Webb v. Cardiothoracic Surgery Associates of North Texas, P.A.

• Decision Date: 30 April 1998
• Docket Number: No. 96-11568,96-11568
• Parties: 76 Fair Empl.Prac.Cas. (BNA) 1598, 73 Empl. Prac. Dec. P 45,392 Karen WEBB, Plaintiff-Appellant, v. CARDIOTHORACIC SURGERY ASSOCIATES OF NORTH TEXAS, P.A.; Michael Mack, M.D., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 532

139 F.3d 532

76 Fair Empl.Prac.Cas. (BNA) 1598,

73 Empl. Prac. Dec. P 45,392

Karen WEBB, Plaintiff-Appellant, v. CARDIOTHORACIC SURGERY ASSOCIATES OF NORTH TEXAS, P.A. Michael Mack, M.D., Defendants-Appellees.

No. 96-11568.

United States Court of Appeals Fifth Circuit.

April 30, 1998.

Sharon M. Easley, Easley & Amis, Plano, TX, for Webb.

Steven R. McCown, Tracy Bailey Brightman, Littler Mendelson, Dallas, TX, for Defendants-Appellees.

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

Before DAVIS, WIENER and PARKER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Karen Webb appeals the district court's grant of summary judgment to Defendants, Cardiothoracic Surgery Associates of North Texas, P.A. and Dr. Michael Mack, dismissing her claims of sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. We affirm.

I.

Karen Webb began working for Cardiothoracic Surgery Associates of North Texas, P.A. ("CSANT") as an insurance clerk in April of 1986. Webb worked in the Dallas area at the Medical City facility. After approximately one year, CSANT gave her a new position scheduling surgery for the physicians, one of whom was Dr. Michael Mack. She worked in this position for approximately four years until the spring of 1991, at which time she began working as Mack's secretary.

Webb worked for Mack exclusively until late 1992 when she took on the additional duties of Office Manager at the Medical City facility. In the fall of 1993, CSANT determined that Webb's dual roles were too much for one person and asked her to choose one position. She elected to take the office manager position. Webb contends that she chose the office manager position in an effort to reduce her contact with Mack.

Webb alleges that Mack began sexually harassing her in the spring of 1991, when she began working as his secretary. She asserts that Mack continued this conduct until January of 1995, when she told Lori Swalm, CSANT's Director of Human Resources, about Mack's behavior. Mack's offensive conduct included touching Webb on the shoulder when he spoke to her and standing so close to her that he would rub against her shoulder. Webb admits, however, that she initially did not consider this "touching" to be intentionally offensive or sexual in nature.

In January of 1993, both Webb and Mack, together with other CSANT personnel, attended a business meeting in San Antonio. According to Webb, late one evening at a bar Mack approached her, hugged her, and whispered his hotel room number into her ear several times. Mack allegedly asked Webb to meet him there. Later, after everyone had left the bar and returned to the hotel, Mack telephoned Webb in her room and asked why she had not come to his room. Webb then promised Mack that she would indeed come to his room. However, she never went to Mack's room. Neither Mack nor Webb ever discussed anything related to this incident again. Nor did Webb complain about this incident; rather, she remained silent in the hope that by ignoring "it," the situation would "go away."

In February of 1993, Mack called Webb into his office. According to Webb, Mack asked her to close the door to the office and to sit on his side of the desk. Webb complied with this request. Mack then discussed several problems that he was having related to CSANT and conveyed to Webb that he was "feeling down." Apparently in an attempt to empathize with Mack, Webb then told him about her pending separation from her husband. After discussing issues relating to Webb's personal finances, Mack asked Webb about her home mortgage. Webb told Mack that she would probably have to refinance her mortgage because of the separation. Mack responded by telling Webb not to worry about money because he would give her money without anyone else knowing. Webb then stood to leave, at which time Mack thanked her for listening and allegedly placed his hand on her leg and touched the inside of her thigh under her skirt.

