Equal Employment Opportunity Commission v. IPS Industries, Inc. et al
Filing
120
MEMORANDUM OPINION re 119 Order on Motion for Summary Judgment,. Signed by Michael P. Mills on 9/26/2012. (lpm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
PLAINTIFF
V.
CASE NO. 2:10-CV-168
IPS INDUSTRIES, INC. d/b/a
SPECTRUM PLASTICS, INC. d/b/a
SPECTRUM BAGS, INC.
DEFENDANT
MEMORANDUM OPINION
This cause comes before the court on the parties’ motions for summary judgment.
Spectrum Bags, Inc. (“Spectrum”) moves for summary judgment [104] on the Equal
Employment Opportunity Commission’s (“The Commission”) Title VII sexual harassment and
retaliation claims. The Commission moves for partial summary judgment [106] on various
affirmative defenses advanced by Spectrum. Having considered the parties’ submissions in this
matter, the court is prepared to rule.
On September 30, 2010, Plaintiff EEOC filed this lawsuit on behalf of four women based
on the alleged actions of a Spectrum employee, James Calhoun. The class now consists of five
women, Shequita Henderson, Keisha Anderson, Brittany Beard, Dana Murray, and Cynthia
Murphy, all temporary employees assigned to Spectrum’s distribution center in Southaven,
Mississippi during Calhoun’s employment.
The Commission initiated this action on behalf of these class members under Title VII of
the Civil Rights Act of 1964, and Title I of the Civil Rights Act of 1991, 42 U.S.C. 6 § 1981a.
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This action is authorized by 706(f)(1) and (3) of Title VII and Section 102 of the Civil Rights
Act of 1991, 42 U.S.C. § 1981a. This court has federal question jurisdiction over the action
pursuant to 28 U.S.C. § 1331.
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [104]
Spectrum is a global importer and wholesaler of plastic disposable goods, including
printed bags for industrial applications and use in retail stores, restaurants, and supermarkets. In
2008 and 2009, Spectrum operated three distribution warehouses located in Cerritos, California,
Edison, New Jersey, and Southaven, Mississippi. Due to the fluctuating nature of its business,
Spectrum relies on temporary employees provided by local staffing companies to perform the
day-to-day operations in its distribution warehouses, including fork lift drivers, office help,
shipping and receiving clerks, and quality control personnel.
Upon hire, all Spectrum employees allegedly receive copies of the employee handbook
containing the Company’s anti-harassment policy. The Company also posts copies of its antiharassment policy in the break rooms of its corporate headquarters and distribution warehouses,
including the warehouse in Southaven, Mississippi. Certain testimony in the record reveals that
the 1-800 complaint number as well as the numbers for Calhoun’s supervisors had been erased
and replaced with Mr. Calhoun’s phone number in the Southaven warehouse. Spectrum also
provides sexual harassment instruction and training to all new employees during their orientation
and to all employees company-wide every two years. The parties point to conflicting testimony
as to whether or not Calhoun received any such training. Calhoun testified that he did not
provide any such training to the class members in this case because he assumed the staffing
companies would do so.
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Spectrum employed James Calhoun as the Warehouse Manager at its Southaven,
Mississippi distribution center between August 18, 2008 and July 17, 2009. In that capacity, he
reported to Executive Vice President and General Manager Robert Bailey, who in turn reported
to Spectrum President Ben Tran. Calhoun’s job duties included overseeing the general business
operations of shipping and receiving in the Southaven warehouse. Calhoun had the authority to
request temporary employees to perform various tasks at the warehouse from two temporary
staffing companies, Working Solutions and Select Staffing. The parties dispute his authority to
hire, fire, suspend, or formally discipline any Spectrum employees. Calhoun was suspended
without pay on June 26, 2009, pending completion of an investigation into the allegations in this
matter. Spectrum made the decision to terminate Calhoun for violating its sexual harassment
policy, effective July 17, 2009.
Shequita Henderson began working for Select Staffing in December 2007. Select
Staffing assigned Henderson to Spectrum’s Southaven warehouse as a quality control clerk from
May 12, 2009 to June 9, 2009. Though Henderson received paperwork containing Spectrum’s
sexual harassment policy, she did not know whether Spectrum had such a policy and never saw
Spectrum’s bulletins displaying the policy.
Henderson testified to the following incidents of alleged harassment: (1) Calhoun offered
to take her out for drinks five to ten times; (2) Calhoun pushed his stomach against her back as
he passed between her and a table; (3) when Henderson returned from lunch with an upset
stomach, Calhoun raised her shirt, rubbed her stomach, and asked if she was pregnant.
Henderson declined each of Calhoun’s alleged invitations for drinks but never told him to stop or
that his actions were unwelcome because she contends that Calhoun changed women’s
assignments or sent them home when they turned him down. Henderson ultimately reported
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Calhoun’s behavior to Select Staffing. The next day, Calhoun allegedly filed a Personnel Action
Form terminating Henderson’s employment.
