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Ray v. The Dufresne Spencer Group, LLC

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

January 3, 2019




         Defendants The Dufresne Spencer Group, LLC d/b/a Ashley Furniture Home Store (“DSG”) and Jeff Rogers (“Rogers”) (collectively, “Defendants”) have moved for summary judgment under Federal Rule of Civil Procedure 56 on Plaintiff's Title VII claims and state law claims of assault and battery and intentional infliction of emotional distress. Doc. 56. Plaintiff Tina Ray (“Plaintiff”) has responded in opposition to the motion, and the Court, having considered the submissions of the parties, finds that the motion should be denied except as to Plaintiff's claims for assault and battery. Defendants' motion for summary judgment as to Plaintiff's state law assault and battery claims is granted.

         This is a sexual harassment case arising out of a hostile work environment allegedly suffered by Plaintiff while employed by DSG. Plaintiff contends that Rogers, her immediate supervisor, subjected her to repeated sexual harassment which allegedly included propositions for sex, sexual innuendo and sexually explicit remarks, and unwanted and offensive physical contact. Plaintiff claims that her accounts and commissions were given to another female employee who admitted having an affair with Rogers, the store manager. Plaintiff alleges that she was discharged on pretext for her failure to comply with Rogers' sexual advances and demands. Plaintiff also brings related state law claims for assault and battery and intentional infliction of emotional distress.

         Defendants argue there is no genuine issue as to any material fact regarding their liability for any sexual harassment under Title VII or regarding Plaintiff's state law claims of assault and battery and intentional infliction of emotional distress. Further, as to Plaintiff's hostile work environment claim, DSG claims it is entitled to immunity under the Ellerth/Faragher defense.

         I. Standard of Review

          Federal Rule of Civil Procedure 56 governs summary judgment. Summary judgment is warranted when the evidence reveals no genuine dispute regarding any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The Rule “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         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. at 323. If the moving party satisfies this burden, the nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citation omitted).

         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.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When such contradictory facts exist, the Court may “not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

         II. Title VII Claims for Sexual Harassment

         Title VII of the Civil Rights Act of 1964 mandates that

[i]t shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a)(1) (2006). Sexual harassment is a prohibited form of employment discrimination under Title VII. Jones v. Flagship Int'l, 793 F.2d 714, 719 (5th Cir. 1986).

         When the Title VII sexual harassment claim is against a supervisor, a plaintiff must satisfy the following four factors in order to establish a prima facie case:

(1) the employee belongs to a protected class;
(2) the employee was subject to unwelcome sexual harassment;
(3) the harassment was based on sex; and
(4) the harassment affected a term, condition or privilege of employment.

Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 479 (5th Cir. 2008).

         In the instant case, the Court finds that Plaintiff has sufficiently demonstrated that she was a member of a protected class and, because of her sex, was exposed to unwanted sexual harassment, to be discussed further herein. The first three elements of Plaintiff's sexual harassment claim are therefore satisfied.

         Regarding the fourth prong, a plaintiff can show that a term, condition, or privilege of her employment was affected in one of two ways: quid pro quo harassment or hostile work environment. Pursuant to the “roadmap” for analyzing Title VII supervisor sexual harassment cases described by the United States Court of Appeals for the Fifth Circuit in Casiano v. AT&T Corporation, whether an employee suffered a tangible employment action determines whether the claim is a quid pro quo harassment claim or a sexually hostile work environment claim. 213 F.3d 278, 283 (5th Cir.2000). If an employee has been subjected to a tangible employment action her claim is of the quid pro quo variety; otherwise, the claim is classified as one for hostile work environment. Casiano, 213 F.3d at 283.

