Washington v. Gulf States Toyota, Inc.

Filing 60

MEMORANDUM OPINION AND ORDER granting in part and denying in part 50 MOTION for Summary Judgment. The motion is denied with respect to the section 1981 race discrimination and Title VII retaliation claims, and granted with respect to the Title VII sex discrimination and sexual harassment claims.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
NELSON WASHINGTON,
Plaintiff,
VS.
GULF STATES TOYOTA, INC.,
Defendant.

§
§
§
§
§
§
§
§

July 07, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. 4:14-CV-02511

MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION
Pending before the Court is the defendant's, Gulf States Toyota, Inc. (the “defendant”),

motion for summary judgment and brief in support (Dkt. No. 50). The plaintiff, Nelson
Washington (the “plaintiff”), has filed a response in opposition to the motion (Dkt. No. 55), to
which the defendant has filed a reply (Dkt. No. 57). After having carefully considered the
motion, response, reply, the record and the applicable law, the Court determines that the
defendant's motion for summary judgment should be GRANTED in part and DENIED in part.
II.

FACTUAL AND PROCEDURAL BACKGROUND
This case concerns an employment discrimination dispute. The plaintiff, an African–

American male, began working as an Operations Team Leader for the defendant on March 18,
2013, at its Spring, Texas location. During his employment with the defendant, the plaintiff was
responsible for managing installation operations and overseeing associates in the defendant's
Vehicle Processing Center (“VPC”). The plaintiff reported directly to Ayanna Betts (“Betts”),
the defendant’s Operations Manager. The plaintiff worked alongside a fellow Operations Team
Leader, Christopher St. James (“St. James”), a white man who had the same duties and
responsibilities as the plaintiff.

1 / 16

According to the plaintiff, in April 2013, Myrisha Thomas (“Thomas”), one of the
installation associates who reported directly to the plaintiff began making sexual comments and
gestures towards him. Specifically, Thomas: (1) made a sexual inference about the plaintiff
having small feet; (2) pressed her breast against the window of the plaintiff’s cubicle to get his
attention; (3) in her workout attire, Thomas sat on a desk behind the plaintiff with her legs
“cocked open”; and (4) made a sexual innuendo about needing more lubrication to attach a
centerpiece on a tire assembly. The plaintiff reported Thomas’ conduct to Betts as well as
Kendace Culbreth (“Culbreth”), the defendant’s Human Resources Manager and gave Thomas a
verbal warning.
In September 2013, the plaintiff complained to Betts that he was being treated less
favorably than St. James. Specifically, the plaintiff complained that he received a lower salary
than St. James and was required to conduct certain functions that were contrary to protocol while
St. James was not. After making his complaints, the plaintiff claims he began noticing that he
was placed under increased surveillance and scrutiny by the defendant. On September 30, 2013,
the defendant placed the plaintiff on a Performance Improvement Plan (“PIP”) 1 because of
perceived deficiencies with his communication skills.
On October 1, 2013, the plaintiff raised concerns regarding the perceived discriminatory
nature of the PIP—that he was not being treated like St. James.2 On November 6, 2013, the

1

Based on the record, the PIP is a probationary program focused on professional development in specified areas.
The plaintiff was given a 45 day evaluation period to improve his performance or be subject to disciplinary action.
The plaintiff signed an acknowledgment of receipt of the PIP. (See Dkt. No. 50, Ex. C, Washington Depo. at 104:14
- 105:3).
2

The plaintiff asserts that the PIP was issued as a result of an incident during a June 3, 2013 team meeting where the
plaintiff failed to restrain associates from talking and provided “excess information.” Comparatively, the plaintiff
claims that St. James was involved in incidents more egregious when St. James failed to supply the associates with
correct information during a presentation resulting in 10-12 associates receiving reprimands. Also, the plaintiff
reveals another incident where he accumulated 10 quality alerts on a Saturday production shift he supervised.

