Pullen v. Caddo Parish School Board

Filing 45

MEMORANDUM RULING re 26 MOTION for Summary Judgment filed by School Board of Caddo Parish. A judgment shall issue herewith. Signed by Judge Elizabeth E Foote on 7/2/2015. (crt,Keifer, K)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
KANDICE PULLEN

CIVIL ACTION NO. 5:14-cv-390

VERSUS

JUDGE ELIZABETH ERNY FOOTE

CADDO PARISH SCHOOL BOARD

MAGISTRATE JUDGE HAYES

MEMORANDUM RULING
Pending before the Court is Defendant Caddo Parish School Board’s (“CPSB”) motion
for summary judgment.1 For the reasons stated herein, the Defendant’s motion for
summary judgment shall be GRANTED.
I.

Factual and Procedural Background
In February 2011, Plaintiff Kandice Pullen (“Pullen”) began working as a temporary

clerical employee in the purchasing department of CPSB under the supervision of Timothy
Graham (“Graham”).2 Her assignment ended on June 30, 2011, and Pullen did not work
in the purchasing department again until February 2012.3 This second assignment ended
sometime between mid-to-late May 2012, at which time she transferred to the human
resources department of CPSB.4 During her tenure in human resources, she was supervised

1

Record Document 26.

2

Record Document 26-3, p. 2.

3

Id. at p. 3.

4

Id.
Page 1

by Cleveland White, and she worked there until the end of July 2012.5 In late September
or early October, Pullen began to work in the CPSB special education center as a substitute
clerical employee.6 She worked there until March 2013, when she left CPSB to focus on
school.7
Pullen alleges that while she worked at CPSB, she was sexually harassed by
Graham.8 She states that during her first stint in the purchasing department Graham often
made inappropriate comments about her physical appearance and asked her personal
questions.9 During her second stint in 2012 in the purchasing department, Pullen alleges
that Graham’s verbal harassment of her increased and that Graham touched her thigh on
one occasion. She also avers that he would occasionally touch her arm or shoulder.10 On
one occasion, he invited her into his office to show her inappropriate pictures of women
on his computer.11
After she left the purchasing department, Pullen states that Graham continued to
stop by the personnel department to speak with her.12 After Pullen transferred to the

5

Id.

6

Id.

7

Id. at p. 4.

8

Record Document 26-5, pp. 64-65.

9

Id. at p. 66.

10

Id. at pp. 72-73.

11

Record Document 26-5, pp. 75-76.

12

Id. at pp. 150-52.
Page 2

special education center, Graham stopped harassing her. In the beginning of October
2012, Pullen met Graham for lunch and that was her last contact with him.13
On February 27, 2013, Aimee Harris (“Harris”) filed a formal complaint with the
CPSB against Graham for sexually harassing her.14 Harris was a substitute clerical employee
who worked in the purchasing department under Graham for one week before she sought
out Annette Dunlap (“Dunlap”), the secretary to the Human Resources Director, and asked
to be reassigned.15 After Harris was reassigned to a different office, she alleged that
Graham continued to harass her. It was at that point that she filed a formal complaint with
Cleveland White (“White”), the director of human resources.16 In her formal complaint,
Harris named several CPSB employees whom she believed may have been subject to
harassment by Graham, including Pullen.17 White placed James Wolfolk (“Wolfolk”) in
charge of investigating Harris’s complaint and preparing a written report.18 Wolfolk
interviewed Harris, Graham, Pullen, and the other employees named in Harris’s complaint.
Pullen was interviewed on March 4, 2013.19 Wolfolk completed a written report of his

13

Id. at 81-88.

14

Record Document 26-8, pp. 19-20.

15

Id. at p. 19.

16

Id.

17

Record Document 26-15, Ex. 20.

18

Record Document 26-7, p. 15.

19

Record Document 26-5, p. 98.
Page 3

investigation and found that Graham had behaved unprofessionally and inappropriately.20
Wolfolk concluded that Graham was in violation of the CPSB sexual harassment policy, and
he recommended that Graham be placed on unpaid leave for one week. Wolfolk also
recommended that Graham be required to attend counseling regarding his behavior.21
Wolfolk presented his findings to the Superintendent of CPSB, who agreed with the
findings and recommendations.22
On March 6, 2013, Pullen signed and dated a letter to the Equal Employment
Opportunity Commission (“EEOC”), describing how Graham had harassed her.23 The letter
was received by the EEOC on March 12, 2013, and on March 18, 2013, an employee at the
EEOC contacted Pullen to confirm that she wished to file a charge against CPSB.24 Pullen
signed the EEOC formal charge on April 23, 2013, and it was received by the EEOC on May
16, 2013.25
Pullen filed suit against CPSB in the First Judicial District Court, Caddo Parish,
Louisiana on January 29, 2014, and the case was removed to this Court.26 Pullen alleges
violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”)
20

Record Document 26-7, p. 55.

