Watts v. Kroger Co.

• Decision Date: 17 March 1999
• Docket Number: No. 97-60077,97-60077
• Citation: 170 F.3d 505
• Parties: Carolyn S. WATTS, Plaintiff-Appellant, v. The KROGER COMPANY; Arthur Bullington, Defendants, The Kroger Company, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 505

170 F.3d 505

43 Fed.R.Serv.3d 661

Carolyn S. WATTS, Plaintiff-Appellant, v. The KROGER COMPANY; Arthur Bullington, Defendants The Kroger Company, Defendant-Appellee.

No. 97-60077.

United States Court of Appeals Fifth Circuit.

March 17, 1999.

Jim D. Waide, III, Victor Israel Fleitas, Waide, Chandler & Fleitas, Grant Moncrief Fox, Fox & Fox, Tupelo, MS, for Plaintiff-Appellant.

William T. Siler, Jr., Aubry Matt Pesnell, Phelps Dunbar, Jackson, MS, for Defendant-Appellant.

Barbara L. Sloan, Washington, DC, for Equal Employment Opportunity Commission, Amicus Curiae.

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

Before HIGGINBOTHAM and STEWART, Circuit Judges, and WALTER, ^* District Judge.

ON REHEARING

STEWART, Circuit Judge:

Since the panel opinion was issued in this case, see Watts v. Kroger, 147 F.3d 460 (5th Cir.1998) (5th Cir.1998), the Supreme Court handed down opinions in Burlington Ind. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Counsel for all parties submitted supplemental briefing on the impact of the Supreme Court opinions on this case. Because the Supreme Court's decisions affect the reasoning and partially affect the result in this case, we sua sponte withdraw our prior opinion and substitute the following.

Plaintiff Carolyn Watts filed suit in district court alleging sexual harassment and retaliation against defendants Kroger and Arthur Bullington, her supervisor, individually. On appeal, Watts challenges the district court's grant of the Kroger Co.'s ("Kroger's") Motion for Summary Judgment as well as its partial grant of Kroger's Motion to Strike. We AFFIRM in part and REVERSE in part.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Carolyn Watts began her employment with the Kroger Co. ("Kroger") in February 1990 as a part-time employee in the flower shop of the company's Southaven, Mississippi grocery store. Sometime thereafter, she moved to the produce department where she continued to work on a part-time basis. Beginning in March 1994, Watts began working as a full-time produce clerk. Watts' supervisors in the produce department were John Moore, Glen Rice, and Arthur Bullington, respectively.

Watts claims that upon Bullington's arrival at the store in 1993, he subjected her to "an invidious campaign of sexual harassment." Specifically, Watts alleges that Bullington made inappropriate jokes both to and about her, continually made sexual innuendos to her, and that he once grabbed her buttocks as well as touched her in other ways on several other occasions.

Watts insists that Bullington's harassment intensified in the spring of 1994. She claims In response to the increased harassment, Watts met with Kroger Store Manager Ricky Hayles to complain about Bullington on July 7, 1994. Watts was crying and was otherwise visibly upset during the meeting. She told Hayles that Bullington was making comments about her personal life and that she wanted the conduct stopped. Hayles allegedly spoke to Bullington that same day and told him to stop. Kroger claims that after this meeting, Bullington never again made any sexual comments to Watts and that Watts was never again subjected to any sexual advances.

                that Bullington began following her through the store calling her a "homewrecker" and saying that she was "homeless" in front of other employees, vendors and customers. 1  Bullington admits to making such comments
                

Watts claims that though Hayles spoke to Bullington, Hayles did not notify the Human Resources Department about the situation. Watts suggests that within a week of her complaint to Hayles about Bullington, her work schedule was altered. She and Bullington had arranged her schedule to allow Watts to work a second job at Federal Express. Watts claims that her schedule was altered to such an extent that she was forced to give up her position at Federal Express.

