Salinas v. Kroger Texas, L.P.
Filing
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MEMORANDUM OPINION AND ORDER DENYING 14 MOTION for Summary Judgment . (Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ROBERT SALINAS,
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Plaintiff,
v.
KROGER TEXAS, L.P.,
Defendant.
February 12, 2016
David J. Bradley, Clerk
CIVIL ACTION H-14-3153
M EMORANDUM O PINION & O RDER
Pending before the court is defendant Kroger Texas, L.P.’s (“Kroger”) motion for summary
judgment. Dkt. 14. Having considered the motion, response, reply, and applicable law, the court
is of the opinion that the motion should be DENIED.
I. BACKGROUND
Plaintiff Robert Salinas (“Salinas”) began working for Kroger in November of 1981. Dkt. 20
at 3. In October of 1998, Kroger hired David Castillo (“Castillo”). Id. at 4. In 2009, Castillo
transferred to Store No. 10, where he worked in the produce department. Id. In February of 2010,
Salinas transferred to Store No. 10, where he also worked in the produce department. Id. at 3.
After Salinas and Castillo began working together at Store No. 10, Castillo began making
inappropriate comments to Salinas.
Id.
Castillo referred to Salinas as “faggot,” “gay,”
“homosexual,” “princess,” “little girl,” and “mija” (Spanish for “daughter”). Dkt. 20, Ex. A at
335–40. Castillo told Salinas that (1) he had “been locked up” and had “raped guys [Salinas’s] size,”
(2) he would rather be with a man than a woman, and (3) Salinas had a body like a woman. Id. at
57–58.
On several occasions, Castillo touched Salinas in an inappropriate manner while at work.
In June of 2011, Castillo “grabbed [Salinas’s] butt” and said: “When are you going to give me some
of that white ass? If you don’t give it to me, I’m going to take it away. No one is here in the morning,
just you and me. I will rape you and no one will find out.” Id. at 172. In September of 2011, Castillo
grabbed Salinas’s testicles and said: “When are you going to give me some?” Id. at 188. In another
instance, Castillo “ran his hand down [Salinas’s] ass crack.” Id. at 194. Salinas complained about
Castillo’s behavior to multiple members of Kroger’s management, but management did not respond
to his concerns. Dkt. 20 at 7–8. In November of 2011, Castillo stopped making inappropriate sexual
contact with Salinas. Dkt. 14, Ex. 4 at 77.
On April 6, 2012, Castillo grabbed Salinas from behind, placed his arm around Salinas’s
neck, and put a produce knife to Salinas’s throat. Dkt. 20, Ex. A at 203, 210–12. Salinas pushed
Castillo’s arm away and escaped. Id. at 210–13. The following day, Salinas reported the incident
to the Rosenberg Police Department. Dkt. 20, Ex. I at 1–2. On April 19, 2012, Castillo gave a
voluntary statement to the police and admitted to the April 6 assault. Id. at 7–8. On April 19, 2012,
Castillo resigned from his job at Kroger. Dkt. 14, Ex. 6 at 211–12. On November 26, 2012, Castillo
was convicted of aggravated assault with a deadly weapon as a result of his April 6 attack on Salinas.
Dkt. 20, Ex. J.
On January 10, 2013, Salinas filed a charge of sex discrimination with the Equal Employment
Opportunity Commission (“EEOC”). Dkt. 14, Ex. 9. On November 5, 2014, Salinas filed this
lawsuit, bringing a sexual harassment claim against Kroger under Title VII of the Civil Rights Act
of 1964. Dkt. 1. On July 28, 2015, Kroger filed the pending motion for summary judgment.
Dkt. 14.
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II. LEGAL STANDARD
A court shall grant summary judgment when a “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). “[A] fact is genuinely in dispute only if a reasonable jury could return a verdict for
the non-moving party.” Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006). The
moving party bears the initial burden of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 (1986). If the party meets its
burden, the burden shifts to the non-moving party to set forth specific facts showing a genuine issue
for trial. Fed. R. Civ. P. 56(e). The court must view the evidence in the light most favorable to the
non-movant and draw all justifiable inferences in favor of the non-movant. Envtl. Conservation Org.
v. City of Dall., Tex., 529 F.3d 519, 524 (5th Cir. 2008).
