Equal Employment Opportunity Commission v. SkyWest Airlines Inc
Filing
75
MEMORANDUM OPINION AND ORDER granting in part, denying in part 47 MOTION for Summary Judgment filed by SkyWest Airlines Inc. (Ordered by Senior Judge Sidney A Fitzwater on 2/7/2024) (Senior Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
VS.
SKYWEST AIRLINES, INC.,
Defendant.
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Civil Action No. 3:22-CV-1807-D
MEMORANDUM OPINION
AND ORDER
Plaintiff Equal Employment Opportunity Commission (“EEOC”) and intervenorplaintiff Sarah Budd (“Budd”) (collectively, “plaintiffs”) bring this action against defendant
SkyWest Airlines, Inc. (“SkyWest”) under Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e et seq., and Title I of the Civil Rights Act of 1991, alleging claims
for a hostile work environment and retaliation. SkyWest moves for summary judgment. For
the reasons that follow, the court grants the motion in part and denies it in part.
I
Budd, a female, began her tenure with SkyWest in Utah in January 2007.1 After
working there for about 12 years, Budd transferred to Texas and began working for SkyWest
1
In deciding SkyWest’s motion for summary judgment, the court views the evidence
in the light most favorable to plaintiffs as the summary judgment nonmovants and draws all
reasonable inferences in their favor. See, e.g., Owens v. Mercedes-Benz USA, LLC, 541
F.Supp.2d 869, 870 n.1 (N.D. Tex. 2008) (Fitzwater, C.J.) (citing U.S. Bank Nat’l Ass’n v.
Safeguard Ins. Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006) (Fitzwater, J.)).
as a Parts Clerk at Dallas-Fort Worth International Airport (“SkyWest DFW”) on August 22,
2019.
Plaintiffs allege that, while Budd was working at SkyWest DFW, she was subjected
to sexual harassment, including “crude sexual comments, jokes, gestures, and mimed assaults
directed at [her],” “explicit comments about [her] body, speculation about what sexual
positions she may enjoy, and suggestions or requests to perform demeaning sex acts with
[her],” and a suggestion from Dallin Hanson (“Hanson”), the supervisor of another
department, that she engage in prostitution while on a work errand. Compl. ¶ 20. The
complaint also alleges that remarks made in Budd’s presence—including “comments making
light of rape, suggesting engaging in rape, or arguing that rape victims were lying for
attention”—contributed to the creation of a hostile work environment. Id. ¶ 21.
On September 4, 2019—only nine workdays after transferring to SkyWest
DFW—Budd made a verbal report to her direct supervisor, Parts Clerk Manager Dustin
Widmer (“Widmer”), about behaviors that made her uncomfortable. Widmer, who was
based in Oklahoma City, was visiting SkyWest DFW on his usual monthly trip, and this was
the first time he and Budd had met in person. Budd informed Widmer that her coworkers
were making sexual jokes, that she felt singled out as a new employee and a young woman
in a workplace otherwise full of men, and that she did not feel “safe.” D. App. (ECF No. 49)
at 23-25. Widmer did not ask her for additional details; he told her to let him know “if things
[got] worse.” Id. They both allegedly shared the concern that escalating Budd’s complaint
could place an even larger target on her back.
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Budd also believes that, at some point during her employment at SkyWest DFW, she
may have mentioned the “locker room type environment” among her coworkers to Widmer’s
supervisor, Parts General Manager Nikki Farrer Mitchell (“Mitchell”).
Between October 24, 2019 and December 3, 2019, Budd took an unpaid medical leave
of absence from SkyWest, allegedly on account of the harm to her mental health “done by
the pervasive atmosphere of sexual harassment.” Compl. ¶ 23. In her application for leave,
she listed specific conditions as the medical facts underlying her request and indicated that
she “need[ed] eval/therapy.” Ps. App. (ECF No. 67-1) at 151-52.2
The day she returned to work from medical leave, Budd allegedly witnessed
“upsetting gestures and sexual jokes about a candy jar dressed as a woman,” including
several members of her department humping the candy jar and making ongoing comments
about rape and raping the candy jar. Compl. ¶ 24. Plaintiffs allege that the word “rape” was
spoken by various SkyWest DFW employees over 30 times that day. As a result, plaintiffs
allege, Budd “hysterically cr[ied] in the bathroom.” Id.
