necessary nexus between this tangible employment action and her refusal of Murphey's alleged sexual advances, as she admits that Murphey's note regarding leads and a reduced commission applied equally to both her and the other Dallas salesperson.
With respect to the Baylor Medical commission, it is undisputed that Matheny was not deprived of this commission. At the time that she was told that Murphey had gone to Baylor Medical to sign the contract, she knew that she had already signed that contract thereby ensuring that she would receive that commission. Therefore, there is no summary judgment evidence establishing that Matheny suffered a tangible employment action in this regard.
With respect to the commissions Murphey allegedly took from Matheny, Matheny testified that Murphey would add his name to some of her smaller accounts so that he would receive some of her commissions. It is undisputed, however, that Murphey's conduct in this regard was unrelated to Matheny's claims of sexual harassment. Matheny admitted that Murphey had engaged in this practice during her first term of employment with Safesite, during which she acknowledges that no sexually inappropriate behavior occurred. Def. App. at Matheny Depo. (82:15-18). Therefore, assuming Murphey's conduct amounted to a tangible employment action, Matheny failed to establish or create a genuine issue of fact regarding the requisite nexus between Murphey's conduct with regard to these commissions and her rejection of his alleged sexual advances.
For the reasons herein stated, the court finds that Matheny failed to set forth summary judgment evidence to create a genuine issue of material fact that she was subject to sexual harassment that culminated in a tangible employment action. Accordingly, Safesite is entitled to summary judgment on Matheny's quid pro quo sexual harassment claim.
2. Hostile Work Environment
Having determined Matheny did not suffer a tangible employment action, the court turns to her hostile work environment claim. Safesite contends that Matheny does not make a claim of sexual harassment based on a hostile work environment. The court, however, disagrees. Although paragraph 45 of Matheny's Complaint is not a model of pellucid draftsmanship, it sufficiently puts Safesite on notice that one of the grounds of her sexual harassment claim is hostile work environment. Despite its contention that Matheny does not assert a hostile work environment claim, Safesite proceeds to discuss the merits of such a claim. Moreover, Matheny deemed that Safesite moved on her hostile work environment claim, as she specifically addresses this claim in her response. Therefore, the court will consider this issue as having been raised by Safesite.
To establish a hostile work environment claim, the employee must show (1) that she belongs to a protected class; (2) that she was subject to unwelcome sexual harassment; (3) that the harassment was based on sex; and (4) that the harassment affected a "term, condition, or privilege" of employment; and (5) that the employer knew or should have known of the harassment and failed to take prompt remedial action. Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999); Pfeil v. Intercom Telecomm., 90 F. Supp.2d 742, 748 (N.D. Tex. 2000). In Faragher and Ellerth, the Supreme Court modified this test with respect to cases where the alleged harasser is a supervisor with immediate or higher authority over the harassed employee. Id. In such cases, the employee need only meet the first four elements of the test. Id.
A "term, condition, or privilege" of employment is affected when the harassing conduct is severe or pervasive enough to create an objectively hostile or abusive working environment. Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 874 (5th Cir. 1999); Pfeil, 90 F. Supp.2d at 749. If the conduct at issue was not severe or pervasive, the employer cannot be held vicariously liable for the supervisor's actions. Wyatt, 297 F.3d at 409. If, however, the conduct was severe or pervasive, the employer may avail itself of the Ellerth/Faragher affirmative defense in an attempt of avoid liability. Wyatt, 297 F.3d at 409; Pfeil, 90 F. Supp.2d at 749. This defense is comprised of two elements: (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) the plaintiff employee unreasonably failed to take advantage of any available preventive or corrective opportunities. Ellerth, 524 U.S. at 765; Wyatt, 297 F.3d at 409.
Courts determine whether an environment is sufficiently abusive to be actionable under Title VII by reviewing all of the relevant circumstances, including the frequency of the conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with the employee's work performance. Butler, 161 F.3d at 269 (citing Faragher, 524 U.S. at 787-88). Incidental or occasional sexual comments, discourtesy, rudeness, or isolated incidents (unless extremely serious) are not discriminatory changes in the terms and conditions of a worker's employment. Id.
Even when a hostile environment is shown, the plaintiff must establish that the workplace environment had the effect of altering the terms and conditions of her employment. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Nash v. Electrospace Sys., Inc., 9 F.3d 401, 403 (5th Cir. 1993). Central to the court's inquiry into a hostile environment claim is whether the alleged harasser's actions have undermined the victim's workplace competence, discouraged her from remaining on the job, or kept her from advancing in her career. Harris, 510 U.S. at 22; Shepherd, 168 F.3d at 874. Title VII is intended only to prohibit and prevent conduct "that is so severe [or] pervasive that it destroys a protected class member's opportunity to succeed in the workplace." Shepherd, 168 F.3d at 874. Title VII's overall goal of equality is not served if a claim can be maintained solely based on conduct that wounds or offends, but does not hinder an employee's performance. Weller v. Citation Oil Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996).
