Opinion
CIVIL ACTION NO. 99-1055-S.
December 15, 2000
ORDER
This cause is before the Court on Defendant Baroco Electrical Construction Company's Motion for Summary Judgment (Doc. 27), Memorandum Brief in Support of Defendant Baroco Electrical Construction Company's Motion for Summary Judgment (Doc. 28), and supporting documents (Doc. 29); Plaintiffs Motion in Opposition to Defendant Baroco Electrical Construction Company's Motion for Summary Judgment (Doc. 31), and Memorandum Brief in Support of Plaintiff's Response to Motion for Summary Judgment filed by Baroco Electrical Construction Company (Doc. 32). Upon consideration of all matters presented, and for the reasons set forth herein, Defendant Baroco Electrical Construction Company's Motion for Summary Judgment is GRANTED in part and DENIED in part.
DISCUSSION
Plaintiff Mark W. Davis (hereinafter "Plaintiff") filed this action against Defendants Baroco Electrical Construction Company (hereinafter "Baroco") and Phillip White (hereinafter "White") alleging discrimination in the conditions of his employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Acts of 1991, and various state law claims. Plaintiff seeks declaratory, injunctive and equitable relief, compensatory and punitive damages, and costs and attorney's fees in connection with alleged sexual harassment in the work place. Plaintiff contends that White, his supervisor, sexually harassed him while he was an employee of Baroco. Plaintiff's complaint sets forth claims against Baroco for sexual harassment (Count One) and for hostile work environment and retaliatory discharge (Count Two); claims against Baroco and White for invasion of privacy (Count Three) and intentional infliction of emotional distress (Count Four); and a claim against White for assault and battery (Count Five). Baroco denies the allegations against it and has filed a motion for summary judgment asking the Court to enter judgment as a matter of law in its favor because, Baroco contends, there is no genuine issue as to any material fact with regard to any of Plaintiffs four claims against Baroco.The evidence and all factual inferences arising from it must be viewed in the light most favorable to the non-moving party, here, Plaintiff. Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992), cert. denied, 507 U.S. 911, 113 S.Cr. 1259. 122 L.Ed.2d 657 (1993).
Plaintiff is a male resident of Mobile County, Alabama. Defendant Baroco is a corporation doing business in Mobile County, Alabama, which employs more than fifteen regular employees for a minimum of twenty calendar weeks of the year. Defendant White is a male resident of the United States and was employed by Baroco at the time of the alleged incidents made the basis of this lawsuit.
Baroco was involved in the construction of the Mitchell Center on the campus of the University of South Alabama during 1998, and utilized the services of a temporary employment agency, Clark Personnel (hereinafter "Clark"), for obtaining temporary employees. Clark finds temporary and permanent employees for customers in a variety of fields. Plaintiff was employed by Clark as an electrician's helper. During August and September of 1998, Clark had five to twenty electrician helpers working for Baroco at the Mitchell Center. Each of the employees placed by Clark, including Plaintiff, worked on a temporary basis for Baroco and had the same relationship with Clark and Baroco. Clark issued Plaintiff's pay check and took taxes out of his pay check. Plaintiff never received a paycheck from Baroco. While Baroco could prevent Plaintiff from working at their job site or tell Clark not to send Plaintiff to their job site at any time, Plaintiff was only a temporary employee of Baroco. Plaintiff was responsible for going back to Clark to be reassigned to another job once his temporary work ended.
Plaintiff's first day of work for Baroco at the Mitchell Center was on August 31, 1998. At the Baroco job site, White was Plaintiff's supervisor. According to Plaintiff, White began making unwanted sexual remarks to Plaintiff on his first day of work, including comments that Plaintiff was making him "horny," "I'm sweaty between my legs," and "can I drill you with my pipe?"
On September 1, 1998, White asked Plaintiff, "Do you want to feel my pipe?" and made comments to Plaintiff about seeing "cookies," referring to human feces.
