Herring v. AW Manufacturing, Inc.
Filing
44
MEMORANDUM OPINION re 43 Order on Motion for Summary Judgment, Order on Motion to Strike. Signed by District Judge Sharion Aycock on 5/21/2012. (psk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
TASHA HERRING
PLAINTIFF
V.
CAUSE NO.: 1:11CV10-SA-DAS
AW MANUFACTURING, INC.
DEFENDANT
MEMORANDUM OPINION
Plaintiff filed this Complaint alleging she was the victim of gender discrimination, race
discrimination, sexual harassment, and retaliation for reporting the sexual harassment. Defendant
filed a Motion for Summary Judgment [29] seeking judgment as a matter of law. Plaintiff conceded
her gender discrimination and race discrimination claims. After reviewing the motion, response,
rules, and authorities, the Court finds as follows:
Factual and Procedural Background
Tasha Herring was employed as a frame builder at the AW Manufacturing plant in Shannon,
Mississippi. Herring contends that in mid-2009, Willie Collins and Travis McIntosh began verbally
sexually harassing her. Herring took medical leave in early 2010, and contends that when she
returned from leave, the harassment progressed. Specifically, she alleges that on July 15, 2010,
Willie Collins followed her to the bathroom and made comments that he was going to come in after
her. On July 26, 2010, Herring contends that McIntosh followed her to her car where he placed his
hand between her legs when she bent over into the front seat.
On July 27, 2010, Herring informed the Plant Manager, Avis Wren, a female, of the alleged
actions of both males. Wren called McIntosh and Collins in her office individually and alerted them
to the allegations. They both denied Herring’s claims. Afterward, McIntosh approached Herring
and asked why she said those things about him to Wren.
The next day, Herring confronted Bill Malisch, the owner of AW Manufacturing, and
advised him of the alleged sexual harassment. Malisch informed her that it would be taken care of.
Plaintiff admits that she was not further harassed after July 27, 2010.
In late August, Malisch provided new staple guns to the frame builders at AW
Manufacturing. Herring contends the new (blue) guns weighed more than the older (gray) guns.
Herring complained to Wren that using the new guns caused her back to hurt. The next day, August
27, 2010, Plaintiff was laid off from her position at AW Manufacturing.
Defendant contends that Plaintiff’s claims for sexual harassment and retaliation are due to
be dismissed.
Summary Judgment Standard
On a motion for summary judgment, the movant has the initial burden of showing the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986) (“the burden on the moving party may be discharged by ‘showing’…
that there is an absence of evidence to support the non-moving party’s case”). Under Rule 56(e) of
the Federal Rules of Civil Procedure, the burden shifts to the non-movant to “go beyond the
pleadings and by… affidavits, or by the ‘depositions, answers to interrogatories, and admissions on
file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Id. at 324, 106 S. Ct.
2548. That burden is not discharged by “mere allegations or denials.” FED. R. CIV. P. 56(e). All
legitimate factual inferences must be made in favor of the non-movant. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Rule 56(c) mandates the entry
of summary judgment “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
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of proof at trial.” Celotex Corp., 477 U.S. at 322, 106 S. Ct. 2548. Before finding that no genuine
issue for trial exists, the court must first be satisfied that no reasonable trier of fact could find for the
non-movant. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89
L. Ed. 2d 538 (1986).
Discussion and Analysis
Motion to Strike
Defendant has filed a Motion to Strike the affidavit of Elb Walton from Plaintiff’s Response
as Mr. Walton was an undisclosed witness during discovery. Plaintiff asserts that she was unaware
that Mr. Walton had discoverable information until after the summary judgment motion was filed.
Federal Rule of Civil Procedure 26(e) requires the supplementation of discovery in a “timely
manner.” The Court will not strike the late-supplemented discovery response as Plaintiff disclosed
the witness soon after she determined him to have discoverable information. Accordingly,
Defendant’s Motion to Strike [36] is DENIED.
Sexual Harassment Claim
The United States Supreme Court recognizes two types of sexual harassment claims: (1)
claims that are based on requests for sexual favors that result in adverse employment actions (“quid
pro quo claims”); and (2) claims where bothersome attentions or sexual remarks create a hostile
work environment. Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L. Ed. 2d
662 (1998). Plaintiff asserts a claim for hostile work environment.
In order to establish a hostile work environment claim, Plaintiff must demonstrate that “(1)
she is [a] member of a protected group; (2) she was the victim of uninvited sexual harassment; (3)
the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of her
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employment; and (5) her employer knew or should have known of the harassment and failed to take
prompt remedial action.” Harvill v. Westward Comm’n, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005)
(quotation marks and citation omitted).
Two distinct instances of alleged sexual harassment have been asserted: (1) Willie Collins
followed Plaintiff to the bathroom on July 15, 2010; and (2) Travis McIntosh touched between her
legs in the parking lot on July 26, 2010. Even if the Court assumed Plaintiff could prove the first
four prongs of her prima facie sexual harassment claim, Plaintiff cannot prove the fifth element of
her prima facie case. Indeed, Plaintiff admitted that unless she informed her employer of the
incidents, there was no way her supervisors would have known about Collins or McIntosh’s
behavior. Plaintiff stated that she would have had to come forward and make a report of the alleged
harassment for that behavior to come to the attention of her employer. Further, she noted that she
did not inform her employer of the incidents until July 27, and after telling them, no other harassing
behavior occurred. See May v. FedEx Freight East, Inc., 374 F. App’x 510, 511 (5th Cir. 2010)
(court affirmed district court’s dismissal based on the determination that the plaintiff could not
establish a prima facie case of sexual harassment as to the fifth element because she failed to take
advantage of the corrective opportunities provided by her employer).
