Sobolak et al v. C W & W Contractors Inc

Filing 38

MEMORANDUM RULING granting in part and denying in part 22 Motion for Summary Judgment. It is GRANTED as to Plaintiff's retaliation claim and her hostile work environment/sexual harassment claim based on the actions of Warren and Stewart. It is DENIED as to Plaintiff's hostile work environment/sexual harassment claim based on the actions of Simpson. It is DENIED as to the issue of punitive damages. Signed by Judge Elizabeth E Foote on 1/22/2018. (crt,Crick, S)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
SCARLETT SOBOLAK AND
BLANCA CHARPENTIER MCGEE

CIVIL ACTION NO. 15-1711

VERSUS

JUDGE ELIZABETH FOOTE

CW&W CONTRACTORS, INC.

MAGISTRATE JUDGE HAYES

MEMORANDUM RULING
Before the court is a Motion for Summary Judgment filed by the
Defendant, CW&W Contractors, Inc. (“CW&W”). [Record Document 22]. Plaintiff,
Scarlett Sobolak (“Sobolak”), opposes the motion. [Record Document 29]. For
the reasons assigned herein, Defendant’s motions is hereby GRANTED IN
PART and DENIED IN PART.
BACKGROUND FACTS
Sobolak’s Amended and Restated Complaint contains claims against
CW&W for hostile work environment/sexual harassment and retaliation under
Title VII, 42 U.S.C. §§ 2000e2 and 2000e3, and under Louisiana’s comparative
state laws, La. R.S. 23:301 et seq and La. R.S. 51:2256. [Record Document 3].
Sobolak alleges that she was subjected to sexual harassment by CW&W owner,
Glen Warren (“Warren”), General Manager, Ernest Simpson (“Simpson”), and a
coworker, Tony Stewart (“Stewart”). Sobolak also claims that she experienced
retaliation after she complained to Warren.
Sobolak was hired by CW&W on July 25, 2011, to serve as its Human
Resources Manager. [Record Document 3 ¶ 9; Sobolak Dep. at 40]. Prior to

Sobolak’s arrival CW&W did not have an employee dedicated to human
resources. [Warren Dep. at 22-24]. Sobolak had previously worked as an
assistant to a Human Resources Director, but she had no prior experience as a
department head of a human resources department. Id. However, Warren was
willing to take a chance on Sobolak because she was a “smart, young lady” and
he was willing to send her to training to acquire additional knowledge. [Warren
Dep. at 21, 31]. The record demonstrates that Sobolak never received additional
training. [Warren Dep. at 32; Lewis Dep. at 45, 47]. Even so, Sobolak’s
superiors were pleased with her work. [Warren Dep. at 47-48]. As part of her
duties, Sobolak created an employee handbook for CW&W, which included a
sexual harassment policy. [Record Document 22-1, Ex. C].
In February 2013, CW&W hired Simpson as General Manager. [Record
Document 3 ¶ 13; Warren Dep. at 58]. Simpson reported directly to Warren, and
all other employees reported directly to Simpson or their immediate supervisors.
[Lewis Dep. at 59]. Sobolak alleges that shortly after Simpson was hired he
began sexually harassing her. In mid-April 2013, Sobolak alleges that she was in
Simpson’s office discussing work-related matters when he began asking her
questions of a private and sexual nature. [Record Document 3 ¶ 14]. Sobolak
states that the questions made her extremely uncomfortable, but she answered
them because Simpson was her manager and she did not think she could ask
him to stop without offending him. Id. Sobolak claims that during the meeting
Simpson made a comment about oral sex, closed and locked his office door, and

2

walked over to where she was seated. Id. Sobolak alleges that Simpson then
exposed himself to her. Id. She alleges that she felt embarrassed, intimidated,
and pressured to perform oral sex. Id. She complied because she felt had no
other option. [Sobolak Dep. at 94]. Sobolak states that afterwards she was in a
state of shock and felt shame and embarrassment. [Record Document 3 ¶ 15].
She was also concerned that her marriage had been placed in jeopardy, and that
she might lose her job because what occurred was inappropriate. [Sobolak Dep.
at 92-93].
Thereafter, Sobolak alleges that nearly every interaction she had with
Simpson was of a sexual nature. [Record Document 3 ¶ 16]. She alleges that
she received pictures of Simpson’s private parts on an almost daily basis, and
that he requested pictures of her naked body, sometimes performing sexual acts,
which she provided. Id. at 19. On May 7, 2013, Sobolak drove to Simpson’s
house to engage in sexual intercourse because he asked her to do so and she
felt she could not decline. [Sobolak Dep. at 95-96; Record Document 3 ¶ 17].
Between April 2013 and December 2013, Plaintiff engaged in approximately 25
separate sexual encounters with Simpson. [Record Document 3 ¶ 18]. These
encounters occurred in Simpson’s office at CW&W, at his home in DeBerry
Texas, in Sobolak’s vehicle, and in hotel rooms in Bossier City, Louisiana.
[Sobolak Dep. at 39, 40, 80, 81, 102-103, 115-116]. Sobolak contends that she
felt obliged to engage in sexual acts because she felt hopeless and unable to
deny Simpson’s advances because he had substantial power and control over