Safesite contends that Matheny cannot establish that Murphey's conduct was severe or pervasive because she testified that she liked him and did not want him fired. Matheny responds that "the constant background of pornographic movies, attempts at seduction over lunch and continuing inquiries into sexual matters" is sufficient to establish sexual harassment. Pl. Resp. at 2.
To be actionable, the challenged conduct must be objectively offensive, meaning that a reasonable person would find the conduct hostile or abusive, and subjectively offensive, meaning that the victim perceived the conduct to be hostile or abusive. See Harris, 510 U.S. at 21-22. In this case, the undisputed summary judgment evidence establishes that (1) on one occasion, Murphey showed Matheny a pornographic image on his computer; (2) Murphey made blonde jokes; (3) on one occasion, Murphey commented on the size of Matheny's breasts; (4) Murphey recounted a dream he had had in which he and Matheny engaged in sexual intercourse; (5) Murphey cornered Matheny in an office and attempted to kiss her; (6) Murphey inquired about Matheny's sex life; (7) Murphey placed his hands on Matheny's shoulders or her cheeks; (8) Murphey offered to "put [Matheny] up in an apartment so that he could come over and party whenever he desired," and he "mentioned that [her] sales numbers would improve if [they] could work something out with [her] living arrangements" Pl. App. at Ex. 1, p. 2 (Matheny's Decl.). Further, even though Matheny did not want Murphey to be discharged, she was nevertheless afraid that Murphey would physically hurt her. Def. App. at Matheny Depo. (106:22-24). Given Murphey's behavior, if proved, and Matheny's perception of Murphey's conduct, the court finds that a genuine issue of material fact exists regarding whether Murphey's conduct was severe or pervasive.
Safesite has not pleaded an affirmative defense to Matheny's hostile work environment claim, and thus, the court may not address this issue.
Safesite next contends that it is entitled to summary judgment because it took prompt remedial action. In this case, however, prompt remedial action is irrelevant because the alleged harasser, Murphey, was a supervisor. See Watts, 170 F.3d at 509; Pfeil, 90 F. Supp.2d at 748. In other words, Matheny need not establish that Safesite knew or should have known of the harassment and failed to take prompt remedial action because Murphey was her supervisor. See id. Had Murphey been a co-worker, rather than a supervisor, Safesite could have relied on its alleged prompt remedial action. See Watts, 170 F.3d at 509 n. 3; Pfeil, 90 F. Supp.2d at 748 n. 3.
For the reasons herein stated, the court finds that a genuine issue of material fact exists regarding Matheny's sexually hostile work environment claim. Accordingly, Safesite is not entitled to summary judgment on this claim.
B. Retaliation
Matheny contends that her employment benefits were reduced and she was terminated in retaliation for the complaints she made to Joan Wallace and Dalton Wallace and for the charges of discrimination she filed with the EEOC. To establish a prima facie case of retaliation, a plaintiff must demonstrate that: (1) she engaged in a protected activity; (2) she experienced an adverse employment action following the protected activity; and (3) a causal link existed between the protected activity and the adverse employment action. Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001); Mota v. University of Texas Houston Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir. 2001). The burden of production then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action. Id. Once the defendant does so, the inference of discrimination created by the prima facie case disappears, and the ultimate question becomes whether the protected conduct was the "but for" cause of the adverse employment action. Id.
"While this portion of the analysis may seem identical to the `casual link' step in the prima facie case, the burden here is more stringent." Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 685 (5th Cir. 2001).
1. Adverse Employment Action
Safesite first contends that Matheny cannot establish a prima facie case of retaliation because there was no adverse employment action. The court assumes that Safesite refers to Matheny's contention that her employment benefits were reduced, as it is obvious that her termination constitutes an adverse employment action. Matheny identified the following employment benefits as being affected because of retaliation: (1) her leads on potential clients were assigned to another salesperson; (2) she was excluded from sales meetings; (3) she was forced to work from the office instead of her home; (4) LaPierre refused to communicate with her in the same manner in which he communicated with other sales personnel; (5) she was falsely accused of inflating her expense reports; and (6) her accounts with existing clients were assigned to other salespersons. Def. App. at Matheny Depo. Ex. 4 (EEOC Charge of Discrimination, dated December 18, 2000).
The Fifth Circuit has stated that "Title VII was designed to address ultimate employment decisions." Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). Not every decision made by an employer qualifies as an adverse employment action. Id. "`Ultimate employment decisions' include acts `such as hiring, granting leave, discharging, promoting, and compensating'" an employee. Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) (quoting Dollis, 77 F.3d at 782). By contrast, "interlocutory or mediate decision[s]" which may ultimately lead to an ultimate employment decision are insufficient to establish a prima facie case of retaliation. Fierros v. Texas Dep't of Health, 274 F.3d 187, 191 (5th Cir. 2001). To hold otherwise would expand the definition of adverse employment action to include actions which have only a tangential effect on the conditions of employment. Mattern, 104 F.3d at 708.
