Harper v. City of Jackson Municipal School District ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 30, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 05-60232
Summary Calendar
_____________________
JACQUELINE HARPER,
Plaintiff - Appellant,
v.
CITY OF JACKSON MUNICIPAL SCHOOL DISTRICT; FRED D CASHER,
Individually and as Agent of City of Jackson Municipal School
District,
Defendants - Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
No. 02-CV-1649
_________________________________________________________________
Before SMITH, GARZA, AND PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Jacqueline Harper appeals the district
court’s order granting Defendant-Appellee City of Jackson
Municipal School District’s motion for summary judgment. For the
following reasons, we AFFIRM the judgment of the district court.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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I. FACTUAL AND PROCEDURAL BACKGROUND
During the period of time pertinent to her complaint,
Plaintiff Jacqueline Harper taught at Callaway High School
(“Callaway”) in Jackson, Mississippi. Defendant Fred Casher was
the principal at Callaway. Harper alleges that she suffered
ongoing sexual harassment by Casher at Callaway between December
1996, soon after Casher was hired as principal, and February
2001, when she began her lawsuit. Specifically, Harper contends
that Casher repeatedly propositioned her for sex, uttered racy
statements to her, ran his hand up her thigh towards her private
area, licked his tongue at her suggestively, felt her behind, and
even “snatched [her] breast out of [her] dress and stuck it in
his mouth.” While Harper related these occurrences to some of
her colleagues, neither she nor they reported them to the school
district administrators until February 2001.
The City of Jackson Municipal School District (“School
District”) has had a sexual harassment policy since 1986. In
1992, its provisions regarding procedure were amended to read:
Step One: Within five (5) days of the time a complaint
becomes known, the employee will present the complaint
orally to his immediate supervisor or the district’s title
IX coordinator and complete the “Report of Violation of
Title IX” form. It should be noted that the complainant
does not have to report the incident to the supervisor
before talking with the Title IX coordinator.
Step Two: Within 3-5 days the supervisor or complainant is
to present the completed “Report of Violation of Title IX”
form to the designated person in the office of personnel
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services.
The 2000 amended policy retained alternative avenues for
employees to make complaints.
On February 9, 2001, Harper reported the alleged sexual
harassment to Dr. Delores Hopkins, Assistant Superintendent for
the School District. Harper told Hopkins she tolerated Casher’s
behavior over the years rather than reporting his conduct because
she was intimidated by his position of authority and feared
losing her job. Harper asserted that she could not report the
sexual harassment to her supervisor, Casher, since he was the
perpetrator. The School District and Harper relate the rest of
the exchange between Hopkins and Harper differently. According
to the School District, Hopkins told Harper that Harper could
“bypass” the school district’s sexual harassment reporting
procedure, which required submission of forms, by sending Hopkins
a written narrative detailing her complaint.
According to Harper, Hopkins told her she could “bypass” the
grievance process due to the nature of her complaint. Hopkins
also told Harper it would be “helpful” to Hopkins’ investigation
to have some written documentation of Harper’s complaint. Harper
believed that she had complied with the grievance process by
orally complaining to Hopkins. Harper contends that Hopkins
never instructed her to fill out the “Report of Violation of
Title IX” form, nor to see a Title IX coordinator. Harper
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believed that Hopkins was acting as the Title IX coordinator and
would file any appropriate forms pursuant to Harper’s oral
complaint. Hopkins memorialized the telephone conversation in a
memo dated February 21, 2001, writing:
I explained that you could bypass the grievance process
given the nature of the complaint by providing me a written
compilation and/or narrative regarding these instances. To
date, I have not received this information. It would be
helpful to have some documentation in pursuing your
complaints.
Harper believed that the narrative requested by Hopkins was
strictly for Hopkins’ own information. She did not provide the
narrative to Hopkins. On February 12, 2001, Harper completed an
intake questionnaire for the Equal Employment Opportunity
Commission office in Jackson. She filed a charge and affidavit
with the EEOC on March 21, 2001.
On March 29, 2001, JoAnne Nelson Shepherd, the School
District Counsel, telephoned Callaway and left a message asking
Harper to call her. Unbeknownst to Harper, Shepherd was the
Title IX coordinator, as well. Harper believed Shepherd only to
be the School District’s attorney. She believed there would be a
conflict of interest should Harper confide in Shepherd, and
hence, Harper did not return Shepherd’s call.