On September 2, 1998, as Plaintiff returned from the Port-A-Let, White asked Plaintiff, "Did you stretch your ass for me?" and commented to Plaintiff that "you're a young strapping man with a nice ass." White also touched Plaintiff's side and knee in a suggestive manner.
On September 3, 1998, White felt Plaintiff's side in a suggestive manner and made comments to Plaintiff during lunch such as "can I play with your hole?" and "hey, handsome, come here and sit in my lap."
Plaintiff was not at work from September 4 to September 7, 1998, due to the Labor Day weekend.
On September 8, 1998, White made comments to Plaintiff about having a "fine ass" and "drinking his cum, raping him, and straddling his face."
On September 9, 1998, White blew Plaintiff kisses, told Plaintiff that he wanted to lick his rear, told Plaintiff to come and sit in his lap, and touched Plaintiff's knee.
During that week, Plaintiff complained to White about his conduct but White refused to stop and told Plaintiff there was nothing that he could do about it.
On September 10, 1998, White commented to Plaintiff as he returned from the material trailer, "you came back just in time so I can look at you and your cute ass." On this day, White told Plaintiff that he would stop making comments but, an hour later, White was talking about Plaintiff's genitals because he had a rip in his pants.
According to Plaintiff, White would make a sexual remark to Plaintiff and walk away and then come back later and make another sexual remark to Plaintiff; this happened a few times a day. Plaintiff has made no allegation that White caused him any physical injury in connection with any of the above conduct.
Plaintiff's last day of work for Baroco was September 10, 1998. On September 11, 1998, Plaintiff told White's supervisor, Bill James (hereinafter "James"), that he (Plaintiff) needed to be off for a few days because of his sister's death and for National Guard duty. James told Plaintiff that he would have a job upon his return if there was work available. Plaintiff then told James that White was sexually harassing him. Plaintiff gave James few details about White's conduct other than White had said "sexual things" to him. James laughed about it and then offered to put Plaintiff with someone else (another supervisor). On September 21, 1998, ten days later, when Plaintiff returned to the Baroco job site, James told him that he did not have a job.
James spoke with White about Plaintiff's allegations and White admitted to "playing a little grab ass" with Plaintiff. James stated that he did not doubt that some of the alleged language was used by White and that off-color language was commonly used on the construction site; however, James did not believe some of Plaintiff's allegations. Co-employee Matt Patrick heard White use "sexual language" and stated that profanity was used quite frequently on the construction site. Plaintiff stated that rough language is used around construction sites but that he had not had to deal with language concerning sexual innuendo toward other men.
On October 7, 1999, Ginny Hallmark (hereinafter "Hallmark"), with Clark personnel, spoke with Bill Crotts of Baroco and was told that Plaintiff was terminated due to a confrontation with another employee.
Plaintiff alleges that he suffered emotional distress and sought counseling from Catholic Social Services and counselor Terry Mudge. According to Catholic Social Services record, Plaintiff had a fear of humiliation and social anxiety after the incidents involved in this case, and the counselor, Ms. Mudge, did not question the rationality of Plaintiff's fears.
Conclusions of Law
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted:
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 judgment as a matter of law.
Rule 56(c) Fed.R.Civ.P. "A factual dispute is `genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party. A fact is material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Technologies. Inc., 882 F.2d 993, 996 (5th Cir. 1989)(citing Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986));accord, Tipton, 965 F.2d at.
The essential issue before the Court on a motion for summary judgment is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 251-252. The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden, the Court must view the movant's evidence and all factual 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, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Tipton, 965 F.2d at 998-999; Johns v. Jarrad, 927 F.2d 551, 555 (11th Cir. 1991) (quoting Apcoa. Inc. v. Fidelity Nat'l. Bank, 906 F.2d 610, 611 (11th Cir. 1990)). If reasonable minds might differ on the inferences arising from undisputed facts, then the Court must deny summary judgment. Miranda v. B B Cash Grocery Store. Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank Trust Co. v. Fidelity Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985).