Keisha Anderson began working for Select Staffing in May 2009. Calhoun interviewed
Anderson, and Select Staffing assigned her to the Southaven warehouse as a quality control clerk
from May 12, 2009 to June 10, 2009. Spectrum provided her with documentation containing
Spectrum’s sexual harassment policy. Anderson testified to having no knowledge of the policy
or bulletins containing the policy. Anderson alleges the following instances of harassment: (1)
Calhoun called her beautiful twice; (2) he asked her out for drinks once; (3) Calhoun participated
in sexual joking with other female employees near Anderson; (4) he called her cell phone on a
Friday night; (5) he asked for a hug; (6) he called her into his office and asked for some lip gloss
from her lips; (7) and he scratched her leg. Anderson voluntarily left the company because she
was uncomfortable working for Calhoun. She did not complain to anyone at Spectrum at any
time. She did complain to someone at Select Staffing after her assignment had ended.
Brittany Beard initially met Calhoun while working at Radio Shack. Calhoun referred
her to Working Solutions, where she began working in November, 2008. Calhoun interviewed
and hired her to work in the Southaven warehouse from November 12, 2008 to December 1,
2008, and again from April 1, 2009 to June 10, 2009. Beard remembers seeing the bulletin
detailing the sexual harassment policy, but she never read the entire posting. Beard alleges
several instances of harassment including: (1) when she asked for work assignments, Calhoun
responded “maybe he just likes looking at [her].”; (2) Calhoun invited her on two businessrelated outings; (3) he called her “beautiful”, “baby”, and “baby girl” at work and in text
messages that read, “come kick it with me,” “what the biz, baby girl,” “what’s up baby girl,” and
“come on I’ll rub you.”; (4) Calhoun engaged in open sexual conversations with other employees
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regarding the size of his penis; (5) he made general physical contact such as patting her leg or
rubbing her arm during conversation; (6) he discussed his extramarital affairs with Beard.
Beard requested a second opportunity to work at Spectrum despite enduring alleged
sexual harassment during her first assignment at Spectrum. During her second assignment,
Calhoun allegedly told various truck drivers at the warehouse that Beard was jealous of other
women who came to see Calhoun at the warehouse. Beard allegedly confronted Calhoun about
these jokes because it insinuated an improper relationship between Calhoun and Beard.
Beard and a friend once attended a party at Calhoun’s house where only one other person
was present. Beard quickly left when she realized that the gathering at Calhoun’s house was not
a party. Calhoun allegedly called her after she left and told her he was upset with her. She
contends that he expressed his disappointment again the next day at work and assigned her to
apparently less desirable work “on the line”. Beard further testified that Calhoun reached around
from behind Beard sitting at her desk to give her a hug and that he slapped her behind multiple
times with his hand. Beard did not report to work at Spectrum or call in on June 11, 2009.
Calhoun asked her shortly thereafter if she wanted to return. She told him that she wanted to
return and asked him to stop touching her because it made her uncomfortable.
Calhoun terminated her employment shortly after this exchange allegedly due to
attendance issues. Burns, a Working Solutions employee, called Beard to end her assignment
June 12, 2009.
During this conversation, Beard complained of sexual harassment. Four days
later, Burns called Spectrum’s Vice President of Operations, Robert Bailey, to inform him of
Beard’s sexual harassment complaint against Calhoun. Beard filed a charge of discrimination
with the EEOC the next day, June 17, 2009. Spectrum received a copy on June 23, 2009.
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Dana Murray worked in the Southaven warehouse through Working Solutions from July
2008 to April 30, 2009. Murray testified to seeing various bulletins around the warehouse and
being uncertain as to whether or not they contained the sexual harassment policy. Murray
alleges several instances of harassment: (1) Calhoun reached from behind her and wrapped his
arms around her waist; (2) when she declined these advances and told him to stop, Calhoun
allegedly laughed and called her a chicken; (3) he asked her explicit personal questions about her
sex life with her husband on a daily basis and laughed when she told him that it was “none of his
damn business”; (4) he showed her sexually explicit videos on his personal laptop, which Murray
told Calhoun were “gross”, in response to which Calhoun laughed and called her a chicken; (5)
he showed her a picture of a man’s penis and asked her if she liked it; (6) he asked Cynthia
Murphy if she liked “big chocolate dick” within earshot of Murray; (7) he kissed her on the
cheek while she was sitting at her desk; (8) he allegedly rubbed the top of her leg while she was
sitting at her desk and laughed at her when she told him to take his hand off and not to touch her;
(9) he slapped her behind several times throughout her employment.
Murray complained to Working Solutions in February 2009 because “it kept getting
worse.” After lodging this complaint, the touching stopped for a few weeks before resuming.
On April 30, 2009, Murray took medical leave. Murray alleges that when she met with Calhoun
to discuss her return to work, he touched her and tried to rub her leg. Murray left the meeting
immediately. She contends that shortly thereafter, Calhoun sent her a text message telling her
that corporate had decided that she would not be allowed to return to work.
