McQuatters v. Aaron's, Inc.

Filing 27

ORDER GRANTING IN PART AND DENYING IN PART 24 Motion for Summary Judgment; DENYING 25 Motion to Strike. Signed by Judge Xavier Rodriguez. (rf)

In the United States District Court
for the
Western District of Texas
MYRTHA CYNTHIA
MCQUATTERS
v.

§
§
§
§
§

SA-10-CV-967-XR

AARON’S INC.
ORDER

On this day came on to be considered Defendant’s motion for summary
judgment (doc. no 24) and Plaintiff’s motion to strike (doc. no. 25).
BACKGROUND
Plaintiff alleges in her petition that she was employed by the defendant
as a sales manager on November 10, 2008, and that from August 2009 to October
14, 2009, she was sexually harassed by her general manager (Jesse Lopez) and
another employee (Jeremy Narro). She alleges that she reported the employee’s
inappropriate comments to Lopez in September 2009 and reported her general
manager’s inappropriate comments to another general manager. Thereafter, she
alleges that she was discharged by Lopez, and then reported the sexual
harassment using the company’s 1-800 hotline number. She brings claims under
the Texas Commission on Human Rights Act (TCHRA), Tex. Labor Code §
21.053 (sex discrimination), Tex. Labor Code §21.0553 (retaliation), and

negligent hiring, supervision, training and retention.
Summary Judgment Standard
“Summary judgment is appropriate where, considering all the allegations
in the pleadings, depositions, admissions, answers to interrogatories, and
affidavits, and drawing inferences in the light most favorable to the nonmoving
party, there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party has the
burden of demonstrating that there are no genuine issues of material fact in
dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986). If the record, taken as a whole, could not lead a rational trier of fact
to find for the nonmoving party, then there is no genuine issue for trial.
Steadman v. Texas Rangers, 179 F.3d 360, 366 (5th Cir. 1999).” Dediol v. Best
Chevrolet, Inc., --- F.3d ----, 2011 WL 4011079, at *2 (5th Cir. Sept. 12, 2011).
Hostile Work Environment Claim under the TCHRA 1
To prevail on a hostile work environment claim, a plaintiff must establish
that: (1) she belongs to a protected class; (2) was subjected to unwelcome sexual
harassment; (3) the harassment was based on her sex; (4) the harassment
affected a term, condition, or privilege of her employment; and (5) the employer
knew or should have known of the harassment and failed to take remedial
action. Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 523 (5th Cir.

1

This Court may look to federal law interpreting Title VII when analyzing TCHRA
claims, because the TCHRA was designed to align Texas state law with federal law. See
Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001).

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2001). Proof of the fifth element is not required where the purported harasser
is a supervisor. LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d 383, 393 n. 2
(5th Cir. 2007).
“A workplace environment is hostile when it is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or
pervasive to alter the conditions of the victim's employment. However, not all
harassment, including ‘simple teasing, offhand comments, and isolated incidents
(unless extremely serious),’ will affect a ‘term, condition, or privilege of
employment.’ To be actionable, the working environment must be objectively
hostile or abusive. ‘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.’” Alaniz v. Zamora-Quezada, 591 F.3d
761, 771 (5th Cir. 2009)(internal citations omitted).
Defendant argues that, as a matter of law, the alleged harassment did not
affect a term, condition or privilege of Plaintiff’s employment and the
harassment was not sufficiently severe or pervasive.
Plaintiff testified in her deposition that on one occasion in August 2009,
her supervisor (Lopez) asked her “how long had it been since you had sex.” On
that same occasion, Lopez also asked her if her “parts still worked.” On another
occasion, Lopez called her and another female employee “putas”, a derogatory

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Spanish slang term for whore. On another occasion, a company get-together was
held at Lopez’s home.

Plaintiff inadvertently left her sunglasses there.

Thereafter, Lopez’s wife allegedly became upset with Lopez accusing him of
having an affair. The next day, in front of other employees, Lopez complained
to Plaintiff about leaving her sunglasses at his home because his wife thought
they were f - - - ing together. On another occasion, Lopez asked Plaintiff if she
liked “tube steak.” Finally, Plaintiff alleges that on another occasion, Lopez
began grinding his body against a cash register and told Plaintiff “this is what
I’m going to do to you.”

