Lauderdale v. Texas Dept. of Criminal Justice

• Decision Date: 21 December 2007
• Docket Number: No. 06-41636.,06-41636.
• Citation: 512 F.3d 157
• Parties: Debra LAUDERDALE, Plaintiff-Appellant, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; Rodrick D. Arthur, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

512 F.3d 157

Debra LAUDERDALE, Plaintiff-Appellant, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; Rodrick D. Arthur, Defendants-Appellees.

No. 06-41636.

United States Court of Appeals, Fifth Circuit.

December 21, 2007.

Curtis B. Stuckey (argued), Stuckey, Garrigan & Castetter, Nacogdoches, TX, for Lauderdale.

Phillip E. Marrus, Asst. Atty. Gen. (argued), Adrienne R. Butcher, Austin, TX, for Tex. Dept. of Crim. Justice.

Lara M. Johnson (argued), Austin, TX, for Arthur.

Appeals from the United States District Court for the Eastern District of Texas.

Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Debra Lauderdale alleges she was sexually harassed by her ultimate supervisor, Rodrick Arthur, over the period of almost four months during which she worked as a correctional officer for the Texas Department of Criminal Justice ("TDCJ"). Lauderdale sued the TDCJ under title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and sued Arthur under 42 U.S.C. § 1983. The district court granted summary judgment for both defendants. We affirm in part, reverse in part, and remand.

I.

Lauderdale began her employment with the TDCJ on June 3, 2004. After five weeks of TDCJ academy training, she was assigned as a correctional officer to the Coffield Unit. Her first two weeks consisted of on-the-job training in various areas of the unit, during which time she met Arthur. Upon completion of Lauderdale's training, Arthur, as acting warden on the night shift, became her ultimate supervisor.

In late July, shortly after Lauderdale completed her on-the-job training, Arthur began to pursue a relationship with her. According to Lauderdale, Arthur would call her multiple times at her duty station during the night shift. During one of the first phone conversations, he asked her to get coffee with him after the shift ended. After this first evening of phone calls, Lauderdale told Sergeant Kroll, her immediate supervisor, that Arthur had been telephoning her. Kroll told Lauderdale she could speak to the warden about the calls but that she should not mention Kroll's name.

The calls and requests to go out after the night shift continued and, though they varied in frequency, eventually reached an average of ten to fifteen calls during a shift. During one call, Arthur asked Lauderdale whether she was married; she lied and told him she was, to which Arthur responded that his heart was broken and he might hang himself. At other times, Arthur told Lauderdale she was beautiful and that he loved her.

On another occasion, Arthur called Lauderdale and, during the course of the discussion, asked her what she enjoyed doing. She told him she enjoyed gambling. Arthur suggested that the two of them could go to Las Vegas and "snuggle;" Lauderdale said "No." Other topics of conversation during the phone calls included Arthur's family and horses. On one occasion, he called and Lauderdale explained that she was upset that, for some reason, she was not going to rotate according to the schedule.

In August, after Lauderdale began working in another building at the unit, Arthur called and told her he missed her, then showed up at the building in which she was working. He would also invite her to sit with him in the warden's office during her breaks; she refused those invitations. After a break one evening in mid-October, as she returned to her duty station, Lauderdale passed Arthur in the hall by the "searcher's desk." Arthur grabbed her handcuff case, which she wore in the middle of her back on her belt, and pulled her to himself. Her lower back touched his stomach before she jerked away from him.

Finally, on October 25, Arthur sent for Lauderdale, presumably ordering her to report to him. She believed he had no legitimate reason to see her, and she refused to report to him. After this incident, she did not return to work. Before her next shift she telephoned a supervisor and indicated she would not be at work that day; she did not, however, indicate that she no longer intended to work for the TDCJ. After receiving a letter from Human Resources indicating that she would not receive her last pay check until she turned in her uniforms, Lauderdale returned to the unit on December 3 and officially resigned and indicated "Dissatisfaction with supervisors or coworkers" as the reason. She then spoke with Assistant Warden Sizemore and filed a formal EEO complaint against Arthur for sexual harassment.

