Opinion
No. 3:98cv2922-AH.
May 1, 2000.
MEMORANDUM OPINION AND ORDER
Pursuant to the District Court's Order in accordance with 28 U.S.C. § 636(c) filed on March 22, 1999, and the written consents of the parties to proceed before a United States Magistrate Judge, came on this day to be considered Defendants' Motion for Summary Judgment filed on November 9, 1999, and Plaintiffs' Response filed on December 14, 1999, and the court finds and orders as follows:
Statement of the Case: This is an employment discrimination action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq, and the court's supplemental jurisdiction. The Plaintiff, Otis Taylor ("Taylor") has sued his former employer, the Texas Department of Criminal Justice-Institutional Division ("TDCJ-ID") and Gloria Smith ("Smith"), his former supervising lieutenant at the Hutchins State Jail. Taylor claims that Smith sexually harassed him. He further claims that the TDCJ-ID retaliated against him for complaining about the sexual harassment. He further asserts that he was constructively discharged from his employment with the TDCJ-ID as a result of the alleged sexual harassment and retaliation by Smith. Taylor, a black male, has also alleged that he suffered race discrimination because he was written up for reckless endangerment and was coerced into resigning as a result of an inmate escape at the jail facility. Finally, Taylor asserts state law claims against Smith for intentional infliction of emotional distress and assault.
Ms. Smith has since been promoted and is now a Captain at the Hutchins State Jail Facility.
Standard of Review: Summary judgment is proper when pleadings and the evidence on file, along with any affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. Civ. PRoc. 56(c). The party moving for summary judgment bears the burden of producing evidence to establish that there is no genuine issue of material fact with regard to an essential element of the nonmovant's case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). Once the movant produces such evidence, the burden shifts to the nonmovant to produce evidence establishing each of the challenged elements of his case for which he will have the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986). In responding, the nonmovant must set forth specific facts which demonstrate that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 1355-56 (1986). In reviewing all of the evidence, the court must consider it in a light most favorable to Taylor, drawing all reasonable factual inferences therefrom and making all credibility determinations related therefrom in his favor.
Factual Background: Taylor joined the TDCJ-ID in March of 1994 (App. 179 and 372). In February of 1996, he transferred to the Hutchins State Jail Facility (App. 179). Shortly thereafter, he was assigned to the Community Service Department ( Id.). Community service officers supervise inmates working in the fields around the jail facility or out in the community doing community service work for non-profit organizations (App. 180, 453-54). Taylor supervised inmates in the field around the jail facility (App. 180 and 339). In March 1998, Defendant Gloria Smith was assigned as a lieutenant supervising the community service officers, including Taylor (App. 179, 180 and 235).
The sununary judgment appendices presented by the parties are composed of TDCJ-ID records and manuals, and the pretrial deposition testimony of witnesses. Defendant's summary judgment evidence is referred to hereinafter as "App.", noting the Bates numbers affixed, while Plaintiff's summary judgment evidence is referred to as "Pl. App."
In his deposition, Taylor testified that he was subjected to sexual harassment during the entire time he was under Smith's supervision. He claims that Smith (1) asked him if it was true that he was having an affair with a white, female correctional officer; (2) told him he was a nice looking Black man and she would not mind sleeping with him; (3) touched Taylor's arm on two occasions; (4) made several statements in front of Taylor's co-workers that Taylor preferred white women and that Taylor was the "biggest whore on the unit" and that he was one of the biggest "whore dogs on the Hutchins State Facility."
Taylor made several requests for transfer out of field duty, all of which he contends were refused by Smith in retaliation for his resisting Smith's sexual harassment (App. 240-242). He also claims that Defendant Smith engaged in an act of retaliation when she questioned him about the whereabouts of another correctional officer and grabbed his shirt collar while questioning him (App. 249-255).
A fellow employee — even a supervisor — is not an employee within the meaning and definition of Title VII. Further, for the reasons stated below, since none of the alleged acts of retaliation attributed to Defendant Smith constitute ultimate employment decisions, Taylor has no cognizable claim against the TDCJ-ID for retaliation. See e.g., Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997).
