Hawkins v. Avalon Hotel Group, LLC
Hawkins v. Avalon Hotel Group, LLC
Opinion of the Court
RULING
This matter is before the Court on the Motion for Summary Judgment filed by the Defendant, Avalon Hotel Group, LLC d/b/a Towneplaee Suites by Marriott Gonzales (“Defendant” or “Avalon”).
I. Factual Background
On November 4, 2011, Plaintiff applied for a part-time position with Avalon’s Townplace Suites by Marriott in Gonzales (“the Hotel”) as a laundry attendant in the housekeeping department. Plaintiff was hired for this position on November 8, 2011. During her employment with Avalon, Plaintiff also worked as a personal caregiver for Sunset Personal Care. Six months after Plaintiff began working at the Hotel, Avalon placed a new management team at the Hotel, led by LaTisha Mallet (“Mallet”), who joined the Hotel on May 1, 2012. Shortly thereafter, Plaintiff complained to Mallet that she was being required to clean more rooms than before Mallet arrived, and that she was being asked now to do more than laundry which she believed was all she was hired to do. Mallet responded that, as the nighttime housekeeping employee, Plaintiffs job description included such tasks.
General Manager Stephanie Ehrhard (“Ehrhard”) began working at the Hotel on May 21, 2012. Upon her arrival at the Hotel, Ehrhard was instructed by upper management to review and evaluate the Hotel’s current staffing and modify it to reduce excessive payroll. Based on the size of the Hotel, Ehrhard concluded that employees should be performing multiple tasks, i.e., laundry attendants should be performing room housekeeping duties and also keeping public areas clean. Along with other members of the management team, Ehrhard conducted a position-by-position and department-by-department review. The team’s goal was to identify redundant positions in an effort to combine these positions and reduce payroll; Plaintiffs laundry attendant position was found to be such a position.
Plaintiff contends that on May 23, 2013, while she was in the Hotel lobby getting coffee near the front desk, Ehrhard approached her from behind and propositioned her for a sexual relationship. Specifically, Plaintiff testified that Ehrhard stated, in these exact words: “I would like to have [sic] sexual relationship with
Plaintiff claims that she was off the day after the alleged proposition, and that when she returned to work on May 25, Ehrhard had eliminated her job as it had previously existed and increased Plaintiffs job duties. Plaintiff contends that the elimination of her job as laundry attendant and the increase of her new job duties on the day after she alleges she rebuffed Ehrhard’s sexual advances, caused Plaintiff such distress that she could no longer work. Plaintiff alleges she went to the hospital with symptoms of blurry vision and nausea which she attributed to the alleged incident with Ehrhard. Plaintiff claims that when she missed work on May 26 and the days following, she called in each day and reported her doctor’s excuse. The record reflects that Plaintiff hired a lawyer and filed a complaint with Avalon via e-mail on May 30, 2012 through the Defendant’s corporate e-mail system.
Ehrhard contends that she remembers being introduced to Plaintiff by Mallet on the day she arrived at the Hotel. Ehrhard alleges that she next met with Plaintiff on May 25, 2012, to discuss Plaintiffs job duties at which time Plaintiff asked for a raise. Ehrhard contends the management team had discovered that Plaintiff had not been performing housekeeping duties that were part of her laundry attendant position. The team decided that a job title change would effectively indicate to Plaintiff that she was expected to complete these duties. During this meeting between Ehrhard and Plaintiff, Defendant contends interim Manager Linda Marshall and Avalon’s Head of Human Resources, Sofiya Chaney, were seated within earshot just a few feet away. At this meeting, Plaintiffs request for a raise was denied because raises occur only after a yearly performance review. Defendant contends that Ehrhard and Plaintiff discussed her job changes and Plaintiff accepted them. Plaintiff also requested and was provided her initial job application. Plaintiff then reported to the laundry area where she stated she was leaving because she had a headache.
Ehrhard denies ever making any sexual advances towards Plaintiff or even seeing Plaintiff on May 23. Ehrhard has also testified that she is not a homosexual and currently lives with her male fiancé. In fact, Ehrhard contends the Plaintiff has completely fabricated the allegations.
Avalon contends that, beginning on May 26, 2012, the day following the meeting regarding Plaintiffs new job duties, Plaintiff did not appear for work. Avalon also contends that, despite the fact that the Employee Handbook required Plaintiff to report any absences due to illness to management, Plaintiff only called the front desk, left her name, and advised that she was sick.
