Alistair Jones Motion for Summary Judgment

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
FRED NORTHROP, §
Plaintiff, §
§
VS. § CIVIL ACTION NO. H-11-222
§
§
HELEN REDMOND §
and DOES I through V, inclusive, §
and ACME INSURANCE, INC., §
I through V, inclusive §
Defendant. §
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Fred Northrop hereby moves for summary judgment pursuant to Fed. R.
Civ. P. 56. As demonstrated in the attached Memorandum in support of this Motion,
there is no genuine dispute as to the material facts that render Defendant Acme Insurance,
Inc. liable to Plaintiff. Therefore, for the reasons stated herein and in the accompanying
Memorandum in support, Plaintiff’s Motion for Summary Judgment should be granted.
Respectfully submitted,
Simpson and Associates
-------------------------------------
Jane Simpson
State Bar No. 01111111
Federal I.D. No. 9870
12 Memorial Drive, Suite 100
Houston, TX 77024
Telephone: (713)461-2839
Facsimile: (713)661-6930
js@jsandassociates.com
OF COUNSEL:

Houston, TX 77024
Telephone: (713)461-2839
Facsimile: (713)661-6930
CERTIFICATE OF SERVICE
This is to certify that on this the ____ day of January, 2012, a copy of the foregoing
Notice of Hearing was served via CM/ECF filing:
Ken Barr
3300 West Alabama, Suite 500
Houston, Texas 77098
______________________________________
James Taylor

HOUSTON DIVISION
FRED NORTHROP, §
Plaintiff, §
§
§
§
ACME INSURANCE, INC., §
Defendant. §
NOTICE OF HEARING
Please take notice that the undersigned will move this Court on January 28, 2011
at 9:00 a.m. for an order granting summary judgment pursuant to Fed. R. Civ. P. 56.
______________________________
Jane Simpson
Houston, TX 77024
Telephone: (713)461-2839
Facsimile: (713)661-6930
OF COUNSEL:
Houston, TX 77024
Telephone: (713)461-2839
Facsimile: (713)661-6930

CERTIFICATE OF SERVICE
This is to certify that on this the ____ day of January, 2012, a copy of the foregoing
Notice of Hearing was served via CM/ECF filing:
Ken Barr
3300 West Alabama, Suite 500
Houston, Texas 77098
______________________________________
James Taylor

HOUSTON DIVISION
FRED NORTHROP, §
Plaintiff, §
§
§
§
ACME INSURANCE, INC. , §
Defendant. §
PLAINTIFF’S MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
Plaintiff Fred Northrop (“Northrop”) has filed a motion for summary judgment
pursuant to Fed. R. Civ. P. 56. This is a straightforward quid pro quo sexual
discrimination case. There exist no genuine issues of material fact which would preclude
this Court from entering judgment herein against Helen Redmond (“Redmond”) and
Acme Insurance, Inc. (“Acme”) granting Northrup compensatory and punitive damages
not to exceed $300,000, attorney’s fees, back pay with interest, the demotion of the
person improperly given the position, and reinstating Northrop to the position for which
he was illegally passed over for, as (1) Northrop was essentially offered a promotion by
Redmond, an agent of Acme, in exchange for favors that Redmond portrayed as
“external” activities, (2) Northrop was passed over for the promotion in favor of a less
qualified candidate because he rebuffed Redmond’s requests, (3) Acme is responsible for
Redmond’s discriminatory actions in her official capacity, and (4) a motivating factor in
Redmond’s decision not to promote Northrop was discrimination. In support of the
accompanying motion, Northrup respectfully submits this memorandum setting forth the
predicate facts and the applicable law.

