Bustillos v. Mississippi Valley State University et al

Filing 46

MEMORANDUM OPINION re 45 Order on Motion for Summary Judgment, Order on Motion for Leave to File. Signed by District Judge Sharion Aycock on 1/9/2013. (sba)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
TONY BUSTILLOS
v.

PLAINTIFF
CIVIL ACTION NO.: 4:12-CV-007-SA-JMV

MISSISSIPPI VALLEY STATE UNIVERSITY, ET AL.

DEFENDANTS

MEMORANDUM OPINION
Before the Court is a Motion for Summary Judgment [28] filed by Defendants Mississippi
Valley State University and Bryce Lowe. Also before the Court is a Motion for Leave to File
Surrebuttal Memorandum [37] by Plaintiff Tony Bustillos. After considering the motions, response,
rules, and authorities, the Court is prepared to rule.
BACKGROUND FACTS & PROCEDURAL HISTORY
Plaintiff Tony Bustillos began working for Defendant Mississippi Valley State University
(MVSU) as a dorm monitor in early 2005. Bustillos alleges that almost immediately after beginning
his employment with MVSU, Bryce Lowe, MVSU’s Director of Residential Life/Student Housing,
began sexually harassing him. As the Director, Lowe occupied a position of authority directly above
Bustillos’ immediate supervisor.
Bustillos alleges that Lowe continuously harassed him by making lewd and obscene
comments of a sexual nature, sexual advances, requests for pictures of his genitalia, and unwelcome
physical touching.1 Bustillos further alleges that Lowe constantly threatened him with termination.
Bustillos alleges that in November 2010, Lowe asked him to step outside after a dorm
meeting. Lowe informed Bustillos that he had heard that Bustillos had taken an extra fifteen minutes

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Bustillos’ description of Bryce’s harassment in his deposition is considerably more lurid,
however, it is not necessary to this opinion and will not be repeated.

for his lunch break, but “that’s okay. If you just let me suck your dick, we’ll call it a day.”
Bustillos said that he “blew a cap” and told Lowe “I done told you about this ol’ punk-ass [shit]”
and “Get away from me with that.” He also told Lowe “You need to stay away from me with that
bullshit.” Two days later, on November 16, 2010, Lowe recommended that Bustillos be suspended
without pay for five days for exceeding his break time, using profane language, threatening his
supervisor, and improperly exiting the building through an emergency exit door. Bustillos’
suspension was approved by Dr. Johnny D. Jones, the Vice-President of Student Affairs, without
Bustillos’ being afforded an opportunity to present his story of what happened.
On November 22, 2010, Bustillos filed a charge of discrimination with the EEOC, alleging
that he had been suspended for refusing to go along with Lowe’s sexual advances. On August 1,
2011, Bustillos was moved from working the afternoon shift to the night shift allegedly due to
excess absenteeism on Mondays. Bustillos claims the night shift is a more undesirable assignment
and that the shift change was in retaliation for his filing an EEOC charge. Bustillos filed the instant
suit against MVSU and Lowe, alleging sexual harassment and retaliation in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000, et seq. and 42 U.S.C. § 1983.
SUMMARY JUDGMENT STANDARD
“A party may move for summary judgment, identifying each claim or defense—or the part
of each claim or defense—on which summary judgment is sought.” FED. R. CIV. P. 56(a). “The
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.” Id. “An issue of material
fact is genuine if a reasonable jury could return a verdict for the nonmovant.” Agnew v. Washington
Mut. Fin. Group, LLC, 244 F. Supp. 2d 672, 675 (N.D. Miss. 2003) (citing Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).
“A party asserting that a fact cannot be or is genuinely disputed must support the assertion
by: (A) citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing
that the materials cited do not establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the fact.” FED. R. CIV. P. 56(c)(1).
“Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately substitute for specific facts showing a
genuine issue for trial.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
DISCUSSION
Motion for Leave to File Surrebuttal [37]
Plaintiff has filed a Motion for Leave to File a Surrebuttal, asserting that “Defendants’
Rebuttal Memorandum basically contained a summary judgment request on two additional claims
for which Defendants had not previously moved for summary judgment.” Defendants have not
opposed the motion. Upon due consideration, the Court finds that Plaintif’s motion should be
granted; the Court considered the proffered surrrebuttal in considering the Defendants’ Motion for
Summary Judgment.
Motion for Summary Judgment [28]
I.