"Rule 56(c) mandates the entry of summary judgment . . . 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, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)(accord Kramer v. Unitas, 831 F.2d 994. 997 (11th Cir. 1987)). The movant's burden is discharged by showing that there is an absence of evidence to support the non-moving party's case. When the movant has met this burden, the non-movant must present evidence establishing a material issue of fact.Id.
As stated above, once the movant satisfies the initial burden under Rule 56(c) by demonstrating the absence of a genuine issue of material fact, the burden then shifts to the non-movant to "come forward with specific facts showing that there is a genuine issue for trial."Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Rule 56(c) Fed.R.Civ.P.). Otherwise stated, the non-movant must "demonstrate that there is a material issue of fact that precludes summary judgment." Clark v. Coats Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). "A mere `scintilla' of evidence supporting the [non-moving] 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). The non-moving part may avail itself of all facts and justifiable inferences in the record taken as a whole. Tipton, 965 F.2d at 998 (citing United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)). "([T]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."Id. at 999 (quoting Anderson, 477 U.S. at 255 (citing Adickes, 398 U.S. at 158-159)). "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, 475 U.S. at 587 (citation omitted).
The shifting burden from movant to non-movant at summary judgment described above applies regardless of which party will bear the burden of proof at trial. Clark, 929 F.2d at 607.
A. Hostile Environment Sexual Harassment Claim
There are two types of sexual harassment: (1) quid pro quo or "explicit," which is "based on threats which are carried out" or fulfilled; and (2) hostile environment, which is based on "bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment." Gupta, F.3d at 582 (quoting Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 751, 118 S.Ct. 2257, 2264, 141 L.Ed.2d 633 (1998)). In his complaint, Plaintiff sets forth a claim for sexual harassment (Count One) and a count for hostile work environment and retaliatory discharge (Count Two). Plaintiff has made no allegation or argument and has presented no evidence that his case involves quid pro quo or "explicit" sexual harassment. As such, the Court will consider the claim for sexual harassment (Count One) and the claim for hostile work environment (Count Two) to be one claim for hostile environment sexual harassment and will discuss the two counts as though they are one claim. The Court will address separately Plaintiff's claim for retaliatory discharge (Count Two).
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(l). It expressly prohibits refusing to hire or discharging an employee based on one of the prohibited factors and expressly provides that "[it] shall be an unlawful employment practice for an employer . ., otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." Id.; and see Mendoza v. Borden Inc., 195 F.3d 1238, 1244 (11th Cir. 1999). Title VII, however, does not specifically mention sexual harassment. Nonetheless, "[s]exual harassment is a form of sexual discrimination prohibited by Title VII." Gupta v. Florida Board of Regents, 212 F.3d 571, 582 (11th Cir. 2000). It is well established that federal courts have recognized that "[t]he phrase `terms, conditions, or privileges of employment' envinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment." Mendoza, 195 F.3d at 1244-45 (quoting Harris v. Forklift Systems. Inc., 510 U.S. 17, 21. 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).
"Although Title VII's prohibition of sex discrimination clearly includes sexual harassment, Title VII is not a federal "civility code."'Mendoza, 195 F.3d at 1245 (citing Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). Sexual harassment constitutes sex discrimination only when the harassment alters the terms and conditions of employment. Id. Absent "explicit" discrimination, an employee must make some showing in order to connect the allegations of sexual harassment to a violation of Title VII. Id. Therefore, in a hostile environment case, an employer's harassing conduct toward an employee does not constitute employment discrimination unless the conduct is "sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment."'Id. at 1245-46 (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)).
In order to support a hostile environment sexual harassment claim under Title VII based on harassment by a supervisor, an employee must establish:
(1) that he belongs to a protected group; (2) that the employee has been subjected to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) that the harassment must have been based on the sex of the employee; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create an abusive working environment; and (5) a basis for holding the employer liable.Gupta, 212 F.3d at 582-83 (citing Mendoza, 195 F.3d at 1245).