Although Murray admits to knowing that she could have filed an EEOC charge or
contacted someone at Spectrum while she was at work, she did not formally complain until after
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her assignment ended because she “needed her job.” Murray filed an EEOC charge on June 22,
2009. Spectrum received a copy one week later.
Cynthia Murphy began working at the Southaven warehouse through Working Solutions
in July 2008. Murphy testified that Spectrum showed her a copy of its sexual harassment policy
when she started her assignment. She remembers seeing the complaint procedure for sexual
harassment posted throughout the building. Murphy alleges several instances of harassment: (1)
Calhoun disclosed explicit details of his sex life and asked the same of her; (2) he engaged in
open conversations about the size of his penis; (3) he showed her a slideshow of women with
whom he had been having extramarital affairs; (4) Calhoun allegedly eyed Murhpy’s genitalia
while making a gesture with his tongue, a gesture Murphy interpreted as Calhoun offering to do
things beneficial to her employment in exchange for oral sex; (5) he once told her that he would
be in the warehouse by himself and that she could come by when everyone else was gone.
Murphy testified that she reported alleged sexual advances on behalf of herself as well as
her co-workers to Calhoun early in his short tenure at Spectrum. She later complained to
Spectrum Vice President Bailey in January or February of 2009. Murphy reported that she felt
that her hours were being cut because she would not “role play with Mr. Calhoun.” Bailey
denies that Murphy reported Calhoun’s alleged sexual indiscretion. Murphy also testified that
she reported Calhoun’s behavior to Bill Burns and Angela Beach at Working Solutions when her
assignment ended because she believed that her complaints to Bailey and Calhoun were the
reason for her termination. Spectrum counters that her assignment ended because the hours of
her full-time job conflicted with the time she needed to report to work at Spectrum.
Defendant Spectrum has moved for summary judgment, arguing that the EEOC is unable
to establish a prima facie case for each class member because Calhoun’s alleged conduct was not
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so severe or pervasive that it altered a term or condition of employment. Spectrum further
contends that the Faragher/Ellerth affirmative defense forecloses the Commission’s claims.
Specifically, Spectrum argues that the class members failed to take reasonable steps to report the
alleged harassment and that Spectrum took prompt remedial action once it had notice of a
complaint. The EEOC opposes summary judgment, arguing that Calhoun subjected the class to
actionable harassment under the totality of the circumstances.
Rule 56 permits summary judgment where the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). “A dispute about a material fact is ‘genuine’ if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.” Burfield v. Brown, Moore &
Flint, Inc., 51 F.3d 583, 588 (5th Cir. 1995). When ruling on a summary judgment motion, the
court must construe the facts in the light most favorable to the nonmoving party and “refrain
from making credibility determinations or weighing the evidence.” Coury v. Moss, 529 F.3d 579,
584 (5th Cir. 2008).
The nonmoving party cannot rely on metaphysical doubt, conclusive
allegations, or unsubstantiated assertions but rather must show that there is an actual controversy
warranting trial. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (internal citations
omitted).
The parties’ first point of contention is whether these claims should be considered in the
aggregate, or whether the EEOC must make a prima facie showing for each individual class
member. The EEOC instituted this action pursuant to section 706(f), which authorizes the EEOC
to bring suit against a private employer on behalf of an individual person or persons aggrieved by
the employer’s unlawful employment practices. 42 U.S.C. § 2000e-5(f)(1). “Section 706… is
addressed to vindication of individual instances of employment discrimination.”
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Equal
Employment Opportunity Commission v. Continental Oil Co. 548 F.2d 884, 887 (11th Cir. 1977).
In bringing a 706 action, “it is axiomatic that the EEOC stands in the shoes of those aggrieved
persons in the sense that it must prove all of the elements of their sexual harassment claims to
obtain individual relief for them.” E.E.O.C. v. CRST Van Expedited, Inc. 611 F. Supp. 2d 918,
929 (N. D. Iowa, 2009). “§ 706… requires individualized proof of every element of each claim.
In particular, the hostile work environment claims will not be considered in the aggregate. Each
claimant will be required to satisfy each element of the claim, including severity or
pervasiveness, based on their individual experience.” EEOC v. O’Reilly Automotive Inc. 2010
WL 5391183, *5 (S.D. Tex. 2010). This court adopts this precedent from sister circuits in
undertaking to analyze each class member’s claim individually.
A. Title VII Discrimination
Under Title VII of the Civil Rights Act of 1964, “it shall be an unlawful employment
practice for an employer… to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment because of… sex.” 42 U.S.C. §
2000e-2(a)(1). “In order to be actionable under [Title VII], a sexually objectionable environment
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 v. City of
Boca Raton 524 U.S. 775, 787 (1998). The Supreme Court has “directed courts to determine
whether an environment is sufficiently hostile or abusive by looking at all the circumstances
including the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee's work performance.” Id. at 787-788.
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Under Fifth Circuit precedent, to establish a prima facie case for supervisor sexual
harassment, the plaintiff must prove: (1) she belongs to a protected group; (2) she was subjected
to unwelcome harassment; (3) the harassment was based on sex; and (4) the harassment was so
severe or pervasive that it altered a term or condition of employment. Watts v. Kroger Co., 170
F. 3d 505, 509 (5th Cir. 1999)(emphasis added). For purposes of this motion, the parties agree
that the EEOC has satisfied the first three elements of this requisite showing.
