Filed: Feb. 05, 2015
Latest Update: Mar. 02, 2020
Summary: Case: 14-10609 Document: 00512927901 Page: 1 Date Filed: 02/05/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14-10609 United States Court of Appeals Fifth Circuit FILED February 5, 2015 TARA T. MOYER, Lyle W. Cayce Clerk Plaintiff-Appellant, v. JOS. A. BANK CLOTHIERS, INC., Defendant-Appellee. Appeal from the United States District Court for the Northern District of Texas USDC No. 3:11-CV-3076 Before DENNIS, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * Plaintiff-App
Summary: Case: 14-10609 Document: 00512927901 Page: 1 Date Filed: 02/05/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14-10609 United States Court of Appeals Fifth Circuit FILED February 5, 2015 TARA T. MOYER, Lyle W. Cayce Clerk Plaintiff-Appellant, v. JOS. A. BANK CLOTHIERS, INC., Defendant-Appellee. Appeal from the United States District Court for the Northern District of Texas USDC No. 3:11-CV-3076 Before DENNIS, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * Plaintiff-Appe..
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Case: 14-10609 Document: 00512927901 Page: 1 Date Filed: 02/05/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10609
United States Court of Appeals
Fifth Circuit
FILED
February 5, 2015
TARA T. MOYER, Lyle W. Cayce
Clerk
Plaintiff-Appellant,
v.
JOS. A. BANK CLOTHIERS, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:11-CV-3076
Before DENNIS, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Plaintiff-Appellant Tara Moyer filed suit against her former employer
Defendant-Appellee Jos. A. Bank Clothiers, Inc. (“Jos. A. Bank”) asserting
claims for gender discrimination, hostile work environment based on sexual
harassment, hostile work environment based on demotion and transfer,
retaliation based on demotion and transfer, and postemployment retaliation in
violation of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”),
42 U.S.C. § 2000e, et seq. In addition, Moyer alleged state law claims for
defamation, defamation by self-publication, intentional infliction of emotional
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-10609 Document: 00512927901 Page: 2 Date Filed: 02/05/2015
No. 14-10609
distress, intrusion upon seclusion, negligent hiring, negligent retention,
negligent entrustment, and negligent supervision and training. In an earlier
opinion and order, the district court granted summary judgment for Jos. A.
Bank on all claims except Moyer’s hostile work environment claim based on
demotion and transfer and her postemployment retaliation claim, noting that
Jos. A. Bank had not moved for summary judgment on those two claims.
Subsequently, Jos. A. Bank filed a supplemental motion for summary
judgment addressing those two remaining claims, which the district court
granted. Moyer timely appealed. We AFFIRM.
I.
A complete recitation of the pertinent facts and procedural history is
contained in the district court’s thorough opinions granting summary
judgment for Jos. A. Bank, which we incorporate by reference. See Moyer v.
Jos. A. Bank Clothiers, Inc., 3:11-CV-3076, 2014 WL 1661211 (N.D. Tex. Apr.
25, 2014); Moyer v. Jos. A. Bank Clothiers, Inc., 3:11-CV-3076,
2013 WL
4434901 (N.D. Tex. Aug. 19, 2013). We sketch here only a distillation thereof
essential to an understanding of our disposition.
In December 2008, Moyer began her employment with Jos. A. Bank as
the assistant manager of an Austin store. Following her request to transfer
to a Dallas-area location, Moyer began working as an assistant manager at the
Frisco store in the spring of 2009. Moyer alleges that while working at the
Frisco store, she was harassed by Doug Cully, her store manager and
supervisor; Ryan Hair, who worked as a “third key,” which is a quasi-
supervisor role; and Doug Cummings, a sales associate. She further alleges
that Cully and Terry Hillgartner, the regional sales director, failed to remedy
the harassment.
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Moyer testified that Cully’s harassment of her stemmed from his temper,
which Cully directed not only at her but also at male employees. For example,
Moyer explained that Cully would “yell” at her and other employees “two to
three times a week.” On one occasion, Cully “chew[ed] [Moyer] out for being
late and not calling.” On another occasion, Cully told Moyer, “It’s my store.
I’m going to run it my way.” In addition, Moyer testified that Cummings and
Hair, who were both her subordinates, repeatedly used the word “bitch” and
“cunt” when referring to female customers. Moyer also described an occasion
when Cummings made a “masturbatory gesture” when describing a company
officer’s visit to the store.
In May 2010, Moyer was transferred to the Addison store where she
began working as a third key. Moyer explained the circumstances
surrounding her transfer as follows: In January 2010, she began planning an
anniversary trip with her husband for July 2010 but later discovered that
Cully was planning a vacation for the same period. Because both the manager
and assistant manager could not simultaneously take vacation, Cully told
Moyer the only way she could keep her vacation plans would be to transfer to
another store. According to Moyer, Cully explained that “there was a position
for third key at the Addison store,” which Moyer ultimately accepted.
