Opinion
ACTION NO. 4:01-CV-713-Y.
July 25, 2003.
ORDER PARTIALLY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Pending before the Court is defendant Aramark Educational Resources, Inc. ("Aramark")'s Motion for Summary Judgment [doc. # 21-1], filed January 7, 2003. Having carefully considered the motion and the response, the Court concludes that the motion should be PARTIALLY GRANTED.
I. RELEVANT BACKGROUND
In analyzing Aramark's motion for summary judgment, the Court is required to view the facts in the light most favorable to Moore. See Lavespere v. Niagra Mach. Tool Works, infra. Consequently, the Court will recite the facts as alleged by Moore.
On or about December 1999, Plaintiff Joellen Moore was hired by Aramark to work as an assistant teacher at the Euless, Texas location of Children's World Learning Centers ("Children's World") a daycare center. On Monday, July 3, 2000, Larry McAlister began working for Aramark as an assistant teacher in the same classroom as Moore. Moore claims that McAlister "began making provocative advances to [Moore], began to intentionally have unnecessary, unsolicited physical contact with [Moore], and induced [Moore's] students to make statements to [Moore] about Mr. McAlister's feelings about [Moore]." (Pl.'s Pet. at 3.) Specifically, Moore claims that McAlister bumped into her on purpose, used the children to flirt with her, asked her to come to his apartment, called her several times at home, placed his hands on her waist on several occasions, and constantly asked her questions about whether she had a boyfriend or would date a "black man."
The record is not clear on exactly when Moore began working for Aramark.
McAlister was apparently a 26-year old African-American male.
Moore claims that she gave her telephone number to McAlister when he asked her for it because she did not know what else to do.
After several days of working with McAlister, Moore, on Friday, July 7, reported McAlister's behavior to her supervisor, Tracy Lewis. (Def.'s App. at 13.) According to Moore, "[Lewis] told me I needed to handle the situation and I then asked her not to say anything and to let me tell him." (Def.'s App. at 20.) Moore claims that McAlister continued to flirt with her and whispered insulting words to her when she asked him to do her a favor.
Moore and McAlister did not work on Tuesday, July 4 because it was a national holiday.
The exact dates certain events happened is unclear from the record.
The next week, on Monday, July 10, McAlister asked Moore if she had told anyone that she did not like him flirting with her. Moore then asked Debbie, the assistant manager, if she had told McAlister that Moore was complaining about his behavior. Debbie allegedly told Moore that she did not know what Moore was talking about.
The record does not indicate Debbie's last name.
On Tuesday, July 11, Moore went home from work early because she was sick. Before she left, McAlister was teasing her and making racial remarks to her. In addition, Debbie called Moore into the office and told her that she needed to watch her actions with the children. Debbie also told Moore that a girl named Alexandra was dropping out of the daycare because Alexandra "was writing about stuff Mr. Larry had said to her and her father found it." (Def.'s App. at 23.) Moore told Debbie that she had recently had a phone conversation with a girl from the daycare named Tiffany Ames in which Ames stated that "Mr. Larry flirts with all the little girls." (Def.'s App. at 23.) According to Moore, Debbie ignored her remarks. (Def.'s App. at 23.)
Specifically, Debbie told Moore that Moore should not hold the children, let them sit in her lap, or allow them to kiss her on the mouth. (Def.'s App. at 23.).
Moore went to the doctor on Wednesday, July 12, and was diagnosed with bronchitis. She called Lewis on July 12 and once again informed Lewis that she felt uncomfortable working with McAlister. Moore requested that Lewis move McAlister to another room. Lewis refused her request, however, and offered to allow Moore to change rooms. This upset Moore because she did not want to change rooms, she had seniority over McAlister, and she was attached to the children in her room.