Taylor and other officers testified that they had been instructed by Defendant Smith not to utilize TDCJ-ID's open door policy; they were to talk first to her about any problems they might be having (Plaintiff's App. 75, 192).
Taylor testified that he began to seek other employment in order to escape the harassment, especially since his requests for transfer out of field duty had been refused (Plaintiffs App. 15). A month in advance of his departure, he had already been scheduled for schooling as a truck driver (Plaintiffs App. 64, 300).
On July 23, 1998, an inmate escaped from a field squad while under Taylor's supervision (App. 620-23). As a result of this incident Defendant Smith made a written report of Taylor's alleged violation of prison regulations, the initial step in a possible disciplinary action (App. 386-87).
Taylor does not claim that the disciplinary case was an act of retaliation on the part of Smith.
On July 31, 1998, Taylor filed his charge of discrimination with the EEOC, complaining of sexual harassment and retaliation by Smith (App. 64-65). He admitted that he had not sought any assistance and had not reported the allegations to the TDCJ-ID (App. 94).
Taylor resigned his position from the Hutchins State Jail effective August 3, 1998 (App. 381-382) as a result of which the disciplinary investigation was terminated.
In response to Taylor's EEOC complaint, TDCJ-ID conducted an investigation and responded in writing, denying Taylor's allegations of sexual harassment and informing the EEOC that it had no prior knowledge or documentation of Taylor's allegations (App. 66; 95-162; 95-96). On September 14, 1998, the EEOC dismissed Taylor's charge of discrimination and issued him a right to sue letter (App. 59). The instant action was filed on December 14, 1998.
Discussion: Title VII of the Civil Rights Act of 1964 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). "[A] plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive working environment." Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405 (1986). Courts have generally divided sexual harassment claims into two categories: quid pro quo claims and hostile environment claims. Quid pro quo claims are based on threats which are carried out whereas hostile work environment claims are based on bothersome attentions or sexual remarks which are sufficiently severe and hostile. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 751, 118 S.Ct. 2257, 2264 (1998). Taylor's claim is one of a hostile work environment since he was never demoted, nor was he under consideration for promotion.
In order to establish a hostile work environment claim where a supervisor is allegedly responsible for the harassment, the employee must show:
(1) the employee belongs to a protected group;
(2) the employee was subject to unwelcome sexual harassment;
(3) the harassment was based upon sex; and
(4) the harassment complained of affected a "term, condition or privilege of employment," i.e., the sexual harassment must be sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive environment.Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999). TDCJ-ID and Smith argue that Taylor's summary judgment evidence, if taken as true, does not satisfy the fourth requirement in that it was not pervasive enough to alter the conditions of employment.
The complained of conduct is analyzed from the viewpoint of a reasonable person. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 370-71 (1993). Thus, the question of whether the conduct is severe or pervasive enough to create an abusive environment must be viewed from the perspective of a reasonable person.
"A recurring point in [Supreme Court] opinions is that `simple teasing,' offhand comments, and isolated incidents (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, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998). Whether an environment is "hostile" or "abusive" is determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it was physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interfered with an employee's work performance. See Harris, 510 U.S. at 23, 114 S.Ct. at 371. To be actionable, the challenged conduct must be both objectively offensive, meaning that a reasonable person would find it hostile and abusive, and subjectively offensive, meaning that the victim perceived it to be so. See id. at 21-22, 114 S.Ct. at 370.
In support of his hostile work environment claim, Taylor identifies several types of conduct in which the Defendant Smith engaged and several incidents illustrative of Smith's sexual harassment. On one occasion, around March of 1998, while at Taylor's desk, Smith asked Taylor if he was sleeping with a white female employee, noting that Taylor was a nice-looking black man, and that she would not mind sleeping with him (App. 272-274). No other person was present at this conversation. For summary judgment purposes, Taylor's testimony is accepted as true.
Both Taylor and Smith are African-Amencan.
On another occasion when Taylor was overseeing the construction of a corral, Smith placed her hand on his arm while giving him instructions (App. 282-2 84). However, when Taylor told her he did not like her touching him, Smith removed her hand (Pl. App. 146-147).
