Adams v. B&B Restaurants, Inc et al

Filing 44

MEMORANDUM AND OPINION granting 21 MOTION for Summary Judgment. (Signed by Magistrate Judge Stephen Wm Smith) Parties notified. (jmarchand)

U N IT E D STATES DISTRICT COURT S O U T H E R N DISTRICT OF TEXAS H O U S T O N DIVISION M ICHELLE ADAMS, P l a in tif f , vs. § § § § § § § § § §

C iv il Action H-07-1352

B & B RESTAURANTS, INC., D e f e n d a n t.

O p in io n on Summary Judgment D e f e n d a n t B & B Restaurants, Inc. has filed a motion for summary judgment (Dkt. 2 1 ) in this Title VII race discrimination and hostile environment case. As explained below, B & B's motion is granted, and plaintiff Michelle Adams's complaint (Dkt. 1) is denied with p re ju d ic e . Background T h is lawsuit was spawned by a heated disagreement over a work schedule for W e n d y's Restaurant in Clear Lake, Texas. On Saturday, November 11, 2006, plaintiff M iche lle Adams became upset when she learned of a change made to the next week's work sc h e d u le by store manager Bianca Sanchez. According to Adams, whose version of events m u s t be credited for purposes of this motion, Sanchez responded to Adams's complaint by s c re a m in g obscenities laced with racial slurs. The confrontation lasted for several minutes,

1

c u lm in a tin g when Sanchez retreated to her office and made a call to her supervisor, Chadi S a n s a l, telling him, in Adams's presence, to get the "nigger bitch out of her store." She r e p e a te d this phrase at least three times. S a n s a l responded by sending Adams to work at a different store for the night, although A d a m s was still expected to report back to Sanchez's store the following day. While S a n c h e z would not be working on Sunday, Sansal told Adams that he would be present on M o n d a y to the extent that Sanchez and Adams's schedules overlapped, and would talk to th e m then to attempt to work things out. Adams claims that because B & B did not im m e d ia te ly discipline Sanchez, she told her husband she did not want to go back and he to ld her to quit. When Sansal called Adams to attempt to work things out, Adams announced th a t she quit and hung up the phone. She never returned to work. Thereafter B&B in v e stig a te d the incident, taking written statements from employees present during the c o n f ro n ta tio n . As a result, Sanchez was given a written reprimand, but received no further d is c ip lin e . B & B has moved for summary judgment on the following grounds (among others that n e e d not be addressed): (1) Adams did not raise all her claims in her EEOC charge, and t h e r e f o re cannot litigate them here; (2) Adams's resignation was not the result of working c o n d itio n s so intolerable as to constitute constructive discharge; and (3) a single incident in v o lv in g racial slurs is insufficient to constitute a hostile work environment based on race.

2

S t a n d a r d of Review T o obtain summary judgment, B & B bears the burden of demonstrating that "the p le a d in g s , depositions, answers to interrogatories, and admissions on file, together with the af fid av its, if any, show that there is no genuine issue as to any material fact" and therefore ju d g m e n t is appropriate as a matter of law. FED. R. CIV. P. 56(c). Summary judgment should is s u e if, after having adequate time for discovery, Adams has produced insufficient evidence t o create a jury question on one or more of the essential elements of her claims. Celotex C o rp . v. Catrett, 477 U.S. 317, 327 (1986). In determining the existence of a genuine issue o f material fact, the court will consider the evidence in the light most favorable to the n o n m o v in g party. Hotard v. State Farm Fire & Cas. Co., 286 F.3d 814, 817 (5th Cir. 2002). A n a ly sis 1. E x h a u s tio n of Administrative Remedies B e f o re a Title VII litigant can bring her claims to court, she must first present them to the EEOC for investigation and possible conciliation with her employer. 42 U.S.C. § 2 0 0 0 e -5 (e )(1 ); Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974). Adams filed her E E O C charge on November 14, 2006, just three days after the incident in question. In p ara g rap h 1 of her charge, Adams rehearses her version of the confrontation with store m a n a g er Sanchez, concluding with the statement that "[o]n November 12, 2006 I told Chadi S a n s a l I quit and could not take being in the same environment with [Sanchez]." 1
1

The

D.Ex. 2. 3

s e c o n d paragraph complains that management knew about the racial slurs but took no action o th e r than to send Adams to another store. The third and final paragraph asserts that this tre a tm e n t constituted discrimination on account of her race.2 B & B contends that this charge is insufficient to exhaust administrative remedies with re sp e c t to Adams's claims of constructive discharge and racially hostile work environment. T h e court disagrees. The standard for defining the proper relationship between a Title VII la w s u i t and the underlying EEOC charge was set forth in the seminal case of Sanchez v. S ta n d a r d Brands, Inc., 431 F.2d 455 (5th Cir. 1970). Sanchez teaches that the scope of the ju d icia l complaint is limited to the scope of "the EEOC investigation which can reasonably b e expected to grow out of the charge of discrimination." Id. at 466; see also McClain v. L u f k in Indus., 519 F.3d 264, 273 (5th Cir. 2008). It is true, as B&B argues, that Adams did n o t use the phrase "constructive discharge" in her charge, but she did not need to. The first p a ra g ra p h expressly states that Adams quit because she could no longer stand to work in that e n v iro n m e n t, a classic form of constructive discharge. See, e.g., Pennsylvania State Police v . Suders, 542 U.S. 129, 147-48 (2004) ("A constructive discharge involves both an e m p lo ye e 's decision to leave and precipitating conduct . . . [which] may or may not involve o f f i c i a l action."). The facts presented in paragraph one would certainly have triggered a c o n stru c tiv e discharge investigation by the EEOC. Whether these allegations would actually s u p p o rt a finding of constructive discharge is another question entirely, as shown below. Nor

2

Id. 4

is there any doubt that the allegations in paragraph 2 would be sufficient to launch an EEOC in v e stig a tio n regarding a racially hostile work environment. Racial slurs are staple fare for s u c h investigations. See, e.g., Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000) (fact iss u e raised on issue of hostile work environment based on racial comments); EEOC v. W C & M Enterprises, 496 F.3d 393, 400 (5th Cir. 2007) (EEOC brought hostile work e n v iro n m e n t claim on behalf of employee subjected to verbal harassment based on religion a n d national origin). Again, whether the facts alleged (i.e., a single incident of harassment) w o u ld suffice to impose liability on this theory is an entirely different question. Finally, B&B points out that Adams did not assert a claim of unlawful retaliation in her E E O C charge. This observation is true, but also irrelevant, because Adams has pled no such c la im in her original complaint.3 Thus, no retaliation claim is before the court. In sum, Adams has satisfied the procedural requirements for pursuing the constructive d isc h a rg e and hostile work environment claims asserted in her complaint. 2. C o n s tr u c tiv e Discharge The well-established test for constructive discharge is whether "working conditions [ b e c a m e ] so intolerable that a reasonable person in the employee's position would have felt c o m p e lle d to resign." Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004). The tes t is rather stringent: a plaintiff claiming that her resignation was compelled by a hostile w o rk environment "must demonstrate a greater severity or pervasiveness of harassment than
3

The court earlier denied permission for Adams to file an amended complaint (Dkt. 40), so her original complaint remains the operative pleading in the case. 5

th e minimum required to prove a hostile working environment." Harville v. Westward C o m m u n ic a tio n s LLC, 433 F.3d 428, 440 (5th Cir. 2005); see also Suders, 442 U.S. at 147 (" A hostile-environment constructive discharge claim entails something more."). As discussed below, plaintiff's claim of racial harassment rests entirely upon a single u g ly episode sparked by a work schedule dispute. Even assuming for the sake of argument th a t this lone verbal exchange created a hostile work environment, it hardly rises to the " in to le ra b le " level necessary for constructive discharge. In Landgraf v. USI Film Products, f o r example, the Fifth Circuit found "substantial harassment" involving "continuous and r e p e a te d inappropriate verbal comments and physical contact" was insufficient to establish a constructive discharge. 968 F.2d 427, 430-31 (5th Cir. 1992). The working conditions of w h ic h Adams complains were neither "continuous and repeated" nor involved physical c o n ta c t, and so fall well short of the Landgraf benchmark for intolerability. A d a m s 's constructive discharge claim also fails for another reason. An employee c o n f ro n tin g intolerable working conditions must act reasonably. Among other things, this e n ta ils giving the employer notice and opportunity to remedy the situation. See Aryain v. W a l-M a r t Stores Texas LP, 534 F.3d 473, 482 (5th Cir. 2008) (employee must make an effort to allow employer to remedy the problems identified); Dornhecker v. Malibu Grand Prix C o r p ., 828 F.2d 307, 310 (5th Cir. 1987) ("part of an employee's obligation to be reasonable i s an obligation not to assume the worst, and not to jump to conclusions too fast," quoting G a r n e r v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. 1987) (emphasis in