In response to Harper’s allegations against Casher, the
School District transferred Casher to another school and hired a
new principal for the 2001-2002 school year. In October 2002, the
School District transferred Harper from Callaway to Hardy Middle
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School. The School District explained to Harper that she was
being transferred to better allocate teaching staff since Harper
had the lowest number of students in her class compared to other
teachers in her field. When Harper requested to be transferred
back to Callaway when a teacher retired, leaving a position in
Harper’s field open, the School District accommodated her
request. Harper suffered no reduction of salary or benefits
during her transfer.
In November 2002, Harper filed a complaint in the United
States District Court for the Southern District of Mississippi
under Title VII of the Civil Rights Act of 1964. Harper named
two defendants, the School District and Casher, and asserted two
claims: an allegation that Casher sexually harassed her while
they were both employed at Callaway and an allegation that the
School District retaliated against her for filing an EEOC charge
regarding the alleged harassment by transferring her to teach at
a middle school. She also maintains that she was denied the
opportunity to act temporarily as an administrator while teaching
at Callaway and was denied a promotion to assistant principal.
II. SUMMARY JUDGMENT STANDARD
When a district court grants summary judgment, this court
reviews the determination de novo, employing the same standards
as the district court. See Urbano v. Continental Airlines, Inc.,
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138 F.3d 204, 205 (5th Cir. 1998). Summary judgment is
appropriate when, viewing the evidence in the light most
favorable to the nonmoving party, the record reflects that no
genuine issue of material fact exists, and the moving party is
entitled to judgment as a matter of law. FED. R. CIV. P. 56(c);
Price v. Federal Exp. Corp., 283 F.3d 715, 719 (5th Cir. 2002).
Summary judgment is mandated where a party fails to establish the
existence of an element essential to the case and on which the
party has the burden of proof. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).
III. DISCUSSION
A. Sexual Harassment
Sexual harassment that is “sufficiently severe or pervasive
‘to alter the conditions of [the victim’s] employment and create
an abusive working environment’” violates Title VII. Meritor
Savings Bank v. Vinson, 477 U.S. 57, 67 (1986)(quoting Hensen v.
City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)(brackets in
original). Nevertheless, severe and pervasive sexual harassment,
by itself, is not enough to impose liability on the School
District. “Title VII does not make employers ‘always
automatically liable for sexual harassment by their
supervisors.’” Faragher v. City of Boca Raton, 524 U.S. 775, 792
(1998)(quoting Meritor, 477 U.S. at 72).
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An employer is vicariously liable for a supervisor’s sexual
harassing behavior of where a tangible employment action is taken
against the victim-employee by the harassing supervisor.
Faragher, 524 U.S. at 807 (1998). Where there is no tangible
employment action, the employer may avoid liability by raising a
two-pronged affirmative defense: “(a) that the employer exercised
reasonable care to prevent and correct promptly any sexually
harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid
harm otherwise.” Id.
First, we address the issue of whether or not the alleged
facts, viewed in the light most favorable to Harper, the non-
moving party, constitute severe or pervasive sexual harassment.
Harper argues “that the district court erred in finding as a
matter of law that she was not subjected to an objectively
hostile work environment.” However, the district court correctly
held that Harper’s allegations that Casher subjected her to
sexual propositions, sexual comments, and offensive physical
contact are sufficient to create a genuine issue of material fact
on whether she faced sufficiently severe or pervasive sexual
harassment. We agree that Harper’s allegations create an issue
of fact on whether the harassment rose to the “severe or
pervasive” level.
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1. Tangible employment action
Having established that Harper’s allegations constitute
sexual harassment, we turn to the issue of whether or not Harper
suffered a tangible employment action inflicted upon her by
Casher. If Harper could show that she suffered a tangible
employment action by Casher, her supervisor, then the School
District would be vicariously liable to Harper. “A tangible
employment action constitutes 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. . . . A tangible
employment action in most cases inflicts direct economic harm.”
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761-62 (1998).
Harper has not shown that Casher imposed upon her any action
that may be characterized as a tangible employment action. The
record does not show that Casher inflicted any significant
adverse changes on Harper’s employment. The School District
transferred Casher to another school more than a year before
Harper’s transfer from Callaway to Hardy Middle School. When
Harper was transferred, Callaway had a new principal. Harper has
not offered any evidence linking Casher to the decision to
transfer Harper. See Casiano v. AT&T Corp., 213 F.3d 278, 284-85
(5th Cir. 2000) (finding no tangible employment action where an
employee was denied access to a training program because another
No. 05-60232
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manager, not the harassing supervisor, was responsible for the
decision). Further, even if Harper’s transfer could be
attributed to Casher, it did not inflict significant adverse
changes on Harper’s employment. During the short duration of her
transfer, Harper retained her salary and benefits. At Hardy
Middle School, Harper taught a subject within her teaching
experience. Harper now remains in the School District’s employ
having returned to Callaway. She has received over $7,000 in
raises since she filed her EEOC complaint. Harper’s transfer
cannot be characterized as a significant change in her employment
status; nor did it inflict direct economic harm.
