Slaughter v. Coll. of the Mainland

JEANETTE SLAUGHTER, Plaintiff, v. COLLEGE OF THE MAINLAND, Defendant.

CIVIL ACTION NO. G-12-018

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

September 12, 2016

OPINION AND ORDER

Before the Court, with the consent of the parties, is Defendant College of the Mainland's Amended Motion for Summary Judgment (Dkt. Nos. 52-54), to which Plaintiff Jeanette Slaughter filed a response (Dkt. Nos. 62, 63), and Defendant filed a reply and objections to Plaintiff's summary judgment evidence. (Dkt. Nos. 65, 66). After reviewing the submissions of the parties and the applicable law, the Court issues this Opinion and Order.

I. BACKGROUND

Jeanette Slaughter (Slaughter) brought suit against the College of the Mainland (COM) under Title VII and 42 U.S.C. §§ 1981 and 1983,¹ claiming that she was subjected to retaliation after she was identified as a witness in a co-worker's complaint of sexual harassment by Al Bass (Bass), the director of the Physical Education, Leisure Activities, Wellness and Seniors (hereinafter, "PELAWS" or "the Department").

The undisputed evidence in this case reflects that Slaughter was an employee of COM from 1988 until 2014. In 1997, Slaughter transferred to the PELAWS Department in the gymnasium area where she worked as a clerk and then later became an Administrative Assistant.²

In 2006, the Director of Wellness, Mary Ann Urick, left the Department. Bass, who had worked in the Department since 1988 as an instructor or supervisor, agreed to assume some of Urick's supervisory duties. Slaughter and Geneva Murphy (Murphy), who was another Administrative Assistant, also agreed to assist in performing the additional duties and, in return, they were both provided with a 10% stipend which would continue until the position was filled.

In September 2007, Bass was promoted to lead the Department and shortly thereafter he began reorganizing the Department. As part of the reorganization, Bass hired Tige Cornelius (Cornelius) and Marlon Stevens (Stevens) to assume the duties once held by Urick and to provide the day-to-day task of supervising all Department personnel. Once Cornelius and Stevens assumed their supervisory positions, it eliminated the need for Slaughter and Murphy to continue to perform the additional duties and, hence, both were notified that their last stipends for "additional duties" would be September 2008.

On October 17, 2008, an employee in the Department, Sandra Brewer (Brewer), filed a grievance against Bass in which she alleged that he subjected her to sexual harassment and, in support of her claim, Brewer identified Slaughter as a witness. (Dkt. No. 52, Ex. 1(f); Dkt. No. 54, Ex. 15; Dkt. No. 65, Ex. 1). Following an investigation, Brewer's grievance was dismissedby COM; however, Brewer then re-urged her claims in state court where she brought suit against COM on February 16, 2010. (Dkt. No. 54, Ex. 15 (Brewer v. College of the Mainland, 2014 WL 3361921 (Tex.App.- Houston [1^st Dist.] 2014)).

In late June 2010, after urging employees in the Department to set aside their various personality issues and work together (Dkt. No. 52, Ex. 1(f)), Bass received a report from an employee that Slaughter was overheard making inappropriate and unprofessional comments about him to Tammy Stafford (Stafford), another Administrative Assistant in the Department.³ (Dkt. No. 52, Exs. 1(d), 1(f)). The report of Slaughter's "couch" comment triggered an investigation that included meetings with Slaughter's immediate supervisors⁴ and then with Bass.⁵ Throughout all the meetings, Slaughter steadfastly denied making the statement and Stafford stated that she did not recall Slaughter making the comment. With insufficient evidence to substantiate the report, the investigation was closed and Slaughter received neither a disciplinary action nor a disciplinary memorandum. (Dkt. No. 52, Exs. 1(a); 1(f)).

Following the investigation, Slaughter filed a grievance on August 19, 2010, claiming that Bass initiated the investigation of the reported couch comment as a means of retaliating against herfor because she was identified as a witness in Brewer's complaint against him for sexual harassment. (Dkt. No. 52, Ex. 1(a)). Slaughter also claimed that Bass had retaliated against her following the investigation of the reported couch comment by instructing other employees, under threat of discipline, not to interact with her. (Dkt. No. 25 at ¶36). In support of her contentions, Slaughter submitted audio recordings that she surreptitiously made during her July meetings with Bass.⁶ (Id.). COM investigated Slaughter's allegations and concluded that, while the evidence did not support a finding that Bass had retaliated against Slaughter, Bass had not been forthcoming during the investigation and, thus, in addition to placing him on a two week leave of absence, COM disciplined Bass for his conduct. (Dkt. No. 52, Exs. 1(a), 1(f)).

