Equal Employment Opportunity Commission v. Rite Way Service, Inc.
Filing
123
MEMORANDUM OPINION AND ORDER Granting Defendant Rite Way Services, Inc.'s 90 Motion for Summary Judgment, Denying as Moot Plaintiff Equal Employment Opportunity Commission's 99 Motion to Strike Defendant's Exhibits and Testimony in Support of Motion for Summary Judgment, Denying as Moot Defendant Rite Way Services, Inc.'s 107 Motion to Strike Linda Quarles' Declaration, and Denying as Moot Defendant Rite Way Services, Inc.'s 109 Motion to Strike the Declaration of Annette George. Signed by District Judge Halil S. Ozerden on March 31, 2015. (NM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
v.
RITE WAY SERVICES, INC.
§
§
§
§
§
§
PLAINTIFF
CIVIL NO.: 1:13cv464-HSO-RHW
DEFENDANT
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT RITE
WAY SERVICES, INC.’S [90] MOTION FOR SUMMARY JUDGMENT,
DENYING AS MOOT PLAINTIFF EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION’S [99] MOTION TO STRIKE DEFENDANT’S EXHIBITS AND
TESTIMONY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
DENYING AS MOOT DEFENDANT RITE WAY SERVICES, INC.’S [107]
MOTION TO STRIKE LINDA QUARLES’ DECLARATION, AND DENYING
AS MOOT DEFENDANT RITE WAY SERVICES, INC.’S [109] MOTION TO
STRIKE THE DECLARATION OF ANNETTE GEORGE
BEFORE THE COURT is Defendant Rite Way Services, Inc.’s Motion for
Summary Judgment [90]. Also before the Court are the Motion to Strike
Defendant’s Exhibits and Testimony in Support of Motion for Summary Judgment
[99] filed by Plaintiff Equal Employment Opportunity Commission, Defendant Rite
Way Services, Inc.’s Motion to Strike Linda Quarles’ Declaration [107], and
Defendant’s Motion to Strike the Declaration of Annette George [109]. Having
considered the parties’ submissions, the record, and relevant legal authorities, the
Court is of the opinion that Defendant’s Motion for Summary Judgment [90] should
be granted. Plaintiff’s Motion to Strike Defendant’s Exhibits and Testimony in
Support of Motion for Summary Judgment [99], Defendant’s Motion to Strike Linda
Quarles’ Declaration [107], and Defendant’s Motion to Strike the Declaration of
1
Annette George [109] should all be denied as moot. Defendant is entitled to
judgment as a matter of law, and this civil action should be dismissed.
I. BACKGROUND
A.
Factual Background
Mekeva Tennort (“Tennort”) applied for employment with Defendant Rite
Way Services, Inc. (“Rite Way”) on September 9, 2009. Tennort Dep. 49:21-25 [903]. Tennort was hired and assigned to work a shift from 4:00 p.m. to 8:00 p.m. at
Biloxi High School, in Biloxi, Mississippi, cleaning classrooms. Id. at 54:18-55:11,
67:12-17. In October 2009, Tennort agreed to be reassigned to Biloxi Junior High
School (“BJHS”) and to work from 6:00 a.m. to 2:30 p.m. Monday through Friday.
Id. at 56:17-57:11. Tennort’s new supervisor was Erika Quinn (“Quinn”). Id. at
58:3-4. Tennort’s responsibilities expanded to include cleaning the restrooms, the
cafeteria, and the hallways and windows. Id. at 57:19-24.
Tennort’s daily schedule at BJHS began with cleaning the restrooms, wiping
all windows in the hallway, and then moving to the cafeteria to set up for breakfast.
Id. at 58:10-24. Once students finished breakfast, Tennort was responsible for
cleaning the cafeteria with two to four of her co-workers. Id. at 59:7-20. Tennort
would then move to her assigned area, the first floor of the main classroom building
at BJHS, to clean, sweep, and mop the restrooms, wipe down all hallway windows,
and clean the water fountains. Id. at 59:21-60:23. Tennort was required to return
to the cafeteria to set up for lunch and to clean the cafeteria after each wave of
students finished lunch. Id. at 61:2-14. Tennort would then return to her
2
designated area, check and clean each of the restrooms, and clock out by 2:30 p.m.
Id. at 61:15-23.
Tennort was not required to work during the summer when classes at BJHS
were not in session. Id. at 62:9-11. For this reason, Rite Way laid off Tennort
effective June 15, 2010,1 and rehired her effective August 11, 2010, to work at
BJHS, again under Quinn’s supervision. Id. at 62:12-63:4, 66:24-67:11. Tennort
had the same job responsibilities during the 2010 to 2011 school year as she had
during the 2009 to 2010 school year, and she was similarly laid off at the end of the
school year in May 2011. Id. at 69:25-70:6, 71:4-72:3. Tennort was rehired by Rite
Way effective August 1, 2011, to work in the same capacity at BJHS for the
duration of the 2011 to 2012 school year. Id. at 74:16-75:10. Upon being hired by
Rite Way in September 2009 and rehired in August 2011, Tennort acknowledged
receipt of Rite Way’s policy for reporting harassment.2 Id. at 54:4-55:5, 78:10-79:15.
