-DLD Gordon v. West Telemarketing, et al
Filing
101
OPINION AND ORDER: IT IS HEREBY ORDERED that Judgment will be entered in favor of the Defendant, West Telemarketing.. Signed by Judge James J. Brady on 2/14/2012. (CMM) Modified on 2/14/2012 to edit text. (CMM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JAIME GORDON
CIVIL ACTION
VERSUS
NUMBER 04-466-JJB
WEST TELEMARKETING, ET AL
OPINION AND ORDER
Plaintiff, Jaime Gordon (“Gordon”), brings this claim against West
Telemarketing (“West”), alleging retaliation for reporting sexual harassment. A
two-day bench trial was held in this matter. The Court is now ready to rule.
FINDINGS OF FACT
1)
2)
3)
4)
5)
6)
7)
Plaintiff, Jamie Gordon (“Gordon”), began his employment with
defendant, West Telemarketing,” as a part-time telemarketing
representative.
Ron Ward (“Ward”) was employed at West as assistant to the
Director of Site Operations, during the relevant time period.
Cathy Magbee (“Magbee”) was employed at West as the Director of
Site Operations, during the relevant time period.
Nakia Chilton (“Chilton”) was employed at West as a supervisor,
during the relevant time period.
While at West, Ward asked Gordon as well as other telemarketing
representatives to perform special tasks, such as checking headsets for
the telemarketing representatives to insure they were working properly,
decorating for holidays and other special occasions, and assisting with
restocking of supplies.
In September, 2002, Gordon became a Podium Section Leader
(“PSL”) and was assigned to work on the podium, an area where
attendance control coordinators and supervisors stood to monitor the floor
and handle issues related to telemarketing representatives.
As a PSL, Gordon answered the telephone, assisted the podium
supervisors, kept a record of telemarketing representatives’ tardiness,
absences, terminations and reinstatement, and ran attendance reports as
directed.
1
8)
In December, 2002, Gordon filed a complaint of sexual harassment
against Ward.
9)
Thereafter, Chilton held a meeting with Gordon and Ward to discuss
the complaint.
10)
All alleged inappropriate behavior by Ward toward Gordon stopped
after this meeting with Chilton.
11)
Ward continued to use Gordon on special projects and Gordon
continued to do these special projections without objection.
12)
West had a policy that in order to switch shifts, employees had to
post any request to change their shift in the computer system or to obtain
prior permission from a supervisor.
13)
On March 3, 2003, Gordon switched shifts with a co-worker, but did
not post the shift change in the computer or obtain prior permission from a
supervisor.
14)
On March 3, 2003, Ward requested that Gordon check some
headsets, but Gordon indicated that he was leaving at 1:00 p.m., which
was before the end of normal shift, as result of the shift change.
15)
Ward informed Magbee that Gordon would not assist with the
headsets.
16)
On March 8, 2003, Bill Jones, Operations Manager, issued Gordon a
Performance Improvement Notice (PIN) for working unscheduled work
hours.
17)
On March 9, 2003, Gordon sent an e-mail to Michel Hambrick
(“Hambrick”), the Regional Employee Relations and Training Manager at
the relevant time, alleging that Ward was retaliating against him for
Gordon’s reporting sexual harassment.
18)
Hambrick had a meeting with Gordon on March 13, 2003. During
the meeting, Gordon informed Hambrick that Ward had not engaged in any
inappropriate touching or made any sexual comments after his December,
2002 meeting with Chilton and Ward.
19)
While investigating Gordon’s claim, Hambrick learned through an
email from Magbee that Gordon had been under investigation for
fraudulent behavior for several weeks.
20)
Two former employees, Melissa Hawkins and Dominique Dupre,
accused Gordon of knowingly accepting false doctor excuses, in order to
inappropriately remove an occurrence on their employee attendance
record.
21)
Gordon was suspended on March 14, 2003, pending the outcome of
the investigation.
22)
Following the investigation, Hambrick and Jones decided to remove
the attendance coordinator duties from Gordon and limited his duties to
telephone representative. Hambrick and Jones decided against terminating
his employment or reducing his salary.
2
23)
Gordon agreed to return to work on April 1, 2003. However, after
using personal time, Gordon never returned to work at West.
DISCUSSION
Title VII of the Civil Rights Act of 1964 forbids employment discrimination
against "any individual" based on that individual's "race, color, religion, sex, or
national origin." 3 Section 2000e-3(a) of the Act -- its anti-retaliation provision -forbids an employer from "discriminat[ing] against" an employee or job applicant
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.
To establish a prima facie case of Title VII retaliation, a plaintiff must show
that: (1) he engaged in activity protected by Title VII; (2) his employer took an
adverse-employment action against him; and (3) a causal connection exists
between the protected activity and the adverse-employment action. 4 Once the
prima facie case is established, the burden of producing some nondiscriminatory
reason for the adverse-employment action falls upon the defendant. 5 The plaintiff
then assumes the burden of showing that the reasons given for the adverseemployment action were a pretext for retaliation. 6
A. Engaged in Protected Activity
3
42 U.S.C. § 2000e-2(a).
4
Despres v. City of San Antonio, 211 Fed. Appx. 283, 285 (5th Cir. 2006) (citations omitted).
5
See EEOC v. J.M. Huber Corp., 927 F.2d 1322, 1326 (5th Cir. 1991).
