The opinion of the court was delivered by: Sharion Aycock United States District Judge
Before the Court is Defendant's Motion for Summary Judgment  and Plaintiff's Motion for Leave to File a Sur-Rebuttal . After reviewing the motion, rules, and authorities, the Court finds as follows:
Plaintiff, a forty-three year old African American female, was initially hired as a salesperson at Premier Ford Lincoln Mercury, Incorporated ("Premier Ford") on July 9, 2005. Plaintiff was hired by Premier Ford's Used Car Sales Manager Joe Bryan. Plaintiff voluntarily resigned from her employment at Premier Ford on July 13, 2007. Plaintiff told Bryan that the reason she was leaving was because she thought she could do better at Carl Hogan Honda since Cecil Hill, Premier Ford's Finance Manager, refused to provide her with the necessary support to secure financing for her car deals. Plaintiff contends that, before she resigned, she and another salesperson, Debbie Griffin, went and talked with Chris Keene, Premier Ford's General Manager, about how Hill handled their deals and the language Hill used when speaking to them.
After working at Carl Hogan Honda for approximately three months, Plaintiff called Bryan and expressed her desire to return to Premier Ford as a salesperson. Bryan contends that even though he had reservations about Plaintiff returning to work at Premier Ford, he nevertheless made the decision to rehire her. Plaintiff therefore resumed her employment at Premier Ford on September 12, 2007. Upon returning to work, Plaintiff concedes that she cannot recall work-related problems or issues with Cecil Hill. Plaintiff, however, does allege that at a work Christmas party in December 2007, Bryan commented on her dress and touched her calf, and that another co-worker "cussed her out."
In October 2008, Plaintiff injured her knee while at work. Plaintiff contends that she began having work-related problems after suffering this injury. While Plaintiff concedes that she was never prohibited from or reprimanded for leaving work in order to go to the doctor, Plaintiff claims that, after hurting her knee, she no longer had "normal conversations" with management. Plaintiff also asserts that, when she took a couple weeks off of work in January and February due to her knee injury, she was informed that her customer list was being distributed to other salespeople, and that she had been evicted from her office.
After returning to work from her knee injury, Plaintiff continued her work as a salesperson until February 6, 2009, when her employment was terminated. The reasons for Plaintiff's termination were that she allegedly displayed unprofessional conduct and interfered with another salesperson's customer in violation of Premier Ford's policy. On December 30, 2009, Plaintiff filed a Complaint alleging race discrimination, sex discrimination, sexual harassment, and retaliation under Title VII, 42 U.S.C. § 2000e et seq. and age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.*fn1 On November 24, 2010, Premier Ford filed a Motion for Summary Judgment, arguing it is entitled to judgment as a matter of law as to all of Plaintiff's claims, including Plaintiff's claim for punitive damages.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is warranted under Rule 56(c) when evidence reveals no genuine dispute regarding any material fact, and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record 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, 91 L. Ed. 2d 265 (1986). The non-moving party must then go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S. Ct. 2548. Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments are not an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1997); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
In reviewing the evidence, factual controversies are to be resolved in favor of the non-movant, "but only when . . . both parties have submitted evidence of contradictory facts."
Id. In the absence of proof, the court does not "assume that the nonmoving party could or would prove the necessary facts." Id.
III. ANALYSIS AND DISCUSSION
Motion to File Sur-Rebuttal
On January 14, 2011, Plaintiff filed a Motion for Leave to File a Sur-Rebuttal to Defendant's Reply . Plaintiff's sur-rebuttal is attached as Exhibit A to her Motion. Plaintiff claims that this sur-rebuttal "w[ill] benefit the court and help in clarifying the complex matter before it." The Court, however, finds that Plaintiff's sur-rebuttal is a mere regurgitation of arguments already made either in her Complaint or her forty-one page Response in Opposition to Summary Judgment. As such, Plaintiff's Motion for Leave to File a Sur-Rebuttal is denied.
Title VII Sexually-Based Hostile Work Environment Claim
a. Timeliness of Plaintiff's EEOC Charge
Defendant contends that Plaintiff failed to file her EEOC charge within 180 days of the sexual harassment she allegedly suffered while employed at Premier Ford. Consequently, Defendant states that Plaintiff's hostile work environment claim is time-barred. "A Title VII claimant must file charges with the EEOC within 180 days after the alleged illegal conduct." Hood v. Sears Roebuck & Co., 168 F.3d 231, 232 (5th Cir. 1999) (citations omitted). In response, Plaintiff contends that she may prove her hostile work environment claim with acts of harassment outside of the 180-day period, as long as some act contributing to the claim occurred within this filing period.
