Garcia v. Algiers Charter Schools Association et al, No. 2:2017cv08126 - Document 80 (E.D. La. 2018)
Court Description: ORDER AND REASONS - For the foregoing reasons, 27 Green's partial motion for summary judgment is DENIED and ACSA's 29 Motion for Summary Judgment is GRANTED. Signed by Judge Sarah S. Vance on 10/11/2018. (cg)
Download PDF
<![CDATA[
Garcia v. Algiers Charter Schools Association et al Doc. 80 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA LINDSAY ARMOND GARCIA VERSUS CIVIL ACTION NO. 17-8126 ALGIERS CHARTER SCHOOLS ASSOCIATION, INC., WILLIAM J . FISHER SCHOOL, AND STANLEY GREEN, PERSONALLY AND IN HIS CAPACITY AS WILLIAM J . FISHER SCHOOL SECTION “R” (3) ORD ER AN D REASON S Before the Court are defendant Stanley Green’s m otion for partial sum m ary judgment on the issue of intentional infliction of em otional distress 1 and defendant Algiers Charter Schools Association’s (ACSA) m otion for sum m ary judgment on the issue of Title VII dam ages. 2 The Court denies Green’s motion because a reasonable jury could find that Green’s actions were extreme and outrageous, that Garcia suffered severe em otional distress, and that Green acted intentionally. It grants ACSA’s m otion because it has shown as a m atter of law that the Ellerth/ Faragher defense applies and that it satisfies both required parts of the defense. 1 2 R. Doc. 27. R. Doc. 29. Dockets.Justia.com I. BACKGROU N D This case arises out of defendant Green’s alleged sexual harassm ent of plaintiff Lindsay Arm ond Garcia. During the 20 16 school year, Garcia was a fifth and sixth grade social studies teacher at William J . Fisher School in Algiers, Louisiana. 3 Beginning in August of 20 16, Garcia and Green, the school’s principal, had a series of interactions that included text m essages, phone calls, in person conversations, and notes left on Garcia’s desk. 4 Garcia also m ade a recording of Green that includes the phrases “snatch som eone” and “keep them for a period of tim e.”5 ACSA has a sexual harassment policy of which Garcia was generally aware. 6 Rather than filing a form al com plaint under the policy, Garcia discussed Green’s behavior with another em ployee at the school. 7 This third party then reported the allegations to m embers of ACSA’s adm inistration. 8 ACSA asked Garcia to m eet with its Executive Director of Hum an Resources and its Chief of Staff on Novem ber 30 , 20 16. 9 At the m eeting, Garcia m ade numerous allegations against Green, showed 3 4 5 6 7 8 9 R. Doc. 29-2 at 3 ¶ 11; R. Doc. 48-8 at 1 ¶ 1. R. Doc. 27-6 at 2 ¶ 5, 5 ¶23; R. Doc. 48-8 at 2 ¶¶ 7-8, ¶¶ 10 -15. R. Doc. 27-6 at 4 ¶ 21; R. Doc. 48-8 at 3 ¶ 16. R. Doc. 29-2 at 1-2 ¶ 1, ¶ 9; R. Doc. 29-4 at 28. R. Doc. 29-2 at 3 ¶¶ 14-15; R. Doc. 29-4 at 89-90 . Id. R. Doc. 29-2 at 4 ¶16; R. Doc. 29-4 at 89. 2 texts with Green, and played the recording of Green discussing “snatching someone.”10 In response to the m eeting with Garcia, Green was placed on adm inistrative leave with pay beginning on December 2, 20 16. 11 Between the m eeting on November 30 and Green’s leave on December 2, Green went into Garcia’s classroom twice to ask to rem ove a student from class, which Garcia interpreted as an attem pt to intim idate her. 12 ACSA also hired Laura Tafaro to provide an independent third party investigation of Garcia’s allegations. 13 Although Tafaro was hired as an independent third party, she identified herself to Garcia as ACSA’s attorney. 14 Garcia declined to participate in Tafaro’s investigation. 15 Without any inform ation from Garcia directly, Tafaro concluded that Green did not violate ACSA’s sexual harassment policy. 16 Green was allowed to return to work on J anuary 3, 20 17 after attending one-on-one sexual harassm ent training. 17 Garcia subm itted additional inform ation to Tafaro on J anuary 12, and Tafaro re-opened the 10 11 12 13 14 15 16 17 R. Doc. 29-2 at 4 ¶16; R. Doc. 29-4 at 95. R. Doc. 29-2 at 4 ¶ 18; R. Doc. 29-11. R. Doc. 29-2 at 5 n. 42; R. Doc. 29-4 at 79-80 . R. Doc. 29-2 at 4 ¶ 17; R. Doc. 48-8 at 1 ¶ 3. R. Doc. 29-4 at 10 9-111. R. Doc. 29-2 at 5 ¶ 20 ; R. Doc. 29-4 at 112. R. Doc. 29-2 at 5 ¶ 21. R. Doc. 29-2 at 5 ¶ 22; R. Doc. 29-4 at 123. 