“The determination of whether alleged conduct is sufficiently severe or pervasive is not
an exact science.…” Gibson v. Potter, 264 Fed.Appx. 397, 400, 2008 WL 276309 (5th Cir.
2008). “When the workplace is permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions of the victim's employment and
create an abusive working environment, Title VII is violated.” Harris v. Forklift Systems, Inc.
510 U.S. 17, 21 (1993).
The parties have done an exemplary job in placing before the court a plethora of case law
that supports their positions on the contested fourth element of the Commission’s prima facie
showing. The court has rigorously reviewed and applied this precedent to the allegations in this
case. Suffice it to say, the instant action is unique such that this court should make its own “factsensitive determination”. See Indest v. Freeman Decorating, Inc. 164 F.3d 258, 264 (5th Cir.
1999). Specifically, the court finds that the temporary nature of James Calhoun and the class
members’ employment distinguishes this case from existing precedent. For example, Spectrum
cites Shepard, in which the Fifth Circuit found no actionable sexual harassment where a
supervisor made several inappropriate comments; simulated looking under plaintiff’s dress and
commented that she had “big thighs” and that “your elbows are the same color as [her] nipples,”;
touched her arm on several occasions; rubbed her shoulder down to her wrist; and patted his lap
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while saying “here’s your seat” numerous times. Shepherd v. Comptroller of Public Accounts of
State of Texas, 168 F.3d 871 (5th Cir. 1999). Shepard involved an employment period of two
years, a factor that did not escape the Fifth Circuit’s consideration. Id. The allegations in this
case occurred, in most instances, within employment periods of a few months or less. The
decision in Shepard would have likely turned out differently had the alleged harassment occurred
within such a period.
Therefore, the court will analyze each claim considering “all the
circumstances”, including the temporary nature of the employment in question.
Henderson worked for Spectrum for less than one month between May 12 and June 9,
2009. Within this period, Calhoun allegedly asked her out for drinks five to ten times, rubbed
her stomach under her shirt to ask if she was pregnant, and once rubbed his stomach against her
as he passed between her and a nearby table. Given Henderson’s short employment as well as
her observation that Calhoun would either terminate or change women’s assignments for turning
down his frequent invitations, the court determines that a reasonable trier of fact could conclude
that these circumstances constitute pervasive, if not also severe, conduct that altered the
conditions of her employment and created an abusive working environment. Summary judgment
is DENIED on this claim.
Keisha Anderson also worked for Spectrum for less than a month. However, the court
does not find her allegations to be sufficiently severe or pervasive as a matter of law. The court
notes that her most severe allegations, that Calhoun asked for lip gloss off of her lips and that he
once scratched her leg, are at worst strange and sophomoric. However, scratching one’s leg does
not rise to the level of severity inherent in unwanted touching in more intimate areas. See
Harvill v. Westward Communications, L.L.C. 433 F.3d 428, 435 -436 (5th Cir. 2005). Similarly,
asking for lip gloss does not evince severe sexual harassment. Having determined that these
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allegations are not severe, the court does not find the frequency of her allegations to justify a
finding of pervasiveness that would atone for this lack of severity. Therefore, the Commission
cannot maintain a hostile work environment claim on her behalf as a matter of law. Summary
judgment is GRANTED in this regard.
Brittany Beard worked at Spectrum on two assignments, both of which lasted nearly two
months. The court, in denying summary judgment on Beard’s claim, notes that many of her
allegations are directly tied to her employment and opportunity for advancement. The Fifth
Circuit has noted that hostile work environment claims are designed to “level the playing field
for women who work by preventing others from impairing their ability to compete on an equal
basis with men.” DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 593 (5th Cir.
1995).
When Beard asked for her assignment, Calhoun allegedly responded, “maybe [I] just like
looking at [you].” Calhoun allegedly twice expressed his disappointment in her for leaving a
party at his house, shortly after which he changed her assignment to less desirable work. He
terminated her employment shortly after she refused to return to work unless he stopped touching
her. Thus, Beard’s employment at every turn seemed to be in some way contingent on her
receptiveness to Calhoun’s advances. In light of the aforementioned allegations, the court finds
that Calhoun destroyed Beard’s opportunity for advancement and impaired Beard’s ability to
compete on an equal basis with men because of her sex.
Therefore, the nature of these
allegations lends itself to being particularly severe, if not also pervasive.
Assuming, arguendo, that these facts are insufficient to create a genuine dispute of fact,
the frequency of Calhoun’s alleged texts and unwanted physical advances coupled with the
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aforementioned allegations would allow a reasonable trier of fact to conclude that a hostile work
environment existed at Spectrum. Summary judgment is DENIED on this claim.
Murray worked for Spectrum for nearly a year between July 2008 and April 30, 2009.
Calhoun allegedly laughed at Murray and called her a chicken on several occasions when she
protested Calhoun’s behavior.
Calhoun allegedly slapped Murray’s behind “several times”
during her employment. After Murray took medical leave, Calhoun apparently began rubbing
her leg in an April 30th meeting in which they discussed her return to work.