21

Record Document 26-15, Ex. 31.

22

Record Document 26-14, p. 45.

23

Record Document 26-5, p. 45.

24

Record Document 26-15, Ex. 83.

25

Id. at Ex. 7.

26

Record Document 1.
Page 4

for sex discrimination and retaliation.27 CPSB filed the instant motion for summary
judgment, alleging there is no genuine issue of material fact on any of Pullen’s Title VII
claims.28 Pullen filed a partial motion for summary judgment, which asks the Court to find
that there is no genuine issue of material fact as to whether Graham was Pullen’s
supervisor, that he sexually harassed her, and that CPSB cannot prove its affirmative
defense.29
II.

Summary Judgment Standard
Summary judgment is proper pursuant to Rule 56 of the Federal Rules of Civil

Procedure “if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if 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.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). Rule 56(c) “mandates the
entry of summary judgment, after adequate time for discovery and upon motion, against
a party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Id.

27

Id. Plaintiff originally alleged quid pro quo and retaliation claims under Title VII,
but conceded those claims in her opposition to CPSB’s motion for summary judgment.
Record Document 31.
28

Record Document 26.

29

Record Document 27.
Page 5

If the party moving for summary judgment fails to satisfy its initial burden of
demonstrating the absence of a genuine issue of material fact, the motion must be denied,
regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc). If the motion is properly made, however, Rule 56(c) requires the
nonmovant to go “beyond the pleadings and designate specific facts in the record showing
that there is a genuine issue for trial.” Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1047
(5th Cir. 1996) (citations omitted). While the nonmovant’s burden may not be satisfied by
conclusory allegations, unsubstantiated assertions, metaphysical doubt as to the facts, or
a scintilla of evidence, Little, 37 F.3d at 1075, Wallace, 80 F.3d at 1047, all factual
controversies must be resolved in favor of the nonmovant. Cooper Tire & Rubber Co. v.
Farese, 423 F.3d 446, 456 (5th Cir. 2005).
III.

Law and Analysis
Under Title VII, an employer’s liability for harassment may depend on the status of

the harasser. Vance v. Ball State Univ., 133 S. Ct. 2432, 2439 (2013). If the harassing
employee is the victim’s co-worker, the employer is liable only if it was negligent in
controlling working conditions. If the harasser is a supervisor of the victim, meaning he is
empowered to take tangible employment actions against the victim, then the standard for
liability is strict liability. Id. Under this standard, if the supervisor’s harassment culminates
in a tangible employment action, then strict liability applies to the employer. However, if
there is no tangible employment action, then the employer can avail itself of the
Ellerth/Faragher affirmative defense. Id.

Pullen has conceded that she suffered no

Page 6

“tangible employment action.” Record Document 31. Pullen’s claims arise out of an alleged
hostile work environment. Therefore, as is discussed in more detail below, if the harasser
is her supervisor, the Ellerth/Faragher affirmative defense would be available to the CPSB.
CPSB alleges in its motion for summary judgment that Pullen’s hostile work
environment claims must be divided and analyzed under two different time periods. The
parties agree that for the first time period, Graham was Pullen’s supervisor because he had
the ability to take tangible employment actions against her while she worked as a
temporary clerical employee in the purchasing department. However, in May 2012 when
Pullen was transferred to the human resources department, and later to the special
education center, Graham was no longer her supervisor. Could he have still have taken
tangible employment actions against Pullen and therefore qualified as a “supervisor” for
purposes of vicarious liability under Title VII? Pullen’s response to Defendant’s motion
raises no dispute of material fact on this issue.30 Therefore, this Court concludes that
during this second time period, Graham, for the purposes of Title VII, is considered her coworker because he could no longer take tangible employment actions against her.
The Court agrees with CPSB that Pullen’s hostile work environment claims must be
divided into two separate claims, based upon the two different time periods that she

30

Pullen’s only statement on this issue is: “Graham used his authority to move
about the Central Office to pursue Pullen and sexually harass her. No simple co-worker
could do that.” Record Document 31. This conclusory statement is insufficient to defeat
the undisputed fact that as of the time of Pullen’s transfer out of Graham’s department
he was no longer her supervisor both in name and within the meaning of Title VII.
Pullen points to no fact which suggests that after the transfer Graham had any ability to
take tangible employment actions against her.
Page 7

worked at CPSB. Under the first hostile work environment claim, Graham was her
supervisor for the purposes of Title VII and CPSB is subject to a strict liability standard.
Under her second hostile work environment claim, CPSB shall be subject to a negligence
standard of liability because Graham was her co-worker when she worked outside of the
purchasing department. Each of the above claims will be addressed below.
A.

