Southard v. Texas Bd. of Criminal Justice, 95-20821
| Citation | 114 F.3d 539 |
| Decision Date | 13 June 1997 |
| Docket Number | No. 95-20821,95-20821 |
| Parties | 74 Fair Empl.Prac.Cas. (BNA) 163, 71 Empl. Prac. Dec. P 44,805 Sherry SOUTHARD, et al., Plaintiffs, Sherry Southard; Tammy Leis; Teresa Pankey; Helen Minter; Patricia Anne Maimbourg; Tammy Wells and Linda Fleming, Plaintiffs-Appellees, v. The TEXAS BOARD OF CRIMINAL JUSTICE, et al., Defendants, James A. Collins, Director, Texas Department of Criminal Justice, Institutional Division, And Oscar Strain, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Stephen Paul Glover, Houston, TX, for Plaintiffs-Appellees.
Adrian L. Young, Phillip E. Marrus, Austin, TX, for James A. Collins, Director, Texas Department of Criminal Justice, Institutional Division, Defendant-Appellant.
George Raymond Jennings, Austin, TX, for Oscar Strain, Defendant-Appellant.
Appeals from the United States District Court for the Southern District of Texas.
Before KING and PARKER, Circuit Judges, and ROSENTHAL *, District Judge.
Eight female correctional officers sued the former executive director of the Texas Department of Criminal Justice-Institutional Division ("TDCJ-ID") and a captain, asserting that the captain had sexually harassed them and subjected them to a hostile work environment. Three of the plaintiffs asserted Title VII claims against the TDCJ as well as 42 U.S.C. §§ 1983 and 1985(3) claims against the individual director and captain. Two plaintiffs tried their Title VII claims against the TDCJ to a jury; 1 the plaintiffs did not prevail. Asserting qualified immunity, the executive director moved for dismissal of all the section 1983 and 1985(3) claims; the captain filed similar motions as to two of the plaintiffs. The trial judge denied those motions.
The executive director and the captain appeal from the denial of their qualified immunity dispositive motions. This court reverses and remands for further proceedings consistent with this opinion.
Oscar Strain began working for the TDCJ-ID as a correctional officer in the late 1970s and became a captain in July 1984. Strain worked in different TDCJ-ID units during the relevant period, including the Coffield Unit from July 1984 to August 1992, and the Michael Unit from August 1992 to February 1993. On March 1, 1993, Strain was transferred to the Robertson Unit. Beginning in 1991, female employees began to complain that Strain sexually harassed them.
Under TDCJ's employee grievance procedure, complaints alleging discriminatory conduct by TDCJ employees and officers are referred for investigation to the TDCJ internal Equal Employment Opportunity ("EEO") office. The TDCJ EEO office is staffed and functions independently of other TDCJ divisions. Complaints filed with the EEO office proceed according to the three-step process applicable to all TDCJ employee grievances. The first step is the submission of the grievance to the unit warden for review, attempted resolution, and response. The second step is an appeal to the regional director's office. The third and final step is an appeal to the institutional division director's office.
In February 1991, Belinda Raines, a clerk at the Coffield Unit, filed a written grievance against Strain. In her grievance, Raines accused Strain of making sexually suggestive comments; addressing her with curses and profanities; and retaliating against her with a written reprimand when she complained. The EEO office investigated Raines's allegations of sexual harassment and issued a written report concluding that there was insufficient evidence to sustain them. The EEO office also found no evidence that the reprimand was motivated by retaliation. 2
On March 15, 1991, Artis B. Mosely, Jr., the TDCJ-ID Assistant Director for Personnel and Training, forwarded a copy of Raines's EEO file to the office of James A. Collins, the executive director of TDCJ-ID. It is unclear whether Collins himself saw this complaint or the EEO report. 3
On May 19, 1992, LaDonna Hull, a correctional officer in the Coffield Unit, filed a complaint against Strain with the unit warden, who referred it to TDCJ's EEO office. The EEO office investigated, interviewing five employees in addition to Hull and Strain. Hull told the EEO investigators that she had been in an intimate relationship with Strain from January to May 1992. Hull alleged that after she ended the relationship, Strain insisted on continuing to see her. Hull told the EEO investigators that at work, Strain sought her out; gave her personal notes; called her; threatened to retaliate against her superiors for assigning her to posts where his access to her would be limited; threatened to retaliate against coworkers if Hull associated with them; threatened to deny Hull's leave requests; and discussed sensitive information about inmates and employees with her.
