Opinion
Civil Action No. 99-0610-BH-C.
June 8, 2000.
ORDER
This action is before the court on the Defendants' Motion for Summary Judgment. Defendants move for summary judgment, "on the following claims in this case: (a) Lott's Title VII claim against PIAS, Inc., Sammy's Management Company, and Patricia Cantavespre; (b) Lott's intentional tort claims for outrage and invasion of privacy against all Defendants; and (c) Lott's claim of constructive discharge against all Defendants." (Def.'s Mot. Sum. Judgment, Doc. 32.) Defendants have not moved for summary judgment. on the Title VII discrimination claim inasmuch as it relates to Sammy's of Mobile, Ltd. Furthermore, as grounds for summary judgment regarding the Title VII issue, Defendants do not-attempt to argue the merits of Plaintiff's Title VII claim, rather they simply argue that three of the named Defendants were not Plaintiff's employer, and therefore are not subject to Title VII. For reasons more fully elucidated below, the Court finds that Defendants' motion is due to be DENIED IN PART and GRANTED IN PART. As it relates to Plaintiff's Title VII claims, summary judgment is due to be GRANTED as to Defendant Cantavespre, and DENIED as to the remaining Defendants. The summary judgment motion is also due to be GRANTED as it relates to all other claims.
FINDINGS OF FACT
For the purposes of this summary judgment motion only, the Court finds the following to be undisputed facts.
1) Plaintiff began working as a waitress with Sammy's of Mobile Ltd, on February 20, 1998 (Pl.'s Br. at 2.)
2) Plaintiff began working as a waitress prior to learning of her pregnancy. (Lott Dep. at 143, 157, 158.)
3) Plaintiff worked as a waitress until May 12, 1998, when she was informed by Sammy's management that she was being reassigned to work as a hostess at the door, for safety reasons associated with her pregnancy. (Freitag Aff. at 2.) Plaintiff declined to work as a hostess and never returned to work at Sammy's of Mobile, Ltd. Id.
4) Plaintiff did not contact Cantavespre to speak with her about the position change or her desire to continue working as a waitress, despite knowledge of an "open door" policy. (Lott Dep. at 201-206.)
5) When informed of the need to reassign her as a hostess, Plaintiff became emotional and began to cry. (Lott Dep. at 204; Freitag Dep. at 64-67.)
6) At no time was Plaintiff told that she was being terminated. (Freitag Aff. ¶ 6; Lott Dep. at 199.) In fact, Lott was advised that the transfer was temporary. (Freitag Aff. ¶ 4; Lott Dep. at 190, 198.)
7) Defendant Sammy's of Mobile Ltd. is a limited liability partnership, operating an adult entertainment establishment in Mobile, Alabama. (Cantavespre Aff. ¶ 4.)
8) Defendant PIAS is a Florida corporation, operating adult entertainment establishments in Pensacola and Fort Walton Beach, Florida, and has no business interests in Alabama. Defendant Cantavespre is a stockholder, officer, and director of PIAS. PIAS has no stock ownership or business interest in Sammy's of Mobile Ltd. (Cantavespre Dep. at 7-9; Cantavespre Aff. ¶¶ 1, 6, 7.)
9) Defendant Sammy's Management Corp. (SMC) is a Florida corporation which is registered to do business in Alabama. Cantavespre is the sole stockholder, owner, officer, and director of SMC. (Cantavespre Dep. at G, 7.) SMC provides management services to both Sammy's and PIAS under a management contract and is paid a fee for these services. These managers are employees of SMC. (Cantavespre Aff. ¶¶ 12, 13.)
10) Sammy's of Mobile and PIAS maintain separate bank accounts, accounting records, payroll records, taxpayer numbers, and lines of credit. (Cantavespre Aff. ¶¶ 9, 10; Kohr Aff. ¶ 66.) PIAS and Sammy's of Mobile have always maintained separate files for their own personnel records. (Cantavespre Aff. ¶ 11; Kohr Aff. ¶ 7.)
CONCLUSIONS OF LAW
Title VII Claims
Defendants do not argue that summary judgment is appropriate because there is no genuine issue of material facts regarding whether or not Plaintiff was actually discriminated against. Rather Defendants argue that summary judgment is appropriate as to SMC, PIAS and Cantavespre because none of these Defendants were Plaintiff's "employer". As to Mrs. Cantavespre Plaintiff concedes this point. However, for the reasons articulated in Plaintiff's responsive brief, the Court finds that a genuine dispute of material fact exists regarding the issue of whether Sammy's of Mobile, SMC, and PIAS are all a singular employer for the purposes of this Title VII action. Therefore, summary judgment is due to be and is hereby DENIED as to Plaintiff's Title VII claims against SMC and PIAS. On the other hand, summary judgment is hereby GRANTED in favor of Mrs. Cantavespre as to the Title VII claims asserted against her individually.
