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Ramos v. Performance Contracting Inc.

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

April 15, 2019

Yessenia Ramos, Plaintiff,
Performance Contracting Inc., Defendant.



         Pending before the court is defendant Performance Contracting Inc.'s (“PCI”) motion for summary judgment. Dkt. 32. Plaintiff Yessenia Ramos responded (Dkt. 33) and PCI replied (Dkt. 35).[1] After considering the motion, response, reply, record evidence, and applicable law, the court is of the opinion that PCI's motion should be GRANTED IN PART and DENIED IN PART.

         I. Background

         This is a Title VII sexual harassment and retaliation case. Ramos worked as a helper/attendant on PCI construction sites from March to December of 2016. Dkt. 32-1 at 5, 26 (Ramos Depo.). Ramos's job duties included building and breaking down scaffolds, transporting materials, and monitoring confined spaces for oxygen levels and other safety indicators. Id. at 6.

         A. Ramos's Hostile Work Environment Allegations

         Ramos alleges that a foreman on her job site, Juan Franco Vega, began harassing her on August 5, 2016. Dkt. 32-6 at 2 (Ramos Written Statement); Dkt. 32 at 9. Vega first made comments about Ramos's appearance and sexuality. Dkt. 32-5 at 3 (EEOC Charge); Dkt. 33-1 at 8 (Ramos Depo.). In the following days, Vega's harassment intensified. Vega began asking Ramos about the color of her underwear. Dkt. 32-5 at 3 (EEOC Charge). Vega also began referring to Ramos's vagina as “la tortuga, ” or turtle, and stated that he “loved to eat turtle.” Id. Vega continued to make similar statements and sometimes made “moaning sounds” while “sticking out his tongue in a sexual manner.” Id. Ramos reported that Vega ran his fingers over her arm, back, and face without her consent. Id. Ramos attempted to avoid Vega as the harassment escalated, but Vega would specifically instruct other workers to drop Ramos off at Vega's location. Id. When Ramos confronted Vega about his behavior, Vega threatened to fire her. Dkt. 33-1 at 12-13 (Ramos Depo.). Ramos began to feel uncomfortable and unsafe, sometimes tying a long-sleeve shirt around her waist to avoid drawing attention to herself. Dkt. 32-5 at 4 (EEOC Charge).

         The harassment continued for exactly one week. On August 12, 2016, Vega began to “whistle and moan” at Ramos while instructing her to look at him. Id. at 3. Vega also inquired whether Ramos had done her stretches for the day and became angry when Ramos stated that she had already completed them. Id. About ten minutes later, Ramos reported Vega's behavior to onsite safety manager Brian Johnson and site safety representative Latisha Hayes.[2] Dkt. 32 at 9; Dkt. 32-1 at 106 (Ramos Depo.); Dkt. 32-5 at 3 (EEOC Charge). Hayes instructed Ramos to submit a written statement, and Ramos complied. Dkt. 32-1 at 106 (Ramos Depo.); Dkt. 32-6 (Ramos Written Statement). Hayes and Ramos then spoke to Anthony Morales, the project manager at the site, and Ramos recounted her allegations. Dkt. 32-1 at 106 (Ramos Depo.); Dkt. 32-7 at 2 (Morales Timeline). Tim Lampard, the Houston operations manager, was also notified of the incident. Dkt. 32-8 at 2.

         Vega was escorted off of the job site that afternoon and did not work with Ramos again. Dkt. 32-7 at 2 (Morales Timeline); Dkt. 32-1 at 118-19 (Ramos Depo.). Morales also began conducting an investigation into the incident and interviewed nine alleged witnesses. Dkt. 32-7 at 3. Lampard oversaw the investigation and provided updates to PCI's human resources department. Dkt. 32-8 (Lampard Email Aug. 17); Dkt. 32-11 (Lampard Email Sept. 1).

         In the following days, Ramos met with Morales and Hayes for four follow-up meetings. Dkt. 32-7 at 2-3 (Morales Timeline). At her first follow-up, Ramos was very upset and reported that other members of the construction crew knew that she had filed a harassment report. Id. at 2. Ramos testified that other employees either laughed at her or became quiet around her. Dkt. 33-1 at 5-6, 18 (Ramos Depo.). The employees also joked that they should stay away from her so that she would not report them for harassment. Dkt. 33-1 at 5-6 (Ramos Depo.); Dkt. 32-7 at 2 (Morales Timeline). Morales offered to transfer Ramos to a different labor group, but Ramos declined because she was afraid a transfer would give her a bad reputation. Dkt. 32-7 at 2 (Morales Timeline). Several days later, Ramos told Morales that she was uncomfortable working with Vega's brother, and Morales instructed a site superintendent to ensure that Ramos and Vega's brother were on different crews. Id.

         By the end of the week, Ramos chose to discontinue her follow-up meetings with Morales and Hayes because she felt that “it wasn't solving anything” and finding Morales had become a “hassle.” Dkt. 33-1 at 17 (Ramos Depo.); Dkt. 32-7 at 3 (Morales Timeline). Ramos also expressed concern that Morales was friends with Vega. Dkt. 32-8 at 2 (Lampard Email Aug. 17). Ramos testified that Morales offered to pay her without her coming to work, but she refused because she felt as if Morales was trying to cover up the incident. Dkt. 33-1 at 4, 10 (Ramos Depo.). However, Ramos continued to speak with Lampard in September, October, and November of 2016. Dkt. 32-1 at 21-22 (Ramos Depo.).

