Federal District Court Opinions
XXXXX v. RESEARCH ANALYSIS AND MAINTENANCE, INC., (W.D.La.
7-26-2006) XXXXX v.
RESEARCH ANALYSIS AND MAINTENANCE, INC. A/K/A RAM. Docket
No. 04-1014. United States District Court, XXXXX, July 26, 2006
MEMORANDUM RULING
DEE DRELL, District Judge
Before the Court are three (3) motions: (1) “Defendant’s
Motion for Summary Judgment against Plaintiff, XXXXX,”
(doc. #34) (2) “Defendant’s Motion for Summary Judgment
against Plaintiff, XXXXX,” (doc. #30) and (3)
“Defendant’s Motion for Summary Judgment against Plaintiff,
XXXXX,”(doc. #32) wherein the defendant, Research
Analysis and Maintenance, Inc. (“RAM”) moves for summary
judgment in its favor pursuant to Rule 56 of the Federal
Rules of Civil Procedure. Plaintiffs oppose the motions.
FACTUAL STATEMENT
Plaintiffs, XXXXX, XXXXX, XXXXX, allege
the following in their Petition. Plaintiffs were at all
relevant times employed by RAM at its location at XXXXX.
In October 2001, RAM was awarded a
government contract for control of the vehicle maintenance
of the multiple integrative laser engagement systems. Adana
XXXXX was hired by RAM in 2003; Regina XXXXX began her
employment in 1997 with Lockheed Martin, the predecessor
subcontractor, and was retained by RAM when it took over
the contract in 2001. Sarah XXXXX began her employment in
1998 with Lockheed Martin and was retained by RAM also in
2001.
During the RAM contract, Woody Harrelson served as the
site manager at XXXXX. Page 2 Plaintiffs allege that
beginning in 2002, Harrelson engaged in inappropriate
conduct towards them. Specifically, Sara XXXXX complains of
the following conduct: Speaking to Sara about other women
with whom he had relationships, using pejorative sexual
terms to refer to female co-employees, repeated use of
offensive, unprofessional, and obscene profanity, repeated
comments about his own sexual prowess and sexual
interactions with other women, pervasive sexually
inappropriate and offensive emails, photographs, jokes and
videos, inappropriate comments of a sexual nature, and
inappropriate, sexually offensive touching.
Regina XXXXX complains of the following conduct by
Harrelson: Inappropriate sexual comments concerning
Regina’s breasts, inappropriate touching of a sexual
nature, repeated comments of a sexually explicit and
inappropriate nature, throwing items into her cleavage,
pursing his lips and blowing kisses to Regina,
inappropriate comments about performing sexual acts on
Harrelson, repeatedly telling her that he loved her,
describing sexual activities with other women, repeated
descriptions of his own sexual prowess, repeated use of
sexually inappropriate, offensive and obscene profanity,
circulation of emails, pictures, jokes, and videos of a
sexually explicit nature.
Adana XXXXX complains of the following conduct by
Harrelson: Repeated use of extreme profanity including
obscene profanity, inappropriate physical touching of XXXXX,
including pressing a cell phone up her buttocks, repeated
descriptions of sexual interactions with other women, and
Harrelson’s repeated descriptions of his sexual prowess.
Plaintiffs allege that in late July 2003, they lodged a
complaint to RAM through a Human Resources employee,
Bethany Waldron, who was at XXXXX. Plaintiffs complain
of the following: Harrelson and RAM instituted a
constructive layoff of Adana, reduced her hours to zero,
failed to promote her to full-time, refused to include her
in training classes, continued and ongoing threats to Page
3 her employment, and termination from employment.
Harrelson and RAM retaliated against Regina XXXXX in the
following manner: Following Regina around the workplace,
providing her with a less favorable evaluation and
performance reviews, transferring her out of the office and
into the field, limiting her training which affected her
opportunities for promotion, ostracizing her from
coemployees, refusing to allow her to take her vacation
time, imposing rules that only applied to her and Sara
XXXXX, moving her from one unit to another to prevent her
from obtaining supervisor’s pay, repeated threats to her
job and constructive discharge. Regina also complains that
she did not receive pay commensurate with other male
employees in her position.
