United States District Court, N.D. Alabama, Northeastern Division
K. KALLON UNITED STATES DISTRICT JUDGE
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.
LEGAL STANDARD FOR SUMMARY JUDGMENT
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).
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).
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)).
Zhou's Work at 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
The Harassing Conduct
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.
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.
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.
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
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;
The Graffiti Incident
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.
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.
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
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
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 ...