On July 19, 1994, Watts filed a union grievance alleging sexual harassment. She insists that the store manager was immediately provided a copy of the grievance and understood that human resources would have known about her allegations. Still, Humbles claims not to remember whether he was notified of the grievance promptly. He appears not to have begun an investigation into such matter until at least September 1994. Kroger investigated the complaint, but determined that Watts had not substantiated her claim of sexual harassment. Despite this finding, Kroger verbally reprimanded defendant Bullington and offered to transfer him or Watts to another store. Kroger also offered to transfer the plaintiff to another department within the Southaven store. Watts filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on November 2, 1994 alleging that Bullington sexually harassed her by subjecting her to a hostile work environment. In addition, she claimed Bullington and Kroger management retaliated against her in violation of Title VII. Watts then filed suit in federal court making those same allegations along with claims under state law.

II. KROGER'S MOTION TO STRIKE

We first address Watts' challenge that the district court erred in granting Kroger's Motion to Strike several unsworn statements submitted by Watts. Watts attached to her Motion in Opposition to Summary Judgment several handwritten statements that she had collected from her co-workers. The statements were signed, but were not sworn, notarized, or in the form of affidavits. The district court held that the statements were not competent summary judgment evidence for the purposes of FED.R.CIV.P. 56(e), and that the statements did not comply with federal requirements for unsworn declarations.

The district court relied on the decision in Duplantis v. Shell Offshore, Inc., 948 F.2d 187 (5th Cir.1991) to reject the statements Watts presented. In Duplantis, this court noted "that a plaintiff must respond to an adequate motion for summary judgment with admissible evidence." Id. at 191. Watts argues that if the touchstone for consideration is the ultimate admissibility of the evidence, the district court erred by not considering the statements at all. Offering no support from the Federal Rules of Evidence or relevant case law, she suggests that the documents were authenticated through her affidavit and properly relate admissions made by Bullington and others. She further argues that to ignore such evidence would amount to a "grave injustice" on the part of this court.

This court reviews the district court's decision to strike lay opinion testimony under an abuse of discretion standard. Pedraza v. Jones, 71 F.3d 194, 197 (5th Cir.1995). We hold that the district court did not abuse its discretion in striking the statements. Because the statements were unsworn and were not presented to the court in a form required by Rule 56 we cannot say that the district court acted outside of its boundaries. Though Watts' argument that such a conclusion elevates form over substance may be intellectually compelling, it is of no practical merit to this court. Rule 56 clearly prescribes the manner in which such documents must be presented to the court. Without support for her argument that the statements are nonetheless admissible, we find Watts' contention groundless.

III. SEXUAL HARASSMENT CLAIM ²

Since the district court granted Kroger's motion for summary judgment, the Supreme Court handed down Burlington Ind. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). We conclude that the Supreme Court's decisions require us to reverse the district court's disposition of Watts' sexual harassment claim.

When confronted with a sexual harassment claim alleging hostile work environment, we previously utilized the following five-factor test to determine if the plaintiff had established a viable cause of action:

(1) The employee belongs to a protected group;

(2) The employee was subject to unwelcome sexual harassment;

(3) The harassment complained of was based upon sex;

(4) The harassment complained of affected a "term, condition or privilege of employment," i.e., the sexual harassment must be sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment; and

(5) Respondent superior, i.e., that the employer knew or should have known of the harassment in question and failed to take prompt remedial action.

Jones v. Flagship International, 793 F.2d 714, 719-720 (5th Cir.1986). With the release of Burlington and Faragher, however, this test is modified so that employees bringing a Title VII sexual harassment case alleging that a supervisor with immediate (or successively higher) authority over the employee harassed the employee need only satisfy the first four elements of the test outlined above. ³ Once the plaintiff employee makes this showing, an "employer is subject to vicarious liability to a victimized employee." Faragher, 524 U.S. 775, 118 S.Ct. at 2292-93.

In response to this cause of action, the employer can raise an affirmative defense to liability or damages, so long as it can establish that the supervisor's harassment did not culminate in a "tangible employment action" against the employee. Faragher, 524 U.S. 775, 118 S.Ct. at 2293. If there was a tangible employment action, the employer is not entitled to attempt to raise the affirmative defense. See id. Alternatively, "[w]hen no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence." Id. That affirmative defense consists of two prongs, both of which the employer must fulfill: "(a) that the employer exercised reasonable The district court granted summary judgment on Watts' sexual...