Opinion
CAUSE NO. A-04-CA-442-JN.
August 19, 2005
ORDER
Before the Court is Defendant Department of Assistive and Rehabilitative Services' Motion for Summary Judgment (Clerk's Doc. No. 24), Plaintiff's Response to Defendant's Motion for Summary Judgment (Clerk's Doc. No. 27), and Defendant Department of Assistive and Rehabilitative Services' Summary Judgment Reply (Clerk's Doc. No. 33). Based on the aforesaid Motions, the applicable legal authority, and the entire case file, the Court enters the following Order.
I. BACKGROUND
On 18 March 2002, the Texas Rehabilitation Commission (the "TRC") hired Plaintiff Marie Pfau ("Pfau") as an Audit Manager for its Management Audit Division ("MAD"). At MAD, James Gilger ("Gilger") served as Pfau's direct supervisor.
Gilger conducted the initial interview with Pfau, and recommend ed that she be hired. Gilger, however, had no authority to either hire or fire his subordinates.
On 31 May 2002, Pfau's co-worker, Carolyn Briggs ("Briggs"), filed with the TRC a charge of sexual harassment against Gilger. Based on the charge, the TRC prompted an investigation. Consequently, on 3 June 2002, an investigator from the TRC's Office of Civil Rights, Jenny Hall ("Hall"), interviewed Pfau regarding Briggs' complaint.
During the interview, Pfau told Hall that she too had been harassed by Gilger. Specifically, Pfau told Hall that on one occasion Gilger placed her head in a "hammerlock" position, on two occasions Gilger stood too close to her, and on one occasion Gilger placed his hand on her shoulder. In addition, Pfau informed Hall that on or about 20 March 2002, Gilger came to Pfau's cubicle, told her that he needed to meet a rich woman, and asked her if she knew any. Pfau also told Hall that on or about 20 April 2002, Gilger told her that if she wanted to continue working at the TRC, she needed to learn to cooperate and if she did, she could do real well at bonus time. Finally, Pfau told Hall that on one occasion Gilger took out an American Express credit card out of her wallet, said "This one," and returned the credit card to the wallet.
In her deposition, Pfau testified that on or about 5 May 2002, Gilger placed his arm around her shoulder and when she bent over to free herself, he tightened his arm around her head. Pfau testified that she told Gilger to stop, and that he did a few seconds later.
According to Pfau's deposition testimony, on two occasions — once at the coffee stand, and once at the reception desk — Gilger stood close enough to Pfau that their hips and shoulders brushed.
In her Response, Pfau claims that when Gilger touched her shoulder "[his] fingers lingered too close to her breast." In its Reply, however, DARS points out that "Pfau's own [deposition] testimony said nothing about `lingering.'" Moreover, DARS points out that "when Pfau was given the opportunity to demonstrate the alleged shoulder touching at her deposition, it is plain to see that Gilger's hand was neither `too close' to her breast nor did it `linger' there."
In her deposition, Pfau testified that she responded to Gilger's comments by volunteering her 90-year old mother. According to Pfau's testimony, this was the extent of her and Gilger's conversation.
According to Pfau's deposition testimony, this was the extent of her and Gilger's conversation.
In her deposition, Pfau testified that this incident occurred in Gilger's office. She further testified that this was the extent of that incident.
On or about 13 June 2002, the TRC's General Counsel, Sylvia Hardman ("Hardman"), met with the Commissioner of the TRC, Vernon Arrell ("Arrell"), and briefed him on the outcome of the investigation into Briggs' sexual harassment complaint against Gilger. Specifically, Hardman informed Arrell that the investigation had substantiated the allegations against Gilger. Consequently, on 14 June 2002, Arrell terminated Gilger's employment with the TRC.
In his affidavit, Arrell claims that he never read the investigation report in its entirety, but that he only reviewed the executive summary of the investigation report. As such, Arrell claims that he did not know who was interviewed as part of the investigation, and did not see any of the supporting witness statements. Moreover, Arrell claims that he was neither aware of Pfau's statements, nor of the fact that she made them. Indeed, Hall's Investigation Memorandum of 13 June 2002, mentions Pfau by name only once, and only with regard to Pfau's dinner date with Gilger.
From 6 June 2000 until 10 June 2000, Gilger was on sick leave. On 10 June 2000, Arrell placed Gilger on administrative emergency leave.