Pullen’s First Hostile Work Environment Claim

The parties agree that Pullen did not suffer a tangible employment action while she
worked in the purchasing department. Therefore, CPSB can avoid liability if it can show
that it satisfies the Ellerth/Faragher affirmative defense. As a preliminary matter, CPSB
argues that Pullen’s first hostile work environment claim should be dismissed because it
is untimely under the EEOC regulations. In the alternative, it argues that it satisfies the
Ellerth/Faragher affirmative defense. The Court will address each of these arguments
below.
1.

Timeliness of EEOC Charge of Discrimination

In an employment discrimination case, a plaintiff must exhaust all of his
administrative remedies before he can file suit in federal court. Taylor v. Books A Million,
Inc., 296 F.3d 376, 379 (5th Cir. 2002). Specifically, to maintain a Title VII action, an
employee must first file a charge of discrimination with EEOC within 300 days of the
alleged unlawful employment practice and receive the statutory notice of right to sue. 42
U.S.C. § 2000e-5(e)-(f)(1); Price v. Sw. Bell Tel. Co., 687 F.2d 74, 77 (5th Cir. 1982). A
charge of discrimination must “be in writing under oath or affirmation and shall contain

Page 8

such information and be in such form as the Commission requires.” 42 U.S.C. § 2000e5(b). The EEOC’s regulations require that a charge of discrimination be in writing, signed
and verified. 29 C.F.R. §§ 1601.9, 1601.3(a). A sufficient charge should contain “[t]he full
name and address of the person against whom the charge is made” and “[a] clear and
concise statement of the facts, including pertinent dates, constituting the alleged unlawful
employment practices.” Id. at § 1601.12(b). A charge is filed with the EEOC upon the
agency’s receipt of the charge. Id. at § 1601.13(a)(1).
In the present case, CPSB argues that Pullen’s first hostile work environment claim
is untimely because she did not submit a charge to the EEOC until after her 300 day time
limit was expired.31 Pullen argues that her charge was received by the EEOC within the 300
day time limit, and therefore, her first claim is timely.32 The parties disagree as to the date
that the running of the 300 day time period should begin. It is undisputed that Pullen
dated and mailed a letter to the EEOC on March 6, 2013.33 The EEOC received the letter
on March 12, 2013 and called Pullen on March 18, 2013 to confirm that she wished to issue
a charge.34 CPSB contends that a charge was not filed with the EEOC until March 18, 2013,
when Pullen verbally confirmed that she wished to file a charge.35 Pullen argues that her

31

Record Document 26-3, p. 8. CPSB admits that Pullen’s second hostile work
environment claim is timely.
32

Record Document 31, pp. 11-12.

33

Record Document 31, p. 5 and Record Document 26-3, p. 9.

34

Id.

35

Record Document 26-3, p. 9.
Page 9

letter, dated March 6, 2013, is sufficient to constitute a charge and that her 300 day time
limit should start from that date.36 The Court must first determine which of the above dates
constitutes the beginning of 300 day time period before it can ascertain whether Pullen’s
EEOC charge was timely.
The Fifth Circuit has held that, in general, employment charges are construed with
“the utmost liberality” because they are often prepared by laymen. Price, 687 F.3d at 77.
The Court finds illustrative the Fifth Circuit’s findings with regards to intake questionnaires
as charges. In Conner v. Louisiana Department of Health and Hospitals, the Fifth Circuit
stated that it “has recognized that an intake questionnaire that informs the EEOC of the
identity of the parties and describes the alleged discriminatory conduct in enough detail
to enable the EEOC to issue an official notice of charge to the respondent is sufficient to
set the administrative machinery in motion.” 247 F. App’x 480, 481 (5th Cir. 2007). In that
case, the court held that where the plaintiff did not file her verified charge until after the
180 day deadline, her intake questionnaire was sufficient to substitute for her verified
charge. Id.
This Court finds that Pullen’s letter to the EEOC was sufficient to constitute a charge
against the CPSB because it included Pullen’s name, her employer’s name, and a detailed
description of the alleged harassment. Pullen signed and dated the letter, and then sent
it to the EEOC. Considering the liberality afforded to laymen, Pullen’s letter provided the
EEOC with sufficient information to set the administrative machinery in motion. Under

36

Record Document 31, p. 5.
Page 10

EEOC regulations, a charge is considered filed on the date that the EEOC receives it.
Therefore, the Court finds that Pullen filed her charge with the EEOC on March 12, 2013,
the date the EEOC received her letter, and thus, her charge is timely under the 300 day
time limit if Graham’s harassment occurred on May 16, 2012 or later.
In addition to disputing the date the EEOC charge was filed, the parties also
disagree on the date that Pullen was last harassed in the purchasing department by
Graham. It is undisputed that Shari Foreman (“Foreman”) started work in the purchasing
department on May 14, 2012 as a permanent replacement for Pullen. Forman testified that
she never worked with Pullen and that she believes Pullen did not work in the purchasing
department after May 12, 2012.37 Pullen contends that she continued to work in the
purchasing department after Foreman’s start date in order to train her and estimates that
she worked in the purchasing department until mid-to-late May.38
Pullen does not argue with any specificity that she was harassed during her last two
weeks of work in the purchasing department. However, in her deposition, Pullen testified
that during the time period that she worked for Graham, he sexually harassed her “several
times a week.”39 Although not argued by Pullen, the evidence indicates that there is a
possibility that Pullen was sexually harassed during the end of her tenure in the CPSB
purchasing department.

