Perales vs YES Communities, Inc.

Filing 33

ORDER GRANTING 19 Motion for Summary Judgment; GRANTING 22 Motion for Leave to File; DENYING 24 Motion for Hearing; DENYING 27 Motion to Strike. The District Clerk is directed to enter judgment for defendant and against plaintiff, each side to bear its own costs. Signed by Judge Pamela A. Mathy. (wg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
ROSEMARY GONZALES PERALES a/k/a 5
ROSEMARY GONZALES,
5
5
Plaintiff,
5
5
v.
5
5
YES! COMMUNITIES, INC.,
5
5
Defendant.
5
5
5

CIVIL NO. SA-12-CA-450-PM

MEMORANDUM OPINION AND ORDER
Pursuant to the consent of the parties in the above-styled and numbered cause of action to
the undersigned United States Magistrate Judge1 and consistent with the authority vested in
United States Magistrate Judges under the provisions of 28 U.S.C. § 636(c)(1), Federal Rule of
Civil Procedure 73, and Rule 1(i) of the Local Rules for the Assignment of Duties to United
States Magistrate Judges in the Western District of Texas, the following memorandum opinion
and order is entered.

1

Docket nos. 6 and 7.

TABLE OF CONTENTS
I.
II.
III.
IV.
V.
VI.

VII.

Jurisdiction
Procedural History
Statement of Undisputed Facts
Issues
Summary Judgment Standard
Discussion
A.
Defendant’s Motion for Leave to File First Amended Answer
1.
summary of arguments
2.
analysis
B.
Defendant’s Motion to Strike Portions of Plaintiff’s Summary Judgment
Evidence or, in the Alternative, to Reopen Plaintiff’s Deposition
C.
Defendant’s Motion for Summary Judgment
1.
sex discrimination
a.
summary of arguments
i.
defendant’s motion
ii.
plaintiff’s response
iii.
defendant’s reply
b.
standards
c.
analysis
i.
introduction
ii.
hostile work environment claim
A.
harassment that affects a term, condition, or
privilege of employment
B.
vicarious liability
1.
Johnson
2.
Lopez
iii.
quid pro quo claim
2.
retaliation
a.
summary of arguments
b.
analysis
3.
intentional infliction of emotional distress
a.
summary of arguments
b.
analysis
D.
Defendant’s Request for Oral Argument
Conclusion

2

I. JURISDICTION
The Court has jurisdiction pursuant to 28 U.S.C. § 1331, Title VII of the Civil Rights Act
of 1968, 42 U.S.C. § 2000e, et seq. (“Title VII”), and 28 U.S.C. § 1367(a).
II. PROCEDURAL HISTORY
Plaintiff Rosemary Gonzales Perales (“plaintiff”) initiated this case when she filed her
original complaint on May 9, 2012, naming defendant Yes! Communities, Inc. (“defendant”).2
Plaintiff alleges, without specification, she “was subjected to sexual harassment by the upper
management at her place of employment;” defendant “failed to take an[y] action” after she
brought complaints to it; she was relocated but “the sexual harassment continued, with the
management making demands to see her underwear, and to kissing her frontally;” “[a]s a result
of the continued harassment” of defendant and its employees, plaintiff became depressed and
suffered from anxiety; and “[d]ue to her complaints to management of sexual harassment,
[plaintiff’s employment] was terminated on August 26, 2011.”3 Plaintiff appears to assert four
claims against defendant: (1) under the heading “sexual harassment,” that defendant
(a) “intentionally discriminated against Plaintiff in connection with the compensation, terms,
conditions and privileges of employment or limited, segregated or classified Plaintiff in a manner
that would deprive or tend to deprive her of any employment opportunity or adversely affect her
status because of Plaintiff’s sex,” (b) “intentionally classified Plaintiff in a manner that deprived
her of an equal employment opportunity that was provided to male employees similarly situated,”
and (c) “sexually harassed Plaintiff” and “knew or should have known of the harassment, yet

2

Docket no. 1.

3

Id. at 2-3.
3

failed to take prompt remedial action;” (2) under the heading “constructive discharge,” that
defendant “made the working conditions so intolerable that Plaintiff felt compelled to resign her
position,” “[a] reasonable person in the same position would have also felt compelled to resign,”
and plaintiff suffered damages for which she sues; (3) under the heading “intentional infliction of
emotional distress,” that defendant “intentionally or recklessly created and or conscious[]ly failed
to take the appropriate[] action to not create a hostile work enviro[n]ment for the Plaintiff,”
“Defendant’s conduct was extreme and outrageous and proximately caused Plaintiff severe
emotional distress,” and plaintiff suffered damages for which she sues; and (4) under the heading
“retaliation,” that defendant “instituted a campaign of retaliation which included treating her
differently th[a]n other co-workers and eventually terminatin[g] her employment,” the retaliation
was “due to Plaintiff exercising her rights by opposing a discriminatory practice,” and plaintiff
suffered damages for which she sues.4 Plaintiff seeks recovery of damages for “[d]epression and
anxiety;” attorney’s fees; back pay and interest; costs; “emotional pain;” past and future
“[m]ental anguish;” past and future medical care and expenses; past and future “loss of
earnings;” and “loss of benefits.”5 Plaintiff also seeks reinstatement “to the position and pay
grade [she] held but for the unlawful employment actions of Defendant,” and “such other and
further relief to which the Plaintiff may be entitled at law or in equity.”6 Plaintiff’s complaint
includes a jury demand.7

4

Id. at 3-4.

5

Id. at 4-5.

6

Id. at 5.

7

Id. at 6.
4

Defendant filed its original answer on June 11, 2012, generally admitting and denying the
allegations of the original complaint, and asserting the affirmative defenses of: “no acts or
statements were discriminatory,” “non-retaliatory acts,” “discretionary authority,” “failure of
proof,” limitation of damages, “punitive damages barred,” “anti-discrimination policy &
procedures,” “proximate cause,” failure to mitigate, and “pecuniary losses.”8 Defendant’s answer
pleads that plaintiff “take nothing by way of her claims;” for judgment for defendant; defendant
recover its costs, attorney’s fees and expert fees; and “such other and further relief, at law or in
equity, to which it may be justly entitled.”9
The parties filed their consents to Magistrate Judge jurisdiction,10 and on July 25, 2012,
the District Judge transferred and reassigned the case to the docket of the undersigned.11 On
August 1, 2012, the undersigned entered the parties’ agreed, proposed scheduling order,12 which
has been amended.13 As amended, the scheduling order required: discovery to be completed by
April 30, 2013; mediation to occur on or before June 17, 2013; and dispositive motions to be
filed by April 30, 2013.14 On November 7, 2012, plaintiff filed her expert designations.15

8

Docket no. 3.

9

Id. at 4.

10

Dockets nos. 6, 7.

11

Docket no. 8.

12

Docket no. 10. See docket nos. 4 and 9.

13

Docket nos. 14 and 18. See docket nos. 13 and 16.

14

Docket nos. 14 and 18.

15

Docket no. 12.
5

Defendant filed its motion for summary judgment on April 30, 2013, and plaintiff filed a
response on May 14, 2013.16 Defendant filed an opposed motion for leave to file an amended
answer on May 17, 2013;17 plaintiff filed a response on May 23, 2013;18 and defendant filed a
reply in support on May 30, 2013.19 On May 21, 2013, defendant filed a reply in support of its
motion for summary judgment, and a request for oral argument on its summary judgment
motion.20 On May 22, 2013, defendant filed an “opposed motion to strike plaintiff’s improper
changes to her deposition transcript, or alternatively, to re-open plaintiff’s oral deposition,”21 and
plaintiff filed a response on May 28, 2013.22
III. STATEMENT OF UNDISPUTED FACTS
The following statement of facts is taken from defendant’s motion for summary
judgment.23 Unless otherwise indicated, plaintiff does not dispute the factual statements:
Defendant is “a company that operates manufactured home communities.”24 During her
employment, plaintiff worked at two different communities: Springfield Meadows first, and

16

Docket nos. 19 and 20.

17

Docket no. 22. See docket no. 21 and text-only docket entry dated May 22, 2013.

18

Docket no. 28.

19

Docket no. 30.

20

Docket nos. 23, 24, and 25.

21

Docket no. 27.

22

Docket no. 29.

23

Docket no. 19.

24

Id. at 2.
6

Creston Ridge after a transfer. Plaintiff complains of the conduct of two of defendants’
employees: Michael Johnson (“Johnson”), the manager of Springfield Meadows,25 and Bert
Lopez (“Lopez”), the manager of Creston Ridge.26
Plaintiff began working for defendant on June 16, 2009 “as a salesperson/assistant
manager at the Springfield Meadows community.”27 The handbook contains an “equal
opportunity policy” at the front, expressly states that unlawful harassment is prohibited, and
instructs employees on how to report alleged harassment.28 Plaintiff read and understood the
handbook, and “understood that she had an obligation to report any conduct that she thought
violated company policy as outlined in the Handbook.”29 Defendant conducts sexual harassment
training at least every two years for employees, and plaintiff attended such training on August 17,
2009 and February 10, 2011.30
Plaintiff captured in mobile telephone audio recordings examples of Johnson’s conduct
on two days.31 Plaintiff complained about Johnson’s conduct to co-workers. One of plaintiff’s
co-workers, Vickie Roberts, reported Johnson’s conduct to Randal Brooks (“Brooks”), regional

25

Id.

26

Id. at 5.

27

Id.

28

Id. at 2.

29

Id.

30

Id.

31

Id. at 3.
7

manager for defendant and Johnson’s supervisor.32 Brooks conducted an investigation,
“including interviews of all of the pertinent employees.”33 As a result of the investigation,
Brooks separated Johnson and plaintiff by transferring plaintiff to Creston Ridge, “issued a
reprimand to Michael Johnson and wrote a performance correction notice.”34 At the time,
plaintiff lived in the Creston Ridge community, and her position, salary, and commissions did
not change with the transfer.35 After her transfer, plaintiff had no more contact with Johnson and
reported no more problems with him, but did have some complaints about Lopez, the manager of
Creston Ridge.36
Plaintiff began to feel stress and anxiety in October 2010, after she was transferred to
Creston Ridge.37 She went on short-term disability leave on April 26, 2011, and then on longterm disability leave.38 Plaintiff was donated paid time off so “she would not immediately lose
income. [Defendant] continued paying her commissions while she was on leave.”39 Plaintiff did
not return to work, and defendant terminated plaintiff’s employment on August 25, 2011.40

32

Id. at 4, and appendix (“app.”) at APX0092 (Brooks affidavit (“aff.”) at 1).

33

Id. at 4.

34

Id. at 4-5.

35

Id.

36

Id. at 4-6.

37

Id. at 4.

38

Id. at 6-7.

39

Id.

40

Id. at 6-7.
8

IV. ISSUES
1.

Whether defendant’s motion for leave to file a first amended answer should be
granted or denied.

2.

Whether defendant’s motion to strike portions of plaintiff’s summary
judgment evidence or, in the alternative, to reopen plaintiff’s deposition
should be granted or denied.

3.

Whether there is a genuine issue of material fact to preclude entry of
judgment as a matter of law on any of plaintiff’s claims against defendant.

4.

Whether defendant’s request for oral argument on its summary judgment motion
should be granted or denied.
V. SUMMARY JUDGMENT STANDARD

The standard to be applied in deciding a motion for summary judgment is set forth in
Rule 56, Federal Rules of Civil Procedure, which provides in pertinent part as follows:
The court shall grant summary judgment if the 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.41
Mere allegations of a factual dispute between the parties will not defeat an otherwise proper
motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact.42
A fact is material if it might affect the outcome of the lawsuit under the governing law.43 A
dispute about a material fact is genuine if the evidence is such that a reasonable jury could return

41

FED. R. CIV. P. 56(a). See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.
2548, 2552 (1986).
42

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2510 (1986).

43

Id. at 248, 106 S. Ct. at 2510; Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994).
9

a verdict for the nonmoving party.44 Therefore, summary judgment is proper if, under governing
laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could
resolve a factual issue in favor of either party, summary judgment should not be granted.45
The movant on a summary judgment motion bears the initial burden of providing the
court with a legal basis for its motion and identifying those portions of the record which it alleges
demonstrate the absence of a genuine issue of material fact.46 The burden then shifts to the party
opposing the motion to present affirmative evidence to defeat a properly supported motion for
summary judgment.47 All facts and inferences drawn from those facts must be viewed in the
light favorable to the party resisting the motion for summary judgment.48 “The court need

44

Anderson, 477 U.S. at 248, 106 S. Ct. at 2510; Wise v. E.I. DuPont De Nemours &
Co., 58 F.3d 193, 195 (5th Cir. 1995).
45

Anderson, 477 U.S. at 249, 106 S. Ct. at 2510.

46

Rule 56(c)(1) provides:
Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
FED. R. CIV. P. 56(c)(1). See also Celotex, 477 U.S. at 323, 106 S. Ct. at 2552-53.
47

Anderson, 477 U.S. at 257, 106 S. Ct. at 2514-15.

