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Case 4:11-cv-01951 Document 18

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

GARRY S. GRAYBILL and JASMYNE GRAYBILL, Plaintiffs, vs.

SAM HOUSTON STATE UNIVERSITY, Defendant.

§ § § § § § § § § § § §

CIVIL ACTION NO. 11-CV-1951

MEMORANDUM AND RECOMMENDATION ON DEFENDANT’S MOTION TO DISMISS This matter was referred by United States District Judge Vanessa D. Gilmore, for full pre-trial management, pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). (Docket Entry #13). Before the court is a motion by Defendant Sam Houston State University (“Defendant,” “University”) to dismiss Plaintiffs’ complaint, under Rule 12(b)(6), for failure to state a claim on which relief can be granted. (Defendant’s Motion to Dismiss Plaintiffs’ First-Amended Complaint [“Defendant’s Motion”], Docket Entry # 10). Plaintiffs responded to Defendant’s Motion, and the University has replied. (Plaintiffs’ Response to Defendant’s Motion to Dismiss Plaintiffs’ First Amended Complaint [“Plaintiff’s Response”], Docket Entry # 14); (Defendant’s Reply In Support of Its Motion to Dismiss [“Defendants’ Reply”], Docket Entry # 16). After a review of the pleadings and the applicable law, it is RECOMMENDED that Defendant’s motion be GRANTED, in part, and DENIED, in part.

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BACKGROUND In this action, Garry and Jasmyne Graybill (“the Graybills,” “Plaintiffs”) claim that their supervisor at Sam Houston State University sexually harassed them and created a hostile work environment.

They further claim that the University retaliated against them when they

complained of this treatment.

(Plaintiffs’ First-Amended Complaint [“Complaint”], Docket

Entry 5). The Graybills’ complaints center on the actions by their supervisor, Tony Shipp, the Chairman of the Art Department. (Id. at 2). Plaintiffs are artists who were employed on a oneyear contract in the University art department. Shipp hired them in September 2008 as nontenured faculty members. (Id. at 2). The Graybills’ primary role “was to strategically design and team-teach the new Workshop in Art Studio & History (WASH) program for Defendant’s Art Department.” (Id.). Plaintiffs claim that, “[t]hroughout their tenure, [they] were both regarded well through their evaluations and were never subjected to any disciplinary action by SHSU until after they made the complaints described within this action.” (Id. at 2-3). In their Complaint, Plaintiffs allege that “Shipp created an unlawful hostile work environment based on sex.” (Id. at 3). They claim, specifically, that Shipp made repeated “sexist comments,” once remarking “that Garry Graybill was ‘tied to [Jasmyne’s] apron strings.” (Id. at 4). Plaintiffs also allege that Shipp asked whether Jasmyne intended to have children, commenting that children interfere with professional duties. (Id.). Plaintiffs claim that Shipp “leered” at the couple, especially Jasmyne, and once stated that “they were ‘pretty damn goodlooking.” (Id.). Finally, Plaintiffs claim that Shipp “would use disrespectful and denigrating terms when talking about females.” (Id.). In addition to these complaints, Plaintiffs contend that they received numerous unwanted invitations from Shipp to socialize outside of the workplace. (Id. at 3 - 8). In fact, the Graybills allege that “Shipp made approximately 65 [] personal

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invitations to [them]” via text message, telephone, or “unannounced visits to their off-campus offices during evenings or weekends.”

(Id. at 3).

These invitations were purportedly for

“situations in which the three of them would be together with no other faculty,” and that Shipp asked them to go “‘drinking’ or to his home.” (Id. at 4). On at least one occasion, Shipp told them “he could only be ‘plied’ with beer and food.” (Id.). The Graybills claim that “Shipp made it clear that accepting these personal invitations was a condition of [their] employment.” (Id. at 4). In fact, Plaintiffs allege that, at “the outset of [their] employment Shipp made clear that he controlled the money in the Department, including merit raises.” (Id. at 3). Nevertheless, Plaintiffs declined every invitation. (Id. at 3). The Graybills claim that the invitations were unsolicited, but that “because of Shipp’s statements about his power in relation to their jobs,” they felt “obligated to endure [them] and continue finding ways to decline.”