37

Record Document 26-11, pp. 14-17.

38

Record Document 26-5, pp. 26-27.

39

Id. at p. 69.
Page 11

Considering the above conflicting evidence, the Court finds that there is a question
of material fact as to the last date of Pullen’s employment in the purchasing department
and her harassment by Graham. This question of fact is determinative to whether her
EEOC charge as to the her first hostile work environment claim is timely. Therefore, the
Court finds that CPSB’s motion for summary judgment insofar as it relates to a question
of the timeliness of Pullen’s EEOC charge is DENIED.
2.

Liability under the Ellerth/Faragher Defense

However, CPSB also argues that, in the alternative, Pullen’s first hostile work
environment claim must fail because it is immune from liability under the Ellerth/Faragher
affirmative defense.40 Under this defense, an employer will not be vicariously liable for
harassment by a supervisor if it can show: “(a) that the employer exercised reasonable
care to prevent and correct promptly any sexually harassing behavior, and (b) that the
plaintiff employee unreasonably failed to take advantage of any preventative or corrective
opportunities provided by the employer or to avoid harm otherwise.” Faragher v. City of
Boca Raton, 524 U.S. 775, 807, 118 S. Ct. 2275 (1998). The employer bears the burden
of proving both elements by a preponderance of the evidence. EEOC v. Boh Bros. Const.
Co., 731 F.3d 444, 462 (5th Cir. 2013)(citations omitted). Each of the above elements will
be addressed in turn.
a.

40

Employer’s reasonable care to prevent and correct
promptly any sexually harassing behavior

Record Document 26-3, p. 13.
Page 12

“An employer can satisfy the first prong of the Ellerth/Faragher defense by
implementing suitable institutional policies and educational programs regarding sexual
harassment.” Boh Bros. Constr., 731 F.3d at 462-63. The Supreme Court in Burlington
Indusustries, Inc. v. Ellerth stated that it is unnecessary, as a matter of law, that an
employer promulgate an anti-harassment policy with a complaint procedure in every
instance. 524 U.S. 742, 765, 118 S. Ct. 2257, 2270 (1998). However, “the existence of a
written complaint procedure [is] an important variable in the Ellerth/Faragher analysis.”
Boh Bros. Constr., 731 F.3d at 464.
Considering this, the Fifth Circuit in Boh Brothers Construction analyzed the
employer’s policies and programs to determine whether it had taken reasonable measures
to prevent discriminatory behavior. 731 F.3d at 463. The court stated that “[n]ot every
policy eliminates liability; generic policies that offer no specific complaint procedure may
be insufficient to satisfy the Ellerth/Faragher defense.” Id. The court found that the
company’s broad nondiscriminatory policy was not sufficient to satisfy the first element of
the defense because it offered no specific guidance regarding sexual harassment, offered
no specific instructions to employees on how to assert or investigate harassment
complaints, and the company did little to implement its nondiscrimination policies. Id. at
464-65. The company’s investigation of the alleged sexual harasser consisted of a belated
and cursory twenty minute investigation, during which the investigating employee took no
notes and asked no questions. Finally, the court noted that the company failed to punish
the perpetrator of the sexual harassment. Id. at 466. The court found that “[h]ad Boh

Page 13

Brothers adopted suitable institutional policies and educational programs regarding sexual
harassment, it may have avoided liability.” Id.
Here, CPSB argues that it has satisfied the first element of the defense because it
has a detailed sexual harassment policy that encourages and facilitates employee
complaints and that the company swiftly and effectively deals with employee complaints
made under the policy.41 CPSB notes that it posted copies of the sexual harassment policy
on bulletin boards in areas in which Pullen worked; the entire policy was available on the
CPSB website; and it was published in the official public minutes of the school board
meeting that approved the policy; and it was published in the CPSB’s official journal.
Pullen contends that CPSB cannot satisfy the first element of the defense because
Pullen, in addition to other CPSB employees who worked at the central office, did not
receive a copy of or any education on the sexual harassment policy.42 Pullen urges the
Court to find that CPSB’s posting of the policy online and on bulletin boards is insufficient.43
In the present case, the Court must note primarily that CPSB has a specific sexual
harassment policy.44 The CPSB sexual harassment policy is eight pages long and includes
definitions of sexual harassment and several pages of information about reporting
procedures.45 It is undisputed that the policy was posted on bulletin boards in the central
41

Record Document 26-3, p. 14.

