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Sobolak v. CW&W Contractors, Inc.

United States District Court, W.D. Louisiana, Shreveport Division

January 22, 2018





         Before the court is a Motion for Summary Judgment filed by the Defendant, CW&W Contractors, Inc. (“CW&W”). [Record Document 22]. Plaintiff, Scarlett Sobolak (“Sobolak”), opposes the motion. [Record Document 29]. For the reasons assigned herein, Defendant's motions is hereby GRANTED IN PART and DENIED IN PART.


         Sobolak's Amended and Restated Complaint contains claims against CW&W for hostile work environment/sexual harassment and retaliation under Title VII, 42 U.S.C. §§ 2000e2 and 2000e3, and under Louisiana's comparative state laws, La. R.S. 23:301 et seq and La. R.S. 51:2256. [Record Document 3]. Sobolak alleges that she was subjected to sexual harassment by CW&W owner, Glen Warren (“Warren”), General Manager, Ernest Simpson (“Simpson”), and a coworker, Tony Stewart (“Stewart”). Sobolak also claims that she experienced retaliation after she complained to Warren.

         Sobolak was hired by CW&W on July 25, 2011, to serve as its Human Resources Manager. [Record Document 3 ¶ 9; Sobolak Dep. at 40]. Prior to Sobolak's arrival CW&W did not have an employee dedicated to human resources. [Warren Dep. at 22-24]. Sobolak had previously worked as an assistant to a Human Resources Director, but she had no prior experience as a department head of a human resources department. Id. However, Warren was willing to take a chance on Sobolak because she was a “smart, young lady” and he was willing to send her to training to acquire additional knowledge. [Warren Dep. at 21, 31]. The record demonstrates that Sobolak never received additional training. [Warren Dep. at 32; Lewis Dep. at 45, 47]. Even so, Sobolak's superiors were pleased with her work. [Warren Dep. at 47-48]. As part of her duties, Sobolak created an employee handbook for CW&W, which included a sexual harassment policy. [Record Document 22-1, Ex. C].

         In February 2013, CW&W hired Simpson as General Manager. [Record Document 3 ¶ 13; Warren Dep. at 58]. Simpson reported directly to Warren, and all other employees reported directly to Simpson or their immediate supervisors. [Lewis Dep. at 59]. Sobolak alleges that shortly after Simpson was hired he began sexually harassing her. In mid-April 2013, Sobolak alleges that she was in Simpson's office discussing work-related matters when he began asking her questions of a private and sexual nature. [Record Document 3 ¶ 14]. Sobolak states that the questions made her extremely uncomfortable, but she answered them because Simpson was her manager and she did not think she could ask him to stop without offending him. Id. Sobolak claims that during the meeting Simpson made a comment about oral sex, closed and locked his office door, and walked over to where she was seated. Id. Sobolak alleges that Simpson then exposed himself to her. Id. She alleges that she felt embarrassed, intimidated, and pressured to perform oral sex. Id. She complied because she felt had no other option. [Sobolak Dep. at 94]. Sobolak states that afterwards she was in a state of shock and felt shame and embarrassment. [Record Document 3 ¶ 15]. She was also concerned that her marriage had been placed in jeopardy, and that she might lose her job because what occurred was inappropriate. [Sobolak Dep. at 92-93].

         Thereafter, Sobolak alleges that nearly every interaction she had with Simpson was of a sexual nature. [Record Document 3 ¶ 16]. She alleges that she received pictures of Simpson's private parts on an almost daily basis, and that he requested pictures of her naked body, sometimes performing sexual acts, which she provided. Id. at 19. On May 7, 2013, Sobolak drove to Simpson's house to engage in sexual intercourse because he asked her to do so and she felt she could not decline. [Sobolak Dep. at 95-96; Record Document 3 ¶ 17]. Between April 2013 and December 2013, Plaintiff engaged in approximately 25 separate sexual encounters with Simpson. [Record Document 3 ¶ 18]. These encounters occurred in Simpson's office at CW&W, at his home in DeBerry Texas, in Sobolak's vehicle, and in hotel rooms in Bossier City, Louisiana. [Sobolak Dep. at 39, 40, 80, 81, 102-103, 115-116]. Sobolak contends that she felt obliged to engage in sexual acts because she felt hopeless and unable to deny Simpson's advances because he had substantial power and control over her. [Record Document 3 ¶¶ 16-17]. Sobolak claims that she was in a constant state of pressure, fear, hopelessness, and disbelief about the situation. [Record Document 3 ¶ 18]. She alleges that she tried to end all contact with him, but each time she was reminded by Simpson that she should comply with his requests in order to keep her job. Id.