On December 11, 2019 Budd emailed Widmer, Mitchell, and Vice President of
Maintenance Bill Dykes requesting to move to a part-time schedule, citing the “salacious
environment (which has already been expressed)” as one reason for her request. Id. ¶ 25; D.
2
The court is not specifying these conditions because they are disclosed in a sealed
filing, and including them in this publicly available decision would require that the court
implement a sealing protocol that would otherwise be unnecessary for the balance of the
memorandum opinion and order. The parties are aware, however, of the conditions that
Budd disclosed.
-3-
App. (ECF No. 49) at 16-18, 100, 121. Mitchell forwarded this email to Kellie Dehais
(“Dehais”), Employee Relations Manager in SkyWest’s Human Resources department. A
few days later, on Saturday, December 14, 2019, Budd again emailed Widmer to complain
about her coworkers’ behavior, reporting specific instances of alleged inappropriate conduct
and harassment and including a narrative of the incident involving the candy jar. Widmer
allegedly replied that Budd could either work her assigned schedule or apply for leave;
otherwise, she could not continue to work at SkyWest DFW. On Monday, December 16,
2019 Widmer forwarded Budd’s email to Dehais and also texted Dehais to make her aware
of the email.
On that same day, December 16, 2019, Budd filed a formal complaint about the
alleged harassment through SkyWest’s Human Resources portal. Dehais contacted Budd the
following day, and Budd identified a number of her coworkers by name as having engaged
in the harassing behavior. Budd began paid administrative leave effective immediately.
After Budd went on leave, Dehais interviewed several SkyWest employees, “some
of whom corroborated Budd’s claims by confirming sexually inappropriate jokes in the
workplace” and her account of the candy jar incident. Compl. ¶ 29; see D. App. (ECF No.
49) at 104-07. But Dehais was apparently unable to corroborate the other allegations made
in Budd’s December 14 email to Widmer or her December 16 formal complaint. Dehais’
investigation ended on or about February 5, 2020, and she ultimately recommended formal
discipline for a few employees involved in the candy jar incident and mandatory sexual
harassment training for all SkyWest DFW employees.
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Plaintiffs allege that, as of late May 2020, Budd remained on leave and had not
received an update on the status of the investigation or on the date she could return to work.
Budd emailed Dehais on May 21, 2020 to request an update. Dehais informed Budd that the
investigation had concluded but that Budd could not return to work until all SkyWest DFW
employees had completed sexual harassment training. The training was apparently delayed
due to the COVID-19 pandemic. Plaintiffs allege that Dehais did not inform Budd of any
other corrective action that had already been taken.
Budd resigned from her position at SkyWest on May 30, 2020, taking SkyWest up on
a COVID-19 voluntary early retirement option, which offered early retirement benefits to any
qualified employee who opted in between April 6, 2020 and May 31, 2020. This early
retirement plan provided retiree travel benefits but not continued income, as did the
traditional retirement plan. Plaintiffs allege that Budd “felt compelled to resign” because
SkyWest “failed to return her to work and ceased to communicate with her about any
reasonably specific date that she could expect to safely return.” Compl. ¶ 32.
Before resigning, Budd filed a Charge of Discrimination with the EEOC on May 11,
2020. The EEOC then timely filed this lawsuit against SkyWest, alleging Title VII hostile
work environment and retaliation claims. Budd intervened in the suit. SkyWest now moves
for summary judgment. The court is deciding this motion on the briefs, without oral
argument.
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II
When a summary judgment movant will not have the burden of proof on a claim at
trial, it can obtain summary judgment by pointing to the absence of evidence on any essential
element of the nonmovant’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Once it does so, the nonmovants must go beyond their pleadings and designate specific facts
to demonstrate that there is a genuine issue of material fact for trial. See id. at 324; Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is
genuine if the evidence is such that a reasonable jury could return a verdict for the
nonmoving parties. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
nonmovants’ failure to produce proof as to any essential element renders all other facts
immaterial. TruGreen LandCare, LLC v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007)
(Fitzwater, J.). Summary judgment is mandatory where the nonmovants fail to meet this
burden. Little, 37 F.3d at 1076.