6
Id.
3
The evidence shows that Gordon engaged in protected activity when
Gordon sent an e-mail complaining of sexual harassment by Ward as well as
when Gordon filed two EEOC complaints, alleging sexual harassment and
retaliation on November 5, 2003 and December 18, 2003. Thus, Gordon satisfied
the first prong of the test for a retaliation claim.
B.
Adverse Employment Action
After Gordon proves that he has engaged in activity protected by Title VII,
he must then show that his employer took an adverse-employment action against
him. The Supreme Court clarified the “adverse-employment action” prong of the
retaliation test in Burlington Northern & Santa Fe Railway Co. v. White. 8 In
doing so, the Court rejected the approach taken by several circuits, including this
one, that required plaintiffs to demonstrate an "ultimate employment decision" to
satisfy the adverse employment action element of a retaliation claim. 9 Instead,
the Court explained that the test for an adverse-employment action is whether "a
reasonable employee would have found the challenged action materially
adverse, [meaning] . . . it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination."10 Therefore, under the current
state of law, Gordon need not show that any adverse employment actions were
ultimate employment decisions.
8
548 U.S. 53 (2006).
9
Id. at 67 (citations omitted).
10
Id. at 68 (internal citations and quotations omitted).
4
At trial, Gordon testified that he received a Performance Improvement
Notice (“PIN”) for working unscheduled work hours. Gordon testified that he was
demoted by Hambrick and Jones in March, 2003 when they removed his job
responsibilities as attendance coordinator.
Gordon testified that he felt the
demotion and PIN were issues in retaliation for his reporting sexual harassment.
In reviewing the evidence, the Court finds that Gordon has meet his
burden of proving an adverse employment action for his retaliation claim.
Certainly, the removal of Gordon’s job responsibilities (a demotion) would
dissuade a reasonable employee from making a charge of discrimination.
C.
Causation
Finally, to establish a prima facie cause of retaliation, Gordon must show
that causation exists between the adverse employment action and the protected
activity. The causal link need not rise to the level of "but for" causation at the
prima facie stage.11 Instead, “in order to establish the causal link between the
protected conduct and the illegal employment action, the evidence must show
that the employer's decision . . . was based in part on knowledge of the
employee's protected activity."12 As such, Gordon must show only that the
protected activity was among the factors motivating the adverse employment
action, not that it was the sole motivating factor. A prima facie case may also be
supported by a showing that the person who ultimately decided on the adverse
11
12
Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002).
Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998).
5
employment action was improperly influenced by the person against whom a
retaliatory motive was alleged.13
In the instant case, Gordon has not shown that his demotion, and
subsequent decision not to return to work at West, was in any way related to or
caused by his complaints regarding Ward’s behavior. Therefore, the Court finds
that the causation element of Gordon’s retaliation claim fails.
Hambrick testified that she did not believe that Gordon was being
retaliated against because Gordon admitted to knowingly accepting fraudulent
doctors’ excuses. Hambrick testified that company policy prohibits the practice of
accepting false documents, and that discovery of such practice by any employee
is grounds for termination. Hambrick testified that she and Bill Jones made the
decision to reassign Gordon back to a telephone representative instead of
terminating him. Hambrick testified that she and Jones decided not to terminate
Gordon because Gordon presented text messages which called into question the
reason why Dupre and Hawkins reported Gordon’s acceptance of the false
doctors’ excuse. According to Hawkins’ deposition testimony, Dupre wanted to
get Gordon terminated if Dupre could save her job by reporting Gordon.
Hambrick noted that they decided to remove the attendance coordinator duties
because of mistrust issues. Hambrick testified that Ward and Magbee were not
involved in the decision to remove Gordon’s job responsibilities. Hambrick also
13
Gee, 289 F.3d at 346.
6
indicated that Magbee and Ward did not participate in her investigation of the
incident.
With regard to improper switching shifts, Hambrick testified that based on
her investigation, she did not feel that Gordon was being retaliated against when
he received a PIN for switching shifts. Hambrick testified that Gordon admitted to
switching shifts without following the proper procedure. Jones testified that he
issued the PIN, and the PIN was going to be removed from Gordon’s file in one
month. Jones testified that Magbee did not direct him to issue the PIN.
No evidence was presented showing that either Magbee or Ward was
involved in any of the employment actions taken against Gordon.
Gordon
testified to his subjective belief that Ward and Magbee were involved in the
employment decisions. However, Gordon’s subjective belief alone is insufficient
to meet his burden of proving causation. Gordon also presented some testimony
of possible involvement of Magbee and Ward with the obtaining of the
statements from Dupre and Hawkins and being involved in the incident that
resulted in Gordon’s PIN. The court does not find any of this evidence sufficient
to establish causation in this matter. Gordon does not show that either Magbee
or Ward were involved in the employment decisions or had influence over the
decisionmakers.
For the reasons stated above, Gordon has not demonstrated that he was
subjected to a materially adverse employment action caused in part by engaging
in a protected activity. Thus, Gordon’s retaliation claim fails.
7
IT IS HEREBY ORDERED that Judgment will be entered in favor of the
Defendant, West Telemarketing.
Signed in Baton Rouge, Louisiana, on February 14, 2012.
JAMES J. BRADY, DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?