48

Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 1774 (2007); Hibernia Nat’l Bank
v. Carner, 997 F.2d 94, 97 (5th Cir. 1993). The Supreme Court explained in Scott that:
At the summary judgment stage, facts must be viewed in the light most favorable
to the nonmoving party only if there is a “genuine” dispute as to [the] facts. As
we have emphasized, “[w]hen the moving party has carried its burden under Rule
56(c), its opponent must do more than simply show that there is some
10

consider only the cited materials, but it may consider other materials in the record.”49 Summary
judgment motions permit the Court to resolve a lawsuit without the necessity of a trial if there is
no genuine dispute as to any material facts and the moving party is entitled to judgment as a
matter of law.50 “A party may object that the material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.”51
If “the burden of proof at trial lies with the nonmoving party, the movant may satisfy its
initial burden by showing—that is, pointing out to the district court—that there is an absence of
evidence to support the nonmoving party’s case.”52 The movant “must demonstrate the absence
of a genuine issue of material fact, but does not have “to negate the elements of the nonmovant’s

metaphysical doubt as to the material facts. . . Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmonving party, there is no
‘genuine issue for trial.’” “The mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material
fact.” “When opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling on a motion for
summary judgment.”
550 U.S. at 380, 127 S. Ct. at 1776 (emphasis in original) (quoting FED. R. CIV. P. 56(c);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 1356
(1986); Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510).
49

FED. R. CIV. P. 56(c)(3).

50

See Fields v. City of S. Houston, 922 F.2d 1183, 1187 (5th Cir. 1991).

51

FED. R. CIV. P. 56(c)(2).

52

Duffie v. United States, 600 F.3d 362, 371 (5th Cir.) (citing Celotex, 477 U.S. at 325,
106 S. Ct. at 2554) (internal punctuation omitted), cert. denied, __ U.S. __, 131 S. Ct. 355
(2010).
11

case.”53 “If the moving party fails to meet its initial burden, the motion for summary judgment
must be denied, regardless of the nonmovant’s response.54 On the other hand, if the movant
meets its burden and the non-movant cannot provide some evidence to support its claim,
summary judgment is appropriate.55
If the nonmovant cannot adequately defend against a motion for summary judgment, the
remedy is a motion for relief under Rule 56(d), which provides:
(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant
shows by affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.56
Discovery motions under Rule 56(d) are “broadly favored and should be liberally granted
because the rule is designed to safeguard non-moving parties from summary judgment motions
that they cannot adequately oppose.”57 To be entitled to a continuance of a summary judgment

53

Id.; Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005).

54

Quorum Health Res., L.L.C. v. Maverick Cnty. Hosp. Dist., 308 F.3d 451, 471 (5th
Cir. 2002) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
55

Stahl v. Novartis Pharms. Corp., 283 F.3d 254, 263 (5th Cir.), cert. denied, 537 U.S.
824, 123 S. Ct. 111 (2002).
56

See FED. R. CIV. P. 56(d).

57

Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010) (discussing Rule 56(f)) (internal
punctuation omitted); Culwell v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006) (same);
Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1267 (5th Cir. 1991) (explaining that under
Rule 56(f), “[w]here the party opposing the summary judgment informs the court that its diligent
efforts to obtain evidence from the moving party have been unsuccessful, a continuance of a
motion for summary judgment for purposes of discovery should be granted almost as a matter of
course.”) (citation and internal punctuation omitted), cert. denied, 502 U.S. 1059, 112 S. Ct. 936
(1992). See also Sapp v. Mem’l Hermann Healthcare Sys., 406 Fed. App’x 866, 869 (5th Cir.
12

proceeding to obtain further discovery prior to a ruling on a motion for summary judgment, the
party opposing the motion must demonstrate how additional time and discovery will enable the
party to rebut the movant’s allegations there are no genuine issue of material fact.58
VI. DISCUSSION
A.

Defendant’s Motion for Leave to File First Amended Answer
1.

summary of arguments

Defendant seeks leave to amend its original answer, “specifically to allege the Faragher
defense to conform the pleading to Defendant’s Motion for Summary Judgment.”59 Defendant
argues there is good cause to amend its answer after the March 13, 2013 deadline to amend
pleadings because (1) defendant sought leave to amend the pleading “as soon as it realized
amendment was necessary” after plaintiff relied on the pleading defect in its response to
defendant’s summary judgment motion; (2) the amendment is important because the Faragher
affirmative defense “precludes liability based on Defendant’s efforts to establish polices and
procedures to avoid discrimination, and Plaintiff’s unreasonable failure to avail herself of those
procedures;” (3) “Plaintiff is not surprised or prejudiced by the assertion of the Faragher defense,

2010).
58

See Raby, 600 F.3d at 561 (request for stay “must set forth a plausible basis for
believing that specified facts, susceptible of collection within a reasonable time frame, probably
exist and indicate how the emergent facts, if adduced, will influence the outcome of the pending
summary judgment motion”) (citations and internal punctuation omitted).
59

Docket no. 22 at 2. The Faragher defense (also referred to as the “Ellerth/Faragher
defense”) is an affirmative defense to vicarious liability in hostile environment sexual harassment
cases, set forth in the Supreme Court companion cases Burlington Industries, Inc. v. Ellerth, 524
U.S. 742, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct.
2275 (1998).
13

or by Defendant’s factual contentions that it had anti-discrimination policies and procedures and
that Plaintiff failed to report the alleged harassment” because on September 27, 2012 plaintiff
produced in discovery defendant’s “EEOC Position Statement” which expressly referenced the
Faragher defense; and (4) a continuance is unnecessary because a trial date has not been set and
“[a]ny need Plaintiff might have to conduct further discovery regarding the defense can easily be
accommodated.”60
Plaintiff responds with five main arguments. First, plaintiff argues defendant’s counsel’s
alleged “inadvertence” for not expressly pleading the Faragher defense in the original answer is
“‘tantamount to no explanation at all.’”61 Second, defendant’s characterization of the defense,
and need to amend its answer, as “important” is belied by assertions in correspondence from
defense counsel to plaintiff’s counsel and defendant’s failure to plead the defense for almost a
year.62 Third, defendant seeks to “add[] a new previously unidentified defense” which requires
additional discovery “on the issue of the factual backup for such a defense and the effectiveness
of the procedures put in place by Defendant which would address such a defense;” the deadline
for discovery has passed; and “[a]ny modification of the scheduling order . . . would further delay
the trial.”63 Fourth, “Defendant’s argument that Plaintiff would not be prejudiced by the new
assertion of the Faragher defense borders on ludicrous” because assertion of the defense “would

60

Docket no. 22 at 2-3.

61

Docket no. 28 at 7 (quoting S&W Enters. v. Southtrust Bank of Ala., 315 F.3d 533,
536 (5th Cir. 2003)).
62

Id. at 7-8.

63

Id. at 9.
14

require Plaintiff to do more discovery on the efficacy of what Faragher defense [sic].”64 Fifth,
defendant’s EEOC Position Statement does not demonstrate plaintiff would not be surprised by
the assertion of the Faragher defense because the statement was a “pre-litigation EEOC letter
submitted by Defendant to the EEOC on December 27, 2011” and “Plaintiff cannot be required
to read ever piece of prior correspondence to third parties to determine Defendant’s intent and
legal theories.”65 Finally, in her “prayer,” plaintiff requests the Court deny the motion and
order that Defendant [] pay attorney’s fees to Plaintiff, and further sanction
Defendant under Rule 37(b)(2)(ii)-(vii) by [“](ii) prohibiting the disobedient party
from supporting or opposing designated claims or defenses, or from introducing
designated matters in evidence[”] and/or [“](vii) treating as contempt of court the
failure to obey any order.[”]66
Defendant’s reply advances seven main arguments in support of its motion for leave to
amend. First, citing case law from the Southern District of Alabama affirmed by the Eleventh
Circuit Court of Appeals, defendant argues its original answer “already properly pleads the
entirety of the [Faragher] defense” because it expressly pleaded the first element of the defense
and its pleading of plaintiff’s failure to mitigate her damages satisfies the pleading requirement
for the second element of the defense.67 Second, plaintiff does not explain why she would be
prejudiced by the assertion of the defense, and plaintiff “would [not] be unfairly surprised or
prejudiced” because she will not be deprived of a “fair opportunity to mount an attack or defense

64

Id. at 9-10.

65

Id. at 10.

66

Id. at 11.

67

Docket no. 30 at 2-5 (citing and discussing Howard v. City of Robertsdale, No. 030770-BH-C, 2004 WL 5551812, at *7 n.4 (S.D. Ala. Dec. 9, 2004), aff’d, 168 Fed. App’x 883
(11th Cir. Feb. 9, 2006)).
15

to a claim or defense” as (1) the defense was adequately pleaded in the original answer, (2) the
Faragher defense was set forth in defendant’s EEOC Position Statement which plaintiff produced
in discovery, and (3) the Faragher defense, “as applied in this case at this time, raises no new
facts” which would require additional discovery, especially when plaintiff admitted certain facts
in her deposition and did not depose any witness from defendant.68 Third, a continuance is
unnecessary because even if plaintiff needed additional discovery on the defense it could be
accomplished “within the next month without delaying proceedings.”69 Fourth, the Faragher
defense is critical to defendant’s defense of the Lopez harassment claim because “it absolutely
bars her recovery.”70 Fifth, defendant’s counsel’s alleged “inadvertence” for failing to expressly
plead the Faragher defense is a neutral factor in determining whether amendment should be
permitted.71 Sixth, plaintiff “misunderstands the procedural setting of this motion” and fails to
demonstrate a basis for sanctions against defendant.72 Seventh, plaintiff’s use of settlement
correspondence is improper and violates Rule 408 of the Federal Rules of Evidence, and
defendant asks the Court to strike the correspondence from the pleadings and the record.73
Finally, defendant asks that its motion be granted, or “denied expressly on grounds of mootness”
if the Court finds the original answer adequately pleads the Faragher defense.

68

Id. at 5-7 (emphasis in original).

69

Id. at 7.

70

Id. at 7-8.

71

Id. at 8.

72

Id. at 9.

73

Id. at 9-10.
16

2.

analysis

Rule 16(b)(4) of the Federal Rules of Civil Procedure permits amendment of a trial
court’s scheduling order “only for good cause and with the judge’s consent.”74 “The good cause
standard requires the ‘party seeking relief to show that the deadlines cannot reasonably be met
despite the diligence of the party needing the extension.’”75 In determining good cause for
amending a scheduling order, the Court considers four factors: “(1) the explanation for the failure
to timely move for leave to amend; (2) the importance of the amendment; (3) potential prejudice
in allowing the amendment; and (4) the availability of a continuance to cure such prejudice.”76
As a preliminary matter, plaintiff has not demonstrated any basis for sanctioning
defendant, including ordering defendant to pay plaintiff any attorney’s fees, prohibiting defendant
from supporting or opposing any claims or defenses, or finding defendant in contempt of the
Court. Accordingly, plaintiff’s request for sanctions is denied.
In its original answer, filed June 11, 2012, under the caption “Affirmative Pleadings,”
defendant pleaded, among other things:
7.
Anti-Discrimination Policy & Procedures
Plaintiff’s punitive damage claim is barred because Defendant had
anti-discrimination policies and procedures in place and made good faith efforts to
educate its employees on those policies and procedures.
****
9. Failure to Mitigate
Upon information and belief, Defendant asserts Plaintiff failed to mitigate

74

FED. R. CIV. P. 16(b)(4).

75

Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003) (quoting S&W
Enters., 315 F.3d at 535).
76

Id.
17

her damages.77
The parties’ deadline to file amended pleadings was March 13, 2013.78 On April 30,
2013, defendant moved for entry of judgment as a matter of law on plaintiff’s hostile
environment sexual harassment claim based in part on the Ellerth/Faragher affirmative defense.79
On May 14, 2013, plaintiff responded to the summary judgment motion arguing in part that
defendant’s failure to plead the Ellerth/Faragher defense precluded defendant from relying on the
defense.80 On May 17, 2013, defendant moved for leave to amend its original answer to assert
the Ellerth/Faragher defense.81
The Ellerth/Faragher defense permits employers to avoid vicarious liability in a
supervisor hostile environment sexual harassment case if the employer can show (1) the
employer exercised reasonable care to prevent and correct promptly any sexual harassment, and
(2) the complaining employee unreasonably failed to take advantage of any preventative or
corrective opportunities provided by the employer.82 Defendant’s original answer pleads the first
element of the defense.83 With respect to the second element of the defense, the Supreme Court

77

Docket no. 3 at 4.

78

Docket no. 10.

79

Docket no. 19 at 16-17.

80

Docket no. 20 at 20-23.

81

Docket no. 22.

82

Wyatt v. Hunt Plywood Co., 297 F.3d 405, 409 (5th Cir. 2002) (citing Casiano v.
AT&T Corp., 213 F.3d 278, 283-84 and attached appendix (5th Cir. 2000)), cert. denied, 537
U.S. 1188, 123 S. Ct. 1254 (2003).
83

Docket no. 3 at 4.
18

in Faragher expressly recognized it is a:
requirement to show that the employee has failed in a coordinate duty to avoid or
mitigate harm [which] reflects an equally obvious policy imported from the
general theory of damages, that a victim has a duty “to use such means as are
reasonable under the circumstances to avoid or minimize the damages” that result
from violations of the statute.84
Furthermore, the Eleventh Circuit has found the defense was not waived when the employer
pleaded plaintiff’s failure to mitigate damages:
We agree with the district court that Robertsdale did not waive the EllerthFaragher defense by not referring to it by name in its Answer. Robertsdale raised
a general “failure to mitigate damages” defense, which we conclude was sufficient
to assert the Ellerth-Faragher defense. As the Supreme Court has held,
“[f]ollowing Ellerth and Faragher, the plaintiff who alleges no tangible
employment action has the duty to mitigate harm, but the defendant bears the
burden to allege and prove that the plaintiff failed in that regard.” Pennsylvania
State Police v. Suders, 542 U.S. 129, 152, 124 S. Ct. 2342, 2357, 159 L. Ed. 2d
204 (2004). Thus, the Ellerth-Faragher defense is clearly a mitigation defense,
and Howard had ample “notice of the affirmative defense and a chance to rebut
it,” as required by Fed. R. Civ. Pro. 8(c). Grant v. Preferred Research, Inc., 885
F.2d 795, 797 (11th Cir. 1989).85
The Court finds the Eleventh Circuit’s opinion persuasive. Defendant expressly pleaded the first
element of the Ellerth/Faragher defense and the affirmative defense of plaintiff’s failure to
mitigate her damages. Plaintiff has not been surprised by the defense; “defendant ‘raised the
issue at a pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to
respond.’”86 Accordingly, the Court concludes defendant’s original answer adequately pleads the

84

524 U.S. at 806, 118 S. Ct. at 2292 (quoting Ford Motor Co. v. EEOC, 458 U.S. 219,
231 n.15, 102 S. Ct. 3057, 3065 n.15 (1982)).
85

Howard,168 Fed. App’x at 886 n.3.