A. GENERAL FACTUAL BACKGROUND
1. Northrop is a male, which is a class protected from discrimination under
the Civil Rights Act of 1964, as amended 42 U.S.C. §2000e-2.
2. Acme Insurance, Inc. is a business that has offices in 10 states and has
more than 500 employees.
2. On January 1, 2016 Acme transferred Northrop from their Oregon office
to their Houston office to help update their risk management department for their Texas,
Louisiana, and Oklahoma customers. Six weeks after Northrop began working in
Houston, Texas, Helen Redmond, his direct supervisor asked him out to lunch, an offer
which he turned down as he already had plans with his wife of six years and their four-
year old twins. This pattern of behavior from Redmond continues for several months,
with the offer ranging from lunch to attending seminars that Northrop was not alerted to
by Acme’s Houston HR Department, as is company policy.
3. On July 5, 2016, Redmond called Northrop into her office and, after
telling him that he was being considered for a promotion to a higher paying position, told
him that his chances at getting the promotion would be better if he went with her to a
conference in Las Vegas. Northrop turned down the offer as he had already had plans for
the days that the conference was supposed to take place.
4. On July 10, 2016 Northrop overheard Redmond spreading false
information about him to his colleagues and soon after confronting them, he discovered
that someone less qualified than he had been chosen to fill the position.
5. Northrop filed a notice of discrimination with the EEOC. See Exhibit A.
When the EEOC sent him the “Notice of Right to Sue”, he filed suit against Redmond

and Acme for sexual harassment, sexual discrimination and defamation per quod. See.
Exhibit B. This court severed the defendants and remanded the case against Redmond to
state district court. Plaintiff settled with Redmond soon after the severance order was
announced to the parties.
B. ISSUE
1. Can a supervisor who sexually discriminates against an employee be sued
for such conduct?
2. Can an employer be held liable if a supervisor sexually discriminates
against an employee?
3. What fees are Plaintiff entitled to?
C. ARGUMENT
4. Standard of Review
4. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary
judgment “shall be rendered forthwith if 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.” Fed. R. Civ. P. 56(c) (West 2007). The party moving for
summary judgment “must demonstrate the absence of a genuine issue of material fact”
but need not negate the elements of the non-movant’s case.” Landreneau v. Fleet
Financial Group, 197 F.Supp 2d. 551, 554 (M.D.La. 2002)(citing Little v. Liquid Air
Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994 (en banc)). Thus, when considering a
motion for summary judgment, the district court’s function is to determine whether a
genuine issue for trial exists. Where, as here, the court can be satisfied that no reasonable
trier of fact could find for the non-moving party or, in other words, “that the evidence

favoring the non-moving party is insufficient to enable a reasonable jury to return a
verdict in [non-movant’s] favor” the court should grant the motion. Lavespere v. Niagara
Mach. & Tool Works, Inc., 910 F. 2d 167, 178 (5™ Cir. 1990)(citing Anderson v. Liberty
Lobby, Inc. 477 U.S. 242, 249 (1986)).
5. Can a supervisor who sexually discriminates against an employee be sued
for such conduct?
Title VII of the Civil Rights Act, 42 U.S.C. §2000e-2 (a)(i), establishes that:
It shall be an unlawful employment practice for an employer (i) to fail or
refuse to hire or to discharge an individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin…
Because the text of this section is vague apart from the idea that an employer cannot fire
or hire an employee because of certain protected classifications- something which does
not apply in the instant case, as the Plaintiff was neither fired because he refused the
Defendant’s sexual advances nor because the Defendant decided not to hire him because
he refused the Defendant’s sexual advances- it becomes necessary to look at how the
courts have interpreted the latter half of Title VII to better understand the application to
Plaintiff’s situation. One specific case in which the Supreme Court addresses Title VII’s
inclusion of “terms, conditions, or privileges of employment” 42 U.S.C. §2000e-2(a)(i),
was Meritor Savs. Bank FSB v. Vinson, 477 U.S. 57, 64, 66, 106 S. Ct. 2399, 91 L. Ed.2d
49, when it clarified that:

The phrase “terms, conditions, or privileges of employment” evinces a
congressional intent “to strike at the entire spectrum of disparate treatment
of men and women” in employment, quoting Sprogis v. United Air Lines,
Inc. 444 F.2d 1194, 1198 (CA7 1971)… [and it] is an expansive concept
which sweeps within it’s protective ambit the practice of creating a
working environment heavily charged with ethnic of racial
discrimination.... ‘One can readily envision working environment so
heavily polluted with discrimination as to destroy completely the
emotional and psychological stability of minority groups….”’ 454 F.2d, at
238… [Therefore] Nothing in Title VII suggests that a hostile work
environment based on discriminatory sexual harassment should not
likewise be prohibited.
Unlike in the above case, wherein the plaintiff filed suit for sexual harassment after her
employer had terminated her employment, in the instant case, plaintiff was passed over
for a job promotion that he was qualified for because he refused to submit himself to his
supervisors sexual advances. In addition, because Plaintiff was sexually harassed by his
supervisor, the Defendant, because of his sex, “that supervisor ‘discriminate[s]’ on the
basis of sex.” Meritor Savs. Bank FSB v. Vinson, 477 U.S. at 64.
Finally, in Meritor, the Supreme Court also uses a nonbinding series of guidelines issued
by the EEOC in 1980 to define what makes a Title VII complaint actionable, stating that:
The EEOC guidelines fully support the view that… noneconomic injury
can violate Title VII…. A plaintiff must prove that they were subject to
“[unwelcome] sexual advances, requests for sexual favors, and other