The court finds that these allegations pose a similar issue of fact present in Beard’s
allegations. In particular, the court is of the opinion that when a supervisor makes unwanted
physical advances on an employee during a meeting affecting her terms of employment, a
genuine issue of material fact exists with regard to the severity of the conduct. This occurrence
coupled with her other allegations creates a genuine issue of material fact with regard to both the
severity and pervasiveness of Calhoun’s conduct towards Murray.
Summary judgment is
DENIED on this claim.
Cynthia Murphy worked for Calhoun for nearly seven months.
Calhoun’s alleged
behavior towards Cynthia Murphy is highly explicit and inappropriate. The court is aware that
Calhoun’s alleged comments may not be in and of themselves actionable under a hostile work
environment claim. However, Ms. Murphy alleges that Calhoun cut her hours due to her
unwillingness to “role play” with Calhoun, and that she interpreted one of Calhoun’s gestures as
an offer to make beneficial employment decisions for her in exchange for oral sex. Normally,
the court would consider such assertions standing alone to be unsubstantiated such that they
should be disregarded for purposes of a motion for summary judgment. However, the court does
not find them unsubstantiated in light of the number of sexually explicit comments and gestures
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directed toward her. Therefore, the court finds these assertions of fact to be severe such that
summary judgment is inappropriate on Murphy’s claim.
B. Faragher Ellerth Affirmative Defense
Spectrum asserts an affirmative defense pursuant to Faragher and Ellerth, comprised of
two elements: (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 preventive or corrective opportunities provided by the employer or to avoid
harm otherwise. Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998). Spectrum asserts
that its promulgated harassment policy is enough to satisfy the first prong. While precedent
suggests that such a policy is a substantial consideration in determining whether the defendant
exercised reasonable care to prevent such behavior, there is a genuine dispute of fact that
suggests that Spectrum may not have promptly corrected such behavior. See Faragher, 524 U.S.
at 745; Casiano v. AT&T Corp., 213 F.3d 278, 286 (5th Cir. 2000).
This affirmative defense fails on each claim for purposes of this motion due to Murphy’s
testimony that she reported, on behalf of the class members and herself, Calhoun’s behavior to
Vice President Bailey in January or February of 2009. A reasonable jury might accept Murphy’s
testimony, and, in doing so, reasonably conclude that the four or five month lapse between
Murphy’s complaint and Calhoun’s suspension was not an exercise of reasonable care to correct
the behavior, notwithstanding Bailey’s denial that Murphy ever complained. Therefore, having
noted a genuine dispute of fact on the first element of this defense, the court declines to engage
in further analysis under the second prong in denying summary judgment.
C. TITLE VII RETALIATION
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The EEOC has brought two claims of retaliation on behalf of Beard and Murphy. The
Commission contends that terminating a temporary employee is an adverse employment action.
It maintains that Beard engaged in protected activity when she opposed Calhoun’s alleged
harassment, and that the timing alone can be evidence of causation. With regard to Murphy, the
EEOC asserts that she engaged in protected activity when she allegedly complained to Bailey in
February, 2009. Spectrum argues that an individual’s termination from a temporary position is
not an adverse employment action and that “it would be a frustrating expansion of the law… if
an entity were essentially required to make a temporary worker a permanent employee merely
because they lodged a complaint of discrimination or harassment.”
Title VII provides, “It shall be an unlawful employment practice for an employer to
discriminate against any of his employees … because he has opposed any practice made an
unlawful employment practice by this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under this
subchapter.” 42 U.S.C.A. § 2000e-3. To establish a prima facie case of retaliation in an
opposition case, one in which the plaintiff does not allege discrimination following a formal
charge, the plaintiff must show that: (1) she participated in activity protected by Title VII; (2) her
employer took an adverse employment action against him; and (3) a causal connection exists
between the protected activity and the adverse employment action. McCoy v. City of Shreveport,
492 F.3d 551, 556 -557 (5th Cir. 2007). If the plaintiff establishes a prima facie case, the burden
then shifts to the defendant to articulate a legitimate, non-retaliatory reason for the adverse
employment action. Id. If the employer meets its burden of production, the plaintiff then bears
the ultimate burden of proving that the employer’s proffered reason is not true but instead is a
pretext for the real… retaliatory purpose. Id.
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An employee has engaged in protected activity if she has opposed any practice made an
unlawful employment practice under 42 U.S.C. § 2000e-3(a).
To satisfy this “opposition
requirement”, the plaintiff need not show that the practice was in fact unlawful, but only that she
had a reasonable belief that the employer was engaged in unlawful employment practices. Turner
v. Baylor Richardson Medical Center, 476 F.3d 337, 348 (5th Cir. 2007). The Fifth Circuit has
stated, in essence, that there is “no authority for the proposition that rejecting sexual advances
constitutes a protected activity for purposes of a retaliation claim under Title VII.” LeMaire v.
Louisiana Dept. of Transp. and Development, 480 F.3d 383, 389 (5th Cir. 2007). However,
informal complaints may suffice so long as they concern some violation of law. Hagan v.
Echostar Satellite, L.L.C. 529 F.3d 617, 626 (5th Cir. 2008).