Moore returned to work on Friday, July 14, whereupon she once again refused Lewis's offer to change rooms. She was informed that Ames was dropping out of the daycare because Tiffany's "mother said she didn't like the relationship that they [sic] two of [them] had and that [Moore] shared too much adult information with [Tiffany] ." (Def.'s App. at 24.) During the children's nap time, several of the children at the daycare began complaining to Moore about McAlister's behavior toward them. Moore reported the conversations to Debbie and to another co-worker named Stacey Prosise. Shortly thereafter, Lewis placed Moore and McAlister on paid administrative leave. Although Moore got paid during her leave, she was paid for only four hours a day, whereas she had been working more hours than four hours a day.
Ames occasionally would call Moore at home. (Def.'s App. at 24.).
McAlister never returned to work for the defendant.
On July 17, Moore called the daycare center and asked Lewis why she was placed on administrative leave. Lewis stated that Moore had "made accusations against someone in the company and he denies those accusations." (Def.'s App. at 25.) Several days later, Debbie called Moore and told her that the center was conducting an investigation and that they needed Moore to answer some questions. Moore, along with her father, went to the center and Debbie asked Moore multiple questions concerning Tiffany Ames and Moore' s conversations with the children. In addition, Debbie asked Moore one question regarding McAlister: whether Moore had given McAlister her phone number. At this interview, Moore mentioned that she was going to "go forward with the sexual harassment lawsuit." (Def.'s App. at 10.)
Subsequently, on August 11, Moore attended a meeting with Lewis and Rose Morelock, district manager of Children's World Learning Centers. At the meeting, Morelock told Moore that the investigation was complete and requested that Moore "drop the lawsuit." (Def.'s App. at 10.) In addition, Morelock told Moore that she could return to work if she signed a performance improvement plan that indicated Moore had made inappropriate verbal comments to a child. Moore signed the form and asked to be transferred to another location. Subsequently, she returned to work as a lead teacher at the Bedford, Texas location of Children's World Learning Centers. In November 2000, she voluntarily resigned from her employment with Children's World Learning Centers. Thereafter, on March 22, 2001, Moore filed a petition in state court alleging two causes of action against Aramark: (1) sexual harassment and (2) retaliation.
Moore testified in her deposition that the form contained a section titled "supporting comments" that stated:
July 14th, 2000 Jo had children sitting around and Stacy witnessed Jo asking children inappropriate questions concerning Larry. Jo also gave her phone number to a student who disenrolled as a result.
(Def.'s App. at 12.).
Moore originally filed suit against Aramark and McAlister. Her claims against McAlister were dismissed on April 19, 2002.
Aramark removed the suit to this Court on August 17, 2001.
II. SUMMARY-JUDGMENT STANDARD
Summary judgment is proper when the record establishes "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). An issue is considered "genuine" if "it is real and substantial as opposed to merely formal, pretended, or a sham." Bazan v. Hidalgo Cty., 246 F.3d 481, 489 (5th Cir. 2001) (citing Wilkinson v. Powell, 149 F.2d 335, 337 (5th Cir. 1945)). Facts are considered "material" if they "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether there are any genuine issues of material fact, the Court must first consult the applicable substantive law to ascertain what factual issues are material. Lavespere v. Niagra Mach. Tool Works, 910 F.2d 167, 178 (5th Cir. 1990). Next, the Court must review the evidence on those issues, viewing the facts in the light most favorable to the nonmoving party. Id.; Newell v. Oxford Mgmt. Inc., 912 F.2d 793, 795 (5th Cir. 1990); Medlin v. Palmer, 874 F.2d 1085, 1089 (5th Cir. 1989)In making its determination on the motion, the Court must look at the full record including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. See FED. R. CIV. P. 56(c); Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). Rule 56, however, "does not impose on the district court a duty to sift through the record in search of evidence to support" a party' s motion for, or opposition to, summary judgment. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir. 1992). Thus, parties should "identify specific evidence in the record, and . . . articulate" precisely how that evidence supports their claims. Forsyth v. Barr, 19 F.3d 1527, 1536 (5th Cir. 1994). Further, the Court's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249.
