Lauderdale v. Texas Department of Criminal Justice, Institutional Division

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

December 21, 2007

No. 06-41636 Charles R. Fulbruge III

Clerk

DEBRA LAUDERDALE,

Plaintiff-Appellant,

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION;

RODRICK D. ARTHUR,

Defendants-Appellees.

Appeals from the United States District Court

for the Eastern District of Texas

Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Debra Lauderdale alleges she was sexually harassed by her ultimate su-

pervisor, Rodrick Arthur, over the period of almost four months during which

she worked as a correctional officer for the Texas Department of Criminal Jus-

tice (“TDCJ”). Lauderdale sued the TDCJ under title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e, and sued Arthur under 42 U.S.C. § 1983. The district

No. 06-41636

court granted summary judgment for both defendants. We affirm in part, re-

verse in part, and remand.

I.

Lauderdale began her employment with the TDCJ on June 3, 2004. After

five weeks of TDCJ academy training, she was assigned as a correctional officer

to the Coffield Unit. Her first two weeks consisted of on-the-job training in vari-

ous areas of the unit, during which time she met Arthur. Upon completion of

Lauderdale’s training, Arthur, as acting warden on the night shift, became her

ultimate supervisor.

In late July, shortly after Lauderdale completed her on-the-job training,

Arthur began to pursue a relationship with her. According to Lauderdale, Ar-

thur would call her multiple times at her duty station during the night shift.

During one of the first phone conversations, he asked her to get coffee with him

after the shift ended. After this first evening of phone calls, Lauderdale told Ser-

geant Kroll, her immediate supervisor, that Arthur had been telephoning her.

Kroll told Lauderdale she could speak to the warden about the calls but that she

should not mention Kroll’s name.

The calls and requests to go out after the night shift continued and, though

they varied in frequency, eventually reached an average of ten to fifteen calls

during a shift. During one call, Arthur asked Lauderdale whether she was mar-

ried; she lied and told him she was, to which Arthur responded that his heart

was broken and he might hang himself. At other times, Arthur told Lauderdale

she was beautiful and that he loved her.

On another occasion, Arthur called Lauderdale and, during the course of

the discussion, asked her what she enjoyed doing. She told him she enjoyed

gambling. Arthur suggested that the two of them could go to Las Vegas and

“snuggle;” Lauderdale said “No.” Other topics of conversation during the phone

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No. 06-41636

calls included Arthur’s family and horses. On one occasion, he called and Lau-

derdale explained that she was upset that, for some reason, she was not going

to rotate according to the schedule.

In August, after Lauderdale began working in another building at the

unit, Arthur called and told her he missed her, then showed up at the building

in which she was working. He would also invite her to sit with him in the war-

den’s office during her breaks; she refused those invitations. After a break one

evening in mid-October, as she returned to her duty station, Lauderdale passed

Arthur in the hall by the “searcher’s desk.” Arthur grabbed her handcuff case,

which she wore in the middle of her back on her belt, and pulled her to himself.

Her lower back touched his stomach before she jerked away from him.

Finally, on October 25, Arthur sent for Lauderdale, presumably ordering

her to report to him. She believed he had no legitimate reason to see her, and

she refused to report to him. After this incident, she did not return to work. Be-

fore her next shift she telephoned a supervisor and indicated she would not be

at work that day; she did not, however, indicate that she no longer intended to

work for the TDCJ. After receiving a letter from Human Resources indicating

that she would not receive her last pay check until she turned in her uniforms,

Lauderdale returned to the unit on December 3 and officially resigned and indi-

cated “Dissatisfaction with supervisors or coworkers” as the reason. She then

spoke with Assistant Warden Sizemore and filed a formal EEO complaint

against Arthur for sexual harassment.

The TDCJ investigated Lauderdale’s allegations and found sufficient evi-

dence to deem Arthur guilty of “Discourteous Conduct of a Sexual Nature.” This

determination resulted in a four-day suspension without pay and a nine-month

probation. Arthur ultimately resigned at some point following the investigation.