Beard did not formally report any alleged sexual harassment to Spectrum, Working
Solutions, or the EEOC until after her assignment at Spectrum ended. However, she informally
confronted Calhoun about his alleged insinuations that he and Beard were in a relationship; she
told Calhoun not to touch her again after he reached around from behind her; and she told
Calhoun that she would only return to work if he stopped touching her. The court finds these
activities to be more than mere rejections such that they fall within Title VII’s purview. Taking
Beard’s allegations as true, the court further determines that she reasonably believed that
Calhoun’s behavior was unlawful. Therefore, Beard engaged in protected activity.
Similarly, Murphy told Calhoun to discontinue certain behavior, and she later complained
to him about his conduct on behalf of herself and her co-workers. She also complained to
Working Solutions officials shortly before her assignment ended.
satisfies the first prong of her prima facie case.
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Therefore, Murphy also
Turning now to the second prong, adverse employment action, the court rejects
Spectrum’s argument that terminating a temporary employee is not an adverse employment
action. “It is beyond dispute that a termination constitutes an adverse employment action.”
Pegram v. Honeywell, Inc., 361 F.3d 272, 282 -283 (5th Cir. 2004). Temporary employment is
an important thread in the fabric of our economy, not a license to trample roughshod on Title
VII’s protections. This reasoning does nothing to suggest that an employer will have to promote
a temporary employee because he or she lodged a complaint of harassment. The court simply
holds that an employer may not terminate such employment on account of same. Therefore,
since Calhoun terminated Beard and Murphy, both have established the second prong of their
prima facie case.
With regard to the third element, causation, “Close timing between an employee's
protected activity and an adverse action against [her] may provide the causal connection required
to make out a prima facie case of retaliation. However, once the employer offers a legitimate,
nondiscriminatory reason that explains both the adverse action and the timing, the plaintiff must
offer some evidence from which the jury may infer that retaliation was the real motive.”
Swanson v. General Services Admin. 110 F.3d 1180, 1188 (5th Cir. 1997). However, “in order to
establish the causation prong of a retaliation claim, the employee should demonstrate that the
employer knew about the employee’s protected activity.” Manning v. Chevron Chemical Co.,
LLC, 332 F.3d 874, 883 (5th Cir. 2003).
Calhoun terminated Beard’s assignment almost immediately following her protest against
his unwanted advances. An inference of causation is thus established. Spectrum has advanced a
non-discriminatory reason, attendance, for her termination.
Therefore, in order to survive
summary judgment, the Commission must now present some evidence from which a reasonable
17
juror could infer that this reason was a pretext for retaliation. It appears that Calhoun intended
for Beard to return to the company after her medical leave. A reasonable juror could conclude
that this proffered reason is pretextual in light of Calhoun’s abrupt decision to terminate Beard
immediately following an apparent intent to continue her employment. Summary judgment is
DENIED on Beard’s retaliation claim.
The company ended Murphy’s assignment shortly after she complained to Vice President
Bailey. The court has found no proof in the record to indicate that Calhoun knew about this
protected activity. Therefore, Murphy’s claim cannot withstand summary judgment based on
this activity. She also asserts that she complained directly to Calhoun on behalf of herself and
others within approximately six weeks of Mr. Calhoun’s employment beginning in August,
2008. Murphy’s assignment ended on February 20, 2009. The temporal proximity required to
give rise to an inference of causation must be “very close”. Clark County School Dist. v.
Breeden, 532 U.S. 268, 273 (2001). The Court noted that three and four month periods between
the protected activity and the adverse employment action are insufficient for such an inference to
arise. Id. Therefore, Murphy’s termination having occurred, at minimum, five months following
this protected activity, her retaliation claim has no support in this regard. Finding no other
grounds on which to infer the requisite element of causation, the court determines that summary
judgment is GRANTED on the Commission’s retaliation clam brought on behalf of Murphy.
The Equal Employment Opportunity Commission’s Motion for Partial Summary
Judgment on Defendant’s Affirmative Defenses [106]
The Commission moves for partial summary judgment on the following issues raised by
Defendant in its Answer to the Complaint:
(1) First Affirmative Defense – Plaintiff has not properly carried out its
responsibilities precedent to bringing this action, including, without limitation,
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providing Defendant with reasonable notice of the claims alleged in the lawsuit,
reasonably investigating the claims alleged in the lawsuit, and making
reasonable efforts to conciliate the claims in the lawsuit.
(2) Second Affirmative Defense – All administrative prerequisites to bringing suit,
including Plaintiff’s obligation to engage in good faith conciliation before filing
suit, have not been met by Plaintiff.
(3) Third Affirmative Defense – Plaintiff’s harassment claims are barred because
Defendant exercised reasonable care to prevent and promptly correct any
harassing behavior, Charging Parties and purported class members
unreasonably failed to take advantage of preventative or corrective
opportunities provided by Defendant or to otherwise avoid harm, and thus
Defendant is entitled to the affirmative defense recognized by the United States
Supreme Court in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) and
Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
(4) Sixth Affirmative Defense – Some or all of Plaintiff’s claims are barred because
appropriate administrative remedies have not been properly and fully exhausted.