Harrelson and RAM retaliated against Sarah XXXXX in the
following manner: Issuance of a verbal disciplinary warning,
less favorable performance reviews and evaluations,
transfer out of the office and into the field, moving her
into two different units in less than three months in order
to interfere with her opportunity to train, ostracizing her
from her fellow co-workers, refusing her vacation,
following her and watching her in the performance of her
job, limiting her time off in order to complete her
schooling as a registered nurse and constructive discharge.
Adana asserts the following causes of action against RAM:
(1) sexual harassment which created a hostile work
environment in violation of XXXXX Revised Statute
23:332 et seq., (2) retaliation in violation of XXXXX
Revised Statute 51:2231 et seq., (3) constructive discharge
in violation of XXXXX Revised Statute 23:332 et seq.,
(4) retaliation because she disclosed a workplace act or
practice in violation of XXXXX Revised Statute 23:967,
et seq., and (5) failure to promote in violation of
XXXXX Revised Statute 23:332.
Regina asserts the following causes of action against RAM:
(1) sexual harassment which created a hostile work
environment in violation of XXXXX Revised Statute
23:332 et seq., (2) Page 4 retaliation in violation of
XXXXX Revised Statute 51:2231 et seq., (3) retaliation
because she disclosed a workplace act or practice in
violation of XXXXX Revised Statute 23:967, et seq., and
(4) failure to pay her an equal amount to male employees
because of her sex in violation of XXXXX Revised
Statute 23:332, et seq.
Sara asserts the following causes of action against RAM:
(1) sexual harassment which created a hostile work
environment in violation of XXXXX Revised Statute
23:332 et seq., (2) retaliation in violation of XXXXX
Revised Statute 51:2231 et seq., and (3) retaliation
because she disclosed a workplace act or practice in
violation of XXXXX Revised Statute 23:967, et seq.
As a result of the alleged discrimination, retaliation and
reprisal practiced by RAM, the Plaintiffs assert that they
have suffered humiliation, embarrassment, loss of self
esteem, extreme mental and emotional distress, as well as
physical harm and injury.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories and admissions on
file, 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 judgment as a matter of
law.”[fn1] As to issues which the non-moving party has the
burden of proof at trial, the moving party may satisfy this
burden by demonstrating the absence of evidence supporting
the non-moving party’s claim.”[fn2] Once the movant makes
this showing, the burden shifts to the non-moving party to
set forth specific facts showing that there is a genuine
issue for trial.[fn3] The burden requires more than mere
allegations or Page 5 denials of the adverse party’s
pleadings. The non-moving party must demonstrate by way of
affidavit or other admissible evidence that there are
genuine issues of material fact or law.[fn4] There is no
genuine issue of material fact if, viewing the evidence in
the light most favorable to the non-moving party, no
reasonable trier of fact could find for the non-moving
party.[fn5] If the evidence is merely colorable, or is not
significantly probative, summary judgment may be
granted.”[fn6]
On summary judgment, a court first must look to substantive
law to determine the essential elements of a case and who
has the burden of proof on each element.[fn7] “After
consulting the applicable substantive law to determine
which facts and issues are material, we review the evidence
in the light most favorable to the non-movant relating to
those issues.”[fn8] Nonetheless, to preclude the entry of
summary judgment, the non-movant must make a sufficient
showing on every essential element of its case for which it
has the burden of proof at trial.[fn9] Thus, “Rule 56(c)
mandates the entry of summary judgment against a party who
has failed to make an evidentiary showing sufficient to
establish an essential element of her case.”[fn10] Page 6
LAW AND ANALYSIS
Sara XXXXX
Sara asserts claims of sexual harassment and retaliation
under XXXXX law. RAM maintains that it is entitled to
judgment in its favor as a matter of law because the
undisputed facts of this case show that Sara XXXXX has no
evidence to support the essential elements of her claims
and she cannot carry her summary judgment burden of proof.
