Opinion
Civil Action No. 6:01-CV-092-C
October 29, 2002
ORDER
On this date the Court considered Defendant's Motion for Summary Judgment tiled on September 16, 2002, by Shannon Medical Center ("Defendant"). Sonia Arizola ("Plaintiff") filed Plaintiff's Opposition to Defendant's Motion for Summary Judgment on October 7, 2002. Defendant's Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment and Motion to Strike Portions of Plaintiff's Evidence in Opposition and Brief Incorporated was untimely filed on October 23, 2002. Although this Court need not consider materials submitted after a reasonable filing deadline, for the sake of thoroughness and clarity, this Court has considered the pertinent arguments raised in Defendant's untimely filed Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment and Motion to Strike Portions of Plaintiff's Evidence in Opposition and Brief incorporated. After considering all the relevant arguments and evidence, the Court GRANTS in part and DENIES in part Defendant's Motion for Summary Judgment and DENIES as moot Defendant's Motion to Stiike Portions of Plaintiff's Evidence in Opposition
I FACTUAL BACKGROUND
Plaintiff is a Hispanic female who was employed by Defendant as a licensed vocational nurse ("L.V.N") from November 2, 199S, umilil Plaintiff's discharge on January 8, 2000. Defendant is a corporation duly organized and existing under the laws of the State of Texas. At all times relevant to this matter, Defendant was an employer engaged in an industry affecting commerce.
Plaintiff was previously employed by Defendant from April 1992 until sometime in November 1994.
Plaintiff claims that until she registered reports of sexual harrassment, discriminatory treatment, and patient abuse/neglect with Defendant's human relations department, Plaintiff had, throughout her entire employment with Defendant, received performance reviews which were satisfactory or higher. Plaintiff also claims in her Complaint that she had neither received nor was aware of any previous disciplinary warnings, either written or oral, until her termination in January 2000. However. Plaintiff acknowledged in her deposition that she "remember(ed] one write-up" in June or July 1999 and that "I remember this one" when asked about a December 1999 disciplinary write-up.
Plaintiff alleges that her immediate supervisor, Marilyn Pritchett ("Pritchett"), R.N., a non-Hispanic female, engaged in a pattern and practice of harassment and discrimination against Plaintiff on account of Plaintiff's Hispanic national origin. Plaintiff also alleges that, in addition to the harassment and discrimination directed specifically against Plaintiff; Pritchett purposefully treated non-Hispanic nurses preferentially. In addition, Plaintiff claims that Pritchett' s discrimination against Plaintiff adversely affected the health of various patients at Defendant's medical facility, because Pritchett's discrimination unreasonably interfered with Plaintiff's ability to properly perform her L.V.N. patient duties.
Plaintiff also complains that Pritchett physically and verbally abused Plaintiff and once cursed at Plaintiff in the presence of Plaintiff's co-workers. According to Plaintiff, Pritchett also denied Plaintiff's requests for time off to find new child care and threatened to make a written complaint against Plaintiff for taking unexcused absences from work to amend to personal matters.
Plaintiff testified in her deposition that Pritchett said "[t]hat's bullshit" in the presence of Lucy Barron C.N.A.
Plaintiff also alleges in her Complaint tha Defendant engaged in a pattern and practice of harassment against Plaintiff on account of her gender and allowed Modesto Segoviano ("Segoviano"), a male R.N. employed by Defendant, to sexually harass Plaintiff. Plantiff claims that Segoviano made sexual comments and on more than one occasion made sexually suggestive gestures to Plaintiff. Plaintiff contends that Segoviano's harassment was constant severe, and pervasive; however Plaintiff testified in her deposition that Segoviano only made such sexual comments "every now and then"
Plaintiff testified in her deposition that Segoviano flicked his tongue at her in a sexually suggestive manner.