From August 23, 2010, to September 6, 2010, Slaughter was temporarily assigned to the senior adult office - an office outside of the gym - where she was asked to work until a vacancy, which resulted from the retirement of an employee, was filled.⁷ (Dkt. No. 53, Ex. 14). During this two week period of time, Slaughter performed duties that were consistent with her position as an Administrative Assistant and her pay and benefits remained the same. When Myers was able to assume the position on September 6, 2010, Slaughter returned to work in the gym area. (Dkt.No. 52, Ex. 1(d)).

When Slaughter returned to the gym area, she was assigned to work in the Wellness Center, which was located on the north side of the gym.⁸ Similar to her previous assignment, Slaughter's duties in the Wellness Center included checking people into the gym, as well as performing other tasks that were routinely carried out by an Administrative Assistant. In addition, her pay and benefits remained the same. Nevertheless, Slaughter felt that working in the Wellness Center was a "less desirable" assignment and she objected to numerous conditions⁹ in the area. (Dkt. No. 25 at 9). COM made several changes in response to Slaughter's complaints (i.e., a door chime was installed; a surveillance mirror was installed; her desk was moved away from the open space to a converted office space), however, Slaughter's complaints persisted.¹⁰ Although unrelated to her complaints, a decision was made to close the Wellness Center at the end of the summer of 2011. With the closure of the Center, Slaughter, along with her supervisor and the other part-time employees who worked in the area, were moved to the faculty suite on the south side of the gym. (Dkt. No. 52, Ex. 1(d)).

After Slaughter returned to the faculty suite, she complained that her classification was not changed when she was first assigned to the Wellness Center in September 2010. In other words,Slaughter, who was a 35 hour-a-week employee - a classification that she had held for several years in the Department - maintained that she should have been elevated to a 40 hour-a-week employee when she was assigned to the Wellness Center in September 2010. (Dkt. No. 53, Ex. 12). COM responded to the delayed complaint¹¹ by informing Slaughter that a change in classification was not merited because the 40 hour-a-week position was eliminated based on costs. (Dkt. No. 52, Ex. 1(f)). Nonetheless, approximately two years later, due to a change initiated on a campus-wide basis by the new College President, Slaughter, among others, received a change in classification to a 40 hour-a-week employee. On February 28, 2014, Slaughter retired. (Dkt. No. 52, Ex. 1(d)).

On November 17, 2011, Slaughter brought suit against COM asserting claims of retaliation under Title VII and, pursuant to 42 U.S.C. §§ 1981 and 1983, a First Amendment retaliation claim. COM moved for summary judgment on all of Slaughter's claims.¹² (Dkt. No. 52). Following the submissions by the parties, COM's Motion for Summary Judgment is ripe for adjudication.

II. STANDARD OF REVIEW

The Court analyzes Defendant's Motion under the well-established summary judgment standard. Fed. R. Civ. P. 56(c); see generally, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 576, 586-87 (1986); Burge v. Parish of St. Tammany, 187 F.3d 452, 464 (5^th Cir. 1999); United States v. Arron, 954F.2d 249, 251 (5^th Cir. 1992).

III. DISCUSSION

A. Title VII Retaliation Claim

Slaughter alleges that COM subjected her to retaliation in violation of Title VII. Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits employers from retaliating against an employee for engaging in activity protected by the Act. 42 U.S.C. § 2000e et seq.; Fitzgerald v. Sec'y, U.S. Dept. of Veterans Affairs, 121 F.3d 203, 206 (5^th Cir. 1997). A plaintiff can establish her Title VII claim either by direct or circumstantial evidence. Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5^th Cir. 2002). However, in the absence of direct evidence,¹³ the plaintiff's Title VII claims are properly analyzed under the McDonnell Douglas burden shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973).

As modified, the McDonnell Douglas framework consists of three stages. First, the plaintiff must establish a prima facie case of retaliation, which "creates a presumption that [heremployer] unlawfully [retaliated] against [her]." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). Second, if the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for the employment action taken against the plaintiff. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993). The employer's burden is one of production, not proof, and involves no credibility assessments. See, e.g., West v. Nabors Drilling USA, Inc., 330 F.3d 379, 385 (5^th Cir.2003). Third, if the employer meets its production burden, the...