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Erving v. Dallas Housing Authority

United States District Court, N.D. Texas, Dallas Division

March 28, 2018

PATRICIA ERVING, Plaintiff,
v.
DALLAS HOUSING AUTHORITY, ERIC ROBINSON, and STACY ROBERTS, Defendants.

          MEMORANDUM OPINION AND ORDER

          SAM A. LINDSAY UNITED STATES DISTRICT JUDGE.

         Before the court are Defendants' Motion for Summary Judgment (Doc. 19), filed August 18, 2017; Defendants Dallas Housing Authority, Eric Robinson, and Stacy Roberts's Motion to Strike and/or Exclude Plaintiff's Experts Moses Ramos and Conrad Hamric (Doc. 22), filed August 18, 2017; and Defendants' Objections to Plaintiff's Summary Judgment Evidence (Doc. 28), filed October 2, 2017. After careful consideration of the motions, legal briefs, appendixes, record, and applicable law, the court grants in part and denies in part Defendants' Motion for Summary Judgment (Doc. 19); grants Defendants Dallas Housing Authority, Eric Robinson, and Stacy Roberts's Motion to Strike and/or Exclude Plaintiff's Experts Moses Ramos and Conrad Hamric (Doc. 22); and overrules as moot Defendants' Objections to Plaintiff's Summary Judgment Evidence (Doc. 28).

         I. Factual and Procedural Background

         This case arises out of the employment of Plaintiff Patricia Erving (“Erving”) by Defendant Dallas Housing Authorty (“DHA”). Erving alleges that while she was employed at DHA she was subjected to unwelcome sexual harassment by her supervisor, Defendant Eric Robinson (“Robinson”), and also verbally harassed by Stacy Rogers (“Rogers”), DHA's asset management project manager. Erving asserts federal claims against Defendants DHA, Robinson, and Rogers (collectively, “Defendants”) for sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), and Chapter 21 of the Texas Labor Code, Tex. Lab. Code Ann. § 21.001, et seq. (West 2015). She seeks compensatory and exemplary damages, permanent injunctive relief, prejudgment and postjudgment interest, attorney's fees, and costs. Defendants have filed a motion for summary judgment. As a threshold issue, Defendants contend that Erving's claims must be dismissed as time-barred. Alternatively, Defendants Robinson and Rogers seek summary judgment on all claims, arguing that an individual employee may not be held liable under Chapter 21 of the Texas Labor Code or Title VII. Defendants seek summary judgment on the basis that Erving has failed to raise a genuine dispute of material fact with respect to her asserted claims, and that it is, therefore, entitled to entry of judgment as a matter of law. DHA also seeks summary judgment on its Ellerth/Faragher[1] affirmative defense with respect to Erving's sexual harassment claims. The court now sets forth the facts upon which it relies to resolve the summary judgment motion. In setting forth the facts, the court applies the summary judgment standard as set forth in Section II(A) of this decision.

         Between approximately 2011 and August 2015, DHA employed Erving, an African-American female, as a Mixed Population Building Coordinator at a DHA property known as Audelia Manor. Beginning in 2012, according to Erving, Robinson engaged in unwanted touching; made noises while he was in the restroom urinating with the door open, even after she requested that he shut the door; told Erving on one occasion when he was making noises with the bathroom door open that “he was jerking off” because he was thinking of her; made comments to her or which she overheard him tell others about kissing her, that her lips were irresistible, and that he wanted to kiss those “big, juicy lips”; rubbed against her bottom and commented on its size; stated that he wanted to get that “big booty” and “big titties” and them “big old juicy red lips”; stated that he wanted some spearmint “Now and Later” while staring at her breasts when she was wearing a lime green jacket; tried to touch and massage her shoulders; came up behind her and tried to look down her shirt at her breasts; and on one occasion in or around January 2015, showed Erving a sexually graphic video on his cellular telephone of a woman “giving a man a blow job.”[2]