Rite Way’s policy instructed employees to first report incidents to their supervisor
and, if not comfortable reporting the incident to their supervisor, to report
incidents to Rite Way’s Director of Human Resources. Id. at 82:2-83:24.
When she began work on August 1, 2011, Tennort was again assigned to
Quinn’s supervision at BJHS, but Rite Way terminated Quinn’s employment on
The record reflects that Alexander McCullom (“McCullom”), Rite Way’s Project Manager for
the City of Biloxi’s school system, asked Tennort to work for two weeks during the summer to help
move furniture out of classrooms at BJHS. Sworn Statement of Alexander McCullom ¶ 2 [90-8],
Tennort Dep. 64:9-65:2 [90-3].
2 Upon being rehired in August 2010 and August 2011, Tennort also acknowledged receipt of
Rite Way’s employee handbook, and she did not have any questions about the handbook. Tennort
Dep. 66:24-68:12, 76:16-77:5, 79:16-80:18 [90-3].
1
3
August 5, 2011. Id. at 75:20-22, 96:1-23; Decl. of Mekeva Tennort ¶ 6 [101-1].3 Rite
Way replaced Quinn with Willie Dean Harris (“Harris”), who had been working at
BJHS as a laundryman since Tennort had returned. Tennort Dep. 96:24-25, 124:1215 [90-3]. Tennort also recalled working with Harris when she was assigned to
Biloxi High School in 2009. Id. at 98:13-19. Tennort acknowledged that she did not
have “any issues” with Harris during the previous time she worked with him. Id.
In August 2011, Linda Quarles (“Quarles”) also began working at BJHS in
the same role as Tennort, and Tennort assisted in Quarles’ training. Tennort Decl.
¶ 7 [101-1]. In “[e]arly August,” prior to August 11, 2011, Tennort saw Harris act
inappropriately towards Quarles. Tennort Dep. 123:16-124:1 [90-3]. According to
Tennort, she observed Harris “act like he was slapping [Quarles’] behind, saying
‘ooh wee.’” Id. at 123:22-123:24. Tennort testified unambiguously that she did not
tell Quarles or anyone else about witnessing this gesture:
Q.
A.
Q.
A.
Q.
A.
Did you tell Ms. Quarles that you had seen him do that?
No, ma’am.
Did you tell anybody?
No, ma’am
Why not?
I didn’t want to get involved.
Id. at 124:5-11.
In addition to portions of Tennort’s 284 page deposition, the EEOC relies upon a
Declaration [101-1] signed by Tennort approximately three weeks after Rite Way filed its Motion for
Summary Judgment [90]. The Court has considered the Declaration, but only to the extent that it
does not contradict, without explanation, Tennort’s extensive deposition testimony. See Doe ex rel.
Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir. 2000) (noting that a party “may not
manufacture a genuine issue of material fact by submitting an affidavit that impeaches prior
testimony without explanation”); Holden v. Illinois Tool Works, Inc., No. Civ. A. H-06-3958, 2007 WL
4591752, at *1 (S.D. Tex. Dec. 27, 2007) (“If an affidavit is inconsistent with prior deposition
testimony without sufficient explanation, a court has the discretion to disregard the affidavit.”)
(citing Doe, 220 F.3d at 386).
3
4
On August 11, 2011, Tennort observed a second incident involving Harris and
Quarles. At approximately 10:00 a.m., Harris approached Tennort and Quarles to,
as Tennort understood, warn Quarles about not having a cellular telephone while
working. Id. at 115:17-116:15. According to Tennort, Harris told Quarles that she
should not have a cellular telephone on her person, and he instructed Tennort to tell
Quarles “to put the phone up out of [Quarles’] back pocket.” Id. at 117:24-118:5.
After Tennort mentioned that she too had a cellular telephone on her person but did
not have anywhere to put the telephone, Tennort added “[d]ang[, s]omebody must
be looking hard because how do you know what’s in your back pocket?” Id. at
118:17-119:3, 118:12-16. Harris responded, “I’m a man. I’m going to look. They
tight, her pants are tight.” Id. at 121:6-16. According to Tennort, Quarles became
“real upset,” began pulling the slack in the leg of her pants, stated “[i]f anyone else
is asking about how tight my jeans are there is going to be some trouble[,]” and
walked away indicating that she was going to do something about the incident. Id.
at 121:18-122:9, 125:19-126:5. Tennort did not hear Harris say anything else as
Quarles walked away. Id. at 122:24-123:18. Tennort was not present for any other
conversations between Harris and Quarles, and Tennort did not hear Harris make
any other comments to or about Quarles or any other female employees. Id. at
125:4-11.
