Opinion
Civil Action No. 3: 03-CV-1403-B.
March 25, 2005
MEMORANDUM ORDER
Before the Court are: 1) Defendant Minyard Food Stores, Inc.'s Motion for Summary Judgment on Plaintiff Joyce Wade's Claims, filed June 30, 2004; 2) Defendants' Motion for Summary Judgment on Plaintiff Janet Clewis' Claims, filed July 6, 2004; 3) Plaintiff Joyce Wade's Motion to Strike Portions of the Declaration Attached to Defendant's Summary Judgment Evidence, filed July 20, 2004; and 4) Plaintiff Janet Clewis's Motion to Strike Portions of the Declaration Attached to Defendant's Summary Judgment Evidence, filed July 26, 2004. For the reasons that follow, the Court DENIES Minyard's motion for summary judgment on Wade's Title VII sexual harassment claim, DENIES Defendants' motion for summary judgment on Clewis's Title VII sexual harassment and retaliation claims, and OVERRULES as moot Plaintiffs' motions to strike portions of Defendants' summary judgment evidence.
I. Factual Background
A. Facts Pertaining to Minyard's Sexual Harassment Policy
Minyard Food Stores, Inc. ("Minyard") operates a chain of retail grocery stores. (Def.'s App. in Supp. Mot. Summ. J. on Pl. Wade's Claims ["Def.'s Wade App."] at 3). It provides each of its employees at their time of hire with a copy of its Employee Information Guide, which includes the company's non-harassment policy. ( Id.). That policy directs employees who believe they have been subjected to harassment to, if comfortable doing so, confront the harasser and ask him or her to stop the harassing behavior. ( Id. at 4, 5-6). If an employee is uncomfortable doing so, or if the harassment persists, employees are to report the harassment immediately to Minyard's Personnel Department by speaking with the Director or Vice President of Personnel. ( Id.). Minyard also posts the company's "no tolerance" sexual harassment policy on bulletin boards in each of its stores, which also instructs victims of sexual harassment to report violations of the policy to the Minyard Personnel Department. ( Id. at 4, 7).
B. Facts Pertaining to Plaintiff Joyce Wade's Claims
Minyard hired Plaintiff Joyce Wade ("Wade") as a part-time Office Cashier on May 16, 2001 to work at a store known internally to Minyard as Store 46. ( Id. at 4). As part of her job duties, Wade was responsible for preparing money orders and cashing checks for customers. ( Id. at 57). She worked at a customer service window in the front of the store. ( Id. at 55-56). Wade received a copy of Minyard's Employee Information Guide at the time she was hired and admits to having read it, though not "thoroughly", and she does not recall that the Employee Information Guide contained a sexual harassment policy. ( Id. at 24-27).
Wade complains about the following episodes, which she claims constitute sexual harassment. First, in October 2001 Wade went to the office of Defendant Ronnie Lane ("Lane"), Store Manager for Store 46, to discuss a cash shortage. ( Id. at 13-14). As Wade was leaving Lane's office, she alleges that Lane "moved his tie and said, look, you made me get on hard, looking at his penis." ( Id. at 14). Although Wade did not say anything to Lane or anyone else about those comments at the time, the next day Wade told Lane that his remarks made her uncomfortable, and asked him not to repeat them in the future. (Pl.'s App. in Supp. Resp. to Mot. Summ. J. on Wade's Claims ["Wade Resp. App."] at 31). Wade states that Lane asked her to keep the comments he had made between themselves and promised not to make them again. ( Id. at 32). Although Wade concedes that Lane did not repeat those particular statements, she claims that, on three or four separate occasions, Lane told her that he loved her, and on "maybe two" other occasions had asked her if she had been intimate with other men. ( Id. at 33-34). Wade told Lane that he should tell his wife that he loved her, not Wade, and that it was none of Lane's concern whether she (Wade) was intimate with anyone else. ( Id. at 34).
Wade also complains about one particular occasion that occurred in September or October 2001 as she was leaving the cashier booth and Lane was preparing to go home. Wade states that on this occasion Lane again told her that he loved her and inquired whether she was intimate with other people. (Def.'s Wade App. at 46). Lane then called Wade "stinky", to which she retorted, "you're stinky." ( Id.). Wade says that, in return, Lane turned around and punched her in the stomach. ( Id. at 46-47). Wade responded by telling Lane that he "hit like a sissy" to, as she put it, "let him know that he didn't get to me because I still wasn't going to sleep with him." ( Id. at 47). No one else witnessed this incident. ( Id.). After it occurred, Wade returned to work. ( Id.). Wade did not report that incident or Lane's offensive comments to anyone at Minyard. ( Id. at 48; Wade Resp. App. at 36). Wade continued to work at Store 46 a few weeks longer before resigning on November 8, 2001 because she said that she "just couldn't take it any more." (Def.'s Wade App. at 10, 52; Wade Resp. App. at 47).
On May 3, 2002, Wade filed a Charge of Discrimination with the EEOC. (Def.'s Wade App. at 8-10). On June 23, 2003, Wade filed this lawsuit, bringing claims against Minyard for sexual harassment under Title VII and against Lane for assault. On October 29, 2003, Wade sought leave to join Janet Clewis, another former Minyard employee who claims to have been a victim of sexual harassment from Lane. On November 17, 2003, the Court permitted Clewis to join this lawsuit as a plaintiff.
