Opinion
Civil Action No. 3:99-CV-1327-P.
June 28, 2000.
MEMORANDUM OPINION AND ORDER
Now before the Court is Defendant's Amended Motion for Summary Judgment, filed March 28, 2000, and Plaintiff's Response, filed April 28, 2000. For the reasons set forth below, the Court concludes that Defendant's Motion for Summary Judgment should be GRANTED as to all of Plaintiff's claims.
I. BACKGROUND
This case arises from three claims premised on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., wherein Plaintiff Marcy Mernik ("Mernik") alleges termination from her employment because of her gender, sexual harassment, and retaliation. ( See Complaint at 1-6). The Defendant in the lawsuit is Classic Cars, Inc., d/b/a Classic BMW ("Classic"), a Dallas-based automobile dealership that was Mernik's former employer. ( See id.).
The following are the relevant facts of the case, which are essentially undisputed. Mernik was hired by Classic on August 1, 1994 to serve as Assistant Finance Manager in Classic's Finance Department. ( See Pl. Br. at 2; Def. Br. at 1). After a brief stint in the New Car Sales Department, Mernik returned to the Finance Department as an Assistant Manager. ( See Pl. Br. at 2; Def Br. at 1). Mernik's employment was terminated on February 27, 1998, a move that Mernik attributes to gender discrimination and a continuation of disparate treatment that she endured while at Classic. ( See Mernik Aff. at 5-6; Def. Br. at 1). Classic, however, justifies the termination on grounds of Mernik's repeated tardiness and insubordination, and asserts that Mernik was treated no more or less favorably than any other Classic employee. ( See Mernik Aff. at 6; Def Br. at 1; Lee Maas Dep. at 22). Both successors to Mernik's position have been men. ( See Eric Maas Dep. at 23).
Although in dispute, the Court will assume for the purposes of this Order that Mernik held the position of Assistant Manager. This is consistent with her affidavit, which in pertinent part reads: "Craig Campbell, who was then working as Assistant Pre-Owned Sales Manager, which was on the same level as my position, . . ." ( See Merkin Aff. at 4, emphasis added). Merkin here equated her position with that of an assistant, despite the title of "Finance Manager" on her business card. This conclusion coincides with John Meade's explanation that the business card title was for the benefit of ensuring credibility with the customers. ( See Meade Dep. at 51). Ultimately, though, this point is moot because Mernik admits "that John Meade was still [her] supervisor." (Mernik Aff. at 4).
Plaintiff also alleges that during her tenure at Classic, she was exposed to sexual harassment. ( See Pl. Br. at 2-5). Moreover, Mernik contends that she was terminated after complaining about unequal treatment and discrimination, thus constituting illegal retaliation. (See Pl. Br. at 22-24).
Nevertheless, Merkin concedes a number of Classic's stated justifications for firing her. For instance, it is undisputed that she was disciplined, both verbally and in writing, for her repeated tardiness. ( See Def. App. at 2-7). Putting aside mere allegations, Mernik is unable to produce evidence that any other employee possessed an even similarly spotted employment record.
After filing an EEOC Complaint and being granted the right to sue, Mernik initiated the present action. Classic now moves for summary judgment, arguing that Mernik cannot prove the essential elements of her claims, and that Classic is entitled to judgment as a matter of law.
II. SUMMARY JUDGMENT STANDARD
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. See 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. See 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. See Celotex, 477 U.S. at 323.
Once the moving party has made an initial showing, the opposing party must offer evidence sufficient to show the existence of the required elements of the party's case. See 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. See 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 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). 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. See 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. MERNIK'S GENDER DISCRIMINATION CLAIM UNDER TITLE VII
A. Legal Standard under Title VII
Title VII of 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 [her] . . . sex." 42 U.S.C. § 2000e-2 (a)(1). The Supreme Court originally set out the framework for analyzing Title VII employment discrimination claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), and elaborated upon this framework in St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Under the McDonnell Douglas/St. Mary's scheme, Merkin must first establish a prima facie case of discrimination. See St. Mary's, 509 U.S. at 506. Such a prima facie case is established if Mernik provides evidence that she (1) was a member of a protected group, female; (2) was qualified for her position; (3) suffered an adverse employment action, and (4) was replaced by a similarly qualified male employee. See Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997).
If Mernik establishes a prima facie case, she will have raised a rebuttable presumption of discrimination and shifted the burden to Classic to articulate a legitimate, non-discriminatory reason for her termination. See St. Mary's, 509 U.S. at 506. If Classic satisfies this burden of production, Mernik must present evidence that Classic's proffered reason is actually a pretext for discrimination and that her termination was in fact informed by discriminatory motives. See id. at 507; Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-55 (1981). Thus, Classic's successful rebuttal requires Mernik to present more specific evidence supporting her allegation of discriminatory intent. See Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir. 1996).