3

her. [Record Document 3 ¶¶ 16-17]. Sobolak claims that she was in a constant
state of pressure, fear, hopelessness, and disbelief about the situation. [Record
Document 3 ¶ 18]. She alleges that she tried to end all contact with him, but
each time she was reminded by Simpson that she should comply with his
requests in order to keep her job. Id.
Simpson viewed his interactions with Sobolak in a completely different
light. Specifically, Simpson states that during the meeting when their first sexual
interaction occurred, it was Sobolak who initiated the encounter. [Simpson Dep.
at 28]. He states that Sobolak made a comment to him about her breasts, closed
his office door, and then propositioned him. Id. at 29. Simpson also states that it
was Sobolak who suggested that they meet at his home the first time they
engaged in sexual intercourse. Id. at 33-34. He also maintains that he had a
consensual and loving relationship with Sobolak. Simpson testified that he was in
love with Sobolak and he thought that she reciprocated those feelings. Id. at 54.
Sobolak frequently told Simpson that she loved him, wanted to marry him, and
have him be the stepfather to her children. [Sobolak Dep. at 74-75]. Sobolak
maintains that every time she received a text message or profession of love from
Simpson she would respond in kind because she felt an expectation for her
emotions to match his. Id. at 74.
Sobolak claims that the situation with Simpson became so overwhelming
that she gave her verbal notice of resignation to her immediate supervisor,
Jennifer Corley Lewis (“Lewis”), on November 25, 2013. [Record Document 20 at

4

¶ 20]. During her meeting with Lewis, Sobolak denied that she was having a
sexual relationship with Simpson, instead describing their relationship as an
“emotional affair.” [Sobolak Dep. at 77-78]. Sobolak told Lewis that she needed
to remove herself from the situation and create distance between herself,
CW&W, and Simpson. [Lewis Dep. at 72]. Sobolak did not reveal the physical
nature of her interactions with Simpson because she was trying to save her
marriage and “no one could know” about Simpson. [Sobolak Dep. at 78]. Lewis
testified that Sobolak gave one or two weeks notice, but her final day was in flux
because Sobolak wanted to finish a work project. [Lewis Dep. at 72]. Sobolak
claims that Simpson demanded that she remain with CW&W until her
replacement was found. [Record Document 3 ¶ 20]. Lewis confirmed that
Simpson tried to get Sobolak to remain with the company through Christmas,
stating “he [Simpson] was very eager to have her stay, and she [Sobolak] was
ready to go.” [Lewis Dep. at 75]. Lewis asked Warren whether he had any
interest in keeping Sobolak beyond her initially agreed upon departure date of
December 13, 2013. Id. Warren was not interested in prolonging Sobolak’s
employment if she wanted to leave. Id.
On December 7, 2013, Sobolak’s husband saw an email on her phone
from Simpson wherein he expressed his love for Sobolak and stated that he
looked forward to the day they could be together. [Record Document 22-2 ¶ 28].
Sobolak desperately tried to get her phone away from her husband and a
physical altercation ensued between them. [Id. at ¶ 29]. Thereafter, Sobolak

5

deleted all of the text messages between herself and Simpson by performing a
factory re-set of her cell phone. [Sobolak Dep. at 76]. She did so to prevent her
husband from reading the messages in an effort to save her relationship with her
husband. Id. Sobolak continued to deny the extent of her interactions with
Simpson to her husband. [Record Document 22-2 ¶ 30]. On December 8, 2013,
Sobolak’s husband contacted Warren by telephone to make him aware of
Simpson’s inappropriate behavior and to inform Warren that he believed his wife
and Simpson were having an affair. [Record Document 3 ¶ 23; Record Document
22-2 ¶ 31].
On December 10, 2013, several of CW&W’s female employees spoke
privately amongst themselves and determined that Simpson had allegedly
behaved inappropriately with Sobolak and her co-plaintiff Blanca McGee
(“McGee”), Lewis, and Angela Finley (“Finley”). [Record Document 3, ¶ 24].
Lewis shared this information with Warren and a meeting was called to discuss
the allegations. Id. at ¶ 25. In attendance were Warren, Lewis, Finley, McGee,
Sobolak, and Brian Murry, CW&W’s Contract Service Manager. 1 Id. During the
meeting Warren asked each of the women to explain what had been going on.
[Lewis Dep. at 79]. Finley received inappropriate text messages and phone calls
from Simpson. [Lewis Dep. at 79; Record Document 28-5, Finley Aff. ¶ 6]. Lewis
received text messages from Simpson asking her to spend time with him outside

1

Brian Murry attended the meeting because Warren wanted another CW&W
manager in attendance. [Warren Dep. at 70].