Plaintiff testified that she told Lopez to stop the

harassment.
With regard to the conduct of her subordinate (Narro), Plaintiff alleges
that spurred on by the behavior of Lopez, Narro on one occasion told her that she
had a dream about her and that “he was giving it to me from the rear.” On
another occasion Narro walked behind her and simulated groping her from
behind. Plaintiff testified that Narro was also making “comments all the time” “hot mama”, “what I could do to you”, “make you feel good.” She testified that
she told Narro to stop his behavior, but he refused to stop. She testified that she
then reported Narro’s behavior to Lopez, who merely instructed her to “handle
it.”
“Needless to say, there is no mathematical formula to determine whether
conduct

is

s u ffic ie n tly

severe

or

p e r v a s iv e

to

e s t a b lis h

a

hostile-work-environment claim.” Donaldson v. CDB Inc., 335 Fed. Appx. 494,
*7 (5th Cir. 2009). Indeed, in recent hostile work environment claims based on
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sex, the Fifth Circuit has reached differing conclusions regarding the requisite
"severity or pervasiveness," applying the totality of the circumstances test.2
Applying Donaldson and the other Fifth Circuit cases stated herein, this
court finds that Plaintiff has presented sufficient evidence to create a genuine
issue of material fact for summary judgment purposes regarding the severity or
pervasiveness of the alleged harassment. Prior to the harassment, Plaintiff had
a meeting with Lopez’s supervisors, wherein she was informed that she was to
be promoted, but not to let Lopez know, because her promotion would require
that Lopez be laterally transferred to a different location. Plaintiff testified that
Lopez became aware of this meeting and thereafter began the harassment in an
attempt to get her to quit. The actions of Lopez and Narro took place within a
concentrated two-month time frame.

The acts took place in front of other

employees, ostensibly to further embarrass the Plaintiff and undermine her
possible status as a future general manager. The alleged comments were not

2

See Donaldson v. CDB Inc., 335 Fed. Appx. 494 (5th Cir. 2009)(genuine issue of
material fact existed as to whether supervisor's alleged comments to female employee,
including sexually-suggestive comments regarding her physical appearance, were sufficiently
severe and pervasive); Alaniz v. Zamora-Quezada, 591 F.3d 761 (5th Cir. 2009); Mire v. Texas
Plumbing Supply Co., Inc., 286 Fed. Appx. 138 (5th Cir. 2008); Aryain v. Wal-Mart Stores
Texas LP, 534 F.3d 473 (5th Cir. 2008). But see Stewart v. Mississippi Transp. Com'n, 586
F.3d 321 (5th Cir. 2009); Paul v. Northrop Grumman Ship Systems, 309 Fed. Appx. 825 (5th
Cir. 2009)(single incident in which coworker “chested up” to female employee's breasts in
30-second confrontation, then followed employee as she tried to separate herself and placed
his arm around her waist then rubbed his pelvic region across her hips and buttocks, was not
so severe or pervasive); Barnett v. Boeing Co., 306 Fed. Appx. 875 (5th Cir. 2009)(despite
evidence that a coworker leered at the employee, touched her in sexually inappropriate and
unwelcome ways, and actively intimidated her after she complained of his actions was not
severe and pervasive); Gibson v. Potter, 264 Fed. Appx. 397 (5th Cir. 2008)( supervisor's “sex
talk,” requests for dates with female employee, and offer of telephone number, together with
single incident in which supervisor allegedly touched employee's buttocks and made suggestive
comments, was not severe and pervasive).

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“off-hand”, but rather direct and crude. Lopez’s alleged refusal to intervene and
discipline the subordinate employee (Narro) can be interpreted as additional
conduct that unreasonably interfered with Plaintiff’s performance. Accordingly,
summary judgment is denied on this issue.
Defendant also argues that no tangible job action was taken against the
Plaintiff and therefore it is entitled to invoke an affirmative defense under
Ellerth/Faragher.
If an employer has not taken a tangible employment action against an
aggrieved employee, the employer may have an affirmative defense to a claim
of vicarious liability for sexual harassment carried out by a supervisor with
authority over the employee. Alaniz v. Zamora-Quezada, 591 F.3d 761, 775 n.
35 (5th Cir. 2009). To satisfy the affirmative defense, the employer must show:
“(a) that the employer exercised reasonable care to prevent and correct promptly
any sexually harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventative or corrective
opportunities provided by the employer or to avoid harm otherwise.” Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton,
524 U.S. 775, 807 (1998).
In this case, Plaintiff testified that on October 14, she and her supervisor
met and he was upset with her for allegedly giving him late notice about a child
custody hearing that Plaintiff attended the morning of October 14, which caused
her to be late to work. Lopez allegedly told Plaintiff she did not appear happy

