Doe v. BrownGreer PLC et al

Filing 54

ORDER and REASONS granting 36 MOTION for Summary Judgment . Plaintiff's claims against Defendant BrownGreer are DISMISSED WITH PREJUDICE, as stated within document. Signed by Judge Jane Triche Milazzo on 10/30/2015.(cbs)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ROMERICUS STEWART

CIVIL ACTION

VERSES

NO: 14-1980

BROWNGREER PLC ET AL

SECTION: “H”(2)

ORDER AND REASONS
Before the Court is Defendant BrownGreer’s Motion for Summary
Judgment (Doc. 36). The Court previously granted this Motion orally during
a telephone status conference (Doc. 53). These reasons follow.
BACKGROUND
Plaintiff Romericus Stewart brings this action pursuant to Title VII of
the Civil Rights Act of 1964.

Defendant BrownGreer contracted with

Defendant RHI to provide individuals who would work on a “temp to perm”
basis.

Under this arrangement, RHI would provide individuals to

BrownGreer on a temporary basis with the possibility that the position would
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lead to long-term employment with BrownGreer. Plaintiff was placed with
Defendant BrownGreer as part of this program. BrownGreer is responsible
for assisting in the administration of claims due to the Deepwater Horizon
Economic and Property Damages Settlement.

At the end of the “temp-to-

perm” arrangement, Plaintiff was not offered a permanent position with
BrownGreer.
Plaintiff was originally placed in a data entry position. After several
weeks he was transferred to the call center. His job assignments included
fielding calls from claimants and their attorneys according the protocols set
forth by BrownGreer and this Court.

While working in the call center,

Plaintiff claims he was wrongfully subject to harassment and denied a
permanent position due to his status as an HIV-positive, African-American
gay male.
He alleges that Defendants retaliated against him when he brought the
harassment to the attention of his supervisors at BrownGreer by declining to
hire him full time at the end of the “temp to perm” arrangement. He brings
Title VII claims for hostile work environment and retaliatory discharge.
Defendant BrownGreer filed the instant Motion for Summary
Judgment. Plaintiff opposed this motion.
LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
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any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”1 A genuine issue
of fact exists only “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.”2
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and
draws all reasonable inferences in his favor.3 “If the moving party meets the
initial burden of showing that there is no genuine issue of material fact, the
burden shifts to the non-moving party to produce evidence or designate
specific facts showing the existence of a genuine issue for trial.”4 Summary
judgment is appropriate if the non-movant “fails to make a showing sufficient
to establish the existence of an element essential to that party’s case.”5 “In
response to a properly supported motion for summary judgment, the nonmovant must identify specific evidence in the record and articulate the
manner in which that evidence supports that party’s claim, and such
evidence must be sufficient to sustain a finding in favor of the non-movant on
all issues as to which the non-movant would bear the burden of proof at
trial.”6

“We do not . . . in the absence of any proof, assume that the

Fed. R. Civ. P. 56(c) (2012).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
3 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528 (5th Cir. 1997).
4 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
5 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
6 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
1
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nonmoving party could or would prove the necessary facts.”7

Additionally,

“[t]he mere argued existence of a factual dispute will not defeat an otherwise
properly supported motion.”8
LAW AND ARGUMENT
Defendant BrownGreer filed the instant motion asking the Court for
summary judgment in its favor. It argues that Plaintiff has not made out a
prima facie case on either his hostile work environment claim or his
retaliatory discharge claim. The Court will address each claim separately.
I. Hostile Work Environment
To establish a hostile work environment claim under Title VII, a
plaintiff must show all of the following: (1) that he belongs to a protected
class; (2) that he was subjected to unwelcome harassment; (3) that the
harassment was based on the protected class; (4) that the harassment was
sufficiently severe or pervasive as to affect a term condition, or privilege of
employment; and (5) the employer knew of the harassment and failed to take
prompt remedial action.9
To create a hostile work environment, harassment must be “severe and
pervasive,” involving “patterns or allegations of extensive, longlasting,
unredressed, and uninhibited . . . threats or conduct that permeate[] the

Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
8 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
9 Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 298 (5th Cir.2001).
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plaintiffs’ work environment.”10 “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.”11

“In determining whether a workplace

constitutes a hostile work environment, courts must consider the following
circumstances: ‘the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's work
performance.’”12
Defendant argues that the complained-of conduct is not sufficiently
severe or pervasive so as to give rise to a Title VII harassment claim. Though
Plaintiff has filed an opposition to this motion, he fails to address this key
argument.

