Royal v. CCC&R Tres Arboles, L.L.C.

• Decision Date: 21 November 2013
• Docket Number: No. 12–11022.,12–11022.
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: Tonia Denise J. ROYAL, Plaintiff–Appellant v. CCC & R TRES ARBOLES, L.L.C., A Texas Limited Liability Company, Defendant–Appellee.

736 F.3d 396

Tonia Denise J. ROYAL, Plaintiff–Appellant

v.CCC & R TRES ARBOLES, L.L.C., A Texas Limited Liability Company, Defendant–Appellee.

No. 12–11022.

United States Court of Appeals, Fifth Circuit.

Nov. 21, 2013.

Brian Paul Sanford (argued), David Bryan Norris, SanfordBethune, Richardson, TX, for Plaintiff–Appellant.

Robert James Wood, Jr. (argued), Fell & Wood, L.L.P., Dallas, TX, for Defendant–Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

We learn from this Title VII appeal that Tonia Royal worked at an apartment complex for only four days before she was fired by defendant CCC & R. During this brief time, she was regularly visited in her small office by two maintenance men who hovered over her and sniffed her in a sexually suggestive manner. When she complained to her superiors about this behavior, she was then fired for unspecific reasons.

This appeal arises from the district court's grant of summary judgment dismissing her complaint on the grounds that the alleged misconduct was not objectively unreasonable nor a practice made unlawful by Title VII. Royal only appeals her retaliation claim, that is, her discharge, which she claims resulted from her complaints about sexual harassment. The question presented on appeal is whether the facts of this case present genuine disputes of material fact relating to her claim of harassment based on sex. We hold that genuine disputes of material fact require us to vacate the grant of summary judgment and remand for further proceedings.

I.

A.

Royal was hired by a CCC & R Tres Arboles, L.L.C. (“CCC & R”) apartment complex as a leasing manager on Monday, August 3, 2009. She was fired on Thursday, August 6, by her supervisor, Asia Brazil. Royal worked at the only desk in a small front office.

According to Royal, two maintenance workers would enter her office and would hover over her as she sat at her desk and sniff her. This harassment occurred about twelve times, for each worker, over the four days of Royal's brief employment. Sometimes each would come alone, and sometimes they would come together. Royal told them several times that she did not like their behavior. Apparently they were undeterred. The workers would sometimes sniff and hover directly over Royal's head when she was seated. Sometimes the men would sniff even when Royal exited the bathroom.

There were also other incidents of objectionable conduct, one of which involved one of the maintenance workers sitting on a cabinet behind Royal with his legs open. He was an arm's length away and wearing shorts. She alleged that he was visibly aroused. For three to five minutes, Royal reports that he engaged in a “stare-down.”

Another incident occurred when Royal was gathering files. Turning around, she encountered the Assistant Manager, Robin Granger, who was standing behind her. She then stumbled into him with her whole body. Brazil, Royal's supervisor, was present when this happened.

Royal reported her complaint to Granger, the Assistant Manager, on Wednesday. According to Royal, Granger told her to “let it slide” and stated something along the lines of “you know how men are like when they get out of prison.”

Brazil held a staff meeting the following day. According to Royal, Brazil held the meeting so that people could “get things off their chest” and speak about whatever was bothering them. Royal spoke up at the meeting and said that she did not like for the men to sniff over her all the time. In response, one of the maintenance men claimed he had a medical condition. The other maintenance man, according to Royal, stated that he “needed to get a release.” A different coworker said in response that the maintenance man had “got [his] mind on the wrong thing.” Royal took the comment about needing a release as sexual innuendo. After the staff meeting, there was another follow-up meeting with Royal, Brazil, and Granger in which Royal purports to have again asked about the maintenance men's conduct.

That same afternoon, Brazil called Royal into her office and discharged her. According to Royal, Brazil supplied no reason. Brazil states that she made this decision alone, and that Granger had no involvement in it. CCC & R asserted at oral argument that Royal's offenses were swatting a fly harder than was necessary and slamming a door.