6

of the office. [Lewis Dep. at 80]. McGee described a nonconsensual sexual
encounter with Simpson that occurred during a Labor Day cookout at Simpson’s
house. Id. at 79-80. Sobolak described her interactions with Simpson as an
inappropriate “emotional affair.” [Warren Dep. at 78]. 2 According to Lewis,
Sobolak stated that Simpson had been a good friend to her, but she now felt
manipulated by him after learning that he was making advances towards other
women. [Lewis Dep. at 85].
Warren responded to the allegations by telling the women that he wished
they had come to him earlier, but that he would handle the situation. [Warren
Dep. at 80]. Sobolak claims that Warren also stated that the timing was not good
for the company because Simpson was needed to complete an important job and
CW&W’s financial well being was paramount. [Record Document ¶ 25]. Sobolak
also alleges that Warren asked the female employees to remain silent about the
allegations. Id. Lewis confirmed that Warren asked the women to please keep
the meeting confidential. [Lewis Dep. at 87]. He also stated that he needed time
to think about the problem and determine the appropriate course of action. Id.
2

Sobolak claims that at the time of the meeting Warren was already aware that
she and Simpson were inappropriately spending time together because a few
months prior to the meeting Warren made an unannounced stop at Simpson’s
house and saw her car in Simpson’s driveway. [Sobolak Dep. at 157]. Warren
testified that around October 2013 he did see Sobolak’s car in Simpson’s
driveway and at that point he knew something was going on between them.
[Warren Dep. at 63]. However, Warren testified that when he confronted
Simpson about seeing Sobolak at his home, Simpson maintained that they were
just friends and he was consoling her through a rough patch. [Warren Dep. at
66]. Warren told Simpson “If you don’t stop it, I’m going to stop it.” [Warren
Dep. at 66]. He testified that he did not know Simpson had ignored his directive
until the December 10, 2013 meeting. [Warren Dep. at 68].
7

After the meeting the female employees still reported to Simpson, but he was
out of town working a large job in Jackson, Mississippi, and was rarely in the
office. Id. Sobolak also alleges that Warren’s wife came into the office to speak
with Lewis to see if there was any way to correct the situation and allow
Simpson to remain with the company because he had been hired to allow
Warren to have more free time to spend with their family. [Record Document 3
at ¶ 28]. Warren did not know that his wife talked to Lewis until he read about
the meeting in Sobolak’s complaint. [Warren Dep. at 136].
Sobolak’s last day at CW&W was December 13, 2013, just a couple of
days after the meeting with Warren. [Record Document 3 ¶ 29, Doc 22-2 ¶ 36].
That same day Sobolak and her husband began marital counseling. [Sobolak
Dep. at 130]. During the counseling session, Sobolak continued to deny that she
had sex with Simpson, instead describing the relationship as an emotional affair.
Id. at 131. Eventually, on December 21, 2013, Sobolak told her husband that
she had engaged in sexual relations with Simpson. Id. at 141. Sobolak alleges
that on December 31, 2013, she began to receive threatening messages from
Simpson on her phone and social media account. [Record Document 3 at ¶ 30].
On January 2, 2014, she filed a formal complaint against Simpson with the
Bossier City Police Department. Id. at 31.
In the interim, about a week and half after the December 10, 2013 round
table meeting with the female employees, Warren met with Simpson to discuss
the allegations. [Warren Dep. at 89-90]. Simpson denied that he did anything

8

inappropriate, but he admitted that he was in love with Sobolak. Id. at 91-92.
Warren testified that he told Simpson his behavior was unacceptable and that he
initially terminated Simpson’s employment at that meeting. However, Warren’s
financial advisor, John Griffin, who was present at the meeting, interceded and
urged Warren to contact legal counsel first because Simpson had an employment
contract with CW&W. [Warren Dep. at 91-92; Record Document 22-10, Griffin
Aff. ¶ 6]. Warren suspended Simpson from his duties until he could consult with
legal counsel. [Warren Dep.at 92; Griffin Aff. ¶ 7]. Warren stated that he told
Simpson not to contact any of the employees at CW&W, but that he later learned
from Lewis that Simpson continued to try to contact Sobolak. [Warren Dep. at
96]. Sobolak was no longer an employee of CW&W at this point. After
consultation with legal counsel, CW&W terminated Simpson’s employment on
January 2, 2014, with a severance package. [Record Document 22-2 ¶ 40;
Warren Dep. at 98, 100].
LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) directs that a court “shall grant
summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”

