Simpson v. Sewerage & Water Board of New Orleans
ORDER & REASONS granting 19 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 2/26/2014. (caa, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LEROY D. SIMPSON, III
SEWERAGE & WATER BOARD
OF NEW ORLEANS
ORDER AND REASONS
Before the Court is the Sewerage & Water Board of New Orleans'
motion for summary judgment.
For the reasons that follow, the
motion is GRANTED.
This employment discrimination lawsuit arises out of a former
Sewerage & Water Board employee's allegations of same-sex sexual
harassment and retaliation.
Leroy D. Simpson, III was hired as a Management Development
Support Specialist I, a position established by the Civil Service
Commission, at the Sewerage & Water Board of New Orleans on January
27, 2009. Mr. Simpson was tasked with directing administrative
activities, which included a broad array of duties such as budget
management, personnel administration, liaison duties with other
agencies, and other related work.
In November 2009, John Wilson became the Board's Director of
directly to Robert Miller, the Board's Deputy Director; Miller in
turn reported directly to Marcia St. Martin, the Board's Executive
Three months after working for Wilson, Simpson became
aware that Wilson is a homosexual; Simpson invited Wilson to his
wedding, told him to bring the "missus", to which Wilson responded
that he was "with a guy."
With Wilson's support, Simpson was named Employee of the Year
in December 2010.
On January 31, 2011 Wilson issued to Simpson an inter-office
memorandum, the subject of which, Mr. Wilson wrote, "is out of
consideration of your positive accomplishments and good attributes
while documenting your pattern of over stepping the lines of
authority of Support Services Division Superintendents as well as
my authority as Director of this Department."
Throughout the five
and one half page memo, Wilson notes incidents of Simpson's
"arrogant showmanship" and acting without authority; Wilson notes
the several counseling sessions he has had with Simpson, and warns
that "[m]ore severe disciplinary action may be considered if this
You have told me after this latest clump of incidents
that you would be satisfied to focus on Fixed Assets and
to work on the internship project.
I as well as the
individuals copied on this document are looking forward
to your continued professional development. There is a
lot of potential through time and experience for you to
move forward in this organization.
A few days later on February 4, 2011 Simpson responded to
Wilson's Memorandum of Authority Adjustment by issuing his own
seven and one half page inter-office memorandum to Wilson. Simpson
The subject for this memorandum is out of consideration
and critical concern for your debatable management
practices, documentation of your lack of tact and
sagacity of decision making and direction towards your
employees and myself in particular, and your hyperbole
and calumniation of events that you outlined in your
During the course of Simpson's "rebut[tal]" memorandum, Simpson
criticizes Wilson's management style, states "you are not my
parent", and -- in the context of describing Wilson as critical of
other managers and his poor management skills -- Simpson expresses
his "desire to distance myself away from you". For the first time,
at the end of page 5 of his memorandum, Simpson writes about
Wilson's alleged sexual harassment1:
I also do not appreciate you sharing your sexual exploits
with me in everyday conversations both at me and around
I do not care what you did in your past but
tolerated your conversations as you mentioned that how
you were "popular" with your lovers all over the world,
how you and your partner relaxed one night when "one
Although he did not report them at the time, Simpson
says that Wilson's sexual gestures and remarks started sometime in
June 2010, shortly after Simpson's wedding; he also suggests that
he finally told Wilson to stop talking about his sexual exploits a
few days before Wilson issued his Memorandum of Authority
thing led to another", how women do not turn you on "for
specific reasons", or the types of escapades you had in
college, and most contemptible was your repeated
identified interest and inquiry in my married life
pertaining to my wife "taking care of me"[.]
I was really insulted and disturbed about that content
because that type of conversation is beyond encroachment
of professional boundaries. You would think a man of
your position and the so-called "character" you portray
would contrast that type of socialization but that is far
from reality in this case. I also would like to point
out your inappropriateness with me on a social occasion.
When we took a picture for the Support Services Christmas
Party in 2010, you proceeded to slide your hand on my
lower back almost to my posterior, but I moved to
demonstrate my discomfort while not wanting to create a
scene at the Christmas party as the employees were
enjoying themselves. You then lightly placed your hand
on my back and shoulder after you received the signal
that I was uncomfortable in your inappropriate touching
which you should be [aware] of as "out of bounds" towards
another male who is subordinate to you. This is another
reason of why I no longer trust you around me...I am
concerned that you may overstep your boundaries even
Switching back to the subject of Wilson's memorandum, Simpson next
writes how he will address Wilson's proposed "corrective actions".
Finally, Simpson concludes his memo by stating:
I do not have to "appear to have a high level of
intelligency" as my credentials advertise confirmation of
abound erudite proportions.
With sincere regret, I
cannot say this for you though and you seem to want to
"control me" just because I do possess more education
which leads to my admirable exercising of prudence and
the ability to manage better and more efficiently than
you have which was confirmed by your own admission and
compliments of others....