2 / 16

plaintiff confronted Thomas regarding installation assignments that were incomplete. During the
encounter, Thomas became outrage and instructed the plaintiff to “shut up talking to her.”
Following the encounter, the plaintiff recommended Thomas’ termination to Betts citing
insubordination. Subsequently, the defendant commenced an investigation regarding Thomas’
behavior. During the investigation, the plaintiff was informed that Thomas raised allegations of
sexual harassment against him. Specifically, Thomas alleged that the plaintiff: (1) instructed her
to open her legs; (2) sexually harassed her; and (3) hit her in her face with a paycheck. The
plaintiff denied Thomas’ allegations. On November 14, 2013, the plaintiff was placed on paid
leave pending the investigation. On November 21, 2013, the defendant terminated the plaintiff’s
employment citing that the plaintiff was untruthful during the course of the investigation3 and
had not demonstrated sufficient improvement in accordance with the PIP.
On December 17, 2013, the plaintiff filed a charge of discrimination with the Texas
Workforce Commission and Equal Employment Opportunity Commission (collectively,
“EEOC”) alleging claims against the defendant for sex discrimination and retaliation in violation
of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”).
On May 30, 2014, the EEOC issued a Dismissal and Notice of Rights Letter to the
plaintiff. (Id., Ex. A–2). On September 2, 2014, the plaintiff filed the instant action against the
defendant alleging claims of race discrimination and retaliation in violation of Title VII as well
as a claim for race discrimination in violation of 42 U.S.C. § 1981. Subsequently, on September
16, 2014, the plaintiff amended his complaint to include a Title VII sex discrimination claim. On
December 16, 2014, the plaintiff sought leave from this Court to amend his complaint to include
two additional claims, alleging violations of the Fair Credit Reporting Act (“FCRA”) against the
However, St. James accumulated over 100 quality alerts that resulted in a building quarantine. The plaintiff claims
that St. James was not placed on a PIP or received any adverse action for the incidents.
3
The plaintiff argues that the defendant never specified the manner in which he was untruthful in the investigation.

3 / 16

defendant relative to his employment application. On December 22, 2014, the Court entered an
Order granting the plaintiff's motion for leave to file his Second Amended Complaint. (See Dkt.
No. 19). On June 16, 2015, the Court granted the defendant’s motion for partial summary
judgment on the plaintiff’s Title VII race discrimination claim due to his failure to exhaust
administrative remedies. (See Dkt. No. 30). On May 2, 2016, the Court granted the defendant’s
motion for partial summary judgment on the plaintiff’s FCRA claim. (See Dkt. No. 49).
The defendant now moves for summary judgment on the plaintiff's remaining claims of
race discrimination in violation of 42 U.S.C. § 1981 and sex discrimination, sexual harassment,
and retaliation in violation of Title VII.

The plaintiff asserts federal question jurisdiction

pursuant to 28 U.S.C. § 1331.
III.

CONTENTIONS OF THE PARTIES
A.

The Defendant’s Contentions

With respect to the plaintiff’s section 1981 race discrimination claim, the defendant
argues that the plaintiff cannot establish the he was subjected to adverse action or was treated
less favorably than a similarly situated employee. In addition, the defendant contends that the
plaintiff cannot rebut their proffered legitimate, non-discriminatory reason for its actions.
Moreover, the defendant contends that record evidence demonstrates that the plaintiff cannot
meet his prima facie case on his Title VII sex discrimination, sexual harassment, and retaliation
claims.

Thus, the defendant avers that summary judgment is appropriate dismissing the

remaining claims in this action.
B.

The Plaintiff’s Contentions

In response, the plaintiff argues that the record demonstrates that the defendant’s
proffered legitimate, non-discriminatory reason for its actions were a pretext for discrimination

4 / 16

for purposes of his section 1981 claim. In addition, the plaintiff argues that the record presents
evidence that creates a sufficient issue of material fact with respect to his Title VII sex
discrimination, sexual harassment, and retaliation claims. Thus, the plaintiff urges the Court to
deny the defendant’s motion.
IV.

SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure authorizes summary judgment against a

party who fails to make a sufficient showing of the existence of an element essential to the
party’s case and on which that party bears the burden at trial. See Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
The movant bears the initial burden of “informing the district court of the basis for its motion”
and identifying those portions of the record “which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex, 477 U.S. at 323; see also Martinez v. Schlumber, Ltd.,
338 F.3d 407, 411 (5th Cir. 2003). Summary judgment is appropriate where “the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c).
If the movant meets its burden, the burden then shifts to the nonmovant to “go beyond the
pleadings and designate specific facts showing that there is a genuine issue for trial.” Stults v.
Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996) (citing Tubacex, Inc. v. M/V Risan, 45 F.3d 951,
954 (5th Cir. 1995); Little, 37 F.3d at 1075). “To meet this burden, the nonmovant must
‘identify specific evidence in the record and articulate the ‘precise manner’ in which that
evidence support[s] [its] claim[s].’” Stults, 76 F.3d at 656 (citing Forsyth v. Barr, 19 F.3d 1527,
1537 (5th Cir.), cert. denied, 513 U.S. 871, 115 S. Ct. 195, 130 L. Ed. 2d 127 (1994)). It may

5 / 16

not satisfy its burden “with some metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Little, 37 F.3d at
1075 (internal quotation marks and citations omitted). Instead, it “must set forth specific facts
showing the existence of a ‘genuine’ issue concerning every essential component of its case.”
Am. Eagle Airlines, Inc. v. Air Line Pilots Ass'n, Intern., 343 F.3d 401, 405 (5th Cir. 2003)
(citing Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
“A fact is material only if its resolution would affect the outcome of the action, . . . and
an issue is genuine only ‘if the evidence is sufficient for a reasonable jury to return a verdict for
the [nonmovant].’” Wiley v. State Farm Fire and Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009)
(internal citations omitted). When determining whether a genuine issue of material fact has been
established, a reviewing court is required to construe “all facts and inferences . . . in the light
most favorable to the [nonmovant].” Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536,
540 (5th Cir. 2005) (citing Armstrong v. Am. Home Shield Corp., 333 F.3d 566, 568 (5th Cir.
2003)). Likewise, all “factual controversies [are to be resolved] in favor of the [nonmovant], but
only where there is an actual controversy, that is, when both parties have submitted evidence of
contradictory facts.” Boudreaux, 402 F.3d at 540 (citing Little, 37 F.3d at 1075 (emphasis
omitted)). Nonetheless, a reviewing court is not permitted to “weigh the evidence or evaluate the
credibility of witnesses.” Boudreaux, 402 F.3d at 540 (quoting Morris, 144 F.3d at 380). Thus,
“[t]he appropriate inquiry [on summary judgment] is ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” Septimus v. Univ. of Hous., 399 F.3d 601, 609 (5th Cir. 2005)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 – 52 (1986)).

6 / 16

V.

ANALYSIS & DISCUSSION
A.

Disparate Treatment Under 42 U.S.C. § 1981

The Court denies the defendant’s motion regarding the plaintiff’s disparate treatment
claim. “[R]ace discrimination claims brought pursuant to section 1981 are governed by the same
evidentiary framework applicable to employment discrimination claims under Title VII.”
Pegram v. Honeywell, Inc., 361 F.3d 272, 281 n. 7 (5th Cir. 2004). Title VII forbids an
employer from discriminating “against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). In employment discrimination cases, such as the
one sub judice, discrimination under section 1981 may be proven “through direct or
circumstantial evidence.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir.
2007) (citing Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003)). In a case where a plaintiff
produces no direct evidence4 of discriminatory intent, the Court must evaluate proof of
circumstantial evidence using the burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See Alvarado v. Tex.
Rangers, 492 F.3d 605, 611 (5th Cir. 2007) (citing Wallace v. Methodist Hosp. Sys., 271 F.3d
212, 219 (5th Cir. 2001)); see also Turner, 476 F.3d at 345 (citing Rutherford v. Harris Cnty.,
197 F.3d 173, 179–80 (5th Cir. 1999)).
Under the McDonnell Douglas burden-shifting framework:
[A] plaintiff must first create a presumption of intentional discrimination by
establishing a prima facie case. The burden then shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its actions. The burden on the
employer at this stage is one of production, not persuasion; it can involve no
4

