Smith v. Management and Training Corporation

Filing 34

MEMORANDUM OPINION AND ORDER granting 25 Motion for Summary Judgment filed by Management and Training Corporation. Plaintiff take nothing on his claims against defendant; and that such claims be, and are hereby, dismissed. (Ordered by Judge John McBryde on 1/4/2017) (npk)

r- NORmR':i~~~'CT()f

V.S. DiST!nCr COURT

.•

rms

---lI

IN THE UNITED STATES DISTR CT CO~T
{
NORTHERN DISTRICT OF T XAS
JAN - il 2017
FORT WORTH DIVISIOl
---J
ISAIAH SMITH t

CI

§

.

Iy----:-

fi~~

§
§

Plaintiff t

~:RK,lJ.s. DIS I RlCTCm'WI

'-'--

._----

§

VS.

§
§

MANAGEMENT AND TRAINING
CORPORATION t

§
§
§

Defendant.

NO. 4:16-CV-176-A

§

MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant t
Management & Training Corporation t for summary judgment. The
court t having considered the motion 1 t the record t the summary
judgment evidence t and applicable authorities t finds that the
motion should be granted.
1.

Plaintiffts Claims
On March 2 t 2016 t plaintiff t proceeding pro set filed his
complaint in this action. On August 15 t

2016 t

plaintiff t acting

Ian December 27,2016, plaintiff filed a brief in response to the motion along with an appendix
in support. The court ordered the brief and appendix stricken as the appendix wholly failed to comply
with the undersigned's requirements that the appendix be appropriately bound, numbered, tabbed, and
highlighted. On December 29, 2016, plaintiff filed a different appendix (less than half the length of the
original), which again contained no highlighting. The court has given the materials in the appendix
whatever weight they may deserve. See Duffy v. Leading Edge Prods., Inc. , 44 F.3d 308, 312 (5 th Cir.
1995); Lechuga v. Southern Pac. Transp. Co., 949 F.2d 790, 798 (5 th Cir. 1992)(conclusory statements in
affidavits are insufficient to raise an issue to defeat summary judgment).

"f

I

I

through counsel and without leave of court, filed his first
amended complaint. 2 See Fed. R. civ. P. 15(a).
Plaintiff alleges: He is a 21 year-old homosexual male, who
was hired by defendant to be a correctional officer at a
correctional facility in Bridgeport, Texas. He began his
employment on June 2, 2014. He was repeatedly harassed and
subjected to a hostile working environment and ultimately
constructively discharged. In particular, plaintiff's complaints
focus on the alleged refusal of defendant to allow him to conduct
strip searches of male inmates at the Bridgeport facility.
Plaintiff asserts claims under Title VII of the civil Rights Act
of 1964, 42 U.S.C. §§ 2000e to 2000e-17

("Title VII"),

for

hostile work environment, gender stereotyping, and retaliation.
II.
Grounds of the Motion
Defendant urges three grounds in support of its motion.
First, plaintiff cannot establish discriminatory discharge based
on sex. Second, plaintiff cannot establish sexual harassment or a
hostile work environment. And, third, plaintiff did not suffer
retaliation, i.e., cannot establish the necessary elements of a
retaliation claim.

2Defendant filed an answer to the amended complaint, apparently acquiescing in its filing.
2

III.
Applicable Legal Principles
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986).

The movant bears the initial burden of pointing out to

the court that there is no genuine dispute as to any material
fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).

The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim,

~since

a complete failure of proof

concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."

Id. at 323.

Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.

Id. at 324; see also Fed. R. civ. P. 56(c)

asserting that a fact .
the assertion by
the record

(~A

party

is genuinely disputed must support
citing to particular parts of materials in

.").

If the evidence identified could not lead

a rational trier of fact to find in favor of the nonmoving party

3

as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.

Matsushita Elec. Indus. Co. v. zenith Radio Corp.,
In Mississippi Prot. & Advocacy

475 U.S. 574, 587, 597 (1986).

Sys., Inc. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find for
the nonmoving party, there is no issue for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law. 3

Celotex Corp., 477 U.S. at 323.

If the record taken as a

whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.
Matsushita, 475 U.S. at 597i see also Mississippi Prot. &
Advocacy Sys., 929 F.2d at 1058.
IV.