Due to the similarities in XXXXX’s
antidiscrimination/harassment law and Title VII to the
Civil Rights Act of 1964, federal courts routinely look to
federal precedent in deciding state law claims of
harassment.[fn11]
In Casiano v. AT&T Corp.,[fn12] the Fifth Circuit has
outlined a roadmap to be followed in all cases alleging
sexual harassment by a supervisor. The first step is to
determine whether the complaining employee has or has not
suffered a “tangible employment action.”[fn13] If the court
determines that the employee has suffered a tangible
employment action, then the case is classified as a “quid
pro quo case; if she has not, the suit is classified as a
case of “hostile environment.”[fn14]
In a quid pro quo case, the court must determine whether
the tangible employment action actually resulted from her
acceptance or rejection of the supervisor’s alleged
harassment.[fn15] If no such nexus is shown, then the
employer is not liable for the supervisor’s conduct.[fn16]
If a nexus is proven, Page 7 the employer is vicariously
liable for the supervisor’s behavior and cannot avail
itself of the one and only affirmative defense provided in
Faragher v. City of Boca Raton,[fn17] and Burlington
Industries v. Ellerth.[fn18]
If the plaintiff cannot prove that she suffered a tangible
employment action, the case is deemed to be a hostile
environment case. The plaintiffhas the burden of proving
that the harassment was not only severe or pervasive, but
also that it was based on the plaintiff’s sex and that it
altered the terms and conditions of the plaintiff’s
employment.[fn19] If the allegations of harassment are not
sufficiently severe or pervasive or are not based on sex,
then the employer is not liable for the supervisor’s
conduct.[fn20] If, however, the allegations are found to
rise to an actionable level, the employer is entitled to
assert the Faragher/Ellerth affirmative defense.[fn21]
The affirmative defense is comprised of two elements: (1)
that the employer exercised reasonable care to prevent or
correct promptly any sexual harassment; and (2) that the
employee unreasonably failed to take advantage of any
preventative or corrective opportunities provided by the
employer or to avoid harm otherwise.[fn22]
RAM argues first that Sara did not suffer a tangible
employment action and the case should be analyzed as a
hostile environment case. A tangible employment action is
one which “constitutes Page 8 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.”[fn23] Sara alleges that she was
constructively discharged. To prove a constructive
discharge, Sara must be able to establish through competent
summary judgment evidence, that her working conditions were
so intolerable that a reasonable person in her position
would have felt compelled to resign.[fn24] Whether a
reasonable employee would feel compelled to resign depends
on the circumstances, with special consideration of the
following non-exclusive factors: (1) demotion; (2)
reduction in salary; (3) reduction in job responsibilities;
(4) reassignment to menial or degrading work; (5)
reassignment to work under a younger supervisor; (6)
badgering, harassment, or humiliation by the employer
calculated to encourage the employee’s resignation; and (7)
offers of continued employment on terms less favorable than
the employee’s former status.[fn25]
RAM argues that Sara has no evidence to establish a
genuine issue of fact as to whether she experienced any of
the seven factors outlined above. RAM further argues that
Sara was forced to resign because her schedule conflicted
with her nursing school clinical rotations. Being unable to
complete her nursing school clinicals, Sara tendered a
letter of resignation to RAM on or about May 17,
2004.[fn26] Sara denies that she voluntarily resigned her
employment in May 2004, and argues that RAM constructively
discharged her by refusing to allow her to work part-time
to accommodate her nursing school clinical schedule. Sara
submits evidence that RAM accommodated another employee,
Page 9 Shawn McMahon, who was enrolled in the exact same
program as Sara, and allowed that employee to work
part-time. A jury could reasonably conclude that RAM’s
decision not to accommodate Sara, while choosing to
accommodate another employee similarly situated, forcing
Sara to resign, is a tangible employment action.