Although Plaintiff's summary judgment evidence does not give an exact number of times that Defendant Smith touched or grabbed his arm while giving him instructions, it was apparently a frequent occurrence.
On more than one occasion when Smith held meetings with correctional officers under her supervision, she commented that Taylor and other male officers preferred white women. These comments were not directed toward Taylor exclusively, but to other African-American guards as well (Pl. App. 007, 139, 196).
On another occasion, in the presence of a newly employed female correctional officer, Defendant Smith stated that Taylor was a "big whore dog", and then proceeded to tell her that Taylor and Officers Burns and Solomon preferred white women (App. 287-288; Pl. App. 145-146, 200).
Apparently, this term is a cruder equivalent of the slang term "playboy."
A reasonable jury could not find that the occasions on which Defendant Smith touched or grabbed Taylor's arm contributed to a hostile or abusive working environment based on sex. While such physical contact was arguably offensive to Taylor, the touching of his arm had no sexually suggestive connotation and Taylor himself understood that it was Smith's way of giving emphasis to her oral instructions, albeit from Taylor's viewpoint an unnecessary gesture.
Defendant Smith's statements on more than one occasion that Taylor preferred white women and that he was a "whore dog" clearly were unprofessional on the part of a staff supervisor. However, such comments, even when taken together are much more analogous to teasing and off-color, off-hand comments. To sustain his burden with respect to these remarks, Taylor must prove that they were objectively offensive, meaning that a reasonable person would find them hostile and abusive. In light of the fact that Smith made similar remarks about two other black male officers, neither of whom found the remarks hostile and abusive, a reasonable jury — in turn — could not conclude that the remarks created a hostile work environment based on sex discrimination.
Taylor's claim that Smith invited him to have sex with her presents a much closer case, and for summary judgment purposes, the court finds that it creates a genuine issue of fact.
Taylor's sexual harassment claim based upon Smith's alleged overt suggestions that they have sex is nonetheless problematic. Taylor's summary judgment evidence does not show whether such statements attributed to Smith occurred only once, twice or many times while Taylor was under Smith's authority. If Smith's suggestion was only made once, twice or even three times in the four-month period, it is unlikely that Taylor could sustain his burden on the fourth element of proof, i.e., that the harassment was sufficiently severe or pervasive so as to alter the conditions of his employment.
Based on the court's finding that Taylor's summary judgment evidence is sufficient to establish a genuine issue of fact with reference to Smith's invitation to have sex, and assuming arguendo that the other statements and conduct addressed above, in their totality are sufficient to raise a genuine issue of fact with respect to Taylor's hostile environment claim, the TDCJ-ID argues it is entitled to summary judgment based on the Burlingon/Faragher two-prong affirmative defense. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998). "An employer is vicariously liable to a victimized employee for an actionable hostile environment created by a supervisor with immediate authority over the employee. When no tangible employment action is taken a defending employer may raise an affirmative defense. . . ." Burlington, 524 U.S. at 765, 118 S.Ct. at 2270, Faragher, 524 U.S. at 806, 118 S.Ct. at 2292-93. Specifically, the defendant employer may rely on the following two-part defense:
(1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
(2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.Burlington, 524 U.S. at 765, 118 S.Ct. at 2270; Faragher, 524 U.S. at 807, 118 S.Ct. at 2292.
Taylor argues that the Burlinglon/Faragher defense is inapplicable, claiming that he was a victim of a tangible employment action. Specifically, he relies on the fact that his efforts to be reassigned to the community supervision program were repeatedly refused and that he was constructively discharged from his position as a field duty officer.
A "tangible employment action" has been defined by the Supreme Court to be such actions as "discharge, demotion, or undesirable reassignment." Faragher, 524 U.S. at 808, 118 S.Ct. at 2292. Taylor's claim involves Smith's alleged refusal to reassign him within the community supervision program. Taylor asserts that because of Smiths' sexual harassment he made three requests to be assigned to take the inmates out of the jail facility for their community service assignments instead of being assigned to working in the fields surrounding the jail facility. All of these requests for reassignment were denied and Taylor asserts these denials were made in retaliation for his rebuffing Smith's sexual advances. (App. 226-236 and 323-325).
