United States District Court, N.D. Mississippi, Greenville Division
MEMORANDUM OPINION AND ORDER
M. BROWN, UNITED STATES DISTRICT JUDGE
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.
Standard of Review
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).
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).
James Moore's Tenure as Warden
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.
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 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. Doc. #77-9 at 20-21. Ultimately, the
Truelove lawsuit settled around September 22, 2014, before it
went to trial. Doc. #77-1 at ¶ 7.
Isadore's Hire at BCRCF
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.
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
Cook's Sexual Advances
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
“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.
Department of Health Audit and Isadore's
October 2, 2014, the Mississippi Department of Health
conducted an audit of BCRCF's Alcohol and Drug
Department. 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. Doc. #77-9 at 17.
BCRCF's Sexual Harassment Policy
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,  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.
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
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. Doc. #23.
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,
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.
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.
Sexual Harassment Claims
Casiano v. AT&T Corp., the Fifth Circuit
provided a comprehensive guide for analyzing “all
supervisor sexual harassment cases under Title
VII.” 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.
Isadore pleads both quid pro quo and hostile work environment
theories. The Court will address each theory in turn.
Quid pro quo sexual harassment
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).
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.
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). 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
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
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 ...