Opinion
CIVIL ACTION NO. 02-1998, SECTION "C" (2).
July 15, 2003.
ORDER AND REASONS
This matter comes before the Court on motion for partial summary judgment filed by the defendant, Buchart-Horn, Inc. Having considered the record, the memoranda of counsel and the law, the Court has determined that summary judgment is appropriate for the following reasons.
The plaintiff, Eric M. Nguyen ("Nguyen"), filed this complaint against his former employer alleging sexual harassment, employment discrimination and retaliation under 42 U.S.C. § 2000e et seq. and La.Rev.Stat. 23:332 et seq., and intentional infliction of emotional distress under Lousiana law. The conduct of Jonathan McDowell, who also worked at Buchart-Hart, is the focus of the claims.
The depositions provide the basis for most of the undisputed facts. Nguyen was working for the defendant as a draftsman. (Depo Nguyen, p. 21). Although the plaintiff thought McDowell was an engineer and his immediate boss with the power to fire him, McDowell was an engineeering intern with no supervisory duties. (Depo. Nguyen, pp. 21-22; 204-205; Depo. McDowell, pp. 8-9). McDowell is heterosexual and did not know the plaintiff's sexual orientation. (Depo. McDowell, pp. 33). The plaintiff did not know the sexual orientation of McDowell. (Depo. Nguyen, p. 110). McDowell never told plaintiff that he was interested in plaintiff sexually. (Depo. Nguyen, p. 156).
Nguyen testified that he had received an employee handbook which set forth the company policy on discrimination and unlawful harassment. (Depo. Nguyen, pp. 31-32). He attended a meeting presented by Frank Weaver ("Weaver"), defendant's human resources vice president, in which a video about the policy was shown; Nguyen admitted that he slept through most of that meeting. (Depo. Nguyen, pp. 41-44; Depo. Weaver, p. 4). Nguyen testified that he thought Julie Pawajbo ("Pawajbo"), a secretary in his office, was the person to whom complaints about sexual harassment by a supervisor were made and that he believed this because Pawajbo said that she was "the sexual harassment queen." (Depo. Nguyen, pp. 25, 44). Contrary to this understanding, Pawajbo was not designated as a sexual harassment officer. (Depo. Weaver, p. 8). According to Weaver, the defendant's policy requires that sexual harassment by a supervisor should be reported to Weaver's office. (Depo. Weaver, p. 7).
The plaintiff characterized the work atmosphere at Buchart-Horn as "family," and "casual." (Depo. Nguyen, p. 28). He stated both that the people in the office did not touch each other, and that "taps" were common, and that he and a female coworker exchanged neck massages. (Depo. Nguyen, pp. 112-114). He testified that he jokingly threatened to kiss McDowell to prove he felt sick with the flu. (Depo. Nguyen, p. 152). Nguyen also admitted that he jokingly threatened to kiss another male coworker under the Christmas mistletoe. (Depo. Nguyen, p. 223).
The plaintiff testified in deposition generally of unwanted "touching" by McDowell at work, and testified to the following specific instances: (1) McDowell smacked Nguyen on the rear end after the plaintiff had asked McDowell to stop touching him, (pp. 65-67, 104-108); (2) McDowell touched the plaintiff in the chest when looking for "sugar gliders," small live squirrels that the plaintiff "wore" in small pouches at work, (Depo. Nguyen, pp. 7273); (3) McDowell touched Nguyen's arm and commented on the muscle tone, (Depo. Nguyen, pp. 80-81, 95-96); (4) McDowell poked the plaintiff, (Depo. Nguyen, p. 82); (5) McDowell touched the plaintiff's arms and shoulders, (Depo. Nguyen, p. 97); (6) McDowell poked the plaintiff in the stomach, (Depo. Nguyen, p. 97); (7) McDowell gave the plaintiff an unwanted neck massage and a tap on the rear end, (Depo. Nguyen, pp. 116-118); and (8) McDowell "play[ed] with himself" and/or engaged in the "continual readjustment of his privates" by touching his shorts in the crotch area when the two were at the office on the weekend. (Depo. Nguyen, pp. 125, 134). The Court acknowledges that McDowell disagrees with the plaintiff's recollection as to these incidents, but will accept them as undisputed for present purposes.