C. Facts Pertaining to Plaintiff Janet Clewis's Claims
Minyard hired Clewis as a Checker in 1985. (Defs.' App. in Supp. Mot. Summ. J. on Clewis's Claims ["Defs.' Clewis App."] at 4). Minyard promoted Clewis to the position of Receiving Clerk in 1994, and she remained in that position throughout her tenure at Minyard. ( Id. at 4). As part of her job duties, Clewis was responsible for handling damaged merchandise returns, working with the Store Manager and vendors to control back stock, keeping the receiving and surrounding areas clean and organized, and "[o]ther duties as assigned by [the] manager-in-charge." ( Id. at 117).
Clewis received Minyard's Employee Information Guide 15 years ago when she was hired. ( Id. at 74). She admits to having read through it, but does not recall reviewing the company's sexual harassment policy. ( Id.). Nor does Clewis recall having read the policy that is posted in Minyard stores. ( Id. at 75).
On May 26, 2000, Minyard transferred Lane to Store 46, at which Clewis worked. ( Id. at 4). Clewis asserts that almost immediately after Lane started work, he began a campaign of harassment against her by: asking her to meet him at the park for lunch, or to meet at another "inappropriate" place; inviting her to his home while his wife was away; giving her his phone number; telling her that he needed another lover other than his wife; and telling her that he had an incurable obsession with sex. ( Id. at 11, 12, 56). Because Clewis rebuffed Lane's overtures, she says that Lane became frustrated and began to make statements in her absence to other employees that he was going to demote her to a different level of employment. ( Id. at 11).
In November 2000, Clewis called Ron McDearmon, Minyard's Senior Vice President of Retail Operations at the time, to complain about Lane's behavior toward her, and left a phone message for McDearmon that she wished to "have a word" with him the next time he visited the store. ( Id. at 71-72). McDearmon visited the store in November 2000, approached Clewis, and offered to talk with her about her phone message. ( Id. at 72). Nevertheless, Clewis did not relate any episodes of alleged harassment and instead told McDearmon that she "believed everything was okay". ( Id. at 73).
On December 6, 2000, Clewis sent a letter, addressed to Minyard's "Executive Committee", outlining the incidents of alleged harassment described above. ( Id. at 11). Minyard's Vice President of Personnel, Mary Marvin ("Marvin"), received the December 6, 2000 letter Clewis had sent and arranged a meeting with her on December 21, 2000 to discuss the charges. ( Id. at 4). During the meeting, Clewis described other incidents to Marvin that were not included in the December 6, 2000 letter, including allegations that Lane: would engage in "sexual conversations" with her; told her that the two of them would "be like the movie Erin Brokavich — they couldn't have a good working relationship but could have a great love relationship"; and told her that she was the only woman that he had loved, but had not made love to. ( Id. at 12). Clewis also told Marvin that when she refused to go to Lane's house in late October 2000, Lane began to "act mean" towards her by telling her that she did not work fast enough, that she was too lenient with vendors, and that if she did not like her job, he would transfer, demote, or fire her. ( Id.). At the time of the meeting, Clewis did not complain of any other acts of alleged harassment by Lane because she did not want to see him fired. ( Id. at 4-6, 11-13, 82, 83).
On December 26, 2000, Marvin and McDearmon met with Lane concerning Clewis's allegations. ( Id. at 5, 12-13). Lane denied the charges. ( Id.). Marvin and McDearmon nevertheless instructed Lane to treat Clewis as he would any other employee, not to retaliate against her for reporting the alleged harassment, and to keep his interaction with her limited to business matters. ( Id. at 5). According to Marvin, the witnesses Clewis had claimed could corroborate her charges denied them categorically. ( Id. at 5). However, Marvin testified that she did not interview any witnesses, save for Lane, until after Clewis was terminated on December 29, 2000. (Pl.'s App. in Supp. Resp. to Mot. Summ. J. on Clewis's Claims ["Clewis Resp. App."] at 211).
On April 2, 2001, Clewis filed a Charge of Discrimination with the EEOC alleging that Minyard had subjected her to sexual harassment committed by Lane. ( Id. at 36-38). In the Charge Clewis alleges that Lane asked her out on dates and asked her for kisses, kissed her without her consent, and threatened her with a pocket knife to the point where her apron was cut. ( Id. at 37).
At her deposition Clewis recounted other harassing incidents which she admittedly never reported to Minyard during her employment with the company. These included allegations that Lane, among other things: told her upon his return from a sexual harassment meeting that he learned that if he did not touch Clewis with the front part of his body he would not be guilty of sexual harassment, after which time he performed a "little wiggle dance" ( Id. at 60); called Clewis old, fat and told her that no man would want her because of her age ( Id. at 61); pulled out a pocket knife and cut her apron string on one occasion and held up a pocket knife toward her stomach on another occasion ( Id. at 62, 64-65); pulled her down in a backroom walkway, grabbed her arm and tried to kiss her ( Id. at 59); and grabbed the telephone receiver from her and asked her if the person on the line was "one of her men". ( Id. at 64). Clewis concedes that she did not report any of these incidents to Minyard prior to her termination. ( Id. at 82, 112).