42

Record Document 31, p. 13 and Record Document 27-1, p. 2.

43

Record Document 31, pp. 17-18.

44

Record Document 26-15, Ex. 4.

45

Id.
Page 14

office, on the CPSB website, and as a part of the public minutes of the CPSB meeting that
ratified the document. CPSB also notes for the Court that it has almost 6,000 employees
and that the majority of those employees attend educational programs that discuss the
sexual harassment policy.46
CPSB is correct in its assertion that the Ellerth/Faragher defense does not require
that every employee in a company be trained on the company’s sexual harassment policy.
The Ellerth/Faragher defense requires that a company take reasonable care to prevent and
correct promptly any sexually harassing behavior. Although Pullen has provided testimony
and evidence that she and certain other employees at the central office were not educated
about the sexual harassment policy, there is evidence that a detailed policy existed and
was easily accessible to Pullen and other employees. Although Graham testified that he
had never seen the CPSB sexual harassment policy prior to being disciplined by the school
board, he did admit in his deposition that all directors, including himself, “were required
to take training classes, becoming a better manager, documentation, harassment in the
workplace, things of that nature.”47 In the two years that he was a supervisor with CPSB,
Graham states that he attended “from eight to ten classes” that discussed harassment in
the workplace.48

46

Record Document 26-3, p. 16.

47

Record Document 26-12, p. 41.

48

Id.
Page 15

There is also evidence that CPSB promptly corrected Graham’s sexually harassing
behavior once Harris filed a complaint against him. It is undisputed that CPSB promptly
instigated a formal investigation under the policy once it received Harris’s complaint. That
investigation, conducted by Woolfolk, included interviews with Graham, Pullen, Harris and
others.49 He prepared a written report that was forwarded to the Superintendent, Assistant
Superintendent and the personnel director, who then placed Graham on unpaid leave for
one week. Graham was also required to attend sexual harassment training classes.50
Although Pullen urges the Court to find parallels between the present case and Boh
Brothers Construction, there are distinct differences between the two cases. As noted by
CPSB in its opposition, the company in Boh Brothers Construction had a broad, generic
anti-discrimination policy with no specific guidance as to sexual harassment, the employer
did little to implement the policy, and the plaintiff’s complaint in that case received only
a 20 minute long investigation. 731 F.3d at 467-68. It is clear that CPSB had a much more
detailed sexual harassment policy; provided employees access to that policy; trained many
of its employees, including Graham, on the policy; and effectively implemented that policy
upon the receipt of a sexual harassment complaint. Although Pullen has provided evidence
that she and other employees at the central office of the CPSB did not receive a copy or
training on the CPSB sexual harassment policy, this fact alone is not sufficient to create a
question of fact as to the reasonable care taken by CPSB to prevent and correct any

49

Record Document 26-3, p. 16.

50

Id.
Page 16

sexually harassing behavior. Therefore, the Court finds that CPSB has satisfied the first
element of the Ellerth/Faragher affirmative defense.
b.

Plaintiff Employee unreasonably failed to take advantage of
any preventative or corrective opportunities provided by the
employer or to avoid harm otherwise

The Court in Faragher stated that an employee must “avoid harm otherwise,”
meaning that “if damages could reasonably have been mitigated, no award against a liable
employer should reward a plaintiff for what her own efforts could have avoided.” 524 U.S.
at 807, 118 S. Ct. at 2292. The Fifth Circuit has stated that “Faragher implies that a plaintff
should not wait as long as it usually takes for a sexually hostile working environment to
develop when the company has an effective grievance mechanism. If the plaintiff
complains promptly, the then-incidental misbehavior can be stymied before it erupts into
a hostile environment, and no actionable Title VII violation will have occurred.” Indest v.
Freeman Decorating, Inc., 164 F.3d 258, 267 (5th Cir. 1999). The Supreme Court has
explicitly stated that the “primary objective” of Title VII is “not to provide redress, but to
avoid harm.” Faragher, 524 U.S. at 806, 118 S. Ct. at 2292 (citations omitted).
Here, CPSB argues that Pullen unreasonably failed to take adequate and appropriate
advantage of any preventative or corrective opportunities provided by CPSB.51 CPSB
contrasts Pullen’s actions to those of Harris, who reported Graham’s sexually harassing
behavior after only a week in his department.52 Harris was transferred to a different

51

Record Document 26-3, p. 14.