III
The court turns first to plaintiffs’ hostile work environment claim.
A
To establish a Title VII claim for a sexually hostile work environment based on
conduct of a non-supervisor,3 plaintiffs must prove that: (1) Budd is a member of a protected
3
In its brief, SkyWest discusses whether Hanson, the Maintenance Supervisor, should
be considered a “supervisor” for purposes of the hostile work environment analysis. But
because plaintiffs “allege that Budd experienced a hostile work environment caused by
multiple coworkers and a non-supervisor managerial employee” and concede that “the
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class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on a
protected characteristic; (4) the harassment affected a term, condition, or privilege of
employment; and (5) her employer knew or should have known of the harassment and failed
to take prompt remedial action. See EEOC v. WC&M Enters., 496 F.3d 393, 399 (5th Cir.
2007) (citations omitted).
SkyWest points to the absence of evidence to establish either component of the fifth
element: (1) whether SkyWest knew or should have known of the harassment, and (2)
whether it failed to take prompt remedial action. The court considers each component in
turn.
B
1
An employer’s knowledge of harassment may be actual or constructive. Williamson
v. City of Houston, 148 F.3d 462, 465 (5th Cir. 1998). “An employee can show actual notice
by proving that she complained to higher management.” Contreras v. Waffle House, Inc.,
2002 WL 1477442, at *8 (N.D. Tex. July 9, 2002) (Solis, J.) (citing Waltman v. Int’l Paper
Co., 875 F.2d 468, 478 (5th Cir. 1989)). The employer has actual notice of the harassment
“if a person within the organization who has the ‘authority to address the harassment
problem’ or an ‘affirmative duty’ to report harassment learns of the harassment in question.”
Abbt v. City of Houston, 28 F.4th 601, 607 (5th Cir. 2022) (quoting Williamson, 148 F.3d at
appropriate legal framework is that used for coworker harassment,” Ps. Br. (ECF No. 65) at
16, the court assumes that the non-supervisor harassment framework applies.
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466). Several circuits have indicated that, in making a report, a plaintiff is not required to
include “magic words”—such as “sex,” “sexual,” or “harassment”—for a person with
authority to be deemed to have learned of the harassment. See, e.g., Okoli v. City of
Baltimore, 648 F.3d 216, 224 (4th Cir. 2011); EEOC v. Go Daddy Software, Inc., 581 F.3d
951, 964 (9th Cir. 2009); Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006);
Olson v. Lowe’s Home Ctrs. Inc., 130 Fed. Appx. 380, 391 n.22 (11th Cir. 2005)
(unpublished); Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000).
Alternatively, a plaintiff can “demonstrate constructive notice by ‘showing the
pervasiveness of the harassment, which gives rise to the inference of knowledge or
constructive knowledge.’” Contreras, 2002 WL 1477442, at *8 (quoting Henson v. City of
Dundee, 682 F.2d 897, 905 (11th Cir. 1982)). “If the harassment complained of is so open
and pervasive that the employer should have known of it, had it but opened its corporate
eyes, it is unreasonable not to have done so, and there is constructive notice.” Sharp v. City
of Houston, 164 F.3d 923, 930 (5th Cir. 1999) (citing Williamson, 148 F.3d at 465; Waltman,
875 F.2d at 478)). And when “the appropriate persons within th[e] enterprise”—i.e.,
individuals “with remedial power over the harasser”—knew or should have known of the
harassment, constructive knowledge can be imputed to the employer. Id.
2
SkyWest contends that plaintiffs have failed to show that SkyWest had actual or
constructive knowledge of the harassment until December 14, 2019. Plaintiffs, on the other
hand, maintain that SkyWest had knowledge as of September 4, 2019.
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Plaintiffs have presented sufficient evidence for a reasonable jury to find that SkyWest
had actual knowledge of the harassment as of September 4, 2019. Budd testified in her
deposition that, on September 4, 2019, she informed Widmer, her direct supervisor and a
member of SkyWest management, that individuals at SkyWest DFW “were making sexual
jokes” and saying things that made her “uncomfortable,” and that she “[didn’t] feel safe.”