(Id.).

Plaintiffs’ “suspici[on]” about these invitations escalated until “the Spring of 2009, [when] the Graybills met with Shipp in his office.” (Id. at 4). During that visit, Shipp initiated a discussion about “swinging”, or “partner-swapping.” (Id.). The Graybills allege that the topic “had no relevance to the discussion” at hand. (Id.). Shipp also allegedly discussed research done by the Kinsey Institute1 on sexual topics, and asked “the Graybills if they thought [swinging] was interesting.” (Id.). Plaintiffs claim that “[t]hese types of comments and incidents led [them] to believe that Shipp may have had sexual intentions [] with the dozens of [other] personal invitations that he had made to” them. (Id.). At some point, the Graybills “became aware that another art professor, Summer Zickafoose, had filed a grievance against [] [Shipp] due to sexual harassment.” (Id. at 4).

1

The Kinsey Institute of Indiana University “works towards advancing sexual health and knowledge worldwide. For over 60 years, the institute has been a trusted source for investigating and informing the world about critical issues in sex, gender and reproduction.” The Kinsey Institute, http://www.iub.edu/~kinsey/about/ (last visited December 12, 2011).

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Shortly thereafter, in May 2009, the Art Department held a meeting at which the Graybills and other professors were required to vote on whether to retain Shipp as the Department Chair. (Id. at 5). During that meeting, Plaintiffs “voiced their concerns about Shipp’s behavior,” and they allege that “many [other] faculty members raised concerns about similar harassing and discriminatory behavior by Shipp.”

(Id.).

Plaintiffs report that “[t]en of the 16 faculty

members,” voted with them to remove Shipp as Chair. (Id.). Despite this vote, Shipp kept his position as the Department Chair for the next academic year. (Id. at 5). That same month, the University renewed the Graybills’ contracts for the following year, and there was no requirement that Plaintiffs reapply for their positions. (Complaint at 5). The academic year at issue began in August 2009, and the Graybills returned to the University that month to start the school year. The Graybills allege that even so, they “were immediately concerned about retaliation by Shipp.” (Id.). For that reason, they met with the Dean of Arts and Sciences, Jaimie Hebert,2 “to voice their concerns.” (Id.). In that meeting, Plaintiffs claim that Dean Hebert “admitted that Shipp was a problem,” but he nevertheless advised them to “work out their differences with Shipp in a face-to-face meeting.” (Id.). The Graybills did meet with Shipp, on August 14, 2009, and according to them, “Shipp was livid.” (Id. at 6). The Graybills claim that “[h]e began verbally assaulting [them] for voting against him and told [them] that they had made a big mistake.” (Id.). Shipp “also accused [the Graybills] of drafting Zickafoose’s formal grievance and sexual harassment complaint.” (Id.). Following the meeting, Plaintiffs allege that they “learned that their 2009-2010 contracts did not contain the merit raise that Shipp had promised them,” and that “their job[s] had been posted for the 2010-2011 school year, meaning that the couple would have to reapply for their jobs and compete with applicants

2

Dean Hebert’s first name is incorrectly spelled “Jaime” in Plaintiff’s First Amended Complaint. (Complaint at ¶ 22); Sam Houston State University website, http://www.shsu.edu/~mth_jlh/ (last visited January 5, 2012).

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nationwide.” (Id.). Shipp did not cite any performance issues for his decision to advertise their positions. (Id). Instead, Shipp allegedly “stated that he [reposted their positions] because they were ‘not happy’ with their jobs, and [that] if they were happy, they could reapply.” (Id.). Shipp then extended another invitation to the Graybills to attend a party at his home. (Id). Plaintiffs again declined. (Id.). In light of the continuing invitations, Plaintiffs claim that they “reasonably believed that impressing Shipp and retaining their jobs required that they meet with him privately on a social basis.” (Complaint at 6). The Graybills allege that, “[b]ecause they knew they were going to continue refusing his private invitations, they realized that they could not get rehired for the following year, nor could they continue working under these conditions.” (Id. at 6-7). In December 2009, the Graybills resigned. (Id. at 7). Plaintiffs delivered their letter of resignation to the Director of Human Resources, as well as to the President and Vice-President of the University. (Id.). In both the resignation letter, and in exit interviews, the Graybills detailed their complaints about Shipp and his alleged harassment of them. (Id.). The University’s failure to respond prompted this action. In this lawsuit, the Graybills have raised two causes of action, one for discrimination and another for retaliation. (Id. at 7). In their discrimination claim, Plaintiffs complain that the University violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, “which makes it unlawful for an employer to hire or discharge any individual, or otherwise to discriminate against any individual … because of an individual’s sex.” (Id. at 7). In particular, the Graybills claim that “Defendant engaged in sex discrimination, [and] created a hostile working environment based on sex.”