verbal or physical conduct of a sexual nature.” 29 CFR §1604.11(a)
(1985)…. whether or not it is directly linked to the grant or denial of an
econonomic quid pro quo…
477 U.S. at 65
As this case states, the instant case is actionable because, through depositions and
through the tangible employment results before and after the alleged sexual advances, the
Plaintiff can prove that he was subject to unwelcome sexual advances, request for sexual
favors, or other conduct of a sexual nature that was directly linked to an economic quid
pro quo.
6. Can an employer be held liable if a supervisor sexually discriminates
against an employee?
Case law establishes that an employer can be held vicariously liable if they knew or
should have known about the conduct and did nothing to stop it. In Burlington Indus. v.
Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed.2d 633 (1988), a female employee of a
two-person satellite office was subjected to constant sexual harassment from the
company’s Vice President coupled with a threat by Vice President to deny the employee
tangible job benefits if she refused his advances. The trial court granted summary
judgment to the employer, arguing that the company could not be held liable, as it did not
know about the behavior, though this was reversed on appeal. In it’s decision the
Supreme Court upheld the Seventh Circuit Court of Appeals’s decision, adopting the
holding that:
The supervisor has been empowered by the company as a distinct class of
agent to make [tangible] economic decisions affecting other employees

under his or her control.... For these reason, a tangible employment action
taken by the supervisor becomes for Title VII purposes the act of the
employer…. [As a result] An employer is subject to vicarious liability to a
victimized employee for an actionable hostile environment created by a
supervisor with immediate (or successively higher) authority over the
employee…. No affirmative defense is available, however, when the
supervisor’s harassment culminates in a tangible employment action…
italics added; 524 U.S. at 36-37, 41-42
Unlike in the above case, where the Supreme Court found that the discrimination she
should be allowed to argue happened to her was a hostile environment rather than quid
pro quo, in the instant case, the plaintiff was harassed by his immediate supervisor and
was told that, if he complied with her requests for “external” activities, such as lunch and
attendance at conferences with her, he would be almost certainly given a promotion with
better pay. When the plaintiff rebuffed the Defendant’s request, she passed him over for
the promotion and gave it to a person whos qualifications were far below that of
Northrop. Burlington Inds. states that, “a tangible employment action taken by the
supervisor becomes… the act of the employer.” Therefore, Acme is vicariously liable to
plaintiff.
7. What fees are Plaintiff entitled to?
Statutory law makes it clear that the Plaintiff is eligible for compensatory and punitive
damages, back-pay, reinstatement, and any other equitable relief that the court may deem
appropriate. Section 1977A(a)(1) of the Civil Rights Act of 1991, 1991 Enacted S. 1745,
102 Enacted S. 1745, 105 Stat. 1071, 1072, states:

In an action brought by a complaining party under section 706 or 717 of
the Civil Rights Act of 1964 (42 U.S.C. 2000e-5) against a respondeat
who engaged in unlawful intentional discrimination (not…disparate
impact)…prohibited under section 703…and provided the complaining
party cannot recover under section 1977 of the Revised Statutes (42
U.S.C. 1981), the complaining party may recover compensatory and
punitive damages as allowed in subsection (b), in addition to any relief
authorized by section 706(g) of the Civil Rights Act of 1964, from the
respondeat.
In the instant case, Plaintiff, through his attorney of record, filed his lawsuit through
section 706 and alleged that Acme engaged in unlawful intentional discrimination that
was prohibited in section 703. Therefore, under this statute, he is entitled to recover
compensatory and punitive damages. In addition, as per the statute, section 706(g)
In addition, section 706 of the Civil Rights Act of 1964, as amended 42 U.S.C. §2000e-
5(g)(1) authorizes that:
If the court finds the respondeat has intentionally engaged in… an
unlawful employment practice…The court may enjoin the respondeat
from engaging in such unlawful actions, and order such affirmative action
as may be appropriate, which may include, but is not limited to,
reinstatement or hiring of employees, with or without backpay…or any
other equitable relief as the court deems reasonable.