         On September 1, 2016, Lampard notified PCI's human resources department that the investigation was nearing conclusion. Dkt. 32-11 (Lampard Email Sept. 1). Lampard stated that one interviewed witness seemed to substantiate Ramos's claim that “something inappropriate was taking place, ” but the evidence was not substantial enough to “take any serious disciplinary action” against Vega. Id. at 2. Lampard stated that he intended to review PCI's harassment policy with Vega, give Vega a verbal warning, and ensure that Vega was not placed at Ramos's job site. Id. Lampard intended to inform Ramos that “appropriate action” was taken in her case and to counsel her to report harassment more quickly in the future. Id. Ramos was also to continue weekly meetings with a “member of management” to ensure that Ramos continued to communicate with PCI leadership. Id. Lampard also stated that Ramos's job site would undergo harassment training in the following weeks. Id.

         B. Ramos's Retaliation Allegations

         However, Ramos continued to feel uncomfortable at her job site. In addition to other employees treating her differently, Ramos alleges that PCI retaliated against her for reporting Vega's harassment. Ramos contends that PCI: (1) switched her from a day shift to a night shift; (2) required her to do more strenuous physical labor, such as carrying a 10-gallon container of water up stairs; (3) removed some of her responsibilities and gave them to other employees; (4) denied her overtime; and (5) gave her an unwarranted reprimand. Dkt. 12 at 6-7 (third amended complaint); Dkt. 32-1 at 23-25, 27-28 (Ramos Depo.).

         On November 8, 2016, Ramos filed an EEOC discrimination charge against PCI. Dkt. 32-5. She alleged sex discrimination and retaliation. Id. PCI ultimately terminated Ramos's employment on December 1, 2016, for failure to come to work for three consecutive days. Dkt. 32-1 at 26 (Ramos Depo.). Ramos does not claim that her termination was retaliatory. Id. at 25, 27; see also Dkt. 33 at 11.

         II. Legal Standard

         A court shall grant summary judgment when a “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[A] fact is genuinely in dispute only if a reasonable jury could return a verdict for the nonmoving party.” Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If the moving party meets its burden, the burden shifts to the non-moving party to set forth specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(e). The court must view the evidence in the light most favorable to the non-movant and draw all justifiable inferences in favor of the non-movant. Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 524 (5th Cir. 2008).

         III. Analysis

         A. Hostile Work Environment Claim

         In order to establish a hostile work environment/sexual harassment claim under Title VII, a plaintiff must show that: (1) she belongs to a protected class; (2) she was subjected to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the 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 remedial action. Septimus v. Univ. of Hous., 399 F.3d 601, 611 (5th Cir. 2005). Here, the parties dispute whether Vega's harassment was so “severe or pervasive” as to affect a term or condition of Ramos's employment under the fourth element. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754, 118 S.Ct. 2257 (1998); see also Indest v. Freeman Decorating, Inc., 164 F.3d 258, 263-64 (5th Cir. 1999). The parties also dispute whether the claim is barred by PCI's Faragher/Ellerth defense. Dkt. 32 at 18; Dkt. 33 at 7. However, the court need not reach those issues because Ramos cannot establish the fifth element of her claim as a matter of law.

         “A defendant may avoid Title VII liability when harassment occurred but the defendant took ‘prompt remedial action' to protect the claimant.” Williams-Boldware v. Denton Cty., 741 F.3d 635, 640 (5th Cir. 2014). The remedial action must be “reasonably calculated” to end the harassment. Skidmore v. Precision Printing & Packaging, Inc., 188 F.3d 606, 615-16 (5th Cir. 1999). However, “[e]mployers are not required to impose draconian penalties upon the offending employee in order to satisfy this court's prompt remedial action standard.” Williams-Boldware, 741 F.3d at 640. In determining whether the employer's remedial actions are sufficient, courts consider “whether the offending behavior in fact ceased.” Skidmore, 188 F.3d at 616; see also Id. (collecting cases). Although the sufficiency of remedial action is a fact-intensive inquiry, courts often find that an employer took prompt remedial action as a matter of law. Hockman v. Westward Commc'ns, LLC, 407 F.3d 317, 329 (5th Cir. 2004).

         Here, PCI took prompt and sufficient remedial action as a matter of law. First, and most importantly, PCI's actions stopped Vega's harassment. PCI management escorted Vega off of the job site the same day that Ramos made her report, and Ramos never worked with Vega again.[3] Dkt. 32-7 at 2 (Morales Timeline); Dkt. 32-1 at 16-17 (Ramos Depo.). Additionally, PCI gave Vega a verbal warning for his behavior and re-trained him on PCI's sexual harassment policy. Dkt. 32-11 (Lampard Email Sept. 1). Ramos testified that Vega never harassed her again. Dkt. 32-1 at 16-17 (Ramos Depo.). This fact alone strongly suggests that PCI's remedial actions were reasonably calculated to end the harassment.

         Moreover, PCI took several other steps to address the reported harassment. Morales conducted an investigation, including interviews with nine witnesses, into the incident. Dkt. 32-9 (Morales Statement). While the results were inconclusive, PCI still disciplined Vega based on the investigation and Ramos's statements. Dkt. 32-11 (Lampard Email Sept. 1). Further, even after Ramos discontinued her meetings with Morales, PCI officially requested that Ramos continue to meet with a “member of management” weekly for a month and Lampard spoke to Ramos over the phone several times in the following months. Id.; Dkt. 32-1 at 22. Finally, PCI ...

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