3 investigation. 18 She determ ined that, in light of the new evidence, Green had violated the sexual harassment policy. 19 As a result, Green was placed back on adm inistrative leave on J anuary 13, 20 17 and then fired from his position as principal at William J . Fisher School on February 13. 20 Garcia began visiting a counselor in J anuary of 20 17 for depression and anxiety. 21 On August 22, 20 17, Garcia filed this suit in federal court, claim ing negligence, intentional infliction of em otional distress, and assault and battery against Green and ACSA and seeking dam ages under Title VII. 22 The Court granted ASCA’s m otion to dismiss all claim s against it except for the Title VII dam ages. 23 The Court also granted Green’s motion to dism iss the assault and battery claim against him . 24 Defendant Green now m oves for partial sum m ary judgm ent on the ground that Garcia cannot prove her claim of intentional infliction of em otional distress against him . 25 Defendant ACSA m oves for sum m ary judgment on the ground that that ACSA is not liable to 18 19 20 21 22 23 24 25 R. Doc. 48-8 at 4 ¶ 19; R. Doc. 29-2 at 6 ¶¶ 23-25; R. Doc. 29-13. Id. R. Doc. 48-8 at 4 ¶ 20 ; R. Doc. 29-2 at 6 ¶ 26. R. Doc. 27-6 at 5 ¶ 24; R. Doc. 48-8 at 4 ¶ 21. R. Doc. 1. R. Doc. 21. Id. R. Doc. 27. 4 Garcia under Title VII of the Civil Rights Act of 1964. 26 Garcia opposes both m otions. 27 II. LEGAL STAN D ARD Sum m ary judgment is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgment.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 10 75. A dispute about a m aterial fact is genuine “if the evidence is such that 26 27 R. Doc. 29. R. Doc. 48; R. Doc. 49. 5 a reasonable [factfinder] could return a verdict for the nonm oving party.” Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 248 (1986). If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonm oving party can then defeat the m otion by either countering with evidence sufficient to dem onstrate the existence of a genuine dispute of m aterial fact, or “showing that the m oving party’s evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by m erely pointing out that the evidence in the record is insufficient with respect to an essential elem ent of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of 6 sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322). III. D ISCU SSION A. Gre e n H as Faile d to Sh o w th at Garcia’s In te n tio n al In flictio n o f Em o tio n al D is tre s s Claim is Me ritle s s Green argues that Garcia cannot prove intentional infliction of em otional distress against him as a matter of law because the text m essages that Green and Garcia exchanged were friendly and casual rather than extreme or outrageous, 28 and Green’s behavior does not meet the high bar required to show intentional infliction of em otional distress. 29 Green argues that, accepting all of the facts contained in Garcia’s initial, J anuary 12, 20 17 affidavit, her claims fail as a m atter of law. 30 While Green’s statement of m aterial facts does not contain a com plete account of Garcia’s allegations against him , he does not dispute for the purposes of this m otion any of Garcia’s allegations contained in her statem ent of m aterial facts to the extent 28 29 30 R. Doc. 27-1 at 7. Id. at 14. Id. at 1; R. Doc. 41 at 3. 7 that they are consistent with the affidavit. 31 The Court therefore accepts the facts stated in Garcia’s J anuary 12, 20 17 affidavit as undisputed. 32 See Fed. R. Civ. P. 56(c)(3) (Courts “m ay consider other m aterials in the record” when ruling on sum m ary judgment m otions); Turco v. Hoechst Celanese Corp., 10 1 F.3d 10 90 , 10 93 (5th Cir. 1996) (holding that courts m ay consider m aterials in the record not cited by the parties). To state a claim for intentional infliction of em otional distress, a plaintiff m ust allege that: (1) the defendant’s conduct was extrem e and outrageous; (2) the em otional distress suffered by the plaintiff was severe; and (3) the defendant intended to inflict severe em otional distress or knew that such distress would be certain or substantially certain to result from his conduct. W hite v. Monsanto