(5) Seventh Affirmative Defense – The injuries and damages allegedly sustained by
the Charging Parties and other purported class members, if any, may have been
caused or contributed to by the conduct of third parties for whom Defendant is
not responsible.
(6) Ninth Affirmative Defense – Any award of punitive damages, as requested by
Plaintiff, would violate the constitution of the United States of America. While
denying that Plaintiff is entitled to punitive damages, Defendant affirmatively
pleads that an award of punitive damages in an amount in excess of that
proportion permitted by the laws of the United States would violate the Due
Process protections of the U.S. Constitution. Further, Mississippi laws and
procedures governing punitive damages are violative of the 6th Amendment,
8th Amendment, the Due Process and Equal Protection [sic] clause of the 14th
Amendment, and other provisions, of the United States Constitution in Article
III, Section 14 and other provisions of the Constitution of the State of
Mississippi.
(7) Eleventh Affirmative Defense – Defendant pleads all applicable statutes of
limitations.
(8) Twelfth Affirmative Defense – To the extent the Complaint asserts or attempts
to assert claims under Title VII other than those asserted in a timely charge of
discrimination, such claims cannot be maintained.
(9) Thirteenth Affirmative Defense – There was no tangible employment action as
to some or all of the individuals identified in the Complaint.
(10) Fourteenth Affirmative Defense – Because Defendant has not yet had an
opportunity to conduct any discovery in this matter, and so as to not waive any
other applicable affirmative defenses set forth in Rules 8(c) and 12(b), Federal
Rules of Civil Procedure, which may be shown to apply by future discovery, all
defenses set forth in Rules 8(c) and 12(b) are incorporated herein by reference.
(11) Fifteenth Affirmative Defense – Defendant reserves the right to assert further
affirmative defenses as they become evident through discovery or investigation.
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In the interest of brevity, the court will present relevant factual background throughout its
analysis of these numerous claims.
Turning now to the first and second affirmative defenses, the Commission asserts that it
has fulfilled all conditions precedent in this case, including good faith reconciliation. Prior to
bringing suit, the Commission is required to satisfy numerous conditions, including good faith
conciliation. See 42 U.S.C. § 2000e-5(f)(1). In evaluating whether the EEOC has adequately
fulfilled this statutory requirement, the fundamental question is the reasonableness and
responsiveness of the EEOC's conduct under all the circumstances. EEOC v. Klingler Electric
Corp., 636 F.2d 104, 107 (5th Cir. 1981). In ordering the commission to engage in good faith
conciliation efforts, this court previously determined that, “In the present action, it is clear the
EEOC did not make a good-faith attempt at conciliation.” See Doc. [13]. The court, in framing
this issue most favorably to the non-movant, determines that such an order does not necessarily
give the Commission a clean slate on which to contest this affirmative defense. The court
determines that this initial failure alone creates a genuine dispute of fact as to whether the
Commission’s conduct was reasonable under all the circumstances.
Therefore, summary
judgment is DENIED on this affirmative defense.
Spectrum asserts as its sixth and eleventh defenses that the class members did not
adequately exhaust administrative remedies and that the statutes of limitations had run prior to
the Commission filing suit.
The Commission counters that the statutes of limitations and
exhaustion of administrative remedies do not apply to commission enforcement actions. While
the court finds no authority to suggest that the class members or the Commission must
individually exhaust administrative remedies in this case, the Commission has its own set of
prerequisite burdens on which the court has denied summary judgment, supra. The limitations
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defense requires an analysis in conjunction with the parties’ next point of contention, Spectrum’s
twelfth affirmative defense on which the parties dispute the applicability of the so-called
“Single-Filing Rule”.
Spectrum argues that those class members who did not file a charge of discrimination
may not “piggyback” under the single-filing rule on the claims of the two women, Beard and
Murphy, who did file a timely charge. Three conditions must be satisfied before a plaintiff may
invoke the single filing rule: (1) the plaintiff must be similarly situated to the person who
actually filed the EEOC charge; (2) the charge must have provided some notice of the collective
or class-wide nature of the charge; (3) the individual who filed the EEOC charge must actually
file a suit that the piggybacking plaintiff may join. Price v. Choctaw Glove & Safety Co., Inc.
459 F.3d 595, 599 (5th Cir. 2006). On the one contested element in this regard, Spectrum asserts
that, “The EEOC’s motion fails because it offers no evidence… that Ms. Murphy, Ms. Anderson,
and Ms. Henderson are all similarly situated such that they may avail themselves of a charge
filed by Ms. Beard or Ms. Murray.” While the Commission did not specifically address this
element beyond conclusory assertions in the instant motion for summary judgment, the court
finds, sua sponte, that this element is markedly satisfied. All but one of the class members were
a quality control clerk. Murray was an office clerk. All of the class members allege similar acts
of indiscretion during their employment under Calhoun at the Southaven, MS Spectrum
warehouse.
Therefore, the class members are similarly situated and the remaining class
members may piggyback off of Beard and Murray if they filed a timely charge with the EEOC.
“In order to sustain a Title VII claim of sexual harassment, a plaintiff must file a charge
of discrimination with the EEOC within 180 days of the alleged unlawful employment practice.”