Mallet reported to Ehrhard and Chaney that Plaintiff had missed several days of work. Mallet believed that Plaintiffs unexcused absences and failure to directly contact management or present a doctor’s note was cause for her termination under the Employee Handbook.
Avalon contends that, throughout Plaintiffs employment, it had a detailed Employee Handbook which covered several topics including: equal opportunity of employment, sexual harassment reporting procedures, unexcused absenteeism, and grounds for immediate termination.
Plaintiff submitted a claim to the Equal Employment Opportunity Commission (“EEOC”) on June 15, 2012, and after receiving her Right to Sue letter, filed this lawsuit on September 14, 2012. Plaintiff asserts claims of same-sex sexual harassment, retaliation, and intentional infliction of emotional distress. Avalon has moved for summary judgment on the federal claims.
II. Law and Analysis
A. Motion in Limine To Exclude Untimely Disclosed Exhibits
Defendant has filed a Motion in Limine to Exclude Untimely Disclosed Exhibits regarding medical evidence which Plaintiff referred to and attached as exhibits in her Opposition to Defendant’s Motion for Summary Judgment. For the reasons set forth in the Defendant’s supporting memorandum, the Court finds that the motion should be GRANTED. The Court will not consider the exhibits which were not properly disclosed under the Federal Rules of Civil Procedure. Furthermore, Plaintiff failed to respond to this motion; therefore, there is no basis in the record for allowing the late-produced material under any exception to the general rule.
B. Summary Judgment Standard
Summary judgment should be granted if the record, taken as a whole, “together ■with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
If the moving party meets this burden, Rule 56(c) requires the nonmovant to go beyond the pleadings and show by affidavits, depositions, answers to interrogatories, admissions on file, or other admissible evidence that specific facts exist over which there is a genuine issue for trial.
C. Title VII Sex Discrimination
1. Discrimination “Based on Sex”
In a case of alleged same-sex harassment, the plaintiff must establish that the harasser’s conduct constitutes sex discrimination. If so, the next step is for the plaintiff to demonstrate that the challenged conduct meets the applicable standards for either a quid pro quo or hostile environment claim,
In Cherry v. Shaw Coastal, Inc.
In this case, Plaintiff has presented no evidence under the second or third methods set forth above; thus, she is clearly proceeding under the first method of proof — that Ehrhard was homosexual and allegedly made an explicit proposal of sexual activity. Avalon argues that Plaintiff has failed to prove that she was discriminated based on sex because she has failed to present competent summary judgment evidence that the alleged harasser is a homosexual. Thus, Avalon contends that, even if the Court accepted the unsubstantiated allegation that Ehrhard propositioned Plaintiff for a sexual relationship, Plaintiff has failed to satisfy her burden of providing evidence that Ehrhard is a homosexual. Avalon cites Plaintiffs own deposition testimony wherein she acknowledged that she did not know if Ehrhard was gay.
Plaintiff responds that the requirement that she provide evidence that the alleged harasser is homosexual is “ridiculous.”
While the Court must view the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed to offer sufficient summary judgment evidence to defeat Avalon’s motion. Although Plaintiff expresses her distaste for the requirement to provide evidence of the alleged harasser’s homosexuality, this is indeed the law. Oncale requires that a plaintiff show that the alleged harasser made “explicit or implicit proposals of sexual activity” and provide “credible evidence that the harasser was homosexual.”
2. Quid Pro Quo Claim
Even if Plaintiff could set forth a claim of discrimination “based on sex,” the Court finds that Plaintiff fails to establish a claim of quid pm quo harassment. In
“A tangible employment action constitutes 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.”
Avalon contends Plaintiff cannot show a tangible employment action because it was not the alleged harasser (Ehrhard) but Sofiya Chaney who made the decision to terminate Plaintiff. Avalon cites Fifth Circuit and district court jurisprudence where courts have concluded that no tangible employment action occurred when the person making the decision was someone other than the alleged harasser.
Plaintiff contends that the elimination of her position constituted a tangible employment action which changed the terms and conditions of her employment. Plaintiff also cites Ehrhard’s deposition testimony where she was asked who made the decision to terminate Plaintiff and answered: “I don’t know who made the final decision. I know that she had failed to report to work for numerous days. I would assume it was probably me who made that final decision. But I probably said go ahead and do the paperwork after the last day she didn’t come to work.”
The Court finds that the title change and additional job duties given to Plaintiff in the May 25, 2012, meeting do not constitute a tangible employment action. First, the record is clear that Plaintiffs job was not eliminated in the sense that she suffered any loss of job; rather,
The Court finds that, based on the evidence in the record, Plaintiff has failed to show that her termination resulted directly from her “acceptance or rejection of her supervisor’s alleged sexual harassment” as required by the law.
