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Zhou v. Intergraph Corp.

United States District Court, N.D. Alabama, Northeastern Division

January 7, 2019

XUEYAN ZHOU A/K/A SUSAN ZHOU, Plaintiff,
v.
INTERGRAPH CORPORATION, Defendant.

          MEMORANDUM OPINION

          ABDUL K. KALLON UNITED STATES DISTRICT JUDGE

         Xueyan Zhou alleges that her former employer, Intergraph Corporation, unlawfully subjected her to a hostile work environment, discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. Doc. 1. The court has for consideration Intergraph's motion for summary judgment, which is fully briefed and ripe for consideration. Docs. 25, 31, 33. After reading the briefs, reviewing the evidence, and considering the relevant law, the court finds that Intergraph has sustained its burden only as to Zhou's claims for sex discrimination, race and national origin discrimination, and racial harassment. Therefore, Intergraph's motion is due to be granted in part and denied in part.

         I. LEGAL STANDARD FOR SUMMARY JUDGMENT

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. “Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (alteration in original).

         The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (internal quotations omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         At summary judgment, the court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255. Any factual disputes will be resolved in the non-moving party's favor when sufficient competent evidence supports the non-moving party's version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252)).

         II. FACTUAL BACKGROUND

         A. Zhou's Work at Intergraph

         Intergraph employed Zhou as a software consultant from May 2011 until February 2017. Doc. 26-1 at 48-50. Zhou's work consisted primarily of programming at the user interface level or “client tier” for a 3D software product called SmartPlant 3D (“S3D”). Docs. 26-3 at 20; 26-6 at 43-44. However, Zhou also studied the middle level coding language of C in school, and was learning the lower level code of WPF prior to her discharge. Doc. 26-1 at 81-82. While at Intergraph, Zhou worked on one particular project that involved coding on multiple “tiers” and received positive feedback from her supervisor Steve Herold and the client. Doc. 26-1 at 161-63. Zhou also received positive annual performance reviews that she was either “meeting” or “exceeding” expectations from her supervisors Lester Lynd (2011 - 2014) and Herold (2014 - 2017). Docs. 26-1 at 60, 62, 67, 83, 89; 26-6 at 13, 40. In these reviews, Lynd and Herold encouraged Zhou to continue developing her skills and to “focus on learning about the middle tier components” of the S3D product. See doc. 26-1 at 141, 154, 172, 192; 26-2 at 17.

         B. The Harassing Conduct

         After becoming Zhou's immediate supervisor, Herold met with Zhou in December 2014, during which he told Zhou that he had power, that he knew how much people on his team made, that he had the right to put people “in their bracket, ” and that he had the power to pick who to add to “the layoff list.” Doc. 26-1 at 116, 126-27. Herold added that if Zhou did not “do what he said, ” he would add her to this “layoff list.” Id. at 116. Herold then made these same threats to Zhou in another conversation. Id. at 126. It is unclear what specific actions Herold asked Zhou to undertake, but Zhou did not interpret Herold's demands as sexual in nature and she acknowledges they could have been work-related. Id. at 118-21.

         Zhou complained to Lynd (Herold's supervisor) about Herold's threats on at least two occasions. Id. at 241. Zhou asked Lynd if she could transfer to another group, id. at 116-17, in one or perhaps both of these conversations. When Lynd asked why, Zhou relayed her conversation with Herold and expressed her concern that Herold was threatening her. Id. at 126-27. Lynd told Zhou that “[Herold] would not say that, ” that there was no “layoff list, ” and that Herold would not retaliate against her. Id. at 126-27, 117, 122. After this conversation, Lynd told Herold that Zhou had complained to him about Herold's “layoff list” comments. Doc. 26-6 at 65. Subsequently, Herold had a follow-up conversation with Zhou, the details of which are unclear. Doc. 26-1 at 123. Zhou decided not to pursue her transfer request. Id. at 123.