The TDCJ investigated Lauderdale's allegations and found sufficient evidence to deem Arthur guilty of "Discourteous Conduct of a Sexual Nature." This determination resulted in a four-day suspension without pay and a nine-month probation. Arthur ultimately resigned at some point following the investigation.

Lauderdale does not allege that any adverse employment actions were taken against her; she concedes that she was able to perform her duties fully despite Arthur's harassment. She also acknowledges she received and read a copy of the various policies covering sexual harassment and watched a training video on the subject. Save for her discussion with Kroll in late July, Lauderdale admits that she never complained to anyone else who was in her chain of command or was identified in the TDCJ sexual harassment policy. She contends that she did not complain to anyone other than Kroll because she feared retaliation.

II.

"This Court reviews grants of summary judgment de novo, applying the same standard as does a district court, viewing the evidence in a light most favorable to the non-movant." Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558, 560 (5th Cir.2003) (citations omitted). We apply that standard of review now.

A.

The district court granted the TDCJ's motion for summary judgment because it held that, as a matter of law, Arthur's behavior was neither severe nor pervasive and, therefore, did not create a hostile work environment. We disagree.

Under title VII, it is illegal "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 ... sex." 42 U.S.C. § 2000e-2(a)(1). This text prohibits sexual harassment that takes the form of a tangible employment action, such as a demotion or denial of promotion, or the creation of a hostile or abusive working environment. Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (citing Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). Here, there is no allegation of a tangible employment action.

The only issue is whether Arthur's behavior created a hostile or abusive working environment. Where the claim of harassment is against a supervisor, there are four elements of a hostile working environment claim: (1) that the employee belongs to a protected class; (2) that the employee was subject to unwelcome sexual harassment; (3) that the harassment was based on sex; and (4) that the harassment affected a "term, condition, or privilege" of employment. Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir.1999).

As a woman, Lauderdale satisfies the first element; the second and third elements are satisfied by the TDCJ's finding that Arthur had engaged in "Discourteous Conduct of a Sexual Nature." To satisfy the fourth element, however, the harassment "must be sufficiently severe or pervasive `to alter the conditions of [the victim's] employment and create an abusive working environment.'" Meritor, 477 U.S. at 67, 106 S.Ct. 2399 (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.1982)). The environment must be deemed "both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Faragher, 524 U.S. at 787, 118 S.Ct. 2275 (citing Harris, 510 U.S. at 21-22, 114 S.Ct. 367).

In determining whether an environment is hostile or abusive, the court must look to the totality of the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; ... whether it unreasonably interferes with an employee's work performance," Harris, 510 U.S. at 23, 114 S.Ct. 367, and "whether the complained of conduct undermined the plaintiff's workplace competence," Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 270 (5th Cir.1998). Title VII, however, is not a "`general civility code,'" and "`simple teasing,' offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the `terms and conditions of employment.'" Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (citations omitted).

Although the district court correctly noted that none of the incidents of alleged harassment rises to the level of severity we have required,¹ the test — whether the harassment is severe or pervasive—is stated in the disjunctive. An egregious, yet isolated, incident can alter the terms, conditions, or privileges of employment and satisfy the fourth element necessary to constitute a hostile work environment. Harvill v. Westward Commc'ns, LLC, 433 F.3d 428, 434-35 (5th Cir.2005). The inverse is also true: Frequent incidents of harassment, though not severe, can reach the level of "pervasive," thereby altering the terms, conditions, or privileges of employment such that a hostile work environment exists. Thus, "the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct." Ellison v. Brady, 924 F.2d 872, 878 (9th Cir.1991).

Viewing Lauderdale's allegations in the most favorable light, as we must, Arthur's behavior was pervasive. Lauderdale alleges...