The EEO office concluded that Hull's charges of sexual harassment could not be sustained because Hull and Strain both admitted to having a consensual sexual relationship; the decisions as to shift assignments and leave allowance were not made by Strain; and there was no evidence to support the allegations that Strain made threats. The EEO file on the Hull complaint included a written report from the warden of the Coffield Unit, stating that she had talked to Strain about his behavior but "could not make [Strain] understand the seriousness of his action." The EEO report concluded by noting that 4
On June 29, 1992, Collins completed the third step of the grievance procedure on Hull's complaint. Collins signed a statement rejecting Hull's claim on the basis that a review showed insufficient evidence to support Hull's allegations. However, Collins wrote a note to the TDCJ-ID regional director, Wayne Scott, to "call me about this case."
In fall 1992, plaintiff Sherry Southard, a correctional officer at the Michael Unit, filed a written grievance against Strain that was referred to the EEO office. Southard asserted that beginning in September 1992, Strain harassed her and gave her instructions that violated TDCJ rules and procedures. Southard complained that when she refused to cooperate, Strain retaliated against her with unfavorable duty assignments.
In November 1992, the EEO office concluded that Southard's initial complaints were not of sexual harassment but rather of violations of security or unit procedures. The unit warden conducted an investigation, including interviews with two witnesses besides Southard and Strain, and found insufficient evidence to support Southard's allegations.
Southard continued to press her grievance. She supplied additional information, including specific details of alleged incidents of sexual harassment. 5 The EEO received similar grievances from other employees and investigated the complaints alleging sexual harassment. During the investigation, EEO investigators interviewed sixteen employees besides Strain and Southard. The interviews resulted in verbal complaints against Strain from other employees. Theresa Pankey, a clerk at the Michael Unit, told the EEO investigators that in August 1992, Strain made a sexually suggestive comment to her. 6 Terri Wells, a former correctional officer at the Coffield Unit, told the investigators that in December 1984, Strain made a comment about her body.
The EEO office concluded that Southard's complaint of sexual harassment, and the complaints received from Pankey and Wells, were unsustainable. The EEO report analyzed each incident of inappropriate and harassing behavior that Southard alleged. The EEO report detailed the interviews of the witnesses to the acts of misconduct and the interviews of other possible victims. The EEO report concluded in part as follows:
Ms. Southard and others have made several allegations concerning inappropriate comments, sexually suggestive looks, and offensive touching by Captain Strain.
None of the allegations were supported by witness corroboration....
Normally conversations with co-workers about an incident shortly after it occurs could be used to strengthen the allegation that it had occurred. None of Ms. Southard's direct witnesses verified Ms. Southard's allegations. Steven Quick's reporting [that] he had been told by Ms. Southard of the October 11 incident is the only support provided by any of Ms. Southard's witnesses .... it is the opinion of this investigator that Officer Quick's objectivity should be questioned.
As has been stated throughout this report, Captains [sic] Strain's piercing glare/stare is a management tool he readily admitted to. He admitted using it in lieu of words.... Although his intent is not to intimidate it is the opinion of this investigator that it has had that effect.... The fact that Captain Strain uses a "look" with both men and women, is therefore, without question. However, whether a reasonable woman would have perceived the look to contain sexual implications is questioned.
Captain Strain's arrival on the Michael Unit was preceded by negative rumors which destroyed his opportunity to establish trust and respect from subordinates....
The EEO report summarized the negative rumors that had preceded Strain's arrival at the Michael unit. These rumors included that Strain was known as "Black Jesus" and known to "chase white women," and that he was a "nigger from Coffield who is fixin' [sic] to change things." Although the EEO report noted that its investigations did not normally consider a complainant's spouse, Dennis Southard had taken an unusually active role in encouraging his wife's complaint, and Dennis Southard had been disciplined at another unit for racial harassment. The EEO report stated that several women had been "approached by members of the union soliciting complaints about Strain,"...
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