For purposes of this motion, the Court will generally adopt with the specific instances set forth by the plaintiff in his opposition with two exceptions. First, there is no evidentiary basis for the characterization that McDowell "fondled" himself in the plaintiff's presence on the occasion that he allegedly touched the crotch area of his shorts. Second, there is no evidence that the plaintiff believed that McDowell's conduct was sexually motivated at the time. In fact, he repeatedly testified to the contrary, as discussed hereinafter. (Rec. Doc. 21, p. 3).
The plaintiff testified that he responded to McDowell's unwanted actions by telling McDowell to stop and by embarassing McDowell in the office. (Depo. Nguyen, p. 58). He also claims to have complained about McDowell to Powajbo, who did nothing in response. Nguyen stated that he felt retaliated against by the defendants because of harsh treatment and reprimands by a clique in the office that included McDowell. (Depo. Nguyen, pp. 207-211). He resigned after a confrontation at work about claimed overtime because "I had enough of the harassment." (Depo. Nguyen, p. 156). Nguyen testified that he felt that the disagreement over the overtime was harassment, and that he would not have resigned if the overtime dispute had not occurred. (Depo. Nguyen, pp. 136-138, 225-226).
In his complaint, Nguyen also claims that he was retaliated against when the defendant failed to give him his final paycheck. (Rec. Doc. 1, p. 5). He testified in deposition that after he resigned, he called the office to get the paycheck, and that someone at the office made a complaint to the police about the calls, which resulted in the police going to the plaintiff's house and questioning him. (Depo. Nguyen, pp. 50-52). He also testified that after resigning, he spoke with regional vice president of southern operations, Jim Haneman, and complained of harassment at the office.
The plaintiff also candidly testified that he did not consider the harassment, touching and hostility he felt at work to be sexual in nature. (Depo. Nguyen, pp. 196-199). "[A]t the time of filing with the EEOC, I never thought — what Jonathan was doing, I didn't deem as sexual harassment because it didn't occur to me at the time." (Depo. Nguyen, p. 109). "I just thought he was harassing me, period." (Depo. Nguyen, p. 109). According to Nguyen, ". . . I didn't identify sexual harassment until the [EEOC] officer told me that that's considered sexual harassment." (Depo. Nguyen, p. 134).
These facts, even if accepted as undisputed, present formidable obstacles to the plaintiff. Even assuming that the plaintiff could prove that McDowell was a supervisor, the undisputed facts preclude him from establishing either of the two cases recognized under Title VII for supervisory harassment.
In a "quid pro quo" case, the plaintiff must prove that he suffered a "tangible employment action" which resulted from his acceptance or rejection of the supervisor's alleged harassment.Casiano v. ATT Corp., 213 F.3d 278, 283-284 (5th Cir. 2000). Here, the plaintiff can not prove the fundamental tangible employment action, where he candidly admits that he would have stayed at Buchart-Horn if the overtime dispute had not arisen. In addition, Nguyen can not establish that the allegedly harassing actions were sexual in nature by virtue of his admission that he did not find the conduct sexual in nature, and the undisputed fact that McDowell did not intend for them to be so perceived either.
For this same reason, the Court finds that the plaintiff can not establish that he was constructively discharged.
If no tangible employment action can be shown, the suit is a "hostile environment" one. Id. In such a case, the plaintiff must show the hostile actions ascribed to the supervisor to be "severe or pervasive sexual harassment." The Court finds, as a matter of law, that the actions of which the plaintiff complains do not rise to that level. The plaintiff admits that the office atmosphere was very casual, and admits that he engaged in some of the same conduct at work.
Even if the conduct was sufficiently severe or pervasive, the defendant would be entitled the defense available underBurlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faracher v. City of Boca Raton, 524 U.S. 775 (1998). This defense is available if the employer exercised reasonable care to prevent and correct any sexual harassment and the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. The defendant has shown by undisputed facts that they had a policy in place to prevent sexual harassment, that the policy was presented to the plaintiff, and that the plaintiff, at most, acted on misinformation and did nothing to acquaint himself with the policy that did exist.