The next step in the analysis is to determine whether the
tangible employment action actually resulted from her
acceptance or rejection of Harrelson’s alleged
harassment.[fn27] If no such nexus is shown, then the
employer is not liable for the supervisor’s conduct.[fn28]
To constitute an actionable claim of hostile environment
sexual harassment and “to succeed on a constructive
discharge claim, the plaintiff must show a greater degree
of harassment than is required for a hostile environment
claim.”[fn29] The first instance of harassment occurred in
2002, and the second and third instances in the summer of
2003. Sarah lodged the sexual harassment complaint to
Bethany Waldron on July 30, 2003. The following week RAM
sent its ombudsman to investigate the claims. Shortly after
the investigation RAM formally reprimanded Harrelson. As a
result of the remedial action taken by RAM, no further
complaints were lodged against Harrelson by anyone.[fn30]
Sara resigned in May 2004 and re-applied for employment at
RAM one month following her resignation. The Court must
Page 10 determine whether the constructive discharge
suffered by Sara resulted from her acceptance or rejection
of Harrelson’s alleged sexual harassment.[fn31] Even though
the Court has determined that there is a genuine issue of
material fact as to whether Sara was constructively
discharged, that discharge cannot be said to have been
caused by Harrelson’s alleged sexual harassment. There is
no evidence of Harrelson sexually harassing Sara after
August 2003, when he was reprimanded. Thus, it cannot be
said that Harrelson’s sexual harassment caused Sara to
resign. Accordingly, the Court finds that there is no nexus
or connection between Sara’s constructive discharge and the
sexual harassment claims.
Sara also alleges that RAM retaliated against her in
violation of state law because she complained about
Harrelson’s alleged sexual harassment. RAM argues that
Sara’s claim must fail because she cannot establish a prima
facie case of retaliation. To prove retaliation, an
employee must prove: (1) the employee engaged in a
protected activity; (2) the employer took adverse
employment action against the employee; and(3) a causal
connection exists between that protected activity and the
adverse employment action.[fn32] RAM does not dispute that
Sara engaged in a protected activity, but argues that she
did not suffer an adverse employment action because she
resigned in order to complete her nursing clinicals. Sara
maintains that she was issued a verbal disciplinary
warning, received less favorable performance reviews and
evaluations, and RAM refused to accommodate her school
schedule — something it had done for the entirety of
her employment, and at the same time RAM accommodated Shawn
McMahon by allowing him to work part-time so that he could
take the same classes that Sara was taking. By this refusal
to accommodate her school Page 11 schedule, Sara argues
that RAM forced her to resign resulting in a constructive
discharge.
In Burlington Northern and Santa Fe Railway Co. v.
White,[fn33] the Supreme Court held that “a plaintiff must
show that a reasonable employee would have found the
challenged action materially adverse, `which in this
context means it well might have `dissuaded a reasonable
worker from making or supporting a charge of
discrimination.'”[fn34] The Court further stated the
following:
The anti-retaliation provision seeks to prevent employer
interference with “unfettered access” to Title VII’s
remedial mechanisms. It does so by prohibiting employer
actions that are likely “to deter victims of
discrimination from complaining to the EEOC,” the courts,
and their employers. And normally petty slights, minor
annoyances, and simple lack of good manners will not
create such deterrence.
We refer to reactions of a reasonable employee because we
believe that the provision’s standard for judging harm
must be objective. An objective standard is judicially
administrable. It avoids the uncertainties and unfair
discrepancies that can plague a judicial effort to
determine a plaintiff’s unusual subjective feelings.
* * *
We phrase the standard in general terms because the
significance of any given act of retaliation will often
depend upon the particular circumstances. Context matters.
“The real social impact of workplace behavior often
depends on a constellation of surrounding circumstances,
expectations, and relationships which are not fully
captured by a simple recitation of the words used or the
physical acts performed.” A schedule change in an
employee’s work schedule may make little difference to
many workers, but may matter enormously to a young mother
with school age children.[fn35] A supervisor’s refusal to
invite an employee to lunch is normally trivial, a
nonactionable petty slight. But to retaliate by excluding
an employee from a weekly training lunch that contributes
significantly to the employee’s professional advancement
might well deter a reasonable employee from complaining
about discrimination. Hence, a legal standard that speaks
in general terms rather than specific prohibited acts is
preferable, for an “act that would be immaterial in some
situations is material in others.” (Citations omitted)
Sarah was about to begin her clinical nursing training and
had asked her supervisor, Shannon Page 12 Midkiff about
part-time work. Midkiff informed Sara that she would have
to resign (even though RAM accommodated her co-worker and
classmate, Shawn McMahon). Sara resigned in order to
complete her nursing training. Sara has submitted summary
judgment evidence sufficient to create a genuine issue of
material fact for trial as to whether she was
constructively discharged in retaliation for filing a
sexual harassment complaint against her supervisor.
