Opinion
CIVIL ACTION NO. 3:99-CV-2434-P.
January 3, 2001.
MEMORANDUM OPINION AND ORDER
Now before the Court for consideration are Defendant City of Coppell's Motion for Partial Summary Judgment, filed August 4, 2000 and Plaintiff's Response to Defendant's Motion for Partial Summary Judgment, filed August 30, 2000. Defendant filed no Reply to Plaintiff's Response to the Motion. After reviewing the arguments along with the applicable law, the Court hereby GRANTS Defendant's Motion for Partial Summary Judgment.
FACTUAL BACKGROUND
Defendant moves for summary judgment on Plaintiff's claim that his workplace constituted a hostile work environment in violation of Title VII. Plaintiff is a former police officer for the City of Coppell, who began work for the city on January 31, 1994 and was assigned as a detective to the Criminal Investigations Division on or about August 2, 1997. Plaintiff relates several different alleged improprieties to support his claim of hostile environment. The first and most important incident recounted is Plaintiff's personal interactions with Sergeant Daniel Harm. In August of 1997, Plaintiff's complaint states that Plaintiff returned in the evening to the police station and at one point went to speak with Sgt. Harm. Plaintiff observed Sgt. Harm, a supervisor of the City's police department, with a female officer, Lisa Andrus, in Sgt. Harm's darkened office cubicle at the police station. Officer Andrus was off-duty and wore short cutoff denim shorts and a t-shirt rather than a police uniform. Sgt. Harm was on duty at the time. Plaintiff saw movement but could not see precisely what the individuals were doing, and evidently witnessed no physical conduct between the two persons. Plaintiff was offended by this behavior, which he deemed to be conduct unbecoming both officers in violation of department policy and the City's sexual harassment policy.
See Pl's App. Tab 1 at 1 (Aff. of Michael A. Scott).
See Pl's Complaint at 1-3.
See Pl's Complaint at 2.
See Pl's Compl. at 3.
See Def's App. at 2-12 (Deposition of Michael Scott).
See Def's App. at 7, 9.
See Def's App. at 9.
See Def's App. at 5-9.
See Def's App. at 9-11.
Plaintiff reported the incident and some of the events leading up to it to Sgt. Wingo. Sgt. Wingo directed Plaintiff to submit his report in writing. According to Plaintiff, Captain Goolsby received the complaint, but did not investigate the charge or take action against Sgt. Harm, but instead disciplined Plaintiff for filing the complaint, giving him a reprimand. Plaintiff states that he appealed the reprimand, and that the appeals committee found a violation of department and city policy and ordered the removal of Plaintiff's reprimand. Subsequently, Sgt. Harm became Plaintiff's immediate supervisor. According to Plaintiff, Sgt. Harm searched through some case records in Plaintiff's locked desk without Plaintiff's permission before making a complaint against Plaintiff. Plaintiff contends in his Complaint that he was accused of dishonesty for later failing to surrender this personal log book. Plaintiff was then placed on administrative leave. Plaintiff contends that he was terminated upon the instigation of Sgt. Harm in retaliation for his complaint about Sgt. Harm.
See Def's App. at 12.
See Def's App. at 13.
See Pl's App. Tab 2 at 1 (Pl's Letter to Equal Employment Opportunity Commission, September 16, 1998).
Id.
Id.
See Pl's App. Tab 2 at 1-2.
See Pl's Compl. at 7.
See Pl's App. Tab 2 at 2.
See Pl's App. Tab 1 at 1.
At some point, Captain Goolsby filed a complaint involving Sgt. Harm which sustained the allegation that Sgt. Harm violated the police department's code of conduct including the section prohibiting "any sexual conduct" while on duty, as well as the City's sexual harassment policy. Plaintiff provides what purports to be a letter from Interim Chief of Police Gary Nix, dated September 9, 1998, firing Sgt. Harm and citing his romantic relationship with a female probationary employee, his threats to employees if they discussed his conduct, and his consequent violation of the city's sexual harassment policy. On or about July 30, 1998, Sgt. Harm admitted in writing that he and Lisa Andrus had had an affair while they were employed by the police department. Officer Andrus also admitted to a sexual relationship with Sgt. Harm.
See Pl's App. Tab 8 at 3. Sergeant Harm also had one Officer Massingill drive him to Off. Andrus' residence while on duty in a police department vehicle. Id. at 5.
See Pl's App. Tab 7 at 4-5.
See Pl's App. Tab 8 at 1 (Def's Answers to Pl's First Requests for Admission).
See Pl's App. Tab 8 at 4.
Plaintiff also points to other previous occurrences that contributed to what he terms a hostile work environment. Sergeant Harm apparently gave special assignments to Off. Andrus that other trainees did not receive; rumors existed of Sgt. Harm's favoritism to Off. Andrus. Evidently the police department investigated those officers who spread rumors of an affair between Sgt. Harm and Off. Andrus, but did not investigate whether Sgt. Harm had indeed engaged in misconduct. Sergeant Harm threatened to take action against anyone who spoke of his conduct with Off. Andrus, and evidently threatened an officer's career. Officer Massengill drove Sgt. Harm to Lisa Andrus' apartment on at least one occasion, and drove Sgt. Harm to the airport for a trip to New York with Off. Andrus. Sergeant Harm's badge and ID were found in a police car last driven by Off. Andrus, at a time when Sgt. Harm was off-duty and thus had no job-related reason to be in that car. A Lewisville police officer told a Coppell police officer that he had seen a Coppell supervisor engaged in "extracurricular activity" in the back seat of a supervisor's car, which supervisor evidently was Sgt. Harm.