Harper also alleges that Casher denied her the opportunity
to temporarily “fill in” as an assistant principal, thereby
keeping her from “a chance to get any [administrative]
experience.” We rejected a similar claim in Zaffuto v. City of
Hammond,308 F.3d 485 (5th Cir. 2002). There, the plaintiff
police officer asserted that “he was denied the opportunity to be
the acting shift lieutenant while his supervisor was on
vacation.” Id. at 493 n.8. We held that such a denial “is far
too minor to constitute an ultimate employment action.” Id. The
insufficiency of such a denial is underscored in Harper’s
situation since the record shows that Casher twice recommended
Harper for assistant principal positions with the School
District. The decision not to hire Harper for assistant
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principal was not Casher’s decision. The School District did not
follow Casher’s recommendations and denied Harper the promotions
without knowing about the alleged sexual harassment. See
Casiano, 213 F.3d at 284-85 (finding no tangible employment
action where an employee was denied access to a training program
because another manager, not the harassing supervisor, was
responsible for the decision).
Viewing the facts in a light most favorable to Harper, we
see nothing in Harper’s evidence nor anything in the record
supporting an inference that Casher took a tangible employment
action against Harper. We agree with the district court and
conclude the School District is not automatically liable to
Harper and may assert the Faragher/Ellerth affirmative defense.
2. The Faragher/Ellerth affirmative defense
In the absence of a tangible employment action, summary
judgment is appropriate if the School District establishes the
two-pronged defense outlined above. Harper fails to address the
rest of the employer liability analysis and does not rebut the
School District’s affirmative defense.
a. Did the School District Take Reasonable Care in Preventing and
Promptly Correcting Sexually Harassing Behavior?
The School District adopted sexual harassment policies in
1986 and updated them in 1992 and 2000. The School District
trained Casher on its sexual harassment policy and sent him
updates. It also investigated a previous, anonymous sexual
No. 05-60232
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harassment allegation against Casher in a timely manner, but
could not corroborate the allegation.
Harper’s annual employment contracts explicitly made her
employment subject to the School District’s sexual harassment
policies. The record shows that the School District informed
Harper that the policies were available in the District
Superintendent’s office. The policies were also available in the
principal’s office and the library. The policy provided that an
employee may bypass a harassing supervisor and complain about
sexual harassment to the District’s Title IX coordinator. Harper
admitted in her deposition that she was aware that the School
District had a sexual harassment policy and conceded that she did
not pay much attention to the policy before January 2001.
Once Harper informed Hopkins about the alleged sexual
harassment by Casher, Hopkins gave Harper the option to bypass
submitting the forms required by the policy by sending Hopkins a
written narrative of her complaint. Harper did not send Hopkins
any narrative. Instead, she filed an EEOC charge. Despite not
having heard from Harper, Hopkins investigated Harper’s
allegations. Upon receiving the EEOC charge, School District
Counsel Shepherd attempted to interview Harper, but Harper did
not respond to her telephone messages. While there is contention
among the parties as to the characterization of Hopkin’s request
for Harper’s narrative, and a question as to whether Shepard was
No. 05-60232
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properly identified as the Title IX coordinator, the fact remains
that Harper did not comply with their requests. In addition,
despite not having corroborated Harper’s allegations through its
investigation, the School District reassigned Casher to another
school prior to the start of the new school year and hired a new
principal at Callaway where Harper continued to teach.
These facts indicate the School District’s sexual harassment
policy and response to Harper’s complaint were “both reasonable
and vigorous.” Scrivner v. Socorro Indep. Sch. Dist., 169 F.3d
969 (5th Cir. 1999)(holding that school district’s anti-
discrimination policy, swift response to harassment complaints,
and acceptance of harasser’s resignation was sufficient to
establish the first prong of an affirmative defense); see also
Casiano, 213 F.3d at 286-87 (finding that an employee’s admitted
knowledge of employer’s policy prohibition sexual harassment and
complaint procedure and employer’s prompt investigation of
complaint showed that the employer “exercised reasonable care to
prevent, and if not prevented, to correct promptly any sexually
harassing behavior by supervisory personnel”).
b. Did Harper Unreasonably Fail to Take Advantage of the School
District’s Preventive or Corrective Opportunities?