Co., 585 So.2d 120 5, 120 9 (La. 1991). To satisfy the first elem ent, the defendant’s conduct m ust “go beyond all possible bounds of decency, and . . . be regarded as atrocious and utterly intolerable in a civilized com m unity.” Id. Such conduct “does not extend to m ere insults, indignities, threats, annoyances, petty oppressions, or other 31 See R. Doc. 63. Green argues that the Court should not accept as fact Garcia’s allegations contained in other, later subm itted exhibits. R. Doc. 41 at 1-5. Because the Court grants the m otion for Garcia without considering her additional allegations, there is no need to address Green’s concerns about the additional docum ents. 8 32 trivialities. Persons m ust necessarily be expected to be hardened to a certain am ount of rough language, and to occasional acts that are definitely inconsiderate and unkind.” Id. “[I]n a workplace setting,” Louisiana courts have “lim ited the cause of action to cases which involve a pattern of deliberate, repeated harassment over a period of tim e.” N icholas v. Allstate Ins. Co., 765 So. 2d 10 17, 10 26 (La. 20 0 0 ). Indeed, conduct that would not be outrageous when viewed “as an isolated incident” can “becom e such when repeated over a period of time.” Bustam ento v. Tucker, 60 7 So.2d 532, 538 (La. 1992). In addition, “[a] plaintiff’s status as an em ployee m ay entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if he were a stranger.” W hite, 585 So. 2d at 1210 . Under this standard, Green has not shown that Garcia’s claim fails as a m atter of law. Garcia has testified that Green repeatedly harassed her—at work, in phone conversations, and by text—for three and a half m onths. 33 In addition to repeated text m essages and calls, Garcia testified that Green m ade com m ents to her in person about falling in love with her body. 34 He talked about “all of the things [he] would do to [her].”35 She explained to him 33 34 35 See generally R. Doc. 48-2. Id. at 2. Id. 9 that she was uncom fortable, but he continued to pursue her. 36 He required her to step out in the hallway while she was teaching to tell her how sexy she was. 37 He stared at her body and asked her why she made him “beg for it.”38 On another occasion, he stared at her body and said: “I just can’t help m yself. Why you keep m aking me beg for it? Why don’t you just give m e that pussy?”39 Garcia also recorded Green explaining his plan to “snatch som eone,” “keep them for a period of tim e,” “not hurt them or m ark them or bruise them,” but “kidnap” and “subdue” them . 40 Green m ade these com ments in front of Garcia’s students. 41 He also told Garcia that she would have to give him something “in return” if he approved her request for tim e off. 42 Green m ade threatening rem arks to Garcia to dem onstrate his power over her. He told her not to go to her direct supervisor with questions or concerns and instead to report only to him because she was a “special case.”43 He told her that he ran the school and could do “whatever he want[ed].”44 36 37 38 39 40 41 42 43 44 Id. Id. at Id. Id. at Id. at Id. Id. Id. at Id. 3. 5. 4. 3. 10 He followed her around and chastised her when she didn’t respond to his calls or texts and when she tried to avoid him at school. 45 He m ade sure that he personally conducted her perform ance evaluation, and he gave her low scores so that he could raise her scores later and m ake him self “look good” for “coaching” her. 46 When Garcia resisted signing the perform ance evaluation because Green had not actually evaluated her teaching before giving her these scores, he told her to shut up and sign the paper. 47 Shortly thereafter, the supervisor assigned to conduct the sam e evaluation told her that it would occur two weeks later on Decem ber 1, 20 16. 48 Garcia went Green’s office to ask why other staff m embers had no knowledge of the evaluation he conducted, and Green stared at her body and said to her, “I’m sorry, what were you saying? I just can’t help m yself. Why you keep m aking m e beg for it? Why don’t you just give m e that pussy?”49 Green is not entitled to sum m ary judgm ent because a jury could reasonably find that Green’s conduct is extrem e and outrageous. Garcia testifies to an ongoing litany of highly inappropriate com ments that establish a pattern of repeated, deliberate harassm ent. While there is “no litm us test 45 46 47 48 49 Id. at Id. at Id. at Id. at Id. 2-3. 