“Direct evidence is evidence that, if believed, proves the fact of discriminatory animus without inference or
presumption.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002) (citing Mooney v. Aramco
Servs. Co., 54 F.3d 1207, 1217 (5th Cir. 1995)).

7 / 16

credibility assessment. If the employer sustains its burden, the prima facie case is
dissolved, and the burden shifts back to the plaintiff to establish either: (1) that the
employer's proffered reason is not true but is instead a pretext for discrimination;
or (2) that the employer's reason, while true, is not the only reason for its conduct,
and another motivating factor is the plaintiff's protected characteristic.
Alvarado, 492 F.3d at 611 (emphasis, citations and internal quotation marks omitted); see also
Turner, 476 F.3d at 345 (internal citations omitted); Septimus v. Univ. of Houston, 399 F.3d 601,
609 (5th Cir. 2005) (internal citations omitted). “Although intermediate evidentiary burdens
shift back and forth under [the McDonnell Douglas] framework, ‘[t]he ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 143, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000) (quoting Tex. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)).
Thus, “a plaintiff can avoid summary judgment if the evidence, taken as a whole: (1)
creates a fact issue as to whether each of the employer's stated reasons was not what actually
motivated the employer and (2) creates a reasonable inference that race was a determinative
factor in the actions of which plaintiff complains.” Grimes v. Tex. Dep't of Mental Health and
Mental Retardation, 102 F.3d 137, 141 (5th Cir. 1996) (citing LaPierre v. Benson Nissan, Inc.,
86 F.3d 444, 450 (5th Cir. 1996).
Under the McDonnell Douglas framework, a plaintiff must first demonstrate a prima
facie case of discrimination, which, in turn, creates a rebuttable presumption of unlawful
discrimination by the employer. Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004) (citing
Burdine, 450 U.S. at 255). To establish race discrimination under section 1981, a plaintiff must
demonstrate that: “(1) [he] belongs to a protected group; (2) [he] was qualified for [his] position;
(3) [he] suffered an adverse employment action; and (4) . . . in the case of disparate treatment,

8 / 16

that similarly situated employees were treated more favorably.” Nasti v. CIBA Specialty Chems.
Corp., 492 F.3d 589, 593 (5th Cir. 2007) (citing Okoye v. Univ. of Tex. Houston Health Sci. Ctr.,
245 F.3d 507, 512-13 (5th Cir. 2001)).
In this case, the parties do not dispute the first and second prongs. With regard to the
third prong, the Court rejects the defendant’s argument that the plaintiff was not subjected to
adverse employment action by being placed on the PIP. (See Dkt. No. 50, pg. 16-17). While
being placed on a PIP alone may not constitute an adverse action, being placed on a PIP coupled
with being paid a lower compensation may indeed constitute an adverse action. Thompson v.
City of Waco, Texas, 764 F.3d 500, 503 (5th Cir. 2014) (citing McCoy v. City of Shreveport, 492
F.3d 551, 560 (5th Cir. 2007) (“adverse employment actions consist of ‘ultimate employment
decisions’ such as hiring, firing, demoting, promoting, granting leave, and compensating.”)).
With regard to the fourth prong, the plaintiff identifies one purported similarly situated
person whom he alleges was treated more favorably than himself: St. James. (See Dkt. No. 55,
pg. 12). It is undisputed that while the plaintiff and St. James were both employed as Operations
Team Leaders, St. James was paid a higher salary than the plaintiff. “An individual plaintiff
claiming disparate treatment in pay under Title VII must show that his circumstances are ‘nearly
identical’ to those of a better-paid employee who is not a member of the protected class.” Taylor
v. United Parcel Serv., Inc., 554 F.3d 510, 523 (5th Cir. 2008) (citing Little v. Republic Refining
Co., 924 F.2d 93, 97 (5th Cir. 1991)). “[H]e must present prima facie evidence that his pay was
lower than specific employees who are not members of the protected class.” Id. Instances when
employment actions may be deemed to have been taken under nearly identical circumstances
include “when the employees being compared held the same job or responsibilities, shared the
same supervisor or had their employment status determined by the same person, and have