52

Id.
Page 17

department, and a formal investigation into Graham’s behavior was undertaken by CPSB.53
Graham ultimately was suspended from work without pay and required to attend
counseling sessions.54 Pullen argues that she should be excused from “any legal duty to
take advantage of her employer’s preventative and corrective measures” because she was
unaware of CPSB’s sexual harassment policy.55 Pullen has not cited any case law
supporting this argument.
Pullen also argues that “the harassment was sudden and unanticipated” when
Graham touched her thigh, and therefore, there is nothing Pullen could have done to avoid
harm otherwise.56 Pullen argues that “the rules are different when there is sudden sexual
harassment.”57 She cites to Walton v. Johnson & Johnson Serv., Inc., 347 F.3d 1272, 129192 (11th Cir. 2003), which does not address the issue; Greene v. Dalton, 164 F.3d 671,
675 (D.C. Cir. 1999), wherein the court found that summary judgment on the affirmative
defense was inappropriate where the supervisor raped the employee and there was an
absence of evidence that a reasonable person in the victim’s place would have come
forward early enough to prevent the harassment from becoming severe or pervasive; and
Indest, 168 F.3d at 804, wherein Judge Weiner stated in a concurrence that “[i]t is, of
course, theoretically possible for a supervisor to engage in sufficiently severe conduct (e.g.
53

Id.

54

Id.

55

Record Document 27-1, pp. 15-16.

56

Id. at pp. 20-21.

57

Id.
Page 18

raping, ‘flashing,’ or forcibly groping or disrobing the subordinate employee) in such a
short period of time that, even though (1) the employee reports the conduct immediately,
(2) the employer takes swift and decisive remedial action, and (3) no tangible employment
action ensues, the employer could still be held vicariously liable under the Ellerth/Faragher
‘severe or pervasive’ test.”
The Court does not believe that the facts of this case implicate “sudden sexual
harassment,” as Pullen argues. Although Pullen alleges that Graham touched her thigh one
time, that instance of unwanted touching is but a small part of a pattern of misbehavior
allegedly perpetrated by Graham. The cases cited by Pullen do not support her theory that
the facts of this case lend themselves to “sudden sexual harassment.” Additionally, even
if those cases did support her sudden sexual harassment theory, the Court would still need
to engage in an analysis under Ellerth/Faragher to determine whether the time period
between the sexual harassment and her report of the misbehavior to CPSB was
reasonable.
The Fifth Circuit has addressed the issue of reasonable delay in the context of the
second prong of the Ellerth/Faragher affirmative defense on several occasions. In Watts
v. Kroger Co., the Fifth Circuit found that an employee’s two or three month delay in
reporting her harassment was not unreasonable as a matter of law. 170 F.3d 505, 510 (5th
Cir. 1999). In Casiano v. AT&T Corp., the Fifth Circuit held that an employee’s actions were
unreasonable when he allowed five months to pass between the first instance of alleged
harassment and the filing of his formal complaint. 213 F.3d 278, 281 (5th Cir. 2000). In

Page 19

Wyatt v. Hunt Plywood Co., Inc., an employee complained about her supervisor’s conduct
to her supervisor’s supervisor but her complaint was met with more harassment. 297 F.3d
405, 407 (5th Cir. 2002). The court stated that this initial complaint was reasonable but
held that when the plaintiff waited an additional six months to report the supervisors to
someone else, this second delay in reporting was unreasonable. Id. Finally, in Lauderdale
v. Texas Dept. of Criminal Justice, 512 F.3d 157, 165 (5th Cir. 2007), an employee was
first harassed in July 2004 and reported that harassment to her immediate supervisor that
same day. Although her immediate supervisor did nothing to prevent further harassment
by the other supervisor, the court held that it was unreasonable for the employee to wait
an additional five months, until the day she turned in her resignation, to report the
continued harassment to the employer. Id. The court additionally noted that “[f]iling a
complaint upon, or after, resigning does not mitigate any of the damage, because it does
not allow the employer to remediate the situation.” Id.
In the present case, Pullen alleges that Graham began harassing her in February
2011 and stopped harassing her on October 1 or 2, 2012.58 Pullen testified that the first
time she spoke to someone in management about Graham’s harassment was on March 4,
2013 when she spoke to Wolfolk during the course of the Harris investigation.59 Pullen
resigned from the CPSB in March, 2013.60

58

Record Document 26-5, pp. 50-51.

59

Id. at p. 52.