4. 4-5. 5. 11 for outrageousness,” Green’s com ments go beyond what any civilized com m unity would tolerate. Skidm ore v. Precision Printing and Pkg., Inc., 188 F.3d 60 6, 613 (5th Cir. 1999). This is especially true because Green m ade sexual and threatening com m ents in front of Garcia’s students, who are children. Garcia is also entitled to greater protection because Green had substantial power over her, including personally approving her tim e off and conducting her perform ance reviews. 50 See W hite, 585 So. 2d at 1210 . The incidents that Green alleges are within the realm of behavior that previous decisions have recognized as extreme. See Bustam ento, 60 7 So.2d at 543 (holding that repeated cursing, sexual com m ents and advances, asking about personal information, and threatening with violence qualified as outrageous even if individually the incidents would not have risen to that level). A reasonable juror could also find that Garcia suffered severe em otional distress as a result of Green’s actions. W hite, 585 So. 2d at 120 9. Garcia visited a counselor after Green’s repeated harassment and was treated for anxiety and depression. Garcia also testified that she dreaded com ing to work, 51 sat in her car crying and vom iting for over an hour and then had to call in sick, 52 and that Green’s actions m ade her hate a job that she had 50 51 52 Id. at 4-5. Id. at 3. Id. at 8. 12 previously loved. 53 This distress is beyond the level that a reasonable person would be expected to endure. Id. at 1210 . Garcia was not m erely upset. She alleges ongoing physical symptom s as a result of Green’s harassment and illness that required her to go hom e from school in the m iddle of the day. She also entered counseling for anxiety and depression after the harassment. These sym ptoms are sufficient to show severe em otional distress. See Skidm ore, 188 F.3d at 614 (holding that losing weight, anxiety attacks, headaches, nightmares, and post-traum atic stress disorder are sufficient evidence of severe em otional distress). Finally, a reasonable juror could also conclude that Green intended to inflict em otional distress on Garcia. A reasonable jury could find that Green knew that his ongoing sexual advances were substantially certain to cause Garcia em otional distress, because she told him so directly on m ultiple occasions. 54 Sim ilarly, his performance review, his instruction not to com m unicate with her direct supervisor, and his com ment that he could do whatever he wanted, com bined with his unwanted advances, were likely to 53 Id. at 10 . Id. at 1-4. Garcia told Green that she was not interested in dating him and was uncom fortable beginning on August 16, the first tim e he asked her on a date. She repeatedly told him that she was not interested and that his com m ents m ade her extremely uncom fortable, alleging at least three other instances in which she did so directly (on August 22, Septem ber 12, and the week of October 10 ). 13 54 cause em otional distress. They suggested that Garcia was powerless to stop his behavior and that he could inflict adverse consequences at will. A jury could find that Green should have known his conduct would cause a reasonable person em otional distress. Green cites several cases that he argues prove Garcia’s claim fails as a m atter of law. The first of these is Sm ith v. Am edisy s, in which the Fifth Circuit affirm ed the trial court’s grant of sum m ary judgment in favor of the defendant. 