86

Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009) (quoting Allied
Chem. Corp. v. Mackay, 695 F.2d 854, 855-56 (5th Cir. 1983)) (pleading that defendant was
“immune” from liability found to adequately plead qualified immunity affirmative defense).
19

Ellerth/Faragher affirmative defense.
In addition, defendant has shown good cause for leave to amend its answer. Defendant
explains its failure to expressly plead the defense in its original answer as one of mistake, and
possibly “attorney error,” because it “intended to plead the elements” of the defense and filed its
motion for leave “as soon as it realized amendment was necessary.”87 The defense is clearly
important to defendant, allowing an employer to avoid vicarious liability in supervisor hostile
environment sexual harassment cases, as alleged in this case.
The potential prejudice to plaintiff also is low. As stated, defendant expressly pleaded the
first element of the defense in its answer as well as plaintiff’s failure to mitigate her damages. In
addition, defendant expressly stated its reliance on the Ellerth/Faragher defense in its prelitigation EEOC position statement, and plaintiff does not dispute that she produced a copy of the
statement in discovery in this litigation. Thus, it is not unreasonable to conclude plaintiff should
have been on notice of defendant’s intended reliance on the defense since September 2012, well
before the deadline to amend pleadings.
Finally, trial of this case has not been set. Plaintiff indicates the assertion of the
Ellerth/Faragher defense means additional discovery is needed “on the issue of the factual backup
for [the] defense and the effectiveness of the procedures put in place by Defendant.” But,
plaintiff does not explain what discovery she would require in light of plaintiff’s deposition
testimony on the topic. For all these reasons, the Court concludes defendant has shown good
cause for leave to amend its original answer, and grants defendant’s amended motion for leave
to file a first amended answer.
87

Docket nos. 22 at 2, and 30 at 8.
20

B.

Defendant’s Motion to Strike Portions of Plaintiff’s Summary Judgment Evidence
or, in the Alternative, to Reopen Plaintiff’s Deposition
Defendant moves to strike the changes plaintiff has made to her deposition testimony

through an errata sheet or, in the alternative, to reopen plaintiff’s deposition at plaintiff’s
expense, arguing, in sum, plaintiff has made untimely, material changes to her deposition
testimony through an errata sheet, without providing any reason for the changes, and the changes
are in effect a “sham affidavit.”88 Plaintiff responds, in sum, that her errata changes are timely,
defendant filed its motion for summary judgment relying on plaintiff’s deposition testimony
before the deadline for plaintiff to review and submit any changes to her deposition testimony,
and plaintiff’s changes to her deposition testimony were occasioned by the intimidation and
embarrassment she was subjected to by defendant’s questioning and the presence at the
deposition of an alleged perpetrator of the harassment (Lopez) as defendant’s corporate
representative.89 In reply, defendant contends plaintiff’s failure to provide reasons for the
changes in the errata sheet is fatal to the errata remaining in the record, plaintiff’s counsel never
objected to defendant’s questioning of plaintiff which could not have intimidated plaintiff into
providing incomplete or false testimony because all but one line of questioning occurred after the
testimony to which plaintiff’s errata relates, and Lopez attending the deposition as defendant’s
corporate representative was appropriate and permissible.90 There is extensive, vigorous briefing
on defendant’s motion.

88

Docket no. 27.

89

Docket no. 29.

90

Docket no. 31.
21

Plaintiff arguably has made material changes to her deposition testimony through her
errata sheet, which are significant and noteworthy. But, because the rulings in this memorandum
opinion and order are adverse to plaintiff, the Court has fully considered the changes plaintiff has
made to her deposition testimony through the errata sheet. The Court will not, at this time, strike
the errata sheet from the summary judgment record.
C.

Defendant’s Motion for Summary Judgment
1.

sex discrimination
a.

summary of arguments
i.

defendant’s motion

Defendant moves for summary judgment on plaintiff’s claims of sexual harassment
perpetuated by Johnson and Lopez.91 With respect to Johnson, defendant argues plaintiff has no
evidence Johnson “engaged in conduct so severe or pervasive as to create an abusive work
environment and affect a term, condition, or privilege of plaintiff’s employment.”92 Defendant
contends plaintiff’s deposition testimony demonstrates:
!

plaintiff complains of Johnson’s conduct which took place on June 15,
2010 and July 12, 2010, and which she captured on “garbled and unclear
audio recordings;”93

91

Plaintiff’s original complaint complains of “sexual harassment by the upper
management” but does not identify the alleged perpetrators of the harassment. See docket no. 1.
Defendant’s agreed motion to modify scheduling order deadlines identified Johnson as “the
alleged harasser.” Docket no. 13 at 2. Defendant moves for summary judgment on plaintiff’s
sexual harassment claims based on the conduct of two individuals: Johnson and Lopez. Docket
no. 19 at 2-8, 9-17. Plaintiff’s response does not identify conduct of any other individual as
forming the basis of plaintiff’s harassment claims. See docket no. 20.
92

Docket no. 19 at 8, 12-13.

93

Id. at 3.
22

!

“Johnson wanted [plaintif] to be his wife or girlfriend, but she didn’t care
for him that way;”94

!

“Johnson attempted to take photographs of [plaintiff] while working, but
while fully clothed,” and “Johnson showed her the pictures, and despite
the fact that they were ‘decent,’ she made him delete them;”95

!

“Johnson tried to order [plaintiff] to bend forward so that he could take a
picture of her breast,” but plaintiff did not comply;96 and

!

“[o]nce, at the end of a long day, Johnson laid his head against [plaintiff’s]
chest, and she pushed him away.”97

Otherwise, defendant highlights that when plaintiff rejected “Johnson’s playful bantering,” “she
was always in control;”98 plaintiff “often joked around with Johnson;”99 on the audio recording,
plaintiff was laughing, “explaining that, “I had to act happy because then he wouldn’t speak to
me for days if—after I would always put him in his place then he wouldn’t speak to me for a
couple of days;”100 plaintiff conceded “the alleged harassment never interfered with her job duties
or her ability to get the job done;”101 Johnson complimented plaintiff on her work and “always
supported her, telling her she was a good salesperson;” plaintiff appreciated many of the

94

Id.

95

Id.

96

Id. at 13.

97

Id.

98

Id. at 3.

99

Id.

100

Id.

101

Id. at 3-4 (emphasis omitted).
23

compliments Johnson gave her; plaintiff complimented Johnson at times;102 and Johnson and
plaintiff ate lunch together, and plaintiff bought Johnson a gift for Boss’ Day.103 Defendant relies
on the Fifth Circuit’s decisions in Stewart v. Mississippi Transportation Commission104 and
Hockman v. Westward Communications, LLC105 and the district court decisions in Smith v.
Alderman-Cave Feeds, L.P.106 and Bishop v. Interim Industrial Services107 in arguing Johnson’s
conduct does not rise to the level of severity recognized by the Fifth Circuit as actionable Title
VII conduct, nor were the few instances of allegedly inappropriate conduct “frequent enough to
be considered pervasive.”108
Defendant also argues it is not vicariously liable for Johnson’s conduct because it “took
prompt corrective action, and Johnson did not take any tangible employment action against
Plaintiff.”109 Defendant relies on the Fifth Circuit decisions in Indest v. Freeman Decorating

102

Id. at 4.

103

Id.

104

586 F.3d 321, 330 (5th Cir. 2009).

105

407 F.3d 317, 326 (5th Cir. 2004).

106

No. 1:01-CV-125-C, 2002 U.S. Dist. LEXIS 8031 (N.D. Tex. May 3, 2002).

107

No. 3:97-CV-2240-T, 1998 U.S. Dist. LEXIS 17307 (N.D. Tex. Aug. 28, 1998).

108

Docket no. 19 at 10-13.

109

Id. at 13, 14-15.
24

Inc.,110 Carmon v. Lubrizol Corp.,111 and Dornhecker v. Malibu Grand Prix Corp.112 and contends
“[t]he evidence conclusively shows” defendant began its investigation of Johnson’s conduct the
day after hearing of the problem and took corrective action against Johnson within eleven days,
and plaintiff “was happy with how it was handled.”113
With respect to Lopez, defendant argues plaintiff “abandon[ed]” her claims against him at
her deposition,” but in any event also has no evidence his conduct was severe or pervasive.114
Defendant contends plaintiff’s deposition testimony demonstrates:
Her only complaints about Lopez had nothing to do with alleged harassment and
were two-fold: (1) issues relating to financial commissions, and (2) she “just
didn’t feel comfortable” working with him because he spoke to people about her
problem with Michael Johnson.115
Defendant further argues that even if plaintiff’s amendments to her deposition testimony made
through the errata sheet are considered, “the allegations are insufficiently severe or pervasive to
alter the conditions of Plaintiff’s employment” and cannot support a sexual harassment claim.116
In addition, with respect to Lopez, defendant argues it has established the Faragher
affirmative defense to vicarious liability.117 Defendant asserts it exercised reasonable care to

110

164 F.3d 258, 266 (5th Cir. 1999).

111

17 F.3d 791, 793 (5th Cir. 1994).

112

828 F.2d 307, 310 (5th Cir. 1987).

113

Docket no. 19 at 14-15 (emphasis omitted).

114

Id. at 15.

115

Id. at 5-6.

116

Id.

117

Id. at 16-17.
25

prevent and correct harassment by creating its policy against sexual harassment contained in its
employee handbook, and regularly conducting training which plaintiff attended;118 and plaintiff
“completely failed to avail herself of [defendant’s] procedures for reporting and correcting
harassment.”119 Defendant submits as summary judgment evidence excerpts of plaintiff’s
deposition testimony, plaintiff’s responses to defendant’s interrogatories, Brooks’ affidavit
testimony, the performance correction notice given to Johnson, the affidavit testimony of Jean
Gonzales (“Gonzales”) of defendant’s human resources department, plaintiff’s short-term and
long-term disability notices, defendant’s employee handbook, and certificates indicating
plaintiff’s completion of sexual harassment training.120
ii.

plaintiff’s response

In her response, plaintiff characterizes her sexual harassment claim as one of hostile work
environment.121 With respect to Johnson, plaintiff does not respond to defendant’s analysis of
case law, but argues “Johnson’s litany of sexual conduct toward Plaintiff is sufficient to create an
issue of material fact that should go before a jury.”122 Plaintiff contends that almost immediately
following plaintiff’s 90-day hiring probationary period, around September 2009, Johnson “began

118

Id.

119

Id. at 17.

120

Docket no. 19, attached app.

121

E.g., docket no. 20 at 12, 18. Citations to plaintiff’s response are to the electronic
CM/ECF pagination.
122

Id. at 12-13.
26

a period of sexual harassment.”123 Plaintiff asserts, without citation to the summary judgment
record, that Johnson:
!

“repeatedly [made] sexual advances” to plaintiff;

!

took “inappropriate pictures of her breasts, telling her that that was what a camera
was for;”

!

asked her about “fornication” with him;

!

told her that “when she had her leg extended [] he wanted to put his hands into her
pants and that he wanted to see something;” and

!

repeatedly told her to “come here; let me touch you” and asked her to stand up so
he could look at her; and grabbed her pants “to the point she had to tell him to
‘leave my pants alone, they’re falling.’”124

Plaintiff further contends plaintiff’s deposition testimony indicates:
!

Johnson “told [plaintiff] he was a single man, although he was married, and that
he ‘was not gay, what [did] she expect;”

!

Plaintiff “had to push [Johnson] away when he was trying to turn her around [] so
he could feel what type of underwear she was wearing;” and

!

Johnson “pulled at [plaintiff’s] blouse because he wanted to take pictures of her
she considered revealing.”125

Plaintiff also contends Lopez “sexually harass[ed]” plaintiff and “[h]is conduct included
attempting to kiss her, hugging her, and telling her that she was like no woman he had met before

123

Id. at 7.

124

Id. at 7, 10. See id. at 12-13 (“Considering the outrageousness of the conduct—the
pulling of Plaintiff’s shirt, the improper photography, the grabbing, the fornication comments,
and all the other sexually charged behavior Johnson exhibited toward Plaintiff without respect or
borders creates such an issue of material fact.”).
125

Id. at 7.
27

and needed love and affection.”126 Plaintiff further argues “Johnson and Lopez’s conduct . . .
along with Brook’s response and acquiescence in such conduct” create a fact issue concerning
“whether such conduct rises to the level of hostile work environment sexual harassment.”127
Plaintiff also argues there is a genuine issue of material fact as to whether defendant is
vicariously liable for Johnson’s conduct, and defendant’s responses to plaintiff’s complaints were
inadequate. Plaintiff argues “numerous property managers were aware of Plaintiff’s complaints
over the course of her employment,” as verified by employee statements acknowledging
plaintiff’s complaints.128 Plaintiff contends “[e]ach individual was and had direct links to upper
management” and “[t]hey were, in fact, supervisors of each of their own offices.”129 Plaintiff
further argues the property managers were “‘sufficiently high level in the company’s
management hierarchy to qualify as prox[ies] for the company,’” illustrated by Lopez, a property
manager, appearing at plaintiff’s deposition as defendant’s corporate representative.130 Plaintiff
also argues defendant’s employee handbook imposed on each employee a duty to report
harassment to management, but the property managers discouraged plaintiff from reporting the
alleged harassment and did not report it themselves.131 Thus, the property managers’ failure to
follow company policy “is evidence tending to show that a reasonable jury could find that they

126

Id. at 9.

127

Id. at 21-22.

128

Id. at 14-15.

129

Id. at 15.

130

Id.

131

Id. at 16.
28

company’s response to Plaintiff’s complaints was inadequate.”132 Plaintiff also argues there is a
fact issue as to “whether the Company failed to take sufficient disciplinary and remedial action in
response to Plaintiff’s complaints” because defendant “did not seriously investigate Plaintiff’s
complaints,” neither Johnson nor Lopez were “strongly reprimand[ed],” and plaintiff was moved
to a new location so “[s]he was the victim, but she was the one who had to undergo a change.”133
Plaintiff further complains about defendant’s investigation of the complaints: Brooks “only heard
two tapes of recordings of Johnson’s sexual harassment” and refused to hear more; and Brooks’
“response to Plaintiff’s situation as a victim failed miserably” because he stated, “Well, I always
say nice things to my co-workers,” which indicated Johnson and Lopez’s behavior “was
commonplace and acceptable.”134
Plaintiff also argues the conduct of Johnson and Lopez was severe and pervasive under
the “continuing violation doctrine.” More specifically, plaintiff argues Brooks’ response to the
complaints of alleged harassment and Lopez’s conduct “expressed a continuation of the
workplace sexual harassment” perpetrated by Johnson, and the ongoing conduct demonstrates a
pervasive hostile environment that was based on more than a single harassing incident.135
Plaintiff also argues she suffered emotional distress as a result of the conduct which “lends
credence to her claim that the harassment by her supervisors rose to a level that met or exceeded

132

Id. at 17.

133

Id. at 17-18.

134

Id. at 10, 17-18.

135

Id. at 18-19.
29

conduct which is humiliating.”136
Finally, plaintiff argues defendant is precluded from relying on the Ellerth/Faragher
defense to avoid liability for its employees’ conduct because defendant did not plead the defense
in its answer.137 Plaintiff submits as summary judgment evidence: excerpts of plaintiff’s
deposition testimony with the errata sheet, and defendant’s initial disclosures with attachments.138
iii.

defendant’s reply

Defendant’s reply objects to plaintiff’s summary judgment evidence, and makes six main
arguments in opposition to plaintiff’s response.139 With respect to plaintiff’s summary judgment
evidence, defendant argues: plaintiff’s recitation of undisputed material facts is “unsubstantiated
assertions” without record citation;140 the errata sheet attached to plaintiff’s deposition testimony
constitutes a “sham affidavit” that improperly attempts to change plaintiff’s testimony and is
untimely under the Federal Rules;141 neither the alleged “secret recording of a conversation with
Defendant supporting [plaintiff’s] claims” nor a transcript of the recording is in the summary
judgment record, nor are any physician notes;142 plaintiff misstates the evidence in the record;143

136

Id. at 19.

137

Id. at 20-23.

138

Docket no. 20, attached appendix (“app.”).

139

Docket no. 23.

140

Id. at 1-2.

141

Id. at 2-3.

142

Id. at 3.

143

Id. at 3-4.
30

and plaintiff impermissibly relies on “hearsay and other objectionable evidence” in response to
the summary judgment motion.144
Substantively, defendant advances six arguments that “there is no evidence of severe or
pervasive conduct and plaintiff cannot negate defendant’s defenses:” (1) plaintiff’s allegation of a
“litany” of objectionable conduct by Johnson is unsupported by admissible evidence;145 (2) there
is “no fact issue” on whether defendant “took prompt corrective action against Johnson once it
learned of the allegations” of misconduct;146 (3) “plaintiff has no evidence Lopez was a ‘proxy’
for defendant” such that liability is imputed to defendant for his actions;147 (4) the continuing
violation doctrine does not apply because it is a method of avoiding the deadline for filing a presuit charge of discrimination with the EEOC, not for avoiding the duty to produce admissible
evidence to survive summary judgment;148 (5) defendant should not be deemed to have waived
the Ellerth/Faragher defense because plaintiff cannot be surprised by defendant’s assertion of the
defense that was alleged in defendant’s EEOC position statement in September 2012, and
plaintiff is not prejudiced by defendant raising the defense well before trial;149 and (6) “plaintiff’s
allegation that she was afraid to report harassment cannot supplant defendant’s evidence that it

144

Id. at 4.

145

Id.

146

Id. at 4-6.

147

Id. at 6-7.

148

Id. at 7.

149

Id. at 7-8.
31

exercised reasonable care to prevent and correct harassment.”150 In closing, defendant asserts
“Plaintiff’s summary judgment ‘evidence’ should be stricken,” and asks that its summary
judgment motion be granted.151
b.

standards

Title VII makes it unlawful for an employer:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate 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; or
(2) to limit, segregate, or classify his employees or applicants for employment in
any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because of
such individual’s race, color, religion, sex, or national origin.152
A plaintiff may establish employment discrimination by direct or circumstantial evidence.153 If
the plaintiff produces only circumstantial evidence, the Court must analyze the discrimination
claims under the well-established burden-shifting framework set forth in McDonnell Douglas

150

Id. at 8-10.

151

Id. at 10. Plaintiff’s summary judgment evidence consists of excerpts of her
deposition testimony along with her errata changes, and defendant’s initial disclosures with
attachments. Docket no. 20, app. To the extent defendant’s request to strike “Plaintiff’s
summary judgment ‘evidence’” refers to plaintiff’s errata changes to her deposition testimony,
the issue is addressed in connection with defendant’s motion to strike portions of plaintiff’s
summary judgment evidence. See supra Part VI.B. To the extent the request refers to employee
statements attached to defendant’s initial disclosures, see docket no. 23 at 5-6, because the
rulings in this memorandum opinion and order are adverse to plaintiff, the Court has fully
considered the statements.
152

42 U.S.C. § 2000e-2(a).

153

Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002), cert. denied,
539 U.S. 926, 123 S. Ct. 2572 (2003).
32

Corp. v. Green.154 Under the McDonnell Douglas framework, a plaintiff must first carry the
initial burden of proving by the preponderance of the evidence a prima facie case of
discrimination.155 In McDonnell Douglas, the Supreme Court required a
complainant in a Title VII trial [to] carry the initial burden under the statute of
establishing a prima facie case of racial discrimination. This may be done by
showing (i) that he belongs to a racial minority; (ii) that he applied and was
qualified for a job for which the employer was seeking applicants; (iii) that,
despite his qualifications, he was rejected; and (iv) that, after his rejection, the
position remained open and the employer continued to seek applicants from
persons of complainant’s qualifications.156
But, the Supreme Court noted this framework is intended to be flexible and, therefore, the
requirements for a prima facie case will vary with the facts of each case.157 At the least, a prima
facie case in an employment discrimination cause of action requires proof of some type of
ultimate employment decision adverse to the plaintiff.158

154

411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973). See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 2106 (2000) (“McDonnell Douglas and
subsequent decisions have ‘established an allocation of the burden of production and an order for
the presentation of proof in . . . discriminatory-treatment cases.’”) (quoting St. Mary’s Honor
Center v. Hicks, 509 U.S. 502, 506, 113 S. Ct. 2742 (1993)).
155

Patterson v. McClean Credit Union, 491 U.S. 164, 186-87, 109 S. Ct. 2363, 2378
(1989); Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093-94
(1981).
156

McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824.

157

Id. at 803 n.13, 93 S. Ct. at 1824 n.13 (“The facts necessarily will vary in Title VII
cases, and the specification above of the prima facie proof required from respondent is not
necessarily applicable in every respect to differing factual situations.”).
158

McCoy v. City of Shreveport, 492 F.3d 551, 560 (5th Cir. 2007) (explaining that after
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 (2006),
“our precedent recognizing only ‘ultimate employment decisions’ as actionable adverse
employment actions remains controlling for Title VII discrimination claims” as opposed to
retaliation claims) (emphasis in original).
33

If the plaintiff establishes a prima facie case, a rebuttable presumption arises that the
employer unlawfully discriminated against plaintiff.159 The burden then shifts to the defendant to
present evidence that it treated plaintiff in a certain way for a legitimate, nondiscriminatory
reason.160 Once the defendant satisfies this second part of the analysis, the presumption raised by
the prima facie case is rebutted and is dropped from the case.161 The third step of the analysis
shifts the burden back to plaintiff to prove the reason articulated by the employer was a mere

159

Patterson, 491 U.S. at 187, 109 S. Ct. at 2378; Burdine, 450 U.S. at 253, 101 S. Ct. at

1093.
160

St. Mary’s Honor Center, 509 U.S. at 507, 113 S. Ct. at 2747. See Burdine, 450 U.S.
at 255-56, 101 S.Ct. at 1094-95. In Burdine, the Court stated:
To accomplish this, the defendant must clearly set forth, through the introduction
of admissible evidence, the reasons for the plaintiff’s rejection. The explanation
provided must be legally sufficient to justify a judgment for the defendant. If the
defendant carries this burden of production, the presumption raised by the prima
facie case is rebutted, and the factual inquiry proceeds to a new level of
specificity. Placing this burden of production on the defendant thus serves
simultaneously to meet the plaintiff’s prima facie case by presenting a legitimate
reason for the action and to frame the factual issue with sufficient clarity so that
the plaintiff will have a full and fair opportunity to demonstrate pretext. At this
second stage, defendant is not required to prove the legitimate, nondiscriminatory
reason.
Id. at 255-56, 101 S.Ct. at 1094-95 (citations and notes omitted). In Bodenheimer v. PPG Indus.,
Inc., 5 F.3d 955, 958 (5th Cir. 1993), the Court stated:
This misstatement [by a defense witness], Bodenheimer argues, renders the
evidence unreliable, thereby creating a genuine factual issue. Bodenheimer’s
reasoning is unpersuasive. The degree of impeachability of evidence at this stage
is irrelevant. St. Mary’s [Honor Center] directs us to avoid making any credibility
determinations at this stage because “the burden-of-production determination
necessarily precedes the credibility-assessment stage.” St. Mary’s [Honor Center,
509 U.S. at 509], 113 S. Ct. at 2748 (emphasis original). The employer need only
articulate a lawful reason, regardless of what its persuasiveness may or may not
be.
161

St. Mary’s Honor Center, 509 U.S. at 507, 516-17, 113 S. Ct. at 2747, 2752-53.
34

pretext for discrimination.162 For purposes of proving pretext, it is not enough to show the stated
reason was false; plaintiff must show both the stated reason was false and discrimination was the
actual reason for the adverse employment action.163 “[T]he trier of fact may still consider the
evidence establishing the plaintiff’s prima facie case ‘and inferences properly drawn therefrom
. . . on the issue of whether the defendant’s explanation is pretextual.’”164
At the third step, plaintiff need not produce additional independent evidence of
discrimination.165 Although “a prima facie case and sufficient evidence to reject the employer’s
explanation may permit a trier of fact to determine that the employer unlawfully discriminated
and may therefore prevent summary judgment in favor of the employer,” this showing is not
always enough to prevent summary judgment if “no rational factfinder could conclude the action
was discriminatory.”166

162

Id.; Burdine, 450 U.S. at 256, 101 S. Ct. at 1095.

163

St. Mary’s Honor Center, 509 U.S. at 516-17, 113 S. Ct. at 2752-53.