The parties dispute the reasons for Clewis's termination. It is undisputed, however, that on December 28, 2000, during Clewis's scheduled shift, Rob Grimes, the Assistant Store Manager, discovered baskets of merchandise in the receiving area containing a mixture of damaged and undamaged items. ( Id. at 90-91). Grimes instructed Clewis to go through the baskets to separate out the damaged items so that the undamaged items could be returned to the store shelves. ( Id.; Clewis Resp. App. at 252). Clewis maintains that she had completed this task, but claims that store stockers were responsible for returning the undamaged items to the store shelves. (Defs.' Clewis App. at 93).
Lane soon appeared at the receiving area. ( Id. at 92). After discussing the situation with Grimes, Lane reminded Clewis that Grimes was her supervisor. ( Id. at 94). According to Clewis, Lane repeatedly told her to go through the baskets, a task which Clewis asserts she had already performed. ( Id. at 94-95). There is conflict in the record as to whom Lane then contacted. Lane claims that he called McDearmon for direction and that he did not contact Marvin (Clewis Resp. App. at 252), while Marvin states that Lane called her. (Defs.' Clewis App. at 6). Regardless, Lane says that McDearmon told him to politely ask Clewis to take care of the damaged merchandise. ( Id.). Lane contends that when he did so Clewis refused. ( Id.). Lane again called McDearmon, who told Lane to instruct Clewis to go home. ( Id.). Lane says that Clewis pulled off her apron, threw her keys, and walked out. ( Id.).
Marvin received statements from Grimes and Lane concerning Clewis's behavior. Grimes reported that Clewis displayed "huge attitude" and that, in response to his request that she separate the items in the basket, she shouted "I ain't going to do it, have your stockers do it." ( Id. at 21). Grimes also reported that Clewis refused to perform the task even after Lane had talked to McDearmon and that "she only left the store after McDearmon ordered her to by phone." ( Id. at 22).
The next day, on December 29, 2000, Marvin and McDearmon met with Clewis to discuss the December 28 basket incident. (Defs.' Clewis App. at 6). At the conclusion of the meeting, Marvin and McDearmon discharged Clewis. ( Id.). Minyard contends that the termination decision was reached as a result of Clewis's repeated failure to follow the directives of her supervisors, not because she had lodged a complaint of sexual harassment against Lane. ( Id. at 6, 7).
Clewis joined Wade as a Plaintiff in this lawsuit on November 17, 2003. Clewis asserts claims of sexual harassment and retaliation in violation of Title VII against Minyard. Plaintiffs' Second Amended Complaint does not formally assert a claim of assault against Defendant Lane, but Defendants have nevertheless moved for summary judgment against any claim of assault Clewis may attempt to bring against him.
II. Analysis
A. Summary Judgment Legal Standard
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Only disputes about material facts will preclude the granting of summary judgment. Id.
The burden is on the summary judgment movant to prove that no genuine issue of material fact exists. Latimer v. Smithkline French Lab., 919 F.2d 301, 303 (5th Cir. 1990). If the non-movant bears the burden of proof at trial, the summary judgment movant need not support its motion with evidence negating the non-movant's case. Rather, the movant may satisfy its burden by pointing to the absence of evidence to support the non-movant's case. Id.; Little, 37 F.3d at 1075.
Once the movant has met its burden, the non-movant must show that summary judgement is not appropriate. Little, 37 F.3d at 1075 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). "This burden is not satisfied with `some metaphysical doubt as to material facts,' . . . by `conclusory allegations,' . . . by `unsubstantiated assertions,' or by only a `scintilla' of evidence." Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The non-moving party must "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587 (emphasis in original) (quoting FED. R. CIV. P. 56(e)). To determine whether a genuine issue exists for trial, the court must view all of the evidence in the light most favorable to the non-movant, and the evidence must be sufficient such that a reasonable jury could return a verdict for the non-movant. Munoz v. Orr, 200 F.3d 291, 302 (5th Cir. 2000); Anderson, 477 U.S. at 248.
B. Whether Plaintiffs' Claims Should be Analyzed as Quid Pro Quo or Hostile Work Environment Claims
Plaintiffs complain that Lane sexually harassed them in violation of Title VII of the Civil rights Act of 1964. 42 U.S.C. § 2000e et seq. Although Plaintiffs cast their sexual harassment claims as "hostile work environment" claims (Compl. ¶¶ 14, 26), the United States Supreme Court has pronounced that the labels attached to sexual harassment claims are not controlling. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). Despite the "limited utility" of such labels, generally speaking quid pro quo claims arise "[w]hen a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands," while hostile work environment claims may be established when an employer's harassment is sufficiently severe or pervasive such to alter the terms and conditions of employment. Id. at 751-54; Ellert v. Univ. of Texas at Dallas, 52 F.3d 543, 545 (5th Cir. 1995). Here, because neither Wade nor Clewis allege that they suffered a tangible employment action as a result of refusing a supervisor's sexual demands, their claims are appropriately construed as "hostile work environment" claims, and will be evaluated as such.