On 17 June 2002, Executive Deputy Commissioner of the TRC, Mary Wolf ("Wolf"), requested a meeting with the employees of MAD to obtain information concerning their ongoing projects, workload, and general status of operations. At the meeting, or shortly thereafter, Pfau informed Wolf that she had been working on a "standardized work papers and audit manual, and any other closeout documents and databases and things" that she thought could make MAD more effective. Wanting to see Pfau's work, Wolf requested Pfau to furnish Wolf with the materials that Pfau said she had been working on. That same day, Pfau submitted to Wolf, a binder with an incomplete, disorganized collection of notes.
At that time, Wolf also held a position of Deputy Commissioner Field/Program Operations at the TRC.
In her deposition, Pfau testified that the binder that she delivered to Wolf comprised of "notes, scribbles . . . and a lot of other things," which were "not by any means" a finished product, and that the assembly of the binder "was not complete." Pfau also testified that the binder of notes was "certainly not anything polished that a nonauditor could use."
On 18 June 2002, dissatisfied with Pfau's work product, Wolf submitted to Pfau a memorandum requesting her to resubmit to Wolf the requested materials according to the instructions outlined in the memorandum. On 19 June 2002, Pfau send to Wolf an email in which she expressly refused to comply with Wolf's request. Wolf, in turn, forwarded Pfau's email to Arrell. Arrell reviewed Pfau's email and found it to be a gross insubordination by a probationary employee, making Pfau unsuited for her position. Consequently, Arrell contacted the Human Resources Director and Civil Rights Director and terminated Pfau's employment that same day, 19 June 2002.
Pfau's email read: "Burdening you with drafts, incomplete assembly and references would not be a thorough representation of one method to implement a structure of performance standards in MA. Therefore, I do not wish to submit an executive summary to explain my idea about standards for procedures to create databases for the annual report, performance of auditors for Peer Review compliance, quality control, reduction of staff waste of time and non-performance, etc."
The probationary period at the TRC, for employees such as Pfau, was six months. Pfau started her employment with the TRC on 18 March 2002. As such, she was exactly three months into her probationary period at the time of her insubordination.
At the time of Pfau's termination, no individual held the position of the Director of Management Audit. As such, Arrell was Pfau's first-line supervisor, and the decision to terminate Pfau was Arrell's alone.
Moreover, at the time of Pfau's termination, the TRC had in place a policy allowing probationary employees to challenge a termination based on discrimination. Pfau did not challenge her termination.
On 29 March 2003, Pfau filed a charge of discrimination with the Texas Commission on Human Rights and with the U.S. Equal Employment Opportunity Commission (the "EEOC"), claiming discrimination on the basis of sex and retaliation for "participation in a protected complaint." On 9 July 2004, Pfau filed this cause of action against the TRC and Gilger under Title VII of the Civil Rights act, 42 U.S.C. § 2000e ("Title VII") and the Texas Commission on Human Rights Act ("TCHRA"), TEX. LAB. CODE ANN. § 21.001 et seq. (Vernon 1996), alleging sexual harassment and retaliation.
This case was originally styled as Marie Pfau v. Texas Rehabilitation Commission and James Gilger. The TRC was Pfau's state agency employer for Title VII purposes during the time of the incidents giving rise to this lawsuit. However, on 1 March 2004, due to legislative reorganization of the State's health services agencies, TRC merged with the Department of Assistive and Rehabilitative Services ("DARS"). As a result, on 23 May 2005, the Court Granted DARS' Motion to Substitute Party, and thereby changed the style of the case to Marie Pfau v. Department of Assistive and Rehabilitative Services and James Gilger. Moreover, on 23 June 2005, the Court Granted Gilger's Motion to Dismiss pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure for insufficiency of service, and thereby dismissed without prejudice Pfau's case against Gilger. Consequently, DARS is the sole defendant in this case.
Specifically, Pfau alleges that: (1) she suffered quid pro quo sexual harassment when DARS terminated her for refusing to comply with Gilger's demands; (2) DARS subjected her to a sexually hostile work environment; and (3) DARS terminated her in retaliation for participating in the investigation of Briggs' sexual harassment complaint against Gilger.