         Simpson viewed his interactions with Sobolak in a completely different light. Specifically, Simpson states that during the meeting when their first sexual interaction occurred, it was Sobolak who initiated the encounter. [Simpson Dep. at 28]. He states that Sobolak made a comment to him about her breasts, closed his office door, and then propositioned him. Id. at 29. Simpson also states that it was Sobolak who suggested that they meet at his home the first time they engaged in sexual intercourse. Id. at 33-34. He also maintains that he had a consensual and loving relationship with Sobolak. Simpson testified that he was in love with Sobolak and he thought that she reciprocated those feelings. Id. at 54. Sobolak frequently told Simpson that she loved him, wanted to marry him, and have him be the stepfather to her children. [Sobolak Dep. at 74-75]. Sobolak maintains that every time she received a text message or profession of love from Simpson she would respond in kind because she felt an expectation for her emotions to match his. Id. at 74.

         Sobolak claims that the situation with Simpson became so overwhelming that she gave her verbal notice of resignation to her immediate supervisor, Jennifer Corley Lewis (“Lewis”), on November 25, 2013. [Record Document 20 at ¶ 20]. During her meeting with Lewis, Sobolak denied that she was having a sexual relationship with Simpson, instead describing their relationship as an “emotional affair.” [Sobolak Dep. at 77-78]. Sobolak told Lewis that she needed to remove herself from the situation and create distance between herself, CW&W, and Simpson. [Lewis Dep. at 72]. Sobolak did not reveal the physical nature of her interactions with Simpson because she was trying to save her marriage and “no one could know” about Simpson. [Sobolak Dep. at 78]. Lewis testified that Sobolak gave one or two weeks notice, but her final day was in flux because Sobolak wanted to finish a work project. [Lewis Dep. at 72]. Sobolak claims that Simpson demanded that she remain with CW&W until her replacement was found. [Record Document 3 ¶ 20]. Lewis confirmed that Simpson tried to get Sobolak to remain with the company through Christmas, stating “he [Simpson] was very eager to have her stay, and she [Sobolak] was ready to go.” [Lewis Dep. at 75]. Lewis asked Warren whether he had any interest in keeping Sobolak beyond her initially agreed upon departure date of December 13, 2013. Id. Warren was not interested in prolonging Sobolak's employment if she wanted to leave. Id.

         On December 7, 2013, Sobolak's husband saw an email on her phone from Simpson wherein he expressed his love for Sobolak and stated that he looked forward to the day they could be together. [Record Document 22-2 ¶ 28]. Sobolak desperately tried to get her phone away from her husband and a physical altercation ensued between them. [Id. at ¶ 29]. Thereafter, Sobolak deleted all of the text messages between herself and Simpson by performing a factory re-set of her cell phone. [Sobolak Dep. at 76]. She did so to prevent her husband from reading the messages in an effort to save her relationship with her husband. Id. Sobolak continued to deny the extent of her interactions with Simpson to her husband. [Record Document 22-2 ¶ 30]. On December 8, 2013, Sobolak's husband contacted Warren by telephone to make him aware of Simpson's inappropriate behavior and to inform Warren that he believed his wife and Simpson were having an affair. [Record Document 3 ¶ 23; Record Document 22-2 ¶ 31].

         On December 10, 2013, several of CW&W's female employees spoke privately amongst themselves and determined that Simpson had allegedly behaved inappropriately with Sobolak and her co-plaintiff Blanca McGee (“McGee”), Lewis, and Angela Finley (“Finley”). [Record Document 3, ¶ 24]. Lewis shared this information with Warren and a meeting was called to discuss the allegations. Id. at ¶ 25. In attendance were Warren, Lewis, Finley, McGee, Sobolak, and Brian Murry, CW&W's Contract Service Manager.[1] Id. During the meeting Warren asked each of the women to explain what had been going on. [Lewis Dep. at 79]. Finley received inappropriate text messages and phone calls from Simpson. [Lewis Dep. at 79; Record Document 28-5, Finley Aff. ¶ 6]. Lewis received text messages from Simpson asking her to spend time with him outside of the office. [Lewis Dep. at 80]. McGee described a nonconsensual sexual encounter with Simpson that occurred during a Labor Day cookout at Simpson's house. Id. at 79-80. Sobolak described her interactions with Simpson as an inappropriate “emotional affair.” [Warren Dep. at 78].[2] According to Lewis, Sobolak stated that Simpson had been a good friend to her, but she now felt manipulated by him after learning that he was making advances towards other women. [Lewis Dep. at 85].