Ps. App. (ECF No. 66-1) at 30. Plaintiffs point to Widmer’s deposition testimony, in which
he stated that Budd attributed the problematic behavior to “a male-dominated industry” and
stated, “if [the situation] doesn’t settle down or escalates, then [he] would report it to HR,”
id. at 57-58, as indicating that he understood Budd’s complaint to concern sexually harassing
behavior that he had an obligation to report to higher company authorities. A reasonable jury
could find from this evidence that SkyWest had actual notice of the harassment as of
September 4, 2019 on the basis that Budd had complained in an adequately specific manner,
including by mentioning “sexual”-related behavior and her belief that the behavior was a
product of a “male-dominated industry” to a person with authority to address the harassment.
Alternatively, plaintiffs have also presented sufficient evidence for a reasonable jury
to find that SkyWest had actual knowledge of the harassment as of December 2019. In
particular, they cite Budd’s December 11, 2019 email to Widmer and Mitchell, which
Mitchell forwarded to Dehais, in which Budd requested a part-time schedule due, in part, to
“the salacious environment (which has already been expressed),” as well as Budd’s
December 14, 2019 email to Widmer, which he forwarded to Dehais, specifically identifying
and quoting several alleged perpetrators of the harassment. Ps. Br. (ECF No. 65) at 20.
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Plaintiffs also cite Budd’s December 16, 2019 formal complaint submitted through the
SkyWest Human Resources portal. Ps. App. (ECF No. 66) at 136-38. This evidence, viewed
favorably to plaintiffs as the nonmovants, is sufficient to enable a reasonable jury to find that
SkyWest had actual notice of the harassment as of at least one of these dates in December
2019.
3
Furthermore, plaintiffs have presented sufficient evidence for a reasonable jury to find
that SkyWest had constructive knowledge of the harassment. As proof that a person “with
remedial power over the harasser[s]” knew or should have known of the harassment, they
point to deposition testimony indicating that Hansen, the Maintenance Manager, was present
when violent or explicit remarks were made by his subordinates, and that he sometimes
personally participated in harassing behavior. Because he was the direct supervisor of all of
Budd’s other alleged harassers and therefore had the power to report or discipline them, this
evidence of Hansen’s awareness of their behavior could support a reasonable jury’s finding
that SkyWest had constructive knowledge of the harassment. See Sharp, 164 F.3d at 930
(when “the appropriate persons within th[e] enterprise”—i.e., individuals “with remedial
power over the harasser”—knew or should have known of the harassment, constructive
knowledge can be imputed to the employer).
Plaintiffs have also presented evidence that would enable a reasonable jury to find that
the harassing behavior was sufficiently “open and pervasive” as to give SkyWest
constructive knowledge.
Budd’s deposition testimony indicates that her alleged
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harassers—composed of approximately three-quarters of the individuals in her
department—engaged in frequent and open conversations of a sexual nature, mimed rape,
made sexually inappropriate jokes, and engaged in other sexually inappropriate behavior in
public areas of SkyWest DFW’s facility. Plaintiffs also point to a Human Resources
interview of a Maintenance department employee, who stated that use of “vulgar language,”
which he felt would have caused outsiders to the department to “most likely be offended and
be very uncomfortable,” was so ubiquitous at the facility that he simply “[didn’t] ‘hear’ it
anymore.” Ps. App. (ECF No. 66) at 142. This evidence further supports the conclusion that
there is a genuine issue of material fact whether SkyWest had constructive knowledge of the
harassment: it is proof that would enable a reasonable jury to find that, “had [SkyWest] but
opened its corporate eyes,” it would have known of the harassment. Sharp, 164 F.3d at 930.
C
The court considers next whether a reasonable jury could find that SkyWest failed to
take prompt remedial action.
1
When an employer, “once informed of allegations of sexual harassment, takes prompt
remedial action to protect the claimant, [it] may avoid Title VII liability.” Hockman v.