3

3

Rule 56 was amended effective December 1, 2010. Per the comments, the
2010 amendment was intended “to improve the procedures for presenting and
deciding summary judgment motions and to make the procedures more
consistent with those already used in many courts. The standard for granting
summary judgment remains unchanged.” Therefore, the case law applicable to
Rule 56 prior to its amendment remains authoritative, and this Court will rely on
it accordingly.
9

Summary judgment is appropriate when the pleadings, answers to
interrogatories, admissions, depositions, and affidavits on file indicate that there
is no genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S. Ct. 2548 (1986). When the burden at trial will rest on the non-moving
party, the moving party need not produce evidence to negate the elements of
the non-moving party’s case; rather, it need only point out the absence of
supporting evidence. See Celotex, 477 U.S. at 322-323.
If the movant satisfies its initial burden of showing that there is no
genuine dispute of material fact with the motion for summary judgment, the
nonmovant must demonstrate that there is, in fact, a genuine issue for dispute
at trial by going “beyond the pleadings” and designating specific facts for
support. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). “This
burden is not satisfied with ‘some metaphysical doubt as to the material facts,’”
by conclusory or unsubstantiated allegations, or by a mere scintilla of evidence.
Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). However, “[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1985) (internal citations omitted); Reid v. State Farm
Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986) (the court must “review
the facts drawing all inferences most favorable to the party opposing the
motion”). While not weighing the evidence or evaluating the credibility of

10

witnesses, courts should grant summary judgment where the critical evidence in
support of the nonmovant is so weak and tenuous that it could not support a
judgment in the nonmovant’s favor. Little, 37 F.3d at 1075.
Additionally, Local Rule 56.1 requires the moving party to file a statement
of material facts as to which it contends there is no genuine issue to be tried.
Pursuant to Local Rule 56.2, the party opposing the motion for summary
judgment must set forth a “short and concise statement of the material facts as
to which there exists a genuine issue to be tried.” All material facts set forth in
the statement required to be served by the moving party “will be deemed
admitted, for purposes of the motion, unless controverted as required by this
rule.” Local Rule 56.2.
LAW AND ANALYSIS
I.

Time-Barred claims
Sobolak’s Amended and Restated Complaint contains claims against

CW&W for hostile work environment/sexual harassment and retaliation under
Title VII, 42 U.S.C §§ 2000e2 and 2000e3, and Louisiana’s employment
discrimination laws, La. R.S. 23:301 et seq and La. R.S. 51:2256. [Record
Document 3]. Sobolak has conceded that she does not have a claim for
retaliation. [Record Document 29-1, fn 2]. Sobolak also concedes that her claims

11

for sexual harassment based on the conduct of Warren and Stewart are timebarred. Id.

4

Because Plaintiff concedes that her claim for retaliation as well as her
claims for hostile work environment/sexual harassment concerning the alleged
actions of Warren and Stewart are time-barred, they are hereby DISMISSED.
II.

Title VII Sexual Harassment

5

Title VII of the Civil Rights Act makes it unlawful for an employer to
discriminate against any individual with respect to her compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color,
sex, religion, or national origin. 42 U.S.C. § 2000e-2(a)(1). Sexual harassment is
a form of gender discrimination. Meritor Savings Bank, FSB v. Vinson, 477 U.S.
57, 65, 106 S.Ct. 2399, 2404 (1986).
a.

Prima Facie Case of Sexual Harassment

Under Title VII, an employer’s liability for sexual harassment in the
workplace is dependent on the status of the alleged harasser. In cases where
the harasser is a co-worker a plaintiff must establish the following five elements
of her prima facie case: (1) she belongs to a protected group; (2) she was
4

Time-barred incidents of discrimination may still be relevant background
information for the court to consider in conjunction with the alleged
discriminatory acts at issue in this case. See Ramsey v. Henderson, 286 F.3d
264, 268 (5th Cir. 2002).
5