         From February 17, 2015, through May 10, 2015, Erving was on a leave of absence for a disability under the Family Medical Leave Act (“FMLA”).[3] Pursuant to a reasonable accommodation by DHA, Erving returned to work on a part time basis (twenty hours per week) from May 11, 2015, through June 25, 2015. On June 26, 2015, Erving began another leave of absence, after DHA received medical certification that Erving would require another leave for four to six weeks. On June 30, 2015, Monica Tharp (DHA's Benefits Administrator) sent Erving a letter stating that DHA was able to accommodate her leave, but that DHA needed to receive medical information from her doctor by July 24, 2015, indicating the date she would return to work and whether she can perform the essential functions of her job. In this June 30, 2015 correspondence, DHA also encouraged Erving to request a reasonable accommodation, which might be available to allow her to perform the essential functions of her job. This correspondence also informed Erving that if she failed to provide the additional information or request a specific reasonable accommodation by July 24, 2015, DHA might consider terminating her employment.

         On July 24, 2015, DHA received medical information from Erving's doctor, Dr. Moses Ramos. In this documentation, Dr. Ramos states as follows: “continue on disability - may need longer than 8 weeks, anticipate pt will be on long term disability for 6 months due to refractory nature of her illness.” Defs.' Summ. J. App. 5.

         DHA terminated Erving's employment on August 3, 2015. DHA sent Erving a letter notifying her of the termination, explaining that “the medical certification dated July 24, 2015[, ] received from your physician's office indicated that your leave of absence will continue, did not establish a return to work date, and did not indicate whether you will be able to perform the essential functions of your job.” Id. at 8.

         After Erving filed a charge of sex discrimination with the Equal Employment Opportunity Commission ("EEOC"), the EEOC issued her a right-to-sue letter, which she received on September 17, 2015. On December 16, 2015, ninety days after receipt of the EEOC's letter, counsel for Erving, Conswella Edwards, Esq., attempted to e-file this action in the District Court of Dallas County. The clerk of court rejected the filing because Ms. Edwards had failed to include a signature block with the e-filing. On December 21, 2015, Ms. Edwards re-filed this action and included the required signature block. On March 21, 2016, asserting federal question jurisdiction, Defendants removed the case to this court pursuant to 28 U.S.C. § 1441.

         On August 18, 2017, Defendants filed Defendants' Motion for Summary Judgment (Doc. 19), as well as their Motion to Strike and/or Exclude Plaintiff's Experts Moses Ramos and Conrad Hamric (Doc. 22). On October 2, 2017, Defendants filed Defendants' Objections to Plaintiff's Summary Judgment Evidence (Doc. 28). The court first addresses Defendants' Motion for Summary Judgment.

         II. Defendants' Motion for Summary Judgment

         A. Legal Standard

         Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material fact and that 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, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all facts and inferences in the light most favorable to the nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). Further, a court “may not make credibility determinations or weigh the evidence” in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.

         Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine dispute of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). On the other hand, “if the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). “[When] the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.'” Matsushita, 475 U.S. at 587. (citation omitted). Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).

         The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). “Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues that are “irrelevant and unnecessary” will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

         B. Analysis

         1. Prerequisites to Filing Title VII Suit

         Defendants move for summary judgment on the ground that Erving did not file this action within ninety days after receiving her right-to-sue letter as required by 42 U.S.C. § 2000e-5(f)(1). Erving opposes the motion.

         Title VII actions are governed by a statute of limitations that requires that suit be brought within ninety days of the plaintiff's receipt from the EEOC of a notice of the right to sue. 4 2 U.S.C. § 2000e-5(f)(1). A court will dismiss a Title VII action when a plaintiff files her claim after the 90-day statute of limitations has expired. See Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002) (“Courts within this Circuit have repeatedly dismissed cases in which the plaintiff did not file a complaint until after the ninety-day limitation period had expired.”). “This requirement to file a lawsuit within the ninety-day limitation period is strictly construed.” Id. “The ninety-day filing requirement is not a jurisdictional prerequisite, but more akin to a statute of limitations.” Harris v. Boyd Tunica, Inc., 628 F.3d 237, 239 (5th Cir. 2010) (citing Espinoza v. Missouri Pac. R.R. Co., 754 F.2d 1247, 1248 n.1 (5th Cir. 1985)). “Thus, the ninety-day filing requirement is subject to equitable tolling. Id. (citing Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 349 n.3 (1983)).