Plaintiff claims that she reported the alleged harassment, discrimination, and hostile workplace conditions created by Pritchett and Segoviano to Defendant's human relations department beginning in April 1999, but Defendant ignored Plaintiff's complaints and allowed the alleged constant, severe, and pervasive harassment, discrimination, end hostile workplace conditions to continue without interruption. At some point in time, because Defendant's human relations department had repeatedly failed to respond to her complaints, Plaintiff contends that she began to contact Defendant's human relations department on a weekly basis to check on the progress regarding her employment complaints, but Plaintiff claims to have received no feedback from Defendant
Following Plaintiff's complaints to Defendant's human relations department Plaintiff claims that on November 18, 1999, Plaintiff received a poor performance evaluation, which Pritchett, Plaintiff's immediate supervisor, refused to discuss with Plaintiff despite Plaintiff's request to do so. On December 20. 1999, Plaintiff reported to Defendant's human relations department that Plaintiff feared that she would lose her vocational nursing license if Pritchett's interference with Plaintiffs L.V.N. patient duties continued to cause potential risk of injury to Defendant's patients. In addition, Plaintiff alleges that she told Defendant's human relations department that Plaintiff was concerned about the negative effects the alleged harassment, discrimination, and hostile workplace environment were having on Plaintiff personally, as well as Defendant's patients.
Plaintiff submitted evidence that she was treated for Bell's palsy in August 2000, seven months after Plaintiff's termination and that her physicians said it was caused by stress.
Plaintiff claims that Defendant (I) cancelled a December 29, 1999, appointment which had been scheduled to discuss Plaintiff's employment concerns; (2) refused to schedule a followup appointment with Plaintiff's attorney to discuss resolution of Plaintiff's issues; and (3) cancelled a January 7, 2000, meeting to discuss an accusation made against Plaintiff which accused Plaintiff of incorrectly medicating a patient the previous day, January 6, 2000.
On January 8, 2000, Plaintiff was terminated by Pritchett, allegedly based on the January 6 incident On January 10, 2000, Plaintiff contacted Defendant's human relations department and was told that she was terminated because Defendant was concerned for the safety of Defendant's patients. Plaintiff allege; however, that Defendant terminated her in retaliation for Plaintiff's efforts to rectify Defendant's allegedly discriminatory employment practices.
On April 14, 2000, Plaintiff filed an EEOC Charge of Discrimination. Thereafter, Plaintiff received a letter dated July 17, 2000, from the Board of Vocational Nurse Examiners ("Board") informing Plaintiff that an investigation into the January 6 incident had been initiated to determine whether Plaintiff had complied with all statutory requirements, viz., TEX. LAB. CODE ANN. § 302, et seq., governing licensure of L.V.N.s. Ultimately, the Board's letter of October 3, 2000, informed Plaintiff that the Board's investigation into the January 6 incident had been closed because the Board had "not developed sufficient information to justify continuing this investigation." Plaintiff alleges that Defendant filed the false and baseless claims with the Board in retaliation for Plaintiff's filing of the EEOC Charge of Discrimination and that Defendant's wrongful claims were intentional, willful, wanton, malicious, and outrageous.
Plaintiff alleges that Defendant's conduct (1) violated the Civil Rights Acts of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"); (2) constituted defamation per se; (3) constituted negligent hiring, retention, training, and supervision of Defendant's supervisors and human relations department personnel; and (4) constituted intentional infliction of emotional distress.
Plaintiff seeks declaratory judgment permanent injunction; compensatory and punitive damages; costs, expenses, and attorney's fees; and such other relief as this Court deems just.
Defendant affirmatively responds in defense that (1) reasonable care was taken to prevent and promptly correct any harassing behavior (2) Plaintiff fail ad to take advantage of the preventive and corrective opportunities provided by Defendant (3) Plaintiff was terminated for a legitimate, nondiscriminatory-reason; (4) the Texas Workers Compensation ACT TEX. LAB. CODE ANN. § 408.001 (Vernon 1996), is Plaintiff's exclusive remedy; (5) the statute of limitations bars Plaintiff's defamation claim pursuant to TEX CIV. PRAC. REM. CODE ANN. § 16.002 (Vernon 1996); and (6) Defendant is immune from liability, because Defendant's communications to the Board were required by law and are absolutely or qualifiedly privileged.
II. PROCEDURAL BACKGROUND
Plaintiff's Complaint and Juxy Demand was filed on September 13, 2001. With leave of this Court Defendant's Second Amended Answer was filed on September 4, 2002.