Although Clewis complains that she was terminated as a result of reporting Lane's alleged harassment to Minyard management, nowhere does she allege, nor do the facts suggest, that she was terminated as a result of refusing Lane's demand for sexual favors. Ellerth, 524 U.S. at 752; Olsen v. H.E.B. Pantry Foods, 196 F.Supp.2d 436, 438-39 (E.D. Tex. 2002) (distinguishing suffering a tangible employment action as a result of refusing to submit to a supervisor's sexual demands from suffering a tangible employment action as a result of "reporting the harassment").
C. Hostile Work Environment Legal Standards
In Ellerth, 524 U.S. at 765, and in Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998), decided the same day, the Supreme Court held that an employer is vicariously liable "to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee." There appears to be no dispute in this case that Lane was a Store Manager for the Minyard location at issue at all times relevant to this lawsuit (Wade Resp. App. at 95) and that in that capacity Lane exercised supervisory authority over both Wade and Clewis.
Therefore, to establish a claim of supervisor sexual harassment each Plaintiff must show that (1) she belongs to a protected class; 2) she was subject to unwelcome sexual harassment; 3) the harassment was based on sex; and 4) the harassment affected a term, condition, or privilege of employment — the sexual harassment must be sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment. Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999).
For sexual harassment to affect a term, condition, or privilege of employment, the harassment must be objectively and subjectively hostile or abusive. Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 269 (5th Cir. 1998). The totality of circumstances determines whether a work environment is hostile or abusive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993). The focus is 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." Mota v. Univ. of Texas Houston Health Sci. Ctr., 261 F.3d 512, 523-24 (5th Cir. 2002) (quoting Weller v. Citation Oil Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996)). While Title VII will generally not impose liability for "incidental, occasional or merely playful sexual utterances", Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th Cir. 1999), a supervisor's intimidating and insulting remarks may be sufficiently severe or pervasive to alter the conditions of employment. Mota, 261 F.3d at 524.
Even if Plaintiffs make out a prima facie case of hostile environment sexual harassment, an affirmative defense may be available to Minyard only if Lane's harassment did not culminate in a "tangible employment action" against Plaintiffs. Ellerth, 524 U.S. at 765. If no tangible employment action resulted, Minyard may escape liability if it proves by a preponderance of the evidence that: (a) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (b) Plaintiffs unreasonably failed to take advantage of any preventive or corrective opportunities afforded by Minyard or to otherwise avoid harm. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. If, however, Lane's harassment did culminate in a "tangible employment action", then Minyard is deprived of the Ellerth/Faragher affirmative defense, and is held strictly liable. Ellerth, 524 U.S. at 765. With respect to Wade's claim of constructive discharge, the affirmative defense will be unavailable to Minyard only if Wade resigned in reasonable response to a Minyard-sanctioned adverse action officially changing her employment status or situation. Pennsylvania State Police v. Suders, 124 S.Ct. 2342, 2347 (2004).
D. Application with Respect to Wade
1. Whether Lane's Conduct was Severe or Pervasive
Minyard argues that the alleged conduct of which Wade complains "falls into the category of ordinary workplace tribulations" which includes conduct such as "the sporadic use of abusive language, gender-related jokes, and occasional teasing." (Brief in Supp. Mot. Summ. J. (Wade) at 11-12) (citing Faragher, 524 U.S. at 788). Wade complains that Lane harassed her by 1) moving his tie on one occasion and saying "look, you made me get on hard" while looking at his penis; 2) telling Wade that he loved her on several occasions; (3) asking Wade if she was "intimate" with other people; and (4) calling her "stinky" and punching her in the stomach. Minyard argues that the first three of these incidents are "nothing more than isolated remarks of a relatively innocuous nature" and that the last, even if offensive, was sex-neutral, and thus not actionable as a matter of law.
The Court disagrees on both scores. First, Lane's comments, if made, were not "innocuous", they were abhorrent and completely inappropriate in a workplace environment. And while it is true that Lane's remarks, taken alone, may not support a hostile work environment claim, they cannot be viewed in a vacuum. See Casiano v. ATT Corp., 213 F.3d 278, 285 (5th Cir. 2000) (finding that isolated comments which would not, standing alone, constitute sexual harassment must be viewed "in pari materia with multiple incidents of egregious sexual misconduct"); Contreras v. Waffle House, Inc., 2002 WL 1477442, at * 6 (N.D. Tex. July 9, 2002) ("[S]ingle incidents should not be viewed in isolation; it is the cumulative effect of offensive behavior which creates the work environment."); Chavera v. Victoria Ind. Sch. Dist., 221 F.Supp.2d 741, 750 (S.D. Tex. 2002) (finding that isolated incidents of sex-neutral conduct must be viewed in the context of plaintiff's claim as a whole).