On 13 July 2005, in a Motion for Summary Judgment, DARS moved the Court pursuant to Federal Rule of Civil Procedure 56, for judgment as a matter of law in its favor on all of Pfau's claims. On 25 July 2005, Pfau filed her Response to DARS' Motion for Summary Judgment. DARS filed its Reply to Pfau's Response on 3 August 2005.
II. STANDARD FOR SUMMARY JUDGMENT
Rule 56, of the Federal Rules of Civil Procedure, governs the filing of motions for summary judgment. Under Rule 56 "[a] party seeking to recover upon a claim . . . may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof." FED. R. CIV. P. 56(a). To be sure, Rule 56 " mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (emphasis added); see FED. R. CIV. P. 56(c); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
"The party moving for summary judgment must `demonstrate the absence of a genuine issue of a material fact,' but need not negate the elements of the nonmovant's case." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quoting Celotex 477 U.S. at 323; citing Lujan v. National Wildlife Federation, 497 U.S. 871, 885-86 (1990)). "If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response." Little, 37 F.3d at 1075. However, if the moving party meets this burden, then the burden shifts to the nonmovant to show "that there is a genuine issue for trial." Id. (citing Celotex, 477 U.S. at 325).
The nonmovant cannot satisfy its burden with "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., LTD v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), by "conclusory allegations," Lujan, 497 U.S. at 871-73, by "unsubstantiated assertions," Hugh Symons Group, plc v. Motorola, Inc., 292 F.3d 466, 470 (5th Cir. 2002), cert. denied, 537 U.S. 950 (2002), or by only a "scintilla of evidence," Cantu v. Jones, 293 F.3d 839, 844 (5th Cir. 2002). Instead, in "showing that there is a genuine issue for trial," the nonmovant "must go beyond the pleadings and designate specific facts." Little, 37 F.3d at 1075. To be certain, the nonmovant is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. "If the nonmoving party fails to meet this burden, the motion for summary judgment must be granted." Little, 37 F.3d at 1076.
III. ANALYSIS
The law governing claims under Title VII and TCHRA is identical. Wallace v. Methodist Hosp. System, 271 F.3d 212, 220 (5th Cir. 2001), cert. denied, 535 U.S. 1078 (2002); Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). As such, the Court will not analyze separately Pfau's TCHRA claims.
A. The Sexual Harassment Claims
In its Motion for Summary Judgment, DARS argues that it is entitled to a judgment as a matter of law on all of Pfau's sexual harassment claims because Pfau failed to establish a prima facie case of sexual harassment. In her Response, Pfau avers that DARS' Motion for Summary Judgment should be denied because Gilger's conduct represents "classic 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. § 2000e-2(a)(1). "[T]his not only covers `terms' and `conditions' in the narrow contractual sense, but `evinces a congressional intent to strike at the spectrum of disparate treatment of men and women in employment.'" Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1998) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)). Accordingly, a plaintiff may establish a violation of Title VII by proving that based on her sex she was subjected to a tangible employment action ( quid pro quo sexual harassment), or that discrimination based on sex has created a hostile work environment. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753-55 (1988); Meritor, 477 U.S. at 64, 67; Casiano v. ATT Corp., 213 F.3d 278, 283-84 (5th Cir. 2000).
However, "judicial inquiry into the question whether a given instance of harassment constitutes sex-based discrimination is entirely separate from inquiry into whether the harasser's conduct was serious enough to constitute either quid pro quo or hostile environment harassment." La Day v. Catalyst Tech., Inc., 302 F.3d 474, 478 (5th Cir. 2002). Thus, to maintain a viable claim for any form of sexual harassment under Title VII, a plaintiff must at the outset demonstrate that she was subjected to unwelcome harassment "because of" her sex — namely that the other gender, had it been present, would not have been similarly treated. See Oncale, 523 U.S. at 80-81; Harris v. Forklift Systems, Inc., 510 U.S. 17, 25 (1993); Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999); La Day, 302 F.3d at 478. Only after the plaintiff has established disparate treatment "because of" sex will the court "decide whether the challenged conduct meets the applicable standards for either a quid pro quo or hostile environment claim." La Day, 302 F.3d at 478.
Pfau has failed to establish, for the purpose of defeating a summary judgment, a prima facie case of sexual harassment. To be sure, irrespective of however inappropriate Gilger's behavior may have been, Pfau has failed to put forth any evidence that Gilger harassed her "because of" her sex. The few isolated incidents of questionable behavior on the part of Gilger hardly prove that he treated Pfau differently than male employees at DARS. Indeed, Gilger's juvenile horseplay could have been aimed at anyone at DARS irrespective of sex.
