Cotton v. Cracker Barrel Old Country Store, Inc.

• Decision Date: 04 January 2006
• Docket Number: No. 04-15404.,04-15404.
• Parties: KOURTNEY COTTON, Plaintiff-Appellant, v. CRACKER BARREL OLD COUNTRY STORE, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

434 F.3d 1227

KOURTNEY COTTON, Plaintiff-Appellant, v. CRACKER BARREL OLD COUNTRY STORE, INC., Defendant-Appellee.

No. 04-15404.

United States Court of Appeals, Eleventh Circuit.

January 4, 2006.

Jerry D. Roberson, Roberson & Roberson, Birmingham, AL, for Plaintiff-Appellant.

Ashley Heron Hattaway, Jennifer M. Busby, Burr & Forman, LLP, Birmingham, AL, for Defendant-Appellee.

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

Before CARNES, HULL and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

Kourtney Cotton appeals the summary judgment entered in favor of Cracker Barrel Old Country Store, Inc., and against her complaint of sexual harassment and retaliation. Cotton raises two arguments on appeal: (1) the district court erroneously concluded that Cotton's claim of sexual harassment failed because Cracker Barrel did not take a "tangible employment action" against her and (2) the district court erroneously concluded that Cotton's claim of retaliation failed because Cracker Barrel did not take an "adverse employment action" against her. Because Cotton did not present sufficient evidence to prove a causal relationship between the actions of Cracker Barrel and either the incident of sexual harassment or the filing of her complaint, we affirm.

I. BACKGROUND

On October 17, 2002, Carl Walker, the general manager of a Cracker Barrel store located in Gardendale, Alabama, hired Cotton to work as a part-time cashier and retail associate. Walker advised Cotton that she was being hired primarily for seasonal work and should expect her hours to decrease after the Christmas holidays. On November 4, 2002, Walker, while alone with Cotton in the stockroom of the store, "pulled [Cotton] towards him and kissed [her] on the mouth and continued to open his mouth and stick his tongue down [Cotton's] throat." Cotton said "no" and pushed Walker away. Cotton reported the incident to Kay Popee, the retail manager of the Gardendale store, and contacted the Cracker Barrel employee hotline. When filing her complaint with the hotline, Cotton stated that Walker had also asked her to go to a movie with him the day before the incident in the stockroom. Cotton's complaint of sexual harassment led to an investigation of Walker's conduct. As a result of this investigation, Walker was disciplined with a written reprimand and a warning, and Popee arranged the work schedule to avoid contact between Walker and Cotton.

Cotton's mother, Pam Cotton, testified to other incidents involving Walker, all of which occurred before the incident in the stockroom, but none of which was reported to Cotton's supervisors or the Cracker Barrel hotline. Pam Cotton testified that, before Cotton was asked to interview for a position at Cracker Barrel, Walker had given Kourtney and her mother free food at the restaurant, put his hand on Pam Cotton's leg, and invited Pam Cotton to spend a weekend with him in Gulf Shores. Pam Cotton stated that, when Walker asked Cotton to interview for a position at Cracker Barrel, he said to Kourtney "make sure you wear something sexy to the interview." Cotton's mother stated that just before the interview Walker "jokingly said . . . [Kourtney Cotton] can get all the hours she wants if [Pam Cotton] [went] out with [Walker], and stuff like that." Pam Cotton also testified that, before the incident in the stockroom, Walker invited her to a Cracker Barrel storage building and promised to give her "anything [she] wanted out of there."

Cotton continued to work in the Cracker Barrel store between 20 and 40 hours a week, but she testified that "[she] wasn't treated the same by anybody." First, Cotton stated that Walker orally reprimanded her for using a work phone for personal reasons, but Cotton admitted that this reprimand was consistent with Cracker Barrel policy. Second, Cotton testified that Popee refused to allow her to sit on a stool while working, but Popee testified that she did not allow any employee to use a stool while working. Third, Cotton argued that Popee failed to complete the scheduled performance evaluation that was due 30 days after Cotton's hiring date, but Popee testified that the date for Cotton's evaluation fell during the holiday season and she was "really, really [busy] through Christmas." When an investigator from Cracker Barrel held a meeting with Cotton to follow-up on her complaint, Cotton mentioned only the first of these incidents and admitted that "everybody had been fine and that [she] hadn't had any more events." Cotton also admitted that "[Walker] never came around [her] much . . . [and] [Popee] had made the schedule a little bit better so [she] wouldn't be there as much with him."