Lane's comments must rather be looked at as part of the larger picture of harassment drawn by Wade, which includes being punched in the stomach by Lane. According to Wade's deposition testimony, the alleged assault occurred immediately after an episode where Lane told Wade that he loved her, asked her if she was intimate with other people, and called her "stinky." (Def.'s Wade App. at 46). Although Wade only alleges this one assault, "to survive summary judgment on a hostile environment claim, a plaintiff need only show that the harasser's conduct was `severe or pervasive.'" La Day v. Catalyst Tech., Inc., 302 F.3d 474, 483 (5th Cir. 2002) (emphasis in original); Indest, 164 F.3d at 264 n. 8 (characterizing physical assault as an extreme form of sexually-categorized behavior). The Court finds that a reasonable jury could conclude that Lane's alleged assault of Wade and other actions were sufficiently severe, precluding summary judgment on this issue. See Mota, 261 F.3d at 524 (finding that jury could "rationally infer" that harasser's conduct "was sufficiently extreme as to create a hostile work environment" where head of periodontics department head made "repeated, aggressive sexual advances in the fact of adamant refusals" by lower-level visiting professor); Matheny v. Safesite, Inc., 2004 WL 1932866, at * 6 (N.D. Tex. Aug. 31, 2004) (finding existence of genuine issue of material fact where plaintiff's supervisor made several sexually-related comments and engaged in other inappropriate sexually-related behavior); Olsen, 196 F.Supp. 2d at 438-40 (finding material fact issue where grocery store department head "made inappropriate sexual comments to [plaintiff], touched [plaintiff's] hair, and engaged in sexual banter with co-employees.").
2. Constructive Discharge and the Availability of the Ellerth/Faragher Affirmative Defense
As previously discussed, the Supreme Court has "delineate[d] two categories of hostile work environment claims: (1) harassment that `culminates in a tangible employment action,' for which employers are strictly liable, and (2) harassment that takes place in the absence of a tangible employment action, to which employers may assert an affirmative defense." Suders, 124 S.Ct. at 2352 (citing Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807). A "tangible employment action" is an official act of the company that can include hiring, firing, failing to promote, reassignment with different and/or less desirable responsibilities, or a decision causing a significant change in benefits. Ellerth, 524 U.S. at 761. In the Fifth Circuit, a "resignation is a tangible employment action under Title VII only if the resignation qualifies as a constructive discharge." Taylor v. Nickels and Dimes, Inc., 2002 WL 1827657, at *4 (N.D. Tex. Aug. 7, 2002) (citing Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001)); Chavera, 221 F.Supp.2d at 747.
Wade asserts that she resigned her employment with Minyard in the face of intolerable working conditions caused by Lane's behavior. (Wade Resp. App. at 47-48). Wade may establish constructive discharge by showing "that the abusive working environment became so intolerable that her resignation qualified as a fitting response." Suders, 124 S.Ct. at 2347; Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000). A plaintiff attempting to establish constructive discharge must make a greater showing of severity or pervasiveness than that required for a hostile work environment claim. Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 301 (5th Cir. 2001); Taylor, 2002 WL 1827657, at *4.
The Court need not determine whether Wade has met the heightened standard of hostility necessary to make out a claim of constructive discharge because it finds that even if Wade were constructively discharged, Minyard would still have recourse to the Ellerth/Faragher affirmative defense. In Suders, the Supreme Court recently held that "when an official act does not underlie the constructive discharge, the Ellerth and Faragher analysis . . . calls for extension of the affirmative defense to the employer." Suders, 124 S.Ct. at 2355. In defining the contours of what constitutes an "official act", the Supreme Court approved of the approach taken by the First Circuit in Reed v. MBNA Marketing Systems, Inc., 333 F.3d 27 (1st Cir. 2003). The plaintiff in Reed asserted that she was constructively discharged based on her supervisor's repeated sexually-charged remarks and an incident involving a sexual assault. The Reed Court held that the employer could resort to the Ellerth/Faragher affirmative defense because the supervisor's conduct was "exceedingly unofficial and involved no direct exercise of company authority." Id. at 33. As an example of official conduct which would preclude the defense, the court cited a situation where a supervisor, in retaliation for spurned advances, assigned the victimized employee to an extremely dangerous job assignment. Id.
In this case, Wade has neither alleged nor adduced any evidence suggesting that Lane's conduct can be said to constitute an "official act" of Minyard. Like the supervisor's conduct in Reed, the conduct of which Wade complains, which includes sexually harassing behavior and an alleged assault, "was exceedingly unofficial and involved no direct exercise of company authority". Suders, 124 S.Ct. at 2356 (quoting Reed, 333 F.3d at 33). Wade in fact testified that Lane did not assault her for the benefit of Minyard. (Def.'s Wade App. at 50-51). Accordingly, the Court finds that Minyard would be entitled to assert the Ellerth/Faragher affirmative defense even if Wade's resignation amounted to a constructive discharge.
Minyard carries the burden of proving the affirmative defense. Reed, 333 F.3d at 34. The first prong of the defense requires Minyard to show that it exercised reasonable care to prevent and promptly correct any sexual harassment, . Ellerth, 524 U.S. at 765. Minyard has put forth evidence that it provides its employees with an Employee Information Guide at their time of hire which contains the company's non-harassment policy. (Def.'s Wade App. at 3, 5-6). The policy instructs employees who believe that they have been sexually harassed to immediately report the harassment to Minyard's Director of Personnel or the Vice President of Personnel. ( Id.). Minyard also posts a notice on the company bulletin board at each of its stores to the same effect. ( Id. at 4, 7). The summary judgment evidence shows that Wade received a copy of the Employee Information Guide when she was hired and admits to having read it, albeit not thoroughly. ( Id. at 25-27).