6

o ri g in a l) . It is apparent that Adams assumed the worst here. She resigned the next day after her e n c o u n ter with Sanchez, giving management no chance even to investigate the incident, m u c h less take appropriate remedial action. In its recent opinion in Aryain, the Fifth Circuit re je c te d a constructive discharge claim on closely analogous facts. Upset at being left off the w o rk schedule of a department to which she had been recently transferred, Aryain resigned a day or two later, never having complained about negative treatment in that department. T h e court rejected her constructive discharge claim because "she assumed the worst and m a d e no effort to allow Wal-Mart the opportunity to remedy the problems she identified" a f te r the fact. 534 F.3d at 482. So too here, Adams's decision to leave her job without a llo w in g B&B an opportunity to remedy the situation was unreasonable. Thus, B&B is entitled to summary judgment on the constructive discharge claim b e c au s e the working conditions Adams faced were not intolerable and because her p re c ip ito u s resignation unreasonably denied B&B the opportunity to resolve the problem. 3. R a c ia lly Hostile Work Environment T itle VII proscribes not only economic or tangible discrimination, but also raciallyb a se d harassment which is sufficiently severe or pervasive to alter the conditions of the v ic tim 's employment and create an objectively hostile or abusive working environment. See M e r ito r Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). To determine whether an e n v iro n m e n t is "hostile" or "abusive" the court must look at all the circumstances, including

7

" th e frequency of the discriminatory conduct; its severity; whether it is physically threatening o r humiliating, or a mere offensive utterance; and whether it interferes with the employee's w o rk performance." Harris v. Forklift Sys., 510 U.S. 17, 23 (1993). "Under the totality of th e circumstances test, a single incident of harassment, if sufficiently severe, could give rise to a viable Title VII claim. . . ." EEOC v. WC&M Enterprises, 496 F.3d 393, 400 (5th Cir. 2 0 0 7 ). However, "`mere utterance of an . . . epithet which engenders offensive feelings in a n employee' does not sufficiently affect the conditions of employment to implicate Title V II." Harris, 510 U.S. at 21(quoting Meritor, 477 U.S. at 67). Although plaintiff's counsel would have it otherwise,4 Adams admitted in her d e p o sitio n testimony that she had no other complaints of discrimination prior to the date of th e incident in question, November 11, 2006.5 According to her EEOC charge, Sanchez on th a t occasion "got close in my face and said `Fuck you' three times." 6 She also yelled on the p h o n e to her supervisor, "Get this nigger bitch out of my store."7 Adams admitted that this w a s the only occasion that Sanchez had ever used either the F-bomb or the N-word in her p r e s e n c e .8

4

Plaintiff cites an unauthenticated document purporting to be an amended EEOC charge asserting that the discrimination commenced on October 20, 2005. Even if this document were properly before the court, the record is entirely silent as to the events of that day. Adams Dep. at 22. D.Ex. 2. Id. Id. at 56. 8

5

6

7

8

N o n e of the Harris factors support a finding of severe or pervasive harassment here. W h ile the words used were unquestionably offensive, they were uttered on a single occasion, u n d e r circumstances that were not physically threatening. Adams does not claim that S a n c h e z assaulted or even touched her. Sanchez admitted losing her temper, but

u n c h a lle n g e d eye-witness testimony makes clear that Adams's own behavior was p ro v o c a tiv e .9 Nor did this incident interfere with Adams's work performance; she finished h e r shift at another store, and then quit the next day without giving her supervisor an o p p o rtu n ity to deal with her complaint. This is simply not a workplace "permeated with discriminatory intimidation, ridicule, a n d insult" of the sort that the hostile work environment theory was designed to remedy. T itle VII is not a general civility code, and does not convert every workplace argument into a federal case, even when curses and insults are exchanged. Oncale v. Sundowner Offshore S e r v ic e s , Inc., 523 U.S. 75, 80 (1998). On this record, no reasonable jury could find, based o n this single unfortunate incident, a racially hostile or abusive work environment so severe o r pervasive as to alter the conditions of Adams's employment. C o n c lu s io n S u m m a ry judgment is proper because Adams has not demonstrated the existence of a n y material questions of fact with respect to the essential elements of her Title VII claims.

9

According to Amanda Cantu's statement, Adams walked into Sanchez's office and berated her with these insults: "you are poor and unhappy," "your life is all messed up," "you have no money," "all your kids are in jail," and "your lights always get turned off." D.Ex. 3, Tab 8. 9

S e e Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Defendant's motion for summary ju d g m e n t is granted. A separate final judgment will issue. Signed at Houston, Texas on September 4, 2008.

10