See Pl's App. Tab 5 (p. 0044-0045) (Depos. of Joel Wingo).
See Pl's App. Tab 1 at 2 (Affidavit of Michael A. Scott).
Id.
See Pl's App. Tab 4 at 37 (p. 0021) (Aff. of Stephen W. Burres, III). See also Pl's App. Tab 7 (p. 0073) (Notice of Disciplinary Decision).
See Pl's App. Tab 6 at 40-43 (p. 0057-0060) (Depos. of Mike Massingill).
See Pl's App. Tab 5 at 41-42 (p. 0024-0025) (Depos. of Stephen Burres).
See Pl's App. Tab 5 at 84-85 (p. 0027-0028) (Depos. of Stephen Burres).
In addition, one patrol officer complained to a sergeant who, along with others, was watching pornographic videotapes at work. Though the sergeant evidently agreed not to view the videos in the patrol officer's presence, the sergeant in question and another employee were dismissed after an internal investigation of the conduct.
See Pl's App. Tab 4 (p. 0013-0016) (Depos. of Stephen Burres).
See Pl's App. Tab 4 (p. 0013-0016) (Depos. of Stephen Burres).
DISCUSSION
I. Summary Judgment StandardSummary 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). 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). 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. Celotex, 477 U.S. at 323.
Once the moving 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 against the motion for summary judgment cannot defeat the motion unless he 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, Inc., 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent 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 is case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
Finally, the Court has no duty to search the record for triable issues. Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992). The Court need only rely on the portions of submitted documents to which the nonmoving party directs. Id. "[W]hen all the material facts are undisputed and before the Court on summary judgment, reasonableness may be a question of law where only one inference is possible from the evidence." Edward v. Consolidated Rail Corp., 567 F. Supp. 1087, 1113 (D.D.C. 1983) (internal quotes omitted), affirmed by 733 F.2d 966, cert denied, 469 U.S. 883 (1984).
II. Evidence of Hostile Work Environment
Defendant claims that Plaintiff's evidence is insufficient as a matter of law to sustain a claim of hostile work environment sexual harassment under Title VII, 42 U.S.C 2000e, et seq. 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 his compensation, terms, conditions, or privileges of employment because of [his] . . . sex . . . ." 42 U.S.C. § 2000e-2 (a)(1). Defendant's specific challenge is to whether the activity in question is sufficiently severe and pervasive to alter the conditions of employment and create an abusive work environment, as required by the Supreme Court. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-67 (1986). The Court will thus focus on evidence of the severity and pervasiveness of the conduct in question. Defendant does not challenge Plaintiff's retaliation claim; thus, evidence supporting only the retaliation claim but not the hostile environment claim is not relevant to the Court's analysis.
As Plaintiff points out, Defendant does not refute in its motion all of Plaintiff's evidence weighing against summary judgment, nor did Defendant file a reply to Plaintiff's response. Defendant correctly argues that the conduct in question must be severe and pervasive enough for a reasonable person to find the environment hostile and abusive. See Oncale v. Sundowner Offshore Svcs., Inc., 523 U.S. 75, 81 (1998) (concurring opinion) (internal citations omitted). Fifth Circuit law recognizes behavior that is "extremely insensitive" and "egregious," as opposed to conduct that offends but does not hinder work performance. DeAngelis v. El Paso Municipal Police Officers Ass'n., 51 F.3d 591, 593 (5th Cir. 1995). See also Weller v. Citation Oil Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996) (including interference with work performance as a relevant factor).
Plaintiff points to Oncale to show that the surrounding circumstances and context must be considered when evaluating a claim for hostile work environment. See 523 U.S. at 82 (concurring opinion). See also Weller, 84 F.3d at 194 (looking to the totality of the circumstances). Relevant factors include "the frequency of discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). This Court thus considers all the relevant evidence as a whole in the light most favorable to Plaintiff. In the Coppell police department, a sergeant had a well-known affair with a female subordinate in violation of department and city policy. He showed her favoritism not granted to others in her position. The sergeant issued threats that he would punish those who spoke about his affair, while no internal investigation questioned the propriety of his affair. Indeed, the sergeant used at least one officer to facilitate his meetings with the female subordinate. Further laxity in enforcing appropriate workplace demeanor occurred when on-duty officers viewed video pornography within the workplace. In this general context, Plaintiff walked in on the sergeant and the scantily-clad subordinate alone in the sergeant's dark cubicle.
Though it is a close question, the Court must conclude as a matter of law that the conduct occurring at the Coppell Police Department was not severe and pervasive enough to create a hostile work environment under Title VII. Plaintiff's evidence of the sergeant's favoritism and proneness to indiscretion as well as the department's failure to address the concerns of officers who complained about sexual improprieties in the workplace could not reasonably support a finding of a hostile work environment. The conduct in question did not alter the conditions of Plaintiffs employment. Looking at some of the Harris factors, the conduct complained of by Plaintiff does not appear to be frequent, but rather a discrete few incidents fueled, in part, by rumor. While Plaintiff's discharge is severe, it is best addressed by his retaliation claim. The remaining conduct, though not insignificant, is not such severe behavior as contemplated by the statute. Plaintiff does not demonstrate any physical threat to his person or humiliation. Further, Plaintiff has not shown that his ability to do his job was materially diminished. Setting aside any employment-ending retaliation by Sergeant Harm or his superiors, Plaintiff did not endure the type of severe and pervasive conduct Title VII was meant to address.
CONCLUSION
For the reasons stated herein, the Court GRANTS Defendant's Motion for Partial Summary Judgment as to the claim of hostile work environment under Title VII. The Court does not reach Defendant's alternative argument.