Sims v. Brown & Root Industrial Services, Inc.

• Decision Date: 12 June 1995
• Docket Number: Civ. A. No. 94-0708.
• Citation: 889 F. Supp. 920
• Court: U.S. District Court — Western District of Louisiana
• Parties: Deborah A. SIMS v. BROWN & ROOT INDUSTRIAL SERVICES, INC., et al.

889 F. Supp. 920

Deborah A. SIMS v. BROWN & ROOT INDUSTRIAL SERVICES, INC., et al.

Civ. A. No. 94-0708.

United States District Court, W.D. Louisiana, Shreveport Division.

June 12, 1995.

COPYRIGHT MATERIAL OMITTED

Nelson W. Cameron, Shreveport, LA, for plaintiff.

S. Price Barker, Cook, Yancey, King & Galloway, P.C., Shreveport, LA, W. Carl Jordan and Suzanne M. Lehman, Vinson & Elkins, Houston, TX, for defendant Brown & Root.

Thomas T. Townsend, Kelly, Townsend & Thomas, Natchitoches, LA, for defendant Frank Brossette.

MEMORANDUM RULING

STAGG, District Judge.

Deborah Sims ("Sims") has brought a sexual harassment claim under federal and state law against Brown & Root Industrial Services, Inc. ("Brown & Root") and state tort law claims against Frank Brossett ("Brossett"), a former employee of Brown & Root. Brossett has, in turn, filed a third party demand against State Farm Fire & Casualty Company ("State Farm"), seeking coverage for the claims asserted by Sims. Brown & Root, Brossett, and State Farm each filed a motion for summary judgment. For the reasons set forth below, these motions are GRANTED and Sims' claims are DISMISSED WITH PREJUDICE.

I. BACKGROUND¹

A. Facts

Brossett was a Project Manager for Brown & Root at the Olin Chemical Plant jobsite in Shreveport, Louisiana, when he interviewed Sims for a job assisting the purchasing agent in purchasing and receiving parts. After the interview, Brossett telephoned Sims at least two times per week for three consecutive weeks. The content of these telephone conversations apparently consisted of Brossett pursuing Sims romantically; he also invited her to have sex with him in exchange for employment. Brossett's comments to Sims on the date of her interview or via telephone include:

(1) that she needed either a "TV daddy" or a "sugar daddy"; and

(2) asking whether she "loved as good as she looked."

Although Sims declined his advances, she was offered a job with Brown & Root. She accepted the position and began work on September 17, 1992. When Sims arrived at work she was shown Brown & Root's policy prohibiting sexual harassment.² She did not, however, at that time, complain about Brossett's pre-employment behavior.

Sims was an assistant to Judy Ladner and spent almost no time directly with Brossett. She came into contact with him only when Ladner sent her to get Brossett's lunch order or to get some information from Brossett. Nevertheless, Brossett apparently managed to make unwelcome advances during these brief interludes. The following are some of the alleged acts Brossett made toward Sims once her employment began:

(1) Brossett asked on numerous occasions if he could come to her apartment;

(2) Brossett instructed some employees not to speak to Sims;

(3) Brossett patted Sims on the buttocks;

(4) when Sims asked Brossett what he wanted for lunch, he replied, "you." Sometimes he would mouth, "your body";

(5) Brossett asked Sims if she wanted to borrow money from him — if she would "pay him back";

(6) Brossett called Sims' mother to ask her mother about "very personal matters" regarding Sims;

(7) Brossett stopped by Sims' apartment and talked to Stacy Adams, Sims' apartment manager, and left his business card;

(8) Brossett told Sims on at least two occasions that he found her attractive by commenting that she looked good in her pants;

(9) Brossett instructed Sims to go to a motel; and

(10) Brossett reduced Sims' pay from $10.00 to $8.00 per hour for her failure to submit to his request for sexual favors.

Sims continued to work at her reduced rate of pay for approximately one month. Then, in the last week of February, Sims complained of Brossett's conduct, utilizing Brown & Root's sexual harassment policy. This policy provides, in pertinent part:

If you believe you are being discriminated against you should implement the Open Door Complaint Policy by first discussing the matter with your immediate supervisor. If you are not satisfied with the response from using the chain of command, you should address your concern with the Project EEO Officer. If the problem is not resolved at that level, you should advise your Business Unit Personnel Manager and/or the Employee Relations/Compliance Department in Houston the telephone number was inserted here. Although we encourage you to resolve complaints using the chain of command, the Open Door Policy allows you to address problems to any level of supervision.