B.

After filing an Equal Employment Opportunity Commission complaint, Royal timely sued CCC & R in the District Court for the Northern District of Texas. She claimed sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964 as well as violations of various Texas state laws.

Ruling on CCC & R's motion for summary judgment, a magistrate judge held that the CCC & R employees' conduct was not objectively offensive as required for a Title VII hostile work environment claim. She reasoned that, with the exception of Royal's fall into Granger, no one touched Royal. Additionally, she noted that the “get a release” comment was not directed at Royal. On the retaliation claim, the magistrate judge found that “a reasonable person would not believe that the reported conduct constituted an unlawful employment practice under Title VII.” The magistrate judge implicitly found that Royal had failed to make out a prima facie case of retaliation. The district court accepted the magistrate judge's findings and granted CCC & R's summary judgment motion, dismissing all claims.

Royal now appeals. She raises only the 42 U.S.C. § 2000e–3(a) retaliation claim. She fails to brief the other claims she raised in district court, including the hostile work environment claim. Consequently she has waived them. See Matter of Texas Mortg. Servs. Corp., 761 F.2d 1068, 1073 (5th Cir.1985); Fed. R.App. P. 28(a)(9)(A).

II.

A.

This court reviews a grant of summary judgment de novo. Reed v. Neopost USA, Inc., 701 F.3d 434, 438 (5th Cir.2012). Summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A genuine dispute of material fact means that “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence is viewed in the light most favorable to the nonmovant. United Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir.2006).

A retaliation claim that is premised on a pretextual rationale for dismissal is analyzed under the McDonnell Douglas framework. Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir.2005) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). McDonnell Douglas establishes certain rules for burden shifting between the plaintiff and the defendant employer: (1) first, the employee must demonstrate a prima facie case of retaliation; (2) the burden then shifts to the employer, who must state a legitimate non-retaliatory reason for the employment action; and (3) if that burden is satisfied, the burden then ultimately falls to the employee to establish that the employer's stated reason is actually a pretext for unlawful retaliation. Septimus, 399 F.3d at 607.

We examine here the plaintiff's prima facie case of retaliation, which is the issue addressed by the magistrate judge and the parties' briefs. ¹ In the Fifth Circuit:

To make her prima facie case, [the plaintiff] must demonstrate that: (1) she engaged in protected activity; (2) an adverse employment action occurred; and (3) a causal link exists between the protected activity and the adverse employment action. Under Title VII, an employee has engaged in protected activity if she has “opposed any practice made an unlawful employment practice under [Title VII].” 42 U.S.C. § 2000e–3(a).

Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir.2007) (internal citations and quotation marks omitted).

It is clear that an adverse employment action occurred here—Royal was fired. Therefore we will move to the other elements of the prima facie case: whether Royal created genuine disputes of material fact that (1) she opposed a practice that was unlawful under Title VII,² and (2) if so, whether that opposition caused her termination.

B.

We first turn to whether the facts of the crude conduct we have described constitute a practice made unlawful by Title VII. A hostile work environment based on sex may be a violation of Title VII. Such a violation occurs when the plaintiff proves she “(1) belongs to a protected group; (2) was subjected to unwelcome harassment; (3) the harassment complained of was based on [sex]; (4) the harassment complained of affected a term, condition, or privilege of employment; (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action.” Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir.2012).

The parties dispute whether the harassment was based on sex, and also whether the harassment “affected a term, condition, or privilege of employment.” Id. The relevant standard for the latter issue is whether the sexual harassment is “sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment.” Harvill v. Westward Commc'ns, L.L.C., 433 F.3d 428, 434 (5th Cir.2005) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). The harassment must consist of more than “simple teasing, offhand comments, and isolated incidents (unless extremely serious).” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (internal citation and quotation marks omitted). Relevant factors are “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere...