Colbert v. Georgia-Pacific Corp., 7:96-CV-283-X.

• Decision Date: 30 January 1998
• Docket Number: No. 7:96-CV-283-X.,7:96-CV-283-X.
• Citation: 995 F.Supp. 697
• Parties: Melynda J. COLBERT, Plaintiff, v. GEORGIA-PACIFIC CORPORATION, Rob Williams, and Bill Coley, Defendants.
• Court: U.S. District Court — Northern District of Texas

Page 697

995 F.Supp. 697

Melynda J. COLBERT, Plaintiff, v. GEORGIA-PACIFIC CORPORATION, Rob Williams, and Bill Coley, Defendants.

No. 7:96-CV-283-X.

United States District Court, N.D. Texas, Wichita Falls Division.

January 30, 1998.

Dean Andrew Sanders, Law Office of Dean A Sanders, Wichita Falls, TX, Leslie F Hatch, Craig, Terrill & Hale, Lubbock, TX, for Melynda J Colbert.

Arlene Switzer Steinfield, David Michael Pryor, Thompson & Knight, Dallas, TX, for Georgia-Pacific Corp, Rob Williams, Bill Coley, Defendants.

Cynthia Solls, Law Office of Cynthia Solls, Dallas, TX, pro se.

MEMORANDUM OPINION AND ORDER

KENDALL, District Judge.

Before the Court is the Defendants' Motion for Summary Judgment, filed November 20, 1997; Plaintiff's Response, filed December 10, 1997 and Amended Response, filed December 23, 1997; and Defendants' Reply, filed January 7, 1998. After carefully considering the motion, briefs, supporting evidentiary submissions, and applicable law, the Court determines that no issues of material fact exist with respect to the issues raised in the motion for summary judgment. Therefore, Defendants' Motion for Summary Judgment is GRANTED.

BACKGROUND

This is a sexual harassment case. Plaintiff Melynda J. Colbert began working for Defendant Georgia-Pacific Corporation at its wallboard manufacturing facility in Acme, Texas in November 1994. Colbert went through an orientation when she was hired that included a video presentation on sexual harassment. The video instructed employees on the procedures for complaining about sexual harassment, and the law on it. Employees were instructed to immediately notify a supervisor or manager if they felt they were being subjected to sexual harassment. In addition, employees were given an 800 number to call to report sexual harassment. The video specifically stated that Georgia-Pacific did not tolerate or condone sexual harassment of any kind in the workplace. Georgia-Pacific's sexual harassment policy was also posted in the plant. Colbert signed a form on November 18, 1994 that indicated she had been through the company training on sexual harassment.

For the first 45 days of her employment at the Georgia-Pacific plant, Colbert was a "red hat" or probationary employee. As a red hat, Colbert was not assigned to any particular supervisor, but was a floater doing whatever tasks were assigned to her that day. After her time as a red hat, Colbert worked as an unloader/inspector on the take-off crew. Colbert's duties included inspecting wallboard for defects and operating machinery to unload wallboard from the production line. The unloader is a difficult piece of machinery to operate, and it would occasionally jam and cause production to stop while it was being repaired. Bill Coley was the leadman of her crew and shift foreman Dwayne Dishman was her immediate supervisor in that position. Dishman reported to Harlow Dodge, the Board Plant Supervisor. Dodge reported to Plant Manager Stan Asbell.

Colbert testified in her deposition that Coley initially made comments to Colbert complementing her on her appearance that she did not find inappropriate. Later, Coley approached Colbert numerous times, telling her she could make $500 a day working for him entertaining a Japanese mafia gambling group that came through Wichita Falls. Coley would say that Colbert had the body and face and was too classy to be working at the plant. She would have to wait on the Japanese men and wear skimpy clothes but she wouldn't have to "do anything" with them if she didn't want to.

Colbert testified that when Colbert let Coley know that she was offended by this talk, Coley told her that she already knew too much and that she could be in danger. Coley said that a black girl had turned him in who had worked for him, and she disappeared and nobody had seen her since. Colbert asked around the plant and other workers told her that a black girl had worked there, had problems with Coley, and had never returned to work. Coley would also come up behind Colbert and rub his chest against her back in a way that an observer would think that he was merely assisting her with her machine.