Defendant's Motion in Limine and Brief Incorporated was filed on September 13, 2002. Plaintiff filed no response. This Court's Order granting Defendant's Motion in Limine was filed on October 7, 2002.
Defendant's Motion for Summary Judgment was filed on September 16, 2002. Plaintiffs Opposition to Defendant's Motion for Summary Judgment was filed on October 7. 2002. Defendant's Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment and Motion to Strike Portions of Plaintiff's Evidence in Opposition and Brief Incorporated was untimely filed on October 23, 2002.
Trial in this matter is set for April 21, 2003.
III. 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 nonmovant must come forward, after adequate rime 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 vial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 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 a jury could reasonably find in the non-movant favor. Id
IV. DISCUSSION
Plaintiff has sued Defendant for discrimination in employment in violation of Title VII; defamation per se; negligent luring, retention, training, and supervision; and intentional infliction of emotional distress. Defendant moves for summary judgment on all claims and contends that no legal and/or factual grounds exist to support any of Plaintiff's causes of action.Title VII
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, condition; or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.42 U.S.C. § 2000e-2 (2000).
National Origin/Disparate Treatment/Hostile Work Environment
A plaintiff may establish a violation of Title VII by using either direct evidence of discrimination, statistical proof, or circumstantial evidence. Urbano v. Continental Airlines, Inc., 138 E.3d 204, 206 (5th Cir. 1998). Absent direct evidence of discrimination based on national origin, Plaintiff may establish unlawful national origin discrimination under the basic framework articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, the order of progression for proving a Title VII claim of discrimination is controlled by the following well-established tripartite framework:
1. The plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination;
2. If the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's termination
3 Should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.See Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177, 1178 (5th Cir. 1990) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). See also Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425-26 (5th Cir. 2000).
First. Plaintiff must prove a prima facie case of national origin discrimination under the McDonnell Douglas framework by proving that she was (1) a member of a protected group; (2) qualified for the position held. (3) discharged from the position; and (4) replaced by someone outside the protected group or otherwise terminated because of her national origin. Pratt v. City of Houston, 247 F.3d 601, 606 (5th Cir. 2001).
The parties do not dispute that Plaintiff (1) is a member of a protected group, i.e., Hispanic; (2) was qualified for the position held; and (3) was discharged from her position. Thus, the first three prongs of Plaintiff's prima facie national origin discrimination case have been met. The parties disagree however, that Plaintiff was otherwise discharged because of her national origin or that Plaintiff suffered disparate treatment because of Defendant's allegedly preferential treatment of non-Hispanics or that Plaintiff suffered a hostile work environment.
Second. When a plaintiff alleges disparate treatment "liability depends on whether the protected trait actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). A plaintiff must show that national original "actually played a role in the [employer's decision making] process and had a determinative influence on the outcome." Id To raise an inference of disparate treatment, Plaintiff must provide evidence that she was treated less favorably than similarly situated non-Hispanic employees under circumstances that are "nearly identical" Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995). Plaintiff must demonstrate "that the misconduct for which she was discharged was nearly identical to that engaged in by an employee [not within Plaintiff's protected class] whom [Defendant] retained." Smith, 891 F.2d at 1180.
Third. To establish the elements of a national origin hostile work environment, Plaintiff must create a fact issue on each of the following: (1) discriminatory intimidation, ridicule, and insults based on her national origin which were (2) sufficiently severe or pervasive so that they (3) altered the conditions of employment and (4) created an abusive working environment. Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000). "In determining whether a working environment is hostile or abusive, all circumstances must be considered, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere Offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id (internal quotations omitted). Plaintiff must show that the discriminatory conduct was sufficiently severe or pervasive to create an objectively hostile or abusive work environment. Id Routinely made racist remarks raise a fact issue to prevent summary judgment Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1049 (5th Cir. 1996).