Regina XXXXX
Regina asserts claims of sexual harassment, retaliation
and gender discrimination. Following the Casiano roadmap,
the Court must first determine if Regina suffered a
“tangible employment action” which would result in the case
being classified as a quid pro quo case.[fn36] RAM argues
that Regina received no decrease in her compensation or in
her job responsibilities, nor was she fired from her job or
demoted. Regina asserts that she was constructively
discharged and submits the following issues of material
fact: In early 2004, Regina was informed that her husband
was being deployed to Iraq. She made a request to RAM to
allow her to come to work later, instead of 6:30 a.m. to
allow her time to get her child to daycare — a task
her husband normally performed. Harrelson and Arliss
Garner, Harrelson’s second in command, failed to
accommodate Regina’s request. Garner told Regina that he
“didn’t make [her husband] sign on the dotted line” to join
the military.[fn37] Garner also informed her that Harrelson
was not going to work with her because of the
lawsuit.[fn38] Regina took her request to corporate
requesting permission to report to work 30 minutes late (and
make it up at lunch time). Bethany Waldron initially told
Regina that she would be Page 13 accommodated. Regina was
out on medical leave with kidney stones from June 8, 2004
until July 15, 2004 and worked light duty from July 15,
2004 until August 16, 2004. While Regina was on medical
leave, RAM’s approach changed. E-mails at the corporate
level suggest that RAM was preparing to terminate Regina’s
employment while she was on light duty. Bethany began to
document Regina’s working hours and review her doctors’
excuses. Bill Smolak, the Human Resources Director for RAM,
complained that Harrelson and Garner failed to forward him
documentation of counseling sessions with Regina. In June
2004, Bethany stated to Smolak that Regina’s requests were
not “way off the course of reasonable,” considering
accommodations regularly granted to college students at
XXXXX, and that “we absolutely cannot trust Woody/his
motives in this case.”[fn39] The following excerpt from an
e-mail sent from Bethany to Bill Smolak on June 14, 2004
further indicates RAM and Harrelson’s intention towards
Regina:
Well, I have a different perspective on Woody’s
[Harrelson] suggestion of the part-time status. I suspect
that Woody has a different motivation other than helping
in asking Regina to be a part time employee. Since
part-time employees are not guaranteed a regular work
schedule/specific hours, I would suspect it is his
intention to essentially get rid of her [because he
wouldn’t have to schedule her for work]. Personally, I
believe it is a really bad idea. I hate to say it but we
absolutely cannot trust Woody/his motive in this case. I
have zero confidence that Woody and Arliss can be trusted
to schedule her as they would the rest of the part-time
employees [given their track record with her].[fn40]
Regina argues that Harrelson engaged in badgering,
harassment and humiliation of her — so much so that
she suffered stroke-like symptoms from the stress. While
she was out on leave, Harrelson called her to ask if she
was going to return to work or quit.[fn41] When she
returned from Page 14 medical leave, Regina was informed
that she would have to follow her regular work schedule
without accommodations for her child care issues. Regina
received four warning notices for tardiness and was
informed by Harrelson that she was being recommended for
termination. On August 31, 2004, Regina maintains that she
resigned so that she would not have a discharge on her
record. Regina has presented sufficient evidence to create
a genuine issue of material fact for trial as to her having
suffered an adverse employment action. Next, the Court must
determine whether the constructive discharge suffered by
Regina resulted from her acceptance or rejection of
Harrelson’s alleged sexual harassment.[fn42] Even though
the Court finds that Regina suffered a tangible employment
action, Regina has submitted no summary judgment evidence
to create a genuine issue of material fact that her
discharge was connected to the alleged sexual harassment.
There is no evidence of Harrelson sexually harassing Regina
after August 2003, when he was reprimanded. Thus, it cannot
be said that Harrelson’s sexual harassment caused Regina to
resign. Accordingly, the Court find that there is no nexus
between the alleged constructive discharge and the sexual
harassment claim. However, the Court does find that Regina
has submitted sufficient evidence to create a genuine issue
of material fact as to whether she was constructively
discharged in retaliation for her filing a sexual
harassment complaint against her supervisor, Harrelson.