Deposition of Deborah Sims, at Exhibit 4 (December 20, 1994) (attached to Brown & Root Memo. Supp. Summ. J.).

Sims made her complaint to a supervisor, Tracy Hood, who immediately placed a call to Greg Conklin at the Human Resources Department at the company's main offices in Houston, Texas. The same day, Conklin called Sims at her home and listened to her complaints. He told her that Brown & Root would investigate her claims, pay back any lost money if necessary, and that she should let him know immediately if anything else happened. True to his word, the following week, the first week of March, a representative from the Human Resources Department, Ralph Morales, went to the jobsite to investigate Sims' claim. Morales interviewed several Brown & Root employees, including Sims and Brossett. As a result of Morales' investigation, Brown & Root concluded that "there is an abundance of testimony regarding the conduct of ... Brossett which makes a very strong case for quid pro quo type sexual harassment. Although Frank denies it, there are just too many people saying the same things about him." Brossett was terminated on March 10, 1993, the second week of March, for violation of Brown & Root's sexual harassment policy.

Additionally, Sims was reinstated to her previous wage scale and paid her unpaid past wages. After Brossett's termination, however, Sims claims that she began to feel "awkward" because of the behavior of two of Brossett's relatives who were still working at the jobsite. Without making any further complaints to Brown & Root, she resigned on May 19, 1993.

B. Sims' Legal Claims

Sims claims that Brown & Root is liable for sexual harassment pursuant to Title VII and La.R.S. § 51:2231. She claims that a hostile work environment existed at Brown & Root; and that Brossett's pre-employment conduct offering employment for sex and his decision to reduce her pay once it became clear to him that she would not have sex with him was quid pro quo sexual harassment.

Sims also claims that Brossett is liable for the state law torts of battery and intentional infliction of emotional distress. The battery allegedly occurred when Brossett patted Sims on the buttocks and when he "hugged" her neck. The intentional infliction of emotional distress tort allegedly occurred when Brossett called Sims' mother to ask personal questions about Sims' sex life; when Brossett propositioned Sims; when Brossett reduced Sims' wages because she would not engage in sex with him; when Brossett called Sims' apartment manager to meet with Sims; and when Brossett appeared at Sims' apartment at approximately 3:00 A.M. to 4:00 A.M. on two separate occasions. Sims claims that Brown & Root is liable for both of these torts under the theory of respondeat superior.

Finally, Sims claims that she was constructively discharged from her job. She argues that Brossett's behavior and the "attitude" of two other Brown & Root employees, who are also Brossett's relatives, caused her to resign from her position.

II. SUMMARY JUDGMENT STANDARD

Under Fed.R.Civ.P. 56(c), a summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The court must "review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir.1986).

The party seeking summary judgment has the initial responsibility of informing the court of the basis for its motion, and identifying those parts of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party need not produce evidence negating the existence of a material fact, but need only point out the absence of evidence supporting the nonmoving party's case. Id. at 325, 106 S.Ct. at 2554; Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir.1986). If the moving party carries his initial burden, the burden then falls upon the nonmoving party to demonstrate the existence of a genuine issue of a material fact. This showing requires more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 584-88, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Id.; see Boeing Company v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc). While the party opposing the motion may use proof filed by the movant to satisfy his burden, "only evidence — not argument, not facts in the complaint — will satisfy" the burden. Solo Serve Corp. v. Westowne Assoc., 929 F.2d 160, 164 (5th Cir.1991). "Unsworn pleadings, memoranda or the like are not, of course, competent summary judgment evidence." Larry v. White, 929 F.2d 206, 211 n. 12 (5th Cir.1991), cert. denied, ___ U.S. ___, 113 S.Ct. 1946, 123 L.Ed.2d 651 (1993).

Where the moving party bears the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257 (5th Cir. 1991), cert. denied, 502 U.S. 1059, 112 S.Ct. 936, 117 L.Ed.2d 107 (1992). The nonmovant may...