Louisiana law prohibiting sexual discrimination and harassment mirrors the
federal statute, 42 U.S.C. §§ 2000e et seq. Accordingly, Louisiana courts look to
the federal statute to determine the validity of a sexual harassment claim
pursuant to La. R.S. 23:332. Whittington v. Kelly, 40,386, 917 So.2d 688 (La.
App. 2 Cir. 12/14/05).
12

subjected to unwelcome harassment; (3) the harassment was based on her
membership in a protected group; (4) the harassment was sufficiently severe or
pervasive to affect 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. When the harasser is a supervisor, the plaintiff need
only prove the first four elements. Faragher v. City of Boca Raton, 524 U.S. 775,
803, 118 S.Ct. 2275, 2291 (1998). It is undisputed that Simpson was Sobolak’s
supervisor. He was the General Manager of CW&W, reporting only to Warren,
the owner of the company. [Lewis Dep. 59]. Sobolak reported directly to Lewis,
who reported to Simpson. Id. Therefore, only the first four elements are
required.
It is uncontested that Sobolak is a member of protected class (female),
and the alleged harassment occurred because she is female. To establish a
prima facie case the alleged harassment must be sufficiently severe or pervasive
to alter the terms and conditions of employment, creating a hostile work
environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370
(1993). The alleged harassment 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.” Faragher, 524 U.S. at 787. The
deliberate and unwanted touching of a plaintiff’s intimate body parts is often
found to constitute severe sexual harassment. Harvill v. Westward
Communications, LLC, 433 F.3d 428, 436 (5th Cir. 2005). Sobolak alleges that

13

Simpson began sexually harassing her during a meeting in his office at CW&W by
questioning her in detail about her sex life, closing and locking his office door,
and exposing his genitals to her. [Sobolak Dep. at 88-89]. She also alleges that
Simpson texted her pictures of his genitals and asked her to engage in sexual
acts on a routine basis. If the Court assumes that Sobolak’s statements are
truthful, Simpson’s unrelenting pursuit of a sexual relationship would be
sufficiently severe and pervasive to alter the terms and conditions of Sobolak’s
employment, and would be both subjectively and objectively hostile to a
reasonable person.
The only element in true controversy is whether Simpson’s actions toward
Sobolak were indeed unwelcome. If they were unwelcome, Sobolak will have
met her prima facie case of sexual harassment. Conversely, if they were
welcome and consensual Simpson’s actions would not be harassment. A plaintiff
may participate in a sexual act voluntarily in the sense that she was not forced
against her will, yet the sexual advances may still be unwelcome. Meritor, 477
U.S. at 68. The correct inquiry is whether a plaintiff indicated through her
conduct that the sexual advances were unwelcome, not whether she participated
voluntarily. Id. “The gravamen of any sexual harassment claim is that the
alleged sexual advances were unwelcome.” Id. “The question of whether
particular conduct was indeed unwelcome presents difficult problems of proof
and turns largely on credibility determinations committed to the trier of fact.”
Meritor, 477 U.S. at 68. “The EEOC Guidelines emphasize that the trier of fact

14

must determine the existence of sexual harassment in light of ‘the record as a
whole’ and the ‘totality of the circumstances, such as the nature of the sexual
advances and the context in which the alleged incidents occurred.’” Id. at 69
(quoting 29 C.F.R. § 1604.11(b)).
Plaintiff maintains that all of her sexual encounters with Simpson were
unwelcome, and she participated and reciprocated his affections because she felt
that she had to comply because he was her boss. When questioned as to
whether she engaged in sex with Simpson consensually, Sobolak responded: “I
would say that I was coerced. [] I did not have sex with him in a free and willing
way.” [Sobolak Dep. at 72]. However, Plaintiff admits that she never explicitly
told Simpson that she did not want to have sex with him because she did not
feel she was in the position to do so. Id.
CW&W on the other hand argues that Sobolak willingly participated in a
sexual relationship with Simpson as evidenced by the frequency of their
meetings, the explicit videos and photos she sent to Simpson, and her
professions of love for Simpson. CW&W also argues that Sobolak did not end
her relationship with Simpson until she learned that he had made advances
toward other women working in the office. Finally, CW&W argues that Sobolak
never indicated through her conduct that Simpson’s advances were unwelcome.
The issue of whether Simpson’s advances and physical interactions with
Sobolak were welcome or unwelcome presents a difficult issue for the Court. The
question inherently turns on the credibility of the testimony of Sobolak and

15

Simpson. She indicates that his affections were unwelcome. If true, the
numerous instances of Simpson physically touching Sobolak and engaging in
sexual acts with her would certainly constitute severe sexual harassment. On
the other hand, if Simpson’s actions were welcome then Sobolak cannot
demonstrate a prima facie case for sexual harassment. This Court must consider
the evidence in the light most favorable to the nonmoving party, and it cannot
weigh the evidence or assess credibility on summary judgment. Based on the
totality of the circumstances presented in this case, the Court finds that genuine
issues of material fact remain regarding Sobolak’s sexual harassment claim.
b.