Westward Commc’ns, LLC, 407 F.3d 317, 329 (5th Cir. 2004) (citation omitted). “‘Prompt
remedial action’ must be ‘reasonably calculated’ to end the harassment.” Id. (quoting
Skidmore v. Precision Printing & Packaging, Inc., 188 F.3d 606, 615 (5th Cir. 1999)).
Whether the employer has taken prompt remedial action is a fact-specific inquiry, and “not
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every response by an employer will be sufficient to discharge its legal duty.” Skidmore, 188
F.3d at 615 (quoting Waltman, 875 F.2d at 479); see also Williams-Boldware v. Denton
County, 741 F.3d 635, 640 (5th Cir. 2014). “Rather, the employer may be liable despite
having taken remedial steps if the plaintiff can establish that the employer’s response was not
‘reasonably calculated’ to halt the harassment.” Skidmore, 188 F.3d at 615-16 (quoting
Waltman, 875 F.2d at 479). “Employers are not required to impose draconian penalties upon
the offending employee in order to satisfy this court’s prompt remedial action standard.”
Williams-Boldware, 741 F.3d at 640 (citation omitted).
2
SkyWest contends that plaintiffs have failed to show that, upon receiving notice of the
alleged sexual harassment, SkyWest did not take prompt remedial action. In particular,
SkyWest cites evidence that, “once notified of the alleged sexual harassment through Ms.
Budd’s email to Mr. Widmer on December 14, 2019 and her formal complaint submitted via
SkyWest’s online portal on December 16, 2019, a formal investigation into the allegations
was initiated the same day,” and that, “per SkyWest’s policy, Ms. Budd was placed on a paid
administrative leave, effective immediately, while SkyWest conducted its investigation[.]”
D. Br. (ECF No. 48) at 29 (emphasis in original). SkyWest maintains that its decision to
immediately place Budd on leave was a sufficiently prompt response reasonably calculated
to halt the harassment while SkyWest conducted its investigation.
Plaintiffs, however, focus on other evidence. Although they do not contest that
SkyWest took the actions on which it relies, plaintiffs cite evidence that they contend
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constitutes a failure by SkyWest (1) to act at all in response to Budd’s September 4, 2019
complaint to Widmer and (2) to follow through with its investigation of Budd’s December
2019 complaints in a thorough and timely manner. Based on the evidence on which plaintiffs
rely, the court concludes that plaintiffs have demonstrated a genuine issue of material fact
as to whether SkyWest failed to take prompt remedial action. Despite the fact that a
reasonable jury could find in SkyWest’s favor, it could also find that SkyWest’s overall
response was not reasonably calculated to end the harassment in question.
First, plaintiffs point to SkyWest’s Company Policy Manual and Dehais’ record of a
December 18, 2019 phone conversation with Widmer as evidence that, under SkyWest
policy, Widmer had a duty to immediately report Budd’s September 4, 2019 complaint to
Employee Relations and failed to do so, and that SkyWest consequently took no action in
response to her complaint. A reasonable jury could find that, if Budd’s September 4, 2019
complaint constituted actual or constructive notice of harassment, SkyWest failed to take
prompt remedial action in response to it.
Second, plaintiffs point to Dehais’ conversations with various SkyWest DFW
employees in January and February 2020 as evidence that SkyWest’s ultimate investigation
“was not targeted to identify harassers or specific harassing conduct and therefore not
‘reasonably calculated to end the harassment.’” Ps. Br. (ECF No. 65) at 28. As plaintiffs
posit, these records indicate that Dehais did not interview every person named in Budd’s
complaints, may not have asked for specifics when several individuals confirmed that
sexually explicit behavior and language were pervasive at the facility, and focused primarily
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on just one of Budd’s alleged incidents of harassment. Based on this evidence, a reasonable
jury could find that SkyWest’s investigation was not reasonably calculated to end the alleged
harassment.
