United States District Court,
N.D. Texas, Dallas Division.
Tammye BAGLEY, Plaintiff,
REGIS CORPORATION d/b/a Smartstyle, Defendant.
No. Civ.A. 3:03–CV–2908–.
Dec. 7, 2004.
Attorneys & Firms
Steven B. Thorpe, Carla Smith Hatcher, Thorpe Hatcher & Washington, Dallas, TX, for Plaintiff.
Edmund Burke Huber, Jr., F. Denise Russell, Holland & Knight, San Antonio, TX, for Defendant.
MEMORANDUM OPINION & ORDER
*1 Before the Court is Defendant’s Motion for Summary Judgment, filed on September 30, 2004. For the following reasons, the Court GRANTS Defendant’s Motion with respect to Plaintiff’s Title VII hostile work environment claim and Family and Medical Leave Act claim. The Court DENIES Defendant’s Motion for Summary Judgment with respect to Plaintiff’s Title VII retaliation claim and negligent retention and supervision claims.
Plaintiff was employed by Defendant, as a hairdresser, between June 2001 and December 2002. Plaintiff claims that while she was employed at Defendant’s salon in North Richland Hills, Texas, her manager, Dale Atchison (“Atchison”), made frequent offensive sexual remarks regarding his personal life, salon customers, and subordinate employees. Plaintiff alleges that on two occasions, Atchison directed specific sexual comments towards her, telling Plaintiff she needed to cover her breasts because they were too big, and suggesting Plaintiff would make a good topless dancer. On other occasions, Atchison, who is gay, allegedly made offensive remarks regarding male genitalia and homosexual sex.
Upset by these remarks, Plaintiff claims she made an anonymous report to Atchison’s supervisor in September of 2002. She asked the supervisor to visit the salon and personally speak to the stylists. When the supervisor arrived, Plaintiff allegedly stated that she was tired of Atchison discussing his personal life in graphic detail. The supervisor returned on a second occasion, on or about December 21, 2002, at which time Plaintiff restated her earlier complaint, and also complained of Atchison’s suggestion that she would make a good topless dancer.
In mid-December 2002, Plaintiff asked Atchison to not schedule her to work on December 22 and 23, so that she could care for her eighteen-year-old daughter who was undergoing knee surgery. Atchison gave Plaintiff this time off. However, on December 21, 2002, Atchison notified Plaintiff of a “mandatory meeting” scheduled for the following day. Plaintiff informed Atchison she would not be attending the mandatory meeting due to her daughter’s surgery. According to Plaintiff, employees were not penalized for missing mandatory meetings, and the meetings were often rescheduled to accommodate absent employees.
On December 22, Plaintiff discovered she had missed a telephone call from the salon. Plaintiff returned the call, at which time Atchison allegedly informed Plaintiff that he knew she was the source of the complaints against him. Atchison terminated Plaintiff over the telephone, purportedly for missing the mandatory meeting.
Plaintiff alleges she was terminated in retaliation for reporting Atchison’s alleged sexual harassment, and for taking time off from work to care for her injured daughter. Plaintiff asserts claims against Defendant under Title VII of the Civil Rights Act of 1964 (“Title VII”) for hostile work environment and retaliation. She also asserts claims under the Family and Medical Leave Act (“FMLA”), and state law claims for negligent retention and supervision.
*2 Summary judgment is appropriate when the pleadings and evidence before the Court indicate that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In making its determination, the Court views all evidence in the light most favorable to the non-moving party, and draws all reasonable inferences in that party’s favor. Flock v. Scripto–Tokai Corp., 319 F.3d 231, 236 (5th Cir.2003). The Court will grant a defendant’s motion for summary judgment if there is no evidence to support an essential element of the plaintiff’s claim, but the burden is on the defendant to prove that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Only if the defendant meets this burden is the plaintiff required to respond with specific facts demonstrating a genuine issue for trial. Little v. Liquid Air Corp. ., 37 F.3d 1069, 1075 (5th Cir.1994).
I. Hostile Work Environment
Plaintiff alleges that Atchison’s conduct created a hostile work environment for her, in violation of Title VII. A plaintiff who claims that a hostile work environment was created by her supervisor must show that: (1) she belongs to a protected group, (2) she has been subject to unwelcome sexual harassment, (3) the harassment complained of was based upon sex, and (4) the harassment complained of affected a term, condition or privilege of her employment. Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir.1999).