This response is not to
demonstrate a vindictively laden position, as that is not
up and becoming of an individual that was privileged to
study and debate among scholars and leaders, but I could
not allow you to outright decimate my character without
refute. I conclude my response to confirm that age does
not necessarily bring wisdom and you have proven that
I implore you to seek contrition
contemplation of your actions.
Three days after submitting his rebuttal memorandum, Simpson filed
three formal internal grievances against Wilson for two violations
of the Board's harassment policy and one for defamation.
"relief sought" portion of the grievance forms, Simpson requested
a transfer from supervision, or monitored supervision, and that
Wilson be removed from his position as director; he also requested
re-assignment, as well as a written apology from Wilson in which
Wilson refuted all allegations in his memo.
Several days later,
Wilson issued a new memorandum in which he withdrew his critical
January 31 memorandum, and the January 31 memorandum was removed
from Simpson's file.
In response to Simpson's request that he be removed from
Wilson's supervision, Robert Miller obliged, re-assigning Simpson
to work in the finance department; it is undisputed that this
transfer occurred seven days after Simpson's initial complaint.
After Simpson was transferred to the finance department, he was not
subject to any alleged harassment by Wilson.
Wilson did not
participate in Miller's decision to transfer Simpson to a different
department; Miller's rationale for moving Simpson to finance was
that "it would help Simpson in his understanding of fixed assets
finance department (and moves within the finance department) did
not result in any change in Simpson's pay or benefits.
In response to Simpson's grievances, the Board's EEO/Grievance
Officer, Bobby Nathan, conducted an investigation beginning in
With respect to whether Simpson's harassment
allegations were substantiated by the investigation, Mr. Nathan
determined that it was one man's word against another's; Mr.
Nathan's report suggested that perhaps Simpson's sexual harassment
The Board submits the declaration of Robert Miller, in
which he states that:
Prior to receiving Simpson's February 4, 2011
memorandum, I had spoken with him on a number
of occasions about his work in the area of
responsibilities was to create a basic
inventory of the Board's fixed assets. He made
very little headway on this project and, it
was my impression, appeared more interested in
working on other matters. [Simpson] correctly
notes [in] his deposition that I advised him
that I would not sign off on a promotion for
him because of his failure to perform his
responsibilities regarding fixed assets....
As I explained in my February 18, 2011 memo to
Williams..., Simpson's work product made it
"clear to me that he did not understand fixed
assets and record keeping". I concluded that
he would benefit by entering data on the
financial system so he would better understand
how the Board's financial system worked. This
in turn, would assist him in performing his
work on fixed assets. All of his subsequent
assignments in the finance department were
geared to improve his understanding of the
Board's financial system.
allegations stemmed at least in part from Wilson's memorandum of
Nevertheless, Mr. Nathan recommended in May
2011 that the decision made in February by Miller, to transfer
Simpson to the finance department, should stand.
In April 2011
Wilson evaluated Simpson's performance as "exceeds requirements"
for the previous year.
Miller reviewed Wilson's evaluation of
(Simpson was not pleased that Wilson was
permitted to evaluate him).
On January 20, 2012, referencing subject line "Change in
Simpson that, effective January 23, he would report to Janet Cage
and that Simpson's "duties will be FEMA related and other duties
[as] deemed necessary by your supervisor"; Miller and others were
copied on the email.
Simpson replied to Ms. Williams (and the
others copied on the email) by emailing her a list of 9 questions
about his new "temporary working environment until my grievance is
resolved", reminding her that his classification is a Management
Development Specialist I, and noting that his duties must be within
the scope of his classification.
Miller responded to Simpson by
I have reviewed the work assignment described in the
email below from Ethel Williams and found that it is
consistent with the Management Development Specialist I
job duties. No further response from Ethel Williams is
If you have specific questions about the tasks that Janet
Cage assigns to you on Monday, please ask her then. I do
not expect her to submit written responses to your
questions, so please be prepared to take notes.
You have not been required to work out of your
classification at any point in the past year.
refusal on your part to perform duties assigned to you by
Ethel Williams or Janet Cage, for as long as they are
your assigned manager and supervisor, will be considered
Simpson changed the subject line of the email to "Final Warning"
and responded to Miller:
First of all, I asked Mr. Robert L. Nathan, EEOC
Officer...to investigate as well as submitted a letter to
your supervisor, Marcia Armand St. Martin, Executive
Director of the Sewerage and Water Board about your feral
behavior that you aggressively displayed during your last
interaction with me when I presented you with my
grievance entitled, "Racial Discrimination, Policy
Memorandum #87" and asked him that you are to cease and
desist all verbal and physical contact with me. Since
you have violated my request yet again, I have to
consider this as an "open threat" and "reprisal" and now
representation and, to further protect myself, get law
enforcement involved. This will be my final warning to
you, so please take every precaution and modification to
once again cease and desist further contact with me.
This will be my absolute last time advising you of these
actions so do not violate my safety again.
Secondly, this is another example of how your decision
making has subjected me to adverse impact and mental and
physical harm to my constitution. Because I submitted
the email and copied you on it was to openly request that
my job duties...be placed in writing so that I may
present it to civil service authorities to ensure that
their rules are followed. I reserve the right to work in
a healthy and safe work environment and you are in
violation of that right.