(Id.).

In their retaliation claim, Plaintiffs complain that the

University violated § 2000e-3 of Title VII, which “makes it unlawful for an employer to

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discriminate against any of its employees because he or she has opposed any practice made an unlawful employment practice by § 2000e.” (Id. at 7-8). Plaintiffs allege, specifically, that “Defendant retaliated by declining a promised merit raise and reposting [their] jobs for the following contract year.” (Id. at 8). Plaintiffs seek “monetary damages, including but not limited to back pay, reinstatement or front pay, mental anguish, and other non-pecuniary damages,” including “expert witness fees, court costs, [] attorney fees,” and “pre- and postjudgment interest.” (Id. at 8). In addition, Plaintiffs claim that, because Defendant acted “with malice or reckless indifference to the[ir] federally protected rights,” that they are entitled to punitive damages. (Id. at ¶¶ 30-31). In response to the Graybills’ claims, Defendant filed the present motion, arguing that the Complaint should be dismissed for failure to state a claim, under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Defendant’s Motion at 3). The University contends that Plaintiffs’ claims “do not raise more than a mere speculative possibility that either Garry or Jasmyne Graybill were subject to unwelcome harassment on the basis of sex, or that any such harassment affected a term, condition, or privilege of [their] employment.” (Id. at 5-6). In addition, Defendant insists that the Graybills “have failed to allege sufficient facts from which the Court can plausibly infer that they engaged in protected activity, and have therefore failed to state a claim for Title VII retaliation.” (Id. at 10-11). From a review of the pleadings and the applicable law, it is RECOMMENDED that Defendant’s motion to dismiss Plaintiffs’ sexual harassment claims be GRANTED, but that Defendant’s motion to dismiss the retaliation claim be DENIED. Standard of Review In ruling on a motion to dismiss an action under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must accept the allegations as true, view them in a light most favorable

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to Plaintiffs, and draw all inferences in their favor. Collins v. Morgan Stanely Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000); Lowery v. Texas A&M Univ. Sys., 117 F.3d 242, 246-47 (5th Cir. 1997). Federal pleading rules require only “a short and plain statement of the claim” showing that the pleader is entitled to relief. FED. R. CIV. P. 8(a). As the Supreme Court has emphasized, “heightened fact pleading of specifics” is not required to survive a motion to dismiss under Rule 12(b)(6).

Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 127 S. Ct. 1955, 1974 (2007).

Nevertheless, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 1964-65 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). In Ashcroft v. Iqbal, the Court explained that, “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950 (2009). Indeed, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. Discussion Sexual Harassment Claims It is well settled that “to establish a prima facie case of hostile work environment based on sexual harassment,” a plaintiff must show that: (1) she belongs to a protected class; (2) was subjected to unwelcome sexual harassment; (3) the harassment was based on her sex; (4) the harassment affected a term, condition, or privilege of her employment; and (5) [the employer] knew or should have known of the harassment and failed to take action. Cain v. Blackwell, 246 F.3d 758, 760 (5th Cir. 2001) (citing B.T. Jones v. Flagship Int’l, 793 F.2d 714 (5th Cir. 1986). However, the Supreme Court has held that if the alleged harassment is by a supervisor, “the plaintiff employee[s] need to satisfy only the first four elements. Celestine