In order for a plaintiff to satisfy the fourth element of a hostile work environment claim, that the sexual harassment affected a term, condition or privilege of her employment, the plaintiff must allege conduct that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” See Shepherd v. Comptroller of Public Accounts of State of Texas, 168 F.3d 871, 874 (5th Cir.1999). The Court looks to the totality of the circumstances to determine whether the conduct alleged by the plaintiff is actionable, focusing on the objective severity and frequency of the alleged conduct, whether the conduct was physically threatening or humiliating rather than a mere offensive utterance, and whether it unreasonably interfered with the plaintiff’s work performance. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).
Defendant argues that summary judgment is proper with respect to Plaintiff’s hostile work environment claim because Plaintiff has failed to produce any evidence that the alleged sexual harassment was sufficiently severe or pervasive to give rise to liability under Title VII. The comments attributed to Atchison include: two references to Plaintiff’s breasts; several discussions of Atchison’s homosexuality; at least two references to male genitalia; a comment that another female stylist had a “big butt”; and two incidents in which he referred to women as “fish”.1 Defendant argues that only two of Atchison’s many alleged comments were directed at Plaintiff, and that those two comments were not severe. According to Defendant, there is no indication Atchison, a gay man, intended the comments in a sexual manner. Defendant argues that Plaintiff has failed to allege Atchison’s comments were threatening or humiliating, and she does not claim they affected her work performance.
*3 Viewing Plaintiff’s evidence in the light most favorable toward her, the Court concludes Plaintiff has failed to produce evidence she was subjected to severe or pervasive sexual harassment. Title VII does not protect employees from sex-neutral conduct. See Farpella–Crosby v. Horizon Health Care, 97 F.3d 803, 806 n. 2 (5th Cir.1996). A defendant is only liable for harassment that is directed at a plaintiff because of the plaintiff’s gender. See id. Therefore, Atchison’s alleged discussions of homosexuality and male genitalia, which he directed toward men and women, and which were not motivated by Plaintiff’s gender, cannot have contributed to the alleged hostile work environment. See id; Green v. Administrators of Tulane Educational Fund, 284 F.3d 642, 659 (5th Cir2002).
The remaining comments attributed to Atchison were not severe or pervasive as a matter of law. Atchison allegedly made two references to Plaintiff’s breasts, and Plaintiff overheard three other comments that she felt were derogatory to women.2 In Shepherd, the Court considered a plaintiff’s allegations that her male supervisor had made sexually offensive comments about her breasts, simulated looking up her dress, attempted to look down her shirt, rubbed her arms and shoulders, and suggested she sit on his lap. See Shepherd, 168 F.3d at 872. The Court determined that, even if this conduct occurred with some degree of regularity during the course of one year, it was insufficient to amount to actionable sexual harassment. See id; See also DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591 (5th Cir.1995) (ten newsletter columns, which contained comments derogatory towards women, did not, as a matter of law, constitute severe or pervasive sexual harassment); Faragher v. City of Boca Raton, 524 U.S. 775, 778, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (gender-related jokes and teasing do not rise to the level of sexual harassment). As was the case in Shepherd, the comments allegedly made by Atchison were analogous to an “utterance of an epithet” that engenders offensive feelings, but they do not constitute sexual harassment. See id.; Shepherd, 168 F.3d at 874.
The Fifth Circuit has indicated that Title VII is meant to create liability only for conduct that is so severe or pervasive that it alters the conditions of the plaintiff’s employment and destroys her equal opportunity to succeed in the workplace. Shepherd, 168 F.3d at 874; See also Waltman v. Int’l Paper Co., 875 F.2d 468 (5th Cir.1989) (evidence plaintiff was repeatedly propositioned and groped by her supervisor raised a fact issue as to whether supervisor’s conduct was severe or pervasive). However, Plaintiff does not allege that Atchison’s conduct affected her performance at work. Plaintiff does not claim Atchison’s comments frightened or intimidated her. She does not claim Atchison ever propositioned her, nor does she claim he touched her inappropriately. Plaintiff alleges, and fairly so, that Atchison’s comments made her uncomfortable. However, discomfort, even if justifiable, is not a basis for a sexual harassment suit. Defendant’s Motion for Summary Judgment is granted because Atchison’s alleged comments were not sufficiently severe or pervasive to have affected a term, condition or privilege of Plaintiff’s employment. See id.3
*4 Plaintiff alleges she was terminated in retaliation for reporting Atchison’s conduct to Atchison’s supervisor. The Court evaluates Title VII retaliation claims under the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Medina v. Ramsey Steel Co., Inc., 238 F.3d 674 (5th Cir.2001). First, a plaintiff must present a prima facie case. This entails producing evidence that the employee engaged in an activity protected by Title VII, that the employer took an adverse employment action against the employee following the protected activity, and that there is a causal link between the protected activity and the adverse employment action. Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir.1997), cert. denied, 522 U.S. 932, 118 S.Ct. 336, 139 L.Ed.2d 260 (1997). If a plaintiff demonstrates a prima facie case, the burden shifts to the defendant to provide a legitimate, non-retaliatory explanation for the adverse employment action. Finally, if the defendant presents such an explanation, the burden shifts back to the plaintiff to raise a fact issue as to whether the defendant’s explanation is a mere pretext for discrimination. See id.; Evans v. City of Houston, 246 F.3d 344, 351 (5th Cir.2001).