The second prong of the Faragher/Ellerth defense effectuates
a “policy imported from the general theory of damages that a
victim has a duty ‘to use such means as are reasonable under the
circumstances to avoid or minimize the damages’ that result from
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violations of the statute.” Faragher, 524 U.S. at 806 (quoting
Ford Motor Co. v. EEOC, 458 U.S. 219, 231 n.15 (1982)). “[W]hile
proof that an employee failed to fulfill the . . . obligation of
reasonable care to avoid harm is not limited to showing an
unreasonable failure to use any complaint procedure provided by
the employer, a demonstration of such failure will normally
suffice to satisfy the employer’s burden under the second element
of the defense.” Id. at 807-08.
In this case, accepting Ms. Harper’s testimony as true for
purposes of summary judgment, the lower court properly held that
her own admitted failure to invoke promptly the School District’s
complaint process allowed Casher to continue the harassment over
the years. Although Harper knew that Casher’s alleged conduct
violated the School District’s sexual harassment policy and knew
that she could complain to the School District to have his
conduct stopped, she did not do so for over six years. Once she
did complain, Harper failed to cooperate with the School
District’s investigation. She did not provide Shepherd with a
narrative, nor did she return the School District Counsel’s phone
call.
These facts show that Harper unreasonably failed to take
advantage of the preventive and corrective measures made
available by the School District. Casiano, 213 F.3d at 287
(finding employee “unreasonably failed to take advantage of any
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preventive or corrective opportunities” because, even though “he
suffered at least fifteen propositions [over a four month period,
he] never reported any of the incidents until months after the
last of them”); Scrivner, 169 F.3d at 971 (finding employee
“failed to reasonably avail herself of [the school district’s]
preventative and corrective sexual harassment policies” because,
“[f]rom the summer of 1995 to March 1996, [she] never complained
about [her principal’s] increasingly offensive behavior”).
Harper’s explanation that she was too intimidated to report
the sexual harassment is insufficient to show that her failure to
complain and cooperate were reasonable. In Young v. R.R.
Morrison and Son, Inc., 159 F. Supp. 2d 921 (N.D. Miss. 2000),
the court explained why Harper’s subjective fears of reprisal do
not defeat the School District’s affirmative defense:
All harassment victims risk retaliation when they complain.
For Title VII to be properly facilitated, the reasons for
not complaining about harassment should be substantial and
based upon objective evidence that some significant
retaliation will take place. For example, a plaintiff may
bring forward evidence of prior unresponsive action by the
company or managment to actual complaints. Here, there was
no evidence that [the harasser] had ever taken any adverse
tangible employment action against complaining employees . .
. .
Id. at 927 (citation and quotation marks omitted). Harper failed
to substantiate her fears. Viewing the evidence in the light
most favorable to Harper and drawing all reasonable inferences in
her favor does not save her argument. The School District twice
investigated allegations of sexual harassment perpetrated by
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Casher. Despite not having corroborated Harper’s allegations,
the School District chose to transfer Casher.
Thus, we agree with the district court determination that
the School District is entitled to the Faragher/Ellerth
affirmative defense.
B. Retaliation
To establish a prima facie case for retaliation, a plaintiff
must show that (1) she engaged in “protected activity,” (2) she
suffered an adverse employment action as a result of partaking in
the protected activity, and (3) there was a “causal link” between
the protected activity and the adverse employment action. Ackel
v. Nat’l Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003). Once
the showing is made, the burden shifts to the defendant, who must
produce a nondiscriminatory reason for the adverse employment
action. Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th
Cir. 1992). The plaintiff may rebut by showing that the reason
provided by the defendant for taking the adverse employment
action is pretextual. Id.
Harper argues that the district court improperly granted
summary judgment in favor of the School District on her
retaliation claim. According to Harper, she established a prima
facie case for retaliation. Harper alleges that the School
District retaliated against her for making an EEOC complaint by
transferring her mid-semester to another school.
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It is undisputed that Harper engaged in protected activity
when she filed a complaint with the EEOC. At issue are the
second and third prongs of the test. The district court held
that Harper failed to satisfy the second and third elements of
her prima facie case because she did not suffer an adverse
employment action and there was no causal link between the
challenged employment action and her protected activity. If
Harper failed to establish either of these elements, summary
judgment is appropriate.