Also, this correspondence also is in violation fo EEOC
enforced law Title VII discrimination as you are
aggressively facilitating and rendering undue hardship to
me because I filed a complaint against you and
Miller advised Ms. St. Martin that he felt threatened by Simpson's
email and that he did not feel safe working with Simpson.
response, Ms. St. Martin issued a formal reprimand to Simpson for
reaction to Miller, and assigned Simpson to work in the department
assignment eliminate the need for Simpson to communicate with
Miller, St. Martin believed that it was a good fit for Simpson's
Simpson had no complaints about his work
in the department of intergovernmental relations. Nevertheless, on
March 19, 2012 Simpson resigned from the Sewerage and Water Board.4
Simpson resigned "around the time" he was offered a job from
Accenture; he has since stated that he resigned because he did not
The record suggests that, shortly after Miller said he
felt threatened by Simpson, Simpson was escorted off SWB premises.
According to Simpson, who denies that he threatened Miller, this
was unwarranted; he was embarrassed and humiliated. There is no
contention that Simpson was not permitted to return to the SWB to
resume his daily work; to the contrary, the record establishes that
Simpson continued to work at the Board for at least two more
months, until March 2012.
In his letter of resignation to Marcia St. Martin,
that you expunge the "reprimand" from my
downright libelous, in addition to being
entirely denigrating and detracting of my
pronouncement ad pedem litterae, which was
feel safe with Wilson and Miller still working at the Board.
Simpson filed a charge of discrimination with the Equal
Employment Opportunity Commission, which issued a right to sue
letter on May 11, 2012.
On June 20, 2013 Simpson sued the Sewerage
& Water Board of New Orleans, alleging claims arising under Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e,
et seq.; in particular, Simpson asserts that he was subject to
same-sex sexual harassment by a former supervisor, John Wilson, and
that, because he complained of the harassment, the Board unlawfully
retaliated against him, culminating in his constructive discharge.
In particular, Simpson charges that from June 2010 until February
2011, he was subjected to sexual harassment and a sexually hostile
work environment by his immediate supervisor, John Wilson, who
talked about his sexual exploits, including how he converted men in
college to homosexuality; encouraged Simpson to seek him out if his
wife did not treat him right; attempted to grab Simpson's butt
during a Christmas party; during one-on-one meetings, sat in a lewd
position with his legs spread to display his private parts while he
licked his lips.
Simpson alleges that he filed a formal grievance
on February 7, 2011, at which time he requested an immediate
transfer from Wilson's supervision.
Two days later, Simpson
alleges, Miller tried to coerce Simpson to acknowledge that he
filed the grievance out of anger but, when Simpson denied it,
Simpson was told he was being moved to the finance and accounting
department temporarily while his harassment complaint was being
knowledge in finance or accounting, he was asked to perform
functions for which he lacked skill, and he was moved three times
into areas where he had no hope of advancement, and that he never
received a formal response to his grievance.
He resigned in March
2012 "to seek advancement opportunities elsewhere."
Simpson seeks (1) a permanent injunction enjoining the Board
retaliation; (2) an order requiring the Board to make him whole,
including by paying backpay, past and future medical expenses,
compensation for non-pecuniary losses such as emotional pain and
suffering, inconvenience, loss of enjoyment of life, lowered selfesteem and humiliation, as well as moving expenses necessitated by
Simpson seeking employment in another state; and (3) an award of
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as to
any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.
See Matsushita Elec. Indus. Co.
v. Zenith Radio., 475 U.S. 574, 586 (1986).
A genuine dispute of
fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
colorable, or is not significantly probative," summary judgment is
Id. at 249-50 (citations omitted).
is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).
See Celotex Corp. v. Catrett,
In this regard, the non-moving party
must do more than simply deny the allegations raised by the moving
See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d
646, 649 (5th Cir. 1992).
Rather, he must come forward with
competent evidence, such as affidavits or depositions, to buttress
Hearsay evidence and unsworn documents that
cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.
John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed.R.Civ.P. 56(c)(2).
Finally, in evaluating the summary
judgment motion, the Court must read the facts in the light most
favorable to the non-moving party.
Anderson, 477 U.S. at 255.
Title VII Sex Discrimination
Title VII of the Civil Rights Act of 1964 prohibits employers
from discriminating “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).
When a hostile work environment is created through harassment, this
antidiscrimination provision is likewise triggered.
See EEOC v.
Boh Bros. Constr. Co., 731 F.3d 444, 452 (5th Cir. 2013)(citations
prohibition on employment discrimination based on sex includes a
prohibition on same-sex sexual harassment. See Oncale v. Sundowner
Offshore Services, Inc., 523 U.S. 75, 81 (1998)("If our precedents
leave any doubt on the question, we hold today that nothing in
Title VII necessarily bars a claim of discrimination 'because of
... sex' merely because the plaintiff and the defendant (or the
person charged with acting on behalf of the defendant) are of the
An employee alleging same-sex harassment must "prove
that the conduct at issue was not merely tinged with offensive
because of sex."
