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Scott-Benson v. KBR, Inc.

United States District Court, E.D. Louisiana

November 12, 2019

ANGIE SCOTT-BENSON
v.
KBR, INC.

         SECTION: “KWR”

          ORDER & REASONS

          KARENWELLS ROBY UNITED STATES MAGISTRATE JUDGE

         Before 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.

         I. Factual Summary

         KBR is a global engineering, construction and services company that supports the energy, hydrocarbon, power, industrial, civil infrastructure, minerals government services and commercial markets.[1] 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.

         After 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.

         Benson's 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.

         Johanna 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.

         Benson 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.

         Benson 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.

         In 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.

         During 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.

         As a 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.

         After 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.

         On 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.

         In June 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. doc. 1.

         On 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.

         In 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. 53-12.

         Benson 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.

         KBR has 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 was pretextual.

         Benson 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. Id.

         Benson 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.

         II. Standard of Review

         Under 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).

         “Only 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).

         Although 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).

         The 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).

         III. Analysis

         A. Unexh ...


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