         Federal courts, including the Fifth Circuit, apply equitable tolling only in “rare and exceptional circumstances.” Id. (quoting Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir. 2002) (internal quotation marks and citation omitted)); Rowe v. Sullivan, 967 F.2d 186, 192 (5th Cir. 1992) (“[F]ederal courts have typically extended equitable relief only sparingly.”) (citation omitted). “Courts have typically extended equitable tolling where ‘the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass.'” Harris, 628 F.3d at 239 (quoting Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 & nn. 3-4(1990)).

         It is undisputed that the EEOC issued Erving a right-to-sue letter, which she received on September 17, 2015. It is also undisputed that the documents attached to Defendants' Notice of Removal show that the clerk of court in the District Court in Dallas County, Texas, opened a new civil action on December 22, 2015, which is ninety-five days after Erving received her right-to-sue letter. See Defs.' Notice of Removal (Doc. 1-1). In opposition to Defendants' argument that her claim is time-barred, Erving contends that on December 16, 2015, ninety days after receipt of the EEOC's letter, her attorney, Ms. Edwards, filed this action electronically in the District Court of Dallas County, but that the clerk of court returned the filing to her via e-mail on Friday, December 18, 2015, with a notation that Ms. Edwards had failed to include a signature block with the e-filing, and an instruction to correct and resubmit the filing on or before December 22, 2017. On Monday, December 21, 2015, the next business day, Ms. Edwards refiled this action and included the required signature block. In support of her assertion that Ms. Edwards attempted to file this action on December 16, 2015, within the statutory period, Erving includes in her appendix a copy of an e-mail from “no-reply@efiletexas.gov” to “edwardslawoffice@gmail.com” dated Friday, December 18, 2015, with the subject line: “Filing Returned.” See Pl.'s Summ. J. Resp. App. 5. The e-mail indicates that the original petition was e-filed on December 16, 2015 at “2:51:21 p.m., ” and states that the reason for rejection of the filing is an “incomplete signature block.” Id. The e-mail also includes the following comment: “PLEASE INCLUDE AN E-MAIL WITHIN THE SIGNATURE BLOCK. FILE AGAIN BY 12/22/15 AND REFERENCE THE ORIGINAL ‘ENVELOPE NUMBER.' THANK YOU! - DAVID HERNANDEZ PHONE NUMBER 214-653-7787.” Id.[4]

         Although Erving does not explicitly invoke the doctrine of equitable tolling, examining her arguments in the light most favorable to her, the court concludes that she is, in effect, asking the court to equitably toll her claims based on her attempt to file her lawsuit within the ninety-day statutory period. Under these circumstances, the court concludes that the application of equitable tolling is warranted. The scenario presented is a claimant who has actively pursued her judicial remedies by filing a defective pleading during the statutory period. In the Fifth Circuit, this is one of the limited occasions when equitable tolling may be invoked. Harris, 628 F.3d at 239. Defendants have failed to provide any argument or evidence that Ms. Edwards was anything less than diligent in pursuing Edward's rights. This is hardly a case of a plaintiff “sitting on her rights.” Further, Defendants have failed to show any prejudice, that is, they have provided no evidence that they will be unable to defend this lawsuit. Based on its decision to equitably toll the ninety-day filing period from December 15, 2015 to December 21, 2015, the court will deny Defendants' Motion for Summary Judgment on this issue and proceed to address the remaining arguments in support of summary judgment.

         2. Erving's Claims Against Defendants Robinson and Rogers

         In addition to bringing her Title VII and state-law discrimination claims against DHA, Erving asserts these claims against Robinson and Rogers. Defendants Robinson and Rogers move for summary judgment as to Erving's claims against them, arguing that there is no individual liability for employees under Title VII or Chapter 21 of the Texas Labor Code. The court agrees.