164

Reeves, 530 U.S. at 142-44, 120 S. Ct. at 2106 (quoting Burdine, 450 U.S. at 255, 101
S. Ct. at 1089 & n.10). In Reeves, the Supreme Court held that “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.” 530 U.S. at 14849, 120 S. Ct. at 2109. The Court stated that, more likely than not, a showing of pretext will lead
to an inference of discrimination: “Moreover, once the employer’s justification has been
eliminated, discrimination may well be the most likely alternative explanation, especially since
the employer is in the best position to put forth the actual reason for its decision.” Id. at 148-49,
120 S. Ct. at 2108-09.
165

See Blow v. City of San Antonio, 236 F.3d 293, 298 (5th Cir. 2001) (reiterating that
no “additional, independent evidence of discrimination” is required); Ratliff v. City of
Gainesville, 256 F.3d 355, 361-62 (5th Cir. 2001) (same).
166

Reeves, 530 U.S. at 148, 120 S. Ct. at 2109; Pratt v. City of Houston, Tex., 247 F.3d
601, 606 (5th Cir. 2001). Although Reeves was based on a motion for judgment as a matter of
law, the standard is the same for summary judgment. Pratt, 247 F.3d at 607 n.3.
35

For instance, an employer would be entitled to summary judgment “if the plaintiff
created only a weak issue of fact as to whether the employer’s reason was untrue
and there was abundant and uncontroverted independent evidence that no
discrimination occurred.” [Reeves, 530 U.S. at 148, 120 S. Ct. at 2109.] Whether
summary judgment is appropriate in any particular case depends on a variety of
factors, including “the strength of the prima facie case, the probative value of the
proof that the employer’s explanation is false and any other evidence that supports
the employer’s case and that properly may be considered.” Id. We have said that
summary judgment is inappropriate “if the evidence taken as a whole (1) creates a
fact issue as to whether each of the employer’s stated reasons was what actually
motivated the employer and (2) creates a reasonable inference that [race] was a
determinative factor in the actions of which plaintiff complains.” Vadie v.
Mississippi State University, 218 F.3d 365, 373 (5th Cir. 2000), cert. denied, [531
U.S. 1150, 121 S. Ct. 1092, 148 L. Ed. 2d 966] (2001).167
Because plaintiff ultimately retains the burden of persuading the factfinder of intentional
discrimination,168 the question on summary judgment at the pretext stage is whether there is a
conflict in substantial evidence to create a jury question regarding discrimination.
c.

analysis
i.

introduction

Plaintiff provides no particularized statement of facts to support her claims, pleading
generally that she was “subject to sexual harassment by the upper management;” and after
plaintiff was transferred, the “sexual harassment continued, with the management making
demands to see her underwear, and to kissing her frontally.”169 Plaintiff further pleads that “[d]ue

167

Pratt, 247 F.3d at 606 (note omitted) (second alteration in original) (italics added).
See also Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996) (en banc); Grimes v.
Tex. Dept. of Mental Health & Mental Retardation, 102 F.3d 137, 140-41 (5th Cir. 1996).
168

Reeves, 530 U.S. at 148-49, 120 S. Ct. at 2109.

169

Docket no. 1 at 2.
36

to her complaints to management of sexual harassment, she was terminated.”170 Under the
heading “sexual harassment,” plaintiff pleads defendant “intentionally discriminated” against her
in violation of 42 U.S.C. § 2000e-2(a) and recites portions of the statutory prohibitions.171 Under
the heading “constructive discharge,” plaintiff pleads defendant “made the working conditions so
intolerable that Plaintiff felt compelled to resign her position.”172
Two types of gender-based discrimination claims are cognizable under Title VII: hostile
environment claims in which “the harassment creates a hostile or abusive working environment,
but is not necessarily linked directly to an economic quid pro quo,” and quid pro quo claims in
which “the grant or denial of employment advancement, such as a promotion or raise, depends
upon whether an employee acquiesces to unwelcome sexual advances, requests for sexual favors,
or other verbal or physical conduct of a sexual nature.”173 The Court will consider both types of
claims to the extent plaintiff has pleaded them and defendant has moved for entry of judgment as
a matter of law on them.174
170

Id. at 3.

171

Id.

172

Id.

173

Donaldson v. CDB, Inc., 335 Fed. A’ppx 494, 500 (5th Cir. Jul. 9, 2009) (discussing
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-66, 106 S. Ct. 2399, 2404-05 (1986)). See
FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS (2006), instruction nos. 11.4.1 (“Title VII, sex
discrimination, supervisor sexual harassment without tangible employment action (hostile work
environment)”), 11.4.2 (“Title VII, sex discrimination, supervisor sexual harassment resulting in
tangible employment action (quid pro quo)”), 11.4.3 (“Title VII, sex discrimination, coworker/direct and non-direct supervisory/third-party sexual harassment (hostile work
environment)”).
174

Defendant’s motion clearly seeks entry of judgment as a matter of law on plaintiff’s
pleading that indicates a hostile environment sexual harassment claim. Docket no. 19 at 1, 8-17.
Defendant’s motion also appears to move for entry of judgment as a matter of law on plaintiff’s
37

ii.

hostile work environment claim

To establish a claim of hostile work environment based on sexual harassment by a coworker, plaintiff must prove she: (1) is a member of a protected class, (2) was subjected to
unwelcome harassment, (3) the harassment complained of was based on her sex, (4) the
harassment complained of affected a term, condition, or privilege of employment, and
(5) defendant knew or should have known of the harassment in question and failed to take
prompt remedial action.175 A claim based on harassment by a supervisor does not require proof
of the fifth element.176
A.

harassment that affects a term, condition, or privilege of
employment

The parties dispute whether plaintiff can meet her prima facie burden on the fourth
element. For sexual harassment to affect a term, condition, or privilege of employment, as
required to support a hostile work environment claim under Title VII, “‘it must be sufficiently
severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive
working environment.’”177 “To survive summary judgment, the harassment must be ‘so severe
and pervasive that it destroys a protected classmember’s opportunity to succeed in the work

claim for relief on “constructive discharge” grounds, id. at 1 n.1, which can implicate a quid pro
quo sexual harassment claim, see infra Part VI.C.1.c.iii.
175

Septimus v. Univ. of Houston, 399 F.3d 601, 611 (5th Cir. 2005); Ramsey v.
Henderson, 286 F.3d 264, 268 (5th Cir. 2002).
176

Stewart, 586 F.3d at 330.

177

Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005) (quoting
Meritor Sav. Bank, 477 U.S. at 67, 106 S. Ct. 2399).
38

place.’”178 The courts look to the totality of the circumstances to determine whether conduct is
severe or pervasive; 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.”179 In addition, the
conduct must be both objectively and subjectively abusive.180 “The Supreme Court has
repeatedly stated that ‘simple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms and conditions of
employment.’”181 Whether the severity or pervasiveness of conduct rises to an actionable level
under Title VII can be determined as a matter of law.182
The summary judgment record reflects the following:
!

plaintiff complains of Johnson’s conduct; plaintiff captured two incidents on
audio recordings on her mobile phone that occurred on June 15, 2010 and July 12,
2010; neither the recordings nor a transcript of the recordings are part of the
summary judgment record;183

178

Hockman, 407 F.3d at 326 (quoting Shepherd v. Comptroller of Pub. Accounts, 168
F.3d 871, 874 (5th Cir. 1999)).
179

Stewart, 586 F.3d at 330 (citing Lauderdale v. Tex. Dep’t of Criminal Justice,
Institutional Div., 512 F.3d 157, 163 (5th Cir. 2007) and quoting Harvill, 433 F.3d at 434
(internal quotations and citations omitted)).
180

Harris v. Forklift Sys., 510 U.S. 17, 21-22, 114 S. Ct. 367, 370-71 (1993); Butler v.
Ysleta Indep. Sch. Dist., 161 F.3d 263, 269 (5th Cir. 1998).
181

Hockman, 407 F.3d at 328 (quoting Faragher, 524 U.S. at 788, 118 S. Ct. 2275 (other
quotations and citations omitted)).
182

See, e.g., Stewart, 586 F.3d at 330-31 (affirming grant of summary judgment on
plaintiff’s claim of hostile environment sexual harassment as a matter of law on severity and
pervasiveness of conduct); Hockman, 407 F.3d at 326-29 (same).
183

Docket no. 19, app. at APX0016-0023 (pl.’s depo. at 216-251 (discussion of audio
recordings)), APX0035 (pl.’s depo. at 363 (plaintiff indicated in EEOC complaint that she
39

!

Johnson told plaintiff he wanted her to be his girlfriend or wife, he was attracted
to her, and explained he “was not gay” and “what do you expect?”184

!

Johnson “would joke around with [plaintiff] in ways that [she] felt [were]
inappropriate;”185 the joking “was more than . . . inappropriate . . . . [Johnson]
created a situation and an environment that made [plaintiff] feel uneasy, and
scared about his intentions. [Johnson] was obsessed with [plaintiff’s] body
and . . . breasts;”186

!

Johnson used his mobile phone camera to take photographs of plaintiff while she
was working, in which plaintiff was fully clothed and dressed appropriately;
Johnson showed plaintiff at least one such photograph and Johnson deleted the
photograph at plaintiff’s request;187

!

Johnson attempted to order plaintiff to bend over and wanted plaintiff to pull on
her own blouse so he could take pictures of her breasts; plaintiff did not
comply;188

!

Johnson tried to pull plaintiff’s arm to turn her around “so he could feel
what type of underwear [plaintiff] was actually wearing;”189 and

!

once, at the end of a work event, Johnson laid his head face-down into
plaintiff’s chest, and plaintiff pushed him away.190

believed harassment started in “September 2010” (based on plaintiff’s testimony, the year likely
should be 2009))).
184

Id., app. at APX0021 (pl.’s depo. at 245).

185

Id., app. at APX0010 (pl.’s depo. at 161).

186

Docket no. 20, app. at pl.’s depo. at 161 as amended by errata sheet.

187

Docket no. 19, app. at APX0019-21 (pl.’s depo. at 233-37, 242-43); docket no. 20,
app. at pl.’s depo. at 241.
188

Docket no. 19, app. at APX0019, APX0021, APX0023 (pl.’s depo. at 231-232, 242,
250-51); docket no. 20, app. at pl.’s depo. at 241.
189

Docket no. 20, app. at pl.’s depo. at 205.

190

Docket no. 19, app. at APX0035 (pl.’s depo. at 363-64).
40

With respect to Lopez,
!

plaintiff had a complaint about Lopez related to the way in which commissions
were handled;191

!

plaintiff “didn’t feel comfortable working with [Lopez]” because plaintiff learned
Lopez “had spoken to people about . . . [her] situation that . . . [she] was going
through [related to Johnson] . . . and [that] nothing was being done,” and Lopez
had told plaintiff once that he had spoken with Johnson “about what . . . was
going on with [plaintiff]” and Johnson “had said that . . . he wouldn’t do
something like that;” and

!

“Lopez said repeatedly that he needed hugs and made inappropriate sexual
comments that made me feel uncomfortable. . . . When [plaintiff] was sent
to his office before he was transferred to have a document notarized, he
asked [plaintiff] to hold him and touch him in his private parts. That he
had been married for twenty years, and was in a loveless marriage and
tried to kiss [plaintiff].”192

Plaintiff’s complaints about Lopez concerning commissions and Lopez relating to her that
he spoke to Johnson are not actionable Title VII conduct. Without further specification,
plaintiff’s conclusory complaints that Johnson would “joke” with her in ways she felt were
“inappropriate;” unspecified jokes “made [her] feel uneasy, and scared about [Johnson’s]
intentions;” Johnson “was obsessed with [her] body and . . . breasts;” and Lopez made
“inappropriate sexual comments,” do not demonstrate an objectively reasonable person would
find the complained of conduct abusive. Plaintiff cannot meet her burden with conclusory
assertions of harassing conduct.193

191

Id., app. at APX0008 (pl.’s depo. at 147-49).

192

Id., app. at APX0007 (pl.’s depo. at 135); docket no. 20, app. at pl.’s depo. at 135 as
amended by errata sheet.
193

Bryan v. Chertoff, 217 Fed. App’x 289, 294 (5th Cir. Jan. 29, 2007) (“cursory
assertions” that harassing actions resulted in hostile environment insufficient to meet prima facie
burden and defeat summary judgment).
41

Johnson’s photographing of plaintiff while working and dressed appropriately, while
possibly annoying to plaintiff, is not of the type of severe and extreme behavior to support a
hostile environment claim. Plaintiff may have perceived her work environment to be abusive as
a result of Johnson’s photography, but plaintiff has failed to show that an objectively reasonable
person would feel the same way.194
Plaintiff also complains of comments made to her by Johnson concerning her marital
status, how Johnson was attracted to her, and that he “was not gay.” The comments may have
been “boorish and offensive,” but they are not the type that support a hostile environment claim,
nor has plaintiff shown they were pervasive.195 With respect to plaintiff’s complaint about the
one incident in Lopez’s office in which he “asked [plaintiff] to hold him and touch him in his
private parts,” stated he had been in a “loveless marriage” for twenty years, and tried to kiss
plaintiff, plaintiff does not indicate her response to Lopez’s alleged conduct, or Lopez’s reaction
to any response by her, including whether Lopez ever approached plaintiff again. One incident is
not pervasive, and without more, plaintiff has not demonstrated Lopez’s conduct was the type of
severe single incident to affect a term, condition or privilege of plaintiff's employment.196

194

See Bishop, 1998 U.S. Dist. LEXIS 17307, at *8-*9 (conduct not severe and
pervasive when supervisor asked plaintiff for a date on one occasion, followed her around the
workplace to determine her destination, commented on her clothing and asked why she did not
wear something more flirtatious, asked her once if she had a boyfriend, and watched her work
while he was in his office with the lights off).
195

See Buenrostro v. Flight Safety Int’l, Inc., 62 Fed. App’x 556, 556 (5th Cir. 2003) (per
curiam) (evidence of being hired based on appearance, invited to lunch, complimented on
appearance, disfavored in comparison to another woman, and enduring a change in attitude after
she refused her supervisor’s advances not actionable under Title VII).
196

See Paul v. Northrop Grumman Ship Sys., 309 Fed. App’x 825, 829 (5th Cir. Feb. 5,
2009) (per curiam) (“[W]hile an isolated incident—reflecting conduct that is not pervasive or
42

