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Ackel v. National Communications

August 1, 2003

LYNETTE ACKEL; CHARLOTTE GROSS; DEANNA DUGAN; KAREN MYERS, PLAINTIFFS-APPELLANTS,
v.
NATIONAL COMMUNICATIONS, INC.; GARY HARDESTY; BRUCE HAMILTON, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Western District of Louisiana

Before Davis, Cynthia Holcomb HALL*fn1 and Emilio M. Garza, Circuit Judges.

The opinion of the court was delivered by: Davis, Circuit Judge

PUBLISHED

Former employees of National Communications Inc., operator of KVHP Fox 29 ("Fox 29"), appeal the district court's summary judgment dismissal of their Title VII supervisor sexual harassment and retaliation claims. These claims arise out of an alleged pattern of sexual harassment by Gary Hardesty, the employer's former President and General Manager. Because the record at least creates a question of fact as to whether Hardesty was Fox 29's proxy so that his actions are imputed to the employer, we vacate the summary judgment rendered against three of the employees and affirm as to the fourth. We affirm the district court's grant of summary judgment in favor of National Communications on the plaintiffs' retaliation claims. We remand the case to the district court for further proceedings consistent with this opinion.

I.

At the time of the events giving rise to this litigation, plaintiffs Lynette Ackel, Charlotte Gross, Deanna Dugan and Karen Myers were employed at the main office of Fox 29, which is located in Lake Charles, Louisiana. Fox 29 is operated by defendant National Communications, Inc. Prior to his removal, defendant Gary Hardesty was the President and General Manager of Fox 29. He also served on the corporation's board of directors and owned two percent of its stock. Defendant Bruce Hamilton was the local sales manager at Fox 29 in Lake Charles and, following Hardesty's removal, became the General Manager.

The summary judgment record indicates that Hardesty had a history of making inappropriate advances towards female employees at Fox 29 and that his tendencies were well-known to Fox 29's managers. Ken Smith, a Vice President in Fox 29's Beaumont office, testified that, prior to the events at issue here, two female employees complained that Hardesty called them asking for dates. A third complained that Hardesty forcibly kissed her without her consent. There was also testimony that Dianna Thibodeaux, the designated manager for complaints under Fox 29's sexual harassment policy, requested that all new female employees be warned about Hardesty's "flirtatious" behavior.

Lynette Ackel began working at Fox 29 in June of 1994. Ackel testified that, after being hired, she was warned by her then-supervisor, Hamilton, not to be alone with Hardesty and to report any inappropriate behavior directly to Hamilton. Ackel also testified that, shortly thereafter, Hardesty embraced and forcibly kissed her without her consent. She complained to Hamilton with the result that a sexual harassment policy was instituted under which complaints were to be directed to the complainant's immediate supervisor or to Thibodeaux. Hardesty attributed the incident to a "misunderstanding," and no disciplinary action was taken against him. According to Ackel, Hardesty continued to subject her to unwelcome kissing, hugging and groping over the next four years. He instructed her not to tell anyone about his actions.

Although she did not report Hardesty's harassment to Thibodeaux, Ackel testified that she did respond affirmatively to inquiries from Hamilton, while he was her immediate supervisor and afterwards, as to whether Hardesty was still harassing her. She became emotional on each occasion, however, and did not provide details. Ackel testified that, at least once, Hamilton promised that he would "take care of it" but that no action was taken against Hardesty and the harassment continued. Ackel stated that she eventually stopped complaining because she felt nothing would be done. Ackel also testified that Hardesty intervened on her behalf when Hamilton threatened to fire her. After Ackel filed suit, she was reprimanded for receiving personal calls at work and for opening packages addressed to her supervisor, and she was not permitted to attend a convention that she had attended the previous year. In addition, Ackel's pay was changed from salaried to hourly, although she did not experience any decrease in overall compensation. Ackel resigned from Fox 29 in November of 1998.

Charlotte Gross began working at Fox 29 in April of 1997. She quickly became Thibodeaux's assistant, replacing Karen Myers. Shortly after moving into this position, Gross entered into a sexual relationship with Hardesty. Hardesty stated that he believed the relationship was consensual. Gross, however, testified that she acquiesced to Hardesty's advances only after she was unable to prevent him from forcing himself on her physically. She stated that she was scared of Hardesty and of losing her job. Gross also testified that she did not report Hardesty's actions because she was ashamed, because Hardesty instructed her not to, and because she did not believe that Thibodeaux or anyone else could do anything due to Hardesty's position at Fox 29. After Gross informed Thibodeaux that she needed to leave Fox 29 in order to obtain a higher paying job, she received two raises. According to Gross, Hardesty took credit for the initial raise, although Thibodeaux testified that final approval came from Fox 29's outside accountant and that she sought the raise on her own initiative because Gross was a good employee. Thibodeaux testified that she and Hamilton suspected that Hardesty was sexually involved with Gross but took no further action when Hardesty denied it.

