Casiano v. A.T. & T. Corporation

• Decision Date: 12 June 2000
• Docket Number: No. 99-50992,99-50992
• Citation: 213 F.3d 278
• Parties: (5th Cir. 2000) JAMES P. CASIANO, Plaintiff-Appellant v. AT&T CORPORATION; ET AL, Defendants AT&T CORPORATION Defendant-Appellee. (Summary Calendar)
• Court: U.S. Court of Appeals — Fifth Circuit

Page 278

213 F.3d 278 (5th Cir. 2000)

JAMES P. CASIANO, Plaintiff-Appellant v. AT&T CORPORATION; ET AL, Defendants AT&T CORPORATION Defendant-Appellee.

No. 99-50992

(Summary Calendar)

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

June 12, 2000

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Western District of Texas

Before POLITZ, WIENER, and DENNIS, Circuit Judges.

WIENER, Circuit Judge.

In this supervisor sexual harassment case under Title VII,¹ Plaintiff-Appellant James P. Casiano appeals the district court's grant of Defendant-Appellee AT&T's motion for summary judgment dismissing Casiano's claims asserted on grounds of quid pro quo harassment and retaliation. For reasons differing but slightly from those expressed by the district court, we affirm, writing separately only to clarify a few nuances that apparently continue to confound some litigants and trial courts in cases such as this.

I. FACTS AND PROCEEDINGS

AT&T initially hired Casiano in 1990 as a Customer Representative. He worked in AT&T's Personal Account Service Department (PAS) between October, 1995 and March, 1997 except for a medical leave hiatus between June and November, 1996. Casiano was granted a temporary position as a Training Assistant in AT&T's Education Department in March, 1997 but remained attached to PAS, under the supervision of Kathleen Stiggers. From April until October, 1997, Casiano was mentored and observed by Anna Rodriguez, a Course Administrator in the Education Department. During that mentorship, Rodriguez noted that Casiano's files and paperwork were not properly handled, that his procedure book for a Refresher Disability Training course had not been maintained correctly, and that he had not adequately maintained his PAS portfolio of customers whom he had agreed to continue servicing while assigned temporarily to the Education Department. These deficiencies were documented by Rodriguez, and she counseled Casiano on the need for improvement in these areas.

In October, 1997, when Casiano's training to teach AT&T Worldnet commenced, his instructor, Kathy Aguilar, became his mentor. According to Casiano, it was during this period that he directly requested another Course Administrator, co-defendant Susie Valenzuela, to stop asking him to bring her personal items such as drinks and food. Casiano states that this request was ineffective so, on December 17, 1997, he complained to Elsa Neaves, the Training Staff Manager of the Education Department, about Valenzuela's behavior. In that initial complaint, he did not mention or imply any sexual connotations but did describe the retrieving of personal items as demeaning. He referred to them as orders or commands rather than requests and stated that they were made in the presence of other supervisory co-workers. (After filing suit, Casiano averred additionally that on occasion Valenzuela referred to him as "honey" or "my honey," made a statement to his wife about his having to work late with Valenzuela, and phoned him at home late in the evening, ostensibly on work related matters.)

Casiano was advised by Neaves that she would speak to Valenzuela regarding these actions. Neaves apologized to Casiano for Valenzuela's behavior and told Casiano to let her know if Valenzuela's actions persisted. Neaves spoke to Valenzuela that same day, advising her that the behavior complained of was unprofessional and had to stop.

Casiano did not complain further to Neaves, but two days later, on December 19, 1997, he and Paul Amerson, union steward for Communication Workers of America, spoke "off the record" with Lee Barden of AT&T's Corporate Security regarding the same actions about which Casiano had complained to Neaves, albeit without identifying the offending supervisor by name. The stated reason for conducting the meeting off the record was to ensure that there would be no notes, files, or documents reflecting that the meeting had occurred or that Casiano had complained to Barden that a manager was acting inappropriately. Barden advised Casiano to report his allegations to the AT&T Equal Opportunity Department, but the record does not reflect that he did so. None dispute that neither Casiano nor Amerson identified Valenzuela or alleged that the unidentified supervisor had repeatedly initiated discussions of marital status and sexual experiences and had requested to have sex with Casiano.

