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Moore v. Bolivar County

United States District Court, N.D. Mississippi, Greenville Division

December 1, 2017

ISADORE SAMUEL MOORE PLAINTIFF
v.
BOLIVAR COUNTY, MISSISSIPPI, and BRENDA COOK DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          DEBRA M. BROWN, UNITED STATES DISTRICT JUDGE

         Following his termination as an alcohol and drug counselor at Bolivar County Regional Correctional Facility, Isadore Samuel Moore sued Bolivar County, his former employer, and Brenda Cook, his former supervisor, asserting claims of sex discrimination, sexual harassment, retaliation, and malicious interference with employment. Bolivar County and Cook have each moved for summary judgment. For the reasons below, Bolivar County's summary judgment motion will be granted in part and denied in part; and Cook's summary judgment motion will be denied.

         I Standard of Review

         “Summary judgment is proper only when the record demonstrates that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law.” Luv N' Care Ltd. v. Groupo Rimar, 844 F.3d 442, 447 (5th Cir. 2016). “A factual issue is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the non-moving party, and material if its resolution could affect the outcome of the action.” Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 226 (5th Cir. 2015) (internal quotation marks omitted). On a motion for summary judgment, a court must “consider the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor.” Edwards v. Cont'l Cas. Co., 841 F.3d 360, 363 (5th Cir. 2016).

         In seeking summary judgment, “[t]he 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.” Nola Spice Designs, L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015) (internal quotation marks and alterations omitted). If the moving party satisfies this burden, “the non-moving 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.” Id. (internal quotation marks omitted). “Where the nonmoving party bears the burden of proof at trial, the moving party satisfies this initial burden by demonstrating an absence of evidence to support the nonmoving party's case.” Celtic Marine Corp. v. James C. Justice Cos., Inc., 760 F.3d 477, 481 (5th Cir. 2014).

         II Factual Background

         A. James Moore's Tenure as Warden

         In January 2012, Kelvin Williams began his first term as Bolivar County Sheriff. Doc. #77-9 at 5. His duties included, among others, overseeing the Bolivar County Regional Correctional Facility (“BCRCF”). Id. at 5-6. When he first took over as Bolivar County Sheriff in 2012, Williams hired James Moore to serve as the warden of BCRCF. Id. at 6.

         In early 2013, Tangi Truelove, a former Director of the Female Alcohol and Drug Rehabilitation Program at BCRCF, sued Bolivar County for racial discrimination. Doc. #82-20 at ¶¶ 3, 5-6. Because James[1] was BCRCF's warden during the relevant time, he was deposed in Truelove's lawsuit. Doc. #82-14. As the Truelove trial date drew near, BCRCF sought to have James testify on its behalf at trial; however, BCRCF was unable to contact James to prepare for trial-even after Williams tried to contact him personally.[2] Doc. #77-9 at 20-21. Ultimately, the Truelove lawsuit settled around September 22, 2014, before it went to trial.[3] Doc. #77-1 at ¶ 7.

         B. Isadore's Hire at BCRCF

         While he was warden, James informed his son Isadore that there were job openings in BCRCF's Alcohol and Drug Department. Doc. #77-2 at 17. After completing the application process, Isadore began working at BCRCF on March 5, 2012, as an alcohol and drug counselor. Id. at 9, 17-18, 91.

         When Isadore began working at BCRCF, he received initial training from the Director of the Alcohol and Drug Department, Brenda Cook, and the Assistant Director of the Alcohol and Drug Department, Regina Fair. Id. at 20; Doc. #77-5 at 7-8. During this training, they reviewed the policies and procedures of the Mississippi Department of Mental Health and proper client file maintenance. Docs. #77-5 at 10, #77-7 at 12-13.

         C. Cook's Sexual Advances

         According to Isadore, within the first three months of his hire, Cook began to sexually harass him. Doc. #77-2 at 77. Specifically, Isadore claims that Cook asked him if he was married and if he was “seeing anybody, ” complimented him on how he looked, invited him to go have drinks with her, sent him a picture of herself to his personal e-mail account, told him that he “look[s] like the type of guy that knows his way around women, ” and wanted to find out “what kind of guy [he] was.” Id. at 27, 77-78, 80, 82, 84. As a result, Isadore claims that he suffered significant stress which required him to seek counseling and begin taking medication for hypertension. Id. . at 72.