Finally, Regina asserts a claim of gender discrimination
alleging that she was paid less than her male counterparts
for performing the same job. To prove a claim of gender
discrimination, Regina must present competent summary
judgment evidence as to each of the following elements: (1)
that she is a member of a protected class; (2) that she was
qualified for the position; and (3) that she suffered an
adverse employment action; and (4) either that she was
replaced by someone not in Page 15 the protected class or
others similarly situated were treated more
favorably.[fn43] It is not disputed that Regina is a member
of a protected class.
Regina was promoted from a Tech I to a Tech II in June
2002. Regina alleges that she was performing the duties of
a Tech III, and as such, was qualified for the pay and/or
position of a Tech III. She further alleges that all male
employees performing Tech III duties were treated more
favorably because they received Tech III pay.
Regina testified that when she was moved into the office,
she scheduled employees subordinate to her and conducted
evaluations. She testified that Garner informed her she
would help him supervise the warehouse employees. Regina
asserts that she assisted in evaluations and created
schedules, functions only Tech III’s had the authority to
perform. Regina complains she was paid Tech II pay, but was
entitled to Tech III’s pay rate.
RAM submits undisputed evidence that Regina took the Tech
III test and failed it, and further asserts that she was
not interested in Tech III status. RAM submitted evidence
that Regina’s responses on the test were largely comprised
of “I don’t know” and “I don’t care.”[fn44] Furthermore,
Regina testified she did not expect Tech III pay for the
job duties that she would be doing assisting Garner in the
office.[fn45] Because she has failed to establish that she
was qualified for the Tech III position, Regina cannot
establish the necessary elements of a gender discrimination
claim.
Adana XXXXX
Adana XXXXX asserts claims of sexual harassment, retaliation
and failure to promote under Page 16 XXXXX law. The
first step of the analysis for the sexual harassment claim
is to determine if Adana suffered a “tangible employment
action.”[fn46] The Supreme Court in Faragher and Ellerth
require the complaining employee to not only establish the
existence of a tangible employment action, but also to show
that the adverse action “resulted from” the employee’s
acceptance or rejection ofthe alleged harassment.[fn47] The
Fifth Circuit described the standard as requiring the
plaintiff to prove a causal “nexus” between the so-called
“harassment” and the claimed adverse action.[fn48]
RAM argues that Adana was terminated as a direct result of
her own inappropriate behavior in the workplace and, in
particular, inappropriate behavior directed at RAM’s
customer — the Army. Adana denies that the conduct
that provoked her termination ever took place.
Adana lodged her complaints of sexual harassment to
Bethany Waldron on July 29, 2003 via a telephone
conversation. Bethany immediately forwarded the complaints
to other RAM officials, including her supervisor, Anson
Schulz. Schulz informed Harrelson of the allegations of
sexual harassment on August 5, 2003. RAM’s investigation
took place between August 6-8, 2003. Many of the
Plaintiffs’ allegations were corroborated by the
investigator. The investigator concluded that “RAM
employees have either witnessed or experienced various
types of harassment by Mr. Harrelson, which includes
inappropriately touching female employees, inappropriately
threatening termination of employees jobs and using
insulting and degrading language in the workplace.”[fn49]
On August 13, 2003, Harrelson received a letter of
reprimand. On August 14, 2003 Harrelson Page 17 held a
meeting with his employees and told them he had been
cleared of all charges, he would be the manager “until hell
freezes over,”[fn50] and instructed the employees not to go
to Bethany Waldron for anything.[fn51] That same day, after
the meeting, Adana received an unsigned wholly negative
employee performance evaluation that was placed in her
file. Also, that same day, Harrelson sent Adana home in a
layoff reducing her hours to zero from August 14, until
September 29, 2003.[fn52] No other part-time employees were
laid off.
Adana returned to work on September 30, 2003 until October
2, 2003 when she was once again laid off.[fn53] Adana
returned to work on November 15, 2003. On November 19, 2003
two soldiers filed written statements of sexual harassment
against Adana.[fn54] No ombudsman from RAM investigated
the allegations of sexual harassment. Adana was terminated
on November 20, 2003 because of the sexual harrasment
allegations made by the two soldiers. Adana denies that she
made any of the statements alleged by the soldiers. No
investigation was conducted, and although there were
allegedly eight or nine other soldiers that witnessed the
allegations of sexual harassment, there is no evidence in
this record to corroborate the two soldiers’ statements.
