United States District Court, E.D. Louisiana
ORDER & REASONS
KARENWELLS ROBY UNITED STATES MAGISTRATE JUDGE
the Court is Defendant KBR, Inc.'s
(“KBR” or defendant”) Motion for
Summary Judgment (R. Doc. 53)
seeking dismissal of Plaintiff Angela “Angie”
Scott-Benson's (“Benson”) claims. Benson
opposes the motion. Rec. doc. 63. The Court heard the
arguments on the briefs on October 16, 2019.
a global engineering, construction and services company that
supports the energy, hydrocarbon, power, industrial, civil
infrastructure, minerals government services and commercial
markets. KBR and Benson first became acquainted
when she worked as a subcontractor on KBR's Pascagoula,
Mississippi Project. Benson Depo. I at 14-15, 82. Exhibit A,
Rec. doc. 53-4. It was at the end of the KBR Pascagoula
project that one of two KBR site HSE managers offered her a
position as a KBR HSE Inspector.
completing the hire-in requirements, which included drug
testing, safety testing, background checks, submission of a
field application, completion of initial paperwork, and
receipt of policies, Benson began working for KBR.
Id. KBR has a prohibited working relationships'
policy that prohibits relationships between managers and
employees, KBR employees and subcontractors and vendors, and
employees responsible for auditing or checking work output
quality. Rec. doc. 53-10, Exhibit C-3.
first official project for KBR, as a KBR employee, began on
January 2014 on the Waggaman Project. Rec. doc. Ex. C-6,
Personnel Action Notice. The Waggaman Project lasted three
(3) years from August 2013 through November 2016. Benson
admittedly pursued relationships with married men, Jonathan
Voss (“Voss”) (Waggaman site KBR Piping
Superintendent) and Randy Whitten (“Whitten”)
(KBR Pascagoula site employee) while working on the Waggaman
Project. Benson Deposition 53-5, p. 216 and 219.
Van Greunen the wife of Jonathan Voss reported to the KBR
COBC's Hotline that Benson was having an affair with her
husband. The affair lasted almost two (2) years from June
2014 to February 11, 2016. Van Greunen Affidavit, Rec. doc.
53-17. Benson was disciplined for her affair with Whitten and
was removed from the work site for three weeks. Benson
Deposition, Rec. doc. 53-7, p.194.
also routinely bought gifts for men in the work place, she
would go to dinner with them and even accepted jewelry and
gifts from her male coworkers. Benson Deposition, Rec. doc.
53-5, p. 214-19. One of the men that she cultivated a
friendship with but denied being romantically involved with
was Wayne Johnson. Johnson, Benson's “forever
friend”, was also married. Id.
also admitted that she met her second husband, James Bell
(KBR Deputy Commission Manager) while on the job and that
they became good friends. She admitted that they went to
dinner but did not have relations until the end of the
project and got married just four (4) months after they began
dating. Benson deposition, Rec. doc. 53-5, p. 217.
November 2015, Benson's male and female coworkers
reported to KBR's Ethics Hotline concerns that Benson was
in a relationship with her manager, Danny Geisinger
(“Geisinger”). They also complained that Benson
was receiving favorable treatment due to her relationship. In
December 2015, KBR commenced an investigation of Benson and
her supervisor Danny Geisinger.
that time, Benson also learned that other coworkers were
complaining about her relationship with her boss. Benson
denied that she was involved in an inappropriate relationship
with her manager but testified that she was given certain
privileges, like taking her drug test before others, being
provided notice of random drug tests, given a key to his
office, and she allowed him to give her an injection in her
hip. Benson deposition, Rec. doc. 53-5, p. 187, 191-93. She
acknowledged that on one occasion she hugged him but stated
that it was because she was going to be tested for suspected
breast cancer. Rec. doc. 53-5, p. 189. KBR could not confirm
that there was an affair, but it was found that based upon
the conduct both she and Geisinger admitted to engaging in,
that her actions perpetuated the perception that she and her
manager were involved in an intimate relationship.
result of the investigation, Benson and Geisinger were both
written up and advised that their workplace conduct should
change. KBR Contact Form, Rec. doc. 53-6, Exhibit 7.
Specifically as to Benson, she was: (1) required to take
appropriate steps to help remove perceptions that she was
working in a unprofessional manner; (2) advised against
having inappropriate relationships with any employees; (3)
advised against lengthy time between closed doors; (4)
prohibited from having access to Geisinger's computer
files and; (5) prohibited from making future requests for
injections while on the project premises. Id.
counseling, Benson continued to work for KBR for another
eight months through the end of the Waggaman Project in
November 2016. Although Benson signed the written counseling
form, she disputed the allegations of the elicit sexual
relationships and thereafter sought treatment for emotional
distress. She continued to report to Geisinger, the HSE
manager, until the end of the Waggaman Project and received
four (4) pay raises during her tenure. Benson Dep. I, Rec.
doc. 53-5, p. 73.