Taylor has presented nothing other than his subjective belief to support his claim that denials of his requests were retaliatory.
It is undisputed that Taylor was not demoted prior to the termination of his employment with the TDCJ-ID, nor was he ever reassigned to a position other than field duty. This position, the one he held throughout the time that he was under Smith's supervision, was not "undesirable." To the contrary, the job was highly coveted, mainly because of its hours. (App. 687-89). Further, Taylor admits that if he had been allowed to take inmates into the community rather than remaining in the field, his pay would not have changed, nor would his job title have changed. (App. 229-230). Basically, it would have been nothing more than a "lateral transfer" within the department. (App. 224). The Fifth Circuit has held that a refusal to laterally transfer an employee is not an "ultimate employment decision" sufficient to maintain a Title VII claim for retaliation. Burger v. Central Apartment Management, Inc., 168 F.3d 875, 879 (5th Cir. 1999); see also Watts v. The Kroger Co., 170 F.3d 505, 510 (5th Cir. 1999) (changing employee's work schedule and asking her to perform tasks which she had not previously been asked to perform was not a "significant change in employment status" and thus was not a tangible employment action). Finally, although Smith testified that he assumed Defendant had the authority as a lieutenant, to determine which officers remained in the field and which ones went into the community (App. 235-36), in fact she did not (App. 570). Therefore, as a matter of law, Taylor cannot establish that TDCJ-ID's refusal to reassign him was an actionable, tangible employment action in the purview of Title VII.
Taylor also argues that he was "constructively discharged" from his position and that this qualifies as a tangible employment action. In order to show constructive discharge, Taylor must show that his working conditions were so difficult or unpleasant that a reasonable employee in his shoes would have felt compelled to resign. Ugalde v. McKenzie Asphalt Co., 990 F.2d 239, 242 (5th Cir. 1993). In order to show constructive discharge, Taylor has to show a "greater severity or pervasiveness of harassment than the minimum required to prove hostile working environment." Landgraf v. U.S.I. Film Products, 968 F.2d 427, 430 (5th Cir. 1992), aff'd 511 U.S. 244, 114 S.Ct. 1483 (1994); see also Barrow v. New Orleans, 10 F.3d 292, 297 (5th Cir. 1994).
Under the "reasonable employee" standard, Taylor cannot show that there is a genuine issue of fact which would permit a jury to conclude that he acted reasonably in resigning his job. It may well be that Taylor considered Smith to be overbearing and unfairly demanding. However, a supervisor's allegedly unfair treatment of a subordinate is outside the scope of Title VII's protection and can only be addressed in the event that it is motivated by unlawful discrimination, including sexual harassment.
Taking into account all of the alleged incidents of sexual harassment attributed to Taylor's supervisor, Defendant Smith, it cannot be found that these incidents were of such severity and so pervasive as to have warranted a reasonable employee in Taylor's position to conclude that conditions were so intolerable as to compel his resignation, particularly when neither Taylor nor any of the other black male employees considered Smith's off-handed remarks about their preferences in women to be of sufficient significance to warrant a complaint addressed to her or to a higher authority in the chain of command. The Fifth Circuit's decision in Ugalde, 990 F.2d at 243, is particularly instructive, wherein the Court noted that no constructive discharge would be found where the employee attempted to complain only once before leaving because a reasonable employee would have filed an internal grievance or would have filed with the EEOC rather than resigning. See also Summit v. S-B Power Tool, 121 F.3d 416, 421 (8th Cir. 1997), observing that an employee is not reasonable if he quits without giving his employer a reasonable chance to work out a problem, precluding a finding that the employee was constructively discharged. Taylor did not act reasonably when he quit without using the procedures established by the TDCJ-ID to report sexual harassment. After his conversation with Major Brown, Taylor says that the harassment continued, yet he did not take reasonable steps to inform the TDCJ-ID about the harassment so that the TDCJ-ID could attempt to correct it.