         Title VII provides for liability only as to an employer, as defined in the statutes, not an individual supervisor or fellow employee. See Turner v. Baylor Richardson Medical Ctr., 476 F.3d 337, 343 (5th Cir. 2007).[5] This is true regardless of whether the person is sued in his or her individual or official capacity. See Smith v. Amedisys Inc., 298 F.3d 434, 448-49 (5th Cir. 2002). Additionally, because Chapter 21 of the Texas Labor Code was modeled to execute the policies of Title VII, supervisory personnel are not liable in their individual capacity for violations of Chapter 21. See Vincent v. Coates, 2004 WL 1787838, at *3 (N.D. Tex. July 2, 2004) (“[I]ndividual liability is not available under [Chapter 21 of the Texas Labor Code].”) (citing Jenkins v. Guardian Indus. Corp., 16 S.W.3d 431, 439 (Tex. App.-Waco 2000, pet. denied)).

         Erving does not allege any facts in her pleadings or introduce any evidence that would support the conclusion that either Robinson or Rogers was her employer. She fails to raise a genuine dispute of material fact as to this issue, and Robinson and Rogers are entitled to judgment as a matter of law. Consequently, Defendants' Motion for Summary Judgment with respect to all Title VII and state-law discrimination claims against Robinson and Rogers will be granted on this basis.

         In addition, in her response, Erving fails to address her claims against Robinson and Rogers, much less respond to any of Defendants' arguments in support of their motion for summary judgment on these claims. The court concludes that Erving has abandoned or waived her claims against Robinson and Rogers for alleged violations of Title VII or Chapter 21 of the Texas Labor Code.

         When a party fails to pursue a claim or defense beyond the party's initial pleading, the claim is deemed abandoned or waived. Black v. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (plaintiff abandoned claim when she failed to defend claim in response to motion to dismiss); Keenan v. Tejeda, 290 F.3d 252, 262 (5th Cir. 2002) (noting that “an issue raised in the complaint but ignored at summary judgment may be deemed waived[]”) (citation omitted). As Erving failed to pursue her claims against Robinson and Rogers, the claims are no longer before the court, as she has abandoned or waived them. Accordingly, Erving's abandonment or waiver of her Title VII and state-law discrimination claims against Robinson and Rogers is an alternative ground under which the court will grant summary judgment in Robinson's and Rogers's favor on her claims against them.

         3. Erving's Sexual Harassment Claims

         Erving asserts she was subjected to sexual harassment by Robinson that ultimately resulted in her termination and that she was subjected to a hostile work environment. Defendants move for summary judgment on both claims.

         Title VII of the Civil Right Act of 1964 provides, in relevant part, that “[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [her] 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)(1).[6] As the United States Supreme Court has recognized, “[t]he phrase ‘terms, conditions, or privileges of employment' evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment.” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (internal quotations and citation omitted). An employer violates Title VII when the employer allows the workplace to be “permeated with discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment[.]” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotations and citations omitted). The Court in Harris further noted that “[t]his standard . . . takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury.” Id.

         Erving may prove her sexual harassment claims either by establishing that a tangible employment action was taken against her because of her sex (also known as quid pro quo harassment) or by establishing that a supervisor with immediate or successively higher authority discriminated against her because of her sex and created a hostile or abusive environment. See Faragher v. City of Boca Raton, 524 U.S. 775, 786-87 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751 (1998); Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 409 (5th Cir. 2002); Casiano v. AT&T Corp., 213 F.3d 278, 283-84 (5th Cir. 2000); Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 268-69 (5th Cir. 1998). The court must first determine whether the quid pro quo or hostile work environment standard applies. Casiano, 213 F.3d at 283. The determination turns on whether Erving has suffered a “tangible employment action, ” id., which is defined as 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.” Ellerth, 524 U.S. at 761. If an employee can show that ...


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