If the Court views the case as involving non-supervisor harassment, the plaintiff fares no better. The Court recognizes that the Fifth Circuit held in LaDay v. Catalyst Technology, Inc., 302 F.2d 474 (5th Cir. 2002), that the plaintiff must show same-sex harassment recognized in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) in one three ways.
First, he can show that the alleged harasser made "explicit or implicit proposals of sexual activity" and provide "credible evidence that the harasser was homosexual. . . . Second, he can demonstrate that the harasser was "motivated by general hostility to the presence of [members of the same sex] in the workplace." . . . Third, he may "offer direct, comparative evidence about how the alleged harasser treated members of both sexes in the mixed-sex workplace."LaDay, 302 F.3d at 479, quoting, Oncale, 523 U.S. 80 (internal citations omitted). It is what the plaintiff argues with regard to these categories of proof and, in any event, the undisputed facts preclude him from meeting any of the requirements for any of them.
Although it does not change the conclusion in this case, this Court does not read the Oncale opinion as restrictively as theLaDay court does. Specifically, this Court finds that the Supreme Court did not foreclose the possibility of same-sex harassment where the harasser is not homosexual. There is nothing in Oncale to prevent a plaintiff from claiming same-sex harassment where the harassment is motivated by hostility based on the victim's sexual orientation. "[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex." Oncale, 523 U.S. at 80. The Ninth Circuit reached this conclusion in Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002), where the victim was homosexual, and the sexual orientation of the harassers was not disclosed. The Ninth Circuit turned instead to the traditional elements of sexual harassment: physical conduct of a sexual nature which was unwelcome and sufficiently severe or pervasive as to alter the conditions of employment and create an abusive working environment. Id., 302 at 1065. Here, those traditional elements do not provide the plaintiff with a claim under the undisputed facts.
The same analysis results in the dismissal of the plaintiff's claims under La.Rev.Stat. 23:332. LaDay, 302 F.3d at 477; Trahan v. Rally's Hamburgers, 696 So.2d 637, 641 (La.App. 1st Cir. 1997).
It appears from the plaintiff's opposition that the claim for retaliation involves the post-resignation conduct and the complaint to the police, and the alleged constructive discharge of the plaintiff. The Court has dismissed the argument that the plaintiff was constructively discharged by virtue of his candid admission that he would not have resigned if the overtime dispute had not occurred. The plaintiff does not otherwise explain how post-resignation activity can constitute an actionable act of retaliation under Title VII which requires: (1) that the plaintiff engage in activity protected by Title VII; (2) that an adverse employment action occurred; and (3) that a causal link exists between the protected activity and adverse employment action. Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). As a result, the Court finds that the claims of retaliation are subject to summary judgment.
Similarly, the plaintiff has not shown facts sufficient to maintain a claim for intentional infliction of emotional distress. In order to establish the claim of intentional infliction of emotional distress under Louisiana law, the plaintiff must show: (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct. White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991). "The conduct must be so 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 society." Id., 585 So.2d at 1209. Nicholas v. Allstate Insurance Co., 765 So.2d 1017, 1021-1022 (La. 2000). The Court finds that the plaintiff's allegations taken as proven fall short of this showing of outrageousness as a matter of law.
In addition, the undisputed facts do not support the finding that this plaintiff suffered from the requisite "severe" emotional distress. [T]he mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough. . . . It follows that unless the actor has knowledge of the other's particular susceptibility to emotional distress, the actor's conduct should be judged in the light of the effect such conduct would ordinarily have on a person of ordinary sensibilities." White, 585 So.2d at 1210 (citations omitted). Again, the Court finds that the plaintiff's showing on this element falls short of the mark required for a finding of intentional infliction of emotional distress as a matter of law.
Finally, the plaintiff has made no showing that the McDowell desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct. "The conduct must be intended or calculated to cause severe emotional distress and not just some lesser degree of fright, humiliation, embarrassment, worry or the like." Id. Summary judgment dismissing the claim for intentional infliction of emotional distress is warranted for this deficiency as well.
Accordingly,
IT IS ORDERED that the motion for summary judgment filed by Buchart-Horn, Inc. is hereby GRANTED. Judgment shall be entered in favor of the defendant and against the plaintiff.