Mernik can avoid summary judgment if the evidence, taken as a whole, (1) creates a fact issue as to whether Classic's stated reason was what actually motivated the termination, and (2) creates a reasonable inference that her gender was a determinative factor in the firing. See, e.g., Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996) (en banc). The ultimate burden of persuasion at trial, of course, rests squarely upon Mernik. St. Mary's, 509 U.S. at 508; Marcantel v. Louisiana Dep't of Transp. Dev., 37 F.3d 197, 200 (5th Cir. 1994).
B. Application of Title VII Legal Standard for Gender Discrimination to the Facts
Classic attacks Mernik's gender discrimination claim on two grounds. First, it asserts that Mernik failed to establish a prima facie case. Second, Classic contends that it has offered a legitimate, non-discriminatory reason for firing Merkin, and that there is no evidence supporting Mernik's allegation that this stated reason is a pretext for unlawful discrimination. Accordingly, Classic claims that it is entitled to judgment as a matter of law. The Court considers each argument in turn.
1. Mernik's Prima Facie Case a. First three elements conceded
Classic has effectively conceded the first three elements of Mernik's prima facie case — it admits that Mernik (1) is a member of a protected class, female; (2) was qualified for her position in the Finance Department; and (3) suffered an adverse employment decision, namely termination. (See Motion at 3). Classic focuses upon the final element of Mernik's prima facie case, arguing that Mernik "cannot identify any similarly situated male employee who received greater benefits, was subject to less onerous standards, or was not terminated following three written warnings for tardiness and one employee evaluation citing tardiness." (Id).
b. The fourth element of the prima facie case
Mernik alleges that she was replaced by a male, and that this fact alone satisfies the fourth element of her prima facie gender discrimination case. ( See Pl. Br. at 16). Indeed, the successors to Mernik's position of Assistant Manager have been male, ( See Eric Maas Dep. at 24). However, without more, this is an insufficient assertion as to the fourth element, as the male must be "similarly situated" in order to create a presumption of unlawful discrimination. See Ward, 102 F.3d at 202.
As explained below in reference to Classic's non-discriminatory reason ( see Section III(B)(2)), Mernik has failed to show that the two men who replaced her have similarly spotted records with respect to tardiness and insubordination. Mernik cannot prevent summary judgment without this probative evidence. See Anderson, 477 U.S. at 256-57. To the extent that Mernik alleges disparate treatment at Classic, her claim also fails.
Plaintiff alleges various incidents of disparate treatment, all of which the Court rejects. Although all of the incidents are not laid out in Plaintiff's brief, the Court ascertains the following incidents and comments on each:
(a) John Bott: When Mernik transferred to Sales, Mr. Bott assumed the position of Finance Manager despite the fact that Mernik was Assistant Manager; when Mernik returned, she resumed the position of Assistant. ( See Pl. Br. at 6-7). Bott had a higher position and higher rate of pay. ( See id.). Justifying the distinction, Classic explains that Mr. Bott "was "very talented" and held two other Finance Manager positions after leaving Classic. ( See Eric Maas Dep. at 33). Mernik, on the other hand, admitted that she had never held a management position before. ( See Mernik Dep. at 46).
(b) Time Clock: Mernik believed that she was being discriminated against on the basis of gender because as Assistant Manager, she had to punch-in on a daily basis. (See Merkin Aff. at 4). This allegation is grounded on her observation that a newly-hired Assistant Manager, Craig Campbell, did not have to punch the time clock. ( See id.). Classic offered proof that the Craig Campbell situation was an oversight that was rectified when the matter was brought to Classic's attention. ( See Lee Maas Dep. at 24; Eric Maas Dep. at 37). Furthermore, the owner of Classic testified that all assistant managers had to punch a time card, regardless of gender. ( See Lee Maas Dep. at 42). This is consistent with Classic's employee manual, which requires that non-management employees punch a clock. ( See Pl. App. at 14).
(c) Paychecks: Mernik complained that due to her gender, she was not permitted directly to receive her paycheck in a sealed envelope, but rather, it first went to her manager. Nevertheless, such is the practice at Classic: "all our managers receive the paychecks, and all of our managers distribute the paychecks . . . to their staff. She wasn't treated any different than anybody else." (Lee Maas Dep. at 22).
In that these issues are not especially well briefed by Mernik, the Court has struggled to locate the arguments and craft a response. Any other issues either lack merit or are hidden or omitted within Mernik's brief and/or appendix. The Court does not see that these complaints rise to the level of a Title VII violation for disparate treatment. Because these claims are not supported by probative evidence — and run counter to specific evidence in the record — they are rejected. See Anderson, 477 U.S. at 256-57. In addition, the names of other Classic employees that Mernik lists as being held to a different standard (including another woman) are likewise mere allegations wholly unsupported by probative evidence, and are thus rejected. ( See Mernik Aff. at 5; Anderson 477 U.S. at 256-57).
The Court acknowledges that only a "very minimal showing" is required for Mernik to satisfy the elements of her prima facie case. See Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996). Nevertheless, a missing prima facie element is fatal to Mernik's claim. Because Mernik has not made the requisite showing, summary judgment is granted on her gender discrimination claim.