Lauderdale does not allege that any adverse employment actions were

taken against her; she concedes that she was able to perform her duties fully de-

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No. 06-41636

spite Arthur’s harassment. She also acknowledges she received and read a copy

of the various policies covering sexual harassment and watched a training video

on the subject. Save for her discussion with Kroll in late July, Lauderdale ad-

mits that she never complained to anyone else who was in her chain of command

or was identified in the TDCJ sexual harassment policy. She contends that she

did not complain to anyone other than Kroll because she feared retaliation.

II.

“This Court reviews grants of summary judgment de novo, applying the

same standard as does a district court, viewing the evidence in a light most fa-

vorable to the non-movant.” Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d

558, 560 (5th Cir. 2003) (citations omitted). We apply that standard of review

now.

A.

The district court granted the TDCJ’s motion for summary judgment be-

cause it held that, as a matter of law, Arthur’s behavior was neither severe nor

pervasive and, therefore, did not create a hostile work environment. We dis-

agree.

Under title VII, it is illegal “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 . . . sex.” 42 U.S.C. § 2000e-2(a)(1). This text

prohibits sexual harassment that takes the form of a tangible employment

action, such as a demotion or denial of promotion, or the creation of a hostile or

abusive working environment. Faragher v. City of Boca Raton, 524 U.S. 775, 786

(1998) (citing Harris v. Forklift Sys., 510 U.S. 17, 21 (1993); Meritor Sav. Bank,

FSB v. Vinson, 477 U.S. 57, 67 (1986)). Here, there is no allegation of a tangible

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No. 06-41636

employment action.

The only issue is whether Arthur’s behavior created a hostile or abusive

working environment. Where the claim of harassment is against a supervisor,

there are four elements of a hostile working environment claim: (1) that the em-

ployee belongs to a protected class; (2) that the employee was subject to unwel-

come sexual harassment; (3) that the harassment was based on sex; and (4) that

the harassment affected a “term, condition, or privilege” of employment. Watts

v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999).

As a woman, Lauderdale satisfies the first element; the second and third

elements are satisfied by the TDCJ’s finding that Arthur had engaged in “Dis-

courteous Conduct of a Sexual Nature.” To satisfy the fourth element, however,

the harassment “must be sufficiently severe or pervasive ‘to alter the conditions

of [the victim’s] employment and create an abusive working environment.’” Meri-

tor, 477 U.S. at 67 (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th

Cir. 1982)). The environment must be deemed “both objectively and subjectively

offensive, one that a reasonable person would find hostile or abusive, and one

that the victim in fact did perceive to be so.” Faragher, 524 U.S. at 787 (citing

Harris, 510 U.S. at 21-22).

In determining whether an environment is hostile or abusive, the court

must look to the totality of the circumstances, including “the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or hu-

miliating, or a mere offensive utterance; . . . whether it unreasonably interferes

with an employee’s work performance,” Harris, 510 U.S. at 23, and “whether the

complained of conduct undermined the plaintiff’s workplace competence,” Butler

v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 270 (5th Cir. 1998). Title VII, however,

is not a “‘general civility code,’” and “‘simple teasing,’ offhand comments, and iso-

lated incidents (unless extremely serious) will not amount to discriminatory

changes in the ‘terms and conditions of employment.’” Faragher, 524 U.S. at 788

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No. 06-41636

(citations omitted).

Although the district court correctly noted that none of the incidents of

alleged harassment rises to the level of severity we have required,1 the testSS

whether the harassment is severe or pervasiveSSis stated in the disjunctive. An

egregious, yet isolated, incident can alter the terms, conditions, or privileges of

employment and satisfy the fourth element necessary to constitute a hostile

work environment. Harvill v. Westward Commc’ns, LLC, 433 F.3d 428, 434-35

(5th Cir. 2005). The inverse is also true: Frequent incidents of harassment,

though not severe, can reach the level of “pervasive,” thereby altering the terms,

conditions, or privileges of employment such that a hostile work environment

exists. Thus, “the required showing of severity or seriousness of the harassing

conduct varies inversely with the pervasiveness or frequency of the conduct.” El-

lison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991).