See Oncale, 523 U.S. at 81.
supervisor's conduct, the Fifth Circuit observes,
there are four elements of a hostile working environment
claim: (1) that the employee belongs to a protected
class; (2) that the employee was subject to unwelcome
sexual harassment; (3) that the harassment was based on
[a protected characteristic]; and (4) that the harassment
affected a "term, condition, or privilege" of employment.
Lauderdale v. Tex. Dep't of Criminal Justice, 512 F.3d
157, 162-63 (5th Cir. 2007).
To affect a term,
condition, or privilege of employment, the harassing
conduct "must be sufficiently severe or pervasive to
alter the conditions of [the victim's] employment and
create an abusive working environment." Aryain v. WalMart Stores of Tex., L.P., 534 F.3d 473, 479 (5th Cir.
2008)(alteration in original)....
See Boh Bros. Constr. Co., 731 F.3d at 453.
"In the context of
same-sex discrimination," the Fifth Circuit instructs, "these
First,...whether the alleged conduct was sex discrimination and,
second,...whether the conduct meets the standard for a quid pro quo
or hostile-work-environment claim."
With respect to the first inquiry, one way a plaintiff can
show that the alleged harassment was based on sex is to show "that
the alleged harasser made 'explicit or implicit proposals of sexual
activity' and provide 'credible evidence that the harasser was
La Day v. Catalyst Tech., Inc., 302 F.3d 474, 478
(5th Cir. 2002)(quoting Oncale, 523 U.S. at 80, which "outlined
three ways in which a plaintiff can show that an incident of samesex harassment constituted sex discrimination").
If the plaintiff
submits adequate support that the alleged harassment was based on
sex, the plaintiff must show that the discriminatory conduct rose
to the level of either quid pro quo or hostile work environment
Id. at 481.
Here, Simpson does not pursue a quid pro
quo theory but, rather, submits that Wilson, his supervisor,
created a hostile work environment.5
In pursuing a hostile work environment theory, a plaintiff
Id. at 482.
"'[A] sexually objectionable environment
must be both objectively and subjectively offensive, one that a
reasonable person would find hostile or abusive, and one that the
victim in fact did perceive to be so.'"
Id. (quoting Butler v.
Ysleta Indep. Sch. Dist., 161 F.3d 263, 269 (5th Cir. 1998)(quoting
Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)).
determine whether the plaintiff's environment was sufficiently
hostile to trigger Title VII, the Court must examine "all the
conduct; its severity; whether it is physically threatening or
unreasonably interferes with an employee's work performance."
Faragher, 524 U.S. at 787 (explaining that "'simple teasing,'
offhand comments, and isolated incidents (unless extremely serious)
will not amount to discriminatory
conditions of employment.'").
changes in the 'terms and
Of course Title VII “does not set
forth ‘a general civility code for the American workplace.’”
Simpson nowhere alleges, or attempts to prove, that a
tangible employment action resulted from his refusal to submit to
Wilson's sexual advances.
Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57,
61-62 (2006)(quoting Oncale, 523 U.S. 75, 80 (1998) and Faragher,
524 U.S. at 788 (judicial standards for sexual harassment must
“filter out complaints attacking ‘the ordinary tribulations of the
workplace, such as the sporadic use of abusive language, genderrelated jokes, and occasional teasing’”)).
If a plaintiff proves that his harasser's conduct was severe
or pervasive, the fact that the alleged harasser is the plaintiff's
supervisor is significant.
The status of the harasser impacts
whether or not the defendant may pursue an affirmative defense. An
employer is presumptively liable for proscribed harassment if the
plaintiff was harassed by someone with supervisory authority over
Ellerth, 524 U.S. at 761; Faragher, 524 U.S. at
If the supervisor's harassment culminates in a tangible
employment action, such as discharge, demotion, or undesirable
affirmative defense is available.
Absent some tangible
employment action, however, the employer may avoid liability by
exercised reasonable care to prevent and correct promptly any
sexually harassing behavior, and (b) that the plaintiff employee
corrective opportunities provided by the employer or to avoid harm
Discrimination Because of Sex?
harassment is to submit "credible evidence" that the harasser is
homosexual and that the harassment was sexual in nature.
2012)(citing Oncale, 523 U.S. at 81).
Two types of "credible
evidence that the harasser "intended to have some
kind of sexual contact with the plaintiff rather
than to merely humiliate him for reasons unrelated
to sexual interest", or
evidence that the harasser "made same-sex sexual
advances to others, especially other employees."
Id. (quoting La Day, 302 F.3d at 480).
Here, the plaintiff presents evidence in the form of his
testimony that he was harassed by Wilson; some of plaintiff's
submissions support a finding that the harassment was sexual in
nature: Wilson's remarks that he "converted" men in college to
homosexuality; Wilson's remarks inquiring whether Simpson's wife
was "taking care of him" and his implicit proposal of sexual
activity, that Wilson would "take care" of Simpson; Wilson touched
Simpson's back "almost to" his "posterior" during the Christmas
party photo; Wilson touched himself in a sexually suggestive and
provocative manner (spreading his legs, rubbing his genitals, and
licking his lips) when he and Simpson were alone in his office.
