Opinion
3:02-CV-2773-P
December 23, 2003
ORDER
Now before the Court is Defendant's Motion for Summary Judgment, filed on November 6, 2003. After a thorough review of the parties' briefs and the applicable law, the Court GRANTS Defendant's Motion for Summary Judgment.
Plaintiff filed her Response on December 3, 2003.
Defendant moves for summary judgment on the following claims: sexual harassment, sex discrimination, and retaliation under Title VII, failure to accommodate under the American with Disabilities Act ("ADA"), and retaliatory discharge under the Texas Workers' Compensation Act ("TWCA"). (Def.'s Mot. Summ. J. at i.) However, Plaintiff's Response only addresses sexual harassment and retaliation under Title VII. (PL's Resp. at 1-7.) To the extent Plaintiff may have sought to recover under the remaing claims, Plaintiff did not set forth a prima facie case for sex discrimination or failure to accommodate and did not present evidence of a causal connection between her discharge and the filing of a workers' compensation claim. Accordingly, the Court GRANTS Defendant's Motion for Summary Judgment to the extent Plaintiff seeks to recover for sex discrimination under Title VII, failure to accommodate under the ADA, and retaliatory discharge under the TWCA.
BACKGROUND
On April 19, 1999, Plaintiff began working for Defendant DART as a bus operator. (Def.'s App. at 77.) Soon thereafter, Defendant assigned Plaintiff to the Northwest Bus Division at DART. (Def.'s App. at 86.) Plaintiff alleges that in the Spring of 1999, her supervisor, Daniel Diaz, began sexually harassing her. (Def.'s App. at 89-90.) According to Plaintiff, he would comment on her butt or clothes (Def.'s App. at 90), touch her butt (Def.'s App. at 91), pin her at his office door (Def.'s App. at 92), press his body against her body, and kiss her. (Def.'s App. at 95.) On each of these occasions, Plaintiff testified that she did not report any of this conduct to any supervisors at DART, including the Diversity and Economic Opportunity Office ("DEO"), although she did inform a friend and a co-worker about the situation. (Def.'s App. at 91-95.)On January 14, 2000, Plaintiff suffered an on the job back injury that rendered her unable to operate a bus for a little over a year. (Def.'s App. at 28.) As such, DART assigned Plaintiff to work light duty. (Def.'s App. at 96.) On October, 27, 2000, Diaz took Plaintiff to a grocery store and on the way allegedly propositioned her to go to a motel and have sex with him. (Def.'s App. at 60.) On November 27, 2000, Plaintiff went to the DEO office to file a complaint of sexual harassment against Diaz. (Def.'s App. at 60.) She informed Darrell Caldwell, the Vice-President of DEO of DART, of Diaz's conduct and he began an investigation into Plaintiffs sexual harassment claim. (Def.'s App. at 60-61.) Due to Plaintiff's lack of cooperation with Caldwell's investigation, he made a finding that there was insufficient evidence to conclude that sexual harassment occurred and closed his investigation. (Def.'s App. at 61.)
While Plaintiff explained to Caldwell that she did not have any witnesses to Diaz's alleged sexual harassment, she did tell him that she had tape recorded the conversation that she and Diaz had on the way to the grocery store. (Def.'s App. at 60-61.) After that meeting, Caldwell set up four appointments for Plaintiff to bring the tape, but she never did. (Def.'s App. at 61.) For two months, Caldwell made many attempts to contact Plaintiff by phone and by letter to provide the tape; however, she never produced the tape. (Def.'s App. at 61.) Finally, on February 26, 2001, Caldwell spoke to Plaintiff, who informed him that she had not received his letters and gave him a new address. (Def.'s App. at 61.) Caldwell sent the letter to the new address, but he never received the tape or a response. (Def.'s App. at 61.).
According to William Copling, Senior Manager of the Northwest Bus Operations Division at DART, Plaintiff was an hourly employee of DART, and at that time, she was under the a Basic Workers' Compensation Program, which provided that an employee who accumulated 131 lost work days is subject to disqualification pursuant to Section 5.4 of the Hourly Employment Manual ("HEM"). (Pl.'s App. at Ex. F.) As of August 19, 2000, Plaintiff was subject to disqualification, but as a result of an administrative error, she was not notified of this until February 12, 2001. (Pl.'s App. at Ex. F.)