Facts Established by Summary Judgment Evidence
Plaintiff only worked for defendant from June 2 through
October 14, 2014, after which date he refused to return to work.
For the first few weeks, he received on-the-job training, then he

3In Boeing Co. v. Shipman, 411 F.2d 365,374-75 (5th Cir. 1969) (en bane), the Fifth Circuit
explained the standard to be applied in determining whether the court should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.
4

was assigned to the night shift as a correctional officer.
Plaintiff received copies of defendant's employee handbook and
policy statement regarding anti-harassment, both of which
specifically state that defendant prohibits harassment based on
sexual orientation. Both note the importance of making defendant
aware of alleged harassment by reporting it immediately to the
human resources manager or facility director.
On three separate occasions, plaintiff did not follow
proper call-in procedures (meaning that he did not timely notify
defendant that he would not be at work) and was disciplined. On
October 5, 2014, plaintiff acknowledged that any further
violation would result in disciplinary action, including
termination.
Plaintiff did not notify defendant's human resources
department until after October 14, 2014, that he was being
harassed based on his sexual orientation. At that time, he sent
emails and attached copies of handwritten notes regarding alleged
conduct. It is not clear when the handwritten notes were made.
Many are undated and most are regarding plaintiff's performance
of his job and the need to write up offenders who fail to follow
orders. On October 16, 2014, defendant notified plaintiff that it
had made arrangements for him to work on a day shift, away from
the employees who had allegedly harassed him, while his complaint

5

was being investigated. Although plaintiff confirmed by email
that he would return to work, he never did. On October 19, 2014,
plaintiff emailed additional handwritten notes, all but one of
which are undated.
A warden from a different facility was assigned to
investigate plaintiff's claims. He met with plaintiff on October
28, 2014, for several hours. He interviewed more that twenty
other employees. On November 5, 2014, he issued his report, which
among other things says that offenders who refused to be stripsearched by plaintiff were disciplined; plaintiff never told
anyone in authority that he believed he was being harassed based
on his sexual orientation; he was not told he could not conduct
strip searches, only that he was removed from searches when
inmates became agitated; and, plaintiff was not assigned to a
picket position as punishment. Plaintiff did not think the warden
acted in bad faith in conducting the investigation.

v.
Analysis
To establish a case of sex discrimination, plaintiff must
show:

(1) he is a member of a protected class;

qualified for the position at issue;

(2) he was

(3) he suffered an adverse

emploYment action; and (4) he was treated less favorably than

6

other similarly situated employees outside the protected group.
McCoy v. City of Shreveport/ 492 F.3d 551/ 556 (5 th Cir. 2007).
Defendant first alleges that homosexuality is not a
protected class under Title VII. See Brandon v. Sage Corp./ 808
F.3d 266/ 270 n.2

(5 th Cir. 2015); Smith v. Liberty Mut. Ins.

Co./ 569 F.2d 325/ 326-27 (5 th Cir. 1978); Mims v. Carrier Corp./
88 F. Supp. 2d 706/ 713-14

(E.D. Tex. 2000). Although that may be

true/ the Supreme Court has indicated that sex discrimination may
be inferred from harassment by a homosexual of a heterosexual
male. Oncale v. Sundowner Offshore Servs., Inc./ 523 U.S. 75/ 80
(1998). And/ sexual stereotyping may provide evidence of sex
discrimination. See Price Waterhouse v. Hopkins/ 490 U.S. 228
(1989). Nevertheless/ the burden remains on the plaintiff to show
that adverse action was taken because of his sex.
As a male/ plaintiff is a member of a protected class. The
court need not decide whether the subset of homosexual males is a
separate protected class. Although defendant does not address the
issue/ it appears that an argument could be made that plaintiff
was not qualified for the position he held given his apparent
fixation on/ and possible prurient interest in/ strip searching
male inmates. See 42 U.S.C.

§

2000e-2(e) .

with regard to the third element of his cause of action/
plaintiff must show that he suffered an adverse employment

7

action. That is, he must show that he was adversely affected by
an ultimate employment decision, such as hiring, firing,

failure

to promote, a reassignment to a position with significantly
different responsibilities or a decision causing a significant
change in benefits. McCoy, 492 F.3d at 560i Robison v. Texas
Dept. of Crim. Justice, 94 F. App'x 225, 228

(5 th Cir. 2004). His

complaint that he was denied the ability to strip search inmates
is not an ultimate employment decision, even assuming it is
true. 4 In any event, there is no evidence that plaintiff was
permanently reassigned or would not have been allowed to return
to his positioni he simply refused to come back to work. And,
there is no evidence that plaintiff would have been harmed in his
career advancement based on his temporary reassignment. A new
correctional officer simply needs to be aware of every post.
Promotion is based on a number of factors,

including all

experience combined.
Plaintiff cannot establish that he was constructively
discharged. There is no evidence of a demotion, reduction in
salary, reduction in significant job responsibilities,
reassignment to menial or degrading work, or any other conduct

4The summary judgment evidence shows that, contrary to plaintiffs conclusory allegation,
plaintiff was not prohibited from conducting strip searches; rather, he was removed from situations when
inmates became agitated. There is no evidence that other correctional officers were treated differently in
similar situations.
8

that would have given a reasonable person in plaintiff's position
no choice but to resign. McCoy, 492 F.3d at 557. The evidence
shows that defendant offered to allow plaintiff to work a
different shift; allowed him to stay on unpaid leave while it
investigated his complaints; and repeatedly requested him to
return to work. That plaintiff did not like the options available
to him, such as working an earlier shift or working picket, does
not establish that he was constructively discharged. Hunt v.
Rapides Healthcare Sys., L.L.C., 277 F.3d 757, 772

(5 th Cir.

