United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY, UNITED STATES DISTRICT JUDGE
the Court is a Motion for Summary Judgment (Rec. Doc. 35)
filed by defendants Rollins, Inc. and Orkin, LLC
(collectively “Orkin”). Plaintiff Jessica Berger
opposes the motion. The motion, noticed for submission on
February 22, 2017, is before the Court on the briefs without
oral argument. For the reasons that follow, the motion is
Jessica Berger filed this suit against Orkin, her former
employer, asserting claims of hostile work environment
(gender) and retaliation under Title VII and state
law.Berger began her employment with Orkin in
September 2013 at its office in Houma, Louisiana. Berger
alleges that her work environment changed in early 2014 when
Orkin brought in H. Russell Fielder as the new branch
manager. Berger alleges that Fielder engaged in
offensive conduct while in her presence and that he did so on
a daily or weekly basis. Berger claims that in May 2014 she
specifically told Fielder to stop but ultimately she was
disciplined for using profane language in the workplace.
Berger contends that Fielder began to demean and humiliate
her and in August 2014 Orkin terminated her
moves for summary judgment arguing that the incidents of
inappropriate conduct that underlie Berger's hostile work
environment claim occurred too sporadically over a five month
period to be actionable. Orkin also contends that Berger
cannot create an issue of fact as to her retaliation claim
because the undisputed facts demonstrate that she was
terminated as part of a workforce reduction.
trial is scheduled to commence on April 24,
judgment is appropriate only if "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, " when
viewed in the light most favorable to the non-movant,
"show that there is no genuine issue as to any material
fact." TIG Ins. Co. v. Sedgwick James, 276 F.3d
754, 759 (5th Cir. 2002) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute
about a material fact is "genuine" if the evidence
is such that a reasonable jury could return a verdict for the
non-moving party. Id. (citing Anderson, 477
U.S. at 248). The court must draw all justifiable inferences
in favor of the non-moving party. Id. (citing
Anderson, 477 U.S. at 255). Once the moving party has
initially shown "that there is an absence of evidence to
support the non-moving party's cause, " Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986), the
non-movant must come forward with "specific facts"
showing a genuine factual issue for trial. Id.
(citing Fed. R. Civ. P. 56(e); Matsushita Elec.
Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)).
Conclusional allegations and denials, speculation, improbable
inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts
showing a genuine issue for trial. Id. (citing
SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).
Hostile Work Environment
question before the Court is whether Berger has presented
sufficient evidence to create an issue of fact as to whether
the harassment that she alleges was so severe or pervasive as
to alter a condition of her employment.
creation of a hostile work environment through gender-based
harassment is a form of discrimination proscribed by Title
VII. E.E.O.C. v. Boh Bros. Const. Co., LLC, 731 F.3d
444, 452 (5th Cir. 2013) (citing Vance v. Ball
State Univ., 133 S.Ct. 2434, 2455 (2013)). Where a
harassment claim arises out of a supervisor's conduct,
"there are four elements of a hostile working
environment claim: (1) that the employee belongs to a
protected class; (2) that the employee was subject to
unwelcome sexual harassment; (3) that the harassment was
based on [a protected characteristic]; and (4) that the
harassment affected a ‘term, condition, or
privilege' of employment.” Boh Bros., 731
F.3d at 453 (citing Lauderdale, 512 F.3d at 162-63).
To affect a term, condition, or privilege of employment, the
harassing conduct “must be sufficiently severe or
pervasive to alter the conditions of [the victim's]
employment and create an abusive working environment.”
Id. (quoting Aryain v. Wal-Mart Stores of Tex.,
L.P., 534 F.3d 473, 479 (5th Cir. 2008)). Sexually
discriminatory verbal intimidation, ridicule, and insults may
be sufficiently severe or pervasive as to alter the
conditions of the victim's employment and create an
abusive working environment that violates Title VII.
Farpella-Crosby v. Horizon Health Care, 97 F.3d 803,
806 (5th Cir. 1996) (citing Harris v. Forklift
Sys., Inc., 114 S.Ct. 367, 370-71 (1993)). But the
"mere utterance of an . . . epithet which engenders
offensive feeling in an employee" is not alone
sufficient to support Title VII liability. Id.
(quoting Weller v. Citation Oil & Gas Corp., 84
F.3d 191, 194 (5th Cir. 1996)). The court uses an
objective “reasonable person” standard to
evaluate severity and pervasiveness. Boh Bros., 731
F.3d at 453 (citing Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 82 (1998)). Ultimately, whether an
environment is hostile or abusive depends on the totality of
circumstances. Id. (citing Harris v. Forklift
Sys., Inc., 510 U.S. 17, 23 (1993)).
argues that the conduct that Berger alleges on Fielder's
part was not severe or pervasive enough to support a claim
for hostile work environment sexual harassment. Orkin
characterizes the conduct as sporadic, isolated incidents
occurring only a handful of times over a five month period.
Orkin argues that the allegedly offensive conduct does not
rise to the level of conduct necessary to support a cause of
action for hostile work environment.
offers the following summary of the alleged incidents, which
is consistent with Berger's deposition testimony:
♦ In the same conversation in which she claims to have
overhead Fielder remark that he “jerked off in a
cup” to give a sperm sample, she claims he also stated