Tort of Outrage Claim
Plaintiff contends that the Defendants' act of reassigning her as a hostess from her position of waitress was so outrageous that it constitutes the tort of outrage under Alabama law.
To establish the tort of outrage, the plaintiff must prove three elements: "(1) the actor intended to inflict emotional distress, or knew or should have known that emotional distress was likely to result from his conduct; (2) the conduct was extreme and outrageous; (3) the distress was severe."
Brassfield v. Jack McLendon Furniture, Inc., 953 F. Supp. 1438, 1452 (S.D. Ala. 1996) (quoting Moore v. Spiller Associated Furniture, Inc., 598 So.2d 835 (Ala. 1992)). This Court finds as a matter of law, that the Defendants' actions did not rise to the level of "extreme and outrageous". Therefore, summary judgement is due to be and is hereby GRANTED in favor of the Defendants as to Plaintiff's tort of outrage claim.
Invasion of Privacy Claim
Plaintiff also asserts a claim for invasion of her privacy. According to plaintiff's brief,
It is generally accepted that the invasion of privacy tort consists of four distinct wrongs: 1) the intrusion uporn the plaintiff's physical solitude or seclusion; 2) publicity which violates the ordinary decencies: 3) putting the plaintiff in a false, but not necessarily defamatory, position in the public eye; and 4) the appropriation of some element of the plaintiff's personality for a commercial use. Norris v. Moskin Stores, Inc., 132 So.2d 321 (Ala. 1961) [Additional citations omitted]
(Pl.'s Br. at 16!)
After correctly pointing out that Plaintiff's sexual concerns are entitled to privacy protection, her brief goes on to state: In the case at bar, the pertinent inquiry is whether there has been an "intrusion upon the plaintiff's physical solitude or seclusion," or a "wrongful intrusion into one's private activities in such manner so as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities." Brassfield, supra at 1455.
(Pl.'s Br. at 16.)
After Plaintiff makes a further explanation of the law on this issue, the only evidence she points to as evidence of an invasion of her privacy is a portion of the deposition of Pilgram Freitag. That portion of Freitag's deposition merely states that the plaintiff asked Freitag on one occasion why another manager at Sammy's had inquired whether Plaintiff was pregnant. This falls far short of creating a genuine issue of material fact regarding an invasion of privacy claim. Therefore, Defendants motion for summary judgment is due to be and is hereby GRANTED as to plaintiff's invasion of privacy claim.
Constructive Discharge Claim
Plaintiff also claims that she was constructively discharged from her employment at Sammy's. According to Plaintiff, by reassigning her from the position of waitress, to the position of hostess, Defendants made her working condition so intolerable that a reasonable person would be compelled to resign. See e.g. Poole v. Country Club of Columbus, Inc., 129 F.3d 551 (11th Cir. 1997). Plaintiff offers virtually no evidence to support this claim. She merely argues that 1) her employer decided that she should not work as a waitress while pregnant and 2) "[n]o consideration was given to the devastating economic or emotional impact that this unrequested change in position would have on the Plaintiff." (Pl.'s Br. at 18.) However, Plaintiff presents no evidence which tends to prove that no such consideration was made by the Defendants. Nor does Plaintiff offer evidence of the alleged "devastating economic" impact that such a change would have on her life. Indeed, she admittedly does not know how much money she would have made as a hostess. Even if Plaintiff subjectively felt that her working condition was intolerable, this Court finds as a matter of law that plaintiff's working condition was not so intolerable that a reasonable person would be compelled to resign. Therefore, summary judgement is due to be and is hereby GRANTED in favor of Defendants as to plaintiff's claim of constructive discharge.
CONCLUSION
After consideration of all pertinent portions of the record, and for the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART the Defendants' motion for summary judgment.
The issue remaining in this matter is whether Plaintiff was discriminated against, on the basis of her pregnancy, when she was reassigned from the position of waitress, to that of hostess. It is also a jury question as to whether SMC and PIAS were employers of the plaintiff for the purposes of this litigation. SO ORDERED this 8th day of June, 2000.