United States District Court, N.D. Mississippi, Oxford Division
MEMORANDUM OPINION AND ORDER
PERCY, UNITED STATES MAGISTRATE JUDGE
The Dufresne Spencer Group, LLC d/b/a Ashley Furniture Home
Store (“DSG”) and Jeff Rogers
“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
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
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.
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).
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
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
Title VII Claims for Sexual Harassment
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
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
Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473,
479 (5th Cir. 2008).
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
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.
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
Sexual Harassment by Quid Pro Quo under Title
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.
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.
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.
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.
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).
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.
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.
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.
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 ...