Here, Plaintiff has presented a prima facie case of retaliation. She submits evidence indicating that she reported Atchison’s alleged conduct on two occasions. The reports are protected activities under Title VII. See Fierros v. Texas Dept. of Health, 274 F.3d 187, 191 (5th Cir.2001). Plaintiff offers evidence that Atchison terminated her several days after her second complaint, purportedly for missing a mandatory meeting. The close temporal proximity between Plaintiff’s second complaint and her termination is, by itself, sufficient proof of causation to make out a prima facie case.4 See Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir.1993). As further proof of causation, Plaintiff offers her undisputed deposition testimony that Atchison admitted, immediately before terminating her, that he knew Plaintiff had reported the alleged incidents of sexual harassment. Plaintiff’s deposition testimony indicates that employees were ordinarily permitted to skip “mandatory meetings” without facing any adverse consequences, and that the meetings were rescheduled when one employee was unable to attend. These facts are circumstantial evidence indicating that Atchison’s decision to terminate Plaintiff was motivated by Plaintiff’s complaints, and as such, they are sufficient to make out Plaintiff’s prima facie case of retaliation. Fierros v. Texas Dept. of Health, 274 F.3d 187, 191 (5th Cir2001) (circumstantial evidence is sufficient to satisfy the low threshold of proof required in a plaintiff’s prima facie case of retaliation).
Defendant, in response, does not provide a legitimate, non-retaliatory explanation for Plaintiff’s termination. Defendant does not respond to Plaintiff’s allegations that employees routinely skipped “mandatory meetings”, or Plaintiff’s evidence that Atchison knew of Plaintiff’s complaint before he terminated her. Plaintiff merely reiterates its unsubstantiated assertion that Atchison was not told of Plaintiff’s complaints before he terminated her. For purposes of Defendant’s Motion for Summary Judgment, the Court must accept Plaintiff’s evidence as true. Since Defendant did not respond to Plaintiff’s prima facie case with a legitimate, non-retaliatory explanation for her termination, Defendant’s Motion for Summary Judgment must be denied with respect to Plaintiff’s retaliation claim.
III. Negligent Retention / Supervision
*5 Defendant argues that under Texas law, Plaintiff’s negligent retention and negligent supervision claims are preempted by the Texas Workers’ Compensation Act (“TWCA”). See Walls Reg’l Hosp. v. Bomar, 9 S.W.3d 805, 806 (Tex.1999) (TWCA precludes claims based upon employer’s negligent failure to prevent sexual harassment in the workplace); see also Mackey v. U.P. Enterprises, Inc., 935 S.W.2d 446, 459 (Tex.App.-Tyler 1996, no writ). This Court has reached the same conclusion. See Dudik v. Mesquite Rodeo, No. 03–0178, 2004 WL 524947 (N.D.Tex. Mar.12, 2004) (TWCA “provides the exclusive remedy for employees’ injuries sustained during the course of their employment, with the exception of intentional injuries”). Plaintiff does not dispute Defendant’s argument that negligence claims are preempted by the TWCA, but she claims there is no evidence Defendant subscribes to workers’ compensation insurance in Texas.
In an appendix to its Reply to the Motion to Dismiss, Defendant submits evidence that it subscribes to workers’ compensation insurance. However, the Court may not rely on evidence that is first submitted in a Reply, unless the opposing party is given an opportunity to respond to the evidence. Vais Arms, Inc. v. Vais, 383 F.3d 287 (5th Cir.2004). Plaintiff has not had an opportunity to address Defendant’s evidence that it subscribes to workers’ compensation insurance. Accordingly, the Court defers ruling on Defendant’s Motion with respect to Plaintiff’s negligent retention/supervision claims. Plaintiff shall have twenty days from the date of this Order to file a Sur–Reply, addressing the new evidence raised in Defendant’s Reply. If Plaintiff does not file a Sur–Reply within twenty days, the Court anticipates granting Defendant’s Motion with respect to Plaintiff’s state-law claims.
