United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. MILLER, SENIOR UNITED STATES DISTRICT
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). 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.
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.
Ramos's Hostile Work Environment Allegations
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).
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. 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.
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).
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.
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
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.
Ramos's Retaliation Allegations
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.).
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.
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).
Hostile Work Environment Claim
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.
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).
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. 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.
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,