Q: All right. You didn’t make the decision to terminate Peggy Hawkins?
A: No. Peggy Hawkins did not show up for work. We consider that job abandonment.
Q: Who made the decision to fill out the paperwork and terminate her?
A: I’m not 100 percent sure. I’m assuming it was myself because I usually do say do the paperwork. This is so many days, do the paperwork.67
Avalon cites Mallet’s deposition testimony that it was she who determined that after failing to show for work and properly report her illness, Plaintiff could be subject to termination pursuant to the Employee Handbook.
Therefore, even if Plaintiff could establish that her alleged discrimination was “based on sex,” she has failed to satisfy the elements required for a quid pro quo claim. Avalon would also be entitled to summary judgment on this basis for this claim.
D. Retaliation
Plaintiff also claims that she was fired in retaliation for reporting the alleged harassment to Human Resources. To establish a prima facie case of retaliation under Title VII, a plaintiff must show that: “(1) [s]he participated in a protected activity; (2) [her] employer took an adverse employment action against [her]; and (3) there is a causal connection between the protected activity and the adverse employment action.”
Avalon contends Plaintiff cannot satisfy a prima facie case of retaliation
Alternatively, if Plaintiff could establish a prima facie case of retaliation, Avalon argues Plaintiff has failed to prove that the legitimate, non-retaliatory business reason for Plaintiffs termination is a pretext for discrimination. Avalon presented evidence that Plaintiffs termination was for unexcused absences, failing to properly advise her supervisor of illness-related absences, and failing to provide a doctor’s note as instructed.
Plaintiff contends that both the change in her job title and duties and her ultimate termination were in retaliation for her refusal to accept Ehrhard’s alleged sexual proposition and for filing a formal complaint about the alleged incident. Plaintiff claims that because of these actions, she was terminated within four hours of filing her complaint. Plaintiff also attempts to argue that because she was terminated after her complaint was received, “there is a mixed motive as to the termination that creates a genuine issue of material fact as to the reason for the termination.” However, Avalon is correct that a retaliation claim is governed by a standard of “but for” causation, not a mixed-motive standard.
Avalon also contends it had a legitimate business reason for changing Plaintiffs job title and duties. Avalon argues that the “added tasks” were always part of Plaintiffs job requirements, and it only changed Plaintiffs job title to remove any doubt that Plaintiffs job duties were not limited to laundry. Additionally, Avalon offers evidence that the new management team evaluated all employees and positions and made changes as a cost-reducing measure, devoid of any retaliatory motive. As noted previously, Plaintiffs actual job duties, salary, hours, and benefits remained unchanged. Avalon contends that Plaintiff has failed to meet her burden of providing evidence that this legitimate, non-retaliatory reason is a pretext.
The Court finds that Plaintiff has failed to establish genuine issues of material fact to overcome Avalon’s motion for summary judgment on her retaliation claim. Even assuming, without expressly finding, that Plaintiff has satisfied the three requirements for a prima facie case of retaliation,
E. Intentional Infliction of Emotional Distress
Neither party raised Plaintiffs claim of intentional infliction of emotional distress.
III. Conclusion
For the reasons set forth above, the Motion for Summary Judgment by Defendant Avalon Hotel Group, LLC, d/b/a Towneplace Suites by Marriott Gonzales, is hereby GRANTED.
. Rec. Doc. No. 13.
. Rec. Doc. No. 15.
. Rec. Doc. No. 17.
. Deposition of Peggy Hawkins, Rec. Doc. No. 13-5, p. 66, lines 16-17.
. Id., p. 72, lines 3-6.
. Id., p. 74, lines 8-9.
. Rec. Doc. No, 15-4.
. Deposition of Stephanie Ehrhard, Rec. Doc. No. 13-8, p. 32.
. Deposition of LaTisha Mallet, Rec. Doc. No. 13-7, p. 45.
. Deposition of Peggy Hawkins, Rec. Doc. No. 13-5, pp. 81-82.
. Id. at pp. 82-83.
. Id. atpp. 116-119.
. Id. at p. 95.
. Id. atp. 97.
. Rec. Doc. No. 13-10.
. Id.
. Deposition of LaTisha Mallet, Rec. Doc. No. 13-7, p. 47.
. Rec. Doc. No. 13-12.
. Id. at p. 32.
. Rec. Doc. No. 13-14.
. Rec. Doc. No. 13-6.
. Id. at p. 10 (AVALON-066).