         Warren responded to the allegations by telling the women that he wished they had come to him earlier, but that he would handle the situation. [Warren Dep. at 80]. Sobolak claims that Warren also stated that the timing was not good for the company because Simpson was needed to complete an important job and CW&W's financial well being was paramount. [Record Document ¶ 25]. Sobolak also alleges that Warren asked the female employees to remain silent about the allegations. Id. Lewis confirmed that Warren asked the women to please keep the meeting confidential. [Lewis Dep. at 87]. He also stated that he needed time to think about the problem and determine the appropriate course of action. Id.

         After the meeting the female employees still reported to Simpson, but he was out of town working a large job in Jackson, Mississippi, and was rarely in the office. Id. Sobolak also alleges that Warren's wife came into the office to speak with Lewis to see if there was any way to correct the situation and allow Simpson to remain with the company because he had been hired to allow Warren to have more free time to spend with their family. [Record Document 3 at ¶ 28]. Warren did not know that his wife talked to Lewis until he read about the meeting in Sobolak's complaint. [Warren Dep. at 136].

         Sobolak's last day at CW&W was December 13, 2013, just a couple of days after the meeting with Warren. [Record Document 3 ¶ 29, Doc 22-2 ¶ 36]. That same day Sobolak and her husband began marital counseling. [Sobolak Dep. at 130]. During the counseling session, Sobolak continued to deny that she had sex with Simpson, instead describing the relationship as an emotional affair. Id. at 131. Eventually, on December 21, 2013, Sobolak told her husband that she had engaged in sexual relations with Simpson. Id. at 141. Sobolak alleges that on December 31, 2013, she began to receive threatening messages from Simpson on her phone and social media account. [Record Document 3 at ¶ 30]. On January 2, 2014, she filed a formal complaint against Simpson with the Bossier City Police Department. Id. at 31.

         In the interim, about a week and half after the December 10, 2013 round table meeting with the female employees, Warren met with Simpson to discuss the allegations. [Warren Dep. at 89-90]. Simpson denied that he did anything inappropriate, but he admitted that he was in love with Sobolak. Id. at 91-92. Warren testified that he told Simpson his behavior was unacceptable and that he initially terminated Simpson's employment at that meeting. However, Warren's financial advisor, John Griffin, who was present at the meeting, interceded and urged Warren to contact legal counsel first because Simpson had an employment contract with CW&W. [Warren Dep. at 91-92; Record Document 22-10, Griffin Aff. ¶ 6]. Warren suspended Simpson from his duties until he could consult with legal counsel. [Warren 92; Griffin Aff. ¶ 7]. Warren stated that he told Simpson not to contact any of the employees at CW&W, but that he later learned from Lewis that Simpson continued to try to contact Sobolak. [Warren Dep. at 96]. Sobolak was no longer an employee of CW&W at this point. After consultation with legal counsel, CW&W terminated Simpson's employment on January 2, 2014, with a severance package. [Record Document 22-2 ¶ 40; Warren Dep. at 98, 100].


         Federal Rule of Civil Procedure 56(a) directs that a court “shall grant summary judgment if the 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.”[3]

         Summary judgment is appropriate when the pleadings, answers to interrogatories, admissions, depositions, and affidavits on file indicate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548 (1986). When the burden at trial will rest on the non-moving party, the moving party need not produce evidence to negate the elements of the non-moving party's case; rather, it need only point out the absence of supporting evidence. See Celotex, 477 U.S. at 322-323.

         If the movant satisfies its initial burden of showing that there is no genuine dispute of material fact with the motion for summary judgment, the nonmovant must demonstrate that there is, in fact, a genuine issue for dispute at trial by going “beyond the pleadings” and designating specific facts for support. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). “This burden is not satisfied with ‘some metaphysical doubt as to the material facts, '” by conclusory or unsubstantiated allegations, or by a mere scintilla of evidence. Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). However, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1985) (internal citations omitted); Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986) (the court must “review the facts drawing all inferences most favorable to the party opposing the motion”). While not weighing the evidence or evaluating the credibility of witnesses, courts should grant summary judgment where the critical evidence in support of the nonmovant is so weak and tenuous that it could not support a judgment in the nonmovant's favor. Little, 37 F.3d at 1075.

         Additionally, Local Rule 56.1 requires the moving party to file a statement of material facts as to which it contends there is no genuine issue to be tried. Pursuant to Local Rule 56.2, the party opposing the motion for summary judgment must set forth a “short and concise statement of the material facts as to which there exists a genuine issue to be tried.” All material facts set forth in the statement required to be served by the moving party ...

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