298 F.3d 434 (5th Cir. 20 0 2). Green contends that the pattern of behavior in Sm ith is m ore egregious than Green’s behavior, so that Green’s conduct cannot qualify as extreme or outrageous. This argum ent is m eritless, because the Fifth Circuit evaluated only the second prong of the W hite test in Sm ith (whether the plaintiff suffered severe em otional distress), and it drew no conclusions as to whether the conduct alleged satisfied the first prong (whether the defendant’s conduct was extreme and outrageous). Id. at 449. As to the second prong of the W hite test, the plaintiff in Sm ith alleged only that she felt em barrassed, angry, depressed, and suffered from headaches. Id. at 450 . She received m edical treatm ent only for her headaches, and her treating physician testified that he had no record of the headaches being related to stress or sexual harassment. Id. Garcia’s symptom s and treatm ent in the record before the Court are m ore serious. 14 Green also cites several non-binding district court and Louisiana appellate court cases with ostensibly sim ilar, but ultim ately distinguishable, facts. 55 These cases involve behavior that is either less vulgar or intim idating than Green’s conduct, or that is not sufficiently continuous and long-lasting to show a pattern of deliberate, repeated harassm ent over a period of tim e. See Barrera v. Aulds, No. 14-18889, 20 16 WL 30 0 1126, at *9 (E.D. La. May 25, 20 16) (plaintiff alleged that co-worker asked her to m eet him at his hotel, asked her to “lay down with him ” at his hotel, asked her to check on him in his hotel room, and followed her to bars and restaurants); Bradford v. Ins. Mgm t. Adm r’s of Louisiana, Inc., No. 0 5-150 4, 20 0 7 WL 2480 358, at *1 (W.D. La. Aug. 30 , 20 0 7) (plaintiff alleged that co-worker m ade rude com m ents, said she had a “baby-looking figure,” and tried to set her up on dates with customers); McClinton v. Sam ’s East, Inc., No. 11-2156, 20 12 WL 4483492, at *9 (W.D. La. Sept. 28, 20 12) (plaintiff alleged inappropriate com m ents, hugs, and pinching on two occasions); Beaudoin v. Hartford Acc. & Indem . Co., 594 So.2d 10 49, 10 50 -52 (La. App. 3 Cir. 1992) (plaintiff alleged that supervisor yelled, cursed, called her names such as “fat,” “stupid,” and “dum b,” and com mented on the inferiority of wom en generally). Intentional infliction of em otional distress is a fact-specific claim , 55 R. Doc. 27-1 at 17-21. 15 and “whether conduct [is] outrageous and extreme m ust be analyzed on a case-by-case basis.” Skidm ore, 188 F.3d at 613. None of the cases that Green cites speaks directly to the facts of this case. Garcia at least raises a m aterial issue of fact as to all three parts of her intentional infliction of em otional distress claim . Green’s m otion for partial sum m ary judgment is therefore denied. B. ACSA H as Sh o w n th at It Co m p lie d w ith Title VII ACSA seeks sum mary judgm ent on Garcia’s vicarious liability claim under Title VII of the Civil Rights Act of 1964. 56 While ACSA concedes for the purposes of sum m ary judgment that Green’s harassment was sufficiently severe and pervasive to create a hostile environm ent, 57 it seeks to absolve itself of liability by asserting an affirm ative defense available under the Suprem e Court cases, Burlington Industries v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton., 524 U.S. 775 (1998). 58 Title VII of the Civil Rights Act of 1964 provides in relevant part that “[i]t shall be an unlawful em ployment practice for an em ployer to . . . discrim inate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . 56 57 58 R. Doc. 29. R. Doc. 29-1 at 12. Id. at 12-13. 16 sex.” 42 U.S.C. § 20 0 0 e– 2(a)(1). Title VII is violated when a plaintiff alleges sexual harassm ent “sufficiently severe or pervasive to alter the conditions of [the victim ’s] employment and create an abusive working environm ent.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (internal quotation om itted). A workplace m ust be “perm eated with discrim inatory intim idation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim ’s em ployment and create an abusive working environm ent.” Harris v. Forklift Sy s., Inc., 510 U.S. 17, 21 (1993) (internal quotation m arks and citations om itted). The Supreme Court has distinguished between cases in which a hostile work environment is created by the plaintiff’s co-workers and cases in which the hostile work environm ent is created by the plaintiff’s supervisor. See Ellerth, 524 U.S. at 760 ; Faragher, 524 U.S. at 80 3. When the plaintiff’s supervisor is responsible, the employer can