60

Id. at p. 32.
Page 20

The Fifth Circuit has not enumerated an exact timeline upon which to evaluate the
reasonableness of an employee’s delay in reporting sexual harassment. However, the
court’s holdings in Watts, Casiano, Wyatt and Lauderdale do suggest that the
reasonableness of an employee’s delay in reporting sexual harassment is more suspect
after two or three months. See Wyatt, 297 F.3d at 407 (discussing three distinct time
periods). Additionally, this Court must consider the language in Lauderdale, in which the
Fifth Circuit stated that filing a complaint on the same day as a resignation “is no longer
a saving action contemplated and encouraged by Title VII ... hence it is not sufficient to
defeat the Ellerth/Faragher affirmative defense.” 512 F.3d at 165.
Pullen never formally filed a complaint with CPSB, and the first time she spoke to
anyone in management about Graham’s alleged harassment was on March 4, 2013, more
than two years after she claims that she was first harassed. Additionally, Pullen spoke to
Wolfolk within days of her resignation from CPSB. As described above, the Supreme Court
has found that the objective of Title VII is to avoid harm, not to provide redress. Pullen
alleges that she was harassed on a near weekly basis while she worked for Graham but
failed to report even one instance of this harassment to any other supervisor within CPSB.
Although she may not have been aware of the CPSB sexual harassment policy, it is very
detailed and has instructions for supervisors to take once they receive a report of
harassment. Pullen could have notified a CPSB supervisor to help mitigate her harm. The
Court finds it is unreasonable that Pullen waited over two years to report any instances of
Graham’s wrongdoing to CPSB. Therefore, the Court finds that CPSB has satisfied its

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burden on both prongs of the Ellerth/Faragher affirmative defense. The Court GRANTS
CPSB’s motion for summary judgment on the first hostile work environment claim.
B.

Pullen’s Second Hostile Work Environment Claim

Pullen’s second harassment claim is properly analyzed under the standards for a
hostile work environment because during that time Graham was no longer her supervisor.
“A hostile work environment claim consists of five elements: (1) membership in a protected
group; (2) unwelcome sexual harassment; (3) harassment complained of is based upon
sex; (4) harassment complained of affected a term, condition, or privilege of employment;
and (5) the employer knew or should have known of the harassment and failed to take
prompt remedial action.” Hague v. Univ. of Texas Health Sci. Ctr. at San Antonio, 560 F.
App’x 328, 332 (5th Cir. 2014)(citing Woods v. Delta Beverage Grp., Inc., 274 F.3d 295,
298 (5th Cir. 2001)). CPSB argues that Pullen will be unable to satisfy the fifth and final
element described above because it had no actual or constructive notice of her
harassment.61 Pullen contends that CPSB is negligent because it did not distribute or
educate the employees in the central office, including herself, about its sexual harassment
policy.62
An employer can be liable for sexual harassment if it “knew or should have known
of the harassment in question and failed to take prompt remedial action.” Williamson v.
City of Houston, Texas, 148 F.3d 462, 464 (5th Cir. 1998). A Title VII employer has actual

61

Record Document 26-3, pp. 12-13.

62

Record Document 27-1, pp. 14-15.
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knowledge of harassment when the harassment is known to “higher management” or to
someone who has the power to remedy the problem. Sharp v. City of Houston, 164 F.3d
923, 929 (5th Cir. 1999)(citations omitted). For an employee to qualify as “management,”
a person must have the ability to exert control over employees. Id. In other words, an
employee is a manager when he has the power to hire, fire or take disciplinary action
against the harassing employee, to provide significant input into employment decisions,
to instruct the offending employee to cease the harassing behavior, or to implement other
means of taking remedial action. Id. (citations omitted). The Fifth Circuit has found that
“the key to whose knowledge may be imputed to the employer is remedial power: There
is no actual knowledge until someone ‘with authority to address the problem’ is notified.”
Id. at 930 (citations omitted).
Under this standard, CPSB did not have actual notice of Graham’s alleged
harassment of Pullen. Pullen admits that she did not report the harassment to anyone at
CPSB until her meeting with Wolfolk on March 4, 2013.63 Pullen states that she told Annette
Dunlap, William Farmer, and Ebonie Nelson that Graham made her uncomfortable.64 None
of these people are “managers” for Title VII purposes, meaning none of them had remedial
power over Graham.65 Because nobody with remedial power over Graham knew of the

63

Record Document 26-5, p. 147 and pp. 97-98.

64

Id. at pp. 96-97. Pullen notes that she did not detail Graham’s harassment to
these people. She simply told them that he made her uncomfortable and she did not
like working for him.
65