The Court notes that there is no specific evidence in the record showing that the particular copy received by Wade, presumably in 2001 when she was hired by Minyard, contained the non-harassment policy that Minyard has attached to its summary judgment appendix. Nevertheless, Minyard has shown that it has in place a remedial scheme to address sexual harassment complaints in a prompt manner that allows the victim of harassment, if he or she so chooses, to bypass the accused harasser in making a complaint. See Payano v. Fordham Tremont CMHC, 287 F.Supp.2d 470, 477 (S.D.N.Y. 2003) (stating that the "existence of an anti-harassment policy is an important consideration in evaluating the first prong" of the affirmative defense). Because Wade, by failing to report the harassment she allegedly suffered, did not put Minyard's corrective apparatus to the test, the Court cannot determine whether that policy was reasonably applied as to Wade. In light of the Court's finding below that Minyard has not satisfied the second prong of the affirmative defense, the Court declines to make a finding as to whether the first prong has been met.
The second prong of the defense addresses whether Wade unreasonably failed to take advantage of the preventative or corrective opportunities afforded by Minyard. Wade concedes that she never complained to anyone at Minyard about Lane's alleged harassment. (Def.'s Wade App. at 19-20, 31, 48). She maintains, however, that her failure to do so was not unreasonable because: 1) she complained about the harassment to Lane, yet the harassment continued; 2) she learned in September 2001 that Clewis had lodged a complaint of sexual harassment against Lane and was terminated from the company soon thereafter; and 3) Lane had repeatedly told her that he was "close" with Bob Minyard, one of Minyard's owners. (Def.'s Wade App. at 20, 48).
The Fifth Circuit has not formulated a bright line rule addressing when an employee's failure to report harassment becomes unreasonable. Mota, 261 F.3d at 525. Generalized feelings of embarrassment or fear of retaliation will not justify a failure to report. See Briseno v. McDaniel, 2004 WL 2203255, at *5 (N.D. Tex. Sept. 30, 2004); Reed, 333 F.3d at 35. An employee's failure to complain may be reasonable, however, when that failure results from evidence of prior unresponsive action by the company to actual complaints or from evidence of specific threats of retaliation or claims of influence. Mota, 261 F.3d at 526 (holding that jury finding that visiting professor's failure to recur to available remedies was not unreasonable in light of department head's repeated threats of retaliation and claims of influence); Young v. R.R. Morrison and Son, Inc., 159 F.Supp.2d 921, 927 (N.D. Miss. 2000) (stating that plaintiff "may bring forward evidence of prior unresponsive action by the company or management to actual complaints.").
First, Wade cannot reasonably argue that Minyard's non-harassment policy was proven ineffective simply because Lane's harassing behavior continued after she asked him to stop. The policy provides that asking the harasser to discontinue the offensive behavior is only a first step — if the harassment persists, then the employee is directed to take his or her complaint to the Personnel Department. See Wyatt v. Hunt Plywood Co., 297 F.3d 405, 410 (5th Cir. 2002); Burrell v. Crown Cent. Petroleum, 121 F.Supp.2d 1076, 1083 (E.D. Tex. 2000) (recognizing that company's sexual harassment policy provided that victimized employee could pursue other avenues for lodging a complaint than going to the harassing supervisor). Therefore, Wade cannot justifiably claim that she had exhausted her remedies by simply asking Lane to discontinue the harassment.
Wade's other reasons for not reporting the harassment to Minyard are more substantial. Wade contends, for example, that her knowledge of the experience of her co-plaintiff, Clewis, deterred her from complaining about Lane. Before addressing this point, the Court takes an evidentiary detour. The record is unclear precisely what Wade knew and when she knew it. Wade states in her response that she learned in September 2001 that Clewis had filed a complaint of harassment against Lane and was terminated soon afterwards. (Wade's Brief in Resp. Def.'s Mot. Summ. J. at 13). Minyard, however, contends that Wade testified at her deposition that she never spoke with Clewis until May 2002, months after Wade had resigned. (Minyard's Brief in Supp. Reply (Wade) at 9). Wade's deposition testimony is muddy. Although it is clear that Wade did not speak directly with Clewis until May 2002, she began speaking with a Ms. White, a mutual friend of both Wade and Clewis, in September 2001 about her "problems" with Lane. (Wade Resp. App. at 9-11). Wade testified that White told her that Clewis had experienced similar problems with Lane; however, the level of detail in which White described Clewis's "problems" with Lane is left unclear. ( Id. at 9-12). The timing of Wade's conversation with White is also uncertain. ( Id.).