III. ANALYSIS
Salinas’s sexual harassment claim arises under Title VII of the Civil Rights Act of 1964.
Dkt. 1. Title VII prohibits an employer from “discriminat[ing] against any individual with respect
to his compensation, terms, conditions, or privileges of employment” because of that individual’s
sex. 42 U.S.C. § 2000e-2(a)(1). Sexual harassment is a form of discriminatory treatment. Cherry
v. Shaw Coastal, Inc., 668 F.3d 182, 188 (5th Cir. 2012) (citing Oncale v. Sundowner Offshore
Servs., 523 U.S. 75, 81, 118 S.Ct. 998 (1998)). Sexual harassment is actionable under Title VII “in
any situation where there is discrimination ‘because of’ sex, whether it be between members of the
same or opposite sexes.” Id.
In evaluating same-sex sexual harassment claims, the court follows a two-step inquiry.
E.E.O.C. v. Boh Bros. Constr. Co., 731 F.3d 444, 453 (5th Cir. 2013). First, the court determines
whether the harassment constitutes discrimination “because of sex.” Id. Second, the court evaluates
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whether the conduct meets the applicable standards for either a quid pro quo or hostile work
environment claim. Id.
A.
Discrimination “Because of Sex”
In same-sex sexual harassment cases, a plaintiff may establish that the harassment occurred
“because of sex” in three primary ways:
(1) a plaintiff may show that the harasser was homosexual and
motivated by sexual desire;
(2) a plaintiff may show that the harassment was framed in such sexspecific and derogatory terms . . . as to make it clear that the harasser
[was] motivated by general hostility to the presence of a particular
gender in the workplace; and
(3) a plaintiff may offer direct comparative evidence about how the
alleged harasser treated members of both sexes in a mixed-sex
workplace.
Boh Bros., 731 F.3d at 455 (alterations in original) (internal quotation marks omitted) (citing Oncale,
523 U.S. at 80–81). However, these three approaches are illustrative, not exhaustive. Id. at 455–56.
A plaintiff may also satisfy Title VII’s “because of sex” requirement with “evidence of a plaintiff’s
perceived failure to conform to traditional gender stereotypes.” Id. at 454–56.
In this case, Salinas has focused primarily on showing (1) that Castillo was motivated by
sexual desire and, to a lesser to extent, (2) that Castillo targeted Salinas because of Salinas’s
perceived failure to conform to traditional male stereotypes. Dkt. 20 at 12–18.
1.
Motivated by Sexual Desire
To support a theory that the harasser was motivated by sexual desire in a same-sex sexual
harassment case, a plaintiff must produce “credible evidence that the harasser was homosexual.”
Oncale, 523 U.S. at 80. The Fifth Circuit has identified two types of evidence that can serve as
“credible evidence of homosexuality”: (1) “evidence suggesting that the harasser intended to have
some kind of sexual contact with the plaintiff rather than merely to humiliate him for reasons
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unrelated to sexual interest,” or (2) “proof that the alleged harasser made same-sex sexual advances
to others, especially to other employees.” La Day v. Catalyst Tech., Inc., 302 F.3d 474, 480 (5th Cir.
2002). In this case, Salinas has produced no evidence that Castillo made same-sex sexual advances
to any other person or employee. Therefore, Salinas relies on the theory that Castillo had a
legitimate sexual interest in him. Dkt. 20 at 17–18.
Kroger argues that there is insufficient evidence in the record to suggest that Castillo was
homosexual or was motivated by sexual desire. Dkt. 14 at 12. Kroger takes the position that
Castillo’s conduct was merely “workplace horseplay” with sexual overtones, not actionable sexual
harassment. Id. at 13–14. Kroger notes that there is significant evidence in the record that would
contradict any suggestion that Castillo was homosexual. Id. at 13. In response, Salinas argues that
Castillo’s sexually charged comments and inappropriate touching constitute sufficient evidence that
Castillo’s harassment was motivated by sexual desire. Dkt. 20 at 16–17.