Regarding the fifth factor, the Supreme Court held in Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), that, in claims based on a supervisor's harassment, an employer may be vicariously liable for actionable hostile environment discrimination caused by a supervisor with immediate authority over the employee, subject to an affirmative defense. Faragher, 524 U.S. at 807, 118 S.Ct. at 2292-93.
The Supreme Court has recognized that same sex sexual harassment is actionable, and that the focus of any sexual harassment analysis should be on whether members of one sex are exposed to disadvantageous terms or conditions of employment "because of sex." Oncale, 523 U.S. at 80, 118 S.Ct. at 1002. In order to support a same sex harassment claim, the employee must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but that it actually constituted "discrimination because of sex." Id. at 80-81, 118 S.Ct. at 1002. According to the Supreme Court, Title VII does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same and of the opposite sex. Oncale, 523 U.S. at 81. 118 S.Ct. at 1003. The statute's prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the conditions of the employment. Id.
In this case, Plaintiff alleges that White, his supervisor, sexually harassed him while working for Baroco. Baroco has moved for summary judgment, arguing that the alleged conduct of White was not sufficiently severe or pervasive so as to constitute actionable hostile environment sexual harassment. This element, whether the conduct complained of was "sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment," is the element that tests the legitimacy of most sexual harassment claims and is therefore regarded as crucial. See Gupta, 212 F.2d at 583 (citing Faragher, 524 U.S. at 788, 118 S.Ct. at 2283-84). "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview." Oncale, 523 U.S. at 81, 118 S.Ct. at 1003 (quoting Harris, 510 U.S. at 21, 114 S.Ct. at 370). This requirement ensures that courts and juries do not mistake ordinary socializing in the workplace, such as male-on-male horseplay or intersexual flirtation, for discriminatory conditions of employment. Id.
Baroco apparently concedes, at least for purposes of summary judgment, that Plaintiff can establish the other four factors required to prove actionable hostile environment sexual harassment — that Plaintiff belongs to a protected group, that the he has been subjected to unwelcome sexual harassment, that the harassment must have been based on Plaintiff's sex, and that there is a basis for holding the employer liable (i.e. Faragher).
Accordingly, in order to establish that harassing conduct was sufficiently severe or pervasive to alter an employee's terms or conditions of employment, the employee must make both a subjective and an objective showing. Mendoza, 195 F.3d at 1246. The employee must establish not only that he subjectively perceived the environment as hostile and abusive, but also that a reasonable person would perceive the environment to be hostile and abusive. Gupta, 212 F.3d at 583 (citing Mendoza, 195 F.3d at 1246). The objective severity of harassment should be judged from the perspective of a reasonable person in the employee's position, considering all of the circumstances. Mendoza, 195 F.3d at 1246 (citing Oncale, 523 U.S. at 81, 118 S.Ct. at 1003). In determining whether harassment objectively altered an employee's terms and conditions of employment, the following four factors should be considered: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance. Id. (citing Allen v. Tyson Foods, 121 F.3d 642, 647 (11th Cir. 1997)). Courts should examine the conduct at issued in context, not isolated acts, and determine, under the totality of the circumstances, whether the harassing conduct is sufficiently severe or pervasive to alter the conditions of the employee's employment and create a hostile working environment. Id.
In this case, an examination of the four factors set forth above reveals that Plaintiff did not endure conduct that was so severe or pervasive that it altered the terms or conditions of his employment. The alleged conduct by White happened over a ten-day period during August and September of 1998, at a construction site. According to Plaintiff, White would make a sexual remark to Plaintiff, walk away and then come back later in the day and make another sexual remark to Plaintiff. In addition, White did admit to James that he may have been "playing a little grab ass" with Plaintiff. However, in total, White's conduct consisted of two to three sexual comments per day and four instances of slight physical contact. While some of White's comments could be considered to be humiliating and even severe, Plaintiff has presented no evidence that he was physically threatened by, or afraid of, White. Moreover, there is absolutely no evidence before the Court that White's conduct unreasonably interfered with or impaired Plaintiff's job performance. Whether the alleged conduct unreasonably interferes with an employee's job performance involves both a subjective and an objective inquiry. Gupta, 212 F.3d at 586 (finding that, while the conduct in question met the subjective prong of the required showing, the conduct did not meet the objective prong and would not have interfered with a reasonable employee's performance of her job even where the employee testified that she suffered from depression, nervousness, anxiety, nose bleeds, fatigue, weight gain, and other physical manifestations of stress and that the manifestations affected her research and caused her to miss deadlines). Here, Plaintiff has presented no evidence, subjective or objective, that White's alleged sexual harassment interfered in any way with the performance of his job as an electrician's helper.
