Opinion
Civil Action No. 1:01-CV-125-C
May 3, 2002
ORDER
On this date the Court considered Defendant's Motion for Summary Judgment filed March 13, 2002, by Alderman-Cave Feeds, L.P. and Alderman-Cave Milling Grain Company hereinafter "Defendant"). Misty Smith (hereinafter "Plaintiff') filed Plaintiffs Response to Defendant's Motion for Summary Judgment on April 2, 2002. Defendant's Reply Brief in Support of Its Motion for Summary Judgment was filed April 17, 2002.
I. BACKGROUND
Plaintiff began employment with Defendant on September 24, 1999. Plaintiff was hired as general office help, working in the tonnage records department and also as an assistant to Mr. Murray Edwards. Shortly after beginning work, Plaintiff notified management that she was pregnant. Soon after Plaintiff began working for Defendant, her husband was hired by Defendant at the Winters, Texas mill.
Plaintiff alleges that throughout the term of her employment with Defendant she was sexually harassed by her immediate supervisor, Mr. Preston Barker. Specifically, Plaintiff identifies four incidents in which she alleges Mr. Preston Barker sexually harassed her and created a hostile work environment, The first incident occurred when Mr. Barker allegedly asked Plaintiff to remove her shirt during a conversation discussing the operation of a blood pressure checking device. Plaintiff did not remove her shirt Plaintiff did not report this incident to anyone. The second incident occurred when Mr. Barker allegedly requested that Plaintiff work late on a weekend to install the internet on his computer. Plaintiff did not come in after hours or on the weekend to work on the computer. Plaintiff did not report this incident to anyone. Plaintiffs third claim of sexual harassment is that Mr. Barker referred to her as "his little tadpole" on numerous occasions. Plaintiff does not know what was meant by the term "tadpole" and Plaintiff did not report these occasions to anyone. The final incident occurred when on one occasion, Mr. Barker referred to the women working in his office as his "harem" to an outside vendor. Plaintiff did not report this incident to anyone. Plaintiff is unaware of any other incidents.
On March 4, 2000, Plaintiffs husband was fired from his job with Defendant for failure to show up for work. Because Plaintiffs husband's uniforms were not turned in, his final check was held. Plaintiff became very upset about this and eventually paid for the uniforms. On March 10, 2000, Plaintiff called in sick to work, stating that she was experiencing bleeding and severe stomach cramping and was going to see her doctor in San Angelo, Texas. Later that day, an employee of Defendant observed Plaintiff traveling south on Highway 83 which is the opposite direction of San Angelo, Texas. The employee reported to office management what she had seen. On March 13, 2000, Plaintiff informed Mr. Barker that her doctor was requiring her to stay in bed during the rest of her pregnancy. A doctor's note verifying her absence due to bed rest was requested. On March 14, 2000, Defendant received a note from a doctor recommending that Plaintiff remain off work until after delivery of the baby Mr. Barker contacted Plaintiff requesting a more detailed note from her doctor. Plaintiff agreed to get another doctor's note. Plaintiff was terminated on March 24, 2000. Plaintiff claims she was terminated because of her pregnancy-related complications. Defendant claims that Plaintiff was terminated for her apparent refusal to provide another note from a doctor, coupled with her bad work attitude and the apparently false story she told on March 10 regarding her medical condition.
On July 2, 2001, Plaintiff filed suit against Defendant alleging violations of Title VII, violations of the Pregnancy Discrimination Act, violations of the Family Medical Leave Act, violations of the Employee Retirement Income Security Act, and multiple state law claims.
II. STANDARD
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file. together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotations omitted) A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R. Civ. P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cit. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which jury could reasonably find in the non-movant's favor. Id.
III. DISCUSSION
Sexual Harassment and Hostile Work Environment Claims
Plaintiff sued Defendant for unlawful employment discrimination in the form of sexual harassment and hostile work environment in violation of Title VII. Plaintiff contends that she was sexually harassed and endured a hostile workplace created by her immediate supervisor, Mr. Preston Barker. Defendant argues that the sexual harassment, if any, was not severe or pervasive, that Plaintiff had failed to take advantage of any preventative or corrective opportunities provided by Defendant to avoid harm, and that the sexual harassment, if any, had not affected a term, condition, or privilege of Plaintiffs employment.
Title VII creates a private right of action against employers who engage in unlawful employment practices and provides as follows:
It shall be an unlawful employment practice for an employer — (1) 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 race, color, religion, sex, or national origin.42 U.S.C. § 2000e-2 (2000).
In a hostile work environment claim, Plaintiff must establish that (1) she belongs to a protected class, (2) she was subjected to unwelcome sexual harassment, (3) the harassment was based on her sex, (4) the harassment affected a term, condition, or privilege of her employment, and (5) Defendant knew or should have known of the harassment and failed to take remedial action. Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 523 (5th Cir. 2001). The parties do not dispute that Plaintiff is a member of a protected class, i.e., female, but Defendant disputes the remaining elements of Plaintiff's claim.
In Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999), the Fifth Circuit drew a distinction between cases in which an employee asserts a Title VII sexual harassment claim alleging that a supervisor with immediate authority harassed the employee and cases in which the harasser is a co-worker. In the former situation, the employee need only satisfy the first four elements of the aforementioned test. Id.
"A hostile work environment requires the presence of a work environment that a reasonable person would find hostile or abusive." Id. Whether an environment is hostile or abusive depends on the totality of circumstances, focusing on factors such as "the frequency of the conduct, the severity of the conduct, the degree to which the conduct is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee's work performance." Id. at 523 -24.
The Equal Employment Opportunity Commission promulgated guidelines which define harassment as follows:
[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when . . . such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.29C.F.R. § 1604.11(a)(2001).
The United States Supreme Court has concluded that when the harassment does not affect a term, condition, or privilege of employment, or when plaintiff has been unable to show financial harm, the harassment must be "severe or pervasive" in order to violate Title VII. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986). The Fifth Circuit has held that "[d]iscriminatory verbal intimidation, ridicule, and insults may be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment that violates Title VII." Mota, 261 F.3d at 524. See Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cit. 1996) (finding that inquiries, which were often egregious and regularly made in the presence of coworkers, about plaintiff's sexual activities and other sexual comments two or three times a week crossed the line and were sufficiently severe and pervasive so as to be actionable). See also Weller v Citation Oil Gas Corp. 84 F.3d 191, 194 (5th Cir. 1996) (holding that Title VII was meant to bar severe and pervasive conduct that destroys a protected classmember's opportunity to succeed at work).
This Court is unpersuaded that Plaintiff has presented evidence of unwanted, repeated, sexually charged comments which a jury might find humiliating and degrading, particularly in light of the totality of the circumstances, including Plaintiffs age, background, and facts of the case. Plaintiff presents evidence of four incidents which are at best isolated incidents that do not amount to discriminatory changes in the "terms and conditions of employment." Burlington Industries, Inc., v. Ellerth, 524 U.S. 775, [ 524 U.S. 742,] 788 (1998) Further, all of the conduct described by Plaintiff was strictly verbal; Plaintiff presented no evidence that her supervisor's conduct had escalated to repeated and unwanted physical contact. Under these circumstances, this Court finds that a jury could not rationally infer that the conduct of Plaintiff's supervisor, Preston Baker, was sufficiently severe or pervasive so as to alter the conditions of employment and create a hostile work environment. Defendant's Motion for Summary Judgment on this issue is GRANTED.
Pregnancy Discrimination Act Claims
Plaintiff contends that Defendant violated the Pregnancy Discrimination Act by denying her medical benefits and terminating her because she was eight and one-half months pregnant. Defendant denies any violation of the Pregnancy Discrimination Act.
The Pregnancy Discrimination Act amended Title VII by explicitly including discrimination based on pregnancy and related medical conditions within the definition of sex discrimination:
"The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work. . . ." 42 U.S.C. § 2000e(k).
Plaintiff alleges that she was terminated "because she is 8.5 months pregnant and/or suffering from pregnancy-related conditions . . ." Defendant claims that Plaintiff was terminated because "of the attitude she displayed and the fact, that in our opinion, Ms. Smith had not been truthful regarding her condition on March 10, 2000, and had not been forthcoming with the requested information."
The Pregnancy Discrimination Act prohibits discrimination because of pregnancy or childbirth only. The Act does not prohibit, under a disparate treatment theory, employment decisions based on employee conduct that may be caused by or related to pregnancy In order for Plaintiff to show disparate treatment, she must demonstrate that "the misconduct for which she was discharged was nearly identical to that engaged in by an employee not within her protected class whom the company retained." Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001). Defendant articulated several nondiscriminatory reasons for terminating Plaintiff: (1) her attitude at work; (2) her untruthfulness regarding her condition on March 10, 2000; and (3) her delay in providing a note from her doctor regarding her leave from work. With respect to the first two reasons Defendant articulated, Plaintiff does not address them except to state that they are pretextual and the real reason she was fired was because she was pregnant. Plaintiff has failed to proffer any evidence that non-pregnant employees with bad attitudes at work and employees who are allegedly untruthful receive more favorable treatment.
Regarding the third reason Defendant articulated for terminating Plaintiff, the one male to whom Plaintiff points is not similarly situated. First of all, Plaintiff is not even sure of the man's name. Secondly, Plaintiff is not sure whether or not this man was under the same plan as she was. Finally, Plaintiff states she is unaware of any other employees who were not required to provide a doctor's note upon requesting emergency medical leave. This one alleged incident does not constitute evidence of disparate treatment. The Pregnancy Discrimination Act "does not protect a pregnant employee from being discharged for being absent from work even if her absence is due to pregnancy or to complications of pregnancy, unless the absences of nonpregnant employees are overlooked." Stout v. Baxter Healthcare Corp., 282 F.3d 856, 860 (5th Cir. 2002). Defendant's Motion for Summary Judgment on Plaintiffs Pregnancy Discrimination Act is GRANTED.
Employee Retirement Income Security Act Claim
Plaintiff alleges that Defendant terminated her from employment when she was eight and one-half months pregnant in an effort to reduce the amount of coverage it would be responsible for regarding Plaintiffs pregnancy in violation of the anti-discrimination provisions of ERISA. Section 510 of ERISA provides:
It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, this subchapter, section 1201 of this title, or the Welfare and Pension Plans Disclosure Act [ 29 U.S.C.A. § 301 et seq.]or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, this subchapter, or the Welfare and Pension Plans Disclosure Act.
The purpose of this section was designed to protect employees from an employer's attempt to interfere with or discriminate against the employee's attainment of a benefit right. See Tarver v. N. Am. Co. for Life Health Ins., 919 F. Supp. 1128, 1132 (N.D. 111. 1996).
To succeed on her claim under section 510, Plaintiff must prove that Defendant specifically intended to violate ERISA. See Olitsky v. Spencer Gifts, Inc., 964 F.2d 1471, 1478 (5th Cir. 1992). if Plaintiff establishes a prima facie case of discrimination under ERISA, the burden of proof then shifts to Defendant to articulate a legitimate, non-discriminatory reason for Plaintiffs discharge. See Stafford v. True Temper Sports, 123 F.3d 291, 295 (5th Cir. 1997). If Defendant is able to articulate such a reason, the burden shifts back to Plaintiff to prove that Defendant's proffered reason is a pretext and that the real reason for the discharge was to deny Plaintiffs ERISA benefits. See id.
Plaintiff alleges that she was discharged discriminatorily because she was pregnant. Even when viewing all summary judgment evidence and inferences in Plaintiffs favor, the summary judgment record contains no evidence of any specific intent on the part of Defendant to terminate Plaintiff in an effort to reduce the amount of coverage it would be responsible for regarding Plaintiffs pregnancy. Plaintiffs speculative allegations that Defendant terminated her employment in order to interfere with her right to receive plan benefits are insufficient to create a genuine issue of material fact precluding summary judgment Clark v. Resistoflex Co., 854 F.2d 762, 771 (5th Cir. 1988). Furthermore, Plaintiff failed to present summary judgment evidence that Defendant's proffered reasons for her termination of employment were merely pretextual. For these reasons, the Court finds that a finding of intent to interfere with Plaintiffs ERISA rights under section 510 is insupportable. The Court therefore GRANTS Defendant's Motion for Summary Judgment on this claim.
Family and Medical Leave Ad Claim,
Plaintiff initially alleged that Defendant violated the Family and Medical Leave Act by not granting Plaintiff up to twelve weeks of unpaid medical and/or maternity leave. The Family Medical Leave Act does not apply to employees, such as Plaintiff, who have been employed less than twelve months or who have worked less than 1, 250 hours during the previous twelve months. See 29 U.S.C. § 261l(2)(A). Accordingly, Defendant's Motion for Summary Judgment on this claim is GRANTED.
V. CONCLUSION
After considering all the relevant arguments, evidence, and supporting documentation before the Court, the Court GRANTS Defendant's Motion for Summary Judgment as follows: dismisses with prejudice Plaintiffs Title VII sexual discrimination and hostile work environment claims against Defendant; dismisses with prejudice Plaintiffs Pregnancy Discrimination Act claims against Defendant; dismisses with prejudice Plaintiffs ERISA claim against Defendant; dismisses with prejudice Plaintiffs Family and Medical Leave Act claims against Defendant; and declines to exercise supplemental jurisdiction over the state law claims against Defendant and dismisses without prejudice to Plaintiffs right to file in state court as to Plaintiffs state law claims against Defendant.
SO ORDERED this 3rd day of May, 2002.