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Berger v. Rollins, Inc.

United States District Court, E.D. Louisiana

April 12, 2017

JESSICA BERGER
v.
ROLLINS, INC., ET AL.

         SECTION: "A" (4)

          ORDER AND REASONS

          JAY C. ZAINEY, UNITED STATES DISTRICT JUDGE

         Before 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 GRANTED.

         I. BACKGROUND

         Plaintiff 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.[1]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.[2] 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 employment.[3]

         Orkin 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.

         A jury trial is scheduled to commence on April 24, 2017.[4]

         II. DISCUSSION

         Summary 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)).

         A. Hostile Work Environment

         The 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.

         The 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)).

         Orkin 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.

         Orkin 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 ...

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