The court finds that Salinas has produced enough evidence to raise a fact issue for the jury
regarding Castillo’s motivation. The Fifth Circuit has found comparable evidence to be sufficient
to raise a jury question. In La Day, plaintiff Patrick La Day brought a Title VII claim against his
employer, alleging that he was sexually harassed by his supervisor, Willie Craft. 302 F.3d at 476.
Craft allegedly told La Day that he was jealous of La Day’s girlfriend, touched La Day’s anus on one
occasion, and spit on La Day after La Day reported him. Id. Unlike in this case, there was evidence
in La Day that two other male employees had made similar complaints about Craft. Id. at 477.
However, the court also found that “[u]ndoubtedly there is credible evidence of Craft’s sexual
interest in La Day . . . His remark that he was ‘jealous’ of La Day’s girlfriend, combined with his
poking of La Day’s anus, easily is susceptible of that interpretation.” Id. at 480. The defendant in
La Day argued that, even if the evidence established Craft was homosexual, there was no proof that
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Craft made sexual advances to La Day. Id. at 481. The court rejected that argument, finding that
“if the evidence is viewed in the light most favorable to La Day, it is reasonable to conclude that
Craft’s touching of La Day’s anus, and his earlier expressed jealousy toward La Day’s girlfriend,
constituted ‘explicit or implicit proposals of sexual activity.’” Id. (quoting Oncale, 523 U.S. at 80).
The court therefore reversed the district court’s grant of summary judgment to the defendant. Id. at
481–83.
By comparison, Castillo’s sexual conduct toward Salinas is arguably more significant than
Craft’s conduct in La Day. Although there are no reports of incidents involving other employees in
this case, there are more instances of inappropriate touching and more sexual statements here than
in La Day. Castillo touched Salinas in a sexual manner on three separate occasions. Dkt. 20, Ex. A
at 172, 188, 194. On two of these occasions, Castillo asked Salinas: “when are you going to give
me some?” Id. at 172, 188; see La Day, 302 F.3d at 480 (“A harasser may well make sexually
demeaning remarks and putdowns to the plaintiff for sex-neutral reasons . . . but he is far less likely
to make sexual advances without regard to sex.”). Further, Castillo told Salinas that he would rather
be with a man than a woman and that he had raped other men. Dkt. 20, Ex. A at 57–58. Importantly,
Castillo also made an explicit threat that he would rape Salinas. Id. at 172; see Pinedo v. All.
Inspection Mgmt., LLC, No. 14-CV-195, 2015 WL 3747426, at *10 (W.D. Tex. June 14,
2015)(explaining that, where the harasser threatened the plaintiff with rape but never physically
touched the plaintiff, “rape necessarily involves some form of sexual contact, and serious threats of
the same are consistent with the inference that a harasser’s conduct was motivated, at least in part,
by sexual desire”). These statements are clearly sexual in nature and are significantly less ambiguous
than the “jealousy” remark that the court relied on in La Day. When the evidence is viewed in the
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light most favorable to Salinas, a reasonable jury could conclude that Castillo’s sexually charged
comments and inappropriate touching of Salinas indicate legitimate sexual desire.
As Kroger has pointed out, there is certainly evidence in this case that would suggest Castillo
was not homosexual or motivated by sexual desire. Salinas testified that he was aware Castillo had
a wife and multiple children and that Castillo had spoken about his extramarital affairs with women.
Dkt. 14, Ex. 1 at 53–57. Salinas also noted that Castillo would make remarks when an attractive
female customer would come in the store and that Castillo had once made a crude sexual comment
about a female co-worker. Id. at 62–63. In light of this evidence, a jury may conclude that Castillo
intended to harass Salinas but did not act out of genuine sexual desire for him. It is the jury’s role,
however, to weigh the evidence and to make that determination:
A jury might decide, for example, that [the harasser] was not at all
interested in [the victim] sexually, but made these types of remarks
and engaged in this type of behavior simply because he was
exceedingly crude and/or because he knew that this type of
sexually-charged conduct would make [the victim] uncomfortable.