IV. Family and Medical Leave Act
Plaintiff’s final claim is that she was terminated for leaving work to care for her injured daughter, in violation of the Family and Medical Leave Act (“FMLA”). 29 U.S.C. § 2617 (2004). The FMLA guarantees, among other things, a parent’s right to take leave from work to care for a son or daughter who has a serious health condition. 29 U.S.C. § 2612 (2004). Leave is only authorized, however, if the employee’s son or daughter is (1) under 18 years of age, or (2) incapable of self-care because of a mental or physical disability. See 29 U.S.C. § 2611(12) (2004). The parties agree that at the time of Plaintiff’s leave, her daughter was eighteen-years-old and in need of knee surgery. Defendant claims Plaintiff’s leave is not covered by the FMLA because (1) Plaintiff’s adult daughter was not incapable of self-care, (2) Plaintiff’s daughter’s knee injury was not a physical disability, and (3) Plaintiff’s actions did not constitute “caring for” her daughter, as that term is defined by the FMLA.
Plaintiff was “caring for” her daughter, as that term is defined by the FMLA. Defendant notes that Plaintiff’s daughter did not reside with Plaintiff at any time relevant to Plaintiff’s cause of action, and that Plaintiff chose to be with her daughter during and after the surgery primarily to provide emotional support. These facts do not preclude Plaintiff from bringing a cause of action under the FMLA. The statute permits an employee to take leave when the employee shares responsibility for the injured person’s care with others, such as a former spouse. 29 CFR § 825.116. Further, the term “caring for” encompasses the provision of both physical and emotional support. Id; see also Scamihorn v. General Truck Drivers, 282 F.3d 1078 (9th Cir.2002).
*6 However, Plaintiff cannot survive summary judgment on her FMLA claim because she has provided no evidence her eighteen-year-old daughter was “incapable of self-care” at the time of the surgery. Under the federal regulations that govern application of the FMLA, an individual is incapable of self-care if the individual “requires active assistance or supervision” in three or more of the following types of activities: grooming and hygiene, bathing, dressing, eating, cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones, using a post office, and performing similar kinds of activities. 29 C.F.R. § 825.113(c)(2). Plaintiff explains in detail how her daughter was forced to use crutches and a wheelchair to get from point to point, but she does not allege that her daughter was unable to perform any of her ordinary daily activities without assistance. Instead, Plaintiff alleges her daughter was prevented from participating in some of her school activities, such as drill team. Those are not the kinds of impairments which the FMLA is intended to cover. See, e.g ., Sakellarion v. Judge & Dolph, Ltd., 893 F.Supp. 800 (N.D.Ill.1995) (summary judgment granted against employee’s FMLA claim because employee failed to produce evidence her daughter was unable to perform major life activities without assistance); Bryant v. Delbar Products, Inc., 18 F.Supp.2d 799 (M.D.Tenn.1998) (plaintiff produced sufficient evidence to survive summary judgment by proving her son was confined to his hospital bed).
Since Plaintiff has provided no evidence her adult daughter’s injury qualified Plaintiff for leave under the FMLA, Defendant’s Motion for Summary Judgment is granted with respect to Plaintiff’s FMLA claim.
For the reasons stated above, the Court DENIES Defendant’s Motion for Summary Judgment with respect to Plaintiff’s retaliation claim and state law claims. Plaintiff shall have twenty days to file a Sur–Reply addressing Defendant’s evidence that it subscribes to workers’ compensation insurance in Texas. With respect to Plaintiff’s hostile work environment claim and FMLA claim, Defendant’s Motion for Summary Judgment is GRANTED.
Plaintiff also alleges that Atchison twice asked if he could cut the hair of one of her male customers because he thought the customer was “cute”. As a matter of law, such conduct does not constitute sexual harassment of Plaintiff.
In determining whether Plaintiff was subjected to a hostile work environment, the court may consider comments directed at third-parties, but allegedly overheard by Plaintiff. See, e.g., Yerby v. University of Houston, 230 F.Supp.2d 753 (S.D.Tex., 2002). For purposes of Defendant’s Motion for Summary Judgment, the Court assumes Plaintiff overheard Atchison refer to a female stylist’s “big butt”, and call two other women “fish”.
Because the Court concludes that Plaintiff has not produced evidence sufficient to support a hostile work environment claim, it does not reach Defendant’s affirmative defense under Faragher, 524 U.S. at 775.
The Court notes that close timing between a report of sexual harassment and a plaintiff’s termination is sufficient evidence for a plaintiff to make a prima facie case, and that the plaintiff must put forth additional evidence of causation only after a defendant provides a legitimate, non-retaliatory explanation for the plaintiff’s termination. Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir.1993).