Plaintiff’s complaints about Johnson and Lopez largely relate to “offensive utterances”
but, plaintiff also complains of two incidents of physical touching, one of which concerned
Johnson’s head on plaintiff’s chest. Courts consider whether conduct “is physically threatening
or humiliating, or a mere offensive utterance” in assessing whether conduct is severe or
pervasive. But, upon a review of the entire record, the Court cannot conclude these two incidents
of touching are of the severe and extreme conduct the Fifth Circuit has found to be actionable
under Title VII. The allegedly harassing conduct (comments and touching) occurred over the
course of almost two years, and it is unclear from the record when in that two-year period the two
complained of incidents of physical touching occurred. Otherwise, the incidents appear to be
isolated and non-severe, especially with respect to the incident involving plaintiff’s chest as
plaintiff failed even to raise the matter in response to defendant’s motion.197
Importantly, defendant presents summary judgment evidence that plaintiff’s ability to
complete her job duties was not impacted by Johnson’s behavior,198 which plaintiff does not
contest. This undisputed fact—pertinent to whether the unwelcome conduct would “interfere

frequent—may be sufficiently severe to constitute sexual harassment, it must be ‘extremely
serious’ in order to ‘amount to discriminatory changes in the terms and conditions of
employment’” (quoting Lauderdale, 512 F.3d at 163 (internal punctuation and citation omitted)).
197

See Shepherd, 168 F.3d at 872 (over course of “almost two years,” touching arm on
several occasions, rubbing one hand from plaintiff’s shoulder to her wrist while standing beside
her found not to be severe or pervasive conduct). Defendant raised the incident involving
Johnson’s head on plaintiff’s chest in its motion, docket no. 19 at 13, but plaintiff did not address
the incident in her response.
198

Docket no. 19 at 3 (“Plaintiff concedes that the alleged harassment never interfered
with her job duties or her ability to get the job done.”) (citing app. at APX0025, APX0027 (pl.’s
depo. at 263-64, 271) (plaintiff agreed she would perform her job responsibilities regardless of
Johnson’s comments, and agreed that “one way or another” she was able “to get the information
[she] needed to do [her] job,” whether the information came from Johnson or a co-worker)).
43

unreasonably with a reasonable person’s work performance or destroy her opportunity to succeed
in the workplace”—weighs against finding the conduct severe or pervasive and thus actionable
under Title VII.199 This may be a close case. But, reviewing the totality of the circumstances,
including that the alleged conduct occurred over the course of almost two years, the court cannot
conclude the conduct complained of rose to the level of severity and pervasiveness the Fifth
Circuit has found to affect terms, conditions, or privileges of employment.200 The Supreme Court
has “made it clear that conduct must be extreme to amount to a change in the terms and
conditions of employment.”201 The Court concludes plaintiff has failed to raise a genuine issue
of material fact as to whether the alleged harassment affected a term, condition, or privilege of

199

Stewart, 586 F.3d at 330-31 (statements that supervisor and plaintiff should be
“sweet” to each other and supervisor’s stating that he loved plaintiff which occurred every few
days for one month would not interfere unreasonably with a reasonable person’s work
performance) (citations omitted); Shepherd, 168 F.3d at 874 (sexual teasing and some touching
over a period of two years was “not severe” because it was “not the type of extreme conduct that
would prevent [the plaintiff] from succeeding in the workplace”).
200

Compare Hockman, 407 F.3d at 328 (comments to plaintiff about another employee’s
body, slapping plaintiff on the behind with a newspaper, grabbing or brushing up against
plaintiff’s breasts and behind, and attempting to kiss plaintiff were not severe as a matter of law);
and Shepherd, 168 F.3d at 872-75 (workplace environment not altered by: co-worker’s comments
that “your elbows are the same color as your nipples,” and “you have big thighs” while he
simulated looking under plaintiff’s dress; co-worker standing over plaintiff’s desk on several
occasions and trying to look down her clothing; co-worker “touch[ing plaintiff's] arm on several
occasions, rubbing one of his hands from her shoulder down to her wrist while standing beside
her;” and on two occasions, co-worker “patt[ing] his lap and remark[ing], ‘here’s your seat’”
when plaintiff arrived late to a meeting); with Harvill, 433 F.3d at 435-36 (during seven-month
period, grabbing and kissing plaintiff on the cheek, popping rubber bands at plaintiff’s breasts,
fondling plaintiff’s breasts “numerous times,” patting plaintiff on her buttocks “numerous times,”
and rubbing body against plaintiff from behind, despite plaintiff’s protests on every occasion,
found to constitute severe and pervasive conduct).
201

Faragher, 524 U.S. at 788, 118 S. Ct. at 2284.
44

plaintiff’s employment.202 Accordingly, defendant’s motion for summary judgment is granted,
and plaintiff’s claim for hostile environment sexual harassment is dismissed.
B.

vicarious liability
1.

Johnson

An employer can avoid vicarious liability for the harassing conduct of an employee under
certain circumstances. In a hostile environment sexual harassment case, if the employee is a coworker of the plaintiff, an employer will be vicariously liable for the co-worker’s harassment if
the employer knew or should have known of the harassment in question and failed to take prompt
remedial action.203 If, on the other hand, the employee is the plaintiff’s supervisor, the employer
can only avoid vicarious liability if the employer can establish both prongs of the
Ellerth/Faragher affirmative defense: (1) the employer exercised reasonable care to prevent and
correct promptly any sexual harassment, and (2) the complaining employee unreasonably failed
to take advantage of any preventative or corrective opportunities provided by the employer.204
Notwithstanding whether Johnson’s conduct affected a term, condition, or privilege of

202

Plaintiff also argues Johnson and Lopez’s conduct was severe and pervasive “under
the []continuing violation doctrine” as “[n]ot only did one supervisor sexually harass her, a
second one continued suit.” Docket no. 20 at 18. The Court has considered the totality of the
conduct of defendant’s employees alleged by plaintiff, but any arguments concerning the
“continuing violation doctrine” are inapposite. The continuing violation doctrine is an equitable
exception to the 180-day limitation on the period in which a plaintiff must file a charge of
discrimination with the EEOC; the “exception arises ‘[w]here the unlawful employment practice
manifests itself over time, rather than as a series of discrete acts.’” Waltman v. Int’l Paper Co.,
875 F.2d 468, 474 (5th Cir. 1989) (quoting Abrams v. Baylor Coll. of Medicine, 805 F.2d 528,
532 (5th Cir. 1986)).
203

Septimus, 399 F.3d at 611; Ramsey, 286 F.3d at 268.

204

Wyatt, 297 F.3d at 409 (citing Casiano, 213 F.3d at 284).
45

plaintiff’s employment, defendant argues it “is not vicariously liable for Johnson’s conduct
because[] defendant took prompt corrective action, and Johnson did not take any tangible
employment action against plaintiff.”205 Plaintiff argues there is a genuine issue of material fact
as to whether defendant took prompt corrective action upon learning of the complaints about
Johnson, but plaintiff also argues various aspects of the Ellerth/Faragher defense with respect to
Johnson’s conduct.206 Thus, before determining whether plaintiff has demonstrated a genuine
issue of material fact as to vicarious liability for Johnson’s conduct, the Court must first
determine whether plaintiff has demonstrated there is a genuine issue of material fact as to
whether Johnson was plaintiff’s supervisor. Plaintiff has the prima facie burden of proving
Johnson was her supervisor in a hostile environment sexual harassment case.207

205

Docket no. 19 at 13, 13-15. Defendant’s argument that Johnson did not take any
tangible employment action against plaintiff appears to be directed to whether plaintiff can
establish a quid pro quo sexual harassment claim. “In a quid pro quo suit, proof that a tangible
employment action resulted from a supervisor’s sexual harassment renders the employer
vicariously liable, and no affirmative defense can be asserted.” Wyatt, 297 F.3d at 409 (italics
added).
206

See e.g., docket no. 20 at 10 (“A genuine issue of material fact exists on whether
Defendant is vicariously liable for Johnson’s behavior because Defendant did not take prompt
corrective action and whether Defendant’s sexual harassment program was effective or a paper
tiger considering Defendant’s managers’ advice to plaintiff that if she complained she would be
fired.”).
207

See Indest, 168 F.3d at 805 (Wiener, J., specially concurring) (in hostile work
environment claims, when plaintiff “meets his burden of proving that (1) the defendant is his
employer; (2) the harasser is a supervisor, (3) he was sexually harassed by the supervisor, and
(4) the supervisor’s conduct is actionable, i.e., produces a work environment that is either severe
or pervasive, the employer is subject to vicarious liability,” unless employer can prove
affirmative defense); Miller v. N. Miss. Med. Clinics, Inc., No. 1:07cv25, 2008 WL 2699802,
at *3 (N.D. Miss. Jun. 30, 2008) (“[I]t does seem clear that plaintiff has the burden of proving
[the harasser] was her supervisor . . . .”) (citing Mack v. Otis Elevator Co., 326 F.3d 116, 122
(2d Cir. 2003)).
46

In her original complaint, plaintiff complains of “sexual harassment by the upper
management” but does not identify the alleged perpetrators of the harassment.208 Defendant does
not concede Johnson was plaintiff’s supervisor, and neither defendant’s argument nor its
summary judgment evidence demonstrate Johnson was plaintiff’s supervisor. In argument in the
motion, defendant states:
!

plaintiff complains of “sexual harassment by two different co-workers;”209

!

plaintiff “was employed as a salesperson/assistant manager” at Springfield
Meadows and Johnson was the “manager;”210

!

plaintiff alleges in her original complaint she was harassed by “upper
management,” but plaintiff “conceded in her deposition that Michael
Johnson had no authority to hire or fire employees;”211

!

“staffing” at Springfield Meadows was “minimal, and consisted of
Plaintiff, Michael Johnson,” and two others;212

!

plaintiff bought Johnson “a little gift for Boss[’s] Day;”213 and

!

plaintiff was told by “other employees” she should follow “the company’s
policies and procedures and contact supervisor Randal Brooks”
concerning Johnson’s conduct.214

208

Docket no. 1.

209

Docket no. 19 at 1 (emphasis added).

210

Id. at 2.

211

Id. at 2 n.2.

212

Id.

213

Id. at 4.

214

Id. (emphasis added). Notably, defendant also argues an “employer is sometimes
vicariously liable for a supervisor’s sexually harassing behavior, but in the Fifth Circuit, an
employer cannot be held liable when it takes prompt and appropriate remedial action in response
to the complainant’s allegations of harassment.” Id. at 13 (emphasis added). But, the three Fifth
47

The summary judgment evidence shows:
!

defendant’s director of human resources, Jean Gonzales, testified that defendant
“keeps a very small staff at each community,” and “[d]uring Plaintiff’s
employment at the Springfield Meadows location, the only staff employed there
were Michael Johnson, [plaintiff],” and two others;215

!

plaintiff testified at her deposition that she agreed she “underst[oo]d that
[Johnson] needed approval above him before he could make any hire,”216 and
referring to that testimony, testified through the errata sheet that “This is what Mr.
Johnson told me. I have no personal knowledge of that;”217

!

plaintiff testified at her deposition that she agreed she “understood that [Johnson]
didn’t have the ability to hire and fire on his own,”218 and referring to that
testimony, testified through the errata sheet that “I understood that Mr. Johnson
could recommend my termination to someone.”219

Plaintiff presents no summary judgment evidence demonstrating Johnson had any
supervisory authority over her. In the portion of her response entitled “undisputed material
facts,” plaintiff recites that “[t]he sexual harassment came at the hands of her supervisor,” “[t]he
Plaintiff was subjected to sexual harassment by her supervisor Michael Johnson,” and “[t]he

Circuit cases defendant cites and discusses in support of this position are inapposite: Carmon, 17
F.3d at 794-95, and Dornhecker, 828 F.2d at 309, concern co-worker, not supervisor,
harassment; and Indest, 164 F.3d at 266 (Jones, J.), is not precedent because neither the Court’s
opinion nor the concurrence received a quorum of the three-judge panel hearing the appeal. See
Indest v. Freeman Decorating, Inc., 168 F.3d 795, 796 n.12 (Feb. 26, 1999) (Wiener, J., specially
concurring) (“Because Judge Ferguson concurs only in the judgment of this case without
concurring in Judge Jones’s opinion or mine, neither enjoys a quorum and thus neither writing
constitutes precedent in this Circuit.”).
215

Docket no. 19, app. at APX0095 (Gonzales aff. at 1, ¶3).

216

Id., app. at APX0004 (pl.’s depo. at 120).

217

Docket no. 20, app. at pl.’s depo. at 120 as amended by errata sheet.

218

Docket no. 19, app. at APX0004 (pl.’s depo. at 120).

219

Docket no. 20, app. at pl.’s depo. at 120 as amended by errata sheet.
48

Plaintiff complained of the sexual advances and sexual harassment of her supervisor Michael
Johnson,” but those statements are not supported by any summary judgment evidence.220 There
is no summary judgment evidence that Johnson: had hiring, firing, promoting, demoting, or
transferring authority; recommended termination of plaintiff’s employment; otherwise had
authority to affect the terms and conditions of plaintiff’s employment; controlled plaintiff’s
hours, work assignments, or other day-to-day work activities; or conducted performance
evaluations or reviews of plaintiff.221 Furthermore, plaintiff presents no argument or legal

220

Docket no. 20 at 2.