Notwithstanding, when ruling on a motion for summary judgment, the court is required to view all inferences drawn from the record in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587. As such, the Court will, for the sake of this analysis, presume that Pfau has established that Gilger harassed her "because of" her sex.
Thus, having presumptively established that Gilger's conduct toward Pfau constitutes sexual harassment, the Court must now consider whether the harassment meets the applicable standards for either a quid pro quo or hostile environment claim.
1. The Quid Pro Quo Sexual Harassment Claim
DARS argues that it is entitled to a judgment as a matter of law because Pfau failed to establish a prima facie case of quid pro quo harassment. Pfau does not expressly challenge DARS' argument.
To establish a quid pro quo claim of sexual harassment under Title VII, a plaintiff must show that: (1) she suffered a tangible employment action taken by her supervisor; and (2) the tangible employment action resulted from her acceptance or rejection of her supervisor's sexual harassment. Ellerth, 524 U.S. at 761-62; Casiano, 213 F.3d at 283. If, however, a plaintiff fails to show a nexus between the tangible employment action at the hands of her supervisor, and her refusal or acceptance of her supervisor's sexual harassment, then her "employer is not vicariously liable under Title VII for sexual harassment be a supervisor." Casiano, 213 F.3d at 283; see Ellerth, 524 U.S. at 762-63, 766. "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassigning with significant different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S. at 761.
Based on DARS' Motion for Summary Judgment, and Pfau's Response, the Court finds that there is no material fact left for trial with respect to Pfau's quid pro quo sexual harassment claim against DARS. First, DARS has successfully demonstrated that Pfau failed to show a nexus between her termination and her refusal or acceptance of Gilger's harassment. Specifically, DARS established that Arrell, not Gilger, terminated Pfau for gross insubordination over a month after Gilger stopped his alleged harassment. As such, Gilger had no part in Pfau's termination, and Pfau's termination had no bearing on Gilger's alleged harassment.
Second, Pfau has failed to designate any specific facts in the record that would support her claim of quid pro quo sexual harassment. To be sure, Pfau has not even addressed this summary judgment argument in her Response. Accordingly, DARS must be granted a judgment as a matter of law on Pfau's quid pro quo sexual harassment claim. 2. The Hostile Work Environment Sexual Harassment Claim
DARS first argues that it is entitled to a judgment as a matter of law on Pfau's hostile work environment sexual harassment claim because Pfau's claim is barred by the applicable time limitations. Pfau implicitly argues that the "continuing violation" theory saves her hostile environment claim from being time barred because she timely filed her complaint with the EEOC "within 300 days of the last incident of discrimination which was her termination on June 19, 2002."
Under Title VII, a charge must be filed with the EEOC within 300 days after the alleged incident of discrimination. See 42 U.S.C. § 2000e-5(e)(1); Mennor v. Ford Hood Nat'l Bank, 829 F.2d 553, 554-55 (5th Cir. 1987). A plaintiff may circumvent this requirement by relying on the "continuing violation" theory, if she can show a series of related acts, one or more of which fall within the 300-day limitations period. Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 351-52 (5th Cir. 2001); Hendrix v. City of Yazoo, 911 F.2d 1102, 1103 (5th Cir. 1990). The related acts must involve the same type of discrimination. Estate of Martineau v. ARCO Chemical Co., 203 F.3d 904, 913 (5th Cir. 2000). As such, to avail herself of the "continuing violation" theory, the plaintiff must show "an organized scheme leading to and including a present violation, such that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action." Celestine, 266 F.3d at 351-52 (internal quotations and citation omitted).
Pfau's hostile work environment sexual harassment claim is time barred because Pfau failed to timely file her hostile work environment sexual harassment claim with the EEOC. More precisely, the alleged harassment stopped no later than 16 May 2002. Thus, to comply with the 300-day requirement, Pfau had until 12 March 2003 to file her complaint with the EEOC. Pfau, however, filed her complaint on 29 March 2003, over two weeks late.
