Belcher v. Fluor Enters., Inc.
| Decision Date | 08 February 2013 |
| Docket Number | CIVIL ACTION NO. 4:10-cv-3475 |
| Parties | DENA BELCHER, Plaintiff v. FLUOR ENTERPRISES, INC., Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Before the Court is Defendant Fluor Enterprises, Inc. ("FEI's") Motion for Summary Judgment (Doc. No. 40). After considering the Motion, all responses and replies, and the applicable law, the Court concludes that Defendant's Motion should be GRANTED.1
FEI hired Dena Belcher on March 10, 2008 to work as a Utility Worker on the construction of the Oak Grove Power Plant (the "Oak Grove Project") at the entry wage of $16.00 per hour. (Dena Belcher Dep. 23:17-24:17, June 6, 2011.) The laborers on the Utility crew were generally non-skilled personnel. (Doc. No. 45-2, ¶ 4 [Belcher Decl.]; Belcher Dep. 218:22-25.) Utility workers were generally responsible for sweeping,picking up trash, and keeping the construction area clean of debris. (Belcher Dep. 165:18-166:2).
When Belcher was hired she received a copy of FEI's Craft Employee Handbook, which outlined the procedures by which employees could report problems, suggestions or complaints by using the Open Door Policy or calling FEI's Compliance Hotline. (Belcher Dep. 166:19-24, 168:10-19, 170:9-18, 171:8-21.) Belcher understood she could raise concerns with a supervisor, the Safety Department, or Human Resources ("HR"), and could contact someone higher up if she was dissatisfied with the result. (Id. 303:12-24, 314:4-315:1.) She also understood that she could bypass local management altogether and call the Compliance Hotline. (Id. 170:9-18, 314:22-315:1.)
Belcher also learned during orientation that FEI offered classes for employees to learn craft jobs on a first-come, first-served basis. (Id. 220:2-221:9, 293:17-294:15.) While at FEI, Belcher attended courses on subjects like project manager and safety, "fire watch" certification, and "confined space" training. (Id. 242:2-243:6, 292:11-293:16.) In October 2008, all the employees at the Oak Grove Project were required to attend a training session titled "Maintaining a Respect-Based Workplace," in which issues such as harassment and discrimination were discussed. (Id. 291:8-24)
Following her satisfactory three month evaluation, on June 5, 2008, Belcher received a pay raise to $16.60 per hour. (Id. 296:18-297:8) Approximately two weeks later, Michael Cheatham, the Utility Superintendent, promoted Belcher to Utility Foreman, with a wage increase to $26.35 per hour. (Id. 296:21-298:17; Doc. No. 40-2, ¶ 4 [Carmichael Decl.]) As a supervisor, Belcher could opt out of performing the tasksassigned to her cleaning crew. (Belcher Dep. 270:24-272:8) Both women and men were assigned to Belcher's Utility crew. (Doc. No. 40-2, ¶ 5 [Carmichael Decl.])
Upon her promotion, Belcher initially reported to Dedrick Richardson, a Utility General Foreman. (96:11-17; Doc. No. 40-2, ¶ 6 [Carmichael Decl.]) On or around September 1, 2008, Belcher began reporting to Martin Solis, another Utility General Foreman. (Belcher Dep. 98:5-9; Doc. No. 40-2, ¶ 6 [Carmichael Decl.]) During Belcher's time at FEI, she received two reprimands, a verbal one for arguing with another female employee, and a written reprimand for excessive absenteeism.
When she was hired, Belcher was informed that her employment with FEI would be temporary and that she would be laid off when the Oak Grove Project neared completion (Id. 236:7-13.) FEI began a series of layoffs at the beginning of 2009. (Doc. No. 40-2, ¶ 12 [Carmichael Decl.]) Belcher was the first Utility Foreman to be laid off. Id. Belcher's disciplinary history, her construction industry experience, and her supervisory experience were evaluated by Schmidt, the Utility Superintendent, and Carmichael, the Senior Human Resources Manager. Id. Belcher completed an exit interview form when she left the company. (Belcher Dep. 171:24-172:17, Doc. No. 40-10 [Exit Interview Form]) Belcher did not raise concerns of harassment at this time. (Belcher Dep. 176:25-177:17.) She rated all aspects of her job and working environment positively. (Id. 176:10-24; Doc. No. 40-10 [Exit Interview Form]))
Belcher brings three claims against FEI: sex discrimination, hostile environment, and retaliation. Belcher bases her claims on the alleged assignment of demeaning job duties, the denial of training and promotional opportunities, the selective enforcement of disciplinary rules, inappropriate comments made to her by other workers, uncomfortablework conditions, and offensive graffiti on the walls. Belcher alleges that, although she was promoted to a position of authority, she was constantly undermined. (Belcher Dep. 98:1-100:21.) Belcher also recounted a number of specific incidents in her deposition to support her discrimination claims.