Although Gross was familiar with Fox 29's sexual harassment policy, she did not file a complaint until January of 1998 when National Communications' board of directors learned of her relationship with Hardesty. Hardesty was immediately barred from the office, an investigation was conducted, and his employment with Fox 29 was ultimately terminated. Gross testified that, for a brief period of time following her complaint, her telephone was removed and she was not permitted to socialize without supervision. In addition, she stated that some of her work was taken away and then gradually restored, she frequently had to unlock the door to her office with a key, she was reprimanded for various reasons, and she received a poor evaluation. According to Gross, Hamilton suggested that, if she was not happy at Fox 29, she should find another job. Gross resigned from Fox 29 in November of 1998.

Deanna Dugan began working at Fox 29 in August of 1997. Dugan testified that Hardesty frequently subjected her to unwelcome sexual advances, including attempting to pull up her skirt, instructing her not to wear pantyhose, and twice trying to kiss her. Dugan stated that she was aware of Fox 29's sexual harassment policy but never complained to Hamilton or Thibodeaux because they were Hardesty's friends and subordinates. According to Gross, after Dugan informed her of Hardesty's actions, Gross decided to tell Hardesty that Dugan would file a complaint against him if he did not stop. Dugan testified that in November of 1997, shortly after being warned by Hamilton that her personal life was interfering with her work, Hamilton fired her for that reason in Hardesty's presence.

Karen Myers began working full-time at Fox 29 in June of 1991. After Gross replaced Myers as Thibodeaux's assistant, Myers was moved to another department. Myers repeatedly complained to Thibodeaux about the move and was informed that the changes were made because Gross was the better employee. Myers testified that she once asked Thibodeaux whether Hardesty was harassing Gross and Thibodeaux responded that she did not know. Myers was terminated in November of 1997, arguably for discussing Gross' salary with two other employees. The other employees were not discharged. Myers does not contend that she was ever sexually harassed by Hardesty.

II.

We review a grant of summary judgment de novo. Tango Transp. v. Healthcare Fin. Serv. LLC , 322 F.3d 888, 890 (5th Cir. 2003). "Summary judgment is appropriate only '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 a judgment as a matter of law.'" Id. (quoting FED. R. CIV. P. 56(c)). In determining whether there is a genuine issue for trial, "this court reviews the evidence in the light most favorable to the nonmoving party," Performance Autoplex II Limited. v. Mid-Continent Cas. Co. , 322 F.3d 847, 853 (5th Cir. 2003), and "will not weigh the evidence or evaluate the credibility of witnesses." Caboni v. Gen. Motors Corp. , 278 F.3d 448, 451 (5th Cir. 2002). "Summary judgment must be affirmed if it is sustainable on any legal ground in the record, . . . and it may be affirmed on grounds rejected or not stated by the district court." S&W Enters., LLC v. SouthTrust Bank of Ala., NA , 315 F.3d 533, 537-38 (5th Cir. 2003) (citation omitted).

III.

The employees brought supervisor sexual harassment claims against National Communications alleging that the corporation was liable for the conduct of its President, Hardesty.*fn2 The plaintiff in any Title VII sexual harassment case must, as an initial matter, establish that: (1) she belongs to a protected class; (2) she was subjected to unwelcome sexual harassment; and (3) the harassment was based on sex. Watts v. Kroger Co. , 170 F.3d 505, 509 (5th Cir. 1999); see also La Day v. Catalyst Tech., Inc. , 302 F.3d 474, 478 (5th Cir. 2002) ("[I]t is important to note that judicial inquiry into the question whether a given instance of harassment constitutes sex-based discrimination is entirely separate from inquiry into whether the harasser's conduct was serious enough to constitute either quid pro quo or hostile environment harassment."). With the exception of Myers, it is undisputed that the plaintiffs have satisfied these preliminary requirements for summary judgment purposes.

A.

Although Myers does not allege that she was ever harassed by Hardesty, she nevertheless contends that she should survive summary judgment on her sexual harassment claim because she was removed as Thibodeaux's assistant as a result of Hardesty's favoritism for Gross and then was terminated for complaining about that favoritism. As we noted in Green v. Administrators of the Tulane Educational Fund , 284 F.3d 642, 656 n.6 (5th Cir. 2002), however, "courts have held that when an employer discriminates in favor of a paramour, such an action is not sex-based discrimination, as the favoritism, while unfair, disadvantages both sexes alike for reasons other than gender." Here, any discrimination suffered by Myers with respect to her transfer was based not on her gender but instead on the fact that she happened to occupy a position in which Hardesty allegedly wished to place Gross. ...


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