United States District Court, W.D. Louisiana, Shreveport Division
ELIZABETH ERNY FOOTE, STATES DISTRICT JUDGE
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.
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.
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].
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].
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.
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.
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.
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].
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. 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]. 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].
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
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].
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.
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
Dep.at 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,
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
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
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.
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 ...