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v. Petroleos de Venesuella SA, 266 F.3d 343, 353 (5th Cir. 2001) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). Further, “[f]or sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Derek Carder v. Continental Airlines, Inc., --- F.3d ---, 2011 WL 996169 (5th Cir. 2011) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)) (emphasis in original). The Fifth Circuit has defined “unwelcome sexual harassment” as “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome in the sense that it is unsolicited or unincited and is undesirable or offensive to the employee.” Wyerick v. Bayou Steel Corp., 887 F.2d 1271, 1274 (5th Cir. 1989). In addition, “‘simple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’” Shepherd v. Comptroller of Public Accounts of the State of Texas, 168 F.3d 871, 874 (5th Cir. 1999) (quoting Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (alterations in original)). In sum, “[w]hether an environment is hostile or abusive depends on a totality of circumstances, focusing on factors such as the frequency of the conduct, the severity of the conduct, the degree to which the conduct is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee’s work performance.” Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996); see also Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). In this instance, the University argues that Plaintiffs’ claims “do not raise more than a mere speculative possibility that [they] were subject to unwelcome harassment on the basis of sex, or that any such harassment affected a term, condition, or privilege of employment.” (Defendant’s Motion at 5-6). Defendant insists that “the Graybills make no allegation that those

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invitations were inherently or overtly sexual in nature.”

(Id. at 6).

And, the University

underscores that “mere social invitations, devoid of any sexual character or motivation, are not conduct prohibited by Title VII.” (Id.) In fact, the University points out that the Graybills’ Complaint demonstrates that they were able to “successfully perform their jobs,” while declining the allegedly offending invitations. (Id. at 9). Defendant maintains that “a discussion regarding the academic research of the Kinsey Institute, is equally (and more) indicative of a conversation amongst educators at a scholarly institution, than it is evocative of an invitation to ‘swing.’” (Defendant’s Reply at 4). Defendant also argues that a number of Shipp’s remarks are simply “isolated comments” with no sexual undertones.

(Defendant’s Motion at 7).

Finally, the

University emphasizes that there are no allegations that Shipp ever mentioned the Graybills’ refusals of his many invitations or that he “bas[ed] any employment decisions” on those refusals. (Id. at 6). Plaintiffs, on the other hand, contend that Shipp’s comments about his control of department money and the fact that they had to “make him happy,” “if accepted as true, clearly tie Plaintiffs’ responses to his invitations to their job performance.” (Id. at 2-4). They argue that “[i]t lacks reason to say that declining a supervisor’s personal invitations over 60 times does not affect the conditions of employment.” (Id. at 3). In addressing these competing contentions, two obvious inquiries arise. The first is whether Plaintiffs’ allegations raise a claim as to a hostile work environment, and if so, whether that environment affected the conditions of their employment. To determine whether Shipp’s repeated social invitations or his allegedly harassing remarks created a hostile work environment, it is important to review “the totality of the circumstances.” Weller, 84 F.3d at 194. To be sure, Shipp’s invitations alone do not create a hostile work environment. See Marquez v. Voicestream Wireless Corp., 115 Fed. Appx. 699, 701 (5th Cir. 2004) (holding that

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two invitations from a supervisor to have drinks after work did not constitute sexual harassment); see also Marquez v. Voicestream Wireless Corp., 115 Fed. Appx. 699, 701 (5th Cir. 2004). Nor will an isolated comment give rise to a sexual harassment claim. See Carder, --- F.3d ---, 2011 WL 996169. However, when the complained-of treatment becomes more frequent, the answer is less certain. Id. Here, Plaintiffs allege that Shipp invited them to socialize on a weekly basis, invitations which they declined each time. The Graybills also claim that Shipp’s conduct included more than “isolated” comments, pointing to his remarks to Jasmyne about pregnancy; his remark to Garry that he was “tied” to Jasmyne’s “apron strings;” and his remark that they “were ‘pretty damn good-looking.’” (Complaint at 4). Added to those remarks, was Shipp’s conversation with them about “swinging.” (Id.). Despite these comments, however, the Supreme Court requires that the “standards for judging hostility [be] sufficiently demanding” so that “Title VII does not become a ‘general civility code.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). From the pleadings, Shipp’s alleged sixty-plus invitations to Plaintiffs in their first year of employment might be considered pervasive conduct in a Title VII context. However, there are no allegations that those invitations or remarks were “physically threatening or humiliating.” Weller, 84 F.3d at 194; see also Breeden, 532 U.S. 268. More importantly, “the degree to which the conduct unreasonably interferes with an employee’s work performance” must also be considered. See Weller, 84 F.3d at 194. Indeed, it is only conduct that “amount[s] to a change in the terms and conditions of employment” that is actionable. Id. For that reason, whether Shipp’s behavior, as alleged, affected the “terms and conditions” of Plaintiffs’ employment is the critical inquiry is this case.