Tangible Employment Action / Constructive Discharge

Sobolak asserts that she experienced a tangible employment action in the
form of a constructive discharge. [Record Document 29-1 at 17]. A constructive
discharge may be considered a tangible employment action that precludes an
employer from asserting the Ellerth/Faragher affirmative defense to vicarious
liability for its employee’s harassment. Aryain v. Wal-Mart Stores Texas LP, 534
F.3d 473, 480 (5th Cir. 2008)(citing Burlington Industries, Inc. v. Ellerth, 524
U.S. 742, 118 S.Ct. 2257; Faragher, 524 U.S. 775). “[A]n employer is strictly
liable for supervisor harassment that culminates in a constructive discharge.”
Aryain, 534 F.3d at 480 (citing Ellerth, 524 U.S. at 765). “A constructive
discharge occurs when the employer makes working conditions so intolerable
that a reasonable person in the employee’s position would feel compelled to
resign.” McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2001). The

16

severity or pervasiveness of the harassment must be greater than what is
required to prove hostile work environment. Harvill, 433 F.3d at 440. The Fifth
Circuit considers a variety relevant factors, including the following: (1) demotion;
(2) reduction in compensation; (3) reduction in job responsibilities; (4)
reassignment to menial or degrading work; (5) badgering, harassment, or
humiliation by the employer calculated to encourage the employee’s resignation;
(6) reassignment to work under a younger or less experienced superior; or (7)
offers of early retirement that would make the employee worse off whether
accepted or not. Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001).
Plaintiff argues that the record supports her claim of constructive
discharge because she was subjected to sexual harassment so severe that a
reasonable person in her position would be forced to resign. Plaintiff notes that
Lewis’ testimony demonstrates that she resigned her position with CW&W
because of Simpson. Lewis testified as follows:
She said that she needed to resign because she wanted to remove
herself from the situation. That she wanted to save and repair her
marriage. That her family and her children and her husband was
[sic] her primary concern. And she wanted to put any fears that
Andy [Sobolak’s husband] may have had to rest, and she felt like
she needed to distance herself from CW&W and Ernie Simpson.
[Lewis Dep. at 72]. When questioned again about Sobolak’s reasons for
resigning, Lewis stated: “primarily to work on her marriage but she also stated
that the reason her marriage was in trouble is because of Ernie Simpson.” Id. at
86. Sobolak maintains that she submitted her resignation because the situation
with Simpson had become intolerable and she had no choice but to leave.

17

CW&W argues that Sobolak cannot meet the standard for constructive
discharge. Sobolak was not demoted. She did not receive a reduction in salary or
benefits. She was not given menial or degrading work, nor was she reassigned.
In fact, CW&W suggests that the evidence in the record demonstrates that
Simpson was actively trying to get Sobolak promoted. Lewis testified that
Simpson told her that he was working to make Human Resources a stand-alone
department. Id. at 68. If successful, Simpson would have become Sobolak’s
immediate supervisor. Arguably, this would have given Simpson even more
control over Sobolak.
Establishing a constructive discharge based solely on the severity of
alleged sexual harassment is a very high burden for any plaintiff to meet.
However, based on the facts of this case and the severity of the alleged sexual
harassment, the Court finds that questions of fact remain as to whether Plaintiff
was constructively discharged.
c.

Ellerth/Faragher Affirmative Defense

CW&W has asserted the Ellerth/Faragher affirmative defense to vicarious
liability for Simpson’s actions. If it is ultimately determined that Sobolak was not
constructively discharged, CW&W argues that it would still be entitled to
summary judgment. [Record Document 22-1 at 15]. An employer may escape
liability for sexual harassment/hostile work environment if it can establish the
Ellerth/Faragher affirmative defense; that (1) the employer exercised reasonable
care to prevent and correct the harassing behavior, and (2) the plaintiff