1. Adverse Employment Action
Harper contends that she suffered an adverse employment
action when the School District transferred her from Callaway to
Hardy Middle School in October 2002. However, Harper’s
characterization of her mid-semester transfer to another school
as an adverse employment action is misplaced. It is well settled
that the Fifth Circuit takes a “narrow view of what constitutes
an adverse employment action.” Breaux v. City of Garland, 205
F.3d 150, 157 (5th Cir. 2000). That is, adverse employment
actions include only ultimate employment decisions such as
hiring, granting leave, discharging, promoting, or compensating.
Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 643, 657 (5th Cir.
2002).
Under this framework, Harper did not suffer any adverse
employment action while employed at Callaway. Harper’s transfer
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does not amount to an ultimate employment decision. While
transfers might be considered adverse employment actions if they
are punitive, see Pierce v. Texas Dep’t of Criminal Justice,
Inst’al Div., 37 F.3d 1146, 1149 (5th Cir. 1994), or if they
could be considered demotions, see Click v. Copeland, 970 F.2d
106, 110 (5th Cir. 1992), Harper provides no evidence that her
transfer to Hardy Middle School is either punitive or demotive.
To the contrary, Harper’s transfer was pursuant to her contract;
her contract for employment with the School District provides
“[t]hat the employee agrees to reassignment during the school
term to any area for which a valid certificate is held.” Harper
found her transfer undesirable, but, “[u]ndesirable work
assignments are not adverse employment actions.” Southard v.
Texas Bd. of Criminal Justice, 114 F.3d 539, 555 (5th Cir. 1997).
As of her appeal, Harper still taught at Callaway. See
Dorsett v. Bd. of Tr. for State Colls. and Univs., 940 F.2d 121,
123 (5th Cir. 1991). She has been increasingly compensated as a
teacher; in the wake of filing her EEOC claim, and prior to her
transfer, Harper received two raises totaling $3,929. Since
filing her EEOC claim, she has received over $7,000 in raises.
Harper’s continued employment at Callaway and her receiving
annual raises does not constitute retaliation. See Grizzle v.
Travelers Health Network, Inc., 14 F.3d 261, 267-68 (5th Cir.
1994).
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Thus, we agree with the district court that Harper has
failed to establish a prima facie case showing that her transfer
amounted to an adverse employment action.
2. Causal Connection
Even if Harper’s transfer could be characterized as an
adverse employment action, Harper fails to prove that a causal
link exists between the filing of her EEOC complaint and her
transfer. She does not raise a factual dispute as to the School
District’s nondiscriminatory explanation for her transfer from
Callaway to Hardy Middle School. See Swanson v. Gen. Servs.
Admin., 110 F.3d 1180, 1188-89 (5th Cir. 1997). Harper must
show that but for the protected activity, she would not have been
transferred.
Harper offers no evidence that suggests that her EEOC charge
and her transfer are causally linked. We have said, that “the
mere fact that some adverse action is taken after an employee
engages in some protected activity will not always be enough for
a prima facie case.” Swanson, 110 F.3d at 1188 n.3. Yet,
Harper’s proof supporting a causal link between her filing her
EEOC complaint and her transfer rests solely on the fact that the
transfer happened.
Harper’s transfer occurred more than eighteen months after
Harper made her EEOC complaint. “Although this lapse of time is,
by itself, insufficient to prove there was no retaliation, in the
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context of this case it does not support an inference of
retaliation, and rather, suggests that a retaliatory motive was
highly unlikely.” Grizzle, 14 F.3d at 268; see also Clark
County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (5th Cir. 2001)
(stating that adverse action taken 20 months after an employee
filed an EEOC charge demonstrated “no causality at all”). This
unlikelihood is further supported by the fact that the School
District reassigned Casher as a result of Harper’s EEOC
complaint. During summer 2001, the School District transferred
Casher to another school and assigned a new principal to Callaway
beginning with the 2001-2002 school year.
Furthermore, the School District showed that rather than
being retaliatory, the decision to transfer Harper stemmed from
an independent, nondiscriminatory reason. In October 2002, the
School District’s Deputy Superintendent informed the new
principal at Callaway that Harper would be reassigned to Hardy
Middle School because plaintiff had the fewest number of students
in her class compared to the other teachers in her field at
Callaway. The “administrative reassignment” was unaccompanied by
any change in Harper’s pay, benefits, or other conditions of
employment. Harper fails to show that the School District’s
reason for her transfer is pretextual.
In addition, Harper remained at the position to which she
was transferred for only a few months. In January 2003 Harper
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returned to Callaway when she learned that a teaching position
was available to replace a retiring teacher. The School District
accommodated her request to fill the vacant position at Callaway.
For these reasons, we agree with the district court that
Harper has failed to establish a prima facie case on the third
prong of the test for retaliation.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.