To prevail on a motion for summary judgment, the moving party has the initial burden of demonstrating that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. See Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). A defendant moving for summary judgment may submit evidence that negates a material element of the plaintiff's claim or show that there is no evidence to support an essential element of the plaintiff's claim. See Celotex Corp., 477 U.S. at 322-24; Crescent Towing and Salvage Co. v. M/V Anax, 40 F.3d 741, 744 (5th Cir. 1994); Lavespere, 910 F.2d at 178.
To negate a material element of the plaintiff's claim, the defendant must negate an element that would affect the outcome of the action. See Anderson, 477 U.S. at 247. If the defendant moves for summary judgment alleging no evidence to support an essential element of the plaintiff's claim, the defendant need not produce evidence showing the absence of a genuine issue of fact on that essential element. Rather, the defendant need only show that the plaintiff, who bears the burden of proof, has adduced no evidence to support an essential element of his case. See Celotex, 477 U.S. at 325; Teply v. Mobil Oil Corp., 859 F.2d 375, 379 (5th Cir. 1988).
When the moving party has carried its summary-judgment burden, the respondent must go beyond the pleadings and by his own evidence set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e). This burden is not satisfied by creating some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. See Anderson, 477 U.S. at 249-50.
III. ANALYSIS
A. Sexual Harassment
Title VII makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C.A. § 2000e-2(a)(1) (West 1994). "A plaintiff may establish a Title VII violation by proving that sex discrimination has created a hostile or abusive working environment." Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 298 (5th Cir. 2001); see Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). To establish a hostile working environment claim, Moore must show that (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) Aramark knew or should have known of the harassment and failed to take prompt remedial action. See Woods, 274 F.3d at 298; see also Green v. Adm'rs. of Tulane Educ. Fund, 284 F.3d 642, 655 (5th Cir. 2002). For harassment to affect a term, condition or privilege of employment, it must be sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754 (1998). Such a determination can be made only after reviewing all of the relevant circumstances, such as "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." Nash v. Electrospace Sys. Inc., 9 F.3d 401, 404 (5th Cir. 1993) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)). "In order to state a cause of action under Title VII, sexually objectionable conduct must be both objectively and subjectively offensive (i.e., perceived by the victim as well as by a reasonable person to be both hostile and abusive) ." Jones v. Seago Manor Nursing Home, No. CIV. A. 3:01-CV-2406AH, 2002 WL 31051027, at *3 (N.D. Tex. Sept. 11, 2002).
The fifth element only applies in cases such as this one where the alleged harasser is a co-worker. See Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999).
Moore contends that McAlister was forcing her to endure unwelcome harassment when he: (1) touched Moore's hips or waist on several occasions; (2) called Moore a racist; (3) asked Moore, "Does it offend you when people flirt with you?"; (4) whispered into Moore's ear, "Fuck no" after Moore asked him if he would do a favor for her; (5) continually asked Moore is she would ever date a black guy, whether she had problems dating a black guy, and if her parent' s would allow her to date a black guy; (6) told Moore that she was a little rich, spoiled girl; (7) asked Moore why she did not have a boyfriend; (8) telephoned Moore at her home on several occasions; and (9) asked Moore if she would come to his apartment. After reviewing all of the allegations made by Moore, the Court concludes that these incidents simply do not rise to the level of affecting a term, condition, or privilege of her employment. To begin with, Moore worked with McAlister for a period of only 7 days. Furthermore, in her deposition, Moore admits that she never felt threatened by McAlister's conduct and that the alleged harassment did not unreasonably interfere with her work performance. (Def.'s App. at 3, 5, 6, 33.) In addition, she testified that she did a good job and was still able to do her job the best that she could in spite of McAlister's conduct. (Def.'s App. at 6.) Although McAlister's behavior and comments were obviously inappropriate, his conduct was not so severe to amount to a change in the terms and conditions of employment. See Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 872-75 (5th Cir. 1999) (holding that intermittent sexual comments, attempts to look down plaintiff's dress, and touching arm did not establish hostile environment); Jones v. Seago Manor Nursing Home, No. CIV.A. 3:01-CV-2406-AH, 2002 WL 31051027, at *1-4 (N.D. Tex. Sept. 11, 2002) (holding that several limited lewd and unwelcome verbal comments and physical contact of a sexual nature did not create a severe and pervasive hostile work environment). Because McAlister's conduct did not render Moore's work environment objectively "hostile" or "abusive", Aramark is entitled to summary judgment on this claim.
