Mire v. Texas Plumbing Supply Co., Inc.
| Citation | 508 F.Supp.2d 556 |
| Decision Date | 29 August 2007 |
| Docket Number | C.A. No. H-06-0612. |
| Parties | Robin MIRE, Plaintiff, v. TEXAS PLUMBING SUPPLY CO., INC., Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Stephen J. Schechter, Attorney at Law, Seabrook, TX, for Plaintiff.
Michael J. Hengst, Hengst & Henderson, Houston, TX, for Defendant.
Pending before the Court in the above referenced cause, alleging co-worker sexual harassment in a hostile work environment and retaliation, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., and of the Texas Commission on Human Rights Act, Texas Labor Code §§ 21.051 and 21.055,1 is Defendant Texas Plumbing Supply Company, Inc.'s ("TPS's") motion for summary judgment (instrument # 12).
After reviewing the record, this Court concludes that summary judgment as a matter of law should be granted to Defendant, but not for the reasons argued by TPS. Instead the Court concludes that Plaintiff fails to state and prove claims of severe and pervasive sexual harassment in a hostile work environment and of retaliation.
Standard of Review under Rule 56(c)
Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, 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); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A dispute of material fact is "genuine" if the evidence would allow a reasonable jury to find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Initially the summary judgment movant, if it is the party that does not bear the burden of proof at trial, bears the burden of identifying those portions of the pleadings and discovery in the record that it finds demonstrate the absence of a genuine issue of material fact for trial; the movant may, but is not required to, negate elements of the nonmovant's case to prevail on summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106. S.Ct. 2548, 91 L.Ed.2d 265 (1986); Lujan v. National Wildlife Federation, 497 U.S. 871, 885, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir.1998).
If the movant meets this burden, the nonmovant must then present competent summary judgment evidence to support the essential elements of its claim and to demonstrate that there is a genuine issue of material fact for trial. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d 698, 712 (5th Cir. 1994). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment ....'" State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Nor is the `mere scintilla of evidence' sufficient; `there must be evidence on which the jury could reasonably find for the plaintiff." Id., quoting Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505. The Fifth Circuit requires the nonmovant to submit "`significant probative evidence." Id., quoting In re Municipal Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5th Cir.1982), and citing Fischbach & Moore, Inc. v. Cajun Electric Power Co-op., 799 F.2d 194, 197 (5th Cir. 1986); National Ass'n of Gov't Employees v. City Pub. Serv. Bowl, 40 F.3d at 713. Conclusory statements are not competent evidence to defeat summary judgment. Turner, 476 F.3d at 346-47 (), citing Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.1992). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir.1999), citing Celotex, 477 U.S. at 322, 106 S.Ct. 2548, and Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505.2 The court must consider all evidence and draw all inferences from the factual record in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d at 712-13.
Section 703(a) of Title VII prohibits employment discrimination against "any individual" based on that individual's "race, color, religion, sex, or national origin." 42 U.S.C. 2000e-2(a)(1); Burlington Northern & Santa Fe Railway Co. v. White, ___ U.S. ___, ___, 126 S.Ct. 2405, 2408, 165 L.Ed.2d 345 (2006). For an actionable claim of sexual harassment by a co-employee (not a supervisor) in the workplace, a plaintiff must show (1) that she belongs to a class protected under the statute; (2) that she was subjected to unwelcome harassment based on sex; (3) that the harassment was based on sex; (4) that the harassment affected a "term, condition or privilege of employment"; and (5) that the employer either knew or should have known of the harassment and failed to take prompt remedial action. DeAngelis v. El Paso Municipal Police Officers Assoc., 51 F.3d 591, 593 (5th Cir.1995), cert. denied, 516 U.S. 974, 116 S.Ct. 473, 133 L.Ed.2d 403 (1995); Septimus v. University of Houston, 399 F.3d 601, 611 (5th Cir.2005); EEOC v. WC&M Enterprises, Inc., 496 F.3d 393, 399-400 (5th Cir2007). The conduct must be both subjectively and objectively offensive. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Faragher v. City of Boca, Raton, 524 U.S. 775, 787, 118. S.Ct. 2275, 141 L.Ed.2d 662 (1998); EEOC v. WC&M Enterprises, Inc., 496 F.3d at 399-400 (). As opined by the Fifth Circuit,
A hostile work environment claim embodies a series of criteria that express extremely insensitive conduct against women, conduct so egregious as to alter the conditions of employment and destroy their equal opportunity in the workplace. Any lesser standard of liability, couched in terms of conduct that sporadically wounds or offends but does not hinder a female employee's performance, would not serve the goal of equality.
DeAngelis, 51 F.3d at 593. Thus the court measures Plaintiff's claim by the criteria for a hostile work environment: "(1) Sexually discriminatory intimidation, ridicule and insults, which are (2) sufficiently severe or pervasive that they (3) alter the conditions of employment and (4) create an abusive working environment." Id. at 594, citing Harris v. Forklift, 510 U.S. at 21, 114 S.Ct. 367.
"[S]exually discriminatory verbal intimidation, ridicule and insults may be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment that violates Title VII." DeAngelis, 51 F.3d at 593, citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), and Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Nevertheless, as the United States Supreme Court noted,
As we pointed out in Meritor, "mere utterance of an epithet which engenders offensive feelings in a [sic] employee," ibid. (internal quotation marks omitted) does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or persuasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VIPs purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation.
Harris, 510 U.S. at 21-22, 114 S.Ct. 367. "[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory charges' that can survive summary judgment." Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 348 (5th Cir.2007), quoting Hockman v. Westward Communications, LLC, 407 F.3d 317, 328 (5th Cir.2004).
To determine whether an environment is "hostile" or "abusive," courts apply a totality-of-the-circumstances test, considering such factors as the frequency of the harassing conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes with the employee's work performance.3 Id.; Harvill v. Westward Communications, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005); EEOC v. WC&M Enterprises, Inc., 496 F.3d at 399-400 (). While psychological harm is a factor to be taken into account, it is not necessarily determinative. Harris v. Forklift, 510 U.S. at 23, 24, 114 S.Ct. 367. Nor is the fact that an employee's work performance suffered, alone, dispositive. EEOC v. WC&M Enterprises, Inc., 496 F.3d at 399-400. The Supreme Court noted that "'even without regard to ... tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII's broad rule of workplace equality." EEOC v....
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