         Isadore “disregarded” all of Cook's comments and contends that shortly after he declined her sexual overtures, Cook began criticizing his work, reprimanding him, writing him up, and requiring him to attend training sessions with her and Fair to improve the quality of his work. Id. at 85-86. Isadore was suspended without pay for three days in early 2014 for “consistently disregard[ing] instructions from [his] supervisors and fail[ing] to improve [his] work performance.” Doc. #77-4 at 29-30.

         D. Department of Health Audit and Isadore's Termination

         On October 2, 2014, the Mississippi Department of Health conducted an audit of BCRCF's Alcohol and Drug Department.[4] Doc. #82-8 at 31. On October 3, 2014, Williams terminated Isadore's employment at BCRCF because of “unsatisfactory work performance and incomplete client files.” Doc. #77-6 at 1. BCRCF received the written report containing the findings of the October 2 audit on November 7, 2014.[5] Doc. #77-9 at 17.

         E. BCRCF's Sexual Harassment Policy

         During the relevant time, BCRCF maintained a sexual harassment policy that directed employees subject to harassment to report offending activity to their “immediate manager.” Doc. #77-3 at 1. Isadore never reported the alleged sexual harassment by Cook to Fair, his immediate manager, but discussed with Williams and Ora Starks, BCRCF's current warden, [6] the “constant hassles” Cook and Fair were giving him. Doc. #77-2 at 24. Nor did Isadore use the term “sexual harassment” in his conversations with Williams and Starks. Id. at 29-30. He did, however, report the alleged sexual harassment to Cook's supervisor, Sylvester Hogan, who was the Director of Educational Programs at BCRCF. Doc. #77-8 at 6-7, 14. When Hogan requested that Isadore provide evidence of the sexual harassment, Isadore provided none, so Hogan did not pursue the allegation further. Id. at 15.

         III Procedural History

         In October 2015, Isadore filed a complaint in the United States District Court for the Northern District of Mississippi against Bolivar County, Mississippi, and “the individual Defendant Brenda Cook.” Doc. #1 at 1. In his complaint, Isadore asserted a claim under Title VII of the Civil Rights Act of 1964, “the Equal Protection Clause of the Fourteenth Amendment and under 42 U.S.C. § 1981, ” and a single state law claim for “malicious interference with [his] employment.” Id. at ¶ 3.

         On February 24, 2016, Cook filed a motion to dismiss on privilege and immunity grounds under the Mississippi Tort Claims Act (“MTCA”). Doc. #14. On September 29, 2016, the Court denied her motion.[7] Doc. #23.

         On November 15, 2016, Isadore, with leave of the Court, filed an amended complaint against Bolivar County and Cook. Doc. #37. The amended complaint asserts “sex discrimination, sex harassment and retaliation” claims against Bolivar County and a claim for malicious interference with employment against Cook. Id. at 1. Cook and Bolivar County filed separate answers to the amended complaint. Docs. #39, #48.

         On May 26, 2017, Bolivar County and Cook filed separate motions for summary judgment. Docs. #77, #79. Isadore responded in opposition to each motion and both Bolivar County and Cook replied. Docs. #82, #84, #85, #86.

         On October 26, 2017, the Court held a telephonic status conference with the parties to discuss the need for additional briefing on an issue raised by the pending motions for summary judgment and the deadlines for such briefing. Doc. #116; see Doc. #118. The parties timely filed supplemental briefs on November 6, 2017. Docs. #121, #122.

         IV Analysis

         A. Sexual Harassment Claims

         In Casiano v. AT&T Corp., the Fifth Circuit provided a comprehensive guide for analyzing “all supervisor sexual harassment cases under Title VII.”[8] 213 F.3d 278, 283 (5th Cir. 2000). First, a court must “determine whether the complaining employee has or has not suffered a ‘tangible employment action.'” Id. If the employee shows that he suffered a tangible employment action, the “suit is classified as a ‘quid pro quo' case.” Id. If, however, no tangible employment action is shown, the “suit is classified as a ‘hostile work environment case.'” Id.