Ebonie Nelson worked as a temporary employee in Human Resources from
January 2011 until March 2011, at which time she became a permanent employee in
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harassment, as a matter of law CPSB had no actual knowledge of it. See Sharp, 164 F.3d
at 930.
CPSB may also be liable if it had constructive knowledge of Graham’s harassment
of Pullen. “If the harassment complained of is so open and pervasive that the employer
should have known of it, had it but opened its eyes, it is unreasonable not to have done
so, and there is constructive notice.” Sharp, 164 F.2d at 930. Evidence of an effective antiharassment policy may be relevant in determining whether an employer should have
known about the hostile environment. However, an employer is not necessarily insulated
from liability just because there is a grievance procedure, even if the victim has failed to
utilize it. Id. In Sharp, the Fifth Circuit clarified that:
To impute constructive knowledge to the employer, we must find
constructive knowledge on the part of someone whose actual knowledge also
would impute knowledge to the employer. This means a corporate enterprise
‘knew or should have known’ something only when the appropriate persons
within that enterprise ‘knew or should have known.’ In the context of sexual
harassment, such persons are those with remedial power over the harasser.
164 F.3d at 930. The court summarized that the question is whether someone who is a
supervisor of the harasser knew or should have known that he was harassing one of his
employees. Id.
As described above, Pullen notified several people that Graham made her
uncomfortable and that she did not like working for him. However, none of those people
had remedial power over Graham. All of the incidents of harassment detailed by Pullen in
development. Annette Dunlap was the secretary to the Human Resources Director for
classified employees. William Farmer is Pullen’s fiancee and it does not appear that he
ever worked for CPSB. Record Document 31, p. 13.
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her testimony take place behind closed doors, most often in Graham’s office.66 These
incidents of harassment are similar to those in the Sharp case, wherein the court noted the
harassment was made up of discrete incidents that were “physically and temporally
isolated from those with powers to remediate.” 164 F.3d at 930.
The plaintiff in Sharp made the same argument that Pullen makes in the present
case: that there was no real way for her to escape the situation and no viable means of
reporting or addressing the harassment she endured. Id. at 931. The court in Sharp stated
that the employer must satisfy its duty of reasonable care by providing evidence that the
harassed employee could have reported the harassment and escaped the harassing
situation. Id. In that case, the harassed employee was a police officer who was being
harassed by her superior officer. The city’s harassment policy stated that she should have
reported the harassment to her superior’s superior or the Director of Affirmative Action,
and the city argued that it could not have known of the harassment because the harassed
officer did not report the harassment to either of the officials set out in the policy. Id. The
court found that a jury reasonably could have found that the city should have known of
the harassment, through the exercise of reasonable care, even though the officer never
reported it, because she presented evidence that the code of silence effectively forbade
her from lodging a complaint and that the affirmative action bypass was ineffective. Id. at
pp. 931-32.

66

Record Document 26-5.
Page 25

Pullen argues that she was unaware of the CPSB policy and could not have reported
her harassment due to the negligence of CPSB. The CPSB policy states that a harassed
employee should report the harassment to her supervisor or, if her supervisor is the
harasser, she can report the harassment to her supervisor’s supervisor or the appropriate
Director of Personnel.67 In an attempt to analogize her case to Sharp, Pullen tesified that
she did not want to report the harassment because she did not want to “cause any drama”
while she was working at the school board office.68
However, the Court finds that the facts of this case differ from those in the Sharp
case. Here, the record indicates that Harris, who was also a temporary employee and
received no training on the sexual harassment policy, successfully filed a complaint against
Graham after her first week at work.69 Harris initially complained to Dunlap and
successfully requested to be moved to another department. When Graham continued his
harassing behavior, she filed a formal complaint against him.70 CPSB promptly conducted
a formal investigation, including the interview of several people who complained of sexual
harassment from Graham, and ultimately suspended Graham without pay.
The Court finds the argument that CPSB was negligent because it did not train
central office employees on the sexual harassment policy to be unpersuasive. There is no

67

Record Document 26-15, p. 4.

68

Record Document 26-5, p. 97.

69

Record Document 26-8, pp. 19-20.

70

Id. at p. 23.
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evidence in the record that management of CPSB should have known of the harassment
she suffered. Pullen’s argument that CPSB did not take reasonable care to know of
harassment occurring in its company because it did not disseminate or train central office
employees about the sexual harassment policy is substantially diminished because the
record shows that a woman working as a substitute employee in Graham’s department,
who had no prior knowledge of the sexual harassment policy, successfully had herself
transferred out of his department and filed a formal complaint about his behavior. Unlike
the plaintiff employee in Sharp, who had no practical way to maintain her job and report
on her harassment, Pullen could have followed the guidelines set out in the policy or she
could have reported Graham’s behavior to Dunlap, as Harris did. The evidence indicates
that once notified of his behavior, CPSB would have conducted a prompt investigation of
her complaints. Considering the above, the Court finds that CPSB did not have constructive
knowledge of Graham’s harassment of Pullen.
As the Court finds that CPSB did not have actual or constructive knowledge of
Graham’s alleged sexual harassment of Pullen, Pullen cannot satisfy the fifth element of
the negligence test. Therefore, CPSB’s motion for summary judgment on Pullen’s second
hostile work environment claim is GRANTED.
IV.

Conclusion
For the reasons given above, the Court rules that CPSB’s Motion for Summary

Judgment [Record Document 26] is GRANTED.

Page 27

IT IS ORDERED that all claims by the Plaintiff against the Defendant are
DISMISSED WITH PREJUDICE.
A judgment consistent with the instant memorandum ruling shall issue herewith.
THUS DONE AND SIGNED on this 2nd day of July, 2015.

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