In National Railroad Passenger Car v. Morgan, 536 U.S. 101, 115-18, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002), the Supreme Court addressed for the first time under what circumstances a Title VII plaintiff may file suit based on incidents outside the charge-filing period. The Court first announced a bright-line rule that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges" and that "[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act." Id. at 113, 122 S. Ct. 2061. The Court stated that it is "easy to identify" discrete acts, which include "termination, failure to promote, denial of transfer, or refusal to hire." Id. at 114, 122 S. Ct. 2061. However, the Morgan Court went on to recognize that "[h]ostile work environment claims are different in kind from discrete acts." Id. at 115, 122 S. Ct. 2061. The Court noted that the "very nature [of hostile work environment claims] involves repeated conduct[;]" thus, "[t]he 'unlawful employment practice' [ ] cannot be said to occur on any particular day." Id., 122 S. Ct. 2061. The Court held that since "[a] hostile work environment claim is composed of a series of separate acts that collectively constitute one 'unlawful employment' practice[,] . . . [i]t does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id. at 117, 122 S. Ct. 2061. Therefore, in this case, Plaintiff may use past acts to support her hostile work environment claim, as long as a related act contributing to the same actionable claim occurred within 180 days prior to Plaintiff's filing of her EEOC charge.
Plaintiff's EEOC charge was filed on May 22, 2009. Defendant contends that Plaintiff's entire claim is based on acts that allegedly occurred in 2007, before Plaintiff voluntarily resigned.*fn2 Plaintiff, on the other hand, contends that she was sexually harassed after she was rehired at Premier Ford. Plaintiff asserts that Johnny Smith "cussed [her] out" shortly after she returned to work at Premier Ford in 2007. Further, she complains that Bryan touched her calf at work Christmas party in 2007. Even if both of these incidents are true, both still fall out of the 180-day filing period. However, Plaintiff also claims that Bryan called her a "bitch" on February 6, 2009; the day her employment was terminated. Assuming Bryan's language constitutes "harassment," this "act" would fall within the 180-day period; thus, making Plaintiff's claim not time-barred.
b. Hostile Work Environment
Plaintiff asserts that she was subjected to a sexually-based hostile
work environment while working at Premier Ford.*fn3
Plaintiff may establish a violation of Title VII by proving that the
workplace is permeated with discriminatory intimidation, ridicule, and
insult that is so severe or pervasive that it alters the conditions of
employment and creates a hostile or abusive working environment.
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L.
Ed. 2d 295 (1993); Woods v. Delta Beverage Group, Inc., 274 F.3d 295,
298-99 (5th Cir. 2001). In order to establish a claim that sex
discrimination has created an abusive or hostile work environment, a
plaintiff must prove the following five elements: (1) that she belongs
to a protected class; (2) that she was subjected to unwelcome
harassment; (3) that the harassment was based on race or gender; (4)
that the harassment affected a term, condition, or privilege of
employment; and (5) that her employer knew or should have known of the
harassment and failed to take prompt remedial action.*fn4
Woods, 274 F.3d at 298; Watts v. Kroger Co., 170
F.3d 505, 509 (5th Cir. 1999); Hockman v. Westward Communications,
LLC, 407 F.3d 317, 325-26 (5th Cir. 2004).
For harassment to affect a term, condition, or privilege of employment, it must be "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (internal quotation marks and citation omitted); Watkins v. Texas Dept. of Criminal Justice, 269 F. App'x 457, 463-64 (5th Cir. 2008) (per curiam) (unpublished). The Supreme Court has explained that courts must consider "the frequency of the discriminatory 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." Harris, 510 U.S. at 23, 114 S. Ct. 367. "To be actionable, the challenged conduct must be both objectively offensive, meaning that a reasonable person would find it hostile and abusive, and subjectively offensive, meaning that the victim perceived it to be so." Harvill v. Westward Communications, LLC, 433 F.3d 428, 434 (5th Cir. 2005) (quoting Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir. 1999) (quotation marks omitted)). The Supreme Court has repeatedly stated that "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.'" Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998)). The legal standard requires proof of severe or pervasive conduct that can be characterized as "extreme." Faragher, 524 U.S. at 788, 118 S. Ct. 2275.