221

Just recently, the Supreme Court held “that an employee is a ‘supervisor’ for purposes
of vicarious liability under Title VII if he or she is empowered to take tangible employment
actions against the victim,” that is, “to effect a ‘significant change in employment status, such as
hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.’” Vance v. Ball State Univ., No. 11-556, 570
U.S. __, __ S. Ct. __, slip op. at 2, 9 (Jun. 24, 2013). Prior to Vance, the Fifth Circuit had
recognized competing tests used by other Courts of Appeal to determine whether an individual
was a supervisor for purposes of Title VII, but did not indicate which test would be used in this
circuit.
Different standards apply to sexual harassment by a supervisor than by a
co-worker. See Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S. Ct.
2275, 141 L. Ed. 2d 662 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 118 S.
Ct. 2257, 141 L. Ed. 2d 633 (1998); Wyatt v. Hunt Plywood Co., Inc., 297 F.3d
405, 409-11 (5th Cir. 2002) (applying Faragher/Ellerth test). Courts have also
adopted different tests for determining whether an employee is a supervisor or a
co-worker. Compare Parkins v. Civ. Constr. of Ill., 163 F.3d 1027, 1034 (7th Cir.
1998) (individual considered supervisor if he has “the authority to affect the terms
and conditions of the victim’s employment”) with Mack v. Otis Elevator Co., 326
F.3d 116, 126-27 (2d Cir. 2003) (rejecting Parkins’ test and holding that
individual may be considered a supervisor if he has authority to direct employee’s
day-to-day work activities). Under either approach, Kirkum cannot be considered
a supervisor under Title VII, as there is no evidence that he had control over either
Plaintiffs-Appellants’ daily work activities or the tangible conditions of their
employment.
McCullough, 212 Fed. App’x at 283 n.5. The Supreme Court in Vance endorsed the Seventh
Circuit’s approach. No. 11-556, slip op. at 8-9.
49

authority to show plaintiff’s subjective understanding that Johnson could recommend her
termination to defendant qualifies Johnson as plaintiff’s supervisor. Indeed, plaintiff’s summary
judgment evidence and argument does not distinguish between a tenant or customer of defendant
who may be able to recommend the termination of plaintiff’s employment, and the “authority” of
Johnson to recommend termination. In sum, plaintiff has failed to show there is a genuine issue
of material fact that Johnson was plaintiff’s supervisor. Accordingly, the Court analyzes
defendant’s vicarious liability for Johnson’s conduct for a hostile environment sexual harassment
claim under the co-worker framework.
The fifth element of a prima facie claim for sexual harassment based on a hostile work
environment perpetrated by a co-worker is that the employer knew or should have known of the
conduct and failed to take prompt, remedial action.222 Defendant contends plaintiff cannot show
defendant failed to take prompt remedial action upon learning of Johnson’s alleged
harassment.223 To avoid summary judgment, plaintiff must produce some evidence
demonstrating a genuine issue of material fact on this element.
“‘Prompt remedial action’ must be ‘reasonably calculated’ to end the harassment.”224
Whether certain action is sufficient to permit an employer to avoid liability requires a contextual
analysis:
What is appropriate remedial action will necessarily depend on the particular facts
of the case—the severity and persistence of the harassment, and the effectiveness

222

Septimus, 399 F.3d at 611; Ramsey, 286 F.3d at 268.

223

Docket no. 19 at 13-15.

224

Skidmore v. Precision Printing & Packaging, Inc., 188 F.3d 606, 615 (5th Cir. 1999)
(quoting Jones v. Flagship Int’l, 793 F.2d 714, 719-20 (5th Cir. 1986)).
50

of any initial remedial steps. . . . Not every response by an employer will be
sufficient to discharge its legal duty. Rather, the employer may be liable despite
having taken remedial steps if the plaintiff can establish that the employer’s
response was not “reasonably calculated” to halt the harassment.225
Plaintiff does not dispute defendant’s summary judgment evidence that, through Brooks,
plaintiff’s regional supervisor, defendant began its investigation of plaintiff’s complaints the day
after hearing of the problem; defendant issued a written “corrective action notice” to reprimand
Johnson within eleven days of the date the investigation began; plaintiff was transferred to a
more convenient location—the community in which she lived—to separate her from Johnson;
and plaintiff’s salary, position, and commission were unchanged by the transfer.226 Rather,
plaintiff argues defendant did not “seriously investigate Plaintiff’s complaints” because the
regional manager did not listen to all of plaintiff’s audio recordings, stated that he “always say[s]
nice things to [his] co-workers” when speaking with plaintiff about the complaints, “failed to
strongly reprimand the perpetrating supervisors during the plaintiff’s employment,” and moved
plaintiff to a new work location instead of moving Johnson.227
Plaintiff has not raised a genuine issue of material fact that defendant’s actions were not
reasonably calculated to end the harassment. Importantly, the Fifth Circuit considers whether the
harassment actually stopped in determining whether a given response constituted prompt

225

Id. (quoting Waltman, 875 F.2d at 479 (citations omitted)).

226

Docket no. 19 at 14-15, and app. at APX0092 (Brooks aff. at 1, ¶¶ 3-4), and
APX0003-4 (pl.’s depo. at 114-16, 118, 120-121).
227

Docket no. 20 at 17-18.
51

remedial action.228 Plaintiff testified at her deposition that after she was transferred from
Springfield Meadows to Creston Ridge she did not have to work with or see Johnson anymore,
and she had no further problems with him.229 In addition, the Fifth Circuit has approved
changing the plaintiff’s work assignments, as opposed to the alleged harasser’s, as appropriate
remedial action,230 and plaintiff has not provided any legal authority to support her contrary
position.
Furthermore, plaintiff does not provide any legal authority in support of her apparent
argument that Brooks’ method of investigating Johnson’s complained of conduct (that is, what
Brooks reviewed and his demeanor when he received the complaint) affects the actual remedial
action taken (that is, the written reprimand for Johnson and transferring plaintiff to a desirable
work location). Plaintiff also does not explain what it means for defendant to have “failed to
strongly reprimand” Johnson, given defendant’s summary judgment evidence that Johnson
received a written reprimand and Johnson’s harassing conduct actually stopped following the
reprimand and plaintiff’s transfer.231
Plaintiff has failed to raise a genuine issue of material fact that defendant failed to take

228

Skidmore, 188 F.3d at 616 (citing Indest, 164 F.3d at 263; Waymire v. Harris Cnty.,
86 F.3d 424, 429 (5th Cir.1996); Dornhecker, 828 F.2d at 309-10).
229

Docket no. 19, app. at APX0005 (pl.’s depo. at 123-24).

230

Skidmore, 188 F.3d at 611, 616 (holding employer’s response of moving plaintiff
from physical location and changing plaintiff’s shift constituted prompt remedial action).
231

See id. at 616 (finding employer’s response constituted “prompt remedial action” as a
matter of law where supervisor instructed harasser to leave plaintiff alone and moved plaintiff to
new shift and harassment did in fact end, “despite the fact that [supervisor] did not conduct any
investigation of allegations until after [EEOC complaint filed], did not reprimand [harasser], and
made no follow-up inquiry with [plaintiff] as to whether the harassment had ceased.”).
52

prompt remedial action in response to hearing complaints of Johnson’s conduct. Accordingly,
plaintiff cannot meet her prima facie burden for a claim of hostile environment sexual
harassment against a co-worker. Accordingly, defendant’s motion for summary judgment is
granted, and plaintiff’s Title VII claim of hostile environment sexual harassment due to
Johnson’s conduct is dismissed.
2.

Lopez

In contrast to Johnson, the parties do not dispute that Lopez was plaintiff’s supervisor at
the time of the alleged harassment. Defendant submits summary judgment evidence that “Lopez
became Plaintiff’s supervisor at Creston Ridge,”232 and plaintiff does not contest the issue.
Defendant argues it is not vicariously liable for Lopez’s conduct because it has established the
Ellerth/Faragher defense.233
The Fifth Circuit has explained the methodology for analyzing a supervisor harassment
claim:
First we determine whether the complaining employee suffered a “tangible
employment action.” If he has, the claim is classified as a “quid pro quo” case; if
he has not, the claim is classified as a “hostile environment” case. In a quid pro
quo suit, proof that a tangible employment action resulted from a supervisor’s
sexual harassment renders the employer vicariously liable, and no affirmative
defense can be asserted. In a hostile environment case, however, the next inquiry
is whether the supervisor’s actions constituted severe or pervasive sexual
harassment: If the conduct was not severe or pervasive, the employer cannot be
held liable vicariously for the supervisor’s actions; if the conduct was severe and
pervasive, the employer is vicariously liable unless the employer can establish
both prongs of the conjunctive Ellerth/Faragher affirmative defense—the only
affirmative defense to vicarious liability now available in a supervisor sexual
harassment hostile work environment case. To establish this defense, the

232

Docket no. 19 at 5, and app. at APX0095 (Gonzales aff. at 1, ¶5).

233

Id. at 16-17.
53

employer must show that (1) the employer exercised reasonable care to prevent
and correct promptly any sexual harassment, and (2) the complaining employee
unreasonably failed to take advantage of any preventative or corrective
opportunities provided by the employer.234
Plaintiff’s original complaint recites a claim for “constructive discharge.”235 “In certain
circumstances, a constructive discharge can be considered a tangible employment action that
precludes an employer from asserting the Ellerth/Faragher defense to vicarious liability.”236 In its
motion, defendant acknowledges plaintiff’s pleading of constructive discharge, asserts “it is
undisputed that Defendant terminated [plaintiff’s] employment on August 25, 2011,” and argues
“[c]learly, [it] isn’t Plaintiff’s position” that the “working conditions were so intolerable that a
reasonable employee would have felt compelled to resign.”237 The Court construes defendant’s
argument as a no evidence motion for summary judgment on plaintiff’s constructive discharge
claim.
“Constructive discharge occurs when an employee has quit her job under circumstances
that are treated as an involuntary termination of employment.”238
The general rule is that if the employer deliberately makes an employee’s working
conditions so intolerable that the employee is forced into an involuntary
resignation, then the employer has encompassed a constructive discharge and is as
liable for any illegal conduct involved therein as if it had formally discharged the
aggrieved employee. Whether an employee would feel forced to resign is caseand fact-specific, but this Court considers the following factors relevant, singly or
234

Wyatt, 297 F.3d at 409 (citing Casiano, 213 F.3d at 283-84 and attached appendix).

235

Docket no. 1 at 3.

236

Aryain, 534 F.3d at 480 (citations omitted).

237

Docket no. 19 at 1 n.1 (citing Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th
Cir. 2001), cert. denied, 534 U.S. 817, 122 S. Ct. 45 (2001)).
238

Haley v. Alliance Compressor LLC, 391 F.3d 644, 649 (5th Cir. 2004).
54

in combination: (1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work; (5) reassignment
to work under a younger or less experienced/qualified supervisor; (6) badgering,
harassment, or humiliation by the employer calculated to encourage the
employee’s resignation; or (7) offers of early retirement or continued employment
on terms less favorable than the employee’s former status.239
“A plaintiff alleging that sexual harassment alone compelled her to resign must present
‘something more’ than what is required to establish a harassment or hostile work environment
claim.”240 Plaintiff does not respond at all to defendant’s arguments concerning constructive
discharge. Nor does plaintiff submit any summary judgment evidence to demonstrate a genuine
issue of material fact on plaintiff’s alleged constructive discharge. Accordingly, defendant’s no
evidence motion for summary judgment on plaintiff’s constructive discharge claim is granted,
and plaintiff’s claim for constructive discharge is dismissed.
Finding no genuine issue of material fact with respect to a tangible employment action,
the Court next considers defendant’s assertion of the Ellerth/Faragher defense to vicarious
liability for Lopez’s conduct. Defendant argues, notwithstanding whether the conduct
constituted severe and pervasive sexual harassment, it is not vicariously liable for Lopez’s
conduct because it exercised reasonable care to prevent and correct sexual harassment, and
“plaintiff completely failed to avail herself of [defendant’s] procedures for reporting and

239

Id. at 649-50 (quoting Jurgens v. EEOC, 903 F.2d 386, 390 (5th Cir. 1990); Brown,
237 F.3d at 566).
240

Aryain, 534 F.3d at 480 (quoting Suders, 542 U.S. at 147, 124 S. Ct. at 2354, citing
Harvill, 433 F.3d at 440). See Nassar v. Univ. of Tex. Sw. Med. Ctr., 674 F.3d 448, 453 (5th
Cir. 2012) (“When considering the aggravating factors, it cannot be said that there was sufficient
proof to show that Nassar’s working conditions were so intolerable that a reasonable employee
would feel compelled to resign” (punctuation and citations omitted)), vacated and remanded on
other grounds, No. 12-484, 570 U.S. __, __ S. Ct. __ (Jun. 24, 2013).
55

correcting harassment.”241 To meet its burden, defendant presents evidence of: its antiharassment policy contained in its employee handbook, plaintiff’s signed acknowledgment that
she read and understood the handbook, sexual harassment training that defendant conducts on a
regular basis, and plaintiff’s completion of such training twice during her employment.242 In
addition, defendant presents evidence showing that: plaintiff did not report Lopez’s alleged
harassment in the method described in the employee handbook,243 and plaintiff did not complain
of any harassment after she was transferred from Springfield Meadows to Creston Ridge, where
Lopez became plaintiff’s supervisor.244 With this evidence, defendant established the elements of
the Ellerth/Faragher affirmative defense.
In response, plaintiff argues defendant is foreclosed from relying on the Ellerth/Faragher
affirmative defense because it was not pleaded in defendant’s answer.245 As discussed,
defendant’s original answer adequately pleaded the defense, and defendant has been permitted to
amend its answer.246
Plaintiff also argues in her response that defendant was put on notice of Johnson’s
conduct because plaintiff discussed the alleged harassing behavior with “numerous property

241

Docket no. 19 at 16-17.

