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Burnett v. Texas Department of Criminal Justice

United States District Court, S.D. Texas, Houston Division

February 26, 2018

JAMES BURNETT, Plaintiff,
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE and BRENDA PHILLIPS, Defendants.

          MEMORANDUM AND RECOMMENDATION

         Pending before the court[1] is Defendant Texas Department of Criminal Justice and Brenda Phillips' Supplemented Motion for Summary Judgment (Doc. 41), Defendant Texas Department of Criminal Justice's Motion for Partial Dismissal (Doc. 52), and the responses filed thereto. It is RECOMMENDED that Defendant Texas Department of Criminal Justice's Motion for Partial Dismissal be GRANTED. It is RECOMMENDED that Defendant Texas Department of Criminal Justice and Brenda Phillips' Supplemented Motion for Summary Judgment be GRANTED IN PART, DENIED IN PART.

         I. Case Background

         Plaintiff James Burnett filed this action against his former employer, the Texas Department of Criminal Justice (“TDCJ”) and his supervisor, Brenda Phillips (“Phillips”), alleging sexual harassment, hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), the Texas Commission on Human Rights Act (“TCHRA”), and 42 U.S.C. § 1983 (“Section 1983”).[2] He also raised state law claims of assault and battery, defamation, invasion of privacy, and intentional infliction of emotional distress.[3]

         A. Factual Background

         Plaintiff began working for TDCJ on October 18, 2012, as a correctional officer and, upon commencement of employment, signed a form acknowledging receipt of numerous policy documents, including information about how to report sexual harassment.[4]Sometime during the summer of 2013, Phillips became Plaintiff's supervisor.

         According to Plaintiff, Phillips grabbed Plaintiff's back side several times in August 2013.[5] She also put her arms around his waist or shoulders when walking next to him during the same time frame.[6] On each occasion, Plaintiff pushed her away but voiced no other opposition to the contact.[7] Plaintiff also claims that Phillips asked him if he “thought that anyone would say anything if she threw [him] down in the hallway and raped [him] right there.”[8]Plaintiff stated that Phillips told him, “Boy if you only new [sic] what I could do to you.”[9] Plaintiff stated that he tried to avoid Phillips as much as possible.[10]

         During the evening shift of August 30, 2013, Plaintiff stated that Phillips grabbed his back side.[11] Plaintiff asked Correction Officer Jacob Little (“Little”) if he had seen the contact, and Little responded affirmatively, commenting that Phillips had just done the same to him.[12] Later that same shift, Plaintiff claimed Phillips put her hand in Plaintiff's pocket and “felt around.”[13]Plaintiff reported that he was embarrassed and aggravated by this conduct.[14]

         Although Plaintiff's testimony is not completely consistent about when he reported the August 30 incident to his supervisors, he stated that he told Correction Officer David Wickersham (“Wickersham”) about the incident immediately following the encounter with Phillips.[15] Plaintiff stated that he also told Sergeant Anthony Gundacker (“Sergeant Gundacker”) and Little about the incidents during the August 30 shift.[16] Plaintiff also made a complaint about the contacts to Lieutenant Danny Landrum (“Lieutenant Landrum”).[17]

         On August 30, 2013, Little claimed he was touched inappropriately by Phillips less than a minute before she touched Plaintiff.[18] Relevant to the present dispute, Little stated that he told Sergeant Gundacker about Phillips' conduct during the early morning hours of August 31, 2013, and that Sergeant Gundacker stated he would follow up on Little's report.[19] Little also told Wickersham about both incidents sometime during that shift.[20] After the shift ended, Little stated, he observed Sergeant Gundacker and Lieutenant Joey Burleyson (“Lieutenant Burleyson”) laughing about Little's complaint of sexual harassment by Phillips.[21] Wickersham confirmed that Sergeant Gundacker said that he had spoken to both Plaintiff and Little about the incidents.[22]

         Several days later, on September 5, 2013, Joan Wickersham, wife of Wickersham, also a TDCJ employee, reported to TDCJ Employee Relations Intake that her husband told her that Little told her husband that Phillips had grabbed Little's groin area and that Plaintiff had made a similar complaint about Phillips.[23] According to Joan Wickersham, her husband reported the two incidents to Lieutenant Burleyson and Sergeant Gundacker during the August 30, 2013 shift.[24] At his deposition, Wickersham verified that the incidents had been reported by Sergeant Gundacker to Lieutenant Burleyson.[25]