On February 22, 2001, Leonard Hatcher, Manager of the Northwest Bus Operations at DART, informed Copling that Plaintiff had not received the letter. (Pl.'s App. at Ex. F.) Hatcher gave her a copy of the letter, but she refused to sign or accept a copy of it. (Pl.'s App. at Ex. F.) Hatcher also told her that if she did not return to work within five days that she would be subject to disqualification. (Pl.'s App. at Ex. F.) Since Plaintiff's next appointment to evaluate her back injury was not scheduled until March 8, 2001, Copling did not discharge her at that time. (Pl.'s App. at Ex. F.) On March 8, 2001, Copling mailed Plaintiff a Notice of Proposed Discharge and set up a March 16, 2001 meeting with her. (Pl.'s App. at Ex. F.) At that meeting, Copling advised Plaintiff that she was subject to termination if she was not able to return to work. (Pl.'s App. at Ex. F.) On March 23, 2001, Plaintiff was released to work full duty, so Copling did not discharge her. (Pl.'s App. at Ex. F.)
On April 27, 2001, Plaintiff called to report that she would not be able to come to work due to numbness in her hand and later Copling received a doctor's report indicating that Plaintiff had visited her doctor for her back on the same day. (Pl.'s App. at Ex. F.) The report indicated that Plaintiff would not be able to return to work due to her original January 14, 2000 injury. (Pl.'s App. at Ex. F.) As a result, Copling sent a Notice of Proposed Discharge and scheduled a June 8, 2001 meeting, which Plaintiff did not attend. (Pl.'s App. at Ex. F.) Thus, on June 13, 2001, Copling sent Plaintiff a Notice of Discharge. (Pl.'s App. at Ex. F.) Copling explained that had Plaintiff attended the June 8, 2001 meeting, he would not have terminated her. (PL's App. at Ex. F.) Instead, he would have put her back on the job. (Pl.'s App. at Ex. F.)
On November 4, 2002, Plaintiff filed suit against Defendant alleging claims of sexual harassment, retaliation, and sex discrimination.
DISCUSSION
I. Legal Standard.
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and 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 (1986). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Id. However, all evidence and the reasonable 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).
Once the party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending the motion for summary judgment cannot defeat the motion unless she provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent a summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case, and on which he bears the burden of proof at trial, summary judgment is mandatory. Chelates Corp., 477 U.S. at 322-24; Washington v. Armstrong World Indus., Inc., 839 F.2d 1121, 1122 (5th Cir. 1988). A motion for summary judgment cannot be granted simply because there is no opposition, even if the failure to oppose it violates a local rule. Hibernia Nat'I Bank v. Adminstracion Central Sociedad Anonima, 776 F.3d 1277, 1279 (5th Cir. 1985). However, when the non-movant fails to provide a response identifying the disputed issues of fact, the Court is entitled to accept the movant's description of the undisputed facts as prima facie evidence of its entitlement to judgment. Eversly v. MBank Dallas, 843 F.2d 172, 173-174 (5th Cir. 1988); Nordar Holdings, Inc. v. Western Sec. (USA) Ltd., No. 3:96-CV-0427-H, 1996 WL 739019, *2 (N.D. Tex. Dec. 18, 1996).
Finally, the Court has no duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise matter in which the evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id. II. Sexual Harassment.
Plaintiff claims that she "was forced to work in a hostile environment based on sexual harassment." (Pl.'s Resp. at 1.) When a plaintiff brings "a Title VII sexual harassment case alleging that a supervisor, with immediate (or successively higher) authority over the [plaintiff]," the plaintiff must establish the following elements: (1) she belongs to a protected class, (2) she was subjected to unwelcome sexual harassment, (3) the harassment was based on sex, and (4) the harassment affected a term, condition, or privilege of employment. Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999).
While both parties included a fifth element of vicarious liability in their elements for stating a viable cause of action for sexual harassment, the Fifth Circuit no longer includes this fifth element in cases where an employee alleges sexual harassment against a supervisor as a result of Burlington Indus, v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Watts, 170 F.3d at 509. Since Diaz was Plaintiff's supervisor (Pl.'s App. at Ex. B, page 13), Plaintiff need not establish the fifth element.