Third, plaintiffs point to Dehais’ investigation records and deposition testimony as
evidence that, in February 2020, SkyWest recommended mandatory sexual harassment
training for all SkyWest DFW employees but failed to promptly carry out this training. The
record indicates that Dehais may have originally planned for the training to take place by
February 2020, because she stated in a January 20, 2020 telephone call to Budd that she
anticipated that Budd’s administrative leave would last approximately two weeks longer. But
the record also shows that SkyWest did not actually conduct this training until early
2023—three years after Dehais concluded her investigation—citing the COVID-19 pandemic
as the reason for the delay. Considering Dehais’ statement that the investigation concluded
around the first week of February 2020—at least a month before the outbreak of the COVID19 pandemic—and the fact that SkyWest could and regularly did conduct computer-based
harassment training even before the pandemic, a reasonable jury could find that SkyWest’s
delay in carrying out the training constitutes a failure to take prompt remedial action
concerning Budd’s complaints.
Fourth, plaintiffs point to evidence that the disciplinary action SkyWest allegedly did
take against three employees was at least partially ineffective, because one of the employees
who was supposedly disciplined testified that he had never been notified that he was subject
to discipline. As with plaintiffs’ other proffered evidence, a reasonable jury could find that
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SkyWest’s failure to notify an employee that he was being disciplined in connection with
Budd’s harassment allegations constitutes a failure to carry out prompt remedial action.
D
Because plaintiffs have designated specific facts demonstrating that there is a genuine
issue of material fact for trial as to all components of the only contested element of their
hostile work environment claim, the court holds that SkyWest is not entitled to summary
judgment dismissing this claim.
IV
The court turns next to plaintiffs’ retaliation claim.
A
To establish a Title VII retaliation claim, the plaintiff must show “(1) that [she]
engaged in activity protected by Title VII, (2) that an adverse employment action occurred,
and (3) that a causal link existed between the protected activity and the adverse action.”
Banks v. E. Baton Rouge Par. Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003) (internal quotation
marks and citation omitted). “Protected activity is defined as opposition to any practice
rendered unlawful by Title VII, including making a charge, testifying, assisting, or
participating in any investigation, proceeding, or hearing under Title VII.” Green v. Adm’rs
of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002) (citing 42 U.S.C. § 2000e-3(a)).
Complaining about behavior that the employee reasonably believes violates Title VII
constitutes protected activity. See Badgerow v. REJ Props., Inc., 974 F.3d 610, 619 (5th Cir.
2020). An “adverse employment action” is an action that a reasonable employee would find
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materially adverse, such that it might dissuade her from engaging in protected activity, like
making or supporting a charge of discrimination. See Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006).
SkyWest contends that it is entitled to summary judgment as to plaintiffs’ retaliation
claim because plaintiffs have proffered no evidence indicating that Budd suffered an
“adverse employment action.” Plaintiffs, on the other hand, maintain that Budd suffered an
“adverse employment action” when SkyWest (1) subjected her indefinitely to paid
administrative leave and (2) forced her to resign—i.e., constructively discharged her. The
court addresses each of these contentions in turn.
B
The court turns first to the question whether a reasonable jury could find that Budd
suffered an adverse employment action.
1
In some circumstances, a paid leave of absence from work can constitute an adverse
employment action. See Burlington N., 548 U.S. at 68; McCoy v. City of Shreveport, 492
F.3d 551, 558, 560 (5th Cir. 2007). Because allegedly retaliatory actions must be “viewed
in context,” the court must conduct a fact-specific inquiry to determine whether a paid leave
of absence is an adverse employment action. McCoy, 492 F.3d at 560. “[T]he mere fact that
[a plaintiff] was placed on paid administrative leave does not necessarily mean that she did
not suffer an adverse employment action.” Id. at 560 (emphasis in original); see Katz v.
Wormuth, 2023 WL 7001391, at *7 (5th Cir. Oct. 24, 2023) (suspending an employee under
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investigation was not in itself an adverse employment action, but employer’s prolonging of
suspension by repeatedly adding new grounds for investigation presented a triable question
whether an adverse employment action had occurred).
2
Plaintiffs point to evidence that elucidates the circumstances of Budd’s administrative
leave. Dehais’ investigation records indicate that Budd was placed on leave two days after
she submitted her formal complaint to SkyWest. Plaintiffs also cite evidence that Budd was
never given a definite return-to-work date and received only one (ultimately quite incorrect)
update in the course of five months concerning when she could return. These records also
reflect Budd’s May 21, 2020 request for an update on the investigation, which could indicate
that she had a desire to return.