Resolving doubts in Wade's favor, the Court will assume for summary judgment purposes that Wade knew that Clewis had lodged with Minyard a complaint of sexual harassment against Lane and was terminated from the company less than a month later. If true, the Court finds that a reasonable jury could find that Wade's knowledge of Clewis's unfortunate example had a chilling effect on Wade's confidence in reporting harassment to Minyard, and that her ultimate failure to do so was reasonable.
Wade also testified that Lane's repeated boasts that he was "close" with Bob Minyard, one of Minyard's owners, cowed her into silence. (Def.'s Wade App. at 20, 48). Other courts have found that reasonable juries could conclude that an employee's failure to report harassment was reasonable when faced with a superior's claims of influence. Mota, 261 F.3d at 526 (finding that jury could have found that plaintiff's failure to avail herself of university's remedial apparatus was not unreasonable given department head's repeated threats of retaliation and claims of influence at the university); Reed, 333 F.3d at 37 (finding that juries are well-equipped to determine whether threats of retaliation and claims of influence in fact prevented employee from reporting harassment, and, if so, whether failing to report was reasonable). Accordingly, the Court finds that a reasonable trier of fact could determine that Wade acted reasonably by not invoking Minyard's remedial scheme, and it denies Minyard's motion for summary judgment with respect to Wade's hostile work environment claim.
3. Wade's Assault Claim
The Court notes that Lane did not join Minyard's summary judgment motion. Wade's claim of assault therefore remains for resolution at trial.
E. Application with Respect to Clewis
1. Whether Lane's Conduct was Severe or Pervasive
As with Wade, Minyard maintains that Lane's alleged behavior toward Clewis does not rise to the level of severe or pervasive conduct necessary to establish Title VII liability. As described more fully above, Clewis complains that Lane engaged in, among other things, the following unwelcome behavior: touching her hair, kissing her on the cheek, attempting to kiss her, making sexual advances, calling her demeaning names, and threatening her with a pocket knife on multiple occasions. The Court finds that fact issues exist regarding whether Lane's alleged conduct, which includes repeated episodes of insults, ridicule, sexual propositioning, and physical threats, rises to the level of being severe and pervasive. And while Minyard contends that Lane's alleged behavior did not interfere with Clewis's work performance, harassment's effect on work performance is, according to the Fifth Circuit, "only one factor to be considered in a hostile work environment claim." Mota, 261 F.3d at 524 n. 33.
2. Whether Minyard is Entitled to Raise the Ellerth/Faragher Affirmative Defense Clewis argues that Minyard is not entitled to the Ellerth/Faragher affirmative defense because her termination constituted a "tangible employment action." Although it may be that no employment action is more "tangible" than termination, the defense is only unavailable "when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." Ellerth, 524 U.S. at 765 (emphasis added); Johnson v. West, 218 F.3d 725, 731 (7th Cir. 2000); Watkins v. Prof'l Sec. Bureau, Ltd., 201 F.3d 439, 1999 WL 1032614, at * 3 (4th Cir. Nov. 15, 1999) (not designated for publication) (citations omitted) (finding that "[w]hile [plaintiff] is correct that termination is the quintessential `tangible employment action,' there simply is no evidence in the record establishing that [her] termination `resulted from a refusal to submit to a supervisor's sexual demands[.]"); Jones v. Rent-A-Center, Inc., 240 F.Supp.2d 1167, 1178 (D. Kan. 2002) (finding that plaintiff's termination did not preclude employer's resort to affirmative defense). Clewis instead complains that Minyard terminated her in retaliation for reporting the harassment. Although Lane was involved in reporting Clewis's alleged insubordination to Marvin and McDearmon, the record shows that Lane had no input into the termination decision itself. (Def.'s Clewis App. at 6). Therefore, the Court finds that Minyard may assert the affirmative defense. Johnson, 218 F.3d at 731 (finding that employer was entitled to affirmative defense even where supervisor's report of plaintiff's actions to "higher-ups" resulted in plaintiff being fired); Jones, 240 F.Supp.2d at 1179 (". . . when the record indicated the alleged harasser did not influence the employer's decision to terminate plaintiff's employment, courts have found that the termination was not a tangible employment action as contemplated by the Faragher and Ellerth courts.").
Having found that Minyard may raise the affirmative defense, the Court now looks at whether Minyard has proved it. Clewis testified that she read Minyard's Employee Information Guide 15 years ago when she was hired and does not recall the specifics of the company's non-harassment policy. (Defs.' Clewis App. at 74). Minyard, for its part, has failed to put forth specific evidence showing that the Minyard harassment policy attached to Minyard's appendix is the same one that was in place 15 years ago when Clewis was hired. Nevertheless, because Clewis reported that harassment, in evaluating the reasonableness of Minyard's policy the Court will look at the actual steps taken by Minyard to prevent further harassment by Lane.