On April 24, 1995, Colbert stated that Coley told her that he was going to have her "iced." When she asked what that meant, Coley told her he could have her killed. Colbert was frightened and crying and another supervisor, Ray Kovacsiss, asked her what was wrong. She asked Kovacsiss to leave because she didn't want Coley to see them talking. Later that evening, Kovacsiss returned out of concern and found that Colbert had a problem with Coley. Kovacsiss immediately reported it to plant management

A few minutes later, Colbert was called into the office to speak with Plant Manager Asbell and Board Plant Superintendent Dodge. When Colbert told them what had been going on with Coley, Asbell was very understanding and quick to get to the bottom of her problem. When Colbert expressed fear about going home, Asbell offered to have a secretary take her because she was so upset. Colbert declined and had her roommate follow her home. Until April 24, 1995, Colbert had not told any Georgia-Pacific supervisor or manager about Coley's sexually harassing conduct. That night, Dodge and Dishman interviewed Coley. Although Coley maintained he had not engaged in the behavior Colbert alleged, Coley was suspended.

The following afternoon, Colbert had another meeting with Asbell, Dodge, and Assistant Plant Manager Bill Rasnick. Colbert was offered union representation but she declined it. This interview was taped, and Colbert signed a transcript of the interview tape. The managers told Colbert that the company took this matter very seriously, and that they were going to investigate it promptly. Colbert agreed in her deposition that she was treated in the interview with the utmost respect without any hint of retaliation. Colbert gave the managers the names of people who had witnessed the incidents with Coley, and the company interviewed each of them. These interviews with Frank Vargo, Donna Alston, Roy Quisenberry, James Doyal, and Bill Cooper corroborated many of Colbert's allegations.

As a result of Georgia-Pacific's investigation, the company terminated Coley's employment on May 4, 1995. He never worked another shift at the plant after Colbert's complaint on the night of April 24, 1995. Asbell instructed a Georgia-Pacific employee to help Colbert file a criminal complaint against Coley.

Colbert returned to work the day after she made her complaint, but left because of stress. Colbert was subsequently admitted to the hospital after she began having seizures because of stress. After she was released to return to work, Colbert returned to the plant and told Personnel and Safety Manager Rob Williams that she was not going to return to her job, but was going to move home to Lubbock to help her family. Colbert resigned effective August 25, 1995.

Colbert filed this lawsuit on December 3, 1996. Colbert's Complaint asserts causes of action for sexual harassment in violation of Title VII¹ and the Texas Commission on Human Rights Act,² and under Texas common law for intentional infliction of emotional distress, negligence, and assault and battery. Defendant Coley failed to answer Colbert's Complaint, and the Court granted a default judgment against Coley on April 10, 1997. Defendants Georgia-Pacific and Williams have moved for summary judgment, asserting that no genuine issue of material fact exists on the essential elements of each of Colbert's causes of action so that they are entitled to judgment as a matter of law.

SUMMARY JUDGMENT

Summary judgment is proper when the pleadings and evidence illustrate that no genuine issue exists as to any material fact and that the movant is entitled to judgment or partial judgment as a matter of law. Fed. R.Civ.P. 56(c); Slaughter v. Southern Talc Co., 949 F.2d 167, 170 (5th Cir.1991). Disputes concerning material facts are genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir.1996) (en banc) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). Substantive law provides that an issue is "material" if it involves a fact that might affect the outcome of the suit under the governing law. Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th Cir.1994); Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The nonmovant is not required to respond to the motion until the movant properly supports his motion with competent evidence. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir.1995); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). However, once the movant has carried his burden of proof, the nonmovant may not sit idly by and wait for trial. Page v. DeLaune, 837 F.2d 233, 239 (5th Cir.1988).

When a movant carries his initial burden, the burden then shifts to the nonmovant to show that the entry of summary judgment is inappropriate. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir.1992); Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53. Although the nonmovant may satisfy this burden by tendering depositions, affidavits, and other competent evidence, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden," Douglass, 79 F.3d at 1429, as "the adverse party's response ... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Merely colorable evidence or evidence not significantly probative, however, will not defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11. Furthermore, a mere scintilla of evidence will not defeat a motion for summary judgment. Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir.1994); Anderson,...