         Per TDCJ policy, sexual harassment was prohibited, and “the complainant is required to submit a signed written complaint in order for the complaint to be processed.”[26] The initial report of such an allegation may be verbal and may be made by any employee, not just the complainant.[27] The TDCJ policy required that a supervisor contact Employee Relations Intake within seventy-two hours of his witnessing or being notified of prohibited conduct.[28]The TDCJ policy required a supervisor to contact Employee Relations Intake even if the employee requested that the matter be kept confidential or that no action be taken.[29] When an intake officer received notification of a complaint, he was required to advise the complainant how to fill out the complaint form and, if the notification was verbal, the intake officer was to encourage the complainant to fill out the appropriate written form.[30]

         In response to the question whether it was common knowledge that Phillips was harassing him and Plaintiff, Little stated, “Everyone knew.”[31] According to Plaintiff, Lieutenant Landrum thought the physical contact by Phillips was a “big joke.”[32] As a result, Plaintiff admitted that he was reluctant to make a written complaint as he hoped that the situation could be informally resolved by his immediate supervisors through a reassignment.[33]

         On September 17, 2013, Little complained that Phillips again touched him inappropriately, prompting him to file a formal complaint with TDCJ that same day.[34] On September 18, 2013, TDCJ ordered Plaintiff to file a written complaint concerning Phillips' alleged conduct directed at him.[35] Plaintiff stated that, as of September 18, 2013, the sexual harassment from Phillips was “still going on just about every day that she's there. I don't feel like TDCJ has protected me from the abuse because supervisors have known about it and its still continues [sic].”[36]

         By September 23, 2013, Phillips had been reassigned to another work area and no longer supervised Plaintiff or Little.[37] TDCJ conducted an internal investigation of the allegations leveled against Phillips by Plaintiff and Little.[38] The investigation was closed after Plaintiff filed an administrative complaint with the Equal Employment Opportunity Commission.[39]

         It is undisputed that Plaintiff was injured in an automobile accident in December 2013. TDCJ granted Plaintiff extended sick leave and leave without pay through April 23, 2014.[40] On August 11, 2014, Plaintiff filed an application for unemployment benefits with the Texas Workforce Commission.[41] He indicated on the form that the reason he was no longer employed by TDCJ was: “Quit. I was in a car accident.”[42] On October 28, 2014, TDCJ administratively terminated Plaintiff's employment “due to expiration of 180 days LWOP.”[43]

         B. Procedural History

         On March 14, 2014, Plaintiff filed a complaint of discrimination with the Texas Workforce Commission Civil Rights Division.[44] On the form, Plaintiff stated that he had been subjected to sexual harassment and retaliation from August 1, 2013, to January 15, 2014.[45] On June 11, 2015, the Texas Workforce Commission, Civil Rights Division director issued a finding of reasonable cause to believe that TDCJ had engaged in an unlawful employment practice and invited the parties to resolve the complaint informally.[46] On March 11, 2016, the Texas Workforce Commission issued a right to sue letter to Plaintiff.

         On March 14, 2016, Plaintiff filed the present suit raising numerous claims arising out of his employment. On May 25, 2016, Plaintiff amended his complaint.[47] The live pleading dropped the state law tort claims and only alleged sexual harassment and hostile work environment in violation of Title VII and the TCHRA, aiding and abetting discrimination in violation of the TCHRA, retaliation under Title VII and the TCHRA, and violation of Plaintiff's equal protection rights under Section 1983.[48]

         Presently pending before the court are motions filed by Defendants seeking dismissal of all claims.[49] Plaintiff filed no response to TDCJ's motion for partial dismissal.[50]

         II. Legal Standards

         A. Dismissal Standard

         Pursuant to the federal rules, dismissal of an action is appropriate whenever the court lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1), 12(h)(3). The party asserting jurisdiction bears the burden of proof that jurisdiction does exist. In re FEMA Trailer Formaldehyde Prods. Liab. Litig. [hereinafter In re FEMA], 646 F.3d 185, 189 (5th Cir. 2011)(citing Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)).

         A claim of Eleventh Amendment immunity must be addressed as an initial inquiry because, if it is applicable, it deprives the court of subject matter jurisdiction over the suit. See United States v. Texas Tech University, 171 F.3d 279, 286, (5th Cir. 1999).

         B. Summary Judgment Standard

         Summary judgment is warranted when the evidence reveals that no genuine dispute exists regarding any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Stauffer v. Gearhart, 741 F.3d 574, 581 (5th Cir. 2014). A material fact is a fact that is identified by applicable substantive law as critical to the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 271 F.3d 624, 626 (5th Cir. 2001). To be genuine, the dispute regarding a material fact must be supported by evidence such that a reasonable jury could resolve the issue in favor of either party. See Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013)(quoting Anderson, 477 U.S. at 248).

