Opinion
Civil Action No. 3:00-CV-1461-L
August 7, 2002
MEMORANDUM OPINION AND ORDER
Before the court is Defendant Nickels and Dimes Incorporated's Motion for Summary Judgment on Plaintiff Kimberly N. Taylor's Claims, filed October 4, 2001. After careful consideration of the party's briefs, the summary judgment evidence, and the applicable law, the court grants summary judgment on Plaintiff Kimberly N. Taylor's federal law claims and, in its discretion, the court dismisses without prejudice her state law claims.
I. Factual and Procedural Background
Plaintiff Kimberly N. Taylor ("Taylor" or "Plaintiff") filed this action against Nickels and Dimes, Inc. ("Nickels and Dimes") and James Love ("Love") (collectively, "Defendants") on July 7, 2000. Plaintiff filed her First Amended Complaint on September 18, 2001, seeking damages for sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e, et seq.; assault and battery; and negligent hiring, retention and supervision.
Nickels and Dimes hired Taylor on September 20, 1996, to work in an arcade named "Tilt," located in Dallas, Texas. Nickels and Dimes hired James Love on April 1, 1998, to work in the same location. At all time material herein, Love was the Shift Manager and supervised Taylor.
Taylor states that Love began a campaign of sexual harassment beginning sometime after July 7, 1998, and that continued thereafter on a weekly basis through October 29, 1998. Specifically, Taylor avers Love told her that he wanted to "take her to the room," "take her to a motel," "have sex with [her]," and "eat her out." Taylor further states that Love often attempted to grab her buttocks, and that on at least one occasion, succeeded.
At some point before October 1998, Taylor reported these incidents to the General Manager, Okey Ogwumike ("Ogwumike"), and to the Assistant General Manager, Jeff Wright ("Wright"). Wright instructed Taylor to call Michelle Pizio ("Pizio"), Human Resources and Payroll Manager, who worked in the Nickels and Dimes corporate office. On October 29, 1998. Taylor reported the sexual harassment to Pizio. In response, Pizio immediately investigated the allegations and conducted phone interviews with Taylor, Love, Ogwumike, Wright, and a number of other employees. Based on her investigation, Pizio determined that both Taylor and Love behaved inappropriately by discussing matters of a sexual nature with fellow employees, and by touching or hugging them. Pizio instructed Love not to engage in any such conduct with coworkers, to avoid any further contact with Taylor, and if necessary, to have another supervisor interact with Taylor during Love's shifts. Pizio also caused Taylor and Love to work in different locations of the arcade when both worked on the same shift. Finally, Pizio counseled Ogwumike, Wright, and Love not to retaliate against Taylor for making her complaint.
Taylor concedes that she did not experience any further sexual harassment after she complained to Pizio; however, she states that Love threatened her with imminent bodily injury after she had complained. Taylor testified in her deposition that Love threatened her at "different times" in 1998, and only "a little bit" in 1999. Taylor further states that between October of 1998 and August of 1999, her supervisors watched her more closely, denied her work and restroom breaks, assigned her extra duties, prevented her from taking leave on several occasions, and finally, that Ogwumike threatened to demote her. Taylor believes these actions were in retaliation for the complaint she filed against Defendants for sexual harassment.
On April 8, 1999, Taylor filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Texas Commission on Human Rights ("TCHR"), in which she alleged Love retaliated against her for complaining about the sexual harassment. Taylor resigned her employment with Nickels and Dimes in August of 1999.
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir. 1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. Analysis
A. Exhaustion of Administrative Remedies
Nickels and Dimes first contends Taylor failed to exhaust her sexual harassment claim. The court disagrees. A condition precedent to bringing suit on an employment discrimination claim is the timely filing and exhaustion of an EEOC charge. Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990). A Title VII cause of action may be based "not only on the specific allegations made by the employee's initial EEOC charge, but also upon any kind of discrimination like or related to the charge's allegations." Dohis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995); see also Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1280 (5th Cir. 1994); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). The scope of the lawsuit thereafter extends no further than the scope of the investigation that can reasonably be expected to grow out of the charge of discrimination. Fine v. GAF Chem. Corp., 995 F.2d 576, 577-78 (5th Cir. 1993). The court's determination of the proper scope of the lawsuit is driven by the competing policies of promoting the "voluntary settlement of all issues without an action in the District Court," Sanchez, 431 F.2d at 461, and expanding the scope of the lawsuit to recognize "the remedial and humanitarian underpinnings of [Title VII]." Id. at 467.
