512 F.3d 157 (5th Cir. 2007), 06-41636, Lauderdale v. Texas Dept. of Criminal Justice, Institutional Div.

Docket Nº:06-41636
Citation:512 F.3d 157
Party Name:Debra LAUDERDALE, Plaintiff-Appellant, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; Rodrick D. Arthur, Defendants-Appellees.
Case Date:December 21, 2007
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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512 F.3d 157 (5th Cir. 2007)

Debra LAUDERDALE, Plaintiff-Appellant,

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; Rodrick D. Arthur, Defendants-Appellees.

No. 06-41636

United States Court of Appeals, Fifth Circuit

Dec. 21, 2007

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Curtis B. Stuckey (argued), Stuckey, Garrigan & Castetter, Nacogdoches, TX, for Lauderdale.

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Phillip E. Marrus, Asst. Atty. Gen. (argued), Adrienne R. Butcher, Austin, TX, for Tex. Dept. of Crim. Justice.

Lara M. Johnson (argued), Austin, TX, for Arthur.

Appeals from the United States District Court for the Eastern District of Texas.

Before HIGGINBOTHAM, SMITH and OWEN, Circuit Judges.

JERRY E. SMITH, Circuit Judge.

Debra Lauderdale alleges she was sexually harassed by her ultimate supervisor, Rodrick Arthur, over the period of almost four months during which she worked as a correctional officer for the Texas Department of Criminal Justice ("TDCJ"). Lauderdale sued the TDCJ under title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and sued Arthur under 42 U.S.C. § 1983. The district court granted summary judgment for both defendants. We affirm in part, reverse in part, and remand.

I.

Lauderdale began her employment with the TDCJ on June 3, 2004. After five weeks of TDCJ academy training, she was assigned as a correctional officer to the Coffield Unit. Her first two weeks consisted of on-the-job training in various areas of the unit, during which time she met Arthur. Upon completion of Lauderdale's training, Arthur, as acting warden on the night shift, became her ultimate supervisor.

In late July, shortly after Lauderdale completed her on-the-job training, Arthur began to pursue a relationship with her. According to Lauderdale, Arthur would call her multiple times at her duty station during the night shift. During one of the first phone conversations, he asked her to get coffee with him after the shift ended. After this first evening of phone calls, Lauderdale told Sergeant Kroll, her immediate supervisor, that Arthur had been telephoning her. Kroll told Lauderdale she could speak to the warden about the calls but that she should not mention Kroll's name.

The calls and requests to go out after the night shift continued and, though they varied in frequency, eventually reached an average of ten to fifteen calls during a shift. During one call, Arthur asked Lauderdale whether she was married; she lied and told him she was, to which Arthur responded that his heart was broken and he might hang himself. At other times, Arthur told Lauderdale she was beautiful and that he loved her.

On another occasion, Arthur called Lauderdale and, during the course of the discussion, asked her what she enjoyed doing. She told him she enjoyed gambling. Arthur suggested that the two of them could go to Las Vegas and "snuggle;" Lauderdale said "No." Other topics of conversation during the phone calls included Arthur's family and horses. On one occasion, he called and Lauderdale explained that she was upset that, for some reason, she was not going to rotate according to the schedule.

In August, after Lauderdale began working in another building at the unit, Arthur called and told her he missed her, then showed up at the building in which she was working. He would also invite her to sit with him in the warden's office during her breaks; she refused those invitations. After a break one evening in mid-October, as she returned to her duty station, Lauderdale passed Arthur in the hall by the "searcher's desk." Arthur grabbed her handcuff case, which she wore in the middle of her back on her belt, and pulled her to himself. Her lower back touched

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his stomach before she jerked away from him.

Finally, on October 25, Arthur sent for Lauderdale, presumably ordering her to report to him. She believed he had no legitimate reason to see her, and she refused to report to him. After this incident, she did not return to work. Before her next shift she telephoned a supervisor and indicated she would not be at work that day; she did not, however, indicate that she no longer intended to work for the TDCJ. After receiving a letter from Human Resources indicating that she would not receive her last pay check until she turned in her uniforms, Lauderdale returned to the unit on December 3 and officially resigned and indicated "Dissatisfaction with supervisors or coworkers" as the reason. She then spoke with Assistant Warden Sizemore and filed a formal EEO complaint against Arthur for sexual harassment.

The TDCJ investigated Lauderdale's allegations and found sufficient evidence to deem Arthur guilty of "Discourteous Conduct of a Sexual Nature." This determination resulted in a four-day suspension without pay and a nine-month probation. Arthur ultimately resigned at some point following the investigation.

Lauderdale does not allege that any adverse employment actions were taken against her; she concedes that she was able to perform her duties fully despite Arthur's harassment. She also acknowledges she received and read a copy of the various policies covering sexual harassment and watched a training video on the subject. Save for her discussion with Kroll in late July, Lauderdale admits that she never complained to anyone else who was in her chain of command or was identified in the TDCJ sexual harassment policy. She contends that she did not complain to anyone other than Kroll because she feared retaliation.

II.

"This Court reviews grants of summary judgment de novo, applying the same standard as does a district court, viewing the evidence in a light most favorable to the non-movant." Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558, 560 (5th Cir.2003) (citations omitted). We apply that standard of review now.

A.

The district court granted the TDCJ's motion for summary judgment because it held that, as a matter of law, Arthur's behavior was neither severe nor pervasive and, therefore, did not create a hostile work environment. We disagree.

Under title VII, it is illegal "for an employer to fail or refuse to hire or to...

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