In this case, the Court finds that the conduct at issue was not so objectively offensive as to alter the conditions of Plaintiff's employment. Even construing the evidence in the light most favorable to Plaintiff, the Court finds that Plaintiff's claim falls short of actionable hostile environment sexual harassment. Therefore, Baroco is entitled to summary judgment in its favor as to Plaintif's hostile environment sexual harassment claim.
B. Retaliatory Discharge Claim
Plaintiff alleges that he was discharged by Baroco in retaliation for reporting White's alleged sexual harassment. Retaliation is a separate violation of Title VII, and to recover for retaliation, the plaintiff ""need not prove the underlying claim of discrimination which led to [his] protest,' so long as [he] had a reasonable good faith belief that discrimination existed." Gupta, supra, at 586 (quoting Meeks v. Computer Assoc. Int'l, 15 F.3d 1013, 1021 (11's Cir. 1994)). Here, although the conduct that Plaintiff complained about was not so severe and pervasive to alter his working conditions, the Court cannot say that Plaintiff lacked a "reasonable good faith belief" that he was being sexually harassed. Therefore, if there is sufficient evidence presented to support Plaintiff's retaliation claim, the retaliation claim may withstand summary judgment independent of the sexual harassment claim. Id.
In its motion for summary judgment. Baroco argues that Plaintiff was not an employee of Baroco and therefore Baroco did not and could not have "fired" Plaintiff. Baroco argues that Plaintiff was an employee of Clark, that Plaintiff's paycheck came from Clark, and that Plaintiff signed a contract with Clark stating that he was an employee of Clark and could only be fired by Clark. Baroco argues that Plaintiff was a temporary employee who did not have a definite term of employment with Baroco and that Plaintiff was subject to being moved to another job location by Clark. Plaintiff contends, however, that he was an employee of Baroco and that Baroco had control over his employment while he was at their construction site and could tell him to leave the job site at any time.
The Court of Appeals for this Circuit has held that whether a defendant is an "employer" for Title VII purposes is based on the "economic realities" of the situation "viewed in light of the common law principles of agency and the right of the employer to control the employee."Reynolds v. CSX Transportation. Inc., 115 F.3d 860, 969 n. 12 (11th Cir. 1997) judgment vacated and remanded on other grounds by Faragher, supra, 524 U.S. 775, 118 S.Ct. 2275 (citing Cobb v. Sun Papers, Inc., 673 F.2d 337, 341 (11th Cir. 1982)). The Eleventh Circuit has adopted the approach of the Ninth and District of Columbia Circuits. See Cobb, 637 F.2d at 340-341. While consideration of all the circumstances surrounding the work relationship is essential and no one factor is determinative, the extent of the employer's right to control the "means and manner" of the worker's performance is the most important factor to review. Cobb, 637 F.2d at 340 (quoting Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979)).
In this case, Plaintiff's paycheck came from Clark, and Plaintiff signed a contract with Clark stating that he was an employee of Clark and that he could only be fired by Clark. More importantly, however, Baroco had the right to control the "means and manner" of the Plaintiff's performance at the job site. The evidence indicates that Clark placed several electrician helpers, including Plaintiff, with Baroco at the Mitchell Center; however, there is no evidence that Clark had any control over the means or manner of Plaintiff's job performance at the construction site. It is apparent from all of the evidence presented that Baroco directly and completely supervised Plaintiff on the construction site, instructed Plaintiff as to what work was to be done, and furnished the materials and tools that Plaintiff used on the work site. As such, the Court finds that Plaintiff has presented sufficient evidence that he was an employee of Baroco for Title VII purposes.