What to make of [the harasser’s] behavior (assuming that it occurred
as [the victim] described it) is a task that requires one to weigh the
tone and nuances of his words and deeds and a host of other
intangibles that the page of a deposition or an affidavit simply do not
reveal. This is a task for the factfinder after trial, not for the court on
summary judgment.
Shepherd v. Slater Steels Corp., 168 F.3d 998, 1010 (7th Cir. 1999); see also La Day, 302 F.3d at
480 (“It is of course possible that Craft was simply mocking La Day; on summary judgment,
however, ‘we must assume the facts to be as alleged by [the plaintiff]’ . . . A fact finder ultimately
will have to decide which side has the greater weight of the evidence.” (quoting Oncale, 523 U.S.
at 76)); cf. Alvarado v. Shipley Donut Flour & Supply Co., 526 F. Supp. 2d 746, 758 (S.D. Tex.
2007) (Atlas, J.) (collecting cases explaining that, where discriminatory motivation is at issue, the
jury is in the best position to evaluate the evidence and make credibility determinations). Therefore,
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the court finds that Salinas has presented sufficient evidence to raise a genuine issue of material fact
regarding whether Castillo was motivated by sexual desire.
2.
Gender Stereotyping
Salinas has also argued that Castillo’s harassment of Salinas was motivated by Salinas’s
“failure to conform to traditional male stereotypes.” Dkt. 20 at 14. There is evidence in the record
to support this theory. Castillo called Salinas “faggot,” “gay,” “homosexual,” “princess,” “little
girl,” and “mija” (Spanish for “daughter”), and stated that Salinas had a “body like a woman.”
Dkt. 20, Ex. A at 57–58, 335–40. A jury could reasonably interpret these comments as a reflection
of Castillo’s belief that Salinas was not sufficiently masculine. Courts have found that similar
comments were sufficient to allow a jury to conclude that the harasser was motivated by the victim’s
failure to conform to male stereotypes. See Boh Bros., 731 F.3d at 457 & n.12 (holding that the
harasser’s use of “sex based epithets” like “faggot,” “pussy,” and “princess” “lend themselves to a
reasonable inference on the part of the jury that [the harasser] viewed [the victim] as insufficiently
masculine”); Pinedo, 2015 WL 3747426, at *10 (holding that a jury could conclude from the
harasser’s use of Spanish slang terms for “gay” and “faggot” that the harasser “disliked [the victim]
because he failed to conform to [the harasser’s] stereotyped expectations of masculinity”).
Therefore, the court finds that Salinas has produced sufficient evidence supporting his sexual desire
and gender stereotyping theories to raise a jury question regarding whether the harassment constitutes
discrimination “because of sex.”
B.
Quid Pro Quo or Hostile Work Environment
Having found sufficient evidence that the harassment occurred “because of sex,” the court
must also determine whether the harassment satisfies the standards for either a quid pro quo or
hostile work environment claim. A quid pro quo claim arises when the plaintiff has suffered a
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“tangible employment action,” such as a termination. Russell v. Univ. of Tex. of Permian Basin, 234
F. App’x 195, 201 (5th Cir. 2007) (per curiam). Here, Salinas has not alleged a tangible employment
action; therefore, his claim proceeds under a hostile work environment theory. Id.
Where the alleged harasser is a co-worker, a plaintiff in a hostile work environment claim
must establish that (1) he belongs to a protected group; (2) he was subject to unwelcome sexual
harassment; (3) the harassment complained of was “because of sex”; (4) the harassment affected a
term, condition, or privilege of his employment; and (5) his employer knew or should have known
of the harassment and failed to take prompt remedial action. Hockman v. Westward Commc’ns,
LLC, 407 F.3d 317, 325 (5th Cir. 2004). In addition to the “because of sex” element discussed
above, Kroger also disputes whether the harassment was sufficiently severe or pervasive to affect
a term, condition, or privilege of Salinas’s employment. Dkt. 14 at 16.