The Board does not contend that these allegations fail to
support a finding that the harassment was sexual in nature.
homosexual, and the summary judgment record supports such a finding
(when Simpson invited Wilson to his wedding and told him to "bring
the missus", Wilson responded that he was in a relationship with a
Wilson's conduct towards Simpson was sexual in nature.
Quid Pro Quo or Hostile Work Environment Theory?
The defendant contends that Simpson has not alleged, and
cannot show, that he suffered a tangible employment action at the
hands of his alleged harasser and, therefore, (a) his claim should
be analyzed under the hostile work environment theory and (b) the
SWB is eligible for the Ellerth/Faragher defense.
The plaintiff concedes that he pursues only a hostile work
environment theory, and he otherwise fails to advance any argument
concerning whether he was subjected to tangible employment action
It is undisputed that Simpson asked to be removed from
That the plaintiff advances only a hostile work
environment theory, and not a quid pro quo theory, compels a
finding that the employer is eligible for the Ellerth/Faragher
defense. Nevertheless, in Casiano v. AT&T Corp., the Fifth Circuit
instructed that "[d]etermination whether the complaining employee
has suffered a tangible employment action is the indispensable
first step in every supervisor sexual harassment...case", and
As a result, the defendant submits (and the
record supports) that Miller (not Wilson) decided to transfer
Simpson to the finance department; notably, Wilson did not make or
approve the decision to transfer Simpson to a different department,
and the transfer did not result in any change in Simpson's pay or
See Alaniz v. Zamora-Quezada, 591 F.3d 761, 772 (5th
"reinforce[d] the methodology...for disposing of all supervisor
sexual harassment claims" as follows:
At the first stop on the Ellerth/Faragher road
map, courts are required to determine whether
the complaining employee has or has not
suffered a "tangible employment action." If
he has, his suit is classified as a "quid pro
quo" case; if he has not, his suit his
classified as a "hostile environment" case.
That determination provides a fork in the road
on the Ellerth/Faragher map[:] proof that a
tangible employment action did result from the
employee's acceptance or rejection of sexual
harassment by his supervisor makes the
employer vicariously liable[;] no affirmative
defense will be heard....
On the other hand, [in the hostile work
environment context], a different inquiry
ensues at the second stop: If proved, would
the actions ascribed to the supervisor by the
employee constitute severe or pervasive sexual
harassment? If they do not, Title VII imposes
no vicarious liability on the employer; but if
liable–unless the employer can prove both
prongs of the Ellerth/Faragher affirmative
213 F.3d 278, 284 (5th Cir. 2000).
"A tangible employment action constitutes a significant
change in employment status, such as hiring, firing, failing to
responsibilities, or a decision causing a significant change in
Ellerth, 524 U.S. at 761.
"A tangible employment
action in most cases inflicts direct economic harm." Id.
Cir. 2009)(finding that the plaintiff's reassignment to HR manager
position did not constitute a tangible employment action, noting
that her duties remained unchanged, and she did not show that the
prior position was objectively superior so that her reassignment
could be considered a demotion).
Simpson does not dispute this
employment action because he rejected Wilson's sexual advances.
Even if the Court considered Simpson's suggestion -- that he was
frustrated with being transferred to the finance department in
particular -- as an attempt to characterize the reassignment as a
Simpson's papers), the record provides no support.
Although Simpson submits no proof that a tangible employment
action resulted from his acceptance or rejection of Wilson's sexual
advances, "[i]n certain circumstances, a constructive discharge can
be considered a tangible employment action that precludes an
employer from asserting the Ellerth/Faragher defense to vicarious
See Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 480
(5th Cir. 2008)(citing Ellerth, 524 U.S. at 765 and Penn. State
Police v. Suders, 542 U.S. 129, 140-41 (2004)).
conditions become so intolerable that a reasonable person in the
employee's position would have felt compelled to resign."
542 U.S. at 141; McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th
A plaintiff alleging that sexual harassment compelled
him to resign must present "something more" than what is required
to establish a hostile work environment claim. Suders, 542 U.S. at
The Fifth Circuit considers these factors in determining
whether a reasonable employee would have felt compelled to resign:
(1) demotion; (2) reduction in compensation; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work; (5)
reassignment to work under a younger supervisor; (6) badgering,
harassment, or humiliation by the employer calculated to encourage
the employee's resignation; or (7) offers of early retirement or
continued employment on less favorable terms.
Aryain, 534 F.3d at
481 (citing Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757,
771-72 (5th Cir. 2001).
However, the defendant counters that
Simpson was not constructively discharged: he was not demoted, his
degrading work or assigned to a younger supervisor; he was not
offered early retirement; and he was not threatened; nor are his
allegations of harassment sufficient to establish such a claim. He
simply looked for and found another job.