9 / 16

essentially comparable violation histories.” Lee v. Kansas City Southern Ry. Co., 574 F.3d 253,
260 (5th Cir. 2009) (citing Wallace, 271 F.3d at 221–22) (citations omitted). Both the plaintiff
and St. James held the same job responsibilities and reported to the same supervisor—Betts.
(See Dkt. No. 55, Ex. D, pg. 3). Thus, based on a review of the record and undisputed evidence,
the Court determines that the record contains sufficient facts to establish a prima facie case of
race discrimination.
The defendant’s legitimate, non-discriminatory reason for the pay disparity is that St.
James had a higher salary history than the plaintiff and demanded a higher salary on his
employment application. (See Dkt. No. 57, pg. 7). The plaintiff disputes the validity of the
proffered reason and argues that it was merely a pretext for discrimination. At the pretext stage,
“the only question on summary judgment is whether there is a conflict in substantial evidence to
create a jury question regarding discrimination.” Shackelford v. Deloitte & Touche, LLP, 190
F.3d 398, 404 (5th Cir. 1999) (citing Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir.
1996)).
The defendant claims that the plaintiff’s race was unknown at the time the plaintiff’s
salary was computed. (See Dkt. No. 50, pg. 17). The defendant argues that through its internal
process, an applicant is reviewed by its compensation department who consider several factors
including: “(1) the candidate’s compensation history, (2) the candidate’s related job experience
as it compares to the position for which the candidate applied, (3) the candidate’s desired
compensation, and (4) compensation of incumbents at Gulf States Toyota in similar positions.”
(Dkt. No. 50, Ex. E, ¶ 4).

The defendant argues that its compensation department’s calculation

of a new hire’s salary is based on the factors as they applied to the new hire’s employment
application without regard to race. To show pretext, the plaintiff produces St. James’ Offer

10 / 16

Letter Request form. (See Dkt. No. 55, Ex. D). This form indicates St. James’ age and
ethnicity—that at the time of his offer, he was a thirty-two year old white man. (See id. at 3).
“A plaintiff may establish pretext either through evidence of disparate treatment or by
showing that the employer’s proffered explanation is false or ‘unworthy of credence.’” Laxton,
333 F.3d at 578 (quoting Wallace, 271 F.3d at 220). “[T]o rebut a defendant’s showing of
legitimate, nondiscriminatory reasons for its actions, ‘[i]t is not enough . . . to dis believe the
employer.’” Warren v. City of Tupelo Mississippi, 332 Fed. Appx. 176, 181 (5th Cir. 2009)
(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993)). Rather, “the factfinder must
believe the plaintiff’s explanation of intentional discrimination.” Id. “The Supreme Court
clarified in Reeves that, to meet this burden, ‘a plaintiff’s prima facie case, combined with
sufficient evidence to find that the employer’s asserted justification is false, may permit the trier
of fact to conclude that the employer unlawfully discriminated.’” Levias v. Texas Dep’t of
Criminal Justice, 352 F. Supp.2d 751, 769 (S.D. Tex. 2004) (quoting Reeves, 530 U.S. at 148).
The Court finds that the evidence presented creates a sufficient dispute of material fact
that summary judgment as to the plaintiff’s disparate treatment claim under 42 U.S.C. § 1981
should be denied.
B.