2. Classic's Non-Discriminatory Reason
Because Merkin cannot establish the fourth prima facie element, it is unnecessary to analyze Classic's non-discriminatory reason for Merkin's termination. However, assuming that Mernik could satisfy the fourth element, the burden of production would shift to Classic to articulate a legitimate, non-discriminatory reason for terminating Mernik's employment. St. Mary's, 509 U.S. at 506.
Classic asserts that it fired Merkin due to her repeated tardiness and insubordination. ( See Def. Br. at 10-11). It is undisputed and well-documented that Mernik received warnings and was orally reprimanded for tardiness. ( See Def. App. at 2-7; Meade Dep. at 42-43). The Court finds that Classic has articulated a legitimate, non-discriminatory reason for terminating Mernik's employment.
a. Mernik's history of tardiness
Classic's employee manual states that Classic expects employees to "arrive at their departments and begin work on time." ( See Pl. App. at 12). The record contains three warnings and one employee evaluation pertaining to Merkin's violations for tardiness. ( See Def. App. at 2-7). On one employee warning for tardiness dated January 2, 1996, Mernik wrote in response: "I was 9 minutes late this morning because I fell back to sleep and slept thru [sic] the snooze when it went off the second time. My 1st New Year's resolution is to get up earlier every morning to eliminate tardiness." (Def. App. at 2). Mernik's words indicate a history of late arrivals that was not documented in her file, thus substantiating previous oral reprimands.
Mernik's employee evaluation noted that "Cooperation/attitude/initiative . . . will improve with punctuality." (Def. App. at 6). This form cites her tardiness as a reason for her "below standard" ratings on work performance and productivity and indicates that this work ethic could lead to termination. ( See id. at 6-7). According to Classic's employee manual, this evaluation "put [Mernik] on notice . . . that immediate improvement [was] needed." (See Pl. App. at 14).
Mernik, however, insists that she was a good employee and that her termination was not warranted. ( See Pl. Br. at 14). Merkin makes reference to an "anniversary" card and an e-mail from Eric Maas, which express satisfaction with Mernik's job performance. ( See Mernik Aff. at 5; Pl. App. at 24-26). J.T. Bryant also indicated that he would provide Mernik with a good reference for potential future employers. (See Bryant Dep. at 80). The Court acknowledges that this evidence is indicative of adequate performance while at work. Nevertheless, these positive remarks do not negate the negative, and well-documented, aspects of Mernik's employment. It was precisely her tardiness and overall lack of punctuality which concerned Classic management. ( See, e.g. Def. App. at 2-7). Classic can fire Mernik for tardiness even if she performed well in other areas of her job, and this Court may not second-guess valid personnel decisions undertaken by an employer. See Walton v. Bisco Indus., Inc., 119 F.3d 368, 372 (5th Cir. 1997).
b. Mernik's extended lunches
Mernik concedes that she took extended lunch breaks from February 24 through February 26, 1998 due to illness. ( See Mernik Aff. at 5). On February 26, Classic issued Merkin a written warning for having taken these lunches, and in turn, Mernik complained of not being treated equally. ( See id.; Def. App. at 4-5). Surprisingly, Mernik does not refer to her illness as a justification for the longer lunch until the next morning in an e-mail to management. ( See Mernik Aff. at 6; Pl. App. at 28). Thus, Classic management did not learn of Merkin's illness until after three days of extended lunches. This is significant because Classic's employee manual states: "[n]o matter the circumstance, the employee must notify [her] supervisor and explain the reason for absence or tardiness. Failure to notify your supervisor could result in disciplinary action." ( See Pl. App. at 15).
On February 27, 1998, Mernik sent the aforementioned e-mail explaining her illness at 8:22 a.m. ( See Pl. App. at 28). Mernik explains that "[l]ater that day" she was called into John Meade's office and asked to resign. ( See Merkin Aff. at 6). What happened between 8:22 a.m. and "later that day" is omitted from Mernik's account. ( See id). While J.T. Bryant testified that Mernik took a three hour-long lunch the day she was terminated ( see Bryant Dep. at 92), Mernik generically claims that she never took a break longer than one and one-half hours. ( See Mernik Aff. at 5). In that Mernik does not contest taking an extended lunch on February 27, 1998, the Court assumes that she took another extended lunch, less than one and one-half hours, as she had for the previous three days. This final lunch break was in direct contravention of the written warning that Mernik received the previous day, rising to the level of insubordination cited by Classic. ( See, e.g. Merkin Aff. at 6; Meade Dep. at 42; Bryant Dep. at 92-96 (Mernik's lunch schedule had gotten "out of hand.")). Merkin was terminated that afternoon between 4:30 and 5:00 p.m. ( See Bryant Dep. at 93).
c. Tardiness and insubordination may lead to termination
Classic's employee manual states that employees must be punctual. ( See Pl. App. at 12). Mernik questioned this policy on her February 26, 1998 tardiness warning, demanding to know why she was being treated unequally. ( See Def. App. at 4-5; Mernik Aff. at 5). As stated above, Mernik took another extended break on February 27, 1998, the day after her written warning for the same violation. This is insubordination, which is also prohibited by Classic. ( See Pl. App. at 16). Violations of chronic tardiness and insubordination may warrant termination. ( See id.).