On the other hand, the record indicates that it was SkyWest policy to place employees
on leave when an investigation into a claim of sexual harassment was needed, and that Budd
preempted that policy by indicating that “she did not want to work and would not return to
work until an investigation was complete.” D. App. (ECF No. 49) at 58-59, 123. The record
also shows that Budd ultimately took SkyWest’s COVID-19 early retirement option and
never returned to work. And Budd’s EEOC Charge of Discrimination, filed on May 11,
2020—ten days before Budd requested an update on the investigation from Dehais—states:
“I have/plan to take early retirement,” D. App. (ECF No. 49) at 86, which could enable a
reasonable jury to find that, by that point, she had no desire for reinstatement. And the
record does not indicate that SkyWest would have refused to reinstate her had she continued
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on leave until the harassment training was completed.
Some evidence on this point favors plaintiffs and some favors SkyWest. But at the
summary judgment stage, what matters is that plaintiffs have introduced sufficient evidence
for a reasonable jury to find that Budd’s paid administrative leave was an adverse
employment action. For example,4 a reasonable jury could find that, regardless of how
Budd’s administrative leave was instigated, a reasonable employee might be dissuaded from
engaging in protected activity if subjected to leave of such indefinite duration, because such
uncertainty could cause the employee to experience significant emotional distress and could
also negatively affect her chances for future advancement within the company.
C
The court turns next to the question whether a reasonable jury could find that Budd
was constructively discharged.
1
“In order to establish a prima facie case of retaliation based on constructive discharge,
[a plaintiff] must prove that working conditions would have been so difficult or unpleasant
that a reasonable person in [her] shoes would have felt compelled to resign.” Katz, 2023 WL
7001391, at *8 (quoting Harvill v. Westward Commc’ns, LLC, 433 F.3d 428, 439-40 (5th
4
“When this court denies rather than grants summary judgment [with respect to a
particular issue], it typically does not set out in detail the evidence that creates a genuine
issue of material fact.” Valcho v. Dall. Cnty. Hosp. Dist., 658 F.Supp.2d 802, 812 n.8 (N.D.
Tex. 2009) (Fitzwater, C.J.) (citing Swicegood v. Med. Protective Co., 2003 WL 22234928,
at *17 n.25 (N.D. Tex. Sept. 19, 2003) (Fitzwater, J.)).
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Cir. 2005) (internal quotation marks and citation omitted)); see McCoy, 492 F.3d at 557
(citation omitted) (“A constructive discharge occurs when the employer makes working
conditions so intolerable that a reasonable employee would feel compelled to resign.”). To
determine whether such conditions existed, the court considers whether the plaintiff suffered:
(1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work;
(5) badgering, harassment, or humiliation by the employer
calculated to encourage the employee’s resignation; or (6) offers
of early retirement that would make the employee worse off
whether the offer were accepted or not.
Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 771-72 (5th Cir. 2001); Katz, 2023 WL
7001391, at *8. “This inquiry is an objective, ‘reasonable employee,’ test under which [the
court] ask[s] ‘whether a reasonable person in the plaintiff’s shoes would have felt compelled
to resign.’” McCoy, 492 F.3d at 557 (quoting Haley v. Alliance Compressor LLC, 391 F.3d
644, 650 (5th Cir. 2004)).
2
Plaintiffs point to evidence that Budd suffered a “total reduction in job
responsibilities” when she was placed on administrative leave; that her “continued but
unanswered complaints” about the sexually hostile work environment “added to the
intolerability of her working conditions,” Ps. Br. (ECF No. 65) at 42; and that she received
an offer of early retirement.
The court holds that a reasonable jury could not find that Budd was constructively
discharged.
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First, it appears that Budd took administrative leave at her own insistence. And
although Dehais informed Budd that she would remain on leave until in-person sexual
harassment training was conducted, plaintiffs have presented no evidence that SkyWest
would have forbidden Budd from returning to work had she explicitly requested to do so,
given that Budd was not herself under investigation.