Before January of 1995, Webb had not complained to any CSANT personnel regarding Mack's behavior. Almost two years after the incidents in January and February of 1993, Lori Swalm asked Webb to "fill in" temporarily as Mack's secretary. Webb declined this request and proceeded to tell Swalm about the San Antonio incident in partial explanation for why she did not want to have close contact with Mack. Webb concedes that Swalm was very sympathetic to her complaint and did not insist that Webb work closely with Mack. After this conversation, Swalm instituted a specific sexual harassment policy for CSANT and the CSANT doctors participated in some training about sexual harassment. ¹ Webb also concedes that Mack's offensive touching ceased after her conversation with Swalm.

As office manager, Webb continued to have some contact with Mack and, according to Webb, that relationship did not improve. Webb alleges that Mack was rude to her both in person and on the telephone and belittled her in front of patients and coemployees. In April of 1995, Mack confronted Webb outside an examining room, where, according to Webb, he spoke to her in a very demeaning and belittling tone and threw a magazine at the floor in front of her. Apparently, this was in response to Mack's frustrations over repeated requests that magazines not be put on his desk. Shortly after this incident, Webb called the office and reported that she was sick. On the advice of her attorney, she never returned to work. CSANT placed Webb on a leave of absence while it investigated her complaint.

After concluding its investigation, CSANT offered to move Webb to a comparable position in its Plano office. CSANT also offered to have all of Mack's patients report to another location so that Mack would never be required to visit the Plano office. For a variety of reasons, Webb declined the offer. ² Webb formally resigned effective June 30, 1995 and promptly filed her charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Texas Commission on Human Rights ("TCHR") on July 17, 1995. After obtaining a notice of right to sue from the EEOC, Webb filed suit against CSANT and Dr. Michael Mack, alleging that she was subjected to sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. Webb also asserted a claim under Texas law for intentional infliction of emotional distress. Following discovery, the Defendants filed a Motion for Summary Judgment, which the district court granted, resulting in the dismissal of Webb's suit. This appeal followed.

II.

A.

The standard of review following the grant or denial of summary judgment is de novo. Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir.1997). The moving party bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Summary judgment is proper if the evidence shows the existence of no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). While we consider the evidence with all reasonable inferences in the light most favorable to the nonmovant, Coleman, 113 F.3d at 533, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). This requires the nonmoving party to do "more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586, 106 S.Ct. at 1356. The nonmoving party must "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.' " Celotex Corp., 477 U.S. at 324, 106 S. Ct at 2553. If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Szabo v. Errisson, 68 F.3d 940, 942 (5th Cir.1995).

B.

In granting summary judgment for the Defendants, the district court reasoned that: (1) Dr. Mack could not be held individually liable because he did not qualify as an "employer" under Title VII; (2) the incidents in January and February of 1993 were time barred; (3) CSANT took prompt remedial action as a matter of law with respect to Webb's claims of sexual harassment; (4) Webb failed to show a causal connection between her complaints of and opposition to Mack's conduct and any adverse employment action so as to establish retaliation; and (5) Mack's conduct did not rise to the level of "outrageous conduct" in order to state a claim under Texas law for intentional infliction of emotional distress. We consider below Webb's arguments challenging the correctness of the district court's ruling. ³

C.

Initially, Webb challenges the district court's conclusion that the incidents in January and February of 1993 were time-barred. Webb argues that the district court erred when it found that these incidents were discrete acts of discrimination which triggered the start of the relevant limitations period. Webb contends that these incidents were part of a continuing violation and should not have been considered time-barred.

A Title VII plaintiff must file a charge of discrimination with the EEOC within 180 days "after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1); see also Berry v. Board of Supervisors of L.S.U., 715 F.2d 971 (5th Cir.1983). However, if the plaintiff has "instituted proceedings with a State [sic] or local agency with authority to grant or seek relief from such...