2001) (constructive discharge cannot be based on an employee's
subjective preference for one position over another); Jurgens v.
E . E . 0 . C., 903 F. 2 d 3 8 6, 3 91 (5 th Ci r. 1990).
As for the fourth element, plaintiff has not come forward
with any evidence to show that he was treated differently from
any similarly situated co-worker. Paske v. Fitzgerald, 785 F.3d
9 7 7, 98 5 (5 th Ci r. 2 015) .
And, in any event, even if plaintiff could establish a prima
facie case of discrimination, he is not able to show that
defendant's reason for ending his emplOYment is pretext for
discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143
212, 220

(2000); Wallace v.MethodistHosp. sys., 271 F.3d

(5 th Cir. 2001). Plaintiff simply refused to return to

work and defendant interpreted his refusal as a voluntary

9

resignation. Plaintiff's disagreement with defendant's assessment
of his actions does not create a fact issue for trial. Sandstad
v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5 th Cir. 2002).
To establish a claim for hostile work environment, plaintiff
must show that:

(1) he belongs to a protected class;

subjected to unwelcome harassment;
on sex;

(2) he was

(3) the harassment was based

(4) the harassment complained of affected a term,

condition, or privilege of employment; and (5) defendant knew or
should have known of the harassment in question and failed to
take prompt remedial action. Frank v. Xerox Corp., 347 F.3d 130,
138 (5 th Cir. 2003). The court considers the frequency of the
alleged discriminatory conduct, its severity, whether it is
physically threatening or humiliating, and whether it
unreasonably interferes with an employee's work performance. Id.
To affect a term, condition, or privilege of emploYment, the
harassing conduct must be sufficiently severe or pervasive to
alter the conditions of employment and create an abusive working
environment. E.E.O.C. v. Boh Bros. Constr. Co., L.L.C., 731 F.3d
444, 453

(5 th Cir. 2013). Courts use an objective, reasonable

person standard to evaluate the severity and pervasiveness of the
alleged hostile environment, bearing in mind that Title VII is
not a general civility code for the American workplace. Id. at
453-54. Whether same-sex or opposite-sex harassment is alleged,

10

the plaintiff must prove that discrimination occurred because of
sex and that the harasser's behavior was so objectively offensive
as to alter the conditions of his emploYment. rd.
Here, the facts pale in comparison to cases where a hostile
working environment was found. That is, a reasonable person in
plaintiff's position-a guard at a prison-- would not have found
the environment to be objectively hostile or abusive. Oncale, 523
U.S. at 81. But, even if plaintiff had been able to raise a
genuine fact issue with regard to the hostility, there is no
evidence to establish that defendant knew or should have known of
the harassment and failed to take prompt remedial action.
Plaintiff did not report the harassment as directed by
defendant's policy until after he quit working. And, once
notified, defendant immediately undertook an investigation,
offering plaintiff an interim solution, which he refused.
Plaintiff had no opportunity to succeed in the workplace, because
he declined the opportunity. This is simply the case of a young
man barely out of high school who thought he knew better than
defendant how to run a correctional facility and when defendant
declined to kowtow to his demands, decided that he would pursue
legal action rather than return to work.
To make out a case of retaliation, plaintiff must show that:
(1) he engaged in protected activity;

11

(2) an adverse employment

action occurredi and (3) a causal link exists between his
protected activity and the adverse employment action. Stewart v.
Mississippi Transp. Comm/n l
Here

l

586 F.2d 570 1 575 (5 th Cir. 2009).

there is no evidence that plaintiff was retaliated against

for engaging in protected activitYI because he never returned to
work after reporting to defendant that he was being harassed. He
was not fired for engaging in protected activitYi rather

he

l

simply failed to return to work. To the extent plaintiff/s
complaints to co-workers could be interpreted as notice to
defendant

I

the record reflects that plaintiff was offered the

opportunity to work a different shift but refused. Ms. Galloway
reminded plaintiff that he worked in a prison and needed to
develop thick skin. The co-worker who used offensive language was
admonished not to do so. In any event

I

rude treatment or name-

calling is insufficient to show adverse emploYment action.
Hernandez v. Yellow Transp.,

Inc'

l

670 F.3d 644

1

657 (5 th Cir.

2012) i Aryain v. Wal-Mart Stores Tex., L,P' I 534 F.3d 473

1

484-85

(5 th Cir. 2008). Defendant conducted a thorough investigation of
plaintiff/s complaints and found that plaintiff/s problems were
indicative of his relative inexperience as a correctional
officer. Plaintiff has not made any attempt to show that the
investigation was not conducted in an appropriate manner or that
defendant/s actions were pretext for discrimination.

12

VI.
Order
The court ORDERS that defendant's motion for summary
jUdgment be, and is hereby, granted; that plaintiff take nothing
on his claims against defendant; and that such claims be, and are
hereby, dismissed.
SIGNED January 4, 2017.

13