Title VII Claims
A.

Bryce Lowe

Bustillos has stipulated that his Title VII claims against Bryce Lowe should be dismissed.

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Accordingly, Defendants’ Motion for Summary Judgment is granted as to this claim.
B.

MVSU

Bustillos brings claims against MVSU for both sexual harassment and retaliation in violation
of Title VII.
1.

Sexual Harassment

To prove Bustillos’ sexual harassment claim, he must establish that (1) he belongs to a
protected class; (2) was subject to unwelcome harassment; (3) based upon sex; (4) the harassment
affected a term, condition, or privilege of his employment; and (5) the employer knew or should
have known of the harassment and failed to take prompt remedial action. Watts v. Kroger Co., 170
F.3d 505, 509 (5th Cir.1999). However, where—as here—the alleged harasser has supervisory
authority over the employee, only the first four elements need to be satisfied. Id. To prove the
harassment affected a term, condition, or privilege of employment, Bustillos must prove that it either
resulted in a tangible employment action (quid pro quo) or was severe or pervasive (hostile work
environment). Burlington Indus., Inc. v. Ellreth, 524 U.S. 742, 753-54, 118 S. Ct. 2257, 141 L. Ed.
2d 633 (1998).
The first task of the Court, when evaluating a claim of sexual harassment under Title VII,
is to “determine whether the complaining employee has suffered a ‘tangible employment action.’”
Williams v. Barnhill's Buffet, Inc., 290 F. App’x. 759, 761 (5th Cir. 2008) (citing Casiano v. AT&T
Corp., 213 F.3d 278, 283 (5th Cir. 2000)). “If [he] has, [his] suit is classified as a ‘quid pro quo’
case; if [he] has not, [his] suit is classified as a ‘hostile environment’ case.” Williams, 290 F. App’x.
at 761. A “tangible employment action” is defined as “a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different responsibilities,

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or a decision causing a significant change in benefits.” Ellreth, 524 U.S. at 761, 118 S. Ct. 2257. It
is the “means by which the supervisor brings the official power of the enterprise to bear on
subordinates.” Id. at 762, 118 S. Ct. 2257. “A tangible employment action in most cases inflicts
direct economic harm.” Id. In his Complaint, Bustillos asserts claims for both quid pro quo sexual
harassment and hostile work environment sexual harassment.2
For the first time in its reply brief, MVSU argues that Bustillos’ quid pro quo claim is not
viable because a suspension without pay is not a “tangible employment action.” Although this
argument was not properly raised in the initial motion, the Court will nonetheless address it for the
sake of completeness. See Williams, 290 F. App’x at 761 (“In evaluating a claim of sexual
harassment under Title VII, courts must first determine whether the complaining employee has
suffered a ‘tangible employment action.’”).
The Supreme Court noted in Ellerth that, “Dock[ing] another’s pay” is a “direct economic
harm” that can only be inflicted by a supervisor. Ellerth, 524 U.S. at 762, 118 S. Ct. 2257.
Moreover, several courts of appeal have considered this issue and held that a suspension without pay
is a tangible employment action. See e.g. Passananti v. Cook County, 689 F.3d 655, 671 (7th Cir.
2012); Howington v. Quality Restaurant Concepts, LLC, 298 F. App’x 436, 442 (6th Cir. 2008);
Jin v. Metro Life Ins. Co., 310 F.3d 84, 100 (2d Cir. 2001); see also Cotton v. Cracker Barrel Old
Country Store, Inc., 434 F.3d 1227, 1231 (11th Cir. 2006) (“An employment decision that alters the