To establish a prima facie case of retaliation under Title VII, a plaintiff must prove that:
(1) he participated in an activity protected by Title VII; (2) he suffered an adverse employment action; and (3) there is a casual connection between the participation in the protected activity and the adverse employment action.
Id. at 587.
It is undisputed that Plaintiff participated in a protected activity; he complained to Baroco about sexual harassment and later filed a sexual harassment charge withe the Equal Employment Opportunity Commission. Plaintiff contends that he suffered an adverse employment action in that he was terminated by Baroco. Specifically, Plaintiff contends that Bill James fired him upon his return to work on September 21, and according to the evidence presented, when Plaintiff returned to work, James told him that he did not have a job. Given the foregoing and viewing the evidence in a light most favorable to Plaintiff, the Court finds that there is sufficient evidence that Plaintiff suffered an adverse employment action.
Finally, Plaintiff must show that there is a casual connection between the participation in the protected activity and the adverse employment action. Baroco argues that Plaintiff has failed to present any evidence that the protected activity and the adverse employment action were related. In order to establish a casual connection, a plaintiff must show that the decision-maker was aware of the protected activity and that the protected activity and the adverse action were not wholly unrelated. Gupta, 212 F.3d at 590. For purposes of establishing a prima facie case, "close temporal proximity" may be sufficient to show that the protected activity and the adverse employment action were not wholly unrelated. Id.
Baroco argues that Plaintiff must show that White, the harasser, somehow played a part in Plaintiff's termination, i.e. show a casual link between some action taken by White and Plaintiff's-termination. However, this is not the law. Plaintiff must show that that the decision-maker (James) was aware of the protected activity (Plaintiff's complaint of sexual harassment) and that the protected activity and the adverse action were not wholly unrelated. Gupta, 212 F.3d at 590. There is no requirement that White be the decision-maker or that White recommend or influence the decision-maker in his decision to terminate Plaintiff.
Here, Plaintiff complained of sexual harassment to Bill James and, ten days later, Bill James made the decision that Plaintiff did not have a job with Baroco. Ginny Hallmark stated that she was told by Baroco that Plaintiff's termination was due to a confrontation with a fellow employee. Specifically, Hallmark testified during her deposition that:
Bill Crotts called me back on October 7th, said Mark worked well but he had a confrontation with someone at the job site and they did not think it would be good for him to come back.
Plaintiff's Notice of Filing Exhibits, Deposition of Ginny Hallmark, pages 15-16.
Although the incidents involving Plaintiff and White were not specifically mentioned in Hallmark's conversation or her deposition testimony, it can be inferred that the "confrontation with someone at the job site" was the situation between Plaintiff and White. As such, it cannot be said that the protected activity and the adverse action were wholly unrelated. Baroco has argued that Plaintiff has failed to present any evidence that the protected activity and the adverse employment action were related. Clearly, however, given the testimony of Hallmark, this is not the case. Plaintiff has presented evidence that his protected activity and the adverse employment action were not wholly unrelated. As such, Plaintiff has set forth a prima facie case of retaliation. Moreover, Baroco has not argued or proffered any nondiscriminatory reasons for its actions. Therefore, there is a genuine issue of material fact as to whether Baroco discharged Plaintiff in retaliation for his complaint about White's alleged sexual harassment. Consequently, the Court finds that Baroco is not entitled to summary judgment as to Plaintiff's retaliatory discharge claim.
Bill James stated that he let Plaintiff go because there was a slow down in work and that there was no work for Plaintiff when he returned. However, Baroco has not argued or proffered this as a nondiscriminatory reason for its actions.
C. Invasion of Privacy Claim
Plaintiff alleges that the conduct of White and Baroco constitutes an invasion of privacy because the conduct was a wrongful intrusion into Plaintiff's private activities, physical solitude and seclusion in such a manner to cause outrage and mental. suffering, shame, and humiliation to Plaintiff. Baroco moves for summary judgment as to this claim contending that Baroco cannot be held liable for the acts of White because the alleged acts were done outside the line and scope of White's employment and because Baroco did not ratify White's actions.