Accordingly, Plaintiff’s sexual harassment claim fails as she cannot meet her prima facie
burden under the facts asserted.
Retaliation Claim
The McDonnell Douglas test is applicable to Title VII unlawful retaliation cases. Byers v.
Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000). A plaintiff establishes a prima facie
case of retaliation under 42 U.S.C. § 2000e-3(a) by showing that: (1) she engaged in an activity
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protected by Title VII; (2) she was subjected to an adverse employment action; and (3) a causal link
exists between the protected activity and the adverse employment action. See Stewart v. Mississippi
Transp. Comm’n, 586 F.3d 321, 331 (5th Cir. 2009).
Here, the Court concludes that, when viewing the evidence in the light most favorable to the
nonmovant, Plaintiff has met her burden at this stage in litigation of demonstrating a prima facie
case. Plaintiff contends that one month prior to her termination, she informed the Plant Manager,
Avis Wren and Bill Malisch, that she was being sexually harassed. Her termination undisputedly
constitutes an adverse employment decision. As to the third prong, in order to establish a ‘causal
link’ as required by the third prong of the prima facie case, a plaintiff does not have to prove that
his protected activity was the sole factor motivating the employer’s challenged actions. Gee v.
Principi, 289 F.3d 342, 345 (5th Cir. 2002). Close timing between an employee’s protected activity
and an adverse action against the employee may provide the causal connection needed to make out
a prima facie case of retaliation. McCoy v. City of Shreveport, 492 F.3d 551, 562 n.28 (5th Cir.
2007); Swanson v. Gen. Srvs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997). However, if the only
evidence of a prima facie causal link is “mere temporal proximity between an employer’s knowledge
of protected activity and an adverse employment action,” then “the temporal proximity must be very
close.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S. Ct. 1508, 149 L. Ed. 2d
509 (2001) (per curiam) .
Here, the temporal proximity, one month between protected activity and Plaintiff’s removal
from her position, is enough to satisfy a prima facie case of retaliation. See Poers v. Woodlands
Religious Cmty, Inc., 323 F. App’x 300 (5th Cir. 2009) (per curiam) (holding one month span
between FMLA leave and termination sufficient to satisfy causation element of prima facie case);
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Richardson v. Prairie Opportunity, 2012 U.S. App. Lexis 8376, *10 (5th Cir. Apr. 25, 2011) (less
than two month span between the protected activity and the adverse action is sufficient temporal
proximity for a prima facie showing of causation).
Once the plaintiff makes out a prima facie case of retaliation, the burden shifts to the
employer to articulate a legitimate, non-retaliatory reason for the employment action. Aryain v.
Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008). To survive summary judgment,
plaintiff must then offer evidence that (1) the defendant’s reason is not true, but is instead a pretext
for retaliation (pretext alternative), or (2) the defendant’s reason, though true, is only one of the
reasons for its conduct, and another motivating factor is retaliation for the plaintiff engaging in
protected activity (mixed-motives alternative). See Rachid v. Jack in the Box, Inc., 376 F.3d 305,
312 (5th Cir. 2004); Smith v. Xerox Corp., 602 F.3d 320, 330-33 (5th Cir. 2010).
Defendant’s reason for Plaintiff’s removal is her complaints about and refusal to use the new
staple guns provided by the employer. Defendant also attempts to justify Plaintiff’s termination as
a reduction in force. This articulated reason satisfies Defendant’s burden of production. As such,
in order to survive summary judgment, Plaintiff must offer evidence that (1) the defendant’s reason
is not true, but is instead a pretext for retaliation (pretext alternative), or (2) the defendant’s reason,
though true, is only one of the reasons for its conduct, and another motivating factor is retaliation
for the plaintiff engaging in protected activity (mixed-motives alternative).
Plaintiff has raised a genuine issue of material fact as to the justification for her removal.
Elb Walton’s Declaration noted that he was aware of many complaint from other line workers about
using the new guns. In fact, Walton stated that management reverted back to using the old guns
from the time Plaintiff was laid off until he left the employ of AW Manufacturing in 2012. Plaintiff
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additionally noted that others were allowed to continue using the old guns as she requested prior to
termination. Moreover, Plaintiff has presented evidence that Defendant’s reduction in force
argument lacks veracity based on the number of employees at the facility per month. Indeed, Avis
Wren testified that “Tasha was laid off because of her mouth.” A jury could reasonably find that
Plaintiff suffered an adverse employment action for complaining about sexual harassment in the
workplace.
Plaintiff has presented a genuine dispute of material fact as to the retaliation claim.
Conclusion
Defendant’s Motion for Summary Judgment [29] is granted in part and denied in part.
Plaintiff has presented a genuine dispute of material fact as to whether she was retaliated against for
making sexual harassment claims.
SO ORDERED, this the 21st day of May, 2012.
/s/ Sharion Aycock
U.S. DISTRICT JUDGE
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