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Although MVSU argues in its reply memorandum that Bustillos did not assert a quid pro
quo claim in his Complaint, the Court finds this contention without merit. While the Complaint
does not contain the words “quid pro quo,” the Complaint alleges that “his suspension was the
result of his not going along with Defendant Lowe’s sexual advances.” Cf. Portis v. First Nat’l
Bank of New Albany, 34 F.3d 325, 332 n.14 (“A plaintiff need not use the magic words ‘hostile
work environment’ to raise this claim.”).
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employee’s compensation qualifies as a tangible employment action.”).
Defendants argue that a tangible employment action must be an “ultimate employment
decision,” which the Fifth Circuit has defined as “decisions such as hiring, granting leave,
discharging, promoting or compensating.” McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th
Cir. 2007). The Court has not been provided with nor been able to locate any Fifth Circuit authority
discussing the relationship between an ultimate employment decision and the tangible employment
action standard set out in Ellerth. See McKenzie v. Collins, 2008 WL 2705530 (S.D. Miss. 2008)
(discussing cases). However, even assuming that the standards are identical, Defendants’ argument
fails because the Fifth Circuit has held that a five-day unpaid suspension is an ultimate employment
decision. Felton v. Polles, 315 F.3d 470, 487 (5th Cir. 2002), overruled on other grounds by
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 165 L. Ed.
2d 345 (2006); see also Moore v. True Temper, 2011 WL 4498882 (N.D. Miss. Sept. 27, 2011)
(finding unpaid suspension can be an ultimate employment decision), pet. for interlocutory appeal
denied by, 2011 WL 5507401 (N.D. Miss. Nov. 10, 2011) (“A substantial ground for difference of
opinion as to whether a five day suspension is an ultimate employment decision does not exist under
Fifth Circuit precedent). Accordingly, the Court finds that a five-day suspension without pay is a
“tangible employment action” sufficient to support a claim for quid pro quo sexual harassment, and
MVSU is not entitled to summary judgment as to this claim.
Regarding Bustillos’ alternative claim that he was subjected to sexual harassment based on
a hostile work environment, MVSU asserts only that Bustillos cannot show, as part of his prima
facie case, that MVSU knew or should have known of the harassment and failed to take prompt

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remedial measures, contending that he never reported the harassment.3 However, as noted above,
because Bustillos’ alleged harasser is a supervisor, he is not required to offer such proof such as part
of his prima facie case. Watts, 170 F.3d at 509; see also Woods v. Delta Beverage Group., Inc., 274
F.3d 295, 298 n.2 (5th Cir.2001) (highlighting the Watts distinction between supervisor and
co-worker harassment). Consequently, MSVU is not entitled to summary judgment on Bustillos’
sexual harassment claim based on a hostile work environment.
2.

Title VII Retaliation

Bustillos also brings a claim for unlawful retaliation, alleging that he was transferred to the
night shift in retaliation for filing his EEOC complaint. According to an affidavit from Frank
Sowell, the director of Human Resources at MVSU, Bustillos was moved to the night shift due to
his failure to be punctual and missing Mondays on a regular basis. Notably, however, neither side
has proferred evidence regarding who ultimately made the decision to transfer Bustillos. To
establish a prima facie case of retaliation under Title VII, Bustillos must show (1) he engaged in
statutorily protected activity, (2) he suffered an adverse employment action, and (3) there is a causal
connection between the protected activity and the adverse employment action. Mayberry v. Vought
Aircraft Co., 55 F.3d 1086, 1092 (5th Cir. 1995). Summary judgment is appropriate if the plaintiff
cannot support all three elements. Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 331 (5th Cir.
2009). However, if a plaintiff establishes a prima facie case, “the burden shifts to the employer to

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The Court notes, for clarity, that MVSU did not assert the Faragher/Ellerth affirmative
defense, which allows an employer to avoid vicarious liability on a hostile work environment
claim if it proves by a preponderance of the evidence both that: (1) the employer exercised
reasonable care to prevent and correct promptly any such sexual harassment, and (2) the
employee unreasonably failed to take advantage of any preventative or corrective opportunities
provided by the employer. Casiano, 213 F.3d at 284.
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provide a ‘legitimate, non-retaliatory reason for the adverse employment action.’” Hernandez v.
Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012) (quoting Long v. Eastfield College, 88 F.3d
300, 304-05 (5th Cir. 1996)).
Once the employer does so, the burden shifts back to the plaintiff to offer evidence
demonstrating a genuine issue of material fact 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) Rachid v. Jack in the Box, Inc., 376 F.3d
305, 312 (5th Cir. 2004); see also Smith v. Xerox Corp., 602 F.3d 320, 331-32 (5th Cir. 2010).
MVSU does not dispute that Bustillos engaged in protected activity by filing an EEOC
charge, but challenges whether he can satisfy the second and third elements of his prima facie case.
Defendant first argues that a shift change is not an adverse employment action, relying on McCoy
v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007), for the proposition that “[a]dverse
employment actions include only ultimate decisions such as hiring, granting leave, discharging,
promoting, or compensating.” However, in the same paragraph, the McCoy court recognized that
the Supreme Court had “abrogated [this] approach in the retaliation context” and defined an adverse
employment action as “any action that ‘might well have dissuaded a reasonable worker from making
or supporting a charge of discrimination.’” McCoy, 492 F.3d at 559 (quoting Burlington Northern
& Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L .Ed. 2d 345 (2006)). Under
this standard, and in the absence of citation to authority holding to the contrary, the Court finds that
an issue of fact exists as to whether a transfer to the night shift might dissuade a reasonable worker
from making or supporting a charge of discrimination.