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In their Complaint, the Graybills state that “Shipp made clear that accepting these personal invitations was a condition of employment,” and that he “controlled the money in the Department” so that they had to “make him happy.” (Complaint at 3-4). However, the Supreme Court has emphasized that, “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. 554, 127 S. Ct. 1955, at 1964-65 (2007). Instead, it “must be supported by factual allegations.” Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950 (2009). Here, the Graybills declared that “[t]hroughout their tenure, the[y] [] were both regarded well through their evaluations and were never subjected to any disciplinary action by SHSU until after they made the complaints described within this action.” (Complaint at ¶ 12). In fact, they insist that “[t]heir job performance was never made an issue by the supervisory personnel at SHSU.”

(Id.).

Moreover, Plaintiffs claim that when they spoke with Dean Hebert about Shipp’s behavior, the Dean “told them that they had done an excellent job and begged them not to quit.” (Id. at ¶ 27). In fact, Plaintiffs stress that when the University posted their positions for new applicants, “[n]othing performance-related was cited.” On this complaint then, there is no factual support for Plaintiffs’ claim that Shipp’s repeated invitations and unwanted remarks affected any term or condition of their employment. For that reason, they have not met their burden to show a prima facie case of a sexually hostile work environment. It is RECOMMENDED that Defendant’s motion to dismiss the hostile work environment claims be GRANTED. Retaliation Claims In the present action, Plaintiffs also claim that Shipp denied them a promised merit raise and opened their positions to other applicants because they reported his offensive behavior to the University. Under Title VII, It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment … because he has opposed any

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practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. 42 U.S.C. § 2000e-3. To succeed on a retaliation claim under this section, a plaintiff must show that “(1) she participated in an activity protected by Title VII; (2) her employer took an adverse employment action against her; and (3) a causal connection exists between the protected activity and the materially adverse action.” Aryain v. Wal-Mart Stores Texas, LP, 534 F.3d 473, 484 (5th Cir. 2008) (citing McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007)). Here, the parties’ dispute centers on the first prong of that framework, whether Plaintiffs engaged in “protected activity” under Title VII.3 Plaintiffs allege that “Defendant retaliated against [them] for making complaints about Shipp’s violations of their federally protected rights under this statute and voting to remove him from his position.” (Complaint at ¶ 31). In making this claim, Plaintiffs have pointed to two instances of purported “protected activity.” The first is the fact that they “voiced their concerns about Shipp’s behavior toward them,” in the May 2009 meeting of the University art department, and the second is their vote to relieve Shipp of his duties as Chairman. (Complaint at ¶ 21). But they also allege that, after that meeting, they spoke with the Dean of Arts and Sciences about the complaints they had raised. (Id. at 24). The Graybills allege that Shipp reacted to those actions by denying them a promised merit raise, and by posting their jobs for the following school year to other applicants. (Id.). Defendant moves to dismiss the retaliation claims, arguing that Plaintiffs’ “conclusory recitations of ‘inappropriate conduct’ and ‘sexually harassing and discriminating behavior’ are insufficient to create a plausible claim that they actually opposed conduct protected by Title VII.” (Defendant’s Motion to Dismiss at 12). The University 3

In the University’s motion to dismiss, it did not raise any arguments on whether Plaintiffs suffered adverse employment actions, or whether the requisite causal connection between the purported activity and the adverse actions exists. (See Defendant’s Motion).

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contends that the Graybills’ view of Shipp’s social invitations as sexual harassment is unreasonable.

(Id.).

Defendant insists that Plaintiffs interpreting those invitations to “be

lascivious attempts to engage them in a ménage a trois simply is not reasonable.”