Plaintiff satisfies the first element as she is a female, and thus, is a member of a protected class. Next, Plaintiff must demonstrate that she was subjected to unwelcome sexual harassment. To establish this, Plaintiff argues that Diaz "made lewd comments about her body, touched and grabbed her posterior, pressed his body up against her, . . . forced his tongue down her mouth, and propositioned her to accompany him to a motel." (Pl.'s Resp. at 2.) Since these allegations constitute unwelcome sexual harassment, Plaintiff must next establish that the harassment was based on sex. Plaintiff argues Diaz "clearly emphasized [her] gender as a catalyst for harassment" and "these actions would not have been taken against a male employee." (Pl.'s Resp. at 2.) Thus, Plaintiff established the third element.
However, this is not competent summary judgment evidence. Plaintiff did not cite to either Defendant's or her own Appendix nor did she offer the Court any other competent summary judgment evidence to support her allegations. (Pl.'s Resp. at 2.) Nevertheless, Plaintiff set forth these same accusations in her deposition, which Defendant included in their Appendix. (Def.'s App. at 90-96.) Thus, the record contains evidence that Plaintiff experienced unwelcome sexual harassment.
Finally, Plaintiff must establish that the harassment affected a term, condition, or privilege of employment. Watts, 170 F.3d at 509. "For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [Plaintiff's] employment and create an abusive working environment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (internal quotations omitted). The Court looks at the following circumstances to determine whether the sexual harassment was severe enough to alter conditions of Plaintiff's employment: "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 employees work performance." Harris v. Forklift Sys., 510 U.S. 17, 23 (1993). "A recurring point in [Supreme Court] opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Faragher, 524 U.S. at 788.
The Fifth Circuit has held that conduct, including comments such as "your elbows are the same color as your nipples," attempting to look down a person's clothing, touching a person's arm, and rubbing a person from their shoulder down to their waist, did not create a hostile work environment or alter the work environment. Shepherd, 168 F.3d at 875. However, the Fifth Circuit has recognized that hostile environments existed where a man made frequent offensive jokes and inquiries about a woman's sexual activity and where men groped women by rubbing their thighs and grabbing their breasts. Here, the sexual harassment alleged by Plaintiff is sufficiently severe and pervasive to alter the conditions of employment and create an abusive working environment. Thus, Plaintiff established a claim of sexual harassment by hostile work environment.
Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996).
Hall v. Gus Constr. Co., 842 F.2d 1010, 1012 (8th Cir. 1988).
"Vicarious liability automatically applies when the harassing supervisor is either: (1) indisputably within that class of an employer organization's officials who may be treated as the organization's proxy, or (2) when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." Ackel v. Nat'l Communs., Inc., 339 F.3d 376, 383-384 (5th Cir. 2003) (internal citations omitted). If neither of these situations are present, an employer may establish the Ellerth/Faragher affirmative defense to "avoid vicarious liability by showing (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 preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Id. at 384 (internal quotations omitted.)
Thus, the Court must first decide whether Diaz is a proxy for DART. "The only factor relevant to the determination of whether [Diaz] was a proxy for [DART] is whether he held a sufficiently high position in the management hierarchy so as to speak for [DART]." Ackel, 339 F.3d 384 (internal quotations omitted). "The following officials may be treated as an employer's proxy: a president, owner, proprietor, partner, corporate officer, or supervisor holding a sufficiently high position in the management hierarchy of the company for his actions to be imputed automatically to the employer." Johnson v. West, 218 F.3d 725, 730 (7th Cir. 2000) (citing to Faragher, 524 U.S. at 789 (internal quotations omitted)).
In Ackel, the Fifth Circuit found that a question of fact existed as to whether a man, who served as President, General Manager, and a member of the Board of Directors, may be treated as the organization's proxy. 339 F.3d at 384. The Fifth Circuit in Ackel also cited to a Seventh Circuit opinion, which held that "the Chief of Police at a [Veterans Affairs] hospital, was not a proxy for the VA because he had no less than two supervisors . . . within the hospital and no doubt others within the VA's bureaucracy." Id. (quoting Johnson, 218 F.3d at 730) (internal quotations omitted).
Here, Diaz is not a proxy for DART. Similar to Johnson, Diaz has two managers above him in the hierarchy at the Northwest Station (Def.'s App. at 159-161), and there are numerous management officials above him in the DART hierarchy including, managers, senior managers, vice-presidents, executive vice-presidents, and members of the Board of Directors. (Def.'s App. at 3.) Accordingly, the Court finds that Diaz does not hold a sufficiently high position in the management hierarchy so as to impute his actions to DART.