         Here, Isadore pleads both quid pro quo and hostile work environment theories. The Court will address each theory in turn.

         1. Quid pro quo sexual harassment

         To establish liability under the quid pro quo theory, a plaintiff must show that he suffered a “tangible employment action” as a result of “his acceptance or rejection of his supervisor's alleged sexual harassment.” Casiano, 213 F.3d at 283. “A tangible employment action constitutes a significant change in employment status, such as hiring, firing, … or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

         Isadore asserts that he suffered “multiple adverse employment actions” as a consequence of rejecting Cook's sexual advances, including Cook becoming hostile and derogatory to him by continuously criticizing his work, receiving repeated verbal and written warnings, being required to attend counseling sessions, receiving a three-day suspension without pay, and being terminated from BCRCF. Doc. #81 at 18-19. Cook's allegedly hostile and critical nature, the repeated warnings Isadore received, and his required attendance at counseling sessions are not tangible employment actions because such actions did not inflict “direct economic harm.” See Thompson v. Naphcare, Inc., 117 F. App'x 317, 323 (5th Cir. 2004) (“[W]e have specifically held that increased criticism of an employee's work does not constitute a tangible employment action.”). However, Isadore's three-day suspension without pay and termination are tangible employment actions. See Bustillos v. Miss. Valley State Univ., No. 4:12-cv-007, 2013 WL 123730, at *3 (N.D. Miss. Jan. 9, 2013) (“[T]he Court finds that a five-day suspension without pay is a ‘tangible employment action' sufficient to support a claim for quid pro quo sexual harassment.”); Prigmore v. Hous. Pizza Ventures, Inc., 189 F.Supp.2d 635, 640 (S.D. Tex. 2002) (“Prigmore's termination undoubt[edly] qualifies as a ‘tangible employment action.'”). Accordingly, the Court must decide whether there is a genuine issue of material fact as to whether either tangible employment action was a result of Isadore rejecting Cook's sexual advances.

         a. Suspension

         Cook testified that she could only recommend a suspension. Doc. #79-2 at 19. Therefore, to show that his suspension was a result of his rejection of Cook's advances, Isadore must necessarily rely on the cat's paw theory of liability.

[The] cat's paw theory of liability [is used] when [a plaintiff] cannot show that the decisionmaker-the person who took the adverse employment action-harbored any retaliatory animus. Under this theory, a plaintiff must establish that the person with a retaliatory motive somehow influenced the decisionmaker to take the retaliatory action.

Zamora v. City of Hous., 798 F.3d 326, 331 (5th Cir. 2015).[9] To invoke the cat's paw analysis, Isadore must show that Cook (1) “motivated by a retaliatory animus, took acts intended to cause an adverse employment action; and (2) those acts were a but-for cause of his [termination].” Fisher v. Lufkin Indus., Inc., 847 F.3d 752, 758 (5th Cir. 2017) (alteration in original; internal quotation marks and citation omitted).

         Isadore fails to clearly identify who the decisionmaker was with respect to his three-day suspension. The suspension letter is on BCRCF's letterhead, which includes Williams' name. Doc. #77-4 at 29. However, the letter is signed by Cook and copied to Williams and Starks. Id. at 30. Additionally, there were several people present at the meeting informing Isadore of his suspension, including Hall, Fair, Hogan, and a consultant for BCRCF, Dr. Turner. Doc. #82-1 at 62-63. Even assuming Cook recommended the suspension, there is no evidence that such recommendation was a but-for cause of Isadore's suspension. Accordingly, Isadore may not sustain a quid pro quo claim based on his suspension.

         b. Termination

         Bolivar County argues that Isadore was terminated for a legitimate reason and that the quid pro quo claim must fail because Isadore failed to offer any evidence that Williams-the only person with authority to terminate Isadore-had knowledge of the alleged sexual harassment. In this regard, Bolivar ...


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