Tennort twice discussed this August 11, 2011, incident with others. Id. at
102:11-103:9, 126:10-127:2. The first of these discussions took place later that same
morning, at approximately 11:00 a.m. Id. at 126:10-127:2. Quarles directed
5
Tennort to go to the office of Paul Cannette, Chief of Police for BJHS, to make a
statement about the incident. Id.; Decl. of Paul Cannette ¶ 3 [101-11]. When
Tennort arrived at Officer Cannette’s office, he asked her about the incident
between Harris and Quarles. Tennort Dep. 17-20 [90-3]. Tennort told Officer
Cannette “about how [Harris] was making gestures to [Quarles’] behind, and how
he was a man, he’s going to look, and how upset [Quarles] got.” Id. at 127:19-24.
This was the only occasion that Tennort spoke to Officer Cannette about the August
11, 2011, incident. Id. at 128:5-7.
On August 18, 2011, McCullom traveled to BJHS to obtain a statement from
Tennort about the August 11, 2011, incident. Sworn Statement of Alexander
McCullom (“McCullom Statement”) ¶¶ 2, 5 [90-8]. McCullom approached Tennort,
indicated that he wanted to see her regarding the August 11, 2011, incident, and
asked her to come to the cafeteria. Tennort Dep. 103:7-104:4 [90-3]. According to
Tennort, before she began writing her statement, McCullom tried to tell her not to
write a statement by telling her “you know what they do to people who do stuff like
this.” Id. at 105:7-10, 109:2-3. When Tennort made it clear that she was going to
write her statement, McCullom got up from the table at which the pair were sitting
and left the cafeteria to allow her to write her statement. Id. at 110:18-111:3.
Tennort acknowledged that McCullom’s comment did not prevent her from writing
the statement, did not intimidate her such that she would not write the statement,
and that there was nothing about the statement that she wanted to change or
amend. Id. at 257:14-258:4, 280:15-25. Tennort provided the following:
6
Biloxi
18 Aug 11
On Thursday August 11 of 2011, I, Mekeva Tennort, witnessed an [sic]
situation at Biloxi Jr. High School while on break. I do not like being in
turmoil but yet I was in a situation where I had no choice but to tell
the truth. While on break of 11 Aug around 10:30am Ms [sic] Linda
and I were finishing our break and Mr. Willie ended his phone call on
his cell phone to tell Ms. Linda about her cell phone in her back pocket.
Mr. Willie said Mr. Al said he seen her phone in her back pocket and
its [sic] not allowed. He said he was trying to help her because Mr. Al
was trying to get rid of her anyway so she said I also had my phone in
my pocket also then I stated well I do not have a vehicle at the moment
to put mine in then she told me I could put my phone in her truck so I
would not get in to [sic] any trouble. So I did so. I told her to pull her
shirt as if she was stretching it so wouldn’t [sic] anyone be looking at
her back pocket. Then I also said “DANG” [sic] somebody must be
looking real hard at her behind to know whats [sic] in her back pocket
because that could be anything. And Mr. Willie said you could tell it
was a cell phone. He said her pants are tight. Then Ms. Linda said her
pants wasn’t [sic] tight to where she pulled them showing the slack in
them. And she said don’t worry about how tight my pants are. Then
Mr. Willie said I’m a man I’m gonna [sic] look. Then Ms Linda said the
next person who comments on that while slapping her hands its gonna
[sic] be trouble. So while I’m working in the cafeteria I was called out
while the cafeteria was full of kids to make a statement the same
statement Im [sic] now writing. I came to work for Rite Way to do my
work and earn my $ [sic] and go home. I don’t want any trouble just
whats rite [sic].
Mekeva Tennort
Id. at 102:11-103:9; Pl.’s Ex. 2 [101-12].
On August 20, 2011, the day after Tennort provided her written statement to
Rite Way, Mr. Thomas Walker (“Walker”) replaced Harris as supervisor of Quarles
and Tennort.4 McCullom Statement ¶ 7 [90-8]. Tennort recalled that Walker was
Although Harris was removed from his role as a supervisor at BJHS, the record reveals
that Tennort recalled seeing Harris delivering supplies to BJHS, but she did not have any
conversations with him. Tennort Dep. 124:12-125:3 [90-3]. While the EEOC submitted a Declaration
signed by Quarles and which identified further interaction between Quarles and Harris after Harris’
removal as supervisor but while he allegedly delivered supplies for Rite Way to BJHS, Tennort did
4
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very hard on her, followed her around while she carried out her job duties, used
expletives to describe her work, and often levied criticisms of Tennort’s work
performance. Tennort Dep. 130:21-131:3, 137:19-138:22; 141:4-143:5 [90-3]. Walker
changed Tennort’s job duties from day to day such that she did not know what to
expect from Walker, and he made her start cleaning areas of BJHS that she had not
ever been responsible for cleaning. Id. at 134:19-136:18. Walker also made Tennort
mix various cleaning chemicals on several occasions, a practice Tennort believed
was contrary to Rite Way policy. Id. at 145:1-150:6. While the record reflects a
number of disputes between Tennort and Rite Way about the validity of write-ups
Rite Way claims were issued to Tennort based on her allegedly poor work
performance, the parties do not dispute that Tennort’s employment was terminated
effective September 26, 2011. See Walker Dep. 164:16-165:8 [90-2].