From the record, it appears that Moore worked with McAlister on July 3, 5, 6, 7, 10, 11 (for a half-day), and 14.
B. Retaliation
Title VII makes it unlawful for any employer to retaliate against an employee for bringing a charge under Title VII. See 42 U.S.C.A. § 2000e-3(a) (West 1994). Retaliation claims based upon circumstantial evidence, such as this one, are evaluated under the burden-shifting framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05 (1973). See Evans v. City of Houston, 246 F.3d 344, 352-54 (5th Cir. 2001). Under the McDonnell Douglas framework, the plaintiff must first establish a prima-facie case of retaliation. See Haynes v. Pennzoil Co., 207 F.3d 296, 299 (5th Cir. 2000). To establish a prima-facie case, a plaintiff must show: (1) the plaintiff engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) there was a causal connection between the participation in the protected activity and the adverse employment action. See id.; Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997). If the plaintiff establishes a prima-facie case, then a presumption of discrimination arises and the burden shifts to the defendant to articulate — but not prove — a legitimate nondiscriminatory reason for the adverse employment action. See Evans, 246 F.3d at 350; Haynes, 207 F.3d at 299. If the defendant meets its burden of production, then the presumption of intentional discrimination is rebutted and the burden shifts back to the plaintiff to show that the reason proffered by the defendant is merely a pretext for discrimination. See Evans, 246 F.3d at 350; Haynes, 207 F.3d at 299.
"A plaintiff alleging Title VII retaliation may establish her case . . in one of two ways: she may either present direct evidence of retaliation, which is also known as the `mixed-motive' method of proving retaliatory motivation; or she may provide circumstantial evidence creating a rebuttable presumption of retaliation." Fabela v. Socorro Indep. School Dist., 329 F.3d 409, 414-15, (5th Cir. 2003).
"The `causal link' required in prong three of the prima facie case for retaliation is not as stringent as the `but for' standard." Evans, 246 F.3d at 354.
"It is important to note . . . that although the McDonnell Douglas presumption shifts the burden of production to the defendant, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (citing Burdine, 450 U.S. at 253.
Plaintiff may show pretext "directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256-57.
As the Supreme Court acknowledged in Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133 (2000), "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false" may be sufficient to infer discrimination. Reeves, 530 U.S. at 148.
Based on the foregoing, the first issue is whether Moore has shown a prima-facie case of retaliation. It is clear that Moore has met the first element of a prima-facie case because she has demonstrated that she engaged in protected activity by complaining to Lewis about McAlister's conduct toward her. See Long, 88 F.3d 300 at 304 (stating that an "employee has engaged in activity protected by Title VII if she has either (1) `opposed any practice made an unlawful employment practice' by Title VII or (2) `made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing' under Title VII") (quoting 42 U.S.C. § 2000e-3(a)).
The second element of a prima-facie case requires that Moore demonstrate that she suffered an adverse employment action. "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). "[T]ypical examples of ultimate employment decisions that can support a claim of retaliation include `hiring, granting leave, discharging, promoting, and compensating.'" Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528, 531 (5th Cir. 2003).
Ultimate employment decisions include: demotions, denials of pay increases, discontinuation of an employee's stipend, denial of request for paid leave, denial of request to extend unpaid leave, termination, failure to promote, denial of pay raise, refusal to consider employee for another position after closing employees department, and constructive demotion. See Hernandez, 321 F.3d at 532 n. 2. Ultimate employment decisions do not include: changing locks, restructuring office procedures, clarifying job duties, reprimands, removal of employee's name from letterhead, ostracism by coworkers, loss of some job duties, assignment to less desirable shift, formal discipline, denial of transfer request to an identical position at a different job site, rude treatment by employer, monitoring of employee's conversations, threats of potential dismissal, or low evaluations that could lead to missed pay increases. Id.