In support of Plaintiff's claims of national origin discrimination, Plaintiff testified in her deposition that (1) Pritchett bumped into Plaintiff's shoulder once while walking down the hallway and Pritchett failed to apologize to Plaintiff (2) Pritchett bumped into Plaintiff's chair once while Plaintiff was seated in it and Pritchett failed to apologize to Plaintiff (3) Pritchett refused to assist Plaintiff promptly (or at all) when Plaintiff asked on several occasions for help with her various L.V.N. duties; and (4) Pritchett chastised Plaintiff for workplace policy infractions, even though Pritchett allegedly did not discipline non-Hispanics for the same conduct.
Plaintiff contends that Pritchett's actions (1) constituted evidence of discriminatory animus directed at Plaintiff because of her national origin; (2) evidenced disparate treatment of Plaintiff based on her national origin; and (3) created a hostile or abusive work environment based on her national origin. This Court disagrees.
Although the record suggests that a certain level of personal animus may have developed between Plaintiff and Pritchett, Plaintiff has offered no evidence that Pritchett's actions were in any way motivated by discriminatory animus because of Plaintiff's national origin. Plaintiff has offered no evidence of national origin-based derogatory remarks, insults, verbal intimidation, or verbal ridicule. Plaintiff has neither offered any comments made by Pritchett which were physically threatening or humiliating nor related any statements or conduct by Pritchett which was either sufficiently severe or pervasive to create a fact issue with respect to her claim of national origin hostile work environment.
Nor has Plaintiff provided any evidence that she was in a nearly identical situation to any other n-Hispanic employee with respect to either position held, length of service, record of performance, educational history, extra-medical experience, or disciplinary history. In addition, Plaintiff has offered no evidence of a non-Hispanic employee who was retained by Defendant despite the identical disciplinary misconduct for which Plaintiff terminated. Finally, Plaintiff has offered no evidence to establish that Plaintiff's national origin had any bearing at all on Defendant's decision to terminate Plaintiff's employment
To the contrary, the summary judgment record "gives rise to an inference of nondiscrimination because it is unlikely that a decisionmaker `would hire workers from a group one dislikes (thereby incurring the psychological costs of associating with thorn), only to fire them once they are on the job'" Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996). Plaintiff testified in her deposition that the majority of the staff at Defendant's facility were Hispanic females; that Pritchett would frequently invite a Hispanic staff member to join Pritchett for lunch and breaks; and that Pritchett also reprimanded a Caucasian co-worker for the same inappropriate language misconduct for which Pritchett reprimanded Plaintiff. Moreover, even if Plaintiff's accusations with regard to Plaintiff's perceived animosity between Plaintiff and Pritchett were true, "it has long been the law in this circuit that `Title VII. . . do[esl not protect against unfair business decisions[,] only against decisions motivated by unlawful animus, '" Nieto v. LH Packing Co., 108 F.3d 621, 624 (5th Cir. 1997) (emphasis added) Finally, Plaintiff testified that she had never complained to human resources that the reason she felt she was being treated differently was because of her Hispanic national origin.
This Court, therefore, finds that Plaintiff has failed to satisfy bar prima facie burden of establishing that her termination was motivated by her national origin, that she suffered disparate treatment because of her national origin, or that she was subjected to a racially hostile work environment based on her national origin. Accordingly, this Court finds that summary judgment is appropriate with regard to Plaintiff's Title VII national origin discrimination claims.
Sexual Harasssment/Hostile Work Environment
Plaintiff's Complaint also alleges unlawful employment discrimination in the form of sexual harassment/hostile work environment in violation of Title VII Plaintiff's Complaint contends that Segoviano subjected Plaintiff to constant, severe, and pervasive sexual harassment and that Segoviano's conduct forced Plaintiff to endure a sexually hostile work environment,
This Court notes that Plaintiff's response to Defendant's summary judgment motion (1) incorrectly uses "gender discrimination" and "sexual harassment" interchangeably and, more confusingly, (2) incorrectly intermingles the law applicable to each. However because Plaintiff's Complaint identify sexual harassment, not gender discrimination, as a violated Title VII right, the Court will limit its consideration to sexual harassment.
Defendant argues that the sexual harassment, if any, was not severe or pervasive; that Defendant had exercised reasonable care to remedy any sexual harassment; that Plaintiff had failed to take advantage of any preventive 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 Plaintiff's employment.