Therefore, if the judge grants this motion for summary judgment, then Plaintiff may be
granted the fees listed in this statute since they all fall under the court’s unique
jurisdiction.
Finally, section 5(g)(2)(b)(i) authorizes, in a situation where an individual is
successful in proving a violation of section 703(m), the court to:
Grant declaratory judgment, injunctive relief…and attorney’s fees and
costs demonstrated to be directly attributable only to the pursuit of a claim
under section 703(m) §42 USCS §2000e-2(m)
Section 5(g)(2)(b)(i) does contain a clause that states that if the employer is able
to prove that they would have made the same action without the discriminatory
element included in the consideration, then the court is forbidden from ordering
an issue that awards admission, reinstatement, hiring, promotion, or payment.
However, given that the Plaintiff was passed over for the promotion because he
rebuffed Defendant’s sexual advances, it is highly unlikely that the same result
would have occurred, therefore that particular section does not apply to this case.
D. Conclusion
There is no issue as to any material fact. Defendant sexually harassed plaintiff
Fred Northrop for a period of several months. Then, Defendant illegally passed
Plaintiff over for a promotion that he was fully qualified for when Plaintiff
rejected her sexual advances. As a direct result, Plaintiff was damaged tangibly.
Furthermore, as Defendant Redmond was acting in her official capacity as an
agent of Defendant Acme, Acme is vicariously liable to Plaintiff under the
principles of respondeat superior. Finally, as Plaintiff is able to prove that

discrimination was the only motive behind the negative employment action, and
as Defendant Acme cannot prove that they would have taken the same action
without the discriminatory motive, Plaintiff can and should be allowed to recover
attorney’s fees, reinstatement, backpay, and the promotion that was denied to him
by Defendant’s illegal action.
E. Prayer
WHEREFORE, Plaintiff Fred Northrop requests that this Motion for Summary
Judgment be set for hearing, with due notice to Defendants, Acme Insurance, Inc.
and Helen Redmond, and that, upon completion of the hearing, the Court grant
Plaintiff’s Motion for Summary Judgment and enter a judgment against
Defendants, Acme Insurance, Inc. and Helen Redmond, jointly and severally, for
damages as stated in this motion, legal fees, costs of Court, interest, and for such
other and further relief to which Fred Northrop may be justly entitled.
______________________________
Jane Simpson
Houston, TX 77024
Telephone: (713)461-2839
Facsimile: (713)661-6930
OF COUNSEL:

Table of Authorities
Cases
454 F.2d, at 238 .................................................................................................................. 8
Burlington Indus. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed.2d 633 (1988)..... 9
Landreneau v. Fleet Financial Group, 197 F.Supp 2d. 551, 554 (M.D.La. 2002)(citing
Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994 (en banc))............ 6
Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F. 2d 167, 178 (5™ Cir.
1990)(citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 249 (1986))....................... 7
Meritor Savs. Bank FSB v. Vinson, 477 U.S. 57, 64, 66, 106 S. Ct. 2399, 91 L. Ed.2d 49 7
Meritor Savs. Bank FSB v. Vinson, 477 U.S. at 64............................................................. 8
Sprogis v. United Air Lines, Inc. 444 F.2d 1194, 1198 (CA7 1971).................................. 8
Other Authorities
Fed. R. Civ. P. 56(c) (West 2007)....................................................................................... 6
Statutes
29 CFR §1604.11(a) (1985)................................................................................................ 9
42 U.S.C. §2000e-2(a)(i), ................................................................................................... 7
Section 1977A(a)(1) of the Civil Rights Act of 1991, 1991 Enacted S. 1745, 102 Enacted
S. 1745, 105 Stat. 1071, 1072........................................................................................ 10
section 706 of the Civil Rights Act of 1964, as amended 42 U.S.C. §2000e-5(g)(1) ...... 11
the Civil Rights Act of 1964, as amended 42 U.S.C. §2000e-2 ......................................... 5
Title VII of the Civil Rights Act, 42 U.S.C. §2000e-2 (a)(i),............................................. 7

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