The Court must next determine whether Diaz's alleged harassment culminated in a tangible employment action, such as discharge, demotion, or undesirable reassignment. Faragher, 524 U.S. at 808. Here, Plaintiff was discharged on June 13, 2001, after a series of events, which are set forth above. (PL's App. at Ex. F.)
However, the Court cannot link Plaintiff's termination to the culmination of Diaz's alleged harassment as she was discharged pursuant to Section 5.4 of the HEM. (Def.'s App. at 28.) According to Copling, he was not even aware that Plaintiff had filed a sexual harassment claim against Diaz and he discharged her due to her inability to return to work, failure to provide a work release, failure to attend scheduled appointments, and the division's operational needs. (Pl.'s App. at Ex. F.) Furthermore, as stated above, he opted not to discharge Plaintiff on numerous occasions, even though she had clearly exceeded the number of absences permitted under Section 5.4 of DART's HEM. (PL's App. at Ex. F.) Accordingly, the Court finds that Diaz's alleged harassment did not culminate into Plaintiff's termination.
Since Diaz was not a proxy for DART and his alleged sexual harassment did not culminate into a tangible employment action, Defendant is not automatically vicariously liable for the actions of Diaz.
As a result, Defendant may raise the Ellerth/Faragher affirmative defense to liability or damages by showing by a preponderance of the evidence that: (1) that Defendant exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that Plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Ackel, 339 F.3d at 382-383.
To establish the first element, Defendant offers the testimony of Caldwell, who testified that on the same day that Plaintiff first complained to him about Diaz's alleged sexual harassment, he called Hatcher, Diaz's boss, and told him that Diaz was not to supervise or have any further contact with Plaintiff. (Def.'s App. at 61.)
Plaintiff argues that Defendant reinstated Diaz and assigned him to work directly with Plaintiff and thus, did not exercise reasonable care to prevent and promptly correct sexually harassing behavior. (Pl.'s Resp. at 5.) Plaintiff, however, fails to cite to the Appendices or offer any other competent summary judgment evidence to show that Diaz worked directly with Plaintiff after she filed a complaint of sexual harassment. Moreover, Diaz was put on administrative leave during the investigation of Plaintiff's sexual harassment claim despite the fact that Plaintiff was away from work from the time she complained of sexual harassment to DART on November 27, 2000 until March 29, 2001, except for one day of operator training on January 11, 2001. (Def.'s App. at 30, 60, 169.).
The Fifth Circuit held in Wyatt v. Hunt Plywood Co. that Hunt could not be held vicariously liable for certain periods of employment of a sexually harassed employee under the Ellerth/Faragher defense. 297 F.3d 405, 413 (5th Cir. 2002). First, "as soon as higher management became aware of the [alleged sexual harassment, the company] immediately responded to its supervisors' sexual harassment by suspending [the men accused of sexual harassment and] . . . commencing an investigation." Id. Furthermore, Hunt's policy regarding sexual harassment "made clear that several persons in addition to the employee's immediate and next higher supervisors were available to receive and pursue sexual harassment claims." Id. Thus, the Fifth Circuit found that "Hunt's sexual harassment policy and its implementation of the policy are more than adequate." Id. The Fifth Circuit also held that the employee acted unreasonably by not promptly reporting the sexual harassment to the appropriate persons. Id. at 413-414.
In Wyatt, the harasser pulled the victim's pants down in plain view of other employees. 297 F.3d at 407.
Similarly, here DART sets out its sexual harassment policy in its HEM (Def.'s App. at 22), a manual that Plaintiff received upon hiring. (Def.'s App. at 108.) In the manual, DART explains that an employee who feels that he or she has been a victim of sexual harassment may file a complaint with the Equal Employment Opportunity Office, now the DEO, which will spur an investigation into the employee's allegations. (Def.'s App. at 23.) DART adhered to its policy in this case, because the same day that Plaintiff made her complaint of sexual harassment against Diaz, DART prohibited Diaz from having any contact with Plaintiff and Caldwell began conducting his investigation. (Def.'s App. at 61.) Thus, the Court finds that DART exercised reasonable care to prevent and correct promptly Diaz's alleged sexually harassing behavior.
The Court also finds that Plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by DART. To begin with, Plaintiff testified that Diaz began sexually harassing her in Spring of 1999. (Def.'s App. at 90.) However, she did not report it to any supervisor or the DART DEO until November 27, 2000. (Def.'s App. at 60.) Even after she made a complaint to DART DEO, she failed to show up to four scheduled meetings and never furnished Caldwell with the tape, as she had promised. (Def.'s App. at 61.)