Following the incident in the stockroom, Cotton's work hours initially increased. Cotton was scheduled to work 34.5 hours during the November 22, 2002, pay period; 31 hours during the November 29, 2002, pay period; 31 hours during the December 6, 2002, pay period; 39 hours during the December 13, 2002, pay period; and 37 hours during the December 20, 2002, pay period. On December 9, 2002, while Cotton's hours were increasing, Cracker Barrel hired an additional full-time cashier.

Beginning with the pay period that ended on December 27, 2002, Cotton's hours decreased. She was scheduled to work 23 hours during the December 27, 2002, pay period; 14 hours during the January 3, 2003, pay period; 14.25 hours during the January 10, 2003, pay period; 7 hours during the January 17, 2003, pay period; and 13 hours during the January 24, 2003, pay period. Cracker Barrel's only other part-time employee experienced a similar reduction in scheduled hours: from 37.25 hours during each of the December 13 and December 20, 2002, pay periods to 0 hours during the December 27, 2002, pay period; 14 hours during the January 3, 2003, pay period; 0 hours during the January 10, 2003, pay period; 8 hours in the January 17, 2003, pay period; and 14.25 hours in the January 24, 2003, pay period.

Cotton admits responsibility for some of the reduction in her hours of work. Cotton requested time off on December 24 and 31, 2002, and January 11, 2003, and she was absent, for medical reasons, from her scheduled shift on December 26, 2002, and another shift during the week of January 10, 2003. Cotton requested to work additional shifts, but Popee told her none were available. On January 22, 2003, Cotton informed Popee that she had found another job.

In October 2003, Cotton filed a complaint of discrimination under Title VII of the Civil Rights Act of 1964. See 42 U.S.C. §§ 2000e-2000e-17. Cotton's amended complaint alleged sexual harassment and retaliation as well as state law claims of assault, battery, and negligent and wanton hiring, supervision, and retention. Cracker Barrel moved for summary judgment. Cracker Barrel argued that her claim of sexual harassment failed because Cotton's evidence had not established that Cotton's reduction in hours was caused by the incident of harassment. Cracker Barrel argued that Cotton's retaliation claim also failed because her evidence had not established an "adverse employment action" caused by her complaint of harassment. The district court granted the motion for summary judgment as to Cotton's claims under Title VII and declined to exercise supplemental jurisdiction over her state law claims.

II. STANDARD OF REVIEW

This Court reviews de novo the grant of a motion for summary judgment. Rojas v. Florida, 285 F.3d 1339, 1341 (11th Cir.2002). Summary judgment is appropriate "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." Fed.R.Civ.P. 56(c). To survive a motion for summary judgment, the nonmoving party must demonstrate that there is a "genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

III. DISCUSSION

Cotton raises two issues on appeal. First, Cotton argues that the district court erred in concluding that the harassment did not result in a tangible employment action. Second, Cotton argues that the district court erred in concluding that there was no evidence that her complaint of harassment caused Cracker Barrel to take an adverse employment action against her. We address each argument in turn.

A. Whether the Incident of Harassment Resulted in a Tangible Employment Action?

Title VII of the Civil Rights Act makes it an "unlawful employment practice" for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . ." 42 U.S.C. § 2000e-2(a)(1). To establish sexual harassment under Title VII, an employee must prove "(1) that she belongs to a protected group; (2) that she has been subjected to unwelcome sexual harassment; (3) that the harassment was based on her sex; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) that a basis for holding the employer liable exists." Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1244 (11th Cir.2004). In its motion for summary judgment, Cracker Barrel conceded the first three parts of this test and argued that Cotton failed to satisfy her burden of proving the last two requirements.

To prove sexual harassment in violation of Title VII, a plaintiff may rely on one of two theories. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753-54, 118 S.Ct. 2257, 2265, 141 L.Ed.2d 633 (1998). Under the first theory, the plaintiff must prove that the harassment culminated in a "tangible employment action" against...