Even viewing the evidence in the light most favorable to the

Plaintiff, the complained-of conduct does not meet the high standard of
pervasiveness required to give rise to Title VII liability for hostile work
environment.
Plaintiff claims harassment due to his sexual orientation, his race, and
his disability, in that he is HIV positive. Specifically, Plaintiff complained of
harassment by three coworkers—Randall Howard, Courtney Payne, and

Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th Cir. 1999).
Shepherd v. Comptroller of Pub. Accounts of State of Texas, 168 F.3d 871, 874 (5th
Cir. 1999).
12 Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (quoting Walter v.
Thompson, 214 F.3d 615, 625 (5th Cir. 2000).
10
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David Mohrmann.13 He alleges that Howard would speak in a high pitched
voice and use a hand wave, allegedly mocking Plaintiff’s sexual orientation.14
Plaintiff also states that Howard made anti-gay, socioeconomic and religious
comments, including “Some people will not get health insurance no matter
what,” “Some groups of people stink,” and “everyone knows that Martin
Luther King Street runs through ‘bad’ neighborhoods in almost every city in
America.”15 Payne allegedly responded to Howard’s statement that some
people stink by stating “yes, especially fat people.16 Plaintiff states that he
considered the word “fat” to be a code word for “gay.” Additionally, Plaintiff
asserts that he overheard Howard ask Mohrmann “Where is your bra?,”
which he asserts was a statement directed at him.17 Plaintiff did not identify
any specific statements by Mohrmann, merely indicating that he was
“extremely nasty” to Plaintiff over his time of employment.18 The Court will
address each of these allegations in turn.
A. Gender/Sexual Orientation
Plaintiff relies on two actions in support of his claim of harassment
based on sexual orientation. He points to co-worker comments that “some
groups of people stink,” and “yes especially fat people.” He also alleges that
Howard’s comments in a high pitch voice coupled with a hand wave
Doc. 36-13.
Doc. 36-4.
15 Doc. 36-13.
16 Doc. 36-13.
17 Doc. 36-13.
18 Doc. 36-4.
13
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contributed to the harassment.

Even assuming, without deciding, that

Plaintiff’s sexual orientation is a protected class, periodic incidents of talking
in a high pitched voice and the isolated comments identified by the Plaintiff
are insufficiently severe and pervasive to make out the required prima facie
showing of harassment.

Additionally, there is no evidence to support

Plaintiff’s assertion that the references to “fat people” are in fact coded
references to sexual orientation. The Court finds that this conduct is not
“physically threatening or humiliating,” and would not unreasonably
interfere with the work environment of a reasonable person.
B. Race
In support of his racial discrimination claim, Plaintiff directs the court
to one comment. He alleges that the comment that “Martin Luther King
Street always runs through a bad neighborhood” constitutes harassment
based on race.

This one-time statement, apparently not even directed at

Plaintiff, is insufficient to meet the “severe and pervasive” standard. Indeed,
courts have declined to impose Title VII liability where the complained-of
conduct was significantly more severe than in the case at bar.19 This isolated
comment is insufficient as a matter of law to give rise to a hostile work
environment claim.

See, e.g., Fortenberry v. Texas, 75 Fed. Appx. 924, 928 (5th Cir. 2003) (finding no
Title VII liability where there were two incidents of racial slurs directed at the plaintiff);
Lindsey v. Chevron USA Inc., 51 F. App'x 929 (5th Cir. 2002) (finding no Title VII liability
where supervisors used racial epithets in employee’s presence and management allowed
employees to hang Confederate flags).
19

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C. Disability
Plaintiff asserts that the comment “some people will not get health
insurance no matter what” is an insinuation that he has AIDS. Plaintiff has
not pointed to evidence in support of this contention. Furthermore, like the
other comments, this isolated incident is insufficient to give rise to Title VII
liability.
II. Retaliatory Discharge
Plaintiff also alleges that he was retaliated against after he filed his
complaint with human resources.

To make a prima facie showing of a

retaliation claim, a plaintiff must demonstrate that (1) he engaged in
protected activity (2) he suffered a materially adverse employment action;
and (3) there was a causal link between the protected activity and the
adverse employment action.20 “If the employee establishes a prima facie case,
the burden shifts to the employer to state a legitimate, non-retaliatory reason
for its decision. After the employer states its reason, the burden shifts back
to the employee to demonstrate that the employer's reason is actually a
pretext for retaliation.”21
The evidence on the record in this case demonstrates that Plaintiff
cannot establish a prima facie showing for a retaliation claim, as he has not
engaged in protected activity.
isolated

incidents

(unless

“[S]imple teasing, offhand comments, and

extremely

serious)

will

not

amount

to

McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007).
LeMaire v. Louisiana Dep't of Transp. & Dev., 480 F.3d 383, 388-89 (5th Cir. 2007)
(internal citations omitted).
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discriminatory changes in the terms and conditions of employment.”22
Indeed, as indicated above, no reasonable person could think that the
comments reported by Plaintiff would amount to Title VII discrimination.
They were each isolated occurrences, and most were not directed at Plaintiff.
Additionally, Plaintiff has gone through great pains to read discriminatory
animus into many of these comments without providing any evidence other
than his own testimony to support these claims. Accordingly, Plaintiff has
not made out a prima facie showing of retaliation, and the Court need not
consider whether BrownGreer had a legitimate, non-retaliatory reason for its
decision not to offer him a full time position.
CONCLUSION
For the foregoing reasons, the Motion for Summary Judgment (Doc. 36)
is GRANTED.

Plaintiff’s claims against Defendant BrownGreer are

DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this ____th day of October, 2015.
30th

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

22

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).

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