be held vicariously liable for the supervisor’s actions without any showing that the employer was personally negligent. See W atts v. Kroger Co., 170 F.3d 50 5, 50 9 (5th Cir. 1999). The only affirmative defense available to employers in a supervisor sexual harassment case in which an em ployee alleges a hostile work environment is the one announced by the Supreme Court in Ellerth and Faragher. See Casiano v. AT&T Corp., 213 F.3d 278, 288 Appendix (5th Cir. 17 20 0 0 ). The Ellerth/ Faragher defense is not available when a “tangible em ploym ent action” has been taken against the employee alleging a violation a Title VII. See W atts v. Kroger Com pany , 170 F.3d 50 5, 510 (5th Cir. 1999). The Ellerth/ Faragher affirm ative defense allows an em ployer to avoid vicarious liability if it can prove: “(a) that [it] exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff em ployee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S. at 80 7. To succeed, the em ployer m ust establish both prongs of the Ellerth/ Faragher affirm ative defense; otherwise the em ployer is not protected from vicarious liability for the supervisor’s harassment. See Casiano, 213 F.3d at 284. Garcia argues that her low perform ance review by Green is a tangible em ploym ent action that precludes the Ellerth/ Faragher defense. 59 Tangible em ploym ent actions are those that require “an official act of the enterprise, a com pany act,” such as “hiring, firing, failing to prom ote, reassignm ent with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, 524 U.S. at 761-62. Under this definition, the perform ance evaluation was not a tangible employment action, because 59 R. Doc. 49-1 at 9-10 . 18 Garcia does not allege that it directly affected her pay, position, or responsibilities. 60 Garcia posits that the evaluation was likely used in later hiring decisions, but she does not provide any evidence to support this assertion. 61 A negative perform ance review, without evidence that it was the cause of a significant change in em ployment status, does not constitute a tangible em ploym ent action. Casiano, 213 F.3d at 285 (holding that a negative evaluation was not a tangible em ployment action because there was a second, untainted perform ance review within the sam e twelve m onths giving the em ployee the same grade). ACSA m ay therefore assert the Ellerth/ Faragher defense if it can prove both required elem ents. To satisfy the first prong of the Ellerth/ Faragher defense, ACSA m ust show that it exercised reasonable care to prevent and prom ptly correct any sexually harassing behavior. Faragher, 524 U.S. at 80 7. A reasonable sexual harassment policy, of which the employee was aware is strong evidence of an em ployer’s reasonable care. Ellerth, 524 U.S. at 765; Pullen v. Caddo Parish School Board, 830 F.3d 20 5, 210 (5th Cir. 20 16) (“Where the plaintiff adm its that he or she was on notice of a [sexual harassm ent] policy and com plaint procedure and the court determ ines that the policy was reasonable, we have 60 61 Id. Id. 19 consistently found the first prong satisfied.”). A policy is reasonable when it specifically m entions sexual harassment, rather than sim ply referring to anti-discrim ination, and specifies a com plaint procedure. Id. (citing E.E.O.C. v. Boh Bros. Constr. Co., LLC, 731 F.3d 444, 463-65 (5th Cir. 20 13)). ACSA has a sexual harassment policy with a specific complaint procedure, and Garcia adm its that she was aware of this policy. 62 In addition, ACSA prom ptly investigated Garcia’s allegations once it learned of them. Garcia argues that ACSA failed to act prom ptly because Green returned to school on the day im m ediately after Garcia reported Green’s behavior on Decem ber 1, 20 16. 63 But Green was placed on adm inistrative leave the following day on December 2, and did not return to work until ACSA had com pleted its initial investigation. The Fifth Circuit has accepted an em ployer’s response as sufficiently swift when the em ployer took disciplinary action against the supervisor two m onths after the initial com plaint. Indest v. Freem an Decorating, Inc., 164 F.3d 258, 260 -61, 266 (5th Cir. 1999) (calling a response “swift and appropriate” when plaintiff reported harassm ent in m id-September and the employer took remedial action in early Novem ber). The passage of one day before Green was placed 62 63 R. Doc. 49-1 at 10 ; R. Doc. 29-4 at 28. R. Doc. 49-1 at 11. 