First, the evidence shows that Marvin met with Clewis on December 21, 2000 to discuss Clewis's allegations. ( Id. at 4). Then, on December 26, 2000, Marvin and McDearmon met with Lane. ( Id. at 5). Although Lane adamantly denied the allegations, Marvin and McDearmon instructed him to treat Clewis as he would any other employee, to not retaliate against her, and to confine his interactions with her to business matters. ( Id.). Marvin's affidavit goes on to state that: "[l]ater that day, I continued my investigation into Ms. Clewis' allegations. The witnesses that Ms. Clewis claimed could corroborate her allegations, however, categorically denied them." (Defs.' Clewis App. at 5). Marvin testified at her deposition, however, that she conducted all interviews, save for Lane's, after Clewis was terminated on December 29, 2000 (Clewis Resp. App. at 211). If it is true that Marvin conducted no interviews of witnesses who could have possibly corroborated Clewis's allegations until after Clewis was terminated, this casts doubt as to both the reasonableness of Minyard's investigation and the swiftness with which it was conducted. Furthermore, Clewis contends that when she met with Marvin and McDearmon on December 29, 2000 to discuss her alleged acts of insubordination, Marvin told her that her that her sexual harassment allegations seemed "fabricated", a fact which Marvin denies. (Clewis Resp. App. at 91-92; Defs.' Clewis App. at 7). In short, the Court finds that triable fact issues exist as to whether Minyard took reasonable measures to deal with Clewis's complaints, and summary judgment is therefore improper.
3. Clewis's Retaliation Claim
Clewis also claims that Minyard retaliated against her for reporting Lane's alleged harassment by terminating her on December 29, 2000. Retaliation claims under Title VII are governed by the three-part McDonnell Douglas test. Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004). Clewis must first demonstrate the existence of a prima facie case of retaliation, which includes evidence that (1) she engaged in an activity protected by Title VII; (2) that an adverse employment action occurred; and (3) that a causal link exists between the protected activity and the adverse employment action. Roberson v. Alltel Info. Servs., 373 F.3d 647, 655 (5th Cir. 2004). It is undisputed that Clewis has satisfied the first two requirements. The Court further finds that the sheer closeness in time between Clewis's complaint of harassment and her termination — less than a month — is sufficient to satisfy the causal connection requirement. See Evans v. City of Houston, 246 F.3d 344, 254 (5th Cir. 2001); Weeks v. Nations Bank, N.A., 2000 WL 341257, at *3 (N.D. Tex. March 30, 2000).
Once a prima facie case is shown, the burden of production shifts to Minyard to identify a legitimate, non-retaliatory reason for its decision to terminate Clewis. Davis, 383 F.3d at 319. Minyard asserts that it terminated Clewis for insubordination resulting from her repeated refusals to follow supervisor's directives. (Defs.' Clewis App. at. 6, 19-26). "The failure of a subordinate to follow the direct order of a supervisor is a legitimate nondiscriminatory reason for discharging that employee." Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 167-68 (5th Cir. 1999). The Court thus proceeds to the third step of the McDonnell Douglas test.
In the third step, Clewis must present evidence raising a fact issue that Minyard's explanation for terminating her is pretext. Evans v. City of Houston, 246 F.3d 344, 351 (5th Cir. 2001). The ultimate question for the finder of fact is whether Clewis has shown that her termination would not have occurred "but for" her complaint of harassment. Id. at 354. To survive summary judgment, Clewis must raise a fact issue allowing a jury to "reasonably conclude that the employer's justification is unworthy of credence and is pretext for . . . retaliation." Mato v. Baldauf, 267 F.3d 444, 452 (5th Cir. 2001).
The Court finds that Clewis has done so. At the time of her termination, Clewis had worked for Minyard for approximately 15 years. She has produced evidence that she received generally favorable performance evaluations. (Clewis Resp. App. at 261-82). These facts, together with the suspicious timing of Clewis's termination — less than a month after she had complained about Lane — plus Lane's involvement in reporting Clewis's alleged "insubordination" to Minyard's Personnel Department, could raise an inference of retaliation to a reasonable jury. Evans, 246 F.3d at 356 (finding that, among other things, temporal proximity between protected activity and demotion and lack of documentary evidence tending to show disciplinary problems were sufficient to raise inference of retaliation). The Court therefore denies Defendants' motion for summary judgment on Clewis's retaliation claim.
The Court notes that Defendants moved for summary judgment on any assault claim that may be construed from the facts contained in Plaintiffs' Second Amended Complaint. Because it is clear that Clewis is not bringing an assault claim against Lane, the Court will not address Defendants' request for summary judgment on that claim.
III. Conclusion
For the foregoing reasons, the Court DENIES Defendant Minyard Food Stores, Inc.'s Motion for Summary Judgment on Plaintiff Joyce Wade's Claims (docket no. 36). Wade's Title VII sexual harassment claim, and her claim of assault against Defendant Ronnie Lane therefore remain for resolution at trial. The Court also DENIES Defendants' Motion for Summary Judgment on Plaintiff Janet Clewis' Claims (docket no. 40). Clewis's Title VII sexual harassment and retaliation claims remain for trial. Plaintiff Joyce Wade's Motion to Strike Portions of the Declaration Attached to Defendant's Summary Judgment Evidence (docket no. 45) and Plaintiff Janet Clewis's Motion to Strike Portions of the Declaration Attached to Defendant's Summary Judgment Evidence (docket no. 49) are DENIED as MOOT. Plaintiffs may re-urge their evidentiary objections at trial. The Court will enter a separate order establishing pretrial deadlines and setting this case for trial.SO ORDERED.