Taylor only spoke with Major Brown about problems he was having with Defendant Smith. See p. 13, infra.
Since Taylor has failed to establish any genuine issue of fact with respect to the existence of a tangible adverse employment action or with respect to his claim of constructive discharge, the TDCJ-ID is entitled to raise the Burlington/Faragher affirmative defense.
The TDCJ-ID contends that its promulgated policy and its training on sexual harassment satisfy the first prong of the defense because these measures demonstrate that the TDCJ-ID has taken reasonable care to prevent and correct promptly any sexually harassing behavior. As part of the TDCJ-ID's policy prohibiting sexual harassment, there are multiple methods for an employee to report improper conduct so that the agency can investigate and take appropriate steps to stop the harassment if it exists. (App. 373-77, Taylor's Dep. Exh. 2). These steps include: (1) reporting the improper conduct to the Warden or Assistant Warden; (2) reporting the improper conduct to the employee's Department Head; (3) reporting the conduct to the Regional Supervisor; (4) contacting the TDCJ's Labor Relations/EEO Office; and/or (5) filing an Employee Grievance. (App. 373-77 Taylor's Dep. Exh. 2).
The policy also provides that, at any time, an employee can contact the Labor Relations/EEO office or representative to discuss, in confidence, questions about sexual harassment and the agency's policies and procedures regarding the reporting of sexual harassment.
Taylor admits that (1) when he began his employment, he received the TDCJ's policy directive on prohibiting sexual harassment; (2) he read it; (3) he received training on the policy; (4) he received in-service training once a year regarding the TDCJ's policy against sexual harassment; (5) that on at least one occasion, he received specialized training on sexual harassment; (6) that TDCJ had a zero tolerance policy against sexual harassment; and (7) that he was familiar with the agency's multiple procedures for reporting sexual harassment as contained in the policy. (App. 339-340, 334-337, 372 289).
While not required as a matter of law, the existence of an appropriate anti-harassment policy will usually satisfy the first prong of the Burlington/Faragher defense. Burlington, 118 S.Ct. at 2270; Scrivner v. Socorro Indep. Sch. Dist., 169 F.3d 969, 971 (5th Cir. 1999); see also Shaw v. Autozone, Inc., 180 F.3d 806, 811-812 (7th Cir. 1999) (employer exercised reasonable care as a matter of law where employer adopted and distributed to its employees a sexual harassment policy of zero tolerance; the employee received a copy of the policy; the employee was required to read and abide by the policy as a condition of employment; the policy provided multiple mechanisms for the prompt resolution of complaints; and the employer regularly conducted training sessions on sexual harassment).
Taylor does not contest the existence of the policy or his knowledge of it. The TDCJ policy clearly satisfies the first prong of the Burlington/Faragher affirmative defense.
The TDCJ-ID asserts that the second prong of the defense has been satisfied because Taylor did not take advantage of the agency's preventive and corrective opportunities as promulgated in the policy distributed to him. As stated above, the policy provided for multiple avenues to report improper conduct to the TDCJ-ID. In his pre-suit complaint filed with the EEOC, Taylor represented that he had not previously sought assistance from any source regarding the alleged harassment and that he had not reported the harassment. (App. 94, 691-92, Aff. of Julie M. Salcedo).
In an effort to show that his failure to take advantage of the TDCJ-ID's discrimination grievance procedures was not unreasonable, Taylor claims that Defendant Smith informed him and other employees under her supervision not to utilize the TDCJ-ID's "open-door" policy and that he was "afraid" to seek corrective action through available channels. The summary judgment evidence shows that Taylor was fully informed of the various methods under which he could report sexual harassment. In fact, one of his co-workers repeatedly suggested that he file an internal complaint against Smith (Pl. App. 148). An alleged victim of discrimination's subjective fear that taking advantage of an employer's multi-faceted, established written policies might result in acts of reprisal or retaliation is insufficient to raise a genuine issue of fact that his failure to utilize the employer's policies was not unreasonable. See also Shaw v. Autozone, Inc., 180 F.3d at 813 ("While a victim of sexual harassment may legitimately feel uncomfortable discussing the harassment with an employer, that inevitable pleasantness cannot excuse the employee from using the [employer's] complaint mechanisms").