“To affect a term, condition, or privilege of employment, the harassment ‘must be sufficiently
severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive
working environment.’” Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 479 (5th Cir. 2008)
(alteration in original) (quoting Lauderdale v. Tex. Dep’t of Criminal Justice, Institutional Div., 512
F.3d 157, 163 (5th Cir. 2007)). “Whether an environment is hostile or abusive depends on the
totality of the circumstances, including factors such as the frequency of the conduct, its severity, the
degree to which the conduct is physically threatening or humiliating, and the degree to which the
conduct unreasonably interferes with an employee’s work performance.” Septimus v. Univ. of Hous.,
399 F.3d 601, 611 (5th Cir. 2005) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–22, 114 S. Ct.
367 (1993)). “The environment must be deemed ‘both objectively and subjectively offensive, one
that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive
to be so.’” Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S. Ct. 2275 (1998)).
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Kroger has not challenged that Salinas found Castillo’s conduct subjectively offensive.
Further, there is significant evidence in the record to indicate that Salinas was subjectively offended
by Castillo’s behavior. See Dkt. 20, Ex. A at 155, 173, 175–77, 203, 308–09, 310–12 (Salinas’s
Deposition) (testifying that he had reported the incidents to management, that he felt ashamed and
would cry at work, and that he experienced illness and sleeplessness as a result of Castillo’s
conduct). However, Kroger takes the position that the harassment was not sufficiently severe or
pervasive to create an objectively hostile work environment. Dkt. 14 at 16–19. Kroger argues that
“[t]hree isolated incidents, over the course of more than one year, coupled with crude jokes and
inappropriate banter is not severe or pervasive enough to be actionable under the high standard set
forth by the Fifth Circuit.” Id. at 17. In response, Salinas argues that the sexual touching and regular
verbal harassment he experienced create a fact issue sufficient to survive summary judgment. Dkt.
20 at 20–21.
The court finds that the harassment alleged is sufficiently severe or pervasive to preclude
summary judgment. Although there may have been only “three isolated incidents” of sexual
touching, these incidents were combined with verbal harassment that occurred on a “regular basis.”
Dkt. 20, Ex. A at 340. Even assuming that this conduct cannot be considered “pervasive,” Salinas
can still survive summary judgment by showing that the harassment was objectively “severe”:
[T]he test—whether the harassment is severe or pervasive–is stated
in the disjunctive. An egregious, yet isolated, incident can alter the
terms, conditions or privileges of employment and satisfy the fourth
element necessary to constitute a hostile work environment. The
inverse is also true: Frequent incidents of harassment, though not
severe, can reach the level of “pervasive,” thereby altering the terms,
conditions, or privileges of employment such that a hostile work
environment exists. Thus, “the required showing of severity or
seriousness of the harassing conduct varies inversely with the
pervasiveness or frequency of the conduct.”
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Lauderdale, 512 F.3d at 163 (footnote omitted) (citations omitted). Here, Castillo touched Salinas
in a sexual manner on three separate occasions, including one instance in which Castillo grabbed
Salinas’s testicles. Dkt. 20, Ex. A at 172, 188, 194. A reasonable jury could find that this
harassment was sufficiently “severe” to alter a term or condition of Salinas’s employment. See
Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 436 (5th Cir. 2005) (“Undoubtedly, the
deliberate and unwanted touching of [the victim’s] intimate body parts can constitute severe sexual
harassment.”); La Day, 302 F.2d at 482–83 (holding, where the harasser touched the victim’s anus
on one occasion, that the harassment was sufficiently severe to survive summary judgment, even if
the conduct was not pervasive); Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001) (holding that the
conduct at issue was “severe” where the harasser touched the victim’s breast on one occasion, and
explaining that “direct contact with an intimate body part constitutes one of the most severe forms
of sexual harassment”).
The court recognizes that the “severe or pervasive” inquiry requires “consideration of the
social context in which particular behavior occurs and is experienced by its target.” Oncale, 523
U.S. at 81. There is evidence in this case that the produce department at Kroger was overwhelmingly
male and that workplace banter between the men was common. Dkt. 14, Ex. 3 at 105–06. However,
there is no evidence to indicate that the type of sexual touching alleged by Salinas was common. A
reasonable jury could conclude that Salinas experienced severe sexual harassment that far exceeded
the bounds of “male-on-male horseplay.” Oncale, 523 U.S. at 81. Therefore, the court finds that
Salinas has raised a genuine issue of material fact regarding whether the harassment at issue was
“severe or pervasive.”
