Taylor, et al v. Nickels & Dimes Inc

*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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 3, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10950
Summary Calendar
KIMBERLY N TAYLOR; ERIKA SQUARE,
Plaintiffs-Appellants,
versus
NICKELS AND DIMES INC, Etc; ET AL,
Defendants,
NICKELS AND DIMES INC, doing business as Tilt at Dallas Alley
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
(3:00-CV-1461)
Before JONES, STEWART and DENNIS, Circuit Judges
PER CURIAM:*
In this action seeking damages for sexual harassment and retaliation in violation of Title VII
of the Civil Rights Act of 1964 ("Title VII"), Kimberly Taylor (“Taylor”) and Erika Square

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1See Taylor v. Nickels and Dimes, Inc. No. 3:00-CV-1461, 2002 WL 1827657 (N.D. Tex
August 7, 2002); Taylor v. Nickels and Dimes, Inc. No. 3:00-CV-1461, 2002 WL 1827659 (N.D.
Tex August 7, 2002).
2
(“Square”) appeal from the district court’s grant of summary judgment in favor of their former
employer, Nickels and Dimes, Inc. For essentially the reasons contained in the district court’s
comprehensive opinions, we affirm.1
In July 2000, Taylor and Square (collectively, “Plaintiffs”) filed this lawsuit against Nickels
and Dimes and James Lo ve (“Love”), their immediate supervisor, (collectively, “Defendants”)
alleging that Nickels and Dimes discriminated and retaliated against them on the basis of their sex
in violation of Title VII and the Texas Commission on Human Rights Act. Specifically, the
Plaintiffs alleged that Love sexually harassed them for approximately five months which included
Love’s inappropriate remarks and physical behavior toward them. The Plaintiffs further alleged that
Love retaliated against the Plaintiffs by embarking on a campaign of terror against them, including
threatening them with physical assault and altering their wo rking conditions. The Plaintiffs also
asserted that Nickels and Dimes constructively discharged Taylor and Square.
Nickels and Dimes owns and operates an arcade known as "Tilt" located in Dallas, Texas.
Nickels and Dimes hired Square on October 25, 1998, and Lo ve on April 1, 1998. At all times
material herein, Love was Square's supervisor. Square contends Love sexually harassed her during
the entire period of her employment with Nickels and Dimes. Specifically, Square states that Love
grabbed her buttocks on four occasions, and made a number of inappropriate comments, such as
"you have a big ass" and "I'm gonna [sic] get me some of that." She further states that Love invited
her to have sex with him, and suggested that she might find work as a stripper in a club owned by
one of his associates. Square also avers that prior to her complaint, Love denied her certain benefits

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of employment by requiring her to postpone restroom breaks, preventing her from leaving work on
time, and assigning her cleaning duties. Finally, Square avers that Love reached into her apron and
grabbed her crotch area in late February 1999. Throughout this period, Love threatened her and told
her not to report his conduct to upper management.
On March 31, 1999, Square states Love ushered her into a back room, closed the door, and
refused to let her out. Square further states that Love threatened her with clenched fists and struck
her in the breast. Nickels and Dimes contends that Square and Love engaged in an argument after
Love instructed her to postpone taking a break until someone could cover for her. Rather than
comply with his request, Square yelled at Love and refused to follow his instructions. Following
Square's insubordination, Nickels and Dimes Assistant General Manager, Dakwanda Tate ("Tate")
terminated Square's employment.
Later that day, on March 31, 1999, Square complained to Michelle Pizio ("Pizio"), Human
Resources and Payroll Manager, that Love had sexually harassed her by touching her buttocks and
by placing his hand down her apron. In response to these allegations, Pizio reinstated Square's
employment, placed her on paid administrative leave until April 6, 1999, and immediately
investigated her complaint. Pizio instructed Love not to retaliate against Square, not to have any
contact with her, and, if necessary, to have another supervisor interact with Square during her shift.
Pizio also rescheduled Square's work shift so that it would not substantially overlap with Love's
shift, and arranged for someone other than Love to supervise Square during those periods their shifts
did overlap.
Square worked her shift on April 6, 1999, and worked approximately one hour the following
day. On April 7, 1999, Pizio interviewed a number of witnesses at Nickels and Dimes concerning
the allegations Square made against Love. According to Square, a coworker informed her that Pizio