In a sexual harassment/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 know 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).
In the instant cases the parties do not dispute that Plaintiff, a female, is a member of a protected class. The parties do dispute the remaining elements alleged by Plaintiff As to the remainder of Plaintiff's prima facie case, this Court is not persuaded that Plaintiff has met her burden.
"A hostile work environment requires the presence of a work environment that a reasonable person would and 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 Fifth Circuit has established that Title VII was meant to bar severe and pervasive conduct that destroys a protected classmember's opportunity to succeed at work. Weller v. Citation Oil Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996). Conduct that sporadically wounds or offends someone but that does not hinder that person's performance is not actionable under Title YET. Id
"[O]ffhand comments. . . (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment" Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal quotations omitted). Title VII is not a "general civility code" and, "properly applied, . . . will filter out complaints. . . such as the sporadic use of. . . gender-related jokes and occasional teasing." Id The "conduct must be extreme." Id. A "mere utterance of an. . . epithet which engenders offensive feelings" is insufficient, without more, to support Title VII liability. Weller, 84 F.3d 194.
Although Plaintiff contends that Segoviano's sexually harassing comments were constant, severe, and pervasive, Plaintiff testified in her deposition that Segoviano only made offensive, sexually suggestive comments and gestures "every now and then" Plaintiff denied that Segoviano ever kissed her or attempted to kiss her, admitted that Segoviano had never asked her to have sexual relations with him, denied that Segoviano had ever touched her breasts or anything of that nature, and admitted that Segoviano would only touch her on the shoulder during conversations.
This Court finds that Segoviano's sporadic comments and gestures, while perhaps offensive to Plaintiff were neither frequent nor extreme, neither severe nor pervasive, and neither physically threatening nor humiliating. Additionally, this Court finds that Segoviano' s comments and gestures did not interfere with Plaintiff's work performance or cause to create en abusive working environment. This Court finds that Plaintiff has failed to establish a hostile work environment "permeated with discriminatory intimidation, ridicule and insult. . . sufficiently severe or pervasive," Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), to meet the burdens of her prima facie case. Accordingly, this Court is of' the opinion that summary judgment is warranted as to Plaintiff's sexual harassment/hostile work environment claims.
Retaliation
Plaintiff alleges that she was terminated by Defendant in retaliation for reporting the incidents of alleged discrimination and harassment to Defendant's human relations department Defendant argues there was no causal link between Plaintiff's reports of discrimination and Plaintiff's termination because Plaintiff's EEOC Charge of Discrimination, Defendant's peer review committee investigation, and the Board's inquiry were not commenced until after Plaintiff was terminated. Defendant also contends that Plaintiff's complaints to Defendant's human relations department were not activities entitled to protection under Title VII.
To establish retaliation under Title VII, Plaintiff must first make the following prima facie showing: (1) that she engaged in activity protected by Title VII; (2) that an adverse employment action occurred; and (3) that a causal link existed between the protected activity and the adverse action. Green v. Admin'rs of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002).
An employee has engaged in a "protected activity" when "he has opposed any practice mad. an unlawful employment practice. . . or because he has made a charge, testified, assisted or participated in any manner in an inveitigation, proceeding or hoaxing under this subchapter." 28 U.S.C. § 2000e-3(a) (1994). "Activities protected under Title VII fall into two broad categories — opposition and participation." Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 372 (5th Cir. 1998).
Fifth Circuit precedent employs a "balancing test" to determine whether an employee's activities are protected under Title VII. Id at 373. "(T]he employer's right to run his business must be balanced against the rights of the employee to express his grievances and promote his own welfare." Id (internal quotations omitted). The yardstick used to measure the employee's conduct is "the flexible and protean doctrine of `reasonableness in [the] light of the circumstances.'" Id at 374.
