Dismissal Lawsuit

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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. § CIVIL ACTION NO. 11-CV-1951 § § SAM HOUSTON STATE § UNIVERSITY, § § Defendant. §

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.

Case 4:11-cv-01951 Document 18 Filed in TXSD on 01/09/12 of 17

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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 one-

year contract in the University art department. Shipp hired them in September 2008 as non-

tenured 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 good-

looking.” (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 post-

judgment 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.


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. § 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


Dismissal Lawsuit

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