Anson Shultz admits that he immediately terminated Adana as
a result of these allegations and did not order an
investigation.[fn55]
As to the claims of sexual harassment against Harrelson,
Adana was temporarily laid off by Page 18 having her
hours reduced to zero, while other part-time employees were
allowed to stay on the payroll and train to retake a test.
Five days after returning to work from the second lay-off,
she was terminated for allegations of sexual harassment.
The Court finds that it is highly suspect that (1) there
was no investigation to corroborate the statements made by
the two soldiers, (2) Adana was not interviewed, (3) none
of the other soldiers that were allegedly present when the
statements by Adana were made, were questioned, and (4) no
investigation was conducted at all by RAM. There is a
genuine issue of material fact for trial as to whether
Adana’s termination was a tangible employment action. The
Court must determine whether the termination suffered by
Adana resulted from her acceptance or rejection of
Harrelson’s alleged sexual harassment.[fn56] Even if the
fact finder were to determine that Adana had been falsely
accused of these allegations, and Adana suffered a tangible
employment action, there is no nexus between her
termination and the claims of sexual harassment against
Harrelson. In other words, her rejection of any sexual
advances did not cause her to be terminated. However, the
Court does find that Adana has created a genuine issue of
material fact for trial as to her claim of retaliation.
Adana also makes a claim of failure to promote. To
establish a prima facie case in a failure to promote case,
the employee must demonstrate: (1) that the employee is a
member of the protected class, (2) that he sought and was
qualified for the position, (3) he was rejected for the
position, and (4) that the employer continued to seek other
applicants with the plaintiff’s qualifications.[fn57] Adana
testified that on or about July 28, 2003, she applied and
was tested for the full-time Tech I position when she was a
part-time employee. Adana was the only female who took the
test. After the test, Page 19 Harrelson held a meeting
with all the part-time employees who took the test and
informed them that everyone performed poorly on the test
and that no one would be promoted. Even though Harrelson
refused to let Adana see her test, Adana testified that she
was informed by George Sheppard that she scored 17 out of
20 on the written test — the highest score. She
further testified that the Tech IIIs who administered the
hands-on portion of the test told her she performed
excellent on the test.[fn58] Bethany testified that all of
the part-time techs missed at least half of the
questions.[fn59] Bethany further testified that for the
hands-on testing, no documentation was provided, yet she
indicated in her testimony that normally such documentation
is provided.[fn60] Adana was laid off on August 14, 2003.
During her layoff, the other part-time employees were
allowed to take training classes. Because of the layoff,
Adana was not able to participate in the training classes.
After the training classes, Adana maintains that RAM
promoted Tony Prewitt. RAM argues that because Adana cannot
prove that she scored high enough to warrant promotion on
the exam, her claim must fail. Neither the written test nor
the results of the hands-on test has been submitted into
the record. Accordingly, there is a genuine issue of
material fact as to Adana’s failure to promote claims.
CONCLUSION
Based on the foregoing, the motion for summary judgment
filed by defendant Research Analysis and Maintenance, Inc.
against Sara XXXXX will be granted in part and denied in
part. The motion to dismiss Sara’s claim of sexual
harassment will be granted; the motion to dismiss the
claims of retaliation will be denied. The motion for
summary judgment filed by RAM against Regina Page 20 Wade
will be granted in part and denied in part. The motion to
dismiss Regina’s claim of sexual harassment will be granted;
the motion to dismiss the claims of retaliation will be
denied; the motion to dismiss Regina’s gender
discrimination claim will be granted. The motion for
summary judgment filed by RAM against Adana XXXXX will be
granted in part and denied in part. The motion to dismiss
Adana’s claim of sexual harassment will be granted; the
motion to dismiss the claim of retaliation will be denied;
and the motion to dismiss the failure to promote will be
denied.
The Court determines that there is no just reason for delay
and will direct entry of final judgment under rule 54(b) of
the Federal Rules of Civil Procedure.