Accordingly, Defendant successfully established the Ellerth/Faragher defense and therefore, is entitled to summary judgment on Plaintiff's claim of sexual harassment.
III. Retaliation.
"Title VII also prohibits retaliation against employees who engage in protected conduct," such as filing a charge of discrimination. Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003) (citing U.S.C. § 2000e-3(a)(2000)). Since Plaintiff uses circumstantial evidence to demonstrate that "discriminatory animus played a role in an employment decision, [Plaintiff] may rely on the McDonnell Douglas-Burdine, burden-shifting framework to create a presumption of intentional discrimination." Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001). The McDonnell Douglas-Burdine burden shifting framework applies to disparate treatment claims as well as unlawful retaliation claims. Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).
"Under the McDonnell Douglas-Burdine framework, the parties dance an adversarial three-step, in which: (1) the plaintiff proves his prima facie case by a preponderance of the evidence; (2) the defendant rebuts the presumption of intentional discrimination arising from the prima facie case by articulating legitimate, non-discriminatory reasons for the challenged action; and (3) the plaintiff counters by offering evidence that the legitimate, non-discriminatory reasons are really a pretext for discrimination." Casarez v. Burlington Northern/Santa Fe Co., 193 F.3d 334, 337 (5th Cir. 1999).
A. Prima Facie Case.
To establish a prima facie case of retaliation under Title VII, Plaintiff must demonstrate that she: (1) engaged in a protected activity; (2) that an adverse employment action occurred; and (3) that a causal link exists between the protected activity and the adverse employment action. Fabela, 329 F.3d at 414. 1. Protected Activity.
"Protected activity is defined as opposition to any practice rendered unlawful by Title VII, including making a charge, testifying, assisting, or participating in any investigation, proceeding, or hearing under Title VII" Ackel, 339 F.3d at 385 (quoting Green v. Adm'rs of the Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002)). "Title VII does not require that a plaintiff prove that the conduct opposed was actually in violation of Title VII, but only that a charge was made, or that participation in an investigation of a violation of Title VII occurred." Green, 284 F.3d at 657. The Fifth Circuit has held that "the plaintiff's use of her employer's internal administrative process to file an employment discrimination complaint `is clearly protected activity' for purposes of a Title VII retaliation claim." Fierros v. Tex. Dep't of Health, 274 F.3d 187, 194 (5th Cir. 2001) (quoting Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995).
Here, Plaintiff filed a complaint of sexual harassment with DART DEO on November 27, 2000. (Def.'s App. at 61.) Therefore, Plaintiff engaged in protected activity.
2. Adverse Employment Action.
"Adverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating." Ackel, 339 F.3d at 385. Here, DART terminated Plaintiff, and thus, she suffered an adverse employment action.
3. Causal Link.
At the prima facie stage, the standard for establishing a "causal link" is less stringent than the "but-for" causation standard. Long, 88 F.3d at 305 n. 4. "[P]laintiff need not prove that her protected activity was the sole factor motivating the employer's challenged decision in order to establish the `causal link' element of a prima facie case." Id. Rather, "a `causal link' is established when the evidence demonstrates that `the employer's decision to terminate was based in part on knowledge of the employee's protected activity.'" Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001) (quoting Sherrod v. American Airlines, 132 F.3d 1112, 1122 (5th Cir. 1998)).
Even if the Court assumes arguendo that Plaintiff's termination was based in part on Copling's knowledge of Plaintiff filing a complaint of sexual harassment, Plaintiff still cannot survive summary judgment. This is because Defendant offered a legitimate, non-retaliatory reason for Plaintiff's termination, which is the absence control policy contained in the HEM. (Def.'s Mot. Summ. J. at 16.) Thus, the burden shifts back to Plaintiff to show that her complaining about Diaz's alleged sexual harassment was a but for cause of her termination. See Fierros, 274 F.3d at 191. However, Plaintiff failed to present sufficient evidence to show but for Plaintiff's sexual harassment complaint, she would not have been terminated. (PL's Resp. at 6-7.) Accordingly, Defendant is entitled to summary judgment.
For the reasons set forth above, the Court GRANTS Defendant's Motion for Summary Judgment.
It is so ordered.