         Plaintiff alleges both quid pro quo sexual harassment and hostile work environment under Title VII. Plaintiff claims that she suffered an adverse employment action by allegedly being discharged on pretext when she failed to acquiesce to Rogers' sexual remarks, advances, and demands and further claims that DSG is liable for sexual harassment through its creation, toleration, and ratification of a hostile work environment.

         a. Sexual Harassment by Quid Pro Quo under Title VII

         To establish quid pro quo harassment in violation of Title VII, Plaintiff must show that (1) she suffered a tangible employment action and (2) the tangible employment action resulted from her acceptance or rejection of her supervisor's alleged sexual advances. Casiano, 213 F.3d at 283. A “tangible employment action” is defined as “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). It is the “means by which the supervisor brings the official power of the enterprise to bear on subordinates.” Id. at 762. “A tangible employment action in most cases inflicts direct economic harm.” Id. at 761.

         In other words, in order to survive summary judgment on her quid pro quo claim, Plaintiff must demonstrate a genuine issue of material fact regarding whether Rogers, her alleged harasser, took a tangible employment action against her because she rejected Rogers' sexual advances. If Plaintiff proves that the tangible employment action resulted from her rejection of Rogers' sexual advances, then DSG is vicariously liable and the Ellerth/Faragher defense - the only affirmative defense in supervisor sexual harassment cases - is not available. Casiano, 213 F.3d at 284.

         Plaintiff alleges that she suffered two tangible employment actions - when she was fired and when sales and commissions were taken from her - because of her refusal to accede to the sexual demands of her supervisor, Jeff Rogers.

         i. Termination

          Defendants contend that Plaintiff was “terminated from DSG after she punched another employee in the chest on June 29, 2016” and claim that she “cannot show that any actions were taken against her resulting from her acceptance or rejection of Mr. Rogers' alleged sexual harassment.” Doc. 58 at 1, 12. Defendants detail a confrontation between Plaintiff and another female employee, Dana Tubb (“Tubb”), during which Plaintiff punched Tubb in the chest, leaving DSG with “no choice but termination.” Id. at 14. Defendants claim that there is “no genuine dispute as to the fact that [Plaintiff] was terminated as a direct result of her assault of another employee.” Id.

         Alternatively, Defendants claim that Plaintiff “had a history at [DSG] of causing problems, and her termination was probably past due.” Doc. 58 at 13. Defendants describe a confrontation between Plaintiff and another employee during which Plaintiff said “F*** you” and cite to various employees' statements to DSG's Human Resources (HR) manager to demonstrate that

[Plaintiff] was late more often than not, that she engaged in unethical behavior, that she was a compulsive liar who no one could trust, that she was manipulative, vindictive, dramatic, oversensitive, disruptive, frequently cried, did not follow floor etiquette, and that she regularly had issues with other employees, who would complain about her […] [she] had a habit of being late when she arrived to work and when she returned from lunch, in violation of DSG's policy about arriving on time […] [she] did not always follow Ashely's procedures regarding approaching guests and was known for stealing guests […] [her] behavior caused disruption and animosity on the sales floor.

Id. at 13-14 (record citations omitted).

         At his deposition, Rogers testified that Plaintiff came to work late, took extended lunches, and did not always follow DSG's guidelines. Doc. 59-3. Rogers claims that he verbally disciplined Plaintiff but never wrote her up for said behaviors. Id. Rogers testified that other employees came to work late, took extended lunches, and had similar problems with co-workers. Id.

         Defendants concede that Plaintiff was terminated and that her termination is a tangible employment action. However, Defendants argue that Plaintiff cannot establish a causal connection between her rejection of Rogers' advancements and DSG's decision to fire her.

         For summary judgment purposes, the Court must determine whether a genuine issue of material fact exists as to whether the Plaintiff's termination resulted from her rejection of Rogers' alleged sexual advances. See Casiano, 213 F.3d at 283. Plaintiff contends that the non-discriminatory reason Defendants offer for her termination is actually a pretext for her firing. Plaintiff claims that the real reason she was discharged was “because [she] failed to acquiesce to sexual remarks, advances, and demands of Defendant, Jeff Rogers.” Doc. 1 at ¶ 22.

         Under Title VII, a plaintiff can establish that the nondiscriminatory reason offered for the adverse employment action is pretextual either (1) through evidence of disparate treatment or (2) by showing that the proffered explanation is false or ...

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