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Nonetheless, the Court finds that Plaintiff has failed to produce evidence of a “causal link”
between the protected activity and the adverse employment action. Plaintiff filed his EEOC
complaint on November 22, 2010, and his shift was changed over eight months later. Consequently,
Plaintiff is unable to demonstrate causation through temporal proximity between the protected
activity and the adverse employment action. See Roberts v. Unitrin Specialty Lines Ins. Co., 405
F. App’x 874, 879-80 (5th Cir. 2010) (finding that an eight month span between the alleged
protected activity and termination “negate[s] any argument that a causal connection existed between
the activities and the termination”). While Plaintiff argues that August 2011 was the first time the
Defendants had an opportunity to change his contract after he filed his charge of discrimination, this
situation, standing alone, has been held insufficient to justify an exception to the requirement of true
temporal proximity. Sanders v. Leake Cnty. School Dist., 546 F. Supp. 2d 351, 360 (S.D. Miss.
2008) (rejecting argument that non-renewal of contract “at the first available opportunity,” ten
months after filing EEOC charge, justified departure from rule that temporal proximity must be
“very close” to show causation). Furthermore, Plaintiff’s contract is not included in the record, and
as Defendants point out, the Plaintiff has presented no evidence that the contract even mentioned
his work schedule. Finally, the record does not speak to who actually made the decision to change
the Plaintiff’s work schedule. Accordingly, the Court finds that the Plaintiff has failed to offer any
evidence of a causal relationship between his filing of an EEOC charge and his allegedly retaliatory
shift change.
Moreover, even if the Plaintiff could establish a prima facie case, MVSU has produced a
legitimate, non-discriminatory reason for the shift change: that Plaintiff missed and/or failed to be
punctual on Mondays. MVSU relies on two performance evaluations. The first evaluation was

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completed in May 2010 by Christopher Taylor, who rated Bustillos’ Attendance/Punctuality as
“unsatisfactory,” noting that Bustillos “comes to work but arrives to work late at least twice a week.
He has missed a lot of Mondays off work this semester.” A second evaluation was completed on
February 25, 2011, by Roberta Hines, which rated Bustillos’ Attendance/Punctuality as
“satisfactory,” but noted that “I feel the reason for the increase of absents is due to his daughter’s
accident.” The February evaluation also contains handwritten remark by Lowe, which states “I
disagree. Mr. Bustillos was reported by Mrs. Hines for taking extended breaks and reporting to
work late or leaving early.” MVSU has additionally produced an affidavit from its director of
human resources which avers that “it is very important for [a Dorm Monitor] to be at his position
during the day to monitor students. As a result of his failure to be punctual and missing Mondays
on a regular basis, it was decided to move [Bustillos] to the night shift.”4
Bustillos fails to rebut MVSU’s legitimate, non-retaliatory reason for the shift change.
Bustillos does not deny regularly missing Mondays, but only notes that he had a doctor’s excuse for
doing so. Bustillos also rhetorically asks “if Defendants claim that it was so important for the
residential hall monitor to be punctual and present on Mondays, why wasn’t the Plainitff’s shift
changed prior to one year and three months later [from the Taylor evaluation]?” However, Plaintiff
fails to provide any authority for his essentially “reverse proximity” argument, which asks the Court
to infer a retaliatory motive where an employer takes an action long after the protected activity
occurred, based on long-standing performance issues which predated the protected activity. The
Court finds that, even if Bustillos had established a prima facie case, he has failed to establish a

4

As stated above, it is not apparent from the record who ultimately made the decision to
change Bustillos’ shift.
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genuine issue of material fact as to whether MVSU’s reasons for Bustillos’ shift change were
pretextual, or that retaliatory animus motivated the shift change.
Because Bustillos cannot set forth a prima facie case, his retaliation claim must fail. Further,
because he has presented no evidence of pretext or that retaliatory animus was a motivating factor
for the shift change, even if the court were to find a prima facie case, MVSU would nonetheless be
entitled to summary judgment as to Bustillos’ Title VII retaliation claim.
III.