March 12, 2016, Benson filed her first EEOC charge contending
that KBR's investigation of the rumored affair with her
supervisor was sexual harassment and retaliation for an
alleged Health Insurance Portability Accountability Act
(“HIPAA”) violation. She complains that after
notifying her employer that she was being treated for
emotional distress regarding the rumors, her manager wrote
her up for being late, which she characterizes as
retaliation. Benson indicated that she reminded her manager
that she was due a verbal warning before being written up in
compliance with the policy. Id.
2016, Benson learned that the project she was working on
would come to an end; so, she began inquiring and applying
for work at other job sites. Even though she applied for work
with the company KBR throughout the country, on November 1,
2016, she received a “reduction of force” notice.
She complains that her male counterpart Tim Byrd, a fellow
HSE Inspector, did not receive such a notice. Complaint, Rec.
November 29, 2016, HSE and Project Management approved two
HSE inspector positions for the La Porte, Texas Project site.
Declaration of Janet Curfman, Rec. doc. 53-9, p. 3. Azahel
Benito Luna was hired on one requisition but did not start
until February 1, 2017 and Paul Jolicouer was hired on the
other requisition. Id.
December 2016, Benson learned about an opening at the Texas
site. It was well known that the La Porte Project was
experiencing some safety incidents, included a recordable
injury in October 2016. In addition, the HSE manager suffered
some medical setbacks and Senior HSE Inspector, Curtis
Carethers, had to fill in as interim HSE Manager. Rec. doc.
53-12. Benson alleges that while her application was pending,
KBR HSE manager Keith Kluger (“Kluger”) learned
of the newly created position requisitioned by Tom Guidry.
Kluger cancelled the requisition two weeks later. Due to the
safety problems at the La Porte Project site, Kluger was
required to improve the safety statistics. He was also
responsible for improving HSE recruiting, hiring, and
management on the project. Affidavit Keith Kluger, Rec. doc.
alleges that she relocated to Texas only to find out that she
did not have the job. She later learned that the job was
given to a male, Jonathan McCaskill. Thereafter, Benson filed
her second EEOC charge on May 27, 2017 complaining that
KBR's failure to hire her for the La Porte position was
in retaliation for her having filed the earlier EEOC charge
in March 2016 and constituted sex discrimination.
filed the subject motion seeking dismissal of several of
Benson's claims. First, KBR contends that Benson's
unexhausted claims are not actionable. KBR also alleges that
her claims of sexual harassment and retaliation fail as a
matter of law. KBR's failure to hire her on the La Porte
project and retaliation are not actionable because she was
not qualified for the position; the position was not filled;
and there was no adverse action. Finally, KBR contends that
there is no evidence that KBR's reason for not hiring her
opposes the motion. Benson points out that she is not
asserting a claim of managerial discrimination that a male
coworker was retained a few days longer than she on the
closing of the Waggaman Project but that the fact can be used
as background evidence. Rec. doc. 63. Benson further contends
that the basis of her first complaint are the false
accusations her co-workers began making against her about
engaging in inappropriate romantic relationships on the job,
after she complained about alleged HIPAA violations.
further contends that Guidry was hiring her for a
commissioning job as a CSS Safety Coordinator, and not an HSE
inspector, which he had the authority to do. Benson
acknowledges that she did not plead a claim for intentional
infliction of emotional distress but contends that the
pleadings asserts facts establishing her entitlement to such
relief. Benson contends that she has sufficiently set forth
claims for hostile work environment, disparate treatment,
retaliatory discharge and failure to hire based on sex.
Standard of Review
Rule 56 of the Federal Rules of Civil Procedure
(“Rule”), summary judgment is appropriate when
“the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P.
56(c)). See also TIG Ins. Co. v. Sedgwick James of
Wash., 276 F.3d 754, 759 (5th Cir. 2002). “As to
materiality, the substantive law will identify which facts
are material.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.” Id. A genuine issue of
material fact exists if the evidence would allow a reasonable
jury to return a verdict for the non-moving party.
Id. The court should view all facts and evidence in
the light most favorable to the non-moving party. United
Fire & Cas. Co. v. Hixson Bros. Inc., 453 F.3d 283,
285 (5th Cir. 2006). Mere conclusory allegations are
insufficient to defeat summary judgment. Eason v.
Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).
the Court is to consider the full record in ruling on a
motion for summary judgment, Rule 56 does not obligate it to
search for evidence to support a party's opposition to
summary judgment. Malacara v. Garber, 353 F.3d 393,
405 (5th Cir. 2003) (“When evidence exists in the
summary judgment record but the nonmovant fails even to refer
to it in the response to the motion for summary judgment,
that evidence is not properly before the district
court.”). Thus, the nonmoving party should
“identify specific evidence in the record, and
articulate” precisely how that evidence supports his or
her claims. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th
Cir.), cert. denied, 513 U.S. 871 (1994).
nonmovant's burden of demonstrating a genuine issue is
not satisfied merely by creating “some metaphysical
doubt as to the material facts, ” “by conclusory
allegations, ” by “unsubstantiated assertions,
” or “by only a scintilla of evidence.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994). Rather a factual dispute precludes a grant of
summary judgment only if the evidence is sufficient to permit
a reasonable trier of fact to find for the nonmoving party.
Smith v. Amedisys, 298 F.3d 434, 440 (5th Cir.2002).