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July 2013

Dallas Team Wins Summary Judgment in Sexual Harassment Lawsuit

On June 26, Gordon & Rees Dallas office managing partner Bob Bragalone and senior counsel Margaret Mead won a full summary judgment on behalf of client YES! Communities, Inc. against a former employee’s claims of sexual harassment, retaliation, and intentional infliction of emotional distress.

The plaintiff sued Yes! Communities, Inc. in the U.S. District Court for the Western District of Texas alleging sexual harassment and retaliation in violation of Title VII and intentional infliction of emotional distress. The employee complained of the behavior of two different supervisors with whom she worked at various times, making allegations of improper comments, improper touching, and related harassing behavior.  The employer initiated prompt disciplinary action against the first supervisor and transferred the plaintiff to a new location for work. At the new location, the plaintiff complained that she again was a victim of sexual harassment by her new supervisor. 

The turning point in the litigation was the plaintiff's deposition, in which Bragalone secured key admissions that set the course for the summary judgment motion. The plaintiff admitted in her deposition that she was satisfied with the timing of the investigation and the prompt remedial efforts taken by the employer. And while the plaintiff claimed harassment by her new supervisor at her new location, she admitted in her deposition that her only complaints about him were that he had usurped sales for which she should have gotten commissions, and that she “just didn’t feel comfortable” working with him. Moreover, although the plaintiff was aware of Yes! Communities’ sexual harassment reporting policies and procedures, she admitted that she never made a complaint about the second supervisor. Ultimately, she abandoned her job, forcing the company to let her go after four months of leave with no anticipated return date.

After the conclusion of the plaintiff’s deposition, she dramatically changed many of her answers through an unorthodox errata sheet. The Gordon & Rees team filed a motion to strike the errata, which the court denied, instead choosing to permit the deposition changes while still granting the defense’s motion for summary judgment.

In its 64-page opinion in Gonzales v. Yes! Communities, Inc., the District Court found that while the plaintiff made conclusory allegations regarding the first supervisor, she failed to support them with any evidence, and thus failed to meet her burden to show harassing “conduct that rose to the level of severity and pervasiveness the Fifth Circuit has found to affect terms, conditions, or privileges of employment.” With respect to the second supervisor, the court held that the defendant established the Faragher/Ellerth affirmative defense, which negates liability when (1) the employer exercised reasonable care to prevent and correct promptly any sexual harassment, and (2) the complaining employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. The court further held that the plaintiff failed to raise a genuine issue of material fact on any element of the retaliation or emotional distress claim. 

The court granted the summary judgment motion shortly after a mediation at which Yes! Communities demanded that the plaintiff voluntarily dismiss the case and offered nothing in settlement.

To read the court’s opinion, click here.

Robert A. Bragalone



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