Tennort subsequently applied for unemployment benefits with the
Mississippi Department of Employment Security (“MDES”). Tennort Dep. 198:21199:8 [90-3]. According to Rhonda Seigel, a Rite Way corporate representative,
Tennort’s application for unemployment benefits was initially denied after a
November 30, 2011, hearing at which McCullom participated and explained Rite
Way’s position as to why Rite Way terminated Tennort’s employment. Seigel Dep.
155:23-156:17 [101-4]; Tr. of Recorded Telephonic Hearing – Unemployment
Insurance Appeal 3, 7, 19 [101-9]. Tennort appealed the MDES decision and was
ultimately awarded unemployment benefits. Tennort Dep. 199:5-8 [90-3].
not speak with Harris or hear Harris make any comments about Quarles or any other female
employee after the August 11, 2011, incident. Decl. of Linda Quarles ¶¶ 17, 20 [101-10]; Tennort
Dep. 125:2-14; 151:8-14 [90-3].
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B.
Procedural Background
Tennort filed a charge of discrimination with the EEOC on November 9,
2011. Charge of Discrimination [90-28]. Tennort claimed that she had been
retaliated against after providing the written statement to McCullom. Id. After
conducting an investigation, the EEOC filed the Complaint on June 27, 2013,
advancing a retaliation claim under Title VII, 42 U.S.C. §§ 2000e-1 to -2000e-17,
predicated upon “an increasingly severe campaign of retaliatory actions against
Tennort” immediately subsequent to Tennort having reported the incident between
Quarles and Harris to Cannette and providing the written statement to McCullom.
Compl. ¶¶ 7, 23-25.
Rite Way now moves for summary judgment as to the EEOC’s retaliation
claim on the basis that the EEOC cannot establish two of three elements of a prima
facie claim of retaliation. Mem. Br. in Supp. of Mot. for Summ. J. 10-17 [91].
According to Rite Way, the EEOC cannot demonstrate that Tennort engaged in
protected activity or that Tennort’s providing a statement to Rite Way about the
incident between Quarles and Harris constituted a “but for” cause of Rite Way’s
decision to terminate Tennort’s employment. Id. Rite Way contends that even if
the EEOC were to establish a prima facie case of retaliation, it cannot demonstrate
that Rite Way’s nonretaliatory reasons for terminating Tennort’s employment were
pretext. Id. at 18. In addition, Rite Way asserts that to the extent the EEOC relies
upon Rite Way having provided information to the MDES regarding the reasons for
Tennort’s discharge as a basis for the retaliation claim, Tennort failed to exhaust
9
her administrative remedies with respect to Rite Way’s reporting to MDES. As a
result, Rite Way claims it is entitled to judgment as a matter of law to the extent
the retaliation claim is predicated on any reporting to MDES. Id. at 19-22.
During briefing of Rite Way’s Motion for Summary Judgment [90], the
parties filed three Motions raising evidentiary issues. The EEOC filed a Motion to
Strike Defendant’s Exhibits and Testimony in Support of Defendant’s Motion for
Summary Judgment [99], which sought exclusion of a report summarizing Tennort’s
alleged tardiness and various statements contained in the declarations submitted
by Rite Way in support of its nonretaliatory reasons for terminating Tennort. Rite
Way filed a Motion to Strike Linda Quarles’ Declaration [107] claiming Quarles’
Declaration was impermissibly based upon Quarles’ “information and belief,”
hearsay statements, and speculative allegations. Rite Way also filed a Motion to
Strike the Declaration of Annette George (“George”) [109], an EEOC investigator
who participated in the investigation of Tennort’s charge, contending that the
EEOC submitted the Declaration notwithstanding that fact that the EEOC asserted
the deliberative process privilege and refused to produce information pertaining to
George’s investigation.
II. DISCUSSION
A.
Legal Standard
Summary judgment is appropriate “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.” Fed. R. Civ. P. 56(a). To rebut a properly supported motion for
10
summary judgment, the opposing party must show, with “significant probative
evidence,” that there exists a genuine issue of material fact. Hamilton v. Segue
Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000). “‘If the evidence is merely
colorable, or is not significantly probative,’ summary judgment is appropriate.”
Cutting Underwater Technologies USA, Inc. v. Eni U.S. Operating Co., 671 F.3d
512, 517 (5th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). In considering a motion for summary judgment, the Court “may not make
credibility determinations or weigh the evidence” and “must resolve all ambiguities
and draw all permissible inferences in favor of the non-moving party.” Total E&P
USA Inc. v. Kerr-McGee Oil and Gas Corp., 719 F.3d 424, 434 (5th Cir. 2013)
(citations omitted).