         The movant must inform the court of the basis for the summary judgment motion and must point to relevant excerpts from pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of genuine factual issues. Celotex Corp., 477 U.S. at 323; Topalian v. Ehrman, 954 F.2d 1125, 1131 (5thCir. 1992). The movant may meet this burden by demonstrating an absence of evidence in support of one or more elements of the case for which the nonmovant bears the burden of proof. See Celotex Corp., 477 U.S. at 322; Exxon Corp. v. Oxxford Clothes, Inc., 109 F.3d 1070, 1074 (5th Cir. 1997). If the movant carries its burden, the nonmovant may not rest on the allegations or denials in the pleading but must respond with evidence showing a genuine factual dispute. Stauffer, 741 F.3d at 581 (citing Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)).

         III. Analysis

         TDCJ has moved to dismiss Plaintiff's TCHRA claims on the ground that they are barred from prosecution in federal court by the Eleventh Amendment. TDCJ and Phillips also challenge Plaintiff's ability to overcome the affirmative defense to Title VII liability under the Ellerth/Faragher[51] line of cases and further argue that Plaintiff cannot establish a prima facie claim for retaliation under Title VII because he was not subjected to an adverse employment action and because there is no causal connection between his protected activity and his separation from employment. Finally, TDCJ and Phillips move for summary judgment on Plaintiff's claims arising under 42 U.S.C. § 1983. The court first considers TDCJ's motion to dismiss.

         A. Eleventh Amendment Immunity - TCHRA Claims[52]

         Defendant TDCJ argues that Eleventh Amendment immunity bars Plaintiff's claims arising under the TCHRA. The court agrees.

         In Texas, the state and its agencies are immune from suit in state and federal courts unless the State Legislature waives its sovereign immunity. Texas v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009). A state's waiver of sovereign immunity for suits brought in state court cannot be extended to waive Eleventh Amendment immunity in federal court. See Martinez v. Texas Dep't of Criminal Justice, 300 F.3d 567, 575-76 (5th Cir. 2002)(“Even when a State consents to suit in its own courts, . . . it may retain Eleventh Amendment immunity from suit in federal court.”). A state's waiver of sovereign immunity must be “unequivocally expressed.” Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 332 (5th Cir. 2002)(citing Edelman v. Jordan, 415 U.S. 651, 673 (1974); Magnolia Venture Capital Corp. v. Prudential Sec. Inc., 151 F.3d 439, 443-44 (5thCir. 1998).

         In Perez, the Fifth Circuit expressly found that the TCHRA did not waive sovereign immunity for suits brought in federal court. Perez, 307 F.3d at 332; see also Hernandez v. Tex. Dep't of Human Servs., 91 F. App'x 934, 935 (5th Cir. 2004)(unpublished). Accordingly, this court lacks subject matter jurisdiction over Plaintiff's TCHRA claims. These claims must be dismissed.

         B. Title VII

         Title VII prohibits employers from “discriminat[ing] against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Under Title VII, Plaintiff brought claims of hostile work environment and retaliation.

         1. Sexual Harassment/Hostile Work Environment

         In order to prevail on a Title VII hostile work environment claim based on sex, a plaintiff must provide evidence that: (1) he belongs to a protected class; (2) he was subjected to unwelcome harassment; (3) the complained-of harassment was based on his sex; (4) the complained-of harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action. Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012). The fifth element does not apply when the alleged harasser is the plaintiff's supervisor. See Reine v. Honeywell Int'l, Inc., 362 F. App'x 395, 397 (5th Cir. 2010)(unpublished)(citing LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d 383, 393 (5th Cir. 2007)).

         If a plaintiff is able to make a prima facie showing of a hostile work environment and no tangible adverse employment action occurred, an employer may assert an affirmative defense to liability.[53] Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. The Ellerth/Faragher defense requires an employer to show: “(1) the employer exercised reasonable care to prevent and correct promptly any ‘harassing behavior;' and (2) the plaintiff ‘unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.'” Id.

         In its motion for summary judgment, TDCJ contends that it has policies in place that would satisfy the first prong of the Ellerth/Faragher defense and that it acted promptly to move Phillips to another position after Plaintiff filed a written report. As to the second prong, TDCJ points to Plaintiff's reluctance to report the harassment despite clear TDCJ policies that required him to do so. TDCJ argues that Plaintiff's reluctance to report the harassment was unreasonable as a matter of law and requires that summary judgment be entered against him on this claim.

         In contrast, Plaintiff argues that TDCJ is not entitled to assert the Ellerth/Faragher defense because the first prong of the test required it to promptly correct Phillips' harassing behavior and over a month passed before TDCJ requested that Plaintiff report the harassment. In support of the assertion that the delay consumed more ...


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