Because the plaintiff in
his opposition papers failed to counter the defendant's submission
on the constructive discharge claim, the defendant insists that the
plaintiff abandoned the theory and it should be dismissed as such.
The Court agrees.
Even if the Court considered the merits of the constructive
discharge theory, however, Simpson has not submitted evidence that
Simpson has not and cannot show that his
working conditions were so intolerable that he had no choice but to
Simpson submits nothing that would support a finding that
Wilson's harassment was "calculated to encourage" his resignation;
to the contrary, it is undisputed that when Simpson was reassigned
as requested -- a step reasonably calculated to end the harassment
-- the harassment indeed ceased.
Even considering circumstances
unrelated to Wilson's harassment, for example, that Simpson was
frustrated with being assigned to the financial department because
he felt he lacked the requisite skill to complete the tasks
assigned, the record is clear:
he had requested reassignment and
had no complaints regarding how he was treated in the financial
department (or the intergovernmental affairs department); and there
is no suggestion that he was assigned degrading work.
Simpson's displeasure with Miller's continued impatience with him
and his displeasure with being reprimanded by Ms. St. Martin, which
Simpson referenced in his resignation letter, likewise does not
reasonably support a conclusion that Simpson had no choice but to
In at least two cases, the Fifth Circuit held that conduct
arguably more impressive than in Simpson's case did not rise to the
level necessary to establish a constructive discharge claim.
Aryain, 534 F.3d at 479-81 (daily comments and propositions, as
well as less frequent but severe sexually charged and explicit
comments); see also Landgraf v. USI Film Products, 968 F.2d 427,
involving "continuous and repeated inappropriate verbal comments
and physical contact," did not rise to the level necessary to
establish a constructive discharge claim).
Accordingly, the plaintiff's constructive discharge claim
must, on this record, be dismissed and the Board is eligible to
pursue its affirmative defense; the Court proceeds to consider the
hostile work environment theory that Simpson advances.
Sufficiently Severe or Pervasive to Alter Conditions of
The parties dispute whether Wilson's harassment was severe or
egregious, can alter the terms and conditions of employment."
Harvill v. Westward Communications, L.L.C., 433 F.3d 434-35 (5th
Cir. 2005)(citing Faragher, 524 U.S. at 788).
incidents of harassment "can reach the level of 'pervasive'",
Faragher, 524 U.S. at 788.
that, considering only the
conduct described in Simpson's February 4 memorandum, this conduct
is insufficiently severe or pervasive to constitute actionable
Second, the defendant submits that, even considering
plaintiff revealed for the first time after a lunch break during
plaintiff's deposition, Simpson's contradictory allegations do not
support his harassment claim.
In fact, the defendant urges the
Court not to consider the allegations made for the first time
during the second half of the plaintiff's deposition because the
late statements are analogous to a subsequent affidavit that may
not be used to contradict prior deposition testimony.8
frequent, severe, and physically humiliating.
He submits that he
endured more than 25 incidents of harassing conduct beginning in
June 2010 (before telling Wilson to "stop" shortly before Wilson
issued his memorandum of authority adjustment), including that
Wilson discussed his sexual exploits; he wore tight fitting pants
and rubbed his genitals while licking his lips and looking and
smiling flirtatiously at Simpson; he told Simpson that he could
satisfy Simpson if his wife couldn't; he told Simpson he loved him;
The defendant also notes that, because Simpson testified
that he had repressed the memories of these later-revealed events,
none of these events could have affected him emotionally during his
employment and, therefore, could not have affected a term or
condition of employment.
he tried to touch Simpson's butt during a Christmas party photo.9
plaintiff, the harassing conduct was frequent if not severe.
subjectively offensive. The Court finds that it need not determine
whether Wilson's conduct was sufficiently severe or pervasive to
alter employment conditions because even assuming Simpson has
raised a genuine dispute as to a material fact regarding severity
or pervasiveness,10 the defendant has proved its affirmative defense
by a preponderance of the evidence, disposing of Simpson's hostile
work environment claim, as a matter of law, to which the Court now
Ellerth/Faragher Affirmative Defense
The Court need not reach the defendant's argument that
the Court should disregard those incidents of harassment first
revealed by the plaintiff during the second half of his deposition
(after his lunch break).
The Fifth Circuit "has held that a single incident in
which a harasser briefly touched the plaintiff's anus, along with
the statement that the harasser was jealous of the plaintiff's
girlfriend, was sufficient to satisfy the severe or persuasive
requirement." See Cherry v. Shaw Coastal, Inc., 668 F.3d 182, 189
(5th Cir. 2012)(citing La Day, 302 F.3d at 483; and vacating the
district court's order granting judgment as a matter of law in
favor of the defendant, and remanding the case to the district
court with directions to enter a judgment on the verdict with
respect to the plaintiff's hostile work environment claim in which
the record showed that the plaintiff's supervisor regularly
commented on the plaintiff's looks, sent him sexually explicit text
messages, invited him to stay at his house, implicitly
propositioned him, and regularly touched the plaintiff's butt and
establish both prongs of the Ellerth/Faragher affirmative defense,
the plaintiff fails to advance any contrary argument, and the
plaintiff's sexual harassment claim should be dismissed. The Court
The SWB Exercised Reasonable Care to Prevent and
Promptly Correct Sexually Harassing Conduct
Ellerth/Faragher defense by implementing suitable institutional
policies and educational programs regarding sexual harassment."
See EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 462 (5th Cir.
The SWB submits that it exercised
reasonable care to prevent promptly Wilson's sexually harassing
behavior: it had in place an equal employment opportunity policy,
a grievance complaint procedure, a specific workplace harassment
policy (providing examples of prohibited conduct and outlining
complaint procedures), and an EEO officer dedicated to promptly
insufficiently communicated; indeed, he eventually invoked the
complaint procedure and the EEO officer investigated his complaint.
facilitating sexual harassment complaints and thereafter responding
to them promptly with an investigation, is uncontroverted. See id.
at 464 n.22 ("We have considered the existence of a written
Ellerth/Faragher analysis."); see also Casiano v. AT&T Corp., 213
F.3d 278, 286 (5th Cir. 2000).
With respect to the "prompt, remedial action" element of a
typical hostile work environment claim,11 the Fifth Circuit has
A defendant may avoid Title VII liability when harassment
occurred but the defendant took "prompt remedial action"
to protect the claimant. Hockman v. Westward Commc'ns,
LLC, 407 F.3d 317, 329 (5th Cir. 2004). What constitutes
prompt remedial action is a fact-specific inquiry....
"An employer may be liable despite having taking remedial
steps if the plaintiff can establish that the employer's
response was not reasonably calculated to halt the
Williams-Boldware v. Denton County, Texas, --- F.3d ---, 2014 WL
349749, at *4 (5th Cir. Jan. 31, 2014).
harassment and requested reassignment away from his harasser, the
SWB called for an investigation by its EEO Officer (who conducted
interviews and reviewed documents) and, within seven days, Simpson
was reassigned so that he no longer reported to Wilson.
It is also
undisputed that the harassment stopped after Simpson's transfer to
the finance department.
The record supports a finding that the
At the very least, an analogous inquiry to the first
prong of the Ellerth/Faragher affirmative defense.
calculated to end, and did end, the harassment.
See id. at 5 ("in
determining whether the employer's actions were remedial, we have
considered whether the offending behavior in fact ceased")(citation
Simpson Unreasonably Failed to Take Advantage of
Preventive or Corrective Opportunities Or to Avoid
Simpson failed for as many as 8 months to avail himself of the
SWB's anti-harassment policy and complaint procedures; he did not
report the harassment, which he alleges commenced in June 2010,
until February (after being reprimanded by Wilson for acting
harassment, the undisputed record evidence establishes that the SWB
responded promptly. It reassigned Simpson (as he requested).
EEO officer investigated Simpson's complaints.
Simpson complained in his deposition that he was reluctant to
report the harassment for fear of retaliation.
But he ignores the
text of the complaint procedure, which provides for anonymous
complaints and nondisclosure. Moreover, the SWB could not remedy
harassment that it did not know was occurring.
Indeed, the Fifth
policies become increasingly comprehensive and well-implemented, a
plaintiff's success will often turn on whether he promptly reported
the harassing conduct." See Boh Bros. Constr. Co., 731 F.3d at 463
n.19 (noting that "the Ellerth/Faragher design 'works only if
employees report harassment promptly, earlier instead of later, and
the sooner the better").
Thus, 'where an employer implements
suitable institutional policies and educational programs regarding
sexual harassment, an employee who fails to take advantage of those
policies cannot recover.'"
Id. (citation omitted); Casiano, 213
harassment by a supervisor over the course of several months was
This is the only reasonable common sense result
because a defendant "cannot be held liable for conduct of which it
had no knowledge."
Cf. Woods v. Delta Beverage Group, Inc., 274
F.3d 295, 299 (5th Cir. 2001).
Title VII Retaliation
Burlington Northern & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006)(citation and internal quotation marks
This anti-retaliation provision prohibits an employer
because that individual “opposed any practice” made unlawful by
Title VII or “made a charge, testified, assisted, or participated
in” a Title VII proceeding or investigation. 42 U.S.C. § 2000e3(a).12
Like employment discrimination claims, retaliation claims
pursued by presentation of circumstantial evidence are governed by
the McDonnell Douglas burden-shifting framework.
McCoy v. City of
Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007)(citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
Under that framework, an employee must first establish a
prima facie case of retaliation by showing that: (1) he engaged in
a protected activity; (2) that his employer took an adverse
employment action;13 and (3) that a causal link exists between the
Section 704(a) provides in full:
It shall be an unlawful employment practice
for an employer to discriminate against any of
his employees or applicants for employment ...
because he has opposed any practice made an
subchapter, or because he has made a charge,
testified, assisted, or participated in any
manner in an investigation, proceeding, or
hearing under this subchapter.