“There is no material fact issue unless the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” RSR Corp. v. Int’l Ins. Co.,
612 F.3d 851, 858 (5th Cir. 2010). “A fact is ‘material’ if its resolution in favor of
one party might affect the outcome of the lawsuit under governing law[, and an]
issue is ‘genuine’ if the evidence is sufficient for a reasonable jury to return a verdict
for the nonmoving party.” Hamilton, 232 F.3d at 477 (citing Anderson, 477 U.S. at
248). “[M]ere conclusory allegations are not competent summary judgment
evidence, and such allegations are insufficient, therefore, to defeat a motion for
summary judgment.” Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). “The
court has no duty to search the record for material fact issues.” RSR Corp., 612
F.3d at 858. “Rather, the party opposing summary judgment is required to identify
11
specific evidence in the record and to articulate precisely how this evidence supports
his claim.” Id.
B.
Analysis
1.
Prima Facie Claim of Retaliation
When based on circumstantial evidence,5 analysis of a retaliation claim under
Title VII is guided by the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). Baker v. Am. Airlines, Inc.,
430 F.3d 750, 754 (5th Cir. 2005) (citation omitted). To establish a prima facie case
of retaliation, Plaintiff must show “1) that [she] engaged in a protected activity; 2)
that an adverse employment action occurred; and 3) that a causal link existed
between the protected activity and the adverse action.” Septimus v. Univ. of
Houston, 399 F.3d 601, 610 (5th Cir. 2005) (citations omitted). If the employee
makes a prima facie showing, the burden shifts to the employer to produce a
legitimate, nonretaliatory reason for the adverse employment action. Strong v.
Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 805 (5th Cir. 2007). Once the employer
meets its burden of production, the burden then shifts back to the employee “to
demonstrate that the employer’s reason is actually a pretext for retaliation . . . ,
which the employee accomplishes by showing that the adverse action would not
have occurred ‘but for’ the employer’s retaliatory motive . . . .” Feist v. Louisiana,
Dep’t of Justice, Office of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013) (citing
The parties do not appear to dispute that the EEOC relies only upon circumstantial
evidence of retaliation. Compare Mem. Br. in Supp. of Mot. for Summ. J. 9-10 [91] with Br. in Supp.
of Opp’n to Mot. for Summ. J. 13 [103].
5
12
LeMaire v. Louisiana, 480 F.3d 383, 388-89 (5th Cir. 2007) and Univ. of Texas Sw.
Med. Ctr v. Nassar, 133 S. Ct. 2517, 2533 (2013)) (internal marks omitted).
2.
The EEOC Has Not Demonstrated that Tennort Engaged in Protected
Activity
Rite Way contends that the EEOC cannot establish a prima facie case of
retaliation because Tennort never engaged in protected activity. Mem. Br. in Supp.
of Mot. for Summ. J. 10-15 [91]. “An employee has engaged in activity protected by
Title VII if she has either (1) ‘opposed any practice made an unlawful employment
practice’ by Title VII or (2) ‘made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing’ under Title VII.” Long v.
Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996) (quoting 42 U.S.C. § 2000e–3(a)).
These clauses are known respectively as the “opposition clause” and the
“participation clause.” Byers v. Dallas Morning News, Inc., 209 F.3d 419, 428 (5th
Cir. 2000). Rite Way claims that the EEOC cannot establish protected activity
under either clause. Mem. Br. in Supp. of Mot. for Summ. J. 10-15 [91].
a.
Participation Clause
Rite Way asserts that Tennort’s activity at most amounted to participation in
Rite Way’s internal investigation into the comment made by Harris regarding why
he looked at Quarles’ pants. Id. at 10-12. According to Rite Way, “an employee’s
participation in an internal investigation which is not conducted in connection with
the filing of an EEOC Charge does not constitute protected activity under Title VII’s
participation clause.” Id. at 10. The EEOC points out that “[t]he antiretaliation
provision [of Title VII] explicitly states that it protects an individual who has
13
‘participated in any manner’ in a Title VII proceeding[,]” and reasons that this
language should be read expansively to include within its protection employees who
“report discriminatory employment practices or assist in the investigation of these
practices.” Br. in Supp. of Opp’n to Mot. for Summ. J. 22 [103]. Without citation to
binding legal authority, the EEOC advocates that filing a formal charge or
institution of proceedings under Title VII should not be required in order to trigger
the protections of the anti-retaliation provision. Id. at 23-24.
The United States Court of Appeals for the Fifth Circuit has found that “the
‘participation clause’ is irrelevant” where the employee raising a Title VII
retaliation claim “did not file a charge with the EEOC until after the alleged
retaliatory discharge took place.” Byers, 209 F.3d at 428. It is undisputed that at
the time of Tennort’s discharge on September 26, 2011, neither she nor Quarles had
filed a charge with the EEOC or otherwise instituted proceedings related to the
alleged retaliation. Charge of Discrimination [90-28] [90-29]. Accordingly, as a
matter of law, the EEOC cannot rely upon the “participation clause” to demonstrate
that Tennort engaged in protected activity. Ellis v. Compass Grp. USA, Inc., 426 F.