. Id.
. Id. at p. 12.
. Id.
. Rec. Doc. No. 17.
. Fed.R.Civ.P. 56(c); New York Life Ins. Co. v. Travelers Ins. Co., 92 F.3d 336, 338 (5th Cir. 1996); Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 758 (5th Cir. 1996).
. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). See also Gunaca v. Texas, 65 F.3d 467, 469 (5th Cir. 1995).
. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting Celotex, 477 U.S. at 323-25, 106 S.Ct. at 2552).
. Id. at 1075.
. Wallace v. Texas Tech Univ., 80 F.3d 1042, 1046-47 (5th Cir. 1996).
. Little, 37 F.3d at 1075; Wallace, 80 F.3d at 1047.
. Wallace, 80 F.3d at 1048 {quoting Little, 37 F.3d at 1075). See also S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996).
. McCallum Highlands v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995), as revised on denial of rehearing, 70 F.3d 26 (5th Cir. 1995).
. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-51, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
. La Day v. Catalyst Technology, Inc., 302 F.3d 474 (5th Cir. 2002).
. 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).
. Id. at 80, 118 S.Ct. 998; See also La Day, 302 F.3d at 478.
. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).
. 668 F.3d 182, 188 (5th Cir. 2012).
. 302 F.3d at 480.
. Cherry, 668 F.3d at 188, quoting La Day, 302 F.3d at 480.
. Id.
. Rec. Doc. No. 13-5, p. 83.
. Rec. Doc. No. 13-8, p. 14.
. Id. atp. 10; p. 14.
. Rec. Doc. No. 13-7, p. 45.
. Rec. Doc. No. 15-3, p. 8.
. Oncale, 523 U.S. at 80-81, 118 S.Ct. 998.
. 349 Fed.Appx. 900, 904 (5th Cir. 2009); see also Noto v. Regions Bank, 84 Fed.Appx. 399, 402 (5th Cir. 2003). Despite Plaintiffs protests that Love is inapplicable to this case (a quid pro quo case) because it involved a hostile work environment claim, the Court notes that this part of the analysis is applicable to the case at bar. This particular determination of whether a plaintiff has established that the discrimination was "based on sex” is made at the outset before a court arrives at the question of quid pro quo or hostile work environment.
. Ontiveros v. City of Rosenberg, 564 F.3d 379, 383 (5th Cir. 2009).
. Garcia v. LumaCorp., Inc., 429 F.3d 549, 555 (5th Cir. 2005)(citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548) (quotation omitted).
. Bouvier v. Northrup Grumman Ship Systems, Inc., 350 Fed.Appx. 917, 920 (5th Cir. 2009)(citing Clark v. Am.’s Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997)).
. Little v. Liquid Air Corp., 37 F.3d at 1075.
. Rucker v. Sears, Roebuck and Co., No. 12-1540, 2013 WL 486784 (E.D.La. Feb. 6, 2013), quoting Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395 (5th Cir. 2008).
. To the extent Plaintiff argues her medical evidence (not considering those exhibits which were excluded for the reasons set forth above) is summary judgment evidence which supports her claim, this argument fails. The exhibits only show that Plaintiff was treated for the conditions of which she complained. The fact that a doctor/nurse noted Plaintiff's allegations against Ehrhard as the cause of her condition is not competent summary judgment evidence supporting her claim; it is simply a statement of what Plaintiff told medical personnel and not a diagnosis that her conditions were caused by the alleged sexual harassment.
. Plaintiff’s Complaint alleges she suffered an "extreme hostile work environment.” Rec. Doc. No. 1, p. 4, ¶ 12. In the parties' Joint Status Report, Plaintiff also lists as a pending issue: "Whether the actions of Stephanie rise to the level of severe and pervasive conduct.” Rec. Doc. No. 5, p. 3. Despite these allegations, Plaintiff contends in her Opposition to Avalon's Motion for Summary Judgment that the Love case is inapplicable because it is a hostile work environment case, and "[tjhis is a tangible employment action/retaliation case.” Rec. Doc. No. 15-3, p. 13. Plaintiff failed to argue or offer any evidence of a hostile work environment; therefore, the Court considers this claim waived. Furthermore, the Court notes that under applicable Fifth Circuit jurisprudence, the established facts and evidence in the record of this case do not support a finding of severe or pervasive conduct as required by law. Even in the event that Plaintiff could satisfy the requirements of a prima facie hostile work environment claim, Avalon would be entitled to the Faragher/Bllerth affirmative defense based on the record before the Court.