Read in the light most favorable to Mernik, the warnings and evaluations are dispositive evidence indicating that her job performance was substantially lower than that of her colleagues and successors. The Fifth Circuit does not question the validity of an employer's good faith belief as to the competence of another employee — "discrimination laws [are not] vehicles for judicial second guessing of business decisions." Deines v. Texas Dep't of Protective and Regulatory Servs., 164 F.3d 277, 281 (5th Cir. 1999) (internal citations omitted). Furthermore, Mernik has failed to produce any evidence that Classic has tolerated such degrees of tardiness with any other Classic employee, especially other males situated similarly to Mernik.
3. Mernik's Claim that the Reason is Mere Pretext
Under the McDonnell Douglas/St. Mary's framework, the burden now shifts to Mernik to demonstrate that Classic's proffered reason is actually a pretext for unlawful discrimination. Mernik may show either that Classic's proffered reason for the firing is incredible, or that the termination was more likely motivated by discriminatory reasons. See Burdine, 450 U.S. at 256. To establish pretext, it is insufficient for Mernik, without more, to rely on her subjective belief that discrimination occurred, See Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539, 555 (5th Cir. 1997).
Mernik essentially proffers three examples as demonstrative of pretext, none of which overcomes the stated reason that Mernik was fired because of her tardiness and insubordination. Mernik fails to show either that Classic's reasons for firing her are unworthy of credence, or that her gender motivated the termination. Simply put, Mernik is unable to refute the undisputed evidence that clearly documents her history of tardiness and insubordination.
Contrauy to Mernik's assertion, this evidence is set forth in the Appendix to Classic's Brief. ( See Pl. Br. at 18; Def. App. at 2-7).
Merkin's first allegation of pretext is that Classic management cites conflicting reasons for her termination. ( See Pl. Br. at 18). As a matter of common sense, it is evident that each manager's given reasons for flung Mernik are not "shifting" or contradictory, but rather, a general dissatisfaction with Mernik's ability to follow the orders and expectations of her supervisors.
Plaintiff takes many of the cited comments out of context. ( See Pl. Br. at 18). Eric Maas' comment that Mernik "was terminated because she no longer wanted to work for John Meade, "was clarified by the comment that "she directly disobeyed [John Meade's] orders." ( See Eric Maas Dep. at 24). Moreover, Eric Maas was aware of Meade's complaints that Mernik could not follow orders. ( See id. at 27). Lee Maas' comments regarding Mernik's termination coincide with the general theme that Mernik had "gotten confrontational, that it was affecting her job and that John couldn't handle it . . . with the way that she was acting." (Lee Maas Dep. at 9-10).
Second, Merkin notes that only two women have worked under John Meade and that each was removed due to concerns that they could not handle the job. ( See Pl. Br. at 18). Also, Mernik accuses Meade of saying that he "would never hire another woman in management again." (Mernik Aff. at 6). Mernik, though, has altogether failed to offer evidence to support the allegation that the other woman's termination was motivated by gender. Moreover, Mernik has failed to show that her termination was motivated by gender, rather than by the well-documented evidence of her excessive tardiness. It is noteworthy that after Mernik's transfer out of the Finance Department, she was transferred back in four months later — during each stint with the Finance Department, Mernik reported to Meade. ( See Mernik Aff. at 4). To some extent, this refutes Merkin's argument that Classic, and particularly Meade, did not want a woman in the Finance Department. See Taylor v. Virginia Union Univ., 193 F.3d 219, 231 (4th Cir. 1999) ("[that] the employee was hired and fired by the same person . . . creates a strong inference that the employer's stated reason for acting against the employee is not pretextual. . . . [E]mployers who knowingly hire workers within a protected group seldom will be credible targets for charges of pretextual firing.") (internal citations omitted).
Finally, Mernik asserts that several employees at Merkin's level were treated more favorably with regard to privileges and less disciplinary action for the same offenses. ( See Pl. Br. at 18). Once again, though, Mernik's allegations are unsupported by evidence. See Anderson, 477 U.S. at 256-57.
These examples offered by Mernik do not rise to the level of demonstrating discriminatory pretext. Merkin was unable to adhere to the policies set forth in the employee manual that she signed. When a manager has an employee who cannot follow the guidelines, the manager is entitled to rectify the situation. Discrimination laws are not vehicles for judicial second-guessing of business decisions. See Walton, 119 F.3d at 372. In short, Mernik has failed to offer either summary judgment evidence suggesting that Classic's proffered reasons for terminating her are false, or suggesting that gender-based animus motivated her termination. See id. at 370. Mernik's evidence, even if believed, does not demonstrate that she was treated differently from others similarly situated at Classic, and therefore does not support an inference of impermissible gender discrimination. See id. at 372.