App’x 292, 297 (5th Cir. 2011) (finding employee could not “satisfy the participation
clause because, at the time of her suspension, she was not making a charge,
testifying, assisting, or participating in any manner in an investigation, proceeding,
or hearing under title VII[,] . . . [and] there was no title VII proceeding at the time
of the activity that led to her suspension—even the alleged retaliation occurred
before the filing of an EEOC charge”) (citing Byers, 209 F.3d at 428).
14
b.
Opposition Clause
Rite Way posits that the EEOC also cannot establish that Tennort “opposed
an employment practice [or] that Tennort had an ‘objectively reasonable belief’ that
the opposed employment practice was barred by Title VII.” Mem. Br. in Supp. of
Mot. for Summ. J. 12 [91]. According to Rite Way, merely expressing opposition to a
single comment by a co-worker does not constitute opposition to an unlawful
employment practice. Id. at 13. Rite Way maintains that a single comment made
sporadically or in a casual conversation cannot give rise to an objectively reasonable
belief that the comment amounted to an unlawful employment practice under Title
VII. Id. at 14-15.
Relying heavily upon the Supreme Court’s decision in Crawford v.
Metropolitan Government of Nashville and Davidson County, Tennessee, the EEOC
counters that the “opposition clause” protects an employee such as Tennort who
answers her employer’s questions during the employer’s internal investigation. Br.
in Supp. of Opp’n to Mot. for Summ. J. 15-17 [103] (citing 555 U.S. 271, 273, 277-80
(2009)). The EEOC maintains that “Tennort opposed an unlawful employment
practice by Harris” on two occasions, first when she informed Officer Cannette
about the incident between Harris and Quarles, and second when she provided a
written statement to McCullom regarding “Harris’[] unlawful behavior.” Id. at 1718. With respect to whether Tennort possessed a reasonable belief that Harris’
alleged behavior towards Quarles was an unlawful employment practice, the EEOC
makes the conclusory assertion without citation to the record that “Tennort held a
15
good faith, reasonable belief that Harris’[] unlawful sexual harassment was an
unlawful employment practice.” Id. at 20. The EEOC further argues that imposing
a requirement that Tennort have a “reasonable belief” that the August 11, 2011,
incident amounted to an unlawful employment practice contradicts the Crawford
decision. Id. at 21-22.
As a threshold matter, the Court is unpersuaded by the EEOC’s argument
that requiring Tennort to have a “reasonable belief” that the August 11, 2011,
incident amounted to an unlawful employment practice contradicts Crawford. See
Satterwhite v. City of Houston, No. 14-20240, 2015 WL 877655, at *2 (5th Cir. Mar.
3, 2015) (citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 349 (5th Cir.
2007)). Satterwhite involved a Title VII retaliation claim based upon Courtney
Satterwhite’s having witnessed allegedly discriminatory conduct by Harry Singh.
Id. at *1. While Satterwhite, Singh, and other employees were at a meeting, Singh
allegedly used the phrase “Heil Hitler” to describe a situation. Id. Another
employee present at the meeting, Daniel Schein, was offended by Singh’s use of the
phrase. Id. Satterwhite claimed to have engaged in protected activity under the
“opposition clause” by reporting the incident to the company’s Deputy Director of
Human Resources, and by responding to questions in connection with the
employer’s investigation of the incident. Id. The Court of Appeals noted that while
under Crawford Satterwhite’s oral report and subsequent responses to the
employer’s investigation could have qualified as “opposing under 42 U.S.C. § 2000e3(a), for his actions to be protected activities Satterwhite must also have had a
16
reasonable belief that Singh’s comment created a hostile work environment under
Title VII.” Id. at *2 (footnotes omitted). The Fifth Circuit looked at the totality of
the circumstances and found that “[n]o reasonable person would believe that the
single ‘Heil Hitler’ incident is actionable under Title VII.” Id. at *2-3. In reaching
its decision, the Fifth Circuit also pointed out that “isolated incidents (unless
extremely serious) do not amount to actionable conduct under Title VII[,]” and that
“numerous Title VII claims based on isolated incidents of non-extreme conduct”
have been rejected “as insufficient as a matter of law.” Id. at *2 (quoting Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1998)) (internal marks omitted).
Here, the EEOC contends that “Tennort opposed an unlawful employment
practice by Harris” when she reported on the August 11, 2011, incident involving
Quarles and Harris. Br. in Supp. of Opp’n to Mot. for Summ. J. 17 [103].
Satterwhite and the cases cited therein instruct that evaluating whether Tennort’s
reports amount to protected activity under Title VII’s opposition clause requires the
Court to determine whether a reasonable person would believe that Harris’ conduct
was actionable under Title VII. See, e.g., Satterwhite, 2015 WL 877655, at *2 n.12
(citing Turner, 476 F.3d at 349). In making this determination, the Court may look
to prior cases in which incidents have been reported. See id. at *2-3 (rejecting
retaliation claim by looking to prior case in which retaliation claim failed as a
matter of law because employee could not have reasonably believed that isolated
comments he reported amounted to an unlawful employment practice).