Furthermore, the "continuing violation" theory does not save Pfau's hostile environment claim because her hostile work environment claim, which is time barred, and her termination, which falls within the 300-day limitation period, are not related. To be sure, while Pfau's hostile work environment claim is based on Gilger's alleged harassment, Gilger had nothing to do with Pfau's termination. Indeed, Arrell, not Gilger, fired Pfau for gross insubordination a month after Gilger's alleged harassment had stopped. As such, Pfau's termination was a discrete act by Arrell, and not a part of an organized scheme of alleged sexual harassment by Gilger. Accordingly, DARS is entitled to a summary judgment on Pfau's hostile work environment claim.
Notwithstanding, the Court will, for the purpose of this analysis, entertain DARS' next summary judgment argument — namely that DARS is entitled to a judgment as a matter of law because Pfau failed to establish a hostile work environment claim. In her Response, Pfau argues that DARS' Motion should be denied because the "totality of the circumstances show that [Pfau] was subjected to a hostile environment."
To establish a cognizable hostile work environment sexual harassment claim under Title VII, a plaintiff must show that the alleged harassment was "severe and pervasive." Ellerth, 524 U.S. at 752. In fact, the alleged harassment must be "so severe and pervasive that it destroys a protected classmember's opportunity to succeed in the workplace." Shepherd v. Controller of Pub. Accounts of State of Tex., 168 F.3d 871, 874 (5th Cir. 1999), cert. denied, 528 U.S. 963 (1999). Moreover, the alleged harassment "must be both objectively and subjectively offensive, one that a reasonable person would find hostile and abusive, and one that the victim in fact did perceive to be so." Harris, 510 U.S. at 21-22; see Hockman v.Westward Communications, LLC, 407 F.3d 317, 325 (5th Cir. 2004); Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 269 (5th Cir. 1998). "Whether an environment is objectively hostile or abusive is determined by considering the totality of the circumstances." Hockman, 407 F.3d at 325 (citing Harris, 510 U.S. at 23). "Although no single factor is required, courts look to (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening of humiliating as opposed a mere offensive utterance; (4) whether it unreasonably interferes with an employee's work performance; and (5) whether the complained of conduct undermines the plaintiff's workplace competence." Id. at 325-26 (internal citations omitted). However, allegations of mere "rude or offensive comments, teasing, or isolated incidents" are not enough to survive summary judgment. Id. at 325 (citing Shepherd, 168 F.3d at 874).
The Court agrees with DARS that Pfau has not established a hostile environment claim because, based on "the totality of the circumstances," Gilger's conduct was not "severe and pervasive." To be certain, the Fifth Circuit has in the past found conduct considerably more egregious than that alleged by Pfau as not severe and pervasive enough to constitute hostile work environment. In Hockman, the Fifth Circuit found that plaintiff's allegations — namely that her supervisor remarked to her about another employee's body, slapped her on the behind with a newspaper, grabbed or brushed against her breasts and behind, tried to kiss her, asked her to come to office early so that they could be alone, and stood in the bathroom doorway while she was washing her hands — did not constitute severe conduct for the purpose of hostile work environment sexual harassment. 407 F.3d at 328. Similarly, in Shepherd, the Fifth Circuit found that statements by plaintiff's coworker — "your elbows are the same color your nipples," and "you have big thighs" — and his conduct — simulated to look under plaintiff's dress, on several occasions looked down plaintiff's clothing, on several occasions touched and rubbed plaintiff's arm, and on two occasions petted his lap and said "here is your seat" — did not constitute conduct severe and pervasive enough to establish a hostile environment sexual harassment claim. 168 F.3d at 878. Consequently, Pfau's hostile work environment sexual harassment claim fails as a matter of law.
DARS finally argues that even if Pfau had established her hostile environment claim, it nonetheless is entitled to a summary judgment based on the Ellerth/Faragher affirmative defense. In her Response, Pfau only implicitly challenges DARS' affirmative defense argument.
Under the Ellerth/Faragher affirmative defense, an employer can escape liability under Title VII, for hostile work environment sexual harassment if it shows that (1) it "exercised reasonable care to prevent and correct promptly any such sexual harassment and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Csiano, 213 F.3d at 284 (citing Ellerth, 524 U.S. at 765; Faragher v. City of Boca Raton, 524 U.S. 775, 805-07 (1998)).
DARS has satisfied both prongs of the Ellerth/Faragher affirmative defense. First, it is undisputed that DARS had sexual harassment and grievance policies in place to safeguard its employees at the time Gilger allegedly harassed Pfau, and that Pfau had received an employee handbook outlining these policies when she started her employment at DARS. Moreover, DARS took immediate action when it placed Gilger on administrative leave and later terminated him for his conduct towards Briggs.