After considering all of the facts and the relevant case law, this Court must agree with Classic that pretext cannot be shown, and as such, Classic is entitled to judgment as a matter of law with respect to Mernik's claim for gender discrimination.
IV. MERNIK'S SEXUAL HARASSMENT CLAIM UNDER TITLE VII
In her brief; Mernik recites an extensive list of "harassing" activity that occurred during her employment with Classic. ( See Pl. Br. at 2-5). Mernik kept record of these instances by jotting them down as they occurred. ( See Mernik Dep. at 69-70). The Court considers whether the alleged incidents of sexual harassment rise to a Title VII violation.
The Court discards Classic's argument that by virtue of Mernik's past employment as a topless dancer and Hooters waitress, that she is immune or less perceptive to sexual harassment. ( See Def. Br. at 16-17). Classic states that Mernik was not an "average female employee" and that she "was not a sheltered, protected, unworldly child from whom one might expect [a] high level of sensitivity." ( See id. at 17). This argument is unfounded, both logically and legally. The standard involves a reasonable person's reaction to the scenario considering all the circumstances. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998) ("inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target").
A. Legal Standard under Title VII
Title VII provides a cause of action for individuals subjected to a sexually hostile or abusive work environment. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-67 (1986). Ordinarily, a plaintiff must establish five elements to set forth a hostile environment claim: (1) 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 the employer, knew or should have known of the harassment and failed to take prompt remedial action. See Jones v. Flagship Int'l, 793 F.2d 714, 719-20 (5th Cir. 1986); Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999).
For harassment to affect a "term, condition or privilege" of employment, the workplace must be "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (internal citations omitted); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998). Whether workplace harassment is abusive is determined by looking at all the circumstances, including frequency, severity, and whether it reasonably interferes with an employee's performance. See Harris, 510 U.s. at 21-23.
The Jones test outlined above still applies when an employee complains of co-worker sexual harassment. See Watts, 170 F.3d at 509 n. 4. However, in two recent opinions delivered on the same day, the Supreme Court altered this analysis when the employee complains of supervisor harassment. See 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 or successive authority over the employee need only satisfy the first four elements of this test. See Watts, 170 F.3d at 509. 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. 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. See id. The affirmative defense consists of two prongs: "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) 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 culminated in a tangible employment action, then the employer is not entitled to raise the affirmative defense. See id.
The Fifth Circuit also provided recent guidance in the application of the Ellerth/Faragher test. See Casiano v. ATT Corp., ___ F.3d.___: No. 99-50992, 2000 WL 679781 (5th Cir. June 12, 2000). In accordance with the "Supervisor Sexual Harassment Roadmap" attached as an Appendix to Casiano, the Court must first ask whether the complaining employee suffered a "tangible employment action." Id at *4 If the answer is "yes," the Court classifies the suit as "quid pro quo" and then analyzes whether the tangible employment action resulted from the employee's acceptance or rejection of the supervisor's alleged sexual harassment. See id.
Without a tangible employment action, the suit is a "hostile environment" case, which, to be actionable, requires the supervisor's actions to be severe and pervasive. See id. This requirement ensures that Title VII does not become a general civility code by "filter[ing] out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing." See Faragher, 524 U.S. at 788 (internal citations omitted). After the court determines that the claim is actionable, the employer may raise the Ellerth/Faragher affirmative defense. See Casiano, 2000 WL 679781 at *4-5; Ellerth, 524 U.S. at 765 (1998).
B. Application of Legal Standard for Co-Worker Sexual Harassment to the Facts
The Court first addresses the sole instance of co-worker sexual harassment alleged by Mernik. On January 28, 1998, Merkin found an obscene cartoon while at work, made a photocopy, and submitted it to Eric Maas. ( See Mernik Dep. at 113). The cartoon portrays two fully-dressed individuals (a couple) where the man discovers that his female companion is actually a transvestite. ( See Pl. App. at 27). Each cartoon figure, although dressed, is visibly aroused. ( See id).
This cartoon is not actionable under Title VII. See Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309, n. 4 (5th Cir. 1987), citing Rabidue v. Osceola Ref Co., 805 F.2d 611, 615 (6th Cir. 1986) (employee's display of nude photographs at work not actionable). This cartoon does not depict demoralizing sexual activity; it was intended as humorous and was not intended for Mernik. The Court views the cartoon as a joke, which, while in bad taste and not particularly funny, is unextreme and thus not actionable. See Faragher, 524 U.S. at 788; Cowan v. Prudential Ins. Co. of Am., 141 F.3d 751, 758 (7th Cir. 1998) (circulation of sexually offensive cartoon not actionable). In sum, the cartoon was not sufficiently severe so as to alter Mernik's working environment.
It is undisputed that the cartoon was never intended for Mernik's eyes. Indeed, Mernik found the cartoon inside a key box in another employee's office. ( See Mernik Aff. at 5; Mernik Dep. at 114; Lee Maas Dep. at 20-21).