Section 1983 Claims
A.

MVSU

Bustillos has stipulated to dismissal of his § 1983 claims against MVSU. Accordingly, the
Courts grants Defendants’ Motion as to this claim.
B.

Bryce Lowe

In his initial motion for summary judgment, Defendant Lowe failed to move for summary
judgment as to Plaintiff’s § 1983 claims brought against him in his individual capacity. After
Plaintiff noted this in his response, Lowe attempts to do so through his reply memorandum and
argues that Bustillos’ § 1983 claim against him is insufficiently pleaded. “[S]eeking summary
judgment on a ground not raised in the motion but instead raised for the first time in a reply brief
is impermissable.” State Farm Fire & Cas. v. Whirlpool Corp., 2012 WL 2422922, at *2 (N.D. Tex.
June 27, 2012) (quoting Mendez v. Caterpillar, Inc., 2012 WL 90492, at *5 (W.D.Tex. Jan.11,
2012)); see also J.T. Shannon Lumber Co., Inc. v. Gilco Lumber, Inc., 2008 WL 4372753 (N.D.
Miss. 2008) (“It is the practice of this court and the district courts to refuse to consider arguments
raised for the first time in reply briefs.”) (quoting Gillaspy v. Dallas Indep. Sch. Dist., 278 F. App’x
307, (5th Cir. 2008)). Lowe, as the moving party, had the burden to identify in his initial motion

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“each claim . . . on which summary judgment is sought,” the absence of a “genuine dispute as to any
material fact,” and his entitlement to judgment as a matter of law. FED. R. CIV. P. 56(a). Lowe
failed to do so, and accordingly, has not demonstrated his entitlement to summary judgment on
Plaintiff’s § 1983 claims.
Moreover, the Court finds that the Complaint contains sufficient facts to state a plausible
claim against Lowe for sexual harassment in violation of Plaintiff’s rights under the equal protection
clause and for First Amendment retaliation. However, given the Court’s ruling as to Plaintiff’s Title
VII retaliation claim, the Court is dubious as to the viability of Plaintiff’s First Amendment
retaliation claim against Lowe.5 To establish a First Amendment Retaliation claim, a plaintiff must
prove (1) he suffered an adverse employment action; (2) he engaged in speech that was on a matter
of public concern; (3) his interest in commenting on matters of public concern outweighs his
employer’s interest in maintaining efficiency in the workplace; and (4) the speech motivated the
adverse employment action. See Serna v. City of San Antonio, 244 F.3d 479, 482, (5th Cir. 2001).
Aside from the causation problems previously identified, “only final decision-makers may be held
liable for First Amendment retaliation employment discrimination under § 1983.” Johnson v.
Louisiana, 369 F.3d 826, 831 (5th Cir. 2004). The record is devoid of evidence that Lowe was the
final decision maker with regard to Bustillos’ shift change.
Pursuant to Rule 56(f), the Court gives notice to the Plaintiff that it is considering sua sponte
granting summary judgment as to Plaintiff’s First Amendment retaliation claim against Lowe
individually. Plaintiff shall have fourteen (14) days to file a response, if he wishes to do so.

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In his sur-rebuttal, Plaintiff asserts that “[T]he same facts which support Plainitff’s
claims under Title VII for retaliation . . . support Plaintiff’s claims [against Bryce Lowe] under
Section 1983.”
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Defendants may file a reply, if they desire to do so, within seven (7) days of Plaintiff’s response.

CONCLUSION
For the foregoing reasons, the Court grants Defendants’ Motion for Summary Judgment as
to Plaintiff’s Title VII claims against Bryce Lowe individually, Plaintiff’s Title VII retaliation claim
against MVSU, and Plaintiff’s § 1983 claims against MVSU. Plaintiff shall be granted fourteen (14)
days to show cause why the Court should not sua sponte grant summary judgment as to Plaintiff’s
First Amendment retaliation claim against Bryce Lowe. Defendants’ Motion is otherwise denied.
SO ORDERED on this, the 9th day of January, 2013.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE

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