(Id.).

Defendant also argues that “a reasonable person in the Grabybills’ shoes could not have believed that they were opposing discrimination in violation of Title VII by complaining about the Art Department Chair in a peer faculty meeting.” (Id.). The threshold issue, then, is whether Plaintiffs engaged in protected activity. It is well-settled that “protected activity” is “opposition to any practice rendered unlawful by Title VII, including making a charge, testifying, assisting, or participating in any investigation, proceeding, or hearing under Title VII.” Acker v. Nat’l Comms. Inc., 339 F.3d 376 (5th Cir. 2003). For this reason, “protected activity” includes both “opposition” to a practice that Title VII makes unlawful and “participation” in a Title VII proceeding. Haynes v. Pennzoil Co., 141 F.3d 1163 (5th Cir. 1998); see also Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130 (5th Cir. 1981). If a retaliation claim is based on “opposition” to an unlawful practice, as it is here, that practice must be forbidden conduct under Title VII. Wilson v. Delta State University, 143 Fed. Appx. 611, 613-14 (5th Cir. 2005) (holding that plaintiff did not make a prima facie retaliation claim, because the practice about which the plaintiff complained was not unlawful under Title VII); Sarff v. Continental Express, 894 F.Supp. 1076, 1082 (S.D.Tex. 1995). Obviously, to pursue a retaliation claim, Plaintiffs must state plausible allegations that Title VII forbids the practices they purportedly complained about. On the other hand, it is not fatal to a plaintiff’s retaliation claim that the alleged harassment did not actually take place. The Fifth Circuit has stated that, appropriate informal opposition to perceived discrimination must not be chilled by the fear of retaliatory action in the event the alleged wrongdoing does not exist. …

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The elimination of discrimination in employment is the purpose behind Title VII and the statute is entitled to a liberal interpretation. When an employee reasonably believes that discrimination exists, opposition thereto is opposition to an employment practice made unlawful by Title VII even if the employee turns out to be mistaken as to the facts. Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1138 (5th Cir. 1981); see also Byers v. Dallas Morning News, Inc., 209 F.3d 419, 428 (5th Cir. 2000). Further, whether a plaintiff “reasonably believes that discrimination exists” contains both an objective and a subjective inquiry. Byers, 209 F.3d at 428 (stating that “[t]o satisfy the ‘opposition clause,’ Byers need not prove that [the defendant’s] practices were actually unlawful, but only that he had ‘a reasonabl[e] belief that the employer was engaged in unlawful employment practices.” Id. (citing Payne, 654 F.2d at 1140, and Harvey v. Chevron USA, Inc., 961 F. Supp. 1017, 1025 (S.D.Tex 1997)). Finally, the complaint of unlawful activity must be made to someone with the authority to affect the plaintiff’s job. See Ackel v. Nat’l Comms., Inc., 339 F.3d 376, 385 (5th Cir. 2003) (finding that, because the plaintiff did not “complain[] to anyone in … management,” she did not engage in protected activity); see generally Marquez, 2004 WL 2677040 at 2. To proceed on their claim for retaliation, Plaintiffs must make some showing that their beliefs of harassment were reasonable, and allege that they reported those beliefs to an appropriate authority. To determine whether Plaintiffs’ beliefs were reasonable, the court must review the allegations in the complaint and accept them as true. Iqbal, 556 U.S. 662 (2009). Here, the Graybills allege that they received more than 60 invitations from Shipp to socialize outside of the workplace. They claim, as well, that those invitations were coupled with “sporadic comments” having sexual undertones, and at least one discussion of sexual matters. See Frensley v. North Miss. Medical Center, Inc., 2011 WL 3965668, 3 (5th Cir. 2011) (stating that one social