In addition, Pfau admits that when DARS hired her, Arrell invited her to report to him any inappropriate behavior on Gilger's part.
There is no reason to believe that DARS would not have taken the same course of action had Pfau reported her harassment.
Second, aside from her interview with Hall regarding Briggs' complaint, Pfau never complained to anyone at DARS about Gilger's behavior. Accordingly, even if Pfau had successfully established a hostile work environment sexual harassment claim, DARS is not vicariously liable for Gilger's harassment, and deserves a judgment as a matter of law.
B. The Retaliation Claim
DARS argues that it is entitled to a summary judgment because Pfau has not established a prima facie case of retaliation. Pfau avers that she has established a viable retaliation claim — namely that DARS fired her in retaliation for her participation in the investigation of Briggs' complaint — and as such DARS is not entitled to a judgment as a matter of law.
Title VII makes it "an unlawful employment practice for an employer to discriminate against [an employee] . . . because [that employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). Retaliation claims are analyzed under the McDonnell Douglass burden shifting framework. Hockman, 407 F.3d at 330 (citing Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir. 1999), cert. denied, 529 U.S. 1027 (2000) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973))).
To prove retaliation, a plaintiff must show that: (1) he engaged in protected conduct; (2) he suffered an adverse employment action; and (3) there is a casual link between the protected conduct and the employer's reaction. Hockman, 407 F.3d at 330; Chaney, 179 F.3d at 167. The plaintiff has the ultimate burden of showing that "but for" the protected activity, the adverse employment action would not have occurred. Vadie v. Miss. State Univ., 218 F.3d 365, 374 (5th Cir. 2000), cert. denied, 531 U.S. 1113 (2001); McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir. 1983); see also Long v. Eastfield College, 88 F.3d 300, 305 n. 4 (5th Cir. 1996). However, once a prima facie case is established, the burden shifts to defendant to articulate a legitimate, non-discriminatory reason for its action. Chaney, 179 F.3d at 167. Should defendant come forward with a permissible reason for treatment of plaintiff, the plaintiff carries the burden of showing that the reason advanced by the defendant is pretextual. Id.; Anderson v. Douglas Lomason Co., Inc., 26 F.3d 1277, 1300 (5th Cir. 1994), cert. denied, 513 U.S. 1149 (1995); McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir. 1983).
Pfau has failed to establish a prima facie case of retaliation. First, Pfau has failed to show a nexus between her involvement in the investigation of Briggs' complaint, and her termination. Pfau's allegation, that Arrell terminated her for telling Hall that Gilger harassed her, amounts to nothing more than a conclusory speculation. Indeed, Pfau merely concludes that Arrell fired her because of her involvement in the investigation. Pfau does not, however, put forth any evidence that Arrell either knew of her involvement in the investigation or that she had been harassed by Gilger.
Second, DARS has put forth a legitimate nondiscriminatory reason for Pfau's termination — namely that she was terminated for insubordination. See Chaney, 179 F.3d at 1676-8 ("The failure of a subordinate to follow the direct order of a supervisor is a legitimate nondiscriminatory reason for discharging that employee.").
Finally, Pfau presents no evidence whatsoever that DARS proffered reason for her termination is pretextual, and that her involvement in the investigation was a "but-for" cause of her termination. Pfau only speculates that "it is unbelievable that [she] would be discharged for a so-called refusal without any conversation or any prior disciplinary action." Consequently, DARS is entitled to a judgment as a matter of law on Pfau's retaliation claim.
Pfau apparently forgets that she was a probationary employee only three months on the job, and that she refused to comply with a direct order by her supervisor.
IV. CONCLUSION
Based on the foregoing, the Court finds that DARS has demonstrated that there is no genuine issue of material fact left for trial with respect to any of Pfau's claims. Accordingly, the Court finds that DARS in entitled to a judgment as a matter of law on all of Pfau's claims.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Defendant Department of Assistive and Rehabilitative Services' Motion for Summary Judgment (Clerk's Doc. No. 24) is hereby GRANTED. Accordingly, all of Plaintiff Marie Pfau's claims against Defendant Department of Assistive and Rehabilitative Services are hereby DISMISSED.