Sex Discrimination Under Title VII

The Court grants the defendant’s motion regarding the plaintiff’s disparate treatment
claim as it relates to sex discrimination because the plaintiff cannot prove that Thomas was
similarly situated. The plaintiff’s sex discrimination claim follows the same McDonnell Douglas
analysis. See 42 U.S.C. § 2000e-2(a)(1). The plaintiff’s employment was terminated because he
was untruthful during the course of the investigation and had not demonstrated sufficient
improvement in accordance with the PIP. There is no evidence in the record that Thomas was

11 / 16

cited for being untruthful during an investigation or that she was placed on a PIP; thus,
differentiating Thomas from the plaintiff. See Boyd v. Corr. Corp. of Am., 616 F. App'x 717,
721 (5th Cir. 2015). Therefore, the Court is of the opinion that Thomas was not similarly
situated and need not address whether the plaintiff has made a factual showing regarding other
elements of his prima facie case. Accordingly, the Court grants the defendant’s motion for
summary judgment as it pertains to the plaintiff’s sex discrimination claim under Title VII.
C.

Sexual Harassment Under Title VII

The Court also grants the defendant's motion regarding the plaintiff's sexual harassment
claim. In order to establish a hostile working environment claim under Title VII, a plaintiff must
prove that: (1) the employee belonged to a protected class; (2) the employee was subject to
unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected
a “term, condition, or privilege” of employment; and (5) the employer knew or should have
known of the harassment and failed to take prompt remedial action. Woods v. Delta Beverage
Grp., Inc., 274 F.3d 295, 298 (5th Cir. 2001). Harassment affects a “term, condition, or privilege
of employment” if it is “sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment.” Hernandez v. Yellow Transp., Inc.,
670 F.3d 644, 651 (5th Cir. 2012).
Because “Title VII is not a general civility code for the American workplace,” the
contested conduct must be extreme. Indest v. Freeman Decorating, Inc., 164 F.3d 258, 263 (5th
Cir. 1999) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S. Ct. 998,
1002, 140 L. Ed. 2d 201 (1998)). "A recurring point in [Supreme Court] opinions is that 'simple
teasing,' offhand comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the 'terms and conditions of employment.'" Shepherd v. Comptroller

12 / 16

of Public Accounts of State of Texas, 168 F.3d 871, 874 (5th Cir. 1999) (citing Faragher v. City
of Boca Raton, 524 U.S. 775, 775, 118 S. Ct. 2275, 2277, 141 L. Ed. 2d 662 (1998)). To
determine whether conduct is severe or pervasive, the Court should look at the totality of the
circumstances. See Stewart v. Miss. Transp. Com'n, 586 F.3d 321, 330 (5th Cir. 2009). Relevant
factors include “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. "To be actionable, the challenged conduct must be
both objectively offensive, meaning that a reasonable person would find it hostile and abusive,
and subjectively offensive, meaning that the victim perceived it to be so." Shepherd, 168 F.3d at
874 (internal citation omitted).
First, the plaintiff’s sexual harassment claim cannot survive summary judgment because
he has not shown Thomas’ behavior to be objectively severe. See Oncale, 523 U.S. at 81. In the
plaintiff’s deposition, he complains that Thomas sexually harassed him during the following
incidents: (1) making a sexual inference about the plaintiff having small feet; (2) Thomas pressed
her breast against the window of the plaintiff’s cubicle to get his attention; (3) in her workout
attire, Thomas sat on a desk behind the plaintiff with her legs “cocked open”; and (4) Thomas
made a sexual innuendo about needing more lubrication to attach a centerpiece on a tire
assembly. (See Dkt. No. 50, Ex. C, Washington Depo. at 122:19 - 123:3, 128:17 - 130:17,
137:5-9,151:12 - 152:21). Based on the facts of this case, the Court is of the opinion that while
Thomas' conduct might be considered offensive, it does not “rise to the level of severity or
pervasiveness required by law.” Gibson v. Potter, 264 F. App'x 397, 398 (5th Cir. 2008)
(citations omitted); see also Stewart, 586 F.3d at 330 (while conduct was offensive, it was not
severe or threatening, and, as such, was “not the kind of conduct that would interfere