C.
Statute of Limitations
In addition to challenging the substantive basis of Salinas’s claim, Kroger also argues that
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the claim is barred by the applicable statute of limitations. Dkt. 14 at 8–9. “In a state that, like
Texas, provides a state or local administrative mechanism to address complaints of employment
discrimination, a Title VII plaintiff must file a charge of discrimination with the EEOC within 300
days after learning of the conduct alleged.” Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998)
(citing 42 U.S.C. § 2000e-5(e)(1)). Here, Salinas filed his charge of discrimination with the EEOC
on January 10, 2013. Dkt. 14, Ex. 9. Therefore, in general, only events occurring within the 300
days preceding January 10, 2013, are actionable. The only event falling within this period is the
April 6, 2012, incident where Castillo threatened Salinas with a produce knife. The previous
incidents of sexual touching fall outside of the limitations period and would ordinarily not be
actionable.
However, this limitations period is “not a jurisdictional prerequisite to suit in federal court”
and “is subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455
U.S. 385, 393, 102 S. Ct. 1127 (1982). For the purposes of equitable tolling, hostile work
environment claims are treated differently from claims alleging “discrete acts,” such as termination
or failure to promote. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113–15, 122 S. Ct. 2061
(2002). Discrete acts “are not actionable if time barred, even when they are related to acts alleged
in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging
that act.” Id. at 113. The Supreme Court has noted, however, that “[h]ostile environment claims are
different in kind from discrete acts. Their very nature involves repeated conduct.” Id. at 115. As
a result, the Court has “carved out an exception for claims based on a hostile work environment.”
Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004). The Court has explained this
“continuing violations” exception as follows:
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A hostile work environment claim is composed of a series of separate
acts that collectively constitute one “unlawful employment practice.”
The timely filing provision only requires that a Title VII plaintiff file
a charge within a certain number of days after the unlawful practice
happened. It does not matter, for purposes of the statute, that some
of the component acts of the hostile work environment fall outside the
statutory time period. Provided that an act contributing to the claim
occurs within the filing period, the entire time period of the hostile
environment may be considered by a court for the purposes of
determining liability.
Morgan, 536 U.S. at 117 (citation omitted); see also Pegram, 361 F.3d at 279 (“Under the
continuing violations doctrine, a plaintiff is relieved of establishing that all of the alleged
discriminatory conduct occurred within the actionable period, if the plaintiff can show a series of
related acts, one or more of which falls within the limitations period.” (citation omitted)). Therefore,
if applicable, the continuing violations doctrine would allow the court to consider the incidents of
sexual harassment that fall outside of the limitations period in determining liability.
Kroger argues that the continuing violations doctrine cannot be applied here because (1)
Salinas has not alleged an actionable event of harassment within the limitations period, and (2)
Salinas was on clear notice of a potential sexual harassment claim and should have asserted his rights
earlier. Dkt. 14 at 8–9; Dkt. 22 at 3–5.
1.
Actionable Event of Harassment
Kroger correctly emphasizes that Salinas cannot make use of the continuing violations
doctrine unless he shows that an actionable event of sexual harassment occurred within the
limitations period. Dkt. 14 at 9; see Huckabay, 142 F.3d at 240 (“The [continuing violations]
doctrine will render a complaint timely as to a course of conduct only if the complaint is timely as
to the most recent occurrence.”); Berry v. Bd. of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir.
1983) (noting that the same type of discrimination must occur inside and outside the limitations
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period to connect the events as a continuing violation). Kroger argues that only the April 6, 2012,
knife incident occurred within the limitations period, and that incident was not sexual in nature and
therefore does not constitute actionable sexual harassment. Dkt. 14 at 8–9. Therefore, Kroger
concludes that Salinas cannot use the continuing violations doctrine to salvage the earlier, untimely
incidents of sexual harassment. Id. at 9. In response, Salinas does not dispute that the knife assault
is the only event falling within the limitations period. Dkt. 20 at 23–25. Instead, Salinas argues that,
in context, the knife assault was sexual in nature and constitutes actionable sexual harassment. Id.
at 24.