In order to succeed on a claim for invasion of privacy relating to sexual harassment, a plaintiff must show that (1) the matters intruded into are of a private nature, and (2) the intrusion would be so offensive or objectionable that a reasonable person subjected to it would experience outrage, mental suffering, shame, or humiliation. Ex Parte Atmore Community Hospital, 719 So.2d 1190, 1194 (Ala. 1998)(citing Busby v. Truswal Systems Corp., 551 So.2d 322 (Ala. 1989)). An employer is liable for the intentional torts of its employee if:
(1) the employee's acts are committed in furtherance of the business of the employer; (2) the employee's acts are within the line and scope of his employment; or (3) the employer participated in, authorized, or ratified the tortious acts.Atmore Community Hospital, 719 So.2d at 1194 (citing Potts v. BEK Construction Co., 604 So.2d 398 (Ala. 1992)).
In this case, there has been no evidence presented that White's actions were committed in furtherance of Baroco's business or that White's actions were within the line and scope of his employment with Baroco. As to the third factor, ratification, Baroco argues that there is no evidence before the Court that Baroco ratified White's conduct.
As stated above, an employer is liable for the intentional torts of the employee if the employer ratifies the employee's conduct. An employer ratifies an employee's conduct if:
(1) the employer has actual knowledge of the tortious conduct; (2) based on his knowledge, the employer knew the conduct constituted a tort; and (3) the employer failed to take adequate steps to remedy the situation.Atmore Community Hospital, 719 So.2d at 1195 (citing Potts, 604 So.2d at 400). "Adequate" means that the employer took reasonable and necessary steps to stop the tortious conduct. Id.
In the case at hand, the first time White's alleged sexual harassment was reported to Bill James, a Baroco management-level employee, was on September 11, 1998, Plaintiff's last day of work. There is no evidence that Baroco had actual knowledge of White's alleged tortious conduct until Plaintiff spoke with James on September 11. Plaintiff admits that he did not give James many details about White's alleged conduct other than White had said "sexual things" to him. Although James initially laughed about Plaintiff's complaint, he immediately offered to put Plaintiff with another supervisor. The evidence indicates that Baroco, through James, took immediate steps to remedy the situation with White. The evidence does not support a finding that Baroco ratified White's alleged conduct. Therefore, Baroco is entitled to summary judgment in its favor as to Plaintiff's invasion of privacy claim.
In fact, according to James, Plaintiff complained of White's conduct on September 10, the day before Plaintiff asked to take off for his sister's funeral and National Guard duty. James testified that, after Plaintiff complained about White's behavior, he said "([w]ell, no problem, I have other people here that you can work with and you won't even see [White]. So I took him in and introduced him to another man and he finished the day out with him." See Plaintiff's Notice of Filing Documents (Doc. 33), Deposition of William James, page 7.
D. Intentional Infliction of Emotional Distress
Although Baroco has argued generally that it is entitled to summary judgment as to each of Plaintiff's claims brought against it. Baroco has made no specific argument with regard to Plaintiff's claim for intentional infliction of emotional distress. Accordingly, the Court finds that Baroco is not entitled to summary judgment as to Plaintiff's claim for intentional infliction of emotional distress.
Conclusion
Upon consideration of all the matters presented and, for the reasons stated above, the undersigned finds that Defendent Baroco Electrical Construction Company's Motion for Summary Judgment is due to be GRANTED in part and DENIED in part. Defendent Baroco Electrical Construction Company's Motion for Summary Judgment is due to be GRANTED as to the hostile environment sexual harassment claim and the invasion of privacy claims, and DENIED as to the retaliatory discharge claim and the intentional infliction of emotional distress claim.
The claim against White for assualt and battery (Count Five) also remains in this case.
Steele, U.S.D.J.
December 15, 2000.