13 / 16

unreasonably with a reasonable person's work performance or destroy her opportunity to succeed
in the workplace”).
The Court rejects the plaintiff’s argument that Thomas’ conduct was severe because the
alleged harassment purportedly led to his termination. The plaintiff contends that while Thomas
claimed that the plaintiff sexually harassed her, the grievance was filed only in retaliation of the
plaintiff recommending her termination for insubordination. (See Dkt. No. 55, Ex. C, Culbreth
Depo. at 96:23 - 97:7). Even taking this as true, the cited reason for the plaintiff’s termination
was because he experienced interpersonal difficulties communicating with his subordinates and,
ultimately, that he was dishonest during the internal investigation of Thomas’ sexual harassment
claim. (Dkt. No. 50, Ex. A, ¶ 6). This fact vitiates the contention that Thomas’ sexual conduct
led to the plaintiff’s termination for purposes of his sexual harassment claim. Thus, the plaintiff
cannot establish the fourth prong of his sexual harassment claim. Accordingly, the Court grants
the defendant’s motion for summary judgment as it relates to the plaintiff’s sexual harassment
claim under Title VII.
D.

Retaliation Under Title VII

The Court denies the defendant’s motion regarding the plaintiff’s retaliation claim. To
establish a prima facie case of Title VII retaliation, “a plaintiff must show that: (1) he engaged in
activity protected by Title VII; (2) he was subjected to an adverse employment action; and (3) a
causal link existed between the protected activity and the adverse employment action.” Davis v.
Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004) (citing Banks v. E. Baton Rouge
Parish Sch. Bd. 320 F.3d 570, 575 (5th Cir. 2003)).
The parties do not dispute the first and third prongs of this claim. With regard to the
second prong, to constitute an adverse employment action in the context of a Title VII retaliation

14 / 16

claim, the challenged employment action “must be ‘materially adverse,’ [or] one that would
‘dissuade[ ] a reasonable worker from making or supporting a charge of discrimination.’”
Stewart, 586 F.3d at 331 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68,
126 S. Ct. 2405, 2415, 165 L. Ed. 2d 345 (2006)). An adverse employment action need not
amount to an “ultimate” employment decision such as hiring, firing, or demotion. See McCoy,
492 F.3d at 559 (internal quotation omitted). “The purpose of this objective standard is ‘to
separate significant from trivial harms’ and ‘filter out complaints attacking the ordinary
tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes,
and occasional teasing.’” Id.
The plaintiff contends that he was retaliated against for raising concerns of desperate
treatment with regard to race by being placed under increased surveillance and being placed on
the PIP. (See Dkt. No. 50, Ex. C, Washington Depo. at 260:2-7). In his deposition, the plaintiff
testified that he complained to Culbreth that he was being treated less favorably than St. James.
(See id. at 190:12-16). Specifically, the plaintiff complained that St. James encountered similar
work-related issues, but was not reprimanded by management like the plaintiff. (See id. at
191:19 – 192:25). It is undisputed that the plaintiff received scrutiny and was placed on the PIP
two weeks after making his complaints. (See id. at 260:2-7). Viewing the totality of the
circumstances, the Court finds that a sufficient dispute of material fact exists as to the retaliation
claim. Therefore, the Court denies the defendant’s summary judgment motion as it relates to the
plaintiff’s retaliation claim under Title VII.
VI.

CONCLUSION
Based on the foregoing analysis and discussion, defendant’s motion for summary

judgment is GRANTED in part and DENIED in part. The motion is denied with respect to the

15 / 16

section 1981 race discrimination and Title VII retaliation claims, and granted with respect to the
Title VII sex discrimination and sexual harassment claims.
It is so ORDERED.
SIGNED on this 7th day of July, 2016.
___________________________________
Kenneth M. Hoyt
United States District Judge

16 / 16