"Not all activities taken in opposition to an employers perceived discriminatory practices, however, remain insulated from reprisal under Title VII's shield." Id at 373. "[S]ome conduct, even though engaged in with the most sincere of intentions, may be so inappropriate as to justify the curtailment of statutorily-afforded [sic] safeguards." Id (finding that attorney employee's breach of confidentiality and of loyalty not only undermined her effectiveness as in house counsel, but her actions also violated the ethical rules of the legal profession, and such conduct is unprotected under Title VII). See also Jones v. Flagship Int'l, 793 F.2d 714, 727 (5th Cir. 1986) (finding that the employee's conduct in protest of an unlawful employment practice so interfered with the performance of the employee's job that it rendered the employee ineffective in the position for which he was employed; and, in such case, the employee's form of opposition was not covered under Title VII); Rosser v. Laborers' Int'l Union of N. Am., Local No. "438, 616 F.2d 221, 224 (5th Cir. 1980) (agreeing that plaintiff was fired in retaliation but finding that plaintiff's opposition activity, which consisted of seeking her boss's job through the union elections, was unprotected under Title VII); Jeffries v. Harris County Cmty. Action Ass'n, 615 F.2d 1025, 1036 (5th Cir. 1980) (determining that plaintiff's dissemination of confidential employment records calling attention to plaintiff's belief that she was a victim of discrimination was clearly unreasonable and that plaintiff was legitimately discharged).
Here, the summary Judgment evidence establishes that Plaintiff complained on numerous occasions to Defendant's human relations department about Pritchett's and Segoviano's alleged discriminatory conduct. Plaintiff testified that the various human relations department personnel repeatedly assured Plaintiff that they "would look into it" or that they "would investigate and get back with [Plaintiff]." Plaintiff testified, however; that no one from Defendant's human relations department ever got back to her with the results, or lack of results to any of Plaintiffs complaints. As a consequence, Plaintiff subsequently undertook to contact Defendant's human relations department on a weekly basis to check up on the status of the investigation into her discrimination complaints. Finally, Plaintiff testified that she scheduled several appointments to discuss her complaints, but Defendant cancelled each appointment and therafter refused to schedule additional appointments.
This Court finds that there is no summary judgment evidence which shows that Plaintiff's complaints to Defendant's human relations department in any way rendered Plaintiff ineffective in the position for which she was employed or that Plaintiff's conduct was in any way unreasonably in light of the circumstances or that Defendant's right to run its business outweighed Plaintiff's right express her grievances and promote her own welfare. Consequently, this Court finds that Plaintiff engaged in a protected activity under Title VII and has satisfied the first prong of her Title VII retaliation claim. See Green, 284 F.3d at 657 (finding that plaintiffs act of making complaints to defendant's personnel department was legally sufficient for a claim of retaliation and was protected by Title VII).
The parties do not dispute that Plaintiff was terminated. Thus, the second prong of Plaintiff's Title VII retaliation claim has been satisfied.
As to the third prong of Plaintiff's retaliation claim, Defendant argues that there is no causal nexus between Plaintiff's alleged protected activity and Plaintiff's termination. Rather, Defendant argues that Plaintiff was terminated for legitimate, nondiscriminatory reasons.
The Fifth Circuit has explicitly held that the "causal link required in prong three of the prima facie case for retaliation is not as stringent as the `but for' standard." Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001). "[A] plaintiff need not prove that her protected activity was the sole factor motivating the employer's challenged decision in order to establish the `causal link' element of a prima facie case." Id (emphasis added). "Close timing between an employee's protected activity and an adverse action against (her] may provide the `causal connection' required to make out a prima facie case of retaliation." Id
Although Defendant argues that Plaintiff was terminated because of Plaintiff's third cumulative disciplinary action, not because she complained of Defendant's alleged discriminatory conduct, this Court notes that "[a]t the summary judgment stage, the nonmovant need only point to the existence of a genuine issue of material fact" to survive summary judgment. Mason v. United Airlines, Inc., 274 F.3d 314, 316 (5th Cir. 2001). The Fifth Circuit has long held that a plaintiff need not prove the actual existence of the claimed unlawful employment practices. Payne v. McLemore's Wholesale Retail, 654 F.2d 1130, 1137 (5th Cir. 1981). See also Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998, 1004-05 (5th Cir. 1969) (holding that an employee was protected by the participation clause of Title VII from discharge in retaliation regardless of the truth or falsity of the contents of the employee's claims).