17
“An action for sexual harassment in violation of Title VII requires the
plaintiff to demonstrate ‘that the harassment created a hostile or abusive working
environment.’” Paul v. Northrop Grumman Ship Sys., 309 F. App’x 825, 827 (5th
Cir. 2009) (quoting Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 434 (5th
Cir. 2005)). Stated differently, “sexual harassment is actionable under Title VII
only if it is ‘so severe or pervasive as to alter the conditions of [the victim’s]
employment and create an abusive working environment.’” Clark Co. School Dist.
v. Breeden, 532 U.S. 268, 270 (2001) (quoting Faragher, 524 U.S. at 786) (internal
marks omitted). Courts do not measure the conduct at issue in isolation. Id.
“[I]nstead, ‘whether an environment is sufficiently hostile or abusive’ must be
judged ‘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 270-71.
Looking at the totality of the circumstances here, Tennort reported a single,
isolated incident of alleged sexual harassment that occurred once over the span of
approximately three weeks. Tennort Dep. 123:19-124:11; 112:22-114:24 [90-3].
That incident occurred on August 11, 2011, when Tennort suggested that Harris
“must be looking real hard at [Quarles’] behind to know what’s in [her] back
pocket[,]” to which Harris responded “I’m a man, I am going to look.” Id. at 113:16114:16, 121:6-16. Although the record reveals that Harris’ comment upset and
angered Quarles, there is insufficient evidence that this isolated incident can be
18
viewed as having unreasonably interfered with the work performance of Quarles or
Tennort. See Decl. of Linda Quarles [101-10]; Tennort Dep. 260:1-13 [90-3].
“[S]imple teasing, . . . offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms and
conditions of employment.” Faragher, 524 U.S. at 788 (citation and internal marks
omitted). Moreover, “the mere utterance of an . . . epithet which engenders
offensive feelings in an employee is insufficient, without more, to support Title VII
liability.” Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996)
(citations and internal marks omitted). Even incidents which are “wholly
inappropriate” will not survive summary judgment where those incidents “do not
evidence sufficiently pervasive hostility toward [the employee] as a matter of law . .
. .” Hague v. Univ. of Texas Health Sci. Ctr. at San Antonio, 560 F. App’x 328, 332
(5th Cir. 2014).
While Harris’ comment was “wholly inappropriate,” the record does not
support a finding that this isolated incident rises to the level of “pervasive or
severe[]” sufficient to amount to a cognizable Title VII violation. See, e.g., Barnett v.
Boeing Co., 306 F. App’x 875, 876, 879 (5th Cir. 2009) (affirming summary judgment
against employee on hostile work environment claim predicated on sexual
harassment spanning eight months and consisting of manager’s “leering, sexually
suggestive comments, and unwanted touching” in the form of patting employee on
her upper thigh as he walked by her because such conduct did not rise to the level of
being severe or pervasive) (citing Hockman v. Westward Communications, LLC, 407
19
F.3d 317, 326 (5th Cir. 2004)); Gibson v. Potter, 264 F. App’x 397, 401 (5th Cir.
2008) (affirming summary judgment as to plaintiff’s hostile work environment claim
predicated on sexual harassment based on her supervisor “grabbing her on the
buttocks and [making] suggestive comments,” and noting that plaintiff’s additional
allegations that supervisor engaged in “sex talk,” asked her out, and offered his
telephone number prior to the nonconsensual touching were not only
unsubstantiated but also did “not rise to the level of severity or pervasiveness
required by the law”) (citing Shepherd v. Comptroller of Pub. Accounts, 168 F.3d
871, 872-74 (5th Cir. 1999)).
Even if the Court were to consider the prior incident which occurred at an
unspecified time between August 1, 2011, and August 11, 2011, and involving
Harris’ alleged “ooh wee” comment and slapping his hands, the two incidents simply
do not rise to the level of being “so severe or pervasive as to alter the conditions of . .
. employment and create an abusive working environment.” Breeden, 532 U.S. at
270 (quoting Faragher, 524 U.S. at 786) (internal marks omitted); see, e.g., Hague,
560 F. App’x at 332 (affirming summary judgment as to employee’s sexual
harassment claim where employee identified two incidents of sexually harassing
conduct within a one month timespan, a colleague’s reading of an explicit magazine
article aloud in her presence and his giving another co-worker a sexually explicit
doll, because although wholly inappropriate, the incidents were not sufficiently
pervasive); Stewart v. Mississippi Transp. Comm’n, 586 F.3d 321, 330 (5th Cir.
2009) (affirming summary judgment on claim for hostile work environment based
20
on sexual harassment where supervisor, over a span of one month, made six sexual
advances to employee and told her that the pair needed to be “sweet to each
other[,]” which conduct the court noted amounted “to one subjectively offensive
utterance by [the supervisor] every few days” but did not create a sexually hostile
work environment as a matter of law because this conduct [was] “not severe,
physically threatening, or humiliating[ and was] . . . not the kind of conduct that
would interfere unreasonably with a reasonable person’s work performance or
destroy her opportunity to succeed in the workplace”). Consequently, the EEOC
cannot establish a prima facie case of retaliation because it cannot demonstrate that
Tennort engaged in protected activity under Title VII’s opposition clause. Rite Way
is entitled to summary judgment as to the EEOC’s retaliation claim.