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working at the company anymore. Plaintiff responded that she was not happy
with the treatment she had been receiving and that she was upset with “what
he had called me the night before.” Lopez allegedly responded that “if you don’t
like it, get your stuff and leave.” Plaintiff testified that she interpreted that
remark as being discharged. She subsequently left the premises and called the
company’s 1-800 number.
Defendant argues that Plaintiff was never given any written notice of
termination. Defendant further characterizes Plaintiff’s action as a preemptive
strike from receiving a counseling notice from Lopez for either her reporting to
work late or a customer delivery that had an error. Plaintiff testified that she
provided timely notice of the child custody hearing days in advance, and that she
was unsure whether her attendance at the hearing was actually required, until
her attorney told her on October 13 that she needed to attend. Defendant does
not argue that Lopez lacked authority to discharge the Plaintiff. Accordingly,
a fact issue exists as to whether Plaintiff was discharged on October 14. Given
this fact issue, Defendant’s motion for summary judgment based on the
Ellerth/Faragher affirmative defense is denied.
Defendant addresses at great length that Plaintiff unreasonably failed to
take advantage of the preventative or corrective opportunities provided by
Aaron’s. It argues that despite receiving the company non-discrimination and
sexual harassment policy that directs employees to call the 1-800 number to
report discrimination or harassment, Plaintiff failed to do so until after the
October 14 meeting with Lopez. Defendant also notes that Plaintiff failed to
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meet with the corporate representative (Larry Scarletta) that was sent to meet
with her after the 1-800 call had been received.
Without addressing the merits of this argument or whether Plaintiff’s
complaint to general manager Edward Galaviz was sufficient to place Defendant
on notice, whether Plaintiff unreasonably failed to take advantage of the
preventative or corrective opportunities provided by Aaron’s only comes into play
if an employer has not taken a tangible employment action. As stated above, the
Court concludes there is a fact issue on whether a tangible employment action
was taken.
Retaliation Claim under the TCHRA
A plaintiff raising a claim of retaliation must establish a prima facie case
by showing “(1) that she engaged in activity protected by [the TCHRA], (2) that
an adverse employment action occurred, and (3) that a causal link existed
between the protected activity and the adverse employment action.”

Aryain,

534 F.3d at 484. If the plaintiff establishes a prima facie case, the burden shifts
to the employer to articulate a legitimate, non-retaliatory reason for the
employment action. Id. If the employer meets this burden, the burden shifts to
the plaintiff to prove the employer's reason is pretext for the actual retaliatory
purpose. Id.
An adverse employment action occurs when “a reasonable employee would
have found the challenged action materially adverse, which ... means it well
might have dissuaded a reasonable worker from making or supporting a charge

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of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006).
Defendant argues that Plaintiff fails to establish that she engaged in any
protected activity. Plaintiff responds that she raised harassment complaints to
general manager Galaviz. Galaviz testified that he relayed the complaint to his
regional manager Luis Sanchez.

A fact issue exists as to whether Plaintiff

engaged in protected activity.
Defendant further appears to argue that no adverse employment act
occurred.

As stated above, a fact issue exists on this issue.

Further, the

Burlington Northern standard applies.
Defendant finally argues that no causal link exists between any protected
activity and any adverse employment action. Plaintiff argues that a material
fact issue exists given the close proximity in time between the complaint to
Galaviz and her discharge by Lopez.
The fallacy in Plaintiff’s argument, however, is Plaintiff fails to tender any
evidence that Lopez ever knew of the complaint to Galaviz, that was later
brought to Sanchez’s attention. Indeed, the only competent summary judgment
evidence in the case is that Galaviz never did anything more than pass the
complaint on to Sanchez. There is no summary judgment evidence that Sanchez
did anything with the complaint. Indeed, a fair inference from reading Galaviz’s
deposition and Defendant’s briefing is that Aaron’s solely relies upon the 1-800
number for the receipt of complaints. Apparently, Aaron’s managers are under

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the impression that they need not act on any complaint, other than to refer the
employee to the 1-800 hotline. This is likely an inadequate policy to investigate
complaints of discrimination or harassment. Nonetheless, in this case, with
these facts, Plaintiff fails to present evidence of a causal link between her verbal
complaint and Lopez’s alleged discharge of her. Indeed, Plaintiff has premised
her case on the argument that Lopez considered her a threat to his job security
and thereafter began the harassment in an attempt to get her to quit.
Negligent hiring, supervision, training and retention claims
Although Plaintiff brings claims of negligent hiring, supervision, training
and retention, it is apparent that all parties are prosecuting and defending
claims of negligent supervision and retention. The Court considers all the other
claims abandoned, unless the Plaintiff informs the Court to the contrary.
In any event, although neither party apprises the Court of a recent
dispositive Texas Supreme Court case, this Court notes that negligent
supervision and retention claims fail as a matter of law because the TCHRA is
the exclusive remedy for workplace sexual harassment. See Waffle House, Inc.
v. Williams, 313 S.W.3d 796, 802-803 (Tex. 2010).

Accordingly, summary

judgment is granted against Plaintiff on her negligence claims.
Conclusion
Defendant’s motion for summary judgment (doc. no. 24) is GRANTED IN
PART AND DENIED IN PART. Summary judgment is GRANTED in favor of
the Defendant as to Plaintiff’s retaliation and negligence claims. Otherwise, the

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motion for summary judgment is DENIED. Plaintiff's motion to strike (doc. no.
25) is DENIED.
It is so ORDERED.
SIGNED this 19th day of September, 2011.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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