. Calmes v. JPMorgan Chase Bank, 943 F.Supp.2d 666, 678 (E.D.La. 2013)(quoting La Day, 302 F.3d at 481) (citations omitted).
. Id., citing Casiano v. AT & T Corp., 213 F.3d 278, 283-84 (5th Cir. 2000). Plaintiff concedes this is not a hostile work environment case; as such, the Faragher/Ellerth affirmative defense relied upon by Avalon is unavailable in a quid pro quo case. (See also, Donaldson v. CDB, Inc., 335 Fed.Appx. 494, 500 (5th Cir. 2009)("With quid pro quo harassment ... an employer is subject to vicarious liability, and no affirmative defense is available.")).
. Id. at 678, quoting La Day, 302 F.3d at 481-82 (5th Cir. 2002)(quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998))(internal quotation marks omitted).
. Id., citing Ellerth, 524 U.S. at 761-61, 118 S.Ct. 2257.
. Id., quoting Casiano, 213 F.3d at 283.
. See Calmes, 943 F.Supp.2d at 678-80; Moss v. Wal-Mart Stores, Inc., No. 04-3090, 2007 WL 846530 at *8 (E.D.La. Mar. 19, 2007).
. Rec. Doc. No. 13-8, p. 30.
. Williams v. Barnhill’s Buffet Inc., 290 Fed.Appx. 759, 762 (5th Cir. 2008)(quoting Watts v. Kroger Co., 170 F.3d 505, 510 (5th Cir. 1999)).
. Casiano, 213 F.3d at 283.
. Rec. Doc. No. 13-8, p. 42, lines 17-25; p. 43, line 1.
. Rec. Doc. No. 13-7, p. 47, lines 3-10 (“Q: And what is your reason for recommending termination of Peggy Hawkins? A; Because she never showed up for her scheduled shift. She never presented a doctor’s note stating she needed to be off of work. And the — in the handbook it states three no call no shows is— could be termination.”).
. Id. at p. 32, lines 10-11.
. Id. at p. 37, lines 3-14.
. Id. at p. 33, lines 21-25.
. Id. at p. 34, lines 18-24
. Rec. Doc. No. 13-8, p. 31, lines 14-19.
. Plaintiff has made no argument and presented no evidence that Mallet and Chaney
. Conversely, even if Plaintiff's speculation was sufficient to create a genuine issue of material fact that she suffered a tangible employment decision resulting from her refusal of Ehrhard’s alleged advances, she has failed to satisfy the first test of showing that the alleged discrimination was "based on sex” as set forth previously herein.
. Calmes, 943 F.Supp.2d at 682, citing Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 484 (5th Cir. 2008).
. 42 U.S.C. § 2000e-3(a).
. Calmes, 943 F.Supp.2d at 683, quoting Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).
. Id., citing Burlington, 548 U.S. at 68, 126 S.Ct. 2405 (citations omitted).
. Id., citing Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 519-20 (5th Cir. 2001).
. Id., quoting Aryain, 534 F.3d at 484 (quotations omitted).
. Id., quoting Aryain, 534 F.3d at 484.
. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, - U.S. -, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013).
. The Court is not convinced that Plaintiff has satisfied the causal connection requirement as it is unclear whether any member of Avalon's staff was aware of the letter sent by Plaintiff’s counsel to Human Resources prior to Plaintiff's termination. It is clear from the record in this case that Plaintiffs unexcused absences and failure to properly report and provide doctor's notes for her alleged illnesses were under investigation prior to any complaint being made by Plaintiff to Human Resources. However, giving Plaintiff all benefit of the doubt, the Court conducts the retaliation analysis assuming arguendo that Plaintiff has carried her prima facie burden.
. See Laxton v. Gap, Inc., 333 F.3d 572, 580 (5th Cir. 2003).
. Rec. Doc. No. 13-5, pp. 14-50.
. See Rec. Doc. No. 1, p. 4, ¶ 13. The Court has pendent jurisdiction over Plaintiff's state law claim under 28 U.S.C. § 1367.
. Wernecke v. Garcia, 452 Fed.Appx. 479, 482 (5th Cir. 2011) (citing Baker v. Metro. Life Ins. Co., 364 F.3d 624, 632 (5th Cir. 2004)).
. The parties are advised that only the claim of intentional infliction of emotional distress is to be briefed.
. Rec. Doc. No. 13.
Reference
- Full Case Name
- Peggy HAWKINS v. AVALON HOTEL GROUP, LLC d/b/a Towneplace Suites by Marriott Gonzales
- Cited By
- 1 case
- Status
- Published