Viewing Lauderdale’s allegations in the most favorable light, as we must,

Arthur’s behavior was pervasive. Lauderdale alleges that he called her ten to

fifteen times a night for almost four months. Though Lauderdale does not assert

that each phone call carried sexual overtones, the frequency of unwanted atten-

tion, over a four-month time period, amounts to pervasive harassment. Given

this pervasiveness, the level of severity necessary to establish an altered work

environment is diminished and Arthur’s invitation to Lauderdale to “snuggle”

in Las Vegas, the physical act of pulling her to himself, and the repeated re-

1

See, e.g., Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 328 (5th Cir. 2004)

(holding that comments to plaintiff about another employee’s body, slapping plaintiff on the

behind with a newspaper, grabbing or brushing up against plaintiff’s breasts and behind, and

attempting to kiss plaintiff were not severe as a matter of law); Shepherd v. Comptroller of

Pub. Accounts, 168 F.3d 871, 871-75 (5th Cir. 1999) (holding that several inappropriate com-

ments, including “your elbows are the same color as your nipples,” and touchings, including

rubbing plaintiff’s arm from shoulder to wrist, were not severe); Weiss v. Coca-Cola Bottling

Co., 990 F.2d 333, 337 (7th Cir. 1993) (holding that conduct, including asking plaintiff out on

dates, placing “I love you” signs in her work area, and attempting to kiss her three times did

not constitute severe or pervasive harassment).

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No. 06-41636

quests to get coffee after work all satisfy the requirement. Thus, Lauderdale has

a viable hostile work environment claim under title VII.

B.

Because there is a genuine issue of material fact regarding the creation of

a hostile work environment, we must consider the TDCJ’s assertion of the El-

lerth/Faragher affirmative defense. In Burlington Industries, Inc. v. Ellerth, 524

U.S. 742, 764-65 (1998), and Faragher, 524 U.S. at 807, the Court recognized one

affirmative defense that employers may raise against a title VII claim alleging

a hostile work environment created by a supervisor’s sexual harassment. So

long as the supervisor’s actions did not result in a “tangible employment action”

against the employee, Faragher, 524 U.S. at 807, employers may assert the El-

lerth/Faragher defense, which requires the employer to prove by a preponder-

ance of the evidence “(a) that the employer exercised reasonable care to prevent

and correct promptly any sexually harassing behavior, and (b) that the plaintiff

employee unreasonably failed to take advantage of any preventive or corrective

opportunities provided by the employer or to avoid harm otherwise.” Id.

It is undisputed that no tangible employment action resulted from Ar-

thur’s behavior; Lauderdale was never demoted, reassigned, or had her hours

changed because of his actions. Thus, the TDCJ is entitled to raise the Ellerth/-

Faragher defense. The TDCJ has satisfied the requirements of the first prong

by virtue of its institutional policies and educational programs regarding sexual

harassment. It is undisputed that Lauderdale received the requisite training

and copies of the TDCJ’s sexual-harassment policy statements. There is no alle-

gation that the TDCJ’s program, designed to avoid, report, and correct instances

of sexual harassment, is insufficient or unreasonable.

The contested issue is whether the second prong of the affirmative defense

is satisfied. Lauderdale claims the Ellerth/Faragher defense is unavailable to

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No. 06-41636

the TDCJ because she took advantage of the TDCJ’s sexual-harassment preven-

tion and remediation policies by reporting Arthur’s harassment to Kroll, her im-

mediate supervisor, as dictated by TDCJ policy. The TDCJ’s policy offers num-

erous avenues for reporting sexual harassment, including any supervisor, the

Employee Relations Office of the Human Resources Department, the TDCJ Ex-

ecutive Director, the United States Equal Employment Opportunity Commis-

sion, and the Texas Commission on Human Rights. It was therefore unreason-

able for Lauderdale not to pursue any other avenue available under the TDCJ

policy after Kroll explicitly indicated his unwillingness to act on her complaint.

We have confronted a similar circumstance before. In Wyatt v. Hunt Ply-

wood Co., 297 F.3d 405, 412 (5th Cir. 2002), the plaintiff reported her supervi-

sor’s harassment to his supervisor, who dealt ineffectively with the harassment

and subsequently began harassing the plaintiff himself. We held that it was

unreasonable for the plaintiff not to report the harassment to another person

listed in the defendant’s reporting policy once her initial complaint was obviously

ineffective. Id. at 413. Thus, Wyatt counsels that Lauderdale’s failure to use one

of the other reporting avenues provided by the TDCJ was unreasonable.