Although she was disappointed that the transfer necessarily would involve a
demotion from assistant manager to third key, Moyer explained that she never
told anyone at Jos. A. Bank she was disappointed with the new position, in
part because she believed she would have a female supervisor at the Addison
store. Nevertheless, Moyer testified that she believed this transfer was
retaliation against her by Hillgartner based on her complaints to him that
Cully had an “anger problem.”
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At the Addison store, Moyer alleges that she suffered harassment from
two employees: Gary McDonald, who was the assistant manager, and Dane
Wagner, who was a sales associate. Specifically, Moyer explained that, when
a new delivery arrived at an adjacent furniture store, McDonald “would blab
all over the store, ‘Sounds like they’re having sex next door, must be having
sex next door.’” In addition, Moyer testified that McDonald “would talk about
how pretty” certain female customers were and would talk about “taking
pictures of tits and asses and legs.” However, Moyer testified she never saw
any such photos taken by McDonald. As examples of the harassment she
experienced from Wagner, Moyer explained that Wagner once made a comment
to her about “edible lube,” talked to her about his boyfriends, called Moyer’s
husband an “SOB,” and sent her e-mails that she considered offensive,
including “sexual” e-mails that contained photos of bodybuilders and e-mails
about local news and politics. 1 Moyer also complained that staff used the
term “wife-beater” to refer to men’s undershirts.
It is undisputed that, while working at the Addison store, Moyer made
at least two inappropriate comments about persons of color and Jewish
individuals. During one conversation in May 2010, Moyer advised Wagner,
who was trying to sell his parents’ Cadillac, to “take [the car] to colored town.”
On October 16, 2010, Moyer received a write-up from Jos. A. Bank for making
this “racially insensitive comment,” which also advised that she would be
terminated if this conduct were repeated. On October 20, 2010, Moyer
received another write-up from Jos. A. Bank for using “improper language
1 Moyer explained that Wagner stopped e-mailing her after she requested that he do
so. In addition, Moyer testified that she sent Wagner, along with other individuals, an e-
mail containing a photograph entitled “Granny,” which depicted a naked elderly woman with
tattoos.
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No. 14-10609
offensive to others” in the store. Moyer explained this write-up stemmed from
statements that she made to a customer who was trying to bargain with her,
specifically: “Man, quit trying to Jew me down. This ain’t no Mercado
Juarez.” The customer was Jewish.
On December 22, 2010, John Joekel, a sales associate, filed a written
report with Jos. A. Bank alleging that approximately one week prior, Moyer
walked by him while he was re-folding a shirt and told him, “You need to get
the nigger to do that.” Moyer denies using this derogatory word in making
this statement to Joekel, 2 but she also testified that she may have used the
word “nigger” on other occasions at Jos. A. Bank in the context of quoting her
husband, whom she described as “a racist.” Following Joekel’s complaint,
Hillgartner came to the Addison store and suspended Moyer with pay. On
December 30, 2010, Moyer was terminated for violating Jos. A. Bank’s
Professional Conduct Policy and Prohibition Against Harassment. At the
time of her hire, Moyer acknowledged receipt of this policy which provides,
inter alia, that “derogatory racial, ethnic, religious, age, sexual orientation,
sexual or other inappropriate remarks, slurs, or jokes will not be tolerated.”
The termination letter cited not only Moyer’s alleged racially derogatory
remark to Joekel but also the “racially insensitive comment” for which she
received a warning in October 2010.
On November 8, 2011, Moyer filed suit in the United States District
Court for the Northern District of Texas asserting the above-referenced federal
and state law claims. Discovery ensued. The district court ultimately
2 Although she denies using the word “nigger” in making the statement to Joekel,
which we must credit at this stage of proceedings, Moyer also acknowledged that, if she had
made the statement as alleged, then it would have been appropriate for Jos. A. Bank to
terminate her pursuant to its policies.
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No. 14-10609
granted summary judgment in favor of Jos. A. Bank on all Moyer’s claims.
Moyer timely appealed.
II.
We review a grant of summary judgment de novo, applying the same
standard as the district court. Rachid v. Jack in the Box, Inc., 376 F.3d 305,
308 (5th Cir. 2004). Summary judgment is appropriate when there is no
genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law. Machinchick v. PB Power, Inc.,
398 F.3d 345,
349 (5th Cir. 2005). “In making this determination, ‘we view the evidence and
all factual inferences from that evidence in the light most favorable to the party
opposing the motion and all reasonable doubts about the facts are resolved in
favor of the nonmoving litigant.’”
Id. (quoting Bryan v. McKinsey & Co., Inc.,
375 F.3d 358, 360 (5th Cir. 2004)).
Based on a careful review of the record, the parties’ respective briefs, and
the relevant district court opinions, we agree that summary judgment should
be granted for Jos. A. Bank on all Moyer’s claims. Because the district court’s
careful analysis thoroughly explains our reasoning, we need not engage in a
redundant analysis simply to reach the same result. We therefore AFFIRM
for essentially the same reasons as the district court.
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