Assuming it is true that Matheny was excluded from sales meetings; that she was forced to work from the office instead of her home; that she was falsely accused of inflating her expense reports; that LaPierre refused to communicate with her in the same manner in which he communicated with other sales personnel; and that her leads on potential clients were assigned to other sales personnel, there is no competent summary judgment evidence that these alleged actions adversely affected her pay, benefits, or level of responsibility. The court therefore determines that these alleged actions do not constitute adverse employment actions. See Watts, 170 F.3d at 511 (explaining that ultimate employment decisions require a change in compensation, benefits, or responsibilities).
With respect to her contention that her accounts with existing clients were assigned to other sales personnel, Safesite does not address this contention in its motion for summary judgment. In her Complaint, Matheny states that Safesite's alleged retaliation "tangibly reduced [her] employment benefits and compensation" and ultimately resulted in her termination. Compl. at 13, ¶ 44. Matheny testified at her deposition that she could receive commissions off of existing accounts if those accounts stored more boxes than the amount provided for in the contract. In other words, if the amount of storage fees paid to Safesite by an existing account increased, Matheny would receive a commission on that increase. Her contention that her existing accounts were assigned to other sales personnel would thus qualify as an "employment benefit" as alleged in her Complaint. This issue, therefore, remains for trial, as Safesite's failed to move for summary judgment on this issue.
2. Pretext
With respect to her termination, Safesite does not contest the remaining elements of her prima facie case, and therefore, the court determines that Matheny has established a prima facie case. In other words, the court finds that Matheny engaged in protected activity; her termination occurred after her protected activity; and a causal link exists between her termination and her protected activity.
The temporal proximity between the protected activity and an adverse employment action can establish a causal link. See Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001). Here, Matheny was terminated approximately nine months after her first complaint and only three months after filing her second EEOC charge. Three months is sufficient to establish a causal link. See id. at 354 (The Evans court noted that retaliatory conduct occurring four months after the protected activity could create an inference of a causal connection.); see also Shirley v. Chrysler First, Inc., 970 F.2d 39, 43 (5th Cir. 1992) (The Fifth Circuit held that the passage of fourteen months between the protected activity and the alleged retaliatory conduct is not "legally conclusive proof against retaliation."). For these reasons, the court finds that Matheny has established a causal link sufficient for her prima facie case.
The burden then shifts to Safesite to articulate a legitimate, nonretaliatory reason for terminating Matheny. Safesite contends that Matheny was terminated for insubordination and disruptive behavior. Therefore, Safesite has satisfied its burden of articulating a legitimate, nonretaliatory reason for Matheny's termination.
Finally, the burden shifts to Matheny to establish, or raise a genuine issue of material fact, that Safesite's articulated reason was merely pretext for retaliation. Safesite contends that Matheny has not carried this burden. The court agrees. To the extent that Matheny is relying on the timing of her termination, timing alone is insufficient to establish the ultimate issue of unlawful retaliation. Although the temporal proximity between a protected activity and an adverse employment action may establish a causal connection for purposes of a prima facie case, at this stage of her retaliation case, Matheny must establish that "but for" her complaints and EEOC charges, she would not have been terminated. See Long v. Eastfield Coll., 88 F.3d 300, 308 (5th Cir. 1996). She may do so by showing that the legitimate, nonretaliatory reason articulated by Safesite is pretextual. See Evans, 246 F.3d at 355. Matheny presents no competent summary judgment evidence to establish or create a genuine issue of material fact regarding pretext. To the contrary, Matheny admitted that she believed that she was terminated because she called Dalton Wallace and accused LaPierre of being involved in a hit-and-run accident in a company van. Def. App. at Matheny Depo. (206-07:25-4). Matheny, therefore, has failed to establish, or raise a genuine issue of material fact, that Safesite's articulated reason for her termination was merely pretext for retaliation. Accordingly, Safesite is entitled to summary judgment on Matheny's retaliation claim based on her termination.
Matheny relies on the Declaration of Christa Webb ("Webb") to support her contention that Safesite's legitimate, nonretaliatory reason for her termination is pretext. Specifically, Webb states that she "definitely believe[s] [that Matheny] was fired as retaliation for filing the sexual harassment complaint." Pl. App. Ex. 2, p. 2 (Webb's Decl.). This is nothing more than a subjective belief or speculation on Webb's part. Although Safesite did not object to Webb's declaration, the court will not rely on unsupported speculation. See Forsyth, 19 F.3d at 1533.
IV. Conclusion
For the above stated reasons, no genuine issues of material fact exist with respect to Plaintiff's quid pro quo sexual harassment claim and Plaintiff's retaliation claim based on her termination. Safesite is therefore entitled to judgment as a matter of law on these claims. Genuine issues of material fact do, however, exist with respect to Plaintiff's hostile work environment claim and her retaliation claim based on her existing clients being reassigned to other sales personnel. Thus, Safesite is not entitled to judgment as a matter of law on these claims. Accordingly, the court grants in part and denies in part Defendant's Motion for Summary as herein stated. Plaintiff's claim of a sexual harassment based on a hostile work environment and Plaintiff's claim of retaliation based on the reassignment of her existing clients remain for trial.
It is so ordered.