On its face, Castillo’s knife assault on Salinas contains no sexual content. However, the
court is not required to consider the knife assault in a vacuum. See Clark Cty. Sch. Dist. v. Breeden,
532 U.S. 268, 270, 121 S. Ct. 1508 (2001) (“Workplace conduct is not measured in isolation . . . .);
Cortes v. Maxus Expl. Co., 977 F.2d 195, 200 (5th Cir. 1992) (noting that even time-barred conduct
can be used to illuminate an event which, viewed in isolation, may not indicate discriminatory
motives). In the context of Salinas’s previous interactions with Castillo, the court finds that the knife
assault could reasonably be interpreted as sexual in nature. When asked about the knife assault,
Salinas gave the following testimony:
Q.
So you felt like the—the events on April 6th was more of a
violent act against you, not a sexual act, right?
....
A.
It was both.
Q.
Okay. Hold on. In—in your notes here, in your statement,
you said that he was trying to get revenge against you because you
had reported him earlier, right?
A.
Yeah, for those things he was doing to me.
Q.
Right. And—and you feel like on April 6th what he did was
because—born out of anger against you, right?
....
Q.
Is that—was that your impression?
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A.
He wanted—he wanted these things from me he couldn’t get
from me, that he wanted from me. And—and that’s why he—he’d
do—he’d do that to me.
Q.
Okay.
A.
I can’t give him that. I’m a man. I can’t do that with him.
Dkt. 20, Ex. A at 320–21. This testimony indicates that Salinas considered the knife assault to be
a sexual incident resulting from his refusal to submit to Castillo’s sexual advances. Contrary to
Kroger’s assertion, Salinas’s interpretation is supported by more than simply his “subjective belief.”
Dkt. 22 at 2. Castillo had previously said to Salinas: “When are you going to give me some of that
white ass? If you don’t give it to me, I’m going to take it away. No one is here in the morning, just
you and me. I will rape you and no one will find out.” Dkt. 20, Ex. A at 172. In context, a
reasonable jury could interpret the knife assault as an escalation of Castillo’s previous rape threat
or as an act of retaliation resulting from Salinas’s rejection of Castillo’s sexual advances. See, e.g.,
La Day, 302 F.3d at 480 (“Moreover, Craft’s later hostility toward La Day, exemplified by his
spitting tobacco at him, plausibly could be interpreted as anger over La Day’s rejection of his sexual
advances.”). Therefore, the court finds that Salinas has raised a fact issue regarding whether the
April 6, 2012, knife assault was part of a continuing pattern of sexual harassment.
2.
Notice
Kroger next contends that the “continuing violation theory does not apply to untimely events
where the plaintiff was on clear notice of a sexual harassment claim.” Dkt. 22 at 3. Kroger argues
that Castillo’s overt sexual conduct should have put Salinas on notice of a potential sexual
harassment claim before the knife assault. Id. at 4. Kroger also notes that Salinas made multiple
complaints to Kroger management. Id. at 3. Kroger argues that these complaints establish that
Salinas was on notice of a potential sexual harassment claim before the knife assault; therefore,
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Salinas cannot appeal to the equitable continuing violations doctrine to excuse his failure to timely
exercise his rights. Id. at 4–5.
The continuing violations doctrine is based on the concept that equity
may very well require that the filing periods not begin to run until
facts supportive of a Title VII charge or civil rights action are or
should be apparent to a reasonably prudent person similarly situated.
The focus is on what event, in fairness and logic, should have alerted
the average lay person to act to protect his rights.
Messer v. Meno, 130 F.3d 130, 135 (5th Cir. 1997) (quoting Glass v. Petro-Tex Chem. Corp., 757
F.2d 1554, 1560–61 (5th Cir. 1985)). In determining whether application of the continuing
violations doctrine is appropriate in an individual case, courts consider three primary factors:
First, courts consider the subject matter of the conduct—whether “the alleged acts involve
the same type of discrimination.” Berry, 715 F.2d at 981. As noted above, a reasonable jury could
find that all of the incidents in this case involved the same subject matter—specifically, a pattern of
sexual harassment.