Waltman v. International Paper Co. 875 F.2d 468, 474 (5th Cir. 1989)(quoting 42 U.S.C. §
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2000e-5(d)). The limitations period commences on the date that the discriminatory act occurred.
Id. The Fifth Circuit recognizes an equitable exception to this limitation “where the unlawful
employment practice manifests itself over time, rather than as a series of discrete acts.” Id. The
Supreme Court has held that “hostile environment claims are different in kind from discrete acts.
Their very nature involves repeated conduct.” National R.R. Passenger Corp. v. Morgan 536
U.S. 101, 115 (2002). Therefore, since a hostile work environment claim manifests itself over
time, the exception, known as the continuing violation exception, applies. A continuing violation
requires the plaintiff to show that at least one incident of harassment occurred within the 180 day
period. Id. at 476-475.
Undisputed proof in this case demonstrates that Ms. Beard alleges episodes of harassment
occurring during her second period of employment at Spectrum between April 1, 2009 and June
10, 2009. She filed a charge with the EEOC in this matter on June 17, 2009. Therefore, this
claim was timely filed because at least one alleged episode of harassment occurred during this
period, the entirety of which falls within 180 days of June 17, 2009, the date of her filing. The
evidence further shows that Calhoun allegedly subjected Murray to harassment on April, 30
2009. She filed her charge with the Commission on June 22, 2009. Having satisfied the 180 day
requirement, both Murray and Beard have filed timely charges on which the remaining class
members may “piggyback”. Therefore, summary judgment is GRANTED inasmuch as it seeks
judgment as a matter of law on Spectrum’s sixth, eleventh, and twelfth affirmative defenses.
Spectrum asserts in its seventh affirmative defense that the damages and injuries
allegedly sustained by the class members may have been caused by third parties, namely, the two
temporary employment agencies in question. In its motion for summary judgment, the
Commission places before the court an analysis of whether or not Spectrum employed the class
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members under a joint employer theory. While this analysis is based on various contested issues
of fact, Spectrum concedes that it is subject to liability under such an analysis. In reply, the
Commission therefore argues a failure to join under Fed. R. Civ. P. 19. The court does not find
such an assertion relevant to this defense, nor does it find a reply brief to be the proper avenue by
which to place such a theory before the court. Therefore, summary judgment is DENIED on this
claim.
Spectrum’s third affirmative defense asserts the Faragher Ellerth defense on which the
court has previously addressed existing genuine issues of fact, supra. In light of such analysis,
summary judgment is DENIED on this defense.
Spectrum’s thirteenth affirmative defense is that some or all of the class members were
not subject to adverse employment actions. Spectrum contends that no causal link exists to
constitute an adverse employment action. However, an adverse employment action is adverse
despite its cause. Causation is a distinctly separate element than the one addressed in this
defense. Calhoun terminated Beard, Murray, Murphy, and Henderson. The court has previously
noted that termination is an adverse employment action. 361 F.3d at 282-283. Finding no
genuine dispute of material fact on these four terminations, summary judgment is GRANTED on
this affirmative defense as it relates to the claims brought on behalf of Beard, Murray, Murphy,
and Henderson. This inquiry is moot as it relates to Anderson as the court has dismissed the
Commission’s claim brought on her behalf.
Spectrum asserts in its ninth affirmative defense that an excessive award of punitive
damages would violate the United States Constitution and that there are inadequate safeguards
under Mississippi law to prevent such a result.
The Commission maintains that punitive
damages may be awarded against an employer that engaged in unlawful discrimination. 42
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U.S.C. § 1981a(b)(1). The court finds this inquiry to be premature until a jury returns a verdict
for punitive damages, not to mention liability. Therefore, summary judgment on this defense is
DENIED at this juncture.
In its fourteenth and fifteenth defenses, Spectrum reserves the right to assert additional
defenses, incorporating by reference all available defenses set forth in Rules 8(c) and 12(b). The
Commission’s motion for summary judgment on these defenses is dismissed as moot in light
Spectrum’s stated intention not to assert additional defenses.
In light of the foregoing, Spectrum’s motion for summary judgment [104] is GRANTED
in part and DENIED in part. Judgment as a matter of law is hereby entered on the Commission’s
Title VII discrimination claim on behalf of Ms. Anderson as well as the Commission’s Title VII
retaliation claim on behalf of Ms. Murphy. All other portions of the motion are DENIED. The
Commission’s motion for summary judgment [106] is GRANTED in part and DENIED in part.
Judgment as a matter of law is hereby GRANTED as it relates to Spectrum’s sixth, eleventh,
twelfth, and thirteenth affirmative defenses. Same is DENIED on Spectrum’s first, second, third,
and seventh defenses. The Commission’s motion is dismissed as moot as it relates to Spectrum’s
fourteenth and fifteenth defenses in light of Spectrum’s stated intention not to assert further
affirmative defenses. Pursuant to Fed. R. Civ. P. 58, a separate order shall issue accordingly.
SO ORDERED, this the 26th day of September, 2012.
/s/ MICHAEL P. MILLS
CHIEF JUDGE
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
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