Taylor concedes she did not check the appropriate box on the EEOC form to indicate discrimination based on sex. The remaining evidence, however, including Taylor's intake questionnaire, witness statements, and other documents, reveals that Taylor had alleged sexual harassment to the EEOC. Accordingly, one could reasonably expect the scope of the EEOC investigation to include a charge of sexual harassment. This evidence, when viewed in the light most favorable to the nonmovant, precludes summary judgment on grounds of exhaustion.
B. Sexual Harassment
Title VII prohibits an employer from discriminating against any individual with respect to compensation, term, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). In Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the United States Supreme Court articulated the framework a trial court must follow when analyzing supervisor sexual harassment suits. Under this framework, a district court must first determine whether an employee has suffered a tangible employment action. Casiano v. ATT Corp., 213 F.3d 278, 283 (5th Cir. 2000) (stating the determination of whether an employee has suffered tangible employment action is the "indispensable first step in every supervisor sexual harassment/vicarious liability case under Title VII"). If the employee has suffered a tangible employment action, the court will analyze the suit as a "quid pro quo" case. Casiano, 213 F.3d at 283. If the employee has not suffered a tangible employment action, the court analyzes the suit as a "hostile environment" case. Id at 284.
1. Quid Pro Quo
A "tangible employment action" is "an official act of the enterprise, a company act," such as "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S. at 761. A resignation is a tangible employment action under Title VII only if the resignation qualifies as a constructive discharge. See Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir.), cert. denied, 122 S.Ct. 45 (2001); Webb v. Cardiothoracic Assocs. of North Texas, P.A., 139 F.3d 532, 539 (5th Cir. 1998). To establish constructive discharge, a plaintiff must demonstrate that the employer made her working conditions so intolerable or unpleasant that a reasonable employee would feel compelled to resign. See Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997); Barrow v. New Orleans 5.5. Ass'n, 10 F.3d 292, 297 (5th Cir. 1994); Ugalde v. Mckenzie Asphalt Co., 990 F.2d 239 (5th Cir. 1993). A court may consider the following factors, among others, to determine whether an employee was constructively discharged:
(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement on terms that would make the employee worse off whether the offer was accepted or not.
Barrow, 10 F.3d at 297. "These factors must reveal the existence of aggravating circumstances that justify the employees resignation." Doherty v. Center for Assisted Reproduction, P.A., 108 F. Supp.2d 672, 679-80 (N.D. Tex. 2000), aff'd, 264 F.3d 1140 (5th Cir. 2001). The facts necessary to establish a constructive discharge must demonstrate a greater degree of harassment than those required to establish a hostile work environment claim. See Landgraf v. U.S.I. Film Products, 968 F.2d 427, 430 (5th Cir. 1992). Finally, this standard necessarily requires an objective test. The question that must be determined is not whether the employee in question felt compelled to resign, but whether a reasonable employee would have felt compelled to resign under such conditions. Guthrie v. J.C. Penney Co., 803 F.3d 202, 207 (5th Cir. 1986).
After reviewing the summary judgment evidence, the court determines Taylor failed to adduce facts which would permit a jury to conclude that she acted reasonably in resigning her job. Taylor resigned from her position with Nickels and Dimes in August of 1999. In support of her claim for constructive discharge, Taylor states that Nickels and Dimes subjected her to sexual remarks and sexual grabbing between July of 1998 and August of 1999. Taylor reported this harassment to Pizio in October of 1998, who promptly investigated her complaint. In her deposition, Taylor testified that the sexual harassment ceased immediately after she reported the inappropriate behavior to Pizio. In an affidavit submitted with her response to summary judgment motion, however, Taylor states that the harassment continued until her resignation in August of 1999. The court does not consider those portions of her affidavit that contradict, without explanation, her prior deposition testimony. See Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000), cert. denied, 531 U.S. 1073 (2001) ("If a party who has been examined at length in a deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact."); Albertson v. TJ. Stevenson Co., 749 F.2d 223, 228 (5th Cir. 1984) ("[T]he nonmovant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony."). When the contradictory portions of Taylor's affidavit are ignored, the remaining summary judgment evidence demonstrates that any inappropriate sexual behavior directed at Taylor ceased in October of 1998, ten months before she walked off the job.