To prove that an employer took an adverse employment
action, the plaintiff must show that "a reasonable employee would
have found the challenged action materially adverse, which in this
context means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination."
Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006)(internal quotations omitted, citations omitted). "We speak
of material adversity, the Supreme Court observes, because we
believe it is important to separate significant from trivial
harms." Id. (emphasis in original).
protected activity and the adverse employment action.
If the employee makes his prima facie case of retaliation, the
burden shifts to the employer, which must articulate legitimate,
non-discriminatory reasons for its employment action and then, if
articulated, the burden shifts back to the employee to show that
the employer’s proffered reasons are a pretext for its actual
Traditional principles of but-for
causation apply in the retaliation context:
the plaintiff must
prove "that the unlawful retaliation would not have occurred in the
absence of the alleged wrongful action...of the employer." See
University of Texas Southwestern Med. Ctr. v. Nassar, 133 S.Ct.
2517, 2533 (2013); see also Coleman v. Jason Pharmaceuticals, 540
Fed.Appx. 302, 304 (5th Cir. Sept. 17, 2013)(unpublished, per
adverse action would not have occurred 'but for' the employer's
retaliatory reason for the action.").
The defendant contends that Simpson cannot satisfy his prima
facie case because: (1) he had no objectively reasonable belief
that the SWB engaged in employment practices barred by Title VII
and, therefore, Simpson failed to engage in protected activity; (2)
the plaintiff did not suffer an adverse employment action because
a lateral transfer is not materially adverse as a matter of law;
and (3) Simpson has not shown a causal connection between his
complaints and his allegedly adverse employment action.
The plaintiff's papers do little to shed light on what exactly
he considers to be the SWB's retaliatory conduct.
assumes (generously) that Simpson characterizes the following as
the alleged retaliatory conduct: (1) Wilson issued his January 31
memo of authority adjustment; (2) Miller transferred him to the
finance department; (3) Miller gave him poor comments on his April
2011 evaluation; (4) Wilson withdrew his letter in support of
plaintiff's promotion; (5) Miller was angry and yelled at Simpson
after receiving Simpson's December 19, 2011 internal grievance
alleging race discrimination against Miller; and (6) Simpson was
escorted off the premises and issued a formal reprimand after he
sent Miller a "final warning" email.
None of these allegations
constitute a materially adverse employment action.
First, Wilson's memo was authored before Simpson lodged his
complaints regarding his sexually harassing conduct.
And the memo
was removed from Simpson's file once Simpson filed his internal
Second, Simpson fails to submit persuasive evidence
that his transfer to the finance department would have dissuaded a
reasonable employee from lodging a complaint of discrimination; the
record confirms that Simpson requested that he be reassigned, he
was, and his pay, benefits, title, and working conditions remained
description of his job classification.
A lateral transfer is not
a materially adverse employment action.
Cf. Sabzevari v. Reliable
Life Ins. Co., 264 Fed.Appx. 392, 296 (5th Cir. 2008)(unpublished,
Third, the record shows that Simpson's overall
score on his evaluation was good; it "exceeds requirements"; there
Fourth, Simpson admits that he was denied
the promotion in question because he was not qualified.
Miller told him he would not receive the promotion before Wilson
sent his January 31 memo, which predates Simpson's complaints about
Fifth, Simpson fails to suggest how Miller's anger at him
for lodging a race discrimination grievance constitutes a material
adverse employment action; nor does he attempt to link Miller's
angry remarks or alleged tantrum to Simpson's alleged protected
activity (complaining about Wilson).14
Finally, Simpson being
escorted off the premises and formally reprimanded after sending
what Miller perceived to be a threatening message, hardly rises to
the level of a materially adverse employment action.
Nevertheless, even if one were to assume that Simpson has
satisfied his prima facie case of retaliation, the SWB has carried
retaliatory reason for reassigning the plaintiff to the finance
department: the record confirms that Simpson asked to be separated
Simpson does not pursue a race discrimination claim
against Miller in this lawsuit.
from Wilson, and the SWB correctly submits that its legitimate
department was so that he could become more familiar with the
accounting side of the Board's fixed assets program, which was one
of Simpson's responsibilities in support services.
Having articulated a legitimate, non-retaliatory reason for
his reassignment, the burden shifts back to Simpson to show that
the SWB's proffered reason is a pretext for its actual retaliatory
purpose. Simpson makes no submission on this point and, therefore,
fails to carry his burden.15
He submits no evidence that the
defendant's explanation is "false or unworthy of credence." Laxton
v. Gap, Inc., 333 F.3d 572, 580 (5th Cir. 2003).
There is no
Simpson's transfer to the finance department.
Accordingly, the defendant’s motion for summary judgment is
The plaintiff's claims are hereby dismissed.
New Orleans, Louisiana, February 26, 2014
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
Simpson speculates that he was moved to the finance
department so that he would argue with Ethel Williams so that the
Board would have evidence that he had a discipline problem.
Subjective beliefs and speculation do not satisfy his burden to
submit summary judgment evidence of pretext.
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