Taylor also claims that he reported the sexual harassment to Major Brown. The TDCJ-ID argues that the court cannot consider Plaintiff's deposition testimony about his meeting with Major Brown because it contradicts his prior statements that he did not report his allegations of sexual harassment to the agency. See e.g., S.W.S. Erectors, Inc. v. Infax Inc., 72 F.3d 489, 495 (5th Cir. 1996). The most telling evidence in terms of prior evidence in which Taylor contradicts his subsequent deposition testimony is his statement found at App. 94 where he denied seeking assistance from any source with respect to his discrimination claims in the EEOC's intake questionnaire. Although Taylor signed the documents which was filled in by an EEOC employee, it was not sworn to or made under penalty of perjury. A review of the other summary judgment evidence proffered by Defendants does not support a finding that Taylor gave contradictory sworn statements.
But see App. 346, 1.2 through 348, 1.14.
In the context of summary judgment proceedings, the court accepts Plaintiff's evidence with respect to his contact with Major Brown as true. Accordingly, the court now considers Taylor's summary judgment evidence concerning his conversation with Major Brown.
Taylor claims he told Major Brown in May of 1998, that Smith "was talking to him about his sex life and, in general, harassing him. . . ." (App. 37-38, Plaintiff's Supp. Obj. and Ans. to Defendant's First Set of Interrogatories and Requests for Production). At his deposition, Taylor testified that he told Brown that he wanted Brown to talk to Smith and that he just wanted Brown to get Smith "up off" him because her behavior was causing him a great deal of stress (App. 344-46). However, Taylor also admitted that he told Brown that he did not want to blow this out of proportion; he did not want any trouble; he did not want it known around the jail facility; he did not want to charge Smith with sexual harassment; and he did not want an investigation conducted. (App. 344-46).
Conspicuous by its absence is any statement to Brown that Defendant Smith had solicited Taylor to have sex with her, arguably the most serious allegation of sexual harassment asserted by him in this action.
Taking Taylor's version of the conversation as true, Taylor has not shown that he took advantage of the TDCJ-ID's preventive and corrective policies by giving adequate notice to the TDCJ-ID, through Major Brown, about Smith's sexual harassment, such that the TDCJ-ID can be held responsible for Smith's alleged actions. Taylor's deposition testimony shows that his conversation with Major Brown was hardly unambiguous: Taylor did not want to report Smith for sexual harassment and asked Major Brown essentially not make a "big deal" out of it. A sexually harassed employee has a duty to assert his rights and to complain so that the employer will have an opportunity to remedy the unlawful employment practice. Webb v. Cardiothoracic Surgery Associates, 139 F.3d 532, 538-39 (5th Cir. 1998). Taylor was well aware of the procedures for reporting sexual harassment. The TDCJ-ID cannot be held liable for not acting upon Taylor's vague complaints. "If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if the damages could reasonably have been mitigated, no award against a liable employer should reward a plaintiff for what her own efforts could have avoided." Faragher, 118 S.Ct. at 2293. It is important to bear in mind that Title VII's primary objective is "not to provide redress but to avoid harm." Id. at 2922.
Plaintiff's version of his conversation with Major Brown fails to create a genuine issue of fact sufficient to defeat the second prong of TDCJ-ID's affirmative defense.
Taylor's complaint also asserts a claim of racial discrimination. However, he did not assert a claim of racial discrimination in his administrative complaint filed with the EEOC (App. 64-65) and thus this court is without jurisdiction to entertain his Title VII claims based upon his race. See e.g, Ray v. Freeman, 626 F.2d 439, 442 (5th Cir. 1980), cert. denied, 450 U.S. 997, 101 S.Ct. 1701 (1981). Although Taylor's EEOC complaint made reference to the fact that he had been written up on July 27, 1998, it did not explain, even summarily, why he was written up, nor did he claim that the write-up was motivated by race discrimination. Moreover, assuming arguendo that the court has jurisdiction to consider a race discrimination claim, it is clear that Taylor suffered no adverse employment action. As noted above, the disciplinary report written by Defendant Smith following the escape of an inmate under Taylor's supervision was only the first step in initiating an internal investigation. Taylor's voluntary resignation, effective August 3, 1998, precluded any adverse action being taken by the TDCJ-ID, and the investigation of this incident was terminated (App. 381).