3.
The EEOC’s Alternative Argument Grounded Upon Rite Way’s
Providing Information to the MDES Regarding Tennort’s Termination
To the extent that the EEOC grounds its retaliation claim upon Rite Way’s
providing information to MDES during Tennort’s attempt to obtain unemployment
benefits, Rite Way contends that Tennort’s claim for unemployment benefits and
subsequent denial of that claim constituted a discrete act of retaliation which must
be made the subject of an EEOC charge. Mem. Br. in Supp. of Mot. for Summ. J. 19
[91]. Because Tennort’s EEOC Charge does not include a claim of a denial of
unemployment benefits and the EEOC did not include such an allegation in its
administrative investigation, Rite Way reasons that Tennort failed to exhaust her
administrative remedies with respect to this claim. Id. at 19-20. Rite Way further
contends that the “legitimate, non-discriminatory, non-pretextual reason” for
21
providing information to the MDES is that Rite Way is under a legal duty to provide
such information to the MDES and complying with that duty did not constitute an
adverse employment action. Id. at 20-22. Rite Way maintains that the EEOC
cannot establish a causal link between Tennort’s alleged protected activity and Rite
Way’s reporting information to the MDES because the Rite Way employee who
provided the information had no knowledge of “Rite Way soliciting a statement from
Tennort.” Id. at 21.
The EEOC appears to disclaim any attempt to rely upon Rite Way’s reporting
to the MDES regarding the reasons it terminated Tennort as a separate ground for
its retaliation claim. Br. in Supp. of Opp’n to Mot. for Summ. J. 25 [103]. At the
same time, however, the EEOC asserts that “Rite Way further retaliated against
Tennort when it falsely reported to MDES that she was terminated due to
performance issues.” Id. Because the EEOC makes no effort to respond to Rite
Way’s properly supported summary judgment argument regarding Tennort’s failure
to exhaust the administrative remedies available to her with regard to Rite Way’s
reporting to the MDES, Rite Way is entitled to judgment as a matter of law as to
the retaliation claim on this ground.
4.
The Parties’ Evidentiary Motions
As noted supra at page 8, the record contains extensive dispute related to the
validity of the performance-based reasons Rite Way cites as justifying its decision to
terminate Tennort’s employment. Each of the three Motions [99] [107] [109] filed by
the EEOC and Rite Way attack evidence underlying this dispute. Namely, the
22
EEOC seeks exclusion of records related to Tennort’s attendance and complaints
allegedly made by BJHS employees about the condition of areas of the school within
Tennort’s responsibility. Mem. in Supp. of Mot. to Strike 1-5 [99]. Rite Way
requests that the Court strike George’s Declaration which purports to establish that
McCullom made the decision to terminate Tennort’s employment and portions of
Quarles’ Declaration which describe the alleged effect that Walker had upon
Tennort after he became her supervisor. See Mem. in Supp. of Mot. to Strike Decl.
of Linda Quarles 1-6 [108]; Mem. in Supp. of Mot. to Strike Decl. of Annette George
1-8 [110]. Because the Court finds that Tennort did not engage in protected activity
and thus cannot establish a prima facie case as a matter of law, the Court need not
address these evidentiary motions related to the cause of Tennort’s termination.
Greene v. DaimlerChrysler Servs. of N. Am., 128 F. App'x 353, 357 (5th Cir. 2005)
(noting that employee’s failure to establish second element of a prima facie claim for
retaliation precluded that claim). The Motions to Strike [99] [107] [109] are
therefore moot.
III. CONCLUSION
Having considered the Motion for Summary Judgment [90] filed by
Defendant Rite Way Services, Inc., the Court, after a full review and consideration
of the Motion [90], Plaintiff Equal Employment Opportunity Commission’s
Response [101], the parties’ additional submissions, the record, and relevant legal
authorities, finds that in accord with the reasons more fully stated above,
23
IT IS, THEREFORE, ORDERED AND ADJUDGED that Defendant Rite
Way Services, Inc.’s Motion for Summary Judgment is GRANTED and judgment is
rendered in favor of Defendant pursuant to Federal Rule Civil Procedure 56. This
civil action is DISMISSED WITH PREJUDICE.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiff Equal
Employment Opportunity Commission’s Motion to Strike Defendant’s Exhibits and
Testimony in Support of Defendant’s Motion for Summary Judgment [99] is
DENIED as MOOT.
IT IS, FURTHER, ORDERED AND ADJUDGED that Defendant Rite
Way Services, Inc.’s Motion to Strike Linda Quarles’ Declaration [107] is DENIED
as MOOT.
IT IS, FURTHER, ORDERED AND ADJUDGED that Defendant Rite
Way Services, Inc.’s Motion to Strike the Declaration of Annette George [109] is
DENIED as MOOT.
SO ORDERED AND ADJUDGED, this the 31st day of March, 2015.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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