In most cases, as here, once an employee knows his initial complaint is in-

effective, it is unreasonable for him not to file a second complaint, so long as the

employer has provided multiple avenues for such a complaint. This conclusion

is consistent with title VII’s intent to encourage “saving action by objecting em-

ployees.” Faragher, 524 U.S. at 807. Although it is conceivable that under cer-

tain circumstances an employee’s failure to file a subsequent complaint would

not be unreasonable, even where there are multiple reporting avenues, Lauder-

dale’s circumstances do not render her failure reasonable.

Likewise, Lauderdale’s formal complaint on December 3, 2004, the date

of her resignation, does not defeat the second prong of the Ellerth/Faragher de-

fense. Filing a complaint upon, or after, resigning does not mitigate any of the

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damage, because it does not allow the employer to remediate the situation. A

complaint filed at such a late date is no longer a saving action contemplated and

encouraged by title VII, Faragher, 524 U.S. at 807, hence it is not sufficient to

defeat the Ellerth/Faragher affirmative defense. “[I]f damages could reasonably

have been mitigated no award against a liable employer should reward a plain-

tiff for what her own efforts could have avoided.” Id. Thus, Lauderdale’s com-

plaint, filed on the day she resigned, does not defeat the affirmative defense.

Furthermore, the TDCJ conducted an investigation after Lauderdale for-

mally complained. That investigation resulted in disciplinary action against Ar-

thur. The TDCJ’s prompt remedial action upon receiving Lauderdale’s com-

plaint confirms that the first prong of the Ellerth/Faragher defense has been sat-

isfied and that Lauderdale could have mitigated the harm had she tried to make

a second complaint after Kroll had refused to intervene.

In light of the TDCJ’s standing policies on sexual harassment, its training

program, and its prompt action following Lauderdale’s formal complaint, the

TDCJ has satisfied the first prong of the Ellerth/Faragher defense. Lauderdale’s

failure to complain after her initial conversation with Kroll is a failure to take

advantage of the TDCJ’s prevention program, thereby satisfying the second

prong. Thus, the TDCJ avoids vicarious liability.

III.

A.

The district court, having concluded that Arthur’s behavior, as alleged by

Lauderdale, was not sufficiently severe or pervasive to satisfy the requirements

of title VII, also decided that Arthur’s behavior did not create a viable § 1983

claim. That is error.

To state a viable claim under § 1983, “a plaintiff must (1) allege a violation

of rights secured by the Constitution or laws of the United States and (2) dem-

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No. 06-41636

onstrate that the alleged deprivation was committed by a person acting under

color of state law.” Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir.

1994). It is undisputed that Arthur acted under color of state law, and “sexual

harassment in public employment violate[s] the Equal Protection Clause of the

Fourteenth Amendment” and is therefore actionable under § 1983. Southard v.

Tex. Bd. of Criminal Justice, 114 F.3d 539, 550 (5th Cir. 1997). Thus, the initial

question here, as under title VII, is whether Arthur’s behavior amounts to ac-

tionable sexual harassment.

Section 1983 and title VII are “parallel causes of action.” Cervantez v.

Bexar County Civil Serv. Comm’n, 99 F.3d 730, 734 (5th Cir. 1996). Accordingly,

the “inquiry into intentional discrimination is essentially the same for individual

actions brought under sections 1981 and 1983, and Title VII.” Wallace v. Tex.

Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996) (citing Briggs v. Anderson, 796

F.2d 1009, 1019-21 (8th Cir. 1986)). As demonstrated above, title VII requires

that actionable harassment be severe or pervasive. We apply the same standard

under § 1983 and reach the same conclusion. Because Arthur’s behavior, as al-

leged, was pervasive, it creates an actionable § 1983 claim about which there is

a genuine issue of material fact, so summary judgment is not appropriate.

B.

Arthur avers that, in the event we conclude, as we have, that his alleged

behavior does constitute sexual harassment, he is nonetheless entitled to quali-

fied immunity. The district court, though it did not need to reach the issue,

agreed that Arthur was entitled to qualified immunity. Again we disagree.