Plaintiff need only have a reasonable belief that Defendant engaged in unlawful employment practices. Payne, 654 F.2d at 1137. Plaintiff's failure to prove that Defendant had actually engaged in unlawful Title VII employment practices is not fatal to Plaintiff's retaliation claim. Id
Here, Plaintiff testified that she repeatedly complained to the human relations department about Defendant's alleged discriminatory practices over the course of her employment and that Defendant failed to investigate or resolve Plaintiff's complaints. The record also shows that, although Defendant claimed that Plaintiff's termination was based on patient life and safety issues, Defendant retained Plaintiff on staff with full L.V.N. privileges, for two days following the January 6 incident. The record also shows that Plaintiff, at a. minimum, attempted to schedule an appointment with Defendant's human relations department on December 29, 1999, to discuss her unanswered complaints, Plaintiffs attempt was rejected by Defendant. Just over one week later, January 8, 2000, Plaintiff was terminated.
This Court agrees that "the combination of suspicious timing with other significant evidence of pretext. can be sufficient to survive summary judgment." Evans, 246 F.3d at 356. This Court is persuaded that sufficient evidence in the record supports a causal connection between Plaintiff's protected activity and her termination and that Plaintiff has pointed to the existence of a genuine issue of material fact with regard to evidence of Defendant's pretext. Therefore, summary judgment with regard to Plaintiff's retaliation claim is inappropriate.
Pendent State Law Claims Defamation Per Se
Plaintiff claims in her Complaint that Defendant knowingly and maliciously gave false and negative information to the Board hoping to have Plaintiff's vocational nurse license revoked. Defendant argues (1) that Plaintiff's defamation claim is barred as a matter of law by the one-year statute of limitations and (2) that Defendant's peer review committee is statutorily immune from civil liability. Plaintiff's response to Defendant's summary judgment motion failed to address Plaintiff's defamation claim. This Court is persuaded that Plaintiff's defamation claim is banned as a matter of law.
"A person must bring suit for malicious prosecution, libel, slander, or breach of promise of marriage not later than one year after the day the cause of action accrues." TEX. CIV. PRAC. REM. CODE ANN. § 16.002(a) (Vernon Supp. 2002). Under Texas law, a defamation action is governed by the one-year statute of limitations and the cause of action accrues on the date the disparaging words are spoken or published. Chevalier v. Animal Rehab. Ctr., Inc.,, 839 F. Supp. 1224, 1231 (N.D. Tex. 1993).
Here, Plaintiff acknowledged receipt of the Board's July 17, 2000, letter informing Plaintiff that an investigation had been commenced into allegations that Plaintiff had "failed to administer blood pressure medication to Patient G.S. per physician's orders." Allowing three days for delivery of the July 17, 2000, letter, this Court finds that Plaintiff knew or should have known that the allegations made by Defendant to the Board regarding Patient G.S. were false on or about July 20, 2000. Therefore, this Court finds that Plaintiff's limitations period expired on or about July 20, 2001. Plaintiff's Complaint was filed on September 13, 2001, nearly two months after the limitations period had expired. Accordingly, this Court finds that Plaintiff's claim for defamation per se is barred as a matter of law. Consistent with such finding, this Court need not address Defendant's arguments with regard to peer review committee immunity.
Negligent Hiring, Retention, Training, and Supervision
Plaintiff claims that Defendant is liable for the negligent hiring, retention, training, and supervision of Defendant's supervisors and human relations department personnel. Defendant argues that Plaintiff is not entitled to recover under these claims because Plaintiff has failed to show that she suffered the requisite physical injury.
"An employer has a duty to adequately hire, train, and supervise employees." Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). "The negligent performance of those duties may impose liability on an employer if the complainant's injuries result from the employer's failure to take reasonable precautions to protect the complainant from the misconduct of its employees." Mackey v. U.P. Enters., Inc., 935 S.W.2d 446, 459 (Tex.App.-Tyler 1996, no pet.).