Taylor has also brought a state law claim for intentional infliction of emotional distress against Defendant Smith based on her alleged sexual harassment. In order to establish intentional infliction of emotional distress, Taylor must prove: 1)the defendant acted intentionally or recklessly, 2) the conduct was extreme and outrageous, 3) the actions of the defendant caused the plaintiff emotional distress, and 4) the emotional distress suffered by the plaintiff was severe. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). Outrageous behavior is beyond all possible bounds of decency and would be regarded as atrocious and utterly intolerable in a civilized community. Id. Conduct, even if it is a violation of Title VII, rises to the level of "extreme and outrageous" in only "the most unusual cases." Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 654 (5th Cir. 1994), reh'g denied en banc, 21 F.3d 1110 (5th Cir. 1994). Mere violations of laws regarding workplace conduct do not establish intentional infliction. Skidmore v. Precision Printing and Packaging, Inc., 188 F.3d 606, 613 (5th Cir. 1999).
Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Ugalde v. McKenzie Asphalt Co., 990 F.2d at 243. Smith's statements are more analogous to these kinds of statements than to those that might be considered extreme and outrageous enough to support a claim for emotional distress. See Gearheart v. Eye Care Centers of America, Inc., 888 F. Supp. 814 (S.D.Tex. 1995) (finding that inappropriate comments such as that one gets a promotion if one sleeps with the boss, talking about measuring skirt lengths of employees, and what kind of pantyhose employee should wear could not be considered extreme and outrageous to the extent that they would support a claim for intentional infliction of emotional distress). Moreover, Taylor has not shown that any emotional distress is "so severe that no reasonable [person] could have expected to endure it. See Gearheart, 888 F. Supp. at 823 (citations omitted). He does not claim to have suffered any psychiatric problems and he has not seen any mental healthcare provider for his alleged distress. See Gearheart, 888 F. Supp. at 823; see also Benavides v. Moore, 848 S.W.2d 190, 196 (Tex.App. — Corpus Christi 1992, writ denied) (plaintiff's admission that she had not consulted mental health professionals and she had no intention of doing so indicated that whatever actual distress she may have suffered did not rise to the level that a reasonable person could not be expected to endure).
Finally, the Plaintiff has brought a claim for assault based on Smith's touching him. One of these incidents involved Smith grabbing Taylor's collar in an allegedly aggressive way while inquiring about the location of another officer. (App. 262-27).
The elements for a cause of action for assault and battery are the same in civil and criminal suits. Price v. Short, 931 S.W.2d 677, 687 (Tex.App.-Dallas 1996, no writ) ( citing Texas Bus. Lines v. Anderson, 233 S.W.2d 961, 964 (Tex.Civ.App.-Galveston 1950, writ ref'd n.r.e.)). A person commits an assault if he "intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative." Tex. Penal Code Ann. § 22.01(a)(3) (Vernon 1994).
Touching Taylor on the arm clearly was not sexually suggestive. Taylor himself admits that this touching by Smith was to emphasize a particular point (App. 289). Moreover, on at least one occasion when Taylor asked her to take her had off his arm, she did so ( See Pl. App. 147). Obviously there is no claim that the touching caused a physical injury. The short duration of the physical contacts and Defendant Smith's acquiescence in removing her hand from Taylor's person when asked to do so forecloses a reasonable jury from finding the Taylor's evidence is sufficient to satisfy the elements of an action for assault and battery against Defendant Smith.
For the foregoing reasons, it is ORDERED that Defendant TDCJ-ID's Motion for Summary Judgment on Plaintiff's Title VII claims and Defendant Smith's Motion for Summary judgment on Plaintiff's supplemental state law claims are GRANTED.
A copy of this order will be transmitted to counsel for the plaintiffs and to counsel for the defendants.