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had "asked a lot of questions" and was "watching [her] every move." Square further states that Love
was present at work upon her return and had threatened her with injury. Based on these comments
and threats, Square abandoned her employment.
Nickels and Dimes hired Taylor on Sept ember 20, 1996. At all time material herein, Love
was the Shift Manager and supervised Taylor. Taylor states that Love began a campaign of sexual
harassment beginning sometime after July 7, 1998, and that continued thereafter on a weekly basis
through October 29, 1998. Specifically, Taylor avers Love told her that he wanted to "take her to
the room," "take her to a motel," "have sex with [her]," and "eat her out." Taylor further states that
Love often attempted to grab her buttocks, and that on at least one occasion, succeeded.
At some point before October 1998, Taylor reported these incidents to the General Manager,
Okey Ogwumike ("Ogwumike"), and to the Assistant General Manager, Jeff Wright ("Wright").
Wright instructed Taylor to call Pizio. On October 29, 1998, Taylor reported the sexual harassment
to Pizio. In response, Pizio immediately investigated the allegations and conducted phone interviews
with Taylor, Love, Ogwumike, Wright, and a number of other employees. Based on her
investigation, Pizio determined that both Taylor and Love behaved inappropriat ely by discussing
matters of a sexual nature with fellow employees, and by touching or hugging them. Pizio instructed
Love not to engage in any such conduct with coworkers, to avoid any further contact with Taylor,
and if necessary, to have another supervisor interact with Taylor during Love's shifts. Pizio also
caused Taylor and Love to work in different locations of the arcade when both worked on the same
shift. Finally, Pizio counseled Ogwumike, Wright, and Love not to retaliate against Taylor for
making her complaint.
Taylor concedes that she did not experience any further sexual harassment after she
complained to Pizio; however, she states that Love threatened her with imminent bodily injury after

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she had complained. Taylor testified in her deposition that Love threatened her at "different times"
in 1998, and only "a little bit" in 1999. Taylor further states that between October 1998 and August
1999, her supervisors watched her more closely, denied her work and restroom breaks, assigned her
extra duties, prevented her from taking leave on several occasions, and finally, that Ogwumike
threatened to demote her. Taylor believes these actions were in retaliation for the complaint she filed
against the Defendants for sexual harassment.
In October 2001, Nickels and Dimes moved for summary judgment claiming, inter alia, that
(1) Nickels and Dimes’ prompt remedial action following the Plaintiffs’ internal complaint bars any
recovery, (2) the Plaintiffs did not suffer any adverse employment actions, and (3) Nickels and
Dimes did not constructively discharge the Plaintiffs. On August 7, 2002, the district court granted
summary judgment to Nickels and Dimes on Taylor’s and Square’s Title VII claims.
The Plaintiffs appeal arguing that in the totality of the circumstances, they suffered an
abusive working environment based on their sex. According to Taylor, she presented evidence that
Love told her that he wanted to perform various sexual acts on her. During that same time, Taylor
alleges that Love attempted to grab her buttocks and on at least one occasion succeeded in doing so.
According to Taylor’s deposition, she resigned from her employment with Nickels and Dimes due
to unrelated health reasons. Square alleges that Love grabbed her buttocks four times and her vagina
once and that he made sexual comments to her. Square argues that when Nickels and Dimes
terminated her on March 31, 1999, that constituted an adverse employment action. Nickels and
Dimes, however, dissolved the termination and instead placed Square on paid administrative leave
until April 6, 1999. Square further argues that her resignation on April 7, 1999 constituted a
constructive discharge.

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In separate memorandum opinions, the district court concluded that neither Taylor nor
Square produced evidence that they suffered a tangible employment action by Nickels and Dimes
to establish prima facie cases of sexual harassment. The district court found that no constructive
discharge took place because a reasonable employee would not have felt compelled to resign under
such conditions. In Square’s case, the district court determined that “the facts demonstrate that
Square resigned because of the threats made by Love, and because she believed she would be
terminated. Nothing in the record substantiates Square’s belief that Nickels and Dimes would
terminate her.” In Taylor’s case, the district court concluded that once Taylor reported the
harassment all inappropriate sexual behavior ceased approximately ten months before she resigned,
and therefore, there was no constructive discharge. The district court further found that Nickels and
Dimes had produced sufficient evidence to establish an affirmative defense under Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The
district court also determined that the Plaintiffs’ retaliation claims fail because neither Square nor
Taylor had demonstrated constructive discharge or that they otherwise experienced adverse
employment actions.
Our review of the record confirms the findings of the district court regarding the claims of
Taylor and Square. For the reasons thoroughly explained in the district court’s Memorandum
Opinions and Orders, we AFFIRM.
AFFIRMED.

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