Here, the conduct complained of by Plaintiff does not rise to the level of a hostile work environment. Plaintiff complains that when she first worked for Premier Ford in 2007, Cecil Hill called her a "black bitch" and a "fucking bitch." Also, Hill allegedly told Plaintiff that the only reason a customer bought a car from her was because he wanted to have sex with her, and that "she needed to reward a customer with sex after he bought two cars from her." According to Plaintiff, Johnny Smith -- a co-worker -- also "cussed her out." Bryan also allegedly touched Plaintiff's calf at a Christmas party, and called her a "bitch" on the day her employment was terminated. Plaintiff states that she complained about this treatment on numerous occasions.
Even accepting all of the above allegations as true, the Court is unable to characterize this conduct as "extreme." The Supreme Court has repeatedly stated that "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 (citation omitted) (citing Oncale, 523 U.S. at 82, 118 S. Ct. 998). Further, the Fifth Circuit has pointed out that, in the context of hostile environment cases, Title VII "was only meant to bar conduct that is so severe and pervasive that it destroys a protected class member's opportunity to succeed in the workplace." Shepherd, 168 F.3d at 874-75 (emphasis added). In Shepherd, the plaintiff complained that a co-worker had made several sexually suggestive comments, often tried to look down her clothing, touched and rubbed her arm, and twice invited her to sit on his lap during office meetings. Id. at 872. Specifically, in Shepherd, the plaintiff testified that her co-worker told her, "your elbows are the same color as your nipples," and "you have big thighs" while he simulated looking under her dress. Id. The co-worker stood over Shepherd's desk on several occasions and tried to look down her clothing. Id. He also "touched her arm on several occasions, rubbing one of his hands from her shoulder down to her wrist while standing beside her." Id. Finally, on two occasions, after coming in late to an office meeting, "Moore patted his lap and remarked, 'here's your seat.'" Id. The Fifth Circuit held that this conduct, although "boorish and offensive," was not sufficiently severe to be actionable under Title VII. Id. at 874-75. To illustrate how frequent harassment must be to sustain a hostile work environment claim under Title VII, the Fifth Circuit contrasted the facts of Shepherd with two prior Fifth Circuit cases -- Farpella-Crosby v. Horizon Health Care and Waltman v. International Paper Company -- in which the harassment was severe enough for the plaintiffs to withstand the defendants' motions for judgment as a matter of law. Id. at 875.
In Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 805 (5th Cir.1996), the defendant's comments were considered frequent and severe enough to sustain a jury verdict for the plaintiff. In that case, Defendant Blanco frequently made comments "attributing Farpella-Crosby's large number of children to a proclivity to engage in sexual activity." Id. Specifically, Farpella-Crosby complained of the following behavior by Blanco:
Blanco repeatedly commented that he "knew what she liked to do" because she had seven children and that she "must not have a television." At a baby shower held at the facility for another employee, Blanco joked to the group that Farpella-Crosby "[didn't] know how to use condoms." Blanco also frequently inquired about Farpella-Crosby's sexual activity. He would often question her . . . about where [she] had been the night before (while off duty), whether [she] had taken men home, and whether [she] "[had gotten] any." Farpella-Crosby . . . testified that Blanco made similar comments two or three times a week. [She] testified that the comments were so frequent that she could not possibly remember each instance. Blanco threatened Farpella-Crosby with her job on numerous occassions when she asked him to stop making these comments.
On one occasion, after Farpella-Crosby had eaten lunch in her office with a boyfriend, Blanco said that "when you open the door [to the office], the smell of fish just hits you in the face. You shouldn't be doing that kind of think at work." . . . Blanco essentially admitted that he did question Farpella-Crosby about her personal life, but claimed that he did so because he believed the lack of sleep resulting from sexual activity could affect her work performance.
Id. (last set of brackets in original). On these facts, the Fifth Circuit held that "there is substantial evidence from which the jury could have concluded that Blanco's comments and questions were sufficiently severe and pervasive as to alter the conditions of [FarpellaCrosby's] employment and create an abusive working environment." Id. at 806.
The harassment alleged by the plaintiff in Waltman v. International Paper Company, 875 F.2d 468 (5th Cir. 1989), was even worse than in Farpella-Crosby. There, the Fifth Circuit reversed summary judgment for the defendant on the following facts: One of the defendant's employees several times broadcast obscenities directed at Waltman over the public address system. Id. at 470. After that incident, "other employees began making suggestive comments to Waltman." Id. at 470-71. Waltman's supervisor urged her to have sex with a co-worker. Id. at 471. On several occasions, he also "pinched her buttocks with pliers and tried to ...