18

unreasonably failed to take advantage of the preventive or corrective
opportunities provided by the employer. Ellerth, 524 U.S. at 765; Faragher, 524
U.S. at 807. To properly assert the affirmative defense, the defendant must
prove both elements. Casiano v. AT&T Corp., 213 F.3d 278, 284 (5th Cir. 2000).
CW&W maintains that it cannot be vicariously liable for Simpson’s alleged
actions because CW&W exercised reasonable care to prevent and correct any
harassing behavior, and Sobolak failed to take advantage of CW&W’s reporting
system. CW&W produced an excerpt from their employee manual dated
December 22, 2011. The courts will look to an employer’s policies and programs
to determine whether it took reasonable measures to prevent the alleged
behavior. See EEOC v. Boh Brothers Construction Co., LLC, 731 F.3d 444, 463
(5th Cir. 2013). However, not all policies are sufficient; “generic policies that
offer no specific complaint procedure may be insufficient to satisfy the
Ellerth/Faragher defense.” Id. CW&W’s policy excerpt is titled “Harassment and
Discrimination Policy” and defines sexual harassment as:
Unwelcome or unwanted sexual advances, requests for sexual
favors, and other verbal, nonverbal, or physical conduct of a sexual
nature when (1) submission to or rejection of this conduct by an
individual is used explicitly or implicitly as a factor in decisions
affecting hiring, evaluation, promotion, or other aspects of
employment; or (2) this conduct substantially interferes with an
individual’s employment or creates an intimidating, hostile, or
offensive work environment.
Examples of sexual harassment include, but are not limited to,
unwanted sexual advances; demands for sexual favors in exchange
for favorable treatment or continued employment; repeated sexual
jokes, flirtations, advances, or propositions; verbal abuse of a
sexual nature; graphic commentary about an individual’s body,

19

sexual prowess, or sexual deficiencies; leering; whistling; touching;
pinching; assault; coerced sexual acts; suggestive insulting;
obscene comments, gesture[s], and emails; and display in the work
place of sexually suggestive objects or pictures.
[Record Document 22-5, Ex. C]. CW&W’s policy also contains information
regarding its reporting procedure:
If you believe that you have been the victim of sexual or other
harassment or discrimination in the work place, you should take the
following steps: (1) Report and discuss the matter with your
supervisor and/or human resources representative. (2) If you
believe your supervisor or manager to be the source of the
harassment, report this to the human resources representative.
CW&W will investigate and attempt to resolve your complaint, as
well as take any warranted disciplinary action, as soon as possible.
If for any reason you believe this has not occurred within a
reasonable period of time, refer this problem to any other
supervisor in the CW&W, or to the CW&W Contractors, Inc.
President.
Id.
CW&W argues that it can meet the Ellerth/Faragher defense because it
has an anti-harassment policy with a reporting procedure of which Sobolak was
aware; yet she failed to report the harassment. The CW&W policy does define
sexual harassment, and it does provide a reporting procedure. However, the
mere existence of a policy by itself is not sufficient to establish as a matter of law
that the company exercised reasonable care to prevent and correct harassing
behavior. The Fifth Circuit has held that an employer’s failure to properly
promulgate or publicize its policy may preclude summary judgment. See Pullen v.
Caddo Parish School Board, 830 F.3d 205 (5th Cir. 2016). However, the Fifth
Circuit has also consistently found the first prong of the Ellerth/Faragher defense

20

to be met when a plaintiff admits that she knew about the policy, and when the
court finds the policy to be reasonable. Id. at 210.
The facts of this case present an interesting twist. On its face, CW&W’s
policy appears to be sufficient. It defines sexual harassment and provides a
reporting mechanism for employees. Sobolak, as Human Resources Manager for
CW&W, was aware of both the policy and the reporting procedure because she
created the employee handbook. [Sobolak Dep. at 40]. She did so by finding an
example of an employee handbook on the internet, to which she made a few
additions. Id. at 41. Based on this information, Sobolak was aware of both the
policy and the reporting procedure.
However, there is also evidence in the record that creates doubt as to
whether CW&W’s efforts to prevent sexual harassment throughout its
organization were reasonable or sufficient. Warren testified that he did not
review the handbook Sobolak created and did not receive training on the
handbook. [Warren Dep. at 33]. When a new employee was hired by CW&W,
Sobolak would merely hand them a copy of the employee handbook and obtain
an acknowledgment signature. [Sobolak Dep. at 42]. She did not review the
handbook with the employees. Id. Sobolak did not offer training to new or
current employees on the handbook or the sexual harassment policy. [Warren
Dep. at 33].
CW&W employees also testified that they did not receive training
regarding sexual harassment. Finley states in her affidavit that she never