In order to impose liability under the doctrine of negligent hiring, "there must be evidence that plaintiff's injuries were brought about reason of the employment of the incompetent servant and be. in some manner job-related. Stated another way, the negligence in hiring the employee must be the proximate cause of the injuries to the plaintiff." Dieter v. Baker Serv. Tools, 739 S.W.2d 405, 408 (Tex.App. — Corpus Christi 1987, writ denied). "Under the tort of negligent hiring and supervision, an employer who negligently hires an incompetent or unfit individual may be directly liable to a third party whoac injury was proximately caused by the employee's negligent or intentional act" Verinakis v. Med Profiles, Inc., 987 S.W.2d 90, 97 (Tex.App.-Houston [14th Dist,] 1998, pet. denied). "[T]he duty of the employer. . . extends only to prevent the employee. . . from causing physical harm to a third patty." Id. at 97-98.
First Plaintiff has offered no evidence to establish that any of Defendant's personnel were incompetent or unfit for the positions held. To the contrary, Plaintiff testified in her deposition that when an employee election was held to fill the nurse supervisor position, Plaintiff voted for Pritchett to fill the position.
Second. Plaintiff has offered no evidence to show that the Bell's palsy for which she was treated seven months subsequent to her termination was in any way causally connected to the hiring, training, retention, and/or supervision of any allegedly incompetent and/or unfit employee or that the Bell's palsy was the result of Defendant's failure to protect Plaintiff from the misconduct of any of Defendant's employees. Nor has Plaintiff offered any evidence to show that the Bell's palsy was in any way job-related or arose from the breach of any duty owed by Defendant under a negligence cause of action,
This Court finds, therefore, that Plaintiff's claims against Defendant for negligent hiring, training, retention, and supervision must fail.
Intentional Infliction of Emotional Distress
Plaintiff claims that Defendant failed to properly investigate Plaintiff's discrimination claims and failed to properly respond to Plaintiff's claims of sexual harassment. Plaintiff claims, therefore, that such failures on Defendant's part constitute intentional infliction of emotional distress. Defendant argues that Defendant's conduct as alleged by Plaintiff does not constitute extreme and outrageous behavior.
Intentional infliction of emotional distress requires Plaintiff to prove the following elements (1) that Defendant acted intentionally or recklessly; (2) that Defendant's conduct was extreme and outrageous; (3) that Defendant's actions caused Plaintiff's emotional distress; and (4) that Plaintiff's resulting emotional distress was severe. Standard Fruit Vegetable Co., Inc. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1988). A claim for intentional infliction of emotional distress is available only in those instances in which severe emotional distress is the intended or primary consequence of Defendant's conduct. Id. at 67.
For Defendant's conduct to be sufficiently extreme and outrageous, the conduct must be outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Natividad v. Alexsis Inc., 875 S.W.2d 695. 699 (Tex. 1994) (quoting Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993)). Insensitive or even rude behavior does not constitute extreme and outrageous conduct. Id. "Similarly, mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not rise to the level of extreme and outrageous conduct." GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex. 1999).
Plaintiff has offered no evidence that Defendant acted intentionally or recklessly with the intended primary consequence being Plaintiff's emotional distress. Nor has Plaintiff shown that any of Defendant's conduct was outrageous in character, extreme in degree, or in any other manner atrocious or utterly intolerable. Further, Plaintiff has offered nothing to substantiate that notional distress was actually suffered by Plaintiff or that such distress was severe. Consequently, this Court finds that Plaintiff's arguments do not support a claim of intentional infliction of emotional distress.
CONCLUSION
After considering all the relevant arguments and evidence, this Court GRANTS Defendant's Motion for Summary Judgment with respect to Plaintiff's (1) Title VII national origin/disparate treatment/hostile work environment claims; (2) Title VII sexual harassment' hostile work environment claims; (3) pendent state law claim for defamation per se; (4) pendent state law claim for negligent hiring, retention, training, and supervision, and (5) pendent state law claim for intentional infliction of emotional distress; and DENIES Defendant's Motion for Summary Judgment with respect to Plaintiff's Title VII retaliation claim.
Finally, this Court DENIES as moot Defendant's Motion to Strike Portions of Plaintiffs Evidence in Opposition.