Taylor further states Love repeatedly threatened her with "imminent bodily harm," that her supervisors watched her more closely than other employees, that she was denied work and restroom breaks, was denied leave, and was threatened with demotion. In her deposition, however, Taylor admitted that Love threatened her at "different times" in 1998, and only "a little bit" in 1999. Taylor thus concedes, by her own testimony, that the threats were sporadic at best, and certainly not so severe and pervasive to justify her resignation. Taylor further testified that she was not subjected to any behavior or conduct during the summer of 1999 that was particularly harsh or bad for her. Finally, Taylor does not offer any evidence that her salary was affected, that her job duties changed in any material respect, that she was actually demoted, or that she was denied any opportunity for advancement. The court does not believe the evidence adduced by Taylor, when viewed in a light most favorable to her, demonstrates that Nickels and Dimes placed her in an intolerable work environment. See, e.g., Ward, 102 F.3d at 201-02 (finding no constructive discharge when coworker threatened plaintiff with bodily harm, elbowed her in the forearm, and stated he would "kick [her] ass" and "get" her); Ugalde, 990 F.2d at 243 (finding no constructive discharge because employee only complained about harassment once before walking off job). Accordingly, the court holds Taylor failed to adduce sufficient evidence to establish that Nickels and Dimes made her working conditions so intolerable that a reasonable employee would have felt compelled to resign. Because the court concludes Taylor has not produced any evidence that she suffered any other tangible employment action, her quid pro quo harassment claim fails as a matter of law.
2. Hostile Environment
Having determined Plaintiff did not suffer a tangible employment action, the court turns to her hostile environment claim. An employee seeking to establish a hostile work environment claim involving harassment by a supervisor must establish (1) that the employee belongs to a protected class; (2) that the employee was subject to unwelcome sexual harassment; (3) that the harassment was based on sex; and (4) that the harassment affected a "term, condition, or privilege" of employment. Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 873 (5th Cir. 1999); Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999). Once the plaintiff makes this showing, an "employer is subject to vicarious liability to a victimized employee," Watts, 170 F.3d at 509 (quoting Faragher, 524 U.S. at 777), unless the employer successfully establishes both prongs of the Ellerth/Faragher affirmative defense. See Casiano, 213 F.3d at 284. To prevail on this affirmative defense, the employer must demonstrate that (1) it exercised reasonable care to prevent and correct any such sexual harassment, and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. See Faragher, 524 U.S. at 807; Casiano, 213 F.3d at 284; Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 269 n. 2 (5th Cir. 1998).
Nickels and Dimes' uncontroverted evidence reveals that it took reasonable care to prevent and correct the workplace harassment. The summary judgment evidence indicates that Nickels and Dimes reviewed its nonharassment policy with all incoming employees. In addition, Nickels and Dimes posted a notice of its nonharassment policy in the workplace. The posted notice instructed victims of harassment to contact Pizio. Taylor states that Nickels and Dimes never reviewed the policy with her; however, she admits being aware of the policy and its grievance procedures. Taylor also admits that Pizio promptly investigated her complaint and took corrective action. Specifically, Pizio counseled Love not to engage in any further harassment, not to retaliate against Taylor, and to avoid contact with her. Moreover, Taylor does not dispute that the harassment ceased after she lodged her complaint with Pizio. In fact, on April 7, 1999, in response to an inquiry by Pizio, Taylor denied experiencing any problems with Love since her complaint on October 29, 1998. Based on the foregoing, the court finds that Nickels and Dimes has satisfied the first element of its affirmative defense.
The court also finds Nickels and Dimes has satisfied the second element of its affirmative defense. A victim of sexual harassment has a duty to complain so that the employer may remedy the unlawful employment practice. See Webb, 139 F.3d at 538-39. "If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if the damages could reasonably have been mitigated, no award against a liable employer should reward a plaintiff for what her own efforts could have avoided." Faragher, 524 U.S. at 807. Taylor testified that the harassment began in early July 1998, and continued on a weekly basis, until she lodged her complaint on October 29, 1998. Taylor offers no evidence to explain why she waited approximately three months before reporting the harassment to Pizio. Moreover, Taylor filed her charge of discrimination with the EEOC on April 8, 1999, more than six months after the retahatory conduct began. Taylor does not explain the reason behind this delay; nor does she explain why she failed to report the retaliatory conduct to Pizio on April 7, 1999, when Pizio contacted her to follow-up on the allegations of harassment. The court believes Taylor acted unreasonably by failing to report any of this conduct. See Scrivner v. Socorro Indep. Sch. Dist., 169 F.3d 969, 971 (5th Cir. 1999) (finding plaintiffs actions unreasonable because she failed to inform employer about harassment when given an express opportunity). Taylor testified that she did not report any of the threats because "they wouldn't have done nothing [sic] but cover [Love]." Such an explanation, however, is insufficient to justify Plaintiff's failure to report this conduct. See Young v. R.R. Morrison Son, Inc., 159 F. Supp.2d 921, 927 (N.D. Miss. 2000) (finding "speculative concerns about management inaction" insufficient to justify a plaintiff's failure to complain). Having determined Nickels and Dimes has satisfied both elements of its affirmative defense, the court grants summary judgment in favor of the Defendant on Plaintiffs sexual harassment claim.