Even assuming that the cartoon is actionable, because the cartoon was distributed by a coworker, Mernik cannot prevail without additionally showing that Classic failed to take prompt, remedial action in response to her allegations. See Ward, 102 F.3d at 202; Watts, 170 F.3d at 509 n. 3. After Mernik complained to Eric Maas, he approved of her removal of the cartoon from the workplace and told Mernik that he would talk to someone about it. (See Mernik Aff. at 5). Mernik admits that Eric Maas looked into the matter: "The salesmen [responsible for the cartoon] told me that [the cartoon] was brought up in a meeting." ( See Mernik Dep. at 114). This evidence, conceded by Mernik, demonstrates that Classic reasonably responded to Mernik's allegation and remedied the problem. Nothing in the record suggests that the cartoon continued to be displayed or circulated. Thus, even if the cartoon were actionable, Classic would be relieved of any vicarious liability.
C. Application of Legal Standard for Supervisor Sexual Harassment to the Facts
As outlined in Casiano, the Court first asks whether Mernik suffered a tangible employment action. Casiano, 2000 WL 679781 at *5 Tangible employment actions consist of "hiring, flung, 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 are held responsible when a supervisor makes a discriminatory discharge, whether or not the employer knew, should have known, or approved of supervisor's actions. Faragher, 775 U.S. at 790. Two theories support vicarious liability on the employer for such discriminatory actions taken by a supervisor. The first involves a proxy theory: when a supervisor makes decisions affecting tangible employment benefits, his acts become that of the employer. See id.; 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. See 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. Thus, the Court must first determine whether the alleged harassment culminated in a tangible employment action against Mernik.
1. Tangible Employment Action
After allegedly enduring harassment perpetrated by Bob Mullins, Lee Maas, and J.T. Bryant over the course of three and one-half years, Mernik was fired by John Meade and Bryant on February 27, 1998. (See Pl. Br. at 2-5; Mernik Aff. at 6). It is reasonable to conclude that Mullins, Maas, and Bryant could have controlled or participated in the decision to fire Mernik. Thus, the Court finds that Mernik suffered a tangible employment decision.
The Court views these Classic employees as Mernik's supervisors, as all three had immediate or successively higher authority over Mernik. Meade was Merkin's immediate supervisor, although Mernik does not claim that Meade was involved in the harassment. ( See Mernik Aff. at 4). As for the three alleged harassers, Mullins is Classic's General Manager, Lee Maas is the owner, and J.T. Bryant is the New Car Sales Manager and acted as Mernik's supervisor during her stint in Sales. ( See Pl. Br. at 34). In addition, Bryant took part in Mernik's firing. ( See Merkin Aff. at 6). It is evident that all three of these individuals could have impacted the decision to fire Mernik because of their respective positions on Classic's managerial hierarchy and Bryant's presence in the room when she was fired.
2. Quid Pro Quo
Assuming that Mernik suffered a tangible employment action, the Court asks whether the termination resulted from her acceptance or rejection of the harassment. See Casiano, 2000 WL 679781 at * 4. Mernik does not argue that her acceptance or rejection of the alleged harassment caused her termination. ( See Pl. Br. at 19-22). Thus, because Mernik has failed to identify any evidence in the record that would support a claim for quid pro quo harassment, summary judgment is appropriate. See Celotex, 477 U.S. at 322-23. Even if the Court looked past this lack of evidence, Merkin has not overcome the undisputed evidence that clearly documents her history of tardiness and insubordination. ( See Section III(B)(2)). As such, the Court grants summary judgment with regard to any quid pro quo claim for sexual harassment.
3. Hostile Environment
Because Mernik does not claim that the alleged harassment gave rise to a tangible employment action, but rather that she was subjected to harassment that "was sufficiently severe and pervasive so as to alter the conditions of her work environment," the Court will also examine her claims as if there were no tangible employment action. ( See Pl. Br. at 19-22). Mernik does not allege that any Classic supervisor conditioned any job benefit on her submission to the harassment. ( See Mernik Aff. at 2-4; Pl. Br. at 3-5). Mernik only claims that the conduct offended her, interfered with her work performance, and gave her stress headaches. ( See Mernik Aff. at 6), Mernik has failed to show any evidence of Classic supervisors affecting a tangible employment condition or benefit. Thus, the first question on the Casiano road map could be answered "no" — Mernik did not suffer a tangible employment action. The Court thus analyzes whether the Classic supervisors' actions were sufficiently severe or pervasive so as to constitute an actionable hostile work environment claim.
a. Incidents between August 1994 and November 1995
Bryant allegedly made the following remarks to Mernik between August 1994 and November 1995: "Why are you holding your breasts?"; "You've got an ass on you."; "You don't have to worry about breast cancer. You have no breasts."; "Maybe you're making him something else. Ooh you're a bad girl Marcy."; and an additional comment that Mernik was having a sexual relationship with Meade. ( See Pl. Br. at 3). In addition, Bob Mullins, the General Manager, allegedly said about Mernik's outfit that, "it's more than just my favorite color, it really turns me on." (See Pl. Br. at 3-4).