Moore claims that she suffered an adverse employment decision when she was placed on paid administrative leave for a period of three weeks but was only paid for four hours of work a day when she had been working additional hours each day since graduating from high school. Because ultimate employment decisions include those decisions that affect an employee's compensation, Aramark's decision to decrease Moore's compensation during the paid administrative leave period constitutes an adverse employment action. Cf. Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir. 2000) (finding that police officer who was placed on paid administrative leave for several months and returned to his pre-leave position did not suffer adverse employment action as to his retaliation claim); Benningfield v. City of Houston, 157 F.3d 369, 378 (stating that plaintiff did not suffer adverse employment action when promotion was delayed two years in response to her exercising her free speech rights because she eventually received the promotion with retroactive pay and seniority).
The final element in establishing Moore's prima-facie case is whether there is a causal connection between Moore's complaints to her supervisors about McAlister's behavior and Moore' s being placed on administrative leave. "In order to establish the causal link between the protected conduct and the illegal employment action as required by the prima facie case, the evidence must show that the [adverse employment action] was based in part on knowledge of the employee's protected activity." Sherrod v. Am. Airlines, 132 F.3d 1112, 1122 (5th Cir. 1998); see Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001). The causal connection can be inferred from circumstantial evidence, such as showing the employer had knowledge that the plaintiff engaged in a protected activity and showing the temporal proximity of that activity to the alleged retaliatory action. See Evans, 246 F.3d at 354. "`[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." Evans, 246 F.3d at 345 (quoting Long, 88 F.3d at 305 n. 4).
In this case, the evidence indicates that within days after Moore on several occasions complained to her supervisors about McAlister's conduct towards her, she and McAlister were placed on partially paid administrative leave. The evidence further indicates that Aramark's decision was based, at least in part, on the events involving McAlister and Moore. In fact, according to Moore, Lewis told her that the reason she was placed on administrative leave is because Moore had made accusations against someone in the company. Viewing the facts and all inferences in favor of Moore, the Court concludes that there is a causal link between Moore's complaints about McAlister and being placed on administrative leave. Thus, Moore has established a prima-facie case of retaliation.
The Court notes that this evidence might constitute direct evidence of retaliation such that the McDonnell Douglas test would be inapplicable. See Fierros v. Texas Dept. of Health, 274 F.3d 187, 192 (5th Cir. 2001) (finding that if a "plaintiff presents direct evidence that the employer's motivation for the adverse action was at least in part retaliatory, then the McDonnell Douglas framework does not apply"). However, because neither party addresses this issue and since the Court concludes that Aramark is not entitled to summary judgment regardless of the method of proof, the Court will not address this issue.
Consequently, the burden shifts to Aramark to articulate a legitimate nondiscriminatory reason for the adverse employment action. Aramark claims that it placed McAlister on paid administrative leave because "Moore asked inappropriate questions about [McAlister] to the children and talked to a child at home possibly resulting in the child disenrolling from Children's World." (Def.'s Mot. at 18.) However, there is a factual issue whether Aramark's non-discriminatory reasons were pretextual because there is evidence that Aramark, during its investigation of the situation, told Moore that she was placed on administrative leave because she had made accusations against another employee and asked if she had given McAlister her phone number. This evidence suggests that Aramark's alleged reasons for placing Moore on partially paid administrative leave are pretextual and that Aramark's actions were in retaliation for the complaints that Moore made about McAlister's conduct. Consequently, Aramark is not entitled to summary judgment on Moore's claim for retaliation.
IV. CONCLUSION
Based on the foregoing, it is ORDERED that Aramark's Motion for Summary Judgment [doc. # 21-1] is GRANTED as to Moore's claim for sexual harassment but DENIED as to Moore's claim for retaliation.