Second, courts consider the frequency of the conduct—whether the acts are recurring “or
more in the nature of an isolated work assignment or employment decision.” Id. The acts of
harassment in this case were not comparable to an isolated employment decision or work
assignment; rather, the acts were recurring and included multiple instances of physical and verbal
harassment.
Third, courts consider the “degree of permanence” of the discriminatory acts—“[d]oes the
act have the degree of permanence which should trigger an employee’s awareness of and duty to
assert his or her rights, or which should indicate to the employee that the continued existence of the
adverse consequences of the act is to be expected without being dependent on a continuing intent
to discriminate.” Id. (emphasis added). In this case, the harassment arguably did not have the
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“degree of permanence” that would put the average person on notice of a duty to assert his legal
rights. Here, the continued existence of the consequences of the discrimination depended on
Castillo’s continuing intent to discriminate against Salinas. Castillo’s harassment can be contrasted
with a discrete act that has lasting consequences independent from the discrimination itself, such as
a termination. See Huckabay, 142 F.3d at 239–40 (finding that the “pattern of harassment”
supporting the plaintiff’s hostile work environment claim “was not the kind of violation that—like
a discrete instance of discriminatory conduct—would put a worker on notice that his rights had been
violated”); see also Waltman v. Int’l Paper Co., 875 F.2d 468, 476 (5th Cir. 1989) (“Acts of
harassment that create an offensive or hostile environment generally do not have the same degree
of permanence as, for example, the loss of promotion. If the person harassing a plaintiff leaves his
job, the harassment ends; the harassment is dependent on a continuing intent to harass. In contrast,
when a person who denies a plaintiff a promotion leaves, the plaintiff is still without a promotion
even though there is no longer any intent to discriminate.”). Salinas’s continuing violation theory
is not based on the mere effects or adverse consequences of an instance of discrimination. Rather,
the continuing violation stems from the pattern of discriminatory treatment Castillo inflicted over
an extended period of time.
Contrary to Kroger’s assertion, the mere fact that Salinas reported the incidents of harassment
to Kroger’s management is not fatal to his continuing violation argument. These reports could
indicate that Salinas was aware of a potential sexual harassment claim. Equally likely, however,
these reports could merely indicate that Salinas was aware that Castillo’s conduct was inappropriate
in the workplace. The cases relied on by Kroger are distinguishable. See Abrams v. Am. Airlines
Inc., 302 F. App’x 242, 244 (5th Cir. 2008) (refusing to apply the continuing violations doctrine
where the plaintiff did not identify any harassing conduct during the limitations period and where
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the employer informed the plaintiff that it was closing its internal investigation into her complaints);
Burrell v. Crown Cent. Petroleum, Inc., 255 F. Supp. 2d 591, 613 (E.D. Tex. 2003) (declining to
apply the continuing violations doctrine where the plaintiff admitted in her deposition that she knew
she could file a claim and where the plaintiff was a supervisor with the authority to address
discriminatory conduct). It is the jury’s role to determine when a reasonable person in Salinas’s
position should have realized that Castillo’s conduct crossed the line from inappropriate to
actionable sexual harassment. See Arredondo v. Estrada, 2:14-CV-170, 2015 WL 4523545, at *4
(S.D. Tex. July 27, 2015) (Ramos, J.) (“It is a question for the jury to determine when, in fairness
and in logic, [the plaintiff] should have seen the harassment he endured as a pattern of
discrimination.”); see also Waltman, 875 F.2d at 476 (finding a material issue of fact regarding
whether the acts of sexual harassment at issue had the quality of permanence that would alert the
plaintiff that her rights had been violated). Therefore, the court finds that Salinas has raised a jury
question regarding whether he timely exercised his legal rights.
Having reviewed Kroger’s arguments in favor of summary judgment, the court finds that the
motion should be DENIED.
IV. CONCLUSION
Kroger’s motion for summary judgment (Dkt. 14) is DENIED.
Signed at Houston, Texas on February 12, 2016.
___________________________________
Gray H. Miller
United States District Judge
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