21

received a copy of the CW&W employee handbook, nor was she provided any
training regarding sexual harassment in the workplace. [Record Document 29-7,
Finley Aff. ¶ 3]. Most importantly, Simpson, as General Manager of a company
with 150 employees, testified that he was never provided training in sexual
harassment. [Simpson Dep. at 120]. Based on this evidence, the Court finds that
fact issues remain as to whether CW&W took reasonable steps to prevent and
remedy sexual harassment within the organization.
The second prong of the Ellerth/Faragher defense requires the employer
to prove that the plaintiff failed to take advantage of corrective procedures
provided by the employer. Faragher, 524 U.S. at 807. The policy underpinning
this requirement is to “encourage employees to report harassing conduct before
it becomes severe and pervasive.” Ellerth, 524 U.S. at 764. When an employee
fails to report alleged harassment, it deprives the employer of the opportunity to
correct the behavior.
CW&W maintains that Sobolak unreasonably failed to take advantage of
the reporting procedure set forth in its employee handbook. The CW&W
reporting procedure provided that an employee experiencing sexual harassment
should report the behavior to her immediate supervisor or the HR representative.
Lewis was Sobolak’s immediate supervisor, yet Sobolak failed to report to Lewis
that she was being sexually harassed by Simpson. Her first conversation with
Lewis regarding Simpson was on November 25, 2013, when she submitted her
resignation. Sobolak did not tell Lewis that she was experiencing sexual

22

harassment, just that she needed to leave CW&W and create distance from
Simpson. [Lewis Dep. at 72].
The policy also provides employees with the option of reporting directly to
any other supervisor at CW&W or to Warren, the President of the company, if
their immediate supervisor was not addressing the situation in a timely manner.
Despite her knowledge of CW&W’s reporting procedure, Sobolak failed report
Simpson’s harassment to anyone. CW&W notes that throughout the entire course
of events Sobolak concealed the alleged harassment from everyone at CW&W in
an effort to keep her sexual interactions with Simpson a secret from her
husband.
Sobolak argues that she did not unreasonably fail to take advantage of
CW&W’s corrective opportunities because there was not an effective channel for
her to make her complaint. Sobolak notes that the only time she discussed a
sexual harassment allegation regarding a different employee with Warren, she
was summarily dismissed and told to “handle it” without being given the
authority to do so. [Record Document 29-1 at 23]. This explanation is relevant
to why Sobolak decided not to inform Warren, but it does not explain why
Sobolak failed to inform Lewis, who was her direct supervisor. However, given
that fact issues remain regarding the first prong of the Ellerth/Faragher
affirmative defense, the Court will likewise defer its findings regarding the
second prong until trial.

23

III.

Punitive Damages
CW&W moves the Court to determine as a matter of law that Sobolak is

not entitled to punitive damages pursuant to 42 U.S.C. § 1981a(b)(1) because
CW&W did not act with malice or reckless indifference to Sobolak’s federally
protected rights. [Record Document 22-1 at 23]. The standard for the award of
punitive damages is higher than that necessary for compensatory damages, and
requires proof of malice or reckless indifference. Hardin v. Caterpillar, Inc., 227
F.3d 268, 270 (5th Cir. 2000). Whether malice or reckless indifference is present
is ultimately a determination of the actor’s state of mind. That is, the employer’s
knowledge that it may be acting in violation of federal law, not merely the
awareness that it is engaging in discrimination. Kolstad v. American Dental
Association, 527 U.S. 526, 535, 119 S.Ct. 2118, 2124 (1999). Even if particular
actors may have acted with malice and reckless indifference, an employer may
avoid vicarious punitive damages if it can demonstrate a good faith effort to
comply with Title VII. Kolstad at 545-46.
CW&W argues that there is no evidence of malice or reckless indifference
on its part because even if Sobolak’s allegations are true, she did not utilize
CW&W’s reporting procedure to disclose that she was being sexually harassed.
CW&W argues that when it was finally made aware of Simpson’s actions in the
December 10, 2013 meeting, it took action to suspend and ultimately terminate
Simpson on January 2, 2014. Thus, CW&W maintains that it acted in good faith
to comply with Title VII. Sobolak maintains that Simpson acted with reckless

24

indifference to her protected right not to be sexually harassed. She also counters
that CW&W cannot demonstrate that it made a good faith effort to comply with
Title VII when it made no effort to train its employees on its harassment and
discrimination policies.
Because genuine issues of material fact remain in this case, summary
judgment is not appropriate on the issue of punitive damages.
CONCLUSION
For the reasons assigned herein, Defendant’s Motion for Summary
Judgment [Record Document 22] is hereby GRANTED IN PART and DENIED
IN PART. It is GRANTED as to Plaintiff’s retaliation claim and her hostile work
environment/sexual harassment claim based on the actions of Warren and
Stewart. It is DENIED as to Plaintiff’s hostile work environment/sexual
harassment claim based on the actions of Simpson. It is DENIED as to the
issue of punitive damages.
THUS DONE AND SIGNED in Shreveport, Louisiana this _22nd___
day of January, 2018.

________________________________
ELIZABETH ERNY FOOTE
UNITED STATES DISTRICT JUDGE

25