Summary
examining when actions giving rise to claim occurred
Summary of this case from Jones v. FXI, Inc.Opinion
Civil Action No. 2:99CV138
July 14, 2000
MEMORANDUM OPINION
The court has before it defendants' motion for summary judgment in the above styled cause. Defendants Tom Horton and Sheraton Tunica Corporation invoke this court's jurisdiction under 28 U.S.C. § 1332, and in accordance with the provisions of 28 U.S.C. § 636(c), plaintiff Lynda Disney and the defendants Tom Horton and Sheraton Tunica Corporation consented to have a United States Magistrate Judge conduct all proceedings in this case, including an order for entry of a final judgment. Therefore, the undersigned has authority to render an opinion regarding the motion for summary judgment.
FACTUAL SUMMARY AND STATUS OF THE CASE
The facts of this case have been set out in this court's Memorandum Opinion of April 13, 2000, and need not be reiterated here.
On April 13, 2000, this court granted summary judgment as to the plaintiff's claims against Sheraton for (a) retaliation under Title VII; (b) intimidation and all other claims under 42 U.S.C. § 1985 (2)-(3); (c)violation of the Violence Against Women Act, 42 U.S.C. § 13981; (d) negligent infliction of emotional distress; and (e) intentional infliction of emotional distress regarding events which occurred prior to July 12, 1998. The court also granted summary judgment as to the plaintiff's claims against Horton for (a) intimidation and all other claims arising under 42 U.S.C. § 1985 (2)-(3); (b) violation of the Violence Against Women Act, 42 U.S.C. § 13981; (c) negligent infliction of emotional distress; and (d) intentional infliction of emotional distress, assault and battery, and invasion of privacy regarding events which occurred prior to July 12, 1998.
Consequently, the only remaining claims are (a) the plaintiff's claims against the defendants Sheraton and Horton for intentional infliction of emotional distress regarding events occurring after July 12, 1998; (b) the claims against Horton for assault and battery and invasion of privacy regarding events occurring after July 12, 1998; and (c) the Title VII claim against Sheraton for sexual harassment.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment carries the burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L.Ed.2d 265 (1986). After a proper motion for summary judgment is made, the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Ragas v. Tennessee Gas Pipeline Company, 136 F.3d 455, 458 (5th Cir. 1998); Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir.), cert. denied, 513 U.S. 1045 (1994); Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir. 1992). Substantive law determines what is material. Anderson, 477 U.S. at 249. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. If the non-movant sets forth specific facts in support of allegations essential to his claim, a genuine issue is presented. Celotex, 477 U.S. at 327. "Where the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L.Ed.2d 538 (1986); Federal Savings and Loan, Inc. v. Kralj, 968 F.2d 500, 503 (5th Cir. 1992). The facts are reviewed drawing all reasonable inferences in favor of the non-moving party. Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1198 (5th Cir. 1995); Matagorda County v. Russell Law, 19 F.3d 215, 217 (5th Cir. 1994); King v. Chide, 974 F.2d 653, 656 (5th Cir. 1992). However, this is so only when there is "an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994); see Guillory v. Domtar Industries, Inc., 95 F.3d 1320, 1326 (5th Cir. 1996). In the absence of proof, the court does not "assume that the nonmoving party could or would prove the necessary facts." Little, 37 F.3d at 1075 (emphasis omitted).
THE MOTION FOR SUMMARY JUDGMENT
Defendants' motion for summary judgment was filed May 19, 2000. Plaintiff has wholly failed to respond to defendant's motion in a timely fashion or seek an extension of time within which to do so. Although this court cannot grant summary judgment by default, i.e., simply because there is no opposition to the motion, Hibernia National Bank v. Administration Central Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985), the court may accept as undisputed the movant's version of the facts and grant the motion where the movant has made a prima facie showing of its entitlement to summary judgment. Eversly v. Mbank, 843 F.2d 172, 174 (5th Cir. 1988). Therefore, the question is whether defendant has made a prima facie showing as to each of the claims advanced. Plaintiff's claims include: (1) state law claims for intentional infliction of emotional distress; (2) a state law claim for assault and battery; (3) a state law claim for invasion of privacy; and (4) sexual harassment under Title VII of the Civil Rights Act of 1964. The applicability of a summary judgment motion on each claim is considered below.
1. Intentional Infliction of Emotional Distress
The plaintiff's claims for the intentional infliction of emotional distress are against both Sheraton and Horton. The statute of limitations for the intentional infliction of emotional distress is one year. Watkins v. United Parcel Service, Inc., 797 F. Supp. 1349, 1361 n. 13 (S.D.Miss. 1992).
In her EEOC complaint, the plaintiff alleges that the offensive, intentional conduct practiced by Sheraton and Horton continued until her termination in September 1998. However, on May 12, 2000, the defendants took Disney's deposition. In that deposition, Disney stated that no harassment occurred after the Spring of 1998. With their motion for summary judgment, the defendants provided the following excerpt from that deposition:
Q. How about Mr. Horton — what harassment did you suffer from Mr. Horton during 1998.
A. He still told some jokes and stuff.
Q. And this was after he had sustained a suspension?
A. As far as I know.
Q. So it was after February of 1998?
A. Yes.
Q. When?
A. Probably in March or April.
Q. So in the Spring of 1998 he continued to tell jokes to you?
A. A few, not as much.
Q. Anything after that?
A. No. I didn't — he came back on my shift but I didn't stay very near him. We didn't talk very often.
(Disney Dep. at 133).
The plaintiff filed her complaint on July 12, 1999. Consequently, for her intentional infliction of emotional distress claim to be viable, the actions complained of must have occurred after July 12, 1998. The defendants have now provided evidence that nothing occurred after the spring of 1998, and the plaintiff has made no attempt to contradict this. Accordingly, the defendants' motion for summary judgment will be granted as to the intentional infliction of emotional distress claims.
2. Assault and Battery and Invasion of Privacy
The plaintiff's claims for assault and battery and invasion of privacy are against Horton alone. As with the claim for intentional infliction of emotional distress, the statute of limitations for both assault and battery and invasion of privacy provides that the claim must be brought within one year of the occurrence. See Miss. Code Ann. § 15-1-35 (West 1999). See also Young v. Jackson, 572 So.2d 378, 382 (Miss. 1990) (explaining one-year statute of limitations applies to invasion of privacy actions as in actions for defamation). Again, the court looks to determine whether the complained of activity occurred since July 12, 1998.
As discussed supra, the defendants provided to the court deposition testimony in which the plaintiff states that nothing untoward occurred after the spring of 1998. Accordingly, the defendant's motion for summary judgment regarding the assault and battery and invasion of privacy claims is granted.
3. Title VII
Finally, the plaintiff's Title VII claim is against Sheraton alone. In Mississippi, a Title VII plaintiff must file a charge of discrimination within 180 days "after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1). The plaintiff filed her charge of discrimination on December 2, 1998. Therefore, the conduct complained of must have occurred after June 4, 1998. As with the claims discussed supra, the plaintiff has admitted that no harassment occurred as late as June 4, 1998, and thus, summary judgment will be granted as to the Title VII claim.
An order in accordance with this opinion shall issue this day.