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invitation does not constitute harassment, but that it becomes a “closer question” with evidence of “sporadic comments” about the plaintiff’s appearance); Ellert v. Univ. of Texas, at Dallas, 52 F.3d 543 (5th Cir. 1995) (holding that a situation did not constitute harassment when, among other things, the alleged harasser “did not discuss sexual matters.”). In particular, Plaintiffs claim that Shipp commented to Jasmyne Graybill about intended pregnancies; that he commented to Garry that he was “tied” to Jasmyne’s “apron strings;” that he told a third party, in the Graybills’ presence, that they “were ‘pretty damn good-looking;” and finally that he initiated a conversation about “swinging.” (Id. at 4). And, at the department-wide meeting, Plaintiffs claim that “many faculty members raised concerns about similar harassing and discriminatory behavior by Shipp.” (Complaint at 5). From these allegations, it is not objectively unreasonable for Plaintiffs to have believed that they, too, were victims of sexual harassment. See Ellert, 52 F.3d 543. Plaintiffs must also allege, however, that they reported their beliefs to an appropriate authority. From Plaintiffs’ allegations, it appears that their first report of Shipp’s allegedly sexually harassing behavior was in the May 2009 meeting of the art department. At that time, Plaintiffs allege to have complained of Shipp’s “inappropriate conduct and personal invitations which they deemed to have sexual intentions, as well as [his] sexually harassing and discriminatory behavior toward them.” (Id.). However, there is no question that a report to one’s peers does not suffice as a report to “management.” See Ackel v. Nat’l Comms., Inc., 339 F.3d 376, 385 (5th Cir. 2003). For that reason, Plaintiffs’ comments at the department meeting cannot constitute protected activity under Title VII. See id., (finding that, because the plaintiff did not “complain[] to anyone in … management,” she did not engage in protected activity); see generally Marquez, 2004 WL 2677040 at 2 (holding that “[w]ithout an allegation that she

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reported unlawful activity (even assuming Brock to be an appropriate person to receive such a report) Marquez’ conversations with Brock were not protected activity”). But Plaintiffs have also alleged that, before the adverse employment actions were taken against them, they complained to the Dean of Arts and Sciences. During that meeting, the Dean referenced Plaintiffs’ complaints of sexual harassment at the department meeting, and allegedly “admitted that Shipp was well aware of the couple’s ‘confidential’ complaints about his misconduct and their vote against him.” (Complaint at 24). For these purposes, Plaintiffs’ meeting with Dean Hebert, in which they purportedly repeated their complaints of sexual harassment, can be seen as a report to an appropriate authority. Griffin v. Delchamps, Inc., 176 F.3d 480 (5th Cir. 1999) (noting that because the plaintiffs reported harassment to their supervisors, that notice was imputed to the defendant); see also Williamson v. City of Houston, Tex., 148 F.3d 462, 466 (5th Cir. 1998). For that reason, Plaintiffs have sufficiently alleged that they registered complaints of harassment to the proper party. With that finding, Plaintiffs have met the threshold required to state a claim that they engaged in protected activity,4 and it is RECOMMENDED that Defendant’s motion to dismiss their retaliation claims, under Rule 12(b)(6) be DENIED. CONCLUSION Based on the foregoing, it is RECOMMENDED that Defendant’s motion to dismiss Plaintiffs’ sexually hostile work environment claim be GRANTED, and that Defendant’s motion to dismiss Plaintiffs’ retaliation claim be DENIED.

4

In its motion, the University also argued that Shipp’s mistaken belief that the Graybills “draft[ed] Zickafoose’s … sexual harassment complaint” was not protected activity. (Defendant’s Motion at 13). Plaintiffs responded to this argument, but never raised it in their Complaint. (See Complaint). For that reason, the court has declined to address it here.

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Case 4:11-cv-01951 Document 18

Filed in TXSD on 01/09/12 Page 17 of 17

The Clerk of the Court shall send copies of the memorandum and recommendation to the respective parties, who will then have fourteen days to file written objections, pursuant to 28 U.S.C. ยง 636(b)(1)(c). Failure to file written objections within the time period provided will bar an aggrieved party from attacking the factual findings and legal conclusions on appeal. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc). The original of any written objections shall be filed with the United States District Clerk, P.O. Box 61010, Houston, Texas 77208; copies of any such objections shall be delivered to the chambers of Judge Vanessa D. Gilmore, Room 9513, and to the chambers of the undersigned, Room 7007. SIGNED at Houston, Texas, this 9th day of January, 2012.

MARY MILLOY UNITED STATES MAGISTRATE JUDGE

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Dismissal Lawsuit