Second, plaintiffs point to no evidence indicating that any alleged failure by SkyWest
to respond to Budd’s complaints was calculated to encourage her resignation. Nor do
plaintiffs cite evidence that contradicts SkyWest’s contention that “the working conditions
were not so intolerable because Ms. Budd requested to work part-time on the last day she was
physically present at SkyWest DFW[.]” D. Reply (ECF No. 72) at 16.
Third, SkyWest’s early retirement option was not offered to Budd individually, or
offered in response to Budd’s complaints; rather, it was a blanket offer to all eligible
employees that just so happened to be available during the time of Budd’s administrative
leave. Plaintiffs have also failed to introduce evidence that SkyWest presented this offer to
Budd as her only alternative to continuing on administrative leave. Consequently, this type
of early retirement offer does not reflect difficult or unpleasant work conditions that would
support a claim of constructive discharge. Thus “[e]ven considering the summary judgment
evidence here in the light most favorable to [plaintiffs], [the court] is satisfied that a
reasonable employee in [Budd’s] position would not have felt compelled to resign.” McCoy,
492 F.3d at 557-58.
The court therefore dismisses plaintiffs’ retaliation claim based on a theory of
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constructive discharge.5
3
Because plaintiffs have demonstrated a genuine issue of material fact as to whether
Budd suffered an “adverse employment action”—namely, a leave of absence of indefinite
duration—SkyWest is not entitled to summary judgment dismissing plaintiffs’ retaliation
claim, except to the extent that the claim relies on a theory of constructive discharge.
D
The court turns next to the third element of plaintiffs’ retaliation claim: whether a
causal connection exists between Budd’s protected activity and the adverse employment
action alleged. At the summary judgment stage, SkyWest, as the movant, has the burden of
“pointing to the absence of evidence” on this element of the claim. Celotex Corp., 477 U.S.
at 325. Because SkyWest does not address whether plaintiffs have evidence as to this
element, SkyWest is not entitled to summary judgment based on the absence of sufficient
evidence of causation.
E
In summary, SkyWest is not entitled to summary judgment dismissing plaintiffs’
retaliation claim, except to the extent that the claim relies on a theory of constructive
discharge.
5
Plaintiffs’ complaint alleges that “[Skywest] subjected [Budd] to retaliation for
making complaints about the discrimination, ultimately leading to her constructive
discharge.” Compl. at 1 (setting out “Nature of the Action”). It is this theory that the
plaintiffs cannot rely on to support their retaliation claim.
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V
The court turns next to the issue of plaintiffs’ entitlement to backpay.
A plaintiff “who is successful in obtaining an injunction under Title VII . . . should
ordinarily be awarded back pay unless special circumstances would render such an award
unjust.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 412 (citing Newman v. Piggie Park
Enters., Inc., 390 U.S. 400, 402 (1968)). But “it is well settled in this circuit that, in order
for an employee to recover back pay for lost wages beyond the date of [her] retirement or
resignation, the evidence must establish that the employer constructively discharged the
employee.” Jurgens v. EEOC, 903 F.2d 386, 389 (5th Cir. 1990) (citing Bourque v. Powell
Elec. Mfg. Co., 617 F.2d 61, 65-66 & n.8 (5th Cir. 1980)).
Here, plaintiffs seek backpay only for the period beyond May 30, 2020, the date Budd
took early retirement.6 Because the court has dismissed plaintiffs’ constructive discharge
claim, plaintiffs are not entitled to recover backpay for this period.
6
Plaintiffs state in their response brief:
As a preliminary matter, the EEOC and Budd only seek backpay
damages for Budd’s disparate treatment and retaliatory
constructive discharge claims to which she is entitled. This
encompasses backpay accrued between May 2020 and the
present, less any income earned. The Plaintiffs do not seek
backpay damages for the period during from December to May,
when Budd was retaliatorily placed on indefinite leave like
Defendant suggests.
Ps. Br. (ECF No. 65) at 39.
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*
*
*
For the reasons explained, the court grants SkyWest’s motion for summary judgment
in part and denies it in part.
SO ORDERED.
February 7, 2024.
_________________________________
SIDNEY A. FITZWATER
SENIOR JUDGE
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