The qualified immunity analysis requires us first to determine “whether

the plaintiff[‘s] allegations, if true, establish a violation of a clearly established

right.” Wallace v. County of Comal, 400 F.3d 284, 289 (5th Cir. 2005) (citing

Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998) (en banc)). Next, “if

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No. 06-41636

the plaintiff[] ha[s] alleged a violation, the court must decide whether the con-

duct was objectively reasonable in light of clearly established law at the time of

the incident.” Id.

Answering the first question in the qualified immunity analysis is easy

in this case. The right to be free of sexual harassment that creates a hostile

work environment is clearly established and has been since the Court decided

Meritor in 1986. See Meritor, 524 U.S. at 66. Answering the second question in

the qualified immunity analysis is only slightly more complicated. Although no

one thinks that sexual harassment is objectively reasonable, the question is

whether a reasonable person would have thought Arthur’s specific acts constitut-

ed sexual harassment; that brings us back to the original question whether his

behavior amounted to sexual harassment under title VII or § 1983.

Given that actionable sexual harassment under title VII must be “objec-

tively . . . offensive,” Faragher, 524 U.S. at 787 (citing Harris, 510 U.S. at 21-22),

such behavior cannot be “objectively reasonable” for purposes of the qualified

immunity inquiry. Thus, qualified immunity can never offer protection for sexu-

al harassment because, if it is actionable at all, the harassment is by definition

objectively offensive and unreasonable, and qualified immunity protects only the

“objectively reasonable,” County of Comal, 400 F.3d at 289 (citing Hare, 135 F.3d

at 325). Because we have already determined that Arthur’s alleged behavior is

actionable under title VII and § 1983, we have necessarily determined that such

behavior was objectively offensive and, therefore, not objectively reasonable.

Thus, he is not entitled to qualified immunity.

IV.

Lauderdale claims constructive discharge. To prove that, a “‘plaintiff must

establish that working conditions were so intolerable that a reasonable employee

would feel compelled to resign.’” Brown v. Kinney Shoe Co., 237 F.3d 556, 566

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No. 06-41636

(5th Cir. 2001) (quoting Faruki v. Parsons, 123 F.3d 315, 319 (5th Cir. 1997)).

The following events are relevant evidence that a reasonable employee would

feel compelled to resign:

(1) demotion; (2) reduction in salary; (3) reduction in job responsibil-

ities; (4) reassignment to menial or degrading work; (5) reassign-

ment to work under a younger supervisor; (6) badgering, harass-

ment, or humiliation by the employer calculated to encourage the

employee’s resignation; or (7) offers of early retirement [or continued

employment on terms less favorable than the employee’s former

status].

Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000) (internal citations

omitted).

A plaintiff is not required to demonstrate that the employer specifically

intended to force his resignation, Haley v. Alliance Compressor, 391 F.3d 644,

650 (2004) (citation omitted), but “[c]onstructive discharge requires a greater de-

gree of harassment than that required by a hostile environment claim,” Kinney

Shoe, 237 F.3d at 566. Lauderdale has presented no evidence of demotion, re-

duction in salary or responsibilities, reassignment, or altered terms of employ-

ment. She has offered evidence only of harassment, and there is no evidence

that the harassment was calculated to encourage her resignation, nor is there

evidence of any aggravating factors, such as an employer’s “invidious intent to

create or perpetuate the intolerable conditions compelling resignation.” Haley,

391 F.3d at 650 (citation omitted).

Lauderdale has merely reiterated the facts that constituted harassment

and has failed to mention constructive discharge except in the summary-of-the-

argument section of her brief. Thus, she has offered no additional facts that

might establish the “greater degree of harassment” necessary for constructive

discharge. Her failure to brief and correctly to distinguish constructive dis-

charge from her harassment claim means she has failed to create a genuine is-

sue of material fact that a reasonable employee would have felt compelled to re-

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No. 06-41636

sign under the same circumstances.

V.

In summary, because the TDCJ has successfully asserted the Ellerth/Fara-

gher defense, the summary judgment in favor of the TDCJ is AFFIRMED. The

denial of the constructive discharge claim against the TDCJ is also AFFIRMED.

The summary judgment as to the § 1983 claim against Arthur and Arthur’s qual-

ified immunity defense is REVERSED. This matter is REMANDED for further

proceedings as required.

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