20 on adm inistrative leave does not show that ACSA’s response was unreasonable. While ACSA did let Green return to work in early J anuary, he was placed back on adm inistrative leave shortly thereafter on J anuary 13, and then he was fired. ACSA’s investigation and adm inistrative leave are sufficient to show that its response to the com plaints was reasonable even if Green was not actually fired until two m onths after it learned of Garcia’s allegations. See Adam s v. City of Gretna, No. 0 7-9720 , 20 0 9 WL 28830 38, at *4 (E.D. La. Sept. 2, 20 0 9) (collecting Fifth Circuit cases holding that som e delay between reporting and response is reasonable). ACSA has m et its burden under the first Ellerth/ Faragher prong. The second prong of the Ellerth/ Faragher defense requires ACSA to show that Garcia unreasonably failed to take advantage of any preventative or corrective opportunities provided by ACSA to avoid harm . Ellerth, 524 U.S. at 765. An em ployee’s unreasonable failure to use the complaint procedure provided by her em ployer is sufficient to satisfy the em ployer’s burden. Id. Garcia did not file a com plaint through the procedures designated in ACSA’s sexual harassm ent policy, although she did m eet with representatives of ACSA when they found out about the harassment from a third party and asked to m eet with her. Garcia’s failure to officially report Green’s harassm ent for three and a half m onths was unreasonable despite 21 her complaints to third parties. See Thom pson v. Naphcare, Inc., 114 Fed. App’x 317, 324 (5th Cir. 20 0 4) (holding that failure to report for two m onths is unreasonable); W illiam s v. Barnhill’s Buffet Inc., 290 Fed. App’x 759, 763 (5th Cir. 20 0 8) (holding that inform al com plaints to co-workers are insufficient). Her decision not to take advantage of ACSA’s corrective opportunities allowed Green’s harassment to escalate and continue. Faragher, 524 U.S. at 80 6 (holding that sexual harassm ent victim s have a duty “to use such means as are reasonable under the circum stances to avoid or m inim ize damages”); see also Adam s, 20 0 9 WL 28830 38, at *6 (holding that plaintiff “should not have idly sat by until her work environment degenerated into a hostile one.”). Garcia argues that it was reasonable for her not to report the harassment because Green was powerful within the school and a good friend of officials at the very top of ACSA’s organizational structure. 64 She also argues that reporting would not have caused the behavior to stop because Garcia repeatedly told Green that she was not interested, and he was undeterred. 65 Under Fifth Circuit law, an em ployee has a duty to report harassment even when her previous reports were com pletely ignored and 64 65 R. Doc. 49-1 at 11-12. Id. at 12. 22 inspired additional harassment. W y att v. Hunt Ply w ood Co., Inc., 297 F.3d 40 5, 413 (5th Cir. 20 0 2) (holding that an em ployee who reported harassm ent and was met with additional harassment by the supervisor to whom she reported it, and whose em ployer m ade no response to the allegations, was unreasonable when she did not report later harassment to a different supervisor). If it was unreasonable for the plaintiff in W y att not to report her harassm ent after personally suffering adverse consequences, Garcia’s fear of adverse consequences is clearly not sufficient to defeat ACSA’s defense. Garcia therefore acted unreasonably when she failed to report Green’s harassment to anyone within ACSA’s adm inistration. ACSA has satisfied its burden as to both prongs of the Ellerth/ Faragher defense. IV. CON CLU SION For the foregoing reasons, Green’s partial m otion for sum m ary judgm ent is DENIED and ACSA’s m otion for summary judgm ent is GRANTED. New Orleans, Louisiana, this _ 11th _ _ _ _ day of October, 20 18. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 23
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