242

Docket no. 19, app. at APX0013-14 (pl.’s depo. at 194, 198-200), APX0096
(Gonzales aff. at 2, ¶11).
243

Id., app. at APX0006, APX0013 (pl.’s depo. at 127-128, 194, 196).

244

Id., app. at APX0008, APX 0011-12 (pl.’s depo. at 148-49, 164-66).

245

Docket no. 20 at 23.

246

See supra Part VI.A.
56

managers,”247 and their knowledge was imputed to defendant because they were “at a sufficiently
high level in the company’s management hierarchy to qualify as a proxy for the company” or
were “officials charged with duty to act on the knowledge and stop the harassment.”248
Importantly, the summary judgment evidence cited by plaintiff in support of these arguments is
related to Johnson’s conduct, not Lopez’s conduct.249 The only summary judgment evidence
reflecting any complaint plaintiff made about Lopez was “that because she lived in the
community he expected her to be on call 24/7,”250 which clearly does not support a hostile
environment sexual harassment claim.
Plaintiff also appears to argue defendant is vicariously liable for Lopez’s conduct because
Lopez attended plaintiff’s deposition as defendant’s corporate representative.251 The transcript of
plaintiff’s deposition confirms Lopez attended as defendant’s corporate representative.252 But,

247

Docket no. 20 at 14-15.

248

Id. at 15-18.

249

Id. at 14-15, and app. at attachments to def.’s initial disclosures (statement of Sandra
Arispe that plaintiff “had issues with Mr. Michael Johnson;” statement of Crystal Stuart that
plaintiff “was not comfortable working with Michael Johnson” and “he would say [things that]
made her uncomfortable;” statement of Merilee Wood that plaintiff “alluded to the fact that there
was something inappropriate going on between her and Michael”). Plaintiff’s other summary
judgment evidence concerning reporting harassing conduct was also related to Johnson. Docket
no. 20 at 8, 10-11, and app. at pl.’s depo. at 359-60 (plaintiff spoke to Monroe Hogart about
Johnson), at 371-73 (plaintiff spoke to Sandra Arispe and Yvonne Luna about Johnson), at 203,
205, and 207 (plaintiff spoke to Brooks about Johnson).
250

Docket no. 20, app. at attachments to def.’s initial disclosures (statement of Merilee

Wood).
251

Docket no. 20 at 15.

252

Docket no. 19, app. at APX0012 (pl.’s depo. at 166-67 (plaintiff’s counsel identifies
Lopez as being in attendance and asks, “And what is his position? Is he the corporate
representative for [defendant]?” and defendant’s counsel responds, “He is for today’s
57

there are few limitations on who can attend a deposition as a party’s corporate representative,253
and plaintiff has cited no legal authority to show Lopez’s appearance at plaintiff’s deposition as
defendant’s corporate representative automatically imputes Lopez’s purportedly harassing actions
to defendant for purposes of vicarious liability.
Thus, plaintiff has failed to raise a genuine issue of material fact that defendant is not
entitled to the Ellerth/Faragher affirmative defense. Accordingly, defendants’ motion for
summary judgment is granted and plaintiff’s Title VII claim of hostile environment sexual
harassment due to Lopez’s conduct is dismissed.
iii.

quid pro quo sexual harassment claim

Title VII recognizes quid pro quo claims for sexual harassment, in which “the grant or
denial of employment advancement, such as a promotion or raise, depends upon whether an
employee acquiesces to unwelcome sexual advances, requests for sexual favors, or other verbal
or physical conduct of a sexual nature.”254 “In a quid pro quo suit, proof that a tangible
employment action resulted from a supervisor’s sexual harassment renders the employer

deposition.”)).
253

See In re Shell Oil Refinery, No. 88-1935, 88-2719, 136 F.R.D. 615, 616-18 (E.D.La.
May 16, 1991) (together, Federal Rule of Evidence 615 and Federal Rule of Civil Procedure
26(c), permit the exclusion of a party from a deposition upon showing of good cause).
254

Donaldson v. CDB, Inc., 335 Fed. A’ppx 494, 500 (5th Cir. Jul. 9, 2009) (discussing
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-66, 106 S. Ct. 2399, 2404-05 (1986)). See
FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS (2006), instruction nos. 11.4.1 (“Title VII, sex
discrimination, supervisor sexual harassment without tangible employment action (hostile work
environment)”), 11.4.2 (“Title VII, sex discrimination, supervisor sexual harassment resulting in
tangible employment action (quid pro quo)”), 11.4.3 (“Title VII, sex discrimination, coworker/direct and non-direct supervisory/third-party sexual harassment (hostile work
environment)”).
58

vicariously liable, and no affirmative defense can be asserted.”255
The only factual allegations in plaintiff’s original complaint which would indicate a claim
for quid pro quo sexual harassment are those stated under the heading “constructive
discharge.”256 To the extent plaintiff’s claim for constructive discharge is related to any claim for
quid pro quo sexual harassment plaintiff may have described in her original complaint, plaintiff’s
failure to demonstrate a genuine issue of material fact as to constructive discharge—discussed
above—precludes her from pursuing a Title VII quid pro quo harassment claim.
In addition, defendant argues it is not vicariously liable for Johnson’s conduct because
Johnson did not take any tangible employment action against plaintiff. Plaintiff has neither
responded to this argument nor presented summary judgment evidence to demonstrate there
exists a genuine issue of material fact on any tangible employment action taken against plaintiff.
Accordingly, plaintiff’s claim for quid pro quo sexual harassment, to the extent one has been
stated, is dismissed.
2.

retaliation
a.

summary of arguments

Defendant also makes a no evidence motion for summary judgment on plaintiff’s
retaliation claim.257 Defendant argues plaintiff cannot meet her prima facie burden for a
retaliation claim because plaintiff has no evidence of a causal connection between plaintiff’s
complaint of sexual harassment and “the much later termination of her employment,” and

255

Wyatt, 297 F.3d at 409 (italics added).

256

See docket no. 1 at 2-4.

257

Docket no. 1-2, 17-21.
59

plaintiff has no evidence that defendant’s stated reason for her discharge was a pretext for
retaliation.258
With respect to causation, defendant argues and presents summary judgment evidence
that “it was impossible for [plaintiff] to have engaged in any ‘protected conduct’ after her
transfer to Creston Ridge” because plaintiff complained of harassment by Johnson before she
was transferred, and she never reported any harassment by Lopez after she was transferred.259
Rather, defendant argues plaintiff’s employment was terminated because plaintiff “went out on
leave . . ., received short-term disability, and then began long-term disability;” there was no
expectation of when plaintiff would return from long-term disability; her primary care physician
had “returned her to work” multiple times and she did not return to work; and defendant had
“held her job open for four months.”260 Defendant contends “[t]hese circumstances may not
reasonably be read as tying her eventual termination to conduct which she reported, and to which
Defendant immediately responded, more than a year before.”261 Defendant further argues that
“[e]ven if her discharge were closer to the date of her complaint about Johnson, the mere timing
of Plaintiff’s discharge is not sufficient circumstantial evidence of causation to raise a fact
issue.”262
With respect to pretext, defendant argues it has a legitimate, non-discriminatory reason

258

Id. at 18-21.

259

Id. at 19.

260

Id.

261

Id. (emphasis in original).

262

Id. at 19-20.
60

for terminating plaintiff’s employment—“her inability to return to work”—and plaintiff’s claim
“must fail at the pretext stage” because “[t]iming alone cannot establish pretext.”263 Plaintiff
does not respond to defendant’s arguments concerning her retaliation claim.
b.

analysis

When, as here, circumstantial evidence forms the basis of the retaliation claim, the
burden-shifting framework is applicable.264 Under the McDonnell Douglas framework, a
plaintiff must first carry the initial burden of establishing a prima facie case of retaliation.265 If
plaintiff meets this burden, a rebuttable presumption arises that the employer unlawfully
retaliated against plaintiff.266 The burden then shifts to the defendant to present evidence that it
treated plaintiff in a certain way for a legitimate, nonretaliatory reason.267 Once the defendant
satisfies this second part of the analysis, the presumption raised by the prima facie case is
rebutted and dropped from the case.268 The third step of the analysis shifts the burden to plaintiff
to prove that the reason articulated by the employer was a mere pretext for retaliation; that is,
plaintiff has the burden of showing that the protected activity “was a ‘but for’ cause of the

263

Id. at 20 (citing Pennington v. Tex. Dep’t of Family & Protective Serv.’s, 469 Fed.
App’x 332, 338 (5th Cir. Mar. 29, 2012); Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657
(5th Cir. 2012); Strong v. Univ. Health Care Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007);
Roberson v. Alitel Info. Serv.’s, 373 F.3d 647, 656 (5th Cir. 2004)).
264

Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003).

265

Patterson, 491 U.S. at 186-87, 109 S. Ct. at 2378; Burdine, 450 U.S. at 252-53, 101 S.
Ct. at 1093-94.
266

Patterson, 491 U.S. at 187, 109 S. Ct. at 2378; Burdine, 450 U.S. at 253, 101 S. Ct. at

267

St. Mary’s Honor Ctr., 509 U.S. at 507, 113 S. Ct. at 2747.

268

Id. at 507, 516-17, 113 S. Ct. at 2747, 2752-53.

1093.

61

adverse employment decision.”269
Plaintiff has not responded to defendant’s motion on her retaliation claim, and has not
come forward with some evidence to raise a genuine issue of material fact on any element of her
prima facie case for a Title VII retaliation claim. Accordingly, defendant’s no evidence motion
for summary judgment is granted, and plaintiff’s Title VII retaliation claim is dismissed.
3.

intentional infliction of emotional distress
a.

summary of arguments

Defendant also makes a no evidence motion for summary judgment on plaintiff’s Texas
state law claim for intentional infliction for emotional distress (“IIED”).270 Citing Texas law,
defendant argues plaintiff’s claim is preempted by federal law because “‘the tort of IIED was
judicially created for the limited purpose of allowing recovery in those rare instances in which a
defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim
has no other recognized theory of redress’” and “Plaintiff alleges no extreme and outrageous
conduct unrelated to her sexual harassment claims” that are covered by Title VII.271 Defendant
also argues plaintiff has no evidence of “extreme and outrageous” conduct by defendant which
would support an IIED claim, asserting that “Plaintiff’s allegations of offensive utterances and
rude behavior fall far short of the extreme standard needed to establish an infliction of emotional

269

Gollas v. Univ. of Tex. Health Sci. Ctr. at Houston, 425 Fed. App’x 318, 322, 324
(5th Cir. May 12, 2011) (citing Strong, 482 F.3d at 806); Long v. Eastfield Coll., 88 F.3d 300,
304-05, 305 n.4 (5th Cir. 1996).
270

Docket no. 19 at 21-23.

271

Id. at 21-22.
62

distress claim.”272 Plaintiff does not respond to defendant’s motion for summary judgment on
her intentional infliction of emotional distress claim.
b.

analysis

In addressing a claim for intentional infliction of emotion distress, the Fifth Circuit has
recognized that “if sexual harassment underlies an employee’s common law tort claims against
[her] employer, then those claims are preempted under Texas law by the Texas Commission on
Human Rights Act, regardless of whether the plaintiff brings an action under the Act.”273
Plaintiff has not respond to defendant’s motion for summary judgment on her state law tort
claim, and has not come forward with any evidence to raise a genuine issue of material fact on
her claim. Accordingly, defendant’s no evidence motion for summary judgment is granted, and
plaintiff’s state law claim for intentional infliction of emotional distress is dismissed.
D.

Defendant’s Request for Oral Argument

Without supporting argument, defendant requests oral argument on its motion for
summary judgment.274 The Court has reviewed the entire record, including the evidence
provided in support of the motion. Defendant has not demonstrated why oral argument is needed
to develop the record for a proper disposition of the case. Thus, defendant’s request for oral

272

Id. at 22-23.

273

Wiggins v. St. Luke’s Episcopal Health Sys., No. 12-20469, 2013 WL 1165213, at *3
(5th Cir. Mar. 21, 2013) (per curiam) (citing Waffle House, Inc. v. Williams, 313 S.W.3d 796,
803 (Tex. 2010)). See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005) (Under
Texas law, intentional infliction of emotional distress is a “‘gap-filler’ tort never intended to
supplant or duplicate existing statutory or common-law remedies. Even if other remedies do not
explicitly preempt the tort, their availability leaves no gap to fill.”)
274

Docket no. 24.
63

argument is denied.
VII. CONCLUSION
Based on the foregoing discussion, IT IS ORDERED that:
(1)

defendant’s amended motion for leave to file a first amended answer275 is
GRANTED, and the District Clerk is directed to file defendant’s first amended
answer tendered as exhibit B to defendant’s motion;

(2)

defendant’s motion to strike portions of plaintiff’s summary judgment evidence or
to re-open oral deposition of plaintiff276 is DENIED;

(3)

Defendant’s motion for summary judgment277 is GRANTED and plaintiff’s
causes of action for sexual harassment, retaliation, and constructive discharge in
violation of Title VII, and state law intentional infliction of emotional distress are
DISMISSED with prejudice;

(4)

defendant’s request for oral argument on its motion for summary judgment278 is
DENIED; and

(5)

The District Clerk is directed to enter judgment for defendant and against
plaintiff, each side to bear its own costs.

ORDERED, SIGNED and ENTERED this 25th day of June, 2013.

______________________________________
PAMELA A. MATHY
UNITED STATES MAGISTRATE JUDGE

275

Docket no. 22.

276

Docket no. 27.

277

Docket no. 19.

278

Docket no. 24.
64