While inappropriate and unprofessional, Bryant's and Mullins' alleged comments amount to attempts at humor, flirtation, sexual innuendo, and insult — none of which are actionable under Title VII. See McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 564 (5th Cir. 1998); Faragher, 524 U.S. at 788; Pryor v. Seyforth, Shaw Fairweather Geraldson, ___ F.3d. ___; No. 99-2280, 2000 WL 568330, *1 (7th Cir. May 11, 2000) (suggestive comments made by employer requesting to see plaintiff in lingerie not actionable); Valdez v. Church's Fried Chicken, Inc., 683 F. Supp. 596, 620 (W.D. Tex. 1988) (flirting, casual touching, and sexual innuendos and jokes not actionable).
Bryant's other comment regarding Mernik having an affair with John Meade likewise is not actionable. See Gearhart v. Eye Care Ctrs. of Am., 888 F. Supp. 814, 824-25 (S.D. Tex. 1995) (remark that plaintiff would be promoted if she slept with the boss not actionable). These complaints extend beyond Title VII's scope, as the disputed remarks are "insufficiently severe to change the conditions of [Mernik's] employment as they would be perceived by a reasonable person." Pryor, 2000 WL 568330 at * 1. The incidents from this time period do not constitute sexual harassment.
Moreover, even if this alleged activity were severe or pervasive enough to constitute a Title VII violation, Classic would be entitled to establish the Ellerth/Faragher affirmative defense. See Casiano, 2000 WL 679781 at *4 Merkin alleges to have endured harassment at Classic, but admits that she did not report many of the instances to management. ( See Pl. Br. at 2-5; Merkin Dep. at 74). In response to the comments during this time frame, Mernik only generically complained to Classic management "about J.T. [Bryant] and the way that he spoke to me, but I don't remember if I specifically mentioned any of those comments." (Mernik Dep. at 75-76). What Mernik did mention to management was "[j]ust that [Bryant] was crude and vulgar." (Id. at 76). The Fifth Circuit has held, however, that an employee's exposure to a rude and offensive colleague is insufficient as a matter of law to support a claim of sexual harassment. See McConathy, 131 F.3d at 563-64.
Mernik apparently did not consider the Bryant comments (or the other unreported incidents) severe enough and thus did not take full advantage of Classic's "No Harassment Policy/Procedure." Mernik concedes familiarity with the policy, yet, in many instances failed to avail herself of the procedure. (See Mernik Dep. at 74-76; Pl. Br. at 2-5). Mernik's failure to indicate to Classic management in more precise terms the problems that she was experiencing precluded Classic from being able to remedy and prevent the harassing behavior. This satisfies the two prongs of the Ellerth/Faragher affirmative defense, thus relieving Classic of vicarious liability for the alleged sexual harassment committed by its supervisors. See Casiano, 2000 WL 679781 at *7.
The policy states in pertinent part that Classic "will not tolerate harassment . . . relating to an individual's sex." (Pl. App. at 23). The policy calls for a victim of harassment to "make your feelings known to your manager/supervisor immediately. . . . Do not assume that the company is aware of your problem. It is your responsibility to bring your complaints and concerns to our attention so that we can help resolve them." ( See Pl. App. at 23).
b. Incidents between November 1995 and March 1996
The disputed activity between November 1995 and March 1996 include the following comments, all made by J.T. Bryant: while following Mernik toward the bathroom, "Do you want some help?"; "You can French kiss me tomorrow."; while pointing to a scantily-clad woman in a magazine, "Look it's you, Marcy."; and Bryant's accusing Mernik of "liking" Eric Maas and "playing with Eric" in the office. (See Pl. Br. at 4). The Court is unwilling to view these comments as actionable, as they are even less offensive than those discussed above. The comments can all be objectively classified as innocuous gender-related jokes, flirtations, and/or teasing — none of which is actionable under Title VII. See, e.g. Faragher, 524 U.S. at 788.
Moreover, as discussed above, even if this behavior were severe and pervasive, it also went unreported except to the extent that Merkin complained of Bryant as being "crude and vulgar." ( See Mernik Dep. at 75-76). As discussed above, though, the Fifth Circuit does not consider crude and insensitive behavior to be actionable under Title VII. See, e.g. McConathy, 131 F.3d at 563-64. For the same reasons as discussed in the previous section, Classic would be able to establish both prongs of the Ellerth/Faragher affirmative defense. See Casiano, 2000 WL 679781 at *7.
c. Incidents between March 1996 and February 1998
Between March 1996 and February 1998, Mernik alleges three incidents, two of which are discussed here. First, Merkin overheard Bryant tell a colleague that he was going to "chew [another employee's] nuts off." (See Pl. Br. at 4-5). The Fifth Circuit does not consider such comments actionable: "[i]t is a simple fact that in a workplace, some workers will not get along with one another, and this Court will not elevate a few harsh words or "cold-shouldering' to the level of an actionable offense." McConathy, 131 F.3d at 564. Here, it is significant that Mernik simply overheard this comment and was not even the intended audience. ( See Mernik Dep. at 11). Moreover, this is just another crude comment out of Bryant's mouth. As discussed above, Title VII is not a remedy for crude remarks. See McConathy, 131 F.3d at 563-64.