On October 22, 2008, Belcher received a complaint from one of her utility workers, Mandy Wandrick, that Robert "Doc" Rouse, a Senior Occupational Nurse who treated minor medical conditions at the Oak Grove Project, had touched Wandrick in an inappropriate way. (Belcher Dep. 203:15-204:20.) Belcher accompanied Wandrick to HR to report Rouse's behavior to Nicholas Carmichael, the Senior HR Manager. (Id. 205:14-19.) Belcher reported her own concerns at this time regarding an incident that had happened in March 2008. (Id. 117:2-11, 125:13-126:6, 209:11-17.) Belcher reported that when she went to see Rouse for the treatment of blisters, Rouse rubbed and made comments about her legs, straddled her leg while dressing her blisters, which she characterized as "like he was humping my leg." (Id. 115:17-117:11.) After receiving these complaints about Rouse's behavior, FEI investigated Rouse and took the following actions: (1) issued Rouse a written reprimand; (2) permitted Rouse to treat female employees only when another female was present, (3) required Rouse to attend sexual harassment training. (Doc. No. 40-13, [11/10/08 Written Reprimand of Robert Rouse].) There is no record of any new or additional complaints received by FEI regarding Rouse for the duration of the Oak Grove Project. (Belcher Dep. 130:23-131:6, Doc. No. 40-2, ¶ 10 [Carmichael Decl.])
In December 2008, Belcher also called the Compliance Hotline and stated that Solis, her General Foreman and direct supervisor, was creating a hostile and manipulative environment by not supporting Belcher when she supervised her cleaning crew. Belcher claimed Solis undermined her authority when, for example, Belcher's crew complained to Solis that they were working too hard and Solis apparently sided with Belcher's cleaning crew instead of Belcher. (Belcher Dep. 104:18-105:20.) Upon receiving the complaint, FEI appointed Carroll Scott to conduct an on-site investigation into Belcher's concerns. (Belcher Dep. 251:1-25; Doc. No. 40-8, at 3 [Compliance Hotline Report].) Scott met with Belcher, Solis and Jeff Schmidt, the newly-appointed Utility Superintendent, about Belcher's concerns. (Belcher Dep. 131:7-16, 244:4-11; Doc. No. 40-8, at 3.) According to the resolution summary, Belcher reported that she was "pleased with the outcome of the meeting." (Doc. No. 40-8, at 4.) At the time of the investigation, Belcher did not communicate any dissatisfaction with the process. (Belcher Dep. 251:1-252:9, 253:17-254:4.)
Belcher also alleges that her coworkers made inappropriate comments. Belcher alleges that (a) on her first day of employment, a female foreman told Belcher that Belcher was "not going to make it" and that all the "white hats" had a bet that Belcher would not be successful as a Utility Worker because she was "too fragile," (Doc. No. 5, ¶ 15 [Plaintiff's First Amended Original Complaint ("Cmp.")]); (b) a month after she began her employment, there were bets going around as to which employee or supervisor would get a date with Belcher first and which one would sleep with her first, (Doc. No. 5, ¶ 17; Belcher Dep. 85:17-86:20); (c) prior to her promotion, Solis asked her on a date andmade comments such as "I can hear you from here," (Belcher Dep. 110:8-17); (d) on the day of her promotion two male subordinates told Belcher that they did not work for her, one of whom told Belcher that he did not take orders from his wife and was not going to take orders from her and then "got in her face and yelled at her, which made [Belcher] feel threatened,"2 (Doc. No. 5, ¶ 23; Belcher Dep. 274:2-15); (e) after her promotion, unnamed employees questioned whether Belcher had slept with Cheatham (the Utility Superintendent at that time) for her promotion, (Doc. No. 5, ¶ 17; Belcher Dep. 85:17-86:20); and (f) after Solis became Belcher's General Foreman, he told her to "get her girls in check, that HR was tired of the sexual harassment complaints and [that] she needed to get her girls under control." (Doc. No. 5, ¶ 27.) Belcher did not report these claims to HR directlyor by using the Compliance Hotline. (Belcher Dep. 87:16-25, 110:8-17, 253:12-16, 274:16-275:4.)
Belcher was in charge of a crew that was composed of both men and women, and was regularly assigned to cleaning tasks.3 Belcher found the cleaning work demeaning. For example, Belcher alleges that when men ran out of toilet paper in the portable restrooms, they used whatever they could find, and that Belcher's labor crew had to pick up the trash. (Belcher Dep. 267:9-22; 267:9-268:1.) When she brought these concerns to Cheatham, he explained to her that cleaning was a part of her crew's responsibilities. Belcher and her crew were provided with safety gear, including boots, gloves, and safetyglasses. The protective gear was in men's sizes and was uncomfortable for Belcher. (Belcher Dep. 315:2-316:20.)
Belcher also claims that her work environment was unacceptable because of offensive graffiti on the sidewalks and walls. Belcher alleges that there was sexually...
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