C. Retaliation
Title VII makes it "an unlawful employment practice for an employer to discriminate against any of his employees" who had either availed themselves of Title VII's protections or assisted others in so doing. See 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under Title VII, a plaintiff must demonstrate that: (1) she engaged in a protected activity; (2) she experienced an adverse employment action following the protected activity; and (3) a causal link existed between the protected activity and the adverse employment action. Mota v. University of Texas Houston Health Science Ctr., 261 F.3d 512, 519 (5th Cir. 2001); Evans v. City of Houston, 246 F.3d 344, 351 (5th Cir. 2001). Plaintiff offers no direct evidence of retaliation. The court therefore assesses Plaintiffs claims under the McDonnell Douglas framework. See Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001).
Upon review of the summary judgment evidence, the court determines Plaintiff fails to establish an adverse employment action. The Fifth Circuit has stated that "Title VII was designed to address ultimate employment decisions." Dohis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). Not every decision made by an employer qualifies as an adverse employment action. Id "`Ultimate employment decisions include acts `such as hiring, granting leave, discharging, promoting, and compensating'" an employee. Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) (quoting Dohis, 77 F.3d at 782). By contrast, "interlocutory or mediate decision[s]" which may ultimately lead to an ultimate employment decision are insufficient to establish a prima facie case of retaliation. Fierros v. Texas Dept. of Health, 274 F.3d 187, 191 (5th Cir. 2001). To hold otherwise would expand the definition of adverse employment action to include actions which have only a tangential effect on the conditions of employment. Mattern, 104 F.3d at 708.
Taylor states that after she reported the harassment, Love retaliated against her by threatening her with bodily injury. In addition, Taylor avers that her supervisors watched her more closely than other employees, rolled their eyes at her, denied her work and restroom breaks, assigned her extra duties, and prevented her from leaving work on time because she reported the harassment to Pizio. None of these actions adversely affected Taylor's pay, benefits, or level of responsibility. See Watts, 170 F.3d at 511 (explaining that ultimate employment decisions require a change in compensation, benefits, or responsibilities). Taylor's allegations therefore do not constitute ultimate employment decisions actionable under Title VII. See Mattern, 104 F.3d at 707 (holding verbal threats of being fired, reprimands, missed pay increases, and "[h]ostility from fellow employees" do not constitute adverse employment actions). Moreover, Plaintiff has not demonstrated, for the reasons stated above, that Nickels and Dimes made her working conditions "so intolerable that a reasonable employee would feel compelled to resign." Ward, 102 F.3d at 202. In short, Plaintiff fails to adduce any summary judgment evidence to establish that she was constructively discharged, suspended, demoted, transferred, denied a bonus, given another job with significantly fewer responsibilities, or refused a promotion in retaliation for making her complaint. Accordingly, the court conc[udes Plaintiff has not met her prima facie case for retaliation, and grants summary judgment in favor of Defendant.
D. State Law Claims
The court has jurisdiction over the state law claims only through the exercise of its supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c). "[W]hen all federal claims are dismissed or otherwise eliminated from a case prior to trial, [the Fifth Circuit has] stated that [its] `general rule' is to decline to exercise jurisdiction over the pendent state law claims." McClelland v. Gronwaldt, 155 F.3d 507, 519 (5th Cir. 1998) (citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir. 1989)). The relevant considerations are "judicial economy, convenience, fairness, and comity." Batiste v. Island Records, Inc., 179 F.3d 217, 227 (5th Cir. 1999). The strongest consideration here is that state courts are more familiar with, and better equipped to address, the remaining state law causes of action. The court therefore exercises its discretion and declines supplemental jurisdiction over the remaining claims. Accordingly, the court dismisses without prejudice Taylor's state law claims against Nickels and Dimes and Love.
IV. Conclusion
For the reasons stated herein, the Defendant Nickels and Dimes Incorporated's Motion for Summary Judgment is granted. Taylor's federal law claims against Nickels and Dimes are dismissed with prejudice, and her state law claims against Nickels and Dimes and James Love are dismissed without prejudice. Judgment will issue by separate document as required by Fed.R.Civ.P. 58.
It is so ordered