The incident involving the "sexually explicit cartoon" is discussed above as it was allegedly distributed by the salesmen, who were Mernik's co-workers, as opposed to her supervisors.
The other incident during this period was Lee Maas' hand allegedly "brushing" Mernik's pelvic region while reaching for a stack of papers that Mernik herself placed on her lap. ( See Mernik Dep. at 112). The Fifth Circuit recently held that where a Plaintiff was intermittently subjected to the unwanted touching of her arm over a period of time, the incident was not severe enough to warrant actionable harassment. See Shepherd v. Comptroller of Pub. Accounts of Tex., 168 F.3d 871, 874 (5th Cir. 1999). Here, while Mernik thought that this touching was not accidental, there is nothing in the record to suggest that it was anything more — there was no proposition or indication that Lee Maas' "brush" foretold more activity. ( See Mernik Dep. at 112). Indeed, Mernik does not complain of any other incident involving Lee Maas. The incident was not reported to management and the evidence demonstrates that the "brushing" was an isolated occurrence. In light of Shepherd, there is no summary judgment evidence that indicates that this one-time "brush" was severe enough to "interfere unreasonably with a reasonable person's work performance." Shepherd, 168 F.3d at 874.
Again, as discussed in the previous two sections, Merkin did not report either of the instances during this time period. Despite her awareness of Classic's sexual harassment policy and procedure, Mernik failed to avail herself of the procedure, which prevented Classic management from being able to remedy and prevent the harassing behavior. This would satisfy the two prongs of the Ellerth/Faragher affirmative defense, thus relieving Classic of vicarious liability for the alleged sexual harassment committed by its supervisors during this period. See Casiano, 2000 WL 679781 at *7.
As such, all of Merkin's harassment claims are unactionable under Title VII. Mernik has failed to indicate any evidence in the record supporting a claim for quid pro quo harassment. More importantly, Mernik is not able to overcome the uncontested evidence that clearly documents her history of tardiness and insubordination. In addition, no evidence supports Mernik's claim that her work environment was so detrimentally altered as a consequence of the alleged behavior as to constitute a valid federal claim. Despite Merkin's alleged "stress headaches" resulting from her work environment, Mernik maintains that her work performance was always satisfactory. (See Pl. Br. at 14). Apart from her tardiness, Classic management agreed with her performance as well. (See Mernik Aff. at 5; Pl. App. at 24-26; Bryant Dep. at 80). Thus, Classic's motion for summary judgment as to the claim of sexual harassment is GRANTED.
V. MERNIK'S RETALIATION CLAIM UNDER TITLE VII
A. Legal Standard under Title VII
The Fifth Circuit applies the McDonnell Douglas test to claims of unlawful retaliation under Title VII. See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000). To make out a prima facie case for retaliation, Mernik must prove that (1) she engaged in a protected Title VII activity; (2) she suffered an adverse employment decision; and (3) a causal nexus between the protected activity and the adverse employment decision exists. See id. After making a prima facie case, the burden shifts to Classic to articulate a non-discriminatory reason for the employment decision; at that point, the burden returns to Mernik to show that Classic's explanation is mere pretext for unlawful retaliation. See id; St. Mary's, 509 U.S. at 506-07; Burdine, 450 U.S. at 252-55.
B. Application of Title VII Legal Standard for Retaliation to the Facts
The Court finds that Mernik established a prima facie case for retaliation under Title VII. On February 26, 1998, Mernik was issued another citation for tardiness. ( See Def. App. at 4). On that warning, she complained of unequal treatment, which satisfies the first element. (See id). The next day, Mernik was fired. ( See Mernik Aff. at 6). This satisfies the second and third elements.
C. Non-Discriminatory Reason and Pretext
As discussed above in reference to Mernik's discrimination claim ( see Section III(B)(2)), Classic has articulated a non-discriminatory reason for its decision to fire Mernik. Mernik's employment file is spotted with warnings for tardiness. As discussed above, this shifts the burden back to Mernik, whose attempts to classify the reason as pretext are inconclusive. Mernik has not shown that her termination was inspired by her gender rather than her extensive history of tardiness. As such, Classic's motion for summary judgment as to Mernik's retaliation claim is GRANTED.
VI. CONCLUSION
Upon careful review of the parties' arguments, the summary judgment record, and the relevant law, the Court concludes that Plaintiff Marcy Mernik has failed to demonstrate a material dispute of fact as to all three of her Title VII claims. Accordingly, Classic's motion for summary judgment is hereby GRANTED as to each of Mernik' s claims.
So Ordered.