         Over the course of the next three-to-four years, Herold engaged in various conduct that made Zhou uncomfortable and that she interpreted as sexual overtures. Id. at 174, 240-41. For example, Herold repeatedly (less than ten times) told Zhou at various times that his wife was out of town, that he was a bachelor, and that he was “free.” Id. at 143-46. Additionally, on multiple occasions, Herold told Zhou that she dressed “very nice, ” a comment which Lynd also repeatedly made to Zhou. Id. at 233-234. On two occasions, once while alone and a second time when others were present, Herold told Zhou that a female employee had seduced him by sitting next to him in his office and touching her leg against his, and that he had had an affair with this employee. Id. at 233, 237-38. Once, when Herold was using his phone to show Zhou photos of his grandchild, Herold displayed a photo of his daughter breastfeeding with her chest exposed. Id. at 150-52. Then, Herold told Zhou that he had found a “bloody picture” of his wife delivering a child and tried to show her that picture as well, but Zhou turned away. Id. at 153-54. Finally, in March 2016, Herold visited Zhou at her home one Sunday afternoon to give her a casserole while she was recovering from a car accident and while her husband was out of town. Id. at 168-73. Herold stayed for a few minutes, made no inappropriate comments, and then left. Id. at 172-74. However, Herold apparently pressured Zhou into allowing him to eat dinner with her and only left when Zhou invited her daughter to meet him. Id. at 172-74.

         With the exception of the “layoff list” conversation she reported to Lynd, Zhou did not report any of Herold's behavior to anyone at Intergraph prior to her termination, and also did not report Lynd's comments. Id. at 245.[1] Zhou acknowledges that she had reviewed and was familiar with Intergraph's anti-harassment policy and complaint procedure. See 26-1 at 53-56, 128-29, 132-33; 26-4; 26-5.

         C. The Graffiti Incident

         On December 20 or 21, 2016, a co-worker, Luther Walke, told Zhou about graffiti in a men's restroom that referred to Zhou and three other employees. Id. at 92-94. The graffiti said “Asian Sluts” above a list of four names that included Zhou's first name, Susan, and the first names “Nancy, ” “Joseph, ” and “Luther, ” with lines connecting the two females to the males. Id. at 95-97; doc. 26-8. Both Zhou and Jennifer Kaplan, the vice president of human resources, believed that “Nancy” in the graffiti referred to Nancy Ma, a Chinese employee, and that the males referenced were Joseph Harrison and Luther Walke, neither of whom are of Asian descent. Docs. 26-1 at 92-97; 26-7 at 17.

         Upon learning about the graffiti, Denise Bates, the facilities manager, temporarily taped chart paper over the graffiti and later ripped out the wallpaper. Doc. 26-7 at 18-19. Bates also called the police, and either Bates or Kaplan filed a police report. Docs. 26-7 at 18; 26-1 at 100. Subsequently, Bates provided Kaplan with employee badge access information to review, and told Kaplan that she had reviewed this information herself. Doc. 26-7 at 20-22.

         When Kaplan and Walke called Zhou to talk about the graffiti, Zhou told Kaplan, “I don't feel safe to come work, because if we don't find this person, today they put things on the wall, tomorrow they may physically attack me.” Doc. 26-1 at 92-93, 242. Zhou also told Kaplan that she felt nervous and uncomfortable walking around the parking lot. Doc. 26-7 at 24-25. Ostensibly for the purpose of investigating the incident, Kaplan also asked Zhou who she talked to at the office and Zhou named three men. Doc. 26-1 at 102-03.

         After returning to the office from traveling during the winter holidays, Zhou asked Kaplan for an update. Doc. 26-1 at 108. During this conversation, Kaplan asked Zhou to help her review the badge access information from the date of the incident, id. at 105-06, and told Zhou that the detective assigned to the case did not have time to work on it, id. at 108. Zhou then called the assigned detective, who told Zhou that he had called Kaplan three times and left voicemails, that Kaplan never returned his calls, and that he had dismissed the case. Id. at 108-09.

         As for the investigation, although Kaplan reviewed the badge access information, she did not interview any employees. Doc. 26-7 at 22. Also, perhaps because there were no security cameras installed outside the bathroom or because she did not believe such a review would prove useful, Kaplan did not review any of the footage from other cameras installed around the building. Doc. 26-7 ...


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