That same month, Casiano completed his course of instruction on Worldnet and returned to his full-time position as a Customer Representative. In his deposition, Casiano insisted that he was "removed" as a Training Assistant and "sent" back to work as a Customer Representative after complaining to Neaves. He also alleged that he lost his "pay differential," and that Valenzuela indirectly threatened retaliation, stating pointedly in his presence that, when she is crossed, she responds ten times as severely.

In January of 1998, Casiano sought to participate in Associate-to-Management Assessment of Process (AMAP), submitting an application packet to Pete Ramirez, his supervisor at the time. As Casiano had not received a personal appraisal within the previous twelve months, a requirement to participate in AMAP, Ramirez contacted Aguilar and requested such an appraisal of Casiano. She prepared one covering April through December, 1997, the period of Casiano's assignment to the Education Department. In completing the appraisal, Aguilar consulted several other Course Administrators, including Rodriguez, regarding Casiano's performance. When the appraisal was complete, Aguilar reviewed it with Casiano and advised him that he was receiving a rating of "satisfactory," too low for him to be eligible for the AMAP program. Claiming he was not thus informed, Casiano reported to take a prerequisite GMAB test but was removed by a supervisor because Casiano's "satisfactory" personal appraisal made him ineligible to participate.

In February 1998, AT&T received a letter from Casiano's lawyer alleging sexual harassment by Valenzuela, mentioning specifically her requests that Casiano "retrieve" personal items for her and have sex with her. Casiano has sworn that Valenzuela not only demanded that he bring her food, beverages, and her purse (from three floors away) and referred to him in the presence of other workers as "honey" and "James, my honey," but that on at least fifteen occasions during a four-month period, she had initiated sexual conversations and requested that he engage in sex with her.

Valenzuela was removed from work forthwith by AT&T's Equal Opportunity ("E.O.") Department pending an immediate investigation of Casiano's complaint. E.O. Specialists Robert Everett and Karol Burnett-Quick from AT&T's E.O. Department in San Francisco traveled to San Antonio to conduct the inquiry, interviewing eleven persons, including both Casiano and Valenzuela. None of these co-workers could substantiate Casiano's allegations that Valenzuela had asked him for sex, and the investigation reflected that among co-workers in the area where Casiano and Valenzuela worked requests for "retrieval" of items such as coffee, snacks, and soft drinks were commonplace. Not surprisingly, there were no third-party witnesses to Valenzuela's alleged propositioning of Casiano, only his accusations and her denials. Everett and Burnett-Quick also concluded that there were no sexual implications in the beverage requests or use of the term "honey."

On the basis of that investigation, AT&T concluded that there was insufficient evidence to support Casiano's allegations of sexual harassment. The investigation did reveal, however, that Casiano's personal appraisal should have been conducted by Stiggers, his supervisor preceding his time in the Education Department, and should have covered the twelve-month period between December, 1996 and December, 1997; and that Aguilar's written input as a Course Administrator should have been limited to Casiano's performance in the Education Department. Consequently, the appraisal prepared by Aguilar was discarded and a new one was prepared by Stiggers. In it too, Casiano received a rating of "satisfactory" for 1997. He has not contested the second appraisal as being retaliatory, yet it appears to be the one that resulted in his being denied participation in the AMAP program.

Casiano sued both AT&T and Valenzuela (in her individual capacity), claiming discrimination in violation of Title VII. He alleged both quid pro quo sexual harassment and retaliation ---- the latter tied to the initial "satisfactory" evaluation ---- for complaining about Valenzuela's behavior toward him. Several months after being sued, Valenzuela filed a motion for summary judgment seeking dismissal on grounds that she was not an "employer" for purposes of Title VII and thus could not be held individually liable to Casiano. The district court dismissed Casiano's action against Valenzuela, and Casiano has not appealed that ruling.

Subsequently, AT&T moved for summary judgment. It asserted six grounds for dismissing Casiano's action: (1) Casiano could not establish a prima facie case of actionable sexual harassment under Title VII; (2) Casiano could not establish that he suffered a tangible employment action or that such an action was taken against him as a result of any alleged sexual harassment; (3) AT&T had exercised reasonable care to prevent and correct promptly any alleged sexually harassing behavior by Casiano's supervisor; (4) Casiano unreasonably failed to take advantage of any preventative or corrective opportunities provided by AT&T (5) Casiano could not present evidence that he engaged in a protected activity sufficient to afford protection of the